Appendix — Maryland v. Conyers

CONTENTS OF APPENDIX

Page

APPENDIX A:

Reported opinion of the Court of Appeals

of Maryland, filed February 5, 2002,

Clarence Conyers, Jr. v. State of Maryland

367 Md. 571, 790 A.2d 15 (2002) ........ la-64a

APPENDIX B:

Unreported opinion of the Circuit

Court for Wicomico County,

Maryland, dated January 30,2001 ...... 65a-144a

as

la

APPENDIX A

IN THE COURT OF APPEALS OF

MARYLAND

No. 26

September Term, 2001

CLARENCE CONYERS, JR.

v.

STATE OF MARYLAND

Bell, C.J.

Harrell

Battaglia

JJ.

Opinion by Harrell, J.

Wilner and Cathell, JJ. dissent

Filed: February 5, 2002

2a

This is an appeal by Clarence Conyers, Jr. (Petitioner)

from the denial by the Circuit Court for Wicomico County

of post conviction relief in his capital case.’ See Maryland

Code (1957, 1996 Repl. Vol., 2000 Supp.), Article 27, §§

645A-J (Maryland’s Uniform Post Conviction Procedure

Act),” and Maryland Rules 4-401 through 4-408,’ and 8-

306.‘ This is the third time Petitioner has sought this

Court’s review regarding the convictions and sentences in

this matter.

' The petition for post conviction relief arose out of

State v. Conyers, Case Nos. 96CR0458 and 96CR0460 in

the Circuit Court for Wicomico County. Charges were

filed originally against Petitioner in the Circuit Court for

Baltimore County because the murders occurred in

Baltimore County. The case was transferred to the Circuit

Court for Wicomico County for trial.

? Maryland’s Uniform Post Conviction Procedure

Act, Maryland Code (1957, 1996 Repl. Vol., 2000 Supp.),

Article 27, §§ 645A-J, provides for and regulates the post

conviction proceedings of certain persons who have been

convicted of crimes.

> Maryland Rules 4-401 through 4-408 specify the

procedures to petition for post conviction relief.

“Maryland Rule 8-306 applies to appellate review

in the Court of Appeals in capital cases, including

application for leave to appeal from a judgment granting

or denying relief in a post conviction proceeding.

3a

In January 1996, following a jury trial in the Circuit

Court for Wicomico County, Petitioner was convicted,

with respect to the victim, Wanda Johnson, of

premeditated murder, felony murder, first-degree burglary,

robbery with a deadly weapon, attempted robbery with a

deadly weapon, robbery, attempted robbery, and use of a

handgun in the commission of a crime of violence. In the

same proceeding, Petitioner was convicted of premeditated

murder of, and use of a handgun in the commission of a

felony against Lawrence Bradshaw, his alleged

accomplice in the crimes against Ms. Johnson. The same

jury sentenced Petitioner to death for the murder of Ms.

Johnson.> Petitioner received life without possibility of

5 Pursuant to the provisions of Md. Code (1957,

1996 Repl. Vol.), Art. 27, § 413 (concerning the

sentencing procedure upon a finding of guilty of first

degree murder), the jury found, beyond a reasonable

doubt, that Petitioner was a principal in the first degree in

the murder of Ms. Johnson, and that the murder was

perpetrated in the course of committing or attempting to

commit a robbery. At least one or more, but fewer than

all, of the jurors found, by a preponderance of the

evidence, the existence of two non-statutory mitigating

circumstances, specifically, family ties and a loving

family. Finding, by a preponderance of the evidence, that

the aggravating circumstance outweighed the mitigating

circumstances, the jury unanimously determined the

sentence to be death.

4a

parole for the murder of Lawrence Bradshaw.°

In the initial direct appeal, this Court reversed the

burglary conviction, affirmed the murder and other

convictions, and vacated the death sentence, finding with

regard to the latter that the trial court committed

reversible error in admitting a portion of the pre-sentence

investigation report referring to Petitioner’s prior juvenile

charges that had not resulted in a finding of delinquency.

See Conyers v. State, 345 Md. 525, 575, 693 A.2d 781,

805 (1997) (“Conyers I’). The case was remanded to the

Circuit Court for Wicomico County for a new sentencing

proceeding relating solely to the murder of Ms. Johnson.

In January 1998, a new capital sentencing proceeding

was conducted before a jury in the Circuit Court for

Wicomico County.’ Petitioner, represented by different

trial counsel, was sentenced again to death for the murder

of Wanda Johnson.* On the second direct appeal, this

° The State did not seek the death penalty for the

murder of Mr. Bradshaw.

7 Unless indicated otherwise, all further references

to the sentencing proceeding in this opinion will be to the

second sentencing proceeding in January 1998.

* In accordance with the provisions of Md. Code

(1957, 1996 Repl. Vol., 1998 Supp.) Art. 27, § 413, the

jury found, beyond a reasonable doubt, that Petitioner was

a principal in the first degree in the murder of Ms. Johnson

and that the murder was committed in the course of

committing or attempting to commit a robbery. The jury

did not find, by a preponderance of the evidence, the

(continued...)

Sa

Court affirmed. See Conyers v. State, 354 Md. 132, 200,

729 A.2d 910, 946, cert. denied, 528 U.S. 910, 120 S. Ct.

258, 145 L. Ed. 2d 216 (1999) (“Conyers IT’). The U.S.

Supreme Court denied further review. See Conyers v.

Maryland, 528 U.S. 910, 120 S. Ct. 258, 145 L. Ed. 2d

216 (1999).

On 7 March 2000, pursuant with the provisions of

Maryland’s Uniform Post Conviction Procedure Act, Md.

Code (1957, 1996 Repl. Vol., 2000 Supp.), Art. 27, §§ 645

A-J and Md. Rules 4-401 through 4-408, and 8-306,

Petitioner, through yet different trial counsel, filed a

petition for post conviction relief? in the Circuit Court for

Wicomico County, alleging, among other things, due

process violations, ineffective assistance of counsel, and

various trial court errors. After an evidentiary hearing, the

Circuit Court"® denied Petitioner post conviction relief by

an Order dated 30 January 2001. The court found

Petitioner’s allegations of due process violations

unsupported by the evidence. As to the ineffective

(...continued)

existence of any mitigating circumstances. The jury

unanimously sentenced Petitioner to death.

* Supplemental amended petitions were later filed.

For purposes of this Opinion, the original and amended

petitions will be considered as a whole and collectively

referred to as “petition.”

' Although the sarne judge presided over all trial

court proceedings prior to the filing of the post conviction

petition, a visiting judge presided over the post conviction

proceedings.

6a

assistance of counsel claim, the court concluded

Petitioner’s assertions were without merit. The court

dismissed Petitioner’s contentions of trial and sentencing

court errors, finding the actions to be proper. Finally, the

court rejected Petitioner’s challenges to Maryland’s death

penalty procedure and method of execution.

On 28 February 2001, pursuant to the provisions of

Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 645-I and

Md. Rule 8-306, Petitioner filed with this Court an

application for leave to appeal denial of post conviction

relief. The application was granted on 11 May 2001. We

shall reverse the Circuit Court’s denial of Petitioner’s

petition for post conviction relief and remand this case to

the Circuit Court for Wicomico County for a new trial.

Factual Background

Prior to the recitation of the issues presented for our

consideration here, we set out the underlying facts

regarding Petitioner’s convictions, as recounted by the

post conviction hearing judge."

At approximately 9:35 p.m., on Friday,

October 21, 1994, Petitioner’s estranged

girlfriend, Monica Wilson, went to visit her

"' The statement of facts concerning the crime and

subsequent events recounted in the post conviction court’s

Memorandum Opinion was taken from Conyers v. State,

354 Md. 132, 143-47, 729 A.2d 910, 915-18, cert. denied,

528 U.S. 910, 120 S. Ct. 258, 145 L. Ed. 2d 216 (1999)

(“Conyers IT’). —

Ta

mother, Wanda Johnson, at the home Ms. Johnson

shared with her husband, Elwood Johnson. Ms.

Wilson had just spoken with her mother at 9:00

p.m. that evening, and her mother had agreed to

babysit for Ms. Wilson’s son. Arriving with Ms.

Wilson at the Johnson home was her cousin, Carla

Clinton.

As the two women approached the Johnson

home, they saw someone looking outside through

a second floor bedroom window. The women

knocked on the door, and, as they waited for

someone to open it, they saw through a window a

man walking down the stairs. The women saw

this man turn off the lights inside the house and

duck down as if to avoid being seen. The two

women walked to a back door and knocked on it.

The women heard sounds of a struggle, described

as a “commotion,” “tussling” and “fighting,”

coming from inside the house. Then Ms. Johnson

began to scream, and a window on the second

floor broke over the women’s heads.

The two women fled to the home of a relative

who lived nearby and called the police. On the

way to the relative’s house, Ms. Wilson noticed a

car parked across the street from her mother’s

house. The car resembled one that Petitioner

sometimes borrowed from his former girlfriend

and mother of his child, Debra Meyers. Upon

returning to the Johnson home, Ms. Wilson was

informed by the police that her mother was dead.

There were no signs of forced entry into the

Johnson home. Wanda Johnson’s body was

found in the master bedroom. She had been shot

8a

three times in the head, once in the back, and once

in the arm. It was Ms. Johnson’s custom to keep

a small amount of money in her wallet.

Furthermore, when Ms. Wilson spoke to Ms.

Johnson earlier that evening, at approximately

9:00 p.m., Ms. Johnson said that she had twenty

dollars. Ms. Johnson’s open wallet was found

atop her dresser in the master bedroom; there was

no money ’in the wallet. In the den, a door to a

closet had been forced open, revealing a safe. The

closet door had a hasp and a lock on it for

security, but the hasp and lock had been pried out

of the door jamb to gain access to the closet.

Pulling the hasp out of the door jamb had caused

splinters to fall on the floor around the closet.

The safe inside the closet was closed. Mr.

Johnson opened the safe the day after his wife’s

murder; it contained fifteen dollars.

The next day, Ms. Clinton worked with a

police artist on a sketch of the man she had seen

on the staircase inside the Johnson home the

evening before. Ms. Wilson was asked to look at

the sketch that had been made based on Ms.

Clinton’s description. Petitioner, who had come

to the police station to keep Ms. Wilson company,

took the sketch away before Ms. Wilson had a

chance to see it, telling the police that the sketch

would upset her. When Ms. Wilson finally had a

chance to see the police sketch, she did not

immediately identify Lawrence Bradshaw as the

man depicted in the sketch. She made a photo

identification of another man, who was arrested

and incarcerated for a brief time as a result. Ms.

9a

Wilson later agreed, however, that the police

sketch looked like Lawrence Bradshaw.

Shortly after 1:00 a.m. on October 23, 1994,

approximately 27 hours after the murder of Ms.

Johnson, Lawrence Bradshaw was shot in the

4300 block of McDowell Lane. This street is

located in the Lansdowne area, near Debra

Meyers’s home. Mr. Bradshaw had been shot

three times in the head, once in the back, once in

the arm, and once in the finger. Mr. Bradshaw

was taken to Shock Trauma, where he died the

following day. Conyers I, 345 Md. at 534-36, 693

A.2d at 785-86.

As to Johnson, Petitioner was convicted of

premeditated murder, felony murder, first-degree

burglary, robbery with a deadly weapon,

attempted robbery with a deadly weapon, robbery,

attempted robbery, and use of a handgun in the

commission ofa crime of violence, and sentenced

to death. With respect to Bradshaw, Petitioner

was found guilty of premeditated murder and use

of a handgun in the commission of a crime of

violence, and sentenced to life without parole.

On appeal, the Court of Appeals found the

evidence was insufficient to sustain Petitioner’s

conviction for the burglary of Johnson’s home,

but sustained the remaining convictions.

Regarding sentencing, the Court of Appeals held

that certain portions of Petitioner’s juvenile

record that were contained in the pre-sentence

investigation (PSI) report should not have been

presented to the jury because the material was

considered “inflammatory and highly prejudicial.”

10a

Conyers I, 345 Md. at 563, 693 A.2d at 799.

Consequently, Petitioner was granted a new

sentencing hearing.

At the second capital sentencing hearing,

during the State’s case, Charles Johnson (no

relation to the victim, Wanda Johnson, or her

husband) testified that while he was Petitioner’s

cellmate!"*! at the Baltimore County Detention

Center in October-November of 1994, Petitioner

discussed the robbery at [Wanda] Johnson’s

home. Charles Johnson stated Petitioner told him

that he and a person named “Molek”"*! went to

Wanda Johnson’s house and Petitioner went

upstairs to rob a safe. Charles Johnson testified:

“During the robbery, someone came to the

door. At that point, Ms. Johnson yelled out

.. . her daughter’s name or something of

(12)

7 Charles Jzhnson’s testimony during the

sentencing stage was essentially a reiteration of his earlier

testimony given during the guilt/innocence phase of

Petitioner’s January 1996 trial.

3 Charles Johnson was awaiting trial on charges of

armed robbery of a Wendy’s Restaurant at the time he was

Petitioner’s cellmate. ;

Debra Meyers, Petitioner’s former girlfriend and

the mother of his child, testified during the guilt/innocence

phase of the January 1996 trial that Mr. Bradshaw was

introduced to her as “Molek” by Petitioner upon arriving

at her home in the early morning hours of 23 October

1994, shortly before Mr. Bradshaw was shot.

lla

that nature. And Clarence panicked,

because, I guess, they would recognize

him is what he said, and as a result, he

wound up shooting Ms. Johnson.”

Charles Johnson went on to state that

Petitioner told him that while both he and

“Molek” were upstairs at first, when they heard

noise, “Molek” ran downstairs. After [Wanda]

Johnson was shot, “Molek” ran but Petitioner

waited until no one was outside before he left.

Wanda Johnson’s husband, Elwood Johnson,

testified that Petitioner was a frequent visitor to

their home. He also described the layout of the

home, providing specific details about a spare

bedroom that contained a safe in a closet. The

safe, which contained personal papers and petty

cash, had a combination lock and the closet was

secured with a lock and hasp. Mr. [Elwood]

Johnson stated that earlier in the day, the safe and

closet were in normal condition but when he

returned after the shooting the closet had been

forced open and the hasp was broken.

Furthermore, his wife’s wallet was lying open on

a dresser in their bedroom, which normally would

have been inside her purse and placed in a cabinet

or dresser drawer.

Wilson, the victim’s daughter, basically

recapped her trial testimony, describing her past

relationship with Petitioner, her arrival at her

mother’s home with her cousin and son, hearing

noise and her mother’s screams, fleeing the scene

and going for help down the street, and finally

being informed of her mother’s murder. Wilson

12a

also testified to Petitioner’s efforts to prevent her

from seeing the composite sketch of Bradshaw

that her cousin helped develop and to keep her

from reading or viewing any news related to the

murder. Wilson stated Petitioner knew about the

safe in her parents’ spare bedroom and that he

was aware her mother was not normally home on

Friday evenings. Wilson knew that Petitioner

owned a .38 caliber pistol, the type of weapon

used to kill her mother.

Carla Clinton, Wilson’s cousin who was with

her at the crime scene, also repeated her trial

testimony as to going to the Johnson house,

seeing someone downstairs, hearing noise and her

aunt’s screams from inside the house, and finally

assisting the police in the development of a

composite sketch of the person she saw in the

house.

Also during the State’s case, a stipulation was

presented to the jury regarding the recovered

cartridges and the fact that they were all fired

from a .38 caliber handgun. In addition, Victoria

Gibson, the victim’s sister, testified as a victim

impact witness, describing her sister’s nature and

personality and the warm relationship she had

with her entire family. Furthermore, Petitioner’s

PSI report, which was redacted to the satisfaction

of both the State and defense, was introduced into

evidence.

During the defense’s case, Arthur Rogers

testified that he was incarcerated with Charles

Johnson during October 1994 and at one point he

discovered Johnson “rifling through my charging

documents.” Ventura McLee testified that he was

incarcerated in October 1994 with Petitioner and

Charles Johnson. During this period, Charles

Johnson showed McLee indictment papers, police

reports, and photographs relating to Petitioner’s

case. Timothy Wren testified that while he was

incarcerated with Charles Johnson during August

and October 1994, Charles Johnson told him that

he had seen Petitioner’s charge papers, that he had

heard Petitioner talk about the case in his sleep,

and that Petitioner had confessed his guilt. Eric

Spencer, who resided in the cell next to Charles

Johnson and Petitioner in October 1994, testified

that he never heard Petitioner discussing his case

with Charles Johnson.

Testifying as mitigation witnesses were

Petitioner’s parents, Clarence Conyers, Sr., and

Eleanor Conyers, as well as Reverend William

Felder. Petitioner exercised his right of

allocution, stating that he “had no involvement in

this crime whatsoever.”

Additional facts will be provided as relevant to the

respective issues we shall consider.

Petitioner’s Issues

Petitioner asserts two instances of prosecutorial

misconduct based upon the State’s failure to disclose

material impeachment evidence, that he was entitled to

| = |

14a

receive, concerning an important State’s witness,’

Charles Johnson (no relation to the victim, Wanda

Johnson). First, Petitioner contends that the State failed to

disclose, at trial or sentencing, evidence that Johnson

sought a benefit relative to a pending charge when he met

with police on 23 November 1994,"° at which meeting he

provided incriminating information on Petitioner.

