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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 158 September Term, 2003

SHAWN M. WHITNEY v. STATE of MARYLAND

Salmon, Barbera, Sharer, JJ. Opinion by Sharer, J.

Filed: September 9, 2004

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 158 September Term, 2003

SHAWN M. WHITNEY v. STATE of MARYLAND

Salmon, Barbera, Sharer, JJ. Opinion by Sharer, J.

Filed:

In this direct appeal we must determine whether reversal of appellant's convictions is required because his right to the full complement of peremptory strikes was impaired as a result of the ineffective assistance of his trial counsel. Appellant, Shawn M. Whitney, was convicted of conspiracy to distribute cocaine and possession of cocaine, by a jury in the Circuit Court for Baltimore City.1 In his timely appeal, Whitney

raises for our review two issues which, as reordered and recast, are: 1. Whether the trial court erred in denying appellant's motion for a new trial based upon trial counsel's ineffective assistance in the jury selection process; Whether his convictions are precluded as a matter of law by the trial court's entry of a judgment of acquittal on the related charge of attempted distribution of cocaine.

2.

We shall hold that the impairment of a defendant's peremptory challenges is not a structural defect or error such as will relieve a defendant of the burden of establishing prejudice under these circumstances. Therefore, we conclude that the trial court did not abuse its discretion in denying appellant's motion for a new trial. We hold that his challenges to the convictions are otherwise not preserved, and shall affirm the judgments of the circuit court.

His convictions drew a sentence of 15 years on the conspiracy count, with all but ten years suspended. The conviction for possession was merged.

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BACKGROUND Because our decision does not implicate the evidence adduced at trial, we need not recite the facts, other than to provide context for the discussion of the issues presented. Craig v.

State, 148 Md. App. 670, 674 n.1 (2002), cert. denied, 374 Md. 83 (2003). See Vaccaro v. Caple, 33 Md. App. 413, 414 (1976).

On November 17, 2002, police officers witnessed appellant engaging in what they determined was a narcotics sale. Appellant

was seen to accept currency from persons who then would take objects from a companion, one Anthony Johnson. When police moved

in on the scene, Johnson tried to flee, dropping a bag that contained cocaine. Appellant was apprehended, and found to possess $249 in currency. cocaine, cocaine. Whitney went to trial before a jury in the Circuit Court for Baltimore City. was conducted. On January 23, 2003, the jury selection process After excusing a number of prospective veniremen He was charged with attempted distribution of to distribute cocaine, and possession of

conspiracy

for cause, the trial judge said to counsel "[y]ou each get four strikes and I'm not going to have an alternate." The defense

exercised its four challenges, and the panel was selected and seated. After the close of the State's case, the trial court

entered a judgment of acquittal on the attempted distribution count. The jury convicted Whitney on the remaining charges.

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On January 28, Whitney, by his trial counsel, moved for a new trial. She averred: That pursuant to Rule 4-313(a)(3) and due to Counsel's naivete (counsel's 2nd jury trial), Movant was entitled to 10 peremptory strikes not 4 and as a result Movant was denied the privilege to reject jurors. The number of peremptory challenges are mandatory and not discretionary. At the scheduled sentencing hearing on February 20, 2003, defense counsel reminded the court of the pending new trial motion. Counsel reiterated her ignorance at the time of trial of Whitney's right to ten peremptory strikes. After some discussion, the trial

judge requested that counsel research the issue, and continued the motion hearing and sentencing until February 28. At the reconvened hearing on that date, the trial court summarized the issue: [C]ounsel for the defendant stood and said that, at the time of trial, she wasn't aware that he was entitled to ten jury strikes and she thought he was entitled to four jury strikes, and, of course, there was no complaint at that time. She did take four strikes. I personally asked whether or not both sides were satisfied with the jury at the end of all the strikes. Nobody asked for any others. Nobody made any challenges. And, in addition to that, at the time, at the bench, when we were voir diring the jury, at the end of that time I asked if there was any other challenges for cause. Everybody was satisfied with the panel before the strikes were taken and the strikes were taken on an individual call basis in accordance with the rules. ...

