State of Maryland v. Charles Edward Wallace, No. 1414, Sept. Term 2019. Opinion filed
on August 26, 2020, by Berger, J.
POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - REMEDY
When trial counsel rendered ineffective assistance of counsel by failing to object to an
erroneous jury instruction on attempted second-degree murder, the appropriate remedy was
not vacatur of all charges. Rather, the court must consider the specific elements of each
offense and the specific erroneous instruction when determining which convictions were
tainted by the erroneous instruction. In this case, the appropriate remedy was vacatur of
the second-degree attempted murder conviction only.
POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - BAD ACTS
EVIDENCE - MOTIVE
Trial counsel was not ineffective in failing to challenge the admissibility of the victim’s
testimony about the petitioner having slashed the victim’s tires approximately six years
prior to the shooting. Trial counsel did not perform deficiently in conceding the
admissibility of this testimony because the testimony was potentially relevant to the
petitioner’s motive as well as to the identity of the shooter.
POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO
OBJECT - CRIME OF VIOLENCE INSTRUCTION
Trial counsel’s performance was deficient when she failed to object when the trial court
informed the jury that the petitioner had previously been convicted of a crime of violence
in the context of its instructions regarding the charged firearm offenses, but the petitioner
was unable to demonstrate how he was prejudiced by this deficiency.
POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - CUMULATIVE
EFFECT
The petitioner was not entitled to postconviction relief due to the cumulative effect of trial
counsel’s errors when there were only two clear-cut instances of deficient performance:
trial counsel’s failure to object to the defective jury instruction for attempted second-degree
murder and trial counsel’s failure to object to the misstatements of the stipulation, which
erroneously informed the jury that the petitioner previously had been convicted of a crime
of violence. The prejudicial effect of the first deficiency was limited to the attempted
second-degree murder offense, and the second deficiency resulted in no prejudice. The
petitioner was entitled to vacatur of the attempted second-degree murder conviction only.
Circuit Court for Anne Arundel County
Case No. 02-K-10-002013
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1414
September Term, 2019
______________________________________
STATE OF MARYLAND
v.
CHARLES EDWARD WALLACE
______________________________________
Berger,
Wells,
Salmon, James P.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Berger, J.
______________________________________
Filed: August 26, 2020
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
2020-08-26 15:16-04:00
Suzanne C. Johnson, Clerk
A jury sitting in the Circuit Court for Anne Arundel County found appellee, Charles
Wallace, guilty of attempted second-degree murder, first- and second-degree assault, use
of a handgun in the commission of a crime of violence, possession of a regulated firearm
after previously having been convicted of a crime of violence, and reckless endangerment.1
The court thereafter sentenced Wallace to a term of thirty years’ imprisonment for
attempted second-degree murder, a consecutive term of twenty years’ imprisonment (the
first five without the possibility of parole) for use of a handgun in the commission of a
crime of violence, and a concurrent term of five years’ imprisonment, without the
possibility of parole, for possession of a regulated firearm after previously having been
convicted of a crime of violence, merging the remaining convictions for sentencing
purposes. Wallace noted a direct appeal,2 and, in an unreported opinion, a panel of this
Court affirmed his convictions. Wallace v. State, Sept. Term, 2012, No. 557 (filed July 11,
2013) (“Wallace I”).
Wallace subsequently filed a petition, under the Maryland Uniform Postconviction
Procedure Act, seeking vacatur of his convictions. In his petition, Wallace alleged that his
trial counsel had been ineffective in three ways: first, in failing to object to an erroneous
jury instruction for attempted second-degree murder; second, in conceding the
admissibility of “other crimes” evidence which, purportedly, was inadmissible; and third,
1
The jury acquitted Wallace of attempted first-degree murder.
2
In his direct appeal, Wallace raised two issues: whether the trial court had erred
in denying his motion to suppress evidence, and whether it had erred in admitting gunshot
residue evidence. Wallace v. State, Sept. Term, 2012, No. 557, slip op. at 2 (filed July 11,
2013). Neither of those issues is pertinent to this appeal.
in failing to object to the trial court’s erroneous and prejudicial statements to the jury, when
explaining the firearm possession offense, that Wallace previously had been convicted of
a crime of violence. Following a hearing, the postconviction court issued a memorandum
opinion and order granting Wallace’s petition and awarding him a new trial.
The State filed a motion for reconsideration, which was denied. The State then filed
an application for leave to appeal.3 Although the State conceded that trial counsel had been
ineffective in failing to object to the erroneous attempted second-degree murder jury
instruction, it contended that Wallace was entitled only to vacatur of that conviction and
that the postconviction court erred in granting a new trial as to all outstanding charges. An
applications panel of this Court granted the State’s application and transferred the case to
the regular appellate docket.
In this appeal, the State raises two issues, which we have re-phrased:
I. Whether the postconviction court erred in awarding
Wallace a new trial rather than vacatur of the attempted
second-degree murder conviction; and
II. Whether the postconviction court abused its discretion
when, in its revised order, it reversed the findings it had
articulated in its memorandum opinion and provided no
support for the change in course.
3
After the postconviction court initially ruled in favor of Wallace, the State filed a
motion for reconsideration. After Wallace filed a response, the postconviction court issued
an order denying the State’s motion for reconsideration and “clarify[ying]” (and amending)
its previous order. Because the State’s application for leave to appeal was filed within 30
days of the entry of both the original and the amended orders, the latter order is properly
the subject of this appeal.
