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Hawes v. State

Court of Special Appeals of Maryland

February 25, 2014

Tracey HAWES
STATE of Maryland.

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[Copyrighted Material Omitted]

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Lisa J. Sansone, Baltimore, MD, for Appellant.

Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: DEBORAH S. EYLER, MEREDITH, and JAMES A. KENNEY, III, (Retired, Specially Assigned).

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[216 Md.App. 109] In 1994, in the Circuit Court for Baltimore City, Tracey Hawes, the appellant, was convicted of first-degree murder of Ricky Lee Cunningham, use of a handgun in the commission of a crime of violence, and wearing, carrying, or transporting a handgun. He was sentenced to life in prison and a consecutive ten years. Thereafter, he unsuccessfully pursued a direct appeal, a postconviction proceeding, two petitions to reopen the postconviction proceeding, a petition for writ of habeas corpus, and a motion for new trial. Undaunted, in 2010, he filed a petition for writ of actual innocence, under Md.Code (2001, 2008 Repl.Vol., 2013 Supp.) section 8-301 of the Criminal Procedure Article (" Cr.P." ).[1], [2] He requested a hearing. The court dismissed the petition without holding a hearing.

[216 Md.App. 110] On appeal from that ruling, Hawes asks: " Whether the Circuit Court erred in summarily denying [his] Petition for Writ of Actual Innocence without a hearing, where the Petition satisfied [Cr. P. section 8-301]?" Concluding that the circuit court did not err, we shall affirm its order.


1. The Murder Trial. [3]

On July 21, 1993, at about 3:00 p.m., Ricky Lee Cunningham was walking along Fremont Street, in Baltimore City, when he was shot twice in the back, sustaining fatal wounds. Wendy Washington was walking next to Cunningham when he was shot. The two had just used heroin and cocaine together. A police officer who responded to the scene of the shooting saw Washington there. He thought she either was in shock or was intoxicated.

Washington was transported to police headquarters and placed in an interview room. There she was observed removing a hypodermic needle from her purse and trying to hide it. A search of her purse revealed drug paraphernalia. Washington was questioned by Detectives David Brown and Rick James, of the Baltimore City Police Department. She told them she could not identify the shooter. She described him as a black male, " taller," of medium build, and wearing maroon shorts, a white shirt, and tennis shoes with no socks. After the interview, Washington was arrested on various drug charges.

About a month later, Washington returned to police headquarters and was shown a photographic array that included Hawes's picture. She selected his photograph and stated that he was the person who had shot Cunningham. Before trial, [216 Md.App. 111] Hawes, through counsel, made discovery requests, including a request for all police reports concerning the Ricky Lee Cunningham murder. The State's discovery disclosures did not include any police reports.

At trial, Washington identified Hawes as the shooter. She explained that she did not identify him in her initial interview by the detectives (on the day of the shooting) because she was " scared." She acknowledged having used heroin and cocaine before the shooting, but said she had used less that day than she usually did. She testified that, when she heard gunshots,

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she looked behind her, over her right shoulder, but did not see anyone. She looked to the left, where Cunningham had fallen to the ground and was clutching his back. Washington then saw a man running down the street holding a silver gun. Washington denied that she was mistaken in her in-court identification of Hawes as that man.

Detective Brown testified that he worked on the Cunningham homicide with Detective James, and interviewed Washington at the station house about two hours after the shooting. According to Detective Brown, during the interview, " [Washington] gave us information that I found, in my experience, not to be 100 percent truthful. She was quite frightened and quite shook up by the incident." Detective Brown stated on direct examination that Cunningham had ingested heroin and cocaine two to three hours before his death. On cross-examination, Detective Brown testified that during the July 21, 1993 interview, Washington had " appeared to be under the influence of alcohol or drugs." Detective Brown was not asked whether he or Detectives James had prepared a report of their July 21, 1993 interview of Washington.

Shenika Spencer, Cunningham's niece, testified that on August 1, 1993, ten days after the shooting, she saw Hawes point a gun at Cunningham's brother, Gwynn Cunningham (" Gwynn" ), and threaten him. She heard Hawes warn Gwynn,

You [Gwynn] and your brother [the victim] look just alike. We made a mistake. Now I know it's you and we going to— I'm going to put you where your brother at.

