Byrd v. State

Dale K. Byrd v. State of Maryland, No. 4, September Term, 2020 CRIMINAL LAW – DISCOVERY Prior to a defendant entering a pretrial guilty plea, the State is under no constitutional obligation to provide a defendant with evidence that could be used to impeach a State’s witness. CRIMINAL LAW – DISCOVERY The failure by the State to provide evidence to the defendant, prior to pleading guilty, that could be used to impeach a State’s witness does not constitute a misrepresentation by the State regarding the credibility of that witness under Brady v. United States. Circuit Court for Baltimore City Case Nos. 110085017, 110235023 Argued: October 5, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 2020 DALE K. BYRD v. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth Biran JJ. Opinion by Barbera, C.J. Filed: November 20, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-11-20 10:20-05:00 Suzanne C. Johnson, Clerk In March 2011, Petitioner, Dale K. Byrd, pled guilty at a hearing in the Circuit Court for Baltimore City to having committed, in two separate cases, the crime of possession of heroin with intent to distribute it. Petitioner was sentenced to concurrent sentences of twelve years’ incarceration, all but four years suspended, and three years’ probation. In 2018, upon completion of the sentences and probation, Petitioner filed in the Circuit Court for Baltimore City a petition for issuance of a writ of error coram nobis. The circuit court denied the petition.

The Court of Special Appeals affirmed the decision of the circuit court. Petitioner now turns to this Court for the coram nobis relief he heretofore has been unable to obtain. He argues that the State failed to disclose to him, prior to his entry of the two guilty pleas, information relating to alleged misconduct of several of the officers involved in the arrests that prompted the subsequent charges and pleas. We are asked to determine whether the nondisclosure of that evidence of misconduct—which related not to the officers’ actions in Petitioner’s arrests but instead to their conduct in other cases—is sufficient to render the pleas involuntary.1 Petitioner contends that the nondisclosure of the officers’ misconduct constitutes a suppression of impeachment evidence under Brady v. Maryland, 373 U.S. 83 (1963), and an implicit misrepresentation under Brady v. United States, 397 U.S. 742 (1970).

We hold, first, that the Supreme Court’s holding in United States v. Ruiz, 536 U.S. 622 (2002) establishes that the right to impeachment evidence under Brady v. Maryland is exclusively 1 As the Supreme Court has done, for the purposes of a guilty plea we will use the term voluntary as meaning intelligent, knowing, sufficiently aware, and free from coercion. See, e.g., United States v. Ruiz, 536 U.S. 622, 629 (2002). a trial right. Thus, the State was under no obligation to disclose the potential evidence of misconduct to Petitioner prior to trial. We also hold that the nondisclosure did not constitute a misrepresentation in violation of Brady v. United States, as the State made no representation to Petitioner regarding the credibility of the officers at issue, and the alleged officer misconduct bore no relation to the charges to which Petitioner pled guilty.

Therefore, the nondisclosure of the information did not render Petitioner’s guilty pleas involuntary. Consequently, we affirm the judgment of the Court of Special Appeals upholding the circuit court’s denial of coram nobis relief. I. Facts and Procedural History The dispositive facts in this case are not in dispute. On March 11, 2011, Petitioner pled guilty in the two separate cases, noted above, to possession of heroin with the intent to distribute.

As to the first case, No. 110085017, the State proffered the following facts in support of the plea. On March 19, 2010, between 10:00 a.m. and 10:30 a.m., several Baltimore City police officers, including Officer Daniel Hersl, observed the 1700 block of Darley Avenue in Baltimore City from a covert location. The officers observed Petitioner standing on the porch of 1742 Darley Avenue, a vacant dwelling, when several unknown males approached him. Following a conversation between Petitioner and the unknown individuals, Petitioner retrieved small objects from beneath the molding cap of a pole on the porch, which he 2 exchanged with those individuals for U.S. currency.

The officers suspected that the objects contained a controlled dangerous substance. After several transactions, Petitioner walked across the street and entered the vacant dwelling at 1749 Darley Avenue. After approximately one minute, the officers observed him return to 1742 Darley Avenue and place several items under the molding cap. Suspecting that Petitioner was using 1749 Darley Avenue as a stash house, the officers placed him under arrest.

The officers then recovered three clear gel caps of suspected heroin from beneath the molding cap at 1742 Darley Avenue, in addition to seventy-five gel caps of suspected heroin from the living room of 1749 Darley Avenue. The evidence was submitted to the Evidence Control Unit where it tested positive as heroin, a Schedule I narcotic. The State indicated that, if called to testify at trial, the officers would identify Petitioner and state that the amount of heroin and the circumstances under which it was recovered indicated that it was not for personal use and that Petitioner intended to distribute it. The State then proffered the following facts in support of Petitioner’s guilty plea in the second case, No. 110235023.