2
For the reasons that follow, we vacate the postconviction court’s order and remand
with instructions to vacate the attempted second-degree murder conviction but otherwise
deny the postconviction petition. Given our resolution of this appeal, we need not and shall
not address the second issue.
BACKGROUND
The Crimes
We quote our unreported opinion in Wallace’s direct appeal for factual context:
Steven Freeman (“Freeman”), the victim, testified that
he has known Wallace for more than ten years and refers to
him by his nickname, “Junior.” Freeman knew Wallace from
their neighborhood but testified that they were not friends.
According to Freeman, Wallace would try to sell him drugs,
but Freeman refused to buy any because Wallace tried to sell
“fake” drugs. Freeman explained that Wallace would become
angry and aggressive when he refused to buy drugs from him.
Freeman further testified that on one occasion, Wallace
“flattened [his] front tire[.]”
On September 25, 2010, Freeman went to Madison
Street on three different occasions to buy drugs. The third
time Freeman went to purchase narcotics, at approximately
5:00 a.m., Freeman saw Wallace and an unknown man on
Madison Street while he was waiting for his seller to come
outside. Thereafter, Wallace approached Freeman’s car and
asked him if he “needed something.” Freeman replied that he
was waiting for someone else and did not want to buy drugs
from Wallace because the drugs were fake. According to
Freeman, Wallace became aggressive, argumentative, and
“turned like he was starting to walk away and then . . . said
‘Well, take this, then,’ And that’s when [Wallace] turned
around with the gun[.]” Freeman testified that Wallace shot
him in the arm and then he “threw the car in reverse real quick
. . . and that’s when the second bullet went through [his] chest.”
Freeman hit the emergency OnStar button in his car when he
was pulling out of the street and told the operator that he had
been shot by a man named “Junior.”
3
Wallace I, slip op. at 2-3.
Trial
A ten-count indictment subsequently was returned, in the Circuit Court for Anne
Arundel County, charging Wallace with attempted murder in the first-degree, attempted
murder in the second-degree, assault in the first-degree, assault in the second-degree, use
of a handgun in the commission of a felony, use of a handgun in the commission of a crime
of violence, carrying a concealed weapon, possession of a regulated firearm after
previously having been convicted of a crime of violence, possession of a regulated firearm
after previously having been convicted of a disqualifying crime, and reckless
endangerment.
A jury trial ensued. In addition to the victim’s testimony, a shirt worn by Wallace
on the night of the shooting was admitted into evidence; forensic testing disclosed the
presence of gunshot residue on that shirt. Wallace I, slip op. at 16-22. Ultimately, eight
counts of the indictment were presented to the jury,4 and Wallace was acquitted of
attempted first-degree murder but convicted of the remaining offenses.
Postconviction Rulings
To provide context for our analysis, we set forth the postconviction court’s rulings,
both in its original memorandum opinion and its amended order.
4
The trial court granted a judgment of acquittal on the concealed weapon charge,
and the State entered a nolle prosequi to the charge of use of a handgun in the commission
of a felony.
4
In its memorandum opinion, the postconviction court determined that trial counsel’s
failure to object to the concededly erroneous attempted second-degree murder jury
instruction constituted deficient performance which caused prejudice to Wallace. In a
footnote elsewhere in its opinion, it further declared, without explanation, that the proper
remedy for that ineffective assistance was a new trial on all charges.
As for trial counsel’s concession that purportedly inadmissible “other bad acts”
evidence was admissible, the postconviction court, in its memorandum opinion, found that,
although the evidence was inadmissible, trial counsel’s concession could be deemed trial
strategy, and it declined to find deficient performance. As for trial counsel’s failure to
object to the trial court’s statements, informing the jury that Wallace previously had been
convicted of a “crime of violence,” the postconviction court found deficient performance
but no prejudice “solely based on this particular deficient performance.”
The postconviction court then proceeded to address whether the cumulative effect
of all trial counsel’s errors was sufficient to result in ineffective assistance. 5 The
postconviction court declared that the “combination of the three allegations” raised in
Wallace’s petition amounted to deficient performance, that prejudice had ensued, and that
Wallace was entitled to a new trial.
In response to the State’s motion for reconsideration, the postconviction court issued
an amended order. The amended order not only denied the State’s motion for
5
Wallace’s petition did not raise a “cumulative effect” claim. We express no
opinion as to the propriety of the postconviction court addressing such a claim sua sponte.
5
reconsideration, it further declared, among other things, “that the Memorandum Opinion
entered June 13, 2019 shall be clarified to reflect the Court’s finding that trial counsel’s
failure to object to the prior bad acts evidence was an error and amounts to deficient
performance;” and “that the Memorandum Opinion entered June 13, 2019 shall be clarified
to reflect the Court’s finding that the cumulative effect of trial counsel’s errors clearly
resulted in denial of effective assistance of counsel[.]”
Additional facts will be recited where pertinent to the issues.
DISCUSSION
Standard of Review
“The ultimate question of whether counsel was ineffective ‘is a mixed question of
law and fact.’” State v. Thaniel, 238 Md. App. 343, 359-60 (quoting Newton v. State,
455
Md. 341, 352 (2017)), cert. denied,
462 Md. 93 (2018), cert. denied,
587 U.S. __,
139 S.
Ct. 2027 (2019). “We defer to the factual findings of the postconviction court unless
clearly erroneous, but we review its ultimate legal conclusions without deference,
re-weighing the facts in light of the law to determine whether a constitutional violation has
occurred.” Id. at 360 (citation and quotation omitted) (cleaned up).
