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IN THE
COURT OF SPECIAL
APPEALS
OF MARYLAND
SEPTEMBER
TERM,
2000
NO.
923
ADNAN
SYED,
Appellant
V.
STATE OF MARYLAND,
Appellee
FEB 8 7 ZOOZ
BYGOUBTOFSPFCIAL_P_.ALB
APPEAL
FROM
THE CIRCUIT
COURT
FOR BALTIMORE
CITY
(HONORABLE
WANDA KEYES HEARD,
PRESIDING)
BRIEF OF APPELLANT
"
WARREN
A. BROWN
WARREN
A. BROWN,
P.A.
1200 Court
Square Building
200 East Lexington
Street
Baltimore,
Maryland
21202
(410) 576-3900
Lisa J. Sansone,
Esquire
Law Office
of Lisa J. Sansone
1002 Frederick
Road
Baltimore,
Maryland
21228
(410) 719-0221
Attorneys
for Appellant
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TABLE OFCONTENTS
P_
TABLE
OF AUTHORITIES
...........................................
ii
STATEMENT
OF THE CASE
.........................................
1
QUESTIONS
PRESENTED
..........................................
2
STATEMENT
OF FACTS
............................................
3
ARGUMENT
......................................................
17
A. THE STATE COMMITTED
PROSECUTORIAL
MISCONDUCT,
VIOLATED
BRADY AND VIOLATED
APPELLANT'S
DUE PROCESS
RIGHTS WHEN
IT SUPPRESSED
FAVORABLE
MATERIAL
EVIDENCE
OF
AN ORAL SIDE AGREEMENT
WITH ITS KEY WITNESS,
AND WHEN
IT
INTRODUCED
FALSE AND MISLEADING
EVIDENCE,
AND THE TRIAL
COURT
COMMITTED
REVERSIBLE
ERROR
IN PROHIBITING
APPELLANT
FROM PRESENTING
THIS EVIDENCE
TO THE JURY
.............
17
1. The State suppressed
favorable
material
evidence
and introduced
and
elicited
false and misleading
testimony
relating
to the plea agreement
with
its key witness
in violation
of Brad2t ..........................
18
2. The State's
actions
constituted
prosecutorial
misconduct
.......
41
3. The
trial court
committed
reversible
error
in prohibiting
Appellant
from
calling Benaroya
and recalling Wilds
as a witness
..............
43
4. The
trial court
committed
reversible
error
in restricting
the cross-
examination
of Wilds
......................................
44
5. The trial court
committed
reversible
error
in denying Appellant's
motion
to strike
the testimony
of Wilds
..............................
47
6. The trial court
committed
reversible'error
in precluding
Appellant
from
calling Ms. Julian
as a witness
...............................
48
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7. The trial
court
committed
reversible
error
in denying Appellant's
motion
to disclose
documents
and information
from the State ............
49
8. The trial
court
committed
reversible
error
in denying Appellant's
motion
to question Mr. Urick out of the presence
of the jury .............
50
B. THE TRIAL COURT
ERRED
IN ADMITTING
HEARSAY
IN THE FORM
OF A LETTER
FROM THE VICTIM TO APPELLANT,
WHICH
IS HIGHLY
PREJUDICIAL
.................................................
51
C. THE TRIAL COURT
ERRED
IN PERMITTING
THE INTRODUCTION
OF
THE VICTIM'S
62-PAGE
DIARY, WHICH CONSTITUTED
IRRELEVANT
HIGHLY
PREJUDICIAL
HEARSAY
..............................
55
CONCLUSION
.....................................................
63
CERTIFICATE
OF SERVICE
..........................................
64
PERTINENT
AUTHORITIES
.........................................
65
APPENDIX
........................................................
75
TABLE
OF AUTHORITIES
Cases
Arizona
v. Youngblood,
488 U.S. 51,109
S.Ct.
333 (1988)
.......
41
Banks
v. State,
92 Md. App. 422, 438, 608 A.2d 1249 (1992)
....
51, 54, 55, 58, 59,
61
Brady v. Maryland,
373 U.S. 83, 83 S.Ct.
1194
(1963)
..........
18
Buckeye
Powder
CO. v. DuPont
Powder
C.o..,.,248 U.S. 55,
39 S.Ct.
38 (1918)
..................................
60
Case v. State., 118 Md. App, 279, 702 A.2d 777 (1997)
..........
61
Clark v. State., 364 Md. 611,774
A.2d
1136 (2001)
.............
18, 41
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II
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Cluster
v.. Cole,
21 Md. App. 242, 319 A.2d 320
(1974)
.........
63
--
Commonwealth
v. DelValle,
351 Mass.
489,
221 N.E.2d
922
(1966)
..............................
60
Commonwealth
v. Gilday,
382 Mass.
166, 415 N.E.2d
797 (1980)
.
37
Commonwealth
v. Hill, 432 Mass.
704, 739 N.E.2d
670 (2000)
...
37
Conyers
v. State,
__ Md. ____, __ A.2d __
(No. 26. Sept. Term 2001)
(filed February
5, 2002)
........
18, 30, 31, 33-37,
..................................................
39, 40, 47, 48, 49
Davis
v. Alaska,
415 U.S. 308,
94 S.Ct.
1105
(1974)
..........
45
Delaware
v. Van Arsdall,
475 U.S. 673,
106 S.Ct.
1431 (1986)
...
45
E.I. du Pont de Nemours
& CO. v. Forma-Pack,
Inc.,
351 Md. 396,
718 A.2d 1129 (1998)
...............................
47, 49, 50
Fontaine
v. State., 134 Md. App. 275, 759 A.2d
1136,
cert.
_denied, 362 Md. 188
(2000)
.....................
18
Marshall
v. State,
346 Md. 186, 695 A.2d
184 (1997)
...........
44, 46-49,
51
Martin
v. State,
__ Ala. Crim App. ___,
2001 Ala. Crim. App. Lexis 298, 21 (2001)
...............
32
McNeil
v. State,
112 Md. App. 434, 685 A.2d 83.9 (1996)
.......
41
Moosavi
v. State,
355 Md. 651,736
A.2d 285 (1999)
...........
63
Moye v. State,
139 Md. App. 538, 776 A.2d
120,
cert.
granted,
366 Md. 274
(2001)
......................
63
Napue
v. People
of Ill., 360 U.S. 264, 79 S.Ct.
1173 (1959)
.......
32, 36, 37
Richardson
v. State 324 Md. 611,598
A.2d 180 (1991)
..........
62
Simmons
v. State,
333 Md. 547, 636 A.2d 463,
o,.
111
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cert. denied,
513 U.S. 815, 115 S.Ct.
70 (1994)
...........
45
State v. Cox., 298 Md. 173,468
A.2d 319
(1983)
...............
45
Taliaferro
v, State,
295 Md. 376, 456 A.2d 29,
cert.
denied,
461 U.S. 948,
103 S.Ct. 2114
(1983)
.........
47, 48
Trupp
v. Wolff,
24 Md. App. 588, 335 A.2d
178,
cert.
denied,
275 Md. 757
(1975)
......................
50
United
States v. Bagley,
473 U.S. 667, 105 S.Ct. 3375
(1985)
....
32
United
States v. Brown.,
490 F.2d 758, 763 n. 10 (D.C.Cir.
1973)
..
60
United
States v. Day, 591 F.2d 861 (D.C.Cir.1978)
.............
60
United
States v. Lovasco,
431 U.S. 783,
97 S.Ct. 2044
(1977)
...
41
United
States v. Marion,
404 U.S. 307, 92 S.Ct. 455 (1971)
......
41
University_
of Maryland
Medical
Systems Corp. v. Malory,
__ Md. App. ___, __
A.2d __
(No.
1883, Sept. Term,
2000)
(Filed Oct. 31, 2001)
(2001 WL 1335643)
...............
47, 48
Wilson
v. State,
363 Md. 333,768
A.2d 675 (200_)
. ...........
31, 33-38,
40
Maryland
Rule 4-242
Maryland
Rule 5-401
Maryland
Rule 5-801
Maryland
Rule 5-802
Maryland
Rule 5-803
Statutes,
Rules, Constitutional
Provisions
.....................................
24, 42
.....................................
61
.....................................
53
.....................................
53
.....................................
54,55,61,62
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Maryland
Rule 8-131
.............................
_ .......
63
Maryland
Rule 8-504
.....................................
63
U.S. Const.
Amend.
VI
....................................
44, 46
U.S. Const.
Amend. XIV
.........................
-..........
40
Article
21, Md. Decl. Rights
................................
44, 46
Article
24, Md. Decl. Rights
................................
