Grandison v. State

BATTAGLIA, J. The appellant, Anthony Grandison, was convicted of hiring Vernon Evans, Jr. to murder David Scott Piechowicz and Cheryl Piechowicz on April 28, 1983 at the Warren House Motel located in Baltimore County, Maryland; however, because Ms. Piechowicz was ill, her sister, Susan Kennedy, who was filling in for her, was murdered in her stead. Grandison was convicted of first degree murder of both victims and was sentenced to death. This Court has, in four previous opinions, rejected Grandison’s various challenges to his trial, convictions, and sentences. 1 In the present case, Grandison appeals from the denial of his motions for a new trial, to correct an illegal sentence, and to reopen his original post-conviction proceeding. Specifically, he raises three issues.

Grandison argues that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), regarding the suppression of evidence that he alleges is favorable and material to the determination of his guilt and sentencing during both his 1984 guilt/innocence trial and his 1994 re-sentencing proceeding. Grandison also asserts that his sentence under ⁴¹⁷ Maryland’s death penalty statute violated his right to due process of law under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), because the jury was permitted to find that the aggravating factors outweighed the mitigating factors by a preponderance of the evidence. Finally, he contends that because he was convicted as an accessory before the fact to the murders, he was not death eligible. We reject the entirety of Grandison’s current arguments.

Facts The basic facts of this case have been summarized by this Court in Grandison v. State, 305 Md. 685, 697-98 , 506 A.2d 580, 585-86 (1986), cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986), as follows: According to the State’s evidence, the defendant Evans and Anthony Grandison entered into an agreement whereby Evans would kill David Scott Piechowicz and his wife, Cheryl, because the couple were scheduled to testify against Grandison in a narcotics case pending in the United States District Court for the District of Maryland. Evans was to receive $9,000.00 from Grandison for performing the murders. David Scott Piechowicz and Cheryl Piechowicz were employed at the Warren House Motel in Baltimore County. On April 28, 1983, Susan Kennedy, the sister of Cheryl Piechowicz, was working in place of Cheryl at the Warren House Motel.

The evidence was sufficient to prove beyond a reasonable doubt that, on April 28th, Evans went to the motel and, not knowing the Piechowiczs, shot David Scott Piechowicz and Susan Kennedy with a MAC-11 machine pistol. Nineteen bullets were fired at the victims, who died from the multiple gunshot wounds. A two count indictment was filed against Evans and Grandison in the United States District Court. They were charged with violating the Piechowiczs’ civil rights by interfering with their right to be witnesses in a judicial proceed ⁴¹⁸ ing, in violation of 18 U.S.C. § 241 , and with witness tampering, in violation of 18 U.S.C. § 1512 .

Subsequently the present case began with a four count indictment in the Circuit Court for Baltimore County, charging Evans and Grandison each with two counts of first degree murder, one count of conspiracy to commit murder, and the use of a handgun in the commission of a felony or crime of violence. Upon the defendants’ requests for removal, Grandison’s trial was transferred to the Circuit Court for Somerset County and Evans’s trial was transferred to the Circuit Court for Worcester County. Additional background detail was provided in Grandison v. State, 341 Md. 175, 193-95 , 670 A.2d 398, 406 (1995): While Grandison was awaiting trial on the state charges, he was convicted in the federal court on both narcotics charges and witness tampering charges brought against him in connection with the murders. Thereafter, Grandison moved to dismiss the state charges on the ground that the federal convictions for witness tampering and civil rights violations and the sentences thereon constituted a double jeopardy bar to the pending state court trial.

The trial court denied his motion, and on appeal of that interlocutory order we affirmed that judgment pursuant to the dual sovereignty exception to the Double Jeopardy Clause. Evans [and Grandison] v. State, 301 Md. 45 , 481 A.2d 1135 (1984), cert. denied, 470 U.S. 1034 , 105 S.Ct. 1411 , 84 L.Ed.2d 795 (Grandison I). (Footnote omitted). In May of 1984, Grandison was tried in the Circuit Court for Somerset County on two charges of first degree murder, one count of conspiracy to commit murder, and one count of the use of a handgun in the commission of a felony or crime of violence.

