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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 6323 September Term, 1998

STATE OF MARYLAND v. HOSEA EUGENE PURVEY

Murphy, C.J., Hollander, Thieme, JJ. Opinion by Thieme, J.

Filed: November 1, 1999

The State appeals the decision of the Circuit Court for Prince George's County granting the petition of Hosea Eugene Purvey for post-conviction relief. A jury convicted Purvey of first-degree

murder on July 17, 1990, and he was sentenced by the court to life in prison on September 27, 1990. Purvey appealed his conviction to

this court on October 29, 1990, and we dismissed the appeal on January 30, 1991. He petitioned the circuit court for post-

conviction relief on June 9, 1995, and the court granted a belated appeal to this Court. On August 9, 1996, we affirmed Purvey's Purvey v. State, No. 1788, The Court

conviction in an unreported opinion.

September Term, 1995 (filed August 9, 1996)("Purvey I"). of Appeals denied certiorari on December 12, 1996.

On December 4, 1997, Purvey filed a second petition in circuit court for post-conviction relief, and he supplemented it on June 23, 1998, alleging that he received ineffective assistance of counsel. After a hearing on June 30, 1998, the circuit court

granted Purvey's petition on September 3, 1998, ordering a new trial and adopting the Petitioner's Proposed Findings of Fact and Conclusions of Law and his Memorandum of Law as part of the court's opinion. On October 2, 1998, the State appealed, and it presents

the following question: Did the post-conviction court err in granting Purvey a new trial when it concluded that his trial counsel failed to provide effective assistance of counsel? We answer "yes" to this question and reverse. We explain.

Facts In Purvey I, this Court summarized the evidence produced at trial as follows: Albert Young and Joseph Harris, the victim in this case, worked as laborers unloading produce trucks. On June 18, 1989, Young and Harris were awaiting a call from a trucker whose produce they were to unload at a Giant Food Store. At approximately 2:00 a.m., Harris told Young that he was going to Palmer's Liquor Store, which was three or four blocks away, and that Young could reach him there when the trucker arrived. From the record, we discern that the liquor store area was a well known drug area. Young located Harris behind the liquor store among a group of forty or fifty people. As Harris reached for his gym bag, several men ran through the area firing handguns. Everyone began running and Harris told Young that he had been shot. Young called for help, but Harris died, either at the scene or shortly thereafter, from a chest wound. The bullet exited his body and was not recovered. The sole evidence linking appellant to the crime came from a statement he is alleged to have made to Detective Roberto Hylton. Appellant was arrested on June 27, 1989, after Germaine "Fung" Bolden implicated him in the shooting. Appellant's alleged oral statement to Hylton contained the following: He said he did not shoot anyone. It was Frank and Fung who did the shooting. He said that Fung, which is a nick name, is scared of Frank because they've been in Boys [sic] Village together for a long period of time.

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He said I was at Palmer's Restaurant. Frank and Fung met me there. We saw a boy by the name, the initial E. He hangs with the Jamaicans on a hill on Bell Haven Drive. He shoots at the young dealers when we go up to sell drugs. Then he continued, so he said, let's bust Slim.[1] Frank, Fung and I said, I drove, I drove them, I drove them to where the guns were stashed in my aunt's white car. We came back to Palmer's. I don't know who had which gun the .380 or the .38. Left the car on Flagstaff Street, on Fung's Street. Fung is Germaine. Frank and Fung fired a couple of shots. It hit the man. We ran to the car. I drove them to hide the gun. We did, and we drove away. Frank took off his black T-shirt in the woods. The next day we drove to where the guns were. Frank got them. We went to Seabrook skating. I think they're at Frank's house. Appellant denied giving this statement to Detective Hylton. He testified that he was at Palmer's that evening selling drugs. He alleged that Fung was also there selling drugs. He was going toward the store to buy a soda when he heard gunshots. Along with everyone else, and because he had cocaine on his person, he ran to his car and left the area. Purvey I, slip op. at 1-2 (some footnotes omitted). Purvey produced two witnesses to testify at the post-

conviction hearing held on June 30, 1998.

