Carver v. State ( 2022 )

Steven G. Carver v. State of Maryland, No. 14, September Term 2022. Opinion by Hotten,
J.
CRIMINAL LAW – POSTCONVICTION RELIEF – PETITION FOR WRIT OF
ACTUAL INNOCENCE – MATERIALITY ANALYSIS
Supreme Court of Maryland held that, in evaluating a petition filed under Md. Code Ann.,
Criminal Procedure (“Crim. Proc.”) § 8-301, courts must consider the cumulative effect of
newly discovered evidence within the context of the entire adversarial proceeding,
including its impact on: (1) any evidence admitted at trial; (2) any evidence available at the
time of trial, including both evidence (a) offered but excluded and (b) not offered but
available; and (3) the defendant’s or defense counsel’s trial strategy. Faulkner v. State,
468 Md. 418, 469 n.24, 227 A.3d 584, 614 n.24 (2020). This hindsight assessment requires
courts to ascertain “whether such evidence, combined with the evidence the [jurors] did
hear, create[d] a substantial or significant possibility that” a reasonable jury would have
acquitted the defendant, that is, whether the cumulative effect of the new evidence and the
available evidence at trial undermined the verdict. Id. at 466, 227 A.3d at 612.
CRIMINAL LAW – POSTCONVICTION RELIEF – PETITION FOR WRIT OF
ACTUAL INNOCENCE – EVIDENCE THAT SPEAKS TO ACTUAL
INNOCENCE
Supreme Court of Maryland held that newly discovered evidence “speaks to” a petitioner’s
actual innocence under Crim. Proc. § 8-301 when it erodes the factual premise of their
conviction and potentially exonerates them. See Smallwood v. State, 451 Md. 290, 319,
152 A.3d 776, 792–93 (2017). Non-exhaustive examples of evidence that “speaks to” an
individual’s actual innocence include: (1) a confession by another individual to having
committed the crime; (2) acknowledgement by an eyewitness or other evidence indicating
he was mistaken; (3) acknowledgment by an eyewitness or other evidence indicating that
the witness intentionally lied; or (4) evidence casting serious doubt on the reliability of
scientific evidence used against the defendant. Id., 152 A.3d at 792–93 (citing
Memorandum from the Governor’s Office of Crime Control and Prevention and the Office
of the Public Defender to Chairman B. Frosh and Members of the Senate Judicial
Proceedings Committee, at 8–9 (Jan. 15, 2009)). The General Assembly focused the statute
on newly discovered evidence that “would potentially exonerate the convicted defendant.”
Smallwood, 451 Md. at 319, 152 A.3d at 793.
CRIMINAL LAW – POSTCONVICTION RELIEF – PETITION FOR WRIT OF
ACTUAL INNOCENCE – DUE DILIGENCE
Supreme Court of Maryland held that its prior holding in Hunt v. State, was limited. 474
Md. 89, 110, 252 A.3d 946, 959 (2021) (“This is (hopefully) a unique class of cases.”).
Expert opinions acquired after trial do not constitute new evidence simply because due
diligence did not require trial counsel in Hunt to uncover Joseph Kopera’s fraud prior to
2007. The expert testimony in this case could have been “discovered in time to move for
a new trial under Maryland Rule 4-331,” rendering such evidence not “newly discovered”
within the meaning of Crim. Proc. § 8-301. The actual innocence statute “was created to
exonerate the truly innocent, no matter how late that proof may become available, and not
simply override the time limits of [Md.] Rule 4-331.” McGhie v. State, 449 Md. 494, 514–
15, 144 A.3d 752, 765 (2016) (McDonald, J., concurring).
Circuit Court for Baltimore City
Case No. 18916403
Argued: October 3, 2022
IN THE SUPREME COURT
OF MARYLAND*
No. 14
September Term, 2022
STEVEN G. CARVER
v.
STATE OF MARYLAND
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Opinion by Hotten, J.
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this Gould, J., dissents.
document is authentic.
2022-12-20 16:33-05:00
Filed: December 20, 2022
Gregory Hilton, Clerk
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals to the Supreme Court of Maryland.
The name change took effect on December 14, 2022.
This appeal arises from the petition of Steven G. Carver (“Petitioner”) for a writ of
actual innocence under Md. Code Ann., Criminal Procedure (“Crim. Proc.”) § 8-301. On
March 14, 1989, John Green was shot and killed on a populated street in Baltimore City in
broad daylight. Petitioner was subsequently arrested for the murder. On November 16,
1989, a jury in the Circuit Court for Baltimore City convicted Petitioner of first-degree
murder, use of a handgun in a crime of violence, and wearing or carrying a handgun. The
circuit court sentenced Petitioner to life without parole for the first-degree murder charge
plus an additional twenty-year term for the handgun offenses.
In 2012, Petitioner filed a petition for writ of actual innocence, arguing that three
categories of new evidence created a substantial possibility that the trial would have
achieved a different outcome, had the jury considered such evidence. The circuit court
denied the petition, finding that the evidence did not address Petitioner’s actual innocence,
did not constitute newly discovered evidence, and did not create a substantial possibility of
a different outcome at trial. Thereafter, Petitioner appealed to the Appellate Court of
Maryland (at the time named the Court of Special Appeals of Maryland)1, which affirmed
and held that the circuit court did not abuse its discretion. Petitioner timely appealed to
this Court.
This Court granted certiorari to address the following questions:
1. As a matter of first impression, when evaluating newly discovered
evidence in an actual-innocence proceeding, must a court consider the
new evidence and the evidence admitted at trial collectively with
1
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
evidence that was available to the defense but not offered at trial, and/or
offered but excluded, where the available evidence was made relevant
and admissible by the newly discovered evidence?
2. Where Joseph Kopera was the sole firearms expert at trial, is the contrary
opinion of a non-fraudulent firearms expert, obtained after the revelation
of Kopera’s fraud, newly discovered evidence?
3. Did the lower courts err by failing to consider the cumulative impact of
separate but related categories of newly discovered evidence, as required
by Faulkner v. State, 468 Md. 418[, 227 A.3d 584] (2020)?
4. Did the circuit court err by denying the petition for writ of actual
innocence?2
This Court answers the first question in the affirmative. Regarding the remaining
three questions, this Court answers in the negative and shall affirm the judgment of the
Appellate Court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Underlying Factual Background
During the late afternoon of March 14, 1989, Mr. Green died by gunfire on Old
York Road, a populated street in Baltimore, Maryland. The State relied on three
eyewitnesses to the shooting: Carmelita McIntosh, Hodges Epps, and Arlin Doles.
2
Petitioner also presented a fifth question in his petition for certiorari: “Did the
circuit court err by failing to serve a body attachment on an important witness and failing
to allow a postponement so the witness’s presence could be secured during the actual-
innocence hearings?” Petitioner failed to raise this question in his brief before us, and,
thus, waived the argument. See Md. Rule 8-504(a)(6); DiPino v. Davis, 354 Md. 18, 56,
729 A.2d 354, 375 (1999) (“[I]f a point germane to the appeal is not adequately raised in a
party’s brief, the [appellate] court may, and ordinarily should, decline to address it.”).
2
Carmelita McIntosh testified that she was driving down Cator Avenue when she
observed three men. She heard a loud “pop” and observed the man in the center falling
towards her car. She swerved and drove around him. In her rearview mirror, she saw the
man on the right shoot the fallen man in the head. She stopped her car and, as she exited,
heard the man on the right state “bust him, yo.” Ms. McIntosh testified that she then
observed the second man shoot the fallen man. She heard about four or five “pops” in
total. Ms. McIntosh described one of the shooters as lighter-skinned and the other as
darker-skinned, but did not positively identify Petitioner from a photo array as either of the
men.
Another eyewitness, Hodges Epps, testified that he was in a laundromat when he
heard the shooting and observed Mr. Green, Petitioner, a man he identified as Arlin Doles,
and another unidentified person, together on Cator Avenue.3 Mr. Epps testified that he
grew up with Mr. Green, went to high school with Mr. Doles, and had known Petitioner
for six to twelve months prior to the shooting. Mr. Epps observed Petitioner and the
unknown man both shoot Mr. Green. Mr. Epps identified Petitioner from a photo array as
one of the men who fired at Mr. Green.
Finally, Mr. Doles testified as an eyewitness to the shooting. He testified he had
known Mr. Green since high school and that Mr. Green introduced him to Petitioner the
night before the murder. Mr. Doles further testified that, on the night he met Petitioner, he
3
Mr. Epps did not personally know Mr. Doles, but he acknowledged they went to
the same high school around the same time.
3
overheard Petitioner and Mr. Green reconcile over some previous disagreement. The next
day, prior to the shooting, Mr. Doles, Mr. Green, and Petitioner walked down Cator Avenue
when another man, Joe Hodge, approached them. Mr. Doles then recalled hearing a
gunshot.4 Mr. Doles ran up the road and jumped a fence. He heard four additional
gunshots. Mr. Doles turned around and observed Mr. Green standing with Petitioner in
front of him. Mr. Green grabbed Petitioner’s left arm, Petitioner jerked away, and Mr.
Green fell to the ground. Mr. Doles testified that Mr. Hodge then fired at the back of Mr.
Green’s head. He then observed both Petitioner and Mr. Hodge run north on Old York
Road with Petitioner in front of an armed Mr. Hodge.5 After viewing a photo array, Mr.
Doles identified Petitioner as a person he saw at the scene and Mr. Hodge as the assailant.
Mr. Doles did not see Petitioner with a gun.
4
Mr. Doles recalled Mr. Hodge entering the scene as follows:
As I turned around and looked, I looked [Mr. Hodge] full in the face because
I wanted to see who was walking up behind us and that’s when he looked at
me. Then he turned away. His eyes turned away towards in the direction of
where [Mr.] Green was standing. [Mr. Hodge] asked what time it was. At
that point, I looked at my watch. But before I could say anything, [Mr.
Green] responded and said 4:30 and as I was still watching at my watch, I
heard the first shot.
5
Mr. Doles recalled Petitioner and Mr. Hodge leaving the scene as follows:
They ran north on Old York Road on the right sidewalk. [Petitioner] in front.
Mr. Hodge directly behind with the pistol in his hand, like this. At that time,
I was unaware of what had happened. So I thought [Mr. Hodge] was going
to shoot [Petitioner]. So I was getting ready to holler out for [Petitioner] to
watch out. That’s when they turned right on 41st Street together and ran
down 41st Street.
4
II. Circuit Court Proceedings
a. The 1989 Trial.
Petitioner and Mr. Hodge were charged with the first-degree murder of Mr. Green,
use of a handgun in a crime of violence, and wearing or carrying a handgun, and were tried
jointly in the Circuit Court for Baltimore City. Petitioner argued at trial that he was an
innocent bystander and that the same person who attacked Mr. Green two months earlier
in January 1989 was the actual murderer. At the time of trial, defense counsel was aware
Mr. Green had been a witness to the murder of Damon Barrett by Bryant McArthur and
that Mr. McArthur later killed Kenneth Alston, the other witness to Mr. Barrett’s murder.
Defense counsel was also aware that Mr. Green believed Mr. McArthur wanted him dead
because he witnessed Mr. Barrett’s murder. Additionally, defense counsel was aware Mr.
Green believed that Mr. McArthur orchestrated the January 1989 shooting, though Mr.
Green did not recognize the perpetrator.
Defense counsel attempted to admit evidence of the January 1989 shooting under
the theory that the same person who perpetrated the January 1989 shooting also murdered
Mr. Green, but the circuit court denied its admission on grounds of relevancy. The circuit
court reasoned that the identity of the January 1989 perpetrator would be relevant and “a
complete defense” in this case if Petitioner could establish he was not the January 1989
perpetrator and demonstrate that the January 1989 perpetrator killed Mr. Green in March
of 1989.
