State of Maryland v. Arnold Davis , No. 1898, September Term 2019, Submitted on Brief : September 14, 2020

INEFFECTIVE ASSISTANCE OF COUNSEL - VOIR DIRE. Whether defense counsel’s failure to object to a co mpound strong feelings question constitutes ineffective assistance of counsel is de termined by the state of the law at the time the question is posed.Circuit Court for Wicomico County

Case No. 22-K-07-000196 REPORTED
IN THE COURT OF SPECIAL APPEALS

OF MARYLAND
No. 1898 September Term, 2019

______________________________________

STATE OF MARYLAND

v. ARNOLD DAVIS

______________________________________ Leahy, Gould, Moylan, Charles E. (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Gould, J.

______________________________________ Filed: January 28, 2021In 2007, Arnold Davis, appellee, was convicted by a jury sitting in the Circuit Court

for Wicomico County of several offenses related to an armed home invasion in Salisbury, Maryland. 1 In 2019, the circuit court granted Mr. Davis’s mo tion for post-conviction relief, finding his counsel ineffective and awarding him a new trial. The State appeals from that decision, asking: “Did the [circuit] court err in f inding [Mr. Davis’s] trial counsel ineffective for not objecting to a compound voir di re question addressing potential jurors’ ‘strong emotional feelings’ regarding the crimes of attempted murder and kidnapping?” For the reasons below, we agree with the State that the circuit court erred and reverse.

FACTS AND PROCEDURAL BACKGROUND During voir dire, the circuit court asked the venir e panel the following question: The charges, as you may have heard, involve an alle gation of attempted murder. Does the nature – and also kidnapping. Do the nature of the charges themselves, just alone, stir up such strong emotion al feelings in you that you cannot be a fair and impartial juror in this case? Mr. Davis’s counsel did not object to this question , and no prospective juror responded. Mr. Davis also did not challenge the propriety of t he voir dire question in his direct appeal. Ten years after his conviction and sentencing, Mr. Davis filed a motion for postconviction relief, arguing that he was entitled to a new trial. Citing Dingle v. State , 361

1 Specifically, Mr. Davis was convicted of first-deg ree assault; four counts of second-degree assault; five counts of reckless enda ngerment; and two counts each of use of a handgun in the commission of a felony or a cri me of violence and wearing, carrying, or transporting a handgun. He was sentenced to a t otal of 75 years and one day of incarceration, which was later modified to 62 years and one day. We affirmed his convictions on direct appeal. See Davis v. State , No. 2158, Sept. Term, 2007 (filed March 20, 2009), cert. denied , 409 Md. 414 (2009).2

Md. 1 (2000), he argued that his trial counsel’s pe rformance was deficient because his counsel did not object to the compound “feelings” v oir dire question recited above. The State responded that Mr. Davis’s trial counsel did not perform deficiently because the voir dire question was proper when Mr. Davis was tried, and therefore, the circuit court did not need to address prejudice. A hearing on the motion was held on May 24, 2019. Mr. Davis’s trial counsel was the sole witness. He testified that he was aware o f the Court of Appeals’ decision in Dingle

. As to why he did not object to the trial court’s vo ir dire question, he responded: “[T]here are instances where I know a question is a Dingle question and I make an affirmative decision not to object. I don’t recall in this cas e so I would be speculating [as to why I did not object].” He explained why he sometimes intent ionally did not object, stating: “Depends on the jury, it depends on the charge, it depends on sort of how the trial is proceeding[,] . . . [whether] I [] believe it is di spositive or significant[, or] I’m more interested in other questions.” He testified, “I c an’t think of a reason why I wouldn’t object to it in this case” and could not recall whether he had a strategy behind not objecting. He candidly testified on cross-examination that for hi m, not objecting to a voir dire question is sometimes a trial tactic and sometimes the resul t of inattention. Following the trial attorney’s testimony and the pa rties’ arguments, the circuit court took the matter under advisement. In a subsequent written opinion, the court agreed with Mr. Davis’s argument that his trial counsel was con stitutionally ineffective. The court concluded that (1) the question was improper under Dingle ; (2) the trial counsel’s failure3

