Jackson v. State

GRAEFF, J. This appeal involves a Petition for Writ of Actual Innocence filed by William Jackson, appellant, in the Circuit Court for Baltimore City, based on evidence that the State’s ballistics expert, Joseph Kopera, lied about his qualifications. The circuit court denied appellant’s petition, finding that appellant failed to meet his burden of proof pursuant to Md.Code (2011 Supp.) § 8-301(a)(l) of the Criminal Procedure Article (“C.P.”). On appeal, appellant presents the following question, which we have rephrased slightly, as follows: Did the circuit court err in denying appellant’s Petition for Actual Innocence where it was undisputed that (i) the State presented perjured testimony of a state expert witness as to his expert qualifications; (ii) the trial court explicitly instructed the jury that it must take into account the expert’s qualifications; and (iii) the question of appellant’s guilt was highly contested at trial? For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND On April 16, 1987, a jury sitting in the Circuit Court for Baltimore City convicted appellant of first-degree murder, first-degree sexual offense, and use of a handgun in the commission of a crime of violence. The circuit court imposed consecutive sentences of life imprisonment for the murder ³⁵¹ conviction, life imprisonment for the sexual offense conviction, and twenty years for the handgun conviction. On December 20, 1986, Marcella Robinson was at the home of her boyfriend, Musa Bey. She testified that, at approximately 7:00 a.m., appellant came to Mr. Bey’s apartment and asked to see Mr. Bey.

Shortly thereafter, Ms. Robinson went upstairs and found the two men using cocaine in one of the bedrooms. The three then smoked cocaine for forty-five minutes. At approximately 7:45 a.m., Ms. Robinson advised the two men that she needed to get ready for work. She testified that appellant then fired a gun shot into the floor and said to Mr. Bey: “[G]ive me my cocaine.” Appellant struck Mr. Bey in the head with the gun, fired a shot behind where Mr. Bey was seated, pulled a rope out of a brown bag, and tied up Mr. Bey.

He then ordered Ms. Robinson, at gun point, to take off her clothes. Mr. Bey pleaded with appellant to leave Ms. Robinson alone, and he told appellant that he could not breathe. Appellant then picked Mr. Bey up off the floor and tied him to a chair. Appellant told Ms. Robinson to perform oral sex on him or he would shoot her.

Mr. Bey continued to yell at appellant to leave Ms. Robinson alone, so appellant put Mr. Bey in the closet. Appellant then took his clothes off, shut the door to the closet, and pulled Ms. Robinson into another room, where he urinated into her mouth and penetrated her vagina with his fingers after he was unable to do so with his penis. After returning to the room where Mr. Bey was being held in the closet, appellant urinated into a yellow bowl in the room and ordered Ms. Robinson to drink it. Thereafter, Mr. Bey pushed the closet door part way open, and appellant turned and shot at the door.

Appellant warned Mr. Bey that, if he came out of the closet, appellant would kill him. Mr. Bey then “came charging out of the closet,” grabbed appellant by his shirt, and appellant shot Mr. Bey. 1 Mr. Bey ³⁵² fell onto appellant, and appellant hit Mr. Bey over the head with the gun. At that point, Ms. Robinson ran from the room, down the steps, and outside, screaming for help. Ms. Robinson was still naked at the time.

Mr. Bey’s next-door neighbor brought her into the house and gave her clothes, and Ms. Robinson asked her to call the police because appellant had shot Mr. Bey. The police arrived, and at approximately 1:30 p.m., Ms. Robinson was taken to the hospital, where she received an oral and vaginal exam. On cross-examination, Ms. Robinson acknowledged that, while at the hospital, she did not advise the physician who treated her that appellant had assaulted her vaginally. Thomas Simpson, an officer with the Baltimore City Police Department, testified that, on December 20,1986, at 1:00 p.m., he received a call regarding a shooting at 414 East 21st Street.

