Jermaine Deeric ARRINGTON v. STATE of Maryland.
No. 60, Sept. Term, 2008.
Court of Appeals of Maryland.
Nov. 17, 2009.
983 A.2d 1071
Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., of Maryland, of Baltimore), on brief, for appellee.
Argued before: BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
ADKINS, J.
After his conviction for second degree murder, Appellant Jermaine D. Arrington filed a motion for a new trial based on exculpatory DNA evidence pursuant to
After a jury trial in the Circuit Court for Montgomery County on August 7-10, 1995, Appellant Arrington was convicted of second degree murder in connection with the stabbing death of Paul Simmons. The events giving rise to this appeal began at a birthday party held in the honor of Erica Smith, age 14, at her house in Montgomery County on August 13, 1994. Arrington, Ray Canty, and two other friends arrived at the party around 5:00 to 6:00 p.m. At trial, Lyle Peterson testified that between 10:00 and 10:30 p.m., he, Simmons and a group of his friends came to Erica‘s house to watch a professional fight on television. At approximately 10:45 to 11:00 p.m., the party began to break up, and Arrington and his friends left the home heading in the direction of their cars.
Erica testified that as the group was departing, someone in Arrington‘s group bumped into Peterson. Words were exchanged between the two groups and a fistfight broke out involving Arrington, one or two of his friends, and several of Simmons‘s friends. Ray Davis, a member of Simmons‘s group, testified that he saw Arrington approach Simmons and stab him in the chest. Erica‘s younger sister, Tiffani Smith, testified that she saw Arrington pull a knife from underneath his pants leg and that Arrington then “came up from behind [Simmons] and . . . reached out and stabbed him.” Peterson testified that he saw Arrington holding a knife before the fight. Simmons later died.
. . .
. . .
Erica testified that immediately after the stabbing, Arrington made hand motions and said “Yeah, nigger, that‘s right. I shanked you with my butterfly. You don‘t know who you fucking with. We the Hobart Stars.” Erica‘s mother, Michelle Smith, testified that she tried to break up the fight and heard Arrington state: “‘we‘re the Hobart Stars and you don‘t ‘F’ with us’ ” and ” ‘I shanked you.’ ” Arrington‘s group fled the scene, but Arrington and other members of his group were eventually identified through photographs that had been taken by a guest at the party. Arrington was arrested and charged with first degree murder. Montgomery County Police Department Detective Edward Tarney testified that he arrested Arrington on August 15, 1994 in Washington, D.C. Tarney testified that at the time of Arrington‘s arrest, Arrington‘s hair was in corn rows, that he had some facial hair, and that he was wearing a dark-colored tank top and gray sweat pants. Erica Smith testified that, at the time of the fight, Arrington “had a bush-type, little Afro type of a hairstyle.” Michelle Smith also testified that Arrington had a “bush” hairstyle at the time of the fight.
In addition to hearing from the individuals who witnessed the knife fight, the jury heard testimony from Charles Heurich, a forensic chemist with the Montgomery County Police Department Crime Laboratory. Heurich testified that he examined several blood stains on Arrington‘s gray sweat pants. According to Heurich, the stains were “consistent with the blood type of the victim in this particular case, or any other individual with the same blood type” because the blood sample contained the enzyme “PGM 1.” Various witnesses testified that Arrington had been wearing gray sweat pants at the party, and Officer Tarney testified that gray sweat pants were seized from Arrington at the time of his arrest.
The defense contended that the witnesses were mistaken in their identification of Arrington as the perpetrator and presented evidence implying that the true perpetrator was Canty. The defense introduced a statement given to the police by Richard Antiguas, a 13-year-old who
During its deliberations, the jury presented the judge with the following question regarding a handwritten note apparently found on the blood report: ” ‘The jury has a question regarding the penciled 59 percent next to stain no. 1 on the waste band of the defendant‘s sweat pants. . . . Does 59 percent of the population have matching PGM 1?’ ”1 The judge responded, to the satisfaction of the State and defense counsel: ” ‘You must rely on your own collective recollection of the evidence in this case.’ ” The jury convicted Arrington of second degree murder. During Arrington‘s November 2, 1995 sentencing, he said the following:
I can‘t take back what happened that night and I know that I can never bring Paul back. I mean I understand the pain and the sorrow that the Simmons family is going
through, especially Mrs. Simmons because me and her had a personal relationship and I always looked to her as somewhat of a guardian to me while I was in school.
When I found out that this was her son that was killed that night, I didn‘t know how to react. I didn‘t know how to take it because I knew that I hurt somebody that I cared about and I don‘t know what I can do or what I can say to let her know how sorry I am for what happened that night, not just to Mrs. Simmons but to her whole family.
* * *
I know I can never bring Paul back. I am sorry for what happened that night, but I beg of you, Your Honor, have mercy on me.
For the family, I am sorry what happened that night. Mrs. Simmons, I beg you please forgive me. I never meant for this to happen. The rest of the family, I am so sorry, but there‘s nothing I can do. I can‘t bring him back.