[216 Md.App. 112] Spencer further testified that Hawes said, " I'm going to get him [referring to Gwynn], because he had no business taking my stuff." According to Spencer, the police were called, but before they arrived Hawes gave his gun to a woman in the vicinity.

Latina Davis testified that she was present when Hawes confronted Gwynn. (She was 15 years old at the time). Davis corroborated Spencer's testimony about that encounter. She testified that Hawes told Gwynn, " I killed your brother. That was a mistake. But I got the right one now. You and your brother look just alike and I'm going to put you where your brother at."

Veronica Cunningham, sister of the victim and of Gwynn, testified that on August 2, 1993, she scolded Hawes for threatening Gwynn with a gun. Hawes responded by saying that Gwynn had stolen his gun and he still was going to " get" Gwynn. He also said that he did not kill her brother (Cunningham).

Hawes testified on his own behalf. He stated that when the shooting took place he was at 1302 Pennsylvania Avenue with his friend, Lance Gordon. (The defense did not call Lance Gordon as a witness.) They were watching television. Hawes claimed he did not know Cunningham and did not kill him. He testified that, in late July of 1993, Gwynn stole $20 from him. On August 1, 1993, he and Gwynn saw each other, and he wanted to fight Gwynn. Gwynn ran into a building and called the police. The police came and searched him (Hawes). They did not find a gun. Hawes testified that he told the police that Gwynn had robbed him.

Hawes further testified that he told Veronica Cunningham he did not kill her brother but did not tell her who had, in fact, killed her brother. He identified a person who goes by the name " Black Jessie" as the man who shot and killed Cunningham. He also testified that he had never before seen Spencer or Davis.

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Carl Willburn, an acquaintance of Hawes who first met him two or three months before the shooting, testified that he [216 Md.App. 113] witnessed Cunningham being gunned down. He saw the shooter run down the street, fire three shots at Cunningham, and then run away. He described the shooter as a black man, 5'6" tall, with dark skin, and wearing shorts, a T-shirt, and shoes without socks. According to Willburn, when the police arrived at the scene of the shooting, he announced that he had seen what had happened, but no one paid any attention to him. Later, after following the story in " the paper," he asked a police officer if the shooter had been found. The officer replied that the police " had the person" and that " it was [Hawes]." Willburn told the officer that Hawes was not the shooter. Once again, no one paid attention to what he had to say.

The State called Gwynn on rebuttal. He testified that he knew Hawes and that he had never robbed Hawes. He further testified that on August 1, 1993, Hawes confronted him with a gun and demanded to know where his guns and drugs were, saying, " Yeah, you think I killed your brother.... I'm going to kill your punk bitch ass now.... I got the right one now. Where my shit at?"

2. Direct Appeal.

After conviction and sentencing, Hawes noted a direct appeal. In his brief in this Court he argued: 1) the trial court improperly instructed the jury on the premeditation element of first-degree murder; and 2) the evidence was legally insufficient to support his convictions. This Court issued an unreported per curiam opinion. Hawes v. State, No. 675, September Term, 1994. We held on the first issue that no objection was lodged to the instruction and that plain error review was not warranted because the instruction as given was not erroneous in any event. On the second issue, we held that the argument was not raised in a motion for judgment, and therefore was not preserved for review, but even if it had been, the issue lacked merit because the evidence was legally sufficient to support the convictions. Our opinion was filed on January 27, 1995, and the mandate was issued on February 27, 1995.

[216 Md.App. 114] 3. Postconviction Proceeding.

On March 28, 1997, Hawes filed a petition for postconviction relief, which he amended on August 20, 1997. He alleged a number of constitutional wrongs. First, he alleged that the State had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because Detectives Brown and James in fact had prepared, on August 3, 1993, a report summarizing their July 21, 1993 interview of Washington, but the State failed to produce the report before trial [4] Second, Hawes alleged the trial court gave an erroneous reasonable doubt instruction.[5] Third, Hawes alleged the State knowingly introduced perjured testimony.[6] And, finally, Hawes alleged that his trial counsel had failed to object to the

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erroneous reasonable doubt instruction, prepare for trial, and investigate the August 3, 1993 police report.[7]

In his amended petition for postconviction relief, Hawes alleged that on January 7, 1995, he made a request for the file of the Ricky Lee Cunningham homicide case, pursuant to the Maryland Public Information Act, and that the documents produced in response to the PIA request included the August 3, 1993 report by Detectives Brown and James about their July 21, 1993 interview of Washington.

