Campbell v. State

⁶⁴⁰ HARRELL, Judge. We granted certiorari in this case to determine whether a trial judge had jurisdiction to consider an out-of-time supplement to a timely filed motion for a new trial in a criminal matter, pursuant to Maryland Rule 4-331(2000), and, if so, whether the trial judge abused his discretion by denying the motion on the supplemental ground on its merits. We find that the trial judge did have authority to consider the pertinent supplement and that he properly denied the motion for a new trial. I. This underlying case arose from a shooting incident that occurred outside of a Kentucky Fried Chicken (KFC) restaurant in Prince George’s County.

One of the State’s witnesses, Oscar Veal, a self-confessed “hit man” who pled guilty in a federal court to seven counts of murder in aid of racketeering activities ( 18 U.S.C. § 1959 (a)(1) (1994)), and whose credibility the defendant sought to impeach both at trial and through newly discovered evidence, became the focus of defendant’s effort to gain a new trial. The fatal shooting occurred at approximately 11:15 p.m. on 2 February 1998. Doris Bryant testified at trial that she witnessed the shooting from the parking lot of her apartment building located near the KFC. She stated that a Chevy Suburban was parked in the parking lot of the KFC restaurant on Md. Route 202 in Cheverly, Maryland.

She described six principal actors at the scene of the shooting. One tall black man stood in the shadows of the parking lot fence with a “shiny object” in his hand, later confirmed to be a gun; a second black man, described by the witness as “chubby” and later confirmed to be one Walter Fleming, exited the passenger’s side of the Chevy truck and walked towards a phone booth; a third man, later alleged to be Campbell, walked from the street towards the passenger’s side of the truck; and, a fourth man was walking from the KFC to the driver’s side of the truck. Ms. Bryant heard a “pop” sound, followed by a ⁶⁴¹ fifth young man, in a crouching position, getting out of the Suburban from the rear passenger’s side. The exiting passenger started shooting a gun at the man standing at the phone booth.

Campbell, who was standing at the driver’s side of the Suburban, was shooting into the car at yet another man seated behind the steering wheel (later identified to be Milton J. Hill). At some point, Ms. Bryant testified, Campbell also began shooting at the man by the phone booth. The man at the phone booth, Fleming, after executing a drop and roll maneuver, got up, and ran into a 7-11 store located in the same parking lot as the KFC. Ms. Bryant reported that Fleming did not appear to have a gun and that the man standing by the fence did not fire his gun.

All, save Hill and Fleming, fled the scene of the crime after one of the shooters noticed Ms. Bryant. Hill was pronounced dead at the scene and Fleming was transported on advanced life support to a hospital. Fleming survived. He told the police officer who arrived first at the scene before he was transported that “Inky shot me....

Inky rolled up and shot me and my boy.” “Inky” was later confirmed to be the nom da guerre of Lawrence Campbell, Petitioner. Campbell was tried by a jury in the Circuit Court for Prince George’s County. 1 At trial, the State introduced no physical evidence of criminal agency, relying instead on the testimony of Doris Bryant, Walter Fleming, and Oscar Veal. Fleming gave testimony about his thirteen-year career as a drug dealer handling substantial amounts distributed over a large geographic area. 2 On the day of the shooting, Petitioner had ⁶⁴² ordered $16,000.00 worth of cocaine from Fleming. Fleming and his friend, Milton J. Hill, met Petitioner at an arranged meeting place to deliver the requested cocaine.

They agreed to reconvene fifteen minutes later at the KFC parking lot for delivery of the purchase money. After waiting in the truck in the parking lot for about half an hour, Fleming walked to the pay phone leaving Hill in the truck. As he did so, the shooting began. Fleming claimed that he struggled hand-to-hand with one of the gunmen, but that the person who shot him was not Campbell.

The other witness for the State, Oscar Veal, Jr., was a drug dealer and self-confessed “hit man.” 3 Veal testified that, in the summer of 1998, Petitioner told him he had committed a murder at a KFC in Maryland resulting from “drugs and money, and a gentleman was killed because he was with [Fleming].” He also testified that Campbell told him that the man who had been killed “was a guy that was with another gentleman who was a witness.” That man clearly was Fleming. During the course of his testimony, Veal admitted to killing seven people within an eighteen-month period. He appeared in court wearing a religious headdress and further intimated that his willingness to testify in Petitioner’s trial resulted from a religious rebirth that coincided with his federal conviction and sentencing. On the basis of this evidence, Petitioner was convicted of the attempted first degree murder of Fleming and second degree murder of Hill, as well as conspiracy to murder Hill and conspiracy to murder Fleming.

