Harris v. State

ALAN M. WILNER, Judge, Retired, Specially Assigned. In April, 1997, petitioner, Robert Harris, was convicted by a jury in the Circuit Court for Baltimore City of first-degree murder, conspiracy to commit murder, use of a handgun in the commission of a crime of violence, and solicitation to commit murder, for which he was sentenced, in the aggregate, to life imprisonment without parole plus 20 years consecutive. The judgments were affirmed on appeal. In this Post Conviction Act proceeding, petitioner complains that the State, in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), as refined and explicated in later cases, failed to disclose certain critical ■ evidence relating to plea bargains entered into by two of the principal witnesses against him.

The trial court, in the post conviction proceeding, found that the State had disclosed sufficient information concerning the plea bargains and that there was no Brady violation. After granting Harris’s application for leave to appeal that decision, the Court of Special Appeals, in an unreported opinion, concluded that the State did, indeed, withhold impeachment evidence that should have been disclosed but nonetheless affirmed the trial court order on the ground that the non-disclosure was not material—that it did not render the ⁵⁰⁷ verdicts unworthy of confidence and that the record did not generate a reasonable probability that a different result would have occurred had the information been disclosed. We agree with the intermediate appellate court that the information at issue was Brady material and was required to be disclosed; we disagree, however, with that court’s conclusion that the non-disclosure was not material. We shall reverse.

BACKGROUND The victim in the case was Teresa McLeod, Harris’s fiancé. On the evening of January 26, 1996, she and Harris were parked in Harris’s car when a masked gunman approached and ordered them out of the car. After exiting the car, Ms. McLeod was shot, at close range, once in the hand and five times in the back; she died from her wounds. Harris was shot once in his left leg.

The person who ordered them out of the car was Russell Brill. The State charged that this entire event was orchestrated by Harris. It produced evidence that Harris solicited Brill to kill Ms. McLeod and make it look like a robbery, that he had given Brill the gun used in the killing and informed him of when and where the shooting was to occur, that Brill was fully prepared to carry out his assignment but, at the last moment, took pity on Ms. McLeod, who was pleading for her life, and refused to shoot her, that Harris then took the gun and shot her himself, that he then returned the gun to Brill and directed Brill to shoot him in the leg, and that Brill did so and then fled. Although more than thirty witnesses testified at trial and there was a good bit of conflicting evidence, the issue of Harris’s role in what occurred and, in particular, who shot Ms. McLeod, hinged largely on the relative credibility of Harris and Brill, who told very different stories.

Harris’s Version Harris testified that he moved in with Ms. McLeod and her mother and son in 1992 and that he and Ms. McLeod became engaged in September, 1995. During that period, he obtained four handguns, including a Glock 19 nine mm. gun which ⁵⁰⁸ proved to be the murder weapon. Concerned about having those weapons in the home with Ms. McLeod’s nine-year-old son, he decided to sell them. On January 25,1996, the day before the murder, Harris said that he sold the Glock to Mr. Brill, whom he had met earlier that month.

Brill did not have the purchase money at the time, so they arranged to meet the next evening at Violet Lil Park. 1 He and Ms. McLeod went to the park on the evening of the 26th for that purpose. While they waited in the parked car for Brill to appear, a man, whom he did not recognize but told the police was an African-American, approached, pointed a gun at him, and directed him to get out of the car, which he did. After the gunman relieved Harris of his money, he ordered Ms. McLeod out of the car and demanded her purse. She threw her purse into the air and started to run, at which point the gunman shot at her and at Harris, striking him once in the leg.

Harris said that he lost sight of Ms. McLeod and initially assumed that she had escaped. Using his cell phone, Harris called 911. While he waited for help, a bystander approached, saw Ms. McLeod lying on the ground, and advised that she was not moving, at which point Harris said he began to cry. 2 Eventually, the police arrived and found Ms. McLeod dead and Harris angry and in pain from his wound. He told them that a black male, tall, thin, and wearing a camouflage jacket and black and white pants, had robbed and shot him and Ms. McLeod.

The officers observed Ms. McLeod’s purse, containing about $48, near where her body lay. She was also wearing jewelry, including a Gucci watch, a gold ring with seven diamonds, a gold wedding band with four diamonds, and gold earrings. In Harris’s car they discovered a magazine (bullet-holder) con ⁵⁰⁹ taining eight bullets. Harris was excited but not crying.

