*1
Court of
Nov. *4 Pierce, Doyle Bernhardt, Allison E. Julia Asst. Public De- Harris, (Stephen Defender, brief), fenders E. Public on for petitioner. (J. Ince, Ann
Mary Atty. Asst. Curran, Jr., Gen. Joseph Gen., brief), Atty. for respondent.
Argued BELL, C.J., ELDRIDGE,* RAKER, before WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
BATTAGLIA, Judge. Mosley
Lawrence asks this Court to review a decision rendered of Special Court Appeals that he was not denied effective assistance counsel when his did not counsel articulate insufficiency of the as a specific evidence basis motion for acquittal. For the reasons stated * J., retired, Eldridge, now participated hearing in the and conference of Court; this case while an active being member of this after recalled Constitution, IV, pursuant 3A, to the Article participated Section he also adoption opinion. in the decision and of this *5 should Appeals of Special that the Court below, we conclude appeal. on direct claim Mosley’s have not reviewed Background I.
A. Facts a.m., and Bellamy Yvonne at 12:45 January On located Baltimore. restaurant a Chinese Fields left Angela Mosley, Lawrence victims as man, by the A later identified Ms. Fields while grabbed and from behind them approached back, to her gun to be a a holding weapon appeared cooperate not with they if did kill women both threatening and their back-pack, a a purse, then took Mosley him. away through to walk and ordered them food Chinese them walking away, he told they began lot. As parking women, weapon the waving approached He stop. again so two air, them. He did after walking with began and The lot. through parking them people approached other officers, Agent police out plainclothes two turned to be people area, Jackson, working in the and Officer Donna Kevin Allis and called robbery of the had had events who witnessed backup. arrived, Mosley released backup subsequently When the in his hand toward weapon to run with the began women and Mosley out. Allis, pulled badge gun then his Agent who 1- as State’s Exhibit which was admitted dropped weapon, both identified Allis and Officer Jackson Agent A at trial. Mosley, they 1-A used which weapon Exhibit as the State’s that he Agent “air Allis testified gun.” characterized as an it. Mosley dropped when weapon plastic realized the was their delibera- jurors during to the Exhibit 1-A was available tions. convicted Mosley Lawrence
On March of second City of two counts Court for Baltimore Circuit wearing assault, two counts of robbery, two counts of degree robbery two counts of weapon, carrying dangerous or sentenced to two He was deadly weapon. with a dangerous thirteen-year terms of imprisonment, which were to be served concurrently. Appellate History
B. Procedural *6 Mosley the appealed to Court of Special Appeals on March 11, 2002, single raising a issue for He argued review. that he had been denied effective assistance of counsel because his counsel had failed to state with particularity grounds the for the motion for of acquittal at the made close of all the evidence. The evidence the air regarding gun, Mosley maintained, was to insufficient his support convictions for robbery with a or dangerous deadly weapon and wearing or carrying a dangerous weapon, and he that argued his counsel had failed to this point raise with the specifically, result that the issue of of insufficiency the the relating evidence to the dangerousness air gun of the was not for preserved appellate review. The Mosley’s State opposed appeal, arguing that the of issue counsel ineffective should resolved in a be post- conviction proceeding.
When the record was to transmitted the Court of Special Appeals 10, 2002, however, on May the air gun was not included. Mosley record, filed motion to correct the which the Court of Special Appeals granted. It appeared that the gun, air which was to be transmitted the Court of Special Appeals, had been stolen from the of Agent trunk Allis’s car. lost, With the gun now of his support appeal, Mosley secured and affidavits of filed the Assistant State’s Attorney, counsel, Mosley’s trial and the judge as to their recollec- tions of gun’s physical Only characteristics. the Assistant Attorney State’s remembered the gun, stating his affidavit it that was a “plastic gun,” air “heavy,” “weighed approximate- ly ten pounds,” and was “between seven and nine inches in length.”
