Kevin WIGGINS v. STATE of Maryland.
No. 121, Sept. Term, 1997.
Court of Appeals of Maryland.
Feb. 10, 1999.
724 A.2d 1
Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Appellee.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
WILNER, Judge.
In 1989, appellant was convicted by Judge J. William Hinkel, sitting in the Circuit Court for Baltimore County, of the
In January, 1993, appellant filed a petition for relief under the Post Conviction Procedure Act (
We granted appellant‘s application for leave to appeal that determination. Five issues are presented in the appeal, which we have reordered as follows:
(1) Whether trial counsel provided Constitutionally ineffective assistance at trial and sentencing by failing to “bring to light” evidence of a prior inconsistent opinion on the part of the State‘s medical expert regarding time of death;
(3) Whether trial counsel provided Constitutionally ineffective assistance at the sentencing proceeding by failing to investigate and offer mitigation evidence concerning appellant‘s traumatic background and mental problems;
(4) Whether appellant was denied Constitutional rights when the State failed to disclose an agreement to treat his girlfriend, Geraldine Armstrong, leniently; and
(5) Whether the evidence was legally sufficient to support (A) his conviction of murder in the first degree; or (B) the jury‘s finding that he was a principal in the first degree in the murder of Ms. Lacs.
For the reasons stated in this Opinion, we shall affirm the denial of post-conviction relief.
BACKGROUND
The 77-year old victim, Florence Lacs, resided in the Clark Manor Apartments, in Woodlawn. When she failed to attend a scheduled social event on Saturday, September 17, 1988, a friend reported her missing. At the request of the police, the apartment manager entered Ms. Lacs‘s apartment to investigate and found her dead in the bathtub. She was lying on her side, half covered by cloudy water. It appeared that a household cleaner and a bug spray had been poured or sprayed on her. She was wearing a white blouse and a blue skirt, but had on no underwear. The skirt had been raised to her waist. The apartment had been ransacked. Paramedics, who arrived shortly thereafter, formally pronounced Ms. Lacs dead at about 3:50 in the afternoon. The deputy medical examiner, Dr. Stanley Felsenberg, arrived around 9:00 p.m., and, while there, had the body removed from the tub, examined it, and caused it to be sent to the medical examiner‘s office, where,
Appellant was a painter who had been working with a construction crew in the victim‘s apartment building on Wednesday, September 14, and Thursday, September 15. At some point on Thursday, Ms. Lacs asked him to move a truck that was blocking her car. Ms. Lacs attended a social event with some of her friends that afternoon but had returned to her apartment by 5:00 p.m. She was seen conversing with appellant in the hallway just outside her apartment between 5:00 and 5:30. Chianti Thomas, a twelve-year-old child visiting a friend at the next-door apartment, testified that Ms. Lacs‘s assistance was sought in locking the door to the friend‘s apartment, that appellant appeared from the basement and volunteered his assistance, and that she heard Ms. Lacs and appellant briefly converse about “watching” some sheetrock. That was the last time Ms. Lacs was seen alive.
On Thursday evening, around 7:45 p.m., appellant arrived at the home of his girlfriend, Geraldine Armstrong, driving the victim‘s car. He and Ms. Armstrong went shopping, using the
Principally on this evidence, the State charged appellant with first degree murder, robbery, and theft, and sought the death penalty. Appellant, represented by Carl Schlaich and Michelle Nethercott, waived a jury trial and elected to be tried before Judge Hinkel. After a four-day trial, Judge Hinkel found appellant guilty of robbery, first degree felony murder, and theft. Appellant then elected to have his sentence on the murder conviction determined by a jury, which was summoned for that purpose. After a six-day hearing, the jury found that appellant was a principal in the first degree, that the murder was committed in the course of robbing the victim (an aggravating factor), that appellant had not previously been convicted of a crime of violence (a mitigating factor), that the aggravating factor outweighed any mitigating factors, and that the sentence should be death.2 While automatic review of that judgment was pending in this Court, appellant moved for a new trial, which Judge Hinkel denied. As noted, we affirmed the judgments, and the United States Supreme Court denied appellant‘s petition for certiorari.
