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(2007), discussing a defense counsel’s objection to a CSI effect jury
instruction, which instruction was found to be proper. It is not reasonable to expect trial
counsel to foresee the change in the law that took place after Armstead’s trial when the
Court of Appeals decided Charles & Drake v. State,

, 733,

, 158
(2010), in which the impermissible nature of this particular CSI effect voir dire question
was explicated. Armstead failed to meet his burden under Strickland v. Washington,

466 U.S. 668

104 S. Ct. 2052

(1984), presenting no evidence establishing that the prevailing
professional norm at the time of his trial was to object to CSI effect messages to the venire.
POST CONVICTION – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILING
TO OBJECT TO CSI VOIR DIRE QUESTION – PREJUDICE – HARMLESS
ERROR
Even if it were assumed Armstead’s trial counsel’s omission constituted constitutionally
ineffective representation, the claimed error was harmless, beyond a reasonable doubt,
under the circumstances of this record, thus leaving unsatisfied Strickland’s prejudice
requirement. Neither the trial court nor the parties’ counsels repeated the anti-CSI effect
message during the trial. The trial judge administered jury instructions at the close of the
evidence, reasserting the State’s burden of proof. Counsel were allowed amplitude in
arguing their positions as to the adequacy or inadequacy of the evidence (scientific or
otherwise) linking Armstead to the crimes. An eyewitness placed Armstead at the murder
victim’s home at the time of the murder. In addition, Armstead made a voluntary
incriminating statement to Detective James Lloyd during Armstead’s post-arrest
interrogation. Thus, the absence of DNA evidence in the State’s case linking Armstead to
the murder of the victim was not of critical importance to the State’s case proving, beyond
a reasonable doubt, Armstead’s participation in the crime. Armstead’s claims regarding
the assumedly erroneous CSI effect voir dire question did not cause impermissibly the
guilty verdict.
Circuit Court for Baltimore City
Case No. 108113001-02
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1148
September Term, 2016
______________________________________
STATE OF MARYLAND
v.
KEVIN ARMSTEAD
______________________________________
Kehoe,
Nazarian,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Harrell, J.
______________________________________
Filed: February 1, 2018
“Ninety-nine bottles of beer on the wall,
Ninety-nine bottles of beer.
You swab one down and run it through CODIS,
Ninety-eight bottles of beer on the wall.”
Lines spoken by the character Greg
Sanders on “CSI” Season 3, Episode 19
“A Night at the Movies” (CBS-TV.
Episode aired 10 April 2003)
At the core of this post-conviction case is the rectitude of the failure of trial counsel
for Appellee, Kevin Armstead, to object to a so-called “anti-CSI effect”1 voir dire question
propounded on 25 March 2009 to the venire by a trial judge of the Circuit Court for
Baltimore City. Armstead contends that that failure amounts to ineffective assistance of
trial counsel because he would have had a reasonable probability of success on direct
appeal had a challenge to the propriety of the voir dire question been preserved. The circuit
court granted Armstead a new trial in 2016 in this post-conviction proceeding, which
Armstead initiated in 2014.
Appellant, the State of Maryland, complains that the award of a new trial is
inappropriate because, on 25 March 2009, Maryland common law (such as it was)
approved of such a CSI question. Mistakenly, according to the State, the 2016 post-
conviction court relied on contrary, subsequently-decided case law to justify ordering a
retrial. The State maintains that Armstead’s trial counsel was not obligated in 2009 to “see
into the future” and anticipate the outcomes in the later-decided cases. Moreover,
1
This question will be referred sometimes hereafter either as a “CSI voir dire
question,” “CSI effect voir dire question,” or as “anti-CSI effect voir dire question.” “CSI”
stands for Crime Scene Investigation. See Atkins v. State,

421 Md. 434

, 456,

26 A.3d 979

,
991 (2011) (Harrell, J. concurring).
Armstead “did not call his trial defense counsel, or any other attorney, as a witness [in the
post-conviction phase] to testify concerning the propriety of trial counsel’s deliberate [trial
strategy] decision not to object to the voir dire question.” Thus, “there is no basis in which
the post-conviction court could conclude that Armstead’s [t]rial counsel was ineffective as
alleged.” Armstead failed, therefore, to satisfy his burden under the factors in Strickland
v. Washington2 to prove ineffective assistance of counsel. The State argued also that
Armstead failed to demonstrate satisfactorily how he was prejudiced by the lack of an
objection, the second factor in the Strickland analysis.
In this appeal, Appellant poses one question:
I. Did the post-conviction court err when it determined, based on case
law that issued after Armstead’s trial, that Armstead’s trial counsel
was ineffective for failing to object to the circuit court’s issuance of a
CSI voir dire question?
We hold that the post-conviction court erred when it granted Armstead’s petition
and ordered a new trial. Armstead’s trial counsel was not ineffective for failing to object
to the CSI voir dire question. Even if we assumed his trial counsel’s omission constituted
ineffective representation, the claimed error was harmless, beyond a reasonable doubt, on
the circumstances of this record.
Statement of Facts
We, like the post-conviction court, adopt in relevant part the summary of the
evidence presented at Armstead’s 2009 trial, as stated in our opinion regarding Armstead’s
2
Strickland v. Washington,