Legal Standards Governing Ineffective Assistance Claims
“The right to the effective assistance of trial counsel is grounded in the Sixth
Amendment, made applicable to the States through the Fourteenth Amendment.” Id.
(citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). An ineffective assistance
claim consists of two elements: deficient performance and prejudice. Newton,
455 Md. at
6
355 (citing Strickland,
466 U.S. at 687). A postconviction petitioner bears the burden of
proof. Strickland,
466 U.S. at 687.
To establish deficient performance, the petitioner must show “that counsel’s
performance was objectively unreasonable ‘under prevailing professional norms.’”
Thaniel, 238 Md. App. at 360 (quoting Strickland,
466 U.S. at 688). Because our “scrutiny
of counsel’s performance must be highly deferential,” Strickland,
466 U.S. at 689, we
indulge a “strong presumption” that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Id. at 689-90.
We “judge the reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”
Id. at 690. “It is the petitioner’s burden
to ‘identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment,’ whereupon a reviewing court ‘must then determine
whether, in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.’” Thaniel,
238 Md. App. at 360
(quoting Strickland,
466 U.S. at 690).
“An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691. To establish prejudice, the petitioner must demonstrate “a
‘reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
Id. at 694. A “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome.”
Id. at 693. That standard
is less demanding than proof by a preponderance of the evidence but requires more than
7
merely showing “that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693-94.
“Even when no single aspect of the representation falls below the minimum
standards required under the Sixth Amendment, the cumulative effect of counsel’s entire
performance may still result in a denial of effective assistance.” Cirincione v. State, 119
Md. App. 471, 506, cert. denied,
350 Md. 275 (1998). “Apparently, this cumulative effect
may be applied to either prong of the Strickland test.” Id. Thus, “numerous non-deficient
errors may cumulatively amount to a deficiency,” id. (citing Bowers v. State,
320 Md. 416,
436 (1990)), or “numerous non-prejudicial deficiencies may cumulatively cause
prejudice.”
Id. (citing Harris v. Wood,
64 F.3d 1432, 1438-39 (9th Cir. 1995)).
Analysis
Failure to Object to Erroneous Jury Instruction
Wallace’s first claim of ineffective assistance is based upon trial counsel’s failure
to object to the trial court’s instruction on attempted murder in the second degree:
The Defendant is also charged with the crime of attempted
second-degree murder. A second-degree murder is the killing
of another person, is the attempted killing -- excuse me -- of
another person with either the intent to kill or the intent to
inflict such serious bodily harm that death would be the likely
result.
Second-degree murder does not require premeditation
or deliberation. In order to convict the Defendant of
attempted second-degree murder, the State must prove
that, by his conduct, the Defendant attempted to cause the
death of Steven Freeman and that the Defendant engaged
in the deadly conduct either with the intent to kill or with
the intent to inflict such serious bodily harm that death
would be the likely result.
8
(Emphasis added.)
The State correctly conceded, at the postconviction hearing, that the instruction was
erroneous. To prove attempted murder in the second degree, the State must show that the
defendant acted with the specific intent to murder, not merely the intent to cause such
serious bodily harm that death would be the likely result. State v. Earp, 319 Md. 156, 163
(1990). See Maryland State Bar Ass’n, Maryland Pattern Criminal Jury Instruction
(“MPJI-Cr”) 4:17.13(B) (Md. State Bar Ass’n, 2d ed. 2012). In effect, the trial court
erroneously conflated the intent element of consummated second-degree murder and that
for the attempted crime. Moreover, the State does not contest the postconviction court’s
ruling that trial counsel acted deficiently in failing to object to this erroneous instruction
and that Wallace suffered prejudice as a result.6
The only disagreement between the parties regarding this claim is the remedy to
which Wallace is entitled. As the State points out, a reviewing court assessing the effect
of an instructional error on a verdict comprising multiple convictions must consider each
conviction separately; and, whenever the error has no influence on a conviction, that
6
As noted previously, Wallace also was charged with attempted first-degree murder
but was acquitted of that charge. Given that acquittal, we accept the State’s concession
that Wallace suffered prejudice as a result of trial counsel’s failure to object to the
erroneous attempted second-degree murder instruction. We see no reason to disturb the
postconviction court’s conclusion that Wallace established a reasonable probability that,
but for trial counsel’s failure to object to the erroneous instruction, the jury would have
acquitted him of attempted second-degree murder. See Strickland v. Washington, 466 U.S.
668, 695 (1984) (observing that when “a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt”).
9
conviction stands. See State v. Hawkins, 326 Md. 270, 291 (1992) (observing that “where
there are multiple offenses involved, . . . the remedy for an error in the instructions on one
of the offenses depends upon the degree to which the erroneous instruction taints each
individual conviction”). Compare Hallowell v. State,
235 Md. App. 484, 507-10 (2018)
(vacating conviction of use of a firearm in the commission of a crime of violence because
instructional error required vacatur of the predicate violent crime conviction), with
Nottingham v. State,
227 Md. App. 592, 612 (2016) (affirming conviction of misdemeanor
manslaughter because the jury had found the defendant guilty of three separate predicate
offenses, and only one of the predicate convictions was affected by the instructional error).