Retired Police Detective

Detective Hylton testified that in street parlance "bust" means to shoot someone, and that "slim" is used as a synonym for the pronoun "him."

1

3

Dennis

Babcock

had

no

recollection

of

Purvey's

arrest

or

prosecution, but testified, "apparently I was basically providing a service for [Detective] Hylton which was to pick up Mr. Purvey and bring him back to our office." At the time he was questioned

by Detective Hylton, Purvey was already in custody of the Prince George's County Detention Center on an unrelated auto theft charge for which he had not posted bond. Purvey's second witness was his

trial counsel, Sean Cleary, who was questioned at length about representation he had provided eight years earlier. His specific

testimony concerning Purvey's post-conviction claims, as well as additional facts, will be included in the discussion below. Discussion The State, as appellant, makes a simple argument that Purvey is not entitled to a new trial because his representation was constitutionally adequate. Purvey alleges four separate grounds

why his counsel failed to meet the constitutional standard and he should get a new trial. cannot make certain Additionally, he claims that the State arguments on appeal because those

legal

arguments were not raised in the second post-conviction hearing. We find Purvey's arguments without merit and reverse the lower court's judgment on his second post-conviction petition. As a

preliminary matter, we discuss the legal standard for a finding that assistance of counsel has been ineffective. We then turn to

our second preliminary issue, whether the State can raise all its

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issues on appeal, before examining each of Purvey's allegations of ineffective assistance. I Standard for Ineffective Assistance of Counsel Purvey must clear a high bar to prevail on his claim that counsel failed of to provide Sixth representation Amendment Court set of comporting the the with the

requirements Constitution.

the The

United

States for

Supreme

forth

standard

assessing this question in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Maryland courts have expounded upon this See, e.g.,

standard extensively in cases arising in this State.

Wiggins v. State, 352 Md. 580, 602-03, 724 A.2d 1, 12 (1999); Oken v. State, 343 Md. 256, 283-85, 681 A.2d 30, 43-44 (1996), cert. denied, 519 U.S. 1077, 117 S. Ct. 742 (1997); Gilliam v. State, 331 Md. 651, 629 A.2d 685 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 891 (1994); State v. Thomas, 328 Md. 541, 555-58, 616 A.2d 365, 372-73 (1992), cert. denied, 508 U.S. 917, 113 S. Ct. 2359 (1993); State v. Colvin, 314 Md. 1, 5-7, 548 A.2d 506, 508-09 (1988); State v. Calhoun, 306 Md. 692, 729-32, 511 A.2d 461, 479-81 (1986), cert. denied, 480 U.S. 910, 107 S. Ct. 1339 (1987); State v. Tichnell, 306 Md. 428, 440-44, 509 A.2d 1179, 1185-87, cert. denied, 479 U.S. 995, 107 S. Ct. 598 (1986). Under ineffective Strickland, assistance a of convicted counsel petitioner renders his claiming that or

conviction

5

sentence invalid must demonstrate that i) "counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, and that ii) he was actually prejudiced, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

In evaluating whether counsel's representation was reasonable, the court must examine certain acts or omissions identified by the petitioner "in light of all the circumstances" to determine

whether "the identified acts or omissions were outside the wide range of professionally competent assistance." Ct. 2066. Id. at 690, 104 S.

The court looks at the "reasonableness of counsel's

challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct," id., making every effort "to eliminate the distorting effects of hindsight." Ct. at 2065. Id. at 689; 104 S.

Review is highly deferential, for "[i]t 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."

Id. at 689, 104 S. Ct. 2065.

Under the Strickland

standard, courts recognize that no single set of norms for vigorous advocacy defines what it is to receive adequate representation that ensures a fair trial. "There are countless ways to provide 6

effective assistance in any given case.

Even the best criminal

defense attorneys would not defend a particular client in the same way." Id. Thus, "the defendant must overcome the presumption

that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)). Even if the defendant can show that counsel committed a professionally unreasonable error, he must also show that there is a reasonable probability, i.e., probability sufficient to undermine confidence in the outcome, that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2068. Counsel's error must have "deprive[d]

the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 A.2d at 2064. standard: Maryland cases paraphrase this

the defendant "must show that there is a substantial

possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." at 284, 681 A.2d at 44. Oken, 343 Md.