466 U.S. 668

104 S. Ct. 2052

(1984).
2
direct appeal, Armstead v. State,

195 Md. App. 599

, 605-9

7 A.3d 169

, 172-5 (2010), cert.
denied,

418 Md. 191

13 A.3d 798

(2011):
On [20 March 2007], Ricardo Paige was found lying dead on the
living room floor of his residence at 502 East 43rd Street in Baltimore City,
Maryland, having suffered multiple gun shot wounds. He was discovered by
his daughter, Deneen Woods, and his grandson, Ricardo McDonald.
Woods testified at trial that she had seen [Armstead], also known as
“Muggs,” on the block on prior occasions with [Jamal] Fulton, who she knew
as “Nube,” and with Trendon and Tremaine Washington, twin brothers, both
of whom she knew as “Twin.” Fulton lived in the house next door, 500 East
43rd Street. Drugs were a “big problem” with Fulton. On the Friday before
Woods’s father was murdered, Fulton came to 502 East 43rd Street and
argued with Paige. Fulton told Woods that her father was “making his spot
hot.” Woods responded by telling Fulton that she did not want any drugs to
be around her father, and Fulton replied that “he would not say nothing else
to [her] dad.”
At some point after Paige’s death, Woods spoke to a person in the
neighborhood she knew as “Lurch.” Lurch provided Woods with some
information, and Woods conveyed that information to Detective James
Lloyd.
Leroy Simon testified that he is known as “Lurch” and that he knew
Paige through Woods. In late March 2007, intending to exchange drugs for
sex, he was with a woman behind the victim’s residence. At that time, he
saw [Armstead], Fulton, known to him as “Nuke,” and “Twin” and another
unidentified individual near Paige’s house.
He observed [Armstead] go into Paige’s house first, and then he heard
some “tussling.” A few minutes later, he saw “Twin” enter the house. Fulton
went inside the residence as well. The unidentified person remained outside
the residence where he was giving orders.
After [Armstead], Fulton, and “Twin” were inside, Simon heard
gunshots. He then heard sounds as if someone was sweeping up some glass
and then saw the trio emerge from the residence.
Simon knew both Tremaine and Trendon Washington, and was aware
that one of them was incarcerated at the time. He identified a photograph of
Trendon Washington as the person he was referring to as “Twin” in his
testimony.
After Simon testified that he spoke to Detective Lloyd on three
occasions, the State sought to refresh his recollection with a statement, but
Simon testified that he could not read or write. Because there was some
confusion about whether Simon ever told police that he saw Fulton enter the
3
residence, the jury was excused, and the tape of Simon’s third interview was
played to refresh Simon’s recollection.
After the jury returned, Simon testified that Fulton was standing
outside of the house and actually never went inside. Simon admitted he had
made a mistake earlier during his testimony when he said Fulton had gone
inside.
Simon continued his testimony as follows: While [Armstead], “Twin”
(Trendon Washington), and an unidentified third person were inside the
residence, Simon heard tussling. After he heard these sounds, Fulton, “who
remained outside, hollered, ‘handle your business.’” Simon then heard two
to three gunshots. After the shooting, Simon saw all four individuals run
from the residence.
Simon identified a photo of [Armstead] as a person who was present
at the crime scene and had entered the residence. He also identified both
Tremaine and Trendon Washington, distinguishing between them and
identifying Trendon Washington as the twin present at the scene. Simon was
originally unable to identify the person who remained outside the residence,
but, after refreshing his recollection, recalled that during the third interview
with police, he identified a photograph of Fulton, indicating that he was the
one who stayed outside and “gave orders.”
Asked why he did not go to the police earlier, Simon stated: “It ain’t
good to snitch, it ain’t good to snitch. Snitchers get stitches, that’s how I
always looked at it.” However, when he learned that the victim was
Wood[s]’s father, Simon decided to come forward. He learned two days after
he saw the individuals at Paige’s residence that Paige had died.
On cross-examination, Simon testified that he had not testified in the
trial involving Trendon Washington and that he was incarcerated when he
first spoke to Detective Lloyd about this case.
Detective Chris Glanville testified that he encountered [Armstead],
and both Trendon and Tremaine Washington, on [28 April 2007]. At that
time, he recovered a loaded .45 caliber Springfield nineteen eleven model
firearm from Trendon Washington. All of the bullets recovered in this case
were .45 auto caliber. The ballistics evidence was compared to the recovered
firearm, and two of the cartridge casings recovered from the crime scene
were fired from that pistol. Other bullet specimens could neither be
identified nor eliminated as being fired from the recovered gun. However,
three of the five bullets recovered in this case were fired by the same firearm,
while the two remaining bullets lacked proper markings for comparison.
Detective Lloyd testified that Trendon Washington, Fulton, and
[Armstead] were arrested in connection with this case. [Armstead] was
arrested in Decatur, Georgia, where he gave the name “James L. Jefferson.”
When [Armstead] was interviewed on [10 April 2008], the parties stipulated
that [Armstead] stated: “I already looked up the case. Why am I not just
4
charged with conspiracy, what about the other three?” The charging
documents at that time did not mention conspiracy. Also, Detective Lloyd
testified that he had never told [Armstead] about a conspiracy charge or that
there were three other people involved in the crime.
Detective Lloyd testified that he was aware that DNA evidence had
been collected at the crime scene, but the parties stipulated that all of that
evidence came back as being consistent with the victim’s DNA. Latent
fingerprints recovered from the crime scene were also consistent with being
from the victim. Additionally, a search warrant was obtained for
[Armstead]’s home and nothing was recovered from that search relating to
this investigation.
The State’s last witness was the medical examiner, Dr. Theodore
King. According to Dr. King, Paige died of multiple gunshot wounds, and
the manner of death was homicide. He could not pinpoint the exact time of
death.
After the State rested, defense counsel called Fulton. Fulton testified
that he knew [Armstead] and that he knew him by the name of “Muggs.”
Fulton used to live at 500 East 43rd Street in Baltimore City, “[u]p to prior
to [his] arrest” in 2007. Paige, who Fulton knew as “Poppy,” lived next door
at 502 East 43rd Street. Fulton also knew Woods, Woods’s son, Ricky, and
Simon, also known as “Lurch.” Fulton stated that he was originally charged
with Paige’s murder.
Fulton testified that, on [18 March 2007], Trendon Washington called
and asked Fulton to drive him to the “vial store.” Trendon Washington sold
drugs, including crack and marijuana, and usually stored his drugs in a vacant
house located nearby at 508 East 43rd Street. Fulton, along with [Armstead],
accompanied Washington to the store to buy vials so he could package his
drugs.
When they returned, Fulton parked in front of 508 East 43rd Street
while Washington went inside. Moments later, Washington emerged and
angrily informed them that his drugs were missing and that the back door to
that location had been knocked down. Recalling that Paige was outside when
the three of them left to go to the “vial store,” Washington and [Armstead]
then went to Paige’s home, while Fulton remained with his car.
Trendon Washington engaged Paige in a conversation, but Fulton
could not hear what they were saying. After that conversation, Washington
and [Armstead] returned to Fulton’s car, and Washington said, “I’m going to
go do that.” Fulton understood this to mean that Washington was going to
beat and then kill Paige.
Fulton testified that he saw Trendon Washington the next day, but he
did not mention Paige or the drugs. Fulton then saw Trendon Washington
again, on [20 March 2007], at around noon or 1:00 p.m., and Fulton asked
him where Paige was because he had not seen him in two days. Washington
5
replied, “I done what I said I was going to do.” Fulton understood this to
mean that Washington had killed Paige. Around 5:00 or 6:00 p.m. that same
day, Fulton learned that Paige was dead.
Fulton further testified that he had seen Trendon Washington carry a
.45 caliber semi-automatic handgun on prior occasions, including in January
and February of 2007. Fulton described the gun, and then identified State’s
Exhibit 6A as Trendon Washington’s gun.
On cross-examination by the State, Fulton confirmed that he was not
present at the time of the murder[]and, further, that Trendon Washington did
not provide him with any details of what he had done. Nor did Washington
tell Fulton if he was with anyone at the time of the murder.
(Emphasis added).
Armstead was charged with “conspiracy to commit murder, murder, use of a
handgun in the commission of a felony and crime of violence, and wearing, carrying and
transporting a handgun.”

Armstead, 195 Md. App. at 604

, 7 A.3d at 172. His jury trial
lasted from 25 March 2009 to 2 April 2009. During voir dire on the first day, the judge
queried the venire as follows:3
Now I’m going to assume that many of you watch way too much television
including those so-called realistic crime shows like Law and Order and CSI
New York and CSI Miami and CSI Glenn Burnie and the rest of them. I trust
you understand that these crime shows are fantasy and fiction and for
dramatic effect to entertain you they claim to rely upon ‘scientific evidence’
to convict people.
This is certainly acceptable as entertainment but you must not allow your
entertainment to interfere with your solemn duties as a juror. Therefore, if
you are currently of the view that you cannot convict the defendant without
‘scientific evidence’ regardless of all of the other evidence in the case and
3
This question was asked at the request of the State:
THE COURT: Okay. I’ve got one more that I might. One of my questions
was I was going to give my CSI question if you wanted it and you’ve asked
for it in your number [seven].
[APPELLANT]: Yes, sir.
THE COURT: So I’m going to give that.
6
regardless of the instruction that I give you as the law, please stand. All right,
I see no responses.
(Emphasis added).
Armstead’s trial counsel did not object to this question. The empaneled jury convicted
Armstead of conspiracy to commit first-degree murder and second-degree murder. The
court sentenced him to life imprisonment, plus a consecutive thirty years.
Armstead filed numerous post-trial motions, all of which the trial court denied.
Armstead asserted five questions for review in his direct appeal.4 We affirmed Armstead’s
conviction in 2010. The Court of Appeals denied his petition for writ of certiorari in 2011.
On 1 July 2014, Armstead filed a petition for post-conviction relief, calling-out his
trial counsel as ineffective for failing to object to the circuit court’s posing of the CSI voir
dire question. As he perceived the query, it deprived him of his Sixth Amendment right5
and his right under Article 21 of the Maryland Declaration of Rights.6
The circuit court held a hearing on Armstead’s post-conviction petition on 6 January
2016.7 The post-conviction court granted Armstead’s petition and awarded a new trial.
The court held, in relevant part:
4
No question raised in Armstead v. State,

195 Md. App. 599

, 605-9,

7 A.3d 169

,
172-5 (2010), cert. denied,

418 Md. 191

13 A.3d 798

(2011), is relevant to the present
proceeding.
5
The Sixth Amendment provides: “In all criminal prosecutions, the accused shall
enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const. amend.
VI. The right is applicable to the states through the Fourteenth Amendment. Gideon v.
Wainwright,

