Bloodsworth v. State

SMITH, Judge. Appellant, Kirk Noble Bloodsworth, was convicted by a Baltimore County jury of first degree murder, first degree rape, and first degree sexual offense. The trial judge subsequently determined that he should be sentenced to death. The case reaches us pursuant to the provisions of Maryland Code (1957, 1982 Repl.

Vol.) Art. 27, § 414 stating that whenever the death penalty is imposed, we shall review the sentence. We shall reverse the conviction and remand for a new trial because we find a violation of Bloodsworth’s rights under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). ¹⁶⁷ I SUFFICIENCY OF THE EVIDENCE Bloodsworth challenges the sufficiency of the evidence to convict. We first address that issue because if there were insufficient evidence to convict there could be no new trial. The applicable standard is whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The standard is derived from Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). See Branch v. State, 305 Md. 177, 182-83 , 502 A.2d 496, 498 (1986); State v. Rusk, 289 Md. 230, 240 , 424 A.2d 720, 725 (1981); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830, 842 (1980). We summarize the evidence connecting Bloodsworth with the crime. A bloody rock was found at the scene where the body was discovered.

There was testimony that no mention of the rock was made in the press releases. It was established that there was human blood on the rock. Bloodsworth was identified by individuals other than young Christian Shipley and his companion, Jackie Poling, as being in the area before, during, and after the occurrence. Shipley said he and Jackie went fishing at a local pond.

While they were there a man came down the path and stopped by to look at the turtle Jackie had caught. Shortly thereafter Dawn Hamilton, the victim, came by and said she was looking for her cousin, Lisa. The boys refused to help her find Lisa. However, the man agreed to help and walked off with Dawn.

Young Shipley provided a description for a composite picture of the man in question. He later picked out a person in a photoarray said by him to be the man at the pond. Later testimony confirmed this photo to be one of Bloodsworth. At a police line-up Shipley identified the man in the number six position as the person he saw go off with ¹⁶⁸ Dawn.

The man in the number six position was identified in court as Bloodsworth. Jackie Poling said he saw a man coming down the path but could not remember what he was wearing or what he looked like. He did testify that Dawn came to the pond looking for her cousin and left the pond with the man. He then testified that he went to the police station where he attended a line-up at which he picked out the wrong person because he was scared.

When he left the line-up room he stated to his mother that he had picked out the wrong man because he was scared. He told his mother who the correct person was. That person was the individual in the number six position at the line-up. Because of Jackie’s inability to remember what had occurred, the State introduced his statement taken the day of the murder and the statement he made after the line-up identification.

The first statement corroborated his testimony and gave a description of the man. The second statement identified the person in the number six position as the individual he saw at the pond. Jackie’s mother corroborated her son’s testimony. Donna Ferguson, a resident of the area, testified that she saw Dawn at approximately 10:30 a.m. talking to a man by a fence leading into the woods.

She gave a description. She attended a police line-up where she picked out the person in the number six position as the man she had seen talking to Dawn. She made an in-court identification of Bloodsworth as the individual she had picked out of the line-up. Detective Capel testified that he responded to a missing person’s call placed by Bloodsworth’s wife which led him eventually to his initial meeting with Bloodsworth in Cambridge.

At that time he took a Polaroid photograph of Bloodsworth which he later inserted in the number four position in an array of six photographs shown to Jackie Poling and Chris Shipley. Capel testified that Poling did not identify Bloodsworth but that Shipley did identify him in ¹⁶⁹ the photoarray as the man he had seen with Dawn at the pond. The photoarray was introduced into evidence. Detective Capel testified that he returned to Cambridge with a warrant for Bloodsworth’s arrest and placed him under arrest.

During an initial interview Capel took out a pair of white panties and placed them in front of Bloods-worth. He said Bloodsworth reacted to this by claiming that he did not hurt the girl and Bloodsworth also mentioned a bloody rock. The detective testified that only a few officers and the murderer knew about the rock and Bloodsworth was unable to explain his knowledge. Capel corroborated the line-up identifications of Bloodsworth by Poling, Shipley, Donna Ferguson, and two other individuals who said they had seen Bloodsworth in the neighborhood.

