Adams v. State

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). This appeal’s primary contention affords an opportunity to take a long look at Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and to explore several of its more arcane ramifications. The appellant, Peter Eli Adams, was convicted by a Baltimore City jury, presided over by Judge Kaye Allison, of 1) murder in the first degree and 2) the use of a handgun in the commission of a crime of violence. On this appeal, he raises four questions: 1.

Did the State unconstitutionally fail to reveal exculpatory evidence favorable to the defense in violation of Brady? 2. Did Judge Alison erroneously fail to reissue a body attachment for Lloyd Jarrett? 3. Did Judge Alison erroneously fail to strike the forelady of the jury when it was revealed that she knew a person in the vicinity of the courtroom who may have had some connection to the case? 4. Did Judge Alison erroneously admit into evidence a tape-recorded statement in violation of Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004)? ³⁵⁸ Brady v. Maryland The appellant’s major contention is that he was denied due process of law under the Fourteenth Amendment when the State unconstitutionally “suppressed evidence favorable to the accused” in contravention of Brady .

Although the appellant’s Brady contention is badly flawed, it will serve as an excellent teaching vehicle by negative example. The Brady holding itself had been foreshadowed by the three earlier Supreme Court decisions of 1) Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935); 2) Alcorta v. Texas, 355 U.S. 28 , 78 S.Ct. 103 , 2 L.Ed.2d 9 (1957); and 3) Napue v. Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). Mooney, Alcorta, and Napue all dealt either with the knowing use of perjured or false testimony by the State or with the failure of the State to take prompt corrective measures once the use of false testimony became known to it. It was, however, the 1963 decision in Brady that announced for the first time a general prosecutorial duty to disclose exculpatory information.

The core of the Brady holding was: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87 , 83 S.Ct. 1194 (emphasis supplied). Although Brady itself had appeared to condition the entitlement to exculpatory evidence on the defendant’s having requested it, the subsequent cases of United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), and United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), effectively eliminated the request requirement and imposed upon the prosecution the duty of disclosure regardless of whether there had been 1) a very specific request for certain types of information, 2) a mere generalized request for “all Brady material,” or 3) no request at all. ³⁵⁹ We find the Strickland formulation of the Agurs test for materiality sufficiently flexible to cover the “no request,” “general request,” and “specific request” cases of prosecutorial failure to disclose evidence favorable to the accused. United States v. Bagley, 473 U.S. at 682 , 105 S.Ct. 3375 . It was also in United States v. Bagley that the Supreme Court first made it clear that the Brady disclosure requirement covered helpful impeachment evidence as well as directly exculpatory evidence on the merits of guilt or innocence.

In Brady and Agurs , the prosecutor failed to disclose exculpatory evidence. In the present case, the prosecutor failed to disclose evidence that the defense might have used to impeach the Government’s witnesses by showing bias or interest. Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. Such evidence is “evidence favorable to an accused, ” so that, if disclosed and used effectively, it may make the difference between conviction and acquittal. 473 U.S. at 676 , 105 S.Ct. 3375 (emphasis supplied).

The Bagley opinion also stated the standard for determining when allegedly exculpatory evidence is material within the contemplation of Brady . The evidence is 'material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. 473 U.S. at 682 , 105 S.Ct. 3375 (emphasis supplied). In Kyles v. Whitley, 514 U.S. 419, 433 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995), the majority opinion of Justice Souter summarized these post -Brady refinements.

In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the ³⁶⁰ second and third Agurs circumstances, i.e., the “specific-request” and “general-or no-request” situations. Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. ” (Emphasis supplied). Kyles v. Whitley further finetuned the test for materiality. Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important.

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial. ” 514 U.S. at 434 , 115 S.Ct. 1555 (emphasis supplied). The most recent reaffirmation of Brady law by the Supreme Court came in Strickler v. Greene, 527 U.S. 263, 280 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999). We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused and that the duty encompasses impeachment evidence as well as exculpatory evidence.

Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Emphasis supplied). Although the Supreme Court’s decision in Brady was in review of the decision of the Maryland Court of Appeals in Brady v. State, 226 Md. 422 , 174 A.2d 167 (1961), and although Maryland on three subsequent occasions routinely applied Brady law in State v. Tichnell, 306 Md. 428, 462-63 , 509 A.2d 1179 (1986); Bloodsworth v. State, 307 Md. 164, 171-75 , 512 ³⁶¹ A.2d 1056 (1986); and State v. Thomas, 325 Md. 160, 190 , 599 A.2d 1171 (1992), Maryland’s first truly definitive analysis of Brady law was the opinion of Judge Raker in Ware v. State, 348 Md. 19, 37-48 , 702 A.2d 699 (1997). Two subsequent opinions by the Court of Appeals also discussed and applied Brady law. Wilson v. State, 363 Md. 333, 346 , 768 A.2d 675 (2001), focused on the failure of the State to disclose evidence of a deal or agreement with a witness as the suppression of solid impeachment evidence bearing on the witness’s credibility.

Impeachment evidence, as well as exculpatory evidence, is “evidence favorable to an accused.” The failure to disclose evidence relating to any understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness’s credibility. (Emphasis supplied). In Conyers v. State, 367 Md. 571, 597-98 , 790 A.2d 15 (2002), the Brady violation similarly consisted of the failure of the State to disclose impeachment evidence affecting a witness’s «•edibility. Impeachment evidence, as well as exculpatory evidence, is “evidence favorable to an accused.” The failure to disclose evidence relating to any understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness’s credibility.

The Supreme Court explained in Giglio [v. United States] that, when the government depends almost entirely on the testimony of a key witness to establish its prima facie case and the witness’s credibility, therefore, is an important issue, “evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility .... ” (Emphasis supplied). This Court thoroughly mapped the contours of Brady in DeLuca v. State, 78 Md.App. 395, 423-36 , 553 A.2d 730 (1989) ³⁶² and Williams v. State, 152 Md.App. 200 , 831 A.2d 501 (2003). See also Stewart v. State, 104 Md.App. 273, 286-88 , 655 A.2d 1345 (1995) and Jones v. State, 132 Md.App. 657, 672-75 , 753 A.2d 587 (2000). The Three Key Criteria Brady law establishes three key criteria, each one of which must be satisfied to prove an unconstitutional suppression of exculpatory evidence.

The criteria were catalogued by Justice Stevens in Strickler v. Greene, 527 U.S. at 281-82 , 119 S.Ct. 1936 : There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. (Emphasis supplied). That tripartite test has been one of unfailing utility in Maryland. Two years before the Supreme Court did so in Strickler v. Greene, Judge Raker, in Ware v. State, 348 Md. at 38 , 702 A.2d 699 , had already distilled the three-pronged nature of the issue from the more rambling discussion in United States v. Bagley.

To establish a Brady violation, the defendant must establish (1) that the prosecutor suppressed or withheld evidence that is (2) favorable to the defense — either because it is exculpatory, provides a basis for mitigation of sentence, or because it provides grounds for impeaching a witness — and (3) that the suppressed evidence is material. United States v. Bagley, 473 U.S. at 674-78 , 105 S.Ct. 3375 . (Emphasis supplied). The Court of Appeals repeated Ware’s formulation of the three-pronged test verbatim in Wilson v. State, 363 Md. at 345 , 768 A.2d 675 , and Conyers v. State, 367 Md. at 597 , 790 A.2d 15 .

This Court followed suit in Williams v. State, 152 Md.App. at 220, 831 A.2d 501 . ³⁶³ Applying those criteria to the case at hand, the appellant’s claim to have suffered a Brady violation depends on his establishing each of the three preconditions: 1. that the evidence that Leon Wilkerson had a subjective expectation of leniency would actually have helped the defense; 2. that, as of the time of the appellant’s trial, evidence of Wilkerson’s subjective expectation of leniency was known to the State but not to the appellant and was, therefore, suppressed; and 3. that, had the evidence of Wilkerson’s expectation of leniency been known by the appellant, there is a substantial possibility that the trial outcome would have been different. By way of further reduction, the evidence in issue must have been: 1. HELPFUL, 2. SUPPRESSED, and 3.

MATERIAL. Those three criteria give us the analytic framework against which to measure the appellant’s primary contention. A Shift in Doctrinal Predicates From Newly Discovered Evidence to a Brady Violation Before turning to the first of the criteria, that of whether the evidence in question would actually have been helpful to the defense had it been known, we should first clear away both some doctrinal and factual clutter. The key issue, albeit key, has been only haltingly asserted.