5
Joseph Kopera6 was called as the State’s ballistics expert. He testified that all of the
bullets found at the scene were .38 caliber, but four of the six shell casings were too
damaged to perform a microscopic analysis, so he could not provide an expert opinion
regarding the number of guns used in the murder.7 On November 16, 1989, a jury
convicted Petitioner and Mr. Hodge jointly of the murder of Mr. Green and the
accompanying firearms charges. On January 30, 1990, the circuit court sentenced
Petitioner to life in prison without the possibility of parole plus a consecutive twenty years.
6
Joseph Kopera was a well-respected firearms identification expert in Maryland for
decades and testified in hundreds of trials before it was discovered in 2007 that he had lied
about receiving various degrees and his credentials as a firearms identification expert. See
Hunt v. State, 474 Md. 89, 92 n.1, 252 A.3d 946, 948 n.1 (2021) (detailing Mr. Kopera’s
fraud). In Hunt, this Court held that “in all similarly situated ‘Kopera cases,’ trial counsel
were not expected reasonably to uncover [Mr.] Kopera’s deception before 2007, in the
absence of specific information that should have put counsel on inquiry notice to
investigate sooner [Mr.] Kopera’s background.” Id. at 93, 252 A.3d at 948.
7
On recross-examination, Mr. Kopera testified as follows:
[THE STATE]: All of these bullets are .38 caliber special. They all have
six lands and grooves, left twist and all of the two that absolutely cannot be
compared, they came from the same gun?
[MR. KOPERA]: Again, as I testified, counsel, even on those two, I
cannot say that they even definitely came from the same gun because of the
difference in metal and the microscopic comparison of those.
* * *
[THE STATE]: The point I’m trying to make is that you are not saying
it wasn’t the same gun. You are simply saying you cannot draw a conclusion.
[MR. KOPERA]: That’s exactly what I said.
(emphasis added).
6
b. The Present Circuit Court Proceeding.
In 2012, Petitioner filed a pro se petition for writ of actual innocence in the Circuit
Court for Baltimore City, which was denied without a hearing. The Appellate Court
reversed and remanded the case for further proceedings. Petitioner thereafter filed an
amended petition, which was argued before the circuit court in May and August 2017.
Concerning the present appeal, Petitioner alleged that several pieces of newly discovered
evidence warranted a new trial, namely:
1. A series of police reports related to threats against the victim, John Green,
and an alleged assault on Denise Brewer.
* * *
3. False credentials of the State’s ballistics expert, Joseph Kopera.
4. Criminal history of Hodges Epps.
(footnote omitted).8
Petitioner presented newly discovered evidence of a report Mr. Green filed with the
police after someone shot at him in January 1989. In the report, Mr. Green asserted that
Mr. McArthur threatened to kill him for being a witness to Mr. Barrett’s murder. Petitioner
also presented evidence of several police reports detailing an assault on Denise Brewer.
8
Petitioner also alleged to the circuit court that a police report of a conversation
between Mr. McArthur and Melvin Jackson, in which Mr. McArthur told Mr. Jackson he
planned to pay Petitioner’s bail so he would kill Mr. Green, was newly discovered evidence
supportive of the petition for actual innocence. Petitioner argued the fact someone other
than Mr. McArthur paid Petitioner’s bail made this evidence exculpatory and supportive
of Petitioner’s actual innocence. The circuit court rejected this argument and Petitioner
does not argue it in his brief to this Court. See infra note 10 (discussing the Mr. Jackson
report in detail).
7
Denise Brewer reported to police that an individual referred to as “Darnell,”9 a close
associate of Mr. McArthur, approached Ms. Brewer in early March of 1989, requesting
that she lure Mr. Green to a certain location so “they could ‘get him[.]’” She refused. Ms.
Brewer also reported to police that “Darryl” or “Darnell” assaulted her on April 10, 1989,
shortly after Mr. Green’s murder, because she knew who killed Mr. Barrett. Petitioner also
presented new evidence concerning open warrants Mr. Epps had at the time of trial.
Additionally, Petitioner presented evidence of Mr. Kopera’s fraudulent credentials, as well
as an affidavit and testimony from William Conrad, a firearms identification expert who
reviewed Mr. Kopera’s report.10
The circuit court rejected Petitioner’s contention that this newly discovered
evidence would have substantially impacted Petitioner’s trial. In a written opinion filed on
July 19, 2018, the circuit court determined that Petitioner’s defense counsel was aware of
the substance of the newly discovered evidence, namely that someone other than Petitioner
wanted Mr. Green dead. The circuit court also focused on the strength of the evidence
against Petitioner, particularly the three eyewitness accounts of the shooting. The circuit
court explained: “the fact that other persons wanted the victim dead, and were soliciting
9
This same individual is also referred to in other parts of the record and lower
courts’ opinions as “Darryl” or “Armstead.” This Court will refer to him as “Mr.
Armstead.”
10
Petitioner retained Mr. Conrad in 2009 to review Mr. Kopera’s report and
testimony. Mr. Conrad testified at Petitioner’s actual innocence hearing, and Petitioner
submitted his affidavit into evidence. In his affidavit, Mr. Conrad asserted “it is likely that
the six recovered bullets all came from the same gun.” Mr. Conrad did not examine the
bullet fragments himself.
8
others, including Denise Brewer, to help kill the victim, does not in any way eliminate
Petitioner as the person who actually did the killing.”
The circuit court also found that the false credentials of Mr. Kopera did not
constitute newly discovered evidence, since defense counsel could have examined those
credentials prior to trial. Additionally, the circuit court also found that the false credentials
would not create a significant possibility of a different outcome at trial, reasoning that Mr.
Kopera’s testimony did not advance the State’s case because Mr. Kopera could not
conclude how many guns were used, given the poor condition of the shell fragments. The
circuit court also determined Mr. Conrad’s opinion was not newly discovered because
“Petitioner’s trial counsel could have easily retained an expert to provide the same
evaluation.”
The circuit court likewise determined Mr. Epps’s open warrants for violation of
probation issued at the time of his testimony were neither newly discovered evidence, nor
did they create a substantial possibility of a new outcome. The circuit court reasoned that
defense counsel could have discovered that information at trial through a simple
background check. The circuit court also found that the pending violation would, at best,
be used for impeachment, and the record does not show that Mr. Epps was aware of the
warrants because they were never served. Since Petitioner failed to meet his burden for his
actual innocence claim, the circuit court denied the petition.
III. Opinion of the Appellate Court of Maryland
The Appellate Court affirmed and held that the circuit court did not abuse its
discretion in determining that the newly discovered evidence of Mr. McArthur’s attempts
9
to hire someone to kill Mr. Green did not generate a substantial possibility of a different
outcome at trial. Carver v. State, No. 2042, Sept. Term, 2018, 2022 WL 971963, at *6–7
(Md. Ct. Spec. App. Mar. 31, 2022). The court reasoned that the “evidence simply
elaborated on information previously known about [Mr.] McArthur’s attempts to hire
someone to kill [Mr.] Green[.]” Id. at *6.
The Appellate Court also held that evidence of Mr. Epps’s unserved arrest warrants
was not newly discovered, since defense counsel was aware of Mr. Epps’s criminal history
at the time of trial and could have reviewed the warrants. Id. at *6–7. The court further
determined that, if evidence of the outstanding warrants constituted newly discovered
evidence, such evidence would not have created the significant possibility of a different
outcome. Id. at *6–7.
The State conceded the circuit court erred in determining that Mr. Kopera’s fraud
was not newly discovered evidence predicated on this Court’s holding in Hunt v. State,
which provided that in this and “all similarly situated cases tried prior to the 2007 discovery
of [Mr.] Kopera’s fraud, in the absence of particularized facts that would have put defense
counsel on inquiry notice of [Mr.] Kopera’s fraud, due diligence did not require defense
counsel to unearth the unfortunate charade.” Id. at *8 (citing Hunt v. State, 474 Md. 89,
110, 252 A.3d 946, 958 (2021)). Nonetheless, the Appellate Court agreed with the circuit
court “there [was] no significant possibility of a different result if the alleged newly
discovered evidence had been known[,]” because Mr. Kopera’s testimony “added little, if
any, support to the State’s case[.]” Carver, 2022 WL 971963, at *8. The Appellate Court
did not address Mr. Conrad’s opinion.
10
Petitioner filed a petition for certiorari, which we granted on July 8, 2022. Carver
v. State, 479 Md. 455, 278 A.3d 761 (2022).
STANDARD OF REVIEW
This Court reviews a circuit court’s denial of a petition for a writ of actual innocence
for an abuse of discretion. See Faulkner v. State, 468 Md. 418, 460, 227 A.3d 584, 608
(2020). We accept the factual findings of the circuit court unless clearly erroneous and
will “not reverse a [circuit court’s] discretionary determination unless it is ‘well removed
from any center mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable.’” Id., 227 A.3d at 608–09 (quoting King v. State, 407
Md. 682, 697, 967 A.2d 790, 799 (2009)). It is an abuse of discretion for the circuit court
to apply an incorrect legal standard in reaching its conclusion. Faulkner, 468 Md. at 460–
61, 227 A.3d at 609.
PARTIES’ CONTENTIONS
I. Petitioner’s Brief
First, Petitioner argues the circuit court erred by determining that evidence of Mr.
McArthur’s conspiracy did not address Petitioner’s innocence, nor did it create a
substantial possibility of a different verdict. According to Petitioner, evidence of Mr.
McArthur’s conspiracy “speaks to” his innocence since it points to another perpetrator of
Mr. Green’s murder.
Petitioner contends the circuit court applied the incorrect legal standard under
Faulkner, 468 Md. at 463, 227 A.3d at 610, since it failed to cumulatively assess the impact
of the newly discovered evidence and any related evidence available at trial, including
11
evidence that was both (1) offered and excluded and (2) not offered but available.
Petitioner maintains that the circuit court improperly required Petitioner to establish his
innocence, rather than focusing on whether the newly discovered evidence eroded
confidence in the verdict. Petitioner also argues the circuit court ignored how the newly
discovered evidence undermines the verdict because it suggests police rushed to prosecute
Petitioner without investigating Mr. McArthur or Mr. Armstead. Petitioner contends that
his trial counsel, armed with the new evidence and related evidence available at trial, would
have presented a robust and persuasive theory that someone else killed Mr. Green.
Second, Petitioner also asserts the circuit court erred in not appreciating the
materiality of Mr. Kopera’s fraud, since his testimony showed that two people fired at Mr.
Green. Petitioner asserts that a different expert would have examined the bullets and
testified had Mr. Kopera’s fraud been timely discovered. According to Petitioner, Mr.
Conrad’s opinion shows that a competent expert would conclude that the bullets came from
a single gun.
Petitioner lastly argues the circuit court erred when it found that trial counsel could
have discovered Mr. Epps’s outstanding warrants with due diligence and that this evidence
was immaterial. Petitioner asserts the circuit court ignored the pretrial protective order that
withheld the names of civilian witnesses before trial. Petitioner contends that his trial
counsel did not have time to search for open warrants before trial and had no reason to
search for them after trial, because the responsibility to disclose the existence of those
warrants fell on the State. Petitioner also asserts that evidence of Mr. Epps’s open warrants
was material because it demonstrates that Mr. Epps possessed a motive to lie to the jury in
12
exchange for leniency from the State. According to Petitioner, defense counsel could have
used this to impeach Mr. Epps and, thus, undermine a crucial witness and the entire police
investigation.
Analyzing the cumulative effect of the newly discovered evidence and related
evidence available at trial, Petitioner presents the following story: Six months before Mr.
Green’s death, Mr. Green and Mr. Alston witnessed Mr. McArthur kill Mr. Barrett. Mr.
McArthur wanted to silence all witnesses, so he initially killed Mr. Alston, Petitioner’s
close friend, a few days later. Then, Mr. McArthur threatened to kill Mr. Green between
January and March of 1989. Someone attempted to shoot Mr. Green in January of 1989.
While Mr. McArthur and Mr. Armstead were incarcerated, they attempted to solicit other
people, such as Ms. Brewer, to help kill Mr. Green. Eventually, Mr. McArthur and Mr.
