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Ramirez v. State

Court of Appeals of Maryland

July 12, 2019

EDINSON HERRERA RAMIREZ
v.
STATE OF MARYLAND

          Argued: June 7, 2019

          Circuit Court for Carroll County Case No. 06-K-05-033033

          Barbera, C.J. [*] Greene McDonald Watts Hotten Booth Wilner, Alan M. (Senior Specially Assigned), JJ.

          OPINION

          WATTS, J.

         Under the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights, a defendant in a criminal case has "a right to effective assistance of counsel." Newton v. State, 455 Md. 341, 355, 362, 168 A.3d 1, 9, 13 (2017) (citation omitted). In a petition for postconviction relief, a petitioner may contend that he or she is entitled to a new trial on the ground of ineffective assistance of trial counsel. See id. at 349, 168 A.3d at 5. A petitioner has received ineffective assistance of trial counsel where trial counsel's performance was deficient, and prejudiced him or her. See id. at 355, 168 A.3d at 9. Generally, a petitioner has the burden to prove both deficient performance and prejudice. See United States v. Cronic, 466 U.S. 648, 658 (1984). There are, however, circumstances under which "a presumption of prejudice is appropriate[, ]" which obviates the need for "inquiry into the [] conduct of the trial." Id. at 660.

         This case requires us to determine whether trial counsel's conduct fell below an objective standard of reasonableness, and, if so, whether a presumption of prejudice applies, or whether the petitioner must prove prejudice, where he alleges that trial counsel's conduct resulted in structural error.[1]

         In the Circuit Court for Carroll County, the State, Respondent, charged Edinson Herrera Ramirez, Petitioner, with several crimes that arose out of an armed robbery. During voir dire, the circuit court asked the prospective jurors whether they, their relatives, or their close friends had ever had experiences as victims of crime, defendants, or witnesses in criminal cases that would "affect[ their] ability to render a fair and impartial verdict[.]" Juror 27 answered that, approximately a year-and-a-half earlier, his apartment had been "broken into[.]" The circuit court asked whether "that experience[ would], in any way, affect [his] ability to render a fair and impartial verdict in this case[.]" Juror 27 responded: "I believe it would." Trial counsel did not ask Juror 27 any follow-up questions, or request that the circuit court do so. Juror 27 did not respond to any other questions during voir dire.

         Trial counsel did not move to strike Juror 27 for cause based on his response to the "crime victim" question, but rather moved to strike another prospective juror, Juror 25, for cause on the ground that his "home was broken into" and his "response as to whether it would affect them was, I believe it would." Juror 25, however, had not responded to any questions during voir dire. In addition to failing to move to strike Juror 27 for cause based on his response to the "crime victim" question, trial counsel did not exercise a peremptory challenge with respect to Juror 27, who was seated as a juror. After the jury had been selected and the circuit court dismissed the prospective jurors who had not been seated, trial counsel advised the circuit court that Juror 27 "just vehemently started shaking his head and just looked right at [her] with not a very pleasant face." At that time, trial counsel moved to strike Juror 27, stating that the juror was not "happy about the fact that he's sitting on [the] jury[.]" The circuit court reserved ruling on the motion to strike Juror 27 to "see how he [would] react[] during the course of the trial." The circuit court stated that it was up to trial counsel whether to re-raise the issue. Trial counsel did not renew the motion to strike Juror 27, or otherwise raise any issue as to Juror 27 after moving to strike him following jury selection.

         The jury found Ramirez guilty of eleven charges. After an unsuccessful direct appeal, Ramirez petitioned for postconviction relief, contending that trial counsel engaged in ineffective assistance of counsel by not moving to strike Juror 27 for cause based on his response to the "crime victim" question and by not using a peremptory challenge against Juror 27. The circuit court denied the petition. Ramirez appealed, and the Court of Special Appeals affirmed. Ramirez filed a petition for a writ of certiorari, which this Court granted.

         Before us, Ramirez asserts that trial counsel rendered ineffective assistance of counsel, and that the presumption of prejudice applies because trial counsel caused structural error-namely, the seating of a biased juror. The State responds that trial counsel's performance did not fall below an objective standard of reasonableness, that this case's circumstances fall outside of the ones under which the presumption of prejudice applies, and that Ramirez has failed to prove prejudice.

