Carver v. State

Steven G. Carver v. State of Maryland, No. 14, September Term 2022. Opinion by Hotten, J. CRIMINAL LAW – POSTCONVICTION RELIEF – PETITION FOR WRIT OF ACTUAL INNOCENCE – MATERIALITY ANALYSIS Supreme Court of Maryland held that, in evaluating a petition filed under Md. Code Ann., Criminal Procedure (“Crim. Proc.”) § 8-301, courts must consider the cumulative effect of newly discovered evidence within the context of the entire adversarial proceeding, including its impact on: (1) any evidence admitted at trial; (2) any evidence available at the time of trial, including both evidence (a) offered but excluded and (b) not offered but available; and (3) the defendant’s or defense counsel’s trial strategy. Faulkner v. State, 468 Md. 418 , 469 n.24, 227 A.3d 584 , 614 n.24 (2020).

This hindsight assessment requires courts to ascertain “whether such evidence, combined with the evidence the [jurors] did hear, create[d] a substantial or significant possibility that” a reasonable jury would have acquitted the defendant, that is, whether the cumulative effect of the new evidence and the available evidence at trial undermined the verdict. Id. at 466 , 227 A.3d at 612 . CRIMINAL LAW – POSTCONVICTION RELIEF – PETITION FOR WRIT OF ACTUAL INNOCENCE – EVIDENCE THAT SPEAKS TO ACTUAL INNOCENCE Supreme Court of Maryland held that newly discovered evidence “speaks to” a petitioner’s actual innocence under Crim. Proc. § 8-301 when it erodes the factual premise of their conviction and potentially exonerates them.

See Smallwood v. State, 451 Md. 290, 319 , 152 A.3d 776 , 792–93 (2017). Non-exhaustive examples of evidence that “speaks to” an individual’s actual innocence include: (1) a confession by another individual to having committed the crime; (2) acknowledgement by an eyewitness or other evidence indicating he was mistaken; (3) acknowledgment by an eyewitness or other evidence indicating that the witness intentionally lied; or (4) evidence casting serious doubt on the reliability of scientific evidence used against the defendant. Id., 152 A.3d at 792–93 (citing Memorandum from the Governor’s Office of Crime Control and Prevention and the Office of the Public Defender to Chairman B. Frosh and Members of the Senate Judicial Proceedings Committee, at 8–9 (Jan. 15, 2009)). The General Assembly focused the statute on newly discovered evidence that “would potentially exonerate the convicted defendant.” Smallwood, 451 Md. at 319 , 152 A.3d at 793 .

CRIMINAL LAW – POSTCONVICTION RELIEF – PETITION FOR WRIT OF ACTUAL INNOCENCE – DUE DILIGENCE Supreme Court of Maryland held that its prior holding in Hunt v. State, was limited. 474 Md. 89, 110 , 252 A.3d 946, 959 (2021) (“This is (hopefully) a unique class of cases.”). Expert opinions acquired after trial do not constitute new evidence simply because due diligence did not require trial counsel in Hunt to uncover Joseph Kopera’s fraud prior to 2007. The expert testimony in this case could have been “discovered in time to move for a new trial under Maryland Rule 4-331,” rendering such evidence not “newly discovered” within the meaning of Crim. Proc. § 8-301.

The actual innocence statute “was created to exonerate the truly innocent, no matter how late that proof may become available, and not simply override the time limits of [Md.] Rule 4-331.” McGhie v. State, 449 Md. 494 , 514– 15, 144 A.3d 752, 765 (2016) (McDonald, J., concurring). Circuit Court for Baltimore City Case No. 18916403 Argued: October 3, 2022 IN THE SUPREME COURT OF MARYLAND* No. 14 September Term, 2022 STEVEN G. CARVER v. STATE OF MARYLAND Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. Opinion by Hotten, J. Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Gould, J., dissents. document is authentic. 2023-06-15 12:55-04:00 Filed: December 20, 2022 Gregory Hilton, Clerk * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals to the Supreme Court of Maryland. The name change took effect on December 14, 2022.

This appeal arises from the petition of Steven G. Carver (“Petitioner”) for a writ of actual innocence under Md. Code Ann., Criminal Procedure (“Crim. Proc.”) § 8-301. On March 14, 1989, John Green was shot and killed on a populated street in Baltimore City in broad daylight. Petitioner was subsequently arrested for the murder.

On November 16, 1989, a jury in the Circuit Court for Baltimore City convicted Petitioner of first-degree murder, use of a handgun in a crime of violence, and wearing or carrying a handgun. The circuit court sentenced Petitioner to life without parole for the first-degree murder charge plus an additional twenty-year term for the handgun offenses. In 2012, Petitioner filed a petition for writ of actual innocence, arguing that three categories of new evidence created a substantial possibility that the trial would have achieved a different outcome, had the jury considered such evidence. The circuit court denied the petition, finding that the evidence did not address Petitioner’s actual innocence, did not constitute newly discovered evidence, and did not create a substantial possibility of a different outcome at trial.

Thereafter, Petitioner appealed to the Appellate Court of Maryland (at the time named the Court of Special Appeals of Maryland)1, which affirmed and held that the circuit court did not abuse its discretion. Petitioner timely appealed to this Court. This Court granted certiorari to address the following questions: 1. As a matter of first impression, when evaluating newly discovered evidence in an actual-innocence proceeding, must a court consider the new evidence and the evidence admitted at trial collectively with 1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland.

The name change took effect on December 14, 2022. evidence that was available to the defense but not offered at trial, and/or offered but excluded, where the available evidence was made relevant and admissible by the newly discovered evidence? 2. Where Joseph Kopera was the sole firearms expert at trial, is the contrary opinion of a non-fraudulent firearms expert, obtained after the revelation of Kopera’s fraud, newly discovered evidence? 3. Did the lower courts err by failing to consider the cumulative impact of separate but related categories of newly discovered evidence, as required by Faulkner v. State, 468 Md. 418 [, 227 A.3d 584 ] (2020)? 4. Did the circuit court err by denying the petition for writ of actual innocence?2 This Court answers the first question in the affirmative.

