*1 548 A.2d Maryland STATE Eugene Eugene Sherman Colvin-El. S. COLVIN a/k/a Term, 88, Sept. No. 1986. Appeals Maryland.
Court Oct. *3 Rosenblatt, Richard (J. B. Asst. Atty. Joseph Gen. Cur- ran, Jr., Gen., brief), Atty. Baltimore, on the appellant. for Morris, (Bert
John H. Jr. Venable, Black and Baetjer & Howard, brief), Baltimore, on the appellee. for
Argued MURPHY, C.J., ELDRIDGE, before COLE, RODOWSKY, McAULIFFE, ADKINS and *4 BLACKWELL, JJ.
RODOWSKY, Judge.
In August Eugene Colvin, 1981 Sherman a/k/a Eugene (Colvin-El) Sherman Colvin-El was found of guilty first murder, degree a robbery with deadly weapon daytime and breaking and entering by Anne Arundel County jury. That same jury sentenced Colvin-El to death. We affirmed on direct State, 88, review. 953, Colvin v. 299 Md. 472 A.2d
5
873,
226,
denied,
Colvin-El’s counsel, trial is of his trial new the claimed ineffectiveness private attorney assigned by W. (Payne), Robert Payne in Office. this contention reject the Public Defender’s We I. In II other issues which part part reject we address and part III go guilt explain why innocence. We vacated, to the subject Colvin-El’s current death sentence right another death sentence. State’s to seek
I A constitutionally The claims of applied standards representation deficient were announced Strickland v. 466 U.S. S.Ct. L.Ed.2d Washington, (1984). painstakingly analyzed by Those standards were Orth, State, v. Judge writing for this Court Harris 685, 695-701, (1985). A.2d Md. 1079-82 standards, Harris, were distilled Strickland reviewed Tichnell, Judge for State Murphy Chief this Court *5 6 428, 441-42, 1179, 1185-86,
306 denied, Md. 509 A.2d cert. 995, (1986), 93 598, 479 107 S.Ct. L.Ed.2d 598 saying: U.S. Strickland, A in i.e., test was articulated that two-part a claim establish of ineffective assistance of counsel the (1) must that performance defendant show both counsel’s (2) and performance was deficient that deficient preju- diced defense. [Citations omitted.] of prejudice component “requires Strickland show- ing counsel’s so to deprive that errors were serious as trial, defendant a fair a trial whose is result reliable.” 687, at at 104 Accordingly, S.Ct. we U.S.] [466 Harris, 700, supra, 1074, said 303 Md. at A.2d 496 Strickland, 693, 2068, at citing 466 U.S. at it is S.Ct. enough for the defendant merely “to show that the errors had some on the conceivable outcome effect or that proceeding, impaired presentation the errors (Emphasis original.) the defense.” The burden is the defendant “that there is a establish reasonable that, errors, probability unprofessional but for counsel’s of the proceeding result would have different.” 694, Strickland, 466 U.S. at S.Ct. at 2068. Further- “ more, probability a reasonable ‘a suffi- probability ” cient to undermine confidence the outcome.’ Id. The Supreme component Court has illustrated the first Kemp, in Burger Strickland v. 483 U.S. 107 S.Ct. (1987), 97 L.Ed.2d component the second Morrison, 477 U.S. Kimmelman 106 S.Ct. (1986). L.Ed.2d 305 was a corpus federal habeas Burger review of a sentence. Georgia death At the time of the murder the defendant seventeen His years was old. effec- I.Q. tive 82 and he was had no criminal record known to the prosecutors. Defense counsel did not present the sen- hearing tencing any proof designed mitigating establish principal circumstances. Defense counsel’s reason was a concern, supported by psychological testing, the de- fendant would have no remorse might shown A bragged about crime. of the Court majority held “that counsel’s decision not to investiga- mount an all-out background mitigat- search of into tion defendant’s] [the supported reasonable profession- ing circumstances *6 at-, al judgment.” U.S. S.Ct. at 3126. element the prejudice discussed the where
Kimmelman was defense counsel’s allegation ineffectiveness principal under New move, permitted the time within failure to evidence, seized suppress illegally to procedure, Jersey’s a on the victim had a from bed sheet specifically, Brennan, Court, through The Justice raped. allegedly been performance, that, objectively to deficient addition held his Amendment prove that Fourth defendant must also “the probabili- that there is a reasonable is meritorious and claim the been different absent verdict that the would ty preju- actual in order to demonstrate excludable evidence at Because at 106 S.Ct. dice.” 477 U.S. the Strick- courts in Kimmelman had not utilized lower remanded evaluating the Court prejudice, to land approach for that determination. in mind turn to we principles these constitutional
With through right to counsel claim of denial of Colvin-El’s re- Understanding that claim representation. ineffective of the facts. quires a review