In terms of the evolution of the contention, the appellant’s trial concluded on May 23, 2002, when the jury returned verdicts of guilty of first-degree murder and the use of a handgun in a crime of violence. The appellant promptly filed a Motion for New Trial on May 31, alleging what are now the second and third contentions on this appeal. On November 19, the appellant filed an Amended Motion for New Trial, raising for the first time the allegedly newly discovered evi ³⁶⁴ dence that “Leon Wilkerson, the only eyewitness in this matter called by the State to testify against the defendant, had an informal understanding with the State for leniency in his pending felony narcotics cases and his pending violation of probation case.” There was still no mention of Brady v. Maryland. Judge Allison convened a hearing on the Amended Motion for New Trial on November 21.

Extensive argument, based on a convoluted tangle of procedural events, was made by counsel for both sides. Deep into the argument of appellant’s counsel on the subject of newly discovered evidence, the specter of Brady first arose: I also believe I’ll be able to introduce testimony to show that Mr. Wilkerson was the one who initiated coming forward to the State seeking a plea agreement. And under the February 2000 case that I provided to you of [Conyers v. State], even the act of going and soliciting a deal becomes Brady material. (Emphasis supplied).

Still operating within the context of Maryland Rule 4-331(c) and its limitation that “merely impeaching evidence” will not qualify as newly discovered evidence, Judge Allison probed for that argument’s ultimate significance. Defense counsel, out of necessity, then switched the ground for the new trial motion from one based on newly discovered evidence to one based on a Brady violation. Judge Allison made an appropriate observation. THE COURT: All right.

The next question I have, Mr. Cole, is assuming after all the dust settles, after all the witnesses testify, after we have this mini trial, that your version of the facts is borne out, how — and you have told me that you are proceeding under Rule 1-331 (c) as to newly discovered evidence — how is this not merely impeaching evidence? MR. COLE: ... [I]n Wilson v. State, which is March 9th 2001, whenever a plea agreement either formal or informal is suppressed within the meaning of Brady, meaning in this ³⁶⁵ case that Lynn Stewart never made anyone aware of what the understanding was with Mr. Wilkerson, suppression of any type of understanding formal or informal is a Brady violation. And at this stage of where we are here in this proceeding, it’s not only proper subject of review for post conviction proceedings, but it’s also a proper subject of review for a motion for a new trial, when it can be shown that evidence favorable to the Defendant was suppressed during the course, or prior to, trial actually starting.

THE COURT: But you didn’t file as to that in a timely manner. (Emphasis supplied). Judge Allison pointed out that a Brady issue had not been raised, but generously gave the appellant leave to file an amended new trial motion. She continued the hearing to a later date.

I know that this is a pet peeve of mine, but this proceeding is exactly why this is pet peeve of mine. Rule 4-331A states, “a motion filed under this rule shall be in writing and shall state in detail the grounds upon which it is based.” That has not been done in this case and you are asking me essentially to conduct a mini trial here on what are very broad allegations under Paragraph 3A of the amended motion for a new trial. Now, I have permitted you to orally amend that to bring it under 331(c) which is newly discovered evidence. But now you’re telling me that this is really some amalgamation of newly discovered evidence and prosecutorial misconduct. ...

I am not having this mini trial. If you wish to have a hearing on this you’re going to have to comply with the rule which is to set out in detail the grounds upon which this proceeding is going to hearing. (Emphasis supplied). On December 19, the appellant filed his Second Amended Motion for New Trial, which formally raised the Brady issue ³⁶⁶ and came on for a hearing on January 21, 2003.

The key contention has now become an allegation of a Brady violation, raised in the context of a Motion for New Trial based on newly discovered evidence. Judge Allison filed a written Order, denying the Second Amended Motion for New Trial, on July 30, 2004. Accompanying the Order was an eight-page Memorandum, containing both her legal analysis and numerous findings of fact. Leon Wilkerson As a “Turncoat” Witness And a Consequential Hearsay Declarant The evidence that the appellant now claims to have been potentially helpful would have been evidence with which to attack the veracity of the key State’s witness, Leon Wilkerson.

Between 4:55 P.M. and 5:14 P.M. on November 14, 2001, in the office of Detective Sergeant John Barrick of the Baltimore City Police Department Homicide Unit, Leon Wilkerson gave a statement to Detective Joe Phelps, in the presence of Detective Tom Martin, about the Adams case. The statement was tape-recorded as it was given. The recording was subsequently transcribed by Myrna C. Milburn, of the Administrative Unit of the Criminal Investigation Division, on December 17, 2001. The transcript ran to ten pages.

In that tape-recorded statement, Wilkerson described the circumstances surrounding a fatal shooting that occurred on the evening of December 16, 1998, three years earlier. He unequivocally identified Adams, a known acquaintance of his, as the shooter. He further described how Adams, after the shooting, “ran down Alhambra” Avenue, “down through the alley,” and “to my baby’s mother’s house” at 5206 Craig Avenue. In his trial testimony on May 21, 2002, six months later, Wilkerson repudiated that identification of Adams as the shooter.

He testified that he could not identify the shooter because the shooter was wearing a mask. The State responded by invoking Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), and Maryland Rule 5-802.1(a), which on July 1, 1994 ³⁶⁷ essentially codified the holding of Nance . 1 Rule 5-802.1(a) provides, in pertinent part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement ivas ... (3) recorded in substantially verbatim fashion by ... electronic means contemporaneously with the making of the statement. (Emphasis supplied).

Judge Allison granted the State’s motion and the tape recording of Wilkerson’s November 14, 2001, statement to the police was played before the jury as substantive evidence. Leon Wilkerson’s critical change in position made him a classic exemplar of the “turncoat” witness. Such a change in position is a not uncommon trial phenomenon, analyzed at length in Nance, 331 Md. at 564-69 , 629 A.2d 633 , and illustrated by Makell v. State, 104 Md.App. 334, 338 , 656 A.2d 348 (1995): The Willy Ferguson who showed up at the trial, however, wa,s far different from the Willy Ferguson who had assisted first the police and then the grand jury in the course of their investigations. We may never know why. ³⁶⁸ (Emphasis supplied).

See also Charles McCormick, “The Turncoat Witness: Previous Statement as Substantive Evidence,” 25 Tex. L. Rev. 573 (1947). Why Leon Wilkerson changed his position between November 14 and May 21 is, of course, not controlling. It is the change itself that triggers the rule of Nance and of Rule 5-802.1(a).

In this regard, we further observed in Makell v. State, 104 Md.App. at 345, 656 A.2d 348 : Neither the Nance opinion specifically nor the mainstream of American law that Nance deliberately joined care one whit why the testimonial inconstancy comes about. It may be through fear or intimidation. It may be for love or affection. It may be for cold hard cash.

It may be because of loss of memory, partial or total, genuine or perjurious, as a result of drugs, alcohol, amnesia, senility, mental retardation, the mere passage of time, or for any other reason. It may be out of sheer perversity. It may be for no reason at all. It may be for reasons unknown.

The law’s only concern is with what happens in this regard, not with why it happens. (Emphasis in original). Although Rule 5-802.1’s provision that such a statement is “not excluded by the hearsay rule” does not expressly spell out whether the non-exclusion is based on the fact 1) that the statement is non-hearsay or 2) that the statement qualifies as an exception to the hearsay rule, the caselaw dispels any analytic ambiguity in that regard. In Nance itself, Judge McAuliffe made it clear that the earlier inconsistent statements of the “turncoat” witnesses were indisputably hearsay: The witnesses’ ... statement to police ... were hearsay.

That is, they were statements, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. 331 Md. at 559 , 629 A.2d 633 (emphasis supplied). Given, however, the satisfaction of the qualifying conditions, now spelled out by Rule 5-802.1(a), statements, such as the one by ³⁶⁹ Wilkerson in this case, are admitted as substantive evidence “as an exception to the rule against hearsay”: If there are separate circumstances providing the requisite indicia of trustworthiness concerning the truthfulness of the out-of-court statements, such statements may be admitted substantively as an exception to the rule against hearsay. 381 Md. at 560, 629 A.2d 633 (emphasis supplied). See also Stewart v. State, 342 Md. 230, 236-37 , 674 A.2d 944 (1996); Sheppard v. State, 102 Md.App. 571, 576 , 650 A.2d 1362 (1994) (“At retrial, the defense will be permitted to offer the 'prior inconsistent statements, as exceptions to the rule against hearsay, for their substantive content.”) (Emphasis supplied). In Lynn McLain, Maryland Evidence (2d ed. 2001), § 801(l):i, p. 67 n. 9, Professor McLain observes, with respect to the varieties of prior inconsistent statements dealt with by Rule 5-802.1(a): Under the Md. Rules, these statements are hearsay, but fall within exceptions to the hearsay rule.