On 29 December 2000, ten days after the verdict was entered, defense counsel filed a motion for a new trial. Counsel alleged the existence of newly discovered exculpatory ⁶⁴³ evidence that was divulged to defense counsel for the first time three days after the verdict. The motion proffered that a former associate (Naurice Bland) of Fleming’s long-time rival, Roy Cobb, was prepared to testify that Cobb had set-up Fleming at the KFC and that Cobb had shot Hill and Fleming. It was alleged also that Bland would assert that Fleming retaliated by murdering Cobb a few months after the KFC shooting.

On 9 January 2001, defense counsel filed a supplement to the original motion for a new trial. The supplement proffered that additional evidence had been newly discovered 4 from Joseph Penny, Fleming’s cell-mate at the Arlington County Detention Center. Penny’s sworn statement to defense counsel attested that Fleming had told him he was “set up” by Cobb at the KFC. In response to the motion and supplement, the State filed an “Opposition to Defendant’s Motion for New Trial” denouncing the credibility of the Penny and Bland statements, arguing that the new evidence was immaterial, and asserting that defense counsel failed to show that the newly discovered evidence from Penny could not have been discovered by due diligence in time to file with the original motion.

Petitioner filed a responsive pleading on 20 February 2001, relying on Maryland Rule 4-831(a) 5 and Maryland Rule 4-331(c), 6 to support his proffer of the Bland and Penny ⁶⁴⁴ evidence, respectively. Additionally, Petitioner proffered additional new evidence that Oscar Veal previously had accused falsely another person of murder in an unrelated case. 7 The State responded to the allegations concerning Veal’s credibility by stating, nowhere in Oscar Veal’s statement to the FBI does he say that Derrick Moore was present when Clybum was killed. Thus, there is no impeachable evidence against Veal. Assuming arguendo that it is, the law is clear that the evidence must be more than merely cumulative or impeaching in order to be considered newly discovered evidence.

The trial court heard the post-trial motion on 23 February 2001, the same day scheduled for Campbell’s sentencing. Petitioner elected not to press further that the Bland testimony would support a new trial, thereby abandoning that contention. Instead, Petitioner relied on the statements of Penny and the new evidence concerning Veal’s credibility. In assessing the arguments regarding Penny’s sworn statement, the judge stated “I have no confidence in that information.

And like I say, it could not be offered for any purpose other than for the possibility of impeachment of Mr. Fleming, and I don’t think that it would have had any effect on the verdict of the ⁶⁴⁵ jury.” The judge also was unpersuaded by the additional impeachment evidence against Oscar Veal as proffered in the second supplement, noting that “[defense counsel was] able to challenge Mr. Veal on the fact that he had committed a number of murders, and what you’ve just related would just be one more line of impeachment.” Thus, rather than conduct an evidentiary hearing regarding the new evidence as to Veal, as requested by Petitioner, the judge denied the motion for a new trial based on the proffer. The State did not press at oral argument on the new trial motion any contention that the trial judge lacked authority under Rule 4-331 to reach and decide the motion based on either the Penney or Veal newly discovered evidence claims. Campbell appealed to the Court of Special Appeals. The sole issue raised on appeal was whether “the trial court err[ed] in denying appellant’s motion for new trial.” Campbell argued to the Court of Special Appeals that proof of Veal’s false accusation of Derrick Moore was a type of impeachment different in kind from the impeachment employed at trial concerning Veal’s concessions as having committed seven murders. 8 He contended that because proof of his criminal agency in thé present case was so weak that the new evidence may have affected the jury’s assessment of Veal’s credibility resulting in an acquittal.

Campbell asserted that the trial judge abused his discretion by denying the motion for a new trial. ⁶⁴⁶ In the intermediate appellate court, the State relied on Isley v. State, 129 Md.App. 611 , 743 A.2d 772 (2000), to support its argument that whether a trial court’s discretion is exercised in ruling on a motion for a new trial may be an appealable matter, but how a trial court exercised that discretion is not. The State acknowledged that Rule 4-331(c) gives the trial judge discretion to order a new trial on the basis of newly discovered evidence, but contended that such evidence cannot be “merely cumulative or impeaching,” but must be material to the issues involved such that there was a “substantial or significant possibility that the verdict of the trier of fact would have been affected.” Yorke v. State, 315 Md. 578, 588 , 556 A.2d 230, 234 (1989). The State alleged that Campbell failed to meet any of the criteria of Rule 4-331(c). Furthermore, the State contended, inter alia, that Campbell’s motion for a new trial based on newly discovered evidence was untimely because the grounds for a new trial urged in the supplements and in the appellate courts were not presented to the trial court in the initial motion.