40
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IN THE
-
COURT OF SPECIAL
APPEALS
OF MARYLAND
SEPTEMBER
TERM,
2000
NO.
923
ADNAN
SYED,
Appellant
V.
STATE OF MARYLAND,
Appellee
APPEAL
FROM
THE CIRCUIT
COURT
FOR BALTIMORE
CITY
(HONORABLE
WANDA KEYES HEARD,
PRESIDING)
BRIEF OF APPELLANT
I. STATEMENT
OF THE CASE
On February
25, 2000, Appellant
was convicted
by a jury
in Baltimore
City,
the
Honorable
Wanda
Keyes Heard presiding,
of the following
offenses:
first degree murder,
robbery,
kidnapping
and false
imprisonment.
I
On June 6, 2000,
Judge Heard
sentenced
Appellant
as follows:
life imprisonment
for first degree murder;
30 years
imprisonment
for
kidnapping,
consecutive
to the life sentence;
10 years
imprisonment
for robbery
concurrent
to 30 years
for kidnapping
and consecutive
to the life
imprisonment
sentence;
and the trial
court merged
the false
imprisonment
with
the kidnapping
count.
IA first trial ended
in a mistrial
on December
15, 1999 after
the jury overheard
a
different
trial judge
at a bench
conference
refer
to defense
counsel
as a "liar."
(12/15/99-
253)
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II.
QUESTIONS
PRESENTED
A. Whether
the State Committed
Prosecutorial
Misconduct,
Violated
Br_Lo__d
and Violated
Appellant's
Due Process
Rights When
it Suppressed
Favorable
Material
Evidence
of an Oral Side Agreement
with its Key Witness,
and When
it Introduced
False and Misleading
Evidence,
and the Trial Court Committed
Reversible
Error
In Prohibiting
Appellant
from Presenting
this Evidence
to the
Jury?
1. Whether
the State
suppressed
favorable
material
evidence
and
introduced
and elicited
false
and misleading
testimony
relating
to the plea
agreement
with
its key witness
in violation
of Brads,?
2. Whether
the State's
actions
constituted
prosecutorial
misconduct?
3. Whether
the trial
court
committed
reversible
error
in prohibiting
Appellant
from calling Benaroya
and recalling Wilds
as a witness?
4. Whether
the trial court
committed
reversible
error
in restricting
the
cross-examination
of Wilds?
5. Whether
the
trial
court
committed
reversible
error
in denying
Appellant's
motion
to strike
the testimony
of Wilds?
6. Whether
the trial
court
committed
reversible
error
in precluding
Appellant
from calling Ms. Julian
as a witness?
7.
Whether
the
trial
court
committed
reversible
error
in denying
Appellant's
motion
to disclose
documents
and information
from the State?
8.
Whether
the
trial
court
committed
reversible
error
in denying
Appellant's
motion
to question Mr. Urick out of the presence
of the jury?
B. Whether
the Trial Court Erred
in Admitting Hearsay
in the Form of a Letter
from the Victim
to Appellant,
Which
Is Highly
Prejudicial?
C. Whether
the Trial Court Erred
in Permitting
the
Introduction
of the
Victim's
62-page
Diary, Which
Constituted
Irrelevant
Highly
Prejudicial
Hearsay?
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IIL
STATEMENT
OF FACTS
Appellant
was convicted
of killing his close friend and former girlfriend
Hae Min Lee
on or about
January
13, 1999.
Appellant
and Hae were
seniors
at Woodlawn
High School
in Baltimore
County,
They were both in the gifted and talented
program
there
and had both
been accepted
to colleges.
(1/28/00-238)
2 At trial,
there was considerable
testimony
relating
2References
to the Transcript
are as follows:
Date
Proceedings
7/9/99
7/23/99
12/15/99
1/21/00
1/24/00
1/27/00
1/28/00
1/31/00
2/1/00
2/2/00
2/3/00
2/4/00
2/8/00
2/9/00
2/10/00
2/11/00
2/14/00
2/15/00
2/16/00
2/17/00
2/21/00
2/22/00
2/23/00
2/24/00
2/25/00
Motion To Disqualify
Defense
Counsel
Prior
to First Trial
Ruling on Motion
to Disqualify
Defense
Counsel
First Trial
- Mistrial
Motions,
Voir Dire Second Trial
Trial on the Merits,
Second Trial
¢.c
CG
¢¢
4_
¢¢
¢¢
¢4
¢4
¢6
44
°°and Verdict
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to the religious
differences
between Hae and Appellant,
and the difficulties
posed by these
differences
in dating
each other.
Appellant
is a Muslim,
and dating
is forbidden.
Hae was
a Christian,
and ultimately,
their
religious
differences
led the pair
to end their
relationship.
(1/28/00-141)
Friends
testified
that both Hae and Appellant were sad about
the breakup,
but
not bitter or angry.
(1/28/00-224)
Yaser All, Appellant's
best
friend,
testified
that Appellant
told him that
the relationship
was over because
it was too hard to hide
it from his family,
and
that
the breakup was a mutual
decision.
(2/3/00-88)
Ali also testified
that Appellant
wanted
to remain
friends with Hae after
the break up, and that Appellant
had interests
in other girls
as of December,
1998.
(2/3/00-117-123)
At the beginning
of January,
1999, Hae began
dating Don Cliendienst,
whom she met while working
part
time at Lens Crafters.
(1/28/00-
64-69)
Hae was last seen alive on January
13, 1999 at school
around
2:30 p.m. Her family
filed a missing
persons
report when she failed to pick up her cousin at school
as she regularly
did.
(1/13/00-5)
She was supposed
to pick up her 6 year-old
cousin
at 3:00 or 3:15 p.m.
that
day.
(1/28/00-25)
Inez Butler Hendricks,
a teacher
and athletic
trainer
at Woodlawn
High
School
and Hae's
friend,
testified
that she saw Hae at 2:15-2:30
p.m. on January
13. Hae
told her she was in a hurry
to pick up her cousin
from school,
but that
it was not far and she
would
be back soon.
Hendricks
told her to hurry because Hae had to be back by 5:00 p.m.
to ride the wrestling
team bus to an away match
for which Hae was
to keep score.
(2/4/00-
6/6/00
Sentencing
and Motion
for New Trial
4
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t9-20)
When Hae did not
return
by 5:00 p.m., Hendricks
took Hae's
place
as scorer.
,
(2/4/00-21)
She testified
that Appellant
was on the track
team,
and practice
begins
by 3:30
p.m.
(2/4/00-17)
Appellant
was questioned
by police on January
25, 1999 about Hae's
disappearance.
He
told
the police
that he and Hae used
to date.
He said
that
on January
13, 1999,
a
Wednesday,
he had class with Hae from 12:50 to 2:15 p.m. Appellant
said he went
to track
practice
that
afternoon.
He did not see Hae
the next
two days at school,
Thursday
and
Friday,
because
the school was closed
for
inclement
weather.
(1/31/00-25)
Hae's
body was found
in Leakin
Park on February
9, 1999 by a man named Alonso
Sellers.
(1/31/00'-27)
He testified
that he saw the body
in Leakin
Park when he went
to find
a private
spot
to urinate.
Unbeknownst
to the jury, Alonso
Sellers
had been
previously
convicted
of indecent
exposure.
Sellers
testified
that he left his house
and was driving
to
work when he had to pull his car over to urinate
in the park. The park was only a few blocks
away from his house.
(2/23/00-9)
The body was 127 feet from the road and was difficult
to
see.
(1/31/00-101)
The body was not even visible
to Dr. Rodriguez,
a member
of the
recovery
team who went to exhume
the body.
(1/28/00-182)
Dr. Rodriguez
testified
that the
body was well hidden,
and the average
person would
not be able to see it.
(1/28/00-182)
The Medical
Examiner
testified
that Hae had been strangled,
but was unabIe
to testify
as to when
she had been killed.
(2/2/00-66)
Hairs
found on Hae's
body were compared
to
Appellant
and did not match Appellant's
hair.
(2/1/00-116)
Those
hairs were
not compared
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to anyone
else.
(2/1/00-116)
Fibers
found
on Hae's
.body were
compared
to. fibers
from
Appellant's
clothing,
and no match was made.
(2/1/O0-123)Likewise,
Appellant'
s clothing
was
examined
and compared
to fibers
from Hae's
clothing,
and no match
was
found.
(2/1/00-123
) Appellant'
s coat was examined
and nothing
of evidentiary
value was found.
(2/1/00-165)
Soil from Appellant's
boots which were
seized
from his house were
compared
to soil
samples
from the burial
site and no match was found.