Arrington was sentenced to thirty years of incarceration with five years suspended.2
Petition For Post Conviction Relief For Ineffective Assistance Of Counsel
On July 28, 2000, Arrington filed a Petition for Post Conviction Relief alleging ineffective assistance of counsel because “[c]ounsel failed to have the blood evidence presented in the case tested through a DNA analysis. Petitioner requested that Counsel conduct a DNA test. However, one was never done.” Arrington requested a new trial, vacation of the sentencing and/or re-sentencing, a hearing on the Petition for Post Conviction Relief, and such other and further relief as may be required. On September 12, 2001, there was a hearing in the Circuit Court for Montgomery County on Arrington‘s request. At his hearing, Arrington relayed what he
Well, I think it was right before we picked-started having jury selection, and he came to me and said, “We have some bad news,” and I‘m like, “What is it?”
He‘s like, “Well, they say they have-they‘ve got blood evidence. They say they have the victim‘s blood on your clothes. Do you know how it got there?” I said, “No, I don‘t.” I said, “I don‘t have the victim‘s blood on my clothes.” He said, “Well, this is what they say.”
I said, “Well, the only blood I had on my pants is the blood from a female friend that I had sex with.” And so, he was like, “So, tell me how that got on your clothes.” So, I told him how I had sex with a female and the blood got on my pants, and he was like, “I don‘t think the jury is going to believe that,” and he was like, “It‘s hard for me to believe.” I said, “Well, I‘m telling you the truth.”
I said, “All we have to do is get a DNA test done.” He was like, “Well, we‘ve postponed enough, and I think-I don‘t think we‘re able to postpone again,” or something of that nature.
Arrington also referenced the jury‘s note regarding blood evidence. The State‘s Attorney who tried the case testified that he did not think it was necessary to order DNA testing because so many eyewitnesses testified that Arrington was the attacker and witnesses also testified that he gloated about the attack immediately afterward. According to Arrington‘s trial counsel, Arrington never asked him to conduct DNA testing. Arrington‘s counsel testified that Arrington related to him-not on the eve of trial, but “some time earlier“-that the blood on his clothing came from a woman he had sex with, but that Arrington would provide him no further details about said woman. Arrington‘s counsel explained why he did not request further DNA testing on the blood samples:
I weighed the evidence that we had been provided with by the State showed that he had been identified by a number of eyewitnesses who had ample time to observe him over a long period of time. The evidence also showed that he was at the scene, because there was at least one photograph taken by one of the party participants where he was clearly in the photograph.
A number of the witnesses clearly identified him as being the person who either actually stabbed Mr. Simmons and-or stated that he had stabbed Mr. Simmons with different types of words, either “I cut him” or-I don‘t recall the various words, but they used various words to describe what had happened.
There was no question that he was at the scene. There was very little-this was not a racial case, in that you had white people identifying African American people. These were African American people at the party, and some of the witnesses were African American as well. There was ample time for them to observe him as well.
First of all, even if additional testing had been done and additional testing excluded the blood on the pants as coming from the victim, it would not have eliminated or minimized the effect of the testimony of all those witnesses who clearly identified him at the scene.
The prosecutor had not done DNA testing. His explanation to me as to the source of the blood was so insubstantial that I was concerned that additional testing might actually show the blood came from the victim.
He did not talk to me about DNA testing at the time. I don‘t think he
knew about DNA testing at the time and understood that DNA testing could show perhaps that the blood actually came from the victim. I did not want to raise a red flag for the prosecution at that in the case or heighten that in any way, and for those reasons I didn‘t pursue DNA testing.
The postconviction court denied Arrington‘s request for a finding of ineffective assistance of counsel and issued the following ruling from the bench:
[D]efense counsel testified that he, in fact, did discuss the blood evidence with the defendant and that he did consider the possibility of having the blood tested further but declined to do so-or, made a tactical decision, I should say, not to do so after listening to the defendant‘s explanation of where the blood came from, which was from a woman that he had had sex with shortly before the murder.
The defendant could not identify the woman other than by her first name, gave defense counsel no better explanation or no opportunity to try and track this woman down, and it was entirely reasonable for defense attorney to not have given much credence to his client‘s explanation of where the blood came from.
Based on the State‘s evidence, the defense could have argued that while the blood was consistent, that certainly did not mean that it was from the victim, whereas a DNA test would have been conclusive and most likely have been conclusive against the defendant. That was certainly in the defense counsel‘s mind when he made his tactical decision.
So, the Court finds that counsel made an entirely reasonable explanation for his failure to seek DNA testing of the blood found on the defendant‘s sweat pants.
[T]herefore, there was no deficient performance and no ineffective assistance of counsel.
With respect to prejudice, the Court finds the evidence was overwhelming--setting aside the blood evidence, overwhelmingly against the defendant through a number of eyewitnesses, who not only saw him commit the murder but saw him with a knife and heard him indicate that he had, in fact, stabbed the victim.