During that trial, the prosecution offered significant incriminating evidence against Grandison through a number of witnesses. The most damaging testimony was elicited from Charlene Sparrow, Vernon Evans’s girlfriend at the time of the murders. Sparrow testified that on April 26, 1983, she ⁴¹⁹ accompanied Evans and Janet Moore, Grandisoné girlfriend at the time of the murders, to the Baltimore City Jail to visit Grandison. Sparrow waited in the car while Evans and Moore met with Grandison and stated that when Evans and Moore returned nearly an hour later, the trio went to visit Theresa Purdie, the mother of Grandisoné son, to obtain some money from Rodney Kelly, an associate of Grandisoné.

Sparrow testified that at Purdieé apartment, Evans, Moore, Kelly, and Purdie all spoke with Grandison on the phone. Later that afternoon, according to Sparrow, she and Evans traveled with Moore to the Warren House Motel, where Sparrow attempted to reserve a room. Sparrow stated that she could not obtain a reservation for the night of April 26th because the motel was full. She did, however, reserve a room for the night of April 27th, which was corroborated by a registration slip from the Warren House bearing the same date with Sparrowé name and a room number on it.

She reported to Evans that the Piechowiczs were not at the reception desk and described the security features. Sparrow further testified that on April 27, 1983, after receiving a gun in a brown and white canvas bag and a car from Kelly, Evans and Sparrow drove over to the Warren House and Evans instructed Sparrow to wait in the car. Evans then entered the hotel with the brown and white canvas bag containing the gun. Some time later, Evans ran from the Warren House and told Sparrow to wipe off the gun, which she testified was smoking.

Evans informed Sparrow that he was to receive $9,000 for the murders. Other witnesses supplied additional testimony implicating Grandison in the murders of Scott Piechowicz and Susan Kennedy. For example, Theresa Purdie confirmed that Sparrow, Kelly, Evans, and Moore visited her apartment and that Kelly, Evans, and Moore all spoke to Grandison on the telephone. Calvin Harper, a friend of Rodney Kellyé, testified concerning the events that he witnessed when in Kellyé company on April 26th through the 28th, 1983.

Harper further testified that he was present when Evans acquired the ⁴²⁰ machine pistol used in the murders from Kelly and that Kelly told him that Evans had the gun to take care of some business. Etta Horne, who worked in the hotel in housekeeping, identified Evans as the man whom she saw sitting in the lobby of the hotel immediately preceding the murders. Also, Helen Kondilidis, a waitress at the motel’s basement restaurant, testified that she entered the motel shortly before the murders and also identified Evans as the man she saw there. On May 22, 1984, the jury in Grandison’s guilt/innocence trial returned guilty verdicts on all counts.

Grandison was sentenced to death on June 6, 1984 on both murder counts. In Grandison v. State, 341 Md. 175 , 670 A.2d 398 (1995), we summarized the subsequent proceedings: On November 1, 1990, Grandison filed a petition, pursuant to Md.Code (1957, 1987 Repl.Vol., 1990 Cum.Supp.), Art. 27, § 645A, in the Circuit Court for Somerset County seeking post conviction relief. On July 31, 1992, the circuit court granted such relief, ordering a new capital sentencing proceeding on Grandison’s convictions of first degree murder. Relying upon the Supreme Court’s decision in Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), the circuit court granted the requested relief on the grounds that the sentencing form and related jury instructions employed at Grandison’s first sentencing proceeding offended the dictates of the Eighth and Fourteenth Amendments to the United States Constitution that the death penalty not be imposed where there are mitigating factors which may call for a less severe penalty.

The circuit court also decided that Grandison was entitled to retroactive application of the Mills decision. The State applied to this Court for leave to appeal from the circuit court’s grant of post conviction relief as to the death sentences, and Grandison filed a cross-application seeking review of the circuit court’s denial of collateral relief on the underlying convictions. We denied both applications. Grandison v. State, Misc.

