Byrd v. State

HEADNOTES: Dale K. Byrd v. State of Maryland, No. 682, September Term, 2018 Opinion by Salmon, J. CRIMINAL LAW – DISCOVERY For Brady v. Maryland purposes, exculpatory evidence is evidence that goes to the heart of the defendant’s guilt or innocence, while impeachment evidence is that which has the potential to alter the jury’s assessment of the credibility of a significant prosecution witness. CRIMINAL – DISCOVERY Prior to a defendant entering a guilty plea, a prosecutor has no duty to tell a defendant or the defendant’s attorney about any evidence that would impeach a State’s witness. Circuit Court for Baltimore City Case Nos. 110085017, 110235023 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 682 September Term, 2018 ______________________________________ DALE K. BYRD v. STATE OF MARYLAND ______________________________________ Wright, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Salmon, J. ______________________________________ Filed: December 19, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-12-19 14:50-05:00 Suzanne C. Johnson, Clerk The appellant, Dale K. Byrd (“Byrd”), on March 11, 2011, pleaded guilty, in the Circuit Court for Baltimore City, to possession of heroin with the intent to distribute in two separate cases.

In the first case (No. 110085017), the State proffered to the plea judge that on March 19, 2010 Baltimore City police officers observed Byrd exchanging money for suspected drugs on the porch of a vacant house. Three gel caps of heroin were found on the porch of that house and seventy-five gel caps of heroin were found in another vacant house that Byrd was seen entering and exiting. In that case, Baltimore City Police Detective Daniel Hersl (“Hersl”) was one of the observing officers and was also the officer who swore out the statement of charges that were filed against Byrd. The second drug distribution case (No. 110235023) concerned Byrd’s distribution of drugs about five months after the first incident.

On that date, according to the State’s proffer at the plea hearing, Byrd was observed by Baltimore City Police officer Thomas Wilson, (“Wilson”),1 in the same block and at the same vacant house where Byrd had been seen exchanging money for suspected drugs in the first case. One gel cap of heroin was found on the porch of that house when it was searched. Byrd, pursuant to an ABA plea agreement, agreed to plead guilty to two counts of possession with intent to distribute heroin; the court, in turn, agreed to sentence him to concurrent sentences of twelve years incarceration, with all but four years suspended in lieu of three years probation. After Byrd was questioned by the plea judge to make sure 1 Officer Wilson was later promoted to Sergeant. that the guilty plea was knowingly and voluntarily entered, the court accepted the plea and sentenced Byrd in accordance with the plea agreement.

On January 25, 2018, after he had completed his sentence and probation in the aforementioned two cases, Byrd filed a petition for writ of error coram nobis. The State filed an answer to the petition after which Byrd filed an amended coram nobis petition. A hearing on Byrd’s amended petition was held on April 4, 2018. At the coram nobis hearing, the major issue in dispute was whether Byrd had been denied a constitutional or fundamental right when he pled guilty to the aforementioned two heroin distribution charges.

Byrd contended that there was such a denial because prior to the date that he entered the guilty pleas, the State failed to advise him of past dishonest conduct, in other cases, by Wilson and Hersl. At the coram nobis hearing, Byrd’s counsel introduced a February 9, 2018 Baltimore Sun article that stated that Wilson, in 2003, had given testimony in a federal case that the judge had not found to be credible. The newspaper article also related that in 2005, the Baltimore City Police Department’s Internal Affairs Division recommended that Wilson be fired for allegedly entering and searching a home without a warrant, then getting a warrant after the fact, and falsifying paperwork to suggest that the warrant had been obtained before the search occurred. Regarding that incident, according to the Baltimore Sun article, a trial board found Wilson guilty of misconduct and neglect of duty and recommended a fifteen-day suspension without pay. 2 In regard to Hersl, counsel for Byrd argued that in the officer’s internal affairs files there were findings, prior to Byrd’s 2011 plea, indicating that he had made one or more false statements.