(Emphasis supplied). As we now try to pinpoint the appellant’s precise Brady claim, it is important to note that Leon Wilkerson’s damaging inculpatory evidence against the appellant consisted not of Wilkerson’s trial testimony on May 21, 2002, but of Wilkerson’s hearsay declaration to Detective Phelps on November 14, 2001. The type of evidence that might have been helpful to the appellant and within the coverage of Brady, therefore, would have been not those things that might have impeached Wilkerson’s testimonial credibility on May 21, 2002, but only those things that might have discredited his hearsay declaration of November 14, 2001. The only sensible strategy would have been for the appellant to attempt to discredit Wilkerson the cooperative declarant, not Wilkerson the “turncoat” witness.

The appellant nonetheless has indiscriminately thrown everything up against the wall to see what may stick. Our first job, therefore, must be one of sorting what would have been a helpful line of attack from what would have been a counterpro ³⁷⁰ ductive boomerang. That commits us to an intimidating factual tangle. The Facts: A Tangled Web It is invariably a tell-tale sign of a troubled case that it depends on the testimony of too many witnesses describing too many things.

This, to a fare-thee-well, is such a case. It is hard to keep moving through the heavy underbrush of intertwined and tangled detail. Involved are three separate prosecutions. A. The Adams Case The appellant’s trial we will call the Adams case.

The prosecutor of the Adams case was Baltimore City Assistant State’s Attorney Frank Rangoussis. Mr. Rangoussis was not involved in any way in either of the other two prosecutions that will be discussed. The Adams case went to trial before Judge Allison in Baltimore City on May 20, 2002, and lasted for four trial days. Leon Wilkerson testified on May 21.

The guilty verdict was returned on May 23. B. The Wilkerson Case The appellant’s Brady claim is that the State suppressed evidence that might have enabled him either 1) to impeach Wilkerson’s testimonial credibility or 2) to discredit Wilkerson’s hearsay declaration by showing that Wilkerson had several narcotics charges pending against him and that he expected to curry favor with the State by testifying against the appellant or otherwise cooperating with the State. Wilkerson had been indicted by the Baltimore City Grand Jury on May 21, 2001, on two counts charging the possession of narcotics with the intent to distribute and on various other related counts. He posted bail on those charges and was released from custody.

Wilkerson was again indicted by the Baltimore City Grand Jury on October 16, 2001, on two additional charges of the possession of narcotics with the ³⁷¹ intent to distribute. He was held without bail on those charges. Wilkerson was also apparently facing charges for having violated probation that had been imposed on an earlier occasion. The prosecutor of all of the Wilkerson cases was Baltimore City Assistant State’s Attorney Melissa Copeland.

Wilkerson’s defense attorney was Daniel Marcus. Wilkerson was initially scheduled for trial in Baltimore City before Judge William D. Quarles on March 13, 2002. Ms. Copeland obtained a postponement of the trial, ultimately from the administrative judge, when she explained that Wilkerson was in protective custody in Harford County and had not been transported to Baltimore City for trial. Wilkerson’s cases ultimately came to trial before Judge Joseph P. McCurdy, Jr., on June 19, 2002.

Wilkerson entered guilty pleas, and Ms. Copeland agreed to a sentence of “time served,” which had amounted to one year. C. The Poole Case At approximately the time that the Adams and Wilkerson cases were pending, there was also floating around the Baltimore City State’s Attorney’s Office an unrelated case for the June 11, 2001 murder of Brian Johnson. In three separate trials, three defendants were ultimately convicted of that murder: Eric Poole, Carl Harrison, and Charles Hamm. 2 We will refer to these trials collectively as “the Poole ease.” The prosecutor initially assigned to the Poole case was Baltimore City Assistant State’s Attorney Lynn K. Stewart. When Ms. Stewart was sworn in as a judge of the Circuit Court for Baltimore City on January 22, 2002, Baltimore City Assistant State’s Attorney Cynthia Jones took over the prosecution of the Poole case.

In all three trials, Leon Wilkerson, who might well have been an accomplice, was a cooperative and effective ³⁷² witness for the State. He was not himself prosecuted for the murder or for any attendant crime. I. HELPFULNESS Helpful Impeaching Evidence Necessarily Implies That Successful Impeachment Would Have Been Helpful Of the three key Brady criteria, the most problematic in this case is the question of whether the evidence that was allegedly suppressed would, had it been known, have been helpful to the defense. The appellant is perplexingly vague about precisely what evidence in this regard he is talking about.

He is equally vague about precisely how that evidence, whatever it may have been, would have been helpful to him. Helpful to do what? To be sure, the appellant argues that evidence was suppressed that might have assisted him in challenging the veracity of Leon Wilkerson, the “turncoat” witness. Would such evidence, however, have been helpful to the appellant’s cause, or might it have been hurtful?

It all depends. But first a word about the helpfulness prong itself. In the archetypal case of Brady v. Maryland itself, exculpatory evidence that an accomplice had confessed to having been the triggerman in the murder for which Brady was convicted was unquestionably suppressed. Even if the full content of the suppressed confession had been before he jury, however, it would not in any way have diminished Brady’s guilt.

It well might have helped him, on the other hand, to avoid the death penalty. Accordingly, the Supreme Court affirmed the decision of the Maryland Court of Appeals in Brady v. State, 226 Md. 422 , 174 A.2d 167 (1961), to remand for resentencing because of the suppression, but to leave the guilty verdict itself undisturbed. 373 U.S. at 90 , 83 S.Ct. 1194 . As to it, the evidence would not have been helpful. United States v. Bagley, 473 U.S. at 675 , 105 S.Ct. 3375 , summarized Brady’s surgical distinction between 1) an issue ³⁷³ whereon the revelation of the suppressed evidence might have been helpful and 2) an issue whereon the suppression would not have made any difference: The evidence suppressed in Brady would have been admissible only on the issue of punishment and not on the issue of guilt, and therefore could have affected only Brady’s sentence and not his conviction.

Accordingly, the Court affirmed the lower court’s restriction of Brady’s new trial to the issue of punishment. (Emphasis supplied). Ll'J Bagley itself is a good illustration of the principle that the suppression of evidence will not per se constitute a Brady violation unless the revelation of the suppressed evidence would actually have helped the defendant. Bagley was tried for both narcotics violations and violations of the firearms law.

He was convicted of the narcotics charges but found not guilty on the firearms charges. The prosecution was found to have suppressed evidence that could have impeached the testimonial credibility of “the Government’s two principal witnesses at the trial.” Although the prosecution had initially represented that the two witnesses had been offered no inducements to testify, it was later revealed that each witness had signed a “Contract for Purchase of Information and Payment of Lump Sum Therefor” and that each witness ultimately received a payment of $300. It was noted by the trial judge, however, that “[almost all of the testimony of both witnesses was devoted to the firearms charges,” of which Bagley was acquitted. On those charges, he self-evidently needed no further help.

On the narcotics charges, by contrast, the testimony of the two witnesses “was relatively very brief’ and actually tended to be helpful to Bagley. Indeed, defense counsel “did not seek to discredit ■their testimony” about the narcotics. 473 U.S. at 673 , 105 S.Ct. 3375 . The district court had pointed out that as to the only charges that still mattered, the impeachment of the witnesses, therefore, would not have been helpful. ³⁷⁴ The answers of O’Connor and Mitchell to this line of cross-examination tended to be favorable to respondent. Thus, the claimed impeachment evidence would not have been helpful to respondent and would not have affected the outcome of the trial. 473 U.S. at 673 , 105 S.Ct. 3375 (emphasis supplied).

Judge Raker discussed this required component of a Brady violation in Ware v. State, 348 Md. at 40 , 702 A.2d 699 , “[T]he defendant must ... prove that the evidence is favorable to the accused.” Judge Harrell similarly observed in Conyers v. State, 367 Md. at 606 , 790 A.2d 15 , “To succeed on a Brady claim, Petitioner also must establish that the suppressed evidence was favorable to his defense.” An Illusive and Chameleon-like Contention We turn to the question of whether the allegedly suppressed evidence in this case could have been helpful to the defense. Our initial problem is that it is impossible to decide whether the evidence the appellant cites, even assuming it arguendo to have been suppressed, would have been helpful to him until we know precisely what he was hoping to do with it. We know, to be sure, that he wanted to attack the veracity of Leon Wilkerson as a source of inculpatory information. We know that that attack consisted of an attempt to show that Leon Wilkerson had some basis for believing that it would be to his advantage to help the State convict the appellant, thereby showing a bias on his part.

But which veracity on which occasion was to be attacked? What the appellant still fails to make clear is whether he wanted A. TO IMPEACH THE TESTIMONIAL CREDIBILITY OF LEON WILKERSON ON MAY 21, 2002; or B. TO DISCREDIT THE HEARSAY DECLARATION OF LEON WILKERSON ON NOVEMBER 14, 2001. The appellant cannot have both. On the key question of who fired the fatal shots, Wilkerson’s two utterances are diametrically opposed.