No. 29, Sept. Term 1992 (order filed October 23, 1992). The Supreme Court denied a petition and cross-petition for writ of certiorari on March 22, 1993. Maryland ⁴²¹ v. Grandison, 507 U.S. 985 , 113 S.Ct. 1581 , 123 L.Ed.2d 149 (1993); Grandison v. Maryland, 507 U.S. 985 , 113 S.Ct. 1581 , 123 L.Ed.2d 149 (1993). In 1993, Grandison filed a number of motions in the circuit court to bar his re-sentencing on double jeopardy grounds.

The circuit court denied these motions and Grandison’s subsequent request for a stay of the re-sentencing proceeding pending an appeal of the circuit court’s ruling on his motions. Grandison then applied to the Court of Special Appeals for a stay of the re-sentencing. On May 11, 1994, the matter was transferred to this Court. We issued an order denying the requested stay.

Grandison v. State, Misc. No. 20, Sept. Term, 1994 (order filed May 12, 1994). Id, at 194-95, 670 A.2d at 407 (footnote omitted). Grandison’s re-sentencing proceeding began on May 24, 1994 and lasted eight days.

The prosecution presented the same evidence that it had introduced at Grandison’s guilt/innocence trial including testimony from Cheryl Piechowicz, Charlene Sparrow, James Savage, and Calvin Harper, which was essentially identical to their testimony in the 1984 trial. The State also introduced testimony from Janet Moore for the first time during the re-sentencing proceeding. Moore’s testimony corroborated the statements made by Sparrow regarding the events of the two days immediately prior to the murders. She also stated that she heard Grandison tell Kelly to take Evans to the Warren House and show him “who the white couple was.” At the conclusion of Grandison’s capital re-sentencing proceeding, on June 3, 1994, a Somerset County jury imposed two death sentences.

This Court affirmed the death sentences in Grandison v. State, 341 Md. 175 , 670 A.2d 398 (1995). On November 15, 1999, Grandison initiated the present litigation when he filed a motion for a new trial, pursuant to Maryland Rule 3-441. On January 18, 2000, he filed a Motion to Correct Illegal Sentence, and approximately three months later, filed a pro se Motion to Reopen Original Guilt/Innocence Post Conviction. ⁴²² The Circuit Court held two days of evidentiary hearings on May 20-21, 2004. During the hearings, Grandison introduced a number of pieces of allegedly exculpatory or impeaching evidence that he asserted had been suppressed by the prosecution and that, according to Grandison, significantly undermined the confidence in the verdicts rendered against him at both his 1983 trial and 1994 re-sentencing proceeding such that the evidence was “material” for the purpose of establishing a violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). 2 Grandison principally relied upon testimony and statements from Roberta Weinstein, the proprietor of the Casa del Oro jewelry shop located in the lobby of the Warren House and witness to the shootings, Derese Pinkney, a woman who lived near the Warren House and claimed to have seen the shooter run past her house, and Janet Bannister, an employee at the Warren House who was present at the motel on the day of the murders, to impeach the testimony of Helen Kondilidis and Etta Horne, the two Warren House employees who identified Vernon Evans as the gunman.

Weinstein testified that, from her vantage point in the Casa del Oro jewelry store, she saw the back and side of the gunman through the window and that he was approximately thirty feet away. She stated that she could not see the gunman’s face, but testified that he was African-American, despite her sworn testimony during federal proceedings that she could not discern his race. She also estimated his height as 5'7" or 5'8", whereas Evans is 5'2". Weinstein testified that she could not identify Evans during a line-up conducted shortly after the shooting and stated that upon viewing Evans ⁴²³ in the courtroom, she observed that the shooter was “a lot taller.” Derese Pinkney testified that shortly after the shooting, a man ran past her house from the direction of Warren House as she was standing on her front porch waiting for her children to arrive home from school.

She stated that he was African-American and estimated the person’s height to be between 5'8" and 5'9". She also asserted that Evans was not that man because he was much shorter. Pinkney, however, admitted that she did not get a good look at the man and stated that she would not be able to testify that that individual was any particular person and that she was not paying much attention to him. Grandison emphasized Janet Bannister’s statements and testimony as evidence impeaching Kondilidis’s and Horne’s identifications of Evans.