to object amounted to deficient performance; and (3 ) prejudice was presumed under Wright
v. State , 411 Md. 503 (2009).
DISCUSSION The State argues on appeal that the circuit court e rred in concluding that Mr. Davis’s trial counsel was constitutionally ineffective. Th e State argues that trial counsel’s performance was not deficient for not objecting to the voir dire question at issue because, at the time of Mr. Davis’s trial, Maryland law allo wed compound voir dire questions about “the state of mind or attitude” of prospective juro rs about the charged crimes. The State contends that it was not until the Court of Appeals decided Pearson v. State , 437 Md. 350 (2014), that such questions were deemed improper. The State also argues that the circuit court erred in presuming prejudice because Mr. Davi s was required to prove actual prejudice, which he did not. Mr. Davis responds th at the circuit court did not err in finding his trial counsel ineffective for failing to object to an improper voir dire question, and the court correctly found the error created a presumpti on of prejudice.
I.
STANDARD OF REVIEW “[R]eview of a post[-]conviction court’s findings regarding ineffective assistance of counsel is a mixed question of law and fact.” Newton v. State , 455 Md. 341, 351 (2017), cert. denied , ___ U.S. ___, 138 S. Ct. 665 (2018) (citation omi tted). An appellate court will not disturb the factual findings of a trial co urt, unless those findings are clearly

erroneous. Arrington v. State , 411 Md. 524, 551 (2009). We review a trial court ’s conclusions of law, including its conclusion as to whether the petitioner’s counsel was4

ineffective, without deference, making an independe nt determination of the relevant law and its application to the facts. Ramirez v. State , 464 Md. 532, 560 (2019) (citation omitted), cert. denied , ___ U.S. ___, 140 S. Ct. 1134 (2020).
II.
ANALYSIS The Sixth Amendment to the United States Constituti on grants criminal defendants the right to effective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 684-85 (1984). In Strickland , the Supreme Court set out a two-prong test for re viewing ineffective assistance of counsel claims. Id. at 687. The first prong is known as “the performance prong[,]” and the second prong is known as “the prejudice prong[.]” Newton , 455 Md. at 356 (citations omitted). As to the first prong, the petitioner must show th at trial counsel’s performance was so deficient that “counsel was not functioning as t he ‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland , 466 U.S. at 687. Specifically, the petitioner “m ust show that counsel’s representation fell below an objective st andard of reasonableness . . . under prevailing professional norms.” Id. at 688. The Supreme Court explained: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, t o 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 st rong presumption that counsel’s conduct falls within the wide range of re asonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be c onsidered sound trial strategy. There are countless ways to provide effe ctive assistance in any given case. Even the best criminal defense attorne ys would not defend a particular client in the same way.5

Id. at 689-90 (cleaned up). “ [C]ounsel is strongly presumed to have rendered ade quate assistance and made all significant decisions in th e exercise of reasonable professional judgment.” Id. at 690

. As to the second prong, the petitioner must also s how that counsel’s deficient performance prejudiced petitioner’s defense. Id. at 687. This requires a showing of “either (1) a reasonable probability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different; or (2) that t he result of the proceeding was fundamentally unfair or unreliable.” Bailey v. State , 464 Md. 685, 703 (2019) (cleaned up). The Court of Appeals has explained: “[w]e hav e interpreted reasonable probability to mean there was a substantial or significant poss ibility that the verdict . . . would have been affected.” State v. Syed , 463 Md. 60, 86-87 (cleaned up), cert. denied , ___ U.S. ___, 140 S. Ct. 562 (2019). In Strickland , the Supreme Court explained how to assess prejudi ce: a court hearing an ineffectiveness claim must consi der the totality of the evidence before the judge or jury. Some of the fac tual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evide nce, altering the entire evidentiary picture, and some will have had an isol ated, trivial effect. Moreover, a verdict or conclusion only weakly suppo rted by the record is more likely to have been affected by errors than on e with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remainin g findings, a court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. 466 U.S. at 695-96. Applying the foregoing principles of law to the fac ts of this case, we begin with the observation that Mr. Davis’s trial occurred seven y ears after the 2000 decision in Dingle6

