Gray v. State

KENNEY, J. Julian Gray appeals from an order of the Circuit Court for Baltimore City, denying a petition to reopen a previously concluded postconviction proceeding because reopening the proceeding was “not in the interests of justice.” In this appeal, appellant asks the following question: Was denial of the petition to reopen [the] postconviction proceeding, unadorned by any supporting statement or memorandum as to the issues upon which the petition was based, erroneous, in that it served to render meaningful appellate review impossible? Answering “no,” we shall affirm the judgment of the circuit court. ⁶³⁷ FACTUAL AND PROCEDURAL BACKGROUND On April 17, 1991, a jury convicted appellant of the second degree murder of Randy Hudson. He was sentenced to thirty years for the murder conviction plus five years consecutive for the felonious use of a handgun. On direct appeal, he challenged the convictions on two grounds.

First, he argued that the trial court violated his right to confrontation and cross-examination by erroneously allowing hearsay evidence. Second, he contended that the trial court erred by refusing to allow him to argue about the lack of fingerprint evidence with respect to the spent handgun cartridges. We affirmed appellant’s convictions in an unreported per curiam, opinion, Gray v. State of Maryland, No. 1006, September Term, 1991, 91 Md.App. 841 (filed April 20, 1992). In 1999, appellant collaterally attacked his convictions under the Uniform Postconviction Procedure Act (“UPPA”), as codified at the time at Maryland Code (1957, 1996 Repl.

Yol), Art. 27, §§ 645A-J. 1 In his postconviction petition, appellant ar-gied that he was entitled to a new trial because of the ineffective assistance of counsel. He contended that trial counsel had failed to (1) investigate affirmative defenses; (2) effectively cross-examine Erika McCray, a witness for the prosecution; (3) object to inadmissible evidence; and (4) present mitigating evidence at sentencing. At the postconviction hearing, appellant abandoned all but the first allegation, which concerned the trial testimony of McCray, who had implicated appellant in the murder. McCray testified that she and three friends had been at Peggy Riddick’s house on the day that Hudson was shot.

As they prepared to leave Riddick’s house in the early evening, McCray said she was standing “right at the doorway” and saw “a bunch of guys running through the alley.” Because she “thought they were stickup boys,” McCray and her friends went back inside Riddick’s house. After one or two minutes, ⁶³⁸ they emerged again and McCray observed both appellant and the victim standing on a nearby ramp leading to a laundry room in an adjacent building, “having words.” She heard five or more gunshots, observed “the [victim] falling down” and appellant “going [in] another direction.” At that time, McCray said she was standing “on the porch at [Riddick’s] house.” Appellant contended that trial counsel had rendered ineffective assistance by failing to investigate whether McCray could have observed the murder from her location on Riddick’s front porch. Appellant explained that a wall of an adjacent building obstructed the view of the laundry room ramp from Riddick’s front porch. He argued that McCray could have observed the murder only if she was standing on the steps leading down from the porch and not from the “doorway” of the house.

Four witnesses, including appellant, testified at the postcon-viction hearing. Appellant and Jackie Gray, appellant’s sister, testified that they had informed trial counsel that McCray could not have observed the murder from the front porch. Riddick, who had not testified at the trial, stated that she had been prepared to testify that McCray could not have observed the murder from the doorway of the house. John Denholm, appellant’s trial counsel, testified that he had not been informed of additional witnesses and could not recall whether he had visited the crime scene.

The circuit court denied appellant’s request for postconviction relief in a “Statement of Reasons and Order of Court,” which provided the following relevant information: FACTS At the postconviction hearing, [appellant] and [Jackie] Gray testified that they informed trial counsel ... that the State’s only eyewitness (Erika McCray) could not possibly have seen the murder from the porch of a nearby house where she testified she was located. Peggy Riddick, who lived in the house in question, also testified that she was ready and available to testify at [appellant’s] trial that you ⁶³⁹ cannot see the murder site if you are located at the front door on her porch. * * * [Appellant] asserts that counsel should have visited the murder site and followed up on the information provided by [him] and Frankie Gray that it was impossible for [McCray] to see the murder from the porch of the house in question. In failing to do so, [appellant] argues that trial counsel was unreasonably deficient in his duties and his non-action prejudiced the case. ANSWER The deficiency prong of the Strickland test is arguably satisfied.

In the instant case, it would have been prudent to visit or at least obtain pictures of the homicide scene to better assess the testimony of [McCray]. In addition, the record supports [appellant’s] view that [McCray] could not have actually seen who shot the victim. However, the second prong of Strickland, counsel’s performance prejudiced the defense, is not satisfied. Even if counsel had visited the crime scene, it would have not have changed the testimony offered by [McCray] which completely contradicted [appellant’s] alibi defense. [McCray] testified that she saw [appellant] walking with the victim in the direction of where the murder took place; that the victim and [appellant] were “having words;” that she heard five or more shots; that she saw the victim falling down; and that she saw [appellant] leaving the murder scene going in the opposite direction down an alley. [McCray] was no longer on the porch of the house in question when she witnessed these events.