Armstead successfully solicited either Mr. Hodge or a third-party perpetrator to kill Mr.
Green. According to Petitioner, he was an innocent bystander who happened to observe
Mr. Green’s death. At trial, an alternate expert would have testified that only one gun was
used to murder Mr. Green. Petitioner’s trial counsel would have impeached Mr. Epps, the
only witness who testified to Petitioner shooting Mr. Green, by showing he had a motive
to lie in the hopes of leniency because of his outstanding warrants. Petitioner’s counsel
would have demonstrated that Petitioner had no motive to kill Mr. Green because they were
friends. Petitioner’s counsel would have also shown that Petitioner had no motive to assist
Mr. McArthur, who was from a rival neighborhood and had previously killed his close
friend, Mr. Alston. In Petitioner’s view, this version, in hindsight, exonerates or entitles
him to a new trial.
13
II. The State’s Brief
In contrast, the State argues the circuit court applied the appropriate cumulative
analysis under Faulkner when it assessed Petitioner’s petition. According to the State,
Petitioner and trial counsel were aware of most of the information related to the newly
discovered evidence, such as Mr. McArthur’s plot to kill Mr. Green, the circumstances of
Mr. Barrett’s death, the circumstances of Mr. Alston’s death, and the affiliation of Mr.
Green and Mr. McArthur with rival neighborhoods. According to the State, Petitioner’s
new evidence only permits speculative conclusions by bolstering what Petitioner already
knew at trial. The State emphasizes that the circuit court, after considering the weight of
the testimony of the three eyewitnesses at trial, did not abuse its discretion when it found
that the newly discovered evidence did not undermine the verdict.
Regarding Mr. Kopera’s testimony, the State contends Petitioner could have
consulted with his own ballistics expert. The State asserts that Mr. Kopera’s fraudulent
credentials are immaterial, because Mr. Kopera’s testimony was inconclusive and did not
significantly contribute to the State’s case. In the State’s view, Mr. Kopera’s sole
contribution to its case in chief was his opinion that it was possible that more than one
person fired at Mr. Green. The State also emphasizes that Mr. Conrad’s testimony in 2009
was inconclusive because he could not confirm whether the bullets came from the same
gun.
Regarding Mr. Epps’s outstanding warrants, the State argues Petitioner’s trial
counsel had ample opportunity to search those records. The State further contends
Petitioner subverts the due diligence standard by asserting his trial attorney had no basis to
14
search for readily available evidence. The State contends the open warrants cannot be
material when Mr. Epps did not know of them because they were never served.
Finally, the State argues the circuit court applied the correct cumulative analysis.
The State, again, highlights the strength of its three eyewitnesses at trial and asserts that
Petitioner overestimates the strength of the new evidence.
ANALYSIS
I. A petition for writ of actual innocence requires an evaluation of the materiality
of newly discovered evidence predicated on its cumulative impact on evidence
admitted at trial and both evidence offered but excluded and not offered but
available at trial.
Md. Code. Ann., Crim. Proc. § 8-301(a) governs petitions for writs of actual
innocence and provides, in relevant part:
(a) A person charged by indictment or criminal information with a crime
triable in circuit court and convicted of that crime may, at any time, file a
petition for writ of actual innocence in the circuit court for the county in
which the conviction was imposed if the person claims that there is newly
discovered evidence that:
(1)(i) if the conviction resulted from a trial, creates a substantial or significant
possibility that the result may have been different, as that standard has been
judicially determined; or
(ii) if the conviction resulted from a guilty plea, an Alford plea, or a plea of
nolo contendere, establishes by clear and convincing evidence the
petitioner’s actual innocence of the offense or offenses that are the subject of
the petitioner’s motion; and
(2) could not have been discovered in time to move for a new trial under
Maryland Rule 4-331.
15
Under Crim. Proc. § 8-301(a), a petitioner must produce newly discovered evidence
that: (1) “speaks to” his or her actual innocence11; (2) could not have been discovered in
time to move for a new trial under Maryland Rule 4-331; and (3) creates a “substantial or
significant possibility” that, if his or her jury had received such evidence, the outcome of
his or her trial may have been different. Faulkner, 468 Md. at 459–60, 227 A.3d at 608
(citing Smith v. State, 233 Md. App. 372, 422, 165 A.3d 561, 590 (2017)).
The first prong limits relief to “a petitioner who makes a threshold showing that he
or she may be actually innocent, meaning he or she did not commit the crime.” Id. at 460,
227 A.3d at 608 (internal quotations and citation omitted). Under the second prong,
Maryland Rule 4-332(d)(6) imposes a “due diligence” standard under which the defendant
must “act reasonably and in good faith to obtain the evidence, in light of the totality of the
circumstances and the facts known to him or her.” Hunt, 474 Md. at 108, 252 A.3d at 958
(emphasis added). The third prong requires a materiality analysis under a standard that
“falls between ‘probable,’ which is less demanding than ‘beyond a reasonable doubt,’ and
‘might,’ which is less stringent than ‘probable.’” Faulkner, 468 Md. at 460, 227 A.3d at
608 (quoting McGhie v. State, 449 Md. 494, 510, 144 A.3d 752, 762 (2016)). To meet this
standard, the cumulative effect of newly discovered evidence, viewed in the context of the
entire record, must “undermine confidence in the verdict.” See Strickler v. Greene, 527
U.S. 263, 290, 119 S. Ct. 1936, 1952 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 435,
11
In Smallwood v. State, this Court clarified that “actual innocence” means “the
defendant did not commit the crime or offense for which he or she was convicted.” 451
Md. 290, 313, 152 A.3d 776, 789 (2017).
16
115 S. Ct. 1555, 1566 (1995)); see also Faulkner, 468 Md. at 463, 227 A.3d at 610 (holding
that the cumulative materiality analysis for actual innocence petitions is the same as those
for claims under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)).
The State does not challenge Petitioner’s assertion that the significance and
relevance of the newly discovered evidence must be examined in light of its cumulative
effect on evidence available at the time of trial. In McGhie, this Court held that Crim. Proc.
§ 8-301(a)(1) requires a “retrospective approach that considers the impact of the newly
discovered evidence at the trial that occurred.” 449 Md. at 511, 144 A.3d at 762. Likewise,
in Faulkner, 468 Md. at 463, 227 A.3d at 610, this Court held that “a cumulative materiality
analysis is required in actual innocence cases[,]” treating the analysis as identical to other
materiality analyses required for violations under Brady, 373 U.S. at 87–91, 83 S. Ct. at1196–98, or claims of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. at 694–96, 104 S. Ct. at 2068–69. This Court explained:
[I]n analyzing the materiality of multiple items of newly discovered evidence
for purposes of an actual innocence petition, a circuit court must conduct a
cumulative analysis. A cumulative assessment is necessary for two reasons.
First, in some cases, no one distinct item of newly discovered evidence will
suffice on its own to warrant relief, but cumulatively, such evidence will
create a substantial or significant possibility of a different result. Second,
even if one or more distinct pieces of newly discovered evidence
independently justifies the granting of the writ, a cumulative analysis may
affect the court’s determination of the appropriate remedy.
Faulkner, 468 Md. at 464, 227 A.3d at 611 (footnote omitted).
This Court provided the following guidance in implementing this materiality
analysis:
17
In ruling on the merits of an actual innocence petition, a circuit court may
decide to begin and end its materiality review with a cumulative analysis of
the various pieces of newly discovered evidence before it. However, for
purposes of appellate review, we believe it generally is a sound practice for
a circuit court first to consider the materiality of each piece of newly
discovered evidence independently, and then to conduct a cumulative
analysis.
Id. at 464 n.22, 227 A.3d at 611 n.22.
In a footnote, this Court stated that “the character of a piece of evidence as favorable
will often turn on the context of the existing or potential evidentiary record” and “newly
discovered evidence can logically and reasonably lead to other evidence, not necessarily
new, which would then take on new dimensions and importance.” Id. at 469 n.24, 227
A.3d at 614 n.24 (internal citations and quotations omitted).
Accordingly, courts evaluating the materiality of newly discovered evidence under
Crim. Proc. § 8-301 must consider the cumulative effect of the new evidence within the
context of the entire adversarial proceeding. Id., 227 A.3d at 614 n.24. Courts must
evaluate how that new evidence would impact: (1) any evidence admitted at trial; (2) any
evidence available at the time of trial, including evidence both (a) offered but excluded and
(b) not offered but available; and (3) the defendant’s or defense counsel’s trial strategy.
See id., 227 A.3d at 614 n.24. This hindsight assessment requires courts to ascertain
“whether such evidence, combined with the evidence the [jurors] did hear, create[d] a
substantial or significant possibility that” a reasonable jury would have acquitted the
defendant, that is, whether the cumulative effect of the new evidence and the available
evidence at trial undermined the verdict. Id. at 466, 227 A.3d at 612.
We conclude that the circuit court correctly applied the aforementioned standard.
18
II. Petitioner failed to show that the circuit court abused its discretion in denying
his petition for actual innocence.
The circuit court did not abuse its discretion in determining that Petitioner’s alleged
newly discovered evidence did not merit granting the petition for writ of actual innocence.
Contrary to Petitioner’s assertions, the circuit court applied the correct legal standard by
considering the effect of the newly discovered evidence on the available evidence at trial.
Indeed, the court determined, in its discretion and in light of the available evidence at the
time of trial, that the alleged newly discovered evidence did not create a substantial or
significant possibility that the outcome of the trial would have been different, particularly
considering the weight of evidence against Petitioner, including the three eyewitness
accounts of the shooting.
a. The report of Mr. McArthur’s threats against the victim and the reports of
the incidents surrounding the assault of Ms. Brewer.
The circuit court correctly held that neither Mr. Green’s report of the January 1989
shooting, nor Ms. Brewer’s report regarding solicitations to assist in murdering Mr. Green,
spoke to Petitioner’s innocence or created a substantial or significant likelihood that the
outcome of the trial would have been different.
First, this evidence does not erode the factual premise of Petitioner’s conviction. In
Smallwood, this Court discussed the types of evidence that could support a claim for actual
innocence under Crim. Proc. § 8-301 and, by extension, the types of evidence that “speak
to” a petitioner’s innocence. 451 Md. at 319, 152 A.3d at 792–93. This evidence includes:
(1) a confession by another individual to having committed the crime; (2)
acknowledgement by an eyewitness or other evidence indicating he was
mistaken; (3) acknowledgment by an eyewitness or other evidence indicating
19
that the witness intentionally lied; or (4) evidence casting serious doubt on
the reliability of scientific evidence used against the defendant.
Id., 152 A.3d at 792–93 (citing Memorandum from the Governor’s Office of Crime Control
and Prevention and the Office of the Public Defender to Chairman B. Frosh and Members
of the Senate Judicial Proceedings Committee, at 8–9 (Jan. 15, 2009)). Although the
enumerated list is not exhaustive, this Court recognized that the General Assembly focused
the statute on newly discovered evidence that “would potentially exonerate the convicted
defendant.” Smallwood, 451 Md. at 319, 152 A.3d at 793 (emphasis added).
Here, Petitioner’s evidence reflects that Mr. McArthur attempted to solicit other
people to murder Mr. Green, but that does not discount Petitioner, who was present at the
scene, as a suspect in the murder of Mr. Green. Indeed, another piece of newly discovered
evidence presented by Petitioner at trial, although not presented to this Court on appeal,
was a report of a jailhouse conversation between Mr. McArthur and Melvin Jackson, in
which Mr. Jackson reported that Mr. McArthur planned to pay Petitioner’s bail so that
Petitioner could kill Mr. Green.12 In short, this new evidence does not have the potential
to exonerate Petitioner.
12
In a report dated April 5, 1989, Mr. Jackson described his interaction with Mr.
McArthur in jail during the first week of March 1989:
“If someone can take care of Big John I can get out of here.” [Mr.] Jackson
was aware that [Mr.] Green was to testify against [Mr.] McArthur. [Mr.]