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At the end of the selection of the panel that was in the box, both lawyers found the panel acceptable. The State did not take any strikes. So we have lots of jurors extra. I mean, there were more than enough jurors to take strikes. At the hearing, another attorney from the Office of the Public Defender stood in for trial counsel, and unsuccessfully pressed the argument for a new trial. The court explained his denial:

Again, in the instant case, the Court asked the defendant prior to the jury being sworn whether he ... was satisfied with the jury and counsel for the defendant stated on the record that the jury is acceptable to the defendant. At no time did counsel for the defendant state that there is a problem with the jury. Further, the defendant has failed, to show any prejudice that he has suffered due to the makeup of the jury. On the contrary, the facts of the case point out that the jury was a well-balanced jury ... * * * The mere allegation of error without any substance of prejudice is not sufficient to warrant a new trial. Wherefore, the defendant's motion for a new trial should and is hereby denied. This appeal followed. DISCUSSION 1. Whether the trial court erred in denying appellant's motion for a new trial based upon trial counsel's ineffective assistance in the jury selection process.

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Procedural Posture Appellant's appeal on this issue is grounded on trial

counsel's concession of her neglect in failing to apprehend that the defense was entitled to ten peremptory strikes. answers that the argument is waived. position is that the issue is an The State

The State's alternative assertion of ineffective

assistance of counsel, and therefore is a more proper subject for a post conviction proceeding, and thus is not properly cognizable on direct appeal. We disagree with the State that the issue is not properly before us. On this record, we conclude that appellant may seek

relief on the basis of the ineffective assistance of trial counsel by way of this direct appeal from the denial of his motion for a new trial. We explain. Appropriate Forum Counsel did not object at voir dire for the obvious reason that she was unaware that appellant was entitled to ten peremptory strikes. She did file a timely motion for a new trial, an

appropriate vehicle for challenging the impairment in the number of Whitney's peremptory strikes that may have resulted from her ineffectiveness. See Ruth v. State, 133 Md. App. 358, 365-66, The denial of this motion may be

cert. denied, 361 Md. 435 (2000). reviewed on direct appeal. (2001).

Merritt v. State, 367 Md. 17, 28-31

See Jenkins v. State, 375 Md. 284, 295-96 (2003).

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The

more

salient

question

is

whether

the

facts

and

circumstances warrant our review on direct appeal, rather than through the procedures afforded under the Maryland Uniform

Postconviction Act.

Maryland Code (2001), Title 7 of the Criminal Appellant cites the "admitted

Procedure Article (the "Act").

ignorance" of trial counsel to justify his argument for a new trial, and further asserts that because the record is fully

developed on the issue, we may consider the issue on his direct appeal. We commend trial counsel's candor in her admission that she was unaware that Whitney was entitled to ten peremptory challenges; and she may take consolation from the trial court's erroneous advice to counsel that "[y]ou each get four strikes[.]"

Nevertheless, she was obligated to correct the trial judge's misstatement. See Bundy v. State, 334 Md. 131, 139-40 (1994)

(incumbent upon litigant to object) (quoting Covington v. State, 282 Md. 540, 543 (1978)). Cf. William T. Pizzi and Morris B.

Hoffman, Jury Selection Errors on Appeal, 38 AM . CRIM . L. REV . 1391, 1405 (2001) (competent representation demands that counsel correct trial judge's errors). We must therefore examine whether this

Court is the proper forum for the remedy appellant seeks. Addressing again the procedural posture of this case, we note that the State urges that a complaint about the performance of trial counsel must be considered in the post conviction forum. In

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Mosley v. State, 378 Md. 548 (2003), the Court of Appeals indeed ruled that the defendant's claim of ineffective assistance was more appropriately addressed in a post conviction relief proceeding. The Court emphasized that process afforded by the Act "is the most appropriate way to raise the claim of ineffective assistance of counsel." Id. at 558-59. The Act provides for a full evidentiary

hearing to ventilate the sometimes thorny fact-bound issues of trial strategy or tactics, and resulting prejudice. Court reminds us: [T]he adversarial process found in a postconviction proceeding generally is the preferable method in order to evaluate counsel's performance, as it reveals facts, evidence, and testimony that may be unavailable to an appellate court using only the original trial record. Mosley, supra, 378 Md. at 562. Notwithstanding the general proposition that such claims are best deferred for post conviction, the rule is not absolute, and we are not persuaded by the State that deferral is appropriate in this instance. Indeed, the prudential concern for affording that full As the Mosley

inquiry into the conduct of trial counsel is not implicated in the "exceptional case", where the shortcomings of the defense attorney, and any prejudice, would be obvious from the state of the trial record. inquiry. Trial counsel's refreshing candor has simplified our Because "the critical facts [with regard to counsel's

performance] are not in dispute and the record is sufficiently

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developed to permit a fair evaluation of [the] claim, there is no need for a collateral fact-finding proceeding[.]" In re Parris W., 363 Md. 717, 726 (2001). Standard of Review In reviewing a circuit court's denial of a motion for a new trial, an appellate court's review may vary, depending on the nature of the trial court's actions and the circumstances before it. In Jenkins, supra, Judge Cathell surveyed cases from our Court of Appeals to conclude that the denial of a new trial motion would be reviewed for an abuse of discretion. 375 Md. at 295-99. He

noted, however, instances where some dispositions of a new trial motion require the inquiry into existence of error. Id. at 297

