McGhee v. State

Citation: 482 Md. 48Docket: 64/21

Court: Court of Appeals of Maryland; October 24, 2022; Maryland; State Supreme Court

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In the case of Antonio McGhee v. State of Maryland, the Court of Appeals addressed a claim of ineffective assistance of counsel stemming from McGhee's 2007 murder trial. The defense attorney failed to object to a voir dire question regarding jurors' expectations for scientific evidence, which is linked to the "CSI-effect," a phenomenon where jurors anticipate forensic evidence based on crime dramas. Following McGhee's conviction, he filed a post-conviction claim alleging ineffective assistance due to this oversight. The Court ruled that, based on the professional norms existing in 2007, the defense counsel's performance was not constitutionally deficient under the standard set by Strickland v. Washington, as later rulings on the "CSI-effect" did not apply retroactively to evaluate the attorney's conduct. Consequently, the Court declined to consider the implications of subsequent cases on the standards of attorney performance at the time of McGhee's trial.

In 2010 and 2011, the Court addressed the "CSI effect" in three cases, ruling that a CSI-effect message from the bench constituted reversible error. The cases in question are Charles v. State, Atkins v. State, and Stabb v. State. A key consideration is whether these rulings should be applied retroactively in assessing a claim of ineffective assistance of counsel. Under the Supreme Court's decision in Strickland v. Washington, a petitioner must demonstrate two elements: first, that counsel's performance was deficient due to serious errors that compromised the effective assistance guaranteed by the Sixth Amendment; second, that the deficient performance prejudiced the defense. The evaluation of counsel’s conduct should be based on professional norms at the time of the action, not on subsequent legal developments. Consequently, it is determined that defense counsel's failure to object to a CSI-effect voir dire question during McGhee’s trial did not constitute constitutionally deficient performance. The term "CSI effect" arose in 2002, reflecting concerns that popular forensic television shows might raise juror expectations for forensic evidence. Although studies on the impact of these shows on juror verdicts have been inconclusive, some courts began to issue jury instructions to mitigate potential biases, referred to as "anti-CSI effect" instructions.

The introduction of CSI-effect jury instructions raised questions regarding their implications for the jury's role and the State's burden of proof, prompting examination by Maryland appellate courts. In 2007, the Court of Special Appeals addressed whether such an instruction constituted reversible error in Evans v. State, where Evans was charged with heroin possession and distribution. During the trial, the defense challenged the investigating detective's lack of specific investigative techniques, leading to the jury being instructed that the absence of certain evidence should be considered but did not relieve the State of its burden to prove guilt beyond a reasonable doubt. Evans's counsel did not object to this instruction, and during closing arguments, both defense attorneys emphasized the lack of forensic evidence.

On appeal, Evans contended that the instruction improperly diminished the State's burden; however, the appellate court ruled that he had not preserved this issue for appeal due to the lack of objection at trial. The court noted that the jury instruction was legally sound and did not relieve the State of its burden. It underscored that jurors must factor in the absence of evidence in determining reasonable doubt but warned against the risk of the instruction overshadowing the burden of proof if not presented in conjunction with a clear explanation of that burden. Between 2007 and 2011, no Maryland court revisited the CSI effect in jury instructions until the 2011 case of Atkins v. State, where similar issues arose regarding the absence of forensic testing related to an assault charge.

Atkins was accused of using a knife found in his bedroom during stabbings, as stated by the State in its opening. During cross-examination, the defense questioned the absence of DNA testing on the knife. Atkins claimed he acted in self-defense during a fight by taking out a pocketknife. The trial court granted the State's CSI-effect jury instruction despite the defense's objections, informing jurors that the State was not legally required to use specific investigative techniques to prove guilt. Atkins was convicted, and the Court of Special Appeals upheld the verdict, finding no error in the jury instruction. However, this Court reversed, distinguishing Atkins's case from Evans. In Evans, the defense's extensive questioning about the lack of video evidence warranted a curative instruction, while in Atkins, the defense simply noted the lack of forensic testing, making a curative instruction unnecessary. The Court criticized the instruction in Evans for suggesting jurors should infer guilt from the absence of evidence. It clarified that its ruling on Atkins was based on the specific facts of his case and did not imply that such instructions are inherently improper. The Court reiterated the importance of ensuring the State meets its burden of proof in any jury instruction. In a subsequent case, Stabb v. State, the Court again deemed a CSI-effect instruction as reversible error, noting that Stabb’s defense appropriately highlighted the lack of corroborating physical evidence without overemphasis.

