State v. Smith, 563, Sept. Term, 2013.

• Decision Date: 27 May 2015
• Docket Number: No. 563, Sept. Term, 2013.,563, Sept. Term, 2013.
• Citation: 223 Md.App. 16,115 A.3d 210
• Parties: STATE of Maryland v. Zenno SMITH, III.
• Court: Court of Special Appeals of Maryland

223 Md.App. 16

115 A.3d 210

STATE of Maryland

v.Zenno SMITH, III.

No. 563, Sept. Term, 2013.

Court of Special Appeals of Maryland.

May 27, 2015.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellant.

Brian L. Zavin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellee.

Panel: NAZARIAN, LEAHY, and RAYMOND G. THIEME, JR. (Retired, specially assigned), JJ.

Opinion

RAYMOND G. THIEME, JR., J. (Retired, specially assigned).

Following a jury trial on January 6–8, 2009, Zenno Smith, III, appellee, was convicted of first-degree felony murder, first-degree burglary, and possession of a handgun after having been convicted of a felony. He was sentenced to life imprisonment for the murder conviction and a consecutive term of five years for possession of a handgun. The burglary conviction was merged for sentencing purposes. Smith's convictions were affirmed by this Court in an unreported opinion, Zenno Smith, III v. State, No. 184, Sept. Term 2009 (filed September 29, 2010). Smith filed a petition for writ of certiorari that was denied by the Court of Appeals. See Smith v. State, 417 Md. 502, 10 A.3d 1181 (2011).

Thereafter, Smith filed a petition seeking post-conviction relief. On April 15, 2013, the Circuit Court for Caroline County granted Smith's petition. The State filed an application for leave to appeal, which we granted.

QUESTIONS PRESENTED

The State presents the following questions for our consideration:

I. Was Smith's trial counsel not legally entitled to have objected to the nolle prosequis?

II. Even if entitled to object, did Smith's counsel have a valid tactical reason for not objecting to the trial judge's granting the nolle prosequi to the second-degree felony murder charge?

For the reasons set forth more fully below, we shall affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Smith was charged in the Circuit Court for Caroline County with the following crimes arising out of the shooting death of Ronald Gibson on June 15, 2008:

Count 1—first-degree murder

Count 2—second-degree murder

Count 3—first-degree burglary

Count 4—first-degree assault

Count 5—second-degree assault

Count 6—handgun use in the commission of a felony

Count 7—accessory after the fact to first-degree murder

Count 8—accessory after the fact to second-degree murder

Count 9—felon in possession of a firearm

We provided a detailed recitation of the underlying facts in our unreported opinion on direct appeal, which we include here for ease of reference:

The evidence adduced at trial revealed the following events leading to Gibson's death. Trooper Derek Carabello, assigned to the Easton Barrack of the Maryland State Police, testified that on June 15, 2008, he responded to a call for a report of a possible shooting at a trailer park in Caroline Acres. When Trooper Carabello arrived at the scene he saw Gibson lying face down just inside the threshold of the doorway to the trailer. Initially, Trooper Carabello detected a faint pulse from Gibson, but later, after searching the trailer for officer's safety, Trooper Carabello found no pulse.

Sergeant Nancy Nagel, assigned to the Caroline County Sheriff's Department, testified that she arrived at the scene shortly after Trooper Carabello, and noticed that the front door, the storm door, and the entry door were both opened and that there was a broken locking latch laying on the deck. Sergeant Nagel stated that in searching the residence, she recovered a long barrel 12 gauge shotgun propped up against a sofa. In checking the gun for safety, Sergeant Nagel indicated that there was no ammunition inside the gun.

Dominique Fountain (“Dominique”)¹ testified that on June 14, 2008, his mother, Tonyett Fountain (“Tonyett”), and appellant, who was Tonyett's boyfriend, went to Gibson's mother's home located in Cordova, Maryland to “get my mom's dog.” At that time, Gibson was engaged to marry Tonyett's mother, Denise Fields. Appellant, Tonyett, and Dominique took the dog to their home in Dover, Delaware. According to Dominique, after the retrieval of the dog, Gibson called Tonyett and told her that she was a “bitch” and that, if the dog was not returned, she was not going to “live to see tomorrow.”

Dominique stated further that he, Tonyett, and appellant, who was armed with a loaded .45 caliber handgun, drove to Gibson's home in the Caroline Acres trailer park in Henderson, Maryland to make peace with Gibson. During the drive, there were discussions about a gun that Gibson kept in his home. When they arrived, Dominique asked appellant to give him the handgun because he “felt that it would have been more safer with [him] and nothing like that would have happened.” Appellant complied and Dominique put the gun in his pants pocket. Dominique admitted that it was unusual for them to take a gun when visiting Gibson.