372 U.S. 335

, 343,

83 S. Ct. 792

(1963).
6
Article 21 of the Maryland Declaration of Rights declares: “That in all criminal
prosecutions, every man hath a right to . . . be allowed counsel[.]” Taylor v. State,

428 Md. 386

, 399 n. 8,

51 A.3d 655

, 662 n. 8 (2012).
7
Although no transcript of the post-conviction hearing has been provided to this
7
Although trial counsel is not required to object to every possible trial judge
error, trial counsel is ineffective for failing to object to rulings where there is
a reasonable probability of success during an appeal . . . the question
propounded in [Armstead’s] case, was inherently . . . prejudicial . . . Thus,
the trial counsel rendered ineffective assistance of counsel by failing to
preserve the issue for appeal because there is a reasonable probability that
[Armstead] would have succeeded on appeal had trial counsel objected on
the grounds that the question prejudiced the voir dire panel . . . [Armstead’s]
first allegation of error [] is sufficient to grant a new trial.
Analysis
I. Ineffective Assistance of Counsel.
a. Appellant’s Arguments.
Appellant avers that the post-conviction court granted erroneously Armstead a new
trial. In support of its ambition, the State contends that, under Strickland, Armstead failed
to overcome the presumption that his trial counsel’s inaction in not objecting to the CSI
voir dire question was strategic. Armstead called neither his trial counsel nor any other
attorney during his post-conviction hearing as a witness to testify whether his trial
counsel’s election not to object to the CSI voir dire question deviated grievously from
sound professional judgment.
Furthermore, there was, at the time of the 25 March 2009 voir dire, no reported
Maryland jurisprudence suggesting the impropriety of such a CSI voir dire question.
Rather, the common law (such as it was at the time) favored such a voir dire question. Trial
Court, the parties stipulate that Armstead “testified at the [post-conviction] hearing in
support of his petition, but he did not make any remarks regarding the CSI voir dire
question.” Trial counsel was unable to attend the hearing, but Armstead elected to proceed
without her testimony. Moreover, he failed to present “any other attorney, as a witness to
testify with respect to the propriety of trial counsel’s deliberate decision not to object to
the voir dire question.”
8
counsel was not expected to possess foresight to anticipate the subsequent change in the
law limiting substantially the situations in which a CSI voir dire question or jury instruction
may be appropriate. Appellant finds error also in the post-conviction court’s conclusion
that, had trial counsel objected to the CSI voir dire question, “Armstead stood ‘a reasonable
probability’ of obtaining appellate reversal of his convictions.” The State maintains “that
there was no evidence before the post-conviction court that Armstead’s direct appeal
counsel . . . would have . . . [raised] a challenge to the CSI voir dire question had that
claim been preserved for appellate review.”
b. Appellee’s Arguments.
Armstead responds that his trial counsel’s failure to object to the court’s deployment
of the CSI voir dire question was “not sound trial strategy because she knew that there was
no scientific evidence linking [him] to the crime, and that the very notion served as the
substantial basis of the defense theory of innocence.” Trial counsel’s failure to object
“could not have been the result of reasonable professional judgment because it allowed the
court to suggest to the jury that the lack of any scientific evidence [connecting him to the
crime] could be ignored.” The inherent prejudicial nature of the court’s CSI voir dire
question, notably the court’s use of the word “convict,” rendered it untenable. This
suggested to the potential jurors that convicting Armstead was a foregone conclusion.
Further, Armstead contends that he should benefit in this case from the state of the
law regarding the proper use of CSI instructions and voir dire questions that came into
existence following his trial, i.e., the later-decided case law should apply retrospectively.
Specially, Armstead maintains that Allen v. State,

204 Md. App. 701

42 A.3d 708

(2012),
9
approves the retrospective application of Stabb v. State,

423 Md. 454

31 A.3d 922

(2011),
Atkins v. State,

421 Md. 434

26 A.3d 979

(2011), and Charles & Drake v. State,

, 733,

, 158 (2010), to our analysis of his trial counsel’s inaction, as was
the view taken by the post-conviction court. Allen countenances retrospective application,
as this argument goes, because Stabb and Atkins did not “create new constitutionally based
principles[,] but applied settled federal and state constitutional guarantees to new factual
situations.”
c. The Strickland Standard.
The federal Sixth Amendment and Article 21 of the Maryland Declaration of Rights
guarantee all criminal defendants the right to the assistance of counsel. Duvall v. State,

399 Md. 210

, 220-21,

923 A.2d 81

, 88 (2007) (quoting

Strickland, 466 U.S. at 686

104 S. Ct. 2052

) (quotation marks omitted). Within both constitutional standards nests the right to
effective assistance of counsel. See

id. (emphasis added).

         Taylor v. State explains
Strickland’s application when evaluating counsel’s effectiveness:
The defendant who claims that he or she received ineffective assistance of
counsel, as a general rule under the test announced in Strickland and followed
ever since, must make two showings: [(1)], the defendant must show that
counsel’s performance was deficient [the performance factor] [; and (2)], the
defendant must show that the deficient performance prejudiced the defense
[the prejudice factor].

428 Md. 386

, 399-400,

51 A.3d 655

, 662 (2012). Thus, “both the performance and
prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.”

Strickland 466 U.S. at 698

, 104 S. Ct. at 2070. It is clear that:
[t]he standard of review of the [trial] court’s determinations regarding issues
of effective assistance of counsel is a mixed question of law and fact. We
10
will not disturb the factual findings of the post-conviction court unless they
are clearly erroneous. But, a reviewing court must make an independent
analysis to determine the ultimate mixed question of law and fact, namely,
was there a violation of a constitutional right as claimed. In other words, the
appellate court must exercise its own independent judgment as to the
reasonableness of counsel’s conduct and the prejudice, if any . . . . [The
appellate court] will evaluate anew the findings of the [trial] court as to the
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.
State v. Sanmartin Prado,

448 Md. 664

, 679,

141 A.3d 99

, 108 (2016) (quoting State v.
Jones,

138 Md. App. 178

, 209,

771 A.2d 407

, 425 (2001), aff’d,

379 Md. 704

843 A.2d 778

(2004)). Newton v. State noted recently, however, that:
Strickland also instructs that courts need not consider the performance prong
and the prejudice prong in order, nor do they need to address both prongs in
every case. As [Strickland] explained, [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.[8]

455 Md. 341

, 356,

168 A.3d 1

, 9 (2017), cert. docketed, No. 17-6478 (U.S., 26 Oct. 2017),
(Internal quotations and citations omitted).
8
Strickland explained that:
Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is no reason for
a court deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one. In particular, a court need not
determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.
The object of an ineffectiveness claim is not to grade counsel’s performance.
If 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. 466 U.S. at 696-97

, 104 S. Ct. at 2069.
11
Regarding Strickland’s performance factor,
[t]he defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment
. . . [T]he defendant must [also] demonstrate that counsel’s alleged acts or
omissions, based on the facts of the particular case, viewed as of the time of
counsel’s conduct, fell outside the wide range of professionally competent
assistance.
Sanmartin

Prado, 448 Md. at 681-82

, 141 A.3d at 109 (quoting

Strickland 466 U.S. at 687

690, 104 S. Ct. at 2052

) (quotation marks omitted).
Prevailing professional norms define what constitutes reasonably effective
assistance, and all of the circumstances surrounding counsel’s performance
must be considered. Because it is tempting for both a defendant and a court
to second-guess a counsel’s conduct after conviction, courts must be highly
deferential when they scrutinize counsel’s performance. Reviewing courts
must thus assume, until proven otherwise, that counsel’s conduct fell within
a broad range of reasonable professional judgment, and that counsel’s
conduct derived not from error but from trial strategy.
Mosley v. State,

378 Md. 548

, 557-558,

836 A.2d 678

, 683 (2003) (citations and quotation
marks omitted); see also Harris v. State,

303 Md. 685

, 697,

496 A.2d 1074

, 1080, (1985)
(explaining that to show deficient performance by counsel the defendant must “overcome
the presumption that . . . the challenged action might be considered sound trial strategy”
(citing

Strickland, 466 U.S. at 686

-688, 104 S. Ct. at 2064-66)). The soundness of trial
strategy is examined typically in the contexts of investigation, preparation, and compliance
with professional norms. State v. Borchardt,

396 Md. 586

, 604,

914 A.2d 1126

, 1136
(2007) (noting that “[b]efore deciding to act, or not to act, counsel must make a rational
and informed decision on strategy and tactics based upon adequate investigation and
preparation.”).
12
First, we consider whether trial counsel violated Armstead’s right to effective
assistance of counsel when she failed penultimately to object to the circuit court’s CSI voir
dire question, failing ultimately to preserve the issue for appellate review on direct appeal
(and perhaps as well in this collateral proceeding).
i. The CSI Voir Dire Question.
The Sixth Amendment and Article 21 of the Maryland Declaration of Rights grant
to criminal defendants not only the right to effective assistance of counsel, but also “the
right to a fair trial, which includes a requirement that trial judges refrain from making
statements that may influence improperly the jury.”

