Patterson v. State

⁶³³ Opinion by Arthur, J. Robert Amos Patterson, an inmate representing himself, appeals from the denial of a petition for writ of actual innocence, in which he challenged his 1993 convictions for first-degree murder and related handgun offenses. He raises a single question, which we have rephrased as follows: Did the circuit court abuse its discretion in denying the petition for writ of actual innocence on the ground that the unequivocal conclusion by State’s expert on comparative microscopic matching did not create a substantial or significant possibility that the result at trial may have been different? 1 Finding no abuse of discretion in the circuit court’s denial of the petition, we shall affirm. BACKGROUND For background, we set forth part of the factual summary from this Court’s unreported opinion in Patterson’s direct appeal: On July 9, 1992, Rudolph Holland was fatally shot at 49 Clay Street, near Annapolis, Maryland. Several witnesses testified that they saw two black men, one with dark skin, and the other with lighter skin, either in the area of the shooting or running from the scene.

Although some were able to identify [Patterson] as the man with the lighter skin, either by a photo array or in court, some were either unable positively to identify [him], or identified someone other than [him] as the man with the lighter skin. Officer William Hyatt, of the District of Columbia’s Metropolitan Police Department, was the State’s principal witness. Officer Hyatt testified that on July 17, 1992, he responded to the area of 24th Street and Benning Road in Northeast Washington, D.C., after receiving a report that suspects in ⁶³⁴ another shooting were in that area. On arriving at the scene, Hyatt observed the three suspects, one of whom was later identified as [Patterson].

According to Officer Hyatt, [Patterson] and the other men fled, and [Patterson] discarded his gun after removing the bullets from it. [Patterson] was apprehended a short time later and placed under arrest for possession of a handgun. About four months later, [Patterson] was arrested by the Annapolis City Police Department for the Clay Street murder. At trial, a firearms examiner from the Federal Bureau of Investigation [“FBI”] testified that the bullet recovered from the victim of the Clay Street shooting had been from the .38 caliber gun dropped in Washington, D.C., by [Patterson] on July 17th. [Patterson], as well as several other witnesses for the defense, testified that [he] was at a barbecue in Forestville, Maryland, on July 9th. [Patterson] testified that he did not have a gun with him on July 17th and thus could not have discarded a gun before being arrested. Patterson v. State, No. 1932, Sept. Term 1993, slip op. at 1-2 (filed July 28, 1994) (per curiam).

Although it was not an issue during Patterson’s trial or direct appeal, the testimony of the FBI firearms examiner is now the subject of the instant appeal. That examiner, FBI Special Agent Joseph Williamson, testified, without objection, that the bullet recovered from the murder victim, as well as several other bullets recovered from the Annapolis crime scene, had been fired by the .38 caliber handgun that Officer Hyatt had recovered from Patterson, “to the exclusion of any other firearm in the world.” During closing argument, the prosecutor relied upon Special Agent Williamson’s unequivocal conclusion that the gun recovered from Patterson definitely fired the fatal shots. He told the jury that “the bullet was fired from this gun to the exclusion of all handguns ever made anywhere in the world”; that “[n]o other gun anywhere in the world could have fired those bullets except that one, that gun that was in the hands of Robert Patterson on July 17th”; and that the silver hand ⁶³⁵ gun, found in Patterson’s possession eight days after the Annapolis murder, “definitely fired the bullets that killed Rudolph Holland^]” The prosecutor repeated these unequivocal assertions in the rebuttal phase of closing argument. There he told the jury that the “gun was analyzed by the F.B.I. and the bullets were tested by the F.B.I., and there’s no doubt that the gun and the bullets that Mr. Patterson had in his hand were fired by that gun, the bullets that killed Mr. Holland.” He concluded with the assertion that “[y]ou’ve got Mr. Patterson in Washington, D.C., in possession of the gun that fired the bullets to the exclusion of all other guns in the world that killed Rudolph C. Holland.” The jury found Patterson guilty of first-degree murder, use of a handgun in the commission of a crime of violence, and use of a handgun in the commission of a felony.

The circuit court sentenced Patterson to a term of life imprisonment for first-degree murder and a consecutive term of 20 years’ imprisonment for one of the handgun convictions. In 1993, Patterson filed a motion for new trial on the ground of newly-discovered evidence — an affidavit, executed by an attorney who had investigated his case before trial, which contradicted the testimony of the arresting officer. The circuit court denied his motion, and this Court affirmed in an unreported opinion. Patterson v. State, supra, No. 1932, Sept. Term 1993.

Later, Patterson unsuccessfully pursued post-conviction relief. Patterson v. State, No. 25, Sept. Term 1998 (filed June 25, 1998) (per curiam); Patterson v. State, No. 1355, Sept. Term 2010 (filed Mar. 24, 2011) (per curiam). In 2013, Patterson, acting through counsel, filed a petition for a writ of actual innocence. That petition alleged that Patterson’s trial had been tainted by the admission of testimony, from Special Agent Williamson, regarding the use of comparative bullet-lead analysis (“CBLA”), a technique that has been determined to be unreliable and inadmissible under the Frye-Reed test governing admissibility of scientific evidence in Maryland courts.