Regarding the remaining three questions, this Court answers in the negative and shall affirm the judgment of the Appellate Court. FACTUAL AND PROCEDURAL BACKGROUND I. Underlying Factual Background During the late afternoon of March 14, 1989, Mr. Green died by gunfire on Old York Road, a populated street in Baltimore, Maryland. The State relied on three eyewitnesses to the shooting: Carmelita McIntosh, Hodges Epps, and Arlin Doles. 2 Petitioner also presented a fifth question in his petition for certiorari: “Did the circuit court err by failing to serve a body attachment on an important witness and failing to allow a postponement so the witness’s presence could be secured during the actual- innocence hearings?” Petitioner failed to raise this question in his brief before us, and, thus, waived the argument. See Md. Rule 8-504(a)(6); DiPino v. Davis, 354 Md. 18, 56 , 729 A.2d 354, 375 (1999) (“[I]f a point germane to the appeal is not adequately raised in a party’s brief, the [appellate] court may, and ordinarily should, decline to address it.”). 2 Carmelita McIntosh testified that she was driving down Cator Avenue when she observed three men.

She heard a loud “pop” and observed the man in the center falling towards her car. She swerved and drove around him. In her rearview mirror, she saw the man on the right shoot the fallen man in the head. She stopped her car and, as she exited, heard the man on the right state “bust him, yo.” Ms. McIntosh testified that she then observed the second man shoot the fallen man.

She heard about four or five “pops” in total. Ms. McIntosh described one of the shooters as lighter-skinned and the other as darker-skinned, but did not positively identify Petitioner from a photo array as either of the men. Another eyewitness, Hodges Epps, testified that he was in a laundromat when he heard the shooting and observed Mr. Green, Petitioner, a man he identified as Arlin Doles, and another unidentified person, together on Cator Avenue.3 Mr. Epps testified that he grew up with Mr. Green, went to high school with Mr. Doles, and had known Petitioner for six to twelve months prior to the shooting. Mr. Epps observed Petitioner and the unknown man both shoot Mr. Green.

Mr. Epps identified Petitioner from a photo array as one of the men who fired at Mr. Green. Finally, Mr. Doles testified as an eyewitness to the shooting. He testified he had known Mr. Green since high school and that Mr. Green introduced him to Petitioner the night before the murder. Mr. Doles further testified that, on the night he met Petitioner, he 3 Mr. Epps did not personally know Mr. Doles, but he acknowledged they went to the same high school around the same time. 3 overheard Petitioner and Mr. Green reconcile over some previous disagreement.

The next day, prior to the shooting, Mr. Doles, Mr. Green, and Petitioner walked down Cator Avenue when another man, Joe Hodge, approached them. Mr. Doles then recalled hearing a gunshot.4 Mr. Doles ran up the road and jumped a fence. He heard four additional gunshots. Mr. Doles turned around and observed Mr. Green standing with Petitioner in front of him.

Mr. Green grabbed Petitioner’s left arm, Petitioner jerked away, and Mr. Green fell to the ground. Mr. Doles testified that Mr. Hodge then fired at the back of Mr. Green’s head. He then observed both Petitioner and Mr. Hodge run north on Old York Road with Petitioner in front of an armed Mr. Hodge.5 After viewing a photo array, Mr. Doles identified Petitioner as a person he saw at the scene and Mr. Hodge as the assailant. Mr. Doles did not see Petitioner with a gun. 4 Mr. Doles recalled Mr. Hodge entering the scene as follows: As I turned around and looked, I looked [Mr. Hodge] full in the face because I wanted to see who was walking up behind us and that’s when he looked at me.

Then he turned away. His eyes turned away towards in the direction of where [Mr.] Green was standing. [Mr. Hodge] asked what time it was. At that point, I looked at my watch. But before I could say anything, [Mr. Green] responded and said 4:30 and as I was still watching at my watch, I heard the first shot. 5 Mr. Doles recalled Petitioner and Mr. Hodge leaving the scene as follows: They ran north on Old York Road on the right sidewalk. [Petitioner] in front.

Mr. Hodge directly behind with the pistol in his hand, like this. At that time, I was unaware of what had happened. So I thought [Mr. Hodge] was going to shoot [Petitioner]. So I was getting ready to holler out for [Petitioner] to watch out.

That’s when they turned right on 41st Street together and ran down 41st Street. 4 II. Circuit Court Proceedings a. The 1989 Trial. Petitioner and Mr. Hodge were charged with the first-degree murder of Mr. Green, use of a handgun in a crime of violence, and wearing or carrying a handgun, and were tried jointly in the Circuit Court for Baltimore City.

Petitioner argued at trial that he was an innocent bystander and that the same person who attacked Mr. Green two months earlier in January 1989 was the actual murderer. At the time of trial, defense counsel was aware Mr. Green had been a witness to the murder of Damon Barrett by Bryant McArthur and that Mr. McArthur later killed Kenneth Alston, the other witness to Mr. Barrett’s murder. Defense counsel was also aware that Mr. Green believed Mr. McArthur wanted him dead because he witnessed Mr. Barrett’s murder. Additionally, defense counsel was aware Mr. Green believed that Mr. McArthur orchestrated the January 1989 shooting, though Mr. Green did not recognize the perpetrator.

Defense counsel attempted to admit evidence of the January 1989 shooting under the theory that the same person who perpetrated the January 1989 shooting also murdered Mr. Green, but the circuit court denied its admission on grounds of relevancy. The circuit court reasoned that the identity of the January 1989 perpetrator would be relevant and “a complete defense” in this case if Petitioner could establish he was not the January 1989 perpetrator and demonstrate that the January 1989 perpetrator killed Mr. Green in March of 1989. 5 Joseph Kopera6 was called as the State’s ballistics expert. He testified that all of the bullets found at the scene were .38 caliber, but four of the six shell casings were too damaged to perform a microscopic analysis, so he could not provide an expert opinion regarding the number of guns used in the murder.7 On November 16, 1989, a jury convicted Petitioner and Mr. Hodge jointly of the murder of Mr. Green and the accompanying firearms charges. On January 30, 1990, the circuit court sentenced Petitioner to life in prison without the possibility of parole plus a consecutive twenty years. 6 Joseph Kopera was a well-respected firearms identification expert in Maryland for decades and testified in hundreds of trials before it was discovered in 2007 that he had lied about receiving various degrees and his credentials as a firearms identification expert.