The evidence in this regard was quite vague.2 Byrd, the only witness called at the coram nobis hearing, testified that his attorney did not “go over the [i]nternal [a]ffairs files” with him that concerned either Hersl or Wilson. He testified that he would have “found [it] significant” if his attorney had told him that “Wilson had [i]nternal [a]ffairs findings that related to dishonesty” or that Hersl “had sustained findings or negative findings for being dishonest or filing false paperwork[.]” He further testified that if he had known that Wilson and Hersl “both had honesty related findings or dishonesty findings” he would not have pled guilty on March 11, 2011. Byrd did not, however, claim that he was innocent of either of the charges to which he pled guilty. At the coram nobis hearing, Byrd’s lawyer argued that the contents of Wilson and Hersl’s personnel files and/or their internal affairs files, undermined their credibility and that the State was obligated to give his client such impeaching information prior to Byrd’s 2 Long after Byrd was convicted, Hersl was indicted and later convicted in federal court of being engaged in a criminal racketeering enterprise.

The Baltimore Sun article said that Hersl had “amassed dozens of complaints” that resulted in the payment by Baltimore City of judgments in three civil suits against him. Whether any of the complaints involved a dishonest act or acts, and, if so, whether the dishonest acts occurred before Byrd’s March 11, 2011 guilty pleas, is not shown in the record. The State, in its brief, argues that there was nothing whatsoever introduced into evidence at the coram nobis hearing that would show exactly what was in Hersl’s personnel file or in his internal affairs files that concerned Hersl’s honesty. The validity, vel non, of this argument is of no importance in this case because, even if we were to assume, arguendo, that, prior to the guilty plea, there was evidence in Hersl’s personnel or internal affair files that would reflect adversely on his credibility, the outcome of this case would not change. 3 guilty pleas.

Byrd’s counsel maintained that because the impeaching evidence was not divulged, his plea was not made knowingly, voluntarily, or intelligently. The State contended, citing United States v. Ruiz, 536 U.S. 622, 629 (2002), that the right to impeachment information is a trial right, and does not have any bearing on whether a plea is made knowingly, intelligently or voluntarily. After considering argument of counsel, Judge Charles H. Dorsey, III took the matter under advisement. On April 27, 2018, Judge Dorsey signed a “Memorandum Regarding Petition for Writ of Error Coram Nobis” in which he concluded that the case was controlled by United States v. Ruiz, which he interpreted as holding that the State, prior to the date that a defendant enters a guilty plea, is not required to disclose impeachment information to the defendant.

Accordingly, in an order also signed on April 27, 2018, Judge Dorsey denied Byrd’s petition for writ of error coram nobis. In this appeal, Byrd, asserts: The Circuit Court erred in denying the Petition for Writ of Error Coram Nobis, where the State, prior to appellant pleading guilty, did not disclose material information concerning key police witnesses. For the reasons set forth below, we shall affirm Judge Dorsey’s denial of Byrd’s petition for writ of error coram nobis. ANALYSIS A petitioner who files for coram nobis relief, must satisfy five conditions: [1] “‘the grounds for challenging the criminal conviction must be of a constitutional, jurisdictional, or fundamental character’”; [2] the petitioner has the burden to overcome the “‘presumption of regularity’” in the criminal case; [3] “‘the coram nobis petitioner must be suffering or facing significant 4 collateral consequences from the conviction’”[3]; [4] the issue must not be waived; and [5] there may be no other “‘statutory or common law remedy [ ] then available.’” Hyman v. State, 463 Md. 656, 672 (2019) (quoting State v. Smith, 443 Md. 572, 599 (2015)).

In this case we will presume, as Judge Dorsey did, that Byrd proved factors 2-5. The parties are at odds, however, as to whether Byrd satisfied factor 1. Byrd claims that factor 1 was satisfied inasmuch as his counsel proffered evidence that showed that the State, by withholding impeaching evidence concerning past dishonest acts by Wilson and Hersl, violated Byrd’s rights that were protected by the United States Constitution. Byrd relies primarily on Brady v. Maryland, 373 U.S. 83 (1963) and its progeny: Brady v. United States, 397 U.S. 742 (1970) and United States v. Fisher, 711 F.3d 460 (4th Cir. 2013).

Brady v. Maryland concerned John Brady, who was convicted by a jury of first- degree murder. The jury recommended that Brady receive the death penalty. 373 U.S. at 84 . At Brady’s trial, he admitted that he participated in the robbery of the murder victim but denied that he was the person who strangled and killed that victim. According to Brady’s trial testimony, the actual murder was committed by his accomplice, Boblit.

