Argyrou v. State

BELL, Chief Judge. The issue that Kyriakos S. Argyrou, a/k/a Charles Argyrou, the petitioner, presents is whether the Circuit Court for Anne Arundel County abused its discretion when it denied his motion, pursuant to Md. Rule 4-331(c) 1 and premised on newly discovered evidence, for a new trial. The evidence upon ⁵⁹⁰ which the petitioner relied and denominated newly discovered consisted of a confession by one Robert Lee Benner, Jr., which was submitted in affidavit and audio taped form to the court. The circuit court denied the petitioner’s motion, concluding that the confession did not qualify as newly discovered evidence.

I. The facts are not in dispute. The petitioner was convicted by a jury in the Circuit Court for Anne Arundel County of theft of property valued at more than $300.00. The State’s proof established to the jury’s satisfaction beyond a reasonable doubt, that the petitioner was one of two men, 2 who, on June 30,1992, using the stolen identification of Robert Flens, rented construction equipment, to wit, a jack hammer with four bits, a 2,500-watt generator, an electric breaker, and a cart, from Taylor Rental, located in Glen Burnie, Maryland, which they took away in a van, described as light-colored, i.e. beige or powdery blue, and did not return. Specifically, an employee of Taylor Rental selected the petitioner’s photograph from a photographic array, prepared by the detective investigating the case, and identified the petitioner at trial as the man who claimed to be Robert Flens and who signed the rental agreement.

Also, the real Robert Flens testified that he had not rented the equipment and that his wallet, containing his identification and credit cards, had been stolen prior to the Taylor Rental theft. The petitioner was sentenced to five years imprisonment and ordered to pay a $1000.00 fine and $2000.00 restitution to Taylor Rental Company. The Court of Special Appeals affirmed his conviction in an unreported opinion. The petitioner moved for a new trial, citing what he contended was newly discovered evidence.

The newly discovered ⁵⁹¹ evidence was, the petitioner asserted, a confession by one Robert Benner, in which Benner admitted committing the Taylor Rental theft and, at the same time, fully exonerated the petitioner. The confession was in the form of a notarized statement, his affidavit, taken by the petitioner’s attorneys, when Benner came to their office. The confession was corroborated by handwriting exemplars given by Benner; one of his signature, and the other, Benner’s signing of the name “Robert Flens.” These exemplars were the subject of expert testimony. A hearing was held on the motion for new trial.

Benner was not present at the hearing, 3 and, so, did not testify. Instead, Benner’s notarized statement, i.e. his affidavit, was introduced into evidence. In that statement, after acknowledging that he was on probation and the inculpatory nature of the statements he was about to make, denying that he had been coerced to make them, and recognizing that he could be prosecuted and jailed, and his probation violated as a result, Benner stated that he was involved in the Taylor Rental theft, along with Rodney Seekford and Michael Raub. Benner claimed Seekford acquired the various Flens identifications, which they used to obtain the construction equipment.

He admitted that he signed the rental contract. Benner was asked specifically if the petitioner signed the rental contract, to which he positively stated that he had not. The statement also contained an account of an incident, involving the use of the same credit cards, that occurred at the Marley Station Mall and that concededly involved the petitioner. According to Benner, he and Seekford had gone to the Mall in order to use the stolen credit cards, to acquire, for resale, expensive tennis shoes.

Michael Raub was supposed to be waiting outside for them with a car. Benner stated that he became suspicious when a transaction between a clerk and ⁵⁹² Seekford took too long, and he saw a security guard approaching the store where the transaction was occurring and, so, he alerted Seekford and they left. When they exited the Mall, Raub was not in sight, but there were “several police coming out the door and ... a jeep ... was right there on top of us.” Having seen a man, the petitioner, sitting in a van, Benner said that he “more or less commandeered the van by jumping into it and putting a knife into his [petitioner’s] back and telling him to drive.” The jeep followed for a time, but then “veered off,” at which time Benner told the petitioner to pull into a Wendy’s fast food restaurant, the previously agreed destination point where Raub whs to meet him and Seekford, should something go wrong. Benner stated that they met up with Raub, who was driving a blue Grand Prix.