Motion To Reopen Postconviction Proceeding
On January 31, 2003, Arrington filed a Motion to Preserve Forensic Evidence and to Conduct DNA Analysis in the Circuit Court. Arrington requested that pursuant to
On June 30, 2006, Arrington filed a Motion to Reopen Postconviction Proceeding and for New Trial pursuant to
Now, there is more to this case, however, than just the eyewitnesses that you are going to hear from because there is also going to be what is called forensic evidence. And by that, let me specifically say what I mean.
When the defendant was arrested several days later, he was wearing the same clothes that he was wearing the night that the killing occurred. And when he was arrested, the police in examining his clothing realized that there were what appeared to be dried bloodstains on his pants.
And the police seized those pants and had them analyzed and compared to the victim‘s blood by someone from the crime laboratory. And the person from the crime laboratory will testify and tell you that that blood on the defendant‘s clothing is the same blood type as the blood that was the victim‘s blood.
Arrington highlighted the question that the jury asked regarding the notations on the blood report, arguing that this question “firmly establishe[d] that the jury used the incorrect and misleading bloodstain evidence as part of its deliberations and as a factor in its decision to convict” because “[t]he jury had no reason to even be concerned about the bloodstain evidence, much less ask a question about it, if the jurors accepted the eyewitness testimony as supporting guilt beyond a reasonable doubt.”
Arrington also put forth a new ineffective assistance of counsel claim, alleging that his lawyer failed to make use of critical exculpatory evidence contained in various police reports. Arrington stated that “[t]he most significant of the exculpatory reports is a handwritten statement from David Edwards, one of the victim‘s friends who participated in the fistfight.” In his statement, Edwards wrote: “When they started fighting I was standing there for a split second and that‘s when I saw the dude with the corn rows come across and try to stab Paul and I thought he missed.” Arrington also cited his counsel‘s failure to present a police report dated July 14, 1994 that identified the “Suspect” as “Stabber B/M 18-22 yr, 6‘0“, 160 corn rows, Black T-shirt some kind of black pants. Possible name of Boo or Ray. Hobart st. gang.” Arrington argued that the testimony of Michelle Smith and Erica Smith was suspect because they mentioned the “Hobart Stars” gang in their testimony, but not in their statements to the police. Arrington contended that the absence of the “Hobart Stars” language from the police reports should have been used by trial counsel to impeach the Smiths by showing that at a time closer to the incident, they made no mention of hearing Arrington brag about a gang affiliation. Arrington also challenged Erica Smith‘s testimony on grounds that she discussed the case with other witnesses. Finally, Arrington cited his trial counsel‘s failure to cross-examine the State‘s expert regarding the percentage of the population that possesses the blood type or enzyme at issue in the case.
The Postconviction Court‘s Order And Memorandum Opinion
After a hearing, the postconviction court issued an order granting Arrington‘s Motion to Reopen Postconviction Proceeding as to the DNA evidence, but denying the motion as to the ineffective assistance of counsel claim. The court also denied Arrington‘s Motion for a New Trial.
In the Memorandum Opinion that accompanied the Order, the postconviction court first dismissed the State‘s assertion that Arrington waived any claim based on new DNA testing because DNA testing was available to him at the time of trial:
The State‘s assertion that Petitioner waived any claim based on new DNA testing because DNA testing was available to Petitioner at the time of trial is without merit. The State consented to the DNA testing thereby effectively acknowledging Petitioner‘s right to assert a claim based on the results of the testing. Furthermore, the legislature chose not to require that DNA testing be unavailable to a defendant at the time of trial to trigger testing under § 8-201.
(Emphasis in original.)
The postconviction court next turned to the question of whether Arrington was entitled to a new trial as a result of the favorable DNA testing.
Maryland Rule 4-331
The postconviction court first engaged in analysis based on the
the motion is based on DNA identification testing or other generally accepted scientific techniques the results of which, if proven, would show that the defendant is innocent of the crime of which the defendant was convicted.
(Emphasis added.)
The court concluded that “[t]he DNA test results clearly do not prove actual innocence standing alone.”
Substantial Or Significant Possibility Standard
The postconviction court did not stop there; it also analyzed Arrington‘s claim under a substantial possibility standard.3 It rejected Arrington‘s claim under this standard:
The DNA test results clearly do not prove actual innocence standing alone. Nevertheless, Petitioner asserts a new trial should be granted if the newly discovered evidence is material. That is,
whether there is a substantial or significant possibility that the verdict of the trier of fact would have been affected by the newly discovered evidence.
* * *
The DNA testing proves conclusively that the victim‘s blood was not found on Petitioner‘s sweatpants. However, Petitioner‘s involvement in the fight itself was never seriously questioned. The blood evidence was in no way key to
placing Petitioner at the scene of the crime. There is an actual threshold question of whether Petitioner was even wearing the same sweatpants on the night of the murder, as he was when arrested days later. No one actually identified the sweatpants produced at trial as those worn by Petitioner on the night of the murder although witnesses described clothing that matched their general description. Petitioner was wearing the sweatpants when he was arrested in the District of Columbia two days after the party, and it was this clothing that was tested.