McArthur then asks what kind of bail [Mr.] Jackson has, when he replies
none, [Mr.] McArthur states that[’]s okay, I got this guy, pointing to an
individual playing basketball. This person is identified as Steven Carver.
[Mr.] McArthur [identifies] this person as Charles, from Cherry [H]ill, that
(continued . . .)
20
Regarding materiality, this Court holds that the circuit court did not abuse its
discretion. The circuit court properly focused on the three unrelated eyewitness accounts
that there were two men who killed Mr. Green.
The case at bar is distinguishable from Faulkner, which held that “strong alternate
perpetrator evidence can be very powerful in the defense of a person accused of a crime
where the primary issue in dispute is identity.” 468 Md. at 468, 227 A.3d at 613 (citation
omitted). In Faulkner, the State theorized at trial that the two petitioners, Mr. Smith and
Mr. Faulkner, broke into the victim’s house through a window to burglarize it and then
murdered the victim when she discovered them. Id. at 438–44, 227 A.3d at 595–99. There,
the petitioners presented new evidence that handprints on the open window of the victim’s
home belonged to a man named Ty Brooks, and that another man, William Thomas,
confessed to committing the crime with Ty Brooks, providing details unknown to the
public at the time. Id. at 469, 227 A.3d at 613. Regarding the significance of this newly
discovered evidence, we explained “[t]his is not a case in which a petitioner has come
(. . . continued)
he is a part of Joe Edisons crowd, [Mr.] McArthur says he is going to pay his
bail for “The Hit”. [sic] [Mr.] Jackson states the second shooter of John
Green is “Lightskin”, [sic] Joe Ray Hodge, already in custody.
During the May 10, 2017 hearing, Petitioner’s trial counsel testified he would not
have called either Mr. Jackson or Mr. McArthur in light of this report. Instead, Petitioner’s
trial counsel testified he might have used the report “to cross examine Detective David
John Brown about certain aspects of an investigation where people were coming out of the
woodwork to try and benefit themselves or to work for [Mr.] McArthur.” The circuit court
ultimately rejected Petitioner’s arguments that this new evidence was exculpatory because
it would have provided the State with “a perfect motive” for why Petitioner killed Mr.
Green.
21
forward with only conjecture or speculation that another person may have committed the
crime for which the petitioner was convicted.” Id. at 468, 227 A.3d at 613. Rather, the
petitioner presented ample, concrete, and compelling newly discovered evidence of an
alternate perpetrator.13
13
This Court summarized the newly discovered evidence in Faulkner, and its effect
on other information known at the time of trial, as follows:
The newly discovered palm print evidence shows – and the State does not
dispute – that Ty Brooks entered [Ms.] Wilford’s home through the window
that MSP initially determined was used by the burglar(s) and murderer(s) on
January 5, 1987. It also is undisputed that: (1) Ty Brooks had no legitimate
right of access to the Wilford home; (2) no prior break-in was reported by
[Ms.] Wilford to police; (3) Ty Brooks has a substantial criminal history,
including burglaries in the Easton area in 1986–87; indeed, he admitted to
Sgt. Metzger that he “terrorized Easton” during this period of time; (4) Ty
Brooks falsely claimed never to have been in [Ms.] Wilford’s home; and (5)
[William] Thomas also has a substantial criminal history going back to the
1980s, which includes armed robbery and other crimes in Talbot County.
* * *
We also find significant that, in 1991 and 1992, James Brooks told MSP that
[Mr.] Thomas had confessed to burglarizing [Ms.] Wilford’s home with Ty
Brooks and to having stabbed her to death with a butcher knife – a detail that
was not then known to the public. This provides important corroboration of
[Mr.] Smith’s and [Mr.] Faulkner’s theory that [Mr.] Thomas and Ty Brooks
are responsible for [Ms.] Wilford’s murder.
Taken together, the Ty Brooks palm print match, [Mr.] Thomas’s confession
(including James Brooks’s written statement that [Mr.] Thomas identified Ty
Brooks as his accomplice), and the related evidence concerning Ty Brooks
and [Mr.] Thomas create a substantial or significant possibility that [jurors]
hearing that evidence would not have found [Mr.] Smith and [Mr.] Faulkner
guilty beyond a reasonable doubt.
468 Md. at 468–70, 227 A.3d at 613–14 (emphasis and footnotes omitted).
22
In contrast, Petitioner’s alleged newly discovered evidence regarding Mr.
McArthur’s conspiracy is primarily “conjecture and speculation[,]” and fails to undermine
confidence in Petitioner’s conviction. Petitioner asserts that, with this newly discovered
evidence, he could have brought more information into trial about Mr. McArthur’s
conspiracy to kill Mr. Green and show Petitioner had nothing to do with that conspiracy.
Unlike Faulkner, Petitioner’s alternate perpetrator evidence is not as compelling because
he concedes he was present during Mr. Green’s murder and subsequently ran from the
crime scene. At face value, Petitioner offers new evidence that an imprisoned individual
sought the victim’s death and, through a speculative chain of events, perhaps successfully
enlisted Mr. Hodge or some phantom third-party assailant. The circuit court properly
declined to adopt Petitioner’s reasoning. A reasonable jury could believe the following
two facts and still convict Petitioner: (1) Mr. McArthur plotted Mr. Green’s death; and (2)
Petitioner and Mr. Hodge happened to kill Mr. Green first. Accordingly, the circuit court
did not err when it determined the newly discovered evidence was not substantially likely
to produce a different outcome at trial.
Petitioner contends he was not associated with Mr. McArthur, since they were from
rival neighborhoods and Mr. McArthur was responsible for Mr. Alston’s murder. None of
this evidence meaningfully casts doubt on the powerful eyewitness testimony that
Petitioner and Mr. Hodge killed Mr. Green. Accordingly, it was not an abuse of discretion
for the circuit court to find the cumulative evidence did not create substantial or significant
likelihood of a different outcome at trial necessary for the court to grant his petition for
actual innocence.
23
b. Mr. Kopera’s fraud and Mr. Conrad’s opinion
This Court also rejects Petitioner’s assertion that the opinion of the firearms
identification expert, William Conrad, constitutes newly discovered evidence in light of
Mr. Kopera’s fraud.14 Petitioner reasons that, at the time of trial, Mr. Kopera’s reputation
was so impeccable, it was not reasonable to engage another firearms identification expert
to examine the bullet casings in evidence. Accordingly, Petitioner presents as new
evidence a 2009 affidavit and testimony of Mr. Conrad, a firearms identification expert
who reviewed Mr. Kopera’s report15 on the bullet fragments in Petitioner’s case after Mr.
Kopera’s fraud was uncovered. In his opinion, Mr. Conrad agreed with Mr. Kopera’s
conclusion that it was impossible to determine how many guns were used in the murder
because four out of the six bullet fragments were too mutilated for a microscopic analysis.
Mr. Conrad also opined that, in his own experience, he had never seen a case where
multiple bullets in a single incident contained the same general markings but came from
two different guns.
Petitioner asserts Mr. Conrad’s affidavit and testimony constitutes newly discovered
evidence within the meaning of Crim. Proc. § 8-301(a). Petitioner misreads this Court’s
holding in Hunt, 474 Md. at 110, 252 A.3d at 959. In that case, we held that, “in this and
14
The circuit court did not have the benefit of Hunt v. State, 474 Md. 89, 252 A.3d
946 (2021), when it rendered its decision. Nevertheless, we hold the circuit court correctly
concluded that Mr. Conrad’s report was not newly discovered evidence or material.
15
Mr. Conrad did not actually review the bullet fragments himself, which could not
be located 20 years after the trial.
24
all similarly situated cases tried prior to the 2007 discovery of [Mr.] Kopera’s fraud, in the
absence of particularized facts that would have put defense counsel on inquiry notice of
[Mr.] Kopera’s fraud, due diligence did not require defense counsel to unearth the
unfortunate charade.” Id. at 110, 252 A.3d at 959. This Court never held that an expert
opinion acquired after trial constituted new evidence, simply because due diligence did not
require trial counsel to uncover Mr. Kopera’s fraud prior to 2007.
In Hunt, this Court described what qualifies as “newly discovered evidence” within
the context of Maryland Rule 4-331(c), which is equally applicable to actual innocence
proceedings under Crim. Proc. § 8-301:
Whether evidence is newly discovered has two aspects: a “temporal one,”
that is, when the evidence was discovered; and a “predictive one,” that is,
when it “should” or “could” have been discovered. “Due diligence” is
relevant to the latter aspect, and, in this context, “contemplates that the
defendant act reasonably and in good faith to obtain the evidence, in light of
the totality of the circumstances and the facts known to him or her.”
Id. at 108, 252 A.3d at 957 (citations omitted).
In that case, this Court rejected the proposition that, “in a more perfect world,” Mr.
Kopera’s fraud could have been discovered with due diligence because no defense counsel
had cause to question his widely accepted credentials prior to 2007. Id. at 109–10, 252
A.3d at 958–59. In its holding, this Court sought to avoid a “cramped and unrealistic
notion” of the due diligence standard. Id., 252 A.3d at 958.
In the case at bar, although the evidence of Mr. Kopera’s fraud was newly
discovered evidence under Hunt, Mr. Conrad’s 2009 opinion was not newly discovered
evidence. At the actual innocence proceeding, Mr. Conrad testified that “it’s not probable
25
[the bullets] could have come from one gun; but I can’t say for sure without examining the
bullets themselves.” (emphasis added). Regardless of the inconclusive nature of his
testimony, Mr. Conrad reveals the obvious: defense counsel had the option to hire his own
ballistics expert, like Mr. Conrad, to examine the bullet fragments and testify at the time
of trial, but he elected not to do so. See McGhie, 449 Md. at 514–15, 144 A.3d at 765
(McDonald, J., concurring) (“[Crim. Proc.] § 8-301 was created to exonerate the truly
innocent, no matter how late that proof may become available, and not simply override the
time limits of [Md.] Rule 4-331.”). Unlike Mr. Kopera’s fraudulent credentials in Hunt,
Mr. Conrad’s conclusions could have been “discovered in time to move for a new trial
under Maryland Rule 4-331,” making such evidence not newly discovered within the
meaning of Crim. Proc. § 8-301. Mr. Kopera’s favorable reputation at the time of trial did
not negate Petitioner’s ability to hire his own expert or obviate the value of having such an
expert.
Assuming, arguendo, Mr. Conrad’s opinion qualifies as newly discovered evidence,
it does not create a substantial likelihood that Petitioner’s trial would have achieved a
different outcome. In McGhie, another case involving Mr. Kopera, this Court held that
“[i]f the jury is made aware that the expert lied about his qualifications, the jury might also
reasonably find that other aspects of the expert’s testimony are not reliable.” 449 Md. at
512, 144 A.3d at 763 (emphasis added) (footnote omitted). In that case, we noted it was
not substantially likely that jurors, armed with knowledge of Mr. Kopera’s fraud, would
reasonably have distrusted the credibility of the State’s other witnesses at trial. Id. at 512
n.8, 144 A.3d at 763 n.8. Here, a reasonable jury could discount Mr. Kopera’s testimony
26
in its entirety, while still convicting Petitioner based on the other credible witnesses at trial.
Contrary to Petitioner’s assertions, Mr. Kopera’s testimony was not particularly helpful to
the State’s case because he could not say for certain whether the recovered bullets were
derived from one or multiple firearms. Mr. Conrad agreed with Mr. Kopera’s conclusion
and stated in the innocence hearing that he likewise could not say with certainty how many
firearms were used. Thus, the newly discovered evidence hardly conflicts with the
evidence presented by the State at trial, which was evidence that was not particularly
helpful to the State’s case in the first place. Accordingly, this Court holds that the circuit
court did not abuse its discretion in determining that Mr. Conrad’s opinion did not create a
substantial or significant likelihood that the outcome in Petitioner’s trial would have been
different.
c. Petitioner’s trial counsel could have discovered Mr. Epps’s open warrants
with due diligence, and the evidence does not undermine the verdict.
