Ward v. State, 539

• Decision Date: 08 August 2017
• Docket Number: No. 539,539
• Parties: KARIM WARD v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

KARIM WARD v. STATE OF MARYLAND

No. 539

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

August 8, 2017

Circuit Court for Washington County

Case No.: 21-K-03-032388

UNREPORTED

Leahy, Shaw Geter, ^*Krauser, JJ.

Opinion by Shaw Geter, J.

^* Krauser, Peter B., J., now retired, participated in the hearing of this case while an active member of this Court, and as its Chief Judge; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion.

** 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.

This is an appeal from the denial of a petition for post-conviction relief filed by appellant, Karim Ward. The case started as an altercation at a night club, which led to a fistfight, and ultimately a shooting. A jury in the Circuit Court for Washington County subsequently convicted appellant of second-degree murder; use of a handgun in the commission of a crime of violence; use of a handgun in the commission of a felony; wearing, carrying or transporting a handgun; unlawful possession of a regulated firearm; and unlawful possession of a firearm. Appellant filed an initial appeal on April 21, 2004, raising the sole issue of sufficiency of the evidence. We affirmed his convictions. Ten years later, on September 16, 2014, appellant filed a petition for post-conviction relief. The post-conviction court found that his attorney did not provide ineffective assistance of counsel, and it denied his request for relief. Thereafter, appellant noted this timely appeal, presenting five issues for our review:

1. "Did the post-conviction court abuse its discretion when it denied Ward's petition for post-conviction relief when it found that the defense was not prejudiced by the failure of defense counsel to object to comments by the prosecutor during closing argument and rebuttal 'that intimated that witnesses were hesitant to come forward, or that witnesses were risking their lives by testifying?'"

2. "Did the post-conviction court abuse its discretion when it denied Ward's petition for post-conviction relief when it found that the defense was not prejudiced by the failure of defense counsel to object to a 'golden rule' argument by the prosecutor during closing argument and rebuttal?"

3. "Did the post-conviction court abuse its discretion when it denied Ward's petition for post-conviction relief when it found that the defense was not prejudiced by the failure of defense counsel to object to the prosecutor's 'ill-conceived' attempt to vouch for witnesses during closing argument and rebuttal?"

4. "Did the post-conviction court abuse its discretion when it denied Ward's petition for post-conviction relief when it found that defense counsel was not constitutionally ineffective when he failed to object to the prosecutor's closing arguments about the intent of people who acquire illegal drugs which 'telegraphed' to the jury that Ward had been previously convicted of a drug-related offense?"

5. "Did the post-conviction court abuse its discretion when it denied Ward's petition for post-conviction relief when it found that the defense was not prejudiced by the failure of defense counsel to request a jury instruction limiting the jury's consideration of Ward's stipulation that he had a prior conviction disqualifying him from possessing a handgun as to only the charge of possession of a firearm by a disqualified person and to no other offenses?"

For the reasons discussed below, we shall affirm the judgment of the circuit court denying appellant's petition for post-conviction relief.

BACKGROUND

Carl Wallace spent the evening with Shree Harrell on December 13, 2002. They saw a movie, went to a local bar, then a nightclub, got something to eat, and returned home. In the early morning hours on December 14, Harrell received a phone call from her sister, Asia Burns, who was out with a friend, Felicia Archie. Burns indicated that she had been jumped by Tamika White—appellant's girlfriend—and Harrell later testified that "when you get jumped you go to the girl's house and they fight." So Wallace and Harrell met with Burns and Archie, and the four proceeded to White's house at 466 Jonathan Street in Hagerstown, Maryland.

Burns walked up to White's front door once they arrived and began beating on it with a wooden board. Appellant answered, and the two started yelling at each other. Eventually, White came outside, Burns dropped the board, and a fistfight ensued. The fightspilled into the street, and Burns began banging White's head into the ground. Appellant tried to break up the fight, but Burns and Archie told him to let them continue. At this point, appellant grabbed a gun out of his pants and fired a series of warning shots. Harrell heard Wallace say "[l]et them fight," to which appellant responded "[w]ho the fuck are you," and then appellant shot him six times. Afterward, appellant fled the scene. Wallace died of gunshot wounds shortly thereafter.