Moreover, Petitioner asserts, the State persisted in its

deception regarding the complete circumstances

surrounding Charles Johnson’s coming forward by

presenting at sentencing, without correction, the false

testimony of Johnson, and corroborating testimony of

Detective Phillip Marll, regarding the absence of such

solicitation by Johnson, and then misled the jury in its

closing arguments concerning Johnson’s unselfish motives

in coming forward and his credibility as a witness.

Second, Petitioner contends that the State failed to provide

documentation contained in its files of unsuccessful efforts

by the police to verify the accuracy of a number of

statements Johnson provided the police during the 23

November 1994 meeting, and instead offered Detective

'S Charles Johnson was the Stat» key witness in

the sentencing proceeding regaruing Petitioner’s

principalship in the murder of Ms. Johnson.

'© Charles Johnson met with police for the first, and

only, time on 23 November 1994. The meeting was held

at Johnson’s request. Detectives Phillip Marll and James

Tincher conducted the police interview.

15a

Marll’s false testimony at sentencing that the police had

verified “each and every” statement made by Johnson.”’

Petitioner argues that the lack of disclosure,

aggravated by the presentation of false testimony, in each

instance, was a violation of Petitioner’s due process rights

under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10

L. Ed. 2d 215 (1963) and its progeny.”* Petitioner also

asserts an ineffective assistance of counsel claim citing

numerous instances of deficiencies of trial andsentencing -

counsel, trial court error, and additional claims of error.

Petitioner presents a total of nineteen (19) questions for

our review.’” We have consolidated them into fourteen

" The State emphasized in its closing argument at

sentencing that “all” of Johnson’s statements had been

verified by the police.

'8 We shall refer to this in the opinion as the “Brady

claims.” In Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), the Supreme Court held

that “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 the

prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97,

10 L. Ed. 2d 215.

'? Ordinarily, we would simply repeat the questions

presented or arguments in Petitioner’s brief. We are

unable to do that here, with complete confidence, because

Petitioner framed the issues in a most confusing way. In

Petitioner’s brief, in the Table of Contents, he frames

(continued...)

16a

(14) questions, grouped according to whether they pertain

to the guilt/innocence phase, the sentencing proceeding, or

the post conviction hearing.

Guilt/Innocence Phase Errors

I Did the post conviction court err in finding

that the State did not deny Petitioner due

process in the guilt/innocence phase of trial by

withholding certain material, impeachment

evidence pertaining to the testimony of its key

witness, Charles Johnson, in conjunction with

the presentation of false testimony by and

about Charles Johnson relative to such

evidence, along with the State’s misleading

closing arguments commending Mr. Johnson’s

credibility, in violation of Brady?

II Did the post conviction court err in concluding

that Petitioner was not denied the effective

assistance of counsel at the guilt/innocence

phase of trial with respect to the testimony of

Charles Johnson?

'9...continued)

arguments, numbered one (1) through twelve (12), some

with subparts (a total of nine (9) subparts, two (2) of which

have three (3) sub-subparts each). In the main body of the

brief, however, he frames nineteen (19) Questions

Presented. For clarity of presentation in this opinion, we

express our understanding of a melding of Petitioner’s

issues.

LL eee ee Tee eee

Re AOR Re Se MN SRE We es Sf

Il

vil

17a

Did the post conviction court err in

concluding Petitioner was in no other

respect deprived of the effective assistance

of counsel at the guilt/innocence phase of

trial?

Did the post conviction court err in finding

that Petitioner suffered no prejudice from

the omission of certain jury instructions at

the guilt/innocence phase of trial?

Did the post conviction court err in finding

that cumulative ineffective assistance of

counsel error does not require a new trial?

Did the Circuit Court properly deny

Petitioner’s claim that the State’s

summations at the guilt/innocence phase of

trial violated due process where the State

implied in the trial summation that the

jurors should be afraid of Petitioner?

Should this Court consider three claims

denied by the post conviction court, which

were included solely to preserve the record

for future federal review?

Sentencing Errors

VIII Did the post conviction court err in finding

that the State did not deny Petitioner due

process at sentencing by withholding

certain material, impeachment evidence

pertaining to the testimony of its key

witness, Charles Johnson, in conjunction

with the presentation of false testimony by

and about Charles Johnson relative to

such evidence, along with the State’s

misleading closing arguments

XII

XII

18a

commending Mr. Johnson’s credibility, in

violation of Brady?

Did the post conviction court err in

concluding that Petitioner was not denied

the effective assistance of counsel at

sentencing with respect to the testimony of

Charles Johnson?

Did the post conviction court err in

concluding Petitioner was in no other

respect deprived of the effective assistance

of counsel at sentencing?

Did the post conviction court err in finding

that the sentencing form properly

consolidated the jury’s finding regarding

the robbery and attempted robbery

ageravators into one item where the

evidence of the robbery predicate was

legally sufficient to find the defendant

guilty?

Did the post conviction court err in finding

that the Supreme Court’s recent holding in

Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348, 147 L. Ed. 2d 435 (2000), had

no applicability to the present case?

Did the post conviction court err in finding

that cumulative ineffective assistance of

counsel error does not require a new

sentencing?

Post Conviction Error

XIV Did the post conviction court improperly

quash Petitioner’s subpoena to the

Department of Corrections to obtain

testimony and documents pertaining to

19a

methods of execution where such

subpoena was essential to proving that

Maryland’s lethal injection method of

execution is cruel and unusual punishment

violative of the Eighth Amendment?

The State’s Waiver Argument

As a preliminary matter, the State asserts that,

pursuant to the provisions of Md. Code (1957, 1996 Repl.

Vol., 2000 Supp.), Art. 27, § 645A(c)(2),” Petitioner’s

° Article 27, § 645A(c) concerns matters of waiver

under Maryland’s Uniform Post Conviction Procedure

Act, and provides that:

(c) When allegation of error deemed

to have been waived.— (1) For the purposes

of this subtitle, an allegation of error shall

be deemed to be waived when a petitioner

could have made, but intelligently and

knowingly failed to make, such allegation

before trial, at trial, on direct appeal

(whether or not the petitioner actually took

such an appeal), in an application for leave

to appeal a conviction based on a guilty

plea, in any habeas corpus or coram nobis

proceeding actually instituted by said

petitioner, in a prior petition under this

subtitle, or in any other proceeding actually

instituted by said petitioner, unless the

failure to make such allegation shall be

(continued...)

20a

Brady claims (I and VIII) were waived, having been raised

for the first time in the post conviction proceeding.

Petitioner counters that, in fact, it is the State’s waiver

argument that has been waived in accordance with Md.

Rule 8-131(a),” as it was not presented to the Circuit

20(...continued)

excused because of special circumstances.

The burden of proving the existence of such

special circumstances shall be upon the

petitioner.

(2) When an allegation of error could

have been made by a petitioner before trial,

at trial, on direct appeal (whether or not said

petitioner actually took such an appeal), in

an application for leave to appeal a

conviction based on a guilty plea, in any

habeas corpus or coram nobis proceeding

actually instituted by said petitioner, in a

prior petition under this subtitle, or in any

other proceeding actually instituted by said

petitioner, but was not in fact so made, there

shall be a rebuttable presumption that said

petitioner intelligently and knowingly failed

to make such allegation.

21 Maryland Rule 8-131 concerns the scope of

appellate review. Rule 8-131(a) provides in pertinent part,

[o]rdinarily, the appellate court will not

decide any other issue unless it plainly

appears by the record to have been raised in

(continued...)

2la

Court during the post conviction proceedings, and,

accordingly, was not addressed by the hearing judge in his

opinion of 30 January 2001. Moreover, Petitioner asserts

the State’s waiver claim fails on its merits, as the factual

predicate for the State’s violations did not become

apparent until Detective Marll’s testimony during the

evidentiary hearing on the post conviction petition, at

which point Petitioner filed a timely supplement to his

amended petition for post conviction relief to include the

newly discovered Brady claims.” We agree with

Petitioner’s arguments.

A. Factual Background

Petitioner’s claims of Brady violations relate to the

examination of Charles Johnson, and related corroboration

testimony of Detective Marll, stemming from Johnson’s

meeting with Detectives Marll and Tincher on 23

November 1994. During that meeting, Johnson provided

the detectives with non-public information concerning the

murders of Ms. Johnson and Bradshaw that allegedly only

the murderer would know. Johnson’s statement indicated

71(...continued)

or decided by the trial court, but the Court

may decide such an issue if necessary or

desirable to guide the trial court or to avoid

the expense and delay of another appeal.

” Petitioner’s counsel filed a Supplement to

Amended Petition for Post Conviction Relief on 26

October 2000.

22a

that he had not been promised any favors in exchange for

the information in his statement. The statement was silent

as to whether he asked for any favors.

On 14 December 1994, Petitioner’s then trial counsel

asked the State to provide all Brady material.” The State

complied on 9 February 1995 by making available to

Petitioner its file containing allegedly all relevant

documents,” stating that “[a]t the present time, there is no

information known to the State which is exculpatory, in

any manner to the Defendant.” Likewise, in the State’s 11

December 1995 response to Petitioner’s motion to compel

the State to comply with Md. Rule 4-263(a)(1),”* the State

3 Specifically, Petitioner requested in his demand

for discovery that “the State’s Attorney disclose to the

Defendant any material or information which tends to

negate the guilt of the Defendant as to the offense charged

or would tend to reduce the punishment therefor, or would

be of assistance in impeaching the credibility of a State

witness.”

** The State purported to provide “open file”

discovery to Petitioner’s counsel. While the precise

definition of an “open file” policy may vary by

jurisdiction, it is clear in this case that the prosecutor’s use

of the term meant to communicate that no discoverable

matters were concealed in any way from Petitioner’s

counsel, noting that the State had provided Petitioner “a

copy of the entire file of the State excluding internal

documents and work product notes.”

5 Maryland Rule 4-263(a)(1) concerns discovery

(continued...)

23a

reiterated its open file policy, explaining that “(t]he State

has not put itself even in the position of determining what

could be exculpatory,” and furthermore claiming that its

actions taken in this regard were “well beyond the

discovery requirements of Maryland Rule 4-263.” None

of the documents in the State’s files indicated that Johnson

at any time sought a personal benefit for his cooperation,

nor was there documentation indicating that there had been

any unsuccessful attempts by the police to verify the

information Johnson provided them at the 23 November

1994 meeting.

Charles Johnson first testified on 18 January 1996 at

a suppression hearing regarding Petitioner’s alleged

jailhouse confession to Johnson. Johnson stated that his

intention in contacting the police initially was to speak

with them on Petitioner’s behalf.” When asked if he

*°(...continued)

in circuit court, and in pertinent part states: “(a)

Disclosure Without Request. Without the necessity of a

request, the State’s Attorney shall furnish to the defendant:

(1) Any material or information tending to negate or

mitigate the guilt or punishment of the defendant as to the

offense charged... .”

*® Specifically, Johnson testified:

And I did tell [Petitioner] that I would speak

with the officers more or less, it was more

or less in his favor . . . if he didn’t intend on

{murdering Wanda Johnson], we were under

the assumption that, you know, it wasn’t a

(continued...)

24a

requested a deal for the information, Johnson responded

that he “didn’t right out ask for a deal. . . . [He] didn’t feel

as though [the police] could offer [him] a deal.”

Petitioner’s counsel nonetheless challenged Johnson’s

motive in contacting the police, relying on his known 13

January 1995 plea agreement with the State on a pending

robbery charge. Johnson responded:

[T]he only thing they have done is, well, I was

found guilty on the charge that I was charged

with, and as far as I know, I haven’t been

sentenced to anything, but I believe that my

armed robbery charge was reduced to a robbery,

because I wasn’t involved in the robbery.””

Similarly, at trial, Johnson testified that his sole

motivation in contacting the police was to “speak on

[Petitioner’s] behalf that [Petitioner] didn’t intentionally

go in there with the intent or premeditation to kill Miss

Johnson, that it happened because he panicked... .” At

the sentencing proceeding, Johnson denied Petitioner’s

-counsel’s accusation that he intended, from the outset, to

lie about Petitioner’s alleged confession in order to seek a

deal on his pending charges.

6(...continued)

premeditated murder, that it happened as a

result of panic or something of that nature.

27 Johnson’s robbery charge stemmed from his

participation as the ‘getaway’ driver in the Wendy’s

robbery. See supra note 13. His testimony was that he

was not present inside the Wendy’s Restaurant at the time

of the hold-up.

ET F

25a

Detective Marll denied at trial that any inducements

had been offered to Johnson in exchange for the

information. On direct examination, the prosecutor

pointedly asked Detective Marll about any agreement

between Johnson and the police:

[State:] Had you or Detective Tincher made any

promises to Mr. Johnson concerning any

information that he would provide you?

[Detective Mazil:] No, sir, we did not.

During Petitioner’s sentencing hearing on 27 January

1998, Detective Marll was questioned on direct

examination by the State about his interview with Johnson:

[State:] [D]Juring the course of your conversations

with [Charles Johnson] and then obtaining a

written statement from Mr. Johnson, did he at any

time ever ask you for any promises or favors in

return for the information he was giving you?

[Detective Marll:] No, sir, he did not.

Detective Marll also testified that the police had verified

“each and every” non-public statement that Johnson had

provided them at the meeting.

In its initial closing argument at trial, the State argued

Johnson’s credibility as a witness to the jury and his

altruistic motives in contacting the police:

Mr. Johnson told us the truth. . . . he came in here

and told the truth because it was the right thing to

do.

In the State’s rebuttal closing, the prosecutor again

emphasized Johnson’s credibility as a witness, and

reinforced the fact that he had no deal when he provided

the police with his statement. The prosecutor stated:

26a

[Charles Johnson] walked in here and said the

truth, he complied with his plea agreement... .

he’s telling you the truth.

[I]t’s untrue that anyone went to Charles Johnson

and said, hey, let’s cut you a deal so you can tell

us some info. No, Charles Johnson went to the

police and gave them information about Clarence

Conyers. And there was no deal when he told the

police, November the 23™ of 1994 he gave them

a seven-page statement about what he knew and

what Clarence Conyers had told him. No deals at

that time. He told them what he knew.

In the sentencing phase, the State commented again on

Johnson’s credibility as a witness, noting that Johnson’s

statements were “all true. . . . all accurate,” and that he

“came in [to court] and told [the jurors] the truth... .”

Petitioner’s counsel nonetheless argued, at both tral

and sentencing, that Johnson was simply a lying jailhouse

snitch, motivated by self-interest in obtaining his

subsequent plea agreement with the State regarding his

robbery charges. Petitioner underscored the benefit

Johnson received from the State, which allowed him to

reduce a potential, maximum jail term of 244 years on the

nineteen count indictment for robbery, to a recommended

sentence of one to six years, for, inter alia, his guilty plea

to a one count misdemeanor charge of conspiracy to

commit robbery, and his agreement to testify “truthfully”

at Petitioner’s trial.”

28 Charles Johnson was indicted on nineteen counts

stemming from his involvement in the robbery of a

(continued...)

While Johnson’s testimony was addressed by this

Court in other contexts in the two prior direct appeals,”

78(.. .continued)

Wendy’s Restaurant. The charges included four counts of

robbery, four counts of robbery with a deadly weapon, one

count of conspiracy to commit robbery with a deadly

weapon, one count of conspiracy to commit robbery, four

counts of assault, one count battery, two counts of

handgun violations, one count possession of a handgun,

and one count theft. On 13 January 1995, Johnson signed

a plea agreement with the State in which he agreed to

plead guilty to a misdemeanor charge of conspiracy to

commit robbery, for which the State would nol pros the

balance of the charges and recommend a sentence of one

to six years in accordance with sentencing guidelines for

that crime. An additional term of the agreement required

Johnson to “testify truthfully” and completely at

Petitioner’s trial as well as against his co-defendant on the

robbery charges. Johnson ultimately served eighteen

months at the Baltimore County Detention Center, and

was released, for time served, two days after testifying at

Petitioner’s trial.

”° For example, this Court, in Conyers IT, discussed

whether Detective Marll’s testimony, that he “knew upon

hearing [certain statements] from [Charles] Johnson to be

truthful ...,” was improper opinion testimony as to the

credibility of Johnson as a witness. Conyers IT, 354 Md. at

153, 729 A.2d at 921. This Court held that Detective

Marll was not offering an opinion as to Johnson’s

(continued...)

28a

Petitioner never raised there a claim relative to the State’s

failure to disclose potential impeachment evidence

concerning Johnson or the State’s use of assertedly not

fully accurate testimony.

On 2 October 2000, Detective Marll again testified at

the post conviction hearing about his 23 November 1994

meeting with Johnson. On this occasion, however,

Detective Marll indicated that indeed Johnson had queried

the detectives about a possible deal. When Detective

Marll informed Johnson that the police did not have the

authority to commit to a deal, but would refer his inquiry

to the State’s Attorney’s office, Johnson declined to sign

his written statement, electing instead merely to initial the

pages. Detective Marll also revealed, for the first time,

that several statements Johnson provided the police during

the 1994 meeting either were disproved subsequently by

the police or were found by them to be unverifiable.

