*1
STATE of Term, 39, Sept. No. Appeals Maryland.
Court of 9, 2001. March *3 Lаnier, E. (Stephen L. Assistant Public Defender Margaret brief), Baltimore, Defender, for Harris, petitioner. on Public (J. Bosse, Attorney Joseph Cur- Ann N. Assistant General brief), Baltimore, ran, Jr., Attorney Maryland, General respondent. for BELL, C.J., ELDRIDGE, RAKER, before
Argued WILNER, CATHELL, HARRELL F. and LAWRENCE (retired, specially assigned) RODOWSKY JJ.
RAKER, Judge. arising This out of a for relief under the petition Act, (1957, 1996 Maryland Post Conviction Procedure Code 645A, § Article ineffective Repl.Vol., Supp.) alleging assistance of counsel under the Sixth Amendment to the United must question States Constitution. The we decide whether Petitioner’s federal constitutional to effective assistance counsel under the Sixth Amendment was violated because his trial counsel was unaware based on Article IV, Constitution, Petitioner, § 8 of who was charged degree with first subject murder and to the death penalty, had an automatic to remove the case to another county. Allegany County The Circuit Court for granted Peti- tioner a new of Special Appeals the Court reversed granted the Circuit Court. This Court Petition for Writ Certiorari, shall affirm Special and we the Court of Appeals.
I. Redman, Petitioner, Joseph Mario in 1994 by indicted murder, Jury Allegany County Grand for first degree robbery, attempted first degree rape and other related of fenses. The State filed a notice intention to seek the death penalty. convicted degrеe Petitioner first murder and attempted degree first rape. Petitioner waived his *4 to be by jury sentenced and elected to be sentenced (1957, court. See Maryland Code Repl.Vol., Supp.) 27, 413(b)(3); State, 650, 663, § Art. v.Ware 360 Md. 759 A.2d (2000). 764, 770 The court sentenced Petitioner to life without parole on the murder conviction years and to ten consecutive attempted rape unreported conviction. opinion, the Court of Special Appeals judgments affirmed the of Circuit Court. a in the Circuit Court Redman filed April
On alia, contending, inter Relief, Post Conviction Petition for by failing ineffective assistance trial counsel rendered his his that because argued Petitioner change a of venue. seek unaware of the counsel was cases, performance his capital removal affording automatic Amendment. under the Sixth deficient trial counsel Petitioner’s hearing, post-conviction At the has the a defendant capital was unaware that that he admitted He county. of the case to another of automatic removal venue, concluded but change a motion filing considered for several interest to do so not in Petitioner’s that was First, removal would have been seeking felt that reasons. he motion hearing a court on the sword because edged a double Second, anew.1 beсause publicity have likely generated would put could a county, the new cannot select defendant could be because the case position in a worse county.2 weighed He also to a less favorable removed of the case and aspect of the racial light impact prejudices.3 local biases and any potential for voir dire preparation then addressed his Defense counsel selection during he followed procedures and the who colleague he consulted with He stated that process. him with provided case and who had tried a death had that, at the testified questions. voir dire Counsel sample dire, impartiali- satisfied with the of the voir he was conclusion jury. ty that he wanted his case hearing at the
Petitioner testified his County expressed and that he had Allegany removed from crime and the Despite apparent local media interest in the 1. initial Redman, ignored the case for the three charging the media had seek prior trial counsel decided not to to when Redman’s months removal. meant, favorable, by less appears trial counsel It that Redman’s history imposing county may a sentence of have had a Allegany County. more often than and the victim was Caucasian. 3. Redman is African American *5 know, desire to his attorney.4 lаwyer He did and his did him, not inform that he had an automatic right. He stated had he known of the he right, would have “de- it. manded” exercise
The trial court granted post-conviction relief and ordered new trial. The court held: “While it is not process a due violation accused is not right, [the] advised of the counsel’s failure to significant advise Petitioner of the casts doubt upon the reliability fundamental of the proceeding terms of (internal an ineffective analysis” assistance counsel citation omitted).
The State’s Application Leave to Appeal granted by the Court of Special Appeals, and that court reversed the post-conviction court. We issued a ofWrit Certiorari on Petitioner’s motion and affirm the appellate intermediate court. argues
Petitioner
that he is
entitled to
new trial with the
automatic right of removal because his trial counsel did not
file a suggestion of removal at his 1994 trial. He maintains
8(b)
IV, §
counsel’s lack of
knowledge Article
of the
Maryland Constitution constituted ineffective assistance of
counsel under the Sixth Amendment. Relying primarily on
Fulminante,
279,
Arizona v.
1246,
499 U.S.
111 S.Ct.
(1991),
L.Ed.2d 302
argues
he
that prejudice should be pre-
sumed because
removal is a
fundamental
qualifies as a structural error not susceptible to establishing
prejudice.5 He further
argues
assuming, arguendo, that
4. Redman’s trial counsel
testified he did not recall whether Redman
wanted the case removed.
inappropriately
5. Petitioner
scrambling
eggs
v. Fulmi
Arizona
nante,
(1991),
499 U.S.
111 S.Ct.
113 L.Ed.2d Washington,
Strickland v.
466 U.S.
104 S.Ct.
he must
prejudice.
constitutes
a different
defense before
First,
argues
the State
is threefold.
argument
The State’s
whether
was not deficient because
performance
that counsel’s
*6
1246,
307-09,
Fulminante,
279,
111 S.Ct.
U.S.
499
In
v.
Arizona
(1991),
1264-65,
distinguished
assessment,
Supreme Court
302
113 L.Ed.2d
susceptible
error
to harmless
"trial error”
between mere
A
in the trial itself.
"structural defects”
that amounted to
and errors
during
presentation of the
occurred
an error "which
"trial error” is
may
quantitatively assessed
jury
which
therefore be
and
case to
to determine whether
presented in order
other evidence
the context of
1264,
307-08,
at
113
111 S.Ct.
Id. at
admission is harmless.”
its
affects "the framework
error is an error that
A structural
L.Ed.2d 302.
simply
the trial
than
an error in
proceeds,
trial
rather
within which the
1265,
310,
302. Such
S.Ct. at
113 L.Ed.2d
at
111
process itself.” Id.
itself, affecting
process
the conduct
trial
errors affect the entire
1265,
309,
end,
at
113
id. at
111 S.Ct.
beginning to
see
trial from
302,
fundamentally
"necessarily
unfair.”
render
trial
L.Ed.2d
577,
3101, 3106,
570,
Clark,
460
92 L.Ed.2d
106 S.Ct.
478 U.S.
Rose v.
