Gravely v. State

KENNEY, J. On December 16, 2003, Kenneth Gravely, appellant, acting pro se, filed a motion for new trial in the Circuit Court for Prince George’s County on the grounds of newly discovered evidence. The circuit court denied appellant’s motion as “moot,” without further comment, on December 22, 2003. Appellant presents two questions for our review, which we have consolidated and reworded as follows: Did the circuit court err in denying appellant’s December 16, 2003 motion for a new trial? For the following reasons, we affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY On March 6, 2002, a jury sitting in the Circuit Court for Prince George’s County convicted appellant of first degree ⁷⁹ murder, conspiracy to commit murder, and solicitation to commit murder. Before sentencing, on March 15, 2002, appellant mailed a letter to the court claiming that he was denied effective assistance of counsel and deprived of his right to testify. On May 15, 2002, appellant’s new counsel filed a motion in the circuit court entitled “Supplement to Defendant’s Motion for New Trial” (“Supplement I”). In Supplement I, counsel for appellant argued, among other things, that appellant’s March 15 letter should be treated as a motion for a new trial under Maryland Rule 4-331 (a) and that, since appellant’s trial, new evidence had been discovered that the State had failed to provide appellant with written statements he had made, in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).

Appellant’s sentencing was scheduled for December 17, 2002. At the commencement of the sentencing proceeding, counsel for appellant filed a “Second Supplement to Motion for New Trial” (“Supplement II”), in which counsel for appellant claimed, among other things, that the following evidence was newly discovered and had been withheld by the State in violation of Brady and Maryland Rule 4-263: 1 (A) Defendant wrote several statements for the police during his detention on June 1-2, 2001. The State has only provided a single written statement from that interview. (B) Defendant was interviewed by several investigators during his detention on June 1-2, 2001.

He provided each investigator with a consistent version of events. The State provided the defendant with notes from only two investigators, Hoffman and Conto, who interviewed him during that detention. Notes of additional investigators have been withheld. (C) Defendant was interviewed by Detective Rhone for approximately 10 hours during his detention on June 12, ⁸⁰ 2001.

During that interview, the defendant provided Detective Rhone with an exculpatory version of events. Notes from that interview have been withheld. (D) The State provided witness Christine Bailey with monetary assistance as a result of her cooperation in this matter. The State failed to reveal this fact to defense counsel prior to the trial of this matter.

Apparently having received a copy of Supplement II prior to the sentencing hearing, the State filed an answer at the hearing, in which it claimed that appellant’s motion was not timely filed, that the evidence complained of was not newly discovered, that the evidence was disclosed to appellant’s trial counsel, and that the motion raised issues, including the effectiveness of appellant’s trial counsel, which could only be addressed in a postconviction proceeding. The court then heard argument on appellant’s motion for a new trial. Initially, counsel for appellant argued that appellant’s March 15 letter, in which appellant explained that he was wrongly imprisoned and was denied effective assistance of counsel, should be treated as a motion for a new trial pursuant to Rule 4 — 331(a). 2 The State opposed appellant’s request, claiming that ineffectiveness of counsel was not a basis for awarding a new trial and was, more properly, a matter for postconviction. Alternatively, the State argued that the letter did not comport with the Rules, pointing out that, in his March 15 letter, appellant never even requested a new trial.

Ruling on appellant’s motion to treat the March 15 letter as a motion for new trial pursuant to Rule 4-331(a), the court stated: I’m going to deny the Motion for New Trial. There is a remedy for ineffectiveness of counsel, and I agree it is better done in a post-conviction proceeding, ⁸¹ because there is going to be transcripts, there is going to be the opportunity for testimony — all of that. Also I find that the letter was not enough to preserve the time requirements for the purpose of new trial,.... Counsel for appellant then argued that appellant should be awarded a new trial pursuant Rule 4-331(c) on the basis of the newly discovered evidence as cited in Supplements I and II. 3 The following colloquy occurred, which we quote at length, due to its importance to this appeal: [Counsel for appellant]: Now, there is there’s — also, Your Honor, as a portion of our Motion for New Trial, there was — an argument that there was newly-discovered evidence.

That’s obviously — there is no time limitation. The Court: Well, I read that to be that there is different evidence but not necessarily newly-discovered, discoverable. [Counsel for appellant]: Actually, there is newly-discovered evidence. It’s a small point, and something we could probably deal with in a fairly short shrift. A small but very important point: There was provided to us by the government ... |The State]: I thought the Court denied the motion, based upon- The Court: I did. [Counsel for appellant]: I was just— The Court: I was just giving you the opportunity to put whatever you wanted on the record. ⁸² [The State]: Okay.

