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Failure to object to double hearsay results in new trial for 1993 murder

A man sentenced to life in prison without parole for a 1993 murder — and who now claims he received ineffective assistance of counsel at both his trial and on appeal — will get a new day in court, the Court of Special Appeals has held, affirming a circuit court order granting him a new trial.The appeals court agreed with appellee Thomas W. Jones’ motion to strike a portion of the state’s reply brief in its appeal of post-conviction relief granted to Jones last year in Prince George’s County Circuit Court. “Jones complains that the State improperly raised an argument in its reply brief that it did not present earlier, either at the post-conviction hearing or in the State’s opening appellate brief,” Judge Ellen L. Hollander wrote in an opinion issued Friday. “As Jones points out, that argument was made for the first time in the State’s reply brief.”In the brief, the state argued that a signed statement implicating Jones in the murder that was given to the police by Derrick Smith, an alleged accomplice, was admissible based on the co-conspirator exception to the hearsay rule.The intermediate appeals court held that the state’s argument came too late — and if the statement had been suppressed, the outcome of Jones’ trial may have been different.“We are left with several unassailable facts: the State did not advance the co-conspirator hearsay exception at the hearing below, or in its opening brief, and the post-conviction court had no opportunity to address the merits of the State’s alternative legal argument,” wrote Hollander, granting the motion to strike.“Nevertheless, in the event of a re-trial of Jones, our ruling is without prejudice to the right of the State to timely assert the co-conspirator hearsay exception as a basis to support the admission in evidence of Smith’s written statement to the police.”Jones’ attorney, Fred W. Bennett, said he was “very pleased” with the 45-page opinion.“The court took a long, hard look at facts of the case in the court trial, concluding the evidence was not overwhelming and [suppressing the statement] could have changed the verdict,” Bennett said. “It’s encouraging to defendants that the Court of Special Appeals will take a good, hard look.” Gary E. Bair, chief of the criminal appeals division in the attorney general’s office, was not available for comment.The appeals court found that Jones’ defense lawyer’s performance was constitutionally deficient because he only objected to the physical admission of Smith’s written statement that contained double hearsay — and did not object to the admissibility of the content of the statement.“As we see it, an objection to the physical admission of the written statement does not constitute a general objection under Rule 2-517(a),” Hollander wrote. “Rather, it was a very specific objection that did not encompass an objection to a multiple hearsay statement.”While the state argued that Jones’ defense counsel’s performance had no impact on the outcome of his trial, the court disagreed.“We reject the State’s characterization of the strength of its case,” Hollander wrote. “Moreover, in the context of this case, we are of the view that the admission of the multiple hearsay statement, ‘so upset the adversarial balance between the defense and prosecution that the trial was unfair and the verdict rendered suspect.’”Jones and a co-defendant, Donald Gutrick, were charged with the 1993 murders of Jamal Johnson and Gary Gulston in Prince George’s County. Jones was convicted of the first-degree murder of Gulston, kidnapping, robbery with a deadly weapon, robbery and use of a handgun in a felony. A jury did not reach a verdict against Jones on the murder of Johnson.In January 1997, the trial court sentenced Jones to life in prison without parole and imposed consecutive sentences of 20 years each for the handgun offense and armed robbery. Jones appealed and the Court of Special Appeals affirmed in an unreported 1998 opinion.In November 1998, Jones filed a Petition for Post Conviction Relief, claiming ineffective assistance of counsel. After a hearing, the court granted a new trial based on ineffective assistance of trial and appellate counsel, as well as trial court error. Last week’s appellate opinion affirmed that decision.<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

[IMGCAP(1)]Case: State v. Thomas W. Jones, CSA No. 2254, Sept. Term 1999. Reported. Opinion by Hollander, J. Filed Dec. 22, 2000.Issue: In considering a petition for relief of Jones’ life sentence to prison without parole for felony murder, did the post-conviction court err in granting him a new trial and a new appeal?Holding: No. Jones’ motion to strike a portion of the state’s reply brief granted; judgment affirmed. The state improperly raised an argument it did not present earlier — either at the post-conviction hearing or in the state’s opening appellate brief — concerning the admissibility of a statement based on the co-conspirator exception to the hearsay rule.Counsel: Assistant Attorney General Celia A. Davis for appellant; Fred Warren Bennett for appellee. RecordFax: 0-1222-05 (45 pages)