Faulkner v. State Smith v. State

David R. Faulkner v. State of Maryland No. 42, September Term 2019 Jonathan D. Smith v. State of Maryland No. 43, September Term 2019 Opinion by Biran, J. CRIMINAL LAW — PETITION FOR WRIT OF ACTUAL INNOCENCE — MATERIALITY OF NEWLY DISCOVERED EVIDENCE — A judge considering a petition for a writ of actual innocence must determine whether newly discovered evidence that could not have been discovered with the exercise of due diligence creates a substantial or significant possibility that a jury, having heard the newly discovered evidence along with the evidence that was actually introduced at the petitioner’s trial, would have reached a different result. Md. Code Ann., Crim. Proc. § 8-301 (a)(1)(i) (2008, 2018 Repl. Vol.).

These companion cases involve: (1) a newly discovered palm print match indicating that alternate perpetrators may have committed the burglary and murder for which Petitioners were convicted; and (2) newly discovered recordings of conversations between a key witness for the State and a Maryland State Police officer showing, among other things, that the State agreed to the witness’s demand that the State dismiss unrelated drug charges against the witness’s grandson after the witness threatened otherwise to testify favorably for Petitioners in their trials. The Court of Appeals held that, in applying the “substantial or significant possibility” materiality standard in an actual innocence case involving multiple items of newly discovered evidence, a trial judge must conduct a cumulative analysis of such newly discovered evidence. The circuit court in these cases conducted a cumulative analysis of the newly discovered evidence proffered by Petitioners. However, the circuit court abused its discretion by using an incorrect legal standard in its analysis and by failing to correctly assess the materiality of the evidence.

Both cases are remanded to the circuit court with instructions to grant the petitions for writs of actual innocence and to order new trials. Circuit Court for Talbot County IN THE COURT OF APPEALS Case No. 20-K-00-006883 Case No. 20-K-00-006884 Arguments: January 7, 2020 OF MARYLAND Nos. 42 and 43 September Term, 2019 DAVID R. FAULKNER v. STATE OF MARYLAND JONATHAN D. SMITH Case No. 419686V v. Argued 1/7/19 STATE OF MARYLAND McDonald Watts Hotten Getty Biran Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) Greene, Clayton, Jr., (Senior Judge, Specially Assigned), JJ. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document Opinion by Biran, J. is authentic. Suzanne Johnson 2020-04-27 12:32-04:00 Filed: April 27, 2020 Suzanne C. Johnson, Clerk On the afternoon of January 5, 1987, Adeline Curry Wilford, 68, was brutally murdered in the kitchen of her home just outside Easton in Talbot County, Maryland.

The Maryland State Police (“MSP”) officers who arrived on the scene saw that the house had been ransacked. They discovered the palm print of a suspected burglar on the exterior of a propped-up window in the utility room of Ms. Wilford’s home, as well as a palm print on the washing machine inside the utility room. MSP theorized that the burglar(s) who left the palm prints murdered Ms. Wilford. MSP was unable to match the palm prints to any person during the initial investigation.

The case went cold. Between 1991 and 1992, a confidential informant told MSP that his friend William Thomas had confessed to him that Thomas burglarized Ms. Wilford’s home and stabbed Ms. Wilford to death. The informant further stated that Thomas said his accomplice in the crime was Ty Brooks. MSP learned that both Thomas and Ty Brooks had criminal records involving armed robbery and burglary convictions, respectively, in Talbot County in the 1980s, and that both suspects were at liberty on the day of the Wilford burglary and murder.

However, MSP did not attempt to determine in 1991-92 whether the palm prints left at the scene of the crime matched the palm prints of either suspect. The case went cold again. In January 2000, 13 years after the murder and at the urging of Ms. Wilford’s son, MSP reopened the investigation by interviewing Beverly Haddaway. Haddaway told MSP that her nephew, Petitioner Jonathan D. Smith, as well as Petitioner David R. Faulkner and a third young man, Ray Andrews, were involved in the Wilford murder.

Although the palm prints at the scene of the crime did not match Smith, Faulkner, or Andrews, and no other physical evidence linked them to the crime, authorities charged Smith, Faulkner, and Andrews with burglary, murder, and related offenses in the Circuit Court for Talbot County. The charges were based largely on statements made by Smith and Andrews, as well as Haddaway’s claim that she saw the three young men walk out of a corn field approximately two-and-a-half to three miles away from the Wilford home on the afternoon of January 5, 1987, and that Smith had blood on his shirt at that time. Andrews entered into a plea agreement with the State, under which the State agreed to recommend a five-year sentence for involuntary manslaughter. Andrews testified against Smith and Faulkner in separate jury trials in 2001.

Haddaway also was a key witness for the State in both trials. In his trial, Smith admitted that he had made self-incriminating statements previously. However, Smith claimed that his prior confessions were false, and that he had admitted involvement in the crime to MSP only after officers threatened him with lethal injection and told him he would never see his family again if he did not confess. In his trial, Faulkner introduced evidence that showed he was paid for having worked on the day of the murder at his job in Centreville, Maryland, but did not produce a time-clock card or other evidence showing definitively that he was at work at the time of the murder.

Both Smith and Faulkner were convicted of burglary and murder, and both were sentenced to life in prison. Smith’s and Faulkner’s direct appeals and petitions for post- conviction relief proved unsuccessful. By 2013, Smith and Faulkner both had new sets of attorneys, who moved the circuit court to order the State to run the unidentified palm prints through Maryland’s recently created automated print identification system. After an MSP fingerprint expert did so, he discovered that the palm prints left by the suspected burglar belong to Ty Brooks.

The State 2 has never theorized, let alone produced any evidence, that Smith, Faulkner, and Andrews worked with Ty Brooks and William Thomas to burglarize Ms. Wilford’s home and kill her. Smith and Faulkner also learned in 2012 that the State had suppressed recorded pretrial conversations between Haddaway and an MSP officer assigned to the Wilford case. Those recordings revealed, among other things, that Haddaway demanded and received the dismissal of drug charges against her grandson in a secret agreement that Haddaway made with law enforcement authorities shortly before she testified against Smith and Faulkner. Smith and Faulkner filed petitions for writs of actual innocence under Md. Code Ann., Crim.

Proc. (“CP”) § 8-301 (2008, 2018 Repl. Vol.), contending that, if the newly discovered palm print evidence and pertinent portions of the Haddaway recordings (as well as other purportedly newly discovered evidence) had been provided to their juries, there is a substantial or significant possibility that the juries would have reached different results. The Circuit Court for Talbot County denied relief to both Smith and Faulkner, and the Court of Special Appeals affirmed.