She had moved down the steps and off to the side enabling her to have a better view of the aforementioned events. Therefore, although she could not testify to who actually shot the victim, she did provide strong circumstantial evi ⁶⁴⁰ dence that [appellant] committed the murder. She also completely destroyed [appellant’s] alibi defense that he was at a hospital during his child’s birth. The jury simply found [McCray] more credible.

Counsel’s visit to the murder site would not have prevented [McCray] from putting [appellant] at the scene of the homicide. Appellant filed an application for leave to appeal from the denial of postconviction relief, which we denied in an unreported per curiam opinion, Gray v. State of Maryland, No. 365, September Term, 2000 (filed April 2, 2001). On August 21, 2003, appellant filed a petition to reopen the postconviction proceeding pursuant to Md.Code (2001), § 7-104 of the Criminal Procedure Article (“CP”), asserting his innocence and arguing that his postconviction counsel had rendered ineffective assistance. 2 In support, appellant relied upon affidavits that an investigator had procured from McCray and Riddick on May 9, 2003. In her affidavit, McCray recanted her trial testimony, averring that she had lied about witnessing the murder.

She stated that her testimony was based upon information that she had learned from Shauna Hantz, one of the friends who was present with McCray on the evening of the murder, and who is now deceased. Riddick averred: I lived at 1823 Ruxton Avenue, Baltimore, Maryland at the time of this incident. Erika McCray, Shauna Hantz, and Tina were inside my house at the time when we heard gunshots going off outside. There is no way that Erika McCray could have seen who did the shooting as she was inside my house at the time.

With respect to the first allegation, appellant argued that reopening was necessary to remedy the violation of his due process rights that resulted “in the injustice of the conviction of an innocent person.” He contended that “no reasonable ⁶⁴¹ juror, knowing that McCray perjured herself, would have voted to convict” him. Moreover, appellant could not have raised the issue of “McCray’s epiphany” at the prior postcon-viction hearing because McCray had not “repudiated her trial testimony.” Regarding the second allegation, appellant argued that his postconviction counsel’s questioning of Riddick was inadequate because he did not ask Riddick where McCray was standing when the murder occurred. According to appellant, if the correct questions had been asked, the information that Rid-dick provided in her affidavit, i.e., that McCray was not outside when the murder occurred, would have been elicited during the postconviction hearing. The State responded that the petition to reopen should be denied for two reasons.

First, relying on Diggs v. Warden, 221 Md. 624 , 157 A.2d 453 (1960), and Gordon v. Superintendent,, Maryland Correctional Institution, 2 Md.App. 355 , 234 A.2d 486 (1967), the State argued that newly discovered evidence, i.e., McCray’s recanted testimony, was not a basis upon which to grant postconviction relief. Second, it asserted that the performance of appellant’s postconviction counsel was not deficient and did not prejudice appellant. The circuit court denied the petition in an order reading: ORDER [Appellant] has filed [a] Petition to Reopen Postconviction Proceedings and an attendant Memorandum. The State has filed [a] Motion in Opposition and an attendant Memorandum.

This Court has reviewed and considered the matters submitted by both counsel as well as the post-conviction proceedings relevant hereto. IT IS ORDERED this 10th day of October 2003, by the Circuit Court for Baltimore City pursuant to [CP] § 7-104 upon FINDING that to reopen postconviction proceedings in the matter ... is “not in the interests of justice.” AND, THEREFORE, [appellant’s Petition] to Reopen Postconviction Proceedings is DENIED, without hearing. ⁶⁴² Overview of the UPPA The UPPA and Maryland Rules 4-401 et seq. apply to a person who is “confined under sentence of death or imprisonment” or “on parole or probation.” CP § 7-101. Under the UPPA, a convicted person may file a petition for postconviction relief at any time if he or she claims that (1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. CP § 7-102(a).

A person also may begin a postconviction proceeding if he or she “seeks to set aside or correct the judgment or sentence” and “the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person’s conviction.” CP § 7 — 102(b). A petition must include, among other things, the allegations of error, “a concise statement of facts supporting the allegations of error,” the relief sought, and a statement of facts showing that the allegations of error have not been waived. Maryland Rule 4-402(a). A person may file only one postcon-viction petition for each trial or sentence, CP § 7-103(a), and, in a case where a sentence of death has not been imposed, the petition must be filed within ten years of imposition of the sentence, unless extraordinary cause is shown, CP § 7-103(b)(1).

As noted, a court may only “reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.” CP § 7-104. Generally, a person filing a petition is entitled to assistance of counsel and a hearing. CP § 7-108(a); see Md. Rule 4-406(a). When, however, a person seeks to