See Hunt v. State, 474 Md. 89 , 92 n.1, 252 A.3d 946 , 948 n.1 (2021) (detailing Mr. Kopera’s fraud). In Hunt, this Court held that “in all similarly situated ‘Kopera cases,’ trial counsel were not expected reasonably to uncover [Mr.] Kopera’s deception before 2007, in the absence of specific information that should have put counsel on inquiry notice to investigate sooner [Mr.] Kopera’s background.” Id. at 93 , 252 A.3d at 948 . 7 On recross-examination, Mr. Kopera testified as follows: [THE STATE]: All of these bullets are .38 caliber special. They all have six lands and grooves, left twist and all of the two that absolutely cannot be compared, they came from the same gun? [MR. KOPERA]: Again, as I testified, counsel, even on those two, I cannot say that they even definitely came from the same gun because of the difference in metal and the microscopic comparison of those. * * * [THE STATE]: The point I’m trying to make is that you are not saying it wasn’t the same gun.

You are simply saying you cannot draw a conclusion. [MR. KOPERA]: That’s exactly what I said. (emphasis added). 6 b. The Present Circuit Court Proceeding.

In 2012, Petitioner filed a pro se petition for writ of actual innocence in the Circuit Court for Baltimore City, which was denied without a hearing. The Appellate Court reversed and remanded the case for further proceedings. Petitioner thereafter filed an amended petition, which was argued before the circuit court in May and August 2017. Concerning the present appeal, Petitioner alleged that several pieces of newly discovered evidence warranted a new trial, namely: 1.

A series of police reports related to threats against the victim, John Green, and an alleged assault on Denise Brewer. * * * 3. False credentials of the State’s ballistics expert, Joseph Kopera. 4. Criminal history of Hodges Epps. (footnote omitted).8 Petitioner presented newly discovered evidence of a report Mr. Green filed with the police after someone shot at him in January 1989.

In the report, Mr. Green asserted that Mr. McArthur threatened to kill him for being a witness to Mr. Barrett’s murder. Petitioner also presented evidence of several police reports detailing an assault on Denise Brewer. 8 Petitioner also alleged to the circuit court that a police report of a conversation between Mr. McArthur and Melvin Jackson, in which Mr. McArthur told Mr. Jackson he planned to pay Petitioner’s bail so he would kill Mr. Green, was newly discovered evidence supportive of the petition for actual innocence. Petitioner argued the fact someone other than Mr. McArthur paid Petitioner’s bail made this evidence exculpatory and supportive of Petitioner’s actual innocence. The circuit court rejected this argument and Petitioner does not argue it in his brief to this Court.

See infra note 10 (discussing the Mr. Jackson report in detail). 7 Denise Brewer reported to police that an individual referred to as “Darnell,”9 a close associate of Mr. McArthur, approached Ms. Brewer in early March of 1989, requesting that she lure Mr. Green to a certain location so “they could ‘get him[.]’” She refused. Ms. Brewer also reported to police that “Darryl” or “Darnell” assaulted her on April 10, 1989, shortly after Mr. Green’s murder, because she knew who killed Mr. Barrett. Petitioner also presented new evidence concerning open warrants Mr. Epps had at the time of trial. Additionally, Petitioner presented evidence of Mr. Kopera’s fraudulent credentials, as well as an affidavit and testimony from William Conrad, a firearms identification expert who reviewed Mr. Kopera’s report.10 The circuit court rejected Petitioner’s contention that this newly discovered evidence would have substantially impacted Petitioner’s trial.

In a written opinion filed on July 19, 2018, the circuit court determined that Petitioner’s defense counsel was aware of the substance of the newly discovered evidence, namely that someone other than Petitioner wanted Mr. Green dead. The circuit court also focused on the strength of the evidence against Petitioner, particularly the three eyewitness accounts of the shooting. The circuit court explained: “the fact that other persons wanted the victim dead, and were soliciting 9 This same individual is also referred to in other parts of the record and lower courts’ opinions as “Darryl” or “Armstead.” This Court will refer to him as “Mr. Armstead.” 10 Petitioner retained Mr. Conrad in 2009 to review Mr. Kopera’s report and testimony. Mr. Conrad testified at Petitioner’s actual innocence hearing, and Petitioner submitted his affidavit into evidence.

In his affidavit, Mr. Conrad asserted “it is likely that the six recovered bullets all came from the same gun.” Mr. Conrad did not examine the bullet fragments himself. 8 others, including Denise Brewer, to help kill the victim, does not in any way eliminate Petitioner as the person who actually did the killing.” The circuit court also found that the false credentials of Mr. Kopera did not constitute newly discovered evidence, since defense counsel could have examined those credentials prior to trial. Additionally, the circuit court also found that the false credentials would not create a significant possibility of a different outcome at trial, reasoning that Mr. Kopera’s testimony did not advance the State’s case because Mr. Kopera could not conclude how many guns were used, given the poor condition of the shell fragments. The circuit court also determined Mr. Conrad’s opinion was not newly discovered because “Petitioner’s trial counsel could have easily retained an expert to provide the same evaluation.” The circuit court likewise determined Mr. Epps’s open warrants for violation of probation issued at the time of his testimony were neither newly discovered evidence, nor did they create a substantial possibility of a new outcome. The circuit court reasoned that defense counsel could have discovered that information at trial through a simple background check.

The circuit court also found that the pending violation would, at best, be used for impeachment, and the record does not show that Mr. Epps was aware of the warrants because they were never served. Since Petitioner failed to meet his burden for his actual innocence claim, the circuit court denied the petition.