(1986).
impossible
quantify that it
error is
because structural
It is
Supreme Court
error standard. The
analysis
the harmless
defies
present,
"criminal
trial
error is
when structural
concluded
guilt
a vehicle for determination
reliably
its function as
cannot
serve
innocence,”
Fulmi
thereby mandating
of the conviction.
reversal
1265,
nante,
307-08,
S.Ct. at
113 L.Ed.2d
at
111
499 U.S.
Cronic,
cases,
United States v.
presumed prejudice
see
in the Cronic
As
2039,
(1984),
648,
Supreme
II. IV, § Constitutional Right, Art. 8(b) IV, § Article of Maryland provides Constitution as follows:
In all of presentments cases or indictments for offenses *7 punishable death, that are in suggestion writing under oath of parties either proceedings that the party cannot have a fair impartial and trial in the court in which the proceedings may pending, be the court shall order and direct the record of in proceedings the presentment or indictment to be transmitted some other court having jurisdiction in such case for trial.7 reject 6. We out of hand argument the State’s that defense counsel’s “blunder” in this stratеgy. case was trial We cannot fathom how counsel’s conduct can be strategy considered trial if counsel did not right. know of the removal cases, noncapital In all other right criminal and civil removal is IV, 8(c) discretionary. § Maryland Article of the Constitution states: indictment, In all presentment other cases of and in all suits or actions at law Orphan’s any or issues from the pending Court in of the jurisdiction courts of law in this State which have over the cause or in suggestion writing addition to the parties in either party the cause or impartial case that the cannot have fair and trial in the court in may which the cause pending, . or case be it shall be necessary party making suggestion for the satisfactorily to make it true, appear to the court suggestion is or that there is reason- same; ground able thereupon for the the court shall order and 306 254(b)(1) the constitution- Maryland (implementing Rule
See 4— al provision). the criminal of removal is absolute where 8(b); IV, § punishable by is death. See art.
offense Md. Const. 189, 254(b)(1); State, v. 271 Md. Maryland Johnson Rule 4— (1974). in 191, 524, Writing for the Court 526 A.2d Johnson, Eldridge stated: Judge IV, gives § of the Constitution
Article to another an absolute criminal defendant may if he with an offense which is or charged court is in no than file need do more “punishable by death.” He oath, a fair suggestion that he “cannot have writing, under casе is trial the court” which the impartial death, the punishable by In criminal cases pending. further requires go the defendant to provision satisfactorily to the that such appear and “make it Court true, or that is for ground there reasonable suggestion the same.”
Johnson, Md. at A.2d at 526. State, (1953), 123, 126, A.2d
In 202 Md. Heslop Judge Delaplaine history traced that, checkered, although history and noted that it significance considered of such has nonetheless been in the law of this organic has been some form incorporated January half. century than a and a State more an Act to the Legislature proposing Amendment passed alia, inter gave of 1776 courts discretion Constitution suggested writing where any party remove criminal cases a fair not be had in the court impartial could *8 proceedings in or to be transmit- direct the record of the the cause court, having jurisdiction in the or ted to some other cause right suggestion also cause or trial. The shall exist on in a may judges disqualified be under the case in which all the the court provisions of The court to the record of this Constitution sit. which action, issue, proceedings presentment or indictment in such suit transmitted, in the same shall hear and determine that cause or case originally as been instituted in that Court. The manner if it had modify necessary to Assembly existing may law as be General shall provision. regulate give and force to this
307
which the case was pending.
126-27,
See id. at
95
at
A.2d
881.
confirmed,
The Act was later
a discretionary
right
removal in all criminal cases
part
became
of the Maryland
Constitution. The Constitutional Convention of 1851 revised
provision by
this
eliminating
discretionary
aspect
gave
right
of removal to the
in every
criminal case.
Reports
gross
abuse8 of the unlimited removal right led the
Constitutional Convention of 1864 to return the power of
discretion,
removal to the court’s
and the Constitution was
(amended
provide.
IV,
amended
so
§
See
Const. art.
Md.
1864);
127-28,
Heslop, 202 Md. at
A.2d
882. The rule
again
was
changed by the
Constitutional Convention of
removing once more the court’s discretion and making the
(amended
IV,
automatic. See Md.
§
Const. art.
1867);
Heslop,
127-28,
Legislature, again hearing reports of abuse of the unlimited
removal right, proposed an Amendment to
Constitu
tion to provide automatic removal only in those cases where
the crime
punishable
by death.
Heslop,
See
A review of the history of the removal provision dem
shifting
onstrates “a
concern
having
between
a broad
removal and
having very
limited
bеcause of the abuse
associated
requests
Johnson,
with
for removal.”
308 we to hold history,
constitutional we observed that were “[i]f absolute, certain right of removal to offenses applied that the death, we the broadening would be formerly punishable by 194-95, (empha- it.” at A.2d at 528 right, limiting not Id. 315 in original). sis to for provision removal is provide the purpose and to escape community prejudice from local method from the locality,
allow for to be tried in a different free a case bias, influence, or prejudice might that arise community local however, Today, originated. in which the locale the capital to cases. We have stated right clearly limited language no in the “there is basis inferring any to for other provision relating purpose in a case procedural safeguard than providing additional Id. put where criminal defendant fact be death.” 193, at at 315 A.2d that, because his counsel did argues
Petitioner
he
county,
not file
of his case to another
is entitled
for removal
to a
trial with
automatic
of removal. There
new
Court,
Court,
him
this
or the Circuit
authority
grant
no
for
removal, in
automatic
The source of
right.
instance,
any
At
the first
is the
Constitution.
subsequent
eligible
Petitioner could not be
for the death
Johnson,
if were to afford the
penalty.9 As we indicated
we
eligible
penalty
not
death
he were to
9. Petitioner would
be
State,
225, 239,
A.2d
receive a new trial. See Harris v.
