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Cirincione v. State2/2/1998
truth.
Q.You haven't gone over with anybody what you are going to testify here to?
A.The last time my attorney talked to me, he gave me a statement, the statement that I had made, and he gave that to me to read. He said this is the statement that you made, and I said I don't need to read it, I know what the statement is.
Q.That's the entire preparation and planning you have made to come here and testify?
A.Well, I think I am telling you the truth. So, from the truth, what do you need to plan? I am telling you like it is. I mean, I am telling it like it is, I am not trying to conceal anything.
At the post conviction hearings, neither appellant nor trial counsel took the stand, so the post conviction court lacked the benefit of live testimony by an eyewitness as to what had in fact occurred between appellant and trial counsel prior to appellant's trial testimony. Instead, appellant presented expert testimony through Prof. Bennett that trial counsel had failed to prepare appellant to take the stand. On direct examination, Prof. Bennett stated: s I now find out talking to Mr. Cirincione, and it's apparent from the cross-examination, page 70 of his cross-examination on April 15th, when he said on cross, "I've literally not talked to my attorney about my testimony." [Trial counsel], in a capital murder case, put on his client without going through a Q & A or without - and without having him go through a mock cross-examination. That to me is gross negligence. And Mr. Doory was very, very tough on his cross-examination and good on his cross-examination of Mr. Cirincione, and he was utterly ill prepared for it, totally ill prepared and it hurt his case in my judgment....
Prof. Bennett was asked some follow-up questions on cross-examination (by the same Assistant State's Attorney who prosecuted appellant's trial). Prof. Bennett said the following: A.I'm saying in this case, from my interview of Mr. Cirincione myself at the Maryland Penitentiary, he was not prepared by [trial counsel] either in a Q & A or in, what I'd say the weaker way, topical direct and cross.
Q.What area did you find that he was defective in?
A.The Defendant was not prepared for a grueling cross-examination by you .
he one area that was especially visible to the jury is that he lost his cool on the stand. It did appear that he was counseled in that regards and he didn't - he didn't even have the date correct of the incident.
I mean, if you read the direct and cross, the inference that's clear from the record is and as picked up very clearly by Judge Friedman, not prepared, did not make a good witness. . . . .
Q.Even extremely well-prepared witnesses are sometimes touched and get angry, don't ?
A. This went beyond that.
The post conviction court found a lack of evidence to support appellant's contention that trial counsel failed to prepare appellant, and we agree. To begin with, there is no credible, direct evidence that preparation did not occur. As we have already pointed out, neither appellant nor trial counsel (who appear to be the only persons with direct knowledge of what transpired between them) testified at the post conviction proceedings. The court had before it appellant's cross- examination statements from the trial transcript to the effect that no preparation occurred, but the post conviction court found that these statements are simply not creditable. We must concur. The statements are an entirely self-serving effort to counter the prosecutor's thinly- veiled implication that appellant's testimony had been coached. Appellant never even denies in these statemen
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