During cross-examination, Dominique testified that during his interview with police, he told them that at some point, appellant stepped out onto the balcony, but came back inside before Gibson was shot. When asked by defense counsel if Dominique remembered telling the police that appellant “remained outside” when the shot was fired, he answered “[n]o.”

Approximately twenty minutes after leaving Gibson's trailer, Dominique and Tonyett were stopped by Corporal Christopher Emerick of the Maryland State Police. At that time, appellant was not in the vehicle. When Dominique exited the vehicle, the handgun he used to shoot Gibson fell from his lap.

Katheryn Holland (“Katheryn”), Gibson's neighbor, testified that immediately before the shooting, she heard loud noises and banging coming from Gibson's trailer. After hearing a gunshot, she looked outside and saw “three people coming out of the residence and stand on [Gibson's] deck,” and “[t]hey were all talking and smiling at each other and just conversing for a few minutes there on the deck.” After a few minutes, the three people left. Katheryn stated that she was only able to see the faces of two of the people, which she later identified as Tonyett and appellant. Katheryn asked her husband, Richard Holland (“Richard”), to go over to Gibson's trailer and “make sure everything was all right” because she noticed that the door to Gibson's trailer was open. After a few minutes, Richard was “flagging his arms” and telling her to call 911 because Gibson had been shot.

Richard testified that he went outside and obtained Tonyett's tag number. After appellant, Tonyett and Dominique departed, he entered Gibson's home and discovered that Gibson had been shot but was still alive. Richard stated that he moved the shotgun that was laying across Gibson and tried to make him comfortable. When he asked Gibson who shot you, Gibson told him who was involved in the shooting. Gibson succumbed to his injuries shortly thereafter.

Appellant did not testify or present any witnesses.

Throughout the trial, the State proceeded on the theory of first-degree felony murder based on the statutory felony of first-degree burglary. Smith's defense was that all of the parties had gone to the victim's residence solely for a peaceful encounter with the victim, to talk, and to “mend fences,” and that Smith did not “want anything to do with a confrontation, that's not why he was there.” At the conclusion of the State's case, and after the court's denial of Smith's motion for judgment of acquittal with respect to the burglary and felony murder charges, the State advised the court that it would enter nolle prosequis for the counts charging second-degree felony murder, first-degree assault, second-degree assault, and use of a handgun in the commission of a felony. The prosecutor commented that those charges were not lesser included offenses of felony murder and that they “could have been presented but ... they raise an entire spectrum of imperfect third person self defense which will not apply to felony murder and that's the State's reason for, simplifying what is, you know, certainly, honestly a complex although in some ways simple and some ways complex case.” Trial counsel did not object to the State's request to enter nolle prosequis for the four counts. Subsequently, the State also entered a nolle prosequi as to the charge of accessory after the fact to second-degree murder. Ultimately, Smith was convicted of first-degree felony murder, first- degree burglary, and possession of a handgun after having been convicted of a felony.

Smith sought post-conviction relief, arguing ineffective assistance of trial counsel for the following reasons:

1. At the close of the State's case trial counsel failed to object when the State entered a nol pros on the charges of 2nd Degree Murder, 1st Degree Assault, Handgun Use During a Felony or Violent Crime, and Accessory After the Fact to 2nd Degree Murder.

2. Generally, counsel failed to object in order to preserve meritorious issues for appeal.

3. At the beginning of the third day of trial, counsel failed to request dismissal of a juror who may have seen Petitioner in shackles.

4. After the trial, counsel failed to request a review of Petitioner's sentence by a three judge panel.

5. At the pre-trial stage, counsel failed to adequately investigate and prepare his defense.

6. During the voir dire of the jury, counsel failed to object to the Court's failure to ascertain whether the jurors had a handgun bias.

7. During the State's case, counsel failed to present or adequately utilize photographs to impeach the Officer's testimony.

8. At the motion for judgment of acquittal, counsel failed to argue sufficiently and with particularity that burglary was not proven because there had been no breaking.

9. Counsel failed to object that the felony murder jury instruction was deficient.

10. Counsel failed to request jury instructions for self-defense and imperfect self-defense.

The post-conviction court found that Smith's trial counsel rendered ineffective assistance by failing to object to the State's entry of nolle prosequis for five of the charges against him and, thereby,...