Id. 3 After Byrd completed his sentence in the subject cases, he was indicted in the United States District Court for Maryland for conspiracy to distribute more than five kilograms of cocaine. He pled guilty and entered into a plea agreement in which he would receive a sentence of a minimum of ten years but no more than fifteen years imprisonment. If Byrd could successfully convince the circuit court to grant him coram nobis relief and get the two convictions in the subject case set aside, it would markedly improve his chances of receiving a ten-year sentence in his pending federal case. 5 Prior to Brady’s trial, his counsel was shown several statements made to the police by Boblit. But the prosecutor did not give Brady’s counsel an unsigned statement by Boblit, dated July 9, 1958, in which Boblit admitted that he killed the victim.

Boblit’s murder trial took place after Brady’s conviction. At his trial, Boblit told the jury that the murder was committed by Brady. See Brady v. State, 222 Md. 442, 444 (1960). Brady filed a post-conviction action claiming that his due process rights were violated by the State when it withheld the July 9, 1958 statement from his lawyer.

Ultimately, the Maryland Court of Appeals reversed Brady’s death penalty sentence and remanded the case for a new sentencing hearing on the grounds that the State’s failure to provide Brady with Boblit’s July 9 statement constituted a violation of the due process clause of the Fourteenth Amendment. 373 U.S. at 85-86 . Because Brady had admitted at trial that he participated in the robbery that resulted in the victim’s death, he was granted a new trial as to sentencing only because the evidence that was withheld could not have affected the jury’s determination that Brady was guilty of first-degree murder of the felony murder variety. In Brady v. Maryland, the Supreme Court affirmed the Maryland Court of Appeals, saying: 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. Id. at 87 . 6 In interpreting Brady v. Maryland, it is important to remember that Brady dealt with what information must be given to the defendant to ensure a fair trial.

See United States v. Mathur, 624 F.3d 498, 506-07 (1st Cir. 2010) (“The animating principle of Brady is the avoidance of an unfair trial. It is, therefore, universally acknowledged that the right memorialized in Brady is a trial right.”) (quotation marks and citation omitted). In a series of cases that followed Brady v. Maryland, the Supreme Court broadened the scope of the State’s duty to provide the defendant, prior to trial, with impeaching and exculpatory information. In Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the Court held that the failure by the government to disclose evidence to the defense regardless of whether the defense requests the evidence violates the due process rights of a defendant where: (1) that evidence is “favorable to the accused, either because it is exculpatory, or because it is impeaching”; (2) the evidence was “suppressed by the state, either willfully or inadvertently”; and (3) “prejudice . . . ensued.” See also 6 Wayne R. LaFave, § 24.3(b), at 421 (4th ed. 2015).

For Brady v. Maryland purposes, exculpatory evidence is evidence that goes to the heart of the defendant’s guilt or innocence, while impeachment evidence is that which has the potential to alter the jury’s assessment of the credibility of a significant prosecution witness. See United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998). The case of Brady v. United States dealt with the issue of whether Robert Brady’s guilty plea was voluntary. 397 U.S. at 745 . Robert Brady was charged in 1959 with kidnapping in violation of 18 U.S.C. § 1201 (a).

Because the indictment alleged that the kidnapping victim was not liberated unharmed, Brady faced a possible death sentence if a jury recommended such a sentence. Id. at 743 . Under the statute, Brady would not face a 7 death penalty if he elected a judge trial. In other words, in order to ensure that he would not receive the death penalty, Brady would have to waive his right to a jury trial.

Id. at 745-46 . Brady, after learning that his co-defendant planned to plead guilty and was available to testify against him, elected to enter a guilty plea and was sentenced to 50 years imprisonment – later reduced to 30. Id. at 743-44 . Long after Brady’s guilty plea was accepted, the Supreme Court in United States v. Jackson, 390 U.S. 570, 581-85 (1968), ruled that section 1201(a) was constitutional except for the death penalty provision.

In regard to that penalty, the Supreme Court agreed with the trial court that the death penalty provision “imposes an impermissible burden upon the exercise of a constitutional right” because the death penalty applied only to those that elected to be tried by a jury, but not to those who elected a judge trial. Id. at 572 . Brady claimed that his guilty plea was not voluntary because the death penalty feature of § 1201(a) operated to cause him to plead guilty. More specifically, Brady contended that the Jackson decision required every guilty plea under that statute to be declared invalid, at least when the fear of death penalty is shown to have been a factor in entering the plea. 397 U.S. at 746 .