312 Md.
539
637,
(1988).
a defendant has received a
less than
644
Where
sentence
sentencing hearing,
following
death
the Fifth Amendment’s Double
Jeopardy
protects a
issue of
clause
defendant
from retrial
Missouri,
430,
1852,
punishment.
Bullington v.
U.S.
S.Ct.
See
101
(1981).
III.
Assistance
Counsel
Ineffective
represen
of counsel’s
adequacy
In order
assess
Amendment,
standards
apply
we
under the Sixth
tation
Washing
v.
Strickland
Count
Supreme
enunciated
(1984).10
See
2052,
ton,
668,
L.Ed.2d 674
104
80
466 U.S.
S.Ct.
1495,
362,
146 L.Ed.2d
120 S.Ct.
Taylor,
v.
529 U.S.
Williams
(1999),
State,
580,
724
1
v.
Md.
A.2d
Wiggins
(2000);
352
389
(citation omitted).
justify the death
failed to
Once the State has
270
"
assemble,
proof it could
'opportunity to offer whatever
its
”
1862,
446,
68
101 S.Ct. at
Id. at
is not entitled to another.’
the State
omitted).
(internal
the State to seek
To allow
citation
L.Ed.2d 270
Jeopardy
Double
clause
would violate the
penalty a second time
See id.
the Fifth Amendment.
644,
239,
Harris,
A.2d at
cert
832,
90,
(1999);
528
120
145
U.S.
S.Ct.
L.Ed.2d 76
State,
denied,
v.
256,
Oken
cert.
(1996),
343 Md.
S.Ct.
atMd.
We with the court’s conclusion that trial performance counsel’s was substandard. Redman’s trial counsel admitted that he was unaware of the Maryland of automatic in capital cases. Failure to inform of Redman this was perfor deficient mance of his duties as counsel.
This conclusion leads us to the
question:
second
whether the deficient performance prejudiced Petitioner. To
prejudice,
establish
Petitioner must show that
is a
there
that,
substantial possibility
but for
unprofessional
counsel’s
error,
Bowers,
the result would have been different. See
320
427,
Md. at
We address first argument Petitioner’s that prejudice be presumed. Supreme should The Court fashioned an excep-
311 States prong the Strickland United prejudice tion to Cronic, 648, 658, 104 2046, L.Ed.2d 657 S.Ct. 466 U.S. that are so (1984), “there аre circumstances reasoning that their litigating the accused that the cost of likely prejudice Court, unjustified.” is The Cronic particular effect in a circumstances, dicta, prejudice that in rare actually stated actual into counsel’s presumed inquiry be “without at performance at trial.” Id. at S.Ct. noted: 657. The Court Supreme
L.Ed.2d on some may magnitude present Circumstances that is available to assist although occasions when counsel even a any lawyer, the likelihood during accused one, is so could effective assistance fully competent provide without prejudice appropriate that a presumption small into the actual conduct of trial. inquiry Thus, 659-60, at S.Ct. L.Ed.2d Id. rule that exception general out a narrow Court carved of counsel cases under the Sixth in ineffective assistance Amendment, a must he or she prove performance. prejudiced by counsel’s deficient Cronic, considering presumed prejudice exception said States Court of the First Circuit Appeals the United following: in all But, in this approach suggested statement employed rule—and can be exception, not the events record circum- only presumptively prejudicial reveals counsel, a denial of the outright stances such as an denial cross-examination, complete effective or a failure right to prosecution’s testing. case to adversarial subject showing itself Court warned most cases Cronic necessary remained a element. The Court actual *12 finding “there is no basis for Sixth generally stated: how can show Amendment violation unless accused reliability errors counsel undermined the specific guilt.” finding (1st Cir.1994) (citation DuBois, 1, 12 omit- v. 38 F.3d
Scarpa ted). lan- rejecting expansive reading of the Cronic as follows: guage, Scarpa interpreted exception court 312 view,
In our language the Court’s Cronic was driven recognition types certain of conduct are in general so antithetic to lawyers effective assistance —for example, who leave the courtroom for long during stretches of time unlikely trial are in any be stellar advocates matter —that a case-by-case analysis simply is not worth the cost of protracted No litigation. matter what the facts of a given be, may case this sort of always conduct will almost result in prejudice. attorney But errors particular the facts of an individual are qualitatively Virtually different. by defi- nition, such errors “cannot be according classified to likeli- hood of causing prejudice” or “defined with preci- sufficient sion to inform defense attorneys correctly just what conduct to avoid.” Consеquently, Court has declined to accord presumptively prejudicial status to them. (citations omitted).
Id. at 12-13
very
Other courts have been
cautious in presuming preju
dice and
require
showing
actual
in most cases.
See, e.g.,
671,
United States v.
27
Thompson,
F.3d
676
(D.C.Cir.1994),
denied,
1050,
650,
cert.
513 U.S.
115
130
S.Ct.
(1994);
Baldwin,
1432,
L.Ed.2d 554
United
v.
States
987 F.2d
(9th Cir.1993),
denied,
967,
1437-38
cert.
508 U.S.
113 S.Ct.
2948,
(1993);
Puckett,
McInerney
L.Ed.2d
919 F.2d
(5th
350,
Cir.1990);
Reiter,
352-53
United States v.
897 F.2d
639,
(2d Cir.1990),
denied,
817,
644-45
cert.
498 U.S.
111 S.Ct.
59,
(1990);
Thieret,
L.Ed.2d 34
Henderson v.
859 F.2d
(7th
492,
Cir.1988),
denied,
1009,
499-500
cert.
U.S.
(1989).
1648,
S.Ct.
