State v. Purvey

Decision Date01 November 1999
Docket NumberNo. 6323,6323
Citation740 A.2d 54,129 Md. App. 1
PartiesSTATE of Maryland v. Hosea Eugene PURVEY.
CourtCourt of Special Appeals of Maryland

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

Fred Warren Bennett (Michael E. Lawlor and Bennett & Nathans, LLP, on the brief), Greenbelt, for appellee.

Argued before MURPHY, C.J., and HOLLANDER and THIEME, JJ THIEME, Judge.

The State appeals the decision of the Circuit Court for Prince George's County granting the petition of Hosea Eugene Purvey for post-conviction relief. A jury convicted Purvey of first-degree murder on July 17, 1990, and he was sentenced by the court to life in prison on September 27, 1990. Purvey appealed his conviction to this court on October 29, 1990, and we dismissed the appeal on January 30, 1991. He petitioned the circuit court for post-conviction relief on June 9, 1995, and the court granted a belated appeal to this Court. On August 9, 1996, we affirmed Purvey's conviction in an unreported opinion. Purvey v. State, No. 1788, September Term, 1995, 111 Md.App. 748 (filed August 9, 1996)("Purvey I"). The Court of Appeals denied certiorari on December 12, 1996.

On December 4, 1997, Purvey filed a second petition in circuit court for post-conviction relief, and he supplemented it on June 23, 1998, alleging that he received ineffective assistance of counsel. After a hearing on June 30, 1998, the circuit court granted Purvey's petition on September 3, 1998, ordering a new trial and adopting the Petitioner's Proposed Findings of Fact and Conclusions of Law and his Memorandum of Law as part of the court's opinion. On October 2, 1998, the State appealed, and it presents the following question:

Did the post-conviction court err in granting Purvey a new trial when it concluded that his trial counsel failed to provide effective assistance of counsel?

We answer "yes" to this question and reverse. We explain.


In Purvey I, this Court summarized the evidence produced at trial as follows:

Albert Young and Joseph Harris, the victim in this case, worked as laborers unloading produce trucks. On June 18, 1989, Young and Harris were awaiting a call from a trucker whose produce they were to unload at a Giant Food Store. At approximately 2:00 a.m., Harris told Young that he was going to Palmer's Liquor Store, which was three or four blocks away, and that Young could reach him there when the trucker arrived.
From the record, we discern that the liquor store area was a well known drug area. Young located Harris behind the liquor store among a group of forty or fifty people. As Harris reached for his gym bag, several men ran through the area firing handguns. Everyone began running and Harris told Young that he had been shot. Young called for help, but Harris died, either at the scene or shortly thereafter, from a chest wound. The bullet exited his body and was not recovered.
The sole evidence linking appellant to the crime came from a statement he is alleged to have made to Detective Roberto Hylton. Appellant was arrested on June 27, 1989, after Germaine "Fung" Bolden implicated him in the shooting. Appellant's alleged oral statement to Hylton contained the following:
He said he did not shoot anyone. It was Frank and Fung who did the shooting. He said that Fung, which is a nick name, is scared of Frank because they've been in Boys [sic] Village together for a long period of time.
He said I was at Palmer's Restaurant. Frank and Fung met me there. We saw a boy by the name, the initial E. He hangs with the Jamaicans on a hill on Bell Haven Drive. He shoots at the young dealers when we go up to sell drugs.
Then he continued, so he said, let's bust Slim.1 Frank, Fung and I said, I drove, I drove them, I drove them to where the guns were stashed in my aunt's white car. We came back to Palmer's. I don't know who had which gun the .380 or the .38. Left the car on Flagstaff Street, on Fung's Street. Fung is Germaine.
Frank and Fung fired a couple of shots. It hit the man. We ran to the car. I drove them to hide the gun. We did, and we drove away. Frank took off his black T-shirt in the woods. The next day we drove to where the guns were. Frank got them. We went to Seabrook skating. I think they're at Frank's house.
Appellant denied giving this statement to Detective Hylton. He testified that he was at Palmer's that evening selling drugs. He alleged that Fung was also there selling drugs. He was going toward the store to buy a soda when he heard gunshots. Along with everyone else, and because he had cocaine on his person, he ran to his car and left the area.

Purvey I, slip op. at 1-2 (some footnotes omitted).

Purvey produced two witnesses to testify at the post-conviction hearing held on June 30, 1998. Retired Police Detective Dennis Babcock had no recollection of Purvey's arrest or prosecution, but testified, "apparently I was basically providing a service for [Detective] Hylton which was to pick up Mr. Purvey and bring him back to our office." At the time he was questioned by Detective Hylton, Purvey was already in custody of the Prince George's County Detention Center on an unrelated auto theft charge for which he had not posted bond. Purvey's second witness was his trial counsel, Sean Cleary, who was questioned at length about representation he had provided eight years earlier. His specific testimony concerning Purvey's post-conviction claims, as well as additional facts, will be included in the discussion below.


The State, as appellant, makes a simple argument that Purvey is not entitled to a new trial because his representation was constitutionally adequate. Purvey alleges four separate grounds why his counsel failed to meet the constitutional standard and he should get a new trial. Additionally, he claims that the State cannot make certain legal arguments on appeal because those arguments were not raised in the second post-conviction hearing. We find Purvey's arguments without merit and reverse the lower court's judgment on his second post-conviction petition. As a preliminary matter, we discuss the legal standard for a finding that assistance of counsel has been ineffective. We then turn to our second preliminary issue, whether the State can raise all its issues on appeal, before examining each of Purvey's allegations of ineffective assistance.

I Standard for Ineffective Assistance of Counsel

cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986).

Under Strickland, a convicted petitioner claiming that ineffective assistance of counsel renders his conviction or sentence invalid must demonstrate that i) "counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, and that ii) he was actually prejudiced, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

In evaluating whether counsel's representation was reasonable, the court must examine certain acts or omissions identified by the petitioner "in light of all the circumstances" to determine whether "the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. The court looks at the "reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct," id., making every effort "to eliminate the distorting effects of hindsight." Id. at 689, 104 S.Ct. at 2065. Review is highly deferential, for "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689, 104 S.Ct. at 2065. Under the Strickland standard, courts recognize that no single set of norms for vigorous advocacy defines what it is to receive adequate representation that ensures a fair trial. "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

Even if the defendant can show that counsel committed a professionally unreasonable error, he must also show that there is a reasonable probability, i.e., probability sufficient to undermine confidence in the outcome, that "but for counsel's...

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