III

Opinion of the Appellate Court of Maryland The Appellate Court affirmed and held that the circuit court did not abuse its discretion in determining that the newly discovered evidence of Mr. McArthur’s attempts 9 to hire someone to kill Mr. Green did not generate a substantial possibility of a different outcome at trial. Carver v. State, No. 2042, Sept. Term, 2018, 2022 WL 971963 , at ⁶–7 (Md. Ct. Spec. App. Mar. 31, 2022). The court reasoned that the “evidence simply elaborated on information previously known about [Mr.] McArthur’s attempts to hire someone to kill [Mr.] Green[.]” Id. at ⁶.

The Appellate Court also held that evidence of Mr. Epps’s unserved arrest warrants was not newly discovered, since defense counsel was aware of Mr. Epps’s criminal history at the time of trial and could have reviewed the warrants. Id. at ⁶–7. The court further determined that, if evidence of the outstanding warrants constituted newly discovered evidence, such evidence would not have created the significant possibility of a different outcome. Id. at ⁶–7.

The State conceded the circuit court erred in determining that Mr. Kopera’s fraud was not newly discovered evidence predicated on this Court’s holding in Hunt v. State, which provided that in this and “all similarly situated cases tried prior to the 2007 discovery of [Mr.] Kopera’s fraud, in the absence of particularized facts that would have put defense counsel on inquiry notice of [Mr.] Kopera’s fraud, due diligence did not require defense counsel to unearth the unfortunate charade.” Id. at ⁸ (citing Hunt v. State, 474 Md. 89, 110 , 252 A.3d 946, 958 (2021)). Nonetheless, the Appellate Court agreed with the circuit court “there [was] no significant possibility of a different result if the alleged newly discovered evidence had been known[,]” because Mr. Kopera’s testimony “added little, if any, support to the State’s case[.]” Carver, 2022 WL 971963 , at ⁸. The Appellate Court did not address Mr. Conrad’s opinion. 10 Petitioner filed a petition for certiorari, which we granted on July 8, 2022. Carver v. State, 479 Md. 455 , 278 A.3d 761 (2022).

STANDARD OF REVIEW This Court reviews a circuit court’s denial of a petition for a writ of actual innocence for an abuse of discretion. See Faulkner v. State, 468 Md. 418, 460 , 227 A.3d 584, 608 (2020). We accept the factual findings of the circuit court unless clearly erroneous and will “not reverse a [circuit court’s] discretionary determination unless it is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” Id., 227 A.3d at 608–09 (quoting King v. State, 407 Md. 682, 697 , 967 A.2d 790, 799 (2009)). It is an abuse of discretion for the circuit court to apply an incorrect legal standard in reaching its conclusion.

Faulkner, 468 Md. at 460– 61, 227 A.3d at 609 . PARTIES’ CONTENTIONS I. Petitioner’s Brief First, Petitioner argues the circuit court erred by determining that evidence of Mr. McArthur’s conspiracy did not address Petitioner’s innocence, nor did it create a substantial possibility of a different verdict. According to Petitioner, evidence of Mr. McArthur’s conspiracy “speaks to” his innocence since it points to another perpetrator of Mr. Green’s murder. Petitioner contends the circuit court applied the incorrect legal standard under Faulkner, 468 Md. at 463 , 227 A.3d at 610 , since it failed to cumulatively assess the impact of the newly discovered evidence and any related evidence available at trial, including 11 evidence that was both (1) offered and excluded and (2) not offered but available.

Petitioner maintains that the circuit court improperly required Petitioner to establish his innocence, rather than focusing on whether the newly discovered evidence eroded confidence in the verdict. Petitioner also argues the circuit court ignored how the newly discovered evidence undermines the verdict because it suggests police rushed to prosecute Petitioner without investigating Mr. McArthur or Mr. Armstead. Petitioner contends that his trial counsel, armed with the new evidence and related evidence available at trial, would have presented a robust and persuasive theory that someone else killed Mr. Green. Second, Petitioner also asserts the circuit court erred in not appreciating the materiality of Mr. Kopera’s fraud, since his testimony showed that two people fired at Mr. Green.

Petitioner asserts that a different expert would have examined the bullets and testified had Mr. Kopera’s fraud been timely discovered. According to Petitioner, Mr. Conrad’s opinion shows that a competent expert would conclude that the bullets came from a single gun. Petitioner lastly argues the circuit court erred when it found that trial counsel could have discovered Mr. Epps’s outstanding warrants with due diligence and that this evidence was immaterial. Petitioner asserts the circuit court ignored the pretrial protective order that withheld the names of civilian witnesses before trial.

Petitioner contends that his trial counsel did not have time to search for open warrants before trial and had no reason to search for them after trial, because the responsibility to disclose the existence of those warrants fell on the State. Petitioner also asserts that evidence of Mr. Epps’s open warrants was material because it demonstrates that Mr. Epps possessed a motive to lie to the jury in 12 exchange for leniency from the State. According to Petitioner, defense counsel could have used this to impeach Mr. Epps and, thus, undermine a crucial witness and the entire police investigation. Analyzing the cumulative effect of the newly discovered evidence and related evidence available at trial, Petitioner presents the following story: Six months before Mr. Green’s death, Mr. Green and Mr. Alston witnessed Mr. McArthur kill Mr. Barrett.

Mr. McArthur wanted to silence all witnesses, so he initially killed Mr. Alston, Petitioner’s close friend, a few days later. Then, Mr. McArthur threatened to kill Mr. Green between January and March of 1989. Someone attempted to shoot Mr. Green in January of 1989. While Mr. McArthur and Mr. Armstead were incarcerated, they attempted to solicit other people, such as Ms. Brewer, to help kill Mr. Green.