         We hold that Ramirez has proven that his trial counsel's performance was deficient, but has not established prejudice. Ramirez's trial counsel's conduct fell below an objective standard of reasonableness because, during voir dire, she failed to ask any follow-up questions, move to strike for cause, or use a peremptory challenge against a juror who indicated that he had previously been the victim of a burglary, and that he believed that that would affect his ability to be fair and impartial. In assessing a petitioner's allegation of ineffective assistance of counsel, however, a court should presume that trial counsel's performance prejudiced the petitioner only if: (1) the petitioner was actually denied the assistance of counsel; (2) the petitioner was constructively denied the assistance of counsel; or (3) the petitioner's counsel had an actual conflict of interest. Absent these three circumstances, the presumption of prejudice does not apply, and the petitioner must prove prejudice.

         Ramirez does not contend that this case involves any of the circumstances under which the presumption of prejudice applies; and, upon independent review, we are satisfied that the presumption of prejudice does not apply here. Accordingly, Ramirez has the burden of proving both deficient performance and prejudice. That said, we conclude that Ramirez has not proven prejudice, given that the State offered strong-indeed, overwhelming-direct and circumstantial evidence of his guilt.

         BACKGROUND

         Jury Selection

         On July 12, 2005-i.e., the first day of trial-fifty-one prospective jurors appeared before the circuit court. During voir dire, the circuit court asked the prospective jurors: "Have you[, ] or any member of your family or close friends[, ] ever been victims of a crime, accused of a crime[, ] or a witness in a criminal case[, ] and that experience affects your ability to render a fair and impartial verdict?" Multiple prospective jurors, including Juror 27, responded. The following exchange occurred:

THE COURT: What is your experience, please?
JUROR [] 27: I had an apartment that was broken into about a year-and-a-half ago.
THE COURT: All right. Would that experience, in any way, affect your ability to render a fair and impartial verdict in this case?
JUROR [] 27: I believe it would.

         Trial counsel did not ask Juror 27 any follow-up questions, or request that the circuit court do so. Juror 27 did not respond to any other questions during voir dire.

         After the circuit court finished asking questions of the prospective jurors, the court asked counsel whether they would move to strike any prospective jurors for cause, and the following exchange occurred:

[RAMIREZ'S TRIAL COUNSEL]: Juror No. 25: Their home was broken into. Their response as to whether it would affect them was, I believe it would.
THE COURT: State's position?
[PROSECUTOR]: No objection.
THE COURT: We'll strike, then.
THE CLERK: Number 25?
[RAMIREZ'S TRIAL COUNSEL]: That is No. 25.

         Contrary to Ramirez's trial counsel's statement, Juror 25 had not stated that his or her residence had been broken into. In fact, Juror 25 had not responded to any questions during voir dire.

         After the circuit court ruled on the motions to strike for cause, the circuit court stated: "If we run out, we can go with what we have and bring some more people tomorrow. . . . Tomorrow, we'll bring in another panel to try and [v]oir [d]ire them and then . . . try to pick additional jurors."

         The parties also had the opportunity to exercise peremptory challenges against prospective jurors. Ramirez was permitted ten peremptory challenges.[2] Ultimately, Ramirez's trial counsel exercised peremptory challenges against nine prospective jurors; in other words, there was one peremptory challenge left after jury selection. When trial counsel was given the opportunity to use a peremptory challenge as to Juror 27, she stated that Juror 27 was "[a]cceptable." Once twelve jurors were seated, trial counsel stated: "The array is acceptable to the Defense."

         The courtroom clerk swore the jury, and the circuit court dismissed the prospective jurors who had not been seated. Immediately afterward, trial counsel requested a bench conference, which the circuit court granted. At the bench conference, the following exchanged occurred:

[RAMIREZ'S TRIAL COUNSEL]: As to Juror [] 27, who is the young man that is seated in the yellow shirt, I would ask that he be stricken for cause. Upon the Court excusing the [prospective] jurors[ who had not been seated], he just vehemently started shaking his head and just looked right at me with not a very pleasant face. I don't think [that] he's happy about the fact that he's sitting on this jury, and I think that that would be sufficient to ask [that] he be stricken for cause.
THE COURT: Well, it also should be noted that there was a lot of glee from those who made it out without being chosen. Go ahead. Do you wish to respond?
[PROSECUTOR]: I would -- I didn't see that. It's a situation where I would defer.
[RAMIREZ'S TRIAL COUNSEL]: I'm sorry? What ...
THE COURT: Well, I'm gonna reserve on that. We have two alternates. We'll entertain that issue and see how he reacts during the course of the trial.
[RAMIREZ'S TRIAL COUNSEL]: Thank you, Your Honor.
THE COURT: I'll leave it to the Defense to re-raise ...
THE CLERK: I'm sorry.
THE COURT: ... the issue.
THE CLERK: I'm -- I'm sorry, I didn't pick it up ...
THE COURT: I'll deny it at this time.
THE COURT: The State is -- I mean, the Defense is to bring it back up before the jury retires if there -- if they still wanna go and raise the issue.

