State v. Hunt & Hardy

HARRELL, J. On 9 March 2007, Baltimore Sun reporter Jennifer McMenamin (“McMenamin”) reported alarming questions about the academic qualifications of a high-ranking Maryland law enforcement ballistics expert named Joseph Kopera (“Kopera”) (the “2007 Article”). 1 McMenamin wrote that Kopera lied ²⁴¹ allegedly, as an expert witness for the prosecution, about his credentials and qualifications in trials in Maryland for over twenty years. The 2007 Article suggested that prosecutors around the state “will likely be dealing with fallout from the investigation [into Kopera’s qualifications] for years.” That predicted fallout continues to rain-down in the two cases we discuss together today. 2 Pursuant to Maryland Code (2001, 2008 Repl. Vol, 2014 Cum.Supp.), Criminal Procedure Article, § 8-301, Ronnie A. Hunt, Jr. (“Hunt”), and Kevin Hardy (“Hardy”) (collectively, “Respondents”), both incarcerated currently, filed in 2011 and 2012, respectively, Petitions for Writ of Actual Innocence in their unrelated cases. Both alleged that newly discovered evidence relative to Kopera, who testified in their trials as a prosecution witness, created a substantial or significant possibility that the outcomes (convictions) in their respective 1991 and 1989 trials may have been different (had Kopera not lied) and that such evidence could not have been discovered in time for them to move timely for a new trial pursuant to Maryland Rule 4-331. 3 Their petitions characterized the questions ²⁴² about Kopera’s qualifications as “newly discovered evidence” that warranted reversals of their convictions and/or new trials. 4 The Circuit Court for Baltimore City denied their petitions without a hearing.

On direct appeal to the Court of Special Appeals, the intermediate appellate court reversed in both instances the rulings of the Circuit Court and remanded for'further proceedings. Today we affirm the judgments of the Court of Special Appeals, and, in considered dicta, provide guidance on remand for the hearings and evaluation of petitions for writ of actual innocence. I. Facts A. Ronnie A. Hunt, Jr. Following a jury trial spanning several days in September of 1991, Ronnie A. Hunt, Jr. (“Hunt”) was convicted on 25 September 1991 in the Circuit Court for Baltimore City of first-degree murder and use of a handgun in the commission of a crime of violence. The jury found that Hunt, along with his co-defendant, Harry Johnson, III, on 10 April 1991 shot to death Sheldene Simon on the front lawn of the victim’s home in Baltimore during a gunfight involving multiple shooters.

Hunt was sentenced to life imprisonment for murder, plus a consecutive twenty years for the handgun offense. Hunt’s convictions were affirmed in 1993 by the Court of Special Appeals on direct appeal in an unreported opinion. ²⁴³ Hunt filed on 8 April 1997 a Petition for Post-Conviction Relief, which was denied by the Circuit Court on 19 August 1997. Hunt filed on 22 September 1997 an Application for Leave to Appeal, which was denied by the Court of Special Appeals on 23 January 1998. Hunt filed pro se on 31 January 2011 an Amended Petition for Writ of Actual Innocence (the “Hunt Amended Petition” or “Hunt’s Amended Petition”) in the Circuit Court for Baltimore City. 5 In the Amended Petition he set out the procedural history of his case and claimed that his federal Constitutional Rights to due process and equal protection of the law afforded under the Fifth and Fourteenth Amendments were denied him “based on false evidence.” Hunt alleged the following, under a heading titled “NEWLY DISCOVERED EVIDENCE”: In 2007 it was unveiled by the Office of the Public Defender Innocence Project and the Maryland State Police that Joseph Kopera, reportedly an expert in ballistics, had in fact testified and lied under oath about his academic credentials for years, and probably falsified evidence as well.

