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Law Digest — Court of Appeals, Court of Special Appeals — Nov. 3, 2022

Maryland Court of Appeals

Criminal; ineffective assistance of counsel: Although the court held in 2010 and 2011 that a question about the “CSI-effect” during voir dire constituted reversible error, the defendant’s attorney did not provide ineffective assistance of counsel when he failed to object to this question during the defendant’s 2007 murder trial. While the law requires attorneys to comply with prevailing professional norms of the time, it does not require them to predict future developments in case law. McGhee v. State, No. 64, Sept. Term, 2021 (filed Oct. 24, 2022).  

Maryland Court of Special Appeals

 Criminal; self-defense: Where a man who shot three coworkers and injured two others claimed self-defense, but the jury rejected this defense and convicted him of murder and attempted murder, his dissatisfaction with the weight and credibility determinations made by the jury were not a basis to overturn the verdict. Prince v. State, No. 106, Sept. Term, 2021 (filed Oct. 26, 2022).  

Criminal; Hicks violation: Where two defendants expressly consented to a trial date beyond the 180 days allowed by law, they could not later argue the state failed to bring them to trial by the statutory deadline. But where a third defendant’s arguable consent wasn’t express, his indictment was dismissed. State v. Henry, Nos. 1499, 1500, 1501, Sept. Term, 2021 (filed Oct. 26, 2022).

Contract; post-nuptial agreement: Where the husband admitted adultery to his wife, and then agreed in a post-nuptial agreement that he would pay the wife $7 million if he cheated again, his arguments that the agreement lacked consideration, was unconscionable or was procured by undue influence were rejected. Lloyd v. Niceta, No. 934, Sept. Term, 2021 (filed Oct. 26, 2022).

Maryland Court of Appeals

Criminal

Ineffective assistance of counsel

BOTTOM LINE: Although the court held in 2010 and 2011 that a question about the “CSI-effect” during voir dire constituted reversible error, the defendant’s attorney did not provide ineffective assistance of counsel when he failed to object to this question during the defendant’s 2007 murder trial. While the law requires attorneys to comply with prevailing professional norms of the time, it does not require them to predict future developments in case law.

CASE: McGhee v. State, No. 64, Sept. Term, 2021 (filed Oct. 24, 2022) (Judges Fader, Watts, Hotten, Booth, BIRAN, Gould, Eaves).

FACTS: This case arises from a post-conviction court’s grant of a new trial to Antonio McGhee based on ineffective assistance of counsel. In December 2007, a jury convicted McGhee of the murder of Keith Dreher. The basis of McGhee’s ineffective assistance of counsel claim is his counsel’s failure to object to what courts and commentators have called a “CSI-effect” voir dire question.

The “CSI effect” describes the theorized impact of television crime scene dramas on jurors. The theory suggests that, based on the proliferation of programs such as CSI, jurors in criminal cases now expect the prosecution to produce DNA evidence and/or other forensic evidence to prove a defendant’s guilt, and that juries are prone to wrongfully acquit criminal defendants where the prosecution does not produce such evidence.

In 2010 and 2011 – more than two years after McGhee’s trial – this court considered three cases related to the CSI effect, and held in each that a CSI-effect message from the bench constituted reversible error. See Charles v. State, 414 Md. 726 (2010); Atkins v. State, 421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011).

On June 11, 2020, the post-conviction court granted McGhee’s petition for post-conviction relief and ordered a new trial. The court stated that “[a]lthough at the time of [McGhee’s] trial, the CSI question was allowed, the Court believes the question must still be analyzed based on its prejudicial effect on the jury.” The post-conviction court found that, in this case, the lack of scientific evidence was material to the question of McGhee’s guilt. For this reason, the court held that the failure to object to the CSI-effect question constituted ineffective assistance of counsel.

The Court of Special Appeals reversed the post-conviction court’s decision with respect to McGhee’s trial counsel. The intermediate appellate court reasoned that “appellee presented no evidence establishing that the prevailing professional norm at the time of his trial was to object to ‘CSI effect’ messages to the venire or jury. Consequently, we conclude that trial counsel’s failure to object to the trial court’s ‘CSI effect’ voir dire question in this case was not deficient performance.

