State v. Hunt & Hardy , 443 Md. 238 ( 2015 )

State v. Ronnie A. Hunt, Jr., No. 72, September Term, 2014, and State v. Kevin Hardy,
No. 73, September Term, 2014, Opinion by Harrell, J.
Criminal Law—Petition for Writ of Actual Innocence—Pleading Requirements
A petition for writ of actual innocence, filed pursuant to Maryland Code (2001, 2008
Repl. Vol, 2014 Cum. Supp.), Criminal Procedure Article, § 8-301, may not be denied
without a hearing if the petition satisfies the bare pleading standards established in § 8-
301 and Douglas v. State, 423 Md. 156, 31 A.3d 250 (2011).
Circuit Court for Baltimore City
Criminal Case No. 191136027
Criminal Case Nos. 190274025, 27, 29
Argued: 7 April 2015
IN THE COURT OF APPEALS OF
MARYLAND
Nos. 72 and 73
September Term, 2014
STATE OF MARYLAND
v.
RONNIE A. HUNT, JR.
STATE OF MARYLAND
v.
KEVIN HARDY
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Opinion by Harrell, J.
Filed: June 18, 2015
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 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
1
According to the 2007 Article, Kopera claimed in court to have degrees that he had not
earned in fact. Kopera testified frequently that he had a degree from the Rochester
Institute of Technology (“RIT”) in photographic science/engineering and, on at least one
occasion, testified that his RIT degree was in aerospace engineering. Kopera claimed
also to have a mechanical engineering degree from the University of Maryland. The
2007 Article reported that Kopera had forged at least one document (a transcript that he
claimed was from the University of Maryland) offered originally to attorneys with the
Innocence Project, attempting to justify his qualifications. In response to further
questions from the attorneys at the Innocence Project, Kopera provided allegedly a
“certificate of training” from the U.S. Air Force, to what intended curative effect remains
obscure.
2
See also Douglas v. State, 423 Md. 156, 31 A.3d 250 (2011); Jackson v. State, 216 Md.
App. 347, 86 A.3d 97 (2014); Kublicki v. State, 207 Md. App. 412, 53 A.3d 361 (2012),
rev’d on other grounds, 440 Md. 33, 99 A.3d 730 (2014), petition for cert. filed,
Maryland v. Kulbicki, U.S., Jan. 16, 2015 (No. 14-848).
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 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.
3
Maryland Rule 4-331(a) provides that the court may, “in the interest of justice,” order a
new trial on motion of the defendant within ten days of the verdict. Rule 4-331(c)
provides that the court may grant a new trial:
on the ground of newly discovered evidence which could not
have been discovered by due diligence in time to move for a
new trial pursuant to section (a) of this Rule:
(1) on motion filed within one year after the later date
of (A) the date the court imposed the sentence or
(B) the date the court received a mandate issued by the
final appellate court to consider a direct appeal from
the judgment or a belated appeal permitted as post
conviction relief; . . . .
4
Hunt and Hardy identify Kopera’s alleged falsification of academic credentials as the
“newly discovered evidence.” To the extent that there is a difference in the Petitioners’
contentions, Hardy suggests additionally that Kopera’s apparent history of perjury in that
regard is also additional discrete newly discovered evidence.
2
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.
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
5
On 30 September 2010 Hunt filed initially a petition. Hunt filed his Amended Petition
before the State responded to the original petition and before the Circuit Court took any
action.
3
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 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
4
(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 “match[ing]” 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.”
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.
6
See supra note 1. In Hunt’s trial, Kopera testified that he held a degree in “mechanical
engineering” from the University of Maryland and also “an engineering degree” from
RIT.
5
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.
6
(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.
7
See supra notes 1 and 6. At Hardy’s trial, Kopera’s testimony regarding his
qualifications was almost identical to his testimony at Hunt’s trial.
7
C. All Together Now
Hunt and Hardy appealed individually to the Court of Special Appeals, claiming
that the Circuit Court8 erred in denying their petitions without a hearing. In separate
unreported opinions, the intermediate appellate court reasoned 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
8
Coincidentally, the same Circuit Court judge ruled on both petitions.
8
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 innocence limit their
review, however, to whether the trial court abused its discretion. Douglas, 423 Md. at
188, 31 A.3d at 269 (“[D]ecisions 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 individuals9 to
petition for a writ of actual innocence based on newly discovered evidence. Section 8-
9
Specifically, “person[s] charged by indictment or criminal information with a crime
triable in circuit court and convicted of that crime” may file petitions for a writ of actual
innocence. Maryland Code (2001, 2008 Repl. Vol, 2014 Cum. Supp.), Criminal
Procedure Article, § 8-301.