Surely, a postconviction petitioner, raising an ineffective assistance claim based upon an
unpreserved claim of instructional error, is not entitled to a greater remedy than an
appellant raising a claim of instructional error on direct appeal, whether preserved or not.7
In addition to attempted second-degree murder, Wallace was convicted of first- and
second-degree assault, use of a handgun in the commission of a crime of violence,
possession of a regulated firearm after previously having been convicted of a disqualifying
7
Neither Hawkins nor its progeny discusses the degree of linkage between a
conviction, directly affected by an instructional error, and other convictions, that is required
so that an appellate court must vacate the other convictions. Hawkins suggests how we
should proceed. Since we must determine “the degree to which the erroneous instruction
taints each individual conviction,” 326 Md. at 291, then, presumably, depending upon
whether the claim is preserved, we would apply either the Dorsey harmless error standard
or the plain error standard, if the claim arises on direct appeal. By analogy, in a
postconviction case such as this, we must determine, for each conviction, whether there is
a reasonable probability that, but for trial counsel’s failure to object to the erroneous
instruction, the jury would have found reasonable doubt.
10
crime, and reckless endangerment. The erroneous jury instruction, to which trial counsel
had failed to object, permitted a conviction upon a lesser proof of the specific intent to
commit attempted second-degree murder. That error obviously had no effect whatsoever
on the convictions of possession of a regulated firearm after previously having been
convicted of a disqualifying crime and reckless endangerment.
The only convictions that conceivably could have been tainted by the erroneous
instruction for attempted second-degree murder are the convictions of first- and
second-degree assault and use of a handgun in the commission of a crime of violence. We
begin with the assault convictions.
The first- and second-degree assaults were based upon the same act (shooting the
victim) and, under the circumstances of this case, were lesser included offenses of
attempted second-degree murder. The only theory of second-degree assault presented to
the jury was battery. That variety of second-degree assault requires the State to prove that
the defendant caused offensive physical contact or physical harm to the victim, that the
contact resulted from the defendant’s intentional or reckless act and was not accidental,
and that the victim did not consent to the contact. MPJI-Cr 4:01. It is clear that the jury’s
finding that Wallace had, at least, the intent to inflict such grievous bodily harm that death
would be the likely result was more than enough to prove that it found the intent to commit
battery, whether of the intentional or unintentional variety. See Lamb v. State, 93 Md. App.
422, 445-55 (1992) (describing the distinction between intentional battery and
unintentional battery), cert. denied,
329 Md. 110 (1993).
11
As for first-degree assault, at all times relevant to this proceeding, that offense could
be committed in two ways—by committing a second-degree assault and, in addition, either
of two aggravators: intentionally causing or attempting to cause “serious physical injury”
to another; or committing an assault “with a firearm.” Md. Code (2002), Criminal Law
Article (“CR”), § 3-202(a)(1), (2).8 In Thornton v. State, 397 Md. 704, 728-30 (2007), the
Court of Appeals examined the relationship between the specific intent required for
second-degree murder based upon the intent to inflict grievous bodily harm and the specific
intent required for first-degree assault based upon the intent to cause serious physical
injury. It held that the specific intent required to prove first-degree assault based upon the
intent to cause serious physical injury was always established by proof of the specific intent
required for second-degree murder based upon the intent to inflict grievous bodily harm,
but not vice versa.
Id. at 728-30.
Under the facts of this case, the jury could have found either or both modes of
first-degree assault. To the extent it may have found that Wallace committed first-degree
assault based upon the intent to cause serious physical injury, the jury’s finding that
Wallace had, at least, the intent to inflict such serious bodily harm that death would be the
likely result was more than enough to prove that it found the intent necessary to establish
this type of first-degree assault. Further, to the extent it may have found that Wallace
8
Effective October 1, 2020, an amendment to the first-degree assault statute will
become effective, which adds a third means of committing a first-degree assault: “by
intentionally strangling another.” 2020 Md. Laws, chs. 119, 120. All statutory references
are to the version in effect at the time of the offenses.
12
committed first-degree assault with a firearm, it goes without saying that the jury’s finding
that Wallace had, at least, the intent to inflict such serious bodily harm that death would be
the likely result was more than enough to prove that it found the intent necessary to
establish this mode of first-degree assault as well.9
Turning to use of a handgun in the commission of a crime of violence, we observe
that there were three predicate convictions in this case: attempted second-degree murder,
first-degree assault, and second-degree assault. Md. Code (2003), Public Safety Article
(“PS”), § 5-101(c)(3), (11) (16).10 As we have just explained, only one of those predicates,
attempted second-degree murder, was tainted by the erroneous jury instruction. Therefore,
the conviction of use of a handgun in the commission of a crime of violence is untainted
by the erroneous conviction of attempted second-degree murder, because the jury
separately found two untainted, valid predicates for the use-of-a-handgun conviction.
Nottingham, supra,
235 Md. App. at 612. We conclude that the appropriate remedy, in the
instant case, is vacatur of the conviction of attempted murder in the second degree, the only
conviction affected by trial counsel’s failure to object to the erroneous jury instruction.11
9
The intent required to prove first-degree assault with a firearm was, in this case,
the intent to commit a battery. The additional element, use of a firearm, is unaffected by
the instructional error as to the specific intent to commit attempted second-degree murder.