Bannister testified at the motions hearing that shortly before the murders, as she was leaving Warren House with Mildred Tally shortly after her shift ended at 3:00 p.m., she saw an African-American male in the lobby, who at one time stood next to her, and whom she would estimate as being between 5'5" and 5'8" in height. Further in her testimony, however, she stated that she was not paying much attention to him because she was clipping a coupon and only remembered that he was taller than her 5'1" frame. Moreover, she could not state with certainty whether Helen Kondilidis was present in the lobby after she left it and did not even know Etta Horne’s name, or whether Horne was present in the lobby. Grandison introduced the surveillance videotape from the Casa del Oro jewelry store as corroborating evidence for the statements and testimony of Bannister and Weinstein and as evidence impeaching Kondilidis’s and Horne’s identifications of Evans as the gunman.

He asserted that the videotape showed that Weinstein could demonstrate the gunman’s position with respect to the reception desk and supported her claims that Evans was not the triggerman. Also, according to Grandison, it verified the timing attested to by Bannister, which under ⁴²⁴ mined Helen Kondilidis’s testimony that she was in the lobby immediately prior to the shooting, as well as her identification of Evans as the shooter. Grandison further relied on the 302 statements 3 from Hessie Hightower and Alan Summerfield to impeach Kondilidis. Both Hightower and Summerfield stated that they were present in the Warren House lobby at approximately 2:45 p.m. on April 28, 1983, about thirty-five minutes before the shooting.

Hightower said that she only saw Scott Piechowicz in the lobby, whereas Summerfield “did not notice anyone there.” Grandison also presented the 302 report of the interview with Mary Lefkowitz who stated that she “left the Warren House at approximately 2:50 p.m. [and there] was no one in the lobby of the Warren House,” which was relied upon by Grandison to impeach Kondilidis regarding Kondilidis’s presence in the lobby. The 302 statement of Mary Williams, also alleged by Grandison to be Brady evidence, simply stated that she spoke with Bannister in the rear parking lot around 3:15 p.m. and did not state anything in relation to any individuals in the lobby. The 302 statement of Ruth Blatt, also relied upon by Grandison to undermine Kondilidis’s and Horne’s testimony concerning their presence in the lobby, indicated that Blatt arrived at the Needlepoint Shop in Warren House, which is adjacent to the lobby and front desk, at approximately 2:15 p.m. on April 28, 1983, and that after purchasing some items from the shop, departed between 3:00 p.m. and 3:15 p.m. shortly before the shooting. Blatt stated “that she did not recall seeing anyone in the lobby, nor did she observe anything that seemed unusual.” The 302 statements of Florence Tayman and Harriet Glazer, shop employees, corroborated Blatt’s statement. ⁴²⁵ The 302 reports of the interviews conducted with Evelyn Pushkin and Marie Valle, both of whom worked at the Village Beauty Salon located in the basement of the Warren House, stated that the two women left the salon together and separated in the lobby “at approximately 3:15 p.m.” on April 28, 1983, approximately five minutes before the shooting, with Pushkin departing through the front entrance and Valle leaving through the rear.

Pushkin stated that she saw Susan Kennedy and Scott Piechowicz at the front desk, but that there was no one else present in the lobby. Valle’s 302 statement reflected that she did not observe anyone in the lobby. Grandison argued that the 302 statements weakened the persuasive power of Kondilidis’s and Horne’s testimony asserting that they observed Evans in the Warren House lobby immediately prior to the killings. Grandison also relied upon the 302 statement of Irene Farace that she arrived at Warren House around 2:45 p.m. on April 28, 1983 and did not observe anyone in the lobby, as evidence impeaching Kondilidis and Horne.

Farace’s statement was confirmed by the 302 report of the interview conducted with Mildred Goldberg, the proprietor of the dress shop in the Warren House lobby. The 302 statement by Mary Gertrude Angel indicated that she arrived at Warren House at about 2:50 p.m. and entered through the rear entrance. She stated that she did not see Scott Piechowicz or Susan Kennedy behind the desk. Grandison also asserted that Darryl Primeaux’s grand jury testimony directly impeached Calvin Harper’s account of his activities with Rodney Kelly from April 26th to April 28th, 1983, which was key in the prosecution’s contention that Grandison directed Rodney Kelly to assist Evans in the murders.