9
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;
(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:
10
See Maryland Rule 4-332(i)–(j) (providing similarly).
11
Pursuant to Rule 4-332(d), petitions for a writ of actual innocence must be in writing
and signed by either the petitioner or the petitioner’s attorney. Further, the petition must
state also:
(Continued…)
10
(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
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;
(…continued)
(1) the court in which the indictment or criminal information
was filed and the file number of that case;
(2) if the case was removed to another court for trial, the
identity of that court;
(3) each offense of which the petitioner was convicted, the
date of the judgment of each conviction, and the sentence
imposed;
(4) if the judgment was appealed, the case number in the
appellate court, a concise description of the issues raised in
the appeal, the result, and the date of the appellate court’s
mandate;
(5) for each motion or petition for post-judgment relief, the
court in which the motion or petition was filed, the case
number assigned to each proceeding, a concise description of
the issues raised, the result, and the date of disposition;
...
(10) if the petitioner is not already represented by counsel,
whether the petitioner desires to have counsel appointed by
the court and, if so, facts establishing indigency; [and]
(11) that a copy of the petition, together with all attachments,
was mailed to the State’s Attorney of the county in which the
petition was filed[.]
11
(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(l). 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 hearing on the merits of the petition, provided the petition
sufficiently pleads grounds for relief under the statute, includes a request for a hearing,
12
See supra note 3.
12
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)(1) 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 petition14 satisfied § 8-301’s pleading
requirement. 423 Md. at 183, 31 A.3d at 266. Douglas met easily the requirement of
13
Section 8-301 was amended in 2010, after the filing of the subject petitions in Douglas,
but before the filing of our opinion. In that case, we cited the current version of the
statute, as “none of the amendments affect[ed] our analysis.” Douglas, 423 Md. at 163
n.1, 31 A.3d at 254 n.1.
14
The Douglas opinion consolidated two cases. In both, the petitioners (Ellis R.
Douglas, Jr., and Lamont Curtis) filed petitions for writ of actual innocence based on
newly discovered evidence. Throughout our discussions here of the Douglas opinion, we
refer to the petition filed by Douglas.
We determined that the petition filed by Curtis did not meet the requirements to
obtain a hearing under § 8-301 because the evidence referred to by Curtis—an affidavit
from his grandmother indicating that she never mentioned a certain name to investigating
(Continued…)
13
§ 8-301(b)(1) by submitting 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)(1)’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
(…continued)
police—was known but unavailable (due to his grandmother’s health) at trial, and
therefore not “newly discovered.” Douglas, 423 Md. at 186–87, 31 A.3d at 268.
14
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 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 case15 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
15
The undated affidavit was produced apparently in connection with Alcantara v. State,
Case No. 109444C, in the Circuit Court for Montgomery County.
15
“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 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.
16
We determined that the phrase “prior petitions” did not refer to “every prior filing,”
and so Douglas’s two postconviction petitions, motion to reopen his closed
postconviction proceeding (all denied), and corresponding appeals (denied also) were
inapposite. Douglas, 423 Md. at 184–85, 31 A.3d at 267; see id. at 184 n.16, 31 A.3d at267 n.16.
16
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 discovered and why it could not
have been discovered earlier. Hardy’s Petition satisfies the pleading requirement of Rule
4-332(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
17
See Douglas, 423 Md. at 182 n.14, 31 A.3d at 266 n.14 (citing 38 Md. Reg. 1195 (23
September 2011) (providing that Rule 4-332 applies to actions commenced on or after 1
October 2011 “and, insofar as practicable, to all actions then pending”)).
18
See infra Part III.
17
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)(1). Hardy attached also to his Petition a
compliant certificate of service, satisfying Rule 4-332(d)(11)’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)(1)(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 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
19
Hardy’s Petition does not state whether he is represented by counsel nor does it state
whether he desires to have counsel appointed. Further, he does not state facts
establishing his indigency, in violation of Rule 4-332(d)(10).