The Court: I’ve already ruled on it, but, you know, there’s a way — when I was out there, making a living, I wanted, at least, to have the opportunity to spread the information on the record, so it was preserved in case the judge made a mistake, and I — I don’t have any problem with that. [Counsel for appellant]: Your Honor, in terms of the Motion for New Trial, I mean, maybe it wasn’t presented in quite a way that is understandable, but I understand that there is a time — that’s my— The Court: Trying to say the judge is dumb, but that’s all right, counsel. Go ahead. [Counsel for appellant]: There is a time as to a Motion for New Trial. The Court: Right. [Counsel for appellant]: There is no time limit, with regard to Part C of the Rule 4-331C, which is newly discovered evidence. Under that portion of the Rule, [t]he Court may grant a new trial or other appropriate relief, on the ground of newly-discovered evidence which could not have been discovered by due diligence in time to move for a new trial.

The Court: And what is it that you have— * * * [Counsel for appellant]: On September 18, we were provided with information by the State’s Attorney’s Office that the main witness, in this case, Christina Bailey (phonetic), was provided $2,070, as part of a relocation fee. The Court: Relocation fee. The Court: I think I was aware of that at the trial; I mean, I think I was aware of it, as part of the evidence, that she was given relocation. [Counsel for appellant]: No, I have the trial transcript, and it wasn’t in the trial transcript, and we have — [appellant’s ⁸³ trial counsel] is here, available to testify, but I think [the State] will stipulate that was something that was just provided to us on September 18, 2002. [The State]: That’s correct. [The State]: I don’t recall giving it to [appellant’s trial counsel].... [Counsel for appellant]: And I — I’ve requested, also, from the State’s Attorney’s Office, any documentation that might support that payment, and I think that that’s important Your Honor, because we don’t really know who this — who this money was paid to, and that would be relevant and may go to her bias. The Court: Okay. [Counsel for appellant]: And, so, I’ve not been provided any documentation, as to who this money was paid to, and I would request that, at this time. [The State]: Well, I have, lor [t]he Court — we provided a request for it.

It kind of defeats the purpose of relocating someone if we show the Defense who we relocated to. This money was not paid to a witness, in any way. We have the — in fact — release of the person that it was paid to and the check to that person. I’ll show [t]he Court, in camera, if [t]he Court would like to, but I don’t think you — I’m not going to show it, unless— The Court: I don’t — I don’t need to look at it. [The State]: Okay. [Counsel for appellant]: And, obviously [t]he [c]ourt’s not going to allow me to view it.

The Court: No. I’m not. [Counsel for appellant]: I understand the security concerns. The Court: Well, I’m doing that on the record, just so the record’s clear when you go down. [Counsel for appellant]: Okay; and, for the record, I would just say that I have information that this money was paid to an individual who is a relative of Miss Bailey (phonetic), the ⁸⁴ witness, and, so, I think that would play into whether or not there’s some bias on her part. If she’s indirectly receiving the money as, essentially, a payment, it could go to her bias, in this case, and her desire to curry favor with the State, and, so, that’s my proffer, for the record. The Court: Okay.

Sure. [Counsel for Appellant]: Your Honor, in terms of the Motion for New Trial, I think this — this portion, this is not something that the Defense was aware of at the trial of this matter. This is, for that reason, newly-discovered evidence, one, and, secondly, Your Honor, I would contend that this is very clearly Brady material. The Court: Might be. [The State], didn’t — I—my recollection was that there was knowledge that she would be relocated. Maybe not the amount of money. [The State]: Maybe not the amount of money[.] I don’t know.

I don’t know. The Court: Really ... Might be wrong. [Counsel for appellant]: Your Honor, if this isn’t clear, maybe an evidentiary hearing is necessary. The Court: Well, I think it might go— [Counsel for appellant]: [The State] clearly told me that [appellant’s trial counsel] ... had not been provided with this.

The Court: Well, he just said — he just told me — and it’s on the record — that he has no recollection of telling [appellant’s trial counsel] ... how much was paid or who it was paid to. [Counsel for appellant]: Right; and I can tell you I’ve read the trial transcript. There is no reference to it, and, if there is some implication here that, perhaps, the Defense was aware of it, then, that’s something we need to clear up. ⁸⁵ The Court: Well, my point is that, if the Defense was aware of it and it wasn’t used, that would be an appropriate post-conviction proceeding, which everyone, then, has a chance to explain what was going on. [The State]: And, as counsel said, as we have due diligence, he asked me what moneys were paid to relocate witnesses. I just gave it to him. Anybody who would have asked, I would have given it to.

It’s not the normal course. There were a number of people, number of trials, where witnesses were relocated for a short time or long time. * * * [Counsel for appellant]: Your Honor, also, attached to the letter that I’ve submitted, these materials were all provided to me at my request. These are all materials that were not provided to the Defense, in this case, and the only thing that I would point to specifically, in terms of something that I believe violated Brady, is the notes of Detective Frank Kenfeld ..., in which he interviews [appellant] on the date of his arrest. [Appellant] gives him an accounting of his whereabouts during the day of the murder, and I believe that is exculpatory evidence. He essentially gives an alibi.