(2/1/00-165)
Appellant
was
ruled out from having
been
the source
of a stain on a shirt
in Hae's
car. (2/2/00-28)
Don Cliendinst
testified
that he dated Hae after
she and Appellant
broke
up, from
January
1, 1999 until her disappearance
on January
13, 1999.
(2/1/00-71)
On one occasion
between
January
1 and 13, he saw Appellant
at the Lens Crafter
store where
both Don and
Hae worked.
Appellant
came out to the store to inspect Hae's
car because
it was not running
properly.
Both Don and Appellant
concluded
that the car was not safe for Hae to drive home.
Don
said
that Appellant,
who knew Hae and Don were
dating,
was not hostile
to him.
Appellant
drove Hae home
that night.
(2/1/00-76-86)
Appellant's
fingerprints
were
found
in Hae's
car after
she disappeared.
Appellant
admitted
he had been
in Hae's
car before
on
numerous
occasions.
(2/1/00-39)
Inez Butler Hendricks
testified
that after Hae's
body was
found, Appellant
told her
that his last memories
of Hae were not good,
that
they had a fight
about Hae going
to the prom with Appellant.
(2/4/00-26)
Jay Wilds was
the chief prosecution
witness,
who testified
as follows.
He was one
k.
grade
older
than Hae
and Appellant.
Wilds
dated
Stephanie
McPherson,
who was
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Appellant's
close
friend.
(2/4/00-115)
Wilds said Appellant
was an acquaintance
of his, and
he gave Wilds
a ride
in his car one time.
Even
though Appellant
was
the prom king and
Stephanie
was
the prom queen, Wilds
said he was not jealous
of Appellant's
relationship
with Stephanie.
(2/14/00-66)
On January
12, 1999, which was Wilds'
birthday,
Appellant
called
him at 10:00 p.m.
He asked Wilds what
he was doing
the next
day. Wilds
said
"nothing,"
and that was the end of the conversation.
(2/4/00-119)
The next morning,
January
13, 1999, which happened
to be Stephanie's
birthday,
Appellant
called Wilds
at 10:45 a.m.
Wilds
told Appellant
he needed
to go to the mall
to get Stephanie
a gift, and Appellant
said
he would
take him. He and Appellant
went
to Security
Square Mall,
shopped
for about one
and a half hours,
and Appellant
said he needed
to go back to school.
(2/4/00-125)
On the way
to school, Appellant
talked
about his relationship
with Hae,
and said it was not going well.
Wilds
testified
that Appellant
seemed
hurt
rather
than
angry.
(2/4/00-125)
Wilds
then
testified
that Appellant
said Hae made him mad and said,
"I am going
to kill that
bitch."
(2/4/00-126)
Appellant
told Wilds
he could
drop Appellant
off
at
school
and
take
Appellant's
car as long as he picked Appellant
up later.
Appellant
gave Wilds AppeUant's
cell phone
so that he could call Wilds when he was ready
to be picked
up.
Cell phone
records
for Appellant's
cell phone showed
that at 12:07 p.m., Wilds
called
the home of his friend
Jen Pusiteri.
Wilds went
to her home and played
video games with
Jen's
brother Mark
for about 30 minutes.
Jen was not home. Wilds
then
left with Mark
to
go back to the mall.
(2/4/00-127-130)
Wilds
testified
that he and Mark
returned
to Mark's
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house
and Jen was
there.
Later, Wilds went
to his friend
Jeff's
house,
but he was not at
home.
Appellant
allegedly
called Wilds
to come pick him up at Best Buy.
(2/4/130)
Wilds
testified
that he saw AppelIant
standing
near a payphone
outside
of Best Buy wearing
red
gloves.
Appellant
allegedly
directed Wilds
to park near a gray Sentra.
Wilds
testified
that
Appellant
asked
him if he was ready
for this,
and then opened
the trunk
of the Sentra
to
reveal Hae's
body.
(2/4/00-131)
Wilds
said that Appellant
got
in Hae's
car and told Wilds
to follow
in Appellant's
car. They allegedly
drove to a Park and Ride on Interstate
70. Wilds
said he got into
the passenger
side of Hae's
car. Wilds
called
Jen at 3:21 p.m.
to see if his
friend
Patrick was home
so he could
buy marijuana,
but he was not. Wilds
said Appellant
called a young,
lady in Silver Spring
and made
small
talk, and that Appellant
received
a call
from someone
speaking
Arabic,
possibly
his mother.
(2/4/00-134-40,
143)
Wilds
said Appellant
told him, "it's
done." Wilds
said Appellant
said
it kind of hurt
him but not really, because when someone
treats him like that they deserve
to die. Appellant
allegedly
said,
"how
can you
treat
someone
like that
that you are supposed
to love."
He
allegedly
then said,
'°all _knowing
is Allah."
(2/4/00-142)
Then Appellant
allegedly
said he
needed
to get back to track practice
because
he needed
to be seen. As he got out of the car
at school, Appellant
allegedly
said °°motherfuckers
think they are hard,
I killed
someone
with
my bare hands."
(2/4/00-142)
Wilds
testified
that Appellant
told him that he thought
Hae
was
trying
to say something
like apologize
to him and that
she kicked
off the turn signal
in
the car. Appellant
allegedly
said he was afraid Hae would
scratch
him in the face.
(2/4/00-
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142-43)
After dropping Appellant
offat
school, Wilds
testified
that he went
to Kristi Vincent's
house,
smoked
some marijuana,
and debated
about what
to do. Kristi
and her boyfriend were
there.
(2/4/00-144)
About 30 minutes
later, Appellant
called and Wilds went
to school
to get
him.
They went
back
to Vincent's
and Appellant
allegedly
fell asleep
on the floor after
smoking
some marijuana.
Appellant
got a call fi-om Hae's
parents
asking
if he had seen Hae
and he said no, and suggested
they ask her new boyfriend.
(2/4/00-145)
Appellant
then
received
a call
from the police
asking where Hae was and he said he did not know. Wilds
said he left Vincent's
with Appellant.
According
to Wilds'
testimony,
Appellant
drove Wilds
home and said,
"you have got
to help me get
rid of Hae."
(2/4/00-147)
Wilds
feared
that Appellant
would
use his
knowledge
of Wilds'
drug dealing
against
him and agreed
to help.
(2/4/00-147)
Wilds
got
two shovels
form his house
and put them in Appellant's
car.
They drove
to pick up Hae's
car, and Appellant
got in Hae's
car. Wilds
followed
Appellant
around
for 45 minutes,
and
they ended
up in Leakin
Park (2/4/00-148).
Wilds
said he was supposed
to meet
Jen at 7:00 p.m.,
so he paged
her at 7:00 p.m.
from Leakin
Park.
While Wilds
and Appellant
were
digging,
Jen called
the cell phone,
returning Wilds" page. Appellant
allegedly
answered
and told Jen they were busy and hung
up_ Wilds
said after
they dug for a while, Appellant
asked Wilds
to help him get Hae out of
the car, but Wilds
refused.
(2/4/00-152)
Allegedly,
while Appellant
took Hae's
body
to the
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shallow
grave
and put dirt on her to cover
her, he received
another
call. He spoke part
in
Arabic
and part
in English.
(2/4/00-153)
Wilds
testified
that after burying Hae,
they
left and
parked Hae's
car near
some apartments.
According
to Wilds, Appellant
said,
"it kind of
makes me feel better
and it kind of doesn't."
(2/4/00-156)
He said they went
to Value City
and threw away some of Hae's
belongings
and some other
evidence
in a dumpster.
Wilds
paged Jen again. Appellant
allegedly
drove Wilds home and Wilds
changed
his clothes
and
put them in a bag.
Jen came to pick up Wilds
at his home and took him to Super Fresh where
he threw the shovels
and his bag of clothes
away in a dumpster.
(2/4/00-158)
Wilds
told Jen
that he wanted
her "'to be the one person
to know that I didn't
kill Hae."
(2/4/00-158)
Wilds
was questioned
three
times by the police,
the first
time was on February
28,
1999.
(2/10/00-14)
On that date,
the police
questioned
him for two hours,
and then
turned
a tape
recorder
on and questioned
him for two more hours.
He said the police
confronted
him with
things
Jennifer
Pusiteri
had told them earlier when
she was questioned
by police.
Wilds
said
that
he told Jennifer
what
happened
on January
13. Wilds
said he asked
the
police
to turn off the
recorder,
which
they did, and he asked
for an attorney.
The police
asked
him why he needed
one,
and turned
on the recorder
to continue
the questioning.
