Ward v. State

MEREDITH, J. In October 1993, a jury in the Circuit Court for Baltimore City convicted Gary Ward, appellant, of first degree murder and the use of a handgun in the commission of a crime of violence. See State v. Ward, 350 Md. 372, 374-75 , 712 A.2d 534 (1998). Appellant was sentenced to life imprisonment for first degree murder and a consecutive term of five years’ imprisonment for the handgun offense. On January 4, 2012, appellant filed a petition for a writ of actual innocence pursuant to Maryland Code (2001, 2005 Repl.

Vol., 2011 Supp.), Criminal Procedure Article (“CP”), § 8-301. Appellant asserted that the State’s case against him placed substantial reliance upon expert testimony regarding comparative bullet lead analysis (“CBLA”), and appellant argued that his conviction should be vacated because of scientific studies published in 2002 and 2004 that criticized the use of CBLA in criminal trials. 1 Moreover, appellant argued that the Federal Bureau of Investigation (“FBI”) — the only lab in the United ¹⁴⁹ States that performed CBLA tests — had discontinued CBLA comparisons in 2005, and the Court of Appeals had declared such testimony inadmissible in 2006 in Clemons v. State, 392 Md. 339 , 896 A.2d 1059 (2006). Appellant argued that the new scientific findings about the conclusions that could be reasonably supported by CBLA constituted newly discovered evidence that supported the issuance of a writ of actual innocence granting a new trial pursuant to CP § 8-301. Following a June 14, 2012, hearing, the circuit court denied the petition, and filed a written opinion and order on November 28, 2012.

Appellant noted this appeal. While the present appeal was pending, the Court of Appeals considered another case in which the prosecution had relied on expert testimony regarding CBLA, and the Court of Appeals granted a new trial in that case as a consequence of issues regarding the CBLA evidence. Kulbicki v. State, 440 Md. 33 , 99 A.3d 730 (2014), reconsideration denied, id. QUESTION PRESENTED Appellant presents one issue for our review: Did the lower court err by failing to recognize that national scientific studies, released in 2002 and 2004, followed by the FBI’s official rejection and discontinuation of comparative bullet lead analysis (CBLA) in 2005 constitute newly discovered evidence under [CP] § 8-301?

For the reasons stated below, we conclude that the court erred in ruling that the reports were not newly discovered evidence. We vacate the judgment of the circuit court and remand the case for further consideration in light of the Court of Appeals’s opinion in Kulbicki . FACTS AND PROCEDURAL HISTORY At approximately 11:30 p.m. on September 30, 1992, Alfred Stewart was shot to death in the 1400 block of Cliftview Avenue in Baltimore. 2 Ward, supra, 350 Md. at 374 , 712 A.2d ¹⁵⁰ 534. In the following days, anonymous callers reported to police that appellant had murdered Stewart.

Id. at 374 , 712 A.2d 534 . On October 3, police questioned appellant. Id. Although appellant was not charged with the murder at that point, the police impounded appellant’s vehicle due to expired tags.

Id. After a witness identified appellant from a photographic array as Stewart’s killer, police obtained a warrant to search appellant’s home and vehicle. Id. Police recovered three .357 caliber “MAG” hollow point cartridges from the trunk of the vehicle.

Id. The murder weapon was never found. Appellant was charged with first degree murder and the use of a handgun in the commission of a crime of violence. Id.

The circuit court conducted a jury trial in October 1993, with the Honorable Elsbeth Bothe presiding. At trial, the State presented CBLA evidence in an effort to link the bullet fragments found in Stewart’s body to the unfired cartridges recovered from appellant’s vehicle. In the prosecutor’s opening statement, he told the jury that the FBI analysis would show that the bullet that killed Stewart “came from the same lot as those bullets that were found in defendant’s car, the same exact make of bullets from the same lot.” An FBI agent, Ernest Peele, testified that the composition of the fragments was the same as that of the bullets from appellant’s car. The agent stated: “It has the same amount of all the elements present and as such it is consistent with coming from the same source of ammunition.” Agent Peele’s testimony about CBLA included the following assertions: If comparing two pieces [of bullets] and they have the same composition, the reasonable place to expect that they originated would be from the same homogenous source.

