Bloodsworth v. State

BISHOP, Judge. A jury in the Circuit Court for Baltimore County (Smith, J.) convicted Kirk Noble Bloodsworth, appellant, of first degree murder, felony murder and first degree sexual offense under MD.ANN.CODE Art. 27, §§ 407, 410 and 462, respectively. 1 For the first degree murder conviction and for the first degree rape conviction, the trial court sentenced Bloodsworth to consecutive life terms. Bloodsworth asks whether: I. There was sufficient evidence. ²⁷ II. The trial court erred in admitting as rebuttal evidence appellant’s testimony from his first trial.

III

The State withheld exculpatory evidence.

IV

The trial court abused its discretion in denying appellant a new trial. V. The trial court erred in admitting “other crimes” evidence.

VI

The trial court erred in admitting certain hearsay evidence.

VII

The trial court erred in excluding certain evidence of a composite sketch.

VIII

The trial court erred in refusing to call a witness as a court’s witness.

IX

The trial court erred in admitting photographic evidence of the pattern of the sole of Richard Gray’s shoe. X. The trial court erred in admitting evidence that appellant became a suspect as a result of a “tip”.

XI

The State made an improper closing argument. I Sufficiency Bloodsworth challenges the sufficiency of the evidence to convict, just as he did in Bloodsworth v. State, 307 Md. 164 , 512 A.2d 1056 (1986) (Bloodsworth I). As the Court of Appeals stated in Bloodsworth : [w]e 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); ²⁸ Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830, 842 (1980). (Emphasis in original.) Id. at 167 , 512 A.2d 1056 . On July 25, 1984, police discovered the partially nude body of nine year old Dawn Hamilton in a wooded area near Golden Ring Mall in eastern Baltimore County.

The victim was found lying on her stomach with an eight inch stick protruding from her vagina. Near the victim’s head was found a large piece of concrete with a possible blood stain. The victim’s skull was “fractured” and “depressed” and her scalp had “two tears” with a “very rough edge”. The victim’s neck had a “patterned abrasion”.

The opinion of the medical examiner, Dr. Dennis Smyth was that the death was a homicide and “was a result of blunt trauma to the head and strangulation.” On the morning of the murder, ten year old Christian Shipley and seven year old Jackie Poling were fishing at a pond near the scene. Christian testified that after a few hours, a man came by and Jackie showed him a turtle he had caught. Shortly thereafter, Dawn came by and asked the two boys to help her look for her cousin Lisa. The boys refused and resumed their fishing.

The man, however, agreed to help Dawn and the two walked off together. After Dawn’s body was found, Christian assisted police in the production of a composite likeness of the man. Christian also picked Bloodsworth from a photographic array as the man he saw walk off with Dawn. Christian testified that at a police line-up, held on August 13, 1984, he recognized the man in the sixth position as the man who went into the woods with Dawn, but was afraid to tell the police.

He made no identification at that time. Nonetheless, one of the investigating police officers, Detective Robert Capel, testified that immediately after the lineup, Christian told him that he “knew all the time that it was number six but he didn’t want the man to hear his voice because the man could tell it was him because it was a little kid’s voice.” Christian also made an in-court identification of Bloods-worth. ²⁹ Although he could not remember the exact day or year, Jackie Poling testified that he remembered going fishing with Christian Shipley on a day when he caught a turtle and that a man stopped to talk with him about the turtle. Jackie testified that Dawn came by and asked for help in finding her cousin and that, after he and Christian refused to help her, the man told Dawn he would help her look for her cousin and the two “walked off into the woods.” He was unable to make an in-court identification of the man he saw at the pond. When Jackie attended a line-up on August 13, 1984, he identified the man in the third position, not the appellant who was in the sixth position.

After the line-up, Jackie, Christian and their mothers were taken to their homes in a police car. There is conflicting testimony regarding when Jackie informed his mother that the man he saw walk off with Dawn was “number six.” Jackie’s mother, Denise Poling, testified that he told her it was number six after the line-up but before they left the Towson police station. She acknowledged, however, that she did not inform any of the police officers at the station that Jackie had recanted his earlier identification and was now claiming that the man who walked off with Dawn had been number six. She testified further that although on the way home from the police station she discussed with Christian’s mother the fact that Jackie had told her he had been scared and had identified the wrong man in the line-up, she did not mention that fact to the police officer who was driving the patrol car.