The Court of Special Appeals, in an unreported opinion, held that the trial court was without authority to decide Petitioner’s new trial motion to the extent it relied on the alleged additional impeachment evidence as to Oscar Veal. The court noted that Rule 4-331 demands literal compliance with filing deadlines and “other formal constraints.” The court relied on Ware v. State, 3 Md.App. 62 , 237 A.2d 526 (1968), to conclude that “[i]t is thus clear that a trial court may not disregard the filing deadline.” In that case, Ware filed a timely motion for a new trial pursuant to the precursor to current Md. Rule 4-331. After expiration of the time for filing, Ware filed a second motion for a new trial which raised new grounds that were “not germane to any issue raised in the original motion.” Ware, 3 Md.App. at 65 , 237 A.2d at 528 . Counsel for both parties in Ware stipulated that the trial court should treat the second motion as an amendment to the first.

Id. Ware appealed the denial of the second motion and the Court of Special Appeals found that the trial court was without authority to hear the belated motion for a new trial. ⁶⁴⁷ Id. The court stated in Ware , and reiterated in its opinion in the present case, that a trial court has “no power to grant a new trial under Rule 759 [now 4-331] except pursuant to a timely motion. We think that the parties by stipulation could not give the court power it otherwise would not have had.” Ware, 3 Md.App. at 65-66 , 237 A.2d at 528 .

Furthermore, the intermediate appellate court opined that “[n]either do we think a motion for a new trial can be amended in such a manner as to make it an entirely different motion after the time for filing such a motion has expired.” Id. The Court of Special Appeals found that the supplement to the motion addressing the new evidence regarding Veal was “not germane” to any issue raised in the original motion and therefore could not be considered “timely” under Md. Rule 4-331(a). Not only did the court find that the supplement as to Veal was filed too late to satisfy section (a), but the court also found that it was filed too early to satisfy section (c) because the supplement was filed two months after the verdict, but before sentencing. The Court of Special Appeals concluded that because Campbell’s motion for a new trial as supplemented by Veal’s proffered testimony was filed too early, the trial judge did not err in declining to hear the evidence proffered by Campbell.

The court forewarned that, after the mandate issues in the case, Campbell would have one year to file a motion for a new trial based on newly discovered evidence and, in doing so, will have the “daunting challenge of demonstrating that the newly discovered evidence concerning Veal’s credibility was not ‘merely impeaching,’ ” (citing Love v. State, 95 Md.App. 420, 433 , 621 A.2d 910, 917 (1993)), and if available at trial would have created a “substantial or significant possibility that the verdict ... would [be] affected.” Id. at 433-34 , 621 A.2d 910 (citing Yorke v. State, 315 Md. 578, 588 , 556 A.2d 230, 231 (1989)). Campbell sought review of the judgment of the Court of Special Appeals and we granted certiorari to consider the following questions: (1) Did the trial judge have jurisdiction to consider and decide an untimely-filed supplement to a timely filed motion for a new trial? and, (2) If so, did the trial judge ⁶⁴⁸ err in denying the motion on the merits?. 369 Md. 301 , 799 A.2d 1262 (2002).

II

A. Petitioner’s goal is to demonstrate that the trial judge possessed authority to decide the motion grounded on the second supplement, but erroneously denied the motion on the merits.' Petitioner argued that once the trial judge’s fundamental authority' under the Rule was triggered by the timely filed motion for a new trial under Rule 4-331(a), he also possessed discretion to consider supplements to that motion raising substantive additional and new grounds filed before the court acted on the motion, subject only to the State’s entitlement to a meaningful opportunity to respond. Petitioner asks us to read Rule 4-331 as providing that when new evidence is discovered between the time the verdict is rendered and before sentence is imposed, and the defendant already has filed an otherwise timely motion for a new trial within ten days of the verdict, but no hearing has been held on the motion, then the trial judge may exercise his or her discretion to hear the motion and its supplement(s) at the motion hearing. Petitioner’s first contention is that nothing in Md. Rule 4-331 restricts the right of the trial judge to consider “out-of-time” supplements to timely filed motions for a new trial. Claiming that the cases relied upon by the Court of Special Appeals in its opinion were inapposite because they did not involve supplements to timely filed motions, Petitioner instead hails another case, Ware v. State, 348 Md. 19 , 702 A.2d 699 (1997), as more analogous to the present matter.