When he arrived, there was a crowd of five or six people in front of the residence, and he heard someone yell that someone was shot, and “a naked lady” had run into the house next door. While searching the residence, Officer Simpson found a person, who appeared to be dead, lying face down, bleeding from the head in a small bedroom on the second floor. Officer Simpson observed a kitchen chair in the closet of the room, with a rope wrapped around it. He also observed a bullet hole in the floor, as well as above the frame of the closet door.

Evidence technicians recovered bullet ³⁵³ fragments from the hole above the closet, as well as a bullet from the first floor. Based on the shouting he heard upon arriving at the scene, Officer Simpson went to the residence next door, where he found Ms. Robinson. She was very upset, but he was able to obtain a statement from her. 2 Robert Bowman, a Baltimore City Police Detective, testified that Ms. Robinson identified appellant as the shooter. When he went to the residence, he found a yellow bowl that smelled of urine in the bedroom where Mr. Bey’s body was found.

Dr. William Zane, an Assistant Medical Examiner, testified that Mr. Bey died of a gun shot wound to his chest. Dr. Zane recovered the bullet from Mr. Bey’s body, and he determined that the wound was consistent with a gun shot at close range. Mr. Bey had several lacerations on his scalp, which were consistent with being struck with part of a gun. Dr. Zane did not observe other abrasions on Mr. Bey’s body.

Although he commented that, where an individual is bound and struggles to free himself, there should be evidence of that struggle, the lack of such evidence in this case did not indicate that Mr. Bey was not bound. Regarding Mr. Bey’s time of death, Dr. Zane testified as follows: “I have to refer to the notes. I would say ... the early morning hours of the 20th of December.” On cross-examination, while referring to his report, he stated that the time of injury was 12:45 p.m. Mr. Kopera, an employee of the Baltimore City Police Department Ballistics Unit, testified as an expert in ballistics. 3 Mr. Kopera testified that he held a degree in mechanical engineering from the University of Maryland in College Park, as well as a mechanical engineering degree in photo-science from Rochester Institute of Technology in New York.

Mr. Kopera opined that the bullet found in the floor of Mr. Bey’s home was a .38 caliber special or a .357 semi-jacketed bullet, ³⁵⁴ which could have been fired from “Smith and Wesson, I.N.A.[ ] Tiger, and Ruger revolvers.” Mr. Kopera also analyzed the victim’s clothing to ascertain the distance between the victim and the muzzle of the weapon. Based on the residue on Mr. Bey’s clothing, Mr. Kopera determined that the gun used to shoot Mr. Bey was fired from a range of three to four feet. After comparing the bullet fragments from the floor and Mr. Bey’s body, he concluded that the bullets were fired from the same weapon. Appellant testified that, on the morning of December 20, 1986, he went to Mr. Bey’s apartment between 4:00 and 4:30 a.m., and left between 9:30 and 10:00 a.m.

He smoked cocaine with Ms. Robinson and Mr. Bey, and while Mr. Bey was out of the house purchasing more cocaine, appellant pulled his pants down and asked Ms. Robinson to perform oral sex. When Mr. Bey returned and saw appellant and Ms. Robinson, Mr. Bey struck Ms. Robinson and appellant. Mr. Bey backed Ms. Robinson into a corner, at which point she pulled a gun from her pocket, and shot Mr. Bey. 4 Appellant then left Mr. Bey’s apartment, went home, got some money, and went to his brother’s house, where he stayed until he turned himself in on January 5,1987. Appellant called his girlfriend, Maria Ayala, as a witness for the defense. 5 She testified that she had never told anyone that appellant wanted to hurt Mr. Bey, nor had she said that ³⁵⁵ he wanted to sleep with Ms. Robinson.

