Circuit Court for Baltimore City Case Nos. 104173062 - 63
Deborah S., Meredith, Battaglia, Lynne A. (Senior Judge,
Specially Assigned), JJ.
2005, a jury, sitting in the Circuit Court for Baltimore
City, convicted Travis Thaniel, appellee, of first-degree
murder of Shawn Boston, attempted second-degree murder of
Catherine Jones, and use of a handgun in the commission of a
crime of violence. The court thereafter sentenced Thaniel to
life imprisonment for first-degree murder and consecutive
terms of thirty years for attempted second-degree murder and
twenty years for use of a handgun in the commission of a
crime of violence. A panel of this Court affirmed his
convictions on direct appeal. Thaniel v. State, No.
1374, September Term, 2005 (filed Sept. 25, 2007), cert.
denied, 402 Md. 354 (2007).
subsequently filed a postconviction petition, raising claims
of ineffective assistance of both trial and appellate
counsel. The postconviction court granted his petition and
ordered a new trial. The State thereafter filed an
application for leave to appeal, which we granted and
transferred the case to our appellate docket. The State now
raises the following questions for our consideration:
I. Whether the postconviction court erred in concluding
that trial counsel was ineffective in agreeing to close the
courtroom during jury selection;
II. Whether the postconviction court erred in concluding that
trial counsel was ineffective in failing to object when the
trial court and counsel addressed a note from the jury in
III. Whether the postconviction court erred in concluding
that appellate counsel was ineffective in failing to raise on
appeal an unpreserved claim that the trial court erred in
addressing a note from the jury in Thaniel's absence; and
IV. Whether the postconviction court erred in concluding that
the cumulative effect of trial counsel's alleged errors
warranted postconviction relief.
merit in the State's contentions and shall vacate the
postconviction court's order but remand, because the
State has not challenged one of the postconviction
court's rulings, by which it found that trial counsel had
been ineffective in failing to file motions to modify
sentence and for sentence review by a three-judge panel.
Because that ruling stands, we shall direct that the
postconviction court issue an order permitting Thaniel to
file belated motions to modify sentence and for sentence
review by a three-judge panel.
February 6, 2004, Shawn "Peanut" Boston was driving
his car through East Baltimore, accompanied by Catherine
Jones, the mother of his son. Thaniel v. State, No.
1374, September Term, 2005, slip op. at 3, 4-5. At
approximately 9:00 p.m., while they were stopped at a traffic
light, Thaniel entered the vehicle and sat in the rear seat.
Id. at 2, 5. "As they turned onto Eager Street,
near her grandmother's residence, [Thaniel] said
'Man, you know what's up. Kick that shit
out.'" Id. at 5. Boston muttered, "Aw,
shit," stopped the car, took an item from beneath his
seat, and handed it to Thaniel. Id. Thaniel then
said, "this was for my man E," and, in Jones's
words, "started shooting" Boston and Jones.
died from "multiple gunshot wounds." Id.
at 3. Ms. Jones survived but was seriously injured and
endured an extensive hospital stay. When police detectives
first attempted to interview her about the shooting,
seventeen days afterwards, she "could mouth words, but
she could not talk." Id. She stated, at that
time, that "she had not seen the shooter and that no one
else" had been in the car with her, besides Boston.
Id. She further stated that she was "scared and
wanted protection." Id. at 3-4. Ultimately,
Jones decided to cooperate with the police, having decided
that Thaniel "shouldn't get away with this because
he tried to take my life, and he took my son's
father['s] life." Id. at 5.
were two other witnesses to the shooting, Latisha Privette
and Jerome Wiggs. Privette had been a passenger in
Wiggs's car on the night of the shooting. Id. at
2. As they turned onto Eager Street, she observed a man
exiting the back of a vehicle and "shooting
through" the driver's side window of the vehicle as
he did so. Id. Although she could not see the
shooter's face, she described him as "tall and dark
skinned," wearing a ski cap, "with a thick
build." Id. & n.4. Privette called 911 and
told the operator what she had seen. Id. at 2.