313 847, denied, 1034, (1988), 488 U.S. 109 S.Ct. cert. F.2d 300 839 (1989) of defense (holding absence L.Ed.2d 979 102 witness key government cross-examination during counsel prejudicial). attorney presumptively for a codefendant by funda ... where the required “is prejudice of actual Proof not been challenged proceeding has fairness of the mental not been process has legal integrity affected Swanson, 1070, 1073 F.2d v. 943 United States jeopardized.” (9th Cir.1991). preju not the which type error this case is
Counsel’s explained, we have presumed. will be As dice by filing triggered removal is automatic the State or the defendant. a either suggestion right with a will discuss the Ordinarily, capital defendant removal, in a suggestion and decide whether to file counsel a fair he or she “cannot have stating under oath wilting, pending. trial in in which case is the court” impartial 8(b). IV, required § Neither party art. Md. Const. Thus, to inform right.11 trial counsel’s failure exercise removal, of his constitutional automatic Petitioner more, resulting crimi necessarily without does not render the unfair or Unlike counsel’s fundamentally nal trial unreliable. remaining a of the trial counsel during part absence critical failing to remove a trial is not throughout silent cost “so the accused that the likely prejudice circumstance litigating particular unjustified.” effect case is [its] Cronic, 2046, If at 466 U.S. 104 S.Ct. 80 L.Ed.2d otherwise, optional. of removal would not be were into of actual requires inquiry the existence Strickland “ Petitioner show that ‘that there is sub- prejudice. must unprofessional but for er- possibility stantial counsel’s ” rors, the proceeding the result of would have been different.’ (1999) State, 37, 80, v. Perry Md. A.2d State, 30, Oken 343 Md. 681 A.2d (quoting penalty, have 11. Had Petitioner received the death he would been procedural protection entitling a new deprived of an added him to automatic This is a case. with the of removal. not such (1996)). State, 416, 425-27, Bowers v. See 320 Md. 578 A.2d (1990). 734, 738-39
The Court of Special Appeals, considering Strickland, prong that Respondent concluded failed shoulder his burden to prejudice. establish Writing *14 for a panel, Judge divided Chief F. Joseph Murphy, Jr. explained: (1) case,
In this the sought State had not the death (2) penalty place, the first appellee’s right of removal would therefore have been by Maryland controlled Rule 4- 254(b)(2), the considered recommendation against filing a suggestion of removal would not have been deficient in any way, because the analysis by undertaken ap- “cost/benefit” pellee’s counsel was well within range of competent professional in a judgment non-capital case. appel- Because death, lee was not sentenced to it is clear that this is a case in which the “outcome determination” test favors the State rather than the petitioner. Prejudice is lacking therefore as (footnotes omitted). a matter of law. agree.
We We hold that Petitioner has not satisfied the prejudice prong of the Strickland analysis. He has not met his burden error, establish but for counsel’s there ais substantial possibility that outcome the trial would have been different. Petitioner did not receive the death penalty; his lawyer removal, considered the costs and benefits of and his lawyer professional conducted a and extensive voir dire exami- jurors. satisfied, nation of the selection, He was jury after that an impartial jury had been impaneled. The record is any devoid of suggesting evidence that Petitioner was denied a fair trial in Allegany sum, In County. simply Petitioner has adduced no evidence that proceeding was fundamentally unfair or unreliable.
We also need to focus purpose Maryland right.12 out, Constitutional As we pointed have provide is to premised upon The dissent is a belief that Petitioner was denied a right guaranteed by dissenting op. Constitution. See
315 in a a criminal case where safeguard procedural an additional Because death put be death. fact different, many additional provided courts have indeed in capital cases. safeguards procedural heightened Cir.1988), (11th 301 F.2d Dugger, case of Rembert The L.Ed.2d denied, S.Ct. rt. U.S. ce (1988), proceeding, a death is instructive. attempted degree murder charged with first Rembert during the Rembert jury Three times robbery. armed lesser of limitations for the to waive the statute attempted Under charge. degree offenses of the first murder included jury must law, in a first murder degree Florida murder, degree on the lesser offense second instructed on the lesser of limitations has run where the statute except accept 302 n. 2 trial court would Id. at offense. charges on the lesser and refused instruсt waiver limita statute of they applicable were barred because tions. *15 murder, degree with a felony was convicted of first
Rembert
sentence,
judge imposed.
of a
which the
recommendation
life
habeas
relief in the United States
sought
corpus
Rembert
Florida. The
Court for the Northern District of
District
of
denied
and the
States Court
district court
relief
United
id. at 301.
for the Eleventh Circuit affirmed. See
Appeals
accepting
that
court
in not
court held
the trial
erred
The
of
Id. at 303.
waiver of the statute
limitations.
Rembert’s
law on
notwithstanding
out
the state
pointed
The court
waiver,
“right
to lesser included
the effectiveness
is, however, a matter of
instructions in
cases
capital
offense
317,
never
at 666.
is not so.
as Petitioner
768 A.2d
This
Inasmuch
case,
not
under the
requested removal of
he was
denied a
his
only
Maryland
question
Constitution.
Petitioner raised before this
The
right to
whether he
denied his
effective assistance
Court is
to the
States Constitution.
under the Sixth Amendment
United
counsel
removal,
right of
had
for and had been denied his
If Petitioner
asked
posture
analysis would be
The case would then be in the
our
different.
IV,
violation,
§
law would
of an Article
apply,
the law of
assistance
counsel.
effective
federal constitutional law.” Id. at 302
Beck
(citing
v. Ala
bama,
(1980))
U.S.
S.Ct.
Concluding case, the case was no longer capital however, affirmed, the court denying Rembert a new trial. The court reasoned as follows: must, however,
The constitutional violation assessed light of the trial court’s imposition of a life sentence. When sentence, Rembert received a life the concern gave rise to the right was eliminated. danger of an unwarranted death sentence ended when given Rembert was life. The by constitutional error state judge this case failing to instruct concerning lesser included of- fenses was rendered harmless jury’s imposition of a life sentence. (footnote omitted).
Id. case, Similarly, the instant the error must be assessed light of the life imposed sentence and the purpose of the at issue. This longer case is no a capital at any retrial, one, were we to order Petitioner would not be entitled to the heightened procedural protections of a capital case. He would not be entitled to the benefit of the automatic removal but subject would be to the discretionary provision. Consequently, one more fair trial would not revive the lost chance.
We hold that the trial court was clearly erroneous in *16 granting Petitioner post-convictiоn relief. Petitioner is not entitled to a new trial.
JUDGMENT THE OF COURT OF SPECIAL APPEALS AFFIRMED. BE COSTS TO PAID BY PETITIONER.