The trial court's issuance of a preemptive CSI-effect jury instruction was deemed improper by the appellate court, which distinguished it from the precedent set in Evans. The appellate court noted that the State had adequately responded to the defense's implications about the lack of a Sexual Assault Forensic Exam (SAFE) during cross-examination and closing arguments, making the State's rebuttal the appropriate approach. The court emphasized that the trial judge’s instruction could unduly influence the jury’s deliberation regarding the absence of physical evidence, effectively instructing them not to consider this absence. This action was viewed as an invasion of the jury's province and a violation of the defendant Stabb's right to a fair trial, as it relieved the State of its burden to prove guilt beyond a reasonable doubt.

The court cautioned that using a CSI-effect jury instruction poses a risk of reversible error and should only be employed to correct defense overreach. In a subsequent case, Taylor v. State, the court ruled that a sua sponte CSI-effect jury instruction was also improper, despite the trial occurring in 2008 and a delayed appeal. The court did not need to resolve which legal standard to apply because it found the jury instruction inappropriate under both.

Additionally, the excerpt addresses issues related to CSI-effect voir dire questions, highlighting a 2010 case, Charles v. State, where the trial judge's non-neutral phrasing during jury selection was found to suggest that conviction was the only option, thus depriving the defendant of a fair and impartial jury. This decision focused on the language used rather than the CSI-effect message itself.

In 2018, the Court of Special Appeals ruled in State v. Armstead that trial counsel did not provide ineffective assistance by failing to object to a CSI-effect voir dire question, determining that such questions were permissible and possibly favored under Maryland law at the time of Armstead's 2009 trial. The court emphasized that it was unreasonable to expect trial counsel to anticipate future legal developments regarding the CSI effect.

In the context of McGhee's murder trial in December 2007, the trial court posed a voir dire question to potential jurors regarding the necessity of scientific evidence for a conviction. McGhee's attorney did not object to this question. The case involved the murder of Keith Dreher, who was shot outside a Papa Johns restaurant. Key testimony came from Jerrone Joyner, the restaurant's Assistant Manager, who claimed he saw both the shooter and victim prior to the shooting and later identified McGhee with certainty. However, Joyner's trial testimony contradicted his earlier statements, as he downplayed his ability to identify the shooter and noted uncertainty about McGhee's involvement. Other witnesses, Shamell Joyner and Demetrius Young, provided additional context but did not directly confirm McGhee's role in the shooting.

On March 21, 2007, Shamell identified McGhee at Martin Luther King Elementary School after which McGhee fled from Prince George’s County police. Detective Wayne Martin observed McGhee running with a gun visible but lost sight of him briefly during the pursuit. Upon apprehension, McGhee was unarmed. A loaded sawed-off shotgun was later recovered from beneath leaves near the school, but DNA and fingerprint analysis yielded insufficient evidence for identification. Detective Martin suggested that the shotgun appeared to be the one he saw with McGhee.

Forensic examiner Susan Lee noted similarities between shell fragments from a victim's body and the shotgun's cartridges but could not confirm it as the murder weapon. McGhee made incriminating statements to police during a DNA swabbing on April 5, 2007, indicating he believed the police had the weapon. He also expressed a willingness to cooperate, although his comments were later contested.

An alibi witness, Dayontae Duncan, testified that McGhee was with him at a party during the shooting. McGhee claimed he fled due to police harassment linked to perceived gang affiliation and denied making several statements attributed to him during police questioning. Ultimately, the jury convicted McGhee of first-degree murder, resulting in a life sentence on January 18, 2008. His conviction was upheld by the Court of Special Appeals, and a subsequent petition for certiorari was denied.