B 1:00 and 9, 1980, approximately between September On afternoon, Buchman, age was murdered in the Lena 2:30 in the daughter’s at 6806 Cherokee Drive in her home Buchman, Mrs. a County. of Baltimore Pikesville section Florida, morning to flown to Baltimore resident of had Both Mr. and Mrs. daughter, Majorie her Sorrell. visit Mrs. work, house, murder at when the Sorrell were out grand- her last seen alive Mrs. Buchman was occurred. Sorrell, her alone the house Ms. who left daughter, Susan p.m. 1:00 approximately at white predominately is street quiet Drive
Cherokee is black family individual homes. neighborhood of of the immediately No. south Hayes household at Sorrells on the side west of Cherokee Drive. The Sorrells’ is property improved by a split level residence. Its main entrance, ground level, on the street side at onto opens living entrance hall. The room is to the left of one enter- ing, the kitchen in the rear the ground level, straight door, on from the front a dining rear, area is on the south side. Between entrance hall and are kitchen two stairs, sets of to one bedroom area upper, of the house lower, and the other to the basement area. There is a rear door in the at ground kitchen roughly level. On the exteri- house, or of the level, rear of ground below is a stairwell hinged door basement. That door is open into the basement. approximately
At 2:30 p.m. day murder, Mrs. Nanette Flax returned to her home 6808 Cherokee *7 the Drive and noticed dog running Sorrells’ loose unsu- and pervised, a unusual most occurrence. She retrieved the dog, it its hooked leash to wire and run went to the main entrance of the house Sorrells’ to relate those events to Getting knock, whomever home. was no response her opened Mrs. Flax the unlocked screen door stepped and solid, the through doorway door, of the wooden front was standing open. glanced She and down saw body lying pool in a of blood at the foot of the stairs leading the bedroom area. Buchman had
Mrs. been stabbed or slashed awith knife twenty-eight the times. Some of cuts cuts were defensive on the hands. Blood was splattered up the but not stairway as far as the upper knife, end of the stairs. The one from kitchen, the Sorrells’ was found the foot of the basement stairs. The master had jewel- bedroom been ransacked and ry taken.
Glass the exterior basement door had been broken police the found of the on pieces glass lying the of the steps exterior stairwell. That door is wood from its bottom to a the slightly wide, level above Above the knob. wood are rectangular glass panes, one pane above another. The immediately above the door knob had been broken. The knob side of glass on the impact of the center door while facing to one the is the left side door which standing in the basement. officer police Sturgeon, experienced an Darrell
Detective for technician, finger- crime dusted the scene and crime lab from the fingerprints latent He twelve obtained prints. he whether the that time did not know glass. At pieces and, identifiable, they if whose identifiable were prints were. for door was covered of the basement
The interior side of the door top and from the panes of the window width by a curtain one from the floor foot approximately to a level In addition to a lock material. print of a floral made door, one at chain locks on the there were two door knob higher. feet roughly two and the other level knob ironing kept used this door rarely basement Sorrells side of leaning against knob position in folded board murder, Mrs. morning day the door. On the and the folded door had the basement Sorrell observed as usual. Ms. Susan leaning against it ironing board was that, stopped by she had at trial when Sorrell also testified Buchman, basement door was for Mrs. lunch with it. nothing unusual about locked and chained and there was around the door of the basement area photographs Police p.m. day door at 4:20 on the facing the interior of the taken ironing lying murder the folded board show door and show the two in front of the knob side floor *8 frame, door from the night hanging for the locks chains the door. unconnected to of Sturgeon joint report J. Biltz filed a
Detectives included investigation report at the crime scene. their the observations door was on the knob of the lock basement] [exterior
[t]he approx. but opened, door could be not locked and the on storage white metal cabinet 4 inches as there was a entry of signs No other forced the inside of the door. could found.
The same of the photographs basement area near door the also show storage a white metal cabinet front of the hinged side of door standing height the to a slightly above that of the door knob. The back of the cabinet is flush a against wall is perpendicular which to the exterior wall the door set. The front of the metal cabinet the extends beyond hinged edge of the a point door to approximately way half across the of width the door. On opposite the side the door from storage the cabinet and extending perpendicularly from the exterior were wall a clothes a dryer and clothes washer. The distance between two
those machines and the storage is only cabinet several inches more than the width of ironing the board.