For the reasons discussed in this Opinion, we will reverse the denial of Smith’s and Faulkner’s petitions for writs of actual innocence and order new trials for both Petitioners.1 1 Smith and Faulkner separately briefed and argued their appeals of the denial of their actual innocence petitions in the Court of Special Appeals and in this Court. Because the issues in these two cases overlap in almost all respects, we are issuing one opinion addressing both Petitioners’ claims. 3 I Background A. The Murder of Ms. Wilford At approximately 3:00 p.m. on the afternoon of January 5, 1987, a neighbor of Adeline Wilford discovered her body in the kitchen of Ms. Wilford’s farmhouse off Kingston Road near Easton. Subsequent investigation by MSP revealed that, at 2:10 p.m. that day, Ms. Wilford was photographed at a bank in Easton by the bank’s security system, while driving her car through the drive-through lane. Thus, the murder occurred after Ms. Wilford returned home, at some point between 2:10 and 3:00 p.m.

Ms. Wilford’s neighbor notified police of the murder, and multiple MSP units responded to the farmhouse, arriving shortly before 3:30 p.m. When the officers arrived, they saw only Ms. Wilford’s car parked in the driveway. There was enough space between Ms. Wilford’s car and the porch for another car to have parked between Ms. Wilford’s car and the house. When they entered the home, the officers found Ms. Wilford lying face up on the kitchen floor, wearing a blue wool coat.

She had a pair of glasses on a cord around her neck. Her keys hung in the lock of the back door leading into the kitchen, and bags of groceries were on the kitchen table. There were numerous stab wounds to Ms. Wilford’s hands and face, and a large butcher knife was imbedded in Ms. Wilford’s cheek/eye area. There were numerous defensive wounds on Ms. Wilford’s hands and arms, suggesting that she had struggled with her killer, attempting to ward off the attack. 4 The police observed that a ground-floor window on the west side of the house was propped open with a stick.

Given that it was a cold day in January, officers found the open window noteworthy. The open window led to a utility room containing a washing machine. It was apparent to the officers that Ms. Wilford’s home had been “ransacked”; dressers were opened with “stuff taken out,” suggesting that “someone had broken into the house and was looking for money or other goods.” Ms. Wilford’s tan pocketbook was missing, as was her diamond and sapphire ring and her wallet containing credit cards and an unknown amount of cash. The officers lifted latent fingerprints and palm prints from various places in the home, including the exterior of the utility room window and the washing machine in the utility room.

Based on these observations, MSP theorized that one or more individuals burglarized Ms. Wilford’s home on the afternoon of January 5 by entering the utility room through the propped-open window, and were in the process of stealing items when Ms. Wilford returned home. According to this theory, the burglar(s) stabbed Ms. Wilford to death after she entered the home, and left before Ms. Wilford’s neighbor arrived. B. The Initial Investigation Ms. Wilford’s murder was the subject of news accounts in the days that followed the crime, and MSP conducted an intensive investigation. Officers determined that Ms. Wilford had recently returned from a vacation and had been back home for a few days prior to January 5, 1987.

Police were unable to identify any hard suspects, in large part because they were unable to determine who had left the latent palm prints on the exterior of the utility room window and on the washing machine in the utility room, and because they did 5 not recover any of the stolen items. The Maryland Automated Fingerprint Identification System (“MAFIS”) did not exist in 1987. Thus, the only way to match the latent prints at that time was by manually comparing them with prints known to belong to specific people. The palm prints found on the exterior of the utility room window and on the washing machine did not belong to Ms. Wilford or to any other individuals whose prints were checked.

Officers interviewed many people in the days immediately following the Wilford murder, including Danny Keene. Mr. Keene contacted MSP on January 9, 1987, and reported that, on the day of the murder, he observed a silver Oldsmobile Cutlass backed up against Ms. Wilford’s home at approximately 2:00 p.m. The car Mr. Keene claimed to have seen next to the house was a different make and model than Ms. Wilford’s car that was present when police arrived on the afternoon of the murder. Despite the offer of a $10,000 reward that was made and publicized within two days of the murder, and that was later increased to $25,000 for information leading to a conviction, the case went cold.

C. The Investigation of William Thomas and Ty Brooks An article in the Easton Star-Democrat on August 6, 1991, quoted MSP officers as expressing frustration that “[w]e were there within minutes, and still we haven’t been able to find anything.” This article also mentioned again that there was a $25,000 reward offered by friends and relatives of Ms. Wilford. On August 7, 1991, James Brooks contacted MSP regarding the Wilford murder. In interviews with MSP in 1991 and 1992, James Brooks said that his friend, William 6 “Boozie” Thomas, had told him that Thomas and Ty Brooks (no relation to James Brooks)2 burglarized Ms. Wilford’s home and that Thomas stabbed Ms. Wilford to death with a butcher knife. James Brooks provided a handwritten statement to MSP in February 1992 in which he described Thomas’s confession: One summer evening of the year 1990 I was out on a drinking binge.

I met up with Boozie Thomas…. [H]e asked me if I knew Adaline [sic] C Woolford [sic] the lady that was murdered in her house… [H]e asked me what did I know about it. I said that from what I heard she knew a little self defense so who ever killed her had to be either real strong or caught her by surprise. [H]e told me he did it and I called him a liar. I laughed for a while then he said that he was going to tell me something and that I was to tell no one for if I did and he found out then he would know that I told so I agreed. [H]e said that him and a guy named Ty Brooks were in her house stealing and the lady came home early on them[.] [H]e had borrowed his sister’s car[.] [Ms. Wilford] noticed the car parked near her house and wrote the tag # of the car down before she entered the house. [H]e took a butcher knife I believed hid behind the kitchen door when she came in he stabbed her to death and left her for dead. James Brooks’s information led MSP to add Thomas and Ty Brooks to their list of suspects.

MSP learned that both Thomas and Ty Brooks were “under charges, but not incarcerated” on January 5, 1987. MSP also determined that both Thomas and Ty Brooks fit a psychological profile that had been created by MSP of the likely murderer, and that both were physically capable of committing the crime in the manner that James Brooks had described. In addition, MSP’s investigation revealed that both Thomas and Ty Brooks “were involved in breaking and enterings during the time period in which [the Wilford] crime occurred,” as well as “extreme drug and alcohol abuse during that time.” Further, MSP learned that Thomas was convicted of armed robbery in Easton in 1983. 2 For purposes of clarity, we refer to James Brooks and Ty Brooks by their first and last names throughout this Opinion. 7 Police administered a polygraph to James Brooks on February 10, 1992. The administering officers “felt that [James Brooks] might have been more directly involved in the crime” than he had reported.