and seven years before the 2014 decision in Pearson v. State . The law on compound jury selection questions evolved over this 14-year perio d. Pinpointing Mr. Davis’s trial on this continuum is critical to the central issue before u s: whether Mr. Davis’s trial counsel’s failure to object to the compound strong feelings q uestion deprived Mr. Davis of his Sixth Amendment right to the effective assistance of coun sel.
In Dingle , the Court of Appeals held that a trial court erre d when it asked, over defense counsel’s objection, several two-part voir dire questions concerning: (1) whether prospective jurors had certain “experiences or asso ciations”; and (2) whether those experiences or associations would affect their abil ity to be fair and impartial. 2 361 Md. at 3-4, 21 (footnote omitted). The trial court had in structed the venire that they need not respond to the two-part questions unless they answe red both parts in the affirmative. Id. at 4 (footnote omitted). In reversing, the Court of A ppeals explained: By upholding a voir dire inquiry in which a venire person is required to respond only if his or her answer is in the affirma tive to both parts of a question directed at discovering the venire person[ ’s] experiences and associations and their effect on that venire person ’s qualification to serve as a juror, and producing information only about those who respond, the holding of the Court of Special Appeals endorses a voir dir e process that allows, if not requires, the individual venire person to decid e his or her ability to be fair and impartial. Moreover, in those cases where the venire person has had the questioned experience or association, but believes he or she can be fair, the procedure followed in this case shifts from the tri al judge to the venire responsibility to decide juror bias. Without infor mation bearing on the relevant experiences or associations of the affecte d individual venire persons

2 The voir dire questions at issue in Dingle , asked whether the prospective jurors: (1) had been the victim of a crime, (2) had been ac cused of a crime, (3) had been a witness in a criminal case, (4) had served as a juror in cr iminal case, (5) had belonged to a victim’s rights group, (6) had studied the law, or (7) were associated with members of law enforcement. 361 Md. at 4 n.4.7

who were not required to respond, the court simply does not have the ability, and, therefore, is unable to evaluate whether such persons are capable of conducting themselves impartially. Moreover, the p etitioner is deprived of the ability to challenge any of those persons for c ause. Rather than advancing the purpose of voir dire, the form of the challenge d inquiries in this case distorts and frustrates it. Id. at 21. Less than a year after Dingle was decided, in Thomas v. State , 139 Md. App. 188 (2001), we were confronted with a slightly differen t compound question that the trial court, over the defendant’s objection, had refused to ask the prospective jurors. The question at issue was: “Does any member of the jury panel have such strong feelings regarding violations of the narcotics laws that it would be d ifficult for you to fairly and impartially weigh the facts at a trial where narcotics violatio ns have been alleged?” Id. at 195. We surveyed the relevant caselaw that included an exte nsive discussion of the then-recent Dingle decision, concluded that the trial court erred in refusing the question, and reversed the judgments. See id. at 195-202, 212. We pointed out that although the form of the question violated Dingle , we did not “fault” the defendant for proposing th e question in that manner because the trial had occurred prior to the Dingle decision. Id. at 202. And, we instructed the trial court to break up the compo und question into two parts, stating: The first question should identify any jurors who h arbor strong feelings about narcotics or the laws governing narcotics. Then, t he trial court should individually ask those members of the venire who re sponded affirmatively follow-up questions regarding their ability to be f air and impartial despite their strong feelings.8

Id. at 202. As of July 2, 2001—the date we issued our decision in Thomas —the state of Maryland law appeared to be that Dingle did apply to a “strong feelings” compound question. But not for long. The Court of Appeals granted the State’s petition f or a writ of certiorari to review our decision in Thomas

. State v. Thomas , 369 Md. 202 (2002). The Court agreed with our conclusion that the trial court abused its discreti on in refusing to ask this question. Id. at 214. The Court also took note of our “guidance” to the trial court that the question should be broken into two parts. Id. at 204 n.1. On that issue, the Court disagreed wi th us, stating: We do not share the intermediate appellate court’s interpretation of Dingle as it relates to this case and, thus, we do not bel ieve the guidance it offers is necessary. When the inquiry is into the state of m ind or attitude of the venire with regard to a particular crime or category of cr imes, it is appropriate to phrase the question as was done in this case. Id. Thus, as of May 10, 2002—the date the Court of Ap peals issued its decision in Thomas —the state of the law appeared to be that Dingle did not apply to a “strong feelings” compound question. The Court of Appeals affirmed its Thomas holding three months later in Sweet v.
State , 371 Md. 1 (2002). In Sweet , the petitioner had asked the trial court to give the following voir dire question: “Do the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial in this case?” 371 Md. at 9 (quotations omitted). Although the question had two-parts, the Court held that its decision was controlled by Thomas and concluded that “the trial court abused its dis cretion in failing to pose petitioner’s requested voir dire question, and petitioner is entitled to a new trial.” Id.9

at 10 (italics omitted). The propriety of the form of the question was not discussed in
Sweet