On 26 October 2000, Petitioner filed a timely

supplement to the amended petition for post conviction

relief raising, for the first time, the claim that the State

denied Petitioner due process, and specifically, that (a) the

State failed to disclose that Johnson had requested a

benefit, that he refused to sign his statement absent a

commitment to receive a benefit, and that Detective Marll

29(...continued)

credibility as a witness, rather he was testifying as to the

results of the verification efforts by the police regarding

the information Johnson provided police concerning

Petitioner’s involvement in Wanda Johnson’s and

Bradshaw’s murders. Conyers II, 354 Md. at 154, 729

A.2d at 921.

i es 7

eee

29a

agreed to pass along Johnson’s request to the State’s

Attormey’s Office; (b) the State failed to correct J ohnson’s

and Detective Marll’s prior testimony denying that

Johnson initiated an inquiry regarding receipt of a benefit

for his cooperation at both the trial and sentencing

Proceedings; (c) the State failed to provide to the defense

documentation in its Possession indicating that there had

been any unsuccessful attempts by the police to verify the

non-public information Johnson provided in his 1994

meeting with police; and, (d) the State failed to correct

Detective Marll’s sentencing testimony that he had

verified “each and every” non-public statement made by

Charles Johnson during the 1994 meeting.

Petitioner’s claims of Brady violations were addressed

and argued on the merits in Petitioner’s Memorandum of

Law Supporting Post Conviction Relief, filed 4 December

2000, and the State’s responsive Memorandum of Law

Opposing Post Conviction Relief, dated 21 December

2000. The State did not argue waiver of the Brady claims

during the post conviction proceedings, and, accordingly,

the hearing judge did not address waiver in his opinion of

30 January 2001. The State first raised the waiver claim

in its Response in Opposition to Application for Leave to

Appeal from Denial of Post Conviction Relief in a Capital

Case, filed with this Court on 19 April 2001.

PE ESE AE ES re eee ae

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AAR AMA Cas tn a es SUAS te eS Kaas ID eso ,

| B. Analysis

Ordinarily, an argument not raised in the proceedings

below is not preserved for appellate review. See Md. Rule

8-131(a). See also Ware vy. State, 360 Md. 650, 692-93,

759 A.2d 764, 786 (2000) (holding that appellant’s

argument relating to the inadequacy of a jury instruction

30a

was waived where there had been “no timely objection” in

the lower court), cert. denied, 531 U.S. 1115, 121 S. Ct.

864, 148 L. Ed. 2d 776 (2001); Conyers II, 354 Md. at

148, 729 A.2d at 918 (acknowledging that Md. Rule 8-

131(a) limits appellate review to those issues “raised in or

decided by the trial court”); Walker v. State, 338 Md. 253,

262, 658 A.2d 239, 243 (1995) (stating that “[W]e

ordinarily will not review an issue that was not presented

to the trial court.”); State v. Bell, 334 Md. 178, 187, 638

A.2d 107, 112 (1994).

This Court, in limited circumstances, however, may

review an argument not made and preserved in the lower

court. See Bell, 334 Md. at 188-89, 638 A.2d at 113

(noting that use of the word “ordinarily” contemplates

circumstances where appellate review of issues not

previously raised is appropriate); Richmond v. State, 330

Md. 223, 236, 623 A.2d 630, 636 (1993) (recognizing that

there are limited circumstances in which an appellate court

may consider arguments not raised in the court below).

Appellate review under these exceptional circumstances is

discretionary, not mandatory. See Bell, 334 Md. at 188,

638 A.2d at 113. See also, e.g., Md. Rule 4-325(e)

(conferring discretion on an appellate court acting “on its

own initiative or on the suggestion of a party . . . [to] take

cognizance of any plain error in the [jury] instructions,

material to the rights of the defendant, despite a failure to

object”); Rubin v. State, 325 Md. 552, 587, 602 A.2d 677,

694 (1992) (noting that “as the cases hold with respect to

errors of law generally, an appellate court may in its

discretion in an exceptional case take cognizance of plain

error even though the matter was not raised in the trial

court”) (citation omitted); Robeson v. State, 285 Md. 498,

502, 403 A.2d 1221, 1223 (1979) (discussing exceptions

| 3la

to the general principle that an appellate court will not

ordinarily consider an issue not previously raised).

We often have stated that the primary purpose of Rule

8-131(a) is “‘to ensure fairness for all parties in a case and

to promote the orderly administration of law.’” Bell, 334

Md. at 189, 638 A.2d at 113 (quoting Brice v. State, 254

Md. 655, 661, 255 A.2d 28, 31 ( 1969) (alteration in

original) (citation omitted)). The State had an opportunity

to raise its waiver claim during the post conviction

proceedings, but instead chose to argue Petitioner’s Brady

claims on the merits. As a result, the post conviction court

did not address waiver in connection with these

arguments. While this Court may decide, in its discretion

and under exceptional circumstances, matters not raised in

the proceedings below, the State’s contention does not

merit exceptional treatment here. Nor has the State

reierred us to any legal authority that would support

exempting the State from any of the general waiver rules

in the present case.

Moreover, the State’s assertion that Petitioner’s Brady

claims were waived pursuant to Art. 27, § 645A(c)(2), is

misguided. In pertinent part, § 645A(c)(2), states:

When an allegation of error_could have been

made by a petitioner before trial, at trial, on direct

appeal (whether or not said petitioner actually

took such am appeal), . . . in a prior petition under

this subtitle, or in any other proceeding actually

instituted by said petitioner, but was not in fact so

‘made, there shall be a rebuttable presumption that

said petitioner intelligently and knowingly failed

to make such allegation. (Emphasis added).

The fundamental question the State advances here is

whether Petitioner’s allegations of prosecutorial

32a

misconduct relating to the testimony of Charles Johnson

have been waived by his failure to challenge the violations

at trial or in the direct appeals. Petitioner argues that it is

axiomatic that you “cannot waive what [you] could not

reasonably know.” We agree with Petitioner.

Inherent in the language of § 645A(c)(2) is the

presupposition that an opportunity to raise the challenge

existed at the time of the lower court proceeding. See,

e.g., Hunt v. State, 345 Md. 122, 142, 691 A.2d 1255,

1265 (1997) (noting that “defense counsel’s acceptance of

the jury panel was sufficient to bar any subsequent

objection thereto”); Oken v. State, 343 Md. 256, 271, 681

A.2d 30, 37 (1996) (recognizing that Oken’s counsel’s

decision not to raise the adequacy of the voir dire on

appeal was a deliberate one); Walker v. State, 343 Md.

629, 647, 684 A.2d 429, 437-38 (1996) (noting that

petitioner’s post conviction challenge to a jury instruction

was waived by his failure to raise it when it was given).

See also, e.g., Wyche v. State, 53 Md. App. 403, 407, 454

A.2d 378, 380 (1983) (noting that if a right alleged to have

been violated is a non-fundamental right, “waiver will be

found if it is determined that the possibility existed for the

petitioner to have raised the allegation in a prior

proceeding, but he did not do so”). (Emphasis added). In

each of these instances the factual basis for the defendant’s

claim was available to the defendant, but was not properly

preserved. That is not the circumstance in the case sub

judice.

Petitioner’s trial and sentencing counsels, surmising

from the known fact of the plea bargain, argued

inferentially that Johnson’s testimonial motivation, rather

than the truth for its own sake, was entirely self-interest.

The discrepancies between Johnson’s testimony denying

33a

_he requested a favor (when he did) and Detective Marll’s

corroborating testimony, however, were not revealed until

Dete-sive Marll’s post conviction testimony. Similarly,

there was no apparent discrepancy concerning police

verification, vel non, of Johnson’s 1994 statements

regarding non-public information regarding the crimes

until Detective Marll’s post conviction testimony revealed

otherwise.

The State cannot frustrate trial counsel’s access to the

factual basis for making a Brady claim, then cry foul when

Petitioner does not raise such a challenge on direct appeal.

This Court is satisfied from review of the relevant portions

of the record that the factual predicate underlying

Petitioner’s Brady claims relating to the testimony and

examination of Charles Johnson did not arise until the post

conviction evidentiary hearing, at which point Petitioner

properly raised these issues. Indeed, the State provides no

evidentiary support for its bald allegation that Petitioner

waived his claim under the waiver provision of §

645A(c)(2). Accordingly, we shall review Petitioner’s

Brady claims on the merits.

The Brady Issues (I and VIII)

A. Brady Requirements

As indicated above, Petitioner’s flagship contentions

are that he was prejudiced by the State’s violations of its

constitutional obligations to Petitioner under Brady. We

begin our analysis by identifying the essential elements

Petitioner must establish to succeed on a Brady challenge.

As we recently explained in Wilson v. State, 363 Md. 333,

345-47, 768 A.2d 675, 681-83 (2001):

34a

The Supreme Court made clear in Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.

2d 215 (1963), that “the 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 the prosecution.” [Brady, *73 U.S.] at 87,

83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215. In

order to establish a Brady violation, Petitioner

must establish “(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.” Evidence that is obviously favorable

must be disclosed even absent a specific request

by the defendant.

Impeachment evidence, as well as exculpatory

evidence, is “evidence favorable to an accused.”

[C]f Napue v. United States, 360 U.S. 264, 269,

79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959)

(holding that the prohibition against the use of

false testimony applies even when the evidence

goes only to the credibility of the witness because

the jury’s assessment of credibility can be

determinative of guilt or innocence).

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. The Supreme Court

35a

explained in Giglio [v. United States, 405 U.S.

130, 154-55, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104

(1972)] that, when the government depends

almost entirely on the testimony of a key witness

to establish its prima facie case and the witness’s

credibility, therefore, is an important issue,

“evidence of any understanding or agreement as

to a future prosecution would be relevant to his

credibility ....” See id. (emphasis added). This

Court underscored the same point in Ware [v.

State, 348 Md. 19, 702 A.2d 699 (1997)] when we

concluded that “the prosecutor’s duty to disclose

applies to any understanding or agreement

between the witness and the State.” Ware, 348

Md. at 41, 702 A.2d at 710. (emphasis in

original).

The standard for measuring the materiality of

the undisclosed evidence is strictest if it

“demonstrates that the prosecution’s case includes

perjured testimony and that the prosecution knew,

or should have known, of the perjury.” In [United

States v.] Agurs, [427 U.S. 97, 103, 96 S. Ct.

2392, 2397, 49 L. Ed. 2d 342 (1976)] the

Supreme Court explained that “a conviction

obtained’ by the knowing use of perjured

testimony is fundamentally unfair, and must be

set aside if there is any reasonable likelihood that

the false testimony could have affected the

judgment of the jury.” In cases where there is no

false testimony but the prosecution nonetheless

fails to disclose favorable evidence, the standard

for materiality, in the language of the Supreme

Court, is whether “there is a reasonable

36a

probability that, had the evidence been disclosed

to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is

a probability sufficient to undermine confidence

in the outcome.” [Slee . . . Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).’ Materiality is assessed by

considering all of the suppressed evidence

collectively. The question, therefore, “is not

whether the State would have had a case to go to

the jury if it had disclosed the favorable evidence,

but whether we can be confident that the jury’s

verdict would have been the same,” which is

determined in reference to the sum of the

evidence and its significance for the prosecution.

> This Court has interpreted the reasonable

probability standard from Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), to mean a “substantial

possibility that . . . the result of [the] trial would

have been any different.” State v. Thomas, 325

Md. 160, 190, 599 A.2d 1171, 1185 (1992). See

[ Thomas, 325 Md.] at 190 n.8, 599 A.2d at 1185

n.8; Bowers v. State, 320 Md. 416, 426-27, 578

A.2d 734, 739 (1990).

(Some citations omitted).

Applying the above analysis in Conyers’s case, we must

determine whether (1) the State suppressed or withheld

evidence that was (2) favorable to the Petitioner and (3)

whether the suppressed evidence was material.

37a

B. Charles Johnson’s Request for a Benefit

1. State Suppression

The State argues that the post conviction hearing judge

correctly found that Charles Johnson did not seek a benefit

in exchange for the information he provided the police on

23 November 1994; accordingly, so the argument goes, the

State could not have suppressed evidence of such a

request. For that same reason, the State contends the

hearing judge correctly concluded that Johnson and

Detective Marll testified accurately and truthfully in the

lower court proceedings when they denied that Johnson

requested a benefit in exchange for the incriminating

information against Petitioner.

Moreover, the State asserts Johnson’s receipt of a

benefit, i.e., the plea agreement relative to the robbery

charges, in exchange for his 'ater testimony, was known by

Petitioner.” The State invites this Court to accept the post

conviction judge’s rationale that reconciled Detective

Marll’s post conviction testimony with his prior testimony

by drawing a meaningful distinction between Johnson’s

willingness to provide the police with the incriminating

information in 1994, gratis, and his subsequent successful

negotiation with the State for a benefit in exchange for his

1996 and 1998 testimony against Petitioner. We decline

the invitation.

It is well settled that this Court will not disturb the

factual findings of the post conviction court unless they

* Johnson’s plea agreement with the State was in

place less than two months following his meeting with

police.

38a

are clearly erroneous. See Wilson, 363 Md. at 348, 768

A.2d at 683; Oken, 343 Md. at 299, 681 A.2d at 51;

Gilliam v. State, 331 Md. 651, 672, 629 A.2d 685, 696

(1993). Finding that Charles Johnson did not seek a

benefit in the course of his 1994 meeting with police, the

post conviction hearing judge stated:

Charles Johnson willingly provided information

to the police with no prearranged agreement or

deal. He apparently elected not to sign the written

statement he willingly provided in the hope that

he could arrange an agreement with the State’s

Attorney’s Office in exchange for his testimony at

trial. Charles Johnson was telling the truth when

he said that “he didn’t right out ask for a deal [of

the police].” He correctly didn’t feel the police

could offer a deal. Detective Marll was telling the

truth that Charles Johnson didn’t ask “for any

promises or favors in return for the information”

he gave to the police. This is verified by the fact

that he did give the information to the police with

no agreement or deal.

Charles Johnson did want an agreement in

exchange for his “testimony.” He knew and/or

was told that the police could not accomplish that.

The only evidence which could refute the

initial motivation is his subsequent act of securing

an agreement to testify for the State in exchange

for a benefit for him. This information was

provided by the State to all counsel for the

Petitioner and was the primary subject of cross-

examination.

39a

Having reviewed the entire record regarding the alleged

Brady suppression of Johnson’s full negotiations for a

benefit, we find the post conviction court’s factual

findings are not supported by the record, and we disagree

with its conclusions of law.

The State’s duty to disclose exculpatory evidence as

enunciated in Brady is to ensure that a defendant receives

a fair trial. Brady, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L.

Ed. 2d 215 (noting that “[s]Jociety wins not only when the

guilty are convicted but when criminal trials are fair.”’).

See also United States v. Bagley, 473 U.S. 667, 675, 105

S. Ct. 3375, 3880, 87 L. Ed. 2d 481 (1985) (stating that

“[t]he Brady rule is based on the requirement of due

process. . . . [T]he prosecutor is . . . to disclose evidence

favorable to the accused that, if suppressed, would deprive

the defendant of a fair trial .. . .”). Evidence will be

deemed to be suppressed within the meaning of Brady if

it is “‘information which had been known to the

prosecution out unknown to the defense.’” Spicer v.

Roxbury Corr. Inst., 194 F.3d 547, 557 (4" Cir. 1999)

(noting the prosecutor acknowledged withholding

evidence pertaining to inconsistent statements of its key

identification witness to defendant’s counsel) (quoting

Agurs, 427 U.S. at 103, 96 S. Ct. at 2397, 49 L. Ed. 2d

342); Ware, 348 Md. at 39, 702 A.2d at 709 (stating that

the necessary inquiry is “whether the defendant knew or

should have known facts that would have allowed him to

access the undisclosed evidence”).

There is no question that the State knew that Johnson

was seeking a benefit when he met with police in 1994.

Detective Miaiii's post conviction testimony revealed that

Johnson asked what could be done for him, albeit

subsequent to his providing the police with a written, but

40a

unsigned, statement of Petitioner's alleged confession to

him. The following exchange took place between

Petitioner’s counsel and Detective Marll at the post

conviction hearing:

[Counsel:}] Did Mr. Johnson ask you or mention

anything in any way in the first hour and a half of

his interrogation about his pending charges?

[Detective Marll:] I don’t recall. . . . It seems to

me that once the written statement was done,

obviously, because there was a question about Mr.

Johnson not signing the bottom of the form that

he brought up that basically he wanted something

done in his behalf by the State’s Attorney’s

Office, and that’s why he initialed the form in our

presence.

We have no doubt that Detective Marll understood the

implications of Johnson’s request, as Johnson refused to

sign his statement without a commitment for a benefit,

choosing instead only to initial the pages. In that regard,

Detective Marl testified:

At that time, I asked if he would sign the

bottom of the statement form, and he said he

didn’t want to, he didn’t feel comfortable signing

it, but he said he would put his initials there, and

he did, he wrote them on each page in front of us

and placed his initials on each line next to the

signature block area, and at that time, we were

done.

It is equally clear that Detective Marll ostensibly offered

to act as an intermediary between Johnson and the State’s

Attorney’s office. Detective Marll testified:

After these seven pages were done, what I

asked Mr. Johnson to do was to review and sign

4la

each one of them, and that’s when the question

came up about his - - he would have had - -

whatever charge it was that he had that he wanted

to know what can be done for him.