He also identified the line-up photograph showing Bloods-worth in the number six position and the photoarray with him in the number four position. Tina Christopher testified as to a conversation she had with Bloodsworth at Cambridge in which he talked about a little girl and clothing. She indicated that he said something happened to this little girl and the police had accused him of killing her. She recalled his discussing a bloody rock, light blue shorts and white top, and some other man who was with him who took the little girl off into the woods.

Later in her testimony she again described a conversation with Bloodsworth immediately after he returned from the police station. At that time he discussed the girl, her clothes, the bloody rock, and a man who was with him who he claimed was supposed to have done the crime. Because of her inability to clearly remember the details of the situation, her statement to the police made at the time was also introduced into evidence and is discussed in Part 6 of this opinion (Past Recollection Recorded). The statement said in relevant part: “Q. When Kirk came in and started talking, what did he say to you? “A. He was talking about ... it was bits and pieces.

I thought he was talking about his daughter. He starting ¹⁷⁰ talking about this little girl and her clothes and a beach. Something about a rock ... I didn’t pay too much attention to him.

Finally he started putting it all together. He said that him and someone else were down there talking with this little girl and boy, and the guy was with him said something to the little girl. The guy did something and the little girl ask him to help her find somebody. Then he said this guy went with the girl and then he stopped talking.

I asked him who the guy was and he would not tell me. Then he come up with this little girl and talking about her again. It was like he was talking in a daze. He described her clothes and a rock that was suppose to be bloody.

He said she was wearing a pair of light blue shorts and a white top and he said something again about a rock that was suppose to be bloody. Then he left and me and Tina and Bobby left. It was awhile and then he came back. Me and Tina were sitting in the living room and he was telling us that some officer took him down the police station and took pictures of them and he saw what was suppose to be the girls clothes and the rock laying beside them and he asked the officer was that the little girls clothes.

When he got done telling us bits and pieces of that story, he kept asking me and Tina were we scared of him. I told him I don’t know. That’s about it____ He said if you are scared of me you don’t have any reason to be, cause I did not do it. I don’t know what he meant by that.” The State’s final witness was Rose Carson of Cambridge at whose home Bloodsworth stayed while he was in Cambridge.

She said that he told her he had done something bad, that he was afraid his wife was not going to take him back, and that he hoped to get admitted to the State hospital. 1 He also told her he was suspected of killing and raping a little girl. ¹⁷¹ The evidence, as Bloodsworth points out, is almost entirely circumstantial, but, as Judge Henderson said for the Court in Breeding v. State, 220 Md. 193, 198 , 151 A.2d 743, 746 (1959), “that is not a fatal objection.” See also Veney v. State, 251 Md. 182, 201 , 246 A.2d 568, 579 (1968). We think a rational trier of fact could have found beyond a reasonable doubt that Bloodsworth committed the crimes. II THE BRADY VIOLATION Bloodsworth filed a discovery motion which, in addition to a general request for all exculpatory material, requested “the names, addresses, and physical descriptions of any persons other than the defendant who were arrested or otherwise taken into custody by police or prosecution officials as a possible suspect in this case in which the defendant is charged.” Later he requested production by the State of “any and all information of which it is aware including but not limited to line-ups, photospreads, or reports to law enforcement authorities, identifying or suggesting that someone other than the Defendant ... was the perpetrator of this crime.” He also requested the production of the notes of all police officers with respect to the case. As Bloodsworth puts it: “Limited information was produced by the prosecution concerning a Richard Gray.

Based on the limited information supplied, the defense was able to elicit some testimony at trial casting suspicion on Gray. Gray, a newspaper deliverer, was discovered wandering in the woods in the vicinity of the crime shortly before the victim’s body was found. He was wearing green camouflage fatigues and carrying a policeman’s billy club. Gray directed the father of the victim to the victim’s underwear which was hanging in the woods from a tree branch.

