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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 916 September Term, 1999

STATE OF MARYLAND

v.

ALVIN WINSLOW GROSS

Moylan, Eyler, Johnson, Stephen P., (Specially Assigned), JJ.

OPINION BY MOYLAN, J.

Filed: October 12, 2000

-1-

"In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." ... The Sixth Amendment "The right to counsel is the right to the effective assistance of counsel." ... McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) At the end of a seven-day trial on December 8, 1994, the appellee, Alvin Winslow Gross, was convicted by an Anne Arundel County jury of 1) first-degree murder, 2) first-degree rape, 3) kidnapping, and 4) the use of a handgun in the commission of a crime of violence. He was sentenced to life without the

possibility of parole for murder, 25 years concurrent for rape, 25 years concurrent for kidnapping, and 15 years concurrent for the handgun violation. In evidence an unreported opinion, to rape this Court 1) held that the

was 2)

insufficient ordered the

sustain

Gross's merged 3)

kidnapping into the the

conviction, first-degree

conviction and

felony

murder

conviction,

affirmed

murder and handgun convictions. Term, 1995 (filed 2/26/96).

Gross v. State, No. 501, Sept.

A Petition for a Writ of Certiorari 343 Md. 333, 681 A.2d 68

was denied by the Court of Appeals.

-2(1996). On August 18, 1997, Gross filed a Petition for Post-

Conviction Relief in the Circuit Court for Anne Arundel County. In that petition, he cited numerous actions by his attorney

which allegedly constituted ineffective assistance of counsel at both the trial and appellate levels.1 A hearing was held on the

petition and on June 7, 1999, the Circuit Court filed a 37-page Memorandum Opinion and Order granting Gross a new trial. that Opinion, the hearing judge found: 1. that trial counsel was ineffective for failing to object to the use of DNA PCR testing; that trial counsel was ineffective for failing to investigate, hire, and properly prepare a qualified competent expert in the field of DNA PCR testing; that trial counsel was ineffective for failing to object to the introduction of DNA PCR evidence absent required population genetics statistics; that the cumulative effect of trial counsel's errors denied Gross effective assistance of counsel; that appellate counsel was ineffective for failing to appeal the trial court's ruling on the Motion to Suppress the DNA PCR evidence; and that appellate counsel was ineffective for failing to raise on direct appeal the trial court's refusal to accept Dr. In

2.

3.

4.

5.

6.

1

The same attorney represented Gross both at his trial and on his direct appeal.

-3Walter Rowe evidence. as an expert in DNA PCR

The State challenges each of those six findings. We will, however, restructure the issue before us. those findings constitute, collectively, The first three of the basis for the

Circuit Court's ruling that Gross was unconstitutionally denied the effective assistance of trial counsel. The so-called fourth

"finding" is nothing more than a legal conclusion based on the cumulative effect of the preceding three actual findings. The

correctness of that ruling as to the ineffectiveness of trial counsel is one of the two issues before us for decision. The final two findings constitute, collectively, the basis for the Circuit Court's ruling that Gross was unconstitutionally denied the effective assistance of appellate counsel. The

correctness of that ruling is the second issue before us for decision. THE FACTUAL BACKGROUND A. The Corpus Delicti At approximately 6:45 A.M. on Sunday morning, December 19, 1993, a resident of Southern Anne Arundel County was returning to his home after having driven to the nearby town of Deale to pick up a Sunday paper and some doughnuts. In a rural cornfield

near Leitch Road, he spotted what appeared to be a lifeless

-4human body. After summoning help from a nearby farm, he

confirmed that what he had spotted was the body of a human female. He called 911.

