# Appendix — Maryland v. Conyers

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1144%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 942

## Text

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
rT oe } ae: “ O EEO ES ia “ _.
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 strug

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1144%3A2. Public record. Not legal advice.