At the time of Kopera’s reported death as a result of a self-inflicted gunshot wound, he was employed with the Maryland State Police, after being employed with the Baltimore City Police Department for approximately 21 years. Kopera was the lynchpin in the State’s case, in which [Hunt] was convicted based solely on the testimony of Kopera, who has since become known as a liar and fraud. (minor alterations added). Later, in a section of Hunt’s Amended Petition titled “STATEMENT OF FACTS,” Hunt alleged the following: A number of inconsistencies in Kopera’s trial testimony in several or more cases regarding his academic credentials prompted an investigation or background check on Kopera by Ms. Michele Nethercott, chief attorney, out of the Office of the Public Defender Innocence Project.

That also led to ²⁴⁴ a subsequent investigation by the Maryland State Police, which unveiled some very troubling facts, that Kopera had been “lying” about his academic credentials for years, all while testifying under oath in countless court rooms in Baltimore City, the State of Maryland, and perhaps, state and federal courts in Virginia, Delaware, and Pennsylvania. It has been proven that Kopera wasn’t only a liar, but a fraud as well.... (minor alterations added). Hunt argued that Kopera’s testimony in his capacity as the State’s ballistics expert was the State’s “only evidence” against him and “the lynch [sic] pin in the State’s case.” Hunt reproduced a portion of the trial transcript in his case where Kopera discussed his (fraudulent) qualifications. 6 He reproduced then portions of the trial transcript where Kopera discussed a bullet specimen recovered from Simon’s body, a semiautomatic pistol, and Kopera’s process of “matching]” the two.

Hunt noted that the State had not produced any DNA, fingerprints, or eye witnesses who placed him at the scene of the murder, and so, “without the false testimony of [Kopera], regarding both credentials and the murder weapon, it is highly unlikely that the State would have proven their case against [Hunt] beyond a reasonable doubt.” Hunt surmised penultimately: Every factual finding made by the jury hinged upon a determination that Kopera testified credibly. If Kopera’s fake credentials and/or false testimony had been known, however, it is reasonably probable that the outcome of the trial would have been different!,] because his testimony probably would not have been as credible. Hunt concluded by requesting, among other things, “a reversal of his conviction and unconditional release, otherwise, a new trial” and that “a prompt hearing be set in this matter.” ²⁴⁵ The Circuit Court denied Hunt’s Amended Petition, without a hearing, on 15 February 2011 because the petition “fail[ed] to state a claim or assert grounds for which relief may be granted pursuant to [§ 8-301(a) ].” Hunt filed then a motion for reconsideration on 3 March 2011, which was denied by the Circuit Court on 7 March 2011. B. Kevin Hardy Following a jury trial, Kevin Hardy (“Hardy”) was convicted on 22 March 1991 in the Circuit Court for Baltimore City of first-degree murder, use of a handgun in a crime of violence, and unlawfully wearing, carrying, and transporting a handgun.

The jury found that Hardy, along with his co-defendant Ronald Nance, shot to death Aaron Carroll and shot and wounded Sandra Keve in the Flag House housing projects in Baltimore City on 3 April 1990. Hardy was sentenced to life imprisonment, plus forty-five years. Hardy’s convictions were affirmed by the Court of Special Appeals on direct appeal and ultimately the Court of Appeals. Nance and Hardy v. State, 93 Md.App. 475 , 613 A.2d 428 (1992), aff'd, 331 Md. 549 , 629 A.2d 633 (1993).

Hardy filed on 11 March 1997 a Petition for Post-Conviction Relief, which was denied on 26 March 1998. Hardy followed that with an Application for Leave to Appeal in the Court of Special Appeals, which was denied in an unreported, per curiam opinion on 25 June 1998. Hardy filed pro se on 31 July 2012 a Petition for Writ of Actual Innocence (the “Hardy Petition” or “Hardy’s Petition”) in the Circuit Court. Hardy’s Petition reproduced the list of “requirements” from § 8-301 in numerical list form and marshalled various allegations and arguments in subheadings under each called-out statutory requirement.

Under a heading titled “Grounds,” Hardy alleged the following: The State’s key witness, Joseph Kopera, was an imposter. Kopera lied relentlessly about his credentials to the jury in [Hardy’s] case. And, Kopera manufactured his testimony to bolster the State’s case-in-chief against Petitioner. ²⁴⁶ (minor alterations added). Kopera was called by the State to examine four bullets removed from the victim’s body.