And at the time, we said we don’t make any

deals, we can’t make any promises. The only

thing we can do is take the statement to the

State’s Attorney Office, and they can get in touch

with your attorney and anything along that line

can be done by them. We stay entirely out of it.

Facts known to the police will be imputed to the State for

Brady purposes. See Strickler v. Greene, 527 U.S. 263,

280-81, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999)

(noting the Brady rule “encompasses evidence ‘known

only to police investigators and not to the prosecutor’”)

(quoting Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct.

1555, 1568, 131 L. Ed. 2d 490 (1995)); Boone v. Paderick,

541 F.2d 447, 451 (4" Cir. 1976) (attributing the

knowledge of the police to the Government, the Court

noted, “‘[t]he police are also part of the prosecution, and

the taint on the trial is no less if they, rather than the

State’s Attorney, were guilty of the nondisclosure.’”)

(quoting Barbee v. Warden, 331 F.2d 842, 846 (4" Cir.

1964)).

It is undisputed that the substance of Detective Marll’s

testimony concerning the commencement and course of

Johnson’s negotiations for a benefit was withheld from

Petitioner until the post conviction hearing. Petitioner’s

pretrial requests for disclosure of Brady material,

discussed supra, failed to elicit any documentation

concerning Johnson’s negotiations for a deal. Petitioner

reasonably relied upon the State’s open file policy as

fulfilling the prosecution’s duty to disclose the evidence he

42a

requested. See Strickler, 527 U.S. at 283 n.23, 119 S. Ct.

at 1949 n.23., 144 L. Ed. 2d 286 (stating that “if a

prosecutor asserts that he complies with Brady through an

open file policy, defense counsel may reasonably rely on

that file to contain all materials the State is constitutionally

obligated to disclose under Brady.”). The reasonableness

of Petitioner’s reliance was confirmed by the State’s

statement that it had “well” exceeded the requirements of

Brady by providing Petitioner with all pertinent portions

of its files.

We shall not entertain the State’s hair-splitting in

honoring form over substance. The record demonstrates

that Petitioner’s counsel attempted, based on the plea

bargain alone, to persuade the jury that Johnson sought a

favor for his allegedly fabricated testimony regarding

Petitioner’s alleged confession.” Petitioner’s various

5! The Dissent, at 2, suggests that it is “universally

understood that plea bargaining constitutes favors,” and

therefore, when the jury was “informed of the plea

agreement, it, impliedly, was informed that a give and take

process [an exchange of favors] for Johnson’s testimony

had been undertaken and been consummated.” Assuming

that to be an accurate abstract generalization, the State, in

this case, attempted to counter such a notion by implying,

at both trial and sentencing, that Johnson received nothing

more nor less in terms of a bargain on his pending charges

than what was commensurate with his participation as the

getaway driver in the Wendy’s Restaurant robbery. In its

closing at trial, the State claimed:

We have this incredible exaggeration

(continued...)

43a

counsel were understandably unsuccessful in uncovering

*1(.. continued)

of what [Johnson’s] participation was in [the

Wendy’s robbery], and the basis for this

plea agreement. . .. We know that he was a

getaway driver in a robbery, that’s why he

didn’t know how many victims there were,

he wasn’t inside the place. . . .

We know that the sentencing

guidelines for the crime that he plead guilty

to are between one and six years

incarceration. And what’s the State asking

for? The sentencing guidelines of one to six

years incarceration. He plead guilty to

conspiracy to commit the crime of robbery,

and that is supposed to be the motivation for

him to walk in here and lie. ...

In its sentencing closing argument, the State said:

And this great deal that the defense tells you

he get, he stated all these hundreds of years.

Well. in fact, Mr. Charles Johnson had to

pleac guilty, did plead guilty to conspiracy

to commit robbery, and the State

recommended a sentence of one to six years,

whici is what the guidelines were, the

regular guidelines for a person that

committed that offense. For all of that, that

mans going to come in and lie about a first

degree murder in a death penalty case? So

much for that great deal.

on their own the full circumstances precipitating the

ultimate plea bargain. The sole basis offered by the State,

and accepted by the post conviction judge, for resisting

disclosure of the full extent of the negotiations was the

State’s arbitrary and circumscribed interpretation of

Petitioner’s cross-examinations of Johnson and Detective

Marll corcerning the matter. Indeed, Johnson and

Detective Marll nimbly sidestepped complete and accurate

responses by interpreting the questions posed to them in

terms of “promises or favors” in exchange for Johnson’s

1994 “information,” rather than for his later testimony. In

effect, these witnesses intellectually bifurcated the

pertinent course of events in order to make the nice

distinctions offered at the post conviction hearing as

explanations for why their earlier testimony was not

incomplete or perhaps simply false.*” The State’s lack of

>? In describing the offense of perjury in Brown v.

State, 225 Md. 610, 616, 171 A.2d 456, 458 (1961)

(citations omitted), this Court said:

The offense consists in swearing falsely and

corruptly, without probable cause of belief;

not in swearing rashly or inconsiderately,

according to belief. The false oath, if taken

from inadvertence or mistake, cannot

amount to voluntary or corrupt perjury. . . .

That the oath is wilful and corrupt must not

only be charged in the indictment, but must

be supported on trial. An oath is wilful

when taken with deliberation, and not

through surprise or confusion, or a bona fide

(continued...)

45a

candor was never more apparent as when, at sentencing,

the State pointedly asked Detective Marll if Johnson had

“at any time” during the course of their conversations ever

asked him for “any promises in return for the information”

that he provided, eliciting Detective Marll’s categorical

response, “No sir, he did not.” (Emphasis added).

It is clear to us that the State’s and the witnesses’

deceptive approach was intended to evade the thrust of

Petitioner’s questioning. We find the commencement of

Johnson’s negotiations leading up to the plea agreement

for his testimony against Petitioner, and the fact that he

declined to sign the written statement because no

immediate commitment for a benefit was forthcoming, to

be inseparable conceptually from his initially apprising the

police of the incriminating information. After all,

Johnson’s unsigned, written statement would be of limited

or no value to the State without his consistent in-court

testimony.** We find that the evidence concerning

*(...continued)

mistake as to the facts, in which jatter cases

perjury does not lie.

See also Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 435

(defining, in pertinent part, the crime of perjury as “[a]n

oath or affirmation, if made willfully and falsely in any of

the following cases . . . all cases where false swearing

would be perjury at common law... .”). While we shall

not find that the State offered perjured testimony, we

cannot condone the Brady violations apparently employed

to enhance the credibility of Johnson.

* Absent Johnson’s testimony at trial, the State

(continued...)

53(.. continued)

would have been unable to offer his unsigned, written

statement of 23 November 1994 as substantive evidence of

Petitioner’s guilt, as it does not fall within any exception

to the Maryland Rules on hearsay, Rules 5-801-5-806.

On the other hand, in accordance with Md. Rule 5-

802.1(a)(3), the initial portion of Johnson’s handwritten

statement recounting the facts surrounding Petitioner’s

alleged confession might be successfully admitted as

substantive evidence of Petitioner’s guilt if Johnson, called

by the State as a witness and subject to cross-examination,

testified inconsistently with this prior statement. Md. Rule

5-802.1 provides in pertinent part:

Hearsay exceptions — Prior statements by

witnesses.

The following statements previously made

by a witness who testifies at the trial or |

hearing and who is subject to cross-

examination concerning the statement are

not excluded by the hearsay rule:

(a) A statement that is inconsistent with the

declarant’s testimony, if the statement was

(1) given under oath subject to the penalty

of perjury at a trial, hearing, or other

proceeding or in a deposition; (2) reduced to

writing and signed by the declarant; or (3)

recorded in substantially verbatim fashion

by stenographic or electronic means

contemporaneously with the making of the

statement. .. .

(continued...)

47a

Johnson’s initial request for a benefit and his refusal to

sign the written statement when such a benefit was not

immediately forthcoming was within the exclusive control

of the State, and the State’s failure to disclose this

evidence upon request consequently constituted a

“suppression” within the meaning of Brady.

2. Evidence Favorable to the Petitioner

*(...continued)

In Stewart v. State, 342 Md. 230, 674 A.2d 944

(1996), this Court observed in dicta that prior inconsistent,

unsigned written statements are not admissible under Md.

Rule 5-802.1(a)(3) as substantive evidence “unless they

are recorded substantially verbatim by a reliable

stenographer or electronic means contemporaneously with

the making of the statement,” further noting that “an

unsigned statement taken down in a police officer’s

‘shorthand’ is not substantive evidence” under Md. Rule

5-802.1(a)(3). Stewart, 342 Md. at 238, 674 A.2d at 948.

As the portion of Johnson’s statement concerning

Petitioner’s alleged confession was transcribed in his own

handwriting, this portion of the statement might have

satisfied the reliability requirements of Md. Rule 5-

802.1(a)(3), allowing its possible admission as substantive

evidence. If Johnson took the stand and refused to testify,

however, the State would be unable to introduce the

statement as a prior inconsistent statement, as refusal to

testify is not deemed “inconsistent” with prior testimony.

C50 v. State, 342 Md. 766, 777, 679 A.2d 1127, 1133

48a

To succeed on a Brady claim, Petitioner also must

establish that the suppressed evidence was favorable to his

defense. As indicated above, favorable evidence

encompasses not only exculpatory evidence, but also

evidence that may be used to impeach the credibility of a

witness. See Wilson, 363 Md. at 345-46, 768 A.2d at 681-

82. The Court has recognized the importance of

impeachment evidence, noting that “‘if disclosed and used

effectively, [impeachment evidence] may make the

difference between conviction and acquittal.’” Spicer, 194

F.3d at 556 (quoting Bagley, 473 U.S. at 676, 105 S. Ct. at

3380, 87 L. Ed. 2d 481). See also Strickler, 527 U.S. at

282 n.21, 119 S. Ct. at 1949 n.21, 144 L. Ed. 2d 28

(recognizing that Brady ’s disclosure requirements “extend

to materials that, whatever their other characteristics, may

be used to impeach a witness”). Cf Napue, 360 US. at

269, 79 S. Ct. at 1177, 3 L. Ed. 2d 1217 (“The jury’s

estimate of the truthfulness and reliability of a given

witness may well be determinative of guilt or innocence,

and it is upon such subtle factors as the possible interest of

the witness in testifying falsely that a defendant’s life or

liberty may depend.”).

It is well established that the State’s failure to disclose

the existence of a plea agreement with a key witness

violates Brady standards, because the terms of the

agreement might provide evidence regarding the witness’s

motivation to testify. See Giglio, 405 U-S. at 154-55, 92

S. Ct. at 766, 31 L. Ed. 2d 104; Wilson, 363 Md. at 348,

768 A.2d at 683; Ware, 348 Md. at 50, 702 A.2d at 714

(recognizing that evidence of a plea agreement between

the State and a witness is “powerful impeachment

evidence” that “enables a defendant to attack the motive or

bias of a witness ... .” and must be disclosed to the

49a

accused); Marshall v. State, 346 Md. 186, 198, 695 A.2d

184, 190 (1997) (recognizing that a jury is entitled to

know the terms of a plea agreement between a State and

its witness so that it may assess whether the witness’s

testimony “has been influenced by bias or motive to testify

falsely”); cf: Napue, 360 U.S. at 270; 79 S. Ct. at 1177, 3

L. Ed. 2d 1217 (holding that the failure of the prosecutor

to correct the false testimony of a witness relating to the

absence of an inducement by the State for his testimony

was prejudicial for impeachment purposes).

Recently, under the dictates of Brady, this Court, in

Wilson v. State, 363 Md. 333, 768 A.2d 675 (2001),

reversed a petitioner’s conviction where the State failed to

disclose the specific terms of its written plea agreements

with two key codefendant witnesses, even where the jury

had been apprised of the existence of the agreements

through the testimony of the State’s witnesses. Wilson,

363 Md. at 356, 768 A.2d at 687. We rejected the State’s

argument that its disclosure was sufficient, determining

that the specific terms of the written plea agreements were

favorable to Wilson’s impeachment strategy and should

have been disclosed. Wilson, 363 Md. at 349, 768 A.2d at

683-84. This was particularly true, the Court noted, where

the witnesses’ testimony concerning the terms of the

agreements were inaccurate, and were then further

mischaracterized by the State in closing arguments.

Wilson, 363 Md. at 356, 768 A.2d at 687. Wilson is

instructive in the present case.

Here, while Petitioner and the jury were aware of the

existence of Johnson’s plea agreement in return for his

testimony, the State withheld arguably related

circumstances leading up to its consummation, namely,

that Johnson, indeed, requested a favor, and that he refused

50a

to sign his written statement absent such a commitment.

This was evidence that disputed Johnson’s later testimony

(and the State’s trial arguments), which information would

have strengthened Petitioner’s assertion that Johnson had

fabricated Petitioner’s alleged confession in an effort to

garner a benefit on outstanding charges.

The State argues that Johnson’s self-interest was

“more than adequately” presented to the jurors, and that

they were presented with a “full picture” of Johnson

through his testimony. We disagree. 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 Marll’s corroborating testimony, and deprived

Petitioner of potentially valuable impeachment evidence.

The difference in potential impeachment value of this

information increased during the sentencing phase, as we

discuss further infra, because of Johnson’s position as the

key witness to Petitioner’s principalship in the murder of

Wanda Johnson.

Similar to Wilson, the value of the suppressed

information as impeachment evidence was confirmed by

the State’s efforts to conceal it from Petitioner. The State

offered, without correction, Johnson’s testimony asserting

his altruistic motives in contacting the police and repeated

denials of his solicitation of a quid pro quo for the

information. The State persisted in this tact by placing a

police detective on the witness stand to bolster indirectly

Johnson’s testimony, both as to motive in giving it and in

substance. The State’s conduct continued in its closing

arguments, at trial and sentencing, in which it extolled

Sla

Johnson’s credibility as a witness, knowing its own sins of

omission.

While it is true that Petitioner vigorously cross-

examined Johnson in an attempt to discredit his testimony,

and argued by inference a link between Johnson’s motive

in coming forward and the plea agreement, that does not

necessarily vitiate any error caused by the State’s failure

to disclose this impeachment evidence. See Wilson, 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

prosecutor disputed.”). See also Martin v. State, _

So.2d__, 2001 Ala. Crim. App. Lexis 298, 21 (Ala. Crim.

App. 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”). Under the facts of this case,

the State’s failure to disclose the impeachment evidence

violates Brady principles.

3. Material Evidence

Petitioner’s final obstacle in establishing a Brady

violation is materiality. As this Court explained in Wilson,

discussed supra, there are two different materiality

standards“ that may be applied to the analysis of

* In his dissent in Strickler v. Greene, 527 U.S.

263, 298-300, 119 S. Ct. 1936, 1956-57, 144 L. Ed. 2d 286

(1999) (Souter, J., dissenting), Justice Souter provided an

(continued...)

52a

*4(__.continued)

instructive review of the evolution in the Supreme Court

of the materiality standard imposed by the Brady rule:

Brady itself did not explain what it meant by

“material” (perhaps assuming the term

would be given its usual meaning in the law

of evidence, see United States v Bagley, 473

US. 667, 703, n.5, 87 L. Ed. 2d 481, 105 S.

Ct. 3375 (1985) (Marshall, J., dissenting)).

We first essayed a partial definition in

United States v. Agurs, [427 U.S. 97, 49 L.

Ed. 2d 342, 96 S. Ct. 2392 (1976)], where

we identified three situations arguably

within the ambit of Brady and said that in

the first, involving knowing use of perjured

testimony, reversal was required if there

was “any reasonable likelihood” that the

false testimony had affected the verdict.

Agurs, [427 U.S.] at 103 (citing Giglio v.

United States, 405 U.S. 150, 154, 31 L. Ed.

2d 104, 92 S. Ct. 763 (1972), in turn quoting

Napue v. Illinois, 360 U.S. 264, 271, 3 L.

Ed. 2d 1217, 79 S. Ct. 1173 (1959)). We

have treated “reasonable likelihood” as

synonymous with “reasonable possibility”

and thus have equated materiality in the

perjured-testimony cases with a showing

that suppression of the evidence was not

harmless beyond a reasonable doubt.

Bagley, [473 U.S.] at 678-680, and n.9

(continued...)

53a

*4(.. continued)

(opinion of Blackmun, J.). See also Brecht

v. Abrahamson, 507 U.S. 619, 637, 123 L.

Ed. 2d 353, 113 S. Ct. 1710 (1993)

(defining harmless-beyond-a-reasonable-

doubt standard as no “‘reasonable

possibility’ that trial error contributed to the

verdict”); Chapman v. California, 386 U.S.

18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824

(1967) (same). In Agurs, we thought a less

demanding standard appropriate when the

prosecution fails to turn over materials in

the absence of a specific request. Although

we refrained from attaching a label to that

standard, we explained it as falling between

the more-likely-than-not level and yet

another criterion, whether the reviewing

court’s “‘conviction [was] sure that the error

did not influence the jury, or had but very

slight effect.’” [Agurs,] 427 U.S. at 112

(quoting Kotteakos v. United States, 328

U.S. 750, 764, 90 L. Ed. 1557, 66 S. Ct.

1239 (1946)). Finally, in United States v.

Bagley, [473 U.S. at 682], we embraced

“reasonable probability” as the appropriate

Standard to judge the materiality of

information withheld by the prosecution

whether or not the defense had asked first.

Bagley took that phrase from Strickland v.