Stabb, 423 Md. at 463

, 31 A.3d at 927.9
Thus, “a defendant has the right to be tried by a fair and impartial jury, Md. Dec. of Rts.
Art. 21, and the “‘jury is the exclusive judge of the fact[s].’”

Atkins, 421 Md. at 443

, 26
A.3d at 983 (quoting Gore v. State,

309 Md. 203

, 210,

522 A.2d 1338

, 1341 (1987) (citing
Md. Dec. of Rts. Art. 23)). In that continuum, trial judges occupy an authoritative position,
such that they:
should be exceedingly careful in any remarks made by [them] during the
progress of a trial [including voir dire], either in passing upon evidence or
ruling upon prayers, and should carefully refrain, either directly or indirectly,
from giving expression to an opinion upon the existence or not of any fact,
which should be left to the finding of the jury . . . .
9
Our recital of general statements of law from appellate opinions addressing CSI
effect instructions or voir dire questions, which were decided after 25 March 2009, should
not be read by implication as agreeing with Armstead’s retrospective application argument.
The general principles we deploy from those cases were well-established in case law
decided before 25 March 2009.
13

Gore, 309 Md. at 212

, 522 A.2d at 1342 (quoting Elmer v. State,

239 Md. 1

, 10-11,

209 A.2d 776

, 782 (1965)).
Voir dire is critical to ensuring protection of a criminal defendant’s “Sixth
Amendment [and Article 21 right] to an impartial jury.” White v. State,

374 Md. 232

, 240,

821 A.2d 459

, 464 (2003) (quoting Rosales-Lopez v. United States,

451 U.S. 182

, 188,

101 S. Ct. 1629

, 1634 (1981)) (italics omitted). Any voir dire question, commentary, or
instruction is precluded when its effect relieves the State of “its burden of persuasion in a
criminal case, i.e., its burden of proving beyond a reasonable doubt all the facts necessary
to constitute the offenses.”

Atkins, 421 Md. at 443

, 26 A.3d at 983 (2011) (quoting State v.
Evans,

378 Md. 197

, 207,

362 A.2d 629

, 635 (1976)).
Md. Rule 4-312(d), governing the conduct of voir dire, states in relevant part:
(d) Examination and challenges for cause. (1) Examination. The trial judge
may permit the parties to conduct an examination of qualified jurors or may
conduct the examination after considering questions proposed by the parties.
If the judge conducts the examination, the judge may permit the parties to
supplement the examination by further inquiry or may submit to the jurors
additional questions proposed by the parties. The jurors’ responses to any
examination shall be under oath. On request of any party, the judge shall
direct the clerk to call the role of the array and to request each qualified juror
to stand and be identified when called.
Voir dire’s primary purpose is to ensure a fair and impartial jury. Charles &

Drake, 414 Md. at 733

, 997 A.2d at 158. Voir dire “entails examination of prospective jurors through
questions propounded by the judge (or either of the parties, if allowed by the judge) to
determine the existence of bias or prejudice and, literally translated, means ‘to say the
truth.’” Charles &

Drake, 414 Md. at 733

, 997 A.2d at 159 (internal quotation marks
omitted). The trial court is charged with discerning a juror’s ability to perform his or her
14
duty fairly and impartially through questioning the juror on “issues particular to the
defendant’s case so that biases directly related to the crime, the witnesses, or the defendant
may be uncovered.” State v. Logan,

394 Md. 378

, 395,

906 A.2d 374

, 384-85 (2006).
Therefore, “the subject [of voir dire questions] is left largely to the sound discretion of the
court in each particular case.” Moore v. State,

412 Md. 635

, 644,

989 A.2d 1150

, 1155
(2010) (quoting Corens v. State,

185 Md. 561

, 564,

45 A.2d 340

, 343 (1946)). The abuse
of discretion standard explains that:
a ruling reviewed under an abuse of discretion standard will not be reversed
simply because the appellate court would not have made the same ruling.
The decision under consideration has to be well removed from any center
mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable.
King v. State,

407 Md. 682

, 697,

967 A.2d 790

, 799 (2009). A chief concern when
evaluating whether a trial judge abused his or her discretion when imparting to the venire
a CSI effect “message” is whether the perception of the message relieves ultimately the
State of its burden to prove the criminal defendant’s guilt beyond a reasonable doubt.

Stabb, 423 Md. at 472

, 31 A.3d at 933.
A CSI effect jury message received its initial reported appellate analysis in
Maryland in Evans v. State,

174 Md. App. 549

(2007), which involved a
jury instruction. It re-surfaced next in the context of a voir dire question in Drake &
Charles v. State,

186 Md. App. 570

(2009), rev’d sub nom. Charles & Drake
v. State,

(2010). Since then, the implications of CSI effect jury
15
messages have tasked repeatedly both of our appellate courts to consider the potential for
prejudice on the minds of jurors.10
As relevant to this appeal, Stabb and Atkins (the present day standard-setters) make
clear, based on the “inconclusive state of the scholarly legal and/or scientific research11
10
Compare Hall v. State,

437 Md. 534

, 540-41,

87 A.3d 1287

, 1290-91 (2014)
(holding a CSI jury instruction improper, but finding the instruction harmlessly given);
Robinson v. State,

436 Md. 560

, 580,

84 A.3d 69

, 81 (2014) (trial court abused its discretion
in giving the “anti-CSI effect” jury instruction); Stabb v. State,

423 Md. 454

, 472,

31 A.3d 922

, 933 (2011) (the “’anti-CSI effect’ jury instruction given, in the circumstances of this
case, was improper”);

Atkins, 421 Md. at 452-53

, 26 A.3d at 989 (finding a CSI effect jury
instruction given erroneously); Carrero-Vasquez v. State,

210 Md. App. 504

63 A.3d 647

(2013) (trial court’s giving of a scientific evidence instruction was improper); Samba v.
State,

206 Md. App. 508

, 534,

49 A.3d 841

, 857 (2012) (same), and Evans v. State,

174 Md. App. 549

, 570-71

, 632-33 (2007) (no error in the court’s CSI jury
instruction), with State v. Stringfellow,

425 Md. 461

, 476,

42 A.3d 27

, 36 (2012) (holding
that asking an anti-CSI voir dire question was unpreserved and harmless); Burris v. State,

206 Md. App. 89

, 136-42,

47 A.3d 635

, 662-66 (2012) (noting the lower court’s CSI effect
voir dire question to be a content-neutral inquiry into the standard with which jurors would
review evidence), rev’d on other grounds,

435 Md. 370

78 A.3d 371

(2013); Morris v.
State,

204 Md. App. 487

42 A.3d 83

(2012) (the lower court’s CSI voir dire question did
not in any way “‘suggest[] that finding the defendant “guilty” was a foregone
conclusion[]’”); McFadden & Miles v. State,

197 Md. App. 238

, 254,

13 A.3d 68

, 77 (2011)
(CSI voir dire question improperly given), disapproved of by Stringfellow,

425 Md. 461

42 A.3d 27

; Charles & Drake v. State,

, 739,

, 162 (2010) (trial
judge abused discretion when asking CSI voir dire question), and Kelly v. State, 195 Md.
App. 403, 434,

6 A.3d 396

, 414 (2010) (noting, in the context of a waived appellate
challenge for counsel’s failure to object to a CSI voir dire question, “the record as a whole
does not lead to the conclusion that the jurors were under the impression that convicting
appellant was the only option.”).
11
The current state of scholarly research regarding the so-called “CSI effect” in
litigation contexts remains inconclusive regarding the effect’s authenticity.

