State v. Morse

• Decision Date: 23 September 2021
• Docket Number: 1184-2020
• Parties: STATE OF MARYLAND v. RICHARD WILLIAM MORSE
• Court: Court of Special Appeals of Maryland

STATE OF MARYLAND v. RICHARD WILLIAM MORSE

No. 1184-2020

Court of Special Appeals of Maryland

September 23, 2021

Circuit Court for Montgomery County Case No.: 128483

Nazarian, Beachley, Wells JJ.

OPINION ^[*]

Wells J.

Appellant the State of Maryland, appeals a decision from a post-conviction proceeding in the Circuit Court for Montgomery County, finding that Patrick Smith, Esq. performed deficiently as appellee Richard Morse's trial counsel. In this appeal, the State presents two questions, which we have rephrased for clarity:^[1]

1. Did the post-conviction court err in determining that trial counsel should have (1) objected to a voluntary intoxication jury instruction which instructed the jury not to consider Morse's intoxication in their deliberations; (2) proposed his own jury instruction regarding voluntary intoxication; (3) objected or argued during closing argument regarding the relevance of Morse's intoxication; (4) investigated and developed evidence of Morse's intoxication; and (5) introduced an expert witness regarding the effects of Morse's consumption of alcohol and Klonopin at trial?

2. Did the post-conviction court err in determining that trial counsel committed cumulative error? We conclude that the post-conviction court erred in holding Morse's trial counsel deficient. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On May 16, 2015, Morse gathered with a group of friends at a home in Bethesda, Maryland. While at the home, he consumed six beers and took a Klonopin.^[2] At around 11:30 p.m., Morse and the group of friends went to a nearby bar where their friend G.M.^[3]met them sometime after 12:00 a.m. When G.M. arrived at the bar, she consumed approximately six to eight drinks-consisting of beers and vodka-cranberry cocktails-in a two-hour period. Meanwhile, Morse also consumed additional alcoholic beverages, which consisted of beer and Jack and Coke cocktails. When the bar closed around 2:00 a.m., the whole group went to Charles Latimer's home in Potomac, Maryland.

When she left the bar, witnesses said that G.M. was visibly intoxicated: she was nonresponsive to questions, needed assistance getting out of a car, and became physically ill. Her friends, concerned about her wellbeing, decided to let G.M. rest in a bedroom located on the second floor of Latimer's home, while the rest of them, including Morse, were downstairs. By this point in the early morning, people were no longer drinking alcohol, and all were told of G.M.'s heavily intoxicated state. In fact, various people went upstairs to check on G.M. throughout the night, until around 5:00 a.m.

At some point between 5:30 and 6:30 a.m., G.M. testified that Morse awoken her while holding her down and inserting his penis into her vagina. G.M. asked Morse to stop and called for help, but no one came to her aid. Eventually, G.M. was able to free herself and ran to the bathroom where she discovered she was bleeding from her vagina. After calming herself down and texting her friends, she went back to bed only to be awoken hours later by Morse again penetrating her. This time when G.M. freed herself she woke up her friends and left the house.

The next day, one of the people that G.M. confided in reached out to Morse regarding the encounter that took place the night before. This prompted Morse to contact G.M. through Facebook to apologize for the "stupidest blackout mistake that [he had] ever made." He pleaded with her not to report the incident to the authorities because it would "ruin" him because of "how close of friends [they] were." Despite his request, G.M. reported the incident to the authorities and the police charged Morse with two counts of second-degree rape.

The Circuit Court Trial

Morse retained attorney Smith, who has practiced criminal law for roughly 41 years. Morse denied having any memory of the incident due to his intoxication and maintained his innocence. Prior to the commencement of trial, the State offered to allow Morse to plead guilty to the charge of third-degree rape with a commensurate sentence. Morse rejected this offer and proceeded to trial.

In its opening statement, the State suggested that Morse's actions constituted second-degree rape because G.M. was incapacitated, but the prosecutor made no mention of the knowledge element in second-degree rape:

And, what you are going to hear is that an individual cannot have sex with a mentally incapacitated person. A mentally incapacitated person is someone who is intoxicated and cannot therefore consent. So, when it starts out that way, when person [is] mentally incapacitated and cannot consent, and someone has sex with that person, that is also definition of rape.