Washington, 466 U.S. 668, 694, 80 L. Ed.

(continued...)

54a

suppressed exculpatory evidence. The strictest, and more

defendant-friendly, Napue/Agurs standard applies in those

cases where “‘the prosecution’s case includes perjured

testimony and... the prosecution knew, or should have

known, of the perjury.”” Wilson, 363 Md. at 346-47, 768

A.2d at 682 (quoting Agurs, 427 U.S. at 103, 96 S. Ct. at

2397, 49 L. Ed. 2d 342). The Supreme Court explained in

Agurs that “‘a conviction obtained by the knowing use of

perjured testimony is fundamentally unfair,’” accordingly,

it “‘must be set aside if there is any reasonable likelihood

that the false testimony could have affected the judgment

of the jury.’” Jd. (quoting Agurs, 427 U.S. at 103, 96 S.

Ct. at 2397, 49 L. Ed. 2d 342). See Napue, 360 US. at

272, 79 S. Ct. at 1179, 3 L. Ed. 2d 1217.

A different standard of materiality applies in those

cases where there is no perjured testimony, but there is

prosecutorial failure to disclose exculpatory evidence.

Under the Brady/Bagley materiality standard, evidence

will be deemed 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. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome’” of the

case. Wilson, 363 Md. at 347, 768 A.2d at 682 (quoting

Bagley, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d

481 (opinion of Blackmun, J.)). See also Kyles, 514 US.

*4(__.continued)

2d 674, 1048S. Ct. 2052 (1984), where it had

been used for the level of prejudice needed

to make out a claim of constitutionally

ineffective assistance of counsel. .. .

55a

at 433-34, 115 S. Ct. at 1565, 131 L. Ed. 2d 490. This

Court has interpreted the Strickland “reasonable

probability” standard to mean a “‘substantial possibility

that . . . the result of [the] trial would have been any

different.’” Wilson, 363 Md. at 347 n.3, 768 A.2d at 683

n.3 (quoting State v. Thomas, 325 Md. 160, 190, 599 A.2d

1171, 1185 (1992)). See also Thomas, 325 Md. at 190 n.8,

599 A.2d at 1185 n.8; Bowers v. State, 320 Md. 416, 426-

27, 578 A.2d 734, 739 (1990). This standard applies to

“the ‘no request,’ ‘general request,’and “specific request’

cases of prosecutorial failure to disclose evidence

favorable to the accused.” Bagley, 473 U.S. at 682,105 S.

Ct. at 3383, 87 L. Ed. 2d 481 (opinion of Blackmun, J Bt as

See Ware, 348 Md. at 48, 702 A.2d at 713 (noting that

under Bagley, the Court “no longer distinguish[es] for

purposes of determining the standard of materiality among

cases in which the defense made a specific request as

opposed to a general request or no request at all’’).

Petitioner asserts that the stricter standard of

materiality enunciated in Napue applies under the facts of

35

In Bagley, Justice Blackmun found the

“Strickland formulation of the Agurs test for materiality

sufficiently flexible to cover the “no request,” “general

request,” and “specific request” cases of prosecutorial

failure to disclose evidence favorable to the accused... .”

Bagley, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d

481 (opinion of Blackmun, J.). See also supra note 34,

discussing Justice Souter’s dissent in Strickler, 527 U.S. at

298-300, 119 S. Ct. at 1956-58, 144 L. Ed. 2d 286 (Souter,

J., dissenting) (reviewing the evolution of the Brady rule).

56a

this case, arguing that the State affirmatively presented

perjured testimony. Accordingly, Petitioner contends, a

new trial, or at least a new sentencing, 1s required because

there was a “reasonable likelihood that the false testimony

could have affected the judgment of the jury.” Wilson,

363 Md. at 347, 768 A.2d at 682 (citation omitted).

Petitioner alternatively argues that he is entitled to a new

trial or sentencing because he meets the Brady/Bagley

standard of materiality, as there was a “substantial

possibility” that the outcome of the tnal or sentencing

would have been different had the withheld information

been disclosed. See Wilson, 363 Md. at 347 n.3, 768 A.2d

at 683 n.3. (citations omitted). While the Napue standard

of materiality is not indicated in the present case, supra

note 32, we are satisfied that Petitioner has met the stricter

standard of showing materiality under Brady/Bagley. The

record supports our conclusion that, had the evidence

relating to Johnson’s complete negotiations for a benefit

been disclosed, there was a substantial possibility that the

outcome would have been different.

We base our conclusion on several factors this Court

has used to assess materiality for purposes of suppressed

impeachment evidence. See Wilson, 363 Md. at 352-55,

768 A.2d at 685-87. First, Johnson was a key State’s

6 The Court in Wilson recognized several factors to

which courts have looked to assess materiality for the

purposes of suppressed impeachment evidence, which we

apply in the instant case:

[T]he closeness of the case against the

defendant and the cumulative weight of the

(continued...)

57a

witness as to Petitioner’s principalship in Wanda

Johnson’s murder. Principalship directly governs

Petitioner’s eligibility for the death penalty. See Md. Code

(1957, 1996 Repl. Vol., 1998 Supp.), Art. 27, § 413(e)(1)

(restricting the death penalty only to persons convicted of

first degree murder as a principal in the first degree). A

principal in the first degree is “‘one who actually commits

a crime, either by his own hand, or by [an] inanimate

agency, or by an innocent human agent.’” Gary v. State,

341 Md. 513, 520, 671 A.2d 495, 498 (1996) (quoting

Johnson v. State, 303 Md. 487, 510, 495 A.2d 1, 12 (1985)

(alteration in original) (citation omitted)). Johnson’s

testimony concerning Petitioner’s alleged confession

affirmatively and directly cast Petitioner, rather than his

alleged accomplice (Bradshaw), as the actual perpetrator

of her murder.*”

*6(.. continued) 7

other independent evidence of guilt, the

centrality of the particular witness to the

State’s case, ... 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, 768 A.2d at 685 (citations omitted).

37

Judge Raker, in her dissent in Conyers II,

recognized Charles Johnson as the State’s primary witness

on principalship, noting that “his credibility was central to

the question of whether [Petitioner] was eligible for the

(continued...)

58a

Second, a determination of the relative significance of

the suppressed evidence requires an understanding of the

evidence that was presented at trial and sentencing. See

Wilson, 363 Md. at 353, 768 A.2d at 685 (noting that the

testimony of a codefendant witness provided the “only

direct link between Petitioner and the crime’’). The State

disputes that Johnson’s testimony at tnal and sentencing

was the only evidence of Petitioner’s involvement or, as to

Ms. Johnson’s death, his principalship, respectively, in the

murders. While that may be so, the other evidence to

which the State refers is circumstantial. As indicated

supra, the sentencing testimony, other than Johnson’s,

placed only Lawrence Bradshaw in the victim’s home at

the time of her murder. While there was circumstantial

evidence adduced during the guilt/innocence portion of the

trial that would permit a reasonable jury to conclude that

Petitioner was a participant in her murder, it is less

apparent that, absent belief of Johnson’s testimony, the

evidence would have been sufficient to find, beyond a

reasonable doubt, Petitioner was the principal. If

Johnson’s testimony is to be believed, there are no

inferences that need be drawn from the circumstantial

evidence, either at trial or sentencing, in order to conclude

that Petitioner was involved, or the shooter, in both

murders. We should not be understood to hold, however,

that the circumstantial evidence at trial and sentencing,

exclusive of Johnson’s testimony, necessarily was

constitutionally insufficient for a reasonable jury to

37(__.continued)

death sentence.” Conyers II, 354 Md. at 204, 729 A.2d at

948 (Raker, J., dissenting).

59a

convict or render a sentence of death. We hold only that

the taint of the Brady suppression matters on this record so

undermines our confidence in the murder convictions and

death sentence that a new trial is in order.

We reject the State’s argument that the jury was

provided with a “full picture” of Johnson through the

testimony at both trial and the sentencings, referring to

vigorous efforts by Petitioner’s lawyers to portray Johnson

as a jailhouse snitch out to get a deal. For the reasons

discussed supra, we cannot say that if the jury was

informed of the totality of the circumstances leading up to

Johnson’s ultimate plea agreement, there would not be a

substantial possibility that the outcome would have been

different had the withheld information been disclosed. See

Wilson, 363 Md. at 353, 768 A.2d at 686 (noting that

Wilson’s trial counsel’s attempt to cross-examine the

State’s key witnesses “was far less effective than it would

have been” had he possessed the written agreements that

specified the terms).

Finally, the State was an active participant in the

‘smoke and mirrors’ effort to mislead the Petitioner and

jury as to the full circumstances preceding and

precipitating Johnson’s plea agreement. As previously

noted supra, the prosecutor at sentencing expressly asked

Detective Marll if Johnson had “at any time ever ask[ed]

[him] for any promises or favors in return for the

information he was giving [him],” deliberately eliciting

Detective Marll’s denial. In closing argument at trial, the

prosecutor trumpeted Johnson’s version of why he

contacted police by claiming Johnson told the truth

“because it was the right thing to do.” In both

proceedings, the State emphasized Johnson’s credibility as

a witness. The importance of Johnson’s credibility was

60a

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.’”) (quoting Ware, 348 Md. at 53, 702

A.2d at 715 (citations omitted)).

Applying the final test of materiality pertinent to these

facts, we conclude that the State suppressed material

impeachment evidence of Johnson’s negotiations for a

benefit. Accordingly, we reverse, based on the Brady

claims, the lower court’s judgment denying Petitioner post

conviction relief. We remand this case to the Circuit

Court for Wicomico County for a new tnal. We shall not

reach Petitioner’s remaining issues.

JUDGMENT OF THE CIRCUIT COURT

FOR WICOMICO COUNTY REVERSED;

CASE REMANDED TO THE CIRCUIT

COURT FOR A NEW TRIAL; COSTS TO BE

PAID BY WICOMICO COUNTY.

=— = =

6la

IN T OF APPEALS OF MARYLAND

No. 26

September Term, 2001

CLARENCE CONYERS, JR.

v.

STATE OF MARYLAND

Bell, C.J.

Eldridge

Raker

Wilner

Cathell

Harrell

Battaglia

JJ.

Dissenting opinion by Cathell, J.

in which Wilner, J., joins

Filed February 5, 2002

62a

I respectfully dissent. The majority’s opinion in this

third examination of Conyer’s conviction (Conyers III, I

suppose) is a result looking for justification that, in

actuality, does not exist.

The majority’s reversal is based solely on the Brady®

issue. It does not address the remaining issues (other than

those relating to waiver with which I do not take issue).

The majority states:

“(W]e must determine whether (1) the State

suppressed or withheld evidence that was (2)

favorable to the Petitioner and (3) whether the

suppressed evidence was material.”

I agree that if the evidence of Johnson’s attempts to

obtain favorable treatment in return for his testimony had

been suppressed by the State, it was both favorable to the

petitioner and material. The problem is, regardless of the

majority’s massive dumping of legal authority in its

opinion and the discussion of perjury by the majority in a

footnote, that the evidence was not suppressed or withheld

in the first instance.

I have no dispute about the application of Brady. The

extensive discussion of that case and its progeny in the

majority’s opinion serves primarily to obfuscate the

weakness of its factual determination in the case. The

majority’s reversal is based not upon the law but upon its

interpretation of the facts.

What is clear is that the purpose of the whole line of

Brady cases is to insure that the trier of fact has before it

any material impeachment (in this case) evideace. The

8 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963).

63a

impeachment evidence in this case was that Johnson, the

witness at issue, received benefits for his testimony by

way of a favorable plea bargain in respect to unrelated

charges he was facing.

The majority states:

“Here, while Petitioner and the jury were

aware of the existence of Johnson’s plea

agreement in return for his testimony, the State

withheld arguably related circumstances leading

up to its consummation, namely, that Johnson,

indeed, requested a favor, and that he refused to

sign his written statement absent such a

commitment.”

The favor Johnson requested was the plea agreement

he received from the State and that plea agreement was

made known to the jury. It is almost, I would suggest,

universally understood that plea bargaining constitutes

favors. Additionally, the very use of the general term

“bargain” implies a give and take procedure where things

are withheld and other things offered; some are accepted,

some are rejected. When the jury was informed of the plea

agreement, it, impliedly, was informed that a give and take

process for Johnson’s testimony had been undertaken and

been consummated.

Additionally, the majority’s reasoning is, in my view,

sophistic in nature. Parsed of extraneous material, the

majority is holding that because the detective’s and

Johnson’s testimony about their prior communications was

the type of testimony that could tend to obscure the

existence of a beneficial plea bargain for Johnson on his

unrelated charges, the case must be reversed under Brady,

even though the beneficial plea bargain was, in fact, fully

64a

disclosed to the jury. The jury was fully apprised of the

possible motive of Johnson to fabricate his testimony.

The purpose of the Brady holding (as applied in the

impeachment context) is to insure that the jury is made

aware of the motive for fabrication on the part of the

witness, not to mandate that every nuance of the process

from which the motive to fabricate originates be

remembered and/or disclosed.

Had Johnson’s plea bargain not been disclosed to the

jury, the dictates of the Brady line of cases would not

have been met and I would join the majority. In my view,

however, the requirements of Brady were met.

The majority does not address the other issues.

Nonetheless, were I writing for the majority of the Court,

I would affirm on all issues presented.

Judge Wilner has authorized me to state that he joins

in this dissent.

6Sa

APPENDIX B

IN RE: * IN THE

CLARENCE CONYERS, JR. * CIRCUIT COURT

#184-805

Application for Relief Under * FOR

the Uniform Post Conviction

Procedure Act * WICOMICO COUNTY

* CASE NO. 96CR0458,

6CR0460

* * * 7 * - * * .

ORDER

For reasons stated in the attached Memorandum

Opinion, it is this _30th_ day of January, 2001, by the

* Circuit Court for Wicomico County,

ORDERED, that the Petition of Clarence Conyers, Jr.,

for relief under the Uniform Post Conviction Procedure

Act, be and the same is hereby denied.

/s/

Judge Edward J. Angeletti

66a

IN RE: * IN THE

CLARENCE CONYERS, JR. * CIRCUIT COURT

#184-805

Application for Relief Under * FOR

the Uniform Post Conviction

Procedure Act * WICOMICO COUNTY

* CASE NO. 96CR0458,

6CR0460

- * 7” = 7 = om” -

MEMORANDUM OPINION

STATEME F CASE

This is Petitioner’s first application under the Uniform

Post Conviction Procedure Act, Md. Ann. Code, Art. 27,

Section 645A-J, and Maryland Rules 4-401 through 4-408.

Clarence Conyers, Jr., (Petitioner) was convicted in the

Circuit Court for Wicomico County of premeditated

murder, felony murder, first-degree burglary, robbery with

a deadly weapon, attempted robbery with a deadly

weapon, robbery, attempted robbery, and use of a handgun

in the commission of a crime of violence with respect to

Wanda Johnson. In the same proceeding, Petitioner was

convicted of premeditated murder and use of a handgun in

the commission of a crime of violence as to Lawrence

Bradshaw. Petitioner was sentenced to death for the

murder of Johnson and to life without the possibility of

parole for the murder of Bradshaw. On direct appeal, the

Court of Appeals, in Conyers v. State, 345 Md. 525, 693

67a

A.2d 781 (1997) (“Conyers I’’) reversed the burglary

conviction and set aside the death sentence, finding that

the trial court committed reversible error in admitting a

portion of the presentence investigation report referring to

Petitioner’s prior juvenile charges that had not resulted in

a finding of delinquency. The Court remanded the case

for a new sentencing proceeding in accordance with

Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.),

Article 27, Section 413.

The Court of Appeals, in affirming the other

judgments, also held that: (1) the trial court did not abuse

its discretion in refusing to admit Petitioner’s proffered

exculpatory evidence under doctrine of completeness; (2)

such evidence was not admissible under doctrines of

opening the door or curative admissibility; (3) evidence of

each murder was admissible as to the other, thus justifying

joinder of two murders for jury trial; (4) evidence of

breaking was insufficient to sustain conviction for

burglary; (5) evidence supported Petitioner’s convictions

for robbery and robbery with a deadly weapon; (6)

prosecution witness’s testimony that Petitioner told him

that Petitioner and another individual were supposed to

meet up to “hustle” did not necessitate mistrial; (7)

admission of witness’s testimony regarding Petitioner’s

alleged violent tendencies or use of drugs did not amount

to plain error; (8) adjudications of delinquency did not

have to involve crimes of violence to be admissible; (9)

descriptions of prior juvenile adjudications did not violate

prohibition against admission of inflammatory detailed

evidence of underlying facts and circumstances

surrounding unrelated crimes; and (10) death penalty

statute is constitutional.