Eventually, Mr. McArthur and Mr. Armstead successfully solicited either Mr. Hodge or a third-party perpetrator to kill Mr. Green. According to Petitioner, he was an innocent bystander who happened to observe Mr. Green’s death. At trial, an alternate expert would have testified that only one gun was used to murder Mr. Green. Petitioner’s trial counsel would have impeached Mr. Epps, the only witness who testified to Petitioner shooting Mr. Green, by showing he had a motive to lie in the hopes of leniency because of his outstanding warrants.

Petitioner’s counsel would have demonstrated that Petitioner had no motive to kill Mr. Green because they were friends. Petitioner’s counsel would have also shown that Petitioner had no motive to assist Mr. McArthur, who was from a rival neighborhood and had previously killed his close friend, Mr. Alston. In Petitioner’s view, this version, in hindsight, exonerates or entitles him to a new trial. 13 II. The State’s Brief In contrast, the State argues the circuit court applied the appropriate cumulative analysis under Faulkner when it assessed Petitioner’s petition.

According to the State, Petitioner and trial counsel were aware of most of the information related to the newly discovered evidence, such as Mr. McArthur’s plot to kill Mr. Green, the circumstances of Mr. Barrett’s death, the circumstances of Mr. Alston’s death, and the affiliation of Mr. Green and Mr. McArthur with rival neighborhoods. According to the State, Petitioner’s new evidence only permits speculative conclusions by bolstering what Petitioner already knew at trial. The State emphasizes that the circuit court, after considering the weight of the testimony of the three eyewitnesses at trial, did not abuse its discretion when it found that the newly discovered evidence did not undermine the verdict. Regarding Mr. Kopera’s testimony, the State contends Petitioner could have consulted with his own ballistics expert.

The State asserts that Mr. Kopera’s fraudulent credentials are immaterial, because Mr. Kopera’s testimony was inconclusive and did not significantly contribute to the State’s case. In the State’s view, Mr. Kopera’s sole contribution to its case in chief was his opinion that it was possible that more than one person fired at Mr. Green. The State also emphasizes that Mr. Conrad’s testimony in 2009 was inconclusive because he could not confirm whether the bullets came from the same gun. Regarding Mr. Epps’s outstanding warrants, the State argues Petitioner’s trial counsel had ample opportunity to search those records.

The State further contends Petitioner subverts the due diligence standard by asserting his trial attorney had no basis to 14 search for readily available evidence. The State contends the open warrants cannot be material when Mr. Epps did not know of them because they were never served. Finally, the State argues the circuit court applied the correct cumulative analysis. The State, again, highlights the strength of its three eyewitnesses at trial and asserts that Petitioner overestimates the strength of the new evidence.

ANALYSIS I. A petition for writ of actual innocence requires an evaluation of the materiality of newly discovered evidence predicated on its cumulative impact on evidence admitted at trial and both evidence offered but excluded and not offered but available at trial. Md. Code. Ann., Crim. Proc. § 8-301(a) governs petitions for writs of actual innocence and provides, in relevant part: (a) A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that: (1)(i) if the conviction resulted from a trial, creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; or (ii) if the conviction resulted from a guilty plea, an Alford plea, or a plea of nolo contendere, establishes by clear and convincing evidence the petitioner’s actual innocence of the offense or offenses that are the subject of the petitioner’s motion; and (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331. 15 Under Crim.

Proc. § 8-301(a), a petitioner must produce newly discovered evidence that: (1) “speaks to” his or her actual innocence11; (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331; and (3) creates a “substantial or significant possibility” that, if his or her jury had received such evidence, the outcome of his or her trial may have been different. Faulkner, 468 Md. at 459–60, 227 A.3d at 608 (citing Smith v. State, 233 Md. App. 372, 422 , 165 A.3d 561, 590 (2017)). The first prong limits relief to “a petitioner who makes a threshold showing that he or she may be actually innocent, meaning he or she did not commit the crime.” Id. at 460 , 227 A.3d at 608 (internal quotations and citation omitted). Under the second prong, Maryland Rule 4-332(d)(6) imposes a “due diligence” standard under which the defendant must “act reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him or her.” Hunt, 474 Md. at 108 , 252 A.3d at 958 (emphasis added).

The third prong requires a materiality analysis under a standard that “falls between ‘probable,’ which is less demanding than ‘beyond a reasonable doubt,’ and ‘might,’ which is less stringent than ‘probable.’” Faulkner, 468 Md. at 460 , 227 A.3d at 608 (quoting McGhie v. State, 449 Md. 494, 510 , 144 A.3d 752, 762 (2016)). To meet this standard, the cumulative effect of newly discovered evidence, viewed in the context of the entire record, must “undermine confidence in the verdict.” See Strickler v. Greene, 527 U.S. 263, 290 , 119 S. Ct. 1936, 1952 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 435 , 11 In Smallwood v. State, this Court clarified that “actual innocence” means “the defendant did not commit the crime or offense for which he or she was convicted.” 451 Md. 290, 313 , 152 A.3d 776, 789 (2017). 16 115 S. Ct. 1555, 1566 (1995)); see also Faulkner, 468 Md. at 463 , 227 A.3d at 610 (holding that the cumulative materiality analysis for actual innocence petitions is the same as those for claims under Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 (1963), and Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 (1984)). The State does not challenge Petitioner’s assertion that the significance and relevance of the newly discovered evidence must be examined in light of its cumulative effect on evidence available at the time of trial. In McGhie, this Court held that Crim.

Proc. § 8-301(a)(1) requires a “retrospective approach that considers the impact of the newly discovered evidence at the trial that occurred.” 449 Md. at 511 , 144 A.3d at 762 . Likewise, in Faulkner, 468 Md. at 463 , 227 A.3d at 610 , this Court held that “a cumulative materiality analysis is required in actual innocence cases[,]” treating the analysis as identical to other materiality analyses required for violations under Brady, 373 U.S. at 87–91, 83 S. Ct. at 1196–98, or claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. at 694–96, 104 S. Ct. at 2068–69. This Court explained: [I]n analyzing the materiality of multiple items of newly discovered evidence for purposes of an actual innocence petition, a circuit court must conduct a cumulative analysis. A cumulative assessment is necessary for two reasons.