Hardy reproduced portions of the transcript of his trial where Kopera testified regarding his qualifications as a ballistics expert. 7 Hardy argued that, in light of an eye witness’s arguably inconsistent testimony, Kopera’s testimony “was desperately needed and used in[ ] [the State’s] case to bolster the State’s theory of two shooters of the victim.... ” Hardy maintained that Kopera “falsified himself in order to impress upon [the jury] the untrue accusation from the State, that [Hardy] planned and participated in the killing of Mr. Carroll.” In a subheading concerning “newly discovered evidence,” Hardy characterized Kopera as “a ballistic expert imposter.” In support of his argument, Hardy attached to his Petition a press release from the Department of Maryland State Police, dated 8 March 2007 (“State Police Press Release”), announcing concern over Kopera’s scholastic credentials, a copy of the 2007 Article, and an Affidavit of Suzanne Drouet in which Ms. Drouet recounted her discovery of Kopera’s misrepresentations. Finally, Hardy concluded by “emphatically requesting/seeking” a hearing on the petition “to prove that Mr. Joseph Kopera’s perjured testimony, absolutely, affected the judgment of the jury in [Hardy’s] case” and requested further that the Circuit Court grant him a new trial or other relief as deemed appropriate. The Circuit Court denied, without a hearing, Hardy’s petition on 14 August 2012. C. All Together Now Hunt and Hardy appealed individually to the Court of Special Appeals, claiming that the Circuit Court 8 erred in denying their petitions without a hearing.

In separate unreported opinions, the intermediate appellate court reasoned ²⁴⁷ that Douglas v. State, 423 Md. 156 , 31 A.3d 250 (2011), where we concluded a hearing was warranted, presented a very similar factual scenario to the cases at hand. Accordingly, the appellate court reversed the rulings of the Circuit Court in Hunt’s and Hardy’s cases and remanded them for further proceedings. In each case, the State petitioned for a writ of certiorari, which petitions we granted on 21 October 2014 to consider the following common question: Did the Court of Special Appeals incorrectly reverse the circuit court’s denial of [the Respondents’] amended petition[s] for writ of actual innocence without a hearing where [the Respondents] did not satisfy the statutory requirements of Section 8-301 and where the Court of Special Appeals’ ruling was inconsistent with its own case authority on the issue? State v. Ronnie A. Hunt, Jr., 440 Md. 225 , 101 A.3d 1063 (2014); State v. Kevin Hardy, 440 Md. 225 , 101 A.3d 1063 (2014).

II

Are Hunt and Hardy Entitled to Hearings on Their Petitions for Writ of Actual Innocence? A. Standard of Review In Douglas, 423 Md. at 165 , 31 A.3d at 255 , we held that “the denial of a petition for writ of actual innocence is an immediately appealable order, regardless of whether the trial court held a hearing before denying the petition.” We did not set out the appropriate standard of review for appeals in such matters; however, the Court of Special Appeals concluded rightly elsewhere that the standard of review when appellate courts consider the legal sufficiency of a petition for writ of actual innocence is de novo. See Ward v. State, 221 Md.App. 146, 156 , 108 A.3d 507, 513 (2015); Hawes v. State, 216 Md.App. 105, 133 , 85 A.3d 291, 308 (2014); Keyes v. State, 215 Md.App. 660, 669-70 , 84 A.3d 141, 146-47 (2014); id. at 670 n. 6, 84 A.3d at 147 n. 6. Courts reviewing actions taken by a circuit court after a hearing on a petition for writ of actual ²⁴⁸ innocence limit their review, however, to whether the trial court abused its discretion.