MSP wanted James Brooks to take an additional polygraph, but they were unable to locate him subsequently. The officers believed that “[a]dditional information should be obtained from [James Brooks] prior to any interrogation of [William Thomas and Ty Brooks].” It appears from the record that no such additional information was ever obtained from James Brooks, and that MSP did not attempt to question Thomas or Ty Brooks. Nor did MSP check whether Thomas’s or Ty Brooks’s palm prints matched the palm prints left by the burglar(s) on the suspected point-of-entry window and the washing machine in the utility room. The case went cold again.

D. The Reopening of the Investigation and the Arrests of Smith and Faulkner On December 30, 1999, Ms. Wilford’s son, Charles Curry Wilford, spoke with then- Corporal John Bollinger of MSP. According to Bollinger’s report, Mr. Wilford was interested in having his mother’s case reopened. Mr. Wilford told Bollinger that a retired MSP officer had advised him that “information existed from a potential witness which indicated possible suspects in this case.” Bollinger told Mr. Wilford that the investigation would be reopened. Bollinger then contacted the retired officer, and arranged a meeting with the witness, Beverly Haddaway.3 3 Haddaway previously had spoken with police on two occasions about the Wilford murder.

In September 1987, she told an Easton police officer that she had information about the murder, but she did not name any suspects. In 1994, after her son Shawn Haddaway was charged with criminal offenses, Haddaway spoke with MSP Trooper Roger Layton and alleged that she saw Smith, Faulkner, and Andrews in the area 8 That meeting went forward on January 14, 2000. According to the report of that interview, Haddaway told Bollinger that, on the afternoon of the Wilford murder, she was driving with her friend, Thomas Marshall, on Black Dog Alley near Easton. Near the intersection of Black Dog Alley and Kingston Road, Haddaway claimed, she saw her nephew Jonathan Smith, David Faulkner, and Ray Andrews exit a corn field on foot onto Black Dog Alley,4 at which time she came to a stop.

According to Haddaway, she saw that Smith’s shirt had blood splatters on it, and he had blood smears on both arms. When she asked Smith where the blood on him had come from, Smith said a dog had tried to bite him and he had killed the dog. According to Haddaway, before she left, she saw a pickup truck approach from the rear. Smith, Faulkner, and Andrews got into the truck, which then drove away.

According to Haddaway, she resumed driving on Black Dog Alley, and moments later heard sirens blaring and saw several police vehicles and an ambulance turn onto Kingston Road. As a result of this interview, police had Haddaway wear a wire and record a conversation between herself and Smith on April 11, 2000. In that conversation, Haddaway brought up the Wilford murder: of the Wilford home on January 5, 1987. It appears from the record that Haddaway’s allegations were not investigated between 1994 and 2000. 4 According to an MSP officer’s testimony at trial, Ms. Wilford’s home was approximately two-and-a-half to three miles from the intersection of Black Dog Alley and Kingston Road. 9 Haddaway: I’m going to ask you something.

I want to know you told me once. I’m going to ask you again, cause I heard something in the wind. You know that day I seen you on Kingston Road when that old woman got murdered and you told me the dog bit you and you stabbed it. Who killed the old woman, you?

You told me you did. Smith: I don’t know. Haddaway: I think David done it. Why was he wearing your coat?

Smith: Huh? Haddaway: Why did David have on your coat that day? Smith: I don’t know. Haddaway: You’re laughing, why did he?

Smith: I don’t know. … Haddaway: … I just wanted to know before I died. I always think that David done it. You? You said you did.

Why are you laughing? Smith: I didn’t do nothing like that. Haddaway: Why were you in that field with blood all over you and no coat? … [Y]ou said that blood come off of a dog, but I think that you held her and David killed her. Or one of you three done it.

Smith: They never found out yet have they? Haddaway: I know that’s why I want to know before I die. I seen you, did I ever tell anybody? You know I ain’t going to tell, God damn you’re my blood.

I just wanted to know if you done it. I didn’t really think you did. I think crazy David did. Smith: They could of, it’s a secret when one person knows it ain’t a secret when two people know. 10 Haddaway: Well all three of you know.

Smith: What, there’s only two of us. Haddaway: It was you and Ray and David. Smith: Ray wasn’t there until after it was over. Haddaway: Where was he?

Smith: Down the road. Haddaway: Ray was right with you in the God damn field. Smith: That was after it was all done with. …. Haddaway: … What the hell did you kill her for or did he kill her for?

Smith: I don’t know I can’t remember. Haddaway: Jonathan you’re lying because you’re laughing. Smith: I can’t remember. Haddaway: Well why do you think I would tell anybody?

I ain’t never told nobody in 12 God damn years. I just wanted to know. Smith: (inaudible) Haddaway: Huh? Smith: She had money. ….

Smith: That was a long time, I don’t even remember it no more. … 11 Haddaway: … I just wondered if [Faulkner] did it or you? Tell me. I ain’t going to tell nobody. I just want to know – Smith: (inaudible) didn’t do it.

Haddaway: You done it. You said you did before. Why did you kill her? … Smith: I knew she had money. Haddaway: You knew she had money.

Smith: She had money. Haddaway: But you didn’t get none? Smith: Uh-hum. Haddaway: You did get it?

Smith: Uh-hum. Haddaway: Well what the hell did you do with it Jonathan? It must not have been much because you still walk to Cambridge or hitchhiked or went with David. Smith: You can’t spend it all in one pile.

It’s gone now. Spend a little bit here and a little bit there. You can’t spend that much that’s how people will talk. I figured it was enough to buy two Ford Explorer’s [sic].

(Inaudible). Haddaway: And you didn’t do nothing with it but just pissed it away? Smith: Uh-huh. Haddaway: Did they get any?

Smith: Uh-hum we split it three ways. Haddaway: Three ways. How much did you get? Smith: (inaudible).

Haddaway: $60,000! 12 Smith: Uh-hum. … Haddaway: … What you said that day, what did you tell me, the bitch bit me and I stabbed it. You told me a dog, I knew damn well no dog blood could get that. But why did David have your coat? Smith: He got cut.