Primeaux, throughout his grand jury testimony, disclaimed any participation in any of the activities alleged by Harper. He also stated, in response to a question about whether Kelly informed him that Kelly had a machine gun, that he was not that close with Kelly and that Kelly would not have told him that information. Grandison also presented the ⁴²⁶ handwritten statement from Harper to impeach his testimony that he saw Kelly on the same day he was released from the Training Center. At the conclusion of the hearings, the Circuit Court requested written memoranda consolidating and summarizing the arguments presented in connection with Grandison’s three motions, which Grandison and the State provided.

On February 25, 2005, Judge Daniel M. Long denied all of Grandison’s motions in a written opinion, in which he noted that the surveillance tape, the unredacted 302 statements, and the Primeaux grand jury transcript, although arguably relevant, would “require an abstract, if not imaginative, line of reasoning to deduce any beneficial value at trial.” This was the case, the court noted, because of the overwhelming evidence that Evans was the gunman. The court observed that the inconsistencies in the witnesses’ testimony were the result of the common phenomena of significant variations among eyewitness statements. Moreover, Judge Long stated that Grandison also failed to establish that the prosecution suppressed any of the evidence at issue. Judge Long held that there was no evidence that the prosecution had any information in its possession that Grandison lacked knowledge of and would have benefitted from knowing and concluded that the evidence presented was not material to Grandison’s guilt or sentence.

In his opinion, Judge Long stated that even if the identifications of Evans made by Kondilidis and Horne were discredited entirely, the result would be inconsequential because there remained significant and persuasive evidence that Grandison directed the murders. Therefore, Judge Long concluded that Grandison did not satisfy the three components of a Brady violation. The Circuit Court also was not persuaded that the Maryland death penalty statute is unconstitutional based on this Court’s prior holdings addressing the application of Apprendi v. New Jersey and Ring v. Arizona. Furthermore, the court held that Grandison was death eligible as an accessory before the fact under the language of the applicable aggravating ⁴²⁷ circumstance listed in the statute governing the imposition of the death penalty at sentencing.

On March 29, 2005, this appeal followed, presenting us with the following issues: 1. Did the State violate Mr. Grandison’s Due Process rights under Brady v. Maryland, and its progeny, by suppressing evidence favorable to him and material to his guilt or sentencing before and during his 1984 guilt/innocence trial? 2. Did the State violate Mr. Grandison’s Due Process rights under Brady v. Maryland and its progeny, by suppressing material evidence, favorable to him, before and during his 1994 re-sentencing trial? 3. Did Mr. Grandison’s sentence under Maryland’s death penalty statute violate due process of law under Apprendi v. New Jersey and Ring v. Arizona, where the jury was allowed to find that aggravating factors outweighed mitigating factors only by a preponderance of the evidence? 4.

Did Mr. Grandison’s conviction as an accessory before the fact to murder, and a court finding that he was not a first degree principal together with no finding that he was a second degree principal, preclude imposition of the death penalty? Because we determine that the evidence presented by Grandison as Brady evidence fails to satisfy Brady’s materiality requirement that the evidence present a reasonable probability that, had it been disclosed, the result of the proceeding would have been different, we hold that the State did not violate Grandison’s due process rights with respect to both his 1983 guilt/innocence trial and his 1994 re-sentencing under the terms of Brady . Moreover, we reaffirm our prior conclusion that Maryland’s death penalty statute does not violate the Supreme Court’s rulings in Apprendi v. New Jersey and Ring v. Arizona,. Furthermore, based on a plain meaning interpretation of the death penalty statute, we hold that Grandison is eligible for the death penalty as an accessory before the fact to murder where contractual murder constitutes the aggravating ⁴²⁸ circumstance forming the basis for the imposition of the death penalty.