Douglas, 423 Md. at 188 , 31 A.3d at 269 (“[DJecisions on the merits of requests for new trials based on newly discovered evidence, whether filed pursuant to Rule 4-331 or [§ 8-301], are committed to the hearing court’s sound discretion.”); see Ward, 221 Md.App. at 156 , 108 A.3d at 512-13 (“Accordingly, we review a circuit court’s ruling upon the merits of a petition for a writ of actual innocence for an abuse of discretion.”); Keyes, 215 Md.App. at 669 , 84 A.3d at 146-47 . B. Section 8-301 Section 8-301 of the Criminal Procedure Article allows certain individuals 9 to petition for a writ of actual innocence based on newly discovered evidence. Section 8-301 (e) provides that a court “shall” hold a hearing on a petition for writ of actual innocence in certain circumstances: (e) Hearing. — (1) Except as provided in paragraph (2) of this subsection, the court shall hold a hearing on a petition filed under this section if the petition satisfies the requirements of subsection (b) of this section and a hearing was requested. (2) The court may dismiss a petition without a hearing if the court finds that the petition fails to assert grounds on which relief may be granted.[ 10 ] Subsection (b) of § 8-301 sets out the pleading sufficiency requirements for petitions for writ of actual innocence: (b) Requirements. — A petition filed under this section shall: (1) be in writing; (2) state in detail the grounds on which the petition is based; ²⁴⁹ (3) describe the newly discovered evidence; (4) contain or be accompanied by a request for hearing if a hearing is sought; and (5) distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.

Maryland Rule 4-332, effective 1 October 2011, particularizes the required contents of petitions for writ of actual innocence. In addition to requiring the recitation of certain procedural information, 11 Rule 4-332(d) elaborates on the contents of petitions for writ of actual innocence. Such petitions must state: (6) that the request for relief is based on newly discovered evidence which, with due diligence, could not have been discovered in time to move for a new trial pursuant to Rule 4-331; (7) a description of the newly discovered evidence, how and when it was discovered, why it could not have been discovered earlier, and, if the issue of whether the evidence could have been discovered in time to move for a new trial ²⁵⁰ pursuant to Rule 4-331 was raised or decided in any earlier appeal or postjudgment proceeding, the identity of the appeal or proceeding and the decision on that issue; (8) that the newly discovered evidence creates a substantial or significant possibility, as that standard has been judicially determined, that the result may have been different, and the basis for that statement; (9) that the conviction sought to be vacated is based on an offense that the petitioner did not commit; (12) the relief requested; and (13) whether a hearing is requested. The “grounds” referred to in § 8-301(e)(2) and (b)(2) are set out in § 8-301(a): (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 (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.[ 12 ] When ruling on the merits of petitions for writ of actual innocence, circuit courts have at their disposal the ability to “set aside the verdict, resentence, grant a new trial, or correct the sentence, as the court considers appropriate.” § 8-301(f)(1); see Rule 4-332(Z).

Whichever of these results obtain, the hearing judge must state on the record the reasons for his or her ruling. § 8 — 301(f)(2). We determined in Douglas that § 8-301 “imposes a burden of pleading, such that a petitioner is entitled to a ²⁵¹ hearing on the merits of the petition, provided the petition sufficiently pleads grounds for relief under the statute, includes a request for a hearing, and complies with the filing requirements” of § 8 — 301(b). 13 Douglas, 423 Md. at 165 , 31 A.3d at 255 . Petitioners must “ ‘assert’ grounds for relief; [§ 8-301] does not require the petitioner to satisfy the burden of proving those grounds in the papers submitted.” Douglas, 423 Md. at 179 , 31 A.3d at 264 . If a petitioner satisfies the pleading standard, § 8-301(e)(l) directs that a hearing be held.

The pleading requirement “mandates that the trial court determine whether the allegations could afford a petitioner relief, if those allegations would be proven at a hearing, assuming the facts in the light most favorable to the petitioner and accepting all reasonable inferences that can be drawn from the petition.” Douglas, 423 Md. at 180 , 31 A.3d at 264 . Finally, we “construe liberally filings by pro se inmates, particularly when the statute involved is remedial.” Douglas, 423 Md. at 182 , 31 A.3d at 266 ; see State v. Matthews, 415 Md. 286, 312 , 999 A.2d 1050, 1066 (2010) (referring to § 8-301 as both “procedural” and “remedial”). In Douglas , we concluded that that petition 14 satisfied § 8-301’s pleading requirement. 423 Md. at 183 , 31 A.3d at 266 . Douglas met easily the requirement of § 8 — 301(b)(1) by sub ²⁵² mitting his petition in writing.