18
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)(1)(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 “newly discovered evidence” was
“merely impeaching,” and remanding the case for further consideration); Yonga v. State,
221 Md. App. 45, 64, 108 A.3d 448, 459 (2015) (determining that writs of actual
innocence were not available to challenge a conviction based upon a guilty plea), cert.
granted, 442 Md. 515, 113 A.3d 624 (2015); Jackson v. State, 216 Md. App. 347, 364–
65, 373–75, 86 A.3d 97, 107, 112–13 (2014) (finding no abuse of discretion where the
hearing judge concluded that the “newly discovered evidence” could have been
discovered in time to move for a new trial and that, regardless, there was no substantial or
significant possibility that the jury could have come to a different result); Keyes, 215 Md.
App. at 666 n.3, 84 A.3d at 144 n.3 (noting that the petition was subject to Rule 4-332,
but “not rely[ing] upon noncompliance with Rule 4-332 for affirmation” of the circuit
court’s denial of the petition, as the petition did not set forth newly discovered evidence
20
In addition to there being no appellate cases in which a petition filed after 1 October
2011 was dismissed for lack of compliance with Rule 4-332’s technical requirements, the
issue of Hardy’s compliance with Rule 4-332 was neither raised by the State nor
addressed by the Court of Special Appeals in its unreported opinion.
19
that created a substantial or significant possibility that the result may have been
different).
III. VARIATIONS ON A THEME: WHAT COULD HAPPEN AT THE HEARINGS TO BE HELD?
In Douglas, after we concluded that the petitioner21 was entitled to a hearing, we
emphasized that “although Douglas has satisfied the pleading requirement to assert
grounds for relief, it does not follow automatically that he can prove his claim.” 423 Md.
at 186, 31 A.3d at 268. We recognized that “decisions 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.” Douglas, 423 Md. at 188,
31 A.3d at 269. The Court of Special Appeals in the present cases expressed reservations
as to the likelihood of success at Respondents’ prospective hearings. Both unreported
opinions concluded with the same paragraph:
Although we conclude that [the Respondent] is entitled to a
hearing, having sufficiently met the pleading requirements of
[§ 8-301], “it does not follow automatically,” as the Court of
Appeals has noted, “that he can prove his claim” at that
hearing. Douglas, 423 Md. at 186. We observe that Hunt
may have difficulty doing so. In Jackson v. State, 216 Md.
App. 347 (2014), this Court affirmed a circuit court’s denial
of a petition for writ of actual innocence based on Kopera’s
perjury, after holding a hearing on Jackson’s petition. The
circuit court denied Jackson’s petition, after concluding that
Jackson had not shown that Kopera’s misrepresentations were
material, that he had not established that the purported “newly
discovered evidence” “created a substantial or significant
possibility that the result may have been different,” and that
he had not acted with due diligence in discovering that
21
See supra note 14.
20
Kopera had misrepresented his qualifications at his
trial. . . .[22]
Such reserve is warranted, as Respondents face significant hurdles in convincing a
hearing judge that the questions regarding Kopera’s qualifications “create[] a substantial
or significant possibility that the result may have been different” and “could not have
been discovered in time to move for a new trial.” § 8-301(a). Respondents’ causes are
by no means doomed, however; a hearing judge may determine, based on whatever
evidence and arguments as may be presented at the hearing, that Respondents are entitled
to a new trial, resentencing, or other appropriate relief. See § 8-301(f)(1).
In Douglas, we concluded that the allegations contained in the petition, if proven
at the hearing, could have entitled Douglas to such relief. 423 Md. at 185, 31 A.3d at
267. As discussed earlier, Douglas’s “newly discovered evidence” regarding Kopera’s
scholastic qualifications are almost verbatim those of Hunt and Hardy. Douglas’s
convictions23 arose out of an altercation between himself and several Baltimore City
police officers outside a bar in Baltimore City where he shot two police officers.
Douglas, 423 Md. at 165, 31 A.3d at 255–56. Seven police officers and two ballistics
experts were called to testify at his trial, one of the latter of which was Kopera. Douglas,
423 Md. at 166, 31 A.3d at 256. Each of the two experts examined at least one bullet and
both linked the bullet with Douglas’s gun. Id. Even in light of the other evidence against
In a footnote, the Court of Special Appeals referred also to its opinion in Kulbicki, 207
22
Md. App. 412, 53 A.3d 361.
23
Douglas was convicted for attempted murder in the second degree, assault, and related
handgun offenses. Douglas, 423 Md. at 165, 31 A.3d at 255.