The Court of Special Appeals, in an unreported opinion, held that “the evidence was sufficient to sustain [Mosley’s] robbery convictions for with a deadly weapon wearing and carrying dangerous concealed well weapon” as as concluded claim “must counsel ineffective assistance Mosley’s proceeding.”1 post-conviction in a decided certiorari, present- for writ of granted Mosley’s petition We our review: following questions ing authority have Appeals Special 1. Did the Court trial counsel Petitioner’s to decide whether direct appeal in violation of of counsel assistance rendered ineffective United States Constitution Sixth Amendment he Rights when Declaration 21 of the Article judgment of the motion for particularity failed with argue toy no offered evidence the State acquittal after deadly dangerous as a gun robbery qualified in the used weapon? in the Court statements contained conflicting
2. Given the actually address did Court Special Appeals’s opinion, *7 claim, and, if of counsel ineffective assistance Petitioner’s claim, its of decision the merits his the Court did address the toy gun the lost in of the fact that State light incorrect the Court Court it was transmitted before the gun about failed to draw inferences subsequently solely its decision favor and instead based of Petitioner however, were, As we have inconsistent. 1. These two determinations out, argument predi- pointed of counsel was the ineffective assistance argue insufficiency of entirely upon cated failure to counsel’s gun. relating sufficient, dangerousness the air If the of the evidence performance was not constitu- was then counsel's evidence Moreover, tionally regard. Special Court of ineffective this holdings problems Maryland's Appeals's present under inconsistent Act, requires infra, which Conviction discussed Uniform Post that, Procedure post- an in a for a to have issue considered in order defendant previ- alleged error not have proceeding, [must been] "the conviction litigated resulting ously finally proceeding waived in the any person has proceeding that the taken conviction or in other Code, See person’s secure from the conviction." relief Here, (2001). 102(b)(2) alleged § Article of the Criminal Procedure Appeals “finally litigated” Special of held error when the Court was Mosley’s Mosley, because was to convict that the evidence sufficient on his assertion that claim based ineffective assistance counsel acquittal with his should have moved for counsel insufficiency particularity on the of the evidence. based 556
an affidavit the Assistant State’s Attorney gave which an implausible description of the gun? Although opposed State direct review of Mosley’s claim
in the Court Special Appeals, the argues State before us that the Court of Special Appeals correctly found that Mosley was not denied effective assistance of counsel. The State also maintains that the Court of Special Appeals properly based its decision on the affidavit of the Assistant State’s Attorney.
III. Discussion A. Analysis The Strickland The Sixth Amendment to the United States Constit ution,2 applicable to the states through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights3 guarantee criminal right defendants the to the assis tance of counsel at critical stages the proceedings. United Cronic, States v. 648, 659, 466 U.S. 2039, 2047, 104 S.Ct. 80 657, (1984); L.Ed.2d 668 Strickland v. Washington, 466 U.S. 668, 684-85, 2052, 2063, 104 S.Ct. 674, 80 (1984); L.Ed.2d 691 Gideon v. Wainwright, 335, 372 343, U.S. 792, 796, 83 S.Ct. 9 799, Glasser (1963); L.Ed.2d 805 States, v. United 60, 315 U.S. 69-70, 457, 62 464-65, S.Ct. 680, 86 (1942); L.Ed. 699 Lettley State, 26, 33, 358 Md. (2000); A.2d State v. Wischhusen, 530, 537, 342 Md. (1996)(dis cussing the constitutional right to counsel at “critical stages” State, case); the criminal Austin v. A.2d State, (1992); Harris v. 730-31 695 n. Md. 3, 496 A.2d 1079 n. 3 (1985)(stating “[t]his Court has not distinguished right between the to counsel guaranteed by the *8 the, Sixth and Fourteenth Amendments and right provided by Art. 21 of Maryland the Declaration of Rights”)(hereinafter 2. The provides Sixth pertinent Amendment part: in "In all criminal prosecutions, enjoy the accused right shall ... to have the Assis- tance of Counsel for his defence.” 3. Article 21 of the Rights Declaration provides pertinent part: prosecutions, "That in every all criminal right man hath a ... to be allowed counsel....”