Id. In the cases at bar, both the Hunt and Hardy Petitions were filed in writing, and therefore cleared § 8-301(b)(l)’s initial hurdle. We concluded that Douglas satisfied § 8-301(b)(2)’s requirement that the petition “state in detail the grounds in which the petition is based.” See id. As noted above, § 8-301(e)(2) authorizes a court to dismiss a petition for writ of actual innocence, without a hearing, “if the court concludes that the allegations, if proven, could not entitle a petitioner to relief.” Douglas, 423 Md. at 185 , 31 A.3d at 267 .

We concluded ultimately that the grounds alleged by Douglas, “if proven, could entitle him to relief.” Id. (emphasis added). We explained: Douglas asserted that there was newly discovered evidence that Officer Kopera, who had testified at Douglas’s trial, had falsified his credentials. Douglas submitted as an exhibit with his petition a newspaper article explaining his allegation of newly discovered evidence.

Dated March 9, 2007, the article reported that “Joseph Kopera, head of the Maryland State Police firearms unit, claimed on witness stands to have degrees that he never earned.... Questions regarding the longtime firearms and toolmarks examiner’s credentials were raised several weeks ago by state public defenders working with the Innocence Project.” The article explained that “the chief attorney with the ... Innocence Project ... became concerned about Kopera’s qualifications while reviewing transcripts” and noting inconsistencies regarding the credentials he testified he earned. Given that there were “hundreds of people he helped convict” and that Kopera had worked for “21 years in the Baltimore Police Department’s crime laboratory before he was lured away in 1991 to join the state police,” 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.

Douglas, 423 Md. at 185-86 , 31 A.3d at 267-68 . Hunt’s and Hardy’s petitions make almost identical allegations to those in ²⁵³ Douglas’s petition and therefore satisfy similarly the requirements of § 8 — 301(b)(2). Hunt’s Amended Petition identified also the 2007 revelation that Kopera’s qualifications and veracity may not be what they seemed. Although Hunt did not attach a copy of the 2007 Article to his petition, he related the substantive contents of the article, including the discovery by Michele Nethercott, Esquire, of the Innocence Project, of Kopera’s inconsistent trial testimony in several cases and the results of an initial investigation into Kopera’s academic credentials.

Hardy’s Petition discussed also the questions surrounding Kopera’s credentials. Further, Hardy attached a copy of the 2007 Article, as well as copies of the State Police Press Release and an affidavit of Suzanne Drouet, an Assistant Public Defender, prepared apparently in connection with another case 15 in which Ms. Drouet recounted her experience auditing Kopera’s claimed credentials. Douglas “describe[d] the newly discovered evidence,” in satisfaction of § 8 — 301(b)(3), by alleging that on 9 March 2007 “an article was published that ‘exposed Joseph Kopera ... as [a] perjurer.’ ” Douglas, 423 Md. at 183 , 31 A.3d at 266 . We noted that, as Kopera testified as an expert witness for the State during Douglas’s trial, the “allegation, viewed in the light most favorable to Douglas, could be proven to be newly discovered evidence.” Douglas, 423 Md. at 184 , 31 A.3d at 266 .

By the same token, the Hunt and Hardy Petitions satisfy also § 8-301 (b)(3)’s “newly discovered evidence” requirement. Construing liberally Douglas’s pro se petition, we concluded that it satisfied § 8-301(b)(4)’s requirement that a petition “contain or be accompanied by a request for hearing if a hearing is sought.” See id., 31 A.3d at 266-67 . Although Douglas did not state expressly “I request a hearing,” we concluded that the petition “reflect[ed] Douglas’s indicated desire for a hearing” as his petition recited the complete ²⁵⁴ language of the statute, including the text of § 8-301(b)(4) itself. Id.

