Brian Han Keyes, Pro Se Litigant, for Appellant.
Brian S. Kleinbord (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.
Panel: KRAUSER, C.J., BERGER, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.
JAMES A. KENNEY, III, J. (Retired, Specially Assigned).
[215 Md.App. 661] This appeal arises fro the denial, without a hearing, of a pro se petition for writ of actual innocence filed by appellant, Brian Han Keyes, on December 27, 2011 in the Circuit Court [215 Md.App. 662] for Prince George's County. In his petition, appellant challenges his convictions in that court related to an attempted armed robbery. For the reasons that follow, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 14, 1995, a jury convicted appellant of first-degree murder, attempted robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. He was sentenced to life imprisonment without possibility of parole, in addition to consecutive sentences for the other convictions. A panel of this Court affirmed those judgments in an unreported opinion. Keyes v. State, No. 414, Sept. Term 1995 (filed Nov. 30, 1995).
In his direct appeal, he raised two allegations of error, one of which is pertinent here; namely, that the trial court erred in unduly inhibiting his cross-examination of a key State's witness, Lucio Ramirez. We shall briefly set forth facts included in the Court's earlier opinion to facilitate our analysis of the issue now before us.
" The killing was the culmination of two-to-three hours of ethnic conflict between the victim group, consisting of the murder victim and three other Hispanic-Americans, and a group of three or four African-American males," one of whom was appellant. Keyes v. State, slip op. at 1. Lucio Ramirez and three others, including Abilio Ortez Chavez (the murder [215 Md.App. 663] victim), Melvin Chavez, and José Moya-Ramirez, had been sitting in front of an apartment building, drinking beer, when they were accosted by the African-American group (including appellant). Id. The Hispanic-American group retreated inside to the
safety of the apartment building, locking the door behind them. " The African-American males knocked on the door and tried to get in but eventually left." Id.
" Half an hour later," the Hispanic-American group ventured outside, only to encounter the African-American group, which by then had returned. Id. at 2. Once again, the Hispanic-Americans retreated inside and the African-Americans tried to force their way inside but were unsuccessful. Id. When the Hispanic-Americans ventured outside a third time, they encountered appellant. Id. The Hispanic-Americans attempted to retreat yet again, but one of them, Abilio Chavez, did not make it. " Just as he reached the front steps" of the apartment building, appellant fired " four or five shots, fatally wounding" him. Id.
" Each of the three surviving Hispanic-Americans made both pretrial identifications from photographs and in-trial identifications of the appellant as a member of the group that had approached them on three occasions and specifically as the shooter." Id. In a statement appellant made to a police detective, he " admitted that he and a friend named Sean had gone to" the scene of the killing on the night in question " to ‘ rob Hispanics.’ " Id. He claimed, however, that Sean was the shooter and that Sean had " acknowledged to him that he had shot ‘ one of the Spanish boys.’ " Id.
At trial, appellant attempted to impeach Lucio Ramirez, based on the commission of a prior bad act, distribution of a controlled dangerous substance (" CDS" ). Keyes v. State, slip op. at 3.Maryland Rule 5-608(b) permits, in the trial court's discretion, " any witness to be examined regarding the witness's own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness." The Rule further provides that, upon objection, a " reasonable factual basis" that the conduct occurred must be [215 Md.App. 664] established and that " [t]he conduct may not be proved by extrinsic evidence."
When the State objected, pointing out that there had been no conviction for CDS distribution, appellant asserted that a conviction was not required under Rule 5-608(b) and that the charging document, under which Ramirez had been charged, indicated CDS distribution, which was an impeachable offense. See State v. Giddens, 335 Md. 205, 217, 642 A.2d 870 (1994) (holding that " a prior conviction for distribution of cocaine is relevant to credibility and as such is admissible for impeachment purposes" ). " The State countered that a ‘ mere charging document’ does not establish a conviction, but that the distribution charge had been, prior to trial, ‘ amended down to simple possession.’ " Keyes v. State, slip op. at 3.
This Court upheld the trial court's ruling sustaining the State's objection and prohibited appellant from impeaching Ramirez with the charged CDS distribution activities. The Court reasoned that the trial court was, understandably, concerned that, by permitting the proposed line of cross-examination, " the situation was rife with the danger that extrinsic evidence," namely, the charging document, " would have come in ... through the ‘ back door’ of the questioning itself." Id. at 4. Moreover, we observed that the trial court had " digested the charging document in full detail and concluded that even if the facts contained therein were proved, the result would have been a conviction for simple possession," which, unlike CDS distribution, is not an impeachable offense. Id. at 5 (citing Morales v. State, 325 Md. 330, 339, 600 A.2d 851 (1992) (observing that conviction for possession of PCP is " not relevant to credibility" and " would not be
admissible for purposes of impeachment" )). The Court also noted that the trial judge, in a sound exercise of discretion, weighed the probative value of that evidence against the unfair prejudice in admitting it and found that the latter " far outweigh[ed]" the former. Id.
Turning to the instant case, appellant asserts that, in September 2011, " while attending a religious service" at North Branch Correctional Institution, he engaged in a conversation [215 Md.App. 665] with Jose Ulloa, another inmate at that facility, and learned that Ulloa possessed two reports, purportedly written by a Montgomery County Police Officer, Karen McNally, that mentioned appellant by name and had been included in the discovery materials that had been provided to Ulloa, prior to his trial. Ulloa permitted appellant to photocopy those reports, and they are now the basis of his petition for writ of actual innocence.
According to appellant, Officer McNally's reports constitute " newly discovered evidence" under Maryland Code, Criminal Procedure Article, § 8-301 and " create[ ] a substantial or significant possibility that the result [of his trial] may have been different." He characterizes those reports as Brady  material, " which the prosecutor suppressed or withheld that would have been favorable to" him, because they were " somewhat exculpatory" and " provided the basis for impeaching two of the three State's key witnesses who testified" in his 1995 trial.
On January 18, 2012, the circuit court issued an order summarily denying appellant's petition for writ of actual innocence without a ...