For instance, they could be from the same piece. They could be from the same bullet if you were to take any two small pieces. ¹⁵¹ The next reasonable place would be via the manufacturer’s packaging process, would be the same box of ammunition. That would be the reasonable place or source of determination to occur. And then it is possible the same type, the same manufacturer packaged on or about the same date because obviously the source could be larger than what would be used in a box.

(Emphasis added.) During closing arguments at appellant’s trial, the prosecutor argued to the jury that, based upon Agent Peele’s CBLA testimony, they could find a connection between appellant and the bullets taken from Stewart’s body: We also know that the bullets were recovered from Alfred [Stewartj’s body match the cartridges, which means the bullet and the casing that it was in, that was found where? In the Defendant’s car. That’s a little bit more than coincident, ladies and gentlemen, in light of the fact that you have also have an eyewitness testimony. Got some strong evidence in this case.

The prosecutor emphasized the connection that had been proved by the CBLA evidence which purportedly showed that the bullets that killed Stewart came from the same box as the bullets found in appellant’s car. The prosecutor stated: This stuff was found right inside the trunk. A box of Winchester Super-X cartridges, silver tip, 357 magnum. Just so happens that the same kind of cartridges that were found.

Just so happens that they are consistent with the bullets that are recovered from A1 [Stewart]. In fact, not only consistent, but they match. They match from the same source. They came from the same box. ...

The testimony of the ballistics experts in here may have, on first blush, appeared to be complicated, but one thing that we know that there was a connection between Al [Stewartj’s murder weapon and the bullet that killed ¹⁵² him, and what was found in the Defendant’s car. That’s a fact. That’s a fact. (Emphasis added.) The State also presented the testimony of Mohammed Taylor, who was familiar with both appellant and Stewart.

Taylor testified that, around midnight on September 30, 1992, he saw appellant and Stewart arguing about drugs which Stewart had recently purchased from appellant. A short time after that, Taylor stated, he heard a gunshot, and he turned around. He testified that he heard two more gunshots and saw Stewart on the ground, and saw appellant running away, holding a gun. Taylor later identified appellant in a photo array.

Alan Wise also testified for the State. At the time of trial, Wise was serving a sentence for an unrelated charge. Wise stated that he had known appellant for a long time. Wise testified that he witnessed appellant fire a silver gun during an unrelated incident that occurred on September 17, 1992.

Additionally, Wise stated that, shortly before the September 30 shooting of Stewart, appellant told Wise that he needed money and that he “don’t want to have to put the gun to nobody mouth.... ” Wise testified that he was in the vicinity of the September 30 shooting and heard gunshots, but he did not see anything. Appellant represents in his brief: “Wise has since recanted his testimony in postconviction proceedings [in 2003, at which time Wise testified] that his identification of Gary Ward as the shooter at the earlier incident was a lie.” (The State points out, however, that the postconviction judge discounted Wise’s recantation as not being credible.) At appellant’s trial, the State also presented expert ballistics testimony that the bullets recovered from the September 17 shooting were fired by the same caliber of gun as the bullet fragments found in Stewart’s body. Everett Johnson, who lived in the neighborhood and had known appellant for seven years at the time of the shooting, testified on behalf of appellant. Johnson stated that, on the night of September 30, he was talking on the phone when he heard gunshots.

He went outside and saw a man standing ¹⁵³ over another man. Johnson stated that the standing man turned, saw him, and departed. Johnson testified that he did not know the man he saw standing over the body, but it was not appellant. Although Johnson observed the unknown man standing over Stewart’s body within seconds after hearing the shots fired, Johnson acknowledged that he did not see the shooting.

Appellant’s mother and stepfather both testified that appellant was at home watching television at the time of the shooting. Appellant also testified in his case and he denied shooting Stewart. Appellant admitted asking Stewart for money, but denied threatening him. Appellant testified that he had permitted other people to drive his car and did not know anything about the bullets found in the trunk.

Appellant professed his innocence, and testified as follows: Q. [DEFENSE COUNSEL] Sir, you know that you’re charged "with shooting Mr. [Stewart]. A. [GARY WARD] Yes, sir. Q. Did you in fact shoot Mr. [Stewart] on September the 30th, 1992? [PROSECUTOR]: Objection to the leading nature of the question. THE COURT: Well— A. No, I did not shoot Alfred [Stewart].