557 ”). right is the to effective right III to this Integral “Harris Morrison, v. 477 U.S. See Kimmelman of counsel. assistance (1986); 305, 2574, 2584, L.Ed.2d 321 365, 377, 91 106 S.Ct. 2063, 686, at Strickland, 104 at 80 L.Ed.2d at S.Ct. 466 U.S. 202, W., 717, 724, 206 692; In re Parris 1179, 440, Tichnell, 428, A.2d (2001); 306 509 Md. State v. (1986). 1185
The Court established Strickland Supreme 2064, 687, at at 80 L.Ed.2d at 104 S.Ct. Washington, 466 U.S. counsel’s 693, prove competence must that that a defendant and of reasonableness objective to meet an standard failed to the defense order prejudiced counsel’s performance that also of counsel claim. See in an ineffectiveness be successful at W., Md. at A.2d 206. This two- In re Parris 363 770 it process when test to correct the adversarial pronged serves Strickland, 466 a reliable trial result. has failed render 693 that (stating at L.Ed.2d at at 104 S.Ct. U.S. it said showings, a makes both cannot be defendant “[u]nless or death resulted from a break that the conviction sentence unrelia process in the that renders result adversary down ble”). is When a denied effective assistance defendant that, counsel, process integrity it is the adversarial 686, at at at 80 L.Ed.2d compromised. Id. S.Ct. claim of judging any benchmark for (stating 692-93 that “[t]he under be counsel’s conduct so ineffectiveness must whether functioning process of the adversarial proper mined result”). just on as having produced cannot be relied court prong, With first Strickland respect attorney proper performance standard explained “the Id. effective assistance.” at reasonably is that “Prevailing at professional 80 L.Ed.2d S.Ct. assistance, reasonably constitutes effective norms” define what surrounding perform all of counsel’s the circumstances 688, must be Id. at S.Ct. at ance considered. it is for both “tempting” at 694. a defendant L.Ed.2d Because conduct convic second-guess a court counsel’s after tion, when “highly they courts deferential” scrutinize must *9 558 performance. 689,
counsel’s
Id. at
2065,
104
at
S.Ct.
80
L.Ed.2d at 694. Reviewing
assume,
courts must thus
until
otherwise,
proven
that counsel’s conduct fell within a broad
range
professional
reasonable
judgment, and that counsel’s
conduct derived not from error but from trial strategy. Har-
III,
698,
ris
With
to the second prong
test,
of the
preju
dice, the Strickland court explained that
by
error
coun
“[a]n
sel,
if
unreasonable,
even
professionally
does not warrant
setting aside the judgment of a criminal proceeding if the
Strickland,
error had no
on
judgment.”
effect
466
at
U.S.
691,
2066,
B. Ineffective Assistance of Counsel Claims 1) Maryland’s Uniform Post Conviction Procedure Act
We have explained numerous occasions that a post-conviction proceeding pursuant to the Maryland Uniform Act, Post Conviction Maryland Code, § Procedure 7-102 of the Criminal (2001),4 Procedure Article is the most appropri- 4. Section 7-102 states: (a) (b) section, general. Subject In §§ subsection of this 7-103 — title, and 7-104 of this subtitle and 2 Subtitle of this a convicted person may begin proceeding under this title in the circuit court for county place any which the conviction took at time if the person claims that: (1) the sentence or imposed in violation of the Constitu- State; tion of the United States or the Constitution or laws of the sentence; n
(2) jurisdiction the court impose lacked (3) law; the sentence exceeds the maximum allowed
559 counsel. assistance of ineffective the claim to raise way ate v. Ware 207; W., 770 A.2d Md. at Parris 363 In re v. (2000); Perry State, Md. Walker (1996); State, A.2d Md. *10 denied, 516 239, 243, cert. 262, State, 253, A.2d 658 Md. 338 v. Stewart (1995); 254, 179 L.Ed.2d 898, 116 133 S.Ct. U.S. v. (1990); Johnson 1229, State, 81, 92, 1234 570 A.2d Md. 319 v. State (1982); 542, State, 434, 559 405, 439 A.2d 292 Md. (1971). 156, Zimmerman, 24-25, 163 11, 273 A.2d Md. 261 the attack to person convicted Act allows the The and conviction of the legality the challenging collaterally by Per See evidentiary proceeding.5 separate in a incarceration Davis (1999); 1162, State, 37, 1181 72, A.2d Md. 741 ry v. 357 (1979). A 406, post- State, 19, 22, A.2d 407 400 285 Md. proceeding,” a “collateral often called proceeding, conviction judgment; an of the appeal Act is not under brought alleged address designed attack rather, it a collateral violations fundamental constitutional, or other jurisdictional, ground of (4) subject attack on a to collateral is otherwise the sentence a writ of available under would otherwise be alleged error that nobis, statuto- law or or other common corpus, writ of coram habeas remedy. ry may begin pro- (b) person a begin proceeding. Requirements to —A ceeding if: this title under sentence; (1) judgment or person to set aside or correct seeks finally litigated or (2) previously and alleged not been error has any or in other resulting in the conviction proceeding waived in the relief from the person taken to secure has proceeding that person's conviction. State, Maryland Post Convic Ruby v. Uniform explained in As we simple statutory 'to create a "was enacted in 1958 Act tion Procedure corpus and coram nobis law habeas place of the common procedure, in remedies, and sen upon criminal convictions attacks for collateral ” 673, (1999) (quoting, 676 n. 4 n. 724 A.2d 353 Md. 106 tences.’ denied, 634, 658, Sutton, 909 cert. 574 A.2d Gluckstern v. Act, (1990)). The 331 S.Ct. 112 L.Ed.2d U.S. 111 corpus however, of habeas common law remedies not abolish the does a defen may suitable when remedies Id. These and coram nobis. incarcerated, subject probation subject parole, is not dant remedy proceeding post-conviction provide a the Act does not because Id. in these circumstances. for claims occurred at trial. See Code, § 7-102 of the Criminal Article; Kerr, Bar State Ass’n v. Procedure 687, 689-90, Md. 181 (1974)(explaining that a post-conviction proceeding Maryland “does not constitute cause, of the criminal part original but is an independent and civil inquiry validity collateral into the of the conviction and sentence”). Ineffective assistance of counsel is one of the Act, claims cognizable under and it is the one most Perry, commonly 72-73 & n. raised. 357 Md. at A.2d at 1181 & 1182 n. 10 (finding that the claim of evidentiary error fell within the Act’s purview noting also that other include, others, claims allowed under the Act among whether assistance, counsel rendered ineffective whether the prosecu- evidence, tion suppressed exculpatory whether the govern- ment violated terms of a plea agreement, whether there was a failure to on the trial place record the factual of guilty basis plea, whether there was use of perjured police testimony, *11 whether pursuant arrest, the evidence was to an unlawful and admitted). whether a confession erroneously When a defendant attacks a criminal counsel, the basis of denial of effective assistance of the Act thus provides the defendant with possibility the of an ev identiary hearing, reflecting a recognition that “adequate procedures level, exist at the trial as distinguished from the level, appellate taking evidence, testimony, receiving and factual making findings thereon concerning allegations the of State, v. Wilson 664, error.” 284 Md. 399 A.2d 262 (1979). Post-conviction proceedings are preferred with re spect ineffective assistance of counsel claims because the trial record rarely reveals why counsel acted or omitted to act, and such allow for proceedings in fact-finding the troduction of testimony and evidence directly related to alle Walker, gations of the counsel’s ineffectiveness.6 338 Md. at fact, Maryland In Uniform Post Conviction Act has been described generous many as more than states because it allows for a full eviden- tiary hearing opposed as to a more limited one. See Edward A.
561
243; Johnson,
434-35,
at
at
658 A.2d
292 Md.
439 A.2d
see,
State,
559;
298, 302,
e.g.,
Redman v.
363 Md.
(2001)(agreeing
A.2d
that the defendant was denied
effective
of
assistance
counsel where counsel failed to seek a
that,
change of venue and
at the
hear-
noting
post-conviction
ing, the defendant’s counsel “admitted that he was unaware
of
capital
right
defendant has the
automatic removal
State,
of the case to
v.
county”);
another
Oken
286-87,
30, 41
with
(1996)(agreeing
post-convic-
tion
findings
court’s
that there was no ineffective assistance
of counsel when counsel did not introduce evidence related to
drug
noting
the defendant’s alcohol and
abuse and
specifical-
ly
explanation
post-conviction hearing
counsel’s
and his
evidence).
tactical reasons for not including such
As
explore,
we shall
the trial record
must
clearly
because,
illuminate why counsel’s actions were ineffective
oth
erwise, the Maryland appellate courts would be
entangled
perilous process
“the
of
without the
second-guessing”
benefit
Johnson,
potentially
essential information.
292 Md. at
Miller,
ments moreover, an appel- development, additional factual Without alleged whether the able to ascertain may court not be late was prejudicial. error States, 1694, 538 U.S. S.Ct.
Massaro
United
omitted).
(internal
(2003)
citations
L.Ed.2d
720-21
post-conviction
found
Therefore,
process
adversarial
method
order
is the
generally
preferable
proceeding
evidence,
facts,
as it reveals
counsel’s performance,
evaluate
court
appellate
to an
may
that
be unavailable
testimony
Walker,
trial record.
only
original
using
A.2d at 243.