Benner again exonerated the petitioner, stating that he had nothing to do with the Marley Station matter. 4 He described the petitioner’s van as “maroon” in color and the van they used to haul away the construction equipment as “white.” After one of the petitioner’s attorney’s testified to the circumstances surrounding the acquisition of the handwriting exemplars, especially that of Benner signing “Robert Flens,” noting specifically that the Taylor Rental rental agreement had not been shown to Benner, expert testimony was presented as to whether the same person signed the rental agreement as signed the exemplars. The expert, Katherine Koppenhav ⁵⁹³ er, having been qualified as an handwriting expert, testified without equivocation that it was Benner who signed the name of “Robert Flens” on the June 30, 1992 Taylor Rental contract. In addition to the audio-taped statement that it took from Benner, the State offered testimony from two witnesses, Detective Ronald Sappington, who investigated the Taylor Rental matter, and Scott Rowe, the Marley Station Mall security officer who observed Benner and Seekford enter the petitioner’s van and the petitioner drive away. Benner’s audio-taped statement was more detailed than the one he gave the petitioner’s attorneys, perhaps demonstrating, as the petitioner contended, that the State took the “opportunity to cross-examine Mr. Benner,” in an effort “to challenge Mr. Benner at length regarding his alleged involvement in the crime.” In his statement, Benner stated that he did not know the petitioner and had not seen him before the day that he forced the petitioner, at knife-point, to drive him and Seekford away from the Marley Station Mall.

He also stated, however, that about six months after that incident, in the western part of Baltimore City, where he had gone to buy drugs, he saw the petitioner and the van and “it clicked together,” ie., he recognized the petitioner as the person he car-jacked. At that time, Benner maintained that he began making inquiries about the petitioner. Initially Benner said that he sought to discover if the petitioner had identified him to the police as the person who had car-jacked him at the Marley Station Mall. Later, the focus was on what happened to the petitioner.

As a result of these inquiries, made of various individuals in the area, Benner learned that the petitioner had been convicted of the Taylor Rental theft and sentenced to five years imprisonment. With that information and having learned who the petitioner’s attorney was, Benner said that he went to petitioner’s attorney’s office and confessed. 5 As to why he did so, Benner had this to say: ⁵⁹⁴ “I had found out from his attorney. I mean, the night that I was there, he had kids but I’m more or less trying to get my life back. I don’t want nobody doing five years for something that they didn’t do.

I mean, it’s — I guess maybe crime is not my, you know, something that I like I do. Maybe I just have the right outlook for it.” Later, he gave another reason for coming forward and confessing: Benner said that it was not simply because it bothers his conscience, but also because it could help him get off drugs, which he wanted to do. As he- put it, “Well, I mean you know, apparently, you know, I’m going to be incarcerated here for a short period of time. And however short period of time will be time that I’m away from drugs.” At the beginning of the interview, Benner had explained why he’d come to the State’s Attorney’s office: “...

I have a lot of personal problems myself that I’d like to get straightened out, and this is one way that I feel I can go about it. But also, I can’t ??? see somebody else actually taking the blame for something I’ve done. You know, I’m trying to put my life back together and this is something that I don’t want to come back in the future. So, I’d like to get it ironed out.” Benner did not name anyone from whom he received information about the petitioner.

Even when pressed, he gave only the names, “Bob,” whose last name he claimed not to know, and “Gary or something,” again claiming not to know the last name. And he also refused to point out any of the ⁵⁹⁵ persons he said he spoke with to the State, explaining that he was not “trying to get anyone else involved in this.” The State’s questioning of Benner leaves no doubt that it did not consider him or his story to be reliable. In that regard, the State inquired why Benner had failed to meet with the Assistant State’s Attorney following the postponed hearing on the motion for new trial. Benner had apparently agreed to do so, but did not.

Benner also failed to meet with the Assistant State’s Attorney two days later, again, as he also had agreed. The interview likewise contained references to Benner’s failure to respond to letters the State sent to him. Benner’s answers were not very enlightening. As to the first question, for example, he offered only, “I was—yeah, I was a little maybe—caught me a little off guard, maybe a little apprehensive.

Thought maybe I should get—try to get an attorney or something before I talked ??.” The Assistant State’s Attorney informed the court that, at the conclusion of the interview, he accompanied Benner down to the cafeteria to get him something to eat and drink. When they returned to the office, he continued, Benner told him that he was going to take a smoke. The Assistant State’s Attorney then informed Benner that he wanted him to remain so that he would be present when the detective who was going to interview Benner arrived. Notwithstanding that Benner stated that he would be glad to cooperate and was simply going to take a smoke, the Assistant State’s Attorney asserts that Benner left the building and disappeared, not to be seen again by the State.

