Wilson v. State

RAKER, Judge. This case arises out of a petition for post-conviction relief filed pursuant to the provisions of Maryland Code (1958, 1996 Repl.Vol., 2000 Supp.) Article 27, §§ 645A-645J, the Post Conviction Procedure Act. Following a court trial in the Circuit Court for Talbot County on January 16, 1979, Petitioner was convicted of two counts of robbery with a dangerous and deadly weapon, common law burglary, conspiracy to commit burglary, and use of a handgun in the commission of a felony. He was sentenced to the Maryland Division of Corrections for a term of confinement of fifty years, to be served consecutively to sentences previously imposed as a result of ³³⁸ unrelated Delaware and federal charges.

On direct appeal, the Court of Special Appeals affirmed. See Wilson v. State, 44 Md.App. 318 , 408 A.2d 1058 (1979). Wilson filed this petition for post-conviction relief in 1998. In his petition, Wilson raised three grounds for post-conviction relief: (1) that he was denied due process of law because the State suppressed favorable material evidence in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) and its progeny, (2) that he was denied effective assistance of counsel, and (3) prosecutorial misconduct.

Following an evidentiary hearing, the Circuit Court for Anne Arundel County 1 granted Wilson’s petition for post-conviction relief and awarded him a new trial because the State did not disclose favorable material evidence. In an unreported opinion, the Court of Special Appeals reversed. We granted Wilson’s petition for writ of certiorari, and, because we agree with the post-conviction hearing court, we shall reverse the judgment of the intermediate appellate court. I. We set out the facts of the crime as recounted by the post-conviction hearing court, supplementing them as needed: “On the night of February 5,1977, the home of a used car salesman named Calvin Scott was broken into by two masked men who were armed with guns.

The intruders gained entrance into the home by firing a gun through the doorway as Calvin Scott was locking the home for the night.1 In their search of the home, the intruders discovered an old safe. The intruders then beat both Calvin Scott and his wife, Elsie Mae, until Calvin Scott opened the safe from which approximately $71,000.00 in cash was stolen. Prior to the intruders’ getaway, they handcuffed the Scotts ³³⁹ to their iron bed frame where they remained until they were found the following afternoon by their granddaughter. I The bullet was found several days later.

It was determined that the bullet came from a German Luger pistol. “Two to three weeks after this crime, the police received information from an anonymous source, believed to have been the Petitioner’s wife, that the Petitioner and Gary Reynolds may have been involved in the robbery. On March 11, 1977, the Petitioner was arrested in Florida on unrelated charges and several handguns were seized, including a German Luger. In subsequent state and federal prosecutions in Florida, the Petitioner admitted possession and ownership of the Luger. Furthermore, in June of 1977 the FBI determined that the Petitioner’s Luger fired the bullet which was recovered from the Scott’s home. “The Petitioner, at his trial, testified that he was acquainted with the Maryland area and that in late January or early February, 1977, he met with Cable and Reynolds.

He further testified that he sold his German Luger pistol to Cable who was interested in and collected guns from World War II. The Petitioner testified that this was the only contact that he ever had with Cable. The Petitioner’s family testified that he was at a party in Boston on the night of the robbery. “On May 18, 1977, Harkum gave a statement to the State’s Attorney for Talbot County which was read into evidence at the Petitioner’s trial. In his statement, Har-kum, who worked with Calvin Scott as a used car salesman, admitted that he told Cable that the victim, Calvin Scott, kept large amounts of cash in his home.

Harkum also said that Cable was involved in the Scott robbery. Harkum described Cable as a man of violent propensities who subsequently proposed that Harkum join him in other criminal undertakings. Harkum added that he was afraid of Cable. Harkum had no information or knowledge about the Petitioner or Reynolds but proffered that he had been given the ³⁴⁰ impression by Cable that a ‘Wayne Morris’ and/or a ‘Larry Mears’ may also have been involved in the robbery.2 2 The record does not reveal any follow-up investigation by the State of Wayne Morris who died prior to the trial, or of Larry Mears, who 'had suddenly shown up with $25,000 in cash to buy a boat.' Wilson v. State, 44 Md.App. 318, 321 , 408 A.2d 1058 (1979). “Cable, a bouncer at a night club in the Annapolis area, also testified for the State.