This Court is also not persuaded by Petitioner’s assertion that Mr. Epps’s criminal
history constitutes newly discovered evidence within the meaning of Crim. Proc. § 8-301.
Petitioner alleges that Mr. Epps had two open arrest warrants due to violating probation at
the time of trial, which could have been used as impeaching evidence by the defense and
should have been disclosed by prosecutors.
In State v. Ebb, this Court held that a witness’s renouncement of his previous trial
testimony constituted newly discovered evidence because the petitioner had no reason to
be aware that the witness would falsely implicate him at trial. 452 Md. 634, 656–57, 158
A.3d 965, 978–79 (2017). Defense counsel in the case at bar could have easily discovered
27
the open arrest warrants at the time of trial by diligently executing a simple background
check, unlike the recanted testimony in Ebb.
Petitioner argues that, due to a protective order, defense counsel did not receive any
information about testifying witnesses until shortly before trial, and, thus, did not have the
opportunity to perform a background check on Mr. Epps. Contrary to Petitioner’s
assertions, Crim. Proc. § 8-301(a)(2) and Maryland Rule 4-331(c) expressly provide
defense counsel with a limited opportunity to diligently discover evidence after trial. Crim.
Proc. § 8-301(a)(2) (limiting “newly discovered evidence” to evidence that “could not have
been discovered in time to move for a new trial under Maryland Rule 4-331”); Md. Rule
4-331(c) (“The court may grant a new trial or other appropriate relief 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[.]”) (emphasis added). Defense
counsel certainly had the opportunity to perform a background check on Mr. Epps, who
counsel characterized as the State’s “most important witness,” in time to move for a new
trial under Maryland Rule 4-331. As such, the circuit court did not abuse its discretion
when it determined that Mr. Epps’s criminal history did not constitute “newly discovered
evidence” within the meaning of Crim. Proc. § 8-301.
Assuming, arguendo, that Mr. Epps’s criminal history constituted “newly
discovered” evidence, it does not create a “substantial or significant possibility” that the
outcome of the trial would have been different. In Ebb, this Court held that new evidence
of a trial witness who lied at trial would have undermined the petitioner’s robbery and
felony murder convictions. 452 Md. at 657–661, 158 A.3d at 979–81. This Court reasoned
28
the State would have had a difficult time establishing the necessary elements to robbery
and felony murder, without the witness’s testimony regarding petitioner’s intent to commit
armed robbery and petitioner’s identity as the murder culprit. Id. at 657–661, 158 A.3d at
979–81. Unlike the compelling new evidence in Ebb, evidence of Mr. Epps’s open arrest
warrants carries little weight because it would, at best, be impeachment evidence.
Additionally, Mr. Epps was likely unaware of his open arrest warrants because they were
never served. Contrary to Petitioner’s assertions, it is unlikely that he was motivated to lie
in his testimony in exchange for leniency. Furthermore, Mr. Epps’s consistency with the
other two eyewitnesses also supports this Court’s view that impeachment evidence against
Mr. Epps for two unrelated and unserved warrants did not create a substantial likelihood
of a different outcome in Petitioner’s trial.
d. The circuit court applied the proper legal standard in this case.
Finally, this Court disputes Petitioner’s assertion that the courts below failed to
consider the cumulative effect of the newly discovered evidence. As discussed above, this
Court holds that neither Mr. Conrad’s opinion nor Mr. Epps’s criminal history constitute
newly discovered evidence within the meaning of Crim. Proc. § 8-301 and were properly
excluded under the cumulative analysis. Assuming, arguendo, that this Court considered
all of Petitioner’s newly discovered evidence under the cumulative analysis, it was not an
abuse of discretion for the circuit court to determine that the evidence did not create a
substantial likelihood of a different outcome in Petitioner’s trial. Petitioner overstates the
value of his newly discovered evidence. Petitioner would, at best, show that an imprisoned
Mr. McArthur wanted to kill Mr. Green.
29
Although Petitioner correctly notes he does not need to establish his innocence
beyond a reasonable doubt under Crim. Proc. § 8-301 and that it is not his responsibility to
solve the State’s case, he must still contend with the evidence against him. The three
eyewitnesses corroborated each other’s testimony concerning the shooting and individuals
present at the scene. Contrary to Petitioner’s assertions, evidence of Mr. Epps’s open
warrants carries little impeachment value because nothing suggests he was aware of the
existence of the warrants. Regarding expert testimony, Mr. Conrad’s opinion only offers
the same inconclusive testimony Mr. Kopera provided at trial.
The circuit court found that a reasonable juror, upon considering the new evidence
and any other evidence available at trial, would not be substantially likely to decide this
case differently if Petitioner’s trial counsel “argue[d] that there was some other phantom
person who, in broad daylight, shot the victim and escaped unnoticed.” We agree.
Petitioner’s new evidence similarly does not carry much mileage in convincing a
reasonable juror that Mr. Hodge, alone, killed Mr. Green because “he was from [Mr.]
Armstead and [Mr.] McArthur’s neighborhood.” This Court is not persuaded that
Petitioner’s newly discovered evidence, and any speculative conclusions drawn therefrom,
“put[s] the whole case in such a different light as to undermine confidence in the verdict.”
Strickler, 527 U.S. at 290, 119 S. Ct. at 1952. Consequently, this Court holds that it was
within the circuit court’s discretion to deny Petitioner’s petition for writ of actual
innocence.
30
CONCLUSION
Petitioner failed to meet his burden under Crim. Proc. § 8-301. Evidence of Mr.
McArthur’s plot does not “speak to” Petitioner’s innocence because it does not erode the
factual basis of the conviction. Evidence of Mr. McArthur’s plot is immaterial since it is
“conjecture and speculation[,]” and fails to undermine confidence in Petitioner’s
conviction. A reasonable jury can accept Mr. McArthur’s plot existed, while convicting
Petitioner based on the consistent eyewitness testimony presented at trial.
Although Mr. Kopera’s fraudulent credentials constitute newly discovered evidence
under Hunt v. State, that holding does not extend to expert opinions acquired after trial,
such as Mr. Conrad’s opinion. 474 Md. at 110, 252 A.3d at 959 (“This is (hopefully) a
unique class of cases.”). Mr. Kopera’s presence as the State’s expert witness did not
preclude defense counsel from hiring his own expert to analyze the bullet fragments and
testify at trial. Additionally, Mr. Conrad’s opinion does not “put the whole case in such a
different light as to undermine confidence in the verdict[]” because it provides the same
inconclusive testimony that Mr. Kopera presented at trial. Strickler, 527 U.S. at 290, 119
S. Ct. at 1952.
Mr. Epps’s open warrants did not constitute newly discovered evidence because trial
counsel had an opportunity to uncover them through a background check in time to file for
a new trial under Md. Rule 4-331. Regardless, Mr. Epps’s open warrants carry little
impeachment value because Mr. Epps was likely unaware of them and, thus, not likely
motivated to lie in exchange for leniency from the State.
31
Assuming, arguendo, the above evidence constitutes newly discovered evidence,
the evidence cumulatively shows Mr. McArthur, an imprisoned individual, wished to kill
Mr. Green. The new evidence also shows the same inconclusive expert testimony, which
the jury already heard at trial. It further shows Mr. Epps testified while he had unserved
warrants. Taken together, Petitioner’s evidence does not undermine a verdict based on
consistent testimony regarding the shooting and individuals present at the scene on March
14, 1989.
For the foregoing reasons, this Court affirms the judgment of the Appellate Court
of Maryland.
JUDGMENT OF THE APPELLATE
COURT IS AFFIRMED. COSTS TO
BE PAID BY PETITIONER.
32
Circuit Court for Baltimore City
Case No. 18916403
Argued: October 3, 2022
IN THE SUPREME COURT
OF MARYLAND*
No. 14
September Term, 2022
STEVEN G. CARVER
v.
STATE OF MARYLAND
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
______________________________________
Dissenting Opinion by Gould, J.
______________________________________
Filed: December 20, 2022
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals to the Supreme Court of Maryland.
The name change took effect on December 14, 2022.
I respectfully dissent. Although the Majority correctly answers the first question
presented and confirms that the “significance and relevance of the newly discovered
evidence must be examined in light of its cumulative effect on evidence available at the
time of trial,” Maj. slip. op. at 17, it incorrectly applies this standard in practice. The
fundamental mistake the Majority makes is that it holds constant the trial that occurred—
that is, the Majority assumes the evidence would have unfolded exactly as it did—without
considering the ripple effect the additional evidence would have had on the trial court’s
evidentiary rulings, the State’s case, the testifying detectives’ credibility, and defense
counsel’s ability to put on a defense.
As I explain below, the additional evidence would have changed the complexion of
the trial. As a result, we should have little confidence in the guilty verdict, as it was
premised entirely on inconsistent eyewitness testimony, the very type of evidence this
Court has deemed unreliable, and the jury decided the case without the benefit of
exculpatory evidence. Accordingly, for the following reasons, I would reverse the
judgment of the Appellate Court of Maryland1 and grant Mr. Carver a new trial.
I will proceed in the following sequence. First, I will identify the information that
Mr. Carver’s counsel had at the time of trial. Second, I will describe the new evidence
identified by Mr. Carver in his petition for writ of innocence (the “innocence petition”).
Third, I will identify critical junctures in the trial proceedings where defense counsel was
1
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
stymied and explain how the newly discovered evidence, reasonably considered, could
have altered the course of the trial. And finally, I will discuss the relevant legal principles
and explain how, in my view, the Majority mistakenly applies the law.
INFORMATION AVAILABLE TO
DEFENSE COUNSEL AT THE TIME OF TRIAL
The information provided to Mr. Carver’s counsel came primarily from two sources:
(1) the motion for protective order that the State filed to shield from the defense (and the
public) the identity of the State’s witnesses; and (2) the police report from the January 1989
shooting of John Green.
Protective Order
After Mr. Carver was charged, but before he was taken into custody, the State
moved for a protective order to allow it to “withhold the names and addresses of the civilian
witnesses” and prevent the Clerk of the Court from divulging such information. In that
motion, the State described the connection between the homicides of Damen Barrett,2
Kenneth Alston, and John Green, and Bryant McArthur’s assumed complicity in all three
murders. Specifically, the State laid out the following allegations:
• On September 28, 1988, McArthur shot and killed Barrett on the 4000 block
of Old York Road.
• On October 6, 1988, McArthur and Terry Antoine Green (no relation to John
Green) shot and killed Alston on the 500 block of Rosehill Terrace.
McArthur and Terry Green were driven in a “white Ford.”
• Alston witnessed McArthur shoot and kill Barrett.
2
Damen Barrett is referred to elsewhere in the record as “Damon.” The State does
not dispute that references to “Damon” are meant to refer Damen Barrett.
2
• On March 15, 1989,3 Mr. Carver and Joe Ray Hodge, a.k.a. Tony Ben, shot
and killed John Green on the 4000 block of Old York Road.
• The March 15 killing of Mr. Green was “the third slaying in the area of the
4000 block of Old York Road since September 28, 1988.”
• Mr. Green witnessed McArthur shoot and kill Barrett and testified about the
shooting to a grand jury.
• Mr. Carver was in the Baltimore City Jail from October 25-28, 1988,
February 8-14, 1989, and February 27-March 9, 1989, “when he was bailed
out on handgun and assault charges.”
• McArthur had been in Baltimore City Jail since February 29, 1989. There,
he told another inmate “that he knew John Green was to testify against him
and that he had someone to take care of John Green.”
Citing “the strong interest of the State of Maryland[] in the non-disclosure of the
identity of the witnesses” in Mr. Carver’s case, the State requested a protective order to
“allow[] the State to lawfully withhold such information from the defense,” to require the
Clerk of the Court to delete any mention of the names or addresses of any witnesses, and to
preclude the Clerk from divulging any such information. The circuit court granted this
motion.