Now the reason that this is important: [appellant] — or, [appellant’s trial counsel], in this case — had to make certain strategic decisions, as to how to present this case, and, had he known that [appellant], on the date of his arrest, asserted his innocence and gave an alibi that would have played into his defense, this is something that is definitely exculpatory and should have been provided to [appellant’s trial counsel] [¶]... ] in this case, and, in terms of the — payment to Christine Bailey [ ] — again, something that was exculpatory — it went to her bias and should have been — should have been provided, and [t]he Court — recalls who Christine Bailey [ ] was and the nature of — the nature of her testimony. The Court: Okay. New trial, denied. ⁸⁶ Following the court’s consideration of appellant’s motion for a new trial, the court sentenced appellant to life imprisonment. The court’s order dated December 17, 2002, and the docket sheet entries from that date, reflect that the court denied both “[d]efendant’s motion to treat letter from defendant dated 9/18/02 [sic ] as timely filed motion for new trial” 4 and “[defendant’s motion for new trial.” Appellant subsequently appealed his conviction to this Court, which we affirmed in an unreported opinion.

Gravely v. State, No. 2784, September Term 2002, filed May 21, 2004 (“Case I”). In Case I, appellant did not appeal from his sentence or from the December 17 denial of his motion to treat his March 15, 2002 letter as a Rule 4-331(a) motion for new trial or the denial of his Rule 4-331(c) motion for new trial. Nearly one year after sentencing, on December 16, 2003, appellant, without the assistance of counsel, filed a motion for a new trial based on newly discovered evidence and requested a hearing. Specifically, in his December 16 motion, appellant claimed that the following evidence was newly discovered: 8.

Before [sentencing the [defendant retained new counsel, Mr. Griffiths. Mr. Griffiths was provided with information by the State’s Attorney’s Office that the main witness in this case Christina Bailey was provided $2070 as part of a relocation fee. The money was paid to a relative of Ms. Bailey. 9. The State’s Attorney, ..., admitted that he did not give this information to [ ] ([defendant's trial counsel). 10.

The State’s Attorney ... stated that if trial counsel would have asked for moneys paid to relocate witnesses, it would have been given. 11. The State did not give [defendant's trial counsel, ..., nor the [defendant the notes of Detective Frank ⁸⁷ Kenfeld; which is the of [sic ] [defendant, where the [d]efendant states his whereabouts during the day and time of these crimes. The [defendant's alibi was not given to [defendant's trial counsel. Further according to appellant’s pro se motion, the State’s disclosure failures violated Brady .

On December 22, 2003, the circuit court denied appellant’s December 16 motion as “moot.” Appellant filed the instant appeal on January 14, 2004. STANDARD OF REVIEW Appellate courts generally review a trial court’s disposition of a motion for new trial on an abuse of discretion standard. Merritt v. State, 367 Md. 17, 27 , 785 A.2d 756 (2001) (discussing Washington, B. & A. Electric R. Co. v. Kimmey, 141 Md. 243 , 118 A. 648 (1922)). Where, however, the appeal is not solely from the disposition of the motion, but as here, the denial of a hearing on the motion based on newly discovered evidence, the Court of Appeals has indicated that appellate courts will review whether the trial court erred.

See Merritt, 367 Md. at 27, 30-31 , 785 A.2d 756 . See also Jackson v. State, 358 Md. 612 , 751 A.2d 473 (2000) (holding that the circuit court erred in denying a motion for new trial on the basis of newly discovered evidence where the court denied the defendant’s motion without a hearing); Kimmey, 141 Md. at 250 , 118 A. 648 (“a trial judge has virtually no ‘discretion’ to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted”). DISCUSSION Appellant initially asserts that the circuit court erred in denying his December 16 motion without a hearing, which he claims was required by Rule 4-331(e). Appellant also contends that the circuit court abused its discretion in not granting his December 16 motion for a new trial on the merits. ⁸⁸ The State avers that appellant was provided a hearing on his motion for a new trial at the December 17, 2002 sentencing hearing.

Because he did not contest the sufficiency of the December 17 hearing or the denial of his original motion for a new trial pursuant to Rule 4-331(c), the State asserts that appellant “has waived his current complaint.” Alternatively, the State claims that any error in denying appellant a hearing on his motion was harmless beyond a reasonable doubt. In Campbell v. State, 373 Md. 637 , 821 A.2d 1 (2003), the Court of Appeals considered, among other things, whether a trial judge had discretion to consider an “out-of-time supplement to a timely filed motion for a new trial in a criminal matter.” Id. at 640 , 821 A.2d 1 . In that case, within ten days of his