DISCUSSION
Time of Death
The evidence of appellant‘s guilt, at least of murder, was almost entirely circumstantial, there being neither eyewitness
The State‘s case rested essentially on seven facts or circumstances: (1) the fact that Ms. Lacs was seen by friends as late as 4:15 p.m. on Thursday, September 15, in her car, wearing a blue skirt and a white blouse; (2) when found dead on Saturday in the bathtub, she was wearing a blue skirt and a white blouse;3 (3) the fact that her weekly TV Guide had programs marked through September 15, with no markings for the 16th or beyond; (4) although appellant finished work at 4:45 p.m. on Thursday and had no particular reason to remain on the premises, he was seen with Ms. Lacs in the hallway outside her apartment between 5:00 and 5:30 p.m., which was the last time anyone saw her alive; (5) his explanation to his supervisor, who saw him at the apartment building some 25 minutes after appellant finished work, that he needed to move some sheetrock and the supervisor‘s response that (i) he had not asked appellant to move any sheetrock, (ii) moving sheetrock was not part of appellant‘s job, and (iii) in any event, moving the sheetrock should not have taken more than a few minutes; (6) appellant‘s possession and unlawful use of Ms. Lacs‘s automobile, credit cards, and jewelry later that eve-
Apart from the overall circumstantial nature of the case as to criminal agency, four particular circumstances caused the defense to focus on medical evidence regarding the approximate time of death: (1) Ms. Lacs was clearly still alive at 5:00 to 5:30 on Thursday, September 15; (2) by 7:45 that evening, appellant was in possession of her car and items allegedly taken from her or her apartment; (3) although appellant reported briefly for work on Friday morning, September 16, there was no direct evidence that he was in or near Ms. Lacs‘s apartment after 5:30 on Thursday afternoon; and (4) one of Ms. Lacs‘s friends, Edith Vassar, testified that Ms. Lacs telephoned her at 10:00 or 10:30 on Friday morning, September 16. In the view of the defense, unless the State could show that Ms. Lacs was or could have been killed during the approximately two-hour window between 5:30 and 7:30 p.m. on September 15, its evidence that appellant was the killer, as opposed to merely a thief, would have been much less persuasive.
The issue of time of death first came before the court in the context of a pre-trial motion to dismiss or narrow the indictment. The indictment charged that the killing occurred between September 15 and September 17, and, based on the holding of the Court of Special Appeals in State v. Mulkey, 73 Md.App. 501, 534 A.2d 1374 (1988), appellant claimed that the indictment was not sufficiently particular that the State should be required to allege with greater precision when the murder occurred.4 In arguing the motion, Mr. Schlaich in-
“Obviously, that is something we can attack later on at trial, but I am pointing this out to the court because it is indicative of how key of an issue the time of death is about to become and will be in this case.
The Medical Examiner now calls us herself and says, ‘I‘ve got to point out to you that I must have been wrong.’ So obviously, it is getting around that this is going to be important. The reason it is going to be important is the State in its own indictment and certainly in all of the evidence provided in discovery indicates that Mr. Wiggins was in possession of the victim‘s property on September the
15th. She is found dead on September the 17th. That is a three day span.”
Mr. Schlaich continued by noting the importance of the alleged robbery, which would serve as an aggravator for purposes of the death penalty: “Obviously, if Mr. Wiggins has the property before she is dead, there is a problem with that aggravator. If Mr. Wiggins acquires the property after she is dead, then maybe that‘s not true.”5 If, as Dr. Korell initially believed, death occurred within 24 hours before discovery of the body, appellant would have been in possession of the stolen property before Ms. Lacs was murdered. Mr. Schlaich also noted the statement of Ms. Vassar that Ms. Lacs had called her on Friday morning, September 16. “So,” he concluded, “there‘s a serious and obvious issue here as to time of death.”
The prosecutor, in response, told the court that her information from the medical examiner‘s office was that they could not establish a more particular time of death, and that is why the indictment was worded as it was that Ms. Lacs was last seen alive on September 15 and was discovered dead on September 17. Essentially on that basis, the court denied the defense motion to dismiss or particularize the indictment.