(2/10/00-49)
Wilds
acknowledged
that he lied to the police.
(2/4/00-221)
The
first
time Wilds
spoke
to the police,
he said he was not involved
in killing
or burying Hae.
(2/4/00-229)
He
said he lied to the police
about
the location
of Hae's
car.
(2/10-66)
He
told
the police
that
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he saw Hae's
body
in a truck,
not in the tnmk of Hae's_Sentra.
(2/10/00-76)
He also told
police
he walked
to the mall on January
13. He said his only contact
with Appellant
on
January
13 was at 2:00 p.m. when Appellant
called him and asked for directions
to a shop
in East Baltimore.
Wilds
told
the police
different
stories
about where
Jennifer
picked
him
up on January
13.
On March
15, 1999, Wilds
gave a second
statement
to the police.
(2/10/00-83)
During
this questioning,
Wilds
told police
that Appellant
said on January
12 that
"he was
going
to kill that bitch,"
and then
later
said it was four days before
January
12.
(2/10/00-
187)
On April
13, 1999, Wilds
gave
a third
statement
to police.
He told police
that
Appellant
killed Hae in Patapsco
State Park,
and that Appellant
paid him to help.
(2/t4/00-
115) Wilds
eventually
took the police
to where
the body was buried
and to where Hae's
car
was
located.
Detective
MacGillivary
testified
as follows.
On February
9, 1999, he responded
as
the primary
detective
to Leakin Park, where Hae's
body was recovered.
(2/17/00-153)
Based
upon
information
contained
in Hae's
missing
person
report,
he obtained
Appellant's
cell
phone
records.
On February
26, 1999, he went to Jennifer
Pusiteri's
house
and asked her to
come to the police
station to talk.
(2/17/00-156)
Jennifer
came to the station
that night
and
gave
a statement.
She
said
that
she heard
that Hae had been
strangled,
although
that
information
had not yet been publicly
released.
(2/17/00-314)
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Contrary.to
Wilds'
testimony,
MacGillivary
said at no time did Wilds
request
a
lawyer,
because
if he had,
all
questioning
would
have
ceased.
(2/18/00-128-129)
MacGillivary
denied
that Wilds
first
took him to the wrong
location
before
showing
police
where
the car was- He also said that Wilds
told him that Appellant
showed
him Hae's
body
in the tnmk on Franklintown
Road, contrary
to Wilds'
testimony
that it happened
at
the Best
Buy.
(2/18/00-151)
MacGillivary
interviewed Wilds
a second
time on March
15, 1999, with
Appellant's
cell phone
records,
and noticed
that Wilds'
statement
did not match up to the
records.
Once
confronted
with
the cell phone
records,
Wilds
"remembered
things
a lot
better."
(2/17/00-158)
Wilds gave yet a third statement
on April
13, 1999,
and admitted
that
he lied on the two previous
occasions
to cover up the fact that he bought
and sold marijuana.
(2/18/00-166)
On cross-examination,
MacGiltivary
testified
that Alonso
Sellers
was
considered
to be a suspect.
(2/17/00-225)
On February
26, 1999, after speaking with Jennifer,
MacGillivary
went
to Appellant's
home and Appellant
gave a statement.
Appellant
said he had a relationship
with Hae, and
had been in her car before,
but not.on
January
13, 1999.
(2/17/00-264)
Appellant
said he did
not remember
what happened
on January
13, 1999.
(2/17/00-271)
A police
report
of this
statement
was not written
until September
14, 1999.
On February
27, 1999, Appellant
was
questioned
at school
and at the police
station
and gave statements
denying
his involvement.
Jennifer
Pusiteri
testified
as follows.
On January
13, 1999, Wilds
came over
to her
house
in a tan car
to hang out with her and her brother.
Wilds was acting
different,
not
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relaxed,
and had a cell phone which was unusual.
(2/15/00-185)
Wilds
said he was waiting
for a call. At 3:00-3:30
p.m., Wilds
left her house.
After 4:30 p.m., Jennifer
called her friend
Kristi's
house
and Wilds was
there.
Wilds
and Jennifer
had plans
to go to Ka-isti's house
together
that evening.
She called
the cell phone
later and someone
answered
the phone
and
said,
"Jay will call you back when he is ready
for you
to come and get him, he is busy."
(2/15/00-189)
The voice on the cell phone was an older male, deep, not like a kid, and it was
not Wilds.
(2/16/00-169)
Between
8:00-8:15
p.m.,
Jennifer
got a message
from Wilds
to
pick him up at Westview Mall
in 15 minutes,
so she left and picked
him up in front of Value
City.
(2/15/00-190-192)
Appellant
was with him, driving,
and said hello
to Jennifer.
Wilds
got
in her car and said,
"I have
to tell you something,
but you can't
tell anyone."
He said
Appellant
strangled
Hae in the Best Buy parking
lot. Wilds
saw her body
in the trunk.
He
said Appellant
used Wilds'
shovels
to bury her and Wilds wanted
to make
sure
there were
no fingerprints
on them.
(2/15/00-194-196)
Jennifer
testified Wilds
told her he wanted
to go check on Stephanie
to make
sure she
was okay. They went
to Stephanie's
house
between
8:30-9:00
p.m. The next day Jennifer
took Wilds
to F&M drugstore
to get rid of clothing
and boots
in a dumpster.
(2/15/00-196-
198)
Kristi Vinson
testified
as follows.
On January
13, t 999, at 5:00-5:15
p.m.,
she arrived
home,
and her boyfriend
Jeff Johnson was there. Wilds and Appellant
arrived
later, and were
acting
"shady."
(2/16/00-217)
She had never met Appellant
before.
They
all watched
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television
at about
6:00 p.m.
Appellant
was
lying on some pillows
on her
floor when he
asked,
"how do you get rid of a high?"
(2/16/00-210)
Appellant
got a call on his cell phone
and
said,
"they're
going
to come
and talk
to me, what
should
I say, what
should
I do?"
(2/16/00-213)
Then Appellant
and Wilds
left.
(2/16/00-214)
Wilds
returned
hours
later with
Jennifer,
but Appellant
was not with
them.
Debbie Warren
testified
as follows.
She was a close
friend
of Hae's.
Appellant
and
Hae were boyfriend
and girlfriend,
but broke up and got back together
two or three
times.
She
said
that
the
last
time
they broke
up because
Hae
felt
that Appellant
was being
overprotective
of her. Hae began
to date "Donnie"
and Appellant
knew about
it. Appellant
told Debbie
he thought Hae and Donnie were having
sex while Appellant
and Hae were
still
dating,
but Debbie
told Appellant
that
it was not
true.
(2/16/00-298-302)
The
last
time
Debbie
saw Hae on January
13 was
in gym class,
and Hae was happy
and
rushing
to go
somewhere
at 3:00 p.m.
Debbie
could
not
remember
where Hae was going,
but she told
police on January
28, 1999 that Hae said she was going to the mall with Don.
(2/16/00-306,
2/17/00-70)
On cross-examination,
Debbie
stated
that
she was
friends
with
Stephanie,
and
Stephanie
confided
to Debbie
that she was
interested
in Appellant.
At the prom in t998,
when
Appellant
was
voted
prom king
and Stephanie
was prom
queen,
they
danced.
Appellant,
however,
left Stephanie
during
the dance
and went
to get Hae
to finish
the dance
with him.
(2/17/00-30_34)
Hae broke up with Appellant
two or three
times
because
she did
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not want Appellant
to have to choose between
her and his religion,
and Hae's
parents
did not
want her to date Appellant
either.
(2/17/00-48)
Appellant
was not mad when Hae broke up
with him on these occasions.
In fact, even after
the final breakup
in December
1998, Hae
and Appellant
exchanged
holiday
gifts.
(2/17/00-57)
When Appellant
found
out Hae was
dating Don,
he said he accepted
it and would
try to move on. (2/17/00-59)
Abraham Waranowitz
testified
as an expert
in AT&T network
design
as to Erickson
cell phone
equipment.
Waranowitz
testified
that a cell phone
activates
a cell
site which
has
three sides.
Each side points
to a unique
direction.
Using exhibits which showed
the number
of the cell tower activated
by the cell phone when a call was made or received,
Waranowitz
testified
as to the location
of the cell
tower,
and testified
as to which
of the three
sides was
activated.
Waranowitz
testified
that his tests
revealed
that
the cell
sites that were activated
were consistent
with cell phone
calls being made and received
from Kristi Vincent's
house
and the burial
site
in Leakin
Park.
(2/8/00-98-115)
On cross-examination,
Waranowitz
admitted
that
he could
have used Appellant's
actual
phone
for the tests but did not. He could not remember
when the tests were done,
only
that he performed
them somewhere
between
September
and December.