The respective veracities are in an inverse proportion to each other. The greater the veracity of ³⁷⁵ the May 21, 2002, testimony, the less veracious the hearsay declaration of November 14, 2001. The less the veracity of the May 21, 2002, testimony, the more veracious the hearsay declaration of November 14, 2001. The same attack will not be efficacious as to both targets, but the appellant adamantly refuses to pick his target.

We are left with no alternative but to pose each target, in turn, as the predicate for this appeal and then to analyze, as to each, whether a successful attack on Leon Wilkerson’s particular veracity on that particular occasion would have been helpful to the defense. A. Impeaching Wilkerson as a Trial Witness A successful impeachment of the testimonial credibility of Leon Wilkerson on May 21, 2002, would not, we hold, have been helpful to the defense. Wilkerson was the only eyewitness to the murder. His sworn testimony that he saw the shooting but could not identify the appellant as the shooter was of critical importance to the defense case.

With the jury’s only realistic choice being between accepting 1) Wilkerson’s trial testimony of May 21, 2002, that he could not identify the shooter; and 2) Wilkerson’s hearsay declaration of November 14, 2001, that the appellant was the shooter, the defense needed the jury to go with his trial testimony. Al. It Was the State, Not the Defense, That Needed to Impeach Wilkerson’s Trial Testimony It was the State, not the defense, that desperately sought to impeach Wilkerson’s trial testimony. It ultimately did so, to the appellant’s strategic detriment, by introducing Wilkerson’s prior inconsistent statement, given to the police in November of 2001.

It clearly would not have been helpful to the defense to have impeached more effectively Leon Wilkerson’s testimonial credibility on May 21, 2002. For testimonial impeachment purposes, the evidence does not pass the “helpful” test. Both the value 1) of Leon Wilkerson’s trial testimony for, not against, the defense; and 2) of Leon Wilkerson’s motive ³⁷⁶ for testifying as he did were vividly made clear by two letters that he wrote to the appellant, both of which had been turned over to the State by the defense and were introduced into evidence by the State. In the first letter, Wilkerson wrote to the appellant: You or nobody else ever have to worry about me taking the stand and telling.

I will never go against the code and that’s everything I love. Trust me and take my word on it. They don’t have anything on you .... You will never have to worry about me testifying.

That’s against my code. You don’t have nothing to worry about. (Emphasis supplied). The second letter from Leon Wilkerson to the appellant stated, in pertinent part: This is the bad news.

They is making me take the stand. The good news is they question me again about the bullshit and this is what I said .... I saw a person walking down from Ivanhoe with a gun, snowsuit, mask, and dreads. They ask me did I see any faces.

I told them no and I wasn’t sure who it was. Then I told them it could’ve been anybody around there because its about 5 people with dreads .... After the shooting you was there in the room with Tia with your boxer shorts and T-shirt on. Feel me.

It was no way you could’ve done all this in that short time. (Emphasis supplied). Wilkerson closed his letter to the appellant with the reassurance: Don’t worry, my nigga. I was never going to take the stand on you in the first place.

I’m going to make it my business that you see the streets. (Emphasis supplied). That would hardly be a testimonial performance that the State would applaud and consequently reward. That would hardly be a testimonial performance, moreover, that Wilkerson would even believe the State would reward.

The appellant still does not identify precisely what it is that he claims Wilkerson actually did because he had been induced to do it. ³⁷⁷ It was the Assistant State’s Attorney who introduced both of these letters, as State’s Exhibits Four and Five, as part of the State’s successful impeachment of Leon Wilkerson’s trial testimony. As a result, the State was permitted to introduce his earlier tape-recorded statement to the police as substantive evidence. The successful utilization of Nance v. State, supra, and Maryland Rule 5~802.1(a) is not only testimonial impeachment, it is testimonial impeachment plus. You not only negate hurtful evidence; you get to substitute for it helpful evidence.

This was a testimonial impeachment that was self-evidently helpful to the State. The appellant would have been better off if that impeachment had never taken place and the tape recording of Wilkerson’s November 14, 2001 statement to the police had never come into evidence. How the appellant could have been helped by any further impeachment of Leon Wilkerson as a trial witness is inconceivable. A2.

An Inducement Must Actually Induce Something If, hypothetically, a prosecutor somewhere were to offer a critical witness the most irresistible inducement to testify for the State that the mind of man could imagine, but the witness, heroically, resisted such temptation, there might be a potential Brady violation in the mind, or in the heart, of the prosecutor, but there would be no Brady violation within the contemplation of the United States Constitution. The most beguiling of seductions is beyond the pale of Brady, if it fails to seduce. The siren song of an enchantress is beyond the pale of Brady, if it fails to enchant. The wiles of Svengali are beyond the pale of Brady, if they fall on resolutely chaste ears.

The entire theory of impeaching credibility by showing a testimonial bias or interest is based upon the notion of a quid pro quo. It is not enough that the inducement be offered (or believed to have been offered); an inducement must be acted upon for it to have affected the testimony and, therefore, the verdict. The quid is that the witness will cooperate with the ³⁷⁸ State by testifying in a way that will help the State. The quo is that the State will then reward that helpful performance with some favorable treatment, such as a money payment, immunity, a lesser sentence, etc. There is in this case axiomatic proof that Leon Wilkerson did not testify pursuant to any deal, real or imagined, with the State.

The deal would have been one of leniency for Wilkerson at his subsequent narcotics trial in exchange for his testimony against the appellant. If that were the contract, the overarching reality is that Wilkerson never performed what would have been his part of the bargain. His testimony identifying the appellant as the shooter was expected to have been a critical part of the State’s case. Wilkerson, to the State’s dismay, repudiated his earlier statement to the police and testified that he was unable to make the identification.

But for Nance v. State and Rule 5-802.1(a), his “turncoat” performance could have been fatal to the State’s case. It is absurd to suggest that the State later rewarded him for such a miserable failure to perform. In his argument to Judge Allison at the January 21, 2003, hearing, Mr. Rangoussis, the prosecutor of this Adams case, forcefully stated why he would never have rewarded Leon Wilkerson for testifying as he did. Let me just say very clearly.

I’m the prosecutor. I don’t want my witnesses — I don’t want to be impeaching my own witnesses with their prior statements. I would rather have my witnesses testify consistently. [I]f I was involved in Wilkerson’s case in any fashion, I would have told the prosecutor, “No, he didn’t cooperate.” I would have told Copeland, “No, he did not cooperate. He recanted and as far as I’m concerned, he didn’t tell the truth.” Now, I didn’t do that.

I had no contact with her because I didn’t care what she did on those drug charges. No prosecutor in [his] right mind is going to offer a time served binding plea on a recanting witness. (Emphasis supplied). If Wilkerson, moreover, only thought that he had an understanding with the State, it is inconceivable that he would so ³⁷⁹ recklessly, and to his own certain detriment, have breached it.

Without the quid, there is no quo. There is an Alice in Wonderland quality to this entire line of argument. Even assuming an inducement, arguendo, to have existed, it did not induce Leon Wilkerson to testify for the State. To suggest that any later leniency shown toward Leon Wilkerson was his reward for having been a “turncoat” witness is absurd.

At this point in our analysis, therefore, all evidence and all arguments offered to show that Leon Wilkerson was somehow induced to testify as a witness for the State on May 21, 2002, become immaterial. Our only remaining concern will be with that evidence and those arguments offered to show that Leon Wilkerson was somehow induced to make a statement to the police on November 14, 2001. Except to the limited extent to which an earlier cause may be inferred from a later effect, most of the events that occurred between November 14, 2001 and May 21, 2002 are self-evidently immaterial as effective catalysts for Leon Wilkerson’s behavior on November 14, 2001. Subsequent events cannot rewrite or affect the past.

B. Discrediting Wilkerson As a Hearsay Declarant Although the appellant talks the talk of suppressed evidence, had it been known, that would have helped him to impeach the testimonial credibility of Leon Wilkerson, in the last analysis he does not walk the walk. In both brief and oral argument, his thesis is suffused with the Brady law language of impeaching testimonial credibility by evidence that, had it not been suppressed, would have shown a special interest on the part of Wilkerson to testify in favor of the State. What emerges from a closer analysis, however, is that the appellant had neither reason nor desire to impeach the trial testimony of Leon Wilkerson. The thing that hurt the appellant at trial was the hearsay declaration of Leon Wilkerson, the tape-recorded statement that he gave to the police on November 14, 2001.

Albeit using Brady law language of impeaching the testimonial credibility of a witness, what the ³⁸⁰ appellant is really trying to do, without saying so in so many words, is to discredit a hearsay declaration. Once we adjust our focus to this analytically distinct and much narrower issue, possibly one of first impression for Brady law, at least one and possibly two flaws appear in the appellant’s argument. The possible flaw is a matter of law. The certain flaw is a matter of fact.