Robinson, 436 Md. at 79-81

, 84 A.3d at 578-80, explicated that “in the last two years since [the Court of
Appeals] issued Stabb, legal and empirical proof of the existence of a “CSI effect is still
wanting.” (elaborating further on the current state of CSI effect scholarly research); see

Stabb, 423 Md. at 467-71

, 31 A.3d at 930-32 (the Court discusses, at length, the “‘CSI
Effect’ Redux”);

Atkins, 421 Md. at 457-62

, 26 A.3d at 993-96 (Harrell, J., concurring)
(engaging in a thorough analysis of the CSI Effect scholarly research legal landscape);
16
taken as a whole,” that Maryland disapproves of preemptive anti-CSI messages to the
venire or the empaneled jury.

Stabb, 423 Md. at 473

, 31 A.3d at 933 (to the extent that such
an instruction is requested, its use ought to be confined to situations where it responds to
correct pre-existing overreaches by the defense, i.e., a curative instruction. The Court of
Appeals may revisit the appropriateness of CSI messages when tailoring an “appropriate
response through voir dire questions and/or jury instruction” when a demonstration of
scholarly research has become more abundant); State v. Stringfellow,

425 Md. 461

, 473-74
n. 4,

42 A.3d 27

, 34-35 n. 4 (2012) (“Stabb and Atkins discuss when it may be permissible
for courts to pose a voir dire question or a jury instruction to counter what has been referred
to popularly as the ‘anti-CSI effect.’ Suffice it to say; these cases hold that it is erroneous
to pose such a question or instruction as a pre-emptive measure.” (emphasis added)). There
must be, at minimum, some form of relevant misstatement(s) of law or conduct by counsel
for the court to issue an appropriate and curative CSI effect jury instruction or similar
anticipatory grounds to ask a voir dire question. See Hall v. State,

437 Md. 534

, 540-41,

87 A.3d 1287

, 1290-91 (2014). Moreover, counsel’s mere reference to, or argument
regarding (or announced intent to argue), the absence or insufficiency of the State’s
scientific evidence to meet its burden of proof to convict a criminal defendant does not
warrant automatically the court’s issuance of a CSI message. See Robinson v. State,

436 Md. 560

, 580,

84 A.3d 69

, 81 (2014).
Charles &

Drake, 414 Md. at 731-33

, 997 A.2d at 157-59 (analyzing the scholarly basis
regarding the impact that viewing forensic crime dramas has upon juror behavior).
17
Stabb, “with a [clairvoyant] nod to the future,” noted that there might be situations
where CSI effect messages may be appropriate.

Stabb, 423 Md. at 473

, 31 A.3d at 933.
When those situations arise, the message must be neutral, i.e., the message must not convey
to the jury that their only option is to convict, even if no forensic evidence linking the
defendant to the crime(s) is adduced by the State. The message should (at least) include
language indicating that a not guilty verdict is an alternative. See Charles &

Drake, 414 Md. at 738

, 997 A.2d at 161 (noting the language of the voir dire question was not neutral,
“using the term ‘convict,’ solely, rather than including its alternative”); Samba v. State,

206 Md. App. 508

, 534,

49 A.3d 841

, 857 (2012) (“the anti-CSI effect instruction was
fatally flawed for not advising the jury to consider the lack of forensic evidence in
evaluating reasonable doubt”).
The question before us requires consideration of the status of the law at the time of
Armstead’s trial, and that which evolved to the contrary afterwards. After doing so, we
find no dilemma holding in this case that trial counsel’s performance was not deficient for
failing to object to the CSI voir dire question. There was no legal signpost alerting trial
counsel to the possibly inappropriate nature of this CSI effect voir dire question.
ii. The Direction The Legal Winds Were Blowing in 2009 Regarding a
CSI Effect Voir Dire Question.
Armstead concedes that at the time of his jury trial, “the current body of case law
regarding this ‘CSI instruction’ had not yet arrived.” In fact, there was little case law
existing at the time of Armstead’s trial regarding CSI effect voir dire questions. Trial
counsel may be imputed reasonably to know only of the Evans opinion from this Court,
18
filed two years earlier, discussing a defense counsel’s objection to a CSI effect jury
instruction, which instruction was suggested to be proper.
Evans was convicted of possession-related heroin charges.

Evans, 174 Md. App. at 552

, 922 A.2d at 622. Evans’ conviction was based on the eyewitness testimony from an
undercover police officer who was conducting an undercover narcotics purchase.

Evans, 174 Md. App. at 555

, 922 A.2d at 624. At trial, the judge, noting an objection from a co-
defendant’s counsel,12 charged the jury:
During this trial, you have heard testimony of witnesses and may hear
argument of counsel that the State did not utilize a specific investigative
technique or scientific tests. You may consider these facts in deciding
whether the State has met its burden of proof. You should consider all of the
evidence or lack of evidence in deciding whether a defendant is guilty.
However, I instruct you that there is no legal requirement that the State
utilize any specific investigative technique or scientific test to prove its case.
Your responsibility as jurors is to determine whether the State has proven,
based on the evidence, the defendants’ guilt beyond a reasonable doubt.

Evans, 174 Md. App. at 570-71

, 922 A.2d at 632-33 (emphasis added). Considering the
sufficiency of the evidence, we explained that the argued absence from the State’s case of
forensic evidence, i.e., photographic or video evidence of the heroin transaction, was not
material. See

Evans, 174 Md. App. at 570-71

, 922 A.2d at 633. Although the introduction
12
Evans was arrested with a co-defendant, Antwon Peaks. Evans and Peaks were
tried jointly. Peaks objected to the aforementioned instruction, noting that ‘[he had] not
previously seen this instruction given in the Circuit Court for Baltimore City. . . .’ The
objection, duly noted by the court, was overruled.”

Evans, 174 Md. App. at 564

, 922 A.2d
at 629. Evans, however, failed to object to the CSI effect jury instruction. We held
“[Evan’s] failure to raise such issue in the trial court precludes us from such consideration
on [direct] appeal.”

Evans, 174 Md. App. at 566

, 922 A.2d at 630. We proceeded,
nevertheless, to analyze the appropriateness of the CSI effect jury instruction as an
alternative basis for affirmance of the convictions.
19
of such evidence would have “made the discharge of the jury’s duty easier,” it was, at the
end of the day, unnecessary for the State in meeting its burden through the evidence it did
adduce.

Id. Moreover, we

indicated that the instruction was “a correct statement of the
law, was applicable to the facts in the case and was not fairly covered by other instructions
given[,]” and the “robust and vehement closing arguments of counsel . . . warranted
[further] giving the instruction.”