The jury convicted appellant of first degree murder and the use of a handgun in the commission of a crime of violence. On appeal, in an unreported decision, this Court rejected the arguments asserting error by the trial court, but remanded the case with instructions to hold a suppression hearing concerning the search of the vehicle. Ward v. State, No. 69, Sept. Term 1994 (filed November 9, 1994). On remand, the circuit court denied the motion to suppress.

Appellant appealed to this Court a second time. In an unreported decision, we reversed the denial of his motion to suppress and stated: “[W]e are constrained to vacate appellant’s convictions.” Ward v. State, No. 297, Sept. Term 1996 ¹⁵⁴ (filed January 7, 1997). (See State v. Ward, 350 Md. at 410-11 , 712 A.2d 534 .) The Court of Appeals, however, reversed this Court’s ruling, and ordered that appellant’s convictions be affirmed. State v. Ward, supra, 350 Md. at 389-90 , 712 A.2d 534 .

In April 2003, appellant filed a petition for postconviction relief, which was denied after a hearing. The circuit court also denied his motion to reconsider the denial of his petition for postconviction relief. On January 4, 2012, appellant filed a petition for a writ of actual innocence pursuant to CP § 8-301. Appellant argued that newly discovered evidence — the scientific studies published in 2002 and 2004 and the FBI’s 2005 change in policy— called into question the validity of the conclusions that had sometimes been drawn from CBLA reports by expert witnesses such as Agent Peele.

Appellant pointed out that the FBI had ceased performing CBLA comparisons in 2005. Appellant asserted that these scientific studies would have rendered the CBLA evidence inadmissible at his trial or, at least, generated a substantial possibility of a different result, and he requested a new trial. On June 14, 2012, the circuit court conducted a hearing on appellant’s petition. Due to the passage of time, the judge who presided over appellant’s trial was no longer available, and his petition was heard by a different judge.

At the hearing, counsel for appellant argued that the studies published after his trial should be considered newly discovered evidence, stating, in part: [At the time of appellant’s trial,] the scientific community [relative to CBLA] consisted of two people in the FBI. Because of this closed-world environment, no one had the knowledge to be able to challenge it in a court of law. When [the 2002 and 2004 reports] became available, that’s when — at that moment, attorneys were able to look at it and say, wait a minute. There are statistical errors in here.

Wait a minute[;] there are times that a bullet from 1998 could be exact[ly] ¹⁵⁵ like a bullet from 1996. Up until that time, nobody knew it. And it wasn’t until the science world was allowed in by the FBI that attorneys were able to finally challenge CBLA. That’s the point that we’re trying to make.

THE COURT: Okay. [COUNSEL FOR APPELLANT]: So, because it was — it was new to us after this study, and none of that was available to Mr. Ward at the time [of his trial], so he couldn’t challenge it. THE COURT: So — and you’re saying that, if he had been — if he had been able to use the newly discovered evidence, challenging the CBLA, the jury would have disregarded the CBLA, and that he would have been found — the result may — would have — there’s a substantial likelihood that the result would have been different; is that what you’re telling me? [COUNSEL FOR APPELLANT]: Close. I’m saying, Your Honor, that a judge in [a] Frye-Reed hearing would never allow CBLA — it certainly wouldn’t be allowed today under [Clemons v. State, 392 Md. 339 , 896 A.2d 1059 (2006) ] — it would never get to the jury. The jury would never be able to hear CBLA.

On November 28, 2012, the circuit court filed an opinion and order denying appellant’s petition. The court determined that the 2002 and 2004 studies were “merely impeaching” evidence relative to the expert’s testimony at appellant’s trial, citing United States v. Berry, 624 F.3d 1031, 1043 (9th Cir.2010), and United States v. Higgs, 663 F.3d 726, 743 (4th Cir.2011). Citing our opinion in Kulbicki v. State, 207 Md.App. 412, 438 , 53 A.3d 361 (2012), the circuit court also noted that the Court of Appeals’s rejection of CBLA evidence in Clemons v. State, 392 Md. 339 , 896 A.2d 1059 (2006), had been framed as an evidentiary issue which did not have retroactive application. The court further observed that, even if it considered the studies to be newly discovered evidence, appellant had failed to meet his burden of showing a substantial possibility that the ¹⁵⁶ jury would have reached a different result at his trial.