On June 10, 2014, McGhee filed for post-conviction relief, later supplemented by his defense counsel, alleging ineffective assistance of counsel due to: 1) failure to object to a voir dire question related to the “CSI-effect”; 2) failure to appeal the admission of inconclusive forensic evidence; and 3) failure to address incomplete jury instructions.

The post-conviction court held a hearing where McGhee’s trial counsel testified that the defense argued McGhee was not the shooter and was not present at the crime scene. Counsel did not remember the CSI-effect voir dire question. On June 11, 2020, the court granted McGhee’s petition for post-conviction relief, ordering a new trial due to the prejudicial effect of the CSI question on the jury, particularly given the lack of scientific evidence relevant to McGhee’s guilt. The court found that the failure to object to the CSI-effect question amounted to ineffective assistance of counsel. It also determined that trial counsel was ineffective for not objecting to incomplete or missing jury instructions. However, the appellate court reversed this decision regarding the trial counsel's ineffectiveness, stating that no evidence was presented to show that the professional norm at the time necessitated an objection to the CSI-effect question. The appellate court also held that the post-conviction court erred in granting relief based on jury instructions. McGhee sought a writ of certiorari from the Court, which was granted on March 8, 2022, presenting two questions about the applicability of certain precedent to his case and the effectiveness of his trial counsel’s performance regarding the CSI-effect question. The Court reviews the post-conviction findings as a mixed question of law and fact, with factual findings subject to clear error review and legal conclusions reviewed de novo. McGhee did not contest the appellate court's ruling on the jury instructions, so the focus remains on the CSI-effect question.

The Sixth Amendment and Article 21 of the Maryland Declaration of Rights affirm the right to "effective assistance of counsel" for criminal defendants. To establish an ineffective assistance of counsel claim, a petitioner must demonstrate two elements: (1) that counsel's performance was deficient, indicating serious errors that undermine the attorney's role as guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense, showing a reasonable probability that the outcome would have been different absent the errors. 

In this case, McGhee claims his trial counsel's failure to object to a CSI-effect voir dire question constituted both deficient performance and resulted in prejudice, arguing that relevant case law (Charles, Atkins, and Stabb) supports his position retroactively. Alternatively, McGhee asserts that even prior case law (Evans) should have prompted his counsel to object. The State counters that McGhee's argument regarding retroactivity misapplies the performance prong of the Strickland test, which should assess counsel's actions based on the knowledge and standards at the time of the trial, asserting that his counsel acted within professional norms of late 2007.

The discussion also addresses the retroactivity doctrine in criminal law, which evaluates whether a change in law applies to prior convictions. It references the precedent that a new decision must establish a "new principle of law" to be considered for retroactive application, and that not all new principles apply retroactively.

A decision that applies settled precedent to new factual situations is retroactive, as established in *Potts v. State*. The Supreme Court has not clarified if retroactivity principles apply to ineffective assistance of counsel claims, specifically whether new legal standards can render previously reasonable counsel conduct deficient. McGhee requests the court to analyze if cases like *Charles*, *Atkins*, and *Stabb* represent settled precedent or introduce new legal principles, suggesting that retroactive application aligns with the Strickland analysis. However, the court concludes that such alignment is incompatible with Strickland’s performance prong, which assesses counsel's actions based on norms at the time of the conduct, not future case law. McGhee argues that applying these precedents retroactively implies that his direct appeal would likely have succeeded had his counsel objected to a voir dire question related to the CSI effect. This argument straddles the performance and prejudice prongs of Strickland, as both depend on the omitted claims' viability. However, the court maintains that evaluating these claims based on subsequent case law contradicts Strickland. The court references *Lockhart v. Fretwell*, where the Supreme Court examined which legal standard should govern an ineffective assistance claim post-conviction, emphasizing that the focus is on the law at the time of trial, not subsequent changes. Thus, while trial counsel's performance was deemed deficient, the prejudice assessment must align with the legal context at the time of the original trial.