A search of the area revealed no African-American (or any other) suspects. Brill’s Version Brill, who is white, testified he had met Harris about two months prior to the killing. A short time later, Harris expressed interest in having Brill sell for him a load of drugs and a case of Glock handguns, but nothing ever came of that, or of Harris’s desire to buy a handgun—a Mack 11—from Brill. Near the end of December, 1995, Harris told Brill that he had a friend who was looking to have his wife killed in order to collect insurance and asked Brill to be on the lookout for a triggerman.

A few days later, Harris pursued the matter and laid out a scenario for Brill under which Brill would kill the woman as she left work—that he should “act like you’re robbing her, demand her purse and her money, shoot her down, run straight down behind the building through the alley and I’ll be waiting for you in the parking lot.” Harris said that he would supply the weapon—a Glock 19. By the end of the conversation, the plan changed to have the killing occur early in the morning as the lady went to work, but it later reverted to an evening event. Brill agreed to perform the killing for $20,000. The night before the killing was initially planned to occur, according to Brill, Harris gave him both the gun and some gloves to wear.

Brill and a friend, Nicholas Jantz, took the gun to the site and test-fired it. He and Jantz then got high on marijuana, however, and the murder had to be postponed. Harris was angry but rescheduled the killing for January 26. On that day, he met Brill and took him to the park where the killing was to occur later in the evening, gave Brill a pager, and said that he would page Brill later to let him know when he and Ms. McLeod would be there.

His instruction was that Brill was to force both of them out of the car, shoot and kill Ms. McLeod, and then shoot Harris to make it look like a robbery. ⁵¹⁰ Between 8:30 and 9:00 on the 26th, Brill received the page from Harris, put on black clothes, a beany hat, a mask, and the gloves given him by Harris, proceeded to the park, and waited. When Harris arrived, he got out of the car and walked toward Brill, as though he was supposed to meet him there. Brill pulled out the gun and pretended to rob Harris. At Brill’s instruction, Harris told Ms. McLeod to get out of the car, and he then backed away to the front of the car.

Brill pulled a gold chain off her neck, at which point she began to cry. He then grabbed her purse as she was pleading for her life. Brill testified that she was in tears, she was terrified, “and I just looked at Rob, Robert Harris, I said man, I can’t do this shit.” Although saying nothing, Ms. McLeod looked as if in wonderment how the robber would know Harris’s name. Brill started to back away when Harris grabbed the gun, pushed him back, turned to Ms. McLeod, and started firing.

She tried to run but fell to the ground, and Harris stood over her and shot her several times. Brill said that at least one bullet hit her before she fell. At that point, Harris, visibly angry, approached Brill and pointed the gun at him. Brill grabbed the gun, took it from Harris, shot him in the leg, and then fled, discarding the necklace as he ran.

What Happened Next Harris was taken to the hospital for treatment of his wound. While he was there, Detective Darryl Massey interviewed him briefly and arranged for a gunshot residue test to be performed. The results of that test were negative, although the lab technician testified that, because such residue could be washed or wiped off, a negative finding did not mean that the person had not fired a gun. In an interview conducted the next day at the police station, Harris told Detective Massey that he and Ms. McLeod were on their way to a restaurant when they got into an argument, that he pulled over to discuss the issue, and that it was while they were parked that a black male approached the passenger side of the vehicle and commenced to rob and shoot him and Ms. McLeod.

Massey did not regard Harris as a suspect at ⁵¹¹ that point, and, when the interview was completed, Harris left the station. Later that night or early the next morning, Massey received a telephone call, and, from the information related to him, which he did not describe, Massey brought Nicholas Jantz, Brill’s friend, to the station for questioning. The interview took place on Sunday, January 28, and, based on Jantz’s testimony in court, he informed the detective, among other things, that Brill had come to his house one evening after meeting with Harris and revealed that Harris had offered him $20,000 to murder a woman. 3 Jantz added that the murder weapon was to be a Glock 19, which Harris would supply, and that Harris “was going to take him to this woman’s work and he was going to go in and sort of commit a common robbery and then shoot her, then come back out and about three blocks away, Mr. Harris was going to pick [Brill] up.” Jantz further testified, and thus presumably told Detective Massey, about subsequent contacts between Harris and Brill—that on the day of the murder he was with Brill when Harris picked them up and took them to the park and gave Brill a pager, 4 and that about a week before the murder but close to the time when it was first scheduled to occur, he saw Brill with the Glock 19 murder weapon. Jantz said that, around 8:30 on the evening of the murder, while he and Brill were together, Brill received a page from Harris and said that he had to leave.