(quoting Merritt, 367 Md. at 30-01). We are asked, however, to review the trial judge's disposition of a new trial motion sought on the basis of ineffective assistance of trial counsel. aff'd, 379 Md. In State v. Jones, 138 Md. App. 178, 209 (2001), 704 (2004), Judge Hollander articulated the

appropriate standard of review in such matters: The standard of review of the lower court's determinations regarding issues of effective assistance of counsel "is a mixed question of law and fact ...." ... We "will not disturb the factual findings of the postconviction court unless they are clearly erroneous." ... [T]he appellate court must exercise its own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any. ... "Within the Strickland framework, we will evaluate anew the findings of the lower court as to the -8-

reasonableness of counsel's conduct and the prejudice suffered .... As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case." Jones, supra, 138 Md. App. at 209 (citations omitted). The Merits Both the Sixth Amendment to the United States Constitution, made applicable to the States by the due process clause of the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights, guarantee criminal defendants the right to the assistance of counsel at critical stages in the proceedings against them. Strickland v. Washington, 466 U.S. 668, 684-85 (1984); Richardson v. State, 381 Md. 348 (2004). The right to counsel entails the McMann v. Richardson,

right to effective assistance of counsel. 397 U.S. 759, 771 n.14 (1970).

To challenge an abridgement of that right on the basis of ineffective assistance, Whitney must establish two components: "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 `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of fair trial, a trial whose result is reliable." Williams v. Taylor, 529 U.S. 362, 390 (2000) (quoting Strickland, supra, 466 U.S. at 687). See Parris W., supra, 363 Md. at 725 -9-

(citations omitted). A defendant must, in other words, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694. Further, "absent

the errors, the factfinder would have had a reasonable doubt respecting guilt." Id., 466 U.S. at 695. Performance Component We need not dwell on the performance component of the inquiry into the effectiveness of trial counsel. court's explicit, albeit erroneous, Setting aside the trial allowance of just four

peremptory strikes, the conceded negligence of Whitney's trial counsel, not being aware of the full complement of peremptory strikes to which he was entitled, fell demonstrably below an objective standard of reasonableness. Counsel acknowledged as much. In any event, reviewing counsel's omission independently, we concur with her self-appraisal. See generally Green v. United States, 972 F. Supp. 917, 920 (E.D. Pa. 1997) (first prong of Strickland met where deficiencies in counsel's performance so severe as not to be product of strategic judgment) (citations omitted). Prejudice Component The inquiry into the alleged prejudicial effect of counsel's neglect, however, requires additional discussion. "Peremptory

challenges are those which are made to the juror, without assigning any reason, which the courts are bound to respect." Pearson v.

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State, 15 Md. App. 462, 465 (1972) (quoting Turpin v. State, 55 Md. 462, 464 (1881)). According to the Court of Appeals:

In insuring that ... an impartial jury is chosen, a reasonable peremptory challenge right plays a vital role because it permits a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, decide the case on the basis other than the evidence presented. King v. State Roads Comm'n, 284 Md. 368, 370 (1979). Such challenges are afforded by state law, and are not

required by the Constitution.2

Ross v. Oklahoma, 487 U.S. 81, 89

(1988). Nor are they guaranteed by our Declaration of Rights. King, supra, 284 Md. at 370. The "right to challenge peremptorily

prospective jurors[] ... has been conferred upon an accused and the State by the common law, case law, statute and rule of court."3

In Ross v. Oklahoma , 487 U.S. 81, 88 (1988), the Court rejected the "notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Nevertheless, they are a means to achieve that end. See United States v. Martinez-Salazar , 528 U.S. 304, 307 (2000).
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Section 8-301(c) of the Courts Article provides: (c) Cases involving sentences of 20 years or more. -- Except as provided in subsections (a) and (b) of this section, in a criminal trial in which the defendant is subject, on any single count, to a sentence of 20 years or more, except for common law offenses for which no specific penalty is provided by statute, each defendant is permitted 10 peremptory challenges and the State is permitted 5 peremptory challenges for each defendant. See Md. rule 4-313(a)(3). Whitney faced a sentence of 20 years on the attempted distribution count. See Md. Code Ann., Crim. Law

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