He filed also a proposed “Writ of Habeas Corpus” for the warden to produce him for a hearing on his petition. Id., 31 A.3d at 267 . The Hunt and Hardy Petitions requested hearings explicitly (Hardy’s even “emphatically” so). As Douglas had not filed previously a petition for writ of actual innocence, 16 § 8-301(b)(5) did not apply in his case as he had no claims to distinguish from those made in prior filings.

Douglas, 423 Md. at 184-85 , 31 A.3d at 267 . Like Douglas, Hunt and Hardy filed various postconviction motions, but neither filed previously a petition for writ of actual innocence, and so § 8 — 301(b)(5) does not figure here. As Maryland Rule 4-332, noted earlier, became effective 1 October 2011, it does not apply to Hunt’s Amended Petition, which was filed on 31 January 2011. 17 See Hawes, 216 Md. App. at 133 n. 18, 85 A.3d at 308 n. 18. Hardy’s Petition was filed 31 July 2012, however, and so must comply with Rule 4-332..

Rule 4-332(d)(6) elaborates on § 8-301(b)(3)’s “newly discovered evidence” requirement, adding that a petition for writ of actual innocence must allege that the newly discovered evidence, “with due diligence, could not have been discovered” in time to move for a new trial pursuant to Rule 4-331. The explicit requirement that a petitioner (or their attorney) must not have been able to discover the new evidence “with due diligence” does not alter our conclusion that Hardy’s Petition satisfies § 8-301(b)(3). 18 Rule 4-332(d)(7) goes on to say that petitions must state how and when the new evidence was ²⁵⁵ discovered and why it could not have been discovered earlier. Hardy’s Petition satisfies the pleading requirement of Rule 4-832(d)(7) by attaching the 2007 Article, as well as the affidavit of Ms. Drouet, and reiterating the substantive contents of the same in the body of his petition. Rule 4-332(d)(9) requires further that the petition must assert that the contested conviction “is based on an offense that the petitioner did not commit.” In his petition, Hardy states that he “has maintained his innocence in the crimes charged and still does to this date.” Finally, as noted earlier, Rule 4-332(d) requires the recitation of certain procedural information.

Hardy’s Petition was in writing and signed by him. It was filed in the Circuit Court for Baltimore City in Case Nos. 190274025, 27, and 29, which were the original file numbers of his cases; therefore, the Petition contains the identifying information required by Rule 4-332(d)(l). Hardy attached also to his Petition a compliant certificate of service, satisfying Rule 4-332(d)(ll)’s requirement that a copy of the Petition was mailed to the appropriate State’s attorney. Hardy’s Petition does not comply, however, with other technical requirements of Rule 4-332(d), in that his petition does not set out each offense of which he was convicted, the date of the conviction, and the sentence imposed (Rule 4-332(d)(3)), nor the procedural history of his cases on appeal (Rule 4 — 332(d)(4)), nor does his petition contain a recitation of the procedural history of each motion or petition for post-judgment relief (Rule 4 — 332(d)(5)). 19 The Circuit Court need not dismiss Hardy’s Petition, however, if it concludes that the petition complies substantially with the requirements of subsection (d).

See Maryland Rule 4-332(i)(l)(A) (providing that the court may “dismiss the petition if it finds as a matter of law that the petition fails to comply substantially with the requirements of section (d) of this Rule or otherwise fails to ²⁵⁶ assert grounds on which relief may be granted” (emphasis added)). It does not appear that the Circuit Court dismissed Hardy’s Petition on 14 August 2012 on any of these grounds. Had that been the apparent basis for that dismissal, without a hearing, the trial court did not appear to consider the “substantial compliance” relief valve of Rule 4-332(i)(l)(A). We could find no reported appellate cases in which a petition filed after 1 October 2011 was dismissed for lack of compliance with the more technical requirements of Rule 4-332. 20 Where petitions were dismissed, it was for more substantive violations of other requirements.

See, e.g., Ward, 221 Md.App. at 168-70 , 108 A.3d at 520-21 (concluding that the circuit court erred in concluding that certain