The jury in that death penalty case returned a guilty verdict against the defendant. After the verdict was rendered, but before sentence was imposed, the defendant filed a timely motion for a new trial which counsel sought to supplement with newly discovered evidence regarding a violation of defendant’s Bra ⁶⁴⁹ dy rights. 9 348 Md. at 34 , 702 A.2d at 706 . The Circuit Court denied the motion for a new trial after considering both the motion and its supplement. 348 Md. at 35 , 702 A.2d at 707 . On review in this Court, we considered the merits of the supplement to the motion for a new trial, found error in its denial, and granted the defendant a new trial. 348 Md. at 68 , 702 A.2d at 723 .

Petitioner claims that Ware stands for the proposition that a trial judge may exercise discretion to consider supplements to a timely filed motion for a new trial in deciding the motion and contends that if Ware was decided correctly the judgment of the Court of Special Appeals in this case necessarily must be erroneous. 10 Next, Petitioner asserts that the organizational structure of Md. Rule 4-331 supports his contention that the trial judge has discretion to consider out-of-time supplements to a timely filed motion for a new trial. This is so, he argues, because Rule 4-331 creates multiple, grounds-driven deadlines for motions for a new trial: (a) Within ten days of verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. (b) Revisory power.

The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial: .... (2) in the circuit courts, on motion filed within 90 days after its imposition of sentence. ⁶⁵⁰ (c) Newly discovered evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:---- Petitioner infers from the creation of multiple deadlines that a failure to include in a motion for a new trial filed within ten days of verdict a later discovered ground does not foreclose forever litigation of that additional basis as a ground for a new trial. In this matter, Petitioner expostulates that had the trial judge, in ruling on the motion, refused to consider the supplemental newly discovered evidence as untimely filed, Petitioner nonetheless could file the content of the relevant supplement as a new motion within one year after sentence or one year after an appellate mandate, pursuant to Rule 4-331(c)(1).

Thus, Petitioner argues that the trial judge did not frustrate the purpose of the rule by exercising his discretion to consider the motion and its supplement at a single hearing, 11 and that by receiving the modestly earlier hearing Petitioner had nothing to gain and instead fostered judicial expediency and efficiency. 12 Petitioner also relied on cases from other jurisdictions to support his reading of the Rule. Although admitting these ⁶⁵¹ cases represent a decided minority view nationally, he directed our attention to cases allowing amendment to motions for a new trial after the filing deadline passed. 13 Petitioner also cites to cases from Florida, Georgia, Indiana, Missouri, and Kentucky that confirm the discretionary power of a trial judge to consider out-of-time amendments to otherwise timely motions. 14 Petitioner’s second main contention is that the trial judge abused his discretion by denying the motion for a new trial on the merits. Noting that the trial judge denied the motion on the basis that the proffered evidence “would just be one more line of impeachment,” Petitioner contends that the source language in Jones v. State, 16 Md.App. 472, 477 , 298 A.2d 483, 486 (1973), relied on by the Court of Special Appeals to conclude that impeaching or cumulative evidence would not justify the grant of a new trial, was dicta and therefore neither binding or persuasive. The Jones court employed the pejorative descriptive language “merely cumulative or impeaching.” Petitioner finds an “obvious difference” between “impeaching” and “merely impeaching” and concludes that impeachment evidence may sometimes be important enough that its inclusion “may well have produced a different result.” See Love v. State, 95 Md.App. 420, 433 , 621 A.2d 910, 917 (1993) (stating that the law suggests a difference between evidence that is “impeaching” and evidence that is “merely impeaching”).