Evans, 174 Md. App. at 570

, 922 A.2d at 632.
As the parties note correctly in their briefs, there was no law on CSI effect voir dire
questions existing at the time of Armstead’s trial. The only arguable basis that trial counsel
might have had imputable notice of the possible impropriety of such a voir dire question
would have been Drake & Charles,

186 Md. App. 570

(decision filed on 7
July 2009). When we considered Drake & Charles, the briefs, however, were not filed
until 7 April 2009 and 7 May 2009, respectively, after Armstead’s trial concluded. In any
event, our decision in Drake & Charles would have provided no basis for Armstead’s
counsel to think there was a basis to object. Thus, there was no apparent indicator to
Armstead’s trial counsel that the law might be tacking in a different direction than Evans.13
It is unreasonable to expect trial counsel to foresee the change that remained beyond the
horizon.
iii. What Changed in the Post-2009 Law?
The legal analysis of CSI effect voir dire questions and instructions took a sharp
turn from Evans beginning with the Court of Appeals’s decision in Charles & Drake v.
See Armstead,

195 Md. App. 599

7 A.3d 169

(Armstead’s brief was filed on 25
13
March 2010 and the State’s response was filed on 18 May 2010).
20
State (a direct appeal case), which reversed our 2009 decision in Drake & Charles v. State.
In Charles & Drake v. State, over the defendant’s objection, the trial judge propounded the
following CSI effect question to the prospective jurors during voir dire:
I’m going to assume that many of you, from having done a few of these,
watch way too much TV, including the so-called realistic crime shows like
CSI and Law and Order. I trust that you understand that these crime shows
are fiction and fantasy and are done for dramatic effect and for this dramatic
effect they purport to rely upon, ‘scientific evidence,’ to convict guilty
persons. While this is certainly acceptable as entertainment you must not
allow this entertainment experience to interfere with your duties as a juror.
Therefore, if you are currently of the opinion or belief that you cannot convict
a defendant without ‘scientific evidence,’ regardless of the other evidence in
the case and regardless of the instructions that I will give you as to the law,
please rise.
Charles &

Drake, 414 Md. at 730

, 997 A.2d at 156-57 (emphasis added). The Court of
Appeals found that the propounded voir dire question “suggested that the jury’s only option
was to convict, regardless of whether scientific evidence was adduced.” Charles &

Drake, 414 Md. at 737

, 997 A.2d at 161. The Court concluded that the defendants were entitled
to a new trial because the language used—the word “convict” especially—poisoned the
venire, compelling them to believe their only option was to convict.

Id. Four months

later, in Kelly v. State (also a direct appeal), we considered a situation
where a trial judge, without objection from the defense trial counsel, asked the prospective
venire a question nearly identical to the one administered in Charles & Drake:
Now, I’m going to assume, having done this a few times, that many of you
watch way too much television, including those so-called realistic crime
shows like CSI: New York and CSI: Miami and CSI: Glen Burnie and Law
and Order and the rest of it. And I trust that you understand that these crime
shows are fiction and fantasy and for your entertainment. And for dramatic
effect, they purport to rely upon ‘scientific evidence’ to convict guilty
persons.
21
While this is certainly acceptable as entertainment, you must not allow your
entertainment to interfere with your duties as a juror. Therefore, if you are
currently of the opinion that you cannot convict a defendant without
‘scientific evidence,’ regardless of all of the other evidence in the case and
regardless of the instructions that I give you as to the law of the case, please
stand.

195 Md. App. 403

, 429,

6 A.3d 396

, 411 (2010), cert. denied

417 Md. 502

10 A.3d 1181

(2011) (emphasis added). We held ultimately the issue unpreserved for review because of
counsel’s failure to object.

Kelly, 195 Md. App. at 434

, 6 A.3d at 414 (2010). We
commented, however, that the record “as a whole does not lead to the conclusion that the
jurors were under the impression that convicting [Kelly] was the only option.”

Id. We remarked

that “[T]he [trial] court repeatedly told the jury, in both voir dire and during
instructions, that they must return a verdict of not guilty if the State did not prove [Kelly’s]
guilt beyond a reasonable doubt.”

Id. In McFadden

& Miles (yet another direct appeal), a trial judge asked, over defense
counsel’s objection, the venire during voir dire:
I’m going to assume, based on having done this before, that many of you
watch way too much television, including the so-called realistic crime shows,
like CSI, Miami, and CSI, New York, and CSI, Glen Burnie, Law and Order,
and Illegal and Unwarranted and the rest of them.
Now, I trust you understand that these crime shows are fiction and fantasy.
And for dramatic effect and for you to stay tuned in, they purport to rely upon
‘scientific evidence.’ This is certainly entertainment, but you must not allow
that entertainment to interfere with the high duty you will have in this case
as a juror.
Therefore, if you are currently of the opinion or belief that you cannot convict
a Defendant without ‘scientific evidence,’ regardless of the other evidence in
the case and regardless of the instruction I give you as to law, please rise. I
see no responses. Okay.
22

197 Md. App. 238

, 250-51,

13 A.3d 68

, 75 (2011) (emphasis added). With Charles &
Drake finding a similar query inappropriate, our unavoidable conclusion was that
McFadden and Miles were “deprived of a fair and impartial jury” because the judge abused
his discretion by suggesting to the panel that “convicting [McFadden and Miles] was the
only option.” McFadden &

Miles, 197 Md. App. at 254

, 13 A.3d at 77 (quoting Charles &

Drake, 414 Md. at 739

, 997 A.2d at 156-57).
The year 2012 saw a trinity of reported cases issue from our State appellate courts
regarding CSI effect voir dire questions. In Stringfellow, another direct appeal, the trial
court put to the venire the following query, “[d]oes any member of the panel believe that
the State is required to utilize specific investigative or scientific techniques such as
fingerprint examination for the defendant to be found guilty beyond a reasonable doubt?”

Stringfellow, 425 Md. at 466

, 42 A.3d at 30. Defense counsel objected; however, he
thereafter accepted the jury panel without exception, thus “fail[ing] to preserve [the
propriety of the question] for appellate review.”

Stringfellow, 425 Md. at 469

, 42 A.3d at
32. The Court noted, “had Stringfellow preserved his objection, and assuming that
propounding the pre-emptive ‘anti-CSI effect’ question was error, the error was harmless
beyond a reasonable doubt, given the record of his trial.”

Id. In Morris

v. State, involving another direct appeal, the trial court, during voir dire,
issued, over defense objection, the following question to the venire:
Ladies and gentlemen, televisions shows such as C.S.I., Crossing Jordan and
some of the like are fiction. They are not true. Many of the scientific
methods used in those kinds of television shows are exaggerated or do not
even exist. If you are selected as a juror in this case[,] you will be required
23
to base your decisions solely on the evidence presented in court. Would any
potential juror be unable to ignore the so called crime dramas they have been
seeing on television, the movies and [i]nternet or such and putting that aside
in making your decision based solely on the evidence that you hear in court
and not through some expectation of something that you’ve seen through the
media or television? Is there anyone who would be so persuaded by such a
show that they would not be able to judge this case fairly and impartially?
Please rise if that applies to you. Let the record reflect that there is no such
response.

204 Md. App. 487

, 490,

42 A.3d 83

, 85 (2012). We held this voir dire question “did not
in any way suggest that finding the defendant guilty was a foregone conclusion or fail to
lay out any alternative.”

Morris, 204 Md. App. at 496

, 42 A.3d at 88 (internal quotation
marks omitted). We noted that this question did not suffer from the same flaws as that
administered in Charles & Drake.

Id. Notably, the

question omitted the “convict”
reference, utilized neutral language otherwise, and asked the venire whether they would be
capable of putting aside any pre-established expectations generated from television and
render a “decision based solely on the evidence” admitted in court.

Morris, 204 Md. App. at 490

796-97, 42 A.3d at 85

, 88-9.
In Burris v. State,14 our most recent reported opinion assessing CSI voir dire
questions (again in a direct appeal context), the trial court asked, with no objection from
defense counsel:
Within this world of, of science or circumstantial evidence is the world of
scientific evidence and within that world there is now what is referred to as
14
The Court of Appeals, although reversing our judgment in Burris v. State,

435 Md. 370

78 A.3d 371

(2013), did so because “defendant’s gang membership was relevant
to the alleged murder for purposes of determining admissibility of expert testimony
identifying defendant as a member of a notorious gang, but the probative value of expert
testimony was substantially outweighed by the danger of unfair prejudice.” The Court did
not comment critically on this Court’s analysis of the CSI effect voir dire question.
24
crime scene investigation type of evidence. The type of evidence that’s been
dramatized in the television programs, the Hannibal Lecter books and movies
that deal with trace evidence. Trace evidence being hair and fingerprints and
DNA and one book fingerprints on an eyeball. These are dramatizations of
forms of circumstantial evidence. The jurors will be called upon to consider
all of the evidence that is presented no matter who it is presented by. No
matter what the person, the party is urging you to consider. Is there any
member of the jury panel who would require trace evidence in order to accept
a proposition presented by one of the parties? In other words, you say well,
she didn’t present this or he didn’t present that. I can’t accept it. Is there any
member of the jury panel who set that form of artificial standard?