Haddaway: He got cut. So he put your coat on? Didn’t he have no coat? … Smith: Got too much blood on it. Haddaway: … How did he get cut?

Smith: He cut himself. Haddaway: He cut his own self? Smith: Just about. That’s what it looked like.

She was asleep. Haddaway: She was asleep? Smith: Uh-hum. She woke up.

Haddaway: Well how did he get the knife? Smith: Out of the house. Haddaway: Well did he cut her? Smith: Uh-huh.

Haddaway: So you both stabbed her? Smith: Uh-huh. …. 13 Haddaway: … How did you get there? You told me that day that somebody dropped you off and had to go deliver something and they were coming back. Smith: I don’t know.

On April 25, 2000, MSP brought Smith, Faulkner, and Andrews in for questioning and to execute search warrants for hair and saliva samples and palm prints. Faulkner made no admissions of involvement in the crime. According to the report of Andrews’s interrogation, Andrews was questioned by Bollinger and another officer on April 25, 2000. The report states that Andrews told the officers that he, Faulkner, and Smith walked from Smith’s house in Easton, up Matthewstown Road to a friend’s home at Swann Haven Trailer Park.

Upon arrival, Smith and Faulkner said something to the friend about “rob or robbing.” According to Andrews, the three men left the friend’s residence and walked several miles: first down Black Dog Alley, then they turned onto Kingston Road and walked down that road past the Wilford farmhouse down to the bridge over King’s Creek. The three then turned around and walked back toward Ms. Wilford’s house. Andrews said he waited at the edge of woods off Kingston Road, while Smith and Faulkner walked across a field to the farmhouse. Andrews further stated that he saw Smith and Faulkner go around to the back of the house, then he lost sight of them.

Andrews then saw a vehicle pull up the driveway of the residence. Approximately 20 minutes later, according to Andrews, he saw Smith and Faulkner running from the house toward the woods. Once at the woods, Smith and Faulkner told Andrews to run. Andrews saw blood on Smith’s shirt.

The three made their way back to Black Dog Alley, where they came upon Haddaway. Andrews said he heard Smith tell 14 Haddaway that he had been attacked by a dog. After the conversation with Haddaway, according to Andrews, the three walked back to Matthewstown Road and then to Smith’s house in Easton. Andrews said he did not recall if they were picked up on Matthewstown Road by anyone or not.

Once at Smith’s house, according to Andrews, Smith changed his bloody shirt. Smith and Faulkner then pulled money from their pockets, which Andrews estimated to be approximately $300-$400. Andrews reported that the next day, when news broke of the murder, Smith told Andrews to keep his mouth shut about what had happened. Smith was questioned by two teams of MSP officers over a period of approximately six to seven hours.

Starting at approximately 1:15 p.m, Trooper Jack McCauley and another officer interrogated Smith for approximately two hours. Smith denied any involvement in the Wilford burglary and murder during this round of questioning. Smith then sat in the lockup for several hours. At approximately 6:45 p.m, Bollinger (who, by that time had completed his questioning of Andrews) and another officer began their interrogation of Smith.

They attempted to play the recording of Smith’s conversation with Haddaway, but Smith was unable to hear it due a serious hearing impairment. According to the two-page report that Bollinger wrote, “[u]pon further questioning,” Smith confessed to having broken into Ms. Wilford’s home with Faulkner, while Andrews waited outside. Smith reportedly told the officers that Ms. Wilford came home while he and Faulkner were in the house. Smith allegedly told Bollinger that he saw Ms. Wilford “with glasses, black hair and a blue coat at the time of the murder.” At that point, according to Bollinger’s report, Smith saw Faulkner stab Ms. Wilford several times, and Smith said that Ms. Wilford fell 15 into him during the attack, causing blood to get on his shirt.

Neither of Smith’s interrogations on April 25, 2000 was recorded. None of the latent prints of value found at the scene – including the palm prints on the utility room window and washing machine – matched Smith’s, Faulkner’s, or Andrews’s prints. Nevertheless, based on the statements of Haddaway, Andrews, and Smith, the three suspects were charged with burglary, murder, and related offenses.5 DNA testing done after the filing of charges excluded Smith, Faulkner, and Andrews as sources of DNA that was found in scrapings taken from under Ms. Wilford’s fingernails and that came from a source other than Ms. Wilford. E. The Trials of Smith and Faulkner Smith, Faulkner, and Andrews were ordered to stand trial separately.

In pretrial discovery, the State produced to Smith’s and Faulkner’s counsel, among other things, an “Analytical Case Review” prepared by an MSP Criminal Intelligence Division analyst. In a section of the report titled “Chronology of Events,” the analyst reported that, on January 9, 1987, Danny Keene contacted MSP and advised “that he observed a silver vehicle parked next to the front porch of the victim’s home. He believed the car was an Oldsmobile Cutlass.” This summary and a similar report provided to defense counsel did not state that Mr. Keene told MSP that he had seen the Oldsmobile Cutlass at Ms. Wilford’s house on the day of the murder, at approximately 2:00 p.m. 5 Smith and Faulkner were arrested on April 25, 2000. Andrews was not arrested until July 2000. 16 Andrews was scheduled to be tried first, beginning on February 12, 2001.

However, on February 13, 2001, Andrews entered an Alford plea6 to involuntary manslaughter under an agreement whereby the State would recommend a five-year jail sentence. 1. Smith’s Trial At Smith’s trial, which began on February 27, 2001, the jury heard testimony from the State’s fingerprint expert, Alexander Mankevich, that he never matched any of the latent prints found at the crime scene to anyone submitted as a suspect in the case. No physical evidence was introduced that linked Smith (or Faulkner or Andrews) to the crimes. The State’s evidence of Smith’s guilt consisted of testimony from Andrews, Haddaway, a jailhouse informant named Michael Snow, and Smith’s statements to Haddaway and Bollinger.

Andrews generally testified consistently with the account the officers included in their report of his April 25, 2000 interrogation, as discussed above. Haddaway testified that, on January 5, 1987, she was driving on Black Dog Alley with Susan Fitzhugh,7 when she saw Smith, Faulkner, and Andrews emerge from a corn 6 An Alford plea – derived from North Carolina v. Alford, 400 U.S. 25 (1970) – “lies somewhere between a plea of guilty and a plea of nolo contendere.” Bishop v. State, 417 Md. 1, 19 (2010). In an Alford plea, the defendant, “although pleading guilty, continues to deny his or her guilt, but enters the plea to avoid the threat of greater punishment.” Ward v. State, 83 Md. App. 474, 478 (1990). A defendant entering an Alford plea, while maintaining his or her innocence, agrees to a proffer of stipulated evidence or to an agreed statement of facts that provides a factual basis for a finding of guilt.