A fact finder could find that one attempting to open the basement door from the outside would see the storage of the cabinet because curtain over of the windows Furthermore, door. even if all of the locks on the door had unlocked, been a fact finder could conclude that the door not open would more than four inches described Det. Sturgeon’s report because the door would strike the cabinet and the cabinet would not move because it against butts A that, wall. fact finder could also believe had the folded ironing board leaning against the knob side of the door described, its customary position, anyone attempting enter the by opening basement the door would knock the ironing folded floor. board part As on investigation day murder, of the Officer J.K. of the Roger County Baltimore Police conduct- inquiries neighborhood ed in the and made a report written Ms. results. Wendy Janofsky 6817 Cherokee said Drive that at approximately p.m. 2:05 she had observed four in the 6800 persons block Cherokee Drive. There were walking two black males north front her house. There was a black riding bicycle Cherokee, male a northbound turned in southerly who and left direction. She also saw white female at door of 6812 Cherokee who “appeared to be collecting doing survey.” also Roger Officer Hayes, interviewed Clarence neighbor Sorrells’ *9 a baby his black with bicycle Mr. identified Hayes south. bearing multi-colored long pole the rear and with on seat in the had found bicycle That been top. at the streamers report Mr. Roger’s to driveway. According Off. Sorrells’ Drive at he had left 6804 stated that Cherokee Hayes that “the bike was and that at time p.m. 2:15 approximately tire he patio to with a flat & next backyard in his [was] if off or not.” chain was not sure had been during robbery The taken jewelry Sorrells’ dated June appraisal in a written recently appraised descriptions. appraiser The set forth detailed The pieces. written photographed appraised had also to the were turned over photographs and the appraisal watch “Elgin, gold-filled pocket police. One item was (No. Elgin National Watch Co. movement safety pinion with 892298).” 13198679, case No. 11, 1980, Roeder of report September
In Detective he day recorded that had that County the Baltimore Police photograph custody and take gone to the home Sorrell evidence, a a bracelet which had been ring additional driveway. found the Sorrells’ lying on All of these had furnished to Colvin-El’s reports open discovery. file attorney, Payne, 8, 1981, home arrested at his January On Colvin-El was the Balti- City by at 608 North Brice Street Baltimore City charging breaking more Police on a warrant 2, 1980, in the Roland Park section of entering December person from his time was a City. Seized that Baltimore age Maryland majority Motor Vehicle Administration Eugene in the name of Sher- card No. C415-237-765-777 of 615 Brice That address seems man Colvin Street. home sister where he lived have been the of Colvin-El’s across acquiring from time the house prior time to 3, 1985, Hayes post hearing At on June Mr. testified conviction day did not a flat tire when he left home on the the bike driveway later the Sorrell with a murder. bike was found flat tire. *10 street at 608 North Brice. presented That card had been person identifying Eugene himself as who had Colvin sold in the property taken Roland Park a pawn- offense at broker, Metro Brokers Ltd. 13, 1981, January
On Det. Michael Parks of the Baltimore County Police from fingers complete rolled Colvin-El’s a set of ink fingerprints onto cards. That same day the rolled prints were to the fingerprints matched latent on the found glass from the door Sorrell basement home. The Baltimore County immediately Police obtained and executed charging arrest warrant Colvin-El with the Buchman murder. pawnbroker
Each Maryland required is to file certain containing records information specified with the primary agency law enforcement for county pawn- which the See (1957, broker licensed. Md.Code Art. Repl.Vol.), January On Det. Parks those reviewed § records filed with the Baltimore Police. City revealed They person that identifying Eugene a himself as Colvin-El had pawned items at Northwestern Company Pennsyl- Loan on vania Avenue in September 17, Baltimore on City 1980. At Northwestern Company Loan Det. Parks that one found item in the name of pawned eight after the days gold murder was a pocket description watch which fit the of A pocket watch taken from the Sorrell home. man’s Timex watch pawned was also day separate that transaction in the name of Colvin-El. Although initially among Sorrells, included the stolen listed property by the Mrs. Sorrell advised the police that watch similar to the missing. Timex was also Det. took Parks of both custody watches and they were introduced into at trial. evidence jury
Colvin-El elected a trial both guilt for or innocence and sentencing. guilt At the on hearing innocence Det. Sturgeon point testified that the entry of into the Sorrell home was the outside basement Payne door. did not cross- examine about the of point entry. Colvin-El not to chose and testify Payne presented no of kind at proof any guilt stage. or innocence murder, degree first guilty found Colvin-El jury house- deadly weapon daytime and with a robbery interrogatories submitted In
breaking. response special in the the verdict was answered event to the jury murder, replied first degree guilty on the premeditation based murder verdict was each of with killing’s having committed connection housebreaking. daytime deadly weapon with robbery hearing neighbors testified At post conviction their interview state- police accordance with generally Wendy Janofsky’s basically Ms. statement was ments and *11 by her mother. corroborated principally rests appeal