Dissenting opinion by CATHELL, J., BELL, C.J., in which joins in.
CATHELL, Judge, dissenting. view, my in miscon- majority, The
I dissent. respectfully automatic of the the purpose strues of the Much what in death cases. penalty it, the we is, I not to issue as view relevant majority says, in removal a death I the of perceive resolve. should fundamental, of a if not a paramount, case to be penalty insuring a right of removal addressed The defendant. facts, and its denial is trial of the impartial fair and the constitutional fair trial because inappropriate denial a in view, its prejudice the existence of in assumes right, my removal, such a requested counsel Had Redman’s violation. it, presented been and the issue and the trial court denied found the I have no we would have appeal, direct doubt to in and fundamental constitute sufficiently to be However, majority’s posi- function of the primary itself. tion, me, of Strick- prong to use the second appears context, land, petitioner require in post-conviction a so, and, majority eliminates a prejudice, doing prove The fact that Constitution. right guaranteed by Maryland sentence, not a death petitioner in the at bar did receive incompetence, his change not counsel’s impact does or innocence. guilt he a fair аs to respect whether had than any jurisdiction to have his trial other He was entitled compartmentaliza- An over-rigid the one where it was held. analysis, cannot hide tion of case into Strickland pure this right to which fact has been a constitutional that he denied essence, holds that because majority, The he entitled. death, relatively immate- it is he did receive or innocence guilt a fair trial as to rial whether he was denied by the may publicity have been influenced by case, or its racial surrounding aspects. cases on federal circuit majority, relying, part, issues, imposition, the subsequent makes
addressing other considering when non-imposition penalty, one of the proceeding, in a conviction post matter incom- person, through factors when determinative (or otherwise, given reasoning of his own petence counsel *17 of the denied majority), right is the automatic guaranteed by Constitution. majority’s The is, thus, position deny result-driven. You can a constitutional if right life is but imposed, you deny cannot the same constitu- tional if is right imposed. majority The minimizes the right designed fact that the is to a fair trial in afford cases that qualify penalty. for the death majority by does so holding, basically, that when death is ultimately imposed, not prejudice. there is insufficient I believe the adverse passions, biases, publicity, community prejudices, combat, so, to if to apply equally, created not more guilt/innocence of phase the trial. The majority, hiding behind the prejudice prong of Strick- land, utterly fails to address the to petitioner he offense, innocent of the and was only convicted because he was forced to stand trial before a jury affected bias. If the of intensity of the focus the majority’s position was directed guilt/innocence stage of the majority’s reasoning would, I suggest, a mandate reversal of the Court of Special Appeals, and the reinstatement of the trial court’s of granting new trial petitioner. a
The majority, in its conclusion “Similarly, states: in the instant must error be assessed in light sentence and the purpose right at issue.” (Emphasis added.) This is no longer case capital any and at retrial, one, petitioner were we to order would not be entitled to the heightened protections of a procedural capital case. He would be entitled the benefit of the automatic would, however, removal but he have the to request removal, if he still deemed it under necessary, the discretion- ary removal provisions. new fair Consequently, a trial would now satisfy provisions. the constitutional
Whether petitioner receives a sentence death has no bеaring, and can have no bearing, on whether he has been prejudiced by being denied fair trial on the matter guilt through innocence his counsel’s failure inform him of his automatic to remove the majority case. The is quick to though fair violation has had a trial even assume he petitioner holds right, but fundamental of, later, that the denial of years proving impossible burden majority’s him a fair trial. The his denied rights fundamental But, reasoning. for its result-driven assumption convenient *18 done, a will serve life and the defendant when all said a that jury the being as a of convicted sentence result Ex- right to avoid. had absolute constitutional defendant an standard of an immutable Strickland cept engrafting for the believe, would, appel- I majority grant to this even not be the be all end lant trial. Strickland should a new in a post-conviction all even interpretation, of constitutional innocent, Moreover, a that the factor petitioner context. a sentence contemplate, life sufficiently does not majority a of death. clearly him as as does sentence prejudices just analysis, is not prong Even of the Strickland prejudice of sentence. type to the manner and limited the automatic removal purpose view that the of my It is potential is to of the Constitution address provisions often qualify of heinоus nature that especially bias cases offenses, of for of nature such penalty. the death Because affords the Constitution to a potential consequences, and their tried, or especially guilt be as inno- a defendant a cence, jurisdiction in he or she can receive fair in a which being a designed safeguard against trial. It is (which are often in a venue which local emotions tried qualify murder that often for types certain cases stronger higher might, run penalty) generally death would as to or inno- thus, guilt influence the trial improperly only been concerned Had the constitutional framers cence. sentencing have directed sentencing, they with could rather than judge jurisdiction, provide a in another before automatically request. upon trial to be removable entire amendment, the last constitutional deter- At the time of the did not penalty imposed a would be mination whether death Sentences, cases, jury. even even involve the expressly framers by judges. The generally were determined for, intended, that, clearly upon either provided request party, the entire trial be removed from the effect that local passions and biases a might upon have local Even jury. majority notes: purpose provision
The provide is to for a escapе method of from local community prejudice and to allow for case to in a locality, be tried different free from influence, the local community bias or arise in the originated. locale which the case majority, agrees incongruously with purpose, but apply declines to it. It is majority’s position that Redman was prejudiced he did because not receive the death penalty. adopting position, such a majority, in my view, pays insufficient deference to the purpose the fram- ers, which to guarantee complete free from local biases, especially including only phase that then involved jury, the guilt IV, innocence phase. Article section 8 was not designed solely protect against imposition the unfair *19 a sentence.