21
Douglas, we determined that a Circuit Court could find that the new evidence “creates a
substantial or significant possibility that the result may have been different.” Douglas,
423 Md. at 185–86, 31 A.3d at 267–68. In the present cases, the Circuit Court may very
well find, after a hearing, that Hunt and Hardy carry successfully their burdens of proof
and are entitled to relief based solely on proof of the allegations contained in their
respective petitions.
We note further that Hunt and Hardy’s Petitions are not doomed necessarily
because the newly discovered evidence, as characterized by the Court of Special Appeals,
may be only “impeaching.” In considering whether certain forms of newly discovered
evidence might create a “substantial or significant possibility that the result may have
been different,” cases from the Court of Special Appeals develop the concept of
“impeaching,” as opposed to “merely impeaching,” evidence in the context of § 8-301
petitions for writ of actual innocence. The reasoning of these cases stems in large part
from two cases—one from the Court of Special Appeals and one from this Court—
discussing the value of “newly discovered evidence” in the context of Rule 4-331
motions for a new trial. In Campbell, after noting that the newly discovered evidence
must be “material” (among other things) in order to justify a new trial, we stated that the
evidence must be “more than ‘merely cumulative or impeaching.’” Campbell v. State,
373 Md. 637, 669, 821 A.2d 1, 20 (2003) (quoting Argyrou v. State, 349 Md. 587, 602,
709 A.2d 1194, 1201 (1998)). In Jackson v. State, 164 Md. App. 679, 884 A.2d 694(2005), again considering the value of newly discovered evidence in the context of a
motion for a new trial, the Court of Special Appeals reasoned:
22
The distinction between “impeaching” and “merely
impeaching,” albeit nuanced, is pivotally important. Newly
discovered evidence that a State’s witness had a number of
convictions for crimes involving truth and veracity or had lied
on a number of occasions about other matters might have a
bearing on that witness’s testimonial credibility, but would
not have a direct bearing on the merits of the trial under
review. Such evidence would constitute collateral
impeachment and would, therefore, be “merely impeaching.”
If the newly discovered evidence was that the State’s witness
had been mistaken, or even deliberately false, about
inconsequential details that did to [sic] go to the core question
of guilt or innocence, such evidence would offer peripheral
contradiction and would, therefore, be “merely impeaching.”
If the newly discovered evidence, on the other hand, was that
the State’s witness had actually testified falsely on the core
merits of the case under review, that evidence, albeit
coincidentally impeaching, would be directly exculpatory
evidence on the merits and could not, therefore, be dismissed
as “merely impeaching.”
Jackson, 164 Md. App. at 697–98, 884 A.2d at 704–05.
The intermediate appellate court deployed this reasoning at least twice in cases
where convicted persons challenged their convictions and relied at least in part on the
revelations regarding Kopera’s mis-represented qualifications. In Kulbicki v. State, 207
Md. App. 412, 53 A.3d 361 (2012), rev’d on other grounds, 440 Md. 33, 99 A.3d 730(2014), petition for cert. filed, Maryland v. Kulbicki, U.S., Jan. 16, 2015 (No. 14-848),
after a hearing on a petition for postconviction relief, Kulbicki argued (among other
things) that the State’s use of “perjured, false, and misleading expert ballistics testimony”
denied him a fair trial. 207 Md. App. at 435, 53 A.3d at 374–75. Before moving on to
substantive discussion of Kulbicki’s other arguments on appeal, the Court of Special
Appeals noted that “Kulbicki waived any claims regarding Kopera’s perjury. To the
23
extent that . . . a background investigation would have revealed that Kopera lacked the
claimed college degrees, Kulbicki could have raised his contentions on direct appeal.”
Kulbicki, 207 Md. App. at 444, 53 A.3d at 380. Because Kulbicki did not show that
Kopera’s perjury was “material,” concluded the intermediate appellate court, his “valid
constitutional claim recognizable under the [Uniform Postconviction Procedure Act]”
failed on the merits. Kulbicki, 207 Md. App. at 446, 53 A.3d at 381. The court
concluded that portion of its analysis by saying:
[T]here simply is no likelihood that the jury’s determination
would have been influenced by the fact that Mr. Kopera did
not have the academic credentials he claimed. As the State
notes in its brief, the record reflected that ballistics is a field
for which no college degree is offered, and the expertise for
the field is usually based on experience, which Kopera had in
copious amounts.