Bl. We Will Not Expand the Coverage of Brady We look first at the possible legal flaw in the appellant’s argument. As the body of constitutional suppression law developed, the early cases of Brady v. Maryland and United States v. Agurs dealt with the suppression of evidence that was directly exculpatory on the merits of guilt or innocence. In Brady, the suppressed confession of a co-defendant would have pointed the finger at someone other than Brady as the shooter.

In Agurs , the suppressed criminal record of the murder victim would have showed a propensity for violence that could have had a very material bearing on Agurs’s claim of self-defense. It was in United States v. Bagley (1985) that the Supreme Court for the first time expanded the coverage of Brady to include “evidence that the defense might have used to impeach the Government’s witnesses by showing bias or interest.” 473 U.S. at 676 , 105 S.Ct. 3375 . Albeit expanding the coverage, the Bagley opinion noted the categorical distinction between “exculpatory evidence” and “impeachment evidence.” Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. 473 U.S. at 676 , 105 S.Ct. 3375 . Exculpatory evidence is the sort of thing that may be offered by the defense as substantive evidence on the ultimate merits.

Impeachment evidence, by contrast, is a more peripheral thing. It may assist the defense in its cross-examination of an adverse witness. It is not, however, exculpatory per se. ³⁸¹ It is not even relevant until the witness testifies, whereas exculpatory evidence is always relevant. Thus far in the development of Brady law, the coverage has been expanded from the core utility of exculpatory evidence to the more peripheral or collateral utility of impeachment evidence only in the case of evidence that could be used to impeach the testimonial credibility of an actual trial witness.

The appellant’s use of Brady to discredit a hearsay declaration would represent a significant expansion of Brady coverage. In the years since United States v. Bagley, a massive body of caselaw has developed, state and federal, dealing with the alleged suppression of impeachment evidence. Indeed, more Brady law has dealt with impeachment evidence than with directly exculpatory evidence. Every such case, however, has dealt not with the collateral discrediting of the source of inculpatory evidence generally, but only with impeaching the testimony of a witness, narrowly and specifically.

See Kyles v. Whitley, 514 U.S. at 433 , 115 S.Ct. 1555 (“[T]he Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes.”) (emphasis supplied); Strickler v. Greene, 527 U.S. at 280 , 119 S.Ct. 1936 (“[T]he duty to disclose ... encompasses impeachment evidence as well as exculpatory evidence.”) (emphasis supplied). And see Ware v. State, 348 Md. at 41 , 702 A.2d 699 (“Favorable evidence includes not only evidence that is directly exculpatory, but also evidence that can be used to impeach witnesses against the accused”)(emphasis supplied); Wilson v. State, 363 Md. at 346 , 768 A.2d 675 (“The failure to disclose evidence relating to any understanding or agreement with a key witness ... violates due process because such evidence is relevant to [the] witness’s credibility.”) (emphasis supplied); Conyers v. State, 367 Md. at 585 , 790 A.2d 15 (“Did the post conviction court err in finding that the State did not deny Petitioner due process ... by withholding certain material, impeachment evidence pertaining to the testimony of its key witness.”) (emphasis supplied); Williams v. State, 152 Md. App. at 219, 881 A.2d 501 (“[W]here the reliability of a State’s witness is determinative of the defendant’s guilt or innocence, ³⁸² the State’s failure to disclose impeachment evidence also falls within the Brady rule.”) (emphasis supplied). Permeating every statement of the expanded Brady disclosure obligation has been the drumbeat repetition of the words “impeach,” “witness,” and “testimony.” “Impeach” is a term of art with specific reference to attacking the testimonial credibility of a witness on the stand being subjected to cross-examination. When one attacks the weight or believability of a hearsay statement, by contrast, one speaks of discrediting it, not of impeaching it.

The thing being discredited, moreover, is not testimony. The declarant being discredited is not a witness. If the appellant is, indeed, asking us to hold that the Brady suppression prohibition covers a subjective expectation of leniency in the mind of a hearsay declarant giving a statement to the police, the appellant would be asking us to undertake a massive expansion of Brady’s coverage. The Supreme Court has been developing Brady law for forty-two years and has not ventured into such uncharted territory.

It would be an expansion that might plausibly be argued, but it is by no means a logical next step that is necessarily implied. The unforeseen implications of expanded Brady coverage, moreover, could be far-flung. A progressive accretion of Brady coverage, taken to the limits of its logic, could lead to an “Open File” policy, an end which the Supreme Court has regularly rejected as a consummation devoutly to be avoided. See United States v. Bagley, 473 U.S. at 675 n. 7, 105 S.Ct. 3375 (“[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments.”).

The appellant, moreover, does not discuss, or even mention, an expansion of Brady coverage beyond the familiar bounds of impeaching a witness’s testimonial credibility. He cites neither caselaw nor academic authority in support of such expanded coverage. He seems to operate on the uncritical ³⁸³ assumption that there is no difference between the two phenomena. It is a doctrinal development he would apparently have us forge, nostra sponte, to the extent to which he is aware that it would even be a doctrinal development.

It is, however, a will-o’-the-wisp we will not chase. We are dealing with federal constitutional law. If the coverage of Brady is to be significantly expanded, it is for the Supreme Court to do so. It is prudent for us to await developments from Washington and not to take it upon ourselves to expand the contours of the Due Process Clause of the Fourteenth Amendment.

Although it would be tempting for us to announce, as an alternative holding, that evidence that might be used to discredit a hearsay declarant does not qualify as “evidence helpful to the accused” within the contemplation and coverage of Brady, it is unnecessary for us in this case to go so far. Quite aside from whether the appellant’s argument about discrediting the hearsay is flawed as a matter of law, it is definitely flawed as a matter of fact. The resolution of the question of expanded Brady coverage beyond testimonial impeachment evidence, therefore, must await another day. Our observation that Brady coverage per se has not been expanded to evidence useful for the discrediting of a hearsay declarant may be only of academic significance and not of practical significance.

The credibility of a hearsay declarant most definitely may be attacked as a matter of evidentiary law, even if the disclosure of the discrediting evidence has not yet been deemed compellable as a matter of constitutional law. Maryland Rule 5-806 provides, in pertinent part: (a) In general. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a mtness. (Emphasis supplied).

See also Federal Rule of Evidence 806; McLain, Maryland Evidence (2d ed. 2001), § 806:1. And see ³⁸⁴ Watkins v. United States, 846 A.2d 293, 299 (D.C.App.2004); United States v. Williams-Davis, 90 F.3d 490 (D.C.Cir.1996). Under Rule 5-806, the appellant would have been permitted to attack the credibility of Leon Wilkerson as a hearsay declarant on November 14, 2001. He did not, however, do so.

B2. Inducement, As a Matter of Fact As we now prepare to venture into a treacherous factual morass, we have the benefit of one narrowing of focus but still are in need of a second fine-tuning. The appellant’s central thesis is that Leon Wilkerson possessed an interest or motive for cooperating with the State. The appellant characterizes this interest or motive as an inducement.

He claims that, had the State not suppressed evidence of that inducement, he might have been able to persuade the jury to cast a more jaundiced eye on the information coming from Leo.n Wilkerson. We have already clarified or narrowed the appellant’s contention in one respect. The appellant’s effort to discredit the veracity of Leon Wilkerson is necessarily confined to discrediting the veracity of the hearsay declaration Wilkerson gave to the police on November 14, 2001. Nothing with respect to Wilkerson’s trial testimony on May 21, 2002 any longer concerns us.

The issue is no longer one of possibly false testimony, but only one of a possibly false out-of-court assertion six months earlier. Even after narrowing the pertinent “effect” at one end of the cause-and-effect sequence, however, there remains the equally troubling problem of narrowing the pertinent “cause” at the other end. The appellant, perplexingly, never tells us precisely what it was that allegedly induced Leon Wilkerson to do whatever it was that the appellant is unhappy about Leon Wilkerson’s having done. At the hearing on the new trial motion, the appellant argued, forcefully, that the State actually had a deal or understanding, formal or informal, with Leon Wilkerson.

On ³⁸⁵ the present appeal, by contrast, he argues only in terms of Leon Wilkerson’s having had a subjective expectation of leniency. In this last regard, however, he never makes it clear whether he thinks 1) a merely spontaneous or self-induced expectation of leniency, uninfluenced by any governmental behavior, would be cognizable under Brady; or 2) a subjective expectation inferred from ambiguous governmental behavior would be constitutionally cognizable. As to the nature of the alleged inducement for Leon Wilkerson to have talked to the police, we are confronted with three different and shifting sub-contentions: 1) an actual agreement, formal or informal, with the State; 2) a totally self-induced subjective expectation of leniency; or 3) a subjective expectation of leniency influenced by ambiguous behavior on the part of the State. We have no choice but to deal with each of these possibilities seriatim.