2)
Appeals
Direct
post-conviction proceedings
Although
prefer
we
claims,
of
we
assistance
counsel
denial of effective
address
nevertheless,
be
may
exceptional
there
recognized,
have
counsel’s ineffectiveness
reveals
where the
record
cases
appeal
review
egregious”
“so blatant and
to be
Johnson,
at 559
435 n.
439 A.2d
292 Md. at
appropriate.7,8
way
part,
to obtain
provides,
pertinent
Maryland Rule 8-301
by
appellate
this Court:
review
may
(a)
by
Appeals
Generally.
the Court of
Appellate review
only:
obtained
(1)
appeal, where allowed
by
appeal
application for leave to
direct
law;
by
Questions
(2)
of
of Law
pursuant
Maryland Uniform Certification
to the
Act; or
(3) by
in all other cases.
writ of certiorari
way
pertinent part, the
to obtain
provides, in
Rule 8-201
Appeals:
by
Special
appellate review the Court
8-204,
only
a)
Except
provided in Rule
By
appeal.
as
notice
by
Special Appeals is
securing
the Court of
method of
review
prescribed
filing
appeal
time
in Rule 8-202.
a notice of
within the
way
raising
of counsel
possible
ineffective assistance
8. Another
Special Appeals has
The Court of
in a motion for a new trial.
claims is
Maryland, 133
possibility in Ruth v.
to address this
had occasion
case,
(2000).
appeal-
the defendant
Md.App.
A.2d 152
In that
he
a new trial in which
claimed
ed after the denial of his motion for
counsel and that there
denied effective assistance of
that he was
analyzing the
at 156. After
juror
Id. at
misconduct.
claims,
Special Appeals affirmed the
Court of
of both of these
merits
*13
n. 15.
Review ineffective assistance of counsel claims may
occur on
in a
appeal
direct
number of circumstances.
For
a
example,
alleges
when
defendant
his counsel’s effectiveness
interest,
was compromised by prejudicial conflicts of
we have
Austin,
addressed the
issue
direct appeal.9 See
A convicted
limited
was denied
claim that he
she
effective
may raise the
a
counsel on direct review
the benefit of
assistance of
without
W.,
In re
at
See
Parris
post-conviction proceeding.
207; Austin,
737;
Md.
609
at
Similarly, we determined
con-
apparent
counsel had
defense
because
appropriate
Austin,
contin-
partners
law
In
where two
flicts of interest.
after one
codefendants even
two criminal
represent
ued to
other,
concluded
we
testify against
to
decided
defendant
that defense
demonstrated
sufficiently
trial record
that the
adversely
perform-
affected his
of interest
counsel’s conflict
387, 609
had occasion
anee. 327 Md. at
A.2d at 729. We also
conflict of
issue in
in which
Lettley,
to address another
interest
defense counsel
another client who had not been
represented
to
charged with the crime at issue but had confessed
commit-
29,
ting the crime to him.
We
these
direct review
when
facts found in
are
only
the trial record
sufficiently developed
clearly
reveal ineffective assistance of
performance adversely
counsel and that counsel’s
prejudiced
W.,
the defendant. See In re Parris
363 Md. at
at 207.
utilize the
We
same rationale when we have declined to
Johnson,
review claims on direct
In
appeal.
example,
we
that,
if
emphasized
why
the trial record does not reveal
only
counsel made certain decisions and
suggests may
he
have
assistance,
provided ineffective
prefer post-conviction pro-
we
ceedings
they provide
because
counsel with the
opportunity
his actions. 292
explain
Md. at
439 A.2d at
In
559.
case, we declined to consider the defendant’s ineffective assis-
Notably,
conflict of interest
issues in ineffective counsel cases often
require
showing
prejudice.