He verbally
gave his
results
to the State over
the phone.
(2/9/00-49-96)
He admitted
that
the
tests cannot
tell
where
the call was made or where
the cell phone was within
the wide
cell site.
He admitted
that some calls could
trigger
as many as three different
cell sites.
(2/9/00-142-172)
The State rested
its case and Appellant
called Rebecca Walker,
a close
friend
of both
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Appellant
and Hae, who testified
that even after Appellant
and Hae broke up,
they still cared
for each other and were still friends.
(2/23/00-142)
She also testified
that Appellant
was not
possessive
about Hae, and he was extremely
upset by her disappearance.
(2/23/00-160,
175)
Syed Rahman,
Appellant's
father,
testified
that Appellant
had been
in the top 5% of
his class
academically
since
eighth
grade.
Appellant
led prayers
at the
family's
place
of
worship,
which
is a high honor.
Mr. Rahman
testified
that although
his religion
does not
permit Appellant
to date girls, Appellant
was simply encouraged
to do the fight
thing,
and not
to date girls.
(2/23/00-285-291)
On January
13, 1999, Appellant
attended
religious
services
with his father
from 7:30 p.m.
to 10:30 p.m.
(2/24/00-6)
Andrew Davis, Appellant's
investigator,
testified
that Hae's
bank
records
showed
that
on January
13, 1999, she made a purchase
of $1.71 at Crown gas station
at Harford
Road and
Northern
Parkway,
which
is far from Woodlawn.
(2/24/00-106)
Saad Chaudry,
Appellant's
close
friend,
testified
that Appellant
obtained
the cell
phone
in order
to call girls.
He also explained
that
the cell phone was programmed
with
phone numbers
of Appellant's
friends
such
that
the numbers
could automatically
be dialed.
(2/24/00-145)
He said that after Hae and Appellant
broke
up, Appellant
was "laid back"
about
it, and showed
interest
in other girls.
(2/24/00-126)
Bettye Stuckey, Appellant's
guidance
counselor,
testified
that Appellant
was a bright,
enthusiastic
and delightful
student.
He was admitted
to college at the University
of Maryland
and the University
of Maryland
at Baltimore
County.
(2/24/00-203)
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Other
facts will be discussed
as necessary,
infra.
_.
IV.
ARGUMENT
A. THE STATE
COMMITTED
PROSECUTORIAL
MISCONDUCT,
VIOLATED
BRADY AND VIOLATED
APPELLANT'S
DUE PROCESS
RIGHTS
WHEN
IT
SUPPRESSED
FAVORABLE
MATERIAL
EVIDENCE
OF AN ORAL
SIDE AGREEMENT
WITH
ITS KEY
WITNESS,
AND
WHEN
IT
INTRODUCED
FALSE
AND
MISLEADING
EVIDENCE,
AND THE TRIAL
COURT COMMITTED
REVERSIBLE
ERROR
IN PROHIBITING
APPELLANT
FROM
PRESENTING
THIS EVIDENCE
TO THE JURY.
Summary
of Argument
The prosecutor
suppressed
favorable material
evidence
relating
to the plea agreement
with
its key witness,
Jay Wilds.
The prosecutor
also
introduced
false
and misleading
evidence.
The
suppressed
evidence
included
the
fact
that
there was
a separate
oral
agreement
with Jay Wilds which permitted Wilds
to withdraw
from the plea agreement
at any
time, which
fact was not included
in the written
plea agreement
furnished
to Appellant
and
introduced
by the State at trial.
In addition,
the State hid the fact that
it provided Wilds with
a free private
attorney,
who recommended
that Wilds
sign the plea agreement.
The State
waited
to charge Wilds with a crime until
after he accepted
the services
of the free private
attorney
selected
by the State so that Wilds would
be ineligible
to obtain
a public
defender.
Wilds
earlier
sought
to obtain
the services
of a public
defender,
but was
told he could not
receive
a public
defender
until
after he was charged with a crime.
This
and
other
evidence
was
suppressed
by the State,
and was
discovered
by.
Appellant's
trial
counsel
during
and
after Wilds'
highly
damaging
testimony
against
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Appellant.
When
Appellant
attempted
to
learn
all of
the
facts
surrounding
the
plea
agreement,
the State
objected
and
the
trial
court made
numerous
evidentiary
rulings
preventing
Appellant
from presenting
all of the terms
of the plea agreement
and the full
circumstances
surrounding
the plea agreement
to the jury (see
infra.).
The State's
conduct
amounted
to prosecutorial
misconduct,
violated Br__r.o_d,
3 violated Appellant's
rights
to due
process
of law, and the trial court's
rulings
constituted
reversible
error.
The
standard
for determining
whether
the State
violated
Brady
is whether
the
prosecutor
suppressed
favorable material
evidence.
Cowers
v. State, __ Md. __._, __ A.2d
__.
(No. 26. Sept. Term 2001)
(filed February
5, 2002).
The standard
for determining
prosecutorial
misconduct
is whether
the misconduct
actually
prejudiced
the defendant
and
whether
the prosecution
acted
intentionally
to prejudice
the defendant.
Clark v, State,
364
Md. 611,774
A.2d 1136 (2001).
A trial court's
evidentiary
rulings
are reviewed
for abuse
of discretion.
Fontaine
v. State,
134 Md. App. 275, 287-88,
759 A.2d 1136, cert. denied,
362
Md.
188 (2000).
1. The State suppressed
favorable
material
evidence
and introduced
and elicited
false and
misleading
testimony
relating
to the plea
agreement
with
its key witness
in violation
of
Brads,.
a) Facts
Jay Wilds,
the chief prosecution
witness,
testified
on direct
examination
that he signed
3 Brady v. Maryland,
373 U.S. 83, 83 S.Ct.
1194,
10 L.Ed.2d
215 (1963).
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a plea agreement
and pied guilty on September
7, 19.994 to being an accessory
after
the fact
with
regard
to the death of Hae Min Lee.
(2/4/00-162)
Wilds
testified
that as long as he
told the truth,
the State agreed
that his sentence would be capped
at two years.
(2/4/00-163)
The State offered
the written
plea agreement
into evidence.
(State's
Exhibit
35, App.
1-4)
(2/4/00-162,
App.
5) The prosecutor
asked Wilds,
"[a]nd
that's
the plea
agreement
you
entered
into when you pied guilty
to accessory
in this murder?
A. Yes."
(2/4/00-162-63,
App. 5-6) The written
agreement
provided
that
if Wilds
failed
to complete
the terms of the
agreement,
the State will
recommend
a sentence
of five years
incarceration.
(Exhibit
35,
page 2 #2(d))
The agreement
also expressly
provided
that
"[Wilds]
shall not be permitted
to
withdraw
a guilty
plea
tendered
pursuant
to this Agreement
under
any circumstances."
(Exhibit
35 at page 3, #5) The Agreement
also provides
"It]here
are no other
agreements,
promises
or understandings
between
[Wilds]
and the State.
This Agreement
can only be
amended
in a writing
signed by all the parties."
(Exhibit
35, Paragraph
9 page 3)
After
the State
rested
its case,
a few days from
the end of a nearly
six-week
trial,
Appellant
discovered
the existence
of an oral side agreement
between
the State and Wilds,
that
was
not
turned
over
by the State
in discovery
and was
fortuitously
discovered
by
Appellant
during
trial.
This
side agreement
provided
that Wilds
could withdraw
from the
plea
agreement
at any time,
contrary
to the written
plea
agreement
and
contrary
to the
4Appellant's
first
trial was scheduled
to begin on October
13, 1999.
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assertions-
of the prosecutor?
This discovery
unfolded
out of the presence
of the jury,
as
follows:
[BY DEFENSE
COUNSEL]:
[Ms. Benaroya,
Wilds'
attorney]
would
have
said, but -- couldn't
go any further
and cut off questioning
of her,
that -- she
may [sic - made]--
with Nh. Urick
[the prosecutor]
on the 7t_'[of September,
1999],
in the presence
of her
client
and
that
she made
sure
[her]
client
understood
that one of the benefits
that's
not reflected
in the typewlitten
plea
agreement
and would
not be reflected
on the record was an agreement
that
would
allow Mr. Wilds
to withdraw
his plea at a time later
than
the 7d_,and
she would
have
testified
that's
what she told me in the presence
of my law
clerk,
that her concern
and insistence
on that being
a benefit
of the bargain
because
she felt
that
....
since
it was so unusual
that his lawyer
be provided
by flue prosecutor
that he had an absolute
right,
after
reflection,
to withdraw
the plea.
