Davis v. State

BENJAMIN DAVIS, III v. STATE OF MARYLAND

No. 2640

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

February 9, 2018

Circuit Court for Howard County

Case No. 13-K-01-040288

UNREPORTED

Woodward, C.J., Eyler, Deborah S., Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

PER CURIAM

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In 2001, a jury in the Circuit Court for Howard County convicted Benjamin Davis, III, appellant, of eight offenses, including attempted second-degree murder and the use of a handgun in a crime of violence. The court subsequently sentenced him to ten years in prison for attempted murder and a consecutive five years for the handgun offense. We affirmed appellant's convictions and sentence in an unreported opinion. See Davis v. State, No. 2262, Sept. Term 2001 (filed Apr. 3, 2003). We recite the factual background from that opinion for contextual purposes:

Before going out to a bar on the evening of February 9, 2001, [appellant], Aamir Benton, Craig Mott, and several other people were gathered at Stephanie Christian's house. Christian's mother came home before everyone left and "kicked everybody out of the house." Benton asked Mott if he would give Benton and [appellant] a ride to Benton's grandmother's house, a few blocks away from Christian's house. [Appellant], Benton, Mott, Nick Hebron, Nick Scarborough, and Greg Scarborough left together in Mott's girlfriend's car.

After leaving Christian's house, the car arrived at the intersection of Jones Road and Mary Lane in the Jessup area of Howard County, an intersection near Benton's grandmother's driveway. According to testimony from Mott, [appellant], Benton and he were involved in the drug trade. Benton told Mott to get out of the car so Benton could "holler at [him] real quick." Mott, [appellant], and Benton all got out and stood at the back of the car near the trunk. Benton was supposedly upset with Mott for not sending him commissary money while Benton was in jail. Benton had apparently helped Mott enter the narcotics trade and believed that Mott, out of respect, should have helped him during his incarceration. At some point, Mott alleged that Benton told [appellant] to "heat this n[*****] up."

At that instruction, [appellant] reached for a gun he had concealed in his waistband. As [appellant] went for his gun, Mott fled into the woods around the intersection. Mott heard at least one shot fired behind him. Mott reached a house, where Jason Benjamin let him in and allowed him to call 911. Both Mott and Benjamin saw Mott's girlfriend's car drive off toward Guilford Road and heardanother shot. Officers arrived shortly after the second shot and found two .45 caliber shell casings on Mary Lane, but did not locate [appellant] or Benton at that time. Howard County Police later found Mott's girlfriend's car by using "Lowjack."

Id. at slip op. 1-2.

Following his unsuccessful appeal, appellant filed numerous post-conviction actions, none of which were successful. Relative to this appeal, on December 12, 2016, appellant filed a petition for a writ of actual innocence, claiming that Mott had recanted his trial testimony, and this constituted newly discovered evidence that called into question his convictions. Attached to the petition was an affidavit by Mott in which he claimed that he was pressured by the prosecutor to testify that appellant shot at him. Still, Mott states that he "knew that either Aamir Benton or [appellant] were involved[.]" The circuit court dismissed the petition without a hearing, determining that the issues raised by the affidavits were not newly discovered evidence because the information contained therein was known at trial.¹

Appellant contends that in ruling on his petition, the circuit court did not have the benefit of a recent Court of Appeals decision, State v. Ebb, 452 Md. 634 (2017), which he believes stands for the proposition that when a victim recants his or her testimony, that is "newly discovered evidence" sufficient to warrant a hearing on a petition for a writ of actual innocence. Accordingly, he maintains that, because Mott recanted his trial testimonyin his purported affidavit, the court should have held a hearing on his petition. We disagree and affirm.

We review a circuit court's decision as to the sufficiency of a petition for a writ of actual innocence de novo. See Smallwood v. State, 451 Md. 290, 308-09 (2017). The Court of Appeals has held that in order to prevail on a petition for a writ of actual innocence, the petitioner must demonstrate "actual innocence," meaning that "a defendant is not guilty of a crime or offense in fact. In other words, 'actual innocence' means the defendant did not commit the crime or offense for which he or she was convicted." Id. at 313. Stated another way, "'[a]ctual innocence means factual innocence, not mere legal insufficiency.'" Yonga v. State, 221 Md. App. 45, 57 (2015) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)), aff'd, ...