On this conviction Colvin-El post argument on the of counsel absence his ineffectiveness information con- Payne of the above-described any by use Sturgeon Det. not cross- police reports. tained in the was that the the concerning apparent impossibility examined Also, from the fact point door the of entry. basement was jewelry items the stolen on that discovered two police the murder, contended it is driveway days two after strong developed sufficiently a that should have Payne generate to a suggestion that found the watches Colvin-El he was the actual thief. Colvin- reasonable doubt whether Hayes’s El that of the use of further submits evidence in black males presence bike and of the of unknown period when the during 6800 block of Cherokee Drive generate to a should have been utilized murder occurred all. was involved at reasonable whether Colvin-El doubt Further, (1957, Repl.Vol., 1981 because Md.Code Cum. Supp.), 413(e)(1) requires Art. that defendant be § in the degree principal murder in the first as guilty of eligible first for the death degree penalty, order be neighbors that from Colvin-El asserts evidence available defense counsel to create at should have been utilized person least doubt Colvin-El was the a reasonable whether Mrs. actually who stabbed Buchman.2
C None of foregoing demonstrates the reasonable that probability would Colvin-El found innocent degree of first murder and of the felonies if underlying had Payne specified utilized the information for cross-exam First, ination evidence defense case. none of this morning Monday quarterbacking any casts doubt present fact was at the basement door home after Ms. Sorrell Susan Sorrell had left before body expert Mrs. Buchman’s was found. The State’s wit ness on Det. fingerprints Cpl. was Sims. At the time James trial, Dept. Cpl. had been fingerprint Sims examiner County the Baltimore crime for over lab five years 258,000 21,000 had checked about fingerprints in cases. Two right thumbprints latent and two latent index right fingerprints which had been taken from the glass matched the ink rolled from fingerprints taken Colvin-El. With respect one of the match made in thumbprints the particulars. In forty-eight points Sim’s opinion, only seven print of identification in one ordinarily are sufficient. He prints considered latent excellent” “absolutely respect with to detail. He there said has never been a reported case anywhere the world which different two Thus, had the people fingerprints. same it is fanciful to *12 does, as suggest, Colvin-El that should Payne have caused the to be the jury uncertain whether Colvin-El was thief because he might might have found the jewelry it from true received the thief sometime after the crime. away fingerprints.3 That does not the explain 2. all Unless otherwise indicated references to Art. are §§ 412-413 Code, establishing penalty proce- to the above-cited the death the and offense, imposition subject dure for its at the time trial of the and sentencing. Similarly prejudice Payne’s alleged 3. there could no from deficien- cy failing request and obtain an instruction could that the only goods. find that Colvin-El was receiver stolen in his suggested testimony explanation, only Colvin-El’s the by he “framed” that was sentencing phase, was the record, however, that reveals conviction post The police. finger- trial, independent an engaged had prior to Payne, fingerprint evidence. the State’s expert to review print to be “somewhat fingerprints expert found Colvin-El’s That “easy identify.” unique” and addition, In there is no that shared in the doubt Colvin-El loot. The from Elgin by watch recovered Detective Parks No. Company Northwestern Loan bore movement Kessler, case the pawnbroker and No. Armond transaction, the testified produced original who handled and person pawned records which showed had that that the who 17, 1980, watch on himself as September Eugene identified pawnbroker’s of 615 Brice The Street. retained evidencing of document the copy the transaction contains his handwriting contemporaneous proofs record of the of person presented identification furnished who by One was proof age watch. Motor Vehicle Administration of C415-237-765-777, majority bearing card No. same card name, Brice picture Colvin-El’s address Street had from person been taken Colvin-El’s when he was arrested City proof Baltimore Police. The second presented pawnbroker to the was City Depart- Baltimore of ment Social A Services identification card No. C-032679. Department witness from the of Services Social testified that her agency assigned Eugene had that number Sher- man Colvin-El of 608 Brice The pawnbroker North Street. also testified that the person who presented pocket picture age watch matched the on the majority card and that the signature on person the transaction docu- age signature majority card. ment matched hearing post at the conviction developed information probability that Colvin-El generate any not reasonable does If the murder. accomplice not at least entry, attempted a point basement door was testified, Sturgeon Det. entry of actual point *13 16
discrepancy does not undermine the fact that someone house, entered the murdered Mrs. Buchman and stole jewel- ry and other property. There is no reasonable probability Payne could anything have done to alter the fundamen- tal fact that Colvin-El present and at least aiding and abetting the daytime housebreaking and robbery.