He testified that while he was in Florida in autumn of 1976, he met with Reynolds in order to plan a robbery. Three to four months thereafter, Cable said that he had met Reynolds and the Petitioner at a bar in Glen Burnie. ‘Then on Saturday, February 5, 1977, Reynolds, the [Petitioner] and a young woman named “Tammy” had come to his boat.’ Wilson v. State, 44 Md.App. 318, 322 , 408 A.2d 1058 (1979). ‘The group drove over to Easton where Cable said he had pointed out the Scott residence before returning to the Annapolis area.’ Id. ‘Late that night Cable said he met with the trio again and was advised that the robbery had been accomplished.’ Id. Cable testified that he was given a share of the proceeds from the robbery for the role he played.” Prior to trial, Petitioner filed a written request for discovery and inspection, specifically requesting information regarding all persons who had been offered immunity, favorable consideration, lesser pleas, or other agreements in return for their testimony, information, or documents. The State’s response to that request was “not discoverable.” No copy of any written plea agreement was ever produced by the State.

At trial, Cable made reference to a plea agreement that he had with the State. He testified on direct examination that he was presently in jail on pretrial detention and that he had not yet gone to trial on the charges arising from his involvement in the instant crime. He testified that “in return for testifying, the charges against him [would be] amended to two counts of conspiracy to commit armed robbery and that [his] total sentence [would be] a five year sentence.” Additionally, he testified that unrelated drug and weapon charges in other jurisdictions would not be pursued by the State. When the ³⁴¹ subject arose on cross-examination, Cable stated that his understanding was based on a tvritten plea bargain agreement, negotiated by his attorney, who was present during his testimony.

Co-defendant James P. Harkum also testified for the State at Petitioner’s trial, and he also made reference to a plea agreement with the State. Harkum testified that he had not been detained prior to trial and had not yet gone to trial. He testified that, in exchange for his testimony against Petitioner, his “arrangements with the State” were that he would receive jail time of an unknown duration and possible probation. On January 20, 1979, Petitioner was convicted by a jury in the Circuit Court for Talbot County of two counts of armed robbery, burglary, conspiracy to commit burglary, and the use of a handgun in the commission of a crime of violence.

He was sentenced to a term of incarceration of fifty years, to be served consecutive to unrelated Delaware and federal sentences. Harkum entered a guilty plea to a single count of his indictment on January 24, 1979. Pursuant to a written plea agreement, Harkum was sentenced to a term of incarceration of twenty years, all suspended, with five years of probation. At Harkum’s sentencing hearing, a two-page psychological report, prepared by Dr. Grumpelt, was included with his plea agreement in the hearing transcript.

The report noted that Harkum had been Dr. Grumpelt’s patient since August 16, 1977 and that he had been diagnosed with paranoid schizophrenia. The report also stated that Harkum was “confused and had numerous loose associations” and that he required “medication to keep in touch with reality.” During the hearing, Harkum also testified that he had been hospitalized for mental health treatment and under the care of a psychiatrist. On February 9, 1979, Cable entered a guilty plea to a single count of his indictment, also pursuant to a written plea agreement. Based on a sentence recommendation joined by the State and defense counsel, the court imposed a five-year sentence, all suspended, with credit for 349 days of pretrial ³⁴² detention, and four years of probation.

Cable was thereafter immediately released from custody. Petitioner appealed to the Court of Special Appeals, alleging on direct appeal that the trial court had erred in failing to instruct the jury properly on reasonable doubt, that the trial court had erred in refusing to allow him to deliver his own closing argument, that the jury verdicts were coerced by the time limit imposed by the court on deliberations, that the burglary verdict was coerced by the court’s supplemental jury instruction, that a motel registration card was improperly admitted as a business record, and that he was denied a fair and impartial trial because of the circumstances of his pretrial detention, his extradition to Maryland, and the court’s refusal to grant him a continuance. 2 The Court of Special Appeals affirmed. See Wilson v. State, 44 Md.App. 318 , 408 A.2d 1058 (1979). This Court denied his petition for certiorari.