206 Md. App. 89

, 107,

47 A.3d 635

, 645 (2012) (emphasis added). We noted, at the outset,
that the question was unpreserved for review because Burris “failed to object to the “CSI-
type” voir dire question and accepted the jury empaneled.

Burris, 206 Md. App. at 140-41

,
47 A.3d at 665 (2012). Nonetheless, we explained that the circuit court asked a reasonable,
content-neutral and appropriate voir dire question. See

Burris, 206 Md. App. at 141

, 47
A.3d at 665.
iv. So, What Now?
It has long been established that an attorney is not required ordinarily to be prescient
as to changes in the law and act accordingly. See Maryland v. Kulbicki,

136 S. Ct. 2

, 4
(2015) (per curiam); Unger v. State,

427 Md. 383

, 409,

48 A.3d 242

, 257 (2012). Armstead
presented no evidence establishing that the prevailing professional norm at the time of his
trial was to object to CSI effect messages to the venire or jury. We do not find deficient
trial counsel’s decision to forgo objecting to the trial court’s CSI voir dire question in this
case. The fact that some attorneys, around the State or in Baltimore City, were objecting
25
apparently to such questions at trials held at, about, or before, the time of Armstead’s trial15
and others were not16 is an insufficient predicate on which to hold that Armstead’s trial
counsel had any rational basis to make such an objection and, thus, she was performing
below an objective standard of reasonableness when she did not object.
What Armstead misunderstands, in his application of the Strickland performance
standard to the failure of his trial counsel to object to the trial court’s CSI voir dire question,
is that he had the burden to prove his trial counsel “made errors so serious that [she] was
not functioning as the counsel guaranteed . . . by the Sixth Amendment [and the Maryland
Declaration of Rights].” Sanmartin

Prado, 448 Md. at 681-82

, 141 A.3d at 109 (quoting

Strickland, 466 U.S. at 687

690, 104 S. Ct. at 2052

) (quotation marks omitted). Armstead
was the sole witness at his post-conviction hearing, but failed to remark on the CSI voir
dire question. Armstead’s trial counsel was unable to testify at the post-conviction hearing
because she was ill, but, rather than seek a continuance, Armstead elected to continue
without her testimony. Armstead opted also to proceed without testimony from any other
15
Brief for Appellant, at 1, Drake & Charles v. State,

186 Md. App. 570

(2009), rev’d sub nom. Charles & Drake v. State,

(2010)
(No. 3021),

2009 WL 1348786

at 3 (defense counsel objecting during May 2006 trial to
CSI voir dire question); McFadden & Miles v.

State, 197 Md. App. at 250

, 13 A.3d at 75
(trial counsel objecting to the CSI voir dire question during voir dire on 21 October 2008).
16
Brief for Appellant, at 1, Kelly,

195 Md. App. 403

6 A.3d 396

, (No. 645),

2010 WL 3415327

, at 1-2 (defense counsel did not object to the CSI effect voir dire question
during 27-30 April 2009 trial); Handy v. Bishop, CV RDB-14-1820,

2015 WL 9259258

, at
*8 (D. Md. Dec. 18, 2015) (defense counsel alleged (in a federal habeas action ) ineffective
for failing to object to the trial judge’s (same trial judge as here) CSI effect voir dire
question during May 2008 state trial).
26
attorney or witness as to the unreasonableness of his trial counsel’s failure to object to the
circuit court’s issuance of the CSI effect voir dire question.
We “must assume, until proven otherwise, that counsel’s conduct fell within a broad
range of reasonable professional judg[]ment, and that counsel’s conduct derived not from
error but from trial strategy.” Sanmartin

Prado, 448 Md. at 679

, 141 A.3d at 108 (quoting

Jones, 138 Md. App. at 209

, 771 A.2d at 425). In our view, Armstead failed, on this record,
to meet this burden.
To overcome these failings, Armstead demands the benefit of Charles & Drake
(2010) and McFadden & Miles (2011); that is, their holdings and reasoning should apply
retrospectively to the ineffective counsel analysis in his post-conviction case, based on
Allen,

204 Md. App. 701

42 A.3d 708

. We disagree. First, Armstead’s reliance on Allen
is misplaced. We held in Allen that Atkins and Stabb would apply retrospectively to then
pending direct appeal cases where objections preserved a challenge. See Allen, 204 Md.
App. at

721-22, 42 A.3d at 720-21

. Further, Atkins and Stabb considered CSI jury
instructions, not voir dire questions.

Allen, 204 Md. App. at 703

, 42 A.3d at 710. Voir dire
questions and jury instructions serve distinct purposes and occur usually at opposite ends
of the trial process. Jury instructions “aid the jury in clearly understanding the case, to
provide guidance for the jury’s deliberations, and to help the jury arrive at a correct
verdict.” Appraicio v. State,

431 Md. 42

, 51,

63 A.3d 599

, 604 (2013) (quotation omitted).
Voir dire seeks to “uncover any bias that a venire[-]person might harbor. To achieve that
result, to be able to do so, any proposed question related to the facts of the case, designed
27
to uncover such bias, is directed to a specific cause for disqualification and, therefore, must
be asked.”

Moore, 412 Md. at 650

, 989 A.2d at 1158.
Moreover, the potential for lingering impact of an arguably inappropriate voir dire
question at the beginning of trial, although such a question may keep a responding venire
person favorable to the defendant from serving, is of concern because it may plant invasive
species’ seeds in the minds of non-responding venire persons who end-up being
empaneled. As to the latter, whether the argued prejudice of voir dire questioning carries
through in undiluted strength to the jury deliberation process is debatable. Evaluation of
prejudice turns ordinarily on a contextual consideration of individual trial records. On the
other hand, jury instructions given on the cusp of deliberations are arguably more likely to
be retained by and impress the jury in deliberation because of the close proximity in time.
Armstead’s present case is a 2014-16 post-conviction challenge, not a direct appeal
from his 2009 conviction. Moreover, the critical issue, as noted above, is unpreserved for
our review. Armstead’s current case fails each predicate of Allen’s analysis to support
retrospective application of the relevant post-2009 case law. Moreover, Armstead’s
reasoning overlooks Kelly, which, if applied retrospectively, would work a likely detriment
to Armstead’s objective. The post-conviction court, therefore, applied erroneously Charles
& Drake v. State to the present case, thus misapplying ultimately the Strickland standard.
Trial counsel’s performance in 2009 was not ineffective for failing to object to the trial
judge’s CSI effect voir dire question.
Even were we to assume, for the moment, that Armstead’s invocation of Maryland’s
post-2009 reported, direct appeal jurisprudence regarding a trial court’s use of CSI effect
28
voir dire questions (or instructions) were applicable here, we find no prejudice (the other
component of Strickland) on this record. Therefore, the error (if any), was harmless.
d. Harmless Error.
As to Strickland’s prejudice factor, a post-conviction petitioner must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Sanmartin

Prado, 448 Md. at 681-82

, 141 A.3d at
109-10 (citing

Strickland 466 U.S. at 687

690, 104 S. Ct. at 2052

). An “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.’” Coleman
v. State,

434 Md. 320

, 341,

75 A.3d 916

, 928 (2013) (citing Oken v. State,

343 Md. 256

,
284,

681 A.2d 30

, 44 (1996) (quoting Lockhart v. Fretwell,

506 U.S. 364

, 369,

113 S. Ct. 838

, 842 (1993))). In the context of a trial counsel’s failure to preserve an issue for appeal,
“Strickland’s performance and prejudice [factors] naturally overlap because the questions
of whether counsel’s performance was adequate and whether it prejudiced the [asserting
party] both will turn on . . . whether there is a reasonable possibility of success.” Gross v.
State,

371 Md. 334

, 350,

809 A.2d 627

, 636 (2002). A counsel’s ineffectiveness for failing
to preserve an issue for appellate review “necessarily requires a reviewing court to look at
the merits of the underlying claim.”