(2/22/00-63-64,
App. 7-8) There
is reference
to this questioning
ofBenaroya
OCCUlTing OUt
of the presence
of the jmy
and raider oath (2/23/00-238),
but it is not part
of the record.
Appm-ently,
the tfid come was present when Ms. Benaroya
told this
to Appellant's
counsel,
and agreed
that defense
counsel's
recitation
of Benaroya°s
testinaony was accurate:
6
:The prosecutor
told the trial court
in a bench
conference:
It was made clear
to him that he was entering
a guilty plea,
that
it would
be
a binding
plea...
It was made clea" to him that
those procedures
were
binding,
that
they could be done without
his presence,
in his absence
.....
(2/4/00-203)
6At the close of the previous
trial day's
testimony,
Febmaay
18, 2000
(Febraaas
21. 2000 was a holiday),
the hial court
stated:
"I still need
to speak
to her [Benaroya]
myself...
"which may shed light on when
tiffs questioning
of Benaroya
took place.
(2/18//00-202)
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THE COURT:
She did say it .....
She said it.
She said that she was
-- it was
her understanding
that
the Defendant
Wilds,
her client,
could withdraw
his
plea.
[BY DEFENSE
COUNSEL]:
Right.
At any time.
THE COURT:
That's
what
she said,
(2/22/00,71)
Mr. Urick,
the prosecutor,
denied
that
this was part of the plea.
(2/22/00-66)
Appellant
argued
to the trial
court
at a bench conference
why this
information
was
important
and relevant
to present
to the jury"
As to that issue...
I believe we're
absolutely
entitled
to get in all the benefits
of
the bargain
that were
extended
to Mr. Wilds, whether
or not Mr. Wilds
testifies
truthfully
as to what
they are.
Now,
the fact finder has a right
to consider
all of the benefits
of the bargain
in
assessing whether
or not the bargains
have anything
to do with
influencing
his
testimony
or what
the bargain
is or what
extent
he may be beholding
[sic]
to
him when he made
the bargain,
both what's
written
and what's
not written,
and it's up to the jury
to decide whether Mr. Wilds
is telling
the truth
and to
decide
as to all thing,
including
what Mr. Wilds'
perception
of the bargain
--
or his lawyer
says that was part of the bargain,
it was made in front of him, and
that
goes directly
to impeach
him.
And that's
certainly
not attorney/client
privilege,
made
in the presence
of and in the earshot
of Mr. Urick.
Since
the bargain
that
the jury knows
about makes Mr. Urick
the arbiter
of
truth,
the
issue of whether
or not there's
a side deal
that Mr. Wilds may not
want
to admit
to because
if, in fact,
it's
true
it makes him out to be a liar as to
that
issue,
as to what
the bargain was
....
(2/22/00-65)
When Appellant
requested
permission
to introduce
evidence
of the side agreement
through
the testimony
of Benaroya
and by recalling Wilds, who had finished
testifying
before
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Appellant
learned
of the side agreement,
the trial
court
ruled
that Appellant
could
not call
Benaroya
or recall Wilds
to testi_y
in front
of the jury:
"I believe
that calling
[Benaroya]
would
not be appropriate
and it would
just
take us off on a needless
presentation
of evidence.
And I would
find that
the credibility
of Mr. Wilds has been exhausted."
(2/22/00-74,
App.
9) Similarly,
the trial
court denied Appellant's
previous
motion
to question Mr. Urick
as a
witness
out of the presence
of the jury
to determine
the circumstances
surrounding
the plea
negotiations.
(2/11/00-23,
App. 10) The trial court
also denied Appellant's
previous
motion
to strike all of Wilds
testimony
because
the State
failed
to disclose
all of the circumstances
surrounding
the plea negotiations.(2/15/00-34,
App. 11) The evidentiary
rulings will be dealt
with separately,
infra.
In addition
to the side oral agreement,
the State suppressed
other evidence.
On cross-
examination
of Wilds
by Appellant,
over objections
from the State,
it was disclosed
for the
first
time
that
the State had provided Wilds with a free private
attorney:
[BY DEFENSE
COUNSEL]:
Incidentally,
at what point did your
lawyer
come
about
after
the 13m of April?
[BY THE STATE]:
Objection.
THE COURT:
Sustained.
[BY DEFENSE
COUNSEL]:
Did anyone
help provide
you a lawyer?
[BY THE STATE]:
Objection.
THE COURT:
Overruled.
MR. WILDS:
Yes, ma'am.
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Q Who?
A Mr. Urick.
Q Mr. Urick
the prosecutor
in this case helped
provide
you a lawyer?
A Yes, ma'am.
Q And was that before
or after you got notice
that you would
be charged
by
him?
[BY THE STATE]:
Objection.
THE COURT: Overruled.
MR. WILDS:
Before, ma'am.
[BY DEFENSE
COUNSEL]:
Did you meet your
lawyer
before
the day you
signed
[the plea agreement]?
MR. WILDS:
No, ma'am.
***
Q ....
Now, you didn't
have
to pay for your
lawyer,
did you?
[BY THE STATE]:
Objection.
THE COURT:
Sustained.
(2/10/00-155-56,
159, App.
12-13)
(Emphasis
supplied) 7
Wilds
testified
in the jury's
presence
that when Mr. Urick
introduced
the lawyer, Ms. Benaroya,
to him, Mr. Urick
stated
that she was
"a very good
lawyer."
(2/15/00-60)
7Later, Wilds
testified
that he considered
a free private
attorney
to be a benefit,
because
he could not afford private
counsel.
(2/15/00-127)
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As Appellant
delved
into the circumstances
surrounding
the State providing
the chief
prosecution
witness
with a free private
attorney,
it became
clear
that
the State
attempted
to
and did improperly
influence
the witness
to retain
the attorney
that
the State chose, whom
the State
believed
would
recommend
that Wilds
sign
the plea
agreement.
The State,
knowing
that Wilds
could
not obtain
the advice
of a public
defender
until he was actually
charged,
refrained
from charging Wilds until
after he met with and retained
the services
of
Ms. Benaroya.
(2/10/00-156)
Wilds
testified
out of the presence
of the jury
that he had
attempted
to get a public
defender
prior
to September
7, but was
told by the Office
of the
public
defender
that he could not get an attorney
until he was charged.
(2/11/00-213)
Wilds
was charged
on September
7, 1999,
after he was
introduced
to the free private
attorney.
(2/1/00-182)
Wilds met with Ms. Benaroya,
agreed
to accept
her
as his attorney,
and
negotiated
and signed
the plea agreement.
Immediately
after
signing
the agreement,
Wilds
was
taken
to a "guilty
plea" hearing.
The State
failed
to disclose
other
favorable
evidence
as well.
On cross-examination
by Appellant,
Wilds,
over objections
from
the State,
disclosed
for the
first
time
that
no
statement
of facts was read at his "guilty plea" proceeding.
(2/4/00-193-94)
Thus,
there was
no factual
basis
for the plea as required
by Maryland
Rule 4-242,
and no finding
of guilt
could
have been made.
The plea
therefore
was not binding,
and Wilds
or the State
could
withdraw
it at any time,
contrary
to what
the jury was told and contrary
to the terms of the
written
plea
agreement.
As defense
counsel
further
attempted
to find out exactly
what
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transpired
with Jay Wilds,
the guilty plea
and the flee private
attomey,
it became
apparent,
even
to the
trial
court,
that
the State was
trying
to hide the true nature
of the "guilty
plea"
proceedings:
(Jury not present)
THE COURT:...
It would appear
to the Court
that every effort was made
to
hide
the existence
of Mr. Wilds[']
plea or attempted
[sic] to plead because
this
[Wilds'
court
file] says guilty verdict
held sub curia. Which means what you
did was everything
except
for have
the Court
find the Defendant
guilty.
He
held
the
issue of whether
or not the Defendant
was guilty
sub curia pending
the State
providing
a statement
of facts.
It appears
the only reason why one
would
do that,
in my mind
is so that
there would be no record
of a guilty plea
because
if there's
no guilty
finding
[then] he hasn't
been found guilty
....
The other
thing
that
I find
interesting
is that as Counsel
has pointed
out,
I've
never
seen a file like this before .....
It appears
very, very odd and unusual
and I can see why Ms. Gutierrez
[defense
counsel]
would
start
to wonder.
(2/11/00-122-23)
The trial court noted
that
the State was misrepresenting
to the trial
court,
defense
counsel,
and the jury
that Mr. Wilds
pled guilty, when,
in fact,
it was not a guilty
plea:
"Well,
what was difficult Mr. Urick,
the other
day when we asked,
I know
I asked
whether
or not Mr. Wilds
pled guilty,
you said he pled guilty ....