Jackie, on the other hand, testified that he did not tell his mother about his misidentification until after they had been returned home from the line-up. It is undisputed, however, that Mrs. Poling did not tell the police what Jackie had told her until September 4, 1984, almost three weeks after the line-up. Upon receiving this information from Mrs. Poling, an officer went to the Poling home that evening and took a statement from Jackie which contained the above information. Donna Ferguson testified that she saw the victim talking with a man near the woods at approximately 10:30 a.m. on ³⁰ the day of the murder.

At a police line-up, Ms. Ferguson identified Bloodsworth as the man she saw with the victim. Ms. Ferguson also made an in-court identification of Bloods-worth. James Keller testified that he was driving down Fontana Lane, near the scene of the murder, at approximately 6:30 a.m. when he saw a man standing by the side of the road. From both a photo array and a police line-up, Keller identified Bloodsworth as the man he saw that day.

Soon after the murder, Bloodsworth’s wife, Wanda, filed a missing person’s report concerning Bloodsworth. Based on information obtained from that report, Detective Capel interviewed Bloodsworth in Cambridge on August 8, 1984, concerning his activities on the day of the murder. Detective Capel testified that Bloodsworth “had a hard time remembering his exact whereabouts,” but that Bloodsworth said he had never been to the area near the murder scene. The detective testified that Bloodsworth told him that after picking up his paycheck, he left Baltimore on August 3, 1984, and took a bus to Cambridge.

Prior to concluding the interview, Detective Capel took two photographs of Bloods-worth. Detective Capel testified that he placed Bloodsworth’s photograph in a photo array and showed the array to Jackie Poling and Christian Shipley. Christian Shipley identified Bloodsworth, but Jackie Poling was unable to make a positive identification. Based upon Christian’s positive identification, Detective Capel obtained an arrest warrant for Bloodsworth, returned to Cambridge on August 9, 1984, arrested Bloodsworth and interviewed him a second time.

The detective testified that he once again asked Bloods-worth about his activities on the day of the murder, July 25, 1984. He testified that Bloodsworth was unsure of his precise whereabouts, but that he was sure he had never been to the area where the victim was murdered. Detective Capel testified that he asked the defendant why he was going around telling people in Cambridge about a bloody rock when only a few ³¹ policemen and the killer knew about a bloody rock and he said that he didn’t know why. He denied it at first and then stated he just didn’t know why he did it.

And at that point he said that I didn’t kill that child, only somebody sick would hurt a child. Tina Christopher testified that she had a conversation 2 with Bloodsworth in Cambridge: He was talking about this little girl. I thought it was his daughter, so I didn’t really pay too much attention to him, but he described what this little girl was supposed to have been wearing and things that went on, and he said that him and that other guy was on this beach and this girl come up to him and asked him to help her, and this other guy was supposed to took her off somewheres [sic]. Q Did he say who this other guy was?

A No, I asked him that. I know he heard me because he looked up at me a couple of times but he never did answer who he was. Q And how many times did he talk about this little girl? A Once, and then he left and he come back and he started talking about her again, saying they think I did it. [Defense Counsel]: Pardon?

I can’t hear you. A He left once and then come back and said the police had questioned him and he said that they think I done it. And I don’t know what he meant by that. Q Now, when you were talking with the defendant, how was he acting?

A He, uhm, it is hard to explain. He acted like something was wrong with him. Really wrong. Q Now, during your conversation with the defendant did he ever make any mention of a rock, do you recall? ³² A No, I don’t. 3 Tina Furbush testified that in August of 1984, she had a conversation with Bloodsworth in Cambridge in which Bloodsworth said, “he was a suspect in the rape and the murder of the little girl in Baltimore.” Ms. Furbush testified that Bloodsworth also “talked about this guy that, you know, raped this little girl and the things that, something about some bloody rock and some underwear that was down at the police station that was supposed to scare him.” 4 Ms. Furbush also testified that Bloodsworth told her the little girl was “in some wooded area by some water” and that “the little girl had asked to find, for him to help to find the friend, her friend, and I guess that’s where he went and helped her find her friend.” Ms. Furbush added further that Bloodsworth “didn’t say he heard it from the police.” Rose Carson testified that in August of 1984, Bloods-worth came to Cambridge and asked if he could spend the night in her home.