Id. When a

trial court injects erroneously a CSI effect voir dire question, in order for a
court to find harmless error, the court must be satisfied beyond a reasonable doubt that the
abuse of discretion was harmless.

Hall, 437 Md. at 540

, 87 A.3d at 1291;

Stringfellow, 425 Md. at 474

, 42 A.3d at 35. We must, “upon an independent review of the record, ‘“be
29
satisfied that there is no reasonable possibility”’ that the assumed error caused
impermissibly the guilty verdict.”

Stringfellow, 425 Md. at 474

, 42 A.3d at 35 (citing Lee
v. State,

405 Md. 148

, 163,

950 A.2d 125

, 134 (2008) (quoting Dorsey v. State,

276 Md. 638

, 659,

350 A.2d 665

, 678 (1976))).
The record must demonstrate that the reference to a lack of scientific evidence was
not material to the contested issue. Compare

Hall, 437 Md. at 540

, 87 A.3d at 1291 (in an
armed carjacking case, the Court held a CSI effect jury instruction regarding the lack of
scientific evidence, i.e., a photograph of the defendant controlling the victim’s car, was not
material or necessary to “shed any light” on how the defendant gained control of the
victim’s car), and

Evans, 174 Md. App. at 570

, 922 at 632-33 (the lack of scientific
evidence was not critically important to the case; the State could prove guilt beyond a
reasonable doubt with an eyewitness’s testimony and identification by two detectives
involved directly in the transaction), with

Atkins, 421 Md. at 50

, 26 A.3d at 988 (the missing
scientific evidence was critically important to the case, i.e., “[t]he evidence lacking here
could have been direct evidence to affirmatively linking the knife introduced to the alleged
assaults.”).
Factors relevant in determining whether an erroneous CSI effect voir dire question
was given harmlessly include, but are not limited to: the timing and content of the CSI voir
dire question, see

Morris, 204 Md. at 490

796-97, 42 A.3d at 85

, 88-9, whether the
erroneously given question was “reiterated during jury instruction or other comments from
the bench while the jury was present;” the presence of alleviating jury instructions or
“follow-on instruction/voir dire question”; whether the State or defense stressed the
30
importance of the CSI effect voir dire question in trial, and whether the judge allowed the
parties an unrestrained chance to argue the adequacy or inadequacy of scientific evidence
necessary to his or her defense. See

Stringfellow, 425 Md. at 474

-77, 42 A.3d at 34-6;

Kelly, 195 Md. App. at 434

, n.

18, 6 A.3d at 414

, n. 18.
In Stringfellow, the Court found that the circuit court’s CSI voir dire question was
given harmlessly.17 In reaching that decision, the Court noted:
the error was not reiterated during jury instructions or other comments from
the bench while the jury was present. While the error occurred during an
important part of the trial process, the judge’s management of closing
argument ameliorated significantly any prejudice to Stringfellow. The judge
permitted Stringfellow’s attorney to make a closing argument, over the
State’s objection, about how the police officers’ failure to request testing of
the confiscated handgun for latent fingerprints created reasonable doubt . . .
The failure to request a fingerprint analysis became, in defense counsel’s
words, “a big issue” . . . Thus, the judge’s management of closing argument
defused any prejudicial impact of the erroneously propounded voir dire
question.

Stringfellow, 425 Md. at 474

-75, 42 A.3d at 35. Moreover, Stringfellow gave weight (albeit
less than other factors) to the lower court’s jury instruction restating the State’s burden of
proof.

Id. The Court

observed that:
toward the end of trial, the judge admonished the jury during his final
instructions, ‘I may have commented on evidence or asked a question of a
witness. You should not draw any inferences or conclusions from my
17
The Court held ultimately that “Stringfellow . . . waived his objection to the [CSI
effect] voir dire question.”

Stringfellow, 425 Md. at 473-74

, 42 A.3d at 34. The Court,
however, assumed, for the sake of argument, that had Stringfellow preserved the issue for
its review, “and that it was error for the trial judge to pose the pertinent question [(the
question was given preemptively)], [the] result here would be the same because we are
persuaded that there is no reasonable possibility that the erroneously propounded voir dire
question contributed to the guilty verdict, i.e., asking the question was harmless error on
this record.”

Stringfellow, 425 Md. at 474

, 42 A.3d at 34 (internal citations and footnote
omitted).
31
comments or questions either as to the merits of the case or as to my views
regarding the witness . . . the State had the constant burden to prove that
Stringfellow was guilty beyond a reasonable doubt and that if you are not
satisfied of the defendant’s guilt to that extent, then reasonable doubt exists
and the defendant must be found not guilty.’

Stringfellow, 425 Md. at 476

, 42 A.3d at 36. Stringfellow perceived that the lower court’s
follow-up jury instructions, although carrying less weight in the analysis of the error’s
harmlessness,18 assisted nonetheless in applying salve on the sting of the erroneous CSI
effect voir dire question.

Stringfellow, 425 Md. at 475

, 42 A.3d at 35 (citing Alston v.
State,

414 Md. 92

, 108,

994 A.2d 896

, 905 (2010)). Harmless error was found principally
because, among other things, the CSI effect voir dire question was given
contemporaneously with follow-on instructions and the pronouncement of final remedial
instructions.

Stringfellow, 425 Md. at 476

-77, 42 A.3d at 36. Moreover, the circuit court
allowed Stringfellow’s counsel to criticize the absence of scientific evidence from the
State’s case, which (in the defense’s mind) was necessary in order to convict Stringfellow.

Stringfellow, 425 Md. at 474

-75, 42 A.3d at 35. This was paramount in the harmless error
analysis.

Stringfellow, 425 Md. at 477

, 42 A.3d at 36.
In Armstead’s case, the voir dire question is nearly identical to the question posed
in Charles & Drake, Kelly, and McFadden & Miles. The problematic language in the voir
dire questions was “if you are currently of the view that you cannot convict the defendant
18
Stringfellow conceded that curative instructions not given contemporaneously
with the commission of the error are potentially of diminished curative value.

Stringfellow, 425 Md. at 475

, 42 A.3d at 35 (citing Donaldson v. State,

416 Md. 467

, 499,

7 A.3d 84

,
103 (2010)). Further, general jury instructions tend to “have relatively attenuated curative
effect.”

Id. 32 without

‘scientific evidence’ regardless of all the other evidence in the case and regardless
of the instruction I give you as to the law, please stand.” (emphasis added). Charles &
Drake, Kelly, and McFadden & Miles noted the potential for prejudice inherent in the use
of the word “convict” in the heart of the query. The words preceding and following
“convict” suggest to the jury that a conviction is their only option. Hall, Robinson, Stabb,
and Atkins note the inconclusive empirical proof of the existence of a CSI effect and
whether it affects adversely the work of a jury,19 but indicate that an anti-CSI effect
message may be appropriate if tailored “to situations where it responds to correction of a
pre-existing overreach by the defense, i.e., a curative instruction.” Robinson,

436 Md. 577

,
84 A.3d at 79 (quoting

Stabb, 423 Md. at 472

-73, 31 A.3d at 933).
Had Armstead noted an objection to the trial judge’s voir dire question and/or
assuming the post-2009 relevant case law is applicable properly to find error here, we do
not believe that the trial judge’s administration of the question merits a new trial. We agree
with Appellant that, employing Stringfellow’s and Kelly’s rationales, the trial court’s CSI
effect voir dire query was harmless on the record of Armstead’s trial.
19
As noted earlier, the parties point-out correctly that the case law at the time of
Armstead’s trial mitigated in favor of the appropriateness of such CSI questions. See Drake
& Charles,

186 Md. App. 570

; Evans, 174 Md. App 549,