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Gantt v. State

Court of Special Appeals of Maryland

June 4, 2019


          Circuit Court for St. Mary's County Case No. 18-K-07-000578

          Wright, Reed, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          Moylan, J.

         It would be challenging to declare that in this case the 1986 decision of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, is robustly alive and well. The mundane reality, however, is that in this case, the raising of a Batson issue is but an opportunistic afterthought on tenuous life-support. Even without Batson, however, the appellant's criminal history has a stubborn vitality of its own that is slowly hardening into local legend.

         The Scourge Of Lexington Park

         The appellant is Antonio Warren Gantt. His specialty is bank robbery. For a town the size of Lexington Park (population 11, 626 as of the census of 2010), the appellant was for a decade a one-man crime wave. Prior to the two bank robberies which we will be mentioning in fuller detail, the appellant had already compiled a not insignificant criminal history. The first of the actual bank robberies occurred on September 24, 2007, at the Lexington Park branch of the Maryland Bank and Trust. The appellant, single-handedly, walked up to a teller and demanded cash in hundreds and fifties, threatening to kill the teller if she did not comply. The teller turned over to him approximately $22, 000. The appellant was not immediately apprehended and remained at large to strike again.

         Five weeks later, on October 31, 2007, the appellant, again single-handedly, robbed the same Lexington Park branch of the Maryland Bank and Trust for yet a second time, making off on that occasion with between $43, 000 and $44, 000. Eight separate witnesses identified him at trial. Three of the tellers were sprayed with gasoline and ordered to go into the back room where the money was stored. The appellant threatened to "kill [them] and burn the bank down" if they did not follow his orders. The appellant herded them into the vault and shut the door. On that occasion, however, the bank manager was able to turn over to the appellant $1, 000 in "bait money." The appellant was shortly thereafter apprehended.

         On November 18, 2008, a St. Mary's County jury convicted the appellant of the October 31, 2007, bank robbery. On the next day, November 19, 2008, another St. Mary's County jury convicted the appellant of the September 24, 2007, bank robbery. At a joint sentencing for both sets of convictions on January 16, 2009, the appellant was sentenced, as a subsequent offender, to concurrent terms of life imprisonment without parole for each of the bank robberies.

         The appellant took a consolidated appeal to this Court. In an unpublished opinion, we concluded that Rule 4-215 had been violated because the appellant had been permitted to discharge his counsel without having been informed that he was facing the possible sentence in each case of life without parole. Gantt v. State, No. 2704, September Term, 2008, filed on August 24, 2010.

         Some indication of the local reaction to the reversals may be had from the August 23, 2011, article in the St. Mary's County Enterprise which quoted one of the exasperated trial judges, upon being informed of the reversals, as saying, "I think the Court of Special Appeals made a very stupid decision . . . . It's obvious I hate him. I think he should be hung. Go get me a rope."[1]

         On September 6, 7, and 8, 2011, the appellant was retried for the October 31, 2007, bank robbery by a St. Mary's County jury, presided over by Judge Karen H. Abrams. The appellant was again convicted. The appellant then took his second appeal to this Court. Gantt v. State, No. 1871, September Term, 2011, filed on April 1, 2013. In a footnote, the opinion of this Court on that occasion took note of the "less than amicable" feeling of the appellant toward the judiciary.

The mood throughout this pre-trial hearing was less than amicable. At one point the appellant requested that he be at the trial in civilian clothing. In declining that request, Judge Abrams reminded the appellant that he had actually been bound and shackled at his first trial. At one point Judge Abrams advised him that as a pro se defendant, he was "going to have to show respect for the court or be removed from the courtroom." The appellant responded:
MR. GANTT: You bitch. You are a bitch. You are a real bitch. I never came into this courtroom and did anything. These officers tazed me and they tape me up. You have the nerve to chastise me about if I act up? You were the ones who abused me. I never abused anyone. So I don't want to hear that shit. We want to go to trial, let's go to trial. Don't chastise me like I came into this courtroom and did something to someone. You want me - you got blood on your -

(Emphasis supplied).

         Thus, the cast of characters (the appellant) and the mood of the local community. Feelings were running high.

         The Adjudicatory Saga

         Both that second trial of September 6, 7, and 8, 2011, for the October 31, 2007, bank robbery and that second appeal to this Court will be examined in full detail. In that appeal, the appellant raised five contentions. In response to one of the contentions, this Court vacated the enhanced sentence for two of the armed robbery convictions, but we otherwise affirmed the convictions. On the sentencing remand, Judge Abrams sentenced the appellant to a term of 20 years on each of the armed robbery convictions, the sentences to run concurrently. Calhoun v. State, 46 Md.App. 478, 488-89, 418 A.2d 1241 (1980), affd, 290 Md. 1, 425 A.2d 1361 (1981); State v. Taylor, 329 Md. 671, 674, 621 A.2d 424 (1993).