LAW: The Supreme Court has not explicitly addressed whether the principle of retroactivity may be applied within an ineffective assistance of counsel claim, such that a new rule of law would render counsel’s conduct defective even if the conduct was reasonable and appropriate at the time. McGhee asks this court to dive into the substance of this analysis and determine whether Charles, Atkins and Stabb applied settled precedent to new facts or announced a new principle of law. Thus, McGhee implicitly asks this court to conclude that such an application of retroactivity principles is compatible with the analysis of Strickland v. Washington, 466 U.S. 668 (1984).

Strickland’s performance prong requires this court to assess trial counsel’s performance based on prevailing professional norms at the time of the contested conduct. The potential application of Charles, Atkins and Stabb retroactively is inconsistent with a proper analysis under Strickland’s performance prong. Adopting McGhee’s argument, in practice, would require attorneys not only to comply with prevailing professional norms of the time, but also to predict future developments in case law. Neither the Sixth Amendment of the United States Constitution nor Article 21 of the Maryland Declaration of Rights imposes such a requirement on counsel.

The Strickland test requires a petitioner claiming ineffective assistance of counsel to make two showings. First, the petitioner must show that counsel’s performance was deficient. Second, “the defendant must show that the deficient performance prejudiced the defense.” Here, McGhee’s counsel performed within the accepted professional norms of 2007, which did not require objecting to the CSI-effect voir dire question in this case. Thus, McGhee’s claim of ineffective assistance of counsel fails on the performance prong, and the court need not address McGhee’s arguments concerning the prejudice prong.

Judgment of the Court of Special Appeals affirmed.

Maryland Court of Special Appeals

Criminal

Self-defense

BOTTOM LINE: Where a man who shot three coworkers and injured two others claimed self-defense, but the jury rejected this defense and convicted him of murder and attempted murder, his dissatisfaction with the weight and credibility determinations made by the jury were not a basis to overturn the verdict.

CASE: Prince v. State, No. 106, Sept. Term, 2021 (filed Oct. 26, 2022) (Judges Wells, NAZARIAN, Zic)

FACTS:  Radee Labeeb Prince was found guilty and criminally responsible in the circuit court for the murder of three people, the attempted murder of two others and for committing a crime with a firearm. There is no dispute that he committed the shootings. At trial, he asserted imperfect self-defense and argued that he subjectively believed he was in imminent danger of bodily harm when he shot his victims.

In this appeal, Mr. Prince challenges the trial court’s decision to admit surveillance footage of the shooting, its determination that there was legally sufficient evidence to uphold Mr. Prince’s convictions and its denial of defense counsel’s request that potential jurors answer voir dire questions while unmasked or wearing clear face masks.

LAW: Mr. Prince first argues that the surveillance video from Advanced Granite Solutions, or AGS, was not authenticated properly before the court admitted it into evidence. The court finds that the state laid a foundation sufficient to authenticate the surveillance footage.

The state established that Mr. Kucuk, the owner of AGS, was one of the “caretaker[s]” of the surveillance footage. Mr. Kucuk testified that the cameras were used on a daily basis and that they automatically recorded what they captured. He explained that the cameras did not need to be turned on and that they were running constantly; he was able to access the live feed from the cameras on his cellphone but needed to be in his office to access recorded footage.

Although Mr. Kucuk did not access and download the recorded footage for the police himself, he knew the process and was able to show the officers how to do it while he was present. Mr. Kucuk also watched the video that the police officers downloaded and was able to identify state’s exhibit as the same surveillance footage. Moreover, there was no evidence that the cameras were not working properly or that the video had been altered. Given that “[t]he threshold of admissibility is . . . slight,” and that the tape did not undergo any editing before being viewed by the police and used during trial, the court finds that the state laid a sufficient foundation and that the court did not abuse its discretion in admitting the surveillance tape into evidence.

Mr. Prince next argues that the evidence was insufficient to support his convictions because he offered evidence that he acted in self-defense. With respect to the murder and attempted murder charges, however, the jury readily could have concluded beyond a reasonable doubt that Mr. Prince brought a gun to work and shot his victims willfully and deliberately, with the purpose of killing them and that he killed three of them and wounded the other two. And because there was legally sufficient evidence for a jury to find that Mr. Prince committed first-degree murder with a firearm, there is sufficient evidence on the record to uphold a conviction for committing that same crime of violence with a firearm.