First, in some cases, no one distinct item of newly discovered evidence will suffice on its own to warrant relief, but cumulatively, such evidence will create a substantial or significant possibility of a different result. Second, even if one or more distinct pieces of newly discovered evidence independently justifies the granting of the writ, a cumulative analysis may affect the court’s determination of the appropriate remedy. Faulkner, 468 Md. at 464 , 227 A.3d at 611 (footnote omitted). This Court provided the following guidance in implementing this materiality analysis: 17 In ruling on the merits of an actual innocence petition, a circuit court may decide to begin and end its materiality review with a cumulative analysis of the various pieces of newly discovered evidence before it.

However, for purposes of appellate review, we believe it generally is a sound practice for a circuit court first to consider the materiality of each piece of newly discovered evidence independently, and then to conduct a cumulative analysis. Id. at 464 n.22, 227 A.3d at 611 n.22. In a footnote, this Court stated that “the character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record” and “newly discovered evidence can logically and reasonably lead to other evidence, not necessarily new, which would then take on new dimensions and importance.” Id. at 469 n.24, 227 A.3d at 614 n.24 (internal citations and quotations omitted). Accordingly, courts evaluating the materiality of newly discovered evidence under Crim.

Proc. § 8-301 must consider the cumulative effect of the new evidence within the context of the entire adversarial proceeding. Id., 227 A.3d at 614 n.24. Courts must evaluate how that new evidence would impact: (1) any evidence admitted at trial; (2) any evidence available at the time of trial, including evidence both (a) offered but excluded and (b) not offered but available; and (3) the defendant’s or defense counsel’s trial strategy. See id., 227 A.3d at 614 n.24.

This hindsight assessment requires courts to ascertain “whether such evidence, combined with the evidence the [jurors] did hear, create[d] a substantial or significant possibility that” a reasonable jury would have acquitted the defendant, that is, whether the cumulative effect of the new evidence and the available evidence at trial undermined the verdict. Id. at 466 , 227 A.3d at 612 . We conclude that the circuit court correctly applied the aforementioned standard. 18 II. Petitioner failed to show that the circuit court abused its discretion in denying his petition for actual innocence.

The circuit court did not abuse its discretion in determining that Petitioner’s alleged newly discovered evidence did not merit granting the petition for writ of actual innocence. Contrary to Petitioner’s assertions, the circuit court applied the correct legal standard by considering the effect of the newly discovered evidence on the available evidence at trial. Indeed, the court determined, in its discretion and in light of the available evidence at the time of trial, that the alleged newly discovered evidence did not create a substantial or significant possibility that the outcome of the trial would have been different, particularly considering the weight of evidence against Petitioner, including the three eyewitness accounts of the shooting. a. The report of Mr. McArthur’s threats against the victim and the reports of the incidents surrounding the assault of Ms. Brewer.

The circuit court correctly held that neither Mr. Green’s report of the January 1989 shooting, nor Ms. Brewer’s report regarding solicitations to assist in murdering Mr. Green, spoke to Petitioner’s innocence or created a substantial or significant likelihood that the outcome of the trial would have been different. First, this evidence does not erode the factual premise of Petitioner’s conviction. In Smallwood, this Court discussed the types of evidence that could support a claim for actual innocence under Crim. Proc. § 8-301 and, by extension, the types of evidence that “speak to” a petitioner’s innocence. 451 Md. at 319 , 152 A.3d at 792–93.

This evidence includes: (1) a confession by another individual to having committed the crime; (2) acknowledgement by an eyewitness or other evidence indicating he was mistaken; (3) acknowledgment by an eyewitness or other evidence indicating 19 that the witness intentionally lied; or (4) evidence casting serious doubt on the reliability of scientific evidence used against the defendant. Id., 152 A.3d at 792–93 (citing Memorandum from the Governor’s Office of Crime Control and Prevention and the Office of the Public Defender to Chairman B. Frosh and Members of the Senate Judicial Proceedings Committee, at 8–9 (Jan. 15, 2009)). Although the enumerated list is not exhaustive, this Court recognized that the General Assembly focused the statute on newly discovered evidence that “would potentially exonerate the convicted defendant.” Smallwood, 451 Md. at 319 , 152 A.3d at 793 (emphasis added). Here, Petitioner’s evidence reflects that Mr. McArthur attempted to solicit other people to murder Mr. Green, but that does not discount Petitioner, who was present at the scene, as a suspect in the murder of Mr. Green.

Indeed, another piece of newly discovered evidence presented by Petitioner at trial, although not presented to this Court on appeal, was a report of a jailhouse conversation between Mr. McArthur and Melvin Jackson, in which Mr. Jackson reported that Mr. McArthur planned to pay Petitioner’s bail so that Petitioner could kill Mr. Green.12 In short, this new evidence does not have the potential to exonerate Petitioner. 12 In a report dated April 5, 1989, Mr. Jackson described his interaction with Mr. McArthur in jail during the first week of March 1989: “If someone can take care of Big John I can get out of here.” [Mr.] Jackson was aware that [Mr.] Green was to testify against [Mr.] McArthur. [Mr.] McArthur then asks what kind of bail [Mr.] Jackson has, when he replies none, [Mr.] McArthur states that[’]s okay, I got this guy, pointing to an individual playing basketball. This person is identified as Steven Carver. [Mr.] McArthur [identifies] this person as Charles, from Cherry [H]ill, that (continued . . .) 20 Regarding materiality, this Court holds that the circuit court did not abuse its discretion. The circuit court properly focused on the three unrelated eyewitness accounts that there were two men who killed Mr. Green. The case at bar is distinguishable from Faulkner, which held that “strong alternate perpetrator evidence can be very powerful in the defense of a person accused of a crime where the primary issue in dispute is identity.” 468 Md. at 468 , 227 A.3d at 613 (citation omitted).