Bloodsworth said that on the next day “he would go admit himself to the State Hospital.” 5 Ms. Carson testified that Bloodsworth told her, “I have done something really terrible. I am afraid that me and my wife won’t get back together because of it____” Ms. Carson also testified that Bloodsworth said he was a suspect in the rape and murder of a little girl. This conversation took place on a Sunday (probably August 5, 1984, the Sunday before Bloodsworth’s arrest). Donna Hollywood testified that she owned a company called “Harbor to Harbor” in Baltimore County, near Essex. ³³ In July, 1984, Bloodsworth worked at Harbor to Harbor for “about four weeks”.

Ms. Hollywood testified that on August 3, 1984, Bloodsworth was due to be at work at ten o’clock that day and he came in around maybe 10:30, quarter of eleven, into my office. And he said he was very ill and he looked very ill. He, I mean, very, he was very, very sick looking and he was sweating and white. And he said that he had the flu and that he wanted to know if I would give him his paycheck because he wanted to go, he had to meet his father downtown to go to a doctor because he was that sick.

And so I went into the other office, and I gave him his paycheck and I told him that he looked so sick that he shouldn’t go downtown. In challenging the sufficiency of the evidence Bloods-worth argues that: [although it is clear that the victim was murdered, it is also clear that Appellant’s convictions are founded upon nothing but exceedingly suspect identification evidence of him as a person seen with the child four hours before her body was discovered. This evidence cannot form the basis for a rational finding of guilt beyond a reasonable doubt. (Emphasis in original.) It is settled, however, that “it is the province of the jury as fact finder, not the trial judge or an appellate court, to weigh the credibility of testimony and determine the issue of guilt or innocence.” Barnes v. State, 57 Md.App. 50, 56 , 468 A.2d 1040 , cert. denied, 299 Md. 655 , 474 A.2d 1344 (1984).

We hold that the evidence reported above was sufficient for a rational fact finder to have found Bloods-worth guilty beyond a reasonable doubt of the crimes for which he was convicted.

II

Admission of Testimony From First Trial Bloodsworth argues that it was improper for the court to admit testimony from his first trial, because it was ³⁴ not proper rebuttal evidence and because it was irrelevant. 6 In Henze v. State, 154 Md. 332, 347 , 140 A. 218 (1928), the Court said: The admissibility of the evidence given at a former trial depends upon the question whether or not it was voluntary. To be admissible it must be voluntary, and where there is no evidence to the contrary, it will be presumed that the evidence so given was voluntary. The defendant at the former trial went upon the stand of his own volition, and the evidence there given is, we think, admissible in this case. Bloodsworth does not argue, and the record does not indicate, that he testified at his first trial involuntarily.

Accordingly, the State was free to use his former testimony in the later proceeding. See also Harrison v. United States, 392 U.S. 219, 222 , 88 S.Ct. 2008, 2010 , 20 L.Ed.2d 247 (1968); White v. State, 23 Md.App. 151, 159 , 326 A.2d 219 (1974), cert. denied, 273 Md. 723 (1975); Edmonds v. United States, 273 F.2d 108, 112-113 (D.C.Cir.1959); Ayres v. United States, 193 F.2d 739, 740 (5th Cir.1952). Rose Carson had testified that Bloodsworth told her, “I have done something really terrible.” On cross-examination, Ms. Carson testified that she had “assumed” that in that statement Bloodsworth referred to certain marital problems with his wife. Douglas Orr, a defense witness, testified that he and Bloodsworth had a conversation, in Baltimore, on a Friday in early August, 1984, (probably August 3) approximately one week after Dawn Hamilton’s murder. 7 Bloodsworth, who looked “sick” and “depressed”, told Orr that the “terrible thing” Bloodsworth had done was ³⁵ that “he left his wife and quit his job.” 8 Later, over objection, the State was allowed to present, as rebuttal evidence, Bloodsworth’s testimony from his first trial.