10
CR § 4-204, which proscribes use of a regulated firearm in the commission of a
crime of violence, defines “crime of violence” by reference to PS § 5-101.
11
In passing, we note that the decisions Wallace cites in support of his notion that
the erroneous attempted second-degree murder jury instruction had a “spillover” effect,
Brooks v. State, 299 Md. 146 (1984), and Sherman v. State,
288 Md. 636 (1980), were in
an entirely different procedural posture than the instant case, and neither case involved a
13
Trial Counsel’s Concession to the Admission of “Other Bad Acts” Evidence
Wallace’s second postconviction claim alleged that trial counsel had been
ineffective in conceding the admissibility of “other bad acts” evidence which, purportedly,
was inadmissible. Initially, the postconviction court found, without elaboration, that the
“other bad acts” evidence was inadmissible but that trial counsel’s actions could be
construed as trial strategy, and thus, there was no deficient performance. Ultimately, in its
amended order, the postconviction court declared that “trial counsel’s failure to object to
the prior bad acts evidence was an error and amounts to deficient performance,” without
expressly finding whether there was prejudice attributable to that purported deficiency.12
Before addressing this claim, we set forth the background.
claim of instructional error. The errors in those cases stemmed from the effect of
erroneously reinstating a charge after having granted a motion for judgment of acquittal
(Brooks) or erroneously sending a copy of the indictment into the jury room without
redacting the “dead counts,” for which acquittal had been granted (Sherman). Those cases
shed no light on our analysis.
12
The postconviction court did, however, “double down” on its ruling of cumulative
effect, declaring, in its amended order:
that the Memorandum Opinion entered June 13, 2019 shall be
clarified to reflect the Court’s finding that there is reasonable
probability that, but for trial counsel’s errors, the result of the
proceeding would have been different; and . . .
. . . that the Memorandum Opinion entered June 13, 2019 shall
be clarified to reflect the Court’s finding that the cumulative
effect of trial counsel’s errors clearly resulted in denial of
effective assistance of counsel[.]
14
On the morning of the second day of trial, prior to opening statements,13 the
prosecutor moved in limine to be permitted to present testimony by the victim, Freeman,
about his prior dealings with Wallace, as prior “bad acts.”14 According to the prosecutor,
Freeman had told her that he knew Wallace from having frequented the open-air drug
market where the shooting had occurred; that he did not want to purchase drugs from
Wallace because Wallace was known for selling “gank” (a street name for fake drugs);
that, approximately “10 or 12 times” previously, Wallace had harassed him because he
refused to buy drugs from Wallace15; that others had told him that Wallace was “bad news”
and prone to violence16; and that, approximately six or seven years prior to the shooting,
after Freeman had refused to purchase drugs from Wallace, Wallace, in a fit of rage, slashed
a tire on Freeman’s vehicle.
Trial counsel initially objected to admitting any of Freeman’s statements:
-- I think what [the prosecutor] is trying to get in is clearly
propensity evidence for all these prior bad acts, especially
13
The prior day had been consumed in selecting a jury.
14
The prosecutor explained that the reason for the late disclosure was that she had
had trouble locating Freeman and that she had just become aware of the new evidence
several days previously.
The prosecutor characterized this as “a continuing argument that he won’t buy
15
from him.”
16
For example, according to the prosecutor, Freeman told her that a friend, who was
a drug dealer, had been robbed at gunpoint by Wallace. The prosecutor conceded, however,
that this statement would not be admissible. Freeman also claimed that he had observed
Wallace throw a brick through a window during a dispute, between Wallace and another
person, that had arisen during a drug deal; and that he had observed Wallace force yet
another person, at knifepoint, to purchase fake drugs from him.
15
since with the exception of the tire incident Mr. Freeman didn’t
witness any of them, they’re all hearsay, that he’s heard my
client’s violent, the knife incident didn’t involve him not
wanting to buy fake drugs.
The trial court suggested that the tire-slashing statement might be admissible to
show motive, and trial counsel agreed:
THE COURT: What about motive? I mean why would
he just walk up to him and shoot him for no reason? Could the
State get in motive?
…
Isn’t the State entitled to put in a reason why [appellant] might
come up and shoot him and that would be the -- the possible
motive would be we’ve been having a dispute for 10 or 12
years, this is the dispute, and then this was the straw that broke
the camel[’]s back?
[TRIAL COUNSEL]: I think that’s fair. I do think
that’s fair. Because in the discovery it did [allude] to the fact
that my client allegedly sells gank, fake drugs. I think that’s
fair, the ongoing fight.
The trial court thereafter invoked Maryland Rule 5-404(b)17:
THE COURT: Okay. And I will just for the record read
Rule 5-404(b).
17
At the time of Wallace’s trial Maryland Rule 5-404(b) provided:
(b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or other acts including acts as defined by Code, Courts
Article, § 3-801 is not admissible to prove the character of a
person in order to show action in the conformity therewith.
Such evidence, however, may be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, common scheme or plan, knowledge, identity, or
absence of mistake or accident.
16
“Evidence of other crimes or wrongs or acts is not
admissible to prove the character of the person in order to show
the action was in conformity,” which is what you were talking
about, propensity.
[TRIAL COUNSEL]: Uh-huh.
THE COURT: “It may however be admissible for other
purposes such as proof of motive,” which is where I’m coming
from.
[TRIAL COUNSEL]: Yes.