Regarding the self-defense arguments, Mr. Prince relied on his own testimony and expert witness testimony from Dr. David Williamson to provide “some” evidence of an imperfect self-defense, and that evidence was sufficient to submit the issue to the jury. But it is up to the jury, not the court, to determine whether they believe the witnesses. And on this record, Mr. Prince’s sufficiency argument “amount[s] to nothing more than taking issue with the weight and credibility determinations made by the jury.”

Finally the trial court did not err in denying defense counsel’s request that the venire be provided clear face masks or answer questions unmasked during voir dire. Although an individual’s facial expressions play a role in nonverbal communication, it was not unreasonable for the court to observe the constraints posed by the COVID-19 pandemic and the paramount importance of public health and safety. Nor does Mr. Prince argue, or the record in any way suggest, that he in fact was denied an opportunity to see, hear and evaluate the potential biases of members of the panel during jury selection.

Judgment of the Circuit Court for Harford County affirmed.

Criminal

Hicks violation

BOTTOM LINE: Where two defendants expressly consented to a trial date beyond the 180 days allowed by law, they could not later argue the state failed to bring them to trial by the statutory deadline. But where a third defendant’s arguable consent wasn’t express, his indictment was dismissed.

CASE: State v. Henry, Nos. 1499, 1500, 1501, Sept. Term, 2021 (filed Oct. 26, 2022) (Judges NAZARIAN, Leahy, Battaglia)

FACTS:  Niran Marquise Henry, Lateekqua Jackson and Garrick L. Powell Jr., were charged with related criminal offenses and consented to consolidate their trials. Their joint trial in the circuit court was scheduled for Oct. 26, 2021, one day past the deadline of State v. Hicks, which mandates dismissal for violations of the rule requiring criminal defendants to be brought to trial within 180 days.

At the time the date was set, the parties, their attorneys and the court all were unaware of the precise Hicks date due to COVID-19 shutdowns and confusion over whether the Hicks date was tolled. Moreover, coordinating the schedules of multiple attorneys and co-defendants made finding an agreeable trial date difficult.

At the status conference to set the trial date, one co-defendant agreed to the date expressly while a second stayed silent. The third co-defendant appeared later in the day and was informed of the date the others had chosen. But when the state moved to postpone for good cause, the co-defendants moved to dismiss the indictments for failure to comply with the Hicks rule. The circuit court granted the motions and dismissed the indictments with prejudice.

LAW: In Hicks, the Court of Appeals held that the sanction for failure to bring a defendant to trial by the statutory deadline is dismissal of the indictment with prejudice. But the court clarified that dismissal is not proper “where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date” outside of the time period. This is because it would be “entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.”

This appeal, then, turns on what it means for a defendant to “seek[] or expressly consent[] to a trial date” that avoids the sanction of dismissal. Mr. Henry’s appeal is the most straightforward to resolve. When the October 26 date was chosen, his counsel stated, in so many words, that “[s]tarting on the 26th; that’s fine, Judge.” As such the trial court’s dismissal of Mr. Henry’s indictment is reversed because the record reveals that he consented expressly to the October 26 trial date.

Turning next to Ms. Jackson, her statement (“Twenty sixth, okay”) expresses the same degree of consent to the October 26 trial date as Mr. Henry’s counsel’s statement. Because Ms. Jackson’s consent to the October 26 trial date was both express and effective, the trial court’s dismissal of Ms. Jackson’s indictment is reversed.

There are several aspects of Mr. Powell’s case that, read together, could imply his consent to the October 26 trial date. He was present at the status conference, rejected proposed trial dates that fell before the Hicks deadline and acquiesced silently when the court set the October 26 date. What’s more, he consented formally to consolidate his trial to Mr. Henry’s and Ms. Jackson’s by motion filed Aug. 4, 2021 (with no mention of the trial date in that filing).

He was present with counsel for trial on October 26, and it appears that he had no problem with the trial date until the court asked the parties for the Hicks date after the state requested a postponement. His attorney even stated at the hearing on his motion to dismiss, “We agreed to have a trial date set on . . . October 26th of 2021.”

But implied consent isn’t express consent. Mr. Powell’s “arguabl[e] . . . implied consent” doesn’t avoid mandatory application of the Hicks sanction. And his attorney’s statement at the motions hearing that “we agreed” to the trial date didn’t, and can’t, create express consent to a trial date retroactively. The defendant has to consent expressly at the time the trial date is set; his consent can’t be read into or implied from a future statement made on a different posture. The trial court’s dismissal of Mr. Powell’s indictment is affirmed.