Smith did not object to this statement.

During their case, the defense introduced evidence of Morse's alcohol intoxication and use of Klonopin through Morse's own testimony. However, at no point did counsel Smith introduce expert witness testimony to discuss the possible effects of the combination of alcohol and Klonopin on Morse's state of mind.

After all evidence was presented, the court instructed the jury regarding Morse's use of alcohol and prescription drugs:

Now, you have heard evidence that the defendant may have acted at a time in question while intoxicated by alcohol or by prescription medication. Generally speaking, voluntary intoxication may be a defense to a specific-intent crime. However, it is not a defense to a general intent crime. Rape in the second degree is considered a general intent crime. Therefore, the voluntary intoxication of the defendant is not a defense and does not excuse or justify criminal conduct for a charge of second-degree rape.

Smith did not object to this instruction. Smith also did not argue voluntary intoxication as a defense in his closing argument or object to the following comment during the State's closing argument:

[V]oluntary intoxication is not a defense in this case. The defendant doesn't get to say, well, I drank too much and I don't remember, but I'm really sorry if I did something that was really bad. It is not a defense ladies and gentlemen. It doesn't get to be considered.

The jury convicted Morse of one count of second-degree rape. The court sentenced him to 20 years, all but five years suspended, and five years of probation. Morse first appealed the conviction to this Court, but later voluntarily dismissed the appeal. Thereafter, Morse retained new counsel and filed a post-conviction petition in the circuit court.

The Post-Conviction Proceeding

During the post-conviction proceeding, Morse alleged Smith rendered constitutionally ineffective representation, because of Smith's failure to argue and present evidence about the relevance of Morse's intoxication during the rape. Specifically, Morse took issue with the fact that Smith did not (1) object to the jury instruction regarding voluntary intoxication; (2) request or propose his own jury instruction regarding the relevance of voluntary intoxication to the knowledge requirement of second-degree rape; (3) argue that Morse's intoxication was relevant to his knowledge of G.M.'s incapacitation during his closing argument; (4) investigate and develop evidence regarding Morse's intoxication; and (5) consult or call an expert regarding the effects of alcohol and Klonopin and the effects of those substances on Morse.^[4]

Smith testified at this proceeding that he thoroughly prepared for trial by meeting with Morse numerous times. Smith also testified that he consulted with an expert regarding the effects of Morse's intoxication, but did not present the evidence at trial because it was not favorable. Lastly, Smith attributed his lack of objections to strategic decision-making and his belief that the jury instructions and prosecutor's closing statements were legally accurate.

After a two-day hearing, the post-conviction court held that Morse's claims warranted a new trial because Smith's performance was cumulatively deficient, prejudicing Morse. The crux of the judge's reasoning rested on Morse's assertion that while voluntary intoxication is not a defense to a general intent crime, it is nonetheless relevant to the "knowing" requirement in second-degree rape.

The State of Maryland timely appealed. Additional facts will be discussed later.

DISCUSSION

I. PRESERVATION

As a preliminary matter, this Court must decide which arguments were preserved for our review. For the reasons that follow, we hold that all of the State's arguments were preserved.

In its Application for Leave to Appeal, the State raised two questions:

1. Did the postconviction court err in concluding that trial counsel was deficient in failing to object to the pattern jury instruction on voluntary intoxication, where the postconviction [court] conceded that voluntary intoxication [is] not a defense to the general intent crime of second-degree rape?

2. Did the postconviction court err in concluding that trial counsel was deficient in failing to investigate and develop evidence of the defendant's intoxication?

On December 17, 2020, this Court granted the application for leave to appeal and transferred it to the Court's regular appeal docket. The order granting this transfer said, in relevant part:

ORDERED that the captioned Application for Leave to Appeal is hereby GRANTED as to the issue(s) raised in the Application . . . .

In his brief, Morse asserts that the State failed to preserve many of the grounds on which the post-conviction court rested its finding of ineffective assistance of counsel. Consequently according to Morse, even if we agree with the State's arguments, we would not be able to reverse the post-conviction court's grant of relief. Morse contends that the State only preserved the post-conviction court...