Clemons v. State, 392 Md. 339, 371 , ⁶³⁶ 896 A.2d 1059 (2006). The circuit court dismissed Patterson’s petition without a hearing because a review of the trial transcripts led it to determine that Special Agent Williamson “never used CBLA to link the bullets” in Patterson’s possession “to the bullets found at the crime scene.” Patterson, acting through the same counsel, filed a second petition for writ of actual innocence, which is the subject of the instant appeal. In that petition, Patterson challenged the State’s use of firearms identification evidence, which, as characterized by Special Agent Williamson, is “a comparative microscopic study that permits the identification of bullets and cartridge cases as having been ... fired by a particular firearm to the exclusion of any other firearm.” “[Cjomparative microscopic matching” “consists of attempting to identify the ‘toolmarks’ impressed upon the bullet fragments and cartridge casings often recovered from a crime scene, in an effort to determine whether the toolmarks impressed upon the evidence could have been created by a firearm that has been connected to a suspect.” Fleming v. State, 194 Md.App. 76, 101 , 1 A.3d 572 (2010). “The random imperfections in the bore of the firearm are theoretically unique to each firearm, and ‘the probability that another firearm would have identical bore imperfections is considered so remote that firearms identification examiners often conclude that a bullet has been fired from a particular firearm and could not have been fired by any other firearm.’ ” Id. at 103 , 1 A.3d 572 (quoting Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence § 14.03 (4th ed. 2007)). “In making the inquiry into the similarity or near-identity of toolmarks, a trained firearm toolmark examiner uses a ‘comparison microscope’ to compare spent ammunition components recovered from a crime scene with ammunition components fired from the candidate firearm.” Id. (citing United States v. Monteiro, 407 F.Supp.2d 351, 359 (D.Mass.2006)). “Ultimately, the determination of whether a potential ‘match’ exists is made by a trained examiner using a split-screen microscope to simultaneously compare the toolmarks on the crime scene evidence against the toolmarks produced by a test round fired ⁶³⁷ by the subject firearm.” Id. at 104, 1 A.3d 572 (citing Monteiro, 407 F.Supp.2d at 355 ).

Citing recent studies and court decisions that allegedly reveal the limitations of drawing the unequivocal conclusions that Special Agent Williamson expressed, Patterson claims to have identified newly-discovered evidence, which could not have been discovered through the exercise of due diligence in time to file a motion for new trial under Md. Rule 4 — 331(c), but which creates a substantial possibility that, had this evidence been admitted during his 1993 trial, a different outcome would have resulted. The circuit court conducted a hearing on Patterson’s petition. In a written opinion, the court concluded that the evidence would not have substantially affected the jury’s verdict. Accordingly, it denied the petition.

Patterson noted this timely appeal. DISCUSSION I. A petition for writ of actual innocence, under Maryland Code (2001, 2008 Repl. Vol., 2015 Supp.), § 8-301 of the Criminal Procedure Article (“CP”), gives a convicted person “an opportunity to seek a new trial based on newly discovered evidence that speaks to his or her actual innocence[.]” Douglas v. State, 423 Md. 156, 176 , 31 A.3d 250 (2011). Section 8-301 gives a person this opportunity by establishing the functional equivalent of a motion for new trial on the ground of newly-discovered evidence, but without the strict time limits imposed by Maryland Rule 4-331(c).

See Douglas, 423 Md. at 176 , 31 A.3d 250 . 2 The statute provides in pertinent part: ⁶³⁸ (a) 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 (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-831. CP § 8-301(a). In brief summary, § 8-301(a) imposes three requirements upon a petitioner: (1) he or she must come forward with “newly discovered evidence”; which (2) “creates a substantial or significant possibility that the result [of his or her trial 3 ] may have been different”; and which (3) “could not have been discovered in time to move for a new trial under Maryland Rule 4-331,” a requirement known as “due diligence.” If a petitioner substantially complies with the requirements of CP § 8-301 (b) and Rule 4-332(d) and asserts grounds that could, if proven, entitle the petitioner to relief, then he or she is entitled to a hearing on that petition. CP § 8-301(e); Md. Rule 4-332(j)(1); State v. Hunt, 443 Md. 238, 250-51 , 116 A.3d 477 (2015).

In a proceeding under CP § 8-301, the petitioner bears the burden of proof. CP § 8 — 301(g); Md. Rule 4-332(k). That burden stands in stark contrast to an appellant’s burden in a direct appeal from a criminal conviction. If an appellant establishes error in a direct appeal from a criminal conviction, the burden shifts to the State to show “ ‘that the error in no ⁶³⁹ way influenced the verdict.’ ” Dionas v. State, 436 Md. 97, 108 , 80 A.3d 1058 (2013) (quoting Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976)).

By contrast, in a petition for a writ of actual innocence, the petitioner must show that “there [is] a substantial possibility that a different result would have occurred in the trial, whether jury or bench, as a result of the newly discovered evidence.” Yonga v. State, 446 Md. 183, 208 , 130 A.3d 486 (2016); see CP § 8-301(a)(1) (petitioner must show “a substantial or significant possibility that the result may have been different”). Because the circuit court denied Patterson’s petition on the merits after a hearing, we review the circuit court’s decision to deny that petition for abuse of discretion. Hunt, 443 Md. at 247-48 , 116 A.3d 477 ; Snead v. State, 224 Md.App. 99, 109 , 119 A.3d 137 (2015). Under that standard, this Court “will not disturb the circuit court’s ruling, unless it is Veil removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.’” McGhie v. State, 224 Md.App. 286, 298 , 120 A.3d 828 (2015) (“McGhie I”) (quoting Jackson v. State, 216 Md.App. 347, 363-64 , 86 A.3d 97 (2014) (further quotation marks omitted)), aff'd, 449 Md. 494 , 144 A.3d 752 , 2016