In Brady v. United States, the Court rejected that contention. Id. at 747 . In holding that Brady’s plea was “voluntary” the Court quoted with approval the standard of voluntariness of guilty pleas set forth in a dissenting opinion written by Judge Tuttle in Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957), where Judge Tuttle said: 8 [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes). 397 U.S. at 755 (emphasis added). In Brady v. United States, the Court went on to say: Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted.

Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.

Id. at 756-57 (emphasis added). As will be discussed infra, Byrd claims that his guilty plea was induced by a material misrepresentation because “the State implicitly held out [Wilson and Hersl] as credible witnesses who were untarnished by findings to the contrary.” We turn next to a discussion of United States v. Ruiz, upon which the State places primary reliance. Angela Ruiz was arrested after immigration agents found 30 kilograms 9 of marijuana in her luggage. 536 U.S. at 625 . Federal prosecutors offered Ms. Ruiz what was known as a “fast track” plea bargain, which required a defendant to waive indictment, trial and an appeal.

Id. In return, under such a bargain, ‘the [g]overnment agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence.” Id. In Ms. Ruiz’s case, such a departure would reduce her sentence range from 18 to 24 months to 12 to 18 months, i.e. a six month downward departure. Id.

The fast track plea bargain would have required Ms. Ruiz to waive “the right to receive impeachment information relating to any informants or other witnesses as well as the right to receive information supporting any affirmative defense” the defendant might have if the case went to trial. Id. Ms. Ruiz refused to agree to the last-mentioned waiver. As a result, the government withdrew its offer and indicted Ms. Ruiz for unlawful drug possession.

Later, despite the absence of any plea bargain agreement, Ms. Ruiz pleaded guilty to that charge. Id. at 625-26 . At sentencing, the Court imposed a standard Guideline sentence and rejected Ms. Ruiz’s request that she be granted the downward departure that the government would have recommended had she accepted the “fast track” agreement. Id. at 626 Ms. Ruiz appealed her sentence to the United States Court of Appeals for the Ninth Circuit.

That Court vacated Ms. Ruiz’s sentence on the grounds that, purportedly, the United States Constitution requires the government to make the same impeachment information available to the defendant prior to entering a guilty plea that they would have been required to make available if the defendant had gone to trial. Id. at 626 . In Ruiz, the major issue decided by the Supreme Court was “whether the Fifth and Sixth Amendments 10 require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose ‘impeachment information relating to any informants or other witnesses.’” Id. at 625 . The Court held “that the Constitution does not require that disclosure.” Id.

In Ruiz, Justice Breyer, speaking for the Court, gave three reasons for that holding. The first reason was that under Brady v. Maryland, the right to receive “exculpatory impeachment material [is] a right that the Constitution provides as part of its basic ‘fair trial’ guarantee.” Id. at 628 . By contrast, when a defendant pleads guilty, that defendant “foregoes not only a fair trial but also other accompanying constitutional guarantees.” Id. at 628-29 . The Court went on to say: In this case, the Ninth Circuit in effect held that a guilty plea is not “voluntary” (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that the prosecutors would have had to make had the defendant insisted upon a trial.

We must decide whether the Constitution requires that preguilty plea disclosure of impeachment information. We conclude that it does not. Id. at 629 . After explaining that “impeachment information is special in relation to the fairness of a trial and not in respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’),” Justice Breyer made a statement that Justice Thomas focused upon in his concurring opinion, which is discussed infra.

That statement by Justice Breyer was: It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant’s own independent 11 knowledge of the prosecution’s potential case—a matter that the Constitution does not require prosecutors to disclose. Id. at 630 (emphasis added). The second reason for the holding was that the Court could find no legal authority that would support the position of the Ninth Circuit.

Id. at 630 . To the contrary, the Court said that it had “found that the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor.” Id. (citing Brady v. United States, 397 U.S. at 757 , where the defendant’s guilty plea was upheld despite the fact that the defendant “misapprehended the quality of the State’s case.”). Additionally, the Court pointed out that the rule proposed by the Ninth Circuit, if adopted, “could seriously interfere with the Government’s interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the effective administration of justice.” Id. at 631.

A third reason for the holding was: [D]ue process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and