Another pair of lady’s underwear was found in the back seat of Gray’s car during a consensual search. The police eliminated Gray as a suspect in the case based on interviews.” (References to transcript pages omitted.) ¹⁷² On the basis of Brady, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), Bloodsworth takes issue with the State’s failure to provide the defense with a copy of a confidential report by Detective Mark Bacon. This report concluded with Bacon’s “opinion that Mr. Gray has a great deal more information than he [is] releasing to us at this time, and as a result of this I feel that he should not be overlooked as a possible suspect in the above offense.” The report in question in some manner reached the hands of Bloodsworth’s counsel between the guilt-innocence phase of the trial and the sentencing phase. Where it was in the interim we do not know.

It and testimony from Detective Bacon were the subject of a motion for new trial on the basis of newly discovered evidence. At that time the State informed the court that the prosecution had never had a copy of the confidential report. The assistant State’s attorney said that he had: “opened up all of the police notebooks, of which there were some 4 huge notebook binders containing all the tips and information received, I think some 513 in number____ These files contain information regarding all the phone calls received, all the suspects developed. There were photographs included.

There were rap sheets. [Defense counsel] had to spend a whole day going through all of these things in our office in this building.” The prosecutors also noted that the indictment listed Gray as a State’s witness and provided his address. Of course, the fact that the prosecutors were not in physical possession of the report is immaterial. See United States v. Bagley, 473 U.S.-, 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985); United States v. Agurs, 427 U.S. 97, 110 , 96 S.Ct. 2392, 2400-01 , 49 L.Ed.2d 342, 353 (1976); State v. Giles, 239 Md. 458, 470 , 212 A.2d 101, 108 (1985), vacated and remanded on other grounds, 386 U.S. 66 , 87 S.Ct. 793 , 17 L.Ed.2d 737 (1967). At the hearing on the motion for new trial Detective Bacon was produced as a witness.

By that time he had ¹⁷³ retired from the Baltimore County Police Department. He said his last duty was as a child abuse investigator. He related a call in regard to a search for a missing 9 year old white female. He testified that he was one of the officers who discovered the body of the victim in this case.

He had occasion to come upon a person by the name of Richard Gray. Bloodsworth presents in his brief a fair summary of the Bacon testimony: “When Bacon discovered Gray in the woods, Gray was very dirty except for his hands which were meticulously clean. A red spot that looked like blood was on Gray’s shirt. Gray appeared quite nervous and vomited during or immediately after the search of his car.

The underwear found in Gray’s car was that of a small girl. Gray’s explanation of the presence of the underwear was that he had found them in the woods a couple days earlier and was intending to take them home for his wife or daughter. Even before the victim was found, Gray referred to her pocketbook and gestured around his left shoulder to indicate that it was a shoulder bag. When the victim’s body was found, there was a shoulder bag with the strap over her left shoulder as indicated by Gray.

Before Gray could even know that the body was found, he told Detective Bacon that he hoped ‘they get him’ and ‘bring him to justice,’ and that he hated to see people ‘abuse’ little children. Bacon ran a check on Gray and found that he had a criminal conviction for indecent exposure and had been arrested for burglary. Bacon discovered some time later that Gray failed a police-administered polygraph examination in connection with this case.” (References to transcript pages omitted.) Bacon testified that he took a statement from Gray. That statement, apparently not disclosed to defense counsel prior to trial, was read by Bacon at the hearing on the motion for new trial.

Bacon said he was dissuaded by his superiors from further investigation of Gray. On the subject of the cleanliness of Gray’s hands, Bacon stated: ¹⁷⁴ “[TJhere was approximately 30 to 40 newspapers that were rolled on the front seat of the car, which once again is inconsistent with Mr. Gray’s hands being cleaned. Someone who had rolled 30 or 40 newspapers is going to have some black from the newspapers on his hands, and they are not going to be as clean as his were.” In Brady, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 , the Court said: “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. at 1196-97 , 10 L.Ed.2d at 218 . Brady and a companion, Boblit, were found guilty of murder in the first degree and were sentenced to death.