At trial, Harrell testified that she was three to four feet from where the shooting took place, and she identified appellant as the shooter. Harrell's out-of-court identification of appellant, conducted the day of the shooting, was also introduced. Kenny Jenkins, a taxi driver responding to a call for service at the nearby Coca-Cola plant, testified that while he was waiting for his fare, he saw a large group of people at Jonathan Avenue. Jenkins heard what he initially thought was a car backfiring, then, ten to fifteen seconds later, heard five or six more shots. Jenkins saw one man coming forward and another man fall to the ground. Later that day, Jenkins identified appellant in a photo array as the shooter and again during the trial.

Raymond Williams was working the night shift at the Coca-Cola plant when he observed the fight between Burns and White. Williams said that a man in a group of six to eight people tried to intervene and, not long after, pointed a gun at another male in the group and shot him three times. Williams did not see the shooter's face, but he had the same build as appellant, whom Williams frequently saw outside of the residence on his way to work. Williams identified appellant as the shooter at trial. This testimony was further corroborated by Decatur Young, another Coca-Cola plant employee, who observedthe fight between Burns and White, and the shooting, where one of the two males present shot the only other male in the group. Afterward, Young saw the shooter go inside 466 Jonathan Street.

At the conclusion of the case, the jury found appellant guilty of second-degree murder; use of a handgun in the commission of a crime of violence; use of a handgun in the commission of a felony; wearing, carrying or transporting a handgun; unlawful possession of a regulated firearm; and unlawful possession of a firearm.¹ The court imposed a thirty-year sentence for the murder conviction; a ten-year consecutive sentence for the use of a handgun in the commission of a crime of violence conviction, the first five years to be served without the possibility of parole; and a three-year concurrent sentence for the unlawful possession of a regulated firearm conviction. The court merged the remaining convictions.

On April 21, 2004, appellant filed his first appeal, raising the sole issue of sufficiency of the evidence. We affirmed his convictions, noting that both Harrell and Jenkins identified appellant on the day of the shooting and again in court, and we held that their identifications were sufficient to prove appellant's criminal agency.

Ten years later, on September 16, 2014, appellant filed a petition for post-conviction relief. He raised the following grounds in support of his petition:

1. trial counsel rendered ineffective assistance by failing to object to the State's injecting the specter of witness intimidation into the trial at closing argument when no such evidence was admitted at trial;2. trial counsel rendered ineffective assistance by failing to object to the State's "Golden Rule" argument at closing by telling the jury to not let down the witnesses who risked their lives to testify;

3. trial counsel rendered ineffective assistance by failing to object to the State's vouching for the credibility of its witnesses during closing argument;

4. trial counsel rendered ineffective assistance by failing to object to the State's testifying as an expert during closing argument;

5. trial counsel rendered ineffective assistance by failing to object to the State's telegraphing to the jury that petitioner had a prior, drug-related conviction;

6. trial counsel rendered ineffective assistance by omitting several critical inconsistencies in the State's case;

7. trial counsel rendered ineffective assistance by failing to request a limiting jury instruction that Petitioner's stipulated prior conviction was only to be used to determine whether he was guilty or not guilty of illegally possessing a firearm after conviction for a crime which prohibited such possession, and not as evidence of guilt with other charged crimes; and

8. the cumulative errors of trial counsel constituted ineffective assistance.

On March 11, 2015, the post-conviction court denied appellant's petition in a memorandum opinion and order. The court found that the prosecutor made improper remarks during closing argument, but it noted that the State had a strong case, citing the identifications made by Harrell and Jenkins, as well as the corroborating accounts of the shooting from other witnesses. Therefore, although the court found that defense counsel was deficient for failing to object to the prosecutor's remarks, it held that "counsel's deficiencies did not prejudice the defense such that, without the error, there is a substantial or significant possibility that the outcome...