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
...