From the allegations in the State’s motion, defense counsel had reason to believe
the State had evidence that: (1) the three murders—Barrett, Alston, and Mr. Green—were
connected; and (2) Alston and Mr. Green were killed to eliminate witnesses who might
testify against McArthur at his trial for Barrett’s murder. Further, by inference, defense
counsel could have reasonably assumed that the State had reason to believe that Mr. Carver
3
The State was off by one day: Mr. Green was killed on March 14, 1989.
3
was the “someone” whom McArthur—according to another inmate—had identified to “take
care of John Green.”4
Of course, the motion for protective order did not identify any evidence in support
of the State’s allegations. That was the point of the motion: to shield the identities of the
witnesses who could tie the three murders together.
The Police Record of the January Shooting
At trial, Mr. Carver was represented by attorney Gary Ticknor. At that time, in
addition to the protective order, Mr. Ticknor had seen the police reports from the January
1989 shooting of Mr. Green. One such report was a handwritten document stating:
During the summer after 2 deaths of his friends, John Green was told that he
would be the next one killed. This threat was made by Bryant McArthur who
is still wanted in reference to the other 2 homicides. John Green was seen
shortly after the warning by Officer Day and myself, wearing a bulletproof
vest. He was also arrested for carrying a gun, supposedly to protect himself
from Bryant McArthur. All of these events occurred just recently.
4
Presumably, the witness who told the State that he heard McArthur say “that he
knew John Green was to testify against him and that he had someone to take care of John
Green” was Melvin Jackson. As the Majority notes, a police report reflecting Jackson’s
account of McArthur’s statement was another newly discovered piece of evidence. The
circuit court viewed this evidence as inculpatory; so too does the Majority. See Maj. slip
op. at 7 n.8, and at 21 n.12. I have a different perspective of that evidence. If we are to
assume that the defense is now in possession of all relevant information, then it appears
Jackson was the only person known to the State who could have potentially tied Mr. Carver
to McArthur. By not calling Jackson at trial (and not turning over the document), it is
reasonable to infer that the State did not find him or his account to be credible, leaving it
with no evidence to connect Mr. Carver to McArthur. That could explain why the State
acknowledged to the jury in its closing argument that it had no evidence of a motive for
Mr. Carver to kill Mr. Green at the behest of McArthur and fought to prevent defense
counsel from attempting to connect the three homicides and McArthur’s complicity
therewith.
4
Mr. Ticknor also knew that Mr. Green was well acquainted with Mr. Carver and
that Mr. Green’s reported description of his January shooter did not match Mr. Carver. Mr.
Ticknor testified at the hearing that although he knew that Mr. Green was afraid of
McArthur, he lacked the details of the threats that were reflected in the March 15, 1989
memorandum from Detectives Richard L. James and David John Brown, described below.
The information available to defense counsel was of limited value to Mr. Carver.
Mr. Green, of course, was deceased, so defense counsel did not have a witness who could
testify—for the purpose of establishing the truth—to the substance of Mr. Green’s report
of the January shooting. And, when defense counsel attempted to use that police report for
the more modest purpose of establishing that Mr. Green did not identify or describe Mr.
Carver as the shooter, he was shut down by the trial court. As explained below, that’s why
the new evidence would have been so critical: it would have given defense counsel
admissible evidence to establish that the murders of Barrett, Alston, and Mr. Green were
connected and that McArthur had a motive to kill Mr. Green and solicited someone to assist
him less than two weeks before Mr. Green was killed. In addition, the new evidence tended
to show that Mr. Carver had no connection to McArthur and not only had no motive to help
him, but had good reason not to help him.
5
THE NEW EVIDENCE
Mr. Carver’s new evidence at the hearing in the circuit court falls within two
categories: (1) McArthur’s motive to kill Mr. Green; and (2) the missing evidentiary
connection between McArthur and Mr. Carver.5
Category No. 1: McArthur’s Motive to Kill Mr. Green
1. The Denise Brewer Evidence
a. Petitioner’s Exhibit B, page 32. This document is a Baltimore Police
Department (“BPD”) memorandum from Detective David John Brown to
Captain John J. MacGillivary, Commanding Officer, Crimes Against Person
Section. The subject line of the memorandum identifies the
“homicide/shooting” of Mr. Green dated “14 Mar. 1989” at the 4000 block
of Old York Road. The memorandum states:
Ms.[ ]Brewer had been assaulted on 10 April in the 600
blk.[ ]McCabe Ave. “Darryl” had stuck her in the face with
a handgun and fired four shots at her. This was reported to
police under CC#5D-19087. Ms. Brewer was interviewed
at the Homicide Office, stating that “Darryl” was involved
in Bryant McArthur[’]s Gang, and Darryl approached her
in early March, saying that “Big John” was running his
mouth, and Darryl wanted Denise to set him up, getting him
to walk down Rosehill Terr. so they could “get him”. Ms.
Brewer declined. Det. Edgerton continues the investigation
into area homicides.
b. Petitioner’s Exhibit B, pages 33-38. This document is the BPD report of the
April 10 assault of Denise Brewer. The officer who interviewed Brewer and
wrote the report understood Brewer to have said that she was attacked by two
individuals: “Darnell” of 600 McCabe Avenue and “Ernestine.” The report
reflects that Brewer identified her friend Antoine as a witness to the attack,
that “Darnell” hit her with the butt of gun, knocking her to the ground, that
Ernestine started beating her while she was on the ground, and that after she
got back on her feet and ran away, Darryl fired four shots at her, each of
which missed. Brewer reported that Darnell was driving a burgundy Nissan
5
I am less persuaded by Mr. Carver’s focus on the evidence of Joseph Kopera’s
fraud and the arrest warrants for Hodges Epps.
6
Maxima and provided the license plate number. Brewer also reported that
she knew why “Darnell” tried to shoot her: “Because she [Brewer] knew that
he had shot and killed a man named Damin [Barrett] on Old York Rd.” The
report states that the Nissan identified by Brewer was registered to a person
named Samantha and that attempts by the report’s author to locate this person
were unsuccessful.6
c. Handwritten police note. The note is undated, but it refers to the April 10
assault on Brewer. It also states “Rose Hill Terr. (walking down)[,]”
followed by “‘Big John,’ running his mouth, was supposed to testify
against.” It appears that this handwritten note reflects the same information
contained in Detective Brown’s memorandum described above.
d. Another handwritten police note. Also undated, this note states that
“Darnell” was Terry Green’s alibi witness and was the driver of the car
(presumably carrying McArthur and Terry Green when Barrett was killed),
“a white Hyundai (his car), not a white Ford,” which was traded in for a
“Burgundy Maxima.”
e. Note regarding telephone call between Brewer and ASA Sarah Reeder. This
note was discovered by Mr. Carver’s innocence counsel in 2017, who was
not permitted to keep a copy. At the innocence hearing, the court accepted
defense counsel’s proffer that the note reflected that Ms. Reeder had spoken
with Brewer in 1989, that Brewer disclosed Darnell Armstead’s last name
and phone number, and that she knew that Armstead had been the driver
when McArthur murdered Alston.
f. Discovery that Brewer’s attacker was Armstead. Mr. Carver’s innocence
counsel located “Darnell” and learned that his last name was Armstead. The
State did not dispute this connection or that Armstead was the driver of the
car when McArthur and Terry Green killed Alston.
Presumably, if she had been called at trial, Brewer’s testimony would have been
consistent with the documents described above.
2. Police note dated March 15, 15:15 hrs. This note appears to reflect the
following information provided to the police by Barrett’s sister, identified as “Ms.
6
It does not appear to be disputed that Darryl and Darnell are the same person.
7
Davenport”: “Bryant calls on phone on Old York near Rosehill”; “Gives messages to
people on street to relay to other people”; “By time of trial there will be no witnesses”;
“Say no witnesses.” In other words, McArthur was putting the word out that any witness
against him would be killed.
Presumably, Barrett’s sister would have been available at trial to testify about the
call described in this note.
3. Memorandum dated March 15, 1989, from Detective Richard L. James and
Detective David John Brown (Homicide Unit) to Captain John J. MacGillivary
(Commanding Officer, Crimes Against Person Section). The subject line of this
memorandum refers to the homicide shooting of John Wesley Green on March 14.
Referring to the January 1989 shooting of Mr. Green, the memorandum states:
Officer Plater stated that he talked to the victim after his release from the
hospital. John Greene stated to the Officer that he was approached by Bryant
McArthur who told him that he was “going to take him out.” McArthur also
called the victims house and stated that he would “bust him in the ass” the
first chance he got. It was soon after this interview by Officer Plater that the
Officer observed Greene wearing a bullet proof vest.
Category No. 2: Absence of Motive for
Mr. Carver to Conspire with McArthur to Kill Mr. Green
Rodney Webb testified at Mr. Carver’s innocence hearing. Webb was a second
cousin to Alston, who had witnessed McArthur’s murder of Barrett and was allegedly
murdered by McArthur. Webb was a friend of Mr. Carver. Both Mr. Carver and Alston
spent a lot of time at Webb’s house. Webb testified that Mr. Carver and Alston were close
friends and referred to each other as cousins. He further testified that there was a rivalry
between groups associated with Old York Road and McCabe Avenue. Webb was
8
associated with the Cator Avenue group, which, in turn, was associated with the Old York
Road group. Mr. Carver was associated with Old York and Cator. McArthur had lived on
McCabe Avenue. Mr. Carver’s co-defendant, Hodge, also lived on McCabe. This
evidence, if believed, would show that Mr. Carver would not have wanted to help
McArthur—a member of a rival group—get away with killing Alston.
PUTTING THE NEW EVIDENCE IN CONTEXT:
A LOOK AT THE TRIAL
Hodge and Mr. Carver were both charged with Mr. Green’s murder under separate
case captions, but the cases were consolidated for trial. On November 6, before the jury
selection started, the parties presented several preliminary motions, including a motion by
both defendants to suppress identification by Hodges Epps, Arlin Doles, and Carmelita
McIntosh. The statements made by the parties and the trial judge are important to this
analysis in two respects.
First, the discussion between counsel and the court reveals that the trial judge
continued to assume that the allegations contained in the State’s motion for protective order
were well-grounded and that Mr. Carver was somehow connected to McArthur’s
conspiracy to eliminate witnesses. This is important because it informed the trial judge’s
perspective of the alternate perpetrator defense Mr. Carver was trying to mount. That is,
if Mr. Carver was doing McArthur’s bidding when he shot and killed Mr. Green, as the
State apparently still believed, McArthur’s involvement was irrelevant to Mr. Carver’s
guilt or innocence. Seen in that light, one can understand why the trial judge would put
9
Mr. Ticknor on a short leash when he tried to lay the groundwork for the alternate
perpetrator defense.
The trial judge’s belief in the continuing need for the protective order is reflected in
several of his statements. At one point, when the State mentioned the name of a witness
subject to the protective order, the court questioned why the State revealed the name and
later said to Mr. Carver’s counsel, “Well, that witness is no longer under the protective
order because the State has stated her name in open court, and I hope that she remains alive
so that anybody who want[s] her for trial can have her.”
At another juncture, when attorneys for Mr. Carver and Hodge complained to the
trial judge that they were still prohibited from disclosing the names of the State’s witnesses
to their respective clients and that the protective order was impacting their ability to prepare
a defense, the judge said, “Any witness wind up dead, or potential witness, somebody is
going to have a big problem.” And in response to Hodge’s attorney’s request for disclosure
of the names of the State’s witnesses for the motion to suppress hearing that was to about
to commence, the court responded: “No, you can’t. I want the witness living. I assume
you do too. Let’s go.”
Another indication of the trial judge’s continued belief in the State’s motion for
protective order was when the State moved to preclude defense counsel from informing the
jury that the identities of the State’s witnesses were withheld until shortly before trial. The
trial judge responded that if defense counsel were to do that, “you [the prosecutor] can tell
[the jury] the reason for it was a protective order and you are afraid defendant is going to
kill them.” In other words, the trial judge continued to believe that Mr. Carver posed a
10
threat to any witness who could implicate McArthur. Notably, the State did not disabuse
the trial court of that notion, even though, except for the documents and information newly
discovered, the State had no admissible evidence connecting Mr. Carver to McArthur.