also observed the man shooting through the driver's side
window of Boston's car. He described the shooter as
wearing "baggy clothes" and a skull cap and
"estimated that he [had] heard 'at least ten
shots.'" Id. Wiggs stated that he then
"got the hell out of there." Id. at 3.
addition to the two eyewitnesses to the crime, a third
person, Quante Bell, an acquaintance of Thaniel and Jones,
gave a statement to police. In April of 2004, several months
after Boston's murder, Bell had been arrested in an
unrelated case. While being interrogated, he told Baltimore
City Police Detective Raymond W. Laslett, the lead detective
in the Boston case, that he had been privy to a conversation
between his brother and Thaniel. According to Bell, Thaniel
had told Bell's brother that he had shot Boston in the
chest. (Later, at Thaniel's trial, Bell would disavow his
statement, which was then introduced into evidence as a prior
of 2004, a grand jury returned two indictments, charging
Thaniel with a variety of offenses related to the February
6th shooting. The first indictment charged Thaniel with
first-degree murder of Shawn Boston; use of a handgun in the
commission of a crime of a felony or violence; and wearing,
carrying, or transporting a handgun. The second charged him
with attempted first- and second-degree murder of Catherine
Jones; first- and second-degree assault of the same victim;
use of a handgun in the commission of a crime of a felony or
violence; and wearing, carrying, or transporting a handgun.
In June of 2005, a trial was held on those charges.
selection was about to begin, the following exchange, which
forms the basis for one of Thaniel's ineffective
assistance claims, took place:
[Trial counsel had just been excused from being in the
courtroom momentarily while the bailiff arranged for the
venire to enter the courtroom.]
THE CLERK: When you do this selection should I have all of
them wait outside? We're going to use all 85 chairs.
THE COURT: Oh, you mean for the -- when we select the jury?
THE CLERK: Yeah.
THE COURT: Are they -- are we going to need -- are we going
to require all -- all the spaces in the courtroom?
THE CLERK: To get them close up as possible so they [will] be
able to hear their number.
THE COURT: Well, they -- I can't clear the courtroom for
jury selection. I'm not allowed to do that.
THE CLERK: Oh, okay.
THE COURT: So I would suggest -- Mr. [prosecutor], and, Mr.
[trial counsel], could you approach for a second again,
THE CLERK: Mr. [trial counsel]?
THE COURT: Mr. [trial counsel], could you approach for a
(Counsel and the defendant approached the bench, and the
THE COURT: Okay.
The clerk's expressed some concern that there may be not
enough room for all the -- especially the way the people are
spread out now. Now, I -- I'm assuming that there are
some people here on behalf of the defendant and there's
some people here on behalf of the victim.
[TRIAL COUNSEL]: I don't know, Your Honor. I told my
people yesterday, anticipating this problem, that nothing
really of consequence is going to happen until the afternoon.
So I'm not sure --
THE COURT: Do we have -- do you have people here that you
[TRIAL COUNSEL]: Anybody there?
THE COURT: People on behalf of the defendant?
[TRIAL COUNSEL]: Huh?
THE DEFENDANT: Yes. (Inaudible).
[TRIAL COUNSEL]: Yeah.
THE COURT: He heard that. Present in the courtroom? Well,
what I would suggest -- I don't know who's who. I
mean, I was going to have everybody move to one
section but I don't want people who are at enmity with
one another sitting next to each other.
[THE STATE]: Right. I don't think that would be a
THE COURT: So, --
[TRIAL COUNSEL]: I -- I don't care if you send
them outside, Judge. Because there's no room.
THE COURT: I can't on my motion clear the
[TRIAL COUNSEL]: I was going to ask that -- them to step out.
THE COURT: During jury selection?
[TRIAL COUNSEL]: Yes. Just because I figured that you --
THE COURT: I'll do -- I'll do it. But can I do that?
[TRIAL COUNSEL]: I'll do it.
THE COURT: Is it -- is it ...