Although not identified for several days, the body was that of Margaret Ruth ("Peggy") Courson, a 26-year-old woman living in a boarding house near the City Dock in Annapolis, although her parents and her three-year-old child lived in Florida. She

suffered from acute alcoholism and the autopsy revealed that her blood alcohol content was .34%. the urine was .42%. The blood alcohol content of

When her body was found, she was nude from

the waist up, her underpants were wrapped around one leg; she had on no shoes, no blouse, no bra, and no coat. She had,

moreover, no purse nor any other indication of her identity. When a picture of her unidentified body ran in the local The

newspaper, a friend recognized it as "Margaret Courson."

cause of death was four gunshot wounds, all at close range, two to the neck and two to the chest. Subsequent investigation revealed that Peggy Courson had

been denied entrance to her apartment house at approximately 2 A.M. by her landlady because of her drunken condition. As a

bartender was leaving Armadillo's in the City Dock area after closing up at approximately 3:30 A.M., he encountered Peggy When

Courson, who appeared to be very confused and very drunk.

-5he last saw her, she was wandering off "aimlessly," in the

direction of Middleton's Tavern.

He was the last person, other

than her murderer or murderers, known to have seen her alive. The cornfield where Peggy Courson's body was found three hours later was approximately twenty miles away from the City Dock area of downtown Annapolis. Twenty-five days were to go by before the rest of Peggy Courson's Arundel clothing was found. discovered his On January 13, a south items Anne in a

County

farmer his

some barn

suspicious and

field between police.

house and

immediately

called

At a spot in a field approximately fifty feet from

Sudley Road, an Anne Arundel County officer discovered a pair of fur-lined black boots belonging to Peggy Courson. Near the

boots was a black suede or cowhide purse.

In the purse were,

inter alia, a pair of white socks, a brassiere, and a blouse. The field in which these personal items were found was located approximately five miles from where Peggy Courson's body was found. Thus far, the evidence described was offered to prove the corpus delicti of the crimes committed against Peggy Courson and was largely undisputed. B. Investigative Focus

-6Initially there was nothing that pointed to any particular person as the criminal agent. Ultimately, there was abundant To place

evidence to establish the criminal agency of Gross.

that evidence of criminal agency in context, however, it will be helpful, as it was in the opinion of this Court resolving

Gross's direct appeal, to go outside of the evidence offered on the merits of guilt or innocence and to look at the application for a series of search warrants sworn to by Detective Keith D. Williams and admitted at the pre-trial hearing. In response to media releases on December 20, 1993, the day after Peggy Courson's body was found, the police received On

several telephone calls identifying Gross as the murderer.

December 31, they received another anonymous call stating that Sidney Scott, Jr. and two other black males were involved in the murder. On January 6 and 7, 1994, the police spoke to three

persons, unidentified by the police in the warrant application. Two of those persons informed them that Gross had committed the murder with Sidney Scott present. The third of those informants

implicated the appellant and two other named persons. Based on information provided by Scott and by the

unidentified informants, the police obtained search warrants for Gross's person, his car, and his residence, all of which were executed on January 10. Gross was also arrested and transported

-7to the police station where, upon the advice of counsel, he refused to make a statement. and saliva were obtained and Samples of Gross's blood, hair, were submitted to the crime

laboratory. C. The Physical Evidence From Gross's Car The evidence establishing Gross's criminal agency fell into five categories: three of them extremely strong, one of more Any of

marginal strength, and one of peripheral significance.

the three strong categories would have been enough, standing alone, to satisfy the State's burden of production. Whether the

fourth category, standing alone, would have constituted a prima facie case is more problematic. alone, would clearly not have The fifth category, standing constituted legally sufficient

evidence to take the case against Gross to the jury. The first extremely strong category of proof consisted of physical evidence automobile. found in the January 10 search of Gross's

It unequivocally placed the victim, Peggy Courson, Some of it, moreover, circumstantially placed

in Gross's car.

her in Gross's car at a time close to her death. Behind the back seat, between it and the hatchback area, was found a notebook. of Peggy Courson. The handwriting in the notebook matched that On nine separate pages of the notebook,

moreover, were found Peggy Courson's fingerprints. An FBI hair

-8and fiber expert testified that two of Peggy Courson's head

hairs were found in the automobile.