See Wilson v. State, 287 Md. 758 (1980). On March 25, 1998, Petitioner filed this petition for post-conviction relief. On March 26, 1999, the Circuit Court granted post-conviction relief and granted a new trial on Brady grounds, that the prosecutor suppressed favorable, material evidence — namely, plea agreements with Harkum and Cable, a psychological report detailing information about Harkum’s mental state, and the identity of a potential witness to rebut Petitioner’s alibi defense who had been unable to place Peti ³⁴³ tioner with his codefendants on the night before the burglary — and ordered a new trial. With respect to the plea agreements, the court found that the State knowingly failed to provide full disclosure of the agreements with Cable and Harkum, that the undisclosed agreements were favorable as they would have provided grounds for impeachment, and that the suppressed agreements were material since their suppression undermined confidence in the verdict and created at least a reasonable probability of a different result.

With respect to the psychological report, the court found that the prosecution either knew or should have known of Harkum’s mental illness, that the evidence regarding his schizophrenia was favorable to Petitioner as it would have provided strong grounds for impeachment, and that the evidence was material because there was a reasonable probability of a different outcome if the information had been available to Petitioner. Finally, with respect to the identity of the witness, Mark Hall, the court found that the State had withheld the witness’s name, that the information was favorable because the witness could support Petitioner’s alibi defense, and that the witness’s identity was material because there was a reasonable probability of a different result if the jury had heard his testimony. The court also found, on related grounds, that the failure to disclose the plea agreements and the identity of the alibi witness constituted prosecutorial misconduct that entitled Petitioner to a new trial. The State’s application for leave to appeal was granted by the Court of Special Appeals, and that court reversed.

With respect to the plea agreements, that court found that the jury already knew that Harkum and Cable were testifying pursuant to plea agreements and concluded, in light of the other evidence against Petitioner, that the potential impeachment value of the agreements was not material to the outcome of the trial. With respect to the psychological report, the court found that Mr. Harkum did not present any direct incriminating evidence against Petitioner and concluded, therefore, that, because none of Mr. Harkum’s testimony harmed Petitioner, ³⁴⁴ “whether Mr. Harkum could have been more thoroughly impeached is irrelevant.” Finally, with respect to the identity of Mark Hall, the court found that, up until the time that he testified at the hearing, the State thought that Mr. Hall was going to identify, not exonerate, Petitioner and that, once he failed to do so, the witness could have been called to testify by the defense. We granted a writ of certiorari to consider the following questions raised in the petition: I. Did the lower court err in concluding that the intentional withholding by the State of certain impeachment evidence regarding the State’s two accomplice witnesses, together with knowing perjury by the prosecutor and the witnesses as to the existence of such evidence, was not sufficiently material to the outcome of the case and therefore harmless error?

II

Did the lower court err in holding that the psychiatric history of one of the State’s accomplice witnesses, which history was also withheld from the Petitioner by the State, was irrelevant because the witness did not offer any direct incriminating evidence against Petitioner?

III

Did the lower court err in its determination that the State’s discovery violation concerning the identity of a prosecution witness did not proximately result in a Brady violation?

II

Petitioner claims that the evidence in the record discloses that the State had written plea agreements with James Har-kum and Peter Heinz Cable prior to their testimony at Petitioner’s trial. Petitioner further contends that the State allowed both witnesses to mislead the jury by understating the favorable consideration in those agreements granted in exchange for their testimony and that the State compounded that deception by falsely emphasizing, in closing arguments, the credibility of the two witnesses and the lack of anything that they stood to gain by testifying against Petitioner. Peti ³⁴⁵ tioner argues that the combination of lack of disclosure and misleading presentation rise to the level of a violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its progeny because Harkum and Cable were central to the State’s relatively weak circumstantial case against Petitioner and the substance of their plea agreements could have cast serious doubt on their credibility. The State argues that the post-conviction court erred in finding that written plea agreements existed between the State and Harkum and Cable and that these witnesses lied about the existence of these agreements.