Judges, at the time of the constitutional amendments at sentences, issue case sub judice, imposed the including Then, now, death sentences. judges as presumed were to be perform able to their free functions of bias prejudice. and We held, I indicate, have as shall that party, now, a then and never had the automatic to right require the of removal the sentencing authority they never had the respect to — who, person at the time of the enactment of the constitu- tional provisions, imposed At sentence. all When it times was recreated, removal, created and the constitutional right of of necessity, was directed at trier of facts not stage, only at penalty stage or penalty proceedings. long
We have held that purpose of the provision was to prejudices avoid that might juries. influence At that time jury’s only function was to guilt determine or innocence. In a very early involving general removal provisions then extant, the Court described purpose provi- the sions, in part: saying his accused make party to enable the
Thus before defence it must have been that to which jury a from different sum- jury and a provision, without this submitted before from one aby moned officer. different trial, fair where impartial to obtain a and county to another fame, great is a endangered, be life, liberty may prominent one the most It is privilege. inestimable and, as before judiciary system, in the valuable features any other observed, permanent to be as as was intended of the Constitution.... part remedied, was, of, that and to be complained
... The evil compelled try prosecution a was accused party the presentment in which him in the Court against County found, he he could not there have although was satisfied extend over the whole a fair from who returned the the sheriff county, be entertained remedy was to county. The constitutional jury for that it was county, to another where the trial remove would, exist, which did but presumed prejudices those events, trial a summoned party all secure before .... aby different officer shall party that the accused
... The Constitution declares men jury, composed have a from before ... aby and summoned county, different sheriff. different (1828) Dashiell, (emphasis 6 H. J. 269-72 State v. & added). found, after the I have decided
In the first case amendment of the last constitutional ratification automatic (which, providing addition *20 cases, relating to capital provisions in also contained removal cases) Dashiell, we, citing reiterated the the of civil removal Colton, Hoyer provisions. general purposes attempt by January of 1876 involved Md. decided right of of the exercise the the to condition Legislature of certain sums. said then: upon payment We again, Then has to Legislature power prescribe cases, such of conditions the removal civil it has the same power prosecutions, in criminal and prisoner upon thus a his offense, trial for capital might of deprived to remove his although willing to make the oath pre- Constitution, although scribed and even the court owing that to be satisfied the existence of some local justice of feeling prejudice, required the ends that the county. should be tried another hardly Wе can that the of believe framers the Constitu- tion, citizen, so who considered this valuable to so to impartial justice, essential administration as to make in every the exercise it case depend upon the mere suggestion and affidavit of the party, ever intended to upon Legislature power confer its hamper exer- cise with conditions that might defeat the itself. Id. at 424.
We
much
the emphasis
reiterated
later that
was on the trial
stage, especially
jury trials,
the civil
case Greenberg v.
Dunn,
651, 654-655,
(1967).
245 Md.
227 A.2d
243-44
Poe,
Ed.)
Greenberg,
initially
we
noted
(Tiffany
Practice
Section where Poe
concluded
removal was
“wholly
Id.
jury
directed
trials.”
Judge Court, for the suggested should not be assumed that the people judges would elect so unfit or prejudiced as be unable to render impartial fair and judgments they in cases where are not connected with the parties personally otherwise Judge interested.... Miller continued: Cooke, (1875).
1. Cooke v.
323 in further, no the only language is there “But still in judges, it to the prejudice directs plainly clause which we it рower, or find but, right looking origin to trials, think, this, has jury to and we wholly directed in any from sight departed of or been lost never subject. on the legislative provisions preju- of local of the influence object get was to rid the case jury try to community in the from which dice a thus, to secure come, practicable, as far to and as was by jury.” trial impartial fair and (citation added) 654-55, 244 (emphasis Id. at 227 A.2d at omitted). of the on the function emphasis reinforced the
We have provide to fair afforded, by help that it was noting protection that while a by holding done juries. We have so and unbiased to to his removed another has have case a being from his has to have case removed he no county, would have tried judge over the same who presided State, In Johnson 258 Md. originating county. case in the 597, (1970), county from one A.2d a case was removed 267 152 The trial same circuit. county in a another circuit county, originating held the trial judge, who would have county. case in court trial the new When tried the county going his in the new Johnson learned Bowen) P. who would judge (Judge the same be tried before “vehemently and county, he originating have in the presided 158. Judge Id. at 267 A.2d at strenuously objected.” him and sentenced to death. One guilty found Johnson Bowen IV, Art. Section to the was whether question Court presented Constitution, the defendant absо- gave 8 of the judge. his tried before different lute to have Dashiell, that the holding our old again we cited once There party accused make was to “enable the purpose ... a jury jury his before before different defence Id. at A.2d 267 at by a officer.” summoned different Cooke, get he was to object part quoting, “[f ] We cited community local in the rid from influence of come. ...” Id. try the case was to which the 324 at 154. then A.2d We cited Chemical & Fertiliz Chappell Co.,
er
Sulphur
Co. v.
Mines
(identifying
Md.
as an
case),
(1897),
474, 19
unreported
36 A.
aff'd,
U.S.
S.Ct.
(1899),
The of the cases have cited must be in they viewed terms of times which All the were decided. most, early all, the cases if were decided at a time when not sentences, cases, even death penalty by were decided judges, by juries. right not The of removal was not directed at sentencing The authorities. removal capital designed trials, cases was impartial to ensure fair and as to guilt innocence, juries or before potential free the for bias that a jury could contaminate county where crime occurred. The is to a fair ensure trial on the matter of or guilt innocence. The fact case capital merely is a makes the of removal automatic, it does not limit the applicability right by imposed. majority’s sentence The if the reasoning that not penalty imposed, have you not been denied the constitu- tional right, have not fair been denied a have been prejudiced, belies the fundamental nature with which this IV, Court always has attributed Article Section 8 of the Maryland Constitution.