There was also in Gross's The notebook and were strong

automobile one of Peggy Courson's pubic hairs. the three hairs from the body of Peggy

Courson

evidence that she had been in Gross's automobile, although they could not establish how recent that presence had been. The FBI expert also testified, however, as to various carpet fibers from the floor mats of Gross's automobile and also as to fibers from a blanket found in Gross's automobile that were Those

found on various items of clothing worn by Peggy Courson.

fibers did more than establish her presence in the automobile at some undesignated time. Significantly, the fibers were found on

articles of clothing worn by Peggy Courson on the night of her death. Fibers were found on Peggy Courson's coat, on her jeans,

and on her panties, all of which were found along with her body. It was the coat she was wearing on the night she died. They

were the jeans she was wearing on the night she died. They were the panties she was wearing on the night she died. Carpet fibers from the car were also found in the combings of her pubic hair. Fibers were also found on three of the items of her clothing found twenty-five days later and five miles away: on her socks, and on her blouse. wearing on the night she died. on her boots,

They were the boots she was They were the socks she was

-9wearing on the night she died. It was the blouse she was

wearing on the night she died. D. The Confession to Troy King Devastating proof of Gross's guilt was the unsolicited

confession he made to Troy King.

Troy King was a young man

without a criminal record, had been a close personal friend of Gross's for approximately seven years, and was not in any way a suspect in the case. As "best friends," he and Gross got

together socially "one or two days a week," and talked on the phone at least several times a week. At sometime after

Christmas but before New Year's Eve, Troy King called Gross. King described how Gross began the conversation by saying that "he was doing crazy things lately." Peggy Gross Courson's read to King a

newspaper

article

describing

murder.

King

testified that Gross "told me that him and Sidney were involved in it." King testified to the core of Gross's incriminating

conversation: I talked to him on the telephone, and he had told me that he had did some strange things lately. And I had asked him what, and he had said that him and Sidney [Scott] had went out one night, riding around, and he was at a pay phone in Annapolis, and there was a drunk lady or whatever Sidney had got to talking to and got her in the truck while he was on the pay phone. And then after he got off the pay phone, he got in the truck, and him and Sidney drove around with her.

-10Q: Okay. And what else did he say about that night? A: That they rode around for awhile. They got to some road, he didn't say, and he was going to let her out, and supposedly Sidney shot her first and then Alvin [Gross] said that he shot her next. Q: And did Alvin say anything about why he shot her? A: He told me that he felt like he had to.

Q: And why did ... did he explain that to you? A: Because that ... they was riding around and that Sidney was in the back seat with her, and that ... he was forcing [himself] on the girl, whatever ... Q: A: Q: And what ... what do you mean by that? As far as sex. Okay.

A: And that she knew, you know, [that] Alvin had drove, had knew his name, `cause Sidney had said it, and he felt like he had to. Q: And did he say why he felt he had to kill her? A: Because if he didn't that she could go back to the cops or whatever and say that they had picked her up, and Sidney had raped her or whatever, and they could have got in trouble for it. Or Sidney had shot her also, and it could be attempted murder. Q: A: So Alvin felt he had to do what? Kill her.

-11Q: A: E. Did Alvin say where he left the body? No.

Gross's Testimonial Acknowledgment of Contact With the Victim Gross could not leave unchallenged the undisputed evidence

from the FBI's hair and fiber examiner that Peggy Courson had been in his automobile. He took the stand in his own defense

and his testimony, though intended to be exculpatory, was heavy with inculpatory potential. His taking of the stand was a

desperate but necessary effort to put some kind of exculpatory spin on that evidence. The gist of Gross's testimony was that he picked up Peggy Courson, that she was in his car for several hours, and that they had consensual sexual intercourse, but he placed those

events as having occurred on the Friday night/Saturday morning of December 17/18, 1993, a full twenty-four hours before Peggy Courson was murdered. He acknowledged that he had never, before

the night of December 17/18, had a date with Peggy Courson and that she had never before been in his automobile. He could not

even testify to any actual contact with her before that night. He indicated, however, that he had heard others "talk about her" and knew something about her general reputation. Gross's story was that on that Friday night he had attended a local basketball game and then met with a number of friends at

-12a McDonald's restaurant his in Edgewater he drove in suburban looking Annapolis. for some

After leaving

friends,

around

other acquaintances with no success.