68a

On January 17 and January 26-28, 1998, the Circuit

Court for Wicomico County, The Honorable D. William

Simpson, J., presiding with a jury as requested by

Petitioner, conducted the new capital sentencing

proceeding. Petitioner was again sentenced to death for

the Wanda Johnson murder. On direct appeal, the Court

of Appeals, in Conyers v. State, 354 Md. 132 (1999)

(Conyers IT), affirmed the judgment of death and held that:

(1) detective’s rebuttal testimony regarding information

that Petitioner’s cellmate provided State did not invade

province of jury; (2) testimony about alleged statements of

cellmate was inadmissible on hearsay grounds; (3) tral

court did not commit plain error with respect to instruction

on non-statutory mitigating circumstance of sympathy or

mercy; (4) testimony of professor as to philosophy

underlying task of sentencing was inadmissible; (5) victim

impact witness did not impermissibly convey to jury that

Petitioner was previously sentenced to death; (6) “other

crimes” evidence consisting of domestic violence

testimony was admissible; (7) inclusion of name of second

murder victim, who was apparent participant in break-in

resulting in first murder, in presentence investigation (PSI)

report was not prejudicial error; (8) photographs of victim

were admissible; (9) Sixth Amendment right to-counsel

did not prohibit admission of Petitioner’s statement to

estranged girlfriend; and (10) death penalty statute was not

unconstitutional as applied or facially unconstitutional.

69a

Arguments Presented for Consideration at

Post Conviction

: Petitioner filed this Petition for Post Conviction

Relief’ in which he makes the following allegations:

A. Ineffective Assistance of Trial and Appellate

Counsel’ Regarding the Guilt/Innocence Phase

1. TC failed to show with “available evidence” that

Mr. Conyers was intentionally placed together

with Charles Johnson in an effort to gather

evidence against the Petitioner.

2. TCand AC failed to argue against joinder of the

two murder trials on federal constitutional

grounds.

3. TC failed to develop evidence before trial that

Lawrence Bradshaw possessed a firearm at the

time of his death.

4. TC failed to discover evidence that Charles

Johnson provided information to the State

regarding a Martin Quincy Johnson and that, in

| September, 1995, Charles Johnson was even

produced to testify in the Martin prosecution.

1

Counsel, appointed by the Public Defender’s

Office, filed supplemental amended petitions. For

purposes of this Memorandum, the original and amended

petitions will be considered as a whole and designated as

“petition.”

? The following abbreviations are used herein:

IAOC = Ineffective Assistance of Counsel; TC = Tnal

Counsel; and AC = Appellate Counsel.

10.

11.

12.

$3.

70a

TC failed to discover that Katherine Hadel had

been shown a photo spread and failed to identify

the Petitioner. —

During voir dire, TC failed to inquire of jurors

whether they could conceive of a case where

they would always vote for the death penalty,

regardless of mitigating factors.

TC failed to object to the removal, upon motion

by the state, of three jurors for cause who had

stated they were morally opposed to the death

penalty based upon their religion.

TC failed to object to Monica Wilson’s

testimony that her mother, Wanda Johnson, told

her that she had Twenty Dollars on her person

shortly before her death.

TC failed to object specifically to Monica

Wilson’s testimony at trial that Mr. Conyers said

he had two .38 caliber handguns.

TC failed to object when the trial court curtailed

defense questions directed to Monica Wilson

regarding her drug use.

TC failed to cross examine Carla Clinton on her

failure to identify Lawrence Bradshaw in a photo

spread as the intruder she saw in Wanda

Johnson’s residence the night of the murder.

TC failed to object to testimony by Monica

Wilson regarding drug use and violence between

herself and the Petitioner.

TC and AC failed to raise a federal constitutional

claim in their efforts to introduce hearsay

evidence to show that the Petitioner did not

possess firearms at the time of the murder.

14.

15.

16.

17.

T7la

TC failed to object when the tal court barred

them from cross examining a State witness

regarding Lawrence Bradshaw’s occupation and

later, when the trial court barred TC from

eliciting testimony from a defense witness on the

same subject.

TC failed to state in federal constitutional terms

their voiced objection to testimony by Clarence

Johnson about Petitioner’s alleged statement that

he and Lawrence Bradshaw intended to rob

people after the murder of Wanda Johnson.

Petitioner also asserts that TC erroneously failed

to request a limiting instruction regarding the use

to which such testimony could be put.

AC failed to raise a federal constitutional claim

when arguing that the trial court was in error

when it permitted Charles Johnson to testify to

Petitioner’s alleged statement that he and

Lawrence Bradshaw intended to rob people after

the murder of Wanda Johnson.

TC failed to interrogate Charles Johnson at trial

regarding instances of dishonesty and false

statement:

a. Charles Johnson’s lies to his employer,

Murry’s Steaks.

b. Charles Johnson’s lies to the police.

c. Charles Johnson’s failure to file tax returns.

d. Charles Johnson’s practice of “trolling” for

information in the Detention Center in an

effort to obtain a favorable sentence

recommendation.

e. Charles Johnson’s history of failure to

comply with lawful police instructions.

18.

19.

20.

21.

22.

23.

24.

72a

AC was ineffective in failing to preserve on

appeal timely objections at trial and demands for

a mistrial by TC arising from and responding to

numerous audible comments made by Wanda

Johnson’s family during the trial.

AC failed to continue to press timely objections

raised at trial regarding prejudicial photographs.

TC failed to object to the jury’s proximity to

bench conferences and their ability to overhear

such conferences.

TC were ineffective for failing to request an

instruction limiting consideration of each murder

to the other based upon the relevance stated in

the tnal court’s ruling on the Petitioner’s

severance motion.

TC failed to seek a jury instruction directing the

jury to consider each charge separately and

failed to object to the Court’s charge which

lacked such an instruction.

AC failed to contest as plain error the erroneous

jury charge lacking the other crimes and

individual consideration instructions.

TC failed to object to improper statements made

by the State in closing argument:

a. “{I}f this man lives by any rules at all, he

lives by this one rule, don’t leave any live

witnesses. ... Right now, you’re about forty

feet away from a cold-blooded killer.”

b. The testimony of Chrissy Harding and

Christy Collison was “totally unimpeached.”

c. The facts that Charles Johnson provided to

the police “were not on TV.”

73a

d. The State’s repeated arguments that Charles

Johnson told the truth.

e. The State’s showing of a crime scene

photograph to the jury and subsequent

statement, “[m] ake a decision you can live

with the rest of your lives. Find him guilty.”

25. The cumulative effect of the errors made by TC

and AC denied Petitioner effective assistance of

counsel in violation of the Sixth Amendment, the

Maryland Declaration of Rights, and Maryland

law.

B. Ineffective Assistance of Trial and Appellate

Counsel - Regarding the Sentencing Phase

1. TC and AC failed to argue at sentencing and on

appeal that hearsay is admissible in a capital

sentencing proceeding.

2. TC was ineffective for failing to cross examine

Charles Johnson about statements made to

Arthur Rogers and Ventura McLee.

3. TC failed to cross examine Charles Johnson

regarding certain instances of dishonesty:

a. Charles Johnson’s personnel file at Murry’s

Steaks.

b. Charles Johnson’s statements to the police

about the Wendy’s robbery.

c. Failure of Charles Johnson to file tax returns.

d. Charles Johnson trolled for information in

the Detention Center.

e. Charles Johnson’s prior defiance of lawful

police instruction.

4. TC failed to object to improper victim impact

evidence offered by Victoria Gibson.

14.

15.

74a

TC failed to present and develop mitigation

evidence adequately.

TC failed to object to improper argument from

the State which permitted the State to avoid

meeting its burden to prove principalship in the

first degree.

TC failed to object to improper opinion evidence

of Detective Philip Marll which impermissibly

bolstered the testimony of the State’s key

witness, Charles Johnson.

TC failed to object to the admission of other

crimes evidence during the testimony of Monica

Wilson.

AC was ineffective for raising on direct appeal

unpreserved issues for which all of the relevant

facts were not contained in the record on appeal.

TC failed to object to evidence of Mr. Conyers’

conviction of the murder of Lawrence Bradshaw.

TC failed to request sufficient voir dire to

determine juror predisposition to the death

penalty.

TC failed to request a jury instruction as to the

evidence that Mr. Conyers had murdered

Lawrence Bradshaw.

TC failed to object to the prosecutor’s closing

argument that Mr. Conyers was a “cold-blooded

career killer.”

TC failed to object to argument of the State

regarding the weighing process at sentencing.

TC failed to object to expressions of personal

feelings and speculation as to facts not in

evidence during the State’s closing argument.

75a

16. TC failed to request that the language of the

Findings and Sentence Determination Form be

amended to remove the word “evidence.”

17. TC failed to ask the trial judge to remove all

reference to unanimity as to mitigating

circumstances on the Sentencing Form.

18. TC erred in allowing the aggravators of robbery

and attempted robbery to be submitted to the

jury.

19. TC and AC erred in (a) permitting the jury to

overhear bench conferences; (b) failing to object

to prejudicial photographs; and (c) failing to

object to audible comments by the audience.

20. TC was ineffective for failing to object to the

absence of the Petitioner from the unrecorded

chambers conference where the Court heard

argument from the State and from the defense as

to an important evidentiary matter.

21. The cumulative effect of the errors made by TC

and AC denied Petitioner effective assistance of

counsel in violation of the Sixth Amendment, the

Maryland Declaration of Rights, and Maryland

law.

C. Court Error at Trial a i ocence

1. The trial court erroneously permitted the

dismissal of jurors during voir dire, in violation

of the Maryland Declaration of Rights Equal

Protection Clause and analogous federal

constitutional law.

2. The trial court erroneously admitted the

testimony of Charles Johnson, in violation of Mr.

Conyers’ Fifth Amendment Right Against

Self-Incrimination, Fifth Amendment Right to

10.

11.

76a

Counsel, and Sixth Amendment Right to

Counsel.

The trial court erroneously permitted Monica

Wilson to testify to Wanda Johnson’s statement

that she had Twenty Dollars on her person the

night of her murder.

The trial court failed to strike, sua sponte, the

trial testimony of Monica Wilson that Mr.

Conyers told her while he was incarcerated that

he had two .38 handguns.

The trial court failed to allow TC to offer a

companion statement by Mr. Conyers to Monica

Wilson to the effect that he did not have the two

.38 caliber handguns in his possession at the time

of the murders.

The trial court erroneously permitted Monica

Wilson to testify to prior bad acts of Mr.

Conyers.

The trial court erroneously barred questioning by

TC regarding Monica Wilson’s drug use, during

both direct and cross examination.

The trial court erroneously barred questioning by

TC regarding Lawrence Bradshaw’s occupation,

during both direct and cross examination.

The trial court failed to declare a mistrial after

numerous audible comments were made by

Wanda Johnson’s family during trial.

The trial court erroneously permitted prejudicial

crime scene and autopsy photographs to be

admitted into evidence.

The trial court failed to order, sua sponte the jury

to leave the courtroom during bench conferences

12.

ia.

14.

15.

16.

77a

when the jury could overhear the conferences

while they were seated in the courtroom.

The trial court failed to admonish counsel! for the

State and to strike from the record numerous

improper statements by counsel for the State

during closing argument.

The trial court failed to provide, sua sponte, a

limiting instruction to the jury regarding the

admission of Charles Johnson’s testimony that

Mr. Conyers said that he and Lawrence

Bradshaw intended to rob people after Wanda

Johnson’s murder.

The trial court erroneously permitted Charles

Johnson to testify to the fact that Mr. Conyers

said that he and Lawrence Bradshaw intended to

rob people after Wanda Johnson’s murder.

The trial court erroneously denied Mr. Conyers’

severance motion.

The trial court failed to provide, sua sponte, jury

charges directing the jury to limit consideration

of the Bradshaw murder in deciding Mr.

Conyers’ guilt on the Wanda Johnson charge to

consciousness of guilt and directing the jury not

to consider the Bradshaw murder as evidence of

propensity. The trial court also failed to provide

an instruction directing the jury to consider each

charge separately. .

D. Court Error at Sentencing

1.

The trial court improperly restricted the direct

examination of Arthur Rogers, Ventura McLee,

and Eric Spencer.

10.

78a

The trial court permitted the introduction of

evidence of improper victim impact evidence at

sentencing.

The trial court erroneously allowed into evidence

both testimony as to the good character of the

victim and evidence that Mr. Conyers had

received a death sentence previously in this case

which resulted in a new sentencing which

exacerbated the family’s grief.

The trial court erroneously permitted Detective

Marl to testify as to the truthfulness of Charles

Johnson.

The trial court improperly permitted the

admission of other crimes evidence during the

testimony of Monica Wilson and failed to issue,

sua sponte, a jury instruction on the use to

which such testimony could be put by the jury.

The trial court erroneously allowed the robbery

aggravating circumstance to be submitted to the

jury absent sufficient evidence that a robbery

occurred.

The trial court improperly permitted evidence as

to Mr. Conyers’ prior conviction of the

Lawrence Bradshaw murder, and the admission

of that evidence without any limiting instruction

to the jury.

The trial court erred in permitting the State to

present improper closing argument to the jury.

The trial court erred in submitting to the jury a

sentencing form which improperly limited their

consideration of mitigation to “evidence.”

The trial court submitted an improper sentencing

form to the jury.

11.

12.

13.

79a

The trial court erred in failing to sufficiently voir

dire prospective jurors as to their views on the

death penalty and their ability to give equal

consideration to al] of the sentencing options.

The trial court erred in permitting the same

errors that occurred during the guilt/imnocence

phase of the trial, including the court’s failure to

address, sua sponte, the jury’s ability to overhear

bench conferences and audible comments made

by the audience.

The trial court denied Mr. Conyers his nght to

confront and cross examine evidence against

him, his right to be present and participate in his

capital sentencing proceeding, and his right to

due process by hearing substantive argument and

ruling on a critical evidentiary matter in the

absence of Mr. Conyers during an unrecorded

conference in chambers.

E. State Violations of Due Process

3

In violation of the Fifth and Fourteen

Amendments, as well as Article 24 of the

Maryland Declaration of Rights and the State’s

statutory and legal obligations, the State failed to

turn over to the Petitioner evidence of Charles

Johnson’s involvement and cooperation in the

prosecution of Martin Quincy Johnson.

In violation of the Fifth and Fourteenth

Amendments, as well as Article 24 of the

Maryland Declaration of Rights and the State’s

statutory and legal obligations, the State failed to

turn over to the Petitioner evidence regarding

potential witness Katherine Hadel and her failure

80a

to identify the Petitioner as the male with

Lawrence Bradshaw shortly before his murder.

In violation of the Fifth and Fourteenth

Amendments, as well as Article 24 of the

Maryland Declaration of Rights and the State’s

statutory and legal obligations, the State failed to

disclose its complete agreement with Deborah

Myers prior to tnal.

In violation of the Fifth and Fourteenth

Amendments, as well as Article 24 of the

Maryland Declaration of Rights and the State’s

statutory and legal obligations, the State failed to

turn over to the Petitioner the fact that State

witness Charles Johnson had requested a “deal”

when he met with police to discuss the

Petitioner’s involvement with the Wanda

Johnson and Lawrence Bradshaw murders.

In violation of the Fifth and Fourteenth

Amendments, as well as Article 24 of the

Maryland Declaration of Rights and the State’s

statutory and legal obligations, the State failed to

disclose to the Petitioner that a number of

statements made by Charles Johnson contained

in his written statement could not be verified and

were, in fact, disproved.

F. Additional Claims of Error

3.

The Maryland Death Penalty Statute denies the

sentencer full freedom to assess and weight

relevant mitigating evidence in violation of the

Fourteenth Amendment rights to due process and

equal protection; the Sixth Amendment rights to

effective assistance of counsel, the confrontation

of witnesses and an impartial jury; and the

8la

Eighth Amendment right against cruel and

unusual punishment as well as Defendant’s

rights under Articles 16, 21, 23, 24 and 25 of the

Maryland Declaration of Rights.

Maryland’s method of execution is

unconstitutional:

a. Maryland’s lethal injection statute violates

the Eighth Amendment and Articles 16 and

25 of the Maryland Declaration of Rights

because it fails to minimize the risk of error

_ associated with lethal injection.

b. The Maryland Lethal Injection Statute

offends evolving standards of decency

because it conflicts with current standards of

medical ethics.

c. The Maryland Lethal Injection Statute

unconstitutionally delegates legislative power

to the Commissioner of Correction.

Maryland’s capital sentencing scheme is

unconstitutional as applied to defendants

convicted of felony murder, and violates the

Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution,

Articles 16, 21, 24 and 25 of the Maryland

Declaration of Rights, and applicable federal and

state law.

Maryland’s capital sentencing proceeding

employs a burden of proof that permitted Mr.

Conyers to be sentenced to death upon a jury’s

finding that aggravating circumstances

outweighed mitigating circumstances by a

preponderance of the evidence in violation of the

ae

6.

————

82a

Supreme Court’s recent holding in Apprendi v.

New Jersey, 530 U.S. 466 (2000).

TC and AC were ineffective for failing to raise

the Apprendi argument.

TC failed to request a pretrial hearing

challenging identification of Petitioner’s car.

G. ISSUES RAISED IN SUPPLEMENT TO

AMENDED PETITION

1.

Trial counsel failed to object to improper

statements by the State in closing arguments

regarding the testimony of Chrissy Harding and

Christy Collison as being unimpeached and that

facts provided by Charles Johnson to the police

were not on TV.

Counsel were ineffective for successfully

managing to limit testimony from Detective

Marl.

Counsel were ineffective for failing to object to

the absence of Petitioner from a chambers’

conference.

H. STATE VIOLATION OF DUE PROCESS

I.

l.

4.

Widespread violations of due process based on

assertions of discovery violations by failing to

provide exculpatory impeachment information.

The State failed to correct false testimony of

Charles Johnson and Detective Marl.

The State failed to correct Detective Marll’s

testimony that he knew and could verify facts he

knew to be true provided by Charles Johnson.