Our examination of whether Leon Wilkerson possessed a Ara<%-cognizable inducement, in any of these three manifestations, to make a statement to the police on November 14, 2001, is extremely fact-specific. It behooves us at this point, therefore, to set out our standard of fact-finding review. The Standard of Fact-Finding Review Stating the controlling standard of review is not a mere ritualistic incantation. The standards of appellate review are first principles of the appellate craft.

They are not something that can be invoked when convenient, but also ignored when convenient. They serve not simply as a rationale of decisions; they are determinative of decisions. As we review the fact-finding of Judge Allison in this case, it is not our job, as a matter of fact, to be persuaded. It is only our job to be satisfied, as a matter of law, that there was competent, to wit, admissible, evidence from which the nisi prius fact finder, with the unfettered prerogative to assess credibility and to weigh the evidence, could have been persuaded. ³⁸⁶ For purposes of this appeal, our factual universe consists only of the evidence offered at that January 21, 2008 hearing and, further tightening the focus, those factual findings actually made by Judge Allison that were not clearly erroneous.

It was in this regard that we observed in Morris v. State, 153 Md.App. 480, 489 , 837 A.2d 248 (2003): The most basic rule of appellate review of fact-finding is that of extending great deference to the fact finder, be it judge or jury. Appellate judges do not see or hear the witnesses or have the benefit of any sort of non-verbal communication. They are relatively far less able to assess credibility than are the faet finders on the scene. Appellate judges, moreover, are not immersed in the local context and do not get the sometimes inexpressable “feel” of the case.

They are relatively far less able to weigh the evidence than are the fact finders on the scene. The basic rule of fact-finding review, therefore, is that the appellate court will defer to the fact-findings of trial judge or jury whenever there is some competent evidence which, if believed and given maximum weight, could support such findings of fact. That is the prime directive. (Emphasis supplied).

As Judge Harrell pointed out for the Court of Appeals in Conyers v. State, 367 Md. 571, 600 , 790 A.2d 15 (2002), in reviewing the findings of a post conviction court judge with respect to a possible Brady violation: It is well settled that this Court will not disturb the factual findings of the post conviction court unless they are clearly erroneous. Judge Raker reaffirmed that appellate deference to the fact-finding of the trial judge on a Brady violation in Wilson v. State, 363 Md. at 348 , 768 A.2d 675 . Judge Bloom similarly observed for this Court in Williams v. State, 152 Md.App. at 219, 831 A.2d 501 : At the outset, we reiterate that, in reviewing the denial of a Brady claim, we are required to accept the factual find ³⁸⁷ ings of the post conviction court unless they are clearly erroneous. (Emphasis supplied).

See also In re Tariq A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997); McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); and see Oken v. State, 343 Md. 256, 299 , 681 A.2d 30 (1996); Gilliam v. State, 331 Md. 651, 672 , 629 A.2d 685 (1993). To the extent to which, however, Judge Allison may have failed to make a precise finding on some particular sub-issue, if that should be the case, we will then assume that version of the evidence most favorable to the prevailing party, in this case the State. It is in this regard that we turn to the supplemental rule of appellate review, as explained by Morris v. State, 153 Md.App. at 489-90 , 837 A.2d 248 : How then does the appellate court ... fill those fact-finding gaps, partial,or total? What does the appellate court do when there is no fact-finding, or incomplete fact-finding, to which to defer?

It is here that the supplemental rule of interpretation comes into play. In determining whether the evidence was sufficient, as a matter of law, to support the ruling, the appellate court will accept that version of the evidence most favorable to the prevailing party. It will fully credit the prevailing party’s witnesses and discredit the losing party’s witnesses. It will give maximum weight to the prevailing party’s evidence and little or no weight to the losing party’s evidence.

It will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party. It will perform the familiar function of deciding whether, as a matter of law, a -prima facie case was established that could have supported the ruling. (Emphasis supplied). For purposes of this review, other facts and other versions of the evidence simply do not exist.

Out of a welter of evidence developed in the course of the trial, some of that evidence still counts. Some, however, no longer counts at all, ³⁸⁸ simply does not exist for present purposes, and has no business being referred to, unless the appellant is asking us to substitute our judgment for that of the trial judge. ■ The universe of factual possibilities still available to properly disciplined appellate review is thus only a selective fraction of what was earlier available to the trial judge. Once facts have been found and a ruling has been made, what remains as grist for the appellate mill is no longer the entire trial record, but only a carefully excised slice of that record. We are enjoined to affirm the presumptively correct decision of the trial court whenever it is legally possible to do so.

B2a. An Actual Deal, Formal or Informal In his Second Amended Motion for New Trial of December 19, 2002, and at the hearing on the motion of January 21, 2003, it was clear that the appellant was arguing that the inducement consisted of an actual “deal” between Leon Wilkerson and the State. The appellant acknowledged that the proof of the deal was inferential rather than direct, deducing the cause from the effect. Unequivocally, however, the appellant argued that there was, in fact, a deal.

In the Second Amended Motion for New Trial, the appellant expressly made the following allegations: To any experienced observer of the criminal justice system, the sentences Mr. Wilkerson received for his violation of probation and third and fourth felony narcotics convictions were extraordinary given the facts of his cases, his probationary status at the time of the offenses and his criminal record.... The sentence becomes understandable, however, when one realizes that this individual provided testimony for the State in a murder trial. ... In examining the results of this investigation it becomes clear that Mr. Wilkerson had an understanding with the State that in exchange for his cooperation in this case and other cases, he would be granted leniency in his own cases. ³⁸⁹ ... Ms. Stewart told Mr. Marcus that if Mr. Wilkerson testified consistent with his taped statements, things would work out for him.

Mr. Marcus understood this to mean that.Mr. Wilkerson would be afforded, leniency in his pending cases if he continued his cooperation by testifying. He later expressed this understanding to Mr. Wilkerson. The transcript of this proceeding clearly shows that the prosecutor in the case at hand had contact with the Assistant State’s Attorney prosecuting Mr. Wilkerson about his pending cases. It also 'reflects the belief by Ms. Copeland that Mr. Rangoussis intended that Mr. Wilkerson would be given, some type of consideration in exchange for his cooperation. ...

Ms. Copeland demonstrated that Mr. Wilkerson had an understanding with the State for future leniency in exchange for his cooperation. The events of June 19, 2002, show that Mr. Wilkerson was directly rewarded for his testimony in the Adams case. Furthermore, this reward was expected and, not a gratuitous gesture done after the fact. ... ¡T]he State conveyed to Mr. Wilkerson the idea that his testimony in the Adams case was a necessary part of Ids ability to escape future punishment for his o'wn pending cases. (Emphasis supplied).

The appellant, to be sure, did not argue that he had a formal contract with the State for his cooperation, with all of the details expressly spelled out. His argument at the January 21, 2003, hearing was nonetheless that there was most definitely an agreement with the State, and that the evidence made the inference of such an agreement compelling. At the conclusion of the hearing, his counsel argued forcefully: Mr. Wilkerson gets exactly what Mr. Marcus told him he was getting all along. Mr. Marcus told Mr. Wilkerson, “Things are going to work out for you.

I don’t know exactly what it’s going to be. You’ll be fine. You just need to testify.” Well, he testified and, essentially, they gave him the keys to the jail. ³⁹⁰ There is absolutely no other way to interpret what happened before Judge McCurdy as other than a reward for his testimony in the Adams case. ... [D]espite Ms. Copeland’s testimony, her comments both in March and in June show quite well that she understood that this benefit was being conferred on Mr. Wilkerson because of his testimony in the case. ■ (Emphasis supplied). There is no ambiguity as to the thrust of that argument.

The appellant was not then suggesting that there was a mere subjective expectation of leniency in Leon Wilkerson’s mind, albeit arguably one influenced by the behavior of the State. He was arguing that there was an actual bilateral agreement or understanding, formal or informal, between Wilkerson and the State, and no mere unilateral hope or wish-fulfillment fantasy on his part. In her Opinion and Order, Judge Allison posed the Brady issue as it had been presented to her by the appellant. The defendant’s first ground for relief is premised on the factual assertion that the State failed to disclose to the defendant, after request, the State’s promise of leniency to Leon Wilkerson, a State’s witness.