But
the verdict
wasn't
entered•
I mean
to say, to lead the Court
to believe
that the verdict was entered
is not true.
•..
the reason
[that defense]
Counsel
has been asking over and over,
how could
there be a
guilty plea with no statement
of facts.
It's very simple,
is that no guilty verdict
was entered,
that's
how you kept
the statement &facts
out."
(2/11/00-126-27)
The State hid still more evidence.
During proceedings
Qutside the presence
of the jury
it was
learned
that
Judge McCurdy,
the Judge who heard
the "'guilty
plea" or "attempted
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guilty
plea,"
had an ex parte
hearing with Wilds
and his attomey,
Ms. Benaroya,
after
the
guilty
plea hearing.
(2/11/00-128)
This
"post-plea"
hearing was held at the request
of the
State, which waived
its right
to be present
at the hearing.
In the face of direct
questioning
from the trial court,
the State hid the fact that
sometime
after
the September
7, 1999 "guilty
plea"
hearing,
Jay Wilds
became
disenchanted
with his attorney,
questioned
whether
that
attorney was given to him by the State solely for the purpose
of advising
him to sign the plea
agreement,
questioned
whether
the attorney
was
loyal
to him or to the State,
and thought
about withdrawing
his plea.
(2/11/00-150,
160, 168, 171) Wilds
called
Judge McCurdy
to
inform him of his doubts
and problems.
Wilds
also called
the prosecutor
and informed
the
State of his situation.
(2/11/00-204-06)
The trial court
repeatedly
asked
the State specifically
whether
it knew
if something
happened
after
the plea to necessitate
the post-plea
hearing,
and the State at least
three
times
answered
falsely
that it did not. The State knew that Wilds
called
Judge McCurdy
to inform
him of these problems,
because Wilds
also called
the State and informed
it of the problems.
(2/11/00-204-06)
It is clear
that
the prosecutor
deliberately
failed
to tell
the trial
court why
the hearing was necessary:
(Jury not present)
[BY THE STATE]: When we asked Judge McCurdy
to advise him of his right
to Counsel
due to review of that to make sure he understood
it and that he was
in fact,
his assistance
of counsel.
THE COURT:
And when did that happen?
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[BY THE STATE]:
It happened
sometime
in September.
I did not...
Ms.
Benaroya
[Wilds"
attorney]
showed
up with him that day, he was given
the
option,
you know,
explained.
In abundance
of caution
we asked
Judge
MeCurdy
to do an in camera
review
to make sure
that he understood
his right
to counsel,
that he was making his election of his counsel.
Judge McCurdy
did
a review
of that with him.
[BY DEFENSE
COUNSEL]:...
Having
taken
the beginnings
of the plea or
if you believe Mr. Urick's
version, well he thought
that was a guilty plea
then
what reason would
exist
to ask the Judge
to review
the voluntariness
or the
adequacy
of the satisfaction
with the lawyer.
THE COURT:
Good question.
[BY DEFENSE
COUNSEL]:
Something
had to happen.
THE COURT:
Did something
happen
post plea[?]
Mr. URICK: We were
just
discussing
all possibilities.
We
thought
in
abundance
of caution we should.
THE COURT: What
does
that mean? Did something
happen
post plea?
MR. URICK.
Post plea. No,
it was debating
around
our office how we were
proceeding.
THE COURT:
Post plea?
MR. URICK:
Yeah.
THE COURT:
On what?
Ifhe's
pled guilty.
The only thing his disposition
you need
to have a conversation
with
the witness
as to whether
or not he's
going
to withdraw
his plea,
is that what happened?
MR. URICK: No, we wanted
Judge McCurdy
to -- do that we had made
sure
there was an independent
judicial
advisement
of his right
to counsel,
that he
understood
that he was exercising
it. We thought
--
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THE COURT:
That's
post plea.
I'm asking
after
the plea. Okay.
Let me get
the scenario
right because
I'm getting
confused.
And you asked
[Judge McCurdy]
to set up the hearing?
MR. URICK:
Yes.
THE
COURT:
You're
suggesting
that
a Judge
would
have
ex parte
communications
with a Defendant
and his attorney without
the presence
of the
State?
MR. URICK:
It was with our permission.
We waived
our presence.
(2/11/00-128-134)(emphasis
suppled)
It was not until
after this exchange
that Wilds
testified
out of the presence
of the jury
that the trial court and defense
counsel
learned
that
the reason
for
the hearing
was
that Wilds
had second
thoughts
about
the
loyalties
of the attorney
provided
by the State
and was having
doubts
about his guilty plea.
(2/11/00-205)
By waiving
its right
to be present,
the State ensured
the fact that an informal,
off-the-
record
hearing
in the Judge's
chambers
would
be hetd. 8 The fact
that
the State waived
its
right
to be present
at the post-plea
hearing
in which
its key witness
in a murder
prosecution
could decide
to withdraw
his plea demonstrates
the lengths
to which
it was willing
to go to
hide
the fact
that
it provided
the benefit
of a free private
attorney
to its chief
prosecution
witness,
and to hide
its knowledge
of the fact that Wilds was unhappy
with
that
free private
8Although Wilds
testified
out of the presence
of the jury
that he believed
the ex
parte
hearing was on the record,
no record or evidence
of the hearing
could
be found.
(2/22/00-63)
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State-provided
attorney.
In sum, the State failed
to disclose
the following
information
to Appellant:
9 the side
agreement
permitting Wilds
to withdraw
at any time from the plea agreement
without
court
approval;
Wilds
never
entered
a binding
and completed
guilty
plea because
the State
intentionally
did not enter
into evidence
at that hearing
a statement
of facts
in support
of the
plea;
the State
knowingly
allowed Wilds
to testify
falsely
that he entered
a guilty plea;
the
State obtained
and provided
for Wilds
a free private
attorney; Wilds was not charged
with
a crime until just after he agreed
to be represented
by the free private
attorney,
so that Wilds
would
not be eligible
to obtain
a public
defender
who may not have
recommended
that he
sign
the
plea
agreement;
Wilds
became
disenchanted
with
his
free
private
attorney
jeopardizing
the "guilty
plea";
the State arranged
for Judge McCurdy
to have an ex parte
hearing with Wilds
and his attorney,
the record
of which
could not be found
(2/22/00-63),
where
the Judge
addressed Wilds'
concerns.l°
Based upon
these actions, Appellant moved
9It should
be noted
that
the State,
prior
to trial, moved
for a Protective
Order
to
withhold
discovery
of all statements
made by Jay Wilds.
(R. 144-147)
Appellant
requested,
pretrial
"all
information
about
Jay Wilds"
including
his statements.
(R. 509-
525). The trial
court
denied
the State's Motion
and ordered
them to turn over
such
materials.
(R. 540-544)
_°It is interesting
to note that when Wilds was sentenced
after Appellant's
trial,
in
addition
to noting
that Wilds had fulfilled
his plea agreement,
Mr. Urick made an
additional
recommendation
for leniency
based upon Mr. Urick's
belief
that Wilds
showed
remorse
for his actions.
Based upon
this
recommendation,
the Judge
gave Wilds
a
suspended
sentence,
instead
of the two years
imprisonment
called
for by the plea
agreement
which was admitted
before
the jury at Appellant's
trial.
State v. Wilds,
299250001
(July 6, 2000).
Obviously,
had Appellant
known
of this additional
recommendation,
he would
have used
it to further
impeach Wilds'
credibility
by arguing
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at trial
to strike Wilds'
testimony,
but
the trial court
denied
the motion.
(2/15/00-34)
See
inff_a.
The State's
actions
in the present
case violate Br_r.o_d.
b) The Law
Just
this month,
the Court
of Appeals
decided
Conyers
v. State,
__
Md. ___,
A.2d
__
(No.
26. Sept. Term 2001)
(filed February
5, 2002).
In _,
the Court
of
Appeals
reversed
two murder
convictions
and a death
sentence
because
the prosecution
withheld
from the defense
the fact that a key prosecution
witness,
Charles
Johnson,
asked
for
reduction
.in his sentence
on his pending
charges
before
he would
sign a statement
he had
given
to police
inculpating
Conyers.
The State
did disclose
prior
to trial
that
the plea
agreement
required
Johnson
to plead guilty to a misdemeanor
charge of conspiracy
to commit
robbery
and
the State would
recommend
a sentence
of one
to six years
imprisonment,
whereas
Johnson
faced
a total of 244 years
before
he cut a deal.