         (Emphasis added) (ellipses in original) (paragraph break omitted). Trial counsel did not renew the motion to strike Juror 27 for cause, or otherwise raise any issue as to him after moving to strike him for cause.

         Trial Testimony

         At trial, as a witness for the State, Linda Hidey testified that, in the summer of 1999, she and her husband, Rodney Hidey, had a house built at 3112 Ridge Road in Westminster. For "a couple of months[, ]" Ramirez worked on the construction of the house. On multiple occasions during that period, Ms. Hidey talked to Ramirez, who, according to her, "spoke perfect English." One day, Ms. and Mr. Hidey drove a safe to the construction site, and Ramirez helped move the safe into the area that would become the house's basement. Starting from the time when the house was being built, the safe "was covered[, ]" such that "no one would have known what it was." The safe's existence was not well-known, and Ms. and Mr. Hidey did not talk about the safe because they did not want to "ever [] let other people know about it."

         In November 1999, Ms. and Mr. Hidey moved into the house. Ultimately, Ms. and Mr. Hidey had three minor children, who lived with them.

         On or about September 6, 2004, Ms. and Mr. Hidey and their children returned home from a trip. On the way home, Ms. Hidey listened to a voicemail in which an employee of a security company informed her that an alarm in the house had gone off on September 4, 2004. Ms. and Mr. Hidey found that a basement window was unlocked.

         On October 11, 2004, at approximately 10 p.m., Ms. Hidey was at the house with her three children. Her two sons, ages three and five at the time, were in their bedrooms on the second floor. Her daughter, age six at the time, was asleep on the couch in the family room on the first floor. No one else was in the house; Mr. Hidey was away from home, attending a meeting.

         While Ms. Hidey was at the top of the stairs, she saw two men enter the house. One man had a "small build[, ]" was wearing gloves and a green ski mask, and had a revolver with "a very long barrel" pointed at Ms. Hidey. The other man had "a stocky build," was "probably" 5'10" or 5'11", was wearing gloves and an orange ski mask, and had a sawed-off shotgun pointed at Ms. Hidey. Ms. Hidey testified that Ramirez's "physical appearance matche[d] that of the man [in] the orange [ski] mask" "[i]n reference to his build[, ] and based on what he was wearing that evening[, ] his height[, a]nd his weight." The man in the orange ski mask never said anything loud enough for Ms. Hidey to hear his voice.

         The man in the green ski mask asked Ms. Hidey: "Where's the money?" Ms. Hidey reached into her pockets to retrieve the cash that she had on her. The man in the green ski mask said: "I don't want your money[. W]here's the real money?" The man in the green ski mask told Ms. Hidey to come downstairs, and she obeyed. The man in the green ski mask again asked Ms. Hidey: "Where's the money?" The man in the orange ski mask whispered in the ear of the man in the green ski mask. The man in the green ski mask asked Ms. Hidey: "Where's the safe?" Ms. Hidey responded that the safe was in the basement. The man in the green ski mask said: "Show me[.]" Ms. Hidey went downstairs and showed the men where the safe was.

         The man in the green ski mask told Ms. Hidey to open the safe. Ms. Hidey responded that she did not know the combination. The man in the orange ski mask again whispered in the ear of the man in the green ski mask. The man in the green ski mask asked Ms. Hidey: "[W]here's your husband?" Ms. Hidey responded that Mr. Hidey was at a meeting. The man in the green ski mask said: "I believe her[.] I believe [that] she doesn't know the combination[.] . . . [W]e'll just wait for him[.]" Ms. Hidey and the men went back upstairs. While waiting for Mr. Hidey to return home, the man in the green ski mask told Ms. Hidey to remain calm, and that, if she did not cooperate, and if Mr. Hidey did not cooperate when he came home, they would kill Ms. and Mr. Hidey, their daughter, and their two sons.

         Ms. Hidey heard the chime that the security system made whenever a car pulled into the driveway. The man in the green ski mask told Ms. Hidey to sit on the couch in the family room and not move, and she obeyed. The man in the green ski mask went into the dining room, and the man in the orange ski mask went into the kitchen and crouched out of sight of the exterior door. Mr. Hidey entered the house through that door. The man in the orange ski mask jumped out and pointed the shotgun at him. Mr. Hidey went into the dining room, where the man in the green ski mask pointed the revolver at him. Ms. Hidey "heard a big scuffle," but could not see it. The men led Mr. Hidey into the family room. The man in the green ski mask told Ms. and Mr. Hidey and their daughter to sit on the floor, and they complied. The man in the green ski mask said to Mr. Hidey: "Don't be stupid. . . . Where's the safe? . . . . Let's go, you're gonna open the safe."