Jantz later heard the police cars and ambulance. He walked to the park and saw Harris being wheeled into the ambulance and Ms. McLeod under a sheet. ⁵¹² After taking Jantz’s statement, Detective Massey brought three other people in for questioning—Joseph Brill (Russell Brill’s younger brother), Jennifer Pettie (Joseph Brill’s fiance and mother of his two children), and Russell Brill. As with Nicholas Jantz, the statements given to the police by those three persons are not in the record now before us. Joseph Brill and Ms. Pettie, who testified, said that their testimony was no different than what they told the police.

Ms. Pettie said that, a few days before the murder was supposed to happen, Russell Brill told her that he “took a contract with someone to Mil this woman.” He did not reveal the name of the person with whom he had so contracted but said that it was the woman’s husband and that Russell was to be paid $20,000 from an insurance policy. On the night of the murder, she was with Russell and Joseph Brill and Nicholas Jantz. She saw Russell cleaning a gun, which she later identified as the Glock 19, that Russell said he got from the husband. Around 7:30, she said, Russell’s pager went off, and he said it was time to go.

He returned about 10:00, shaMng and crying. He told Ms. Pettie that he had shot both Harris and Ms. McLeod: “He said that he was hiding in the bushes by the train tracks and they pulled up in their car and he waited and then he went up and put the gun to the car and told her to give him her stuff, and she gave him her purse and he snatched her necklace off her neck, and then they were out of the car by then and he just shot her and she was begging please, don’t shoot me.” Russell further stated, she said, that, with the next bullet he shot the man in the leg “because it was to look like a robbery and that is what he was told to do.” Joseph Brill reported that, about two weeks before the murder, Russell told him that “this guy Robert Harris offered him twenty thousand dollars, a couple of keys [sic ] of cocaine and a case of guns to murder his other guy’s wife for some reason or another” and said that the money was to come from an insurance policy on Teresa McLeod. Russell said at first ⁵¹³ the murder was to happen when she was leaving work, but that changed, and it was to occur at Violet Lil Park and look like a robbery. Russell was to get the gun from Harris, go to the park, hide in the bushes, wait for Harris’s signal, and make it look like a robbery.

Joseph saw Russell with the gun three days before the murder and again on the day of the murder. Joseph said that Russell got the page around 9:30, and that he then left. He returned about two hours later, nervous and crying, removed his clothes, and put them in a trash bag. The gun was put in a hole in the wall of Joseph’s apartment.

Joseph confirmed Jennifer Pettie’s recollection of what Russell said: “He told me that he was waiting in the bushes for Rob’s signal and when he got the signal, he went out, made it look like a robbery, grabbed the necklace off her neck, took her pocketbook, put the barrel of the gun up to her chest, shot her. And he—she turned around and went down on one knee and he shot her in the back, and then he walked away and he said for some reason he don’t know why, he turned back around and, uhm, just kept shooting her and he said he went blank; and with the last bullet, he turned and shot Rob in the leg and took off running.” Russell added that he shot Harris in the leg to make it look like Harris had nothing to do with the murder. Joseph said that, at some point on the 28th, prior to his being brought in for questioning, he saw the police at Jantz’s house and alerted Russell. Russell asked Joseph to bury the gun stored in the wall in Joseph’s apartment.

Joseph agreed and took the gun, along with the mask and gloves worn by Russell on the night of the murder, and buried them in the woods near Loudon Cemetery. During his interrogation later that day, he told the police what he had done and took them to the place where he had buried the items. We have already recounted, in general, the story Russell Brill gave in court as to what had occurred. In contrast to that story, he admitted in his testimony that he had told ⁵¹⁴ Joseph and the police that he, rather than Harris, had shot Ms. McLeod.

He said that he told that to his brother because his brother always looked up to him as a thug and he did not want Joseph to think that he was a “punk” and “backed out of anything.” He told that story to the police because he “didn’t want to be no snitch.” He also, as we shall describe, pled guilty to having shot and killed Ms. McLeod. Based on the taped statements taken from Jantz, Pettie, and the Brill brothers, Russell Brill and Harris were arrested and charged with murder. On January 29—the next day— Lisa Petty, Russell Brill’s girlfriend, had a telephone conversation with Russell, who was then in jail. He informed her that he had been arrested for murder, and, when she inquired whether he did it, he first replied that he had, but then recanted and told Ms. Petty that he had been hired to kill Ms. McLeod but was unable to do it, that Harris had shot her, and that he then shot Harris in the leg.

Russell told Ms. Petty that he admitted being the shooter because he was afraid of Harris. Ms. Petty said that she would call Detective Massey and ask him to speak again with Russell. She did call Massey, and, from that conversation, Massey said that he learned that Harris was the shooter. The indictments are not in the record now before us, but it is clear that both men were charged with first-degree murder and that the State filed a notice that it was seeking a sentence of life imprisonment without the possibility of parole as to each of them.