Shortly after midnight, he

was still "cruising" the streets of Annapolis because he did not yet want to go home and go to bed. It was at that point that he

spotted Peggy Courson, whom he knew by sight at least, walking near West Street, a few blocks away from the City Dock area. He initiated conversation with her and she got into his car. He could tell that she was clearly drunk. wooded area several miles north of He drove her to a They there

Annapolis.

proceeded to drink "a few beers."

She ultimately invited him By the She

into the back of his car "to show her appreciation."

time he joined her in the back of the car, she was naked. initially performed fellatio on him. in sexual intercourse, but he soon

They then engaged briefly lost interest. At her

request, he then returned her to the area of the Annapolis City Dock and dropped her off. Recognizing the unquestioned prerogative of a jury to reject a story in part but to accept it in other part, we note that it would have been very easy for the jury in this case simply to have transferred wee hours of Gross's inculpatory morning to acknowledgments the wee hours from of the

Saturday

Sunday

morning.

Although he knew of Peggy Courson as a young and

-13alcoholic woman wandering the streets of Annapolis, he was, in effect, a stranger to her. He testified that at a time shortly

before her death he picked her up, drove her in his car to a secluded wooded area, and had sexual intercourse with her. Those were damning admissions, notwithstanding his effort to distance that acknowledged conduct from the time of the murder by twentyfour hours. Gross's acknowledged conduct of early Saturday morning fits easily into the scenario of what probably preceded the murder of early Sunday morning. A young and very drunken woman wandering

empty streets in the wee hours of a winter morning is easily identifiable and helpless prey on any day of the week. To "pick

her up" for sexual exploitation would be easy on either of the weekend mornings. To drive her to a deserted wooded area would Putting aside his possibly selfthe day of the week, Gross's

be the logical next step. serving testimony as to

acknowledged actions were compatible with the likely pre-murder scenario. The physical evidence as to where the fibers from Gross's automobile were found on the body and on the clothing of Peggy Courson on Sunday morning makes her presence in the automobile on Saturday morning instead of Sunday morning highly improbable. For the carpet fiber to have been in her pubic hair since early

-14Saturday morning would essentially have required that she

neither bathed nor showered between Friday night and Saturday night. For the carpet fibers to have been on her clothes since

early Saturday morning would have required that between Friday night and Saturday night she had not changed her blouse, her socks, or her panties, let alone her jeans, her shoes, and her coat. Her landlady testified that she was at home until 11

o'clock on Saturday night. Collectively, clothing indicated the that fibers on six the different time she categories was in of

between

Gross's

automobile and the time she died, Peggy Courson had not changed any of those six articles of clothing. The jury, putting the pieces together for itself, obviously believed a lot of what Gross said, but believed it happened twenty-four hours later than he said it happened. F. The Possible Murder Weapon and a Further Admission A fourth category of proof was significantly could be damaging, Four

although no

ultimate

ballistic

"match"

made.

bullets were taken from the body of Peggy Courson. identification expert for the Maryland State

The firearms Police Crime

Laboratory testified that they were so mutilated from having passed through bony tissue that they were not susceptible to standard ballistic identification comparisons. He was