He also maintains that letters subsequently sent to Benner’s home produced no result. Testifying at the hearing, Sappington testified that he was involved in the investigation of the Taylor Rental theft. He explained why his attention was drawn to the petitioner as a suspect in that theft—after speaking to Flens, and learning that his credit cards and identification had been used at various stores other than Taylor Rental, including stores in the Marley Station Mall, he also learned that, on July 2, 1992, the petitioner had reported being car-jacked shortly after the ⁵⁹⁶ occurrence of an incident at the Marley Station Mall in which the Flens credit cards and identification were used. When asked “when he joined [the petitioner] and the Flens deal together,” Sappington explained: “Uhm, yes.

The thing being is that what seemed funny to me was—is that he was reporting a abduction to where Mr. Flens’ identification and credit cards were used in some thefts and attempt thefts, and plus the Taylor Rental case where, uhm, [the Taylor Rental employee], after being showed a photo line-up picks out [the petitioner] as the person who used the identification of Mr. Flens. I don’t know what the odds of that would be, but I think it would be really thin, I would think, just in my opinion.” He thus thought it more than coincidental that the petitioner, who had been identified "with the Taylor Rental theft just two days before, would have been abducted by men who had used the same identification and credit cards as had been used to effect that theft. 6 Sappington also testified that he attempted, without success, to interview the petitioner concerning his car-jacking complaint. In fact, although he did speak to the petitioner, Sappington asserted that the petitioner declined his invitation to come by his office to discuss the case, and otherwise refused to speak to him about the incident. According to ⁵⁹⁷ Sappington, the petitioner claimed to have spoken to a lawyer, whose phone number he purported to give to Sappington.

When Sappington called the number, a woman answered and stated that she had never heard of either the lawyer or the petitioner. Sappington also testified that the only time the petitioner cooperated in the investigation was following his conviction. At that time, Sappington stated, the petitioner called and made an appointment to give Sappington his handwriting samples; however, the detective was told by the petitioner’s counsel “not to talk to [the petitioner] about anything, just take the handwriting sample.” The Marley Station Mall Security officer testified about the circumstances surrounding the petitioner’s “abduction.” He testified that, having been alerted by a call from the Athlete’s Foot, a store in the Marley Station Mall, that “they had some suspicious subjects in the store, possibly using a stolen credit card,” he went to the store. Finding no one there at that time, the officer continued, he obtained a description of two men who had been in the store attempting to make a purchase in excess of $300.00.

The officer stated that another security officer radioed another description of two men whom that security officer had observed in the Foot Locker. Armed with that description, the officer located them and followed them from that store. The men, he observed, “walked, uh, rather hurriedly. They weren’t running, it was just a quick pace, uh, directly to one of the mall exits.” Once outside on the sidewalk, the officer stated that the men “appeared to be looking around for the car, for a ride, or where they—they were looking over the parking lot itself, trying—it appeared to me that they were looking for—their car.” After about ten seconds, he concluded “that, uh, someone got their attention.” Although the officer did not see the wave, he assumed that it was done with a wave; he testified initially that he “didn’t hear any voices, or any yells or anything like that, any whistles or_” and later that, “I didn’t hear—a call, I didn’t hear a whistle.

I’m assuming it was—it was a wave or he just stood there long enough to be seen. I don’t know.” The officer believed that what got the men’s attention was a light ⁵⁹⁸ colored van, to which they walked quickly and entered the front passenger door. He further testified that there did not appear to be any animosity between the driver of the van and the two men who entered it as passengers, and that he did not observe the use of any force. And the driver of the van did not, he said, give any distress signal.

The officer stated that he did not see the driver of the van, but he did note the license tag number. The trial court denied the petitioner’s motion for a new trial. It reasoned: “As I said before, I believe the testimony of Mr. French [petitioner’s attorney] with regard to the scenario that he testified with regard to the person that came in and told him that he [Benner] was the signer of the name in question in this case and I believe the testimony with regard to the fact that [Benner] did sign in front of him [French], and in reviewing the signature I find that the signature is remarkably like that of the document on the case. I believe that if the testimony of that signer was elicited before a jury it may well produce a verdict of acquittal, as opposed to a verdict of guilty that occurred in this case. “What I do not believe is that this is newly discovered evidence.

I do not believe the defendant learned of the identity of this person and this testimony ... after the trial of the case. The burden is upon the defendant to prove this at this time, and I find that the defendant has not met that burden that it’s newly discovered evidence. “Therefore, I deny the motion for new trial.... I take [the affidavit] as evidence and take that if that fellow [Benner] went in and testified before the jury I think very well there would be a different verdict in this case ... I just find that it was not newly discovered evidence.

