ANNAPOLIS – The Maryland Court of Special Appeals Thursday reinstated an Anne Arundel County man’s convictions in a murder and rape case while rehabilitating the defense attorney’s performance in handling what was then novel DNA evidence.
In one of the earliest Maryland cases involving DNA science, Alvin Winslow Gross of the 4800 block of Atwell Road in Shady Side was convicted in the Dec. 19, 1993, rape and murder of an Annapolis woman and sentenced to life in prison without the possibility of parole, the maximum term.
Gross’ attorney, Peter S. O’Neill, decided not to challenge certain DNA evidence at the trial or on appeal. Gross asked for relief in a post-conviction hearing on the basis of ineffective assistance.
Anne Arundel Circuit Judge Pamela L. North overturned the conviction and ordered a new trial.
But Special Appeals Judge Charles E. Moylan Jr. reversed the judgment and in a 107-page opinion found the defense attorney provided adequate counsel.
“I flatly disagree with the Court of Special Appeals,” said Fred Bennett, Gross’ appellate lawyer responsible for questioning the performance of O’Neill. “They go out of their way repeatedly to uphold what a trial or appellate attorney did.”
Bennett said this is the second case in which the circuit court granted post-conviction relief and a new trial based on the ineffective assistance argument, only to have the Court of Special Appeals reverse that and reinstate the conviction.
Bennett said O’Neill, “did not fall on his sword,” but maintained he was right throughout the post-conviction hearing.
Assistant Attorney General Celia Anderson Davis defended the state: “He (Moylan) is saying you have to look at the bottom line – would it have made a difference on appeal.” She said that even if O’Neill had made errors at the trial level, it wouldn’t have changed the outcome.
“But he is leaving it open,” said Davis, stressing that the Court of Special Appeals doesn’t have anything against finding ineffective assistance in trial as long as it will make a difference on appeal.
In his opinion, Moylan shows respect for O’Neill’s decision to pick and choose his arguments.
“An effective performance by appellate counsel, however, does not require that every claim, even if non-frivolous, be raised on appeal,” wrote Moylan.
Moylan went on to write that if Gross were entitled to anything, it would be a new appeal, not a new trial. “The appropriate relief for ineffective assistance of appellate counsel would be the awarding of a belated or new appeal, at which issues which should have earlier been raised may ultimately be considered,” wrote Moylan.
“That’s important because it’s never been decided before, I don’t believe,” said Anne Arundel State’s Attorney Frank R. Weathersbee, whose office challenged North’s ruling for a new trial to allow new arguments.
– 30 – CNS-09-01-00