Moreover, the forensic chemist testified that the blood found on Petitioner‘s sweatpants was “consistent with the blood type of the victim in this particular case, or any other individual with the same blood type.” On cross-examination, Mr. Heurich admitted he was only testifying that the blood on the sweatpants was consistent with the victim‘s blood and he was not testifying that the blood at issue matched the victim‘s blood. Further, the 1994 crime laboratory reports admitted into evidence merely indicate that the blood on the sweatpants was consistent with the victim‘s blood. The State did not even mention the blood evidence in its closing argument. The Court finds that the evidentiary value of the blood evidence was minimal given the totality of the evidence in this case. It certainly does not affirmatively exclude the Petitioner as the individual who stabbed Simmons; nor does it give rise to a reasonable inference that would establish his innocence. The Court cannot find that admission of the blood evidence at trial raises the substantial possibility that the outcome would have been different.
The multiple eyewitness accounts are sufficient to validate the conviction even in light of the new DNA evidence. Two witnesses testified to seeing the actual stabbing, one witness testified to seeing Petitioner holding a knife immediately before the stabbing, and two witnesses testified to hearing Petitioner shout he had stabbed the victim. All of these witnesses were subject to vigorous cross-examination by defense counsel. The jury is charged with judging the
credibility of witnesses and determining what weight to give to any inconsistencies.
(Bold emphasis added, italics in original, footnote omitted.)
Ineffective Assistance Of Counsel
The postconviction court next dismissed Arrington‘s ineffective assistance of counsel claim:
Petitioner also claims ineffective assistance of counsel stemming from counsel‘s failure to use critical exculpatory evidence contained in various police reports, as well as failure to establish the percentage of individuals having the same blood type as both Petitioner and the victim. Petitioner raised ineffective assistance of counsel at his first postconviction proceeding. It is Petitioner‘s position that a reopening of postconviction proceedings pursuant to § 8-201, ipso facto reopens all issues, regardless of any claims of waiver, abandonment or
that claims have been fully litigated. Petitioner fails to cite any authority for such a reading of § 8-201. The legislature intended § 8-201 to provide a mechanism for those with claims of “actual innocence” to utilize favorable scientific evidence at any time to prove their innocence. The statute was not designed to open the floodgates of otherwise structured and constricted postconviction law. Nor was it designed to provide a “super-appeal” as an end-run around the entire body of postconviction law. An additional question for the Court is whether it is in the interests of justice to reopen the issue of ineffective assistance of counsel at this juncture. Petitioner points to trial counsel‘s failure to utilize exculpatory information contained within certain police reports to demonstrate ineffective assistance of trial counsel. All of the information was known prior to trial, let alone prior to the first postconviction hearing. Petitioner had the benefit of counsel on appeal and failed to raise these issues. Further, Petitioner had the benefit of counsel during his initial postconviction and failed to raise these issues in support of his allegation of ineffective assistance of counsel. Consequently, Petitioner has waived the right to now assert these
claims. Furthermore, it would not be in the interests of justice to reopen the ineffective assistance of counsel claim where, as here, the Petitioner had access to the information complained of prior to his appeal, as well as his first postconviction hearing, and failed to raise these issues in those forums.
Appeals
On April 5, 2007, Arrington filed an Application for Leave to Appeal (“ALA“), a Notice of Appeal to Court of Special Appeals (“CSA“), and a Notice of Appeal to Court of Appeals under
ORDERED, pursuant to
Maryland Rule 8-132 andCP § 8-201(j)(6) , that appellant‘s April 5, 2007 notice of appeal to the Court of Appeals in the above-captioned action is hereby transferred to the Court of Appeals of Maryland; and, it is furtherORDERED that, pending the conclusion of proceedings in the Court of Appeals on the matter being transferred, all further proceedings in this Court are hereby STAYED concerning (a) appellant‘s April 5, 2007 direct appeal to this Court, (b) appellant‘s April 5, 2007 application for leave to appeal to this Court.
The questions presented by Arrington‘s appeal are as follows:
- Whether a petitioner whose postconviction proceeding has been “reopened” pursuant to
CP Section 8-201 due to newly discovered favorable DNA evidence is entitled to introduce additional exculpatory evidence that would constitute grounds for relief separately or in combination with the DNA evidence. - Whether the postconviction court erred by denying Appellant a new trial after concluding that the DNA evidence did not raise a substantial or significant possibility that the verdict would have been different.
DISCUSSION
I.
Jurisdiction
As a preliminary matter, the State argues that this Court does not have jurisdiction
Certiorari Jurisdiction
The State reasons that because the Application for Leave to Appeal was denied by the CSA, there is no additional basis for review. The State cites
Direct Review Under CP Section 8-201
The State next challenges the legitimacy of direct review in this case, contending that
The State maintains that the 2008 revisions to
The dissenting opinion introduces a new jurisdictional challenge, which depends, for its validity, on rewriting the plain words of
[I]n any case or proceeding pending in or decided by the Court of Special Appeals upon appeal from a circuit court . . . any party, including the State, may file in the Court of Appeals a petition for certiorari to review the case or proceeding.” (Emphasis added.)