The issue next surfaced at trial. In an opening statement, Ms. Nethercott recounted that the medical examiner (Dr. Korell) had told counsel that Ms. Lacs had not been dead for 48 hours but later reevaluated that view. Dr. Korell was called to testify as a State‘s witness. By way of background, Dr. Korell, who apparently was raised in Argentina, had been an assistant medical examiner for about 10 years when she performed the autopsy on Ms. Lacs. Although she was not board-certified, she had performed over 3,000 autopsies and
Mr. Schlaich, on that ground, moved to strike Dr. Korell‘s testimony, but the court denied the motion, leaving her testimony as indicating that “she‘s unable to say with any degree of medical certainty or probability what the maximum period of time was.” Mr. Schlaich then cross-examined Dr. Korell
Appellant produced his own expert, Dr. Gregory Kauffman, to testify as to time of death. Dr. Kauffman was a forensic pathologist and a lawyer. He had served as an assistant medical examiner in Maryland, in California, and in Michigan, and had conducted some 4,000 autopsies, although, like Dr. Korell, he was not board-certified. He examined Dr. Korell‘s autopsy report, photographs of the body taken at the scene, the photographs taken of the body just prior to the autopsy, the paramedic‘s report, and Mr. Schlaich‘s memorandum of his conversation with Dr. Felsenberg, and he said that he was aware of how and when the body was discovered and its condition when discovered. Based in large part upon the pictures of the body taken at the scene and at the time of autopsy, he opined, within a reasonable degree of medical certainty, that Ms. Lacs had not been dead for more than 18 hours prior to the time the body was removed from the bathtub and photographed at the apartment (or 21 hours before it was delivered to the medical examiner‘s office and refrigerated). That would have made the earliest time of death 3:00 a.m. on Saturday. Of importance to him was the lack of any noticeable decompositional changes, particularly in those parts of the body that had not been submerged in the bathtub. He stated that, due to the refrigeration, there would have been no significant decomposition between the time the body was refrigerated and the time the photograph was taken the next morning. Although aware of Dr. Felsenberg‘s statement that Ms. Lacs was last known to be alive on Saturday, Dr. Kauffman said that he gave no significance to that in determining his estimate of when she died.
In announcing his findings, Judge Hinkel began by stating the evidence that he found not to be credible. That included the testimony of appellant‘s fellow inmates as to the supposed incriminating statements made by appellant, appellant‘s written statement given to the police upon his arrest that he had found Ms. Lacs‘s car, with the credit cards and jewelry in it, on parking lot on Friday, September 16, Ms. Lane‘s testimony that Ms. Lacs was wearing a red skirt, rather than a blue one, on Thursday, and Ms. Vassar‘s testimony that Ms. Lacs called her on Friday, September 16. Ms. Lane and Ms. Vassar, he concluded, were simply mistaken. He did find, however, that appellant was at the scene on Thursday, that he knew Ms. Lacs from their earlier conversation that day, that he acquired her car and property on Thursday, and that, after work on that Thursday, he entered Ms. Lacs‘s apartment where he robbed and killed her. As to the time of death, Judge Hinkel stated:
“I don‘t know the exact time of death. I am persuaded, however, from all of the evidence that the death of Ms. Lacs did not occur sometime between 9 p.m. on September 17th and 3:00 a.m. on 9-17, which would be the 18 hour period that was testified to by Dr. Kauffman. I am persuaded that it occurred on Thursday the 15th of September.”
As noted, appellant elected to have his sentence determined by a jury, which was his right under
Dr. Korell informed the jury that Ms. Lacs died of drowning, with contributory arteriosclerotic cardiovascular disease, and that the manner of death was homicide. She said that she could not pinpoint a time of death—that “time of death never can be pinpointed unless somebody dies right in front of somebody else“—but estimated, within a reasonable degree of medical certainty, that Ms. Lacs “could have died 24 to 48 hours before she was found.” In part, that conclusion was based on Dr. Korell‘s opinion that the water in the bathtub was cold water, which would better have preserved the body. She believed that the water was cold because “[Ms. Lacs] did not look like she was scalded in any way.” Her estimate was also based, in part, on the fact that rigor mortis and livor mortis were present when Dr. Felsenberg examined the body.
On cross-examination, Dr. Korell made clear that the 24 to 48 hour period she spoke of dated back from when Dr. Felsenberg arrived at 9:00 on Saturday evening (September 17), which would place the earliest estimated time of death at 9:00 on Thursday evening (September 15). She acknowledged that that estimate would be consistent with evidence that Ms. Lacs had a telephone conversation at about 10:30 on Friday morning. She clarified that, by “cold water,” she meant water at about room temperature—cooler than lukewarm. Like at trial before Judge Hinkel, Dr. Korell was not asked about her initial view that death occurred within 24 hours prior to the body being found or about the conversations she allegedly had with Ms. Nethercott concerning that opinion and her change of mind.