A number of facts in Charles Johnson’s

statements were not verified.

COURT ERROR AT SENTENCING

83a

J. ISSUES RAISED IN SECOND

SUPPLEMENT TO AMENDED PETITION

:

In light of Aprendi v. New Jersey, the Court

should find the Maryland death penalty

procedure to be unconstitutional.

All trial and appellate counsel were ineffective

for failing to raise the improper standard of proof

issue in the weighing process.

Trial counsel should have asked for a pretrial

hearing to challenge the admissibility of the

identification of a car in a one-photo show-up.

The Petitioner seeks as relief:

1.

a

An pw

A hearing on this matter.

His presence at all hearings by this Court

concerning these allegations.

A new trial.

Vacation of his current sentence.

Leave to freely amended this Petition; and

Such other relief as law and justice may require.

Four (4) days of hearings were held in open court,

with Petitioner present and represented by eminently

qualified counsel appointed by the Public Defender’s

Office. Petitioner freely amended his Petition.

STATEMENT OF FACTS’

At approximately 9:35 p.m., on Friday, October 21,

1994, Petitioner’s estranged girlfriend, Monica Wilson,

went to visit her mother, Wanda Johnson, at the home Ms.

Johnson shared with her husband, Elwood Johnson. Ms.

3 This Statement of Facts is from Conyers II.

84a

Wilson had just spoken with her mother at 9:00 p.m. that

evening, and her mother had agreed to babysit for Ms.

Wilson’s son. Arriving with Ms. Wilson at the Johnson

home was her cousin, Carla Clinton.

As the two women approached the Johnson home,

they saw someone looking outside through a second floor

bedroom window. The women knocked on the door, and,

as they waited for someone to open it, they saw through a

window a man walking down the stairs. The women saw

this man turn off the lights inside the house and duck

down as if to avoid being seen. The two women walked

to a back door and knocked on it. The women heard

sounds of a struggle, descnbed as a “commotion,”

“tussling” and “fighting,” coming from inside the house.

Then Ms. Johnson began to scream, and a window on the

second floor broke over the women’s heads.

The two women fled to the home of a relative who

lived nearby and called the police. On the way to the

relative’s house, Ms. Wilson noticed a car parked across

the street from her mother’s house. The car resembled one

that Petitioner sometimes borrowed from his former

girlfriend and mother of his child, Debra Meyers. Upon

returning to the Johnson home, Ms. Wilson was informed

by the police that her mother was dead.

There were no signs of forced entry into the Johnson

home. Wanda Johnson’s body was found in the master

bedroom. She had been shot three times in the head, once

in the back, and once in the arm. It was Ms. Johnson’s

custom to keep a small amount of money in her wallet.

Furthermore, when Ms. Wilson spoke to Ms. Johnson

earlier that evening, at approximately 9:00 p.m., Ms.

Johnson said that she had twenty dollars. Ms. Johnson’s

open wallet was found atop her dresser in the master

85a

bedroom; there was no money in the wallet. In the den, a

door to a closet had been forced open, revealing a safe.

The closet door had a hasp and a lock on it for security,

but the hasp and lock had been pried out of the door jamb

to gain access to the closet. Pulling the hasp out of the

door jamb had caused splinters to fall on the floor around

the closet. The safe inside the closet was closed. Mr.

Johnson opened the safe the day after his wife’s murder;

it contained fifteen dollars.

The next day, Ms. Clinton worked with a police artist

on a sketch of the man she had seen on the staircase inside

the Johnson home the evening before. Ms. Wilson was

asked to look at the sketch that had been made based on

Ms. Clinton’s description. Petitioner, who had come to the

police station to keep Ms. Wilson company, took the

sketch away before Ms. Wilson had a chance to see it,

telling the police that the sketch would upset her. When

Ms. Wilson finally had a chance to see the police sketch,

she did not immediately identify Lawrence Bradshaw as

the man depicted in the sketch. She made a photo

identification of another man, who was arrested and

incarcerated for a brief time as a result. Ms. Wilson later

agreed, however, that the police sketch looked like

Lawrence Bradshaw.

Shortly after 1:00 a.m. on October 23, 1994,

approximately 27 hours after the murder of Ms. Johnson,

Lawrence Bradshaw was shot in the 4300 block of

McDowell Lane. This street is located in the Lansdowne

area, near Debra Meyers’s home. Mr. Bradshaw had been

shot three times in the head, once in the back, once in the

arm, and once in the finger. Mr. Bradshaw was taken to

Shock Trauma, where he died the following day. Conyers

I, 345 Md. at 534-36, 693 A.2d at 785-86.

86a

As to Johnson, Petitioner was convicted of

premeditated murder, felony murder, first-degree burglary,

robbery with a deadly weapon, attempted robbery with a

deadly weapon, robbery, attempted robbery, and use of a

handgun in the commission of a crime of violence, and

sentenced to death. With respect to Bradshaw, Petitioner

was found guilty of premeditated murder and use of a

handgun in the commission of a crime of violence, and

sentenced to life without parole.

On appeal, the Court of Appeals found the evidence

was insufficient to sustain Petitioner’s conviction for the

burglary of Johnson’s home, but sustained the remaining

convictions. Regarding sentencing, the Court of Appeals

held that certain portions of Petitioner’s juvenile record

that were contained in the pre-sentence investigation (PSI)

report should not have been presented to the jury because

the material was considered “inflammatory and highly

prejudicial.” Conyers I, 345 Md. at 563, 693 A.2d at 799.

Consequently, Petitioner was granted a new sentencing

hearing.

At the second capital sentencing hearing, during the

State’s case, Charles Johnson (no relation to the victim,

Wanda Johnson, or her husband) testified that while he

was Petitioner’s cellmate at the Baltimore County

Detention Center in October-November of 1994, Petitioner

discussed the robbery at Johnson’s home. Charles

Johnson stated Petitioner told him that he and a person

named “Molek” went to Wanda Johnson’s house and

Petitioner went upstairs to rob a safe. Charles Johnson

testified:

“During the robbery, someone came to the door.

At that point, Ms. Johnson yelled out . . . her

daughter’s name or something of that nature. And

87a

Clarence panicked, because, I guess, they would

recognize him is what he said, and as a result, he

wound up shooting Ms. Johnson.”

Charles Johnson went on to state that Petitioner told

him that while both he and “Molek” were upstairs at first,

when they heard noise, “Molek” ran downstairs. After

Johnson was shot, “Molek” ran but Petitioner waited until

no one was outside before he left.

Wanda Johnson’s husband, Elwood Johnson, testified

that Petitioner was a frequent visitor to their home. He

also described the layout of the home, providing specific

details about a spare bedroom that contained a safe in a

closet. The safe, which contained personal papers and

petty cash, had a combination lock and the closet was

secured with a lock and hasp. Mr. Johnson stated that

earlier in the day, the safe and closet were in normal

condition but when he returned after the shooting the

closet had been forced open and the hasp was broken.

Furthermore, his wife’s wallet was lying open on a dresser

in their bedroom, which normally would have been inside

her purse and placed in a cabinet or dresser drawer.

Wilson, the victim’s daughter, basically recapped her

trial testimony, describing her past relationship with

Petitioner, her arrival at her mother’s home with her

cousin and son, hearing noise and her mother’s screams,

fleeing the scene and going for help down the street, and

finally being informed of her mother’s murder. Wilson

also testified to Petitioner’s efforts to prevent her from

seeing the composite sketch of Bradshaw that her cousin

helped develop and to keep her from reading or viewing

any news related to the murder. Wilson stated Petitioner

knew about the safe in her parents’ spare bedroom and that

he was aware her mother was not normally home on

88a

Friday evenings. Wilson knew that Petitioner owned a .38

caliber pistol, the type of weapon used to kill her mother.

Carla Clinton, Wilson’s cousin who was with her at

the crime scene, also repeated her trial testimony as to

going to the Johnson house, seeing someone downstairs,

hearing noise and her aunt’s screams from inside the

house, and finally assisting the police in the development

of a composite sketch of the person she saw in the house.

Also during the State’s case, a stipulation was

presented to the jury regarding the recovered cartridges

and the fact that they were all fired from a .38 caliber

handgun. In addition, Victoria Gibson, the victim’s sister,

testified as a victim impact witness, describing her sister’s

nature and personality and the warm relationship she had

with her entire family. Furthermore, Petitioner’s PSI

report, which was redacted to the satisfaction of both the

State and defense, was introduced into evidence.

During the defense’s case, Arthur Rogers testified that

he was incarcerated with Charles Johnson during October

1994 and at one point he discovered Johnson “rifling

through my charging documents.” Ventura McLee

testified that he was incarcerated in October 1994 with

Petitioner and Charles Johnson. During this period,

Charles Johnson showed McLee indictment papers, police

reports, and photographs relating to Petitioner’s case.

Timothy Wren testified that while he was incarcerated

with Charles Johnson during August and October 1994,

Charles Johnson told him that he had seen Petitioner’s

charge papers, that he had heard Petitioner talk about the

case in his sleep, and that Petitioner had confessed his

guilt. Eric Spencer, who resided in the cell next to Charles

Johnson and Petitioner in October 1994, testified that he

89a

never heard Petitioner discussing his case with Charles

Johnson.

Testifying as mitigation witnesses were Petitioner’s

parents, Clarence Conyers, Sr., and Eleanor Conyers, as

well as Reverend William Felder. Petitioner exercised his

night of allocution, stating that he “had no involvement in

this crime whatsoever.”

Additional facts will be provided as necessary as they

relate to the respective issues that follow.

DISCUSSION‘

1. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel,

Petitioner must show that:

a. counsel’s performance was deficient; and

b. the deficient performance prejudiced the

defense. Harris v. State, 303 Md. 685 (1985) explaining

Strickland v. Washington, 466 U.S. 668 (1984) (emphasis

in original);. Bowers v. State, 320 Md. 416, 424 (1990).

To satisfy the first requirement, deficient performance,

Petitioner must:

* This Memorandum will address the allegations of

Petitioner in the order set forth in the “Amended Petition

for Post Conviction Relief” filed September 14, 2000

(which repeats the allegations from the original Petition

and inserts additional allegations), the “Supplement to

Amended Petition for Post Conviction Relief’ filed

October 25, 2000, and the “Second Supplement to

Amended Petition for Post Conviction Relief’ filed

December 1, 2000.

90a

a. identify certain unreasonable acts or omissions by

counsel;

b. show that under prevailing professional norms,

counsel’s representation fell below an objective

standard of reasonableness; and

c. overcome the presumption that the challenged

action might be sound trial strategy.

Harris, 303 Md. at 699. To satisfy the second

requirement, prejudice, the Petitioner must show that

counsel’s errors were so severe that they deprived

Petitioner of a fair trial, a trial whose result is reliable. Jd.

Or, that “there is a reasonable probability that, but for

counsel’s errors, the result would have been different. Hill

v. Lockhart, 474 U.S. 52, 59 (1985).

In Bowers v. State, 320 Md. 416 (1990), the Court of

Appeals reaffirmed its adoption of the standards set forth

in Strickland and Harris.

The tests are set forth in Strickland v.

Washington, supra. We reviewed and applied

them most recently in State v. Colvin, 314 Md. 1,

548 A.2d 506 (1988), where Judge Rodowsky, for

the Court, noted that they had been “painstakingly

analyzed” by Judge Orth in Harris, supra, and

“distilled” by Chief Judge Murphy in Tichnell,

supra. Colvin, 314 Md. at 5-6, 558 A.2d at 508.

Since Strickland, the Supreme Court also has

revisited the area. See Burger v. Kemp, 483 U.S.

776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and

Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct.

2574, 91 L.Ed.2d 305 (1986). See also Perry v.

Leeke,488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d

624 (1989).

Bowers, 320 Md. at 423.

9la

In evaluating whether a Petitioner has met his burden

with regard to the deficiency prong, it is necessary for a

reviewing court to place itself in the position of counsel at

the time of counsel’s conduct. A reviewing court may not

judge the conduct of counsel with the benefit of hindsight

and may not consider, in assessing performance, the

results that the performance attained. Harris, 303 Md. at

698 n. 7.

Thus, a finding of ineffective assistance of counsel

may not be predicated upon a strategy decision, unless that

decision was totally unreasonable. Burger v. Kemp, 483

U.S. 776, 794-95 (1987). Further, the Court of Appeals

has stressed that a Petitioner “must overcome a

presumption that the alleged acts or omissions might be

the result of sound trial strategy.” Tichnell, 509 A.2d at

1179. The Court of Appeals has stressed that the

reviewing court “should recognize that counsel is strongly

presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable

professional judgment.” Jd. at 1187.

If a Petitioner is able to meet the deficiency prong, he

must then establish that counsel’s conduct prejudiced his

defense. To satisfy this prong of the Strickland analysis,

a Petitioner must demonstrate “that counsel’s errors were

SO serious as to deprive the Defendant of a fair trial, a trial

whose result is not reliable.” Strickland, 446 U.S. at 687.

A reviewing court must be convinced that, but for

counsel’s acts or omissions, there is a “substantial

possibility” that the result of the trial would have been

different. Bowers v. State, 320 Md. 416, 578 A.2d 734

(1990). A Petitioner must do more than “show that the

errors had some conceivable effect on the outcome of the

proceeding, or that the errors impaired the presentation of

92a

the defense.” Harris, 303 Md. at 799. (Emphasis in

original.)

At the trial on the merits and the first sentencing,

Petitioner was represented by Roland Walker and Lisa

Sansone. Mr. Walker has been in practice for forty-six

(46) years. He estimates that ninety-five percent (95%) of

his practice is criminal defense. He has represented

hundreds of clients charged with murder as the lead

attorney. A full review of the transcript of the tnal

demonstrates Mr. Walker’s unquestionable ability as an

effective advocate in this case.

Mr. Walker brought on Ms. Sansone because of his

knowledge of her abilities and “brilliance” when it comes

to research and issues of law. Ms. Sansone’s role in the

case was well defined. A full review of the transcript

shows her abilities on issues or law.

Trial counsel clearly chose a well prepared attack in

defense of the Petitioner. Their efforts were clear in

attempting to limit or suppress evidence. In the presence

of the jury, Mr. Walker and Ms. Sansone were consistent

in their defense strategy to stress the State’s clear burden

of proof and to suggest that Lawrence Bradshaw was the

sole person responsible for the murder of Mrs. Johnson.

On appeal, the Petitioner was represented primarily by

Michael Braudes with the Appellate Division of the Public

Defender’s Office for over twenty (20) years. He has

handled eight hundred (800) to nine hundred (900)

appeals, including ten (10) to fifteen (15) death penalty

cases. He trains the other attorneys in capital appellate

work and published a manual on the death penalty.

93a

A. Ineffective Assistance of Counsel at

Guilt/Innocence Phase

Al. Petitioner alleges that trial counsel was ineffective

for failing to show “with available evidence” that he was

intentionally placed together with Charles Johnson to

gather evidence against the Petitioner. The evidence

presented at the Post Conviction Hearings” failed to

support this allegation.

The testimony at the Hearing established that no one

ever requested either the Petitioner or Charles Johnson to

be placed near each other.

The record of the original trial reflects efforts by tnal

counsel to uncover such an act if it had occurred. In

addition to cross-examination of Charles Johnson, counsel

also subpoenaed and researched files and logs of the

Detention Center regarding Charles Johnson.

Counsel cannot be considered ineffective for failing

to unearth facts which are non-existent. Petitioner offered

no evidence to support this factual allegation.

A2. Petitioner alleges that trial and appellate counsel all

failed to raise a “federal constitutional claim” at trial and

on appeal regarding the issues of severance. Petitioner has

not cited a single case based on federal constitutional law

which differs in any way from Maryland law on the issue

of severance.

The law cited by counsel at the original Motion to

Sever and on appeal is well established in Maryland. A

review of the case law shows no conflict with any portion

of the U.S. Constitution or any case law interpreting it.

* The term “Hearing” will be used herein to refer to

this Post Conviction proceeding.

94a

Petitioner has shown no prejudice for failing to assert such

a claim.

A3. Petitioner alleges that counsel “failed to develop

evidence before trial” that Lawrence Bradshaw possessed

a firearm at the time of his death. There has been no

evidence to support such an assertion. At the hearing,

Officer McTamany testified that he was at or near the

body of Lawrence Bradshaw from the scene to the

hospital, and eventually to the Medical Examiner’s Office.

Neither he nor anyone in his presence recovered a gun. He

was given the belongings of Mr. Bradshaw at the hospital.

He was not given a gun. Searches of the scene, including

a sweep by a gun dog, were unsuccessful in the recovery

of a gun. This allegation is without merit.

A4. Petitioner alleges that trial counsel could have

learned that Charles Johnson “provided information” to

the State regarding a Martin Quincy Johnson and that, in

September, 1995, was produced to testify in the Martin

Quincy Johnson prosecution.

The only evidence on that issue is a clerk’s

worksheet containing a handwritten notation that Charles

Johnson was a witness in State v. Martin Johnson. All of

the other evidence demonstrates that this notation is a

“clerical error.” The affidavit from Catherine Curran

O’Malley, A.S.A, shows that Charles Johnson has no

involvement in State v. Martin Quincy Johnson. He did

not provide information nor did he testify in the case. In

fact, Martin Quincy Johnson plead guilty. The docket

entries for Case Number 95CRI190 show that no writ was

issued for Charles Johnson to be produced as a witness.