”An appeal to the court of appeals may be taken from an order entered under this section.”4
The contrast between Section
. . .
Moreover, this Court in adopting
There is other statutory law ignored by the dissent. The linchpin of the dissent‘s argument is its interpretation of
ately preceding and limiting section,
The purpose of
§§ 12-307 and12-308 of this subtitle is to allocate appellate jurisdiction between the Court of Appeals and the Court of Special Appeals. Except as expressly provided in those sections, nothing in them creates or abrogates a right to appeal or otherwise invoke appellate jurisdiction granted by the laws of the State.
Nothing in
For the above reasons, we conclude that the right of appeal granted in
II.
Scope Of Review Under The Postconviction Statute
When Arrington‘s postconviction proceeding was reopened, he not only argued that he should be given a new trial because of the DNA testing results, but also on the grounds that his trial counsel was ineffective for failing to introduce a witness statement and two police reports identifying Ray Canty as Simmons‘s stabber. The postconviction court determined that it would not consider that evidence because Arrington had waived the ineffective assistance of counsel issue by not raising it at his first postconviction proceeding.
On appeal, Arrington argues that “[t]he [postconviction] [c]ourt erred because it misunderstood the difference between a second successive petition and a proceeding that is reopened. Once a postconviction petition is reopened, its status is that of the initial postconviction. In other words, it is as if the postconviction proceeding was never closed.” The State counters that “a reopened postconviction proceeding does not eradicate the concept of waiver, nor does it eliminate the limits placed on both the number of petitions that may be filed, or the time in which postconviction petitions may be filed.”
Waiver
This Court has yet to decide whether a petitioner in a reopened postconviction proceeding may raise claims that would normally be precluded under the statutory provisions about waiver in the Uniform Postconviction Procedure Act (“UPPA“),
Statutory Framework
In Evans v. State, 396 Md. 256, 276-77, 914 A.2d 25, 37 (2006), cert. denied, 552 U.S. 835, 128 S.Ct. 65, 169 L.Ed.2d 53 (2007), Judge Wilner wrote:
Maryland Code,
§ 7-102 of the Criminal Procedure Article (CP) —the heart of the [UPPA]—permits a convicted person to seek relief in the Circuit Court in which the conviction occurred upon an allegation that (1) the sentence or judgment was imposed in violation of the U.S. or Maryland Constitution or laws of this State, (2) the court lacked jurisdiction to impose the sentence, (3) the sentence exceeds the maximum allowed by law, or (4) the sentence is subject to collateral attack on a ground that would otherwise be available under a writ of habeas corpus, coram nobis, or other common law or statutory remedy.There are two important conditions to that right, however[.] The first, expressed in
CP § 7-102(b)(2) and circumscribed to some extent in§ 7-106 , is that the alleged error “has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person‘s conviction.”
(b) Waiver of allegation of error.—(1)(i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:
- before trial;
- at trial;
- on direct appeal, whether or not the petitioner took an appeal;
- in an application for leave to appeal a conviction based on a guilty plea;
- in a habeas corpus or coram nobis proceeding began by the petitioner;
- in a prior petition under this subtitle; or
- in any other proceeding that the petitioner began.
(ii) 1. Failure to make an allegation of error shall be excused if special circumstances exist.
2. The petitioner has the burden of proving that special circumstances exist.
(2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.
(Emphasis added.) Under
Prior Petition
In interpreting
Arrington argues that this was not a “prior petition” under Subtitle 7:
The [postconviction court] erred because it misunderstood the difference between a second successive petition and a proceeding that is reopened. Once a postconviction petition is reopened, its status is that of the initial postconviction. In other words, it is as if the postconviction proceeding was never closed. Consequently, Arrington was entitled to raise any issue that could have been raised in the initial postconviction proceeding.
If one were to focus only on the word “reopen,” this argument would have some initial appeal because the word suggests a return to the original proceeding, during which the petitioner was free to present his contentions without the restraint of
The UPPA, originally enacted in 1958, “protected a broad array of rights, placed limits on collateral litigation (especially through res judicata and ‘waiver’ provisions), and took a step toward unifying the various collateral remedies by making the postconviction process the primary means of asserting collateral claims.” Michael A. Millemann, Collateral Remedies in Criminal Cases in Maryland: An Assessment, 64 Md. L.Rev. 968, 991-92 (2005). Although in the original Act the number of postconviction claims a person could file was unlimited, under current law, only one is allowed—though amendments are permitted—with an opportunity to reopen “in the interests of justice.” See
Arrington relies on Smith v. State, 115 Md.App. 614, 694 A.2d 182 (1997) for the proposition that the reopening of a postconviction proceeding permits a defendant to raise any issue that could have been raised in the initial postconviction proceeding. Smith does not support this contention. Smith addressed Article 27, Section 645A(a)(2)(i) of the Maryland Code—now codified as
Smith filed a petition for post conviction relief arguing (1) that the trial court “imposed the order of probation improperly, in that the court failed to comply with
The Ineffective Assistance Of Counsel Claim‘s Connection To The DNA Evidence
Arrington also argues that he “was entitled to bring in new evidence to assist the fact finder in evaluating the significance of the DNA evidence. Given that the Circuit Court stated that part of Arrington‘s burden was to prove his actual innocence, Arrington should have been permitted to introduce evidence on that element.” This contention again brings into play our retroactive application of
Because we have rejected the actual innocence standard, we only review the validity of the postconviction court‘s alternate holding based on the substantial possibility standard. This approach forecloses Arrington‘s argument that
III.
