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Guth v. Webb

United States District Court, Fourth Circuit

June 21, 2013

DEAN MICHAEL GUTH, Petitioner,
v.
WAYNE WEBB, et al., Respondents.

MEMORANDUM

ALEXANDER WILLIAMS, Jr., District Judge.

A Response to the above-captioned Petition for Writ of Habeas Corpus, along with exhibits and Petitioner's Traverse, [1] were filed in the above-captioned case. The matter is now ready for dispositive review. The Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2011); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. ยง2254(e)(2)).

Background

On March 25, 2009, Petitioner Dean Michael Guth ("Guth") was convicted in the District Court for Frederick County, Maryland, and appealed the judgment to the Circuit Court for Frederick County. ECF No. 14 at Ex. 1, p. 4; Ex. 2; and Ex. 9 at p. 22. On August 17, 2009, Guth was tried before a jury in the Circuit Court on charges of attempted felony theft and providing a false statement to a police officer. Id. at Ex. 1, p. 5. At trial, the State established through witnesses, a video surveillance tape, still photographs, and other evidence that on February 6, 2009, Guth attempted to steal 18 "Call of Duty" video games from a Best Buy store using a rigged, foil-lined bag he brought into the store. Id. at Ex. 3, pp. 89-117; Ex. 9 at pp. 24-25. When approached by the police following the attempted theft Guth fled and, after he was apprehended, identified himself to the arresting officers as "Chris Alan Tolar." Id. at pp.65-68. Based on the evidence produced at trial, the jury returned a guilty verdict on charges of attempted theft and providing false information to police. Guth was sentenced to serve 10 years in prison. Id. at pp. 143-46 and 152.

Guth appealed the verdict to the Court of Special Appeals of Maryland; the case was transferred to the Court of Appeals, and treated as a Petition for Writ of Certiorari. ECF No. 14 at Ex. 4. In his appeal, Guth alleged that certain evidence was improperly admitted at trial. On December 11, 2009, the Court of Appeals denied Guth's request for review. Id. at Ex. 5. He did not seek further review in the Supreme Court, making his conviction final on March 11, 2010, when the time for seeking review expired. See Sup.Ct. Rule 13.1.

In post-conviction proceedings initiated on October 2, 2009, Guth alleged prosecutorial misconduct, ineffective assistance of trial counsel, and insufficient evidence to sustain a conviction for felony theft. ECF No. 14 at Ex. 6-10. Guth claimed it was misconduct for the State to: present for admission into evidence a bag with a defective chain of custody; fail to provide during discovery a working copy of the surveillance tape, witness statements, and photographs; make improper closing arguments; and tamper with the surveillance tape. Id. With respect to his claim of ineffective assistance of counsel, Guth claimed counsel failed to: object to inconsistent trial testimony; object to the admission of the bag and surveillance taped based on a defective chain of custody; review a working copy of the surveillance tape prior to the trial in the Circuit Court; and make a sufficient motion for judgment of acquittal. Id. A hearing held to consider Guth's post-conviction claims on May 25, 2011, included testimony from Guth's trial counsel. Id. at Ex. 9. Post-conviction relief was denied on all grounds raised by opinion and order issued June 7, 2011. Id. at Ex. 10.

Guth filed an application for leave to appeal the post-conviction court's denial of relief with the Maryland Court of Special Appeals. ECF No. 14 at Ex. 11. In his application, Guth claimed (A) the prosecutor committed misconduct by (1) not maintaining a proper chain of custody over a blue bag admitted into evidence, (2) violating the Maryland discovery rules, (3) making improper closing argument, and (4) improperly entering a surveillance video into evidence; (B) trial counsel was ineffective for (1) failing to object to inconsistent testimony, (2) not objecting to evidence "known to be mishandled, " (3) failing to review the surveillance videotape prior to trial, and (4) failing to object to the introduction of the surveillance videotape; and (D) the evidence was insufficient to sustain "the Conviction." Id. The Court of Special Appeals summarily denied Guth's application on August 28, 2012; the mandate issued on September 28, 2012. Id. at Ex. 12.

In the Petition for Writ of Habeas Corpus filed with this Court, Guth alleges the prosecutor committed misconduct by introducing into evidence a blue gift bag allegedly used in the attempted theft which was retained by Best Buy employees "for weeks after the incident" and thus not kept in a proper chain of custody. ECF No. 1 at p. 9. Guth also alleges prosecutorial misconduct in connection with alleged discovery violations. He claims the State entered into evidence surveillance video footage depicting the attempted theft and, pursuant to his motion for pre-trial discovery, a copy of the DVD given to the defense was provided to the defense. Id. at p. 10. Guth alleges, however, that the DVD was a non-working copy and though the State was informed of same, the error was not corrected prior to trial. Id. Guth also claims the State failed to turn over witness statements during discovery and did not provide photographs used at trial against him until the day of trial. Id.

Guth also claims the prosecutor committed misconduct by improperly vouching for the credibility of a State's witness, Raymond Curley, [2] during rebuttal closing argument. ECF No. 1 at p. 11. Specifically, Guth claims it was improper for the prosecutor to argue that the witness answered questions honestly and displayed no bias during his testimony, and asserts the prosecutor's comments deprived him a fair trial. Id. Additionally, Guth claims it was improper for the prosecutor to tell the jury to ignore evidence that the date setting on the video surveillance tape was wrong. Id.

Guth also claims he was deprived of a fair trial because the video surveillance tape was enhanced and "tampered with by the State." Id. at pp. 11-12. He claims green pixels were removed from the picture to brighten the image, making it more visible to the jury. He states that the failure to disclose that the video was enhanced deprived him of the ability to challenge the accuracy and reliability of the evidence.[3] Id.

Guth alleges four instances of ineffective assistance of counsel. ECF No. 1 at pp. 13-17. He claims trial counsel was ineffective for failing to cross-examine a key witness regarding testimony he provided in the second trial in the Circuit Court which conflicted with testimony he provided in the first trial in the District Court. Id. at pp. 13-14. Guth also states that counsel was ineffective for failing to object to the introduction of a blue gift bag into evidence when a proper chain of custody was not established. Id. at p. 14. Guth next claims counsel was ineffective when he failed to make arrangements with the prosecutor to view the State's copy of the video surveillance DVD prior to his trial in the Circuit Court.[4] Id. at pp. 14-15.

Guth further asserts trial counsel was ineffective for failing to argue during a motion for judgment of acquittal that there was no evidence to support a finding that Guth had made a false statement to the police with the intent to cause an investigation or to have the police take other action. ECF No. 1 at pp. 15-16. Counsel provided detailed argument regarding the charges for attempted theft, but merely stated with respect to the false statement charge that "the State failed to make a prima facie case' for that charge."[5] Id. at p. 15.

Guth finally claims counsel was ineffective for failing to object to the admission of the video surveillance tape because a proper chain of custody was not established. Id. at p. 16. He states that the DVD of the surveillance was authenticated by Best Buy employee Raymond Curley who testified he turned the video over to police. The DVD was not brought to court by police; rather, it was brought to court by the State's Attorney. Guth alleges this means no proper chain of custody was established making it inadmissible. Id.

Guth further claims that there was "insufficient proof that the items that were attempted to be stolen were worth over $500." ECF No. 1 at p. 17. Guth states that Curley testified that each item stolen was worth $59.59 and that 18 items were stolen, but that "there was no ...


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