On August 9, 2010, at 6:50 p.m., Baltimore City officers received information from a confidential informant that a male was selling narcotics from a vacant house at 1749 Darley Avenue. Officer Thomas Wilson went to the 1700 block of Darley Avenue and observed Petitioner, matching the description given by the informant, speaking with an unknown individual. Petitioner then went to the porch of 1749 Darley Avenue and retrieved suspected narcotics from the front doorframe, which he then handed 3 to the unknown individual. Officer Wilson arrested Petitioner and recovered $356 from his person.

He also retrieved one gel cap from the doorframe, which later tested positive as containing heroin. The State indicated that if called to testify at trial, the officer would identify Petitioner and state that the circumstances under which the heroin was recovered indicated that it was not for personal use and that Petitioner intended to distribute it. In both cases Petitioner affirmed under oath to the court that the facts as proffered by the State were true. The court found there to be a factual basis in both cases and accepted Petitioner’s pleas.

The court then sentenced Petitioner to twelve years of incarceration on both counts to run concurrently, with all but four years suspended, in addition to three years of probation. Undisclosed Misconduct of Officer Hersl and Officer Wilson The first case In relation to the arrest on March 19, 2010, Officer Daniel Hersl was one of the observing officers and swore out the Statement of Charges, so he likely would have been called to testify had the case gone to trial. Petitioner now claims that there were Internal Investigations Division records that impugned Officer Hersl’s credibility that were not provided to Petitioner prior to his pleas. A Baltimore Sun article2 from 2018, which Petitioner introduced as an exhibit at his coram nobis hearing, stated that Hersl had 2 Justin Fenton, Baltimore Police Sergeant Named by Witness in Corruption Trial Was Cited for Misconduct in Past, BALT.

SUN (Feb. 9, 2018), https://www.baltimoresun.com/news/crime/bs-md-ci-wilson-termination-20180202- story.html [https://perma.cc/U95V-AB45]. 4 “amassed dozens of complaints” that resulted in settlements in three civil suits against him. The Sun article further indicated that Officer Hersl, a former member of the infamous Baltimore Gun Trace Task Force, was also facing trial for his involvement in a criminal racketeering enterprise. At the coram nobis hearing, Petitioner also submitted several orders from unrelated cases in which three judges3 all independently determined, after in camera review of Officer Hersl’s internal investigations records, that there was information in the records that should have been discoverable to other criminal defendants. However, the State had not informed Petitioner of any of this prior to his guilty plea in the first case against him.4 The second case In relation to the arrest on August 9, 2010, Officer Wilson was the sole observing, arresting, and submitting officer.

He also swore out the Statement of Charges. Therefore, Officer Wilson likely would have been the only officer to testify for the State had the case gone to trial. The Baltimore Sun article Petitioner relied upon during his coram nobis hearing also contained allegations relating to Officer Wilson. The article explained that the Baltimore Police Department’s Internal Investigations Division recommended that Officer Wilson be terminated in 2005 after he allegedly entered a home without a warrant, 3 The orders were issued by Judge Nugent of the Circuit Court for Baltimore City, Judge Hollander of the United States District Court for the District of Maryland, and Judge Prevas, formerly of the Circuit Court for Baltimore City. 4 Although Officer Hersl was only indicted for racketeering in 2017—several years after Petitioner’s guilty pleas—Petitioner’s coram nobis counsel argued that it is likely that Officer Hersl had been engaging in that conduct for some time prior to the charges. 5 obtained a warrant afterwards, and then falsified paperwork to suggest that the warrant had been obtained prior to entering the home.

The article stated that the police trial board subsequently found him guilty of misconduct and neglect of duty, recommended that he be suspended for fifteen days without pay, and issued a “severe letter of reprimand.” The article also indicated that in 2003 a federal judge5 had accused Officer Wilson of lying in court. The State likewise had not informed Petitioner of any of Officer Wilson’s alleged misconduct prior to Petitioner’s guilty plea in the second case against him. For purposes of evaluating Petitioner’s arguments, and in the interest of judicial economy, we will assume that some or all of the allegations of police misconduct against Officers Hersl and Wilson are detailed in the officers’ internal investigations records and were valid and well-founded.6 We do note, however, that neither the circuit court nor the Court of Special Appeals made any such express findings. Coram Nobis Proceedings On January 25, 2018, after completing his sentence and period of probation, Petitioner filed a petition for writ of error coram nobis with respect to both convictions in the Circuit Court for Baltimore City.

Precipitating this petition is his involvement in a criminal matter now pending in the United States District Court for the District of 5 Coram nobis counsel identified the federal judge as Judge Andre Davis, then of the United States District Court for the District of Maryland. Additional evidence substantiating Petitioner’s claims as to the contents of the files 6 would not disturb our conclusion. Therefore, we decline Petitioner’s request for a limited remand under Maryland Rule 8-604 to further develop the record. 6 Maryland, in which Petitioner has pled guilty but has yet to receive his sentence. His plea agreement in that case indicates that the government will suggest a sentence of between ten and fifteen years of incarceration at the sentencing hearing.