(Emphasis supplied). If Judge Allison’s ruling and fact-finding was ultimately limited to that issue, that is both understandable and proper, for that was the only issue being urged upon her for decision. Unfortunately, the entire presentation before Judge Allison on January 21, 2003, both by the appellant and by the State, failed to make any meaningful distinction between a deal or understanding, formal or informal, intended to induce 1) Leon Wilkerson’s trial testimony of May 21, 2002, and 2) Leon Wilkerson’s hearsay declaration of November 14, 2001. Because, however, the contention, even in that undifferentiated posture, lacks substantiality, we shall look at it initially even as the parties did.

We can confidently conclude that there was no quid, even without being able to identify precisely what the quo was supposed to be. ³⁹¹ (1) Defense Attorney Daniel Marcus In its effort to prove some sort of deal or understanding between the State and Leon Wilkerson, the defense called four witnesses. The first was Daniel Marcus, the semi-retired lawyer who was appointed on November 16, 2001, to represent Wilkerson on his narcotics related charges. Marcus had a clear memory of almost nothing. His main concern, as he initially considered whether to accept the appointment, was that he “didn’t want to take any really complicated cases.” At first, Marcus thought that he had had a conversation with Assistant States Attorney (now Judge) Lynn Stewart, the prosecutor of the three Poole murder cases, and that he heard from her that “things would work out for” Wilkerson if he gave helpful testimony for the State in those cases.

On cross-examination, however, he acknowledged that he probably received that assurance, whatever it meant, from the representatives of the Public Defender’s Office who were urging him to accept the appointment. Q. [Wjhen you and I just talked a little while ago outside and I had asked you some questions about your conversation with Judge Stewart and how you came under the impression that “things would work out” for [Wilkerson], do you remember telling me that you got that impression actually through the Public Defender’s Office-— A. Yes. Q. —either through Ms. Shepherd or through Ms. McGough; is that correct? A. Yes.

Right. Q. And you also remember telling me that you weren’t exactly sure whether or not Judge Stewart had actually said that to you. Do you remember that? A. That’s correct, yes.

I really can’t be sure. I think — they told me when I took the case, because when they told me he was involved in testimony and there were some murder trials that allegedly ³⁹² he was involved with, I was a little bit reluctant or hesitant to take it and I think either Ms. Shepherd or Ms. McGough said, “Dan, don’t worry about it.” Q. “Don’t worry about it. Things will work out”? A. Yes.

Q. Okay. All right. But you don’t know where they got that impression from? A. No. (Emphasis supplied).

Judge Stewart was later called by the State and testified that she 1) had never met with Wilkerson, 2) was unaware that Wilkerson was a witness in the Adams case, and 3) was not even aware that there was an Adams case. She testified, moreover, that she had never spoken to Melissa Copeland, the prosecutor of Wilkerson’s narcotics cases, about that or any other case. When asked if she remembered making any offers to Wilkerson, either directly or through his attorney, David Marcus, Judge Stewart testified, “Not only do I not remember, I did not make any offers of leniency to anyone in reference to the Poole, Harrison, and Hamm case.” She further swore that she could not “recall any homicide case I’ve ever handled where I offered any witness anything to testify in the case.” She explained that reluctance: Because I don’t. I have not.

I don’t offer witnesses anything to testify. They either do, or they don’t. Plus, you never know what they’re going to say when they do testify. So, I don’t.

The case is what it is. If the jury believes them, they do. If they don’t, they don’t. (Emphasis supplied).

With respect to the inconclusive testimony of Daniel Marcus, Judge Allison found as a matter of fact: 4. Mr. Marcus was contacted by Jane McGough of the Office of the Public Defender in regard to the representation. 5. Mr. Marcus indicated to Ms. McGough that he did not take complicated cases. ³⁹³ 9. Mr. Marcus’ memory of the events involving Leon Wilkerson was scant at the time, of the hearing on the Second Motion for New Trial and Mr. Marcus took no notes of the conversation in which State’s Attorney Stewart or Public Defender McGough or Public Defender Sheppard made a statement to the effect that “things would work out for Leon Wilkerson.” 10.

Mr. Marcus made no inquiry of State’s Attorney Stewart or State’s Attorney Rangoussis as to the meaning of the statement. 11. A statement by Ms. McGough of the Public Defender’s Office that “things would work out for Leon Wilkerson” would be fully consistent with Mr. Marcus’ decision to accept representation of Leon Wilkerson given Mr. Marcus’ interest in accepting only cases that were not complicated and that he would not have to take to trial. 12. Mr. Marcus did not advise Leon Wilkerson of this possible conversation in which someone said words to the effect that “things would, work out” for Leon Wilkerson, because Mr. Marcus did not know the meaning of the statement. 14. At some point in time, Mr. Marcus formed an impression that if Leon Wilkerson testified truthfully for the State that things would work out for him.

When asked how he formed this impression, Mr. Marcus testified “I can’t be sure,” bid he knoivs the Public Defender’s Office led him to foum that impression from the very beginning because he had indicated to them that he would not get involved in a complicated matter. (Emphasis supplied). Those findings of fact were not clearly erroneous and must, therefore, be accepted by us as the established truth of what happened in this case. (2) Assistant Public Defender Jane McGough The second witness called by the defense was Jane McGough of the Public Defender’s Office.

When she first ³⁹⁴ received Leon Wilkerson’s criminal file, she realized that she would have to “panel” it out, because Wilkerson was also listed as a possible witness in the Poole murder cases, cases wherein the defendants were being represented by the Public Defender’s Office. Ms. McGough spoke with Lynn Stewart, the prosecutor of the Poole cases, who simply said with respect to the appointment of a “panel” attorney, “Give me someone I can work with.” Ms. McGough concluded her testimony. Q. What, if any, knowledge did you have about any plea agreements or understandings or anything at that time? A. I had none.

There was no offer, I don’t believe, to Mr. Wilkerson at arraignments, if I remember correctly. Q. Did you ever have any other conversations with Lynn Stewart after you paneled the case to Mr. Marcus? A. Not regarding that case. (Emphasis supplied).

When Judge Stewart was called as a witness by the State, she testified unequivocally: I did not make any offers of leniency to anyone in reference to the Poole, Harrison, and Hamm case. (Emphasis supplied). She testified with respect to Leon Wilkerson specifically: [D]id you ever meet with Mr. Wilkerson? A. No. Q. So, if I understand correctly, you never met with him before you left to go on the bench?

A. No. Q. To his day, have you ever met him? A. No. Q. ... did you know that Mr. Wilkerson was also testifying in another murder case? A. No. Q. Does the name Peter Adams sound familiar to you as any case that you know of that Mr. Wilkerson was involved in? ³⁹⁵ A. Peter Adams — when I received a summons to appear in court today, the case was State v. Peter Adams and I had no idea what it was and, no, I don’t know anything about a Peter Adams. Q. Back in December of 2001, did you know anything about a Peter Adams case?

A. No. Q. Did you know that Leon Wilkerson was a witness in the Peter Adams case? A. No. (Emphasis supplied). Judge Stewart also clarified her meaning about preferring as an attorney, “someone you can work with.” Q. Do you recall telling her that you wanted Mr. Wilkerson to be represented by someone you could work with? A. I probably did.

I probably would have said that. Q. What does that mean when you need someone you can work with? A. Quite frankly, I didn’t want someone who was a blockhead, who wouldn’t be reasonable about anything in case I needed to talk to them, or if they wanted to talk to me, it wouldn’t be someone who would require a lot of extra, unnecessary stuff. You don’t want me to name names, do you?

Q. No. A. Okay. Q. You didn’t want someone who would give you a hard time? A. I didn’t want anyone who would involve themselves in my case unnecessarily when it was none of their business. (Emphasis supplied).

With respect to Judge Stewart generally and her conversation with Ms. McGough specifically, Judge Allison found as facts: ³⁹⁶ 13. In discussing Leon Wilkerson with Public Defender McGough, State’s Attorney Stewart said that she would make no deals with him. 55. State’s Attorney Lynn Stewart prosecuted the Van Pool case, which was the other case in which Leon Wilkerson testified for the State. 56. State’s Attorney Lynn StewaH made no offer to Leon Wilkerson in exchange for his testimony and did not promise him leniency in exchange for that testimony. 57.

State’s Attorney Lynn Stewart was not aware that Leon Wilkerson was testifying in the Peter Adams case. 58. State’s Attorney Lynn Stewart had no conversation mth State’s Attorney Copeland regarding Leon Wilkerson’s cooperation with the State. (Emphasis supplied). Those findings of fact were not clearly erroneous and must, therefore, be accepted as the established truth of what happened in this case.

(3) Detective Joe Phelps The defense called as its third witness Detective Joe Phelps, who had taken the statement from Leon Wilkerson on November 14, 2001. His direct examination produced nothing for the defense. Q. You knew Mr. Wilkerson was incarcerated. Did Mr. Wilkerson tell you why he was offering information in this case?

