Evans v. State

886 A.2d 562

389 Md. 456

Vernon EVANS, Jr. v. STATE of Maryland.

Nos. 18, September Term, 2004, 3, September Term, 2005.

Court of Appeals of Maryland.

November 10, 2005.

Reconsideration Denied December 13, 2005.

A. Stephen Hut, Jr. (Todd C. Zubler, Kalea Seitz Clark, Shoshana L. Gillers, Kayla C. Stahlman, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Jeffrey B. O'Toole, Julie Sippel Dietrich, O'Toole, Rothwell, Nassau & Steinbach, Washington, DC, Catherine M. Grosso, of counsel, Washington, DC, all on brief), for appellant.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

William J. Murphy, John J. Connolly, Murphy & Schaffer, LLC, Baltimore, amicus curiae.

John J. Gibbons, Lawrence S. Lustberg, Claudia Van Wyk, Gitanjali S. Gutierrez, Jonathan Hafetz, Megan Lewis, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., Newark, NJ, Angela Ciccolo, Interim Gen. Counsel, Victor L. Goode, Asst. Gen. Counsel, NAACP, Inc., Baltimore, all of counsel.

Argued before BELL, C.J., RAKER, WILNER, HARRELL, BATTAGLIA, GREENE and LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.

WILNER, J.

On April 28, 1983, appellant, Vernon Evans, for a fee of $9,000 to be paid by his friend, Anthony Grandison, murdered David Piechowicz and Susan Kennedy, deliberately, willfully, with premeditation, in cold blood. Grandison wanted Piechowicz and his wife, Cheryl, killed to prevent them from testifying against Grandison in a pending drug case in Federal Court, and he hired Evans to do the job.

The Piechowiczes were employed at the Warren House Motel. Unbeknownst to Evans, Cheryl was not at work that day; her sister, Ms. Kennedy, was substituting for her. Evans drove to the motel, walked into the lobby with a machine pistol, and fired nineteen bullets at the two victims. For those crimes, he was twice sentenced to death.¹ In affirming the first of the death sentences, we observed that "[t]he murders giving rise to this prosecution were as heinous as those in any case to come before us under the present capital punishment statute. No killings could have been more premeditated and deliberate than those here." See Evans v. State, 304 Md. 487, 539, 499 A.2d 1261, 1288 (1985),cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 722 (1986).

We have set forth the underlying facts and procedural history of the case often enough in the opinions disposing of the nine previous appeals by Evans, and there is no need to repeat them here. See Evans v. State, supra, 304 Md. 487, 499 A.2d 1261 and Evans v. State, 382 Md. 248, 855 A.2d 291 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1325, 161 L.Ed.2d 113 (2005). Before us in these two appeals — his tenth and eleventh in this Court — are two motions filed by Evans in the Circuit Court for Baltimore County to correct what he regards as an illegal sentence, both of which were denied. The first appeal (Misc. No. 18) is straightforward; the second (Misc. No. 3) has a more complex background. Neither has merit.

I. MISC. NO. 18 (PATERNOSTER)

The motion at issue in Misc. No. 18 was based entirely on a statistical analysis conducted by Raymond Paternoster, a Professor of Criminology and Criminal Justice at the University of Maryland, which Evans claims establishes a pattern of racial and geographic discrimination in the implementation of the death penalty in Maryland. The Study, he avers, indicates that the chances of receiving a death sentence in Maryland are much greater if (1) the defendant is African-American, (2) the victim was white, and (3) the crime was committed in Baltimore County, all of which pertained to his case. That motion was filed on February 28, 2005, and was denied, without a hearing, on March 18, 2005.² Evans complains, first, that the motion was denied, and second, that it was denied without affording him the opportunity to conduct discovery.

