Hunter v. State

DAVID HUNTER v. STATE OF MARYLAND

No. 1634

No. 2516

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

May 24, 2017

UNREPORTED

Graeff, Kehoe, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Sharer, J.

*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.

As a result of the fatal shooting of Henry Mills on June 14, 2011, on Greenmount Avenue in Baltimore City, appellant, David Hunter was charged with first-degree murder and related and included offenses. Following the 2015 trial in the Circuit Court for Baltimore City, a jury convicted Hunter of first-degree murder, use of a handgun in the commission of a felony, possession of a firearm by an unauthorized person, conspiracy to commit first-degree murder, and participation in - and murder for - the benefit of a criminal gang.¹

Appellant submits two questions for our review:

1. Did the court err in denying appellant's motion for a new trial based on newly discovered evidence pursuant to a violation of Brady v. Maryland?²

2. Did the court err in excluding [] a portion of the "State's Supplemental Disclosure" provided to the defense in discovery authored by the Assistant State's Attorney?

For the reasons stated below, we answer both questions in the negative and affirm the judgments of the circuit court.

BACKGROUND

As Hunter raises no issues relating to the sufficiency of the evidence, and we assume the parties familiarity with the underlying circumstances of the charges, we need not set out an extensive factual recitation. See, Washington v. State, 190 Md. App. 168 (2010).Although not relevant to the issues raised in this appeal, we provide the following abbreviated background for context.

On June 14, 2011, around 1:00 p.m., Jerome ("Boo Boo") Paige was walking on Greenmount Avenue between 24th and 25th Streets in Baltimore with his friend, Henry Mills. As was their routine, Paige and Mills were selling illicit drugs at the time. Paige testified that as they were walking, he heard two gunshots behind him. He saw Mills fall beside him, and he turned back to look at the shooter, who he identified as Hunter. Paige continued walking away from the scene and got into a vehicle driven by a man he knew as "Peanut" to leave the area. Paige later identified Hunter as the shooter from a photographic array shown to him by police investigators.

Sharon Hawkins corroborated Paige's account of the shooting. She testified that in 2011 she was a habitual drug user and, on the day of the shooting, she purchased a quantity of heroin from Mills. Hawkins stated she was not intoxicated at the time of the purchase. After the completion of the transaction, she saw Mills cross the street and walk away with Boo Boo. A short time later, Hawkins heard a "pop," and she turned to see Mills collapsing, and Boo Boo running away. Hawkins testified that she heard two gunshots. Then, she saw two men running toward her, one of whom she identified as Hunter, and she fled the scene. Hawkins later identified Hunter, from a photo array, as the shooter.

At trial, the State read into evidence the prior testimony of Kimberly Hollingsworth, another eyewitness, into the record.³ She testified that she was inside a liquor store on Greenmount Avenue when she heard gunshots. As she left the store, she observed a man run by her, and the man was putting a gun into the waistband of his pants. Hollingsworth observed that Mills was dead, lying face down in the street. Hollingsworth later identified Hunter in a photographic array as the man she saw running.

Baltimore City Police Detective Joseph Landsman was the lead officer in the investigation.⁴ Police retrieved surveillance footage from the liquor store security camera, as well as from two of the "blue light" cameras, which was played for the jury at trial.⁵ Police also recovered two .40 caliber casings from the scene, which had been fired from the same gun.

Ultimately, police developed Hunter as the suspect in the murder and later arrested him on July 23, 2011. Landsman opined that Hunter killed Mills on behalf of a criminal gang known as the Black Guerilla Family ("BGF"), because Mills was selling drugs in an area controlled by the gang and/or in retaliation for Mills's killing of a high-ranking BGFmember. At trial, the State introduced evidence demonstrating that Hunter was a member of the BGF, and on the night of the murder, he was seen at a BGF meeting in the same clothing worn by the shooter.

DISCUSSION

Motion for a New Trial

Approximately two months after sentencing, Hunter filed a motion for a new trial on the basis of newly discovered evidence that he became aware of as the result of a separate trial involving the BGF.⁶ In pursuing his motion, Hunter argued that the State failed to disclose favorable, material evidence in violation of its obligations pursuant to Brady. He alleged that a confidential informant, James Cornish, had informed police that Paul Wilson confessed to him (Cornish) that he (Wilson) had killed Mills in retaliation for Mills's killing of Naim King, a high-ranking BGF member. The circuit court denied the motion, concluding that although the State should have disclosed the statement, disclosure would not have altered the outcome of the trial. In ruling on the motion, the court noted that Cornish's statement was not corroborated.

Before this Court, Hunter contends that the evidence of Wilson's "confession" to Cornish was admissible under Brady and that the State's violation requires reversal and a new trial. He characterizes the Cornish statement as exculpatory evidence which showed that Hunter did not murder Mills. He argues further that the Cornish statement was clearlymaterial to his defense and could have reasonably affected the judgment of the jury. With his assertion that the State committed a Brady violation, he intertwines an assertion that the State presented perjured testimony from Detective Landsman who, on the stand, denied that anyone other than Hunter had ever been identified as the person who shot Mills. Even if Landsman's testimony was not perjurious, Hunter maintains that a new trial is required because the Cornish statement presents a reasonable probability that the result of the trial would have been different.

The State responds that the circuit court acted within its discretion in denying Hunter's motion for a new trial. The State contends further that Hunter's argument as to the differing standards of review relevant to whether the State presented perjured testimony is not preserved for our review. Furthermore, the State denies that it presented perjured testimony at trial. Finally, the State contends there is not a reasonable probability that disclosure of the Cornish statement to the defense would have led to a different outcome at trial, simply because the statement was not admissible.

Maryland Rule 4-331(c) permits the filing of motions for a new trial based on newly discovered evidence.⁷ Hunter contends that the State withheld evidence in violation of its obligations pursuant to Brady. "'[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of theprosecution.'" Johnson v. State, 228 Md. App. 391, 435 (2016) (quoting Brady, 373 U.S. at 87)). To constitute a Brady violation, evidence must meet three requirements: "'[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Id. (quoting Yearby v. State, 414 Md. 708, 717 (2010)).

This Court has noted that "[i]f the alleged Brady violation pertains to the failure to disclose favorable evidence, the evidence is 'material' if 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Raynor v. State, 201 Md. App. 209, 232 (2011) (quoting Wilson v. State, 363 Md. 333, 347 (2001)), aff'd, 440 Md. 71 (2014), cert. denied, 135 S. Ct. 1509 (2015). "'A reasonable probability of a different result is . . . shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.'" Yearby, 414 Md. at 718 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). If the undisclosed evidence indicates that the State presented perjured testimony, however, then the materiality standard is whether there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury. See id. at 717 n.5. We note, too, that the defendant bears the "burdens of production and persuasion regarding a Brady violation[.]" Id. at 720.

The Perjury Assertion

At the outset, we reject the State's preservation argument. We are unaware of any case - and the State does not cite one - in which we have held that a standard of review isnot preserved. Accordingly, we consider whether the undisclosed evidence reveals that the State presented perjured testimony.

Hunter's trial occurred in July and August of 2015. At the new trial motion hearing, it was established that Baltimore police interviewed Cornish on October 10, 2013. In this interview, Cornish, a BGF member, informed police that Wilson, another BGF member, told Cornish that Wilson had killed someone in retaliation for the killing of King. Additionally, Cornish told police that Hunter was in jail for the murder that Wilson committed. One of the interviewing detectives informed the prosecutor in Hunter's case of Cornish's statement. Landsman had also testified in a separate proceeding that he was aware of the statement made by Cornish, but that further...