To test whether Colvin-El’s claim of ineffective rep
resentation can satisfy Strickland’s prejudice requirement
respect
verdict,
with
to the guilty
assume,
we shall
arguen
do, that
representation
effective
probably would have
caused the
to conclude that one or
persons,
more
Colvin-El,
addition
also participated in the housebreaking
and robbery and that
representation
effective
probably
would have caused the jury
reasonably
doubt whether
Colvin-El was the actual wielder of the knife. On that
assumption, Colvin-El is nevertheless
guilty murder in
the first degree.
30(b)
Under
person,
aiders,
“[a]ny
his
§
counsellors,
abettors and
who shall be convicted of the
crime of breaking
dwelling
house
the daytime with
steal,
intent ...
take or carry away
personal
goods of
another of any
therefrom,
value
shall
guilty
a felo
ny----” Under
410
murder which
committed in
§
“[a]ll
[is]
perpetration of,
or attempt to perpetrate, any ...
rob
bery ... or daytime housebreaking
30(b)”
as defined in
is
§
murder
degree.
first
Even if a co-felon stabbed Mrs.
Buchman, Colvin-El committed murder in the first degree
at least as an accomplice or principal in the
degree.
second
State,
33,
See Stevens v.
232
73,
Md.
192
denied,
A.2d
cert0
886,
U.S.
(1963);
S.Ct.
L.Ed.2d 115
Boblit v.
State,
220 Md.
(1959),
A.2d 434
second appeal
dismissed
State,
sub nom. Brady
v.
222 Md.
160 A.2d
(1960);
State,
Shockley
218 Md.
Any prejudice from the claimed ineffectiveness was necessarily limited to the sentencing phase of the original trial. This prejudice, if any, cured by vacating the death
17 sentencing proceeding remanding for a new sentence and III part explained mandate for the reasons we which its original the trial based jury fact the at hereof. The degree premedita first on of murder the guilty of verdict murder, any result in does not tion, felony as as on well sentencing hearing. new by is not cured the which prejudice is immaterial finding the of premeditation This is because original The sentencing hearing. the of new the context of the for the information finding was premeditation sentencing on the original trial for use at the judge guilty. found felonies of which Colvin-El was underlying interrog a special the answer having jury The purpose in the guilty of murder whether a verdict atory defining or felony murder premeditation, is based on degree first occur sentencing which would improper the both to avoid and the on murder felony if its verdict the based merged felony a sentence for impose judge were first sentence for the jury imposed addition to court 709, 283 393 A.2d v. Md. degree Frye, murder. See State 476, 378 A.2d State, Md.App. 37 (1978), 1372 v. aff'g Frye (1977).4 155 substantially does by claimed Colvin-El prejudice first degree. in the principal was a
affect whether Colvin-El is, however, decided at the new That an issue which will be hearing. 4-343(e), sentencing See Rule “FIND- Maryland form, INGS AND SENTENCING DETERMINATION” 1, Mrs. Question l.5 Whether Colvin-El Section stabbed sentence, case, jury imposed In after the the death the instant 4. State, underlying White judge felonies. In did not sentence on 1062, denied, (1984), S.Ct. cert. 470 U.S. 105 300 Md. A.2d (1985), we that the effect of a somewhat L.Ed.2d 837 held suspend generally disposition sentence convic similar was specific imposed. tions to which sentence was as no sentencing authority question 4-343 first which the 5. Under Rule sentencing proceeding was a answers is whether defendant “[t]he special interrog- principal degree in the first to the murder.” This part atory capital sentencing added to cases form adopted unanimously by Rule this revisions of 4-343 were August July effective Court on 1987 and which became Buchman to death will be decided the sentencing authori ty on the basis of the record made at the sentencing new State, See Tichnell v. hearing. 43, 63, 290 Md. 427 A.2d 991, 1001 (1981) (Tichnell II). In I, Colvin-El we sustained sufficiency premeditation evidence of upon based the multiple stab wounds and the evidence that the murder er carried the knife from the kitchen to the foot of the upstairs where, stairway blood, based on the amount of I, stabbing occurred. 107-10, 299 Md. at A.2d at 962-64. This same evidence will be available to the State as a basis for arguing at the new sentencing that *15 Colvin-El was the in principal the first degree. But the State may present not the finding by original the a jury to new on If resentencing. resentencing by a is judge any dissenting Without mention of Rule opinion 4-343 the con- principal degree cludes that the in the first issue must be determined during guilt phase the language innocence "under the clear of the statutory interpretation "statutory mandate." The dissent's mandate” is based on an 413(a) (e) of subsections and of Art. 27. Under subsec- (a) person guilty tion a is degree "[i]f found of murder in the first ... separate sentencing proceeding a shall be conducted ... to determine (e)(1) whether he shall be sentenced to death." Under subsection "person" "only principal degree” includes a in the first when used in contrary meaning clearly § 413 "unless a is intended from the context appears!.]” in which the term authorization for The dissent concludes that there is no any sentencing proceeding finding unless the of principal degree previously in the during guilt first has been made the phase or innocence of the trial. premise underlying above-quoted One our amendment to 4- Rule limited, "person" 343 is that was not intended to be in the context of 413(a), previously principal § to one degree. found to be a in the first may by This conclusion example. be illustrated Assume a murder during robbery the by course of an armed persons. committed two position The defendant's pal princi- that the other robber is in fact the is, however, degree in the first to murder. There circumstantial legally support finding evidence principal sufficient to a that the defendant is a degree degree principal the first to murder. If the first exclusively guilt issue must be determined phase, at the or innocence only the robber who claims to be an aider and abettor in the murder compelled phase participation is murder in robbery at that to admit in the and attempt penalty by testifying order to to avoid the death co-principal