See Jackson v. State, 448 Md. 387 , 391 n.3 (2016). 7 After Haddaway told MSP in January 2000 that her passenger at the time she saw Smith, Faulkner, and Andrews on Black Dog Alley was Thomas Marshall, officers interviewed Mr. Marshall on April 25, 2000. He stated that he was a “horrible alcoholic” 17 field. According to Haddaway, she noticed Faulkner’s glasses were broken, and she saw drops of blood on Smith’s shirt. Haddaway testified that Smith told her he had just killed a dog by stabbing it.

Haddaway further testified that, when she asked Smith why he was not wearing his coat, he responded that he had given his coat to Faulkner. Because Smith was much taller than Faulkner, Smith’s coat came down to Faulkner’s kneecaps or just below his kneecaps, and the sleeves of the coat covered Faulkner’s hands. Smith’s attorney questioned Haddaway about the reward money she had received for her information, which Haddaway described as a $10,000 deposit toward a total reward of $25,000. Haddaway also admitted that she and Andrews’s attorney, Grason Eckel, had visited Andrews together in jail.

Defense counsel did not ask Haddaway what she had discussed with Andrews with his lawyer present. The jury heard the recording of Smith’s April 2000 conversation with Haddaway. In addition, McCauley and Bollinger both testified about Smith’s statements to them on April 25, 2000. McCauley acknowledged that Smith denied involvement in the Wilford burglary and murder during Smith’s first interrogation.

Bollinger testified that, after he tried unsuccessfully to get Smith to listen to the recording of Smith’s conversation with Haddaway, Bollinger asked Smith “what his involvement was in the case,” and Smith then at the time of the Wilford murder, and did not recall being with Haddaway on that date. Haddaway subsequently claimed that she had mistakenly told police that Marshall was with her when she saw the three men on Black Dog Alley, and explained that, after inspecting her records, she recalled that Susan Fitzhugh actually was with her on that day. It is not clear from the record when Haddaway first told MSP that she had been with Susan Fitzhugh, not Marshall. Fitzhugh did not testify at Smith’s trial, but did testify at Faulkner’s trial several weeks later. 18 told the officers that Faulkner stabbed Ms. Wilford after she interrupted him and Faulkner while they were burglarizing her house.

Bollinger testified that Smith told him that, as Ms. Wilford was fighting Faulkner, “Ms. Wilford fell back into him and that he got blood on his shirt.” Bollinger further testified that Smith described Ms. Wilford as “wearing a blue coat, had black hair, had glasses on, on a chain around her neck.” According to Bollinger, “after this couple of minutes that he talked to me,” Bollinger asked Smith if he had ever stabbed Ms. Wilford, at which point Smith asked for an attorney. Defense counsel elicited from Bollinger that Bollinger had had conversations with Haddaway, but defense counsel did not ask Bollinger about the number of those conversations or about the various subjects Bollinger had discussed with Haddaway. Michael Snow, a jailhouse informant who was housed in the same facility as Smith, testified that he asked Smith if he “really kill[ed] that woman.” According to Snow, Smith looked at him and said “uh-hum,” which, Snow told the jury, “sent chills down my back.” According to Snow, Smith said that Ms. Wilford “startled [Smith] when she came in. [Smith] said … he was fighting with her trying to get away and then she bit him. He said when she bit him … he went crazy.” At the time of his testimony against Smith, Snow was awaiting sentencing on federal bank robbery charges.

Smith testified in his defense. He denied making any incriminating statements to Snow. He acknowledged making inculpatory statements to Haddaway and to Bollinger, but claimed that those earlier statements were not true. With respect to his statements to Bollinger that he made after being at the MSP barrack for several hours, Smith claimed that, after one officer threatened him with lethal injection during the first interrogation and 19 Bollinger told him that he would never see his family again if he did not confess, he told Bollinger: “I did it, David did it.

Ray was there.” Bollinger and McCauley denied making threatening statements to Smith during their interrogations of him. The jury convicted Smith of daytime housebreaking and felony murder, and Smith was sentenced to life imprisonment. Smith’s direct appeals and post-conviction motions were unsuccessful. 2. Faulkner’s Trial Faulkner’s trial began on April 3, 2001.

Although Susan Fitzhugh did not testify at Smith’s trial, she was an important witness at Faulkner’s trial. At the time of the murder, Fitzhugh worked for Haddaway. She testified that she was a passenger in Haddaway’s truck proceeding down Black Dog Alley near Kingston Road when she and Haddaway noticed Smith, Faulkner, and Andrews emerging from a corn field. According to Fitzhugh, she saw blood on Andrews’s pants, as well as blood on Smith’s shirt, pants, and boots, and even more blood on Faulkner than on the other two.

Fitzhugh stated that, during their conversation on Black Dog Alley, Smith showed her a hunting knife and said he had killed a deer. Fitzhugh recalled that Smith said he and Faulkner and Andrews were heading back into town to get “Donald” to come back and get the deer they had just killed. According to Fitzhugh, she did not recall seeing anything unusual when she and Haddaway resumed their trip. Fitzhugh further testified that she saw Smith and Faulkner later that same night at Smith’s grandmother’s house, “fighting and arguing and wrestling” with each other.

At Faulkner’s trial, Haddaway added some significant details to her account that she had not provided at Smith’s trial. In particular, although Haddaway had not said anything 20 at Smith’s trial about seeing blood on Faulkner, at Faulkner’s trial she testified that, as she was speaking with Smith from the driver’s seat of her truck, she saw blood on Faulkner’s pants from his kneecaps “down over his white tennis shoes and all over his tennis shoes,” as well as blood smeared on the side of his face. Although Haddaway had not said anything at Smith’s trial about seeing Faulkner wearing gloves, but rather testified that the sleeves of the coat Faulkner was wearing had covered his hands, she told Faulkner’s jury that she saw Faulkner wearing a pair of black gloves on Black Dog Alley. In addition, Haddaway testified at Faulkner’s trial that she saw Smith, Faulkner, and Andrews again that evening at her mother’s house, where they were arguing and fighting with each other.