Kulbicki, 207 Md. App. at 447, 53 A.3d at 382 (internal quotations omitted). A majority
of this Court reversed the Court of Special Appeals on other grounds.24 Kulbicki v. State,
24
In its briefs in the present cases, the State argues that the majority opinion in Kulbicki
“confirms that the evidence which Hunt claimed to be newly discovered was available
and could have been uncovered by him at the time of his trial.” The State asserts in this
regard:
In Kulbicki, this Court, addressing the right to effective
assistance of counsel in the context of a challenge to
Comparative Bullet Lead Analysis (CBLA) evidence,
concluded that evidence calling into question the conclusions
of CBLA “was available” to Kulbicki’s counsel at trial but
“was never exhumed” and “never explored, even though
opportunity knocked.” This Court faulted Kulbicki’s
attorneys for failing to investigate and discover what the
Court determined to be available material.
(Continued…)
24
440 Md. 33, 99 A.3d 730 (2014) (discussing the Comparative Bullet Lead Analysis
evidence used in Kulbicki’s trial). See Dep’t of Health & Mental Hygiene v. Kelly, 397
Md. 399, 446, 918 A.2d 470, 497–98 (2007) (Wilner, J., concurring) (characterizing a
“decision” of the Court of Special Appeals “that this Court later vacated” as one with
“utterly no precedential value”).
Next, in Jackson, 216 Md. App. at 356–57, 86 A.3d at 102–03, a circuit court
granted a hearing on a petition for writ of actual innocence where the petitioner alleged
that Kopera’s alleged perjury was “newly discovered evidence” and that Kopera’s
testimony bolstered critically the testifying victim’s version of events. At the hearing on
his petition, Jackson introduced into evidence his trial transcript, as well as the State
Police Press Release, the 2007 Article, and an article published in USA Today entitled
(…continued)
(citations omitted). The majority in Kulbicki held that his attorneys rendered ineffective
assistance of counsel when they failed to investigate and cross-examine thoroughly the
State’s CBLA expert because that expert co-authored a report four years prior to trial that
“presaged the flaws in CBLA evidence.” Kulbicki, 440 Md. at 40, 99 A.3d at 734. Hunt
suggests that the Court’s conclusion in Kulbicki is inapposite because “[i]t is one thing to
impose upon counsel the minimum requirement of readiness to impeach an opposing
party’s expert on the basis of . . . a prior inconsistent opinion; it is another to suggest that
a criminal defense attorney must do what the State suggests would be so easy to do—but
apparently failed to do itself—and perform a ‘thorough background investigation’ to
discover fraud.” (emphasis in original). Hardy echoes Hunt’s sentiment: “To require ‘a
thorough background investigation,’ as the State puts it, from every defense counsel for
every State’s expert disclosed in discovery of every criminal case is unworkable. To
expect it when the expert is the State’s own employee is absurd. . . . A scientific report
published and circulated in academic journals four years prior to trial does not equate
with affirmative fraud and perjury.” (citations omitted). We agree with the Respondents
that the majority opinion in Kulbicki—which did not even mention Kopera and did not
involve a § 8-301 petition for writ of actual innocence—is distinguishable. See infra note
25.
25
“Expert’s Ruse Raises Legal Questions.” Jackson, 216 Md. App. at 357, 86 A.3d at 103.
The State stipulated that Jackson did not know of Kopera’s perjury during his 1987 trial
and that he did not learn that information until he was advised by a fellow inmate in
2010. Id. The petitioner argued that the evidence was not “merely impeaching” because
the trial judge instructed the jury that “you must take into account the qualifications of
the expert” in weighing his testimony. Jackson, 216 Md. App. at 357–58, 86 A.3d at
103. He argued also that he could not have discovered Kopera’s perjury even with the
exercise of reasonable due diligence. Id.
The Court of Special Appeals reviewed the lower court’s decision for abuse of
discretion, in light of the trial court ruling on the merits after a hearing on the petition.
Jackson, 216 Md. App. at 363–64, 86 A.3d at 106–07. In considering the “threshold
question” of whether the newly discovered evidence could have been discovered in time
to move for a new trial pursuant to Rule 4-331, the intermediate appellate court
concluded that Jackson needed to show that the evidence regarding Kopera’s
qualifications “could not have been discovered through the exercise of due diligence prior
to October 1990.” Jackson, 216 Md. App. at 364, 86 A.3d at 107. The appellate court
found no abuse of discretion in the hearing judge’s determination that, “[g]iven 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.” Jackson, 216 Md. App. at 365, 86 A.3d at 107. It concluded also,
relying on the earlier Jackson case (sharing coincidentally a common surname), 164 Md.