that the was the actual killer. The serious constitutional questions presented by procedure that are avoided the broader interpretation "person” 413(a) of in the context of § which underlines Rule 4-343. of finding elected, may prior not consider judge then the tending that as to show premeditation defeat the degree. To do so would in the first principal hearing at which sentencing a new purpose of remedial solely issues is to be based sentencing determination course, if on the record hearing. Of that presented facts could the fact finder sentencing hearing a whole at a new the kitchen the knife from Colvin-El carried conclude victim, argue is free to the State repeatedly stabbed degree, first principal is the only that Colvin-El should premeditation he acted with which also that but should be weighing penalty whether death considered imposed.6 from resulting to Colvin-El
Consequently, any prejudice concerning the of information lack utilization Payne’s neighborhood during the time presence strangers occurred, concerning might when crime the issue of affects Hayes’s bicycle, movement degree. first Our principal whether Colvin-El was sentencing hearing ordering this new appeal mandate on this problem. cures
II cornucopia points The remainder of Colvin-El’s *16 succinctly addressed. go guilt to or innocence can A 413(d)(10)did At murder the time of Buchman § as murder murder committed while capital not include to commit house committing attempting daytime or or breaking, committing it murder while but did include ineffec- commit claims attempting robbery. If, here, jury specify if contrary to the had been asked facts not, premeditated jury had found that it was the murder was felony degree first based had found but murder, murder grave jeopar- principles double have reservations under we argue premeditation dy estoppel would be free to whether State sentencing hearing. capital new at a 20
tiveness with respect
to the jury instruction on robbery.
The claim is not that the instruction
given
incorrect,
but that Payne should have obtained additional instructions
which would
permitted
find that there was
no robbery. One of Colvin-El’s robbery
that,
theories is
because the jewelry and other property were taken from the
master bedroom and because the stabbing occurred at the
stairs,
foot of the
taking
did not
occur Mrs. Buch
presence.
man’s
This is not the
Robbery
law.
convictions
have been sustained where the victim was in one room of a
house or place of business and the property was taken from
another room. See State v.
Campbell,
41
Del.
22 A.2d
(Del.Ct.Gen.Sessions
390
1941);
Calhoun,
State v.
72 Iowa
432, 34
(1887);
N.W. 194
Homer,
Commonwealth v.
235
526, 127
Mass.
(1920);
N.E. 517
Williams,
State v.
183 S.W.
Culver,
State v.
(Mo.1916);
308
B Colvin-El contends that Payne should have objected when the State asked Mrs. Sorrell if her mother had the “habit” of carrying money her wallet. The witness replied affirmatively. This is said to be inadmissible evi *17 dence of habit. We do agree not that this is even habit that Buchman had arrived proof The Mrs. evidence. to Balti- Florida, stay that she intended from day that the to visit go and then to Midwest for one week more question The wallet in returning to Florida. son before her snapped could change purse which an exterior had was found After murder wallet closed. currency no bag, hand or shoulder with opened unzippered, change purse with the part billfold wallet and for the opened, empty. permissible and It was unsnapped, and independent- common experience, to infer based on jury victim, Buchman not habit of that Mrs. would any ly by evidence for the times and distances shown travel money. The also infer carrying some could without wallet, containing handbag a woman who carries that Buchman, money her in the wallet usually keeps did Mrs. it change purse. Payne any objection, Had made and not have should been sustained.7
C Payne further that should Colvin-El contends her from Mrs. which described objected testimony Sorrell health. The testi background general good mother’s life of Mrs. Buchman’s eighty-two years condensed mony pages and one-half of double approximately into two The margin testimony pages. on wide spaced, typewritten briefly nonpreju permitted is to have victim State see Mrs. Sorrell’s dicially prejudice described and we no approved It comparable is that Grandison testimony. denied, 685, 728, 506 cert. A.2d State, 305 Md. (1986). L.Ed.2d 479 U.S. S.Ct. Further, not post testified on conviction Payne also prejudicial but testimony he did consider to have prejudicial it that he considered would have to be court found counsel’s decision objected. trial argument unclear since The relevance of this Colvin-El taking money belong- robbery by charge with did not State ing to Mrs. Buchman. *18 22
within the bounds of trial strategy. agree. We Counsel could understandably expect the jury would resent objections designed keep them from knowing some basic information about the person had who been murdered.