Haddaway testified that she also saw money and a piece of jewelry on the dining room table at that time, and she heard Faulkner say that Smith and Andrews were not going to get any money. Haddaway acknowledged that she had visited Andrews in jail along with Eckel. When Faulkner’s counsel attempted to ask Haddaway why she had gone to see Andrews, the State objected, and a long colloquy ensued. The prosecutor stated that she did not “see the relevance in [Haddaway] speaking with a defense attorney for one of the co-defendant’s [sic], or visiting with one of the co-defendant’s [sic] after his arrest and after the charges had been brought.” Defense counsel proffered that, among other things, he wanted to elicit that: (1) Haddaway had gone to visit a “bank robber” with Eckel to try to convince that bank robber to testify against Faulkner; (2) Eckel showed the bank robber pictures that Eckel had received in discovery; and (3) the bank robber refused to testify against Faulkner.

The trial judge sustained the State’s objection to this line of questioning. 21 Andrews testified again at Faulkner’s trial, providing mostly the same account that he testified to at Smith’s trial concerning the walk to the Wilford farmhouse and his observations of Smith and Faulkner after they ran back to him. Faulkner’s jury also heard Smith’s recorded conversation with Haddaway. A different jailhouse informant, Norman Jacobs, testified that he was housed with Faulkner (and Smith) at the Talbot County Detention Center while Jacobs was awaiting trial on federal drug charges. According to Jacobs, Faulkner repeatedly discussed “his case” with Jacobs, and Faulkner told him that he and Smith had stabbed “the lady” after she entered her house.

Jacobs further testified that he heard Faulkner “arguing and cussing” at Smith and “talking about who did the most stabbing.” Jacobs also testified that Faulkner told him “the woman bit [Smith] on the finger when he was struggling with the woman.” According to Jacobs, Faulkner told him that the reason the State had no evidence linking him to the crime was because Faulkner had worn gloves during the crime. On cross- examination, Jacobs acknowledged that, after providing information about Faulkner to authorities, he reached a plea agreement with federal authorities under which he received leniency. Faulkner’s jury learned from Mr. Mankevich that none of the latent prints of value found at the scene – including the palm prints left by the suspected burglar(s) – matched Smith’s, Faulkner’s, or Andrews’s prints. In addition, unlike Smith’s jury, the jury in Faulkner’s trial learned that Smith, Faulkner, and Andrews were excluded as sources of 22 DNA that was found in scrapings from under Ms. Wilford’s fingernails and that came from a source other than Ms. Wilford.8 In his defense, Faulkner introduced records from his place of employment in January 1987, the Tidewater Publishing Corporation, in Centreville, Maryland, which was approximately a 30-minute drive from the Wilford farmhouse.

Those records showed that Faulkner was paid for 46 hours of work during the week that included Monday, January 5, 1987. According to the evidence introduced at trial, no timecards were still available for Faulkner from 1987, but other records from Tidewater Publishing showed that, while Faulkner was noted as absent from work on Friday, January 23, 1987, he was not marked as absent on January 5. However, other employees were marked absent on January 5. The jury returned guilty verdicts against Faulkner for first degree murder and related charges, and he was sentenced to life in prison plus 10 years.

His convictions were affirmed on direct appeal. Faulkner unsuccessfully sought post-conviction relief. F. Further Investigation and the Petitions for Writs of Actual Innocence In 2011 and 2012, the New York Innocence Project and the Mid-Atlantic Innocence Project filed Public Information Act requests on behalf of Smith and Faulkner, respectively. MSP subsequently produced several previously undisclosed recorded conversations between Haddaway and Bollinger from February 2 and 8, 2001 (the 8 The State did not disclose information about the DNA test results to Smith’s defense counsel prior to Smith’s trial, although the MSP crime lab had furnished the State’s Attorney’s Office with that information in advance of Smith’s trial.

Smith sought post- conviction relief due to the failure of the State to disclose this exculpatory evidence to him. Surprisingly, Smith’s post-conviction counsel abandoned that claim when he had his post- conviction hearing. 23 “Haddaway-Bollinger recordings”), in which, among other things, Haddaway threatened to testify favorably for the defendants at their upcoming trials unless the State dismissed unrelated drug charges against her grandson, Landon (“Lonnie”) Janda. The State, in fact, dismissed the charges against Janda on February 9, 2001, three days before Andrews’s trial was scheduled to begin. On August 1, 2013, both Smith and Faulkner filed motions to reopen their post-conviction proceedings based on the Haddaway-Bollinger recordings.

Meanwhile, by 2013, MAFIS provided MSP with the ability to perform electronic palm print searches. In August 2013, Smith and Faulkner filed a motion for post-conviction comparison of latent prints, requesting that the circuit court order the State to enter the unidentified latent palm prints from the crime scene into MAFIS to determine whether an unknown suspect could be identified. Although the State initially opposed this motion, in October 2013, the State, prior to a ruling by the court, contacted Mr. Mankevich and asked him to run the palm prints from the Wilford crime scene in MAFIS. Mr. Mankevich retrieved the lift cards from the Hall of Records and personally entered them into MAFIS.

After receiving the computer-generated list of potential matches, Mr. Mankevich compared Ty Brooks’s known palm prints to the palm print taken from Ms. Wilford’s washing machine and the palm print taken from the exterior of the utility room window. Mr. Mankevich concluded that Ty Brooks was the source of both those prints. In June 2015 and July 2015, respectively, Smith and Faulkner filed petitions for writs of actual innocence, based on three distinct items of allegedly newly discovered evidence: (1) the identification of Ty Brooks as the source of the palm prints; (2) the Haddaway-Bollinger recordings; and (3) statements by Danny Keene that he saw an 24 Oldsmobile Cutlass at Ms. Wilford’s house at approximately 2:00 pm on the day of the murder. II The Hearings and Appeals Below A. The 2016 Evidentiary Hearing Smith’s and Faulkner’s motions to reopen post-conviction proceedings and their actual innocence petitions were consolidated for an evidentiary hearing that went forward over seven days in April 2016 in the Circuit Court for Talbot County before the Honorable Stephen H. Kehoe.9 1.

The Palm Prints and Related Evidence Mr. Mankevich explained at the hearing how he determined that the palm prints on the exterior of the utility room window and on the washing machine in the utility room belonged to Ty Brooks. Mr. Mankevich also testified that he excluded Ty Brooks as the source of prints found in other places in the Wilford house. Mr. Mankevich further explained that there is no reliable forensic technique that can indicate how long a print has been on a surface prior to collection. Mr. Mankevich also testified that he eliminated William Thomas as the source of seven of the eight remaining unidentified latent print impressions, but was unable to perform a full comparison of the eighth print, which was taken from the porch door. 9 The Honorable William S. Horne, who presided over Smith’s and Faulkner’s trials, and who ruled on their original post-conviction motions, had retired by the time of the hearings on the actual innocence petitions and motions to reopen post-conviction proceedings. 25 James Brooks also testified at the hearing.