THE COURT: And it does sound like it would fall
under the category of motive here. And as long as that’s the
way the State plays it I think that that would be -- it would be
admissible for that reason.
[TRIAL COUNSEL]: Okay. And I agree with the
Court on that, but how does the Court feel about the other
incidents which Mr. Freeman has heard through the
grapevine --
THE COURT: Well, see I don’t know what the case is
going to be. Is there going to be evidence that there was an
altercation, a physical altercation, or did the -- was the victim
going to claim he was just shot? Because --
[TRIAL COUNSEL]: I don’t think there’s any
evidence of a physical altercation, or --
THE COURT: Because the only way I see it as being
relevant, if that were the case, would be that he was already
scared of him, you know, that he had armed himself in
anticipation of dealing with the Defendant because he knew
what was going to happen, but we don’t have any of that do
we?
[PROSECUTOR]: No, he’s sitting in a car, window up,
cracks it, and he’s shot.
THE COURT: And my fear is with that, is that it would
fall into the first category, the propensity. Do you know what
17
I mean? Which they’re saying it is not admissible for.
Apparently you are not allowed to put it on for the purpose of
showing that he’s a violent guy and he’s simply acting in
conformity with his character of being a violent guy.
So that’s why I feel like the State could put in
appropriate evidence based -- to show what the motive is, this
ongoing dispute, that he slashed his tires, you know, he’s acted
in a somewhat violent way.
[PROSECUTOR]: I agree -- I agree with the Court right
now, I do. That’s why I said maybe if something changes and
counsel again opens the door then maybe we can readdress it.
Subsequently, Freeman testified about the tire slashing incident. Freeman had been
loitering near the open-air drug market he frequented, waiting for a seller, when Wallace
approached and asked whether he wanted to buy anything. Freeman declined the offer,
prompting Wallace to ask why he never purchased from him; Freeman replied that Wallace
is known for selling fake drugs. Freeman then backed up his vehicle to avoid a
confrontation, and Wallace sliced the left front tire on his vehicle. Freeman “just kept
going” on the flat tire and stopped to change his tire once he had escaped to safety.
We begin with the deficient performance prong. That leads us to consider whether
Freeman’s testimony about the tire slashing incident, approximately six years prior to the
shooting, was admissible. If so, then trial counsel’s failure to challenge its admissibility
cannot be deficient performance. Moreover, if the admissibility of that testimony was
debatable, then we still cannot say that trial counsel’s actions were objectively
unreasonable, Thaniel, 238 Md. App. at 360, and therefore, there would still be no deficient
performance.
18
Motive is one of the purposes for which other crimes evidence may be admissible
under Rule 5-404(b). “Evidence of previous quarrels and difficulties between a victim and
a defendant is generally admissible to show motive.” Snyder v. State, 361 Md. 580, 605
(2000).
Furthermore, motive “also may be relevant to the proof of two of the other
exceptions to [Rule 5-404(b)], intent or identity.” Id. at 604 (citations omitted). Snyder
cited with approval Jones v. State,
182 Md. 653 (1944), in which the Court of Appeals held
that evidence of prior violent acts against a murder victim, by the defendant, were
admissible as evidence of intent and motive. Snyder,
361 Md. at 605-06.
Wallace contends that the probative value of Freeman’s tire-slashing testimony, as
to motive, was minimal. Indeed, that evidence would have greater probative value, as to
motive, were the roles interchanged. But he ignores the fact that his defense relied upon
mistaken identity—he claimed that the shooter was his son, who physically resembled him
(and, at the time of trial, was, conveniently for Wallace, deceased). Freeman’s testimony
was relevant not only to motive but to the identity of the shooter.
It is clear that the trial court was attempting to apply the pertinent rule, which it
quoted during the bench conference at issue. To the extent that it did not expressly make
findings under the Faulkner test,18 the short answer is that trial counsel’s concession of
admissibility obviated the need for that analysis. But we can be reasonably certain that,
had trial counsel objected, the trial court would have fleshed out its rationale for admitting
18
State v. Faulkner, 314 Md. 630, 634-35 (1989), sets forth a three-step analysis a
trial court should undertake when faced with a motion to admit other crimes evidence.
19
the tire-slashing testimony. Ball v. State, 347 Md. 156, 206 (1997) (stating that “[t]rial
judges are presumed to know the law and to apply it properly”). And, in any event, we do
not think the trial court erred in admitting the tire-slashing testimony, which was relevant
both to motive and identity.
We, therefore, conclude that trial counsel did not perform deficiently in conceding
its admissibility. But even if admissibility of this testimony was a close call, we still cannot
say that trial counsel’s concession to its admissibility was objectively unreasonable.
Trial Counsel’s Failure to Object to the Trial Court’s Statements to the Jury
Informing Them That Wallace Had a Prior Violent Crime Conviction
Wallace’s third and final postconviction claim alleged that trial counsel had been
ineffective in failing to object to the trial court’s erroneous and prejudicial statements to
the jury, when explaining the firearm possession offenses, that Wallace previously had
been convicted of a crime of violence. The postconviction court found that trial counsel
had performed deficiently but that it could not conclude, “solely based upon this particular
deficient performance,” that prejudice had ensued. Before addressing this claim, we set
forth the background.