Colvin-El is of the wide mark in arguing that the testimony violates the proscription of victim impact state 496, 482 107 ments under v. U.S. S.Ct. Maryland, Booth (1987). L.Ed.2d The testimony here did not attempt to describe the effect of the murder on Mrs. Buch man’s family. reasons, For the same the absence of objec tion to the State’s reference to the victim’s personal history statement, in its opening to Ms. Susan Sorrell’s reference to aspects of her grandmother’s background, and to the intro duction of a photograph Mrs. Buchman taken during her lifetime depicting shoulders, her head and do not’dem onstrate ineffectiveness of counsel.
D
appeal
On direct
this case we concluded that
had
failed to make a
facie
prima
system
case of
atic racial
discrimination
his
challenge
jury
array.
That challenge
presented
for the first time on direct
appeal
upon
appended
based
data
to Colvin-El’s brief. We
considered the argument on the merits and conducted an
independent
I,
constitutional review. Colvin-El
E submitting guilt When or innocence to the jury, the trial court instructed that art. 23 of the Maryland Declaration of Rights law, made the of the jury judge and that as a result the court’s instructions were and not advisory only In binding. conformance State, with Stevenson v. 289 Md. (1980), however, the court went on to 167, 423 A.2d role as perform judge was to its that the instruct Further, suggested conflict. where there was law such precepts that on the constitutional the court instructed instructions unanimity, its and need for proof as burden Colvin-El, disregarded. not be binding and could were 86 S.Ct. 382 U.S. citing Pennsylvania, Giaccio (1966) that he was 518, 521, contends 15 L.Ed.2d he was tried deprived process of due because thereby instruc- land and because the the law the accordance with *19 doubt confusing. He also criticizes the reasonable tion was instruction. instruc no taken to these exceptions
There were by represented was appeal tions. On direct when Colvin-El Md. counsel, Under presented. the were not points new 27, 645A(c), (1957, part Art. of Repl.Vol.), Code § Act, allega Procedure failure make Post Conviction and intelligently done know presumed tions is to have been presumption. Nothing is here rebut the ingly. presented his of rests ineffectiveness To the extent that Colvin-El to these any exceptions on the argument counsel absence nor instructions, representation we find neither deficient instructions, taken as a whole. light in prejudice
F or inno- remaining guilt Colvin-El’s submission that, arguments if none of his above clear cence is then prejudice, hurdles of ineffectiveness Strickland and establish depart this should from Strickland Court utilizing provision test of ineffectiveness Maryland Rights “[tjhat all criminal art. of the Declaration allowed right man hath a ... to be prosecutions, every counsel____” that made Colvin-El was by
A contention similar to
State,
Md.
We stated
State
306 Md.
(1986):
Ill We now turn to the affecting issues the death sentence.
A — In U.S. -, Mills v. Maryland, 108 S.Ct. (1988), 100 held that the Court Supreme L.Ed.2d potential for in a uncertainty jury’s interpretation of the form sentencing capital for cases specified by former Rule 772A violated the eighth amendment’s prohibition against sentenced jury The punishments. and unusual cruel utilize, utilize, did death was instructed to and Colvin-El to aggravating found one jury form. Colvin-El’s an identical circumstance, committing robbery, murder committed while by As instructed mitigating found no circumstances. and form, aggravat- III complete part did not where jury if the weighed circumstances would be ing mitigating In mitigating found at least one circumstance. had from indistinguishable case is Mills. respect this Colvin-El’s 645A(d) Post Proce- Maryland of the Conviction Under § Su- Act, any is entitled to the benefit dure Colvin-El holding that the United States Consti- Court decision preme procedur- upon proceedings State criminal “imposes tution recognized, theretofore al or substantive standard applied retrospectively is intended to which ... be convic- validity petitioner’s affect the thereby would very The affects “the analysis tion or sentence.” Mills respect finding with integrity fact-finding process” applies factors. Therefore Mills mitigating an absence Walker, 381 U.S. retrospectively. See Linkletter 1731, 1743, (1965). Conse- L.Ed.2d S.Ct. must vacated. Colvin-El’s death sentence quently, B is also re Vacating Colvin-El’s death sentence court on post for the reasons stated the circuit quired sentencing hearing conviction review. At the State of Balti introduced records of the former Criminal Court in 1960 for six bur reflecting more Colvin-El’s convictions glaries burglary. and a conviction 1962 of a seventh Reformatory sentences to the for Males Concurrent State imposed burglaries. for were for the 1960 years two sentence. year 1962 offense resulted an additional two these offenses At time his arrest for *21 time, eighteen age. sixteen and At that years between proceeded against had arrested and outside Colvin-El been proceedings of Baltimore have been under City, would 26 statute, (1957),
the Juvenile Causes Md.Code Art. 51 § et seq. Robinson, F.Supp. (D.Md.1970), v. 316 22
Long
aff'd,
(4th Cir.1971)
F.2d 1116
held that this difference in proce
dure
the equal protection
violated
rights of sixteen and
seventeen year old arrestees in Baltimore City whose con
victions were not
final.