To her knowledge, Ms. Robinson did not have a sexual interest in appellant, and Ms. Robinson and appellant were not seeing each other. On cross-examination, she acknowledged telling the police that, the night before Mr. Bey was shot, she saw appellant and Mr. Bey talking in front of a club late in the evening, that she had seen a gun at a store appellant owned, and that appellant was jealous of Mr. Bey. Ms. Ayala acknowledged that, the morning of the shooting, appellant had been at her apartment, but she denied telling Christine McCormick and Aimin Bey (“Aimin”) that appellant left in a jealous rage, with a brown paper bag and a rope. To rebut Ms. Ayala’s testimony, the State called several witnesses.

Prior to allowing the rebuttal witnesses to testify, the court advised that it would instruct the jury “not to regard this for the truth of what is being said, only to rebut the testimony of [Ms.] Ayala.” The court then gave the following instruction: I am permitting this testimony ... not to prove the truth of what was testified, but to give you enough information so you can make your mind up as to whether Ms. Ayala was telling the truth or not. I am not admitting it for truth, but rather as well, we will call it, for the matter of believability or credibility. The court subsequently instructed the jury that, with respect to the testimony of the rebuttal witnesses, “you may again not consider it for truth, but rather how it affects you, do you believe these witnesses? Do you believe Ms. Ayala?” Christina McCormick testified that, on December 20, 1986, after learning that Mr. Bey, the father of her son, had been shot, she went to Ms. Ayala’s home.

Ms. Ayala told her that appellant had been using drugs for several days, and he was acting “crazy and paranoid.” Appellant believed that Ms. Ayala and Mr. Bey were having sex, and appellant “said he was going to do it to [Ms. Robinson] for spite.” The morning of December 20, appellant had been pacing back and forth, and he left Ms. Ayala’s house with a bag under his arm. ³⁵⁶ Aimin testified that, on December 20, 1986, after learning of Mr. Bey’s death, he went to Mr. Bey’s mother’s home. When he arrived, he saw Ms. Ayala leaving the house across the street. She told him that appellant’s behavior that morning “was bizarre and incoherent,” he was on cocaine, and he was very jealous and preoccupied with the idea that Ms. Ayala was having sex with other people. Appellant told Ms. Ayala that “he would kill Musa and sexually assault” Ms. Robinson.

Ms. Ayala told Aimin that appellant left carrying a bag. As indicated, the jury convicted appellant of first-degree murder, first-degree sexual offense, and use of a handgun in the commission of a crime of violence. On June 10, 1987, appellant filed a Notice of Appeal with this Court. We dismissed the appeal on August 14, 1987, due to appellant’s failure to file a record.

On February 26, 1988, appellant filed a Petition for Post Conviction Relief. On January 12, 1989, the circuit court granted appellant’s motion, in part, allowing him to file a belated appeal. In a per curiam opinion, we affirmed appellant’s conviction. Jackson v. State, No. 14, Sept. Term 1989 (Sept. 19, 1989).

On January 23, 1996, appellant filed an Amended Petition for Post Conviction Relief, which the circuit court denied on January 21, 2003. On September 14, 2006, appellant filed a Motion to Reopen Post Conviction Proceedings. The circuit court granted appellant’s motion with respect to his request to file a belated modification of sentence and a belated review of sentence, but it otherwise denied his request to reopen the post conviction proceedings. On September 17, 2007, the circuit court denied appellant’s motion to reduce his sentence.