Wallace was charged with possession of a regulated firearm by a person previously
convicted of a disqualifying crime, in violation of PS § 5-133(b), and with possession of a
regulated firearm by a person previously convicted of a crime of violence, in violation of
20
PS § 5-133 (c), based upon a single act of possession.19 In an attempt to comply with
Carter v. State, 374 Md. 693 (2003),20 the prosecutor read to the jury a stipulation to
Wallace’s prior conviction:
In this particular case the State and the Defense stipulate
that this Defendant, Charles Edward Wallace, Jr., was
previously convicted of a disqualifying offense in this state that
prohibited him from possessing a regulated firearm at the time
of this offense, and the Judge will instruct you later about what
that means.
Subsequently, during a bench conference immediately prior to the close of all the evidence,
the prosecutor announced that she would read the stipulation to the jury, but with a twist21:
I added the language, which is a crime of violence, to that
stipulation.
Trial counsel did not object.
Thereafter, the prosecutor, without objection, stated to the jury:
19
Under such circumstances, only a single sentence could have been imposed.
Melton v. State, 379 Md. 471, 474, 503 (2004). (Indeed, Melton went further and held that
only a single conviction may be entered for a given act of illegal possession.)
20
Carter held that, where a defendant is charged with a violation of what is now
PS § 5-133, based upon a prior conviction, a trial court abuses its discretion if it fails to
allow the defendant to stipulate to the prior conviction. Carter, 374 Md. at 721. The Court
further held that, when the jury is informed of such a stipulation, it should be told only that
“the defendant admits that he or she has been convicted of a crime for which he or she is
prohibited from possessing a regulated firearm under the law” and that the court “should
not describe the previous conviction with any more particularity or by using the categories
of crimes under [PS § 5-133] (such as “crime of violence” or “felony”).” Id. at 722
(footnote omitted).
21
Presumably, the State sought to change the stipulation to distinguish between the
two counts of the indictment, which charged otherwise indistinguishable offenses.
21
And then I believe this is a stipulation that we had
previously read, Your Honor, that we had to change. So it’s
actually the stipulation in State’s 20.
The stipulation is that the State and the Defense
stipulate that this Defendant, Charles Edward Wallace, Junior,
was previously convicted of a disqualifying offense in this
State, which is a crime of violence, that prohibited him from
possessing a regulated firearm at the time of this offense.
(Emphasis added.)
Then, the trial court instructed the jury:
A person may not possess a regulated firearm if the
person has been previously convicted of a disqualifying
offense. The State and the Defendant have stipulated that this
Defendant was previously convicted of a disqualifying crime.
…
All right. The State and the Defense have also
stipulated that the Defendant was previously convicted of a
crime of violence.
…
Okay. Counsel, anything at the bench regarding the
instructions?
(Emphasis added.)
The prosecutor objected, and a bench conference ensued:
[PROSECUTOR]: I’m sure, Judge, I mean, I heard,
when you -- I heard, at the very end there, you said the parties
have stipulated to the fact that the Defendant has a conviction
for a crime of violence. Did you give it twice --
THE COURT: Yeah.
[PROSECUTOR]: -- or two different ways, that we had
talked about?
22
THE COURT: (Indiscernible). And then I thought I
said (indiscernible).
[PROSECUTOR]: But remember, you said you were
going to give the whole once --
THE COURT: Okay. I’ll read it again.
[PROSECUTOR]: -- with just (indiscernible) and the
whole thing again --
THE COURT: With the crime of violence.
[PROSECUTOR]: -- with a crime of violence.
THE COURT: Okay.
[PROSECUTOR]: No. What we said --
[TRIAL COUNSEL]: I thought we were just going to
combine it once.
THE COURT: Well, we were. Yeah.
[PROSECUTOR]: But then you said it had to be
separate instructions.
[TRIAL COUNSEL]: Okay.
THE COURT: (Indiscernible).
[PROSECUTOR]: Right. It’s -- right.
…
THE COURT: Okay. [Are] there any exceptions on
your side?
[TRIAL COUNSEL]: No.
(Emphasis added.)
The trial court then further instructed the jury:
23
All right. I’m going to re-read one of the instructions
that has to do with possession of a regulated firearm. I had
previously told you that a person may not possess a regulated
firearm if the person has been previously convicted of a
disqualifying offense.
The law also is -- and you will see a count for this -- a
person may not possess a regulated firearm if the person
has been previously convicted of a crime of violence. The
State and Defense have stipulated that this Defendant was
previously convicted of a crime of violence.
…
(Emphasis added.) The stipulation, as amended by the State, ultimately was submitted to
the jury, along with all except one of the remaining exhibits, which the parties had agreed
should not be submitted.
Not only did trial counsel not object to the language in the stipulation, improperly
informing the jury that Wallace previously had been convicted of a crime of violence,
Carter, 374 Md. at 722, she knowingly acquiesced in the decision to present it to the jury.
There was no conceivable tactical reason for doing so, and we agree with the
postconviction court that this amounted to deficient performance.
Wallace cannot, however, show how he was prejudiced by this deficiency. Had trial
counsel objected, on the basis of Carter, we presume the trial court would have sustained
the objection and removed the offending text from the stipulation. See Newton, supra,
455
Md. at 361 (noting that, in assessing the prejudice prong of an ineffective assistance claim,
“we presume that the judge acted according to law”) (quoting Strickland,
466 U.S. at 694)
(cleaned up). The State, in turn, in all likelihood would have entered a nolle prosequi to
the lesser charge (the violation of PS § 5-133(b)), to avoid confusing the jury, and the
24
original stipulation, which complied with Carter, would have been read to the jury. Given
that the jury found that Wallace had shot the victim (which is the only conclusion we can
reasonably draw from its finding of guilt of attempted murder, a conclusion that is untainted
by the faulty intent instruction addressed previously22), there is absolutely no reason to
believe that the jury would have acquitted Wallace of violating PS § 5-133(c).