Appellant noted this appeal. STANDARD OF REVIEW In order to prevail on a petition for a writ of actual innocence, appellant had the burden to persuade the circuit court that the scientific studies are newly discovered evidence that could not have been discovered in time to move for a new trial under Maryland Rule 4-331, and that this newly discovered evidence creates a substantial or significant possibility that the result at his trial “may have been different.” See Hawes v. State, 216 Md.App. 105, 133 , 85 A.3d 291 (2014). Appellant argues that the circuit court committed an error of law in failing to classify the 2002 and 2004 scientific studies as newly discovered evidence, and by incorrectly applying the standard of whether that evidence would have created a substantial possibility that the result of the trial may have been different. See Campbell v. State, 373 Md. 637, 668 , 821 A.2d 1 (2003).

Although trial courts have broad discretion in ruling upon the admissibility of evidence, we review de novo any “pure legal question” regarding evidence. See Mathews v. Cassidy Turley Md., Inc., 435 Md. 584, 599 , 80 A.3d 269 (2013) (citing Hall v. Univ. of Md. Med. Sys. Corp., 398 Md. 67, 82 , 919 A.2d 1177 (2007)).

In Douglas v. State, 423 Md. 156, 188 , 31 A.3d 250 (2011), the Court of Appeals stated: “[D]ecisions on the merits of requests for new trials based on newly discovered evidence, whether filed pursuant to Rule 4-331 or [CP] § 8-301, are committed to the hearing court’s sound discretion.” See also Campbell, supra, 373 Md. at 665 , 821 A.2d 1 ; Jackson v. State, 216 Md.App. 347, 363-64 , 86 A.3d 97 (2014). 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. See Keyes v. State, 215 Md.App. 660 , 670 n. 6, 84 A.3d 141 (2014). Whether the circuit court applied the correct standard in making its evaluation is a legal question we review de novo.

See Thompson v. State, 411 Md. 664, 683 , 985 A.2d 32 (2010) ¹⁵⁷ (court’s application of incorrect standard required remand for reconsideration under the appropriate standard). Cf. State v. Seward, 220 Md.App. 1, 23-24 , 102 A.3d 798, 812 (2014) (reversing grant of writ of actual innocence because of “the imposition by the court below of the wrong standard”); Hawes, supra, 216 Md.App. at 133, 85 A.3d 291 (reviewing allegations in petition for legal sufficiency de novo, and ruling as a matter of law, 216 Md.App. at 134-35, 85 A.3d 291 that errors in jury instructions could not constitute newly discovered evidence). DISCUSSION History of CBLA Evidence From the late-1960s until 2005, the FBI conducted CBLA to compare bullets found at crime scenes to bullets found in a defendant’s possession.

Higgs, supra, 663 F.3d at 736 . CBLA was based on the now-debunked theory that each batch of lead used to produce bullets was unique at an elemental level. Id. This invalid theory resulted in expert witnesses from the FBI testifying that, because each batch of lead was unique, CBLA could establish with a reasonably degree of scientific certainty that two bullets were from the same batch.

See Berry, supra, 624 F.3d at 1035 n. 3. The introduction of CBLA evidence at trial enabled prosecutors to argue that, if a bullet recovered from a crime scene matched the composition of a bullet in a suspect’s possession, then it was more likely that the suspect fired the bullet found at the crime scene. Id. at 1035-36 (citing Commission on Sci. Assessment of Bullet Lead Elemental Compositional Comparison, NEC, Forensic Analysis: Weighing Bullet Lead Evidence, at 1-2 (2004) (“the NEC Study”), available at http://www.nap.edu/catalog.php? record_id=10924).

Doubts existed in the scientific community, however, regarding the reliability and accuracy of the CBLA comparisons, as well as the inferences that could be reasonably drawn from the analysis. In 1991, at the International Symposium on the Forensic Aspects of Trace Evidence, experts in the field ¹⁵⁸ issued a report that “ ‘cautioned that the variability (of the elemental mix) within a production run ... has not been addressed in a comprehensive study.’ ” Clemons, 392 Md. at 368 , 896 A.2d 1059 (quoting Edward J. Imwinkelried & William A. Tobin, Comparative Bullet Lead Analysis (CBLA) Evidence: Valid Inference or Ipse Dixit?, 28 Okla. City U.L. Rev. 43, 50 (Spring 2003)). In Kulbicki, 440 Md. at 49 , 99 A.3d 730 et seq., the Court of Appeals discussed the 1991 report, and noted that Ernest Peele — the same CBLA expert who testified at appellant’s trial in 1993 — was one of the authors of the report (referred to in Kulbicki as “the 1991 Peele Report”).