Second, although Mr. Ticknor had information about the January shooting of Mr.
Green and of McArthur’s threat and motive to kill Mr. Green, the preliminary motions
discussion reveals the limited way in which Mr. Ticknor could have reasonably expected
or hoped to use such information to benefit Mr. Carver. In that regard, the State moved to
preclude “mention of a conspiracy order by one Bryant McArthur.” The prosecutor
represented to the trial court: “I have no admissible evidence to that at trial.” Mr. Ticknor
proffered a theory consistent with the limited information he then had available: “Now,
[Mr. Green] had known Mr. Carver a long time. All I’m saying is he was shot by somebody
other than my client shortly before he was killed. I think I should be allowed to bring that
out for a defense.” The court denied the State’s motion, but that victory for the defense
was short-lived.
The State also moved to preclude mention of the January shooting of Mr. Green,
stating: “Your Honor, on my examination of the offense report of [the January shooting],
[Mr. Green] gave a description of his assailant. He knew Bryant McArthur at the time. He
did not offer the name of Bryant McCarthy [sic], so for counsel to suggest that it was Bryant
McArthur, is I believe to be speculating.” The court suggested that if defense counsel tried
to suggest McArthur was the January shooter, then the State could, in response, “whip out
the report, get the officer who took the report[,]” and show that the description of McArthur
did not match the description given by Mr. Green of his shooter.
11
At that point, Mr. Ticknor proffered a less ambitious use of the evidence pertaining
to the January shooting: “But if it’s limited to the fact John Green was shot, gave a
description, but that he knew Steven Carver and did not say it was Steven Carver, then we
don’t have Bryant McCarthy [sic] in the case at all.” In other words, Mr. Ticknor was
trying to show that because Mr. Green knew Mr. Carver, one could reasonably conclude
that had Mr. Carver been the shooter, Mr. Green would have identified Mr. Carver as such
or given a description that matched Mr. Carver. Thus, Mr. Ticknor’s argument went,
because Mr. Green did not identify Mr. Carver, one could conclude that Mr. Carver was
not the shooter.
Mr. Ticknor had good reason to tread carefully. Everything defense counsel knew
about the homicides of Barrett, Alston, and Mr. Green, as well as the January shooting of
Mr. Green, came from the allegations in the motion for protective order and Mr. Green’s
account of the January incident as reflected in the police reports, which, under the hearsay
rule, could not have been used to establish the truth of Mr. Green’s reported account. Thus,
as far as Mr. Ticknor and the trial judge were aware, Mr. Green—the victim—was the only
person who could have tied the three homicides together, described the January shooter,
and revealed McArthur’s phone call and threat to him. Thus, standing alone, the
information then available about the January shooting was of limited use to Mr. Ticknor
and, as will be seen, even that limited use was deemed irrelevant by the trial judge at trial.
The State, on the other hand, knew from witnesses with first-hand knowledge that:
(1) in the two weeks before Mr. Green was murdered, Armstead unsuccessfully solicited
Brewer, on McArthur’s behalf, to lead Mr. Green into an ambush near the same location
12
where he was ultimately killed; (2) Brewer was solicited because Mr. Green was “running
his mouth” that McArthur killed Barrett; (3) the day after Mr. Green was shot and killed,
McArthur made an ominous call to a pay phone at Old York Road, near the scene of Mr.
Green’s murder, to make it widely known that there would be no witnesses to testify that
he killed Barrett; (4) less than a month after Mr. Green was killed, Brewer was assaulted
and shot at by Armstead, who had driven the get-away car for McArthur and Terry Green
when they shot and killed Alston; and (5) Armstead tried to kill Brewer because she knew
that McArthur had killed Barrett. Such evidence does not, as the Majority holds, rest on
speculation and conjecture.
Once trial started, it did not take long for Mr. Ticknor to learn that, as it related to
the January shooting, the court was putting him on a short leash. The State’s first witness
was Officer Clyde Day, who provided no testimony linking Mr. Carver to the crime. On
cross-examination, Mr. Ticknor tried to elicit evidence about the January shooting of Mr.
Green, but he quickly ran into a buzzsaw. Mr. Ticknor established that Officer Day had
known Mr. Green for about a year and a half and that Mr. Green had been shot through the
neck in January. But when Mr. Ticknor asked Officer Day if Mr. Green had provided a
description of the shooter—which called for only a “yes” or “no” answer—the trial court
sustained the State’s relevance objection. When asked by the court where he was going
with that line of inquiry, Mr. Ticknor explained that he merely wanted to “show that [Mr.
Green] gave a description, but he did not indicate that he knew the person; description does
not match the facts, i.e. it was not Steven Carver that shot him.” The prosecutor countered:
“Your Honor, I don’t see how a shooting in January relates to a shooting in March unless
13
counsel is trying to suggest it was the same man that was after him, and we don’t have any
evidence to that. We have absolutely none.” The court sustained the objection because
Mr. Green’s description of the January shooter was hearsay, stating it “lacks reliability
because it can’t be cross-examined.” Later, the court further explained that the evidence
concerning the January shooting was irrelevant unless another person, not Mr. Carver, shot
Mr. Green in both January and March.
It warrants noting at this point that whether the trial court erred in its evidentiary
ruling is beside the point.7 When we assess the impact that the new evidence would have
had at trial, we should remain mindful that Mr. Ticknor was given no latitude to connect
the string of shootings and that any such connections would have had to be firmly grounded
in admissible evidence, not speculation. I return to this point later.
The State called Detective Richard James on November 9. Recall that Detective
James co-authored a memorandum one day after Mr. Green was killed, which was not
provided to the defense, in which he wrote:
Officer Plater stated that he talked to the victim after his release from the
hospital. John Greene stated to the Officer that he was approached by Bryant
McArthur who told him that he was “going to take him out.” McArthur also
called the victims house and stated that he would “bust him in the ass” the
7
In my view, the trial court did err. Whether Mr. Green offered a description of the
January shooter is a “yes” or “no” question that would not have revealed an out-of-court
statement offered for its truth. Similarly, if the officer had limited his testimony to the fact
that Mr. Green did not identify Mr. Carver as the shooter and did not offer a description of
the shooter who resembled Mr. Carver, that too would not have been evidence of an out-
of-court statement offered for its truth. In other words, the fact that the investigating officer
heard Mr. Green offer a description that did not match that of Mr. Carver would have
independent relevance tending to show, to any investigator determined to uncover the truth,
that Mr. Carver may not have been the January shooter. See Holmes v. South Carolina,
547 U.S. 319, 327 (2006).
14
first chance he got. It was soon after this interview by Officer Plater that the
Officer observed Greene wearing a bullet proof vest.
In sum, this memorandum recounts statements made by Mr. Green to Officer Plater
about the January shooting, who, in turn, shared them in some fashion with Detective
James. Thus, even though Mr. Ticknor could not prove, through the testimony of either
Officer Plater or Detective James, the truth of the information provided by Mr. Green to
Officer Plater, this memorandum definitively reflects that Detective James had a basis to
believe that McArthur was involved in both the January and March shootings of Mr. Green.
It also shows that Detective James had a basis to consider the possibility of other suspects
in the murder of Mr. Green. With that in mind, let’s turn to Detective James’s testimony.
When Mr. Ticknor cross-examined Detective James on November 9, the court
sustained the State’s objection when Mr. Ticknor asked: “Did you investigate to see if the
person who shot him in January 1989 is the person who shot him in March of 1989?” Mr.
Ticknor tried to come back to that point when his cross-examination resumed on November
13. Mr. Ticknor first elicited a confirmation from Detective James that he was the
“supervising detective in this case” and that he had “all the reports, all the information
before [him] in that file” at the time of his testimony. Mr. Ticknor then asked Detective
James if he had investigated any suspects other than Mr. Carver and Hodge. Detective
James responded that he “had no reason to” because he “had a positive identification that
evening” of Mr. Carver.
Consider how the new evidence would have likely impacted Detective James’s
testimony. As discussed above, in connection with the investigation into the March
15
homicide, Detective James wrote a memorandum about the January shooting. Clearly, the
detective believed the two incidents were connected, and, had the court been made aware
of that, it is reasonable to assume that the court would have seen the relevance of the
January shooting and allowed Mr. Ticknor some latitude to explore the thoroughness of
the investigation into a possible connection. Without that information, Mr. Ticknor was
stymied.8
Assuming Detective James was the supervising detective in Mr. Carver’s case as he
testified, he undoubtedly would have been aware of his own memorandum as well as the
other newly discovered documents discussed above. That means that, when he testified,
Detective James had to have known about Brewer. Detective James had to have assumed
that Brewer would have testified that she had been solicited by Armstead, on McArthur’s
behalf, to facilitate a hit on Mr. Green less than two weeks before his murder. Detective
James also had to have known that, on the day after Mr. Green’s murder, McArthur made
a call to a telephone on Old York Road to put the word out that there would be no witnesses
to testify against him. And he had to have known that Brewer was assaulted and nearly
killed on April 10 by Armstead for having knowledge of McArthur’s complicity in the
murders of Barrett and Alston. Thus, in assessing how the new evidence would have
impacted the trial, it seems obvious that, at a minimum, the undisclosed memorandum
8
The circuit court held that defense counsel knew McArthur “wanted the victim
dead” and therefore “could have pursued this ‘McArthur’ strategy if he wished.” In my
view, this was clearly erroneous. The circuit court did not explain how, under any realistic
assessment of what actually transpired at trial, Mr. Ticknor could have made any headway
on that theory without the new evidence. He had no admissible evidence to support the
theory, and Detective James flat-out denied any basis to suspect anyone else.
16
authored by Detective James and the other newly discovered documents would have
provided ammunition for Mr. Ticknor to have impeached the detective’s credibility and
demonstrated that the investigation into the crime was myopic and not sufficiently
thorough.
More importantly, it seems less obvious, but is nonetheless probably true, that had
the documents been disclosed, Detective James would likely not have testified as he did.
That is, had Detective James known that defense counsel was armed with the contents of
his file, Detective James would have had to acknowledge a basis for considering other
suspects and would never have opened himself up to such impeachment.
Indeed, had the documents been disclosed, the State would have had to assume that
Brewer and Barrett’s sister would testify about: (1) the solicitation of Brewer to assist in
the execution of Mr. Green in early March, less than two weeks before he was murdered;
(2) the ominous call the day after Mr. Green was killed to put the word out that there would
be no witnesses;9 and (3) the attempt made on Brewer’s life on McArthur’s behalf. These
events, and the details that these witnesses would have provided about these events, would
have tied together the murders of Barrett, Alston, and Mr. Green, and would have
connected all three murders to McArthur. All of that evidence pointed to why Mr. Green
was murdered in broad daylight on a busy street: to intimidate anybody who would dare
bear witness against McArthur. Such evidence would have provided a cogent alternate
9
The circuit court made no mention of this call, let alone its import.
17
perpetrator defense based not on speculation (as the Majority incorrectly concludes), but
facts. See Holmes, 547 U.S. at 327.
Thus, if the defense had had the newly discovered evidence, as a matter of trial
strategy, the State would have been forced to grapple with the issue of Mr. Carver’s
connection to McArthur, or lack thereof, as well as the issue of Mr. Carver’s motive, or
lack thereof. In other words, the State would have had to assume that once the jury
understood the connection between the three murders, the unsuccessful attempt to kill Mr.
Green, and McArthur’s actions to eliminate witnesses, the jury would have expected the
State to show why Mr. Carver would help McArthur by murdering Mr. Green in broad
daylight. And the absence of such evidence could certainly have been enough to create
reasonable doubt.
That’s where Mr. Carver’s close relationship with Alston would have come into
play. That evidence could have persuaded one or more jurors that Mr. Carver would never
have joined a conspiracy to help McArthur get away with Alston’s murder. So too the
evidence that Mr. Carver and McArthur were associated with rival groups. Thus, when
paired with the evidence that Mr. Carver would have had no motive to help McArthur
eliminate witnesses to the Barrett murder, the undisclosed documents and related testimony
undeniably tends to exculpate Mr. Carver.10
10
Quoting Jones v. State, 310 Md. 569, 586-87 (1987), the circuit court viewed the
newly discovered evidence as merely showing that another person may have paid Mr.