Discussion Grandison argues that the facts of the present case satisfy the elements required in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), namely, that the State withheld the evidence from him either intentionally or unintentionally, that the suppressed evidence was favorable to Grandison, meaning that it was exculpatory, presented grounds for mitigation of sentence, or impeached witness testimony, and that the evidence was material when viewed in light of his 1983 trial and 1994 re-sentencing such that it created a reasonable probability that, had the evidence been disclosed, the result would have been different. According to Grandison, the State suppressed the evidence at issue because it was in the State’s possession, it was not disclosed during any of Grandison’s prior proceedings, and he could not have discovered it through his own investigation based on previously revealed evidence. Moreover, because the evidence, under Grandison’s interpretation, serves to impeach Kondilidis, Horne, and Harper, who testified for the State at the 1983 trial and the 1994 re-sentencing, the evidence is favorable to Grandison under Brady . With respect to the materiality prong of Brady , Grandison argues that the Circuit Court failed to adequately address the evidence in its conclusion that the suppressed evidence was not sufficient to present a “reasonable probability” of altering the verdict.

Grandison asserts that the Circuit Court conducted a “piecemeal” analysis rather than examining the evidence for its cumulative effect, which he contends is the applicable standard under Kyles v. Whitley, 514 U.S. 419, 439-40 , 115 S.Ct. 1555, 1568-69 , 131 L.Ed.2d 490, 509-10 (1995). Grandison also argues that the Maryland death penalty scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), because the statute permits the weighing of aggravating and ⁴²⁹ mitigating factors to be determined under the preponderance of the evidence standard as opposed to the reasonable doubt standard. Although he recognizes that this Court has repeatedly rejected his argument on numerous occasions, Grandison urges this Court to revisit the issue and rule in his favor. Grandison’s final argument is premised on the assertion that he is not eligible for the death penalty because he was found guilty as an accessory before the fact rather than a principal.

He bases this argument on the fact that the a person who murders a police officer is only eligible for the death penalty if he is at least a first or second degree principal and argues that it follows that an accessory before the fact to a contract murder would not qualify. He also relies upon language from Grandison v. State, 341 Md. 175 , 670 A.2d 398 (1995), in which this Court stated that the death penalty statute’s imposition of the death penalty on individuals convicted as second degree principals does not violate the Eighth Amendment, and Gary v. State, 341 Md. 513 , 671 A.2d 495 (1996), in which this Court stated that the death penalty could not be imposed on a person convicted of conspiracy to murder. The State argues that this Court should be guided by its opinion in Evans v. State, 382 Md. 248 , 855 A.2d 291 (2004), in denying Grandison’s claims. According to the State, because Evans presented nearly identical evidence and it was subject to a determination with respect to materiality, this Court should consider the Evans rationale persuasive.

The State also contends that the prosecution did not violate Brady , because it did not suppress material evidence that was favorable to Grandison. Specifically, the State asserts that Grandison, through counsel, was provided with the 302 statements that Grandison relied upon in the motions hearing during his federal prosecution. Moreover, the State argues that the prosecution’s discovery process consists of an “open file” policy in which the prosecutor made copies of documents in his possession, with the exception of work product, and provided them to defense counsel. The only documents not copied, according to the State, were photographs, work prod ⁴³⁰ uct, and copies of hearing or trial transcripts.

Moreover, the State argues that Grandison and his counsel were provided a copy of the surveillance video at issue in the case sub judice. The State further contends that the evidence also was not favorable nor material to Grandison. Although some of the evidence might be considered “marginally relevant,” in the State’s view, it is not “favorable” under the Brady standard. The State asserts that Grandison’s proffered evidence fails to meet the materiality standard because, although it may impeach the testimony of Helen Kondilidis and Etta Horne, it did not place the entire case in a different light so as to undermine confidence in the verdict.

The State also urges this Court to conclude that the weighing process in Maryland’s death penalty statute is constitutional, consistent with prior decisions rendered by this Court and asks that this Court affirm its previous holdings. The State asserts that Grandison’s reliance on Ring v. Arizona is misplaced as the Supreme Court has stated that its decision in Ring was not intended to have retroactive application. Finally, the State contends that the death penalty was properly imposed in Grandison’s case. The State asserts that the aggravating factor, contractual murder, which was alleged in this case, is an exception to the requirement in Maryland’s death penalty statute that only a first degree principal to first degree murder is death eligible.