On December 12, 2011, appellant filed a Petition for Writ of Actual Innocence and Request for Hearing, arguing that he “discovered evidence that the State’s ballistic expert, [Mr.] Kopera, intentionally misrepresented himself at [appellant’s] trial,” and “this evidence could not have been discovered in time to move for a new trial under Maryland Rule 4-331.” He argued that this newly discovered evidence created “a sub ³⁵⁷ stantial or significant possibility that the result [of his trial] would have been different,” asserting that the State’s case against him was based on the credibility of his testimony against Ms. Robinson’s, and Mr. Kopera’s testimony was “important because it purported to bolster Ms. Robinson’s version of events.” On January 11, 2013, the court held a hearing on appellant’s petition. 6 Appellant introduced into evidence the complete transcript of his 1987 trial, a news release dated March 8, 2007, from the Maryland State Police Department detailing the issues with Mr. Kopera’s credentials, a newspaper article from The Baltimore Sun entitled “Police Expert Lied About Credentials,” and a USA Today article entitled “Expert’s Ruse Raises Legal Questions.” 7 The evidence indicated that, contrary to Mr. Kopera’s testimony at trial, he did not graduate from either the University of Maryland or Rochester Institute of Technology. Appellant and the State stipulated that appellant had no knowledge of Mr. Kopera’s perjury during his trial, and “[h]e did not learn of those facts until 2010 when he was advised by a fellow inmate at the Department of Corrections.” Appellant argued that the evidence of Mr. Kopera’s perjury was newly discovered evidence that created a substantial possibility that the result of his trial would have been different. He contended that it was not mere impeaching evidence because the court instructed the jury that “you must take into account the qualifications of the expert” and weigh his testimony. Thus, he argued, Mr. Kopera’s qualifications became a material point of his testimony.

He further contended that appellant’s case hinged on credibility due to the two versions of events: his and Ms. Robinson’s. He argued that, because Mr. Kopera’s testimony bolstered Ms. Robinson’s version of ³⁵⁸ events, it was material to the case, as opposed to merely impeaching. Appellant also argued that, at the time of trial, he could not have discovered Mr. Kopera’s perjury with reasonable due diligence. He asserted that due diligence, as that term is known, “does not contemplate that defense attorneys or a defendant should perceive or conclude that a State witness” would testify falsely about his credentials, and the State’s lack of knowledge regarding Mr. Kopera’s false credentials demonstrates the difficulty in placing the burden on a defendant “to know and to then look for his perjury and his false statements.” With respect to the import of Mr. Kopera’s testimony, appellant argued as follows: What Mr. Kopera testified to is [ ] with respect to a shell casing that—or a—spent bullet that was found in the floor and the bullet that was in Mr. [Bey] that those matched.

And that was consistent with Ms. Robinson’s testimony. Also with respect to the positioning of where people were when Mr. [Bey] was shot based on powder residue analysis that was done by Mr. Kopera suggested that it was within three-to-four feet and so that would have been again, that is consistent with what Ms. Robinson had testified to. And in fact, the State makes that argument to the jury that the evidence, that the forensic evidence, the evidence from the ballistics expert are consistent with Ms. Robinson’s testimony in the case. And because of that you should believe Ms. Robinson’s version.

I mean, that’s the argument that has been made to the jury. The State argued that the “false testimony regarding qualifications” was “merely impeaching.” Moreover, contrary to appellant’s contention, the case against him was not close: “We have an eye witness [sic] who knew the victim and who testified clearly and without hesitation that it was [appellant] that ... committed the crime.” With respect to appellant’s argument that Mr. Kopera’s perjury bolstered Ms. Robinson’s testimony, the State argued ³⁵⁹ that this contention was without merit and merely an “attempt to retry the case.” It argued that, at trial, “almost all of the time was spent talking about everybody else’s testimony but Mr. Kopera.” It stated that, even if Mr. Kopera’s testimony that the bullet in the floor was consistent with having been fired from the same gun that killed the victim corroborated Ms. Robinson’s version of what happened, this “small amount of corroboration” did not directly implicate appellant, nor did it call the verdict into question. The State contended that, even with the evidence of Mr. Kopera’s perjury, the outcome of trial would not have been different, and accordingly, the court should deny appellant’s petition. On February 6, 2013, the circuit court issued a Memorandum and Opinion denying appellant’s petition.