"A proper analysis of prejudice . . .

should not focus solely on an outcome determination, but should consider `whether the result of the proceeding was fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506

U.S. 364, 369, 113 S. Ct. 838, 842 (1993)). Under Strickland and our precedents, however, we need not resolve both of these mettlesome issues when one of the required 7

prongs is clearly absent, neither must we examine them in any particular sequence. "The object of an ineffectiveness claim is

not to grade counsel's performance," thus [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." 2069. Strickland, 466 U.S. at 697, 104 S. Ct. at

Accord Oken, 343 Md. at 284-85, 681 A.2d at 44. Within the Strickland framework, we will evaluate anew the

findings of the lower court as to the reasonableness of counsel's conduct and the prejudice suffered. has been ineffective is a mixed Whether counsel's performance question of fact and law.

Strickland, 466 U.S. at 698, 104 S. Ct. at 2070.

As a question of

whether a constitutional right has been violated, we make our own independent evaluation by reviewing the law and applying it to the facts of the case. See, e.g., Jones v. State, 343 Md. 448, 457, We will not, however, disturb the

682 A.2d 248, 253 (1996).

findings of fact and credibility determinations of the postconviction court, unless they are clearly erroneous. Md. Rule 8-

131(c); Oken, 343 Md. at 299, 681 A.2d at 51; Tichnell, 306 Md. at 442-43, 509 A.2d at 1186. Instead, we "re-weigh the facts as

accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed." Id. at 443, 509 A.2d 1186 (quoting Harris v. State,

303 Md. 685, 496 A.2d 1074 (1985)).

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II The State's Preservation of Issues for Appeal Purvey asserts that this Court should not consider on appeal some of the reasoning with which the State bolsters its arguments, because it failed to preserve these "issues" for appeal by arguing them at the post-conviction hearing. conviction hearing, Purvey argued For example, at the postthat his lawyer did not

adequately argue the motion to suppress the fruits of his arrest, which he claims was based on a faulty warrant. On appeal, the

State augments its original response to this claim, which was based on Strickland, with an assertion that the police possessed probable cause to arrest Purvey. Therefore, post-conviction relief was

inappropriate and he was not prejudiced by counsel's perceived omission. Purvey's objections, such as this one, redirect

attention from the primary issue faced by this Court. Under Md. Rule 8-131(a), the appellate court will not

ordinarily decide any issue "unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." The primary purpose of this rule is "`to ensure fairness

for all parties in a case and to promote the orderly administration of the law.'" State v. Bell, 334 Md. 178, 189, 638 A.2d 107, 114

(1994) (quoting Brice v. State, 254 Md. 665, 661, 255 A.2d 28, 31 (1969)). 9

Rule 8-131(a), however, anticipates exceptions and implies discretion. For example, "[t]he use of the word `ordinarily'

clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and those circumstances in which it will."2 113. Id. at 188, 638 A.2d at

Our discretion is limited, however, to those times "when it

is clear that it will not work an unfair prejudice to the parties or to the court." Id. at 189, 638 A.2d at 113. "A criminal

defendant could suffer unfair prejudice if, for example, the defendant's response to a new argument posited by the State on appeal depends on evidence which was not offered in the trial court." Id. at 189-90, 638 A.2d at 113.

The instant appeal, however, does not require us to cast about for an exception under which to consider the State's arguments, because we find that those arguments were presented in summary form during the post-conviction hearing. are The State's "new" arguments

merely a fleshing-out, usually with information from the As such,

record, of the skeletal theories raised at the hearing. they are not new.

In both the post-conviction hearing and the

briefs, the State has argued that defense counsel's performance was

In Wieland v. State, 101 Md. App. 1, 33-34, 643 A.2d 446, 462 (1994), Judge Moylan expounds at length on the meaning of the "ordinarily" exception, i.e., the alternative review provision of Rule 8-131(a) that an appellate court may use when it intends to remand a case to the trial court. The exception allows a higher court to instruct the lower one on legal issues that may arise on remand. Because we reverse the trial court here, we need not avail ourselves of this exception.