         The men, Ms. and Mr. Hidey, and their daughter went to the basement and approached the safe. The man in the green ski mask said: "Open the safe[.]" Mr. Hidey tried to open the safe, then tried to grab the shotgun from the man in the orange ski mask. The man in the orange ski mask bludgeoned Mr. Hidey with the shotgun, and the man in the green ski mask shot Mr. Hidey with the revolver. Mr. Hidey fell to the floor, saying that he had been hit, meaning that he had been shot.

         The man in the green ski mask again told Mr. Hidey to open the safe. Mr. Hidey resumed trying to open the safe, but he had difficulty because he was shaking and bleeding profusely from head wounds. The man in the green ski mask told Mr. Hidey: "You have five minutes[, ] or . . . we're gonna kill you[.]" Mr. Hidey kept trying to open the safe. The man in the green ski mask told Mr. Hidey: "You have three minutes." Mr. Hidey said: "I can't do it. . . . I'm shaking[.] I'm bleeding[.] I can't even think[.]" Ms. Hidey asked Mr. Hidey: "Can you tell me the combination so I can open it?" Mr. Hidey did so, and Ms. Hidey opened the safe, which contained approximately $80, 000 in cash. The men put the cash into a pillowcase. The man in the orange ski mask tied Ms. Hidey and her daughter to an exercise machine in the basement, tied up Mr. Hidey while he was lying on the floor, and the men left. Mr. Hidey got himself untied and called 911.

         As a witness for the State, Mr. Hidey's testimony was essentially the same as Ms. Hidey's. Mr. Hidey testified that, in the summer of 1999, the house at 3112 Ridge Road was being built. For approximately two months during that time, Ramirez worked for Mr. Hidey. On multiple occasions during that period, Mr. Hidey talked to Ramirez, and "could communicate with him perfectly fine." One day, Ms. and Mr. Hidey bought a safe and drove it to the construction site. Ramirez helped Mr. Hidey move the safe into the area that would become the house's basement. Ramirez and Mr. Hidey dug a hole, put the safe into it, and covered the safe with plastic, cardboard, and tape so that there was "no way [that] you could tell [that] it was a safe." Aside from Ms. and Mr. Hidey and Ramirez, no one was present when the safe was placed. Mr. Hidey believed that he had never told anyone about the safe's existence, though he acknowledged that it was possible that he once spoke to an employee of a concrete company about the safe.

         On or about September 6, 2004, Mr. Hidey listened to a voicemail in which an employee of a security company informed him that an alarm in the house had gone off on September 4, 2004. Mr. Hidey checked the basement window, and saw that it was unlocked.

         On October 11, 2004, at approximately 10 p.m., Mr. Hidey came home from a meeting. Mr. Hidey entered the house through the kitchen, and saw Ms. Hidey and their daughter in the family room. A 5'11" man in an orange ski mask appeared and pointed a sawed-off shotgun at Mr. Hidey. The man in the orange ski mask never said anything. Mr. Hidey testified that the man in the orange ski mask was "the same height" as, and had "the same build" as, Ramirez. Additionally, the man in the orange ski mask had dark-brown eyes and a unibrow that "exactly" matched Ramirez's.

         Mr. Hidey entered the dining room, and a "[s]kinny" man of "average height" in a green ski mask pointed a .22 caliber revolver at him. Mr. Hidey said: "Hey, what's going on here?" The man in the green ski mask said: "Get back in the f[***]ing kitchen." The man in the orange ski mask pointed the shotgun at Mr. Hidey again. Mr. Hidey put his hands up and went into the family room. The man in the green ski mask asked either whether there was a safe in the house, or where the safe was. Mr. Hidey responded: "[W]e don't have a safe[.]" At the time, Mr. Hidey did not know that Ms. Hidey had shown the safe to the men. After Mr. Hidey realized as much, he, Ms. Hidey, their daughter, and the men went to the basement and approached the safe.

         Mr. Hidey attempted to open the safe but could not. Mr. Hidey "lunged at" the man in the orange ski mask and grabbed the shotgun. A struggle ensued. The man in the orange ski mask "regain[ed] control of the [] shotgun[, ]" and then used it to hit Mr. Hidey's head, shoulders, and back. Mr. Hidey's head started bleeding. The man in the green ski mask shot Mr. Hidey's left inner thigh and again told him to open the safe. Mr. Hidey could not open the safe because blood was getting in his eyes and on the safe. Ultimately, Ms. Hidey opened the safe, which contained approximately $80, 000 in cash. The man in the orange ski mask put the cash into a pillowcase, then tied Ms. Hidey and ...


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