But even had the State stubbornly persisted in pursuing both illegal firearm
possession charges, the stipulation would have been re-worded to reflect the fact that
Wallace had multiple prior convictions rendering him ineligible to possess a regulated
firearm as to both counts. We still see no reasonable probability that the jury would have
acquitted on either charge. And, in any event, we shall not presume that a confused jury
would have acquitted Wallace on one or both illegal firearm possession charges; to the
contrary, we presume that the jury would have followed the instructions provided. See
Newton, 455 Md. at 360 (applying presumption “that the jury followed the court’s
instructions”).
22
The erroneous attempted second-degree murder instruction diluted the State’s
burden to prove the necessary specific intent to commit murder, leaving open the
possibility that the jury may have found merely the intent to inflict grievous bodily harm.
It had absolutely no bearing on the jury’s apparent finding that Wallace had shot the victim,
which necessarily implies that he had possessed a regulated firearm at that time. Moreover,
given that the jury clearly found that Wallace had shot the victim, we do not believe
Wallace has shown a reasonable probability that, but for trial counsel’s failure to object to
the faulty stipulation, the jury would have acquitted him of either first- or second-degree
assault.
25
Cumulative Effect
Although Wallace’s postconviction petition did not raise a cumulative effect claim,
the postconviction court, sua sponte, purported to apply the cumulative effect doctrine,
articulated in Bowers v. State, 320 Md. 416 (1990),23 and found that the cumulative effect
of trial counsel’s errors warranted a new trial. We disagree.
Initially, we observe that the cumulative effect theory, although adopted by the
Court of Appeals and other courts, has exceedingly narrow application.24 So far as we are
aware, it has been pursued successfully only once in a Maryland published decision.
Bowers, 320 Md. 416. In Bowers, the Court of Appeals found “numerous lapses” in
attorney performance, which, taken together, left it “convinced that but for counsel’s errors
the result of the trial might well have been different.”
Id. at 436. That case bears little
similarity to the case before us.
In Cirincione v. State, supra, 119 Md. App. 471, we explained just how much of an
outlier Bowers is:
23
Wallace’s postconviction petition cited Bowers only once, for the entirely
anodyne proposition that the burden of proof to establish Strickland prejudice requires less
than a preponderance of the evidence. Strickland itself said the same thing. 466 U.S. at
693 (stating “that a defendant need not show that counsel’s deficient conduct more likely
than not altered the outcome in the case”).
24
Our research has disclosed no Supreme Court decisions applying the cumulative
effect theory to a Strickland claim. The Supreme Court has, however, done so in a case
addressing multiple Brady violations. Kyles v. Whitley, 514 U.S. 419 (1995). We observe
that the same prejudice standard applies to both Brady claims and Strickland claims.
Strickland,
466 U.S. at 394.
26
In Bowers, the appointed attorney had a demonstrably
contentious relationship with the defendant and only met with
him sporadically before trial. The attorney unjustifiably failed
to investigate physical evidence pertaining to the charged
murder, including plaster casts of tire markings, fibers found
under the victim’s fingernails, and semen stains found in her
underwear. At trial, the attorney presented no opening
statement, put on no defense testimony, and committed
numerous errors of omission regarding the cross-examination
of the State’s witnesses. Bowers’s counsel additionally failed
to request an instruction on voluntary intoxication as a defense
to first degree murder, in spite of evidence presented by
prosecution witnesses to support such an instruction.
Id. at 507.25
The instant case is readily distinguishable from Bowers. Here, there are only two
clear-cut instances of deficient performance: trial counsel’s failure to object to the
defective jury instruction for attempted second-degree murder, and the failure to object to
the misstatements of the stipulation, which erroneously informed the jury that Wallace
previously had been convicted of a crime of violence. The prejudicial effect of the first
deficiency was limited, as we explained previously, to the attempted second-degree murder
conviction, and the second resulted in no prejudice. Whether considered separately or
together, their impact was the same—the prejudice Wallace suffered was limited to the
25
Cirincione cited a decision of the United States Court of Appeals for the Ninth
Circuit, Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995), as exemplifying the prejudice
flowing from the cumulative effect of multiple attorney errors. In that case, the Ninth
Circuit determined that trial counsel’s performance had been “deficient in eleven ways,
eight of them undisputed” and that those deficiencies were “serious” in nature. Id. at
1438-39. (Among those deficiencies were inadequate pre-trial investigation and
preparation, failure to consult with the client, failure to object to evidence, and failures
during voir dire, jury instructions, and closing statement. Id. at 1438.) The instant case
bears no resemblance to Harris.
27
attempted second-degree murder conviction, and he is not entitled to vacatur of the
remaining convictions.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
VACATED. CASE REMANDED WITH
INSTRUCTIONS TO VACATE
APPELLEE’S CONVICTION OF
ATTEMPTED SECOND-DEGREE
MURDER, OTHERWISE DENY HIS
PETITION, AND FOR RESENTENCING
CONSISTENT WITH THIS OPINION.
COSTS ASSESSED TO APPELLEE.
28