The Deals With Brill and Bartee During April and May, 1996, Brill was housed temporarily at the Maryland Penitentiary, apparently because of an overload at the Baltimore City Detention Center. While there, he met Donnell Bartee, who was awaiting trial on charges of first-degree murder, use of a handgun in a crime of violence, and possession with intent to distribute cocaine as well as a violation of probation charge that could and likely would result in execution of a suspended 15-year sentence. Brill had told him that he (Brill) was “locked up for shooting somebody ⁵¹⁵ doing a favor, that a guy asked him to do a favor for some insurance money and he would pay him a lump sum of money,” but that “he didn’t do it. He was too scared.” In June, 1996, Bartee was moved to the Detention Center, where he met Harris.

Harris asked whether, while at the Penitentiary, Bartee had met Brill, and Bartee said that he had. According to Bartee, Harris then offered to pay him $1,000 if he would tell Harris’s lawyer that Brill had acknowledged robbing Harris, taking his gun, and shooting his wife. Bartee said he would think about it but instead related the conversation to his lawyer. Some time later, Harris approached him again and said that Harris’s father would pay an additional $500, that Bartee would get half the money then from the father and the other half after he testified for Harris.

Bartee related that as well to his lawyer. That revelation led to Bartee later telling his story to the police. Bartee and Brill each entered into a plea agreement with the State premised, in whole or in part, on his testifying for the State in Harris’s case. All three cases were pending in the Circuit Court for Baltimore City, and the agreements were made with the same prosecutor, who was handling all three cases.

Bartee’s agreement came first. On January 17, 1997, the prosecutor and Bartee’s attorney appeared before Judge Byrnes. Until Bartee entered the courtroom some time later, the entire proceeding, at the prosecutor’s request, occurred at the bench. After some discussion, counsel agreed that Bartee would enter a plea of guilty to second-degree murder and possession with intent to distribute cocaine and the State would drop the handgun charge.

The deal presented to the court was that Bartee would receive a maximum prison term of 30 years with respect to the two charges to which he would plead guilty and to any sentence executed as a result of the violation of probation proceeding; i.e., Bartee would receive a 30-year sentence for the murder and a 10-year concurrent sentence for the drug offense, and, if Bartee received a prison sentence in the probation case and that sentence was to be consecutive to the 30-year term imposed in the instant case, ⁵¹⁶ Judge Byrnes would then grant a motion to modify and make his 30-year sentence concurrent with that term, to assure a total “cap” of 30 years. The prosecutor then disclosed an additional element to the agreement, namely, that Bartee was to testify in Harris’s case, that, after his testimony, he could ask for a modification of his sentence—something less than thirty years—and that “the State may join into that modification upon his testimony.” Defense counsel added that “the cap is also because the State indicated, if this man is so wonderful and so stellar on'the stand that he can convince the State that they ought to really love him and want to kiss him, then they might join.” The prosecutor responded that Bartee was going to testify regarding his conversation with a defendant in another case (Harris) but “was going to do a little bit more for the State and for himself’ and, if that happened, Bartee would put himself in “much danger,” and that “I was going to be willing to argue and actually, I would have argued and asked you to give less than that.” The prosecutor noted, however, that “that can’t happen at this point” and could not happen until Bartee testified, but “I did tell [defense counsel] that if he is supreme, I might join in with her and ask that you give to him less than the 30 which you’ve already given him.” Bartee then entered the courtroom, the conversation at the bench ended, and the prosecutor recited the agreement—a cap of 30 years for both the instant case and the probation case— and “one other proviso, I would add that we discussed at the bench about Mr. Bartee, that the Court knows about that, I’d rather not do that in open court.” Addressing Bartee, defense counsel confirmed the basic understanding, adding that “the other circumstances that are here, if they haven’t been stated, were stated at the bench as to any conditions that may or may not get the State’s Attorney to want to join us in asking for less time.” After assuring that Bartee’s plea was knowing and voluntary, Judge Byrnes accepted it and, pursuant to the plea bargain, sentenced Bartee to 30 years for the murder and 10 years, concurrent, for the drug violation. A month later, in February, 1997, Judge Johnson, presiding over the violation of ⁵¹⁷ probation case, revoked Bartee’s probation and directed execution of the 15-year suspended sentence, to be served consecutively to the 30 years imposed by Judge Byrnes. At that point, Bartee began serving a 45-year sentence.

Harris’s trial began on March 20, 1997. Bartee testified as indicated above, recounting first his conversation with Brill while at the Penitentiary, in which Brill said that he had not killed Ms. McLeod, and his subsequent conversations with