Therefore, according to the State, Grandison was subject to the death penalty and his death sentences were proper. The Brady Analysis Grandison’s primary contention is that he was prejudiced by the cumulative effect of the State’s alleged repeated violations of its constitutional obligations under Brady . Therefore, we shall begin our analysis of the elements that Grandison is required to establish to prevail on his Brady claim. As we recently stated in Conyers v. State, 367 Md. 571, 597-98 , 790 A.2d 15, 30-31 (2002): ⁴³¹ The Supreme Court made clear in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution.” [Brady, 373 U.S.] at 87, 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215 .

In order to establish a Brady violation, Petitioner must establish “(1) that the prosecutor suppressed or withheld evidence that is (2) favorable to the defense — either because it is exculpatory, provides a basis for mitigation of sentence, or because it provides grounds for impeaching a witness — and (3) that the suppressed evidence is material.” Evidence that is obviously favorable must be disclosed even absent a specific request by the defendant. GRANDISON v. STATE [ 390 Md. 412 (2005).] 431 Impeachment evidence, as well as exculpatory evidence, is “evidence favorable to an accused.” [C]fNapue v. People of Ill., 360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959) (holding that the prohibition against the use of false testimony applies even when the evidence goes only to the credibility of the witness because the jury’s assessment of credibility can be determinative of guilt or innocence). The standard for measuring materiality of the undisclosed evidence is strictest if it “demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” In [United States v.] Agurs, [ 427 U.S. 97, 103 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342 (1976)] the Supreme Court explained that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” In cases where there is no false testimony but the prosecution nonetheless fails to disclose favorable evidence, the standard for materiality, in the language of the Supreme Court, is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding ⁴³² would have been different. A ‘reasonable probability’ is a probability sufficient to undermine the confidence in the outcome.” [S ]ee ...

Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).[ 4 ] Materiality is assessed by considering all of the suppressed evidence collectively. The question, therefore, “is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same,” which is determined in reference to the sum of the evidence and its significance for the prosecution. (Footnote omitted and alterations in original). We observe that Brady jurisprudence predominantly addresses the materiality prong.

See, e.g., Kyles v. Whitley, 514 U.S. 419, 434-154 , 115 S.Ct. 1555, 1565-75 , 131 L.Ed.2d 490, 505-18 (1995); United States v. Bagley, 473 U.S. 667, 678-84 , 105 S.Ct. 3375, 3381-85 , 87 L.Ed.2d 481, 491-95 (1985); United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342 (1976); Brady, 373 U.S. at 87-91 , 83 S.Ct. at 1196-98 , 10 L.Ed.2d at 218-21 . Various courts have recognized that the materiality prong is the gravamen of analysis under Brady. See, e.g., United States v. Kubiak, 704 F.2d 1545, 1550 (11th Cir.), cert. denied, 464 U.S. 852 , 104 S.Ct. 163 , 78 L.Ed.2d 149 (1983) (in determining whether nondisclosure of exculpatory information constituted a denial of due process, “the focus is not upon the fact of nondisclosure, but upon the impact of the nondisclosure on the jury’s verdict”); Floyd v. State, 902 So.2d 775, 778 (Fla.2005) (stating that “the focus in postconviction Brady-Bagley analysis is ultimately the nature and weight of undisclosed information”); State v. Louviere, 833 So.2d 885, 897 (La.2002) (“[W]e observe that in the main, ⁴³³ the Brady jurisprudence focuses on the materiality inquiry”); Atkinson v. State, 778 A.2d 1058, 1063 (Del.2001) (“In this case, as in most cases where the issue of a ‘Brady violation’ is raised, the locus is on the third component — materiality”); State v. Marshall, 148 N.J. 89 , 690 A.2d 1, 33 (1997) (“The focus of the Brady analysis often is whether evidence is sufficiently ‘material’ to the defendant’s case to come within the