Dr. Dixon confirmed that it was “all but impossible” to pinpoint a time of death “within the ground of reasonable medical certainty,” but said that it was possible, by assessing the degree of post-mortem changes to the body along with a number of other factors, to determine a range. She identified, in particular, whether rigor mortis and post-mortem lividity have become fully developed and whether there was skin
In place of Dr. Kauffman, the defense produced as its expert at sentencing Dr. Comparini, deputy medical examiner for the District of Columbia. Dr. Comparini described for the jury in some detail what happens to a body after death—the onset and eventual relaxation of rigor mortis, the development and fixing of livor mortis, and other decompositional changes. Based on her review of the autopsy report, the various photographs that were taken at the crime scene and at the autopsy, and Dr. Felsenberg‘s observations, she opined that death would have occurred “not more than 24 to 36 hours” prior to the autopsy on Sunday morning, September 18, which would have made the earliest time around 9:00 p.m. on Friday, September 17. On cross-examination, the State brought out that Dr. Comparini was not board-certified, that she had never before testified in a death penalty case, and that she had not consulted with either the police or the Maryland medical examiners before reaching her conclusions. She found it
...
In argument to the jury, the State noted one point of agreement between the medical experts—that a precise time of death could not be determined. The prosecutor argued, in rebuttal, that “[W]e can‘t tell from the medical testimony alone when Ms. Lacs was murdered....” She stressed the fact that, from the brief conversation they had on Thursday, when Ms. Lacs asked appellant to move the truck, appellant knew Ms. Lacs and that he knew which car was hers. She noted further that appellant was in Ms. Lacs‘s presence outside her apartment when she was last seen alive between 5:00 and 5:30, that he was in possession of her credit cards, jewelry, and car about two hours later, and that he lied about whose credit cards they were and how he came into possession of her car. The State asked the jury to find that he was the killer—a principal in the first degree—from those circumstances. Defense counsel paid more attention to the medical testimony, noting Dr. Korell‘s estimate that death could have occurred as early as 48 hours before Dr. Felsenberg‘s examination (or 9:00 p.m. Thursday) but reminding the jury that on the death certificate she had listed the time of death as being on Friday. Counsel also pointed out Dr. Comparini‘s testimony placing the earliest time of death at 9:00 Friday evening.
In deciding upon the death sentence, the jury expressly found that appellant was a principal in the first degree in Ms. Lacs‘s murder.
Appellant filed a motion for new trial that Mr. Schlaich represented was based on “finding out new evidence at the sentencing phase that would have not been available to us at the guilt/innocence trial.”9 The entire thrust of the motion, taken from the argument presented in support of it, was Dr. Korell‘s shifting opinions as to the earliest possible time of Ms.
Arguing the motion, Ms. Nethercott explained that, on July 18, 1989—about two weeks before trial commenced—she met personally with Dr. Korell, that Dr. Korell, after reviewing her file, expressed the opinion that Ms. Lacs “had died somewhere in the range of 4 to 10 hours prior to the discovery of the body at 4:00—Dr. Felsenberg examined the body at 9:00—and that her outside limit, her furthest absolute limit was 24 hours.” Ms. Nethercott stated further that she had asked Dr. Korell three times whether, in light of that conclusion, the victim was not dead as of 4:00 on September 16, “and she said yes.” Ms. Nethercott continued that, on July 20, Dr. Korell called and said that, following a conversation with her supervisor, she had changed her opinion “and was now willing to extend her range on time of death back to 48 hours from the 17th of September.” On July 23, the Chief Medical Examiner, Dr. Smialek returned a call from Mr. Schlaich. Dr. Korell, who was on an extension, again confirmed “that she had changed the opinion and that she had discussed this matter, after having thought about it, and that she now had a different opinion.”