         On December 13, 2013, the appellant filed a pro se Petition for Post-Conviction Relief. Supplemental Petitions followed on December 20, 2013; on September 26, 2014; on December 27, 2016; and on November 1, 2017. On November 9, 2017, the appellant withdrew all grounds for Post-Conviction Relief not set forth in the "November Supplement."

         A Post-Conviction hearing was held before Judge Steven I. Platt on November 9, 2017. On December 21, 2017, Judge Platt filed his order, which permitted the appellant to file a belated Motion for Modification with respect to two counts and which permitted the appellant to file a belated Application for Review of Sentence by a Three Judge Panel. He otherwise denied the Petition for Post-Conviction Relief in all respects.

         Of the four issues before Judge Platt at the Post-Conviction hearing, two of them alleged that appellate counsel had been inadequate for failing to raise issues on the second appeal to this Court from the September 8, 2011, conviction for the October 31, 2007, bank robbery. One of the alleged inadequacies of appellate counsel was the failure to appeal the rejection of the appellant's ostensible Batson challenge, the alleged inadequacy now before us. The other alleged appellate inadequacy was counsel's failure to appeal from the denial of the appellant's motion for a change of venue based on the intemperate remarks of the first trial judge to the local newspaper upon the reversal of both bank robbery convictions. The appellant is not now challenging that second alleged appellate inadequacy.

         A Single Contention

         On January 9, 2018, the appellant filed an Application for Leave to Appeal to this Court based on his chagrin at failing to prevail at the Post-Conviction hearing. That application was granted on July 17, 2018. In what is now his third appeal to this Court, the appellant raises a single contention:

         The post conviction court erred in denying Appellant's claim of ineffective assistance of appellate counsel for failing to raise his meritorious Batson issue on direct appeal.

         Strickland v. Washington: The Two-Pronged Test

         Since 1984, the universally accepted test for measuring the Sixth Amendment adequacy of counsel, both trial and appellate, has been Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In thoroughly analyzing Strickland, this Court in State v. Gross, 134 Md.App. 528, 760 A.2d 725 (2000), affd, Gross v. State, 371 Md. 334, 809 A.2d 627 (2002), focused on its two-pronged character.

The fountainhead is Strickland v. Washington. After pointing out that the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," the Supreme Court went on to establish the now classic two-pronged test for making such a determination. It referred to the two distinct elements that had to be analyzed as the "performance component" and the "prejudice component" of the "ineffectiveness inquiry."

134 Md.App. at 550 (emphasis supplied; citations omitted).

         A number of Maryland cases, incidentally, have discussed and applied Strickland and its two-pronged test. Wiggins v. State, 352 Md. 580, 600-03, 724 A.2d 1 (1999); Oken v. State, 343 Md. 256, 283-95, 681 A.2d 30 (1996); Gilliam v. State, 331 Md. 651, 664-86, 629 A.2d 685 (1993); State v. Thomas, 328 Md. 541, 616 A.2d 365 (1992); Williams v. State, 326 Md. 367, 605 A.2d 103 (1992); State v. Thomas, 325 Md. 160, 169-73, 178-88, 599 A.2d 1171 (1992); Bowers v. State, 320 Md. 416, 424- 31, 578 A.2d 734 (1990); State v. Colvin, 314 Md. 1, 5-7, 14-19, 548 A.2d 506 (1988); State v. Calhoun, 306 Md. 692, 728-38, 511 A.2d 461 (1986); State v. Tichnell, 306 Md. 428, 433-57, 509 A.2d 1179 (1986); Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985); State v. Purvey, 129 Md.App. 1, 5-27, 740 A.2d 54 (1999), cert. denied, 357 Md. 483, 745 A.2d 437 (2000); and Cirincione v. State, 119 Md.App. 471, 483-509, 705 A.2d 96, cert. denied, 350 Md. 275, 711 A.2d 868 (1998).

         To prevail on a claim that the constitutionally guaranteed assistance of counsel was inadequate, a defendant must satisfy both the performance component and the prejudice component of Strickland. The defendant, moreover, has the burden of proof with respect to each.

         The Performance Prong

         Strickland itself pointed out that the defendant's burden on the performance prong is to prove that counsel's representation was so deficient as to undermine the adversarial process.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.

466 U.S. at 687 (emphasis supplied).

         In State v. Gross, we pointed out that the standard for appellate comparison is not an "ideal" but only a "reasonable performance."

Strickland then admonished that counsel is not to be measured against an ideal standard but is to be assessed in terms of whether his lawyerly assistance was "reasonable" and that that is to be measured "under prevailing professional norms[.]"

134 Md.App. at 551.

         Strickland was very clear, moreover, that counsel's performance must be measured against prevailing professional norms.

As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. . . . When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.
The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

466 U.S. at 687-88 (emphasis supplied; citations omitted).

         In State v. Gross, we made it clear that the appellate review of counsel's performance must be highly deferential.