. 3 We subsequently followed the Thomas holding in Baker v. State , 157 Md. App. 600 (2004) and Singfield v. State , 172 Md. App. 168 (2006). In Baker , citing Thomas and
Sweet , we held that the trial court erred in refusing to ask the venire the following question: “[D]o you have any bias or prejudice concerning han dguns which would prevent you from fairly weighing the evidence in this case?” Baker , 147 Md. App. at 612. In Singfield , citing Thomas , Sweet , and Baker , we held that the trial court erred in refusing to ask the venire the following question: “Does any member of the jury panel feel that the nature of this case would make it difficult or impossible for you to render a fair and impartial verdict, specifically because this case involves a murder wi th a handgun?” Singfield , 172 Md. App.

at 170 n.2, 180-81 (italics omitted). The propriety of the compound form of the question was not before us in either case. Mr. Davis was tried in the year following Singfield , on August 27-28, 2007. Four years later, in State v. Shim , 418 Md. 37, 39 (2011), the Court of Appeals reasserted its Thomas and Sweet position, holding that the trial court had abused its discretion in refusing “to ask whether the venire p anel harbored ‘such strong feelings concerning the violent death of another human being ’ that they would be ‘unable to render a fair and impartial verdict based solely on the ev idence presented[.]’” The Court stated:

3 Perhaps that’s because the trial in Sweet apparently took place before the Court decided Dingle

. See Maryland Judiciary Case Search, available at http://casesearch.courts.state.md.us/casesearch/inq uiryDetail.jis?caseId=86388C&loc=68 &detailLoc=MCCR (last visited Dec. 6, 2020).10

“When requested by a defendant, and regardless of t he crime, the court should ask the general question, ‘Does any member of the jury pane l have such strong feelings about [the charges in this case] that it would be difficult fo r you to fairly and impartially weigh the facts.’” Id. at 54. The compound nature of the question was al so not addressed by the Court in Shim

. That same year, in Wimbish v. State , 201 Md. App. 239, 268 (2011), we articulated our understanding of the Court of Appeals’ holdings in Dingle , Thomas , Sweet , and Shim

. There, we held that a trial court did not abuse its discretion in refusing to ask prospective jurors four two-part questions about their “state o f mind or attitude” that would prevent them from being fair and impartial. We reasoned: Unlike the impermissible questions in Dingle , these questions pertained, not to the prospective juror’s experiences or associati ons, but to his “state of mind or attitude,” about gangs, race, guns, and app ellant, himself. The problem inherent in the Dingle questions, as noted, was that those questions allowed a prospective juror, who had had a particul ar experience or association that might prejudice his views, to with hold that information from the court, thus impermissibly “shift[ing] from the trial judge to the venire responsibility to decide juror bias.” Dingle , 361 Md. at 21. In contrast, the questions at issue, here, asked pr ospective jurors specifically whether they had any disqualifying biases and highl ighted four areas in which such a bias might be present: gangs, race, th e right to gun ownership, and appellant, himself. An affirmative answer to o ne of the questions meant that the prospective juror could not be impartial. Consequently, the prospective juror was not, as in Dingle , withholding information that the court required to make its own independent determin ation of the prospective juror’s ability to be impartial. Id. Like the question in Thomas , which addressed the prospective juror’s “state of mind or attitude” with respect to a particular c rime, these questions did not run afoul of Dingle. And, because the questions were permissible, appellant’s assertion that his counsel was constitu tionally ineffective for failing to object to them is without merit. See Strickland v. Washington , 46611