Ms. Nethercott recalled that, at trial, Dr. Korell testified that she could not state a time of death within a reasonable
Judge Hinkel found no merit in that argument and denied the motion. First, he concluded that the revelation as to Dr. Korell‘s shifting opinions was not newly discovered evidence: counsel knew she had changed her view more than two weeks before trial. More important, he said that it would have made no difference to him, as the finder of fact, had Dr. Korell and Dr. Dixon testified at trial as they did at sentencing. That would have placed the range of time of death back to 9:00 Thursday evening—only a few hours after appellant had the opportunity to commit the crime and within two hours after he was in possession of the victim‘s property. He stated that “there is so many other facts in this case and there is nothing certain about medical testimony of this sort.” He concluded:
“The State and the defense knew that, that the medical profession is not equipped or prepared to state with any degree of certainty, not even probability, it appears, as to matters of this nature. But all the other evidence in this case certainly was sufficient for me, at the guilt/innocence stage, and for the jury in the sentencing phase, to determine that Mr. Wiggins was a principal in the first degree.”
These matters, as presented to the circuit court, were raised in appellant‘s direct appeal. As noted, he argued first that, because, in his view, his convictions rested solely on circum-
“As the trial court noted, and the record indicates, medical testimony regarding time of death is fraught with uncertainty. Wiggins was aware that Dr. Korell changed her opinion once prior to the trial, and the defense had ample time to, and did, secure its own qualified expert testimony on this matter. As the ambivalence of the State‘s expert witness was known to the defense, her opinion at the sentencing hearing did not deprive Wiggins of a fair trial.”
In January, 1993, appellant filed a petition for post-conviction relief, raising, as we said, 52 issues, several of which concerned, in one way or another, Dr. Korell‘s shifting views of when Ms. Lacs may have died. The only one we need be concerned with here is the argument that appellant is entitled to either a new trial or a new sentencing hearing “because his trial counsel provided ineffective assistance at the guilt phase of trial by failing to bring to light evidence of the State medical expert‘s prior inconsistent opinion, which dealt with the most crucial issue in [his] defense and which was consis-
Three people testified at the post conviction hearing regarding the handling of Dr. Korell. Ms. Nethercott recounted her two conversations with Dr. Korell, testifying, in that regard, to what previously had been elicited in arguments on the motion to dismiss or narrow the indictment and the motion for new trial. She added that the defense had previously retained Dr. Rudiger Breitenecker as an expert pathologist, that Dr. Breitenecker supported the defense theory that Ms. Lacs died after September 15, that when she was informed that Dr. Korell, whose initial opinion also supported that theory, had changed her opinion, she spoke with Dr. Breitenecker, who then advised that he was unwilling to testify. That combination—Dr. Korell‘s retraction and Dr. Breitenecker‘s unwillingness to testify—tore a major hole in the defense‘s case less than three weeks before trial. She finally was able to retain Dr. Kauffman to take the place of Dr. Breitenecker. She said that Dr. Korell did not give a good presentation at trial—that Dr. Korell had some difficulty with English and tended to be excitable. Ms. Nethercott discussed with Mr. Schlaich and with the District Public Defender, Mr. Saunders, whether she could or should testify regarding her conversations with Dr. Korell and whether, if she did, she would be able to continue as co-counsel. She determined, as a matter of strategy, to continue in the case, not to request a postponement, and not to testify about her conversations with Dr. Korell. Mr. Schlaich, she said (correctly), handled the cross-examination of Dr. Korell.
Mr. Schlaich had very little memory about the details concerning Dr. Korell. He recalled discussing with Ms. Nethercott whether she should testify and they decided that she should not do so. The major witness for appellant was a District of Columbia lawyer, Gerald Fisher, who had been involved at the post-conviction level and as co-counsel in a
Judge Fader concluded that Mr. Schlaich and Ms. Nethercott “should have done something, as opposed to doing nothing, to have the impact of this inconsistent statement brought before the court,” but found no prejudice. Apart from characterizing Mr. Fisher‘s proffer as to prejudice as “speculative,” Judge Fader noted that the matter of Dr. Korell‘s inconsistent statement was brought to Judge Hinkel‘s attention and that he found the inconsistency irrelevant, and that it was brought to the jury‘s attention as well.
The standard to be applied in determining whether counsel‘s representation comported with the requirements of the
Applying those standards, we find neither a Constitutional deficiency nor Constitutional prejudice in counsel‘s failure to cross-examine Dr. Korell (at trial or at the sentencing proceeding) or in the decision not to have Ms. Nethercott testify with regard to her conversation with Dr. Korell. Taking the second matter first, there is absolutely nothing in this record suggesting any need for Ms. Nethercott to have testified. There is no indication whatever that, had Dr. Korell been asked about the two conversations with Ms. Nethercott, or about her conversation with Dr. Dixon, she would have denied either the fact or the content of those conversations. Ms. Nethercott‘s concern in that regard has utterly no foundation and should never have been a factor in deciding whether to question Dr. Korell about the matter.