Lettley,
do not
See
358 Md. at
reason,
A.2d
appears
likely
at 397. For this
it
we have been more
performance
evaluate counsel's
on direct review when conflict of inter-
Austin,
clearly
est is
at issue. See
3) Mosley’s Claim because he his counsel was ineffective According Mosley, to for for the motion of the bases not articulate as one did that the-air prove that the State did not of judgment acquittal doing, Mosley In so deadly weapon.12 or dangerous was a gun Code, Article enables § 6-104 of the Criminal Procedure judgment acquittal at the close of the for of defendant to make a motion pertinent provides, in of all evidence. It and at the close State’s case part: a) Motion State’s after evidence. —(cid:127) State, (1) may move for for the a defendant At the close of the evidence or acquittal or counts or on one more judgment on one more crime, ground is insufficient in degrees that the evidence of a on the degree. the count or to a conviction as to law sustain subsection, (3) (2) if the court denies the Subject paragraph of this may evidence judgment acquittal, the defendant offer for motion having right do so. behalf without reserved on the defendant’s (3) making a motion for offers evidence after If the defendant withdrawn. acquittal, the motion is deemed first, the evidence two accept premises: asks us to robbery with a his convictions support not sufficient or dangerous wearing deadly weapon dangerous and, second, ineffective that his counsel was deadly weapon; per specific to articulate bases of his failure se as a result *18 demonstrate for As we judgment acquittal. motion for the below, determine whether that we cannot we conclude so, the test we elucidated applying was sufficient and evidence W., in In re Parris appeal evaluate on direct we cannot assistance ineffective provided or not his counsel whether in dispute. because critical facts are W., to In re Parris facts In the critical here contrast First, doubt, itself is are, weapon dispute. without a Second, affida requesting from the record. after missing now of Special Appeals, vits to the record at the Court supplement affidavits, of of those now the contents one Mosley disputes Attorney’s description the Assistant disagreeing with State’s Yet, in of these spite of the lost air characteristics.13 gun’s (b) Motion all evidence.— after (1) acquittal may judgment of at the close of all The defendant move for judgment acquittal evidence whether or not a motion for of was the State. made at the close of evidence for (2) judgment acquittal, the defen- If the court denies the motion for of may ruling appeal. review of the on dant have 4-324(a) procedure making Rule establishes judgment acquittal: motion for may judgment acquittal move for on one or more A defendant counts, by degrees of an offense which law is or on one or more degrees, at the close of the evidence offered the State divided into and, trial, jury of all the evidence. The defendant in a the close why particularity should be shall state with all reasons motion granted. objection acquittal shall No to the motion for necessary. right A defendant does not waive the to make the by introducing during presentation of the motion evidence State's case. that, testimony Mosley suggests there little in the also because gun’s “density,” "weight” and the State failed to record about the air however, argument, prove dangerous deadly weapon. it was a or This ignores may no need to include such detail the fact that there have been gun at trial the air was not lost until after the because see, touch, jurors completed were able to and evaluate the and that the gun during air their deliberations. facts, Mosley argues with the critical also that the problems is sufficient his assertion enough support face the record gun dangerous deadly weapon-even that the air was not a his brief and at oral attempted suggest argument as he Attorney’s that the Assistant characterization of the air State following was incorrect. The from oral gun excerpt argument gun more than indicates that the characteristics of the air were, are, still at issue: I
Mosley: very plain But think the face of this record it’s prove plastic toy gun that the State didn’t that this could bludgeon. testimony have been used as a There’s no heaviness, density. about it’s about its about its weight, suggests The fact that it’s and of itself that it plastic was lightweight— Well, varieties,
The comes in kinds of there plastic Court: anybody are that can’t hurt but can really toy guns you damage. that can do a lot of get plastic *19 also, That before the trial court wasn’t it? was Mosley: Judge There’s no indication that the it picked up. it,
Obviously he saw and the itself did back into gun go jury during room deliberations. The Court: So it was evidence? itself,
Mosley: It was evidence. But in and of plastic know, even if it’s a than a plastic pistol, you heavier water a plastic pistol, inherently lightweight water still a object that—
The This wasn’t a this air pistol, gun. Court: water was an Mosley: An air and in on the various gun, doing research of air heaviest air I could
types guns, plastic gun find weighed just under 500 which grams, pound. is about certainly There are metal air that guns weigh a little bit more, more, not much more but little bit but— It a projectile, The Court: shoots does it not? Whether it’s or Air plastic something gun. metal? forces out of the that, maybe understanding my it’s And Mosley: Correct. plastic. it shoots is gun, projectile with the plastic Is what? The Court: heavy or lightweight it a was it? Was gun kind of air
What remain unresolved. and more questions These plastic? was sufficient whether there no to evaluate ability We have with a robbery as to Mosley’s conviction support evidence or wearing dangerous deadly weapon or dangerous conclude with Therefore, we cannot simply deadly weapon. nothing air confidence, gun Mosley urges, as and, thus, danger cannot be a toy gun,” a “plastic more than State, Brooks per se.14 See deadly weapon ous or 585, 600-01, (1989)(concluding plastic that a deadly weapon explaining or dangerous not a toy gun was as a object qualifies an determining for whether the test for as one of the elements weapon, listing dangerous deadly as a “blud could be used weapon whether the dangerousness geon”). was insuffi- cannot conclude that the evidence
Because we conviction, cannot take the next we Mosley’s cient to sustain provided that his counsel and determine step urged by Mosley judgment a motion for for making not ineffective assistance of the long sufficiency As as the acquittal particularity. with issue, Mosley’s remains that possibility is at evidence place. motion in the first grounds to make the counsel lacked (Iowa Scalise, 2003)(concluding See State v. N.W.2d because, if even counsel was not ineffective defendant’s without acquittal speci- was made his motion evidence to find the defendant jury had substantial ficity, two-pronged this under Strickland’s guilty). possibility, Given *20 the motion with Mosley’s support counsel’s failure analysis, gun gun, jury not a "real” was told that the air 14. We note that holding gun, testimony Mosley which was described heard about "hard,” while and to the back of the victims the victims as "black” threatening they cooperate, simultaneously kill them if did not gun jury opportunity for themselves in the had the to review the air they room while deliberated. 572
particularity
may
either
not have been ineffective assistance of
may
prejudicial
counsel or
not have been
to the defendant.