The Postconviction Court‘s Finding That Newly Discovered DNA Evidence Would Not Have Affected the Verdict
Arrington argues that “[t]he postconviction court erred by concluding that the newly discovered DNA evidence would not have affected the verdict.” He offers the following in support of his argument:
- The jury note establishes that the jury considered the misleading scientific evidence during deliberations;
- Juries give heavy weight to scientific evidence;
- The misleading scientific evidence weakened the defense theory of the case and arguments;
- The State‘s case was substantially diminished through cross-examination and was not overwhelming; and
- The postconviction court imposed a requirement not set forth in the statute or rule.
The State counters:
There were multiple eyewitnesses to the murder, and several people reported hearing Arrington gloat about the stabbing afterwards. The jury was not presented with any false information about the bloodstain. The State did not even reference the blood evidence in its closing argument to the jury.
Standard Of Review
We “will not disturb the factual findings of the postconviction court unless they are clearly erroneous.” Wilson v. State, 363 Md. 333, 348, 768 A.2d 675, 683 (2001). “Although reviewing factual determinations of the post-conviction court under
“The question whether to grant a new trial is within the discretion of the trial court. Ordinarily, a trial court‘s order denying a motion for a new trial will be reviewed on appeal if it is claimed that the trial court abused its discretion.” Cooley v. State, 385 Md. 165, 175, 867 A.2d 1065, 1071 (2005) (citation and internal quotation marks omitted). In Gray v. State, 388 Md. 366, 383-84, 879 A.2d 1064, 1073-74 (2005), we elaborated on the abuse of discretion standard as follows:
Abuse of discretion is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ways.... [A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of “untenable grounds,” “violative of fact and logic,” and “against the logic and effect of facts and inferences before the court.”
(Citations and internal quotation marks omitted.) Of course, the court‘s discretion is always tempered by the requirement that the court correctly apply the law applicable to the case.
Arrington and the State agree that the appropriate standard for the postconviction court to employ in reviewing whether the DNA evidence warrants a new trial is whether a substantial possibility exists that the petitioner would not have been convicted if the DNA testing results had been known or introduced at trial. See
The Jury Notes
Arrington contends that the postconviction court‘s conclusion that the misleading serology had “minimal” effect on the jury “ignored the fact that the jury wrote a note specifically raising a question about the bloodstain evidence.” In a recent case, we examined the value of jury notes as a tool to assess the impact that improper evidence had on the jury. See Hunter v. State, 397 Md. 580, 597, 919 A.2d 63, 72-73 (2007). In Hunter, we were asked to determine whether it was error to allow the prosecutor to ask the defendant whether the police witnesses were lying. We determined that the prejudicial effect of “were-they-lying” questions was “demonstrated by the number and the combination of the questions themselves, the repeated emphasis on them during the State‘s closing argument, and, most importantly, the jury‘s behavior during its deliberations.” Id., 919 A.2d at 72 (emphasis added). We discussed the impact of jury notes:
The jury sent four notes to the trial court. Three asked for additional information or clarification of certain information. One of the questions related to the pawnshop ticket and may have been related to a concern the jury had about
the truthfulness of petitioner‘s testimony that he had pawned the ring for a friend. Another related to whether the petitioner had signed a confession, which may have been referring to the conflict between the officers’ and the petitioner‘s testimony in respect to whether he had confessed and, thus, this jury question may have directly related to the “were-they-lying” questions. The jury‘s question, in respect to possession of stolen property, may have related to a juror‘s concern that by pawning the stolen property for a friend, the petitioner must have assumed that the property was stolen. Additionally, the jury sent one note telling the trial judge that they doubted their ability to reach a unanimous verdict. We are unable to say, beyond a reasonable doubt, that the jury was not affected by the “were-they-lying” questions. Therefore, the trial court‘s error in allowing the questions was not harmless.
Id., 919 A.2d at 72-73. As we did in Hunter, here we take seriously the written communications from the jury to the judge in assessing the impact of certain evidence on their deliberative process.