On February 13, 1998, the court held a hearing on the petition for postconviction relief. Hawes was represented by counsel. He testified, as did his trial counsel, Alvin Alston, Esquire. Hawes moved into evidence a written statement [216 Md.App. 115] given by Washington to the police on July 21, 1993 (the day Cunningham was murdered),[8] and the August 3, 1993 report by Detectives Brown and James about their July 21, 1993 interview of Washington. Page 3 of the August 3, 1993 report states, in relevant part:

[Cunningham and Washington] then walked east on Harlem Avenue, then south on Fremont Avenue. [Washington] states when they were in the middle on [sic] the block she " heard some shots" and " turned to her right to see where they were coming from." (note: this direction would be towards the rowhouses and away from the suspect's location, which would be behind them and from the street). She then turns to her left, observes the victim grab his side and fall to the sidewalk. It is at this point she observes the suspect, gun in hand, running down Fremont (south) and right on Edmondson Avenue (west). Ms. Washington's recollection of the event is simply not credible. She describes only seeing the shooters' back, saying he was wearing a white shirt, maroon shorts, tennis shoes with no socks. Also that he was taller than the witness with the medium build.[[9]]

By memorandum opinion and order of March 27, 1998, the postconviction court denied all relief. The court found that although Washington's written statement and the August 3, 1993 report were not produced by the State to the defense, the information in them had been fully communicated to the jurors during trial. In particular, the jurors were made aware of what Washington had told Detectives Brown and James on July 21, 1993, and, through the testimony of Detective Brown, that, in the detective's view, the information she gave that day was not 100% truthful.[10] The jurors also had learned that, during the July 21, 1993 interview, Detective Brown had observed that Washington appeared to be under the influence [216 Md.App. 116] of alcohol or drugs. When Detective Brown interviewed Washington again a month later, however, she was sober. In addition, Hawes knew before trial that Washington had been arrested for drug offenses at the close of her July 21, 1993 interview. The postconviction court found " there is no evidence which would remotely suggest that the State withheld exculpatory information from the defense."

The postconviction court went on to rule that the reasonable doubt instruction as given included everything a proper reasonable doubt instruction must say. It rejected the allegations of ineffective assistance

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of counsel, under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In particular, the postconviction court concluded that Alston had not performed deficiently in failing to object to the reasonable doubt instruction, as the instruction was proper; and there was no evidence that Alston had failed to prepare for trial or to look into the police report. The court credited Alston's testimony that " his recollection and file records indicate significant time was spent conferring with [Hawes], [the prosecutor], and preparing for trial."

Hawes applied for leave to appeal the postconviction court's decision. The application was denied by this Court on June 25, 1998.[11]

4. Motion to Reopen Petition for Postconviction Relief.

Seven years later, on July 27, 2005, Hawes filed a " Motion to Reopen Petition for Post Conviction Relief," in which he asserted that his postconviction lawyer had rendered ineffective assistance of counsel. Specifically, he argued that postconviction counsel had failed to allege that trial counsel had provided ineffective assistance by not objecting to that part of the first-degree murder instruction addressing intent to kill (which Hawes refers to as the " intent instruction," and which we shall too, for the sake of consistency) and had failed to [216 Md.App. 117] allege that appellate counsel had provided ineffective assistance by not raising the erroneous intent instruction as plain error on direct appeal. Hawes further argued that postconviction counsel had provided ineffective assistance by failing to allege that trial counsel had been ineffective by not seeking an alibi instruction. Finally, Hawes claimed that postconviction counsel had rendered ineffective assistance by failing to allege that the State had violated certain discovery rules and had used perjured testimony.

On November 14, 2005, the court denied the motion to reopen, without a hearing. It filed a statement of the reasons for its ruling. In it, the court observed that Hawes intelligently and knowingly waived the alleged irregularities in the first-degree murder jury instruction by failing to raise the issue, either on appeal or in his first postconviction petition. On the issue of the alibi instruction, the court stated that, under the circumstances, trial ...

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