The question of whether Dr. Korell should have been cross-examined about her initial view and her change of opinion must be examined in context. Several considerations are relevant. Viewing the matter at the time of trial, it is clear that Judge Hinkel was fully aware of what had occurred. Without contradiction by the prosecutor, Mr. Schlaich had informed the judge at the hearing on the pre-trial motion to dismiss or narrow the indictment of the various conversations with Dr. Korell, and Ms. Nethercott reminded Judge Hinkel of that situation in her opening statement at trial. When Dr. Korell testified at trial, she gave a range of from 24 to 48 hours, but said that it was all guesswork and that a time of death could not be pinpointed. In Ms. Nethercott‘s uncontradicted view, Dr. Korell was not an effective witness; she did not make a good presentation.
More significant, perhaps, is the fact that Dr. Korell‘s trial testimony, giving a guesswork range of 24 to 48 hours, still put the earliest time of death at 9:00 Thursday evening—at least two hours after appellant was in possession of the victim‘s car, credit cards, and ring. Although that testimony was neither as firm nor as favorable to appellant as Dr. Korell‘s initial
In announcing his verdict and in denying the motion for new trial, Judge Hinkel said that he placed no weight on the medical testimony as to time of death.10 We cannot imagine
what additional benefit, as a practical matter, would have accrued to appellant from further impeachment of Dr. Korell. Failure to press the point already known to Judge Hinkel does not, in our view, overcome the presumption of sound trial strategy; nor can we conclude that, as a result of the omission, “the result of the proceeding was fundamentally unfair or unreliable.”
We have the same view with respect to the sentencing proceeding. Had the matter been pursued, it would, at best, have brought into question the credibility of Dr. Korell‘s testimony that death could have occurred as early as 9:00 Thursday evening which, as noted, was more helpful than harmful to the defense. Moreover, Dr. Dixon, in giving a similar opinion, told the jury about her conversation with Dr. Korell, pointing out her disagreement with the time given on the death certificate. The jury had Dr. Comparini‘s testimony, as substantive evidence, and it also had before it the death certificate signed by Dr. Korell, listing the time of death as Friday. Even if counsel‘s failure to cross-examine Dr. Korell at that proceeding could be regarded as deficient, there is utterly no basis for concluding that the result of the proceeding was fundamentally unfair or unreliable. The jury was fully aware of Dr. Korell‘s initial view, as noted on the death certificate, as well as her conversation with Dr. Dixon. It obviously rejected all of the medical testimony attempting to establish a time of death, the least favorable of which to appellant still put the earliest time of death at 9:00 Thursday evening.
Failure to Obtain Forensic Expert
As we indicated above, at some point counsel consulted Dr. Breitenecker as a forensic expert to render an opinion that
In his post conviction petition, appellant contended that, as a result of that situation, he was effectively coerced into waiving a jury and that the waiver was not a voluntary one. Judge Fader found no merit in that argument, and it is not pursued in this appeal. The complaint here, which was also raised in the petition, is an off-shoot. Appellant contends that the choice, even if voluntarily made, was forced on him through the incompetence of counsel. The nature of that alleged incompetence is not entirely clear. It seems to rest on this statement from his expert, Mr. Fisher:
“If indeed what was the reason for waiving was simply this whole problem with getting their experts available and being able to go forward, that I think falls below the standards of adequate professional conduct. . . . But they had alternatives to that. They could have sought a continuance; they could have done a number of things that would have taken the dilemma which had been created and set it aside. But they didn‘t do that.
So if that was the motivating factor or the primary motivating factor in their decision to go judge versus jury then I think that that falls below the standards of competent assistance of counsel.”
