Appeal from the Circuit Court for Baltimore City. M. Brooke Murdock, Judge.
Argued by: David W. Lease (Smith, Lease and Goldstein, LLC on the brief) all of Rockville, MD for Appellant.
Argued by: Carrie J. Williams (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Panel: Zarnoch, Graeff, Davis, Arrie W. (Retired, Specially Assigned), JJ.
[216 Md.App. 350] Graeff, J.
This appeal involves a Petition for Writ of Actual Innocence filed by William Jackson,
appellant, in the Circuit Court for Baltimore City, based on evidence that the State's ballistics expert, Joseph Kopera, lied about his qualifications. The circuit court denied appellant's petition, finding that appellant failed to meet his burden of proof pursuant to Md. Code (2011 Supp.) § 8-301(a)(1) of the Criminal Procedure Article (" C.P." ).
On appeal, appellant presents the following question, which we have rephrased slightly, as follows:
Did the circuit court err in denying appellant's Petition for Actual Innocence where it was undisputed that (I) the State presented perjured testimony of a state expert witness as to his expert qualifications; (ii) the trial court explicitly instructed the jury that it must take into account the expert's qualifications; and (iii) the question of appellant's guilt was highly contested at trial?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On April 16, 1987, a jury sitting in the Circuit Court for Baltimore City convicted appellant of first-degree murder, first-degree sexual offense, and use of a handgun in the commission of a crime of violence. The circuit court imposed consecutive sentences of life imprisonment for the murder [216 Md.App. 351] conviction, life imprisonment for the sexual offense conviction, and twenty years for the handgun conviction.
On December 20, 1986, Marcella Robinson was at the home of her boyfriend, Musa Bey. She testified that, at approximately 7:00 a.m., appellant came to Mr. Bey's apartment and asked to see Mr. Bey. Shortly thereafter, Ms. Robinson went upstairs and found the two men using cocaine in one of the bedrooms. The three then smoked cocaine for forty-five minutes.
At approximately 7:45 a.m., Ms. Robinson advised the two men that she needed to get ready for work. She testified that appellant then fired a gun shot into the floor and said to Mr. Bey: " [G]ive me my cocaine." Appellant struck Mr. Bey in the head with the gun, fired a shot behind where Mr. Bey was seated, pulled a rope out of a brown bag, and tied up Mr. Bey. He then ordered Ms. Robinson, at gun point, to take off her clothes. Mr. Bey pleaded with appellant to leave Ms. Robinson alone, and he told appellant that he could not breathe. Appellant then picked Mr. Bey up off the floor and tied him to a chair.
Appellant told Ms. Robinson to perform oral sex on him or he would shoot her. Mr. Bey continued to yell at appellant to leave Ms. Robinson alone, so appellant put Mr. Bey in the closet. Appellant then took his clothes off, shut the door to the closet, and pulled Ms. Robinson into another room, where he urinated into her mouth and penetrated her vagina with his fingers after he was unable to do so with his penis. After returning to the room where Mr. Bey was being held in the closet, appellant urinated into a yellow bowl in the room and ordered Ms. Robinson to drink it.
Thereafter, Mr. Bey pushed the closet door part way open, and appellant turned and shot at the door. Appellant warned Mr. Bey that, if he came out of the closet, appellant would kill him. Mr. Bey then " came charging out of the closet," grabbed appellant by his shirt, and appellant shot Mr. Bey. Mr. Bey [216 Md.App. 352] fell onto appellant, and
appellant hit Mr. Bey over the head with the gun.
At that point, Ms. Robinson ran from the room, down the steps, and outside, screaming for help. Ms. Robinson was still naked at the time. Mr. Bey's next-door neighbor brought her into the house and gave her clothes, and Ms. Robinson asked her to call the police because appellant had shot Mr. Bey. The police arrived, and at approximately 1:30 p.m., Ms. Robinson was taken to the hospital, where she received an oral and vaginal exam. On cross-examination, Ms. Robinson acknowledged that, while at the hospital, she did not advise the physician who treated her that appellant had assaulted her vaginally.
Thomas Simpson, an officer with the Baltimore City Police Department, testified that, on December 20, 1986, at 1:00 p.m., he received a call regarding a shooting at 414 East 21st Street. When he arrived, there was a crowd of five or six people in front of the residence, and he heard someone yell that someone was shot, and " a naked lady" had run into the house next door. While searching the residence, Officer Simpson found a person, who appeared to be dead, lying face down, bleeding from the head in a small bedroom on the second floor. Officer Simpson observed a kitchen chair in the closet of the room, with a rope wrapped around it. He also observed a bullet hole in the floor, as well as above the frame of the closet door. Evidence technicians recovered bullet [216 Md.App. 353] fragments from the hole above the closet, as well as a bullet from the first floor.
Based on the shouting he heard upon arriving at the scene, Officer Simpson went to the residence next door, where he found Ms. Robinson. She was very upset, but he was able to obtain a statement from her.
Robert Bowman, a Baltimore City Police Detective, testified that Ms. Robinson identified appellant as the shooter. When he went to the residence, he found a yellow bowl that smelled of urine in the bedroom where Mr. Bey's body was found.
Dr. William Zane, an Assistant Medical Examiner, testified that Mr. Bey died of a gun shot wound to his chest. Dr. Zane recovered the bullet from Mr. Bey's body, and he determined that the wound was consistent with a gun shot at close range. Mr. Bey had several lacerations on his scalp, which were consistent with being struck with part of a gun. Dr. Zane did not observe other abrasions on Mr. Bey's body. Although he commented that, where an individual is bound and struggles to free himself, there should be evidence of that struggle, the lack of such evidence in this case did not indicate that Mr. Bey was not bound. Regarding Mr. Bey's time of death, Dr. Zane testified as follows: " I have to refer to the notes. I would say . . . the early morning hours of the 20th of December." On cross-examination, while referring to his report, he stated that the time of injury was 12:45 p.m.
Mr. Kopera, an employee of the Baltimore City Police Department Ballistics Unit, testified as an expert in ballistics. Mr. Kopera testified that he held a degree in mechanical engineering from the University of Maryland in College Park, as well as a mechanical engineering degree in photo-science from Rochester Institute of Technology in New York. Mr. Kopera opined that the bullet found in the floor of Mr. Bey's home was a .38 caliber special or a .357 semi-jacketed bullet, [216 Md.App. 354] which could have been fired from " Smith and Wesson, I.N.A. Tiger, and Ruger revolvers."
Mr. Kopera also analyzed the victim's clothing to ascertain the distance between the victim and the muzzle of the weapon. Based on the residue on Mr. Bey's clothing, Mr. Kopera determined that the gun used to shoot Mr. Bey was fired from a range of three to four feet. After comparing the bullet fragments from the floor and Mr. Bey's body, he concluded that the bullets were fired from the same weapon.
Appellant testified that, on the morning of December 20, 1986, he went to Mr. Bey's apartment between 4:00 and 4:30 a.m., and left between 9:30 and 10:00 a.m. He smoked cocaine with Ms. Robinson and Mr. Bey, and while Mr. Bey was out of the house purchasing more cocaine, appellant pulled his pants down and asked Ms. Robinson to perform oral sex.
When Mr. Bey returned and saw appellant and Ms. Robinson, Mr. Bey struck Ms. Robinson and appellant. Mr. Bey backed Ms. Robinson into a corner, at which point she pulled a gun from her pocket, and shot Mr. Bey. Appellant then left Mr. Bey's apartment, went home, got some money, and went to his ...