U.S. 668, 687 (1984) (To prevail on a claim of inef fective assistance of counsel, the [petitioner] must first show “that cou nsel made errors so serious that counsel was not functioning as the ‘counsel’ g uaranteed the [petitioner] by the Sixth Amendment.”). Id. at 267-68. As of September 29, 2011—the date of o ur decision in Wimbish —it appeared that footnote 1 of the Court of Appeals’ opinion in Thomas reflected the state of the law on that issue. That is, “[w]hen the inquiry is into t he state of mind or attitude of the venire with regard to a particular crime or category of cr imes, it is appropriate to phrase the question” as: “Does any member of the jury panel ha ve such strong feelings regarding violations of the narcotics laws that it would be d ifficult for you to fairly and impartially weigh the facts at a trial where narcotics violatio ns have been alleged?” Thomas , 369 Md.
at 204 n.1. Three years later, in Pearson v. State , 437 Md. 350 (2014), the Court of Appeals specifically abrogated those portions of Thomas , Sweet , and Shim that permitted two-part “strong feelings” voir dire questions. In Pearson , the Court of Appeals held that the trial court had acted properly in not asking the venire w hether any prospective juror had ever been a victim of a crime, in part because the trial court had asked the prospective jurors: “Does any member of the panel hold such strong feel ings regarding violations of the narcotics laws that it would be difficult for you t o fairly and impartially weigh the facts of this trial where narcotics violations have been all eged?” Id. at 361 (quotation marks omitted). In addition, the Court of Appeals determ ined that the phrasing of the two-part “strong feelings” question was improper. Id. at 360-61.12

Before continuing with our discussion of Pearson , we pause to recall that in this case, the circuit court found that Mr. Davis receiv ed ineffective assistance of counsel by concluding that “the precedent that bound Trial Cou nsel at the time of [Mr. Davis’s] trial came from Dingle .” But that was not the state of the law when Mr. Davis’s case went to trial in 2007. As noted above, just one year after Dingle , we too believed that its holding applied to strong feelings questions, so much so th at in Thomas , we sua sponte offered guidance to the trial court to break up the compoun d question into two separate questions. Thomas , 139 Md. App. 188. Yet, the Court of Appeals went out of its way to negate our guidance by telling the trial court that the origin al, compound phrasing of the question was “appropriate.” Thomas, 369 Md. at 204 n.1. Because our guidance certainly did not

contravene Dingle , we see no apparent reason for the Court to have d one so other than to guide courts and trial counsel on the scope and rea ch of Dingle

. 4 The Court of Appeals in Pearson recognized that its application of Dingle to the strong feelings compound questions marked a change in the law from allowing to disallowing compound questions that “shift responsi bility to decide a prospective juror’s bias from the trial court” to the prospective juror s. Pearson , 437 Md. at 363. Thus, the Court of Appeals emphasized that, “[t]o be clear, w e amend this Court’s holding in Shim only in the context of phrasing of the ‘strong feel ings’ voir dire question in Shim .” Id. at 363 (internal citations omitted). Moreover, the Co urt in Pearson made clear that its

4 This likely explains why, in subsequent cases such as Sweet , Baker , Singfield , and Shim , the phrasing of the strong feelings questions was not addressed.13

holdings applied “prospectively as of the date on w hich this opinion [was] filed.” Id. at 370. Here, the circuit court erred in applying the Court ’s holding in Pearson retroactively to Mr. Davis’s trial counsel in 2007, when the stat e of the law was quite different. Based on the law as it existed at the time of trial, Mr. Davis’s trial counsel’s failure to object to the two-part “strong feelings” voir dire question w as not a deficiency in counsel’s defense of Mr. Davis. See State v. Gross , 134 Md. App. 528, 553 (2000) (“[C]ounsel is under no duty to anticipate a change in the case law” becaus e trial counsel’s performance is judged “upon the situation as it existed at the time of trial .”) (quoting State v. Calhoun , 306 Md. 692, 735 (1986), aff’d , 371 Md. 334 (2002) (emphasis added in Gross )). Because Mr. Davis failed to satisfy the first Strickland prong of his ineffective assistance claim, we need not consider the prejudice prong. See Newton , 455 Md. at 356 (“ Strickland also instructs that courts need not consider the performance prong and the prejudice prong in order, nor do they need to address both prongs in every case.” ) (citations omitted).

JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY REVERSED. COSTS TO BE PAID BY APPELLEE.