Judgement of the Circuit Court for Anne Arundel County affirmed in Case No. 1501 and reversed and remanded in Case Nos. 1499 and 1500.

Contract

Post-nuptial agreement

BOTTOM LINE: Where the husband admitted adultery to his wife, and then agreed in a post-nuptial agreement that he would pay the wife $7 million if he cheated again, his arguments that the agreement lacked consideration, was unconscionable or was procured by undue influence were rejected.

CASE: Lloyd v. Niceta, No. 934, Sept. Term, 2021 (filed Oct. 26, 2022) (Judges Graeff, Nazarian, SHARER)

FACTS:  The primary issue of this appeal is the validity of a post-nuptial agreement between Anna Niceta and Thomas Lloyd. Mr. Lloyd argues that, contrary to the circuit court’s ruling, the agreement was void because it: (1) lacked consideration; (2) was unconscionable or (3) was procured by undue influence.

LAW: The agreement provides that “the parties do not contemplate a suit for divorce at this time, but instead remain desirous of continuing the marriage” and “that Wife is working on forgiving the Husband for such adultery.” The court believes these statements met the consideration requirement to constitute an enforceable contract.

It is well-settled that the forbearance of bringing a legal action is a form of consideration. Therefore, Ms. Niceta’s decision not to file for divorce and to remain in the marriage following discovery of her husband’s adultery, and work on reconciling the marriage, is adequate consideration for the agreement.

Mr. Lloyd next argues that the agreement was unconscionable because it: (1) produced a gross disparity in the financial circumstances of the parties and (2) placed financial obligations on him that were impossible to perform. He argues that the circuit court failed to properly count Ms. Niceta’s assets and asserts that, if those items were viewed as Ms. Niceta’s assets at the time the agreement was signed, he would have been roughly $1.2 million in debt and Ms. Niceta would have assets of roughly $15 million.

The court finds no error in the circuit court’s decision not to attribute those assets to Ms. Niceta under the agreement. Further, the court finds no reason to conclude that the trial court abused its discretion in its conclusion that its conscience was not shocked by the somewhat imbalanced distribution of assets under the agreement.

Mr. Lloyd also argues that the agreement was substantively unconscionable because the terms placed obligations on him that would have been impossible for him to perform at the time it was signed. The court fails to see how he would have had insufficient income and assets to meet his annual $56,540 obligation to Ms. Niceta when he had $2.7 million in assets under the agreement and earned $100,000 per year at the time the agreement was executed.

Mr. Lloyd also argues that the circuit court erred in not rescinding the agreement because (1) it was procured by undue influence and/or (2) was unfair because the parties were in a confidential relationship at the time the agreement was made. To be in a confidential relationship, Mr. Lloyd needed to show that his age, mental condition, education, business experience, state of health and degree of dependence on Ms. Niceta resulted in his belief that he needed to rely upon her to act in his best interest. Based on the facts presented and the court’s findings, this he failed to do.

Because the parties were not in a confidential relationship when they executed the agreement, Mr. Lloyd bore the burden of proving that the agreement was procured by duress/undue influence. The court perceives no error by the circuit court in finding the facts insufficient to meet the requirements for a finding of duress/undue influence.

Mr. Lloyd next argues that the “lump sum” clause of the agreement was void as contrary to public policy. The court is not persuaded. The general public policy prohibition against penalties that coerce behavior in contracts does not apply with the same rigidity in the context of post-nuptial agreements.

Mr. Lloyd also argues that the lump sum provision was unconscionable because he could not pay the $7 million at the time the agreement was entered into and because the provision created an environment of fear and coercion in the marriage. Because Mr. Lloyd alone controlled whether this provision was triggered, based on his assessment of his finances, this provision was not unconscionable.

Ms. Niceta challenges certain child support decisions made by the circuit court. Because child support was not fully briefed, argued or decided by the trial court, the child support issues raised in Ms. Niceta’s cross-appeal to the circuit court are remanded for further appropriate hearing.

Judgment of the Circuit Court for Montgomery County as to the issues raised by Appellant affirmed. Matters relating to child support in Appellee’s cross-appeal remanded.