The majority states that the Court has no power, even were to remand the trial to direct that it be removed to another county, petitioner because the no longer may be subjected to the death penalty.2 majority The states that if we attempted cause a removal in subsequent case “we would be broadening right, something we are without the to do.” authority While we do not the authority have to direct State, 225, 238-39, (1988) 2. See Harris 312 Md. 539 A.2d 643-44 remand, (stating on cannot exceed that to which a trial). original defendant was sentenced remand, can direct that we an automatic because circumstances present trial under have a fair he now circumstances. the former fair trial under not have a he did I prejudice, in the first instance of a fair trial denial a new trial with whatever warranting suggest, would of such a new trial. at the time that exist provisions the status misconstrues majority I believe the Again, is, or issue and determinаtive primary, before us. The issue the actions or be, was forced petitioner should whether incom- counsel, majority concedes was of his who the inactions issue, jurisdiction in a this to be tried at least as to petent guilt a fair trial as to get could not he believed he where when, in he had an auto- fact jury, from the local innocence in that or sentenced right not to be tried matic constitutional deny him the new trial our function to county. It is not now to cause seeks, power that we also lack grounds on the he removed, original- he states he automatically as the trial to be issue, framed, whether we can is not fairly wanted. The ly *23 to, but right him had an automatic formerly now what he give denied, was due to a fair trial right his constitutional whether rights respect petitioner’s of counsel in to incompetency to the now to what whether he is entitled of removal and right has the to a trial where he requires, Constitution now right constitutional removal. Petitioner’s discretionary seek him, incom- through the to an automatic removal was denied life, counsel, to a before he was sentenced petence of his to, him retroactively, deny now majority sentence the relies But, at new trial analysis. any a right, under Strickland have a constitutional grant, would still petitioner we would trial, to remove his case for request to the lower court so, depend- to court would have the discretion do and the trial at that time. the circumstances ing upon to request counsel declined important, petitioner’s More because of the discretionary to be a what he believed was intended to right very fear the automatic which, petition- A because of fear publicity. address —adverse in was the first right, baseless er’s automatic counsel, that not petitioner’s record reflects instance. The removal, realizing petitioner that had an automatic of his not strategic discretionary based decision to seek a remov- al, at least in on his belief that part, very seeking removal, denied, which he felt would create itself which, if publicity county, additional the removal was denied, could be adverse to the interests of That petitioner. admission, alone, of the fear local bias at the time of the original is sufficient this constitutional context possibility evidence the Defense counsel prejudice. was so being fearful of denied a fair and unbiased for defendant made, if a for removal request he did not make such a me, sufficient, request. To that is evidence of local prejudice itself, of Strickland. prong meet even the second No adverse risks to petitioner sought existed had he removal, post as the conviction trial court found he did. view, Strickland my even analysis, under that constituted prejudice petitioner, actual even is not assumed is, reason, when a petitioner effectively whatever denied his constitutional to an automatic removal. With the majority’s position, petitioner having finds himself been possi- bly denied a fair trial because he was denied a constitutional protect against himself untoward publicity —because unjustifiably his counsel was publicity. fearful of And the majority finds, ratifies what has happened, because it or find, innocence, even guilt could that he had fair trial on but he because did not receive the death penalty and cannot proffer now some new of prejudice. evidence Such an inter- pretation of the constitutional right, my opinion, simply wrong. footnote,
Additionally, an extensive majority perfunc- error, dismisses the torily concept structural saying eggs Arizona petitioner is “the inappropriately scrambling *24 v. Fulminante. Fulminante is a refinement of the federal Strickland is an analysis; harmless-error perfor- evaluation of mance and an assessment of prejudice.” majority The thus dismisses than anything other its hidebound devotion to a Strickland This Court’s utilization of Strickland analysis. view, too far. Strickland did not principles, my goes in They survive State Constitutions. the Federal and supplant in principles in Strickland overindulgence The Strickland. case, constitu- is to assess majority this the manner on basis of ultimate principles primarily tional and rights issues, evidentiary appropriate That be results. instructions, that occur within matters for issues as to even basic themselves, rights, such as the but as basic trials forum potentially to be tried right not constitutional not, I feelings, suggest, it is local and local publicity biased course. today, judges may takes trial position majority With qualify- deny can automatic removal they well feel that motion, cases,- sentencing, deny and ing and after verdict death, is not sentenced to trial in cases where a defendant new trial, remove the for a new and then grant the motion is to death. While one where a defendant sentenced more deference judges pay that trial will supposes, hopes, majority, they does the requirement to the constitutional than appellate for the need not under its view. What is sauce gander. be sauce for the trial court goose may well it, I of a death As see county not to tried in a is not a trial particular trial, and, of such a precedes improper event. It denial otherwise, incompetence, counsel’s right, through defense itself; trial it affects the predаting a structural defect rather than sim- proceeds, “framework within which the process an in the trial itself.” ply error of “structural er- majority examples several proffers instructions, racial discrimi- ror”: defective reasonable doubt public denial of a total grand jury compositions, nation in counsel, holds that the impartial judge, but deprivation to be tried of an absolute constitutional deprivation of an possibility impartial to avoid the county, another order I In modern agree. not structural error. cannot jury, compute. another cyber language, simply does where structur- majority of its cites portion opinion, counsel was prejudice presumed al where error found *25 courtroom a during stage absent from the critical In the proceedings. present the assistance counsel absent, effectively through ignorance, during was a critical Yet, stage, period majority the removal of the trial. treats differently. this case majority
At another states failure to remove a point, defendant____If likely case is not “so to it were otherwise, the of removal would not be Such right optional.” simply logic. a statement is in law or “Other- unsupported in actually prevalent wise” is constitutional law. The constitu- trial, you, tional to a to have an jury attorney represent trial, all, tо a and to if not speedy many, rights, or optional rights. majority’s position are waivable on this I point completely unsupportable. “otherwise” is do not if majority’s position believe the would be same a defen- improperly dant was denied the to a trial or to counsel, majority if the that a later even determined sentenc- ing “advantageous.” majority holding other words the is that the fairness of a
trial, entitled, the fair trial to which a defendant is in depends, context, penalty post-conviction primarily a death upon In my logically sentence which he receives. view that is any indefensible in context. The constitutional right affords (not just to a person who sentenced who is death) eventually sentenced to the automatic right, upon re- tried, quest, including to be as to or guilt be tried innocence, is, it, county. It I another as see structural.