The Supreme Court summarized the facts: “Their trials were separate, petitioner being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that Boblit did the actual killing. And, in his summation to the jury, Brady’s counsel conceded that Brady was guilty of murder in the first degree, asking only that the jury return that verdict ‘without capital punishment.’ Prior to the trial petitioner’s counsel had requested the prosecution to allow him to examine Boblit’s extrajudicial statements. Several of those statements were shown to him; but one dated July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner’s notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.” 373 U.S. at 84 , 83 S.Ct. at 1195 , 10 L.Ed.2d at 217 .

On appeal from a denial of post-conviction relief, this Court said in Brady v. State, 226 Md. 422 , 174 A.2d 167 (1961): “We think that there was a duty on the State to produce the confession of Boblit that he did the actual strangling or at least to inform counsel for the accused of ¹⁷⁵ its existence. The suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process.” 226 Md. at 427 , 174 A.2d at 169 . Chief Judge Bruñe concluded for the Court “that the withholding of this particular confession of Boblit’s was prejudicial to the defendant Brady ... and that he was deprived of a constitutional right____” 226 Md. at 430 , 174 A.2d at 171 . Last year in United States v. Bagley, 473 U.S.-, 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), the Supreme Court set forth the test to be applied to an evaluation of Brady material.

In the opinion of Justice Blackmun, joined by Justice O’Connor, the test is stated: “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 -, 105 S.Ct. at 3384 , 87 L.Ed.2d at 495 . Justice White, in a concurring opinion joined by the Chief Justice and Justice Rehnquist, said he agreed with this statement. 473 U.S. at-, 105 S.Ct. at 3385 , 87 L.Ed.2d at 496 . In Brady, 226 Md. at 430 , 174 A.2d at 171 , Chief Judge Bruñe said for the Court, “Not without some doubts, we conclude that the withholding of this particular confession of Boblit’s was prejudicial to the defendant Brady.” We have some doubts in this case.

Had defense counsel had this report before trial and not followed up upon it we undoubtedly would be met with a claim of ineffective assistance of counsel for failure to investigate. See, e.g., State v. Calhoun, 306 Md. 692 , 511 A.2d 461 (1986); State v. Tichnell, 306 Md. 428 , 509 A.2d 1179 (1986); and Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985). All factors considered we conclude that the undisclosed report is suffi ¹⁷⁶ cient to undermine confidence in the outcome of the trial. Hence, there must be a new trial.

Ill Bloodsworth raises several contentions which, in the light of the fact that we are remanding the case for a new trial, we are not obliged to decide. However, in the interest of judicial economy we shall address certain of them for the guidance of the trial judge upon the remand. A. THE FOOTWEAR The Medical Examiner’s report said, among other things: “In the lower part of the neck in the front there was a patterned mark, an abrasion that went across the front of the lower neck. It had a somewhat herringbone appearance.

A similar pattern was also seen in the back of the neck at the lower part where the muscles of the shoulders come together at the lower part of the neck.” This served to create an area of contention in this case. Bloodsworth says: . “Over repeated objections by defense counsel, the prosecution introduced evidence comparing shoeprints from a pair of tennis shoes which the prosecution claimed belonged to Appellant with photographs purporting to show marks inflicted upon the victim’s body. The evidence should not have been admitted because the prosecution witness was not qualified as an expert, a proper foundation for the use and admission of the photographs was not laid, the method of comparison used was not shown to be reliable or generally accepted in the field, the tennis shoes were not shown to belong to or have been worn by Appellant, and the shoe prints were not sufficiently distinct to permit a valid comparison.” Bloodsworth introduced evidence from an expert to the effect that the seized shoes in question were five half sizes too small for Bloodsworth. ¹⁷⁷ The evidence was such that the State was forced in closing argument to concede that the shoeprint evidence “does not point to the Defendant, and we candidly admit that to you all, but neither does it eliminate him, nor does it point to anyone else. It is just neutral evidence.” In this circumstance we doubt that this evidence will be introduced on the remand.