A. No. Q. Did you ask him why he was offering information in this case? A. Not that I recall. Q. Do you recall Mr. Wilkerson asking you for assistance in his pending felony drug cases? A. No. ³⁹⁷ Q. Do you ever speak to the State’s Attorney’s Office regarding individual defendants?

A. I never have. Q. Did you ever tell Mr. Wilkerson that you would speak to the State’s Attorney with regard to his pending cases? A. No, sir. (Emphasis supplied).

The cross-examination by the State produced total consistency: Q. I only have one question. I just want to make sure. At any time, did you ever offer Mr. Wilkerson anything in exchange for his testimony? A. No. (Emphasis supplied).

With respect to Detective Phelps and other members of the police department, Judge Allison made specific findings of fact:' 50. Detective Joe Phelps was the lead detective assigned to the Adams case. 51. Prior to charges being brought against Mr. Adams, Detective Phelps interviewed Leon Wilkerson concerning his knowledge of Mr. Adams’ involvement in the shooting. 52. No police officer, including Detective Phelps, offered Leon Wilkerson any leniency, or promised Leon Wilkerson anything in exchange for his testimony in the Adams case. 53.

No police officer, including Detective Phelps, threatened Leon Wilkerson to force him to testify for the State in the trial of Peter Adams. (Emphasis supplied). Those findings of fact were not clearly erroneous and must, therefore, be accepted by us as the established truth of what happened in this case. ³⁹⁸ (4) Leon Wilkerson The only other witness for the defense was Leon Wilkerson himself. His testimony wandered all over the lot.

At one point, he spoke of his initial encounter with Detective Phelps. Q. Why did you go to the police with that information? A. Because the police — I spoke with the police and he’s like if I can help him, if I can help him with a homicide, he’ll see if he can get a deal worked out for me. Even on direct examination, he soon narrowed what the police had said: Q. Was any specific promise made to you as to a specific sentence that you would receive?

A. No, they said they couldn’t talk to me like that, talk to me. They had to talk to my attorney. At another point in his testimony, Wilkerson described a different motivation for having identified the appellant as the shooter: Q. Why did you tell the police that you had information that Mr. Adams had committed the homicide? A. Because, at the time, me and Mr. Adams, we was going through a little disagreement.

So I feel if I do that, I would pay him back. (Emphasis supplied). That is the version of Leon Wilkerson’s testimony most favorable to the State. It is, therefore, the version we must accept as the established truth as to what happened in this case.

On cross-examination, Wilkerson acknowledged that in his statement to Detective Phelps on November 14, 2001, the following exchanges had taken place: Phelps: Okay, did anybody force you to talk to us? Wilkerson: No. Phelps: And we make any promises? Wilkerson: No. ³⁹⁹ Phelps: And you had originally called the Homicide Office and said you wanted to discuss some stuff. Wilkerson: Yes.

Phelps: Okay — so everything you discussed it’s been voluntary and no one forced you? Wilkerson: Yes. Phelps: Promised you anything? Wilkerson: Yes.

Phelps: Had — had anybody promised you — made any promises to you? Wilkerson: No. (Emphasis supplied). With respect to any of the prosecutors in any of the cases— the cases against Wilkerson himself, the Adams case, or the Poole cases — Wilkerson acknowledged that no prosecutor had ever offered him anything. Q. Okay.

And from my understanding, no prosecutor ever made any promises to you; is that correct? A. No. Q. You were never under any impression that you were going to receive any leniency from any prosecutor, just from what the police told you; is that correct? A. Yes. (Emphasis supplied).

In the course of the January 21, 2003, hearing before Judge Allison, moreover, there were 1) the testimony of Detective Phelps that he had never offered Wilkerson anything; 2) the statements of Frank Rangoussis, the prosecutor of the Adams case, that he never offered Wilkerson anything in exchange for anything; and 3) the testimony of Melissa Copeland, the prosecutor of the case against Wilkerson, that she had never been contacted by the prosecutor of the Adams case or either of the successive prosecutors of the Poole cases to offer Wilkerson anything or to extend to Wilkerson any leniency in exchange for any testimony in their respective cases. With ⁴⁰⁰ respect to the Adams case itself, Mr. Rangoussis received the following testimonial replies from Ms. Copeland: Q. Were you ever informed by me that you should offer any leniency or anything of that nature to Mr. Wilkerson? A. No. Q. Had I — let me back up for a second. Had any other prosecutor contacted you?

A. No. Q. Had I at any time asked you to postpone Mr. Wilkerson’s case? A. No. Q. And had I ever told you that the case was going to be a stet if he testified? A. No. (Emphasis, supplied). Mr. Rangoussis later concluded his examination of Ms. Copeland: Q. Had I contacted you to tell you how well Mr. Wilkerson did in his testimony in my case?

A. No. Q. Did you have any idea that he recanted his testimony in the case? A. No. Q. Had you knoum that, would it have made any difference to you? A. No. (Emphasis supplied). In a letter that Leon Wilkerson wrote to his attorney, Daniel Marcus, on April 13, 2002, moreover, Wilkerson expressly disclaimed any deal or understanding to testify in the Adams case.

He contrasted the Adams case with the Poole cases, where 1) he claimed that there was a deal for him to testify and 2) wherein he did testify very effectively in favor of the State: ⁴⁰¹ I know I’m suppose to testify sometime next month in 2 cases. The cases that starts on the 7th of next month [the Poole cases] is the only case that the deal was suppose to be made with or for. If I was to testify in that case alone they would drop all my charges. The case on the 16th of next month [the Adams case] was only to assure me a bail which they fail to give'me....

Now the case on the 7th of next month Pm testifying on 3 people. I’m sure about that case, but the other case Pm not sure about.... [T]he case on the 16th I’m not sure because I really didn’t eyewitness him do anything, that’s what I mean when I saw I’m not sure, but I will still testify in the case.... [P]lease let them know my deal was only made to testify in the case on the 7th for both of my charges to be drop. Pm testifying on 3 people in that case. (Emphasis supplied).

On the basis of this evidence, Judge Allison made the following findings of fact: 16. Leon Wilkerson wrote to Mr. Marcus in a letter dated April 18, 2002, asking him to contact the State’s Attorneys in the two cases in which he was to testify to clarify the arrangements. Leon Wilkerson indicated in the letter that he understood that if he testified in another case (case starting on May 7) against three persons that all his charges would be dropped. He also stated in that letter that he made no agreement to testify in the Adams case (case starting on May 16) and did not expect to testify in it. 17.

Except as set forth in the letter referred to in paragraph 16, Mr. Marcus was not aware of any promise, written or oral, made to Leon Wilkerson in exchange for his testimony in the instant case. 19. Leon Wilkerson never told Mr. Marcus that he had any expectation of leniency in exchange for his testimony in the murder cases, including Mr. Adams’ case. ⁴⁰² State’s Attorney Rangoussis never offered Leon Wilkerson leniency in exchange for his testimony in the Adams trial 22. State’s Attorney Copeland was never told by any prosecutor that Leon Wilkerson had a deal with the State in exchange for his testimony and State’s Attorney Copeland was not asked by any prosecutor to offer Leon Wilkerson leniency in exchange for his testimony in the Adams or Van Pool cases. 29. State’s Attorney Copeland knew, from a Detective, that Leon Wilkerson was testifying in the homicide matters “freely,” which meant to State’s Attorney Copeland that Leon Wilkerson was not looking for any deal from the State in exchange for his testimony. 31.

(Emphasis supplied). Those findings were not clearly erroneous, and must, therefore, be accepted by us as the established truth of what happened in this case. (5) Transcript of March 13, 2002, Postponement Hearing In addition to calling four witnesses, the appellant introduced a series of exhibits, four of which have possible pertinence. We have already quoted from 1) Leon Wilkerson’s statement to the police of November 14, 2001, and 2) his letter to his attorney of April 13, 2002.

A third exhibit is a transcript of the March 13, 2002, hearing before Judge William D. Quarles in which counsel for both sides requested a postponement of Wilkerson’s trial for the narcotics offenses. Wilkerson was in protective custody in Harford County and had not been brought to court. Assistant States Attorney Melissa Copeland represented to Judge Quarles that Wilkerson was “a witness in a murder trial for Lynn Stewart, now Judge Stewart.” The reference was to the Poole murder cases. Ms. Copeland further asserted that Wilkerson “has been very cooperative.” Ms. Copeland mistakenly referred to the successor prosecutor to Judge Stewart in the Poole cases as Frank Rangoussis, whereas it was actually Cynthia Jones.

The appellant has taken that mistaken reference to Mr. Ran ⁴⁰³ goussis as proof that the Adams case, of which Mr. Rangoussis was the prosecutor, was being referred to before Judge Quarles. It was not. It was never referred to. In her testimony at