The chronology of jury questions in this case is as follows. After several hours of deliberation, the jury sent a note asking three questions. The first question was what questions were asked of the witnesses during the photo identification process; the trial judge responded, “Your recollection of the testimony will govern.” The jury also requested copies of the statements witnesses gave to the police and grand jury and a copy of Richard Antiguas‘s statement. The judge informed the jury that they had everything entered into evidence including the statement.
During the following day‘s deliberations, the jury sent the note requesting clarification of the serology report:
[The Court]: Counsel, I have a message from the jury which reads as follows:
“Judge Pincus, The jury has a question regarding the penciled 59 percent next to stain no. 1 on the waste band of the defendant‘s sweat pants.” And they are referring to the forensic supplemental report, marked State‘s Exhibit No. 22.
The question is: “Does 59 percent of the population have matching PGM 1?”
My answer will be: “You must rely on your own collective recollection of the evidence in this case.”
The questions asked by the jury here suggest that the jurors took seriously the prejudicial serology evidence now called into question by conflicting DNA evidence. See Clemons v. State, 392 Md. 339, 372, 896 A.2d 1059, 1078 (2006) (internal quotation marks and citation omitted) (stating that “[l]ay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials“).
The State maintains that it did not claim, through its expert, any greater degree of precision or reliability in the blood typing evidence than the testing procedures allowed for and did not refer to the blood evidence at all in its closing. This is correct. The State did, however, make the following statement during its opening argument:
Now, there is more to this case, however, than just the eyewitnesses that you are going to hear from because there is also going to be what is called forensic evidence. And by that, let me specifically say what I mean.
When the defendant was arrested several days later, he was wearing the same clothes that he was wearing the night that the killing occurred. And when he
was arrested, the police in examining his clothing realized that there were what appeared to be dried bloodstains on his pants. And the police seized those pants and had them analyzed and compared to the victim‘s blood by someone from the crime laboratory. And the person from the crime laboratory will testify and tell you that that blood on the defendant‘s clothing is the same blood type as the blood that was the victim‘s blood.
The prosecutor‘s statement clearly indicated that the blood evidence would be a critical component of the State‘s case against Arrington. Realizing that opening statements are the first characterization of the case heard by the jury and often presented in artful form, we do not underestimate the ultimate impact of these statements on the jury‘s verdict. Suffice it to say, the State‘s silence on this point in closing argument did not eradicate from the jury‘s mind what the prosecutor promised to them at the beginning. This is especially so when the promised (although faulty) evidence of the victim‘s blood on Arrington‘s pants was produced during the trial.
The State also relies on Shanks v. State, 185 Md. 437, 445, 45 A.2d 85, 88 (1945), because that case affirmed the admission of serology evidence that type O blood found on Shanks‘s coat matched that of a rape victim, even though 45 percent of the population has type O blood. Shanks does not advance the State‘s cause—the admissibility of traditional serology evidence is not at issue in this appeal. The issue is whether the new DNA evidence, which contradicted the serology evidence admitted at trial, met the “substantial possibility” test of
The jury‘s keen awareness of the serology evidence that is revealed by its notes cannot be ignored. The jury‘s focus on that evidence, and the flat contradiction of the State‘s serology evidence shown by the DNA evidence, persuade us that there is a “substantial possibility” that Arrington would not have been convicted if the DNA evidence had been introduced at trial. See
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED AND CASE REMANDED FOR NEW TRIAL. COSTS TO BE PAID BY MONTGOMERY COUNTY.
BATTAGLIA and GREENE, JJ., Dissent.
Dissenting Opinion by BATTAGLIA, J., which GREENE, J., Joins.
I respectfully dissent because the majority reaches the merits of the case, although we never granted certiorari.
Arrington filed a “Motion to Reopen Postconviction Proceeding and For New Trial” pursuant to former
[Arrington‘s] Motion to Reopen Postconviction Proceeding (DE # 216) is hereby GRANTED IN PART and DENIED IN PART—DENIED as to the ineffective assistance of counsel claim; GRANTED as to the newly discovered DNA evidence; and it is further ORDERED that [Arrington‘s] Motion for a New Trial (DE # 217) is hereby DENIED.” (emphasis in original).
Thereafter, Arrington filed with the Court of Special Appeals an Application for Leave to Appeal, a Notice of Appeal to the Court of Special Appeals, and a Notice of Appeal to the Court of Appeals.
The Court of Special Appeals thereafter denied Arrington‘s Application for Leave to Appeal, but six months later, on its own initiative, ordered Arrington‘s counsel to show cause why it should not dismiss the direct appeal to the Court of Special Appeals, stay the direct appeal to the Court of Special Appeals, and/or transfer the matter to the Court of Appeals for further proceedings “upon direct appeal” to the Court of Appeals. Arrington filed a response arguing that the court should transfer the case to the Court of Appeals to be handled as a direct appeal pursuant to
ORDERED, pursuant to
Maryland Rule 8-132 andCP § 8-201(j)(6) , that [Arrington‘s] April 5, 2007 notice of appeal to the Court of Appeals in the above-captioned action is hereby transferred to the Court of Appeals of Maryland; and, it is furtherORDERED that, pending the conclusion of proceedings in the Court of Appeals on the matter being transferred, all further proceedings in this Court are hereby STAYED concerning (a) [Arrington‘s] April 5, 2007 direct appeal to this Court, (b) [Arrington‘s] April 5, 2007 application for leave to appeal to this Court.