At that trial he testified that he told Birdie Plutschak, his mother-in-law, that the “terrible thing” he had done was his failure to take his wife, Wanda, out “to get a taco salad” and “pay these bills”. In surrebuttal, during the second trial, Birdie Plutschak, a defense witness, testified that Bloodsworth told her that the “terrible thing” he had done was that “he had stayed out all night, spent his paycheck and had broke a promise to Wanda to take her out to dinner” and that he had quit his job and did not intend to go home. Addressing Bloodsworth’s relevancy argument first, it is clear that, within the context of the foregoing, the “terrible thing” was relevant and that Bloodsworth’s former testimony was also relevant as to what he said the “terrible thing” was. “Evidence is relevant if it has any tendency to make existence of a material fact more probable or less probable than it would be without the evidence. A material fact is a fact that is of legal consequence to the determinative issues of the case.” McClain, Maryland Evidence, § 401.1 at 261.

In Farley v. State, 3 Md.App. 584, 587 , 240 A.2d 296 (1968), we said: Evidence need not be positively connected with the accused or the crime in order to render it admissible where there is a probability of its connection with the accused or the crime____ See generally Kennedy v. Crouch, 191 Md. 580, 585 , 62 A.2d 582 (1948) (evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them); Spriggs v. State, 226 Md. 50, 52 , 171 A.2d 715 (1961) ³⁶ (a probability of connection of proffered evidence with a crime is enough to make it admissible, its weight being for the trier of fact to evaluate); Gray v. State, 10 Md.App. 478, 487 , 271 A.2d 390 (1970), cert. denied, 261 Md. 725 (1971) (real test of admissibility is the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue should be admitted). Bloodsworth’s second and primary contention is that his former testimony was not proper rebuttal evidence. In State v. Hepple, 279 Md. 265, 270 , 368 A.2d 445 (1977), the Court set forth the general rule regarding rebuttal evidence: Rebuttal evidence “includes any competent evidence which explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the defense.” Mayson v. State, 238 Md. 283, 289 , 208 A.2d 599, 602 (1965); Lane v. State, 226 Md. 81, 90 , 172 A.2d 400, 404 (1961), cert. denied, 368 U.S. 993 [ 82 S.Ct. 611 , 7 L.Ed.2d 529 ] (1962). Our cases are clear that the question of what constitutes rebuttal testimony rests within the sound discretion of the trial court, Mayson v. State, supra [238 Md.] at 289 [ 208 A.2d at 602 ]; Lane v. State, supra [226 Md.] at 90 [ 172 A.2d at 404 ], and that the court’s ruling should be reversed only where shown to be both “manifestly wrong and substantially injurious.” Mayson v. State, supra [238 Md.] at 289 [ 208 A.2d 602 ]; Kaefer v. State, 143 Md. 151, 160 , 122 A. 30, 33 (1923); 3 J. Poe, Pleading and Practice § 287 (6th ed.

H. Sachs 1975). [Brackets in original.] Bloodsworth argues that what he “may have told someone else on some other occasion does nothing to explain or contradict Mr. Orr’s testimony.” We disagree. He offered Mr. Orr’s testimony to explain what the “terrible thing” was. On rebuttal, the State offered Bloodsworth’s own testimony for this same purpose. This was proper rebuttal evidence.

See generally Mays v. State, 283 Md. 548, 553 , 391 A.2d 429 (1978) (evidence is proper as rebuttal if it ³⁷ explains, replies to, or contradicts any new evidence presented by the accused).

III

Suppression of Exculpatory Evidence and IV. Denial of Motion for New Trial A. Background Bloodsworth argues that the State violated his right to a fair trial by suppressing exculpatory evidence and that the trial court erred in failing to grant him a new trial. The same evidence forms the basis for both of these contentions. On March 28, 1985, several days after Bloodsworth had been tried, convicted and sentenced to death in Bloodsworth I, Judge Hinkel, the trial judge, received a telephone call from a psychiatrist, Dr. Gene Ostrom, who is the Director of the Eastern Regional Mental Health Center.