A co-defendant of Charles Johnson happened to be

on the same docket, before the same judge, on the same

day as Martin Quincy Johnson. Charles Johnson had been

95a

produced to Judge Bollinger’s courtroom by a Writ of

Habeas Corpus requested by the Defendant in State v.

Brenda Faye Williams. The affidavit from Robin Coffin,

A.S.A., establishes that Ms. Williams was a co-defendant

of Charles Johnson. A review of the docket entries

demonstrates the writ for Mr. Johnson’s production.

Petitioner’s assertion is unsupported by evidence.

Counsel cannot be ineffective for failing to discover

matters which are non-existent.

AS. Petitioner alleges that trial counsel failed to learn

that Katherine Hadel had been shown a photo spread and

failed to identify the Petitioner. Katherine Hadel was

interviewed near the scene of the Bradshaw murder. Ms.

Hadel and Christina Church had apparently conversed

with Mr. Bradshaw and his companion shortly before Mr.

Bradshaw’s death.

The allegation that Ms. Hadel was shown a photo

array is contradicted by every piece of evidence other than

the testimony of ‘Katherine Hadel. Ms. Hadel, at the

Hearing, identified Detective Rubie, Officer McTamany

and Officer Dennis as the three (3) people who came to

her with a photo array. Detective Rubie was a crime lab

technician at the scene whose only involvement was to

process the crime scene. He testified he had nothing to do

with any follow-up investigation. Officer Dennis’ role

was to assist with Ms. Hadel and Ms. Church at the

precinct on the night of the shooting. He testified he had

no other involvement and did not have any re-contact with

Ms. Hadel. Officer McTamany assisted the Homicide

Detectives in the investigation but testified he had no

contact with Ms. Hadel and did not show a photo array to

her.

96a

Petitioner alleges that “(p)hoto spreads were shown

to a number of witnesses involved in the Bradshaw

investigation.” This is unsupported by evidence. One (1)

photo spread was shown to one (1) witness (Stephen Tate).

Petitioner asserts that it would be illogical that the police

did not show a photo array to Ms. Hadel. According to the

evidence, the police had developed Clarence Conyers as a

strong suspect from much more reliable means within days

of the murder. This included Stephen Tate, Debra Meyers

and Steven Johnson.

Ms. Hadel, at the Hearing, identified one (1) of three

(3) possible photo arrays as the one (1) shown to her. The

photo array she chose was put together by Detectives

Marll and Tincher in the investigation of the Wanda

Johnson murder. That array was only shown to the

daughter and niece of Mrs. Johnson. The array contained

a photograph (among others) of Michael Valentine, the

original suspect in the Wanda Johnson murder. Conyers

was not in that array. The array was never used in the

Bradshaw investigation.

The evidence is clear that no such event occurred

with Ms. Hadel. In addition, the array Ms. Hadel says she

saw did not include Clarence Conyers. Therefore, she

never “failed to identify” Clarence Conyers. Because it

never happened, counsel cannot be considered ineffective

for failing to discover this fact.

In addition, Petitioner has failed fo show that the

failure of trial counsel may very well have affected the

result.

A6. Petitioner withdrew this allegation in the

Supplement to Amended Petition for Post Conviction

Relief.

97a

A7. Petitioner withdrew this allegation in the

Supplement to Amended Petition for Post Conviction

Relief.

A8. Petitioner alleges that trial counsel was ineffective

for failing to object to Monica Wilson’s testimony

concerning her mother’s statement that she had $20.00

shortly before her death.

At page 311 of the Trial Transcript from January 22,

1996, Ms. Wilson testified:

“TI asked her did she want me to bring her

something to eat because I told her I didn’t

have any money. I asked her, did she have

some? She told me she had $20.00. She told

me to get something. I told her I would have

to borrow the money from Carla. Once I said

that, she said that’s okay, she said she would

just wait for me to bring my son out to there

then she will cook him something to eat.”

Petitioner asserts that the “inadmissibility of the

testimony about the $20.00 is clear.” The statement is or

could be interpreted to be a present sense impression.

Mrs. Johnson either had an ongoing awareness of her

possession of $20.00 and, therefore, mentally perceived a

current, ongoing event, or she looked when her daughter

asked and physically perceived her possession of $20.00.

Under either scenario, the statement reflects a perception

of a current event. Booth v. State, 306 Md. 508 A.2d 976

(1986) makes it clear that Maryland not only recognized

a present sense impression exception to the hearsay rule

but also makes it clear that it exists because of the

spontaneity of the statement and the lack of an opportunity

for reflection or fabrication.

98a

In this case, the question from Ms. Wilson prompted

Mrs. Johnson’s immediate perception, as reflected in her

statement, that she possessed $20.00. There is no reason

to question the credibility of such a statement in this

setting. She responded without a reason or opportunity to

fabricate.

This issue is not one which rises to the level of

ineffective assistance of counsel on either prong.

Even if the statement were inadmissible, the failure

to object appears to have been a tactical decision. The trial —

transcript, the testimony of Roland Walker at the hearing

and even the concession of Petitioner in the Memorandum

of Law all make abundantly clear that trial counsel’s

defense strategy was to assert that Petitioner was not

present at the time of Wanda johnson’s murder. The

defense asserted that Bradshaw was solely responsible for

Mrs. Johnson’s killing. It was practically conceded that

Mrs. Johnson was murdered in the course of a robbery. It

would have been illogical and counter productive for

counsel to suggest otherwise.

Therefore, there was no reason for trial counsel to be

concerned with the statement of Mrs. Johnson that she

possessed $20.00 shortly before her murder. The actions

of trial counsel did not fall below the standard expected of

competent counsel.

In addition, the Petitioner was not prejudiced by

counsel’s election not to challenge the admissibility of the

statement. The Petitioner was convicted of first degree

murder as premeditated, willful and deliberate and under

the Felony Murder Doctrine. The statement of Mrs.

Johnson did not affect either theory of first degree murder.

It is clear that a robbery was in progress (whether

completed or not) when Mrs. Johnson was killed. The

99a

actions are sufficient to constitute felony murder. (Article

27, Section 410). In fact, the jury convicted Petitioner of

attempted robbery and attempted robbery with a dangerous

and deadly weapon, as well as robbery and robbery with

a dangerous and deadly weapon. Clearly the statement of

Mrs. Johnson was unnecessary for the attempt convictions.

At the second sentencing proceeding two (2) years

later before a different jury the aggravating circumstance

was that a murder occurred in the perpetration of a robbery

or attempted robbery. The evidence presented at

sentencing established one or both options. The testimony

at the trial on the merits had no impact on the trial judge’s

rulings at the second sentencing.

The evidence of the $20.00 statement was not

presented to the sentencing jury.

Furthermore, the $20.00 testimony was not the only

evidence that a robbery occurred. The Court of Appeals

noted other relevant evidence in addressing the sufficiency

of the evidence argument. This included the evidence that

Mrs. Johnson regularly kept her wallet in her purse and

stored out of sight. Mrs. Johnson had a habit of carrying

money. However, her wallet was found, opened and

empty of cash, on top of her dresser.

Petitioner also asserts that Mr. Braudes was

ineffective for failing to raise the $20.00 testimony on

appeal as plain error. Mr. Braudes logically and

reasonably explained at the hearing that he didn’t feel the

issue was sufficient for the Court of Appeals to consider it

plain error. He distinguished the issue from others which

he felt to be more egregious and therefore stood a better

chance of success as plain error. Mr. Braudes’ actions

were well reasoned and well within the standard of

competence. In addition, there is no showing of

100a

prejudicial effect as explained above with regard to tral

counsel.

A9. Petitioner withdrew this allegation in_ the

Supplement to Amended Petition for Post Conviction

Relief.

A10. Petitioner alleges that trial counsel “failed to object

when the trial court curtailed defense questions to Monica

Wilson regarding her drug use,” suggesting that Monica

Wilson had a motive to cooperate with law enforcement to

prevent the FBI (her employer) from finding out about her

drug use. This is belied by the fact that Detectives Marll

and Tincher were informed about her drug use and that the

information was apparently passed to the FBI. Petitioner

has failed to show that Ms. Wilson would acknowledge -

such a motive.

More compelling, however, is the fact that trial

counsel was able to establish the existence of Ms.

Wilson’s drug use (see Transcript of Proceedings, January

23, 1996, page 40) and that she worked for the FBI (page

41). Absent an acknowledgment of such a motive by Ms.

Wilson, counsel already laid the foundation to argue such

a motive.

Further, the Petitioner alleges counsel “failed to

object.” In fact, the cross-examination by Mr. Walker was

objected to by the State. Counsel proffered the proposed

testimony and the trial judge sustained the objection.

Counsel did nothing which was in error.

Even if a deficient act were present, there was no

prejudicial effect.

All. Petitioner withdrew this allegation in_ the

Supplement to Amended Petition for Post Conviction

Relief.

10la

Al12. Petitioner alleges that trial counsel failed tb object to

testimony by Monica Wilson regarding drug use and

violence between herself and the Petitioner.

The Court of Appeals directly addressed this issue in

the appeal of the original conviction. In Conyers 1, at

562-563, the Court considered the precise issue and,

despite the failure to preserve the issue, the Court stated

“we would find no error if the issue were presented.” Trial

counsel could not be considered to be deficient if the

admission was not error.

The Court of Appeals also stated “(w)e think it

highly unlikely that Ms. Wilson’s statements prejudiced

the jury.” The actions of counsel would not have affected

the result.

A13. Petitioner alleges that trial and appellate counsel did

not raise a federal constitutional claim in their effort to

offer hearsay statements about the Petitioner not

possessing firearms at the time of the murder.

Trial counsel attempted to offer the evidence,

appellate counsel raised the issue on appeal and the Court

of Appeals rejected the efforts. Furthermore, Petitioner

failed to identify a distinction between Maryland and

federal law on this issue.

Al4. Petitioner alleges that counsel “failed to object:

when the trial court barred him from eliciting testimony

about the “occupation” of Lawrence Bradshaw. -Since

Petitioner’s trial counsel offered the evidence, he was not

the person to “object”.

In addition, counsel actually did ask Tara Foote what

Lawrence Bradshaw “did for an income.” (See Transcript,

January 23, 1996 at Page 165). This allegation is without

merit.

102a

A15. Petitioner alleges that trial counsel failed to state in

“federal constitutional terms” his objection to testimony

by Clarence Johnson about what Petitioner claims was an

intention to rob people by Petitioner and Bradshaw. He

also asserts that counsel failed to request a limiting

instruction.

The testimony was that Petitioner and Bradshaw

“were supposed to meet up to hustle.” There was no

statement of intention to rob. The Court of Appeals, in

addressing the issue, stated “(t) he word “hustle” would

not necessarily be understood by the jurors to mean a

robbery.” Conyers |, supra at 561. The Court also found

that the reference was brief and not repeated.

Petitioner has never asserted any federal

constitutional claim distinguishable from Maryland law.

In addition, a limiting instruction would only highlight the

issue for the jury or inform the jury that “hustle” is street

lingo for robbing people.

Trial counsel objected and moved for a mistrial. He

acted appropriately and competently. In addition, if there

were error, the error would not have affected the result.

A16. Petitioner alleges Mr. Braudes failed to raise a

federal constitutional claim on the issue raised by tral

counsel in A15. Petitioner asserts no violation of the U. S.

Constitution specific to this issue. There is no law

applicable for Mr. Braudes to cite. The Court of Appeals

addressed and rejected the issue. .

Al17. Petitioner alleges trial counsel failed to interrogate

Charles Johnson at trial regarding instances of dishonesty

and false statement. Petitioner does not set forth any

specific areas of inquiry which Mr. Walker should have

utilized at trial on the merits. In the Memorandum of Law,

103a

there are several areas noted which were presented at the

Hearing.

a) “Charles Johnson Lied to His Employer,

Murry’s Steaks”

Counsel could not have either discovered or inquired

about this matter. All the facts regarding Murry’s Steaks

and Charles Johnson’s employment occurred after the trial

on the merits. Charles Johnson’s application is dated April

1, 1996, four months after the trial, which occurred in

January of 1996.

b) “Charles Johnson’s Prior Lies to the Police”

Petitioner asserts in his Memorandum of Law that

Mr. Walker could have cross-examined Charles Johnson

about his statements to the police when he was

investigated in the Wendy’s’ robbery.

Petitioner has failed to show that Charles Johnson

would have acknowledged that he lied to the police. In

light of the comments Charles Johnson made at trial

regarding the Wendy’s robbery, it is more likely that he

would have indicated his involvement in the Wendy’s

robbery was minimal, if at all. (See Transcript, January

24, 1996, pages 105-136, note page 135.)

Maryland Rule 5-608(b) permits inquiry in certain

situations for truthful acts not resulting in conviction. The

Rule also makes it clear that the “conduct may not be

proved by extrinsic evidence.” Had Charles Johnson

minimized his involvement in the Wendy’s robbery,

counsel would be prohibited from offering any evidence

beyond the cross-examination to rebut his answers. The

jury would then be left with the impression that Charles

Johnson received little, if any, benefit from his plea

agreement.

104a

Counsel’s election not to inquire about Charles

Johnson’s statement to the police about the Wendy’s

robbery was sound trial strategy and did not fall below the

level of competence expected of counsel.

Petitioner has not shown that failure to inquire may

well have affected the result. Inquiry in the area would

have been minimal when compared with the more

significant areas of cross-examination, including the plea

and cooperation agreement.

The State clearly demonstrated to the jury that

Charles Johnson knew a significant number of unique

details about the crime which he could have only learned

from the killer. (See Transcript or Proceedings, January

24, 1996, starting at page 160 - Testimony of Detectives

Marll and Bollinger.)

c) “Charles Johnson Failed to File Tax

Returns”

Petitioner alleges that Charles Johnson lied on his

application to Murry’s Steaks and yet cites as truth the

employment information Charles Johnson put on his

application to assert that he failed to file tax returns.

There is no evidence that Charles Johnson failed to

file tax returns when required to do so. The testimony

showed that there were no W-2’s filed by an employer in

any year in which Charles Johnson did not file a return.

No check was made under the name of Charles Johnson

(without a middle name).

The only suggestion that Charles Johnson failed to

file a return is his self-supplied employment history in the

Murry’s Steaks application which did not exist at trial in

January, 1996. Counsel was not ineffective or

incompetent for failing to see into the future.

105a

d) “Charles Johnson Trolled for Information in

the Detention Center to Provide to Police to

Reduce His Sentence”

The allegations of Petitioner with regard to Martin

Quincy Johnson are without foundation. This issue is

addressed in A4. The evidence shows that Charles

Johnson had no involvement in the Martin Quincy Johnson

case.

The testimony showed that Martin Quincy Johnson

sought the advice of an older inmate who reviewed the

evidence and advised him to plead guilty (“to cop”).

Charles Johnson could get no benefit for himself if the

inmate pleads guilty. He had no involvement in the

Martin Quincy Johnson case. (See Affidavits of Catherine

Curran O’Malley, ASA, and Robin Coffin, ASA.)

e) “Charles Johnson Defied Lawful Police

Instructions”

Petitioner alleges that counsel should have

cross-examined Charles Johnson about his desire not to be

arrested in a prior robbery. Charles Johnson was not

convicted of resisting arrest. There was no ability to

cross-examine on a non-existent prior conviction. Mr.

Walker did cross-examine Charles Johnson on the robbery

conviction arising out of that incident.

Rule 5-608(b) permits inquiry in an area “probative

of a character trait of untruthfulness.” Petitioner cites no

Maryland authority that seeking to avoid arrest is

probative of untruthfulness.

Petitioner has failed to demonstrate how Charles

Johnson would have responded to such an inquiry if

permitted. Counsel would not have been permitted to

respond with extrinsic evidence.

106a

Further, Petitioner has failed to show that the inquiry

may well have affected the result.

A full reading of the cross-examination of Charles

Johnson by Mr. Walker demonstrates his clear and

effective abilities as an advocate for the Petitioner.

A18. Petitioner withdrew this allegation in _ the

Supplement to Amended Petition for Post Conviction

Relief.

A19. Petitioner alleges Mr. Braudes failed to “continue to

press timely objections raised at trial regarding

photographs. The admission of crime scene and/or

autopsy photographs is a matter within the sound

discretion of the trial judge. Johnson v. State, 303 Md.

487, 495 A.2d 1. (1985). Judge Simpson applied the

appropriate standard in ruling on the admission of the

photographs. There is no showing that counsel would

have been successful on appeal. Mr. Braudes appropriately

chose the issues he thought most capable of success on

appeal. This was not one.

A20. Petitioner withdrew this allegation in_ the

Supplement to Amended Petition for Post Conviction

Relief.

A21. Petitioner alleges that trial counsel was ineffective

for failing to request an instruction limiting consideration

of each murder to the other based upon the relevance

stated in Judge Simpson’s severance/joinder ruling. The

implication is that Petitioner feels the jury should have

been told by the trial judge that his participation in the

Wanda Johnson murder is relevant and should be

considered by the jury in finding a motive for the murder

of Lawrence Bradshaw. In addition, the jury would be

instructed that his participation in the Bradshaw murder

107a

was relevant in the Johnson murder to show Petitioner’s

consciousnes

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