In guarding against too facile a finding of deficient performance by trial counsel, the Supreme Court circumscribed after-the-fact review, by post-conviction court and appellate court alike, with a number of cautionary admonitions. One of those is that "judicial scrutiny of counsel's performance must be highly deferential" and that reviewing courts should be especially careful not to judge a performance through the distorting lens of hindsight.

134 Md.App. at 552 (emphasis supplied).

         As to the standard of review of the adequacy of a performance, Strickland left no doubt.

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to 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 strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689 (emphasis supplied; citations omitted).

         The Prejudice Prong

         The fact that a given trial tactic proves to be unsuccessful, moreover, does not ipso facto establish that the defendant was prejudiced. Strickland is clear.

[Ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice . . . .

466 U.S. at 693 (emphasis supplied). Strickland went on:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

466 U.S. at 694 (emphasis supplied).

         In Oken v. State, 343 Md. 256, 681 A.2d 30 (1996), the Court of Appeals discussed Strickland's prejudice component.

In order to establish prejudice, Oken must show that there is a substantial possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

343 Md. at 284 (emphasis supplied).

         Adequacy Of Appellate Counsel

         With inevitable variations in its appellate application, Strickland's two-pronged test for the adequacy of counsel operates as surely at the appellate level as it does at the trial level. As this Court observed in State v. Gross:

The two-pronged test enunciated in Strickland applies to claims of ineffective assistance of appellate counsel just as surely as it does to claims of ineffective assistance of trial counsel.
Although the basic principles enunciated by Strickland remain the same, whether applied to a trial performance or an appellate performance, the juridical events to which those principles apply obviously differ somewhat depending on the operational level being scrutinized.

134 Md.App. at 556 (emphasis supplied; citations omitted).

         A major and recurring issue at the appellate level is the selection of which issues, out of a larger totality of issues, to raise on appeal. In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the Supreme Court was assessing the constitutional adequacy of appellate lawyering. The United States Court of Appeals for the Second Circuit had granted habeas corpus relief because an attorney had failed to raise on appeal a non-frivolous argument specifically requested by a defendant. In reversing the Second Circuit, the Supreme Court pointed out that the strategic selection of which appellate issues to raise and which to ignore is one entrusted to the strategic judgment of appellate counsel and is not a matter for second-guessing by an appellate court.

There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts-often to as little as 15 minutes-and when page limits on briefs are widely imposed. Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments-those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal 26 A.B.A.J. 895, 897 (1940)-in a verbal mound made up of strong and weak contentions.

463 U.S. at 752-53 (emphasis supplied; citation omitted).

         In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), the Supreme Court reaffirmed the tactical role of appellate counsel in assessing the relative strengths and weaknesses of various arguments and in then choosing, as a matter of trial tactics, which to push and which to ignore.

After conducting a vigorous defense at both the guilt and sentencing phases of the trial, counsel surveyed the extensive transcript, researched a number of claims, and decided that, under the current state of the law, 13 were worth pursuing on direct appeal. This process of "winnowing out weaker arguments on appeal and focusing on" those more likely to prevail far from being evidence of incompetence, is the hallmark of effective appellate advocacy.

477 U.S. at 535-36 (emphasis supplied).

         At the appellate level, the prejudice prong as well as the performance prong must be satisfied. Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), makes it clear that the burden remains on the defendant to demonstrate prejudice at the appellate level by showing that had the unraised argument been raised, the appeal would probably have been successful.

If Robbins succeeds in such a showing [of a deficient performance], he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal.

528 U.S. at 285 (emphasis supplied).

         In Newton v. State, 455 Md. 341, 168 A.3d 1 (2017), Judge Adkins wrote for the Court of Appeals:

As to the performance prong, "[t]he Sixth Amendment does not require an attorney to argue every possible issue on appeal." . . . . Therefore, appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal."

455 Md. at 363 (emphasis supplied; citations omitted).

         The Selection Of Appellate Issues

         In a relativistic world, the manager who has both a Ruth and a Cobb in his starting line-up will not be second-guessed for having left even a DiMaggio on the bench. Appellate counsel are well advised to be highly selective in choosing contentions and then to go with the best. Even good contentions may prudently be ignored if they are less than the best. As this Court noted in State v. Gross:

We are not suggesting for a moment that Gross's claims with respect to the DNA evidence were frivolous. An effective performance by appellate counsel, however, does not require that every claim, even if non-frivolous, be raised on appeal. Smith v. Robbins observed in this regard:
[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.

134 Md.App. at 562-63 (some emphasis supplied; citation omitted).

The Supreme Court similarly observed in Jones v. Barnes:
Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.

463 U.S. at 751-52 (emphasis supplied). The Supreme Court quoted with approval from the 1980 Manual of the Association of the Bar of the City of New York on practice before the Second Circuit.

"[A] brief which treats more than three or four matters runs serious risks of becoming too diffuse and giving the overall impression that no one claim of error can be serious."

463 U.S. at 752 n.2 (emphasis supplied).

         Selection Of ...

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