App. 679, 884 A.2d 694, and Kulbicki, that, regardless of the jury instructions, Kopera’s
26
false testimony was “merely impeaching” and Kopera’s academic qualifications were not
material as Kopera testified that “‘ballistics is a field for which no college degree is
offered,’” and the acquisition of expertise is “‘usually based on experience.’” Jackson,
216 Md. App. at 369–71, 86 A.3d at 110–11 (quoting Kulbicki, 207 Md. App. at 447, 53
A.3d at 382).
Notwithstanding the court’s acknowledgement that other courts have held that
“where expert testimony is critical, false testimony about the expert’s credentials requires
a new trial,” Jackson, 216 Md. App. at 374 n.16, 86 A.3d at 113 n.16, the appellate court
concluded that Kopera’s testimony was “not critical” in Jackson’s trial, id., and there was
no significant or substantial possibility that the jury could have reached a different result
had it known of his prevarication regarding his academic degrees. Jackson, 216 Md.
App. at 373–75, 86 A.3d at 112–13. It determined that a correct statement of Kopera’s
qualifications would not have altered the result, as Kopera’s substantive testimony did
not weigh heavily in favor of either litigant and that the evidence of Jackson’s guilt,
without consideration of Kopera’s testimony, was compelling, based on the testimony of
other witnesses. Id.
We offer no comment on the reasoning of the hearing judge or the Court of
Special Appeals in Jackson of 2014 as that case is not before us. We note, however, that
it would not be an abuse of discretion for a hearing judge to find that a defense attorney
might fail, after nonetheless exercising due diligence before the revelations of 2007, to
27
discover Kopera’s alleged fraud.25 We note also that a hearing judge might conclude
reasonably that the Court of Special Appeals’s distinction between “impeaching” and
“merely impeaching,” in the context of § 8-301 petitions for writs of actual innocence, is
overly rigid.26 When an expert is called to testify, it is conceivable that, based on the
cumulative body of evidence presented at a given trial, falsity regarding the expert’s
credibility and qualifications might “create[] a substantial or significant possibility that
the result may have been different.” § 8-301(a)(1).
If the Respondents prove their newly discovered evidence and also persuade the
trial judge that they could not have discovered it in time to move for a new trial pursuant
to Rule 4-331, the Circuit Court must determine whether the new evidence regarding
Kopera creates a substantial or significant possibility that the result of their trials may
have been different. We suggest that the answer to that question depends in large part on
25
At oral argument in the present cases, much discussion ensued over what constitutes
reasonable trial preparation by defense attorneys. The State suggested that, as Kopera’s
alleged perjury could have been discovered at trial or beforehand, it should have been.
Attorneys for the Respondents suggested that it is unreasonable to expect defense
attorneys to be the “human resources department” for the State’s employees who act as
expert witnesses.
Kopera testified for over twenty years at trials as a State’s witness in his capacity
as a municipal or State employee. As an objective fact, attorneys with unlimited time and
resources could have discovered Kopera’s fraud at any point during that time. We would
avoid, however, the negative inference from the opinions of the Court of Special Appeals
that no defense attorney representing a defendant at a trial in which Kopera testified
exercised due diligence (prior to the discoveries made by the attorneys of the Innocence
Project) in failing to discover his charade.
26
The assumed distinction between “impeaching” and “merely impeaching” evidence
was in existence at the time we decided Douglas, yet we still concluded that, as Douglas
satisfied § 8-301’s pleading standard, a hearing judge could conclude that Douglas could
have been entitled to relief.
28
the particular set of facts and comprehensive body of evidence introduced at trial in each
case. In some trials, Kopera’s testimony may be assigned lesser value, whereas in others
his testimony may have been of greater weight and consequence.
IV. CONCLUSION
Because the Petitions filed by Hunt and Hardy satisfy the pleading standards
established by § 8-301 and evaluated in Douglas, Respondents are entitled to hearings on
their Petitions. At those hearings, if Respondents are able to prove the allegations
contained in their petitions, the hearing judge may conclude that the newly discovered
evidence “creates a substantial or significant possibility that the result may have been
different” and “could not have been discovered in time to move for a new trial under
Maryland Rule 4-331.”
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
COSTS TO BE PAID BY
PETITIONERS.
29