Carver to kill Mr. Green, saying it was “hardly exculpatory.” This view reflects an error
of law, as reflected in the Majority’s answer to the first question. That is, the circuit court
took a myopic view of the newly discovered evidence and failed to consider how that
18
APPLYING THE CORRECT STANDARD
As an initial matter, the Majority correctly describes the legal standard under which
we review actual innocence claims. Newly discovered evidence must, among other things,
raise a “substantial or significant possibility” that, had the jury received such evidence, its
verdict would have been different. Maj. slip op. at 16. A “substantial or significant
possibility” is less stringent—i.e., a lower bar—than “probable.” Maj. slip op. at 15-16.
The materiality analysis is “identical” to materiality claims under Brady v.
Maryland, 373 U.S. 83 (1963), and ineffective assistance of counsel claims under
Strickland v. Washington, 466 U.S. 668 (1984): whether the newly discovered evidence
“could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). The materiality of
the newly discovered evidence must be examined in light of its cumulative effect “within
the context of the entire adversarial proceeding.” Maj. slip op. at 18 (citing Faulkner v.
State, 468 Md. 418, 469 n.24 (2020)). Accordingly, “newly discovered evidence can
logically and reasonably lead to other evidence, not necessarily new, which would then
take on new dimensions and importance.” Maj. slip op. at 18 (citing Faulkner, 468 Md. at
469 n.24). On these basic points, the Majority gets it right.
The Majority goes astray applying these principles and, in doing so, unwittingly
raises the bar for petitioners such as Mr. Carver. The Supreme Court, in Kyles v. Whitley,
evidence would have interacted with the other evidence that would have been available and
relevant in light of the new evidence—that Mr. Carver would not have taken sides with
McArthur and helped him get away with killing Alston, whom Mr. Carver considered a
“cousin.”
19
made clear that a petitioner need not show by a preponderance of the evidence that the
availability of the suppressed (or, here, newly discovered) evidence would have resulted in
an acquittal, either by creating reasonable doubt or by providing an explanation for the
crime that does not inculpate the petitioner. 514 U.S. at 434. Put differently, a petitioner
is not required to show that the newly discovered evidence proves his innocence.
In Bloodsworth v. State, 307 Md. 164 (1986), which involved a Brady claim, even
though undisclosed evidence of an alternate perpetrator did not prove the petitioner was
innocent, we nonetheless held that it undermined confidence in the verdict and therefore,
ordered a new trial. Bloodsworth was convicted of raping and murdering a young girl. Id.
at 166-67. Two boys saw Bloodsworth walk off into the woods with the victim, and a
nearby resident saw the victim with the petitioner around the time of the murder. Id. at
167-68. When interviewed by police later, Bloodsworth referenced a bloody rock found
at the crime scene that was not known to the public. Id. at 169. One witness said
Bloodsworth mentioned the girl, the girl’s clothes, and the bloody rock. Id. at 169-70.
Another witness said Bloodsworth told her that he did something bad, was afraid his wife
would not take him back, and hoped to be admitted to the state hospital. Id. at 170.
In discovery, the prosecution provided limited information concerning another man
named Gray. Id. at 171. Gray was discovered wandering in the woods near the crime
shortly before the body was found, carrying a billy club. Id. He also directed the victim’s
father to her underwear, which was hanging by a tree branch in the woods. Id. Police
found another pair of women’s underwear in Gray’s car. Id.20
The State failed to disclose a detective’s confidential report suggesting that Gray
was withholding information from police and contending that he therefore should not be
overlooked as a suspect. Id. at 172. At the petitioner’s hearing for a new trial, the police
detective—who had discovered the victim’s body—testified that he had found Gray in the
woods very dirty, except for his clean hands and a blood-like spot on his shirt. Id. at 173.
Gray appeared nervous and vomited when police searched his car. Id. The underwear
found in Gray’s car was that of a small girl, and Gray exhibited detailed knowledge of the
victim’s possessions. Id. Gray had a prior conviction for indecent exposure and also failed
a polygraph examination in connection with the case. Id.Importantly, the undisclosed evidence pointing to Gray did not prove Bloodsworth
was innocent: it neither contradicted any of the evidence of Bloodsworth’s culpability nor
ruled out the possibility that Bloodsworth and Gray acted in concert.11 Nonetheless, we
deemed the undisclosed evidence material. Id. at 175-76. Under the Majority’s approach
today, however, Bloodsworth would not have been awarded a new trial because the
undisclosed evidence of an alternate perpetrator did not, using the Majority’s formulation,
“undermine the factual basis of the conviction,” Maj. slip op. at 31, by disproving the
allegedly incriminating facts.
The Majority contrasts this case with Faulkner but overstates its significance. Maj.
slip op. at 21-23. In Faulkner, petitioners Faulkner and Smith had been convicted of
murder and burglary. 468 Md. at 426. Newly discovered evidence that handprints on the
11
Indeed, one of Bloodsworth’s statements suggested that he had some type of
encounter with or relationship to Gray. Bloodsworth, 307 Md. at 169-70.
21
open window of the victim’s home belonged to a man named Brooks, and that another man
named Thomas had confessed to committing the crime with Brooks, presented
“compelling” evidence of an alternate perpetrator. Id. at 467-69.
Though the alternate perpetrator evidence in Faulkner was “compelling”—
admittedly even more so than the newly discovered evidence here—we never said such
evidence must prove a petitioner’s innocence. Id. at 468-69. To the contrary, we expressly
rejected requiring a petitioner to prove the existence of an alternate perpetrator. Id. at 467
(acknowledging that “the circuit court applied an erroneous standard” by requiring the
petitioner to prove “beyond a reasonable doubt that [the alternate perpetrators] committed
the crimes”).
The Majority also erred in requiring Carver show that the newly discovered
evidence rendered the State’s evidence insufficient to convict him.12 Maj. slip. op. at 23-
24 (“A reasonable jury could believe the following two facts and still convict Petitioner:
(1) Mr. McArthur plotted Mr. Green’s death; and (2) Petitioner and Mr. Hodge happened
to kill Mr. Green first.”); and 31 (“A reasonable jury can accept Mr. McArthur’s plot
existed, while convicting Petitioner based on the consistent eyewitness testimony presented
at trial.”). To be sure, even with the new evidence, there may have been enough evidence
to convict Mr. Carver based on the eyewitness testimony of McIntosh, Epps, and Doles.
But that’s beside the point. In Kyles, the Supreme Court held that a petitioner is not
required to show that the newly discovered evidence “would have left the State with too
12
The circuit court also improperly demanded the same of Carver. (“[T]he evidence
against the Petitioner was very substantial.”).
22
little inculpatory evidence to convict.” Ware v. State, 348 Md. 19, 47 (1997) (citing Kyles,
514 U.S. at 434-35). The new evidence need only put the case in a “different light” for the
jury. Kyles, 514 U.S. at 435.
Our decision in Ware v. State is instructive. There, we held that evidence that a
State’s witness hoped to be rewarded for his testimony with a modified sentence was
material, notwithstanding the “overwhelming” evidence against the petitioner. 384 Md. at
35, 54.
Ware was convicted of fatally shooting his fiancée Gentry and non-fatally shooting
her friend Allen at Gentry’s house. Id. at 25. Anderson, who was incarcerated, testified
that he was on the phone with Allen—who was at Gentry’s home—at the time of the
shootings. Id. at 26-27. According to Anderson, Allen said Ware and Gentry had been
fighting, and when Allen set the phone down to check on Gentry, Anderson heard two
gunshots, a pause, and a third gunshot. Id. The State successfully used the pause between
gunshots to prove Ware killed with premeditation. Id. at 52. Though other witnesses could
testify that they saw Ware in the Gentry home around the time of the shootings, Anderson
was the only sensory witness and the only one whose testimony identified Ware as the
shooter. Id.
After Ware’s conviction, defense counsel learned that the State had failed to disclose
Anderson’s efforts to secure a sentence modification for testifying against Ware. Id. at 34-
35. Moreover, the State had withheld transcription of the hearing on Anderson’s motion
for reconsideration where he had testified to hearing only two—not three—gunshots. Id.
at 49. We held that the suppressed evidence was sufficiently material to undermine the
23
verdict, reasoning that the jury may have otherwise partially or entirely discredited
Anderson’s testimony and found Ware not guilty or guilty of a lesser crime. Id. at 52-53.
In Ware, like here, the State lacked conclusive forensic evidence linking the
defendant to the crime and thus relied on witness testimony placing Ware at the scene. The
evidence against Ware, however, was arguably stronger than that against Mr. Carver:
multiple witnesses said Ware and Gentry had been fighting and that Gentry seemed scared
shortly before the shootings, id. at 25-26; Gentry’s brother said that, a few hours before the
shootings, Ware had pointed a gun at him after he had beaten and thrown Ware out of the
house for mistreating Gentry, id.; and other witnesses saw Ware near the Gentry home
carrying a long, dark object, id. Moreover, unlike Mr. Carver, Ware did not provide any
evidence suggesting an alternate perpetrator.
The trial court, in denying Ware’s motion for a new trial, described the State’s
evidence as “overwhelming.” Id. at 35. Yet, despite such strong evidence, we still held
that the undisclosed evidence of Anderson’s deal-making with the State and inconsistent
statement at his sentence modification hearing sufficiently undermined our confidence in
the verdict to warrant a new trial. Id. at 52-55.
In assessing the impact of the new evidence, we should also remain mindful that
eyewitness testimony is inherently unreliable. See Bomas v. State, 412 Md. 392, 422-23
(2010). In Bomas, we highlighted the fact that empirical psychological research has
demonstrated the unreliability of eyewitness identification. Id. (citing Richard S.
Schmechel, Timothy P. O’Toole, Catharine Easterly, and Elizabeth F. Loftus, Beyond the
Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 JURIMETRICS
24
177, 184 (2006)). Quoting from United States v. Wade, we acknowledged that “[t]he
vagaries of eyewitness identification are well-known; the annals of criminal law are rife
with instances of mistaken identification,” 388 U.S. 218, 228 (1967), and also concluded
that “we are sensitive to the perils of such testimony.” Bomas, 412 Md. at 423. Here,
however, sensitivity to the unreliability of eyewitness testimony is not reflected in the
Majority’s analysis. Clearly, the newly discovered evidence would have put the inherently
unreliable eyewitness testimony in a new light.
Here, only one eyewitness (Epps) testified that he saw Mr. Carver shoot Mr. Green.
Another eyewitness (Doles) testified that although Mr. Carver was at the shooting, he did
not see Mr. Carver shoot Mr. Green. And the third eyewitness (McIntosh) could not only
not identify Mr. Carver, but she witnessed the incident while driving with the radio on,
lost, and having just swerved to avoid hitting a child crossing the street.
All three eyewitnesses were subjected to vigorous cross-examination that
highlighted some inconsistencies with their respective accounts as well as with the
coroner’s objective findings. If the jury had had the benefit of all of the evidence, we
should at least acknowledge the likelihood that jurors could have viewed the eyewitness
testimony in a new light.
One final point. Mr. Carver is not advancing a speculative theory here. It was the
State, in its motion for protective order, that alleged the connection between the three
murders and McArthur’s complicity in same. Those allegations, backed with no supporting
evidence, were accepted by the trial court, and on that basis the State’s witnesses were
withheld from the defense until days before trial. Thus, far from being speculative, as the
25
Majority holds, the testimony of Brewer and Barrett’s sister would have directly supported
the theory advanced by the State at the inception of this case. Crediting the State with good
faith in positing such a theory, surely a jury equipped with the newly discovered evidence
would have taken it seriously.
Thus, for the foregoing reasons, I respectfully dissent.
26
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/14a22cn.pdf