We, however, were not presented with a petition for certiorari in this case, unlike that which we granted in Thompson v. State, 395 Md. 240, 909 A.2d 1035 (2006). The majority, in treating the present case as identical to Thompson, however, has failed to acknowledge the difference between our exclusive jurisdiction, when the Legislature mandates that we take a case on direct appeal, and our discretionary jurisdiction, when we may take an appeal, either before or after the Court of Special Appeals has acted. Our jurisdiction in cases such as the present under
Our jurisdiction to entertain a case is wholly statutory, and our ability to entertain an appeal must be legislatively granted.
Creation of the Court of Special Appeals was authorized by a constitutional amendment approved by the General Assembly on 23 March 1966 and ratified by the electorate on 8 November 1966 as Article IV, § 14A of the Maryland Constitution, which bestowed on the Legislature the power to “create such intermediate courts of appeal, as may be necessary” by statute and prescribe their jurisdiction and powers. Chapter 10, § 1 of the Acts of 1966. Pursuant to that constitutional amendment, the General Assembly created, by statute, the Court of Special Appeals as the second ever intermediate appellate court in Maryland. Chapter 11, § 1 of the Acts of 1966 (codified at Md.Code (1957, 1966 Repl.Vol.), Art. 26, § 130 and recodified at Cts. & Jud. Proc. Article, § 1-401). At the time of its nativity, the intermediate appellate court‘s jurisdiction was limited to criminal matters involving sentences other than death. Md.Code (1957, 1966 Repl.Vol.), Art. 26, § 130. The court was composed of only five members, hearing and deciding cases as a full court at that time. Id. Four years later, however, the General Assembly expanded the Court of Special Appeals‘s jurisdiction to include certain civil matters, concomitantly increasing its size to nine members hearing cases in panels of no less than three judges. Chapter 99, § 1 of the Acts of 1970. Along with the expansion, the Legislature empowered the court to hear and decide cases in banc by a majority vote of the judges of the court. Id. Within the ensuing seven years, the size of the intermediate appellate court was expanded on three more occasions: to 10 judges in 1973, 12 judges in 1974, and to the now familiar number of 13 judges in 1977.
Id. at 360-61, 918 A.2d at 445-46 (footnotes omitted). The purpose for the creation of the Court of Special Appeals was to “relieve [the Court of Appeals] of the
The certiorari process generally defines how we reach a case. See
convicted person upon whom the death penalty has been imposed, see
Juxtaposed against the exercise of our exclusive jurisdiction and power to entertain appeals through the certiorari process is the exercise of our jurisdiction in traditional post-conviction cases in which convicted
In a traditional post-conviction case, when an inmate‘s petition for relief under the Maryland Uniform Post Conviction Procedure Act is denied by a circuit court, he or she must file an Application for Leave to Appeal in the Court of Special Appeals. See
Williams v. State, 292 Md. 201, 208-11, 438 A.2d 1301, 1304-05 (1981). Only when an Application for Leave to Appeal is granted and the merits reached by the Court of Special Appeals can we entertain the case, and only then after the grant of a petition for certiorari.13
This traditional process was altered in 2001 in cases in which DNA may be involved, however, when the Legislature enacted the DNA Post Conviction Act for the purpose of authorizing persons convicted of manslaughter, murder in any degree, or first or second degree rape or sexual offense to file a petition for postconviction DNA testing of certain evidence under certain circumstances. The DNA Post Conviction Act, as codified in
the permissive language of amended
When the DNA post-conviction court denied a new trial, Arrington chose to pursue the traditional post-conviction appellate route. He did not file a petition for writ of certiorari with us, as he could have done pursuant to
Judge GREENE has authorized me to state that he joins in the views expressed in this dissenting opinion.
Notes
New trial.—A petitioner may move for a new trial under this section on the grounds that the conviction was based on unreliable scientific identification evidence and a substantial possibility exists that the petitioner would not have been convicted without the evidence.The revised statute also added a new subsection (i)(2), with the following new trial provision:
(2) If the results of the postconviction DNA testing are favorable to the petitioner, the court shall:(Emphasis added.)
(i) if no postconviction proceeding has been previously initiated by the petitioner under § 7-102 of this article, open a postconviction proceeding under § 7-102 of this article;
(ii) if a postconviction proceeding has been previously initiated by the petitioner under § 7-102 of this article, reopen a postconviction proceeding under § 7-104 of this article; or
(iii) on a finding that a substantial possibility exists that the petitioner would not have been convicted if the DNA testing results had been known or introduced at trial, order a new trial.
(3) If the court finds that a substantial possibility does not exist under paragraph (2)(iii) of this subsection, the court may order a new trial if the court determines that the action is in the interest of justice.