In my view the Constitution’s two level removal scheme requires non-capital criminal defendant to establish and, potential improper prejudice particular jurisdiction, denied, thereafter, is suggestion would appeal, require guilt establish that his trial on unfairly by publicity, innocence was influenced etc. The majority, to a respect defendant who had automatic to removal at the time his with its decision today requires either such a defendant to bear the same burden on instance if he or, right to do so the first rejects any appeal, illogical. It simply sentenced death. cases, as I view the constitutional removal In death for a death entirety, required it is not their provisions or actual prove any potential to establish or penalty defendant *26 a appeal or on after before trial or at prejudice either majority conviction, in as the post-conviction proceedings, or arrangement, especially now The constitutional requires. considered, older cases are contemporaneous, when the more in purposes, prejudice for removal death contemplates is, right assumed. The stage cases at the trial is be penalty therefore, framework of the structural. It relates to the Otherwise, fram- why it will tried. would the trial —where be automatic in the first instance? right ers have created the seek right potential prejudice The to establish the and court, in trial is available removal at the discretion prong provisions. other of the Constitution’s removal in to the majority’s holding, prejudice, respect With the case, an a right depends, denial of automatic to remove i.e., important part, subsequent phase, on factors to the trial sentence, of a for there to imposition the actual death order prejudice phase. analysis be at the trial This result-driven context, post-conviction makes no even in simply any sense proceedings. Court, if illogical
The decision of the carried to its conclu- sion, potential judicially away right has the do with a If, in by Maryland penal- death guaranteed Constitution. cases, (through where a is denied counsel incom- ty otherwise) his to removal at the petence or assumed, level, trial is not then the can be and actually is not initially ignored long imposed, and so as death ignored. can be completely fair- majority, The of its stated concerns about irrespective stage, basically ness at the trial limits its consideration to petitioner penalty, whether the received the death when the appropriate analysis framework for the constitutional includes forced on him the least jury by incompetence(at whether area)of improperly prejudiced against in this his counsel was publicity, rendering him local its passions exists, an automatic constitutional verdicts. Where denial, I is structural error and respectfully suggest, would instances, In such the defendant should prejudice. assumes preju- The establishment of prejudice. not have to establish suggest I would the circumstances impossibility, dice is —in today, а defendant holding here With the Court’s present. county tried in a can be forced verdict, jury rendering will be unfair in its where he believes if jury improperly prejudiced, and where the biased death, him to ultimately not sentence judge does relief, he he receives no but he is sentenced to death and must be retried. prejudiced “Trial ... majority notes: counsel’s failure does fundamentally criminal
necessarily resulting render ignores actually unfair or unreliable.” The statement what to, occurred in this case. Petitioner’s counsel recommended *27 for, to or decided that he should not seek have the petitioner, it, removed, if because the trial court declined remove generate the case further very attempt might the remove majority concedes that counsel was publicity. adverse but, incompetent, incompetence, fails to see counsel’s led might to an irrational fear that additional result negli- from an to remove. In the counsel’s attempt process, gence petitioner’s and led to a denial of constitu- incompetence rights. tional State, 189, (1974),3 271 Md. 524 a
Johnson A.2d Court, at by majority, case relied on arrived this courts, time, at in a significantly and the lower a different It, view, little very posture. my supplies authority different for position by majority. taken
First, case, facing in that Johnson wаs and assault rape charges, charges. provided not murder The statute then Johnson, Hereafter, referring when I refer to I am to this Johnson one Md. not the found A.2d 152. Howev- upon rape was a conviction. possible penalty death court, er, time removal issue was before the unconstitution- penalty rape death cases had been declared Johnson, the trial court denied his by al this Court. after discretion, suggestion for removal directed the court’s argued that he was entitled to an automatic relating of the constitutional to the same by provisions reason cases, penalty even the death had penalty though death cases, the statute rape been ruled unconstitutional because penalty provisions, formerly still or that contained contained them. The lower court held that because the death trial, by the time of Johnson’s had been held unconsti- penalty, tutional, subjected to it even if he was he could not that point, convicted at trial. At Johnson had been neither tried nor sentenced.
An immediate was taken to the Court of appeal Special It Appeals. agreed granted with the trial court. We then was, that, where, to, holding essentially, prior certiorari. Our person subject or at the time is not to the death convicted, then he is not cоvered constitution- al to automatic provision relating removals. Johnson, judice, majority, quoting the case sub says:
Md. at 315 A.2d at is no basis “[T]here language relating of the constitutional to removal for provision inferring any purpose providing pro- other than an additional in a safeguard cedural case where criminal defendant I put in fact be to death.” with the respectfully disagree majority’s interpretation application Johnson First, facts of the case at bar. Johnson was completely Second, factually procedurally dissimilar. the Johnson Court, statement, when it made that to John- responding IV, son’s that the of Art. theory purpose Section was to *28 classify authorize the death and to for proce- crimes dural such as the of removal or to purposes right right bail, the automatic and therefore should impact unconstitutionality survive the of the declared of cer- relating tain death to such as penalty provisions rape, crimes longer for which he no be could sentenced death. theory. purpose The rejected Johnson’s
This Court case, to hold in this was by majority statement relied only provision of the constitutional aspect that the procedural “might put fact be [sentenced] where a defendant applied saying was not that the time of triаl. The Court death” at the a defendant at where provision apply constitutional did death, was not sentenced to but constitutionally fails to make in the case at bar majority so sentenced. The balance of the from Johnson. connections Johnson, was: holding operative criminal has IV, 8,§ that a merely provides Art. charged with offense an absolute of the decisions death.” As a result “punishable by intent and assault with Bartholomey, rape Furman and by death” under simply “punishable are not offenses rape asking phrase us to view the law. The defendant existing “formerly if it by pun- death” as were worded “punishable We by imprisonment.” life by “punishable ishable death” a constitutional authority provision. have no such to re-write 193-94, at 527. Id. at 315 A.2d All parties is no such dispute.
In the case there present tried, by was covered that at the time he was Redman agree been sentenced to and could have provision subjected to a fair or yet Johnson had not been death. subjected to a sentence of unfair could not have been already In Redman has been tried present death. occurred, has been county in the where the murder sentenced, could have been sentenced death. I have no law in Johnson. The older cases changed
We
discussed,
holding
intact. Our limited
supra, we left
was nоt
with an
charged
“As the defendant Johnson
simply:
death,
he had no absolute
punishable by
offense
IV,
8,§
of the Constitution.”
Id. at
removal under Art.
view,
majority misinterprets
my
I would reverse Special the Court of Appeals, reinstate the court, order of the trial and remand the case for a new trial in the Circuit Court. Judge joins
Chief Bell this dissent.
Court March