State v. Nutter, No. 2134

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Friedman, J.
Decision Date14 May 2019
Docket NumberNo. 2134


No. 2134


September Term, 2017
May 14, 2019

Circuit Court for Baltimore City
Case No. 58635638


Meredith, Nazarian, Friedman, JJ.

Opinion by Friedman, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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On a petition for post-conviction relief, the Circuit Court for Baltimore City found that Tyrone Nutter received ineffective assistance of counsel and granted him a new trial. The State appealed, arguing that counsel's actions did not rise to the level of ineffective assistance. We agree with the State, and therefore reverse.


In 1987, Nutter was convicted of attempted murder and related offenses, and was sentenced to life in prison plus twenty years. Nutter appealed to this Court, which affirmed his conviction in an unreported opinion. Nutter v. State, No. 1270, Sept. Term 1987 (Md. Ct. Spec. App. Apr. 21, 1988). In 2009, Nutter filed a petition for post-conviction relief. The petition was denied, as was an application to seek leave from the denial.

Nutter filed a second petition for post-conviction relief in 2015. The second post-conviction court granted the petition, holding that Nutter received ineffective assistance of counsel both at trial and at his original post-conviction hearing (because post-conviction counsel failed to identify trial counsel's errors). The second post-conviction court found that counsel should have objected both to the State's use of a prior conviction for impeachment and to alibi instructions that shifted the burden of proof onto the defendant. The State filed an application for leave to appeal the second post-conviction court's decision, which we granted.


The State argues that the second post-conviction court committed two errors in concluding that Nutter received ineffective assistance of counsel. First, it evaluated the law on impeachment for prior offenses as it exists today, instead of as it existed at the time of

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Nutter's trial. Second, it faulted counsel for failing to object to alibi instructions that necessitated no objection. We agree with both of the State's arguments.

I. Standard of Review

Claims of ineffective assistance of counsel are governed by a two-part test, under which the petitioner bears the burden of demonstrating: (1) that counsel's performance was deficient; and (2) that, as a result, the petitioner was prejudiced. Barber v. State, 231 Md. App. 490, 515 (2017) (citing Strickland v. Washington, 466 U.S. 668 (1984)). We need not reach one part of the test if the other is dispositive and here our analysis will focus on deficiency. State v. Armstead, 235 Md. App. 392, 408 n.8 (2018) (quoting Strickland, 466 U.S. at 697). To prove a deficiency in performance, "a petitioner must show that the acts or omissions of counsel were the result of unreasonable professional judgment and that counsel's performance fell below an objective standard of reasonableness considering prevailing professional norms." Barber, 231 Md. App. at 515 (cleaned up).

In reviewing the second post-conviction court's decision itself, our duties are as follows:

The standard of review of the lower court's determinations regarding issues of effective assistance of counsel is a mixed question of law and fact. We will not disturb the factual findings of the post-conviction court unless they are clearly erroneous. But, a reviewing court must make an independent analysis to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed. In other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any. Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of counsel's conduct and the prejudice suffered. As a question of whether a

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constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case. We will defer to the post-conviction court's findings of historical fact, absent clear error, but we will make our own, independent analysis of the appellant's claim.

Id. at 517 (cleaned up).

II. Impeachment for a Prior Conviction of Attempted Murder

At trial, Nutter took the stand in his own defense. In an effort to undermine his credibility, the State sought to impeach him with evidence that he was previously convicted of attempted murder.1 Nutter's defense counsel did not object.

Attempted murder was held to be not relevant to credibility and therefore inadmissible for impeachment in the 2014 case, Jones v. State, 217 Md. App. 676, 709 (2014). Relying on the Jones decision, the second post-conviction court found that "the case law on this topic is clearly established" and that Nutter received ineffective assistance of counsel because defense counsel failed to object to the impeachment.

Where the law stands today, however, is not the standard under which we examine ineffective assistance of counsel claims. Instead, as the United States Supreme Court explained in Strickland, a "court deciding an actual ineffectiveness claim must judge the

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reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690 (emphasis added). The party claiming ineffective assistance of counsel must therefore present "evidence establishing that the prevailing professional norm at the time of his trial was to object" and if no such evidence is presented we assume "that counsel's conduct fell within a broad range of reasonable professional judgment." Armstead, 235 Md. App. at 422-23 (emphasis added) (cleaned up). Thus, a claim for ineffective assistance of counsel will not prevail when "there was no legal signpost alerting trial...

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