In Baker v. State, 389 Md. 127, 883 A.2d 916 (2005), responding to precisely the same argument made by Wesley Baker, we held that a motion to correct an illegal sentence filed pursuant to Maryland Rule 4-345(a) was not the appropriate vehicle to raise this issue based on the Paternoster Study. We explained there, as we had in an earlier opinion in Evans's case, Evans v. State, supra, 382 Md. 248, 278, 855 A.2d 291, 309, that "a motion to correct an illegal sentence historically was entertained only where the alleged illegality was in the sentence itself or the sentence never should have been imposed," and that, where the sentence itself was lawful, such a motion was not appropriate. Baker, 389 Md. at 133,883 A.2d at 919 (2005). There was nothing intrinsically illegal in Evans's sentence; he was properly found to be a principal in the first degree in two first degree murders for which the death penalty could lawfully be imposed, and the court properly found that the aggravating factors proved beyond a reasonable doubt outweighed any mitigating factors and that death was the appropriate sentence. See Evans v. State, 333 Md. 660, 637 A.2d 117 (1994),cert. denied, 513 U.S. 833, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994).

We acknowledged in Baker that, in Oken v. State, 378 Md. 179, 184-86, 835 A.2d 1105, 1108, 1157-58 (2003), cert. denied, 541 U.S. 1017, 124 S.Ct. 2084, 158 L.Ed.2d 632 (2004), and in Evans v. State, supra, 382 Md. at 279, 855 A.2d at 309, we had recognized a limited exception to that general principle and had entertained a motion under Rule 4-345(a) where "in a capital sentencing proceeding, an alleged error of constitutional dimension may have contributed to the death sentence, at least where the allegation of error is partly based upon a decision of the United States Supreme Court or of this Court rendered after the defendant's capital sentencing proceeding." Baker, supra, 389 Md. at 136, 883 A.2d at 921, quoting from Evans, supra. We concluded, however, that the Paternoster Study did not constitute a decision of the United States Supreme Court or of this Court and that an allegation of error, even of Constitutional dimension, based on that Study, did not qualify under the limited exception.

We affirmed the denial of Baker's motion for that reason and shall do the same with respect to Evans's motion, which stands on no firmer ground. One collateral, but important, comment that we made in Baker bears repeating here:

"Although for statistical purposes Baker's sentencing was included in the sweep of the Paternoster Study, there concededly is no conclusion drawn there that Baker's sentence specifically was influenced by any impermissible racial or geographic factors. Additionally, Dr. Paternoster stated in his testimony before the Senate Judicial Proceedings Committee on 9 January 2003, shortly after the initial study was released to the public: `I would like to make it especially clear that these results [of the Study] do not mean that anyone is behaving in a racially discriminatory manner because I think there are other explanations for that.'"

Baker, supra, at 138 n. 14, 883 A.2d at 923 n. 14.

That is equally true with respect to Evans. Apart from what Evans chose to draw from the statistics compiled by Professor Paternoster, there is nothing in the record of this case to indicate that (1) the State's Attorney, in seeking and pursuing the death penalty against Evans, was in any way influenced by the fact that Evans is an African-American or that his victims were white, (2) any ruling by any judge presiding at any proceeding in the case was in any way influenced by those factors, or (3) any juror who sat in the case and voted to impose the death penalty was in any way influenced by those factors. Thus, not only has Dr. Paternoster disavowed any suggestion that his Study establishes racial discrimination on the part of anyone in any particular case, but, after 21 years of opportunity to investigate with respect to the first proceeding and 13 years of opportunity to investigate with respect to the second, Evans has been unable to show that any such discrimination was at work in this case.

II. MISC. No. 3 (APPRENDI/RING)

A. Background

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435, 455 (2000), the Supreme Court, confirming, in part, a footnote in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Although Apprendi was not a capital punishment case and it did not appear from the opinions filed by the five Justices forming the Majority that the holding was intended to invalidate the Maryland death penalty statute, or any other, Evans and others promptly contended that it had precisely that effect by making principalship (in cases where it needed to be established), aggravating factors, and the balancing of aggravating and mitigating factors elements of a separate crime of capital murder rather than merely sentencing factors to be applied on a conviction of classic first degree murder.

In April, 2001, Evans filed a motion in the Circuit Court for Baltimore County to reopen an earlier (1995) post conviction proceeding with the claim that, under Apprendi, the indictment that triggered his prosecution was fatally defective.³ His argument was based more on the language of the footnote in Jones that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Jones v. United States, supra, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d at 326 n. 6 (emphasis added). Notwithstanding that Jones was a Federal prosecution and that in Apprendi, a State prosecution, the Court did not repeat the italicized language regarding the indictment, Evans contended that the...