According to Petitioner, if he is successful in vacating the two pleas at issue here, the federal court may be more likely to sentence him to the minimum of ten years. Petitioner argued in his coram nobis petition that the undisclosed evidence of police misconduct detailed in the Baltimore Sun article and suggested by the three judges’ findings regarding Officer Hersl’s internal investigations files rendered his waiver of his right to trial involuntary and constituted a violation of Brady v. Maryland. The State filed an answer to his petition on February 26, 2018. Petitioner then filed an amended petition on April 4, 2018.

That same day the circuit court held the coram nobis hearing. At the hearing, Petitioner testified that he would have considered the undisclosed information in relation to Officers Wilson and Hersl important and that had he known about it he would not have pled guilty to the charges. Petitioner did not, however, indicate that he was innocent of the charges. The State conceded that the potential for increased sentencing in the federal matter constituted a significant collateral consequence and that there were no other mechanisms by which Petitioner could challenge his guilty pleas.

The State did dispute, though, whether a constitutional or fundamental right was in question. After the hearing the parties submitted supplemental briefing. The circuit court denied Petitioner’s petition for writ of error coram nobis, finding that none of his constitutional or fundamental rights were violated. Petitioner then 7 appealed that denial to the Court of Special Appeals.

In a reported opinion, dated December 19, 2019, the Court of Special Appeals affirmed the circuit court’s denial of coram nobis relief.7 Byrd v. State, 243 Md. App. 616 (2019). We granted certiorari to determine whether the nondisclosure of the evidence of police misconduct constituted either a violation of the State’s disclosure obligations under Brady v. Maryland or a misrepresentation under Brady v. United States, thereby invalidating Petitioner’s guilty pleas.8 For reasons that follow, we answer those questions in the negative and affirm the judgment of the Court of Special Appeals. 7 The Court of Special Appeals initially issued an opinion dated November 1, 2019, also affirming the denial of relief. Petitioner then filed a motion for reconsideration. By way of order issued December 18, 2019, the Court of Special Appeals denied Petitioner’s motion for reconsideration, withdrew its November 1 opinion, and indicated that a new opinion would be filed forthwith. 8 Petitioner framed the issues in his petition for writ of certiorari as follows: 1.

Did the Court of Special Appeals err in holding that Petitioner’s guilty pleas were valid even though the State did not disclose material impeachment evidence about key police witnesses (including evidence of lying in federal court and falsifying a warrant)? a. Did the non-disclosure of the evidence violate the State’s constitutional discovery obligation under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny? b. Did the non-disclosure of the evidence constitute a misrepresentation by the State rendering the pleas invalid under Brady v. United States, 397 U.S. 742 (1972), and its progeny? We interpret the two sub-questions to be collectively exhaustive of how the first question could be resolved in favor of Petitioner in this case.

In other words, there is no residual due process or other constitutional or fundamental right at play here that is not likewise waived in the context of a guilty plea. See Boykin v. Alabama, 395 U.S. 238, 243 (1969) (enumerating the constitutional rights waived through a guilty plea). Therefore, we frame this appeal as primarily addressing only the two sub-issues. 8 II. Discussion “‘Because of the “extraordinary” nature’ of a coram nobis remedy, we review a court’s decision to grant or deny such a petition for abuse of discretion.” Hyman v. State, 463 Md. 656, 674 (2019) (quoting State v. Rich, 454 Md. 448 , 470–71 (2017)). “In determining abuse of discretion, however, an appellate court ‘should not disturb the coram nobis court’s factual findings unless they are clearly erroneous, while legal determinations shall be reviewed de novo.’” Id.

(quoting Rich, 454 Md. at 471 ). A petition for writ of error coram nobis is a common law means through which a person who has been convicted of a crime but is no longer incarcerated, on parole, or on probation can challenge the validity of the conviction based on an alleged error of fact or law. See generally Skok v. State, 361 Md. 52 (2000) (discussing the history of the writ and extending its application to errors of law). In order for a court to issue a writ of error coram nobis, the petitioner must establish that the following five conditions obtain: [1] “the grounds for challenging the criminal conviction must be of a constitutional, jurisdictional, or fundamental character”; [2] the petitioner has . . . overcome the [burden of the] “presumption of regularity” in the criminal case; [3] “the coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction”; [4] the issue must not be waived; and [5] there may be no other “statutory or common law remedy [ ] then available.” Hyman, 463 Md. at 672 (quoting State v. Smith, 443 Md. 572, 599 (2015)) (final alteration in original). 9 The only condition that the State disputes here is whether the grounds for challenging Petitioner’s guilty pleas and convictions in this case are of a constitutional or fundamental character.9 “A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)); see also Ruiz, 536 U.S. at 628–29 (“When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees.”) (citation omitted).