Petitioner asserts this is such a case. The testimony that Oscar Veal had accused Moore falsely of murder may have inspired the jury to distrust Veal’s statement that Campbell murdered ⁶⁵² Hill. Petitioner further contended that to argue “he’s [Veal] a murderer, but that doesn’t mean he is a liar” is a more tenable jury argument than “he’s a liar, but that does not mean he’s lying about this.” To Petitioner, in a trial with such little demonstrative evidence of criminal agency, this difference is, the difference between evidence that is “impeaching” and evidence that is “merely impeaching.” Petitioner therefore urges us to conclude that the newly discovered evidence as to Veal may well have produced a different result. Respondent, in turn, argues that the Court of Special Appeals correctly held that the trial court lacked authority to decide an untimely filed supplement that raised a ground not raised in the timely motion for a new trial and, alternatively, that the trial court properly exercised its discretion in denying the motion based on the supplemental grounds.

Respondent construes Petitioner’s argument as asking us to read additional language into Rule 4-331. In the absence of express language in Rule 4-331, “legislative” history supporting such an interpretation of the Rule, 15 or case law supporting such an interpretation, Respondent contends that Petitioner’s thesis that trial courts have discretion to consider untimely-filed supplements to a timely filed motion for a new trial is untenable. Respondent observes that each section of Rule 4-331 provides a deadline for filing a motion for a new trial keyed to the grounds asserted. Section (a) provides the shortest period in which to file, but the broadest basis upon which relief can be granted (“in the interest of justice”).

Section (c) provides the longest time period for filing a motion, but has the narrowest grounds for relief (“newly discovered evidence”). See Love, 95 Md.App. at 428-29 , 621 A.2d at 915 . Respondent characterizes the Rule 4-331 filing deadlines as jurisdictional in nature. Noting that Maryland Rule 1-204(a) specifies that a court ⁶⁵³ “may not shorten or extend the time for filing ... a motion for new trial ....,” the State reminds us that “the Maryland rules are not merely ‘guides’ to the practice of law, but are ‘precise rubrics’ to be read and followed.” See Parren v. State, 309 Md. 260, 280 , 523 A.2d 597, 606 (1987).

The plain language of the Rule, argues Respondent, by providing a timetable for when motions may be filed and what grounds may be considered clearly does not provide for continuing the jurisdiction of a trial court to consider supplements to a motion for a new trial once a particular motion has been filed timely and the time expired for filing that category of motion. Although it finds the language of the rule to be clear and unambiguous, Respondent contends that a statute relating to the same subject matter, former Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 594, 16 may be instructive in interpreting the Rule. Section 594 provided that a hearing on a motion for a new trial shall be heard within ten days of its filing, but it specifically allowed the time for the hearing to be extended by agreement of the parties or by order of court. Respondent contrasts the Legislature explicitly creating the possibility of an extension in section 594 with the lack of explicit language in Rule 4-331 to suggest that the filing deadlines in the Rule cannot be extended for supplements or otherwise.

Respondent commends to us the same cases relied upon by the Court of Special Appeals in its opinion in this case. For example, the State finds sustenance for its views in Ware v. State, 3 Md.App. 62 , 237 A.2d 526 (1968), discussed supra at 646-47. Respondent agrees with Petitioner that it is the minority view in our sister states that a timely filed motion for a new trial may be supplemented with new grounds after the time for filing the original motion has passed. The State enunciates that the “government’s legitimate interest in finality” and “carrying out punishment in order to promote respect for the ⁶⁵⁴ law and its procedures” are policy reasons requiring strict adherence to filing deadlines.

Bolstered by these policy bases, Respondent urges that Petitioner’s claim that the supplemental grounds may be brought as a motion for a new trial under Rule 4-331 (c) is false. The State perceives that the evidence could have been discovered either before or during trial or within ten days of the verdict, commenting that the information that Moore was incarcerated at the time of Clybum’s murder was information obtainable by the defense throughout trial and, therefore, the evidence does not fall within the limited scope of section (c) of the Rule. Respondent conjures the portent that to accept Petitioner’s construction of the Rule would eviscerate the Rule by allowing any ground for a new trial to be raised at any time prior to the hearing on the motion. Such an interpretation, the State insists, confers jurisdiction where none exists and renders the deadlines in Rule 4-331 meaningless. 17 The State also argues that even if the trial court possessed the authority to consider the supplement as part of the motion, its denial was a correct exercise of discretion.