In
yet
State,
Md.
Wiggins v.
(1975),
Here the argues State that Wiggins applies, that the 1960 convictions of Colvin-El are not nullified by Long and that the fact of criminal conduct evidenced those by convictions is in no way undermined. The operative princi- is, however, ple equal protection process. and not due The State made a use present prior convictions when it introduced them at against the capital sentencing proceeding and it introduced those convictions as convic- tions of an adult in the Criminal Court of If Baltimore. another person being sentenced for capital murder had acts, committed the same during period, same and at Colvin-El, age the same but outside of City Baltimore and absent a of juvenile waiver jurisdiction, person’s that reflect, most, prior record would findings of juvenile delinquency. particular jurisdiction Maryland within which the offense was committed is not a rational basis for this present distinction úse of the agree records. We with circuit court’s conclusion that equal protection was violated admission of Colvin-El’s “adult” convictions. say We cannot the error was harmless beyond a State, reasonable doubt. Dorsey See 276 Md. (1976). A.2d
IV will Colvin-El some remaining points presented by theOf sentencing hearing again arise at a new necessarily to the constitu- challenges are points moot. The other are have which we penalty death statute Maryland’s of tionality pre- to presented and which been rejected previously by other future consideration possible for points serve the courts. ANNE FOR THE CIRCUIT COURT OF
JUDGMENT AFFIRMED. COUNTY ARUNDEL ADKINS, J., dissents, in BLACKWELL, J., concurs.
BLACKWELL, dissenting. Judge, Cum.Supp.), (1957, 1976 Repl.Vol., Code Maryland of 413(e)(1) guilty a defendant be requires that Art. § a in the degree principal first as murder in the first sentencing proceed- penalty to death subject degree be degree means the first principal To ings.1 guilty be causing act doing physical guilty to have found wielding or of a gun, of a death, pulling trigger such as a defendant enough It is not stabbing. knife used in degree as an “aider murder in the first guilty be of a co-defendant. abettor” in the first principal the issue of majority concludes during sentencing proceeding can decided
degree be language clear I conclude under the the second trial. during guilt mandate, must determined it be statutory trial, “per- otherwise a penalty of a death phase innocence under the definitions qualify does not son” or “defendant” 413(a) 413(e)(1). provides: Section section (1957, Cum.Supp.), Maryland Repl.Vol., Art. Code degree 413(d)(7) exception principal in the first to the sets forth an § employed person to engaged or another qualification: “The defendant pursuant to an the murder was committed commit the murder and promise of remunera- or the agreement or contract for remuneration tion.” proceeding required. sentencing Separate in the first of murder guilty If is found person required the notice given if the state had degree, shall 412(b), sentencing proceeding be separate under § the trial has been after practicable as soon as conducted he shall sentenced determine whether completed death. part: 413(e) pertinent provides
Section *23 section, following terms used in this Definitions. —As is meaning a contrary indicated unless meanings the terms from the context intended clearly appears: include “person”, ...
(1) The terms “defendant” added). (Emphasis degree.” in the first principal a is not terms, or defendant person in other a Stated sentencing proceeding penalty death separate to a subject (or she) deter- 413(a) he is unless by directed Article § determina- degree. first That principal mined to be a sentencing penalty to the death prior made tion must be is authorized proceeding no otherwise proceeding, definition section would requirement The statute. met. not have been during later supplied cannot be missing ingredient considering is evidence that by jury
sentencing proceeding at trial. Md. Code admissible not have been which would 413(c). Art. Cum.Supp.), (1957, Repl.Vol., § panel unlikely where An decision would be impartial record, hearsay, any prior of a with evidence confronted and rele- probative deems that the court other information sentencing. vant the conclusion dissent from respectfully
I therefore degree in the first principal as a participation defendant’s a new sentenc- during the first time for can be determined trial. remand for new I would ing proceeding. he con- to state that me ADKINS has authorized Judge herein. expressed curs with views