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not

constitutionally

deficient

because,

even

had

he

advanced

Purvey's current theory in the trial court, the facts would not present adequate grounds for suppression of his statement to the police. Although presenting more detailed arguments might have been desirable, the State addressed the ultimate issue of whether Purvey had suffered ineffective assistance of counsel, at least in the general sense, at the post-conviction hearing. If the State, for

example, had argued in the post-conviction hearing that only one prong of Strickland applied here, it might have been limited on appeal to relying on that single prong. The State, however, based

its theory on both prongs of Strickland and now bolsters its reasoning with more specific information. The instant appeal, moreover, is distinguishable from the cases cited by Purvey and numerous cases in which we and the Court of Appeals have declined to entertain issues brought by one side or the other for the first time on appeal. In distinguishable cases, such as State v. Bell, 334 Md. 178, defendants have often argued successfully on direct appeal from conviction that the State brought during the appellate process new legal justifications for the potentially unconstitutional actions of police. See id. at

190, 638 A.2d at 113 (holding that the Court of Special Appeals did not err when it declined to address question raised by State for first time on appeal of whether probable cause existed for second warrantless search). In contrast, we are now one step removed

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from that original appellate process.

The ultimate issue before

the post-conviction court, and this Court, is the adequacy of Purvey's defense attorney's performance, not the constitutionality of his arrest. The same attorney that Purvey claims failed him argued vociferously at his suppression hearing that Purvey's

statement to police lacked voluntariness and that the police violated his Sixth Amendment right to counsel. During the post-

conviction hearing, that attorney recalled that his client did not, at the time of the trial, challenge the validity of his arrest, just "that he did not say what they claimed he had said." It

appears, then, that Purvey is using the petition process and an allegation of ineffective assistance of counsel as a Trojan Horse to bear the additional constitutional issues he failed to raise during his trial and the first post-conviction petition and appeal. We scrutinize only the horse itself, and not the surprises it contains, and reach our decision based upon our independent

evaluation of the findings of the lower court under Strickland. Oken, 343 Md. at 299, 681 A.2d at 51. III Purvey's Specific Contentions During the post-conviction hearing, Purvey raised four grounds upon which the circuit court found that he was denied effective assistance of counsel under the Sixth Amendment. We find, on each

of these grounds, that Purvey failed to clear the high bar set in

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Strickland, and we thus reverse the order of the lower court for post-conviction relief. Failure Statement to Make We address each issue in turn. to Suppress Purvey's

A Alternative Argument

Police questioned Purvey in connection with the shooting after they removed him from the custody of sheriff's deputies in the Prince George's County Detention Center, where he was being held on an unrelated charge. The record shows that Detective Babcock,

bearing a warrant for Purvey's arrest, transported him to the Prince George's County Criminal Investigations Department, so that Detective Hylton might question him. Police obtained the affidavit

in support of the warrant based on the statements of Purvey's codefendant, Jermaine "Fung" Bolden. The record shows that Cleary filed a written motion to

suppress prior to trial.

He argued vigorously at a suppression

hearing held on July 17, 1990, that Purvey's statement to police should be suppressed because it was involuntary. Moreover, he

argued that police had violated Purvey's right to counsel under the Sixth Amendment. At the post-conviction hearing, Cleary recalled

that at the time his client did not challenge how the statement was taken, but only maintained "that he did not say what they claimed he said."3

3 We realize that citing the testimony of Purvey's attorney requires us to steer cautiously between Scylla and Charybdis. In its findings of fact, the post-conviction court questioned his credibility "in certain respects," and the State does not argue in its brief that the court's finding was clearly erroneous.

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Purvey argued at the post-conviction hearing that counsel was ineffective for failing to move to suppress the statement because police lacked probable cause to arrest him. Purvey also argued

that the action of removing him from the custody of the sheriff without his consent for the purpose of interrogation violated the Fourth Amendment of the United States Constitution and Md. Code (1957, 1998 Repl. Vol.), Art. 87,

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