Respondent urges us to uphold the determination made by the Court of Special Appeals that such evidence as would impact on the credibility of one of the State’s witnesses only would be cumulative impeachment evidence and therefore falls short of the standard for the grant of a new trial. The State claims that the evidence proffered in the relevant supplement to the motion for a new trial does not meet the requirements for the grant of a new trial, that is: (1) the new evidence is material ⁶⁵⁵ to the issues involved and not merely cumulative or impeaching, and (2) there was “a substantial or significant possibility that the verdict of the trier of fact would have been affected by the new evidence.” Yorke, 315 Md. at 588 , 556 A.2d at 234-35 . The new evidence regarding Veal, the State says, does not impeach his testimony because the documentation presented by Petitioner failed to show that Veal falsely claimed that Moore was both present at and responsible for Clyburn’s death or that the charges were dismissed against Moore because Veal lied. Even if the evidence did impeach Veal, it would be collateral, rather than material, evidence because it only shows that Veal lied about an unrelated matter not bearing directly on the evidence he presented at Campbell’s trial.

The evidence as to Veal also would be immaterial, according to the State, because it is merely cumulative to the ample impeachment of Veal undertaken at trial. Additionally, Respondent believes that Petitioner failed to demonstrate that the additional evidence created a substantial possibility that the jury’s verdict would have been affected. Veal was not a critical witness, according to the State, and Petitioner engages in mischaracterization when he states that there was little evidence of criminal agency in addition to Veal’s testimony. The heart of its case, urges the State, lay in the testimony of Fleming and Doris Bryant.

B. This Court long has recognized that a new trial may be granted by the judge in a criminal case tried to a jury. See In re Petition for Writ of Prohibition, 312 Md. 280, 308 , 539 A.2d 664, 677-78 (1988) (chronicling the common law origins of the motion for a new trial). Such a motion is regulated currently by the provisions of Md. Rule 4-331. Maryland Rule 4-331 provides for three distinct situations in which a criminal defendant may file a motion for a new trial.

The broader the recognized grounds for a new trial, the stricter are the timeliness filing requirements; as the recognized grounds become narrower, the timeliness filing requirements relax somewhat. ⁶⁵⁶ Section (a) of the rule allows a trial judge to award a new trial if he or she determines it to be “in the interest of justice” and the motion is filed within ten days after a verdict is rendered. Rule 4-331 (b) provides the circuit court with the power to set aside an unjust or improper verdict on motion filed within ninety days after imposition of sentence or in cases of fraud, mistake, or irregularity on motion filed beyond ninety days. The narrowest ground for a new trial is provided in section (c). Section (c) permits the court to grant a new trial on the basis of newly discovered evidence “which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule.” Section (c) further stipulates, in pertinent part, that such motion must be filed before the later of one year after sentence was imposed or when the trial court received a mandate issued by one of the appellate courts. 18 The regulatory scheme does not provide any express guidance regarding untimely filed supplements or amendments to an otherwise timely motion for a new trial.

The question presented by Petitioner — whether a substantive supplement raising an additional and new ground, filed outside of the allotted time for filing the motion, but before a hearing on the motion, may be considered by the trial judge together with the grounds advanced in the timely filed motion for a new trial— has not yet been addressed by this Court. The Court of Special Appeals, however, has addressed issues similar to this on at least two occasions, in Ware v. State, 3 Md.App. 62 , 237 A.2d 526 (1968) and Love v. State, 95 Md.App. 420 , 621 A.2d 910 (1993). We discussed Ware somewhat earlier, supra at 646-47. In its opinion in Ware, the intermediate appellate court relied on Giles v. State, 231 Md. 387 , 190 A.2d 627 (1963) and State v. Tull, 240 Md. 49 , 212 A.2d 729 (1965).

Giles held that ⁶⁵⁷ a motion for a new trial filed almost one year after conviction was not timely filed pursuant to former Maryland Rule 567 (1963) 19 and, therefore, it was denied properly. 231 Md. at 388 , 190 A.2d at 628 . Tull presented a similar procedural scenario. In Tull we stated that the trial court had no power to grant a new trial pursuant to former Md. Rule 759(a), but instead we treated the untimely filed motion for a new trial as an application for post-conviction relief and reached the merits in that way. 240 Md. at 52-54 , 212 A.2d at 729-31 . The Court of Special Appeals also addressed Rule 4-331 in Love v. State.

Love was convicted of armed robbery, among other things, and was sentenced on 4 October 1989. A motion for a new trial was denied by the trial judge on 14 May 1992. The motion for a new trial alleged the discovery of new evidence which would cast “grave doubt on the jury’s verdict that [Love] possessed a deadly weapon and that the convictions ... represented a serious miscarriage of justice.” 95 Md.App. at 424 , 621 A.2d at 913 . The court based its holding primarily on it’s interpretation of the phrase contained in section (c) requiring the newly discovered evidence to be that “which could not have been discovered by due diligence.” 95 Md.App. at 429 , 621 A.2d at 915 .