These important rights include defendants’ Fifth Amendment right not to be compelled to testify against themselves, in addition to their Sixth Amendment rights to a fair and impartial jury trial and to confront witnesses testifying against them. See Boykin, 395 U.S. at 243 . Thus, to the extent Petitioner can establish that his guilty pleas were not voluntary, he will have established that he was denied important constitutional rights and accordingly will have met his burden under the first prong of the coram nobis analysis as outlined above. A. Brady v. Maryland Brady v. Maryland and its progeny guarantee to a criminal defendant who stands trial the right to receive material exculpatory and impeachment evidence in the possession 9 Given our holding that Petitioner has not satisfied his burden as to the constitutional or fundamental character of his grounds for challenge, we need not engage in an independent analysis of any of the other necessary conditions for the issuance of a writ of error coram nobis. 10 of the State.

See Brady v. Maryland, 373 U.S. 83 ; Giglio v. United States, 405 U.S. 150 (1972). Petitioner argues that this authority entitled him to receive the undisclosed information relating to the police misconduct of Officers Hersl and Wilson prior to his guilty pleas. He contends that the undisclosed information indicates a lack of honesty and could have been used at trial to impeach the officers’ credibility. Given that he was deprived of this information, argues the Petitioner, his guilty pleas were not voluntary.

Unfortunately for Petitioner, the Supreme Court held eighteen years ago, in United States v. Ruiz, 536 U.S. 622 (2002), that the right to information under Brady v. Maryland is a trial right, and is accordingly waived along with the other constitutional guarantees that a defendant forgoes when waiving the right to trial. In Ruiz, immigration agents found 30 kilograms of marijuana in Ms. Ruiz’s luggage. Ruiz, 536 U.S. at 625 . Federal prosecutors presented her with a “fast track” plea bargain under which she would waive indictment, trial, and appeal in exchange for the government’s recommendation of a two-level downward sentencing departure.

Id. By accepting the plea, Ms. Ruiz also would have ‘“waiv[ed] [her] right’ to receive ‘impeachment information relating to any informants or other witnesses’ as well as the right to receive information supporting any affirmative defense [she would raise] if the case [went] to trial.” Id. (citation omitted). Ruiz refused to accept the plea on the basis of the last-mentioned waiver and was indicted for unlawful drug possession.

Id. She then pled guilty in the absence of any agreement with the government. Id. at 625–26. At the sentencing hearing she asked the court to grant her the two-level departure outlined in the proposed plea, but the court denied the departure.

Id. 11 at 626. Ruiz appealed her sentence, which the Ninth Circuit vacated, finding that the fast track plea’s waiver of the right to impeachment information was unconstitutional. Id. The Supreme Court reversed, holding that the Constitution does not “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 (citation omitted).

The Court cited three considerations undergirding this ruling. “First, impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’).” Id. at 629 (alteration in original). “Second, . . . this Court has found that the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances.” Id. at 630 (citations omitted). Rather, it “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. (citations omitted); see also Brady v. United States, 397 U.S. at 757 (“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.”). The third reason offered by the Ruiz Court was that the interests of due process, on balance, weighed against a requirement that the defendant receive all possible impeachment evidence in relation to the prosecution’s witnesses prior to trial.

Ruiz, 536 U.S. at 631–32. On the one hand, given that the fast track plea agreement at issue still required the prosecution to provide the defendant with evidence of factual innocence, the 12 value of also receiving impeachment evidence—which itself varies widely in importance— was minimal. Id. at 631. On the other hand was the weighty concern that “a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, 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 efficient administration of justice.” Id.

In an attempt to distinguish this case, Petitioner relies on Justice Thomas’s concurrence in Ruiz, which suggests that the holding of the majority opinion “turns in some part on the ‘degree of help’ such information would provide to the defendant at the plea stage, a distinction that is neither necessary nor accurate.” Id. at 633 (Thomas, J., concurring in the judgment) (internal citation omitted). Justice Thomas went on to state that “[t]o the extent that the Court is implicitly drawing a line based on a flawed characterization about the usefulness of certain types of information, I can only concur in the judgment.” Id. at 633–34. Thus, under Justice Thomas’s view, the majority opinion in Ruiz leaves open the possibility that some evidence may be so crucial as to imbue the defendant with a pretrial right thereto under Brady v. Maryland. Petitioner shares this view and argues that this is such a case, given that the officers “played instrumental roles in each of Mr. Byrd’s cases” and the undisclosed evidence “cut to the core of the officers’ veracity.” We do not read the Ruiz Court’s