In Faulkner, the State theorized at trial that the two petitioners, Mr. Smith and Mr. Faulkner, broke into the victim’s house through a window to burglarize it and then murdered the victim when she discovered them. Id. at 438–44, 227 A.3d at 595–99. There, the petitioners presented new evidence that handprints on the open window of the victim’s home belonged to a man named Ty Brooks, and that another man, William Thomas, confessed to committing the crime with Ty Brooks, providing details unknown to the public at the time. Id. at 469 , 227 A.3d at 613 .

Regarding the significance of this newly discovered evidence, we explained “[t]his is not a case in which a petitioner has come (. . . continued) he is a part of Joe Edisons crowd, [Mr.] McArthur says he is going to pay his bail for “The Hit”. [sic] [Mr.] Jackson states the second shooter of John Green is “Lightskin”, [sic] Joe Ray Hodge, already in custody. During the May 10, 2017 hearing, Petitioner’s trial counsel testified he would not have called either Mr. Jackson or Mr. McArthur in light of this report. Instead, Petitioner’s trial counsel testified he might have used the report “to cross examine Detective David John Brown about certain aspects of an investigation where people were coming out of the woodwork to try and benefit themselves or to work for [Mr.] McArthur.” The circuit court ultimately rejected Petitioner’s arguments that this new evidence was exculpatory because it would have provided the State with “a perfect motive” for why Petitioner killed Mr. Green. 21 forward with only conjecture or speculation that another person may have committed the crime for which the petitioner was convicted.” Id. at 468 , 227 A.3d at 613 . Rather, the petitioner presented ample, concrete, and compelling newly discovered evidence of an alternate perpetrator.13 13 This Court summarized the newly discovered evidence in Faulkner, and its effect on other information known at the time of trial, as follows: The newly discovered palm print evidence shows – and the State does not dispute – that Ty Brooks entered [Ms.] Wilford’s home through the window that MSP initially determined was used by the burglar(s) and murderer(s) on January 5, 1987.

It also is undisputed that: (1) Ty Brooks had no legitimate right of access to the Wilford home; (2) no prior break-in was reported by [Ms.] Wilford to police; (3) Ty Brooks has a substantial criminal history, including burglaries in the Easton area in 1986–87; indeed, he admitted to Sgt. Metzger that he “terrorized Easton” during this period of time; (4) Ty Brooks falsely claimed never to have been in [Ms.] Wilford’s home; and (5) [William] Thomas also has a substantial criminal history going back to the 1980s, which includes armed robbery and other crimes in Talbot County. * * * We also find significant that, in 1991 and 1992, James Brooks told MSP that [Mr.] Thomas had confessed to burglarizing [Ms.] Wilford’s home with Ty Brooks and to having stabbed her to death with a butcher knife – a detail that was not then known to the public. This provides important corroboration of [Mr.] Smith’s and [Mr.] Faulkner’s theory that [Mr.] Thomas and Ty Brooks are responsible for [Ms.] Wilford’s murder. Taken together, the Ty Brooks palm print match, [Mr.] Thomas’s confession (including James Brooks’s written statement that [Mr.] Thomas identified Ty Brooks as his accomplice), and the related evidence concerning Ty Brooks and [Mr.] Thomas create a substantial or significant possibility that [jurors] hearing that evidence would not have found [Mr.] Smith and [Mr.] Faulkner guilty beyond a reasonable doubt. 468 Md. at 468–70, 227 A.3d at 613–14 (emphasis and footnotes omitted). 22 In contrast, Petitioner’s alleged newly discovered evidence regarding Mr. McArthur’s conspiracy is primarily “conjecture and speculation[,]” and fails to undermine confidence in Petitioner’s conviction.

Petitioner asserts that, with this newly discovered evidence, he could have brought more information into trial about Mr. McArthur’s conspiracy to kill Mr. Green and show Petitioner had nothing to do with that conspiracy. Unlike Faulkner, Petitioner’s alternate perpetrator evidence is not as compelling because he concedes he was present during Mr. Green’s murder and subsequently ran from the crime scene. At face value, Petitioner offers new evidence that an imprisoned individual sought the victim’s death and, through a speculative chain of events, perhaps successfully enlisted Mr. Hodge or some phantom third-party assailant. The circuit court properly declined to adopt Petitioner’s reasoning.

A reasonable jury could believe the following two facts and still convict Petitioner: (1) Mr. McArthur plotted Mr. Green’s death; and (2) Petitioner and Mr. Hodge happened to kill Mr. Green first. Accordingly, the circuit court did not err when it determined the newly discovered evidence was not substantially likely to produce a different outcome at trial. Petitioner contends he was not associated with Mr. McArthur, since they were from rival neighborhoods and Mr. McArthur was responsible for Mr. Alston’s murder. None of this evidence meaningfully casts doubt on the powerful eyewitness testimony that Petitioner and Mr. Hodge killed Mr. Green.

Accordingly, it was not an abuse of discretion for the circuit court to find the cumulative evidence did not create substantial or significant likelihood of a different outcome at trial necessary for the court to grant his petition for actual innocence. 23 b. Mr. Kopera’s fraud and Mr. Conrad’s opinion This Court also rejects Petitioner’s assertion that the opinion of the firearms identification expert, William Conrad, constitutes newly discovered evidence in light of Mr. Kopera’s fraud.14 Petitioner reasons that, at the time of trial, Mr. Kopera’s reputation was so impeccable, it was not reasonable to engage another firearms identification expert to examine the bullet casings in evidence. Accordingly, Petitioner presents as new evidence a 2009 affidavit and testimony of Mr. Conrad, a firearms identification expert who reviewed Mr. Kopera’s report15 on the bullet fragments in Petitioner’s case after Mr. Kopera’s fraud was uncovered. In his opinion, Mr. Conrad agreed with Mr. Kopera’s conclusion that it was impossible to determine how many guns were used in the murder because four out of the six bullet fragments were too mutilated for a microscopic analysis.

Mr. Conrad also opined that, in his own experience, he had never seen a case where multiple bullets in a single incident contained the same general markings but came from two different guns. Petitioner asserts Mr. Conrad’s affidavit and testimony constitutes newly discovered evidence within the meaning of Crim. Proc. § 8-301(a). Petitioner misreads this Court’s holding in Hunt, 474 Md. at 110 , 252 A.3d at 959 .