Therefore, we conclude that
the issues
are
presented
more
in
post-conviction
for elucidation
appropriate
proceeding.
result, although
may
As a
there
be instances where failure
to make a motion for
for
with
judgment
acquittal
particularity
might be
to be
determined
ineffective counsel based
alone,
unwilling
per
trial record
we are
to make such failure
in
re
explained
se ineffective assistance
counsel. As we
In
here,
if
only appropriate
Parris W. and iterate
direct review is
sufficiently developed
the record is
and the critical facts are
726,
not
Mosley’s
distinguishable
case
cases he cites
because,
cases,
support
position
his
those
the critical
facts
counsel’s
regarding
performance
undisputed
were
and the record was more than sufficient to allow the
specific,
appellate court
evaluate the case. See United States v.
(5th
Bass,
321,
Cir.2002);
310 F.3d
330
United States v.
(9th
Recio,
1069,
Cir.2001),
Jimenez
258 F.3d
1074
rev’d on
270,
819,
grounds,
other
537
123 S.Ct.
III. Conclusion For the foregoing long-standing reasons we adhere to our view that ineffective assistance of counsel claims are best in post-conviction tested and that of such proceedings review claims on appeal direct is limited to the rare where exception *21 critical facts are and the developed sufficiently the record is therefore, of the Court We, vacate the order not dispute. of to the Court with directions remand Special Appeals of of the vacating the The appeal. to dismiss Special Appeals his right to assert claims Mosley’s prejudice order shall not to so.15 he desire do should proceeding, a post-conviction OF APPEALS OF THE COURT SPECIAL JUDGMENT OF THE COURT REMANDED TO AND CASE VACATED TO DISMISS APPEALS WITH DIRECTIONS SPECIAL IN THIS PREJUDICE. COSTS THE APPEAL WITHOUT APPEALS TO THE SPECIAL IN COURT OF COURT AND BE PAID BY PETITIONER.
WILNER, J., concurs. WILNER, J.
Concurring Opinion by
that
record
I
the
agree
I
in the
because
concur
before the Court
us,
the same record
being
before
to
a determination
permit
is
Special Appeals,
inadequate
the
to
legally
support
evidence was
sufficient
whether
the
comment,
however.
following
conviction.
I offer
vacating
Special Appeals's
decision and
we are
the Court
15. Because
post-conviction
preserving Mosley’s ability
pursue his
in a
to
claims
Special
proceeding,
his
that the Court of
we decline to address
claim
supplemented the
record with
affidavit
Appeals
not have
trial
an
should
note, however,
gun.
is
describing
air
that it well-estab-
the lost
We
III,
Md.
appellate
is not a trier of fact.
lished that
court
Harris
an
Mosley’s
at
claim that he was rendered
disputed
directly
counsel is
related
ineffective assistance
gun.
of the
factual attributes
allowing
way
appellate
Our
here in
limit the
court from
comments
no
necessary
appeal
pursuant
be corrected on
when
record to
authority
(providing
appellate
with
court
Rule 8-414
in the
be corrected” and
that an error or omission
record
“order
papers
in the record or
based on facts not contained
"motion that is
by
parties
all the
appellate
file
court and not admitted
other
in the
case,
affidavit”).