The court first addressed whether the evidence was “newly discovered,” noting that it must determine: (1) whether the petitioner exercised due diligence in seeking to discover the evidence; and (2) whether the evidence was material rather than “merely cumulative or impeaching.” In this regard, the court found as follows: [T]he [c]ourt concludes that the expert’s falsification of his academic credentials is mere impeachment evidence. The evidence impeaches the ballistics expert’s educational background, not the accuracy or reliability of his examination of the bullets. Additionally, the expert’s educational embellishments are collateral details that do not go to the core question of [appellant’s] guilt or innocence.... The evidence is consequently “merely impeaching” and not newly discovered.

Given that another attorney was able to discover the misstatements, one may also conclude that [appellant] did not exercise due diligence in obtaining this readily available evidence at the time of his trial. The court noted that, even if the evidence was newly discovered, the petition could be granted only if it created “a substantial or significant possibility” that the result may have ³⁶⁰ been different. In finding that this showing had not been made, the court stated as follows: [Appellant] argues that the evidence presented at his trial was far from overwhelming and that the [c]ourt’s jury instructions rendered the expert’s educational qualifications material to the jury’s ultimate verdict. The [c]ourt does not agree.

At [appellant’s] trial, the jury heard ample evidence independent from the expert’s testimony that would support a conviction for first-degree murder, first-degree sexual offense, and use of a handgun in the commission of a crime of violence. The victim’s girlfriend in this case provided key eyewitness testimony. Specifically, the girlfriend testified that [appellant] had locked the victim in the closet while he sexually assaulted her and then shot the victim when he eventually broke free. She further testified that after the shooting, she broke the front door’s chain lock and window, fled the house in the nude, and then shouted for help from the neighbors.

This testimony was corroborated at trial. The police also found rope wrapped around a chair in the closet and the extension cord that was used to restrain the victim’s girlfriend. The court also noted that the jury heard testimony from appellant’s girlfriend, “who testified that on the day of the incident, [appellant] was drugged and in a highly agitated state when he left for the victim’s house,” and that appellant “said he was going to sexually assault the victim’s girlfriend.” Ultimately, the court concluded that the evidence regarding Mr. Kopera’s credentials “does not create a substantial or significant possibility that a jury may not have convicted [appellant] at his 1987 trial.” Accordingly, it denied his Petition for Writ of Actual Innocence. This timely appeal followed.

DISCUSSION Appellant argues that the circuit court erred in denying his Petition for Writ of Actual Innocence, asserting that it was undisputed that “(i) the State presented perjured testimony of ³⁶¹ a State expert witness employed by the Baltimore City Police Department as to his expert qualifications, (ii) the jury was explicitly instructed that it must take into account the expert’s qualifications and (iii) the question of [appellant’s] guilt was highly contested.” Specifically, he contends that Mr. Kopera’s perjury was newly discovered evidence, as opposed to “merely impeaching” evidence, and he acted “with reasonable diligence in discovering Mr. Kopera’s perjury.” He argues that the evidence of Mr. Kopera’s perjury “raises a substantial or significant possibility that the trial result may have been different.” The State contends that the circuit court properly denied appellant’s petition. It asserts that: (1) the evidence was not “ ‘newly discovered’ because it could have been discovered through the exercise of due diligence prior to trial”; (2) the evidence was “merely impeaching and not exculpatory”; and (3) the evidence “does not give rise to a possibility of a different result in [appellant’s] trial.” A. Petition for Writ of Actual Innocence In 2009, the General Assembly enacted C.P. § 8-301, which permits a defendant to file a Petition for Writ of Actual Innocence. It provides, in pertinent part, as follows: Newly Discovered Evidence § 8-301. Petition for writ of actual innocence.

(a) Grounds.—A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that: (1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; and ³⁶² (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.[ 8 ] (g) Burden of proof A petitioner in a proceeding under this section has the burden of proof. There have been only three appellate opinions addressing a petition filed pursuant to this statute. See Douglas v. State, 423 Md. 156, 163 , 31 A.3d 250 (2011); State v. Matthews, 415 Md. 286, 290 , 999 A.2d 1050 (2010); Keyes v. State, 215 Md.App. 660, 665 , 84 A.3d 141 (2014). None, however, has addressed the merits of the petition.