He stated that he was a longtime friend of William Thomas. James Brooks explained that he contacted MSP at some point around 1991 about the Wilford murder. It was established that James Brooks was listed in MSP’s records as a confidential informant. Although James Brooks’s memory had faded somewhat by the time of the 2016 hearing, he recalled that, while traveling in a car with Thomas within a few years of the murder, Thomas told him that he (Thomas) had stabbed Ms. Wilford in her home during a burglary.

James Brooks acknowledged that, when he first reported Thomas’s confession to police, he was “strung out on drugs” and “trying to cash in on the reward.” James Brooks testified that Thomas told him he was with someone else when he committed the robbery and stabbed Ms. Wilford. The circuit court allowed Smith and Faulkner to admit James Brooks’s written statement from 1992 into evidence, although the court required that Ty Brooks’s name be redacted from that statement for hearsay reasons. As discussed above, in that written statement, James Brooks reported that Thomas had confessed to killing Ms. Wilford with a butcher knife after she interrupted the burglary. James Brooks testified at the 2016 hearing that he knows Ty Brooks and grew up with him.

He also explained that Thomas and Ty Brooks knew each other in 1987; they were brothers-in-law at that time. James Brooks recalled that Thomas said he had borrowed the car he and Ty Brooks used to get to Ms. Wilford’s house from his uncle. Similar to his written statement from years earlier, James Brooks recalled Thomas mentioning that Ms. Wilford “might have wrote down the tag number I think of the car it was.” When asked if he could recall if 26 Thomas said where he had stabbed Ms. Wilford, James Brooks testified, “it might have been in the back.” James Brooks recalled that Thomas instructed him to tell nobody what Thomas had told him about the Wilford murder. This was the first and only time anyone has ever told James Brooks about committing a murder.

MSP Sergeant Sabrina Metzger testified that Ty Brooks and Thomas were both at liberty on the day of the Wilford murder. Thomas had just been released from incarceration in December 1986. Metzger testified that, in the course of its investigation, MSP found no connection between Smith and Faulkner and either Thomas or Ty Brooks. Smith and Faulkner called Thomas as a witness at the hearing.

He invoked his Fifth Amendment right against self-incrimination. The circuit court heard an audio tape of a hearing in which Ty Brooks entered a guilty plea on May 21, 1987, to various charges unrelated to the Wilford burglary and murder. The charges to which Ty Brooks pled guilty included burglary, theft, and battery, among others, based on acts that Ty Brooks committed in Easton in October 1986, February 1987, and March 1987. The statement of facts by the prosecutor indicated that Ty Brooks was in an Oldsmobile when he was arrested in March 1987, and that he broke into some of the places he stole from by entering windows. 2.

The Haddaway-Bollinger Recordings At the hearing, Smith and Faulkner established that, in the 13 months between the time Bollinger first met with Haddaway in January 2000 and Andrews’s scheduled trial in 27 February 2001, Bollinger and Haddaway spoke several hundred times.10 At some point, Bollinger began recording some of those conversations without Haddaway’s knowledge. Of particular relevance here are recordings Bollinger made of his conversations with Haddaway on February 2, 2001, and February 8, 2001. As of February 8, Andrews’s trial was still scheduled to begin on February 12. During a recorded telephone conversation on February 2, 2001, Bollinger and Haddaway discussed a request Haddaway had previously made that the State dismiss unrelated drug charges against her grandson: Haddaway: I thought you were going to call me when you talked to asshole.

Bollinger: Well, I was only going to call you if I had good news. Haddaway: Oh, so I guess [Assistant State’s Attorney Marie Hill11] ain’t going to do nothing. Bollinger: Nope. Haddaway: Well.

Bollinger: No, I asked her, I asked [Assistant State’s Attorney John Mark McDonald12] and they are not, not willing or not going to drop the charges against him right now. Haddaway: Well, too bad. I wish him luck. That just gives me this weekend to knock them all out.

Don’t it? 10 Bollinger testified at the 2016 actual innocence hearing. By the time of that hearing, Haddaway was deceased. 11 Assistant State’s Attorney Hill was the prosecutor in the Wilford case. 12 Assistant State’s Attorney McDonald was the prosecutor in Landon Janda’s drug case. 28 Later in the same conversation, after Bollinger asked if Haddaway was still “going to come and tell the truth,” Haddaway replied: “I’m going to come in and tell the truth but I don’t think the truth is going to want to be known. I really don’t and I got more shit to back up the truth than a little speck. You know?” Bollinger tried to mollify Haddaway by saying that he could ask Janda’s prosecutor again to dismiss the drug charges after the Andrews trial was over.

Haddaway responded: Well, it won’t be no need to ask after the trial’s over because Grason’s going to win hands down. They’ll be doubt in everybody on the jurors’ mind and I’m the one that’s going to roll the iceberg right down there and watch that son of a bitch hit everybody in that fucking Courtroom. Do you think I’m kidding, John? I’m not.

You can go get the newspaper to start printing: Three People Found Innocent and I’ve got just one little piece of paper and it can all be had with one word that nobody knows but I know and I got the paper and I got the proof and one word, just one word out of the English language will let all three of them walk and for my grandson, you don’t think I’ll use that fucking word?.... I will use it and watch all three of them walk, walk, walk, walk, and say, hey now we’re going to sue the fucking state because it ain’t no sense of suing me, I ain’t got nothing. Haddaway said she might give the “one word” “to Grason today so that he has plenty of time to use it.” Haddaway claimed she could deploy this word to ensure freedom for three boys and I absolute can guarantee a hundred percent… Now, I’m ain’t going to help Marie Hill no more. Marie Hill can get John McDonald to be her … witness because I absolutely won’t.

I’ve got two choices. I’ll take the Fifth Amendment and that wouldn’t set ‘em free but what I can do, can set them free and I’m going to bring it and show it to you and then you think about if you think this old bitch ain’t slick because I am. I am. Later that same day, Haddaway and Bollinger met in person, and Bollinger recorded that conversation as well.