Judge Hinkel promptly notified the Baltimore County Police Department of the call. It was not until March 12, 1987, almost two years later, that the State notified Bloodsworth of the existence and substance of Dr. Ostrom’s call to Judge Hinkel. 9 The following is the relevant portion of the State’s letter to counsel for Bloodsworth: This is also to inform you that after trial on March 28, 1985 Judge Hinkel received a phone call from a Gene F. Ostrom, Director of the Eastern Regional Mental Health Center, who told Judge Hinkel that on the same day as the murder David M. Rehill, d.o.b. 11/16/55,1013 Cherlyn Road, 21221, came into the office at 3:30 p.m. and said he had done a terrible thing. Dr. Ostrom believed Rehill ³⁸ looked like the composite made in this case. According to Dr. Ostrom, Rehill had committed prior acts of violence and had a history of alcohol and drug abuse.

Rehill had been known to the clinic for seven (7) years. Dr. Ostrom felt he was capable of this crime. The State included in its letter to counsel a photostated copy of a picture of Rehill and a copy of the police interview with Rehill. The following is the relevant portions of the police interview: [We] advised Mr. Rehill that we were the investigators involved in the murder of Dawn Hamilton and we had been informed that Mr. Rehill resembled the composit [sic] which was made of the suspect.

Mr. Rehill did in fact resemble the composit [sic] but was only 5'8" and one hundred and eighty pounds and the eye witness stated that the suspect was well over six feet and two hundred pounds and Mr. Rehill could not possibly meet these requirements. Mr. Rehill stated that he did in fact have an appointment at the Eastern Regional Health Center and it would always be in the late afternoon as he would not miss work to go to the appointments. Mr. Rehill further advised that his reason for seeing the doctor was over his drinking problem and driving. Mr. Rehill stated that he was working at several locations then due to the fact he was an apprentice in the Ironworkers Union and they would send him to several places to work, Mr. Rehill could not be sure as to the exact location he was working but stated he would try to find out and get back to the undersigned.

The undersigned has not seen or heard from Mr. Rehill since the meeting in the attorney’s office and the undersigned and Det. Capel have made numerous attempts to contact Mr. Rehill. The detectives assigned to this case feel that Mr. Rehill does not meet the description given by the witnesses in this case and could not have even been put in the lineup with the other suspects. Mr. Rehill allowed the undersigned to take a photograph of him while we were in the office of Mr. Psoras. [Counsel for Rehill]. ³⁹ On March 24, 1987, two weeks after the notification, Bloodsworth’s trial began.

Bloodsworth concedes that he waited “until after trial to investigate Rehill — ” On April 22, 1987, after Bloodsworth had been tried and convicted but not yet sentenced, he moved for a new trial but he did not base his motion on the Rehill issue. The trial court denied the motion. It was not until June 12, 1987, the date set for sentencing, that Bloodsworth moved for a new trial based on “newly discovered evidence”; the Rehill evidence he had been supplied with before trial. 10 At this second hearing, David Rehill testified that he had previously received treatment at the Eastern Regional Medical Center. Based on Rehill’s assertion of a privileged communication between himself and his psychiatrist, the trial court upheld his refusal to answer questions with reference to his activities on July 25, 1984, the date of the murder. 11 Dr. Ostrom testified that Rehill made an unscheduled visit to the health center 12 on July 25, 1984 between 12:30 and 1:30 p.m.

After waiting several hours, social worker Frances Marks saw Rehill. Ms. Marks testified that Rehill was “calm” and “oriented” and that he had come to talk about “a personal relationship” he had with a “little girl”. ⁴⁰ Ms. Marks did not recall seeing any scratches or blood on Rehill that day. Beverly Raymond, a secretary at the health center, remembered seeing Rehill on the day of the murder and she remembered that he had fresh scratches on the right side of his face. The next day, Ms. Raymond told Ms. Marks that a composite of the suspect which she saw on a newscast “looked like Mr. Rehill.” Sally Lysakoski, another secretary at the health center, testified that she saw Rehill on the day of the murder and that he appeared “calm and quiet” and she did not notice any scratches on his face.

The trial court offered the following comment on the manner in which the Rehill matter was handled by the State: We are not talking about every blond man in Baltimore County. We are talking about a blond man who, according to information from a Doctor Ostrom, came into the medical clinic, which is approximately ten minutes from the location of this horrible crime, on the day of the crime, without an appointment, according to a proffer of the witnesses’ testimony, with scratches on his face and arms. Someone who is, as I look at him, fitting the general description of the man who was last seen with the victim in this case, and whom the police investigate, never even put in a lineup according to what I have before me, because they concluded that he didn’t fit the general description given by the two boys who last saw the little girl before she disappeared. Now, I look at that man and I look at that defendant, and to conclude conclusively that they do not look alike, sufficiently to at least put him in a lineup, is surprising if not more than surprising to this judge.