by
supported
Given the situation in this
shall be
however,
evidence,
parties dispute the
of lost
where the
characteristics
post-conviction proceeding
better
we
in a
believe that the
court
testimony may
be introduced
able to
whatever evidence
evaluate
danger-
weapon
it could
characterized as
regarding
and whether
deadly.
or
ous
4-324(a)
Maryland Rule
permits
defendant,
at the close of
the evidence
and,
offered
trial,
State
in a jury
at the
evidence,
close of all of the
to move for judgment of acquittal
on one or more counts or on
one more degrees of an offense
that is divided into degrees. The Rule requires, however, that
*22
the defendant “shall state with particularity all reasons why
the motion
granted.”
should be
This Court
that,
has held
if
made,
such a motion is not
an appellate court will not review
the case to determine
sufficiency
the
of the evidence. The
issue-perhaps the
important
most
one in the
regarded
case—is
State,
waived,
as
Wersten v.
unpreserved.
228 Md.
(1962).
A.2d 364
that,
We have also held
even if such a motion
is
made,
the failure of the defendant
to particularize his/her
complaint
point out
why
how and
the evidence
legally
is
—to
insufficient —also withdraws the issue from appellate review.
See State v. Lyles, 308 Md.
Muir v.
(1986);
A.2d 761
State,
(1986);
Md.
A is not required to make a motion for judgment of acquittal unless there is a motion, reasonable basis for the and, indeed, likely it would be a violation of Rule 3.1 of the Code of Professional Responsibility for the lawyer to make such a motion frivolously a reasonable in basis the —without Nonetheless, record.1 it has become routine in criminal cases for motion, counsel to file such a regardless of the state of the record. reasons, There are two both pragmatic. Nothing is motion, lost filing the but everything may be lost if one is not filed. In the battle, heat of the one may never for know certain whether the presiding judge might entertain some doubt about the legal sufficiency the evidence and be inclined to grant motion, in whole or in part. Whether any group appellate judges would find the evidence insuffi- 1. Rule 3.1 lawyer states that bring "[a] shall not proceed- or defend a ing, therein, or assert or controvert an issue unless there is a basis for frivolous, doing so that is not good which argument includes a faith extension, an existing modification or lawyer reversal of may law. A nevertheless proceeding so defend the require every as to that element moving party's of the case be established.” situation, irrelevant, for if the trial would, be
cient matter, at that ends grants acquittal, a judge hand, if other acquittal. of the On the to the extent least made, lost, at the trial and the issue is both motion is not not judge given opportunity trial is levels. The appellate opportunity not given court is appellate to rule and the insufficient, if would judge even the evidence find Strickland of a From the of view point found otherwise. have issue, performance prongs as to both analysis, —deficient cases, entirely on whether depend in most prejudice will, — court, proceedings, conviction concludes post a reviewing a basis for such motion. proper that there was particularized, may not the situation If a motion is made but that, if not always There is the chance even be worse. judge, the trial may granted by the motion particularized, analysis her that the his or own might who well conclude course, If the issue happens, evidence insufficient. an appeal and will never surface either disappear will *23 such The concern we face is when post proceeding. conviction is not unparticularized is If an motion granted. a motion not right appellate has lost the granted, the defendant review^ all, if motion had never at but loss just as been made that, in even making may assumption be made worse motion, the that there was generalized lawyer believed deficiency appellate for it. withdraws from some basis The lawyer believed existed. presumably review an issue relief will post end will be the conviction The result same— Strickland, unavailable, of the prejudice prong because court that the evidence as reviewing unless finds I find would it legally least one conviction was insufficient. difficult, however, to a conclusion that there was not justify If the that there performance. lawyer believed deficient it, it for the how could not enough a basis motion make asway to fail to make it in such a performance be deficient simply it This is one instance which make effective? (unless, no effect making motion “for record” has fortuitously, granted). it is
This is an area in can, which trial judges should, provide some meaningful A assistance. motion for acquit- tal asks the judge case, to end the or at part least of the case. The judge entitled to every know possible basis for the motion, and should not permit counsel to rest on an unparticu- motion, unless, larized as sometimes happens, the in- judge tends to grant the motion based on his or her own analysis. It counsel, is a simple matter to ask “on what ground,” or to ask counsel to explain what necessary element is I missing. do not suggest that the judge any legal has duty or responsibility to make that inquiry, and, made, even when it will not necessarily result in all proper grounds (1) being stated, but it (2) might cases, help some it will not leave the record showing only a legally useless motion.