In that case, we held that, “in this and 14 The circuit court did not have the benefit of Hunt v. State, 474 Md. 89 , 252 A.3d 946 (2021), when it rendered its decision. Nevertheless, we hold the circuit court correctly concluded that Mr. Conrad’s report was not newly discovered evidence or material. 15 Mr. Conrad did not actually review the bullet fragments himself, which could not be located 20 years after the trial. 24 all similarly situated cases tried prior to the 2007 discovery of [Mr.] Kopera’s fraud, in the absence of particularized facts that would have put defense counsel on inquiry notice of [Mr.] Kopera’s fraud, due diligence did not require defense counsel to unearth the unfortunate charade.” Id. at 110 , 252 A.3d at 959 . This Court never held that an expert opinion acquired after trial constituted new evidence, simply because due diligence did not require trial counsel to uncover Mr. Kopera’s fraud prior to 2007. In Hunt, this Court described what qualifies as “newly discovered evidence” within the context of Maryland Rule 4-331(c), which is equally applicable to actual innocence proceedings under Crim.

Proc. § 8-301: Whether evidence is newly discovered has two aspects: a “temporal one,” that is, when the evidence was discovered; and a “predictive one,” that is, when it “should” or “could” have been discovered. “Due diligence” is relevant to the latter aspect, and, in this context, “contemplates that the defendant act reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him or her.” Id. at 108, 252 A.3d at 957 (citations omitted). In that case, this Court rejected the proposition that, “in a more perfect world,” Mr. Kopera’s fraud could have been discovered with due diligence because no defense counsel had cause to question his widely accepted credentials prior to 2007. Id. at 109–10, 252 A.3d at 958–59. In its holding, this Court sought to avoid a “cramped and unrealistic notion” of the due diligence standard.

Id., 252 A.3d at 958 . In the case at bar, although the evidence of Mr. Kopera’s fraud was newly discovered evidence under Hunt, Mr. Conrad’s 2009 opinion was not newly discovered evidence. At the actual innocence proceeding, Mr. Conrad testified that “it’s not probable 25 [the bullets] could have come from one gun; but I can’t say for sure without examining the bullets themselves.” (emphasis added). Regardless of the inconclusive nature of his testimony, Mr. Conrad reveals the obvious: defense counsel had the option to hire his own ballistics expert, like Mr. Conrad, to examine the bullet fragments and testify at the time of trial, but he elected not to do so.

See McGhie, 449 Md. at 514–15, 144 A.3d at 765 (McDonald, J., concurring) (“[Crim. Proc.] § 8-301 was created to exonerate the truly innocent, no matter how late that proof may become available, and not simply override the time limits of [Md.] Rule 4-331.”). Unlike Mr. Kopera’s fraudulent credentials in Hunt, Mr. Conrad’s conclusions could have been “discovered in time to move for a new trial under Maryland Rule 4-331,” making such evidence not newly discovered within the meaning of Crim. Proc. § 8-301.

Mr. Kopera’s favorable reputation at the time of trial did not negate Petitioner’s ability to hire his own expert or obviate the value of having such an expert. Assuming, arguendo, Mr. Conrad’s opinion qualifies as newly discovered evidence, it does not create a substantial likelihood that Petitioner’s trial would have achieved a different outcome. In McGhie, another case involving Mr. Kopera, this Court held that “[i]f the jury is made aware that the expert lied about his qualifications, the jury might also reasonably find that other aspects of the expert’s testimony are not reliable.” 449 Md. at 512 , 144 A.3d at 763 (emphasis added) (footnote omitted). In that case, we noted it was not substantially likely that jurors, armed with knowledge of Mr. Kopera’s fraud, would reasonably have distrusted the credibility of the State’s other witnesses at trial.

Id. at 512 n.8, 144 A.3d at 763 n.8. Here, a reasonable jury could discount Mr. Kopera’s testimony 26 in its entirety, while still convicting Petitioner based on the other credible witnesses at trial. Contrary to Petitioner’s assertions, Mr. Kopera’s testimony was not particularly helpful to the State’s case because he could not say for certain whether the recovered bullets were derived from one or multiple firearms. Mr. Conrad agreed with Mr. Kopera’s conclusion and stated in the innocence hearing that he likewise could not say with certainty how many firearms were used.

Thus, the newly discovered evidence hardly conflicts with the evidence presented by the State at trial, which was evidence that was not particularly helpful to the State’s case in the first place. Accordingly, this Court holds that the circuit court did not abuse its discretion in determining that Mr. Conrad’s opinion did not create a substantial or significant likelihood that the outcome in Petitioner’s trial would have been different. c. Petitioner’s trial counsel could have discovered Mr. Epps’s open warrants with due diligence, and the evidence does not undermine the verdict. This Court is also not persuaded by Petitioner’s assertion that Mr. Epps’s criminal history constitutes newly discovered evidence within the meaning of Crim.

Proc. § 8-301. Petitioner alleges that Mr. Epps had two open arrest warrants due to violating probation at the time of trial, which could have been used as impeaching evidence by the defense and should have been disclosed by prosecutors. In State v. Ebb, this Court held that a witness’s renouncement of his previous trial testimony constituted newly discovered evidence because the petitioner had no reason to be aware that the witness would falsely implicate him at trial. 452 Md. 634 , 656–57, 158 A.3d 965 , 978–79 (2017). Defense counsel in the case at bar could have easily discovered 27 the open arrest warrants at the time of trial by diligently executing a simple background check, unlike the recanted testimony in Ebb.

Petitioner argues that, due to a protective order, defense counsel did not receive any information about testifying witnesses until shortly before trial, and, thus, did not have the opportunity to perform a background check on Mr. Epps. Contrary to Petitioner’s assertions, Crim. Proc. § 8-301(a)(2) and Maryland Rule 4-331(c) expressly provide defense