State v. Ebb

452 Md. 634

158 A.3d 965

STATE of Maryland

v.Jeffrey D. EBB, Sr.

No. 40, Sept. Term, 2016

Court of Appeals of Maryland.

Filed: April 24, 2017

Argued by Robert K. Taylor, Jr., Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Samuel P. Feder, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Brian M. Saccenti, Chief Atty., Mark Colvin, Asst. Atty. Gen, Baltimore, MD), on brief, for Respondent.

Russell P. Butler, Esq., Victor D. Stone, Esq., Jennifer M. Sullam, Esq., Maryland

Crime Victims' Resource Center, Inc., Upper Marlboro, MD, for Amicus Curiae Maryland Crime Victims' Resource Center, Inc.

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, and Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Hotten, J.

We consider whether a petition filed under Maryland Code, Criminal Procedure Article ("Crim. Proc.") § 8–301 was improperly denied prior to a hearing, when the petition alleged "newly discovered evidence" that a trial witness stated, twenty years later, that he "lied[.]"

In 1993, Jeffrey D. Ebb, Sr. ("Respondent") was convicted of two counts of felony murder, one count of attempted murder, one count of attempted armed robbery, and three counts of first-degree assault, stemming from a 1992 armed robbery that resulted in two deaths. Respondent was sentenced to life without parole for the murders, and additional periods of incarceration for the remaining unmerged offenses. At trial, Jerome House-Bowman ("Mr. House-Bowman") testified regarding Respondent's intent to commit an armed robbery and identified Respondent as the individual who shot the victims.

Twenty years later, Mr. House-Bowman, in a signed statement, alleged that he "lied" during Respondent's trial "to save [his] niece, (Stephanie Stevenson) from prosecution and conviction ...." Based on Mr. House-Bowman's recantation, Respondent filed a pro se petition for writ of actual innocence under Crim. Proc. § 8–301, alleging that Mr. House-Bowman's recantation constituted "newly discovered evidence" that created a "substantial or significant possibility that the result [of Respondent's trial] may have been different." Respondent appealed, and the Court of Special Appeals reversed the circuit court, concluding Respondent was entitled to a hearing on the merits of his petition.

For the reasons that follow, we shall vacate the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

I. Underlying Criminal Proceedings

On the afternoon of November 28, 1992, a gunman entered Brodie's Barbershop in Catonsville, Maryland. During the course of an attempted robbery, two people were killed and another was wounded. Witnesses identified Respondent as the gunman. At a six-day trial, the State called several witnesses, including Stephanie Stevenson ("Ms. Stevenson") who testified regarding Respondent's criminal agency. Ms. Stevenson also testified that she participated in the attempted robbery, but that Respondent was the person who shot all three victims.

Ms. Stevenson's testimony was corroborated by Mr. House-Bowman, her uncle. Mr. House-Bowman testified that sometime in December 1992, Respondent told Mr. House-Bowman, in confidence, that Respondent was involved in the "[b]arbershopmurder," and that "it first started out as a robbery. It was supposed to be a robbery and somehow it got fouled up and [Respondent] had to shoot two people." Mr. House-Bowman also testified that Respondent told him that Respondent knew where the money was kept in the barbershop, which was why he decided to rob it. Mr. House-Bowman also stated that Respondent described to him in detail how Respondent escaped from the barbershop after he shot the victims.

At trial, the State also introduced into evidence a Browning semi-automatic 9 mm pistol that was alleged to have been used during the course of the incident, and purchased by Todd Timmons from Respondent sometime in November 1992. Additionally, the State called Joseph Kopera ("Mr. Kopera"), a ballistics and firearm expert employed by the Maryland State Police Crime Laboratory, who testified that all the spent cartridge casings and bullets recovered from the bodies of the victims were fired from the same Browning semi-automatic 9mm pistol that was introduced into evidence.

Respondent was convicted of two counts of first-degree felony murder, one count of attempted second-degree murder, one count of attempted armed robbery, and three counts of first-degree assault. The court imposed a sentence of life without the possibility of parole on the murder counts, and imposed an additional 80 years of incarceration, to run concurrently, as to the remaining unmerged counts.