As a fall-back position, the State argues that it elicited testimony at trial concerning any agreements from Harkum and Cable on direct examination. Thus, the State argues that, although disclosure might have occurred late in the case, it did occur in sufficient time to allow Wilson an opportunity effectively to cross-examine Harkum and Cable in an effort to impeach their credibility. Finally, the State maintains that any failure to provide plea agreements was not material because, considering the testimony of Harkum and Cable, both on direct and cross-examination, and considering the arguments of counsel in closing, the jury was well aware that these two witnesses were testifying pursuant to a deal.

III

The Supreme Court made clear in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87 , 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215 . In order to establish a Brady violation, Petitioner must establish “(1) that the prosecutor suppressed or withheld evidence that is (2) favorable to the defense — either because it is exculpatory, provides a basis for mitigation of sentence, or because it provides grounds for impeaching a witness — and (3) that the suppressed evidence is material.” Ware v. State, 348 Md. 19, 38 , 702 A.2d 699 , 708 ³⁴⁶ (1997). Evidence that is obviously favorable must be disclosed even absent a specific request by the defendant. See Maryland Rule 4-263(a); United States v. Agurs, 427 U.S. 97, 110-11 , 96 S.Ct. 2392, 2401 , 49 L.Ed.2d 342 (1976).

Impeachment evidence, as well as exculpatory evidence, is “evidence favorable to an accused.” United States v. Bagley, 473 U.S. 667, 676 , 105 S.Ct. 3375, 3380 , 87 L.Ed.2d 481 (1985). See Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972); United States v. Kelly, 35 F.3d 929, 936 (4th Cir.1994); United States v. Shaffer, 789 F.2d 682, 689 (9th Cir.1986); Ware, 348 Md. at 40-41 , 702 A.2d at 709-10 ; Chavis v. North Carolina, 637 F.2d 213 , 223 & n. 14 (4th Cir.1980); United States v. Sutton, 542 F.2d 1239, 1241-42 (4th Cir.1976); Jimenez v. State, 112 Nev. 610 , 918 P.2d 687, 694 (1996); cf. Napue v. People of Ill., 360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959) (holding that the prohibition against the use of false testimony applies even when the evidence goes only to the credibility of the witness because the jury’s assessment of credibility can be determinative of guilt or innocence). The failure to disclose evidence relating to any understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness’s credibility. See Giglio, 405 U.S. at 154-55 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 .

The Supreme Court explained in Giglio that, when the government depends almost entirely on the testimony of a key witness to establish its prima facie case and the witness’s credibility, therefore, is an important issue, “evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility____” See id (emphasis added). This Court underscored the same point in Ware when we concluded that “the prosecutor’s duty to disclose applies to any understanding or agreement between the witness and the State.” Ware, 348 Md. at 41 , 702 A.2d at 710 (emphasis in original). The standard for measuring the materiality of the undisclosed evidence is strictest if it “demonstrates that the ³⁴⁷ prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” Agurs, 427 U.S. at 103 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342 . In Agurs , the Supreme Court explained that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id.

See Napue, 360 U.S. at 272 , 79 S.Ct. 1173, 1179 , 3 L.Ed.2d 1217 . In cases where there is no false testimony but the prosecution nonetheless fails to disclose favorable evidence, the standard for materiality, in the language of the Supreme Court, is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481 . See Kyles v. Whitley, 514 U.S. 419, 434 , 115 S.Ct. 1555, 1566 , 131 L.Ed.2d 490 (1995); see also Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). 3 Materiality is assessed by considering all of the suppressed evidence collectively.

See Kyles, 514 U.S. at 436 , 115 S.Ct. at 1567 , 131 L.Ed.2d 490 . The question, therefore, “is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same,” id. at 453 , 115