Now, I think it’s upon him [the petitioner] to ... establish that at this time ... and I find that it was not newly discovered.”1 7 3 ⁵⁹⁹ His motion for reconsideration having been denied, the petitioner noted an appeal to the Court of Special Appeals. That court affirmed the judgment of the circuit court in an unreported opinion, holding that the trial court did not abuse its discretion when it determined that the evidence offered as newly discovered evidence was not, in fact, newly discovered. We granted certiorari to consider this important question. We shall affirm.

II That a new trial may be granted in a criminal case tried before a jury cannot be doubted and, indeed, is well settled. In re Petition for a Writ of Prohibition, 312 Md. 280, 308 , 539 A.2d 664, 677, 686 (1988). See also Ford v. State, 12 Md. 514 (1859); Md.Code (1957, 1995 Repl.Vol.) Art 27, § 594. 8 A trial court has wide latitude in considering a motion for new trial and may consider a number of factors, including credibility, in deciding it; thus, the court has the authority to weigh the evidence and to consider the credibility of witnesses in deciding a motion for a new trial. Id at 325-26, 539 A.2d at 686 .

In In re Prohibition, the new trial motion was based on the contention that the jury’s verdict was against the weight of ⁶⁰⁰ the evidence. The trial courts also, have authority to weigh the evidence and to consider credibility of witnesses when the motion is grounded on newly discovered evidence. Yorke v. State, 315 Md. 578, 582 , 556 A.2d 230, 231-232 (1989). See also Jones v. State, 16 Md.App. 472, 477 , 298 A.2d 483, 486 (1973) (“It is essentially the function of the trial judge to evaluate and assess the newly discovered evidence and where such evidence consists of testimonial evidence from a witness allegedly discovered after the trial has been concluded, it is for the trial judge to determine the materiality and the credibility of such testimony.”); Jones v. United States, 279 F.2d 433, 436 (4th Cir.), cert. denied, 364 U.S. 893 , 81 S.Ct. 226 , 5 L.Ed.2d 190 (1960) (“Where there is a grave question of the credibility of after-discovered evidence ... the role of the trial judge is that of the fact-finder.”).

It may be said that the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed and immutable, it will expand or contract depending upon the nature of the factors being considered, and the extent to which its exercise depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on his or her own impressions in determining questions of fairness and justice. Buck v. Cam’s Rugs, 328 Md. 51, 58-59 , 612 A.2d 1294, 1297 . Of course, the exercise of the discretion is reviewable for abuse. Wiggins v. State, 324 Md. 551, 570 , 597 A.2d 1359, 1368 (1991); Yorke, 315 Md. at 590 , 556 A.2d at 235-236 ; Stevenson v. State, 299 Md. at 304, 473 A.2d 450 , Maryland Rule 4-331(c) provides for the grant of a new trial, or other appropriate relief, on the basis of newly discovered evidence, but only if the prescribed requirements are met.

To qualify as “newly discovered,” evidence must not have been discovered, or been discoverable 9 by the exercise of ⁶⁰¹ due diligence, within ten days after the jury has returned a verdict. 10 In addition, the motion premised on newly discovered evidence must have been filed in the circuit court, within the later of one year after the imposition of sentence or the issuance of a mandate by the appropriate appellate court. Maryland Rule 4-331(e)(2). Case law has delineated other essential requirements. The evidence offered as newly discovered must be material to the result and that inquiry is a threshold question.

Stevenson v. State, 299 Md. 297, 302 , 473 A.2d 450, 452 (1984). That means that it must be more than “merely cumulative or impeaching.” Jones v. State, 16 Md. App. 472, 477 , 298 A.2d 483, 486 (1973); Love v. State, 95 Md.App. 420, 432 , 621 A.2d 910, 917 (1993). In addition, the trial court must determine that “[t]he newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Yorke, 315 Md. at 588 , 556 A.2d at 235 . 11 ⁶⁰² But, like materiality, see, Stevenson, 299 Md. at 302 , 473 A.2d at 452 , whether the proffered evidence is, in fact, “newly discovered evidence which could not have been discovered by due diligence,” is a threshold question. Thus, “[ujnless and until there is found to be ‘newly discovered evidence which could not have been discovered by due diligence,’ one does not weigh its significance.

It is only when this definitional predicate has been established that the provisions of Rule 4-331(c) even become involved. Without this definitional predicate, the relief provided by subsection (c) is not available, no matter how compelling the cry of outraged justice may be.” Love, 95 Md.App. at 432 , 621 A.2d at 916-17 . The question of whether evidence is newly discovered has two aspects, a temporal one, ie., when was the evidence discovered?, and a predictive one, ie., when should or could it have been discovered? It is to the latter that the requirement of “due diligence” has relevance.

Although a critical concept in “newly discovered evidence” jurisprudence, we have