The court applied the Yorke test for evaluating newly discovered evidence and found that the new evidence proffered by Love was such that the trial judge’s finding that there was an absence of due diligence was within his discretion. 95 Md.App. at 435 , 621 A.2d at 918 . Addressing the timeliness requirement of section (c), the Court of Special Appeals noted that the “rule calls for literal compliance” and “[t]rial judges, moreover, are not empowered to overlook” the filing deadlines prescribed for motions for new trial. 95 Md.App. at 428 , 621 A.2d at 914 . Although the issue before the court was disposed of based on an analysis of “due diligence” and what constituted discovery of “new evidence,” the Court of Special Appeals said that to accept Love’s ⁶⁵⁸ argument, that the technical requirements of the rule should be overlooked in order to prevent a miscarriage of justice, would render nugatory the requirement that a motion be filed within one year after the later of the triggering events contained in section (c). 95 Md.App. at 438 , 621 A.2d at 920 . In similar reasoning, the Court of Special Appeals in the present case, agreeing with Respondent’s view, concluded that “Maryland Rule 4-331 demands literal compliance,” and found that Petitioner’s relevant supplement to his motion for a new trial failed to comply with the filing requirements of Rule 4-331(a) or (c).

We agree only insofar as concerns late-filed supplements under section (a). A different result obtains, however, if such a supplement, raising newly discovered evidence as its ground, is viewed as having been filed prematurely under section (c) of the Rule. As noted supra, Maryland Rule 1-204(a) specifically provides that “[t]he court may not shorten or extend the time for filing ... a motion for new trial.” Maryland law and the rules are silent, however, regarding whether “untimely” filed supplements to timely filed motions are to be treated as permissible supplements to the original motion or as separate and discrete motions having to meet the filing deadlines applicable to the particular ground or grounds of the motion. A few of our sister states have regulatory provisions expressly allowing exceptions to the prescribed filing time limit for supplements filed beyond the deadline for the motion itself. 20 Jurisdictions lacking such regulatory direction on the issue, not surprisingly, are split in their case law interpretations between those allowing “untimely” amendment and those disallowing such amendment.

A majority of jurisdictions reaching the issue hold that a motion for a new trial filed in due time may not be amended or ⁶⁵⁹ supplemented after the filing period. 21 These courts reason that in the absence of a rule or statute allowing such amendment or supplement to a timely filed motion for a new trial there exists no right to supplement a motion and the trial court therefore does not have authority to consider the amendment. See Missouri v. Gray, 24 S.W.3d 204, 208-09 (Mo.Ct. App.2000) (finding that an amendment to a motion for a new trial filed outside the time limit for filing the motion was a procedural nullity and could not form the basis for appellate review); United States v. Kane, 319 F.Supp. 527 (E.D.Pa. 1970), aff'd 433 F.2d 337 (3d Cir.1970) (stating that Federal Rule of Civil Procedure 33 was mandatory and the court was without authority to consider untimely filed amendments to a motion for new trial). Amendments must meet the same filing deadlines as the original motion and an “untimely” filed amendment is treated as a nullity and presents nothing to review in these states. Johnson v. Oklahoma, 70 Okla.Crim. 322 , 106 P.2d 128 (1940).

The minority view is that a trial court has discretion to permit amendment after the period for filing the motion for a new trial has expired. For example, a Texas appellate court held that the act of holding a hearing on a late filed amended motion constituted leave to file the amended motion, although the trial judge did not expressly give the defendant leave to file late. Sweeten v. State, 686 S.W.2d 680 (Tex.App.1985). 22 ⁶⁶⁰ The Texas court in Sweeten based its decision on an interpretation of the relevant statute which provided that “[o]ne or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial is overruled.... ” 686 S.W.2d at 680 . The court found that there was “no reason why appellant could not file a late amended motion for new trial with the leave of the court, provided such leave in no way” violated the other relevant provisions of the rule. 686 S.W.2d at 682 .

Another Texas case stated that whether an amended motion for a new trial should be permitted to be filed after the time allowed by law for filing a motion for a new trial is within the sound discretion of the trial court.