Respondent's convictions were upheld in an unreported, per curiam opinion in the Court of Special Appeals. See Jeffrey D. Ebb, Sr. v. State of Maryland , No. 1809, Sept. Term, 1994 (filed July 20, 1994). This Court granted Respondent's petition for writ of certiorari, and also upheld his convictions. See Ebb v. State , 341 Md. 578, 671 A.2d 974 (1996), overruled on other grounds by Calloway v. State , 414 Md. 616, 996 A.2d 869 (2010).¹

Respondent subsequently filed postconviction petitions in 1997 and in 2007, but withdrew both without prejudice prior to a hearing. Respondent also filed a petition for writ of actual innocence in 2011, based on the trial testimony of Mr. Kopera—the ballistics expert. That petition was denied after a hearing in the Circuit Court for Montgomery County. The denial of Respondent's petition was affirmed on appeal in an unreported opinion in the Court of Special Appeals. See Jeffrey D. Ebb, Sr. v. State of Maryland , No. 1342, Sept. Term, 2012 (filed June 16, 2014).

II. Petition for Writ of Actual Innocence

On May 7, 2015, Respondent filed a new petition for writ of actual innocence, pro se , in the Circuit Court for Montgomery County. In the new petition, Respondent alleged that one of the witnesses from his original trial, Mr. House-Bowman, "recanted his statement and testimony[.]" Respondent attached a statement² from Mr. House-Bowman, dated January 5, 2013, which stated in relevant part, "I lied, in court, at the trial of Jeffrey Edd [sic] to save my niece, [Ms. Stevenson] from prosecution and conviction, facing her, I just did not tell the truth at the trial, I was trying to help my niece."

On July 17, 2015, the circuit court denied Respondent's petition without a hearing. In its order, the circuit court concluded that Respondent's petition contained "merely impeaching evidence, and not material evidence, because [Respondent] was linked to the crime by several other witnesses—including eye witnesses." The circuit court noted that:

Stephanie Stevenson testified in detail about [Respondent's] involvement in the crime, and Charles Dunlop, an eye witness, identified [Respondent] from photographs. Kevin Johnson, another eyewitnesses [sic], testified that he recognized the [Respondent] as the shooter in this case when he saw [Respondent's] picture on the news and notified the police. More importantly, ballistics reports linked the murder weapon to [Respondent].

On July 24, 2015, Respondent filed a motion for reconsideration that was denied in an order dated August 26, 2015. In its denial, the circuit court reiterated there was "overwhelming evidence, independent from Mr. House-Bowman's testimony, support[ing] [Respondent's] conviction. This evidence includes testimony from [Respondent's] accomplice, two eye witnesses, and [a] ballistic report[ ] that linked the murder weapon to [Respondent]."

Thereafter, Respondent filed a timely notice of appeal to the Court of Special Appeals.

III. Court of Special Appeals' Reversal

The Court of Special Appeals, in an unreported opinion, reversed the circuit court's denial of Respondent's petition without a hearing. See State of Maryland v. Jeffrey D. Ebb, Sr. , No. 1427, Sept. Term, 2015, 2016 WL 3002469 (filed May 25, 2016).

The Court concluded that an individual who is convicted of a crime and eligible to file a petition for a writ of actual innocence under Crim. Proc. § 8–301, "is entitled to a hearing on the merits of the petition, provided that the petition sufficiently pleads grounds for relief under the statute, includes a request for a hearing, and complies with the filing requirements of [Crim. Proc.] § 8–301(b)." See Douglas v. State , 423 Md. 156, 165, 31 A.3d 250, 255 (2011) ; State v. Hunt , 443 Md. 238, 250–51, 116 A.3d 477, 484 (2015).

The Court noted that a petition is not required to prove the petitioner's assertions, but rather, that the trial court is obligated to view the facts asserted in the light most favorable to the petitioner, and required to hold a hearing if "the allegations could afford a petitioner relief, [assuming] those allegations would be proven at a hearing."

Ebb , No. 1427, Sept. Term 2016 at 6 (quoting Hunt , 443 Md. at 251, 116 A.3d at 484 )). The Court also noted that in Douglas , we held:

[A] trial court may dismiss a petition without a hearing when one was requested, pursuant to [Crim. Proc.] § 8–301(e)(2), only when a petitioner fails to satisfy the pleading requirement. The pleading requirement mandates that the trial court determine whether the allegations could afford a petitioner relief, if those allegations would be proven at a hearing, assuming the facts in the light most favorable to the petitioner and accepting all reasonable inferences that can be drawn from the petition. That is, when determining whether to dismiss a petition for writ of actual innocence without a hearing pursuant to [Crim. Proc.] § 8–301(e)(2), provided the petition comports with the procedural requirements under [Crim. Proc.] § 8–301(b), the trial court must consider whether the allegations, if proven, consist of newly discovered evidence that "could not have been discovered in time to move for a new trial under Maryland Rule 4–331" and whether that evidence "created a substantial or significant

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