Information relating to Serial Podcast
About Jack Berlin
http://www.prizmshare.com
Appellant
Wilds
STATE
Hae
COURT
plea
TRIAL COURT
plea AGREEMENT
Information relating to Serial Podcast
About Jack Berlin
http://www.prizmshare.com
Appellant
Wilds
STATE
Hae
COURT
plea
TRIAL COURT
plea AGREEMENT
<p>i i i I I I I I I I I I I I I I I 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 I I i I I I ! I I I ! I I I I I I I 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 ! I ! I ! I I I I I I i I I ! I I 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 ii i I !, I I I ! I i I, l I i l i i II I 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 ! I i i ! I I ! I ! i I I i I I ! I ! 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 iv I I ! D I I l l l, I I I l l I I I I I I 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 I l ! i I I I I I I I i ! I I ! I 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) I I i i i ! I I I I i I i I I I i I I 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? I I I l , i I I I I I i I i I I I I I 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 I I ! ! I i i I I I I I i i i I I i I 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 I ! I l I l I I I i ,I I I i i I I I I 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 i I, I I I I I i I i i i I i i, I I I I 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 i I I I i l I I I I I I I t I i I I I 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 ! ! I I I I I I I I I ! i i I I I I I 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- I I I I I I I I I I I I I I I I I I I 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 I I I I I ! I I I I I I i I I ! I I I 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 10 I I I I I I I I I I ! I I I ! I I I I 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) 11 I I I i I I I I i I I I I I I I I I I 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 12 I I I I I I i I i I I I I I I I I I I 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 13 I I I I I I I I i I I I I I I I I I I 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 14 I I I I I I I I i I I I I I I I I I I 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 15 I I ! I I I I l I I I I I I I I I I I 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) 16 ! I I I I I I I I I I I ! I I I I I ! 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 17 I I ! I i I I I I I I I ! i I I i I I 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). 18 i l I I I ! I ! II I I I I I I i I I I 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. 19 ! i I i ! i i ! ! I I I I i I i I I I I 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) 2O I I I, I i i I I I I , I i I I I i I 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 21 I i I I I i I i I i I l i i I i ! i I 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. 22 1 i i I I i I I i i i I I i l i I i I 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) 23 i i I I i i i I i I I l i i I ! i i I 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 24 t, I I I I i i I ! I I I I i I i I i I 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 25 i i I I I ! ,i i i I I I 1 I I i I i I 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? 26 ! I I I i i i i I I I I I I I i I i I [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 -- 27 i i ! i i i i I I I I I I I I I i i i 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) 28 i I I I i I i I I I I I i I I I I I I 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 29 i I I i i I I I I I I I i I I l I i I 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. 3O ! I I i I I I I I I I I I I I I I I I 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 31 i I I I I i I I I I I I I I I ! I I I 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 32 i I I I I I I I I I I I I I I I I I I 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)). 33 I I I I I I I I I I I I I I I I I I I 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 I 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). 34 I I I I I I I I I I I I I I I I I I I 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</p>