Because the 1991 Peele Report was “distributed to various public libraries in 1994, ” id. at 52 n. 12, 99 A.3d 730 and was theoretically available to the general public at the time of Kulbicki’s trial in 1995, the Court of Appeals held that, “[h]ad Kulbicki’s attorneys investigated and discovered the 1991 Peele Report, they would have had a potent challenge to Agent Peele’s conclusion that the bullet fragment taken from the autopsy and the fragment found in Kulbicki’s truck was ‘what you’d expect if you were examining two pieces of the same bullet.’ ” Id. at 52 , 99 A.3d 730 . The Court held that the failure of Kulbicki’s trial counsel to utilize the 1991 Peele Report in cross-examining Agent Peele was the result of ineffective assistance of counsel. The Court explained, id. at 53 , 99 A.3d 730 : Kulbicki’s attorneys’ failure to appropriately investigate the 1991 Peele Report and to challenge the State’s scientific evidence on cross-examination at trial, thus, fell short of prevailing professional norms. Given the serious nature of the charges Kulbicki was facing, along with the fact that CBLA was so persuasively used to connect Kulbicki to the alleged murder scene and murder weapon, it was incumbent on Kulbicki’s attorneys “to subject the state’s theories to the rigors of adversarial testing”.

See Driscoll, 71 F.3d at 709. Having failed to research what Agent Peele had published about the forensic evidence about which he was testifying and having also failed to conduct an adequate cross-exami ¹⁵⁹ nation rendered Kulbicki’s counsels’ performance inadequate. Further, the Court of Appeals held that, if Agent Peele had been effectively cross-examined, there was a substantial possibility the result of the trial would have been different: Given the State’s rigorous reliance on CBLA evidence to connect Kulbicki to the crime, we conclude that there was a “substantial possibility” that the outcome would have been different had Kulbicki’s counsel questioned Agent Peele regarding the possibility of having compositionally similar bullets exist in different batches. Having concluded that both prongs of Strickland [v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)] have been satisfied, we hold that the Circuit Court erred in concluding that Kulbicki’s attorneys had not rendered ineffective assistance of counsel, and thus, remand for a new trial.

Id. at 56, 99 A.3d 730 (footnotes omitted). Appellant’s petition in the present case was based upon two studies published after his trial, both of which were more critical of the FBI’s use of CBLA than the 1991 Peele Report had been. In 2002, a study examined the metallurgical phenomena that occur during lead refining and bullet manufacturing. Clemons, supra, 392 Md. at 368 , 896 A.2d 1059 .

This study concluded that it was possible that bullets produced in the same lot could be chemically different, but also concluded that bullets produced at different times could be composition-ally identical. Id. (citing E. Randich et al, A Metallurgical Review of the Interpretation of Bullet Lead Compositional Analysis, 127 Forensic Sci. Int’l 174, 182 (2002) (“the Randich Study”)).

At the request of the FBI, the National Research Council (“NRC”) conducted another study of CBLA evidence. Berry, supra, 624 F.3d at 1037 . In 2004, the NRC published its results. The NRC Report was critical of some of the practices of the FBI.

Id. For example, the report noted that the FBI was “overstating some of the conclusions that could be drawn from CBLA evidence.” Id. (citing NRC Study, supra, at 6-7). ¹⁶⁰ The NRC determined that “[variations among and within lead bullet manufacturers make any modeling of the general manufacturing process unreliable and potentially misleading in [CBLA] comparisons[,]” but nevertheless, “[CBLA] is sufficiently reliable to support testimony that bullets from the same compositionally indistinguishable volume of lead (CIVL) are more likely to be analytically indistinguishable than bullets from different CIVLs.” NRC Study, supra, at 112. As this Court observed in Kulbicki: The NRC report demonstrates that the problem with CBLA is not that the method used to compare the contents of two bullets is unreliable in some abstract sense, but that it is unreliable to conclude that a CBLA “match” supports