In Matthews, 415 Md. at 297-98 , 999 A.2d 1050 , the Court of Appeals held that, given the enactment of the statute during the pendency of the case, and the lack “of rules of procedure to guide the process,” Matthews’ untimely motion for a new trial should be treated as a Petition for Writ of Actual Innocence. 9 Whether the petition satisfied the requirements of the statute was left for the circuit court to address. Id. at 312-13 , 999 A.2d 1050 . In Douglas, 423 Md. at 163-64 , 31 A.3d 250 , the Court addressed whether the denial of a Petition for Writ of Actual Innocence is a final judgment. It held that it was, and therefore, it was an immediately appealable order.

Id. at 177 , 31 A.3d 250 . In addressing this issue, as well as whether Douglas satisfied the pleading requirements and was entitled to a hearing, ³⁶³ the Court discussed the purpose of C.P. § 8-301. It noted that the statute “provides a defendant an opportunity to seek a new trial based on newly discovered evidence that speaks to his or her actual innocence, as evident from the title of the statute.” Id. at 176, 31 A.3d 250 . The Court explained that the legislative history of § 8-301 “reflects a legislative purpose that the statute extend the right to seek a new trial on the basis of newly discovered evidence beyond that afforded a convicted defendant under Maryland Rule 4—331(c).” Id.

In Douglas , the alleged newly discovered evidence similarly involved Mr. Kopera’s falsified credentials. Id. at 185-86 , 31 A.3d 250 . The Court noted that the newspaper article submitted as an exhibit stated that “the chief attorney with the ... Innocence Project ... became concerned about [Mr.] Kopera’s qualifications while reviewing transcripts and noting inconsistencies regarding the credentials he testified he had earned.” Id. at 185 , 31 A.3d 250 .

The Court held, as a procedural matter, that “viewing inferences in the light most favorable to Douglas, it could be that the evidence could not have been discovered within time to move for a new trial under Rule 4-331.” Id. at 186 , 31 A.3d 250 (emphasis added). The Court noted, however, that although Douglas satisfied the pleading requirement, and therefore, was entitled to a hearing on his petition, “it does not follow automatically that he can prove his claim.” Id. Rather, the ultimate decision on the merits of a request for a new trial based on newly discovered evidence, “whether filed pursuant to Rule 4-331 or C.P. § 8-301,” was a matter “committed to the hearing court’s sound discretion.” Id. at 188, 31 A.3d 250 . Accord Miller v. State, 380 Md. 1, 28 , 843 A.2d 803 (2004) (denial of motion for a new trial based on newly discovered evidence reviewed for abuse of discretion).

In this case, unlike in Douglas, Matthews, and Keyes , the merits of the petition are before us. Thus, we will address whether the circuit court properly exercised its discretion in denying the petition. In this regard, we note that a ruling generally will not be deemed to be an abuse of discretion unless it is “ ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court ³⁶⁴ deems minimally acceptable.’ ” Moreland v. State, 207 Md. App. 563, 569 , 53 A.3d 449 (2012) (quoting Gray v. State, 388 Md. 366, 383 , 879 A.2d 1064 (2005)). Accord Morris v. State, 204 Md.App. 487, 492 , 42 A.3d 83 (2012) (This Court will find an abuse of discretion only ‘“where no reasonable person would take the view adopted by the [trial] court.’ ”) (quoting King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009)).

The statute, by its terms, requires a defendant to show two things to prevail on a Petition for Writ of Actual Innocence: (1) newly discovered evidence that “could not have been discovered in time to move for a new trial under Maryland Rule 4-331”; and (2) that the evidence “creates a substantial or significant possibility that the result may have been different, as that standard has