Jury Selection
In his petition for post conviction relief, appellant contended that there was a systematic exclusion of African-Americans from the jury selection process in Baltimore County. That claim was based largely on evidence that African-Americans comprise approximately 12% of the population of the county but that, at the time of his trial and sentencing, less than 6% of the venire panels were African-Americans. After taking a great deal of evidence regarding jury selection procedures in the county, Judge Fader rejected that claim, concluding that “Maryland‘s system of choosing jurors restricts no distinctive group from serving and favors no distinctive group to serve,” and that “[n]othing Baltimore County, Maryland does deviates from the random selection system set up by the Maryland Legislature and included in the Maryland Code.” See Lovell v. State, 347 Md. 623, 702 A.2d 261 (1997) and State v. Calhoun, 306 Md. 692, 511 A.2d 461 (1986), cert. denied, 480 U.S. 910, 107 S.Ct. 1339, 94 L.Ed.2d 528 (1987), where we rejected similar challenges regarding selection procedures in Talbot and Montgomery Counties.
Mitigating Evidence
In preparing and presenting appellant‘s case to the jury at sentencing, trial counsel made a deliberate, tactical decision to concentrate their effort at convincing the jury that appellant was not a principal in the killing of Ms. Lacs, or at least at raising a reasonable doubt in that regard. They were, in effect, striving for “two bites at the apple.” Notwithstanding that the jury would be, and was, instructed that appellant had been convicted of the crime, the jury still was required to make its own determination, unanimously and beyond a reasonable doubt, that appellant was the actual killer, and, given the entirely circumstantial nature of the State‘s evidence and the fact that there was some exculpatory evidence, counsel believed that appellant‘s best hope of escaping the death penalty was for one or more jurors to entertain a reasonable doubt as to his criminal agency.
Counsel were aware that appellant had a most unfortunate childhood. Mr. Schlaich had available to him not only the pre-sentence investigation report prepared by the Division of Parole and Probation, which included some of appellant‘s social history, but also more detailed social service records
Appellant now claims that counsel‘s approach was a grievous error, of Constitutional dimension. Post-conviction counsel employed Hans Selvog, a Virginia social worker connected with the National Center on Institutions and Alternatives, to prepare a detailed psycho-social history of appellant, which, indeed, is tragic, rife with episodes of neglect and abuse. Appellant‘s legal expert, Mr. Fisher, then opined that “the use of an expert in the development of such material [is] ordinarily a minimum requirement for effective representation in a capital sentencing proceeding.” On that premise, he concluded that, by failing to retain someone like Mr. Selvog to prepare a detailed psycho-social history and by failing to present information of that kind to the jury, trial counsel did not meet the minimum standards of the profession. Although he said that he had an opinion as to whether the presentation of a report like the one prepared by Mr. Selvog would have had an effect on the sentencing jury, Judge Fader would not let him render that opinion, finding it entirely too speculative. Nonetheless, appellant urges in his brief before us that there is a substantial or significant possibility that he was sentenced to death “because of his counsel‘s failure to investigate, develop, or present powerful mitigating evidence of [appellant‘s] background and mental deficiencies.”
We reject the argument in the broad form that it is presented. In the first place, as noted, counsel did investigate and were aware of appellant‘s background. They did not have as detailed or graphic a history as was prepared by Mr. Selvog, but that is not a Constitutional deficiency. See Gilliam v. State, 331 Md. 651, 680-82, 629 A.2d 685, 700-02 (1993), cert. denied, 510 U.S. 1077, 114 S.Ct. 891, 127 L.Ed.2d 84 (1994); Burger v. Kemp, 483 U.S. 776, 788-96, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638, 653-58 (1987). More important, counsel does have leeway in making strategic and tactical decisions about how to present a case at a capital sentencing hearing. Counsel is not required to present every conceivable mitigation defense if, after proper investigation and review, he or she concludes that it is not in the defendant‘s best interest to do so. See Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989) (attorney not obligated to present mitigating evidence if, after reasonable investigation, he or she determines that such evidence may do more harm than good).