-15nonetheless able to testify that they were .32 caliber bullets of a type that would be fired from a revolver made by one of five probable manufacturers. One of those manufacturing

companies would be Rossi. The police ultimately recovered from Troy King a Rossi

revolver, which had been turned over to him by Gross in early January of 1994. Although the ballistics examiner could not say

that the four bullets in question had been fired by Gross's revolver, he did testify that they were compatible with it: The conclusion that I ... have reached is that the bullets are of the same classification as to the caliber, class characteristics, and measurements to have been fired from ... a Rossi revolver, such as the one submitted. Gross's close friend Troy King testified that at sometime after New Year's Day, he and Gross and King's cousin, Charles Carpenter, all went out drinking in Georgetown. Both Troy King

and Charles Carpenter testified that as the three of them were leaving the Georgetown area that evening, Gross reached either into the glove compartment of his car or into a door panel and produced the .32 caliber Rossi revolver. and asked King to keep it for him. In addition to having to offer some explanation for the hairs and fibers linking Peggy Courson to his automobile, a He handed it to King

necessity to place some spin on his possession of the .32 Rossi

-16revolver was also part of the obvious motivation for Gross to take the stand in his own defense. Gross testified that during

the month of December he had received the gun from Sidney Scott as an unsolicited gift. He offered no explanation, however, as He further testified that he had

to why Scott gave him the gun.

no use for the gun and, therefore, subsequently gave it to Troy King as a gift because collected guns. As proof of guilt, the ballistics evidence, in and of Troy King was interested in guns and

itself, would not have been legally sufficient to send the case to the jury because of the inability of the examiner to make a "match." The totality of evidence surrounding the gun, on the

other hand, had far more significance than did the ballistics examination standing alone. Both King and Carpenter testified

that as Gross gave the revolver to King he said, "Be careful with it because it already had one life on it." The totality of evidence surrounding the gun, therefore, was 1) that the revolver was of the type that could have fired the bullets taken from Peggy Courson's body; 2) that at about the time the investigation was beginning to focus on Gross, Gross

felt some obvious desire to get rid of the weapon; and 3) that Gross acknowledged to King and Carpenter that someone had been killed with that gun.

-17G. The Presently Unexceptionable Evidence of Guilt Collectively, all of the evidence thus far discussed

constituted overwhelming proof of Gross's guilt.

None of the

contentions raised by Gross in his petition for post-conviction relief on the basis of the ineffective assistance of counsel involves in any way the evidence of guilt thus far discussed. Every contention and subcontention alleging ineffective

assistance of counsel, at both the trial and appellate levels, concerns only the fifth and more peripheral category of evidence yet to be discussed. showing that Gross That category is the DNA PCR evidence not be excluded from the class of

could

persons who might have been the donor of a DNA specimen found on the body of Peggy Courson. H. The DNA PCR Evidence A blood sample was taken from Gross in order to examine it and to establish his known DNA pattern. A vaginal swab was

taken from the body of Peggy Courson and it was examined for possible DNA traces. Melissa Weber, a Senior Molecular

Biologist for the Cellmark Diagnostic Laboratory, examined the two specimens to see if Gross had possibly left his DNA

"fingerprint" on the body of Peggy Courson. Almost all of the Maryland appellate decisions dealing with DNA evidence involve DNA testing done by the Cellmark Diagnostic

-18Laboratory. Invariably, the expert witnesses appearing in the

opinions are Melissa Weber and Charlotte Word, both senior-level scientists working for Cellmark. To understand the significance (or more pertinently,

perhaps, the relative insignificance) of what the examination revealed in this case, DNA it RFLP is necessary and to DNA appreciate PCR the

difference

between

analysis

analysis.

"RFLP" stands for the Restriction Fragment Length Polymorphism type of DNA analysis. A.2d 221, referred to Armstead v. State, 342 Md. 38, 53, 673 it in 1996 as the "most widely used

technique at present." requires a bigger

It, as opposed to the PCR technique, quantitatively and a better sample It is

sample

qualitatively in order to produce an acceptable result.

capable, however, of yielding a unique "match," pinpointing a particular suspect as the donor of the DNA left at the crime scene or on the body of the victim. As admissible evidence it received the imprimatur of the Maryland Legislature in 1991 (Ch. 631 of the Acts of 1991), now codified as Cts. & Jud. Proc.,

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