B. EYEWITNESS IDENTIFICATION Bloodsworth takes exception to the refusal of the trial court to permit testimony on the issue of eyewitness identification from Dr. Robert Buckhout, a professor of psychology in the City University of New York at Brooklyn College. Nowhere in Bloodsworth’s statement of facts, his brief, or the actual testimony of Dr. Buckhout are we provided with a summary of just what he intended to prove by this expert testimony. The nearest one can come to it is the answer given to the trial judge at the conclusion of direct and cross-examination: “THE COURT: I’m trying to find out what basically you would say. Would you be conveying to the jury the unreliableness of eye-witness testimony? “THE WITNESS: We would only, I would only be estimating what the research shows.

I don’t have a particularly overall general condemnation of eye witnesses at issue. That has never been a factor at all. “My belief and sort of underlying theory is that eye witnesses are really confronted with a difficult situation, and when the circumstances add up to a very difficult challenge to the memory system, these are the things that can happen to various parts of their testimony and various parts of their identification, and testing methods, of course, is one of the areas that I have done most of my work on, and the testing method again I see as simply a tool, and the checklist is simply to provide to the jury, or elements of the checklist are provided to the jury so that ¹⁷⁸ they can essentially assess what, at least, the filter of the scientist would say about a given test. “In some states I have been asked, in fact, I was pushed in one case fairly recently to give an opinion on the line-up or the photo spreads in evidence. Your Honor, forgive me if I must be very honest to say that I don’t know how far Maryland law, as opposed to other law, would permit that type of testimony to go, but I think still that that would be merely advisory. I would only look on the test simply as a tool and nothing more.” In excluding this testimony the trial judge said: “I am concerned that the possibility of admitting the evidence would tend to confuse or mislead the jury.

This is not just a matter of usurping the province of the jury, although it is in my judgment most certainly that, it is also that such testimony is of little value in aiding the jury in this case. I’m not persuaded that the testimony will be helpful to the jury in understanding the evidence in this case.” The trial judge regarded the standard for admissibility to be, as we held in Reed v. State, 283 Md. 374, 381 , 391 A.2d 364, 368 (1978), as set forth in Frye v. United States, 293 Fed. 1013, 1014 (D.C.Cir.1923), that is whether it is generally accepted as reliable within the expert’s particular scientific field. As indicated, however, he did not confine himself to that in his rejection. He further said: “It seems to me that the reliability of the witnesses and the identification witnesses is better tested by the cathartic effect of cross-examination than by the opinion of an expert.

The expert has not heard the testimony as it came from the witnesses on the witness stand under oath, nor has he had the opportunity to view them, to observe their demeanor and the manner of testifying. The jury has. “As you all know, when the court instructs the jury, included in those instructions is a number of suggestions of what the jury ought to be looking for and how the jury ¹⁷⁹ should test the credibility of the witness, whether or not the testimony is reliable. “For two reasons: One the failure of the defense to persuade this Court that the technique has general acceptance in the relevant scientific community. It utterly fails in that respect, and this Court is bound by the decision of the Court of Appeals in Reed v. State and subsequent cases that say that the threshold question shall be determined by the application of the Frye standard. “Beyond that, even if it were a technique generally accepted in the relevant scientific community, the proffer is not sufficient to persuade me first, exactly what is even being offered to the jury other than some generalized explanation of the studies that have been made. Nothing that has been proffered suggests that it will be helpful. “It will be helpful but causes me to be concerned that it may usurp the jury’s province in determining the reliability of the identification in this case, so on both counts, the Defendant has failed to make a case for the use of Doctor Buckhout’s testimony in this case.

The motion in limine is granted.” There is a split of authority around the country relative to admissibility of evidence such as that of Dr. Buckhout here. Much of this proffered evidence consists of testimony from Dr. Buckhout or his associate in experimentations, Elizabeth Loftus. Bloodsworth relies heavily on United States v.