The cases cited by appellant for his broad proposition that the failure of counsel to investigate or present mitigating evidence at a capital sentencing hearing constitutes ineffective assistance are all distinguishable. As a preliminary note, in all but one of them the sentencing tribunal, whether judge or jury, was the same tribunal that had determined guilt and thus had already considered and ruled upon the defendant‘s criminal agency. That is not, of course, a necessarily governing distinction, but it is a factor to consider. There is certainly less advantage to focusing the effort on retrying criminal agency before the very tribunal that has already determined it beyond a reasonable doubt, to the exclusion of other defenses going more directly to discretionary sentencing considerations, than in presenting and focusing upon that issue before a new, untainted tribunal. The cases cited are distinguishable for other reasons as well. In some of them, counsel made no investigation at all of any mitigating circumstances; in others, counsel failed to make a particular inquiry that would have produced significant, highly relevant mitigating evidence. Under the circumstances presented, that failure, the courts held, was not the product of a reasoned strategic decision but simply deficient. See, for example, Hill v. Lockhart, 28 F.3d 832 (8th Cir.1994), cert. denied, 513 U.S. 1102, 115 S.Ct. 778, 130 L.Ed.2d 673 (1995) (no investigation of significant psychiatric history, including positive reaction to anti-psychotic medication); Austin v. Bell, 126 F.3d 843 (6th Cir.1997), cert. denied, __ U.S. __, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998) (no mitigation evidence presented; no investigation made of mitigating circumstances); Hendricks v. Calderon, 70 F.3d 1032 (9th Cir.1995), cert. denied, 517 U.S. 1111, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996) (no investigation into any mitigating evidence; decision made simply to beg for mercy); Antwine v. Delo, 54 F.3d 1357 (8th Cir.1995), cert. denied, 516 U.S. 1067, 116 S.Ct. 753, 133 L.Ed.2d 700 (1996) (failure to investigate
The circumstances presented in those cases, and others like them, are not at all what we have here. Counsel made a reasoned choice to proceed with what they thought was their best defense. They knew that there would be at least one mitigating factor—the uncontested fact that appellant had not previously been convicted of a violent crime—should the jury not credit their attack on criminal agency. It was not unreasonable for them to choose not to distract from their principal defense with evidence of appellant‘s unfortunate childhood. As Mr. Schlaich noted, the dysfunctional and abused childhood defense is not always successful; judges and
“Judicial scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘”
Alleged Agreement With Geraldine Armstrong
“[I]n order to preserve the issue for any future review,” appellant contends that the State failed to disclose an agreement to treat his girlfriend, Geraldine Armstrong, leniently. Armstrong was arrested with appellant and was initially charged with felony murder, theft, and fraud, the belief being that she was in complicity with appellant in the robbery and murder of Ms. Lacs. The charges against her were eventually dropped, and she testified for the State against appellant. From those circumstances, appellant claims that “there is a significant possibility that Ms. Armstrong received assurances of leniency in exchange for her testimony” that were not disclosed to appellant. No evidence
Sufficiency of Evidence
Also “to preserve the issue for any future review,” appellant urges that no reasonable fact finder could have found him guilty beyond a reasonable doubt either at trial or at the sentencing proceeding. That question was litigated and resolved by us in appellant‘s direct appeal. We held that the evidence did suffice to sustain the conviction and the sentence, and we shall not revisit that issue in a post conviction proceeding.
ORDER DENYING PETITION FOR POST CONVICTION RELIEF AFFIRMED, WITH COSTS.
Dissenting opinion by ELDRIDGE, J., in which BELL, C.J., joins.
ELDRIDGE, Judge, dissenting.
Under the Maryland death penalty statute, with one exception not pertinent to this case, “only a principal in the first degree” to murder in the first degree is eligible for a death sentence. The State, at the sentencing stage of the trial, must prove beyond a reasonable doubt that the defendant was the actual perpetrator of the murder. See
When this case was before us on direct appeal, Judge Cole and I dissented from the affirmance of the death penalty on the ground that the evidence at the sentencing hearing was
As the evidence and the weakness in the State‘s case were extensively reviewed in the dissenting opinion on direct appeal, I shall not repeat that review today. For the reasons set forth in that dissenting opinion, I adhere to the view that the evidence was utterly insufficient to show that Wiggins was the actual perpetrator of the murder. Consequently, as a matter of Maryland law, he is not eligible for the death penalty. The maximum punishment which may legally be imposed upon Wiggins is life imprisonment.
The majority today does not discuss this issue, presumably because it was litigated on direct appeal and because the Maryland Post Conviction Procedure Act,
Since Wiggins was not shown to be a principal in the first degree, the death sentence is an illegal sentence under Maryland law. Furthermore, the imposition of a death sentence, in light of the evidence, is a denial of due process under Jackson v. Virginia, supra. I would remand this case to the circuit court with directions to impose a sentence of life imprisonment.
Chief Judge BELL concurs in this dissenting opinion.