The plea agreement
required
that
Johnson
testify
truthfully
against Cowers,
and was
introduced
as evidence
at
trial.
On direct
examination
at trial, the prosecutor
asked Johnson whether
he requested
any
favors
in exchange
for the information
he gave to police,
and Johnson
replied
in the negative.
The police
officer who took Johnson's
statement,
Detective Marll,
testified
in response
to the
prosecutor's
questions
at trial
that at no time did Johnson
ever ask for a favor
in exchange
Wilds would
have additional
motive
to testify
since he was getting
no jail
time versus
two
years
of jail'
time.
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for giving
the
information.
At the post
conviction
hearing,
Marll
testified
in response
to
Cowers'
question
that
Johnson
refused
to sign the statement
unless
he had a commitment
for a plea bargain•
The State
argued
to the Court
of Appeals
that
the
trial
testimony
of
Johnson
and Marll was
technically
accurate,
because
Johnson
had given
the
information
before
he asked for a favor, and requested
the favor
in exchange
for his testimony
at Conyers'
trial.
The Court of Appeals
disagreed,
and held that
the State
exhibited
a "lack
of candor"
and used
a "deceptive
approach."
Slip op. at 32-33.
In determining
whether
there was a violation
of Brad& the Court noted
the appropriate
standard:
"(1) that the prosecutor
suppressed
or withheld
evidence
that
is (2) favorable
to the defense--either
because
it is exculpatory,
provides
a basis
for mitigation
of sentence,
or because
it provides
grounds
for impeaching
a witness--and
(3)
that
the suppressed
evidence
is material."
Slip op_ at 25 (_
Wilson
v. State,
363 Md. 333, 345-46,
768 A.2d 675 (2001)).
The
Court
held that the State suppressed
the information
regarding
Johnson's
refusal
to sign the
statement
until he got a favor.
Id. at 33-34.
The Court
further
held that
the information
was
favorable
to Conyers
because
it would
have:
strengthened
Petitioner's
assertion
that
Johnson
had
fabricated
Petitioner's
alleged
confession
in an effort
to garner
a benefit
on outstanding
charges...
• Defense
counsel
was entitled
to explore
and argue
from all of the pertinent
evidence
as to Johnson's
bias and credibility.
Suppression
of this
evidence
deprived
the jurors
of a full opportunity
to evaluate
the credibility
of Johnson's
testimony,
and Detective
Martl's
corroborating
testimony,
and
deprived
Petitioner
of potentially
valuable
impeachment
evidence
....
Similar
to Wilson.,
the value of the suppressed
information
as impeachment
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evidence
was confirmed
by the State's
efforts
to conceal
it fi-om Petitioner..
• . The
State's
conduct
continued
in its closing
arguments
at
trial
and
sentencing,
in which
it extolled
Johnson's
credibility
as a witness,
knowing
its
own sins of omission.
Id___._
at 38-39•
The Court
held
the evidence
was favorable
even
though
Johnson
was fully
cross-examined
as to the plea agreement,
and defense
counsel
vigorously
argued
to the jury
that
Johnson's
motive
in testifying
was
to gain
a benefit
for himself.
Vigorous
cross-
examination:
does not necessarily
vitiate
any error
caused by the State's
failure
to disclose
this impeachment
evidence.
Ware v. State,
363 Md. at 351,768
A.2d at 684
(stating
that cross-examination
of a witness
regarding
inducement
"to testify
does not substitute
for adequate
disclosure");
Boone,
541 F.2d at 451 (noting
that "[n]o matter how good defense
counsel's
argument
may have been,
it was
apparent
to the jury
that
it rested
upon conjecture
- a conjecture
which
the
prosecution
disputed•")•
See also., _Martin v_ State,
__
Ala. Crim App.
,
2001 Ala. Crim. App. Lexis 298, 21 (2001)
(likening
defendant
to a "fighter
with one hand
tied behind
his back -- the fact that he was able
to land a few
punches
in cross-examination
with one fist did not make
the match
a fair
one.").
Id_._.at 39.
In discussing
materiality,
the Court
first noted
that
the standard
where
the State
knowingly
uses perjured
testimony
is whether
there
is any reasonable
likelihood
that
the false
testimony
affected
the jury.
Id.___.
at 40 (_
Napue v. People
of Ill., 360 U.S. 264, 269, 79
S.Ct.
1173,
1177,
3 L.Ed.2d
1217 (1959)).
The materiality
standard
pursuant
to United.
States v. Bagley,
473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d
481 (1985)
and Brads_
where
the State
fails to turn over exculpatory
evidence
is whether:
"there
is a reasonable
probability
that,
had the evidence
been disclosed
to the
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defense,
the result of the proceeding.would
have been different.
A 'reasonable
probability'
is a probability
sufficient
to undermine
confidence
in the outcome."
_,
473 U.S. at 682,
105 S.Ct. 3375, 3383,
87 L.Ed.2d
481.
Wilson,
363 Md. at 347;
see als_.__.__o
at 41. The Conyers
Court
further
stated
that a
reasonable
probability
is "'a substantial
possibility
that..,
the result
of the trial would
have
been different.'"
Id._,(citation
omitted).
Based upon the Bagley/Brady
standard,
the Court
in _
held that the suppression
of the evidence
"relating
to Johnson's
complete
negotiations
for a benefit"
was material,
and
that,
had
the evidence
been disclosed,
"there was a substantial
possibility
that
the
result
would
have been different."
Slip op. at 43. The Court noted
that Johnson was a key witness
in establishing
that Conyers
was a principal
in the murder,
which was a prerequisite
for the
application
of the death penalty.
In addition,
the Court
held that
to prove materiality,
it was
not
necessary
to prove
the evidence
was
insufficient
to sustain
the conviction
absent
the
testimony
of the key witness,
The Conyyers Court
held
that even
though
there was sufficient
evidence
other
than Johnson's
testimony
on the issue of principalship,
the "taint"
from the
withheld
evidence
"so
undermines
confidence
in
the convictions"
that
a new
trial
is
warranted.
Id_, at 45.
Finally,
the Court
noted
that
the
importance
of Johnson's
credibility
was evidenced
by the State's
efforts
to
argue his credibility
in its last words
to the jury.
See Wilson,
363 Md. at 355,
768
A.2d
at
687
(recognizing
that
"the
'likely
damage'
of
the
State's
suppression
of evidence
in this case
'is best understood
by taking
the word of
the prosecutor
... during
closing
argument.'
") (_
War_.___e,
348 Md. at 53,
702 A.2d at 715 (citations
omitted)).
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Id___.
at 46.
-.
Likewise,
the Court
of Appeals
in Wilson
reversed
two
robbery
deadly weapon
convictions
based on the State's
failure
to disclose
evidence
relating
to plea agreements
with
two key prosecution
witnesses.
The Court held that,
although
the witnesses
testified
as to their plea agreements,
the
actual
agreements
were more
favorable
than
the witnesses
described
to the jury.
The Court
specifically
held
that:
"The
failure
to disclose
evidence
relating
to any
understanding
or agreement
with a key witness
as to a future
prosecution,
in particular,
violates
due
process,
because
such
evidence
is
relevant
to witness's
credibility."
Id____.
(Emphasis
supplied).
11
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c) Analysis
Here,
as in CO_Q__yersand Wilson,
the evidence
relating
to the plea agreement
was
suppressed
as it was not disclosed
to Appellant
prior
to trial.
Since
the evidence
of the side
agreement
was the term of a plea agreement
between
the State and its chief witness,
and the
n[n Wilson,
the Court
examined
additional
factors
in determining
whether
the
suppressed
evidence
was material:
_"
the specificity
of the defendant's
request
for disclosure
of materials;
the
closeness
of the case against
the defendant
and the cumulative
weight
of the
other
independent
evidence
of guilt;
the centrality
of the particular
witness
to the State's
case;
the significance
of the inducement
to testify; whether
and to what
extent
the witness's
credibility
is already
in question;
and the
prosecutorial
emphasis
on the witness's
credibility
in closing
arguments.
363 Md. at 352 (citations
omitted).
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other
evidence
related
to the plea agreement,
the evidence
was
favorable
to Appellant.
Con_,
Slip op. at 38; Wilson,
363 Md. at 351.
Even
the trial
court
found,
as a matter
of
fact,
that providing
the attorney was a benefit.
(2/11/00-55)
_2While
the jury
learned
through
Appellant's
cross-examination
of Wilds
that
the State provided
him a free private
attorney,
it was not informed
whether
the State paid his attorney.
(2/15/00-68,
App.
14) This