Haddaway again threatened to testify in a way that would lead to acquittals for Smith, Faulkner, and Andrews, and that would disqualify her from 29 receiving the additional reward money. Haddaway told Bollinger that the “word” she was referring to was “crazy,” and threatened to reveal to the jury that she had been diagnosed with “an extensive emotional and psychological problem.” Bollinger told Haddaway that he would speak with Talbot County State’s Attorney Scott Patterson to try to go “over [McDonald’s] head” and get Janda’s drug charges dismissed. Bollinger also showed Haddaway a description or drawing of a ring and provided her with other information material to the Wilford case. The recordings also reveal that Bollinger was aware that Eckel had shown Haddaway evidence that he had received in discovery from the State in preparation for Andrews’s trial.

Although Bollinger acknowledged to Haddaway that Eckel “probably shouldn’t have given” Haddaway evidence that he had received in discovery because Haddaway was “the main State witness,” Bollinger nevertheless indicated his awareness and approval of Eckel’s continued sharing of discovery material with Haddaway. In a telephone conversation on February 8, 2001, Haddaway and Bollinger discussed how, the previous day, Bollinger had told Haddaway that Janda’s drug charges would be dismissed. Based on that conversation, Haddaway was expecting to receive written confirmation on February 8 that Janda’s charges had been or would be dismissed. However, when Eckel (who was also representing Janda in his drug case) attempted to pick up a letter from Hill relating to the dismissal of Janda’s drug charges, Hill told Eckel that she knew nothing about any such letter.

Eckel reported this to Haddaway, which led Haddaway during the February 8 conversation with Bollinger to complain that Bollinger had lied to her when he said that written confirmation of the dismissal of Janda’s charges 30 would come from the State’s Attorney’s Office. Bollinger replied that he “didn’t say it was going to be in writing. I said they were going to notify [Eckel] today. I specifically told you that it would not be in writing that the … case would be nolle prossed and they would never be brought back.

That was made clear to me that it would never be put in writing that way.” Later in the conversation, Bollinger again said that Patterson was going to have the case against Janda dismissed. When Haddaway remarked that she only had Bollinger’s “word on this,” Bollinger responded that “we did good for you, but we also protected ourselves.” Haddaway continued: What did you just say? We’re protecting ourselves. What do you think I want the fucking paper for?

Because if it was just you and Jack,[13] I’d probably would go up there, like a dumb little lamb to the slaughter. Thinking yes, if I go up here maybe once in, in the world, the fucking law will work the way it should. But you know, I’ve had too many episodes of being the little lamb that wanted to help out somebody, and get my fucking ass killed. But this time, I’m not going to be the lamb chop.

When I go in there, either Sissy[14] and Lonnie will be satisfied or you’ll know they’re not satisfied. How stupid is that? That’s protecting my ass, ain’t it? But you all wanna play games. “Well, Beverly, you go ahead and help them, you do everything you can.

Beverly, you go ahead and do this, and we’ll go ahead and do that.” But all you have is air and there’s nothing concrete and no paperwork. Bollinger reiterated that “protecting … our interest, is all we’re doing. We have three murder trials coming up.” Bollinger also explained that the State’s Attorney’s Office felt that Haddaway was “trying to blackmail ‘em with, with your grandson’s charges, in order 13 It appears that Haddaway here was referring to Trooper McCauley. 14 Sissy is the nickname of Laci Janda, Haddaway’s daughter and Lonnie Janda’s mother. 31 to testify.” Haddaway tried yet again to convince Bollinger to get the “paper” she was seeking from the State’s Attorney’s Office: I want your ass to go up there… They’re making you a promise. Put the motherfucker on the paper.

Because you know what John, this is what you don’t understand. If they show me a piece of paper that says this is their word and I know this is the word, I’ll go in that fucking courtroom and I’ll testify and they’ll be happy. Because this piece of word that they’ve given me is my insurance policy that the whole fucking whole bunch of lying cocksuckers ain’t lying…They’re going to give Grason Eckel something to say they’re nolle processing Lonnie. Ain’t hard to do.

Haddaway continued: “I want that motherfucker to say that Landon Janda will not be prosecuted on any and all charges. I also want them to know that after the first trial they are going to immediately hand me a paper before I testify in the second and third that says that he has total immunity.” Haddaway made clear that she wanted assurance that the charges against Janda would not be revived after the third murder trial. In the same conversation, Haddaway commented that “they gotta go to the jail and scrape the bottom of the bucket to find out if they can get somebody that’s got six months’ time a way out to see if he’ll lie for ‘em. And then they gotta go up to jail and try to get a federal prisoner or a [sic] undercover cop to try to lie for them, who’s not interested in it.

Who told us that he happened to be a federal prisoner and he don’t give a fuck.” Bollinger responded, “Who’s us? Told who?” Haddaway answered: “Wonder. I don’t have any papers on it. I just have to go by memory.” On February 9, 2001, the State dismissed Janda’s drug charges. 32 3.

Danny Keene’s Information As noted above, prior to the trials, the State gave Smith’s and Faulkner’s counsel discovery material in which it was reported, among many other things, that on January 9, 1987, Danny Keene contacted MSP and advised an officer that he had seen a silver vehicle that he believed to be an Oldsmobile Cutlass parked near Ms. Wilford’s home. However, those documents did not state when Mr. Keene had observed the Oldsmobile outside Ms. Wilford’s house. At the hearing on the actual innocence petitions, Smith and Faulkner called Mr. Keene as a witness. He testified that he saw an Oldsmobile Cutlass backed up against Ms. Wilford’s porch shortly before 2:00 p.m. on the day of the murder.

Specifically, Mr. Keene explained that, in January 1987, he was working as the head guide of a company that took “city people” out on hunting parties in Talbot County. Mr. Keene’s company rented a farm next to Ms. Wilford’s house that they used during hunting season. Mr. Keene often drove by Ms. Wilford’s home, but he did not know Ms. Wilford. Mr. Keene described driving past the Wilford house three times on January 5, 1987.

At approximately 10:00 a.m., after leading a hunting party on the adjacent farm that morning, Mr. Keene drove back to Easton via Kingston Road. He was taking the geese the hunting party had caught to a “picker,” who would remove the feathers from the birds. He had to drive past the Wilford farmhouse on Kingston Road as part of that trip to Easton. Mr. Keene did not notice a car on the Wilford property at that time.

Later that day, Mr. Keene drove back from Easton to the farm next to the Wilford property. He was meeting a co-worker at 2:00 p.m. to set up a “water blind” for the next 33 day’s hunting party. On his way back to the neighboring farm, at approximately 1:50-1:55 p.m., Mr.