I remember the eyes testified to by the little boy. I look at the defendant and I look at Mr. Rehill. I look at the size testified. The blond hair testified.

Quite frankly, Mr. Pulver [Assistant State’s Attorney], it gives me pause. For the police to conclude on their own that this information did not even warrant a lineup is shocking to me. (Bracketed material added.) ⁴¹ Nevertheless, the trial court denied Bloodsworth’s motion for a new trial on the basis that the evidence presented was not “newly discovered” and because Bloodsworth had failed in pursuing the David Rehill issue with “due diligence”. In regard to the State’s delay in disclosing the Rehill information (twelve days before trial) the court noted, “[t]his court was considerate of defense motions in this case with respect to discovery and would have been equally considerate of any requests for continuance in advance of this trial____” B. Suppression Under Brady Bloodsworth argues that the State’s “belated disclosure” of the information regarding David Rehill constituted a “suppression of ‘material evidence exculpatory to an accused [and] is a violation of due process.’ ” Bloodsworth I, 307 Md. at 175 , 512 A.2d 1056 , quoting Brady v. State, 226 Md. 422, 427 , 174 A.2d 167 (1961), aff'd, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).

Bloodsworth argues that “the delay in disclosing the material is so egregious as to give this Court grounds for dismissing the charges against appellant and barring the State from further prosecution of the case against him.” Bloodsworth also argues that the State violated Rule 4-263(e) 13 in failing to disclose the information concerning Rehill in a timely fashion. In response, the State argues that the issue of the timeliness of the State’s disclosure under Rule 4-263(e) was not argued to the trial court and was not preserved for our review under Rule 1085. We agree. We can find no indication that the timeliness issue was either argued or ⁴² decided by the trial court.

We hold that the issue was not preserved for our review under Rule 1085. 14 The State argues that its disclosure of the Rehill matter, albeit 12 days before trial, was not a suppression of evidence under Brady v. State, supra. Given the parties respective arguments and the undisputed facts, the issue, as a matter of constitutional law under Brady , involves the length of the State’s delay in making the mandatory disclosure of the Rehill evidence and whether that delay from March 28, 1985, until March 12, 1987, twelve days before trial, amounted to a violation of Bloodsworth’s due process right to a fair trial. 15 Bloodsworth concedes that he could have asked the trial court for a postponement to allow for his further investigation into the Rehill matter but that he chose not to do so. Bloodsworth does not cite, and our independent research has failed to uncover, a case which holds that a disclosure by the State or by the prosecuting authority of Brady material very near the time of trial constitutes a “suppression”. E.G. Tobias v. State, 37 Md. App. 605, 617-634 , 378 A.2d 698 , cert. denied, 281 Md. 745 (1977); Green v. State, 25 Md.App. 679, 699-703, 337 A.2d 729 , cert. denied, 275 Md. 749 (1975); 2 Wharton’s Criminal Procedure § 386 (C. Torcia, 12th ed. 1975 and 1987 Cum.Supp.); Annotation, Withholding or Suppression of Evidence by Prosecution in Criminal Case as Vitiating Conviction, 34 A.L.R.3d 16 (1970 and 1987 Supp.); The Prosecutor’s Constitutional Duty to Reveal Evidence to the De ⁴³ fendant, 74 Yale L.J. 136 (1964). 16 We hold that after the State’s disclosure, Bloodsworth’s failure to seek a postponement, at a time when he knew or should have known about the importance of the Rehill matter to his defense, amounts to a waiver of any due process complaint which Bloods-worth may have had.

C. “Newly Discovered Evidence” Bloodsworth makes a three pronged attack on the trial court’s denial of his second motion for a new trial. First, Bloodsworth argues that the trial court failed to “recognize, much less exercise, the discretion vested in the trial court to grant a motion for new trial” under Rule 4-331. 17 Second, he argues that the trial court erred in ⁴⁴ finding a lack of due