The Supreme Court determined that the failure of defense counsel to object to the pecuniary gain aggravating factor did not prejudice the defendant, even if the objection would have been valid at trial and on direct appeal. The Court clarified the distinction between the performance and prejudice prongs of the Strickland test. It emphasized that evaluating counsel's performance requires assessing their conduct based on the circumstances at the time, rather than using hindsight. This approach protects the integrity and independence of defense counsel and the attorney-client relationship.

The Court asserted that the prejudice component focuses on whether counsel's ineffective performance made the trial's outcome unreliable or fundamentally unfair. In this case, the defendant was not deprived of any substantive or procedural rights, as established in prior rulings. Consequently, the defendant experienced no prejudice from the alleged deficiency in counsel’s performance.

The discussion also referenced the Fretwell decision, which reinforces the necessity of contemporaneous assessment of counsel's actions under the performance prong. Additionally, it addressed McGhee's reliance on dicta from Allen v. State regarding retroactivity in ineffective assistance of counsel claims. The Court disagreed with the suggestion that principles from cases like Atkins and Stabb could retroactively apply to collateral review for ineffective assistance, asserting that such implications are inconsistent with a proper analysis under Strickland’s performance prong.

Adopting McGhee’s argument would impose an unrealistic standard on attorneys, requiring them to not only adhere to contemporary professional norms but also to anticipate future legal developments, which is not mandated by the Sixth Amendment or Maryland law. Citing relevant case law, the court emphasized that counsel cannot be held accountable for unforeseen changes in the law or for failing to predict future rulings. It was noted that a prior case, Denisyuk, was abrogated and should not influence the assessment of counsel's performance regarding future legal predictions. 

In applying the Strickland test for ineffective assistance of counsel, the court underscored that the right to effective counsel is fundamental to a fair trial, and that McGhee bore the burden to prove both prongs of the Strickland test. The court found that McGhee failed to demonstrate that his trial counsel's performance—specifically, the failure to object to a CSI-effect voir dire question—fell below an objective standard of reasonableness, thus negating the need to evaluate any potential prejudice. The court's analysis emphasized a strong presumption in favor of counsel's conduct, requiring assessments to be made from the perspective of counsel at the time, avoiding hindsight bias.

McGhee failed to overcome the presumption of effective assistance of counsel, as outlined by Strickland. He argued that his attorney should have objected to a voir dire question related to the "CSI effect," citing the Evans case from 2007, which did not explicitly mention the term but discussed jury instructions regarding investigative techniques. However, the court found it unreasonable to expect attorneys at that time to connect the Evans dicta to voir dire questions, especially since the Evans court upheld the jury instruction in question. Although a different defense attorney had objected in a similar case, this did not establish a prevailing professional norm for McGhee's counsel. Furthermore, during the post-conviction hearing, McGhee’s trial counsel clarified that their strategy was to assert McGhee's non-participation in the shooting, arguing that the voir dire question undermined this defense. However, the court did not find this sufficient to demonstrate that counsel's performance was constitutionally deficient.

McGhee contends that his attorney should have recognized the potential prejudice of a CSI-effect voir dire question posed to potential jurors, despite the absence of a general professional norm to object to such questions at the time of his trial. The trial counsel's strategy—that McGhee was not the perpetrator—does not alter this analysis. Testimony from the post-conviction hearing does not rebut the presumption of professionally competent assistance as established in Strickland v. Washington. While McGhee argues that other objective indicators suggest a competent attorney should have objected to the question, evidence from 2007, including literature and news articles, indicates that defense attorneys did not view the CSI effect as problematic and believed it primarily impacted prosecutors. The Court of Special Appeals previously established that it was not a prevailing norm to object to CSI-effect voir dire questions in 2009, supporting the conclusion that similar standards applied in December 2007, when McGhee was tried. Consequently, McGhee's counsel's performance aligned with the accepted professional norms of that time, leading to the determination that his claim of ineffective assistance of counsel fails on the performance prong. The post-conviction court's finding of ineffective assistance was therefore erroneous, and the judgment of the Court of Special Appeals is affirmed, with costs to be borne by the petitioner.