Appeal from the Circuit Court for Baltimore County. S. Ann Brobst, Judge.
Argued by: Mary Ann Ince (Douglas F. Gansler, Attorney General on the brief) all of Baltimoe, MD for Appellant.
Argued by: Booth M. Ripke (Nathans & Riddle, LLP on the brief) all of Baltimore, MD for Appellee.
Krauser, C.J.,[*] Matricciani, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ. Opinion by Krauser, C.J.
[220 Md.App. 4] Krauser, C.J.
In Douglas v. State, 423 Md. 156, 31 A.3d 250 (2011), the Court of Appeals recognized a right of appeal, from the [220 Md.App. 5] " denial" of a petition for writ of actual innocence, by the petitioner. But it left open the question of whether the State has a corresponding and comparable right of appeal from the " grant" of such a petition. That issue is now before us in this appeal.
George Cameron Seward, appellee, was convicted, after a bench trial in the Circuit Court for Baltimore County, of first-degree rape, first-degree sexual offense, assault with intent to murder, and related lesser offenses. He thereafter noted an appeal, whereupon this Court affirmed his judgments of conviction.
Eleven years later he filed a petition for postconviction relief. When that petition was denied, no further action was taken for more than another decade. Then, when more than twenty-five years had passed since he was convicted of the aforementioned crimes, he filed a petition for a writ of actual innocence. His petition was granted, and the circuit court ordered that Seward be given a new trial.
When the State appealed that decision, Seward responded with a motion to dismiss, challenging the State's right to appeal from the " grant" of an actual innocence petition. Although we initially denied this motion, we granted Seward
leave to renew it in his appellate brief, which he has done.
For the reasons that follow, we shall deny Seward's motion to dismiss once again, as we conclude that the State has a right to appeal from a decision granting a petition for writ of actual innocence. Furthermore, because the court below applied the wrong standard of review, in granting Seward's petition, and because the record clearly shows that Seward failed to act with due diligence in pursuing his actual innocence claim, as the correct standard requires, we shall vacate the circuit court's order and remand this case with instructions to reinstate Seward's convictions.
[220 Md.App. 6] Facts
In the early afternoon of July 26, 1984, Phyllis D. was raped and robbed in her Baltimore County home and then shot in the face by her attacker, while her newborn baby lay in a crib in an adjoining room. Her assailant then stole her car and fled.
When Seward was arrested several months later, by Baltimore County police, for an unrelated offense, an officer at the police precinct noticed that Seward resembled a composite drawing that had been made of Ms. D.'s assailant. A photographic array, which included Seward's photograph, was then prepared and presented to Ms. D. From that array, Ms. D. identified Seward as the man who raped, robbed, and shot her and then two months later, re-identified Seward in a line-up arranged by the police.
Seward was thereafter charged, in a fourteen-count indictment, with first-degree rape, first-degree sexual offense, assault with intent to murder, breaking and entering a dwelling house, use of a handgun in the commission of a felony, robbery with a dangerous and deadly weapon, and other related offenses. At his bench trial, in March 1985, a number of witnesses testified for both the State and the defense, but only two of those witnesses are relevant to Seward's present claim of actual innocence: Phyllis D., the victim; and Louise Stamathis, the owner of a dog grooming shop where Seward worked.
Ms. D. testified that she was at home at approximately 12:20 p.m. on July 26, 1984, watching television. At that time, she was on maternity leave from her job, having just given birth to her son, a few weeks earlier. Upon hearing a knock, she opened the front door of her home. Standing there was a " black man." He claimed that his car had broken down nearby and asked her permission to use her telephone. After [220 Md.App. 7] gaining entry and seemingly using her phone, the man requested to use her bathroom. Inside the bathroom, he apparently put on gloves, because, upon leaving the bathroom, he, wearing gloves, grabbed her. Then, pointing a handgun at her, he raped her and forced her to fellate him.
After repeatedly sexually assaulting Ms. D., he demanded her money and jewelry. And, then, taking the keys to Ms. D.'s car, he left. As he departed, he turned and shot Ms. D. in the face. Ultimately, police were summoned to Ms. D.'s home by a neighbor, who had heard her ensuing cries for help.
At trial, Ms. D. identified Seward as her assailant and confirmed that she had previously identified him from a photographic array, several weeks after the assault, and two months after that had picked him out of a line-up.
Seward responded, after the State concluded its case, by calling to the stand, as part of his " mistaken-identity" defense, his employer, Louise Stamathis. She testified that Seward was working for her at the time of the rape, robbery, and shooting in question, but she could not recall whether he had worked at her dog grooming shop on the day those crimes were committed, that is, July 26, 1984. She further stated that, as she was now required to provide her husband, who was suffering from multiple illnesses, with around-the-clock care, she was unable to locate her payroll records and unable to verify whether Seward had worked in her shop during the commission of these dreadful crimes. At the conclusion of her testimony, the court instructed her to " [p]lease try to get those records and get in communication because [she was] still under summons to the Court." But more than a decade passed before she was ever heard from again.
At his trial, which began eight months after the assault, Seward had a goatee and a mustache. Although Ms. Stamathis testified that he " always" had such facial hair, Ms. D. had [220 Md.App. 8] not noticed, at the time of the attack, whether her assailant had a goatee and was uncertain whether he had a mustache. Relying on this purported, and possibly manufactured discrepancy (given the eight months that had elapsed between the crimes and Seward's trial), as well as the inconclusiveness of the forensic evidence gathered by police, Seward claimed that this whole matter was a case of mistaken identity.
At the conclusion of the trial, the court observed that Ms. D. " had some twenty to thirty minutes, in broad daylight hours," to observe the assailant and that she " was in close proximity to him, face to face," throughout that time. Taking into consideration the opportunity that Ms. D. had to fully and at length observe her attacker as well as the testimony of police detectives that, when she identified Seward from a photographic array and then picked him out of a line-up, she did so " immediate[ly] and positive[ly]" and " without equivocation or reserve," the court opined that Ms. D. was " absolutely and unequivocally certain that" Seward was the man who " raped her, robbed her, and shot her." Accordingly, the court found Seward guilty of all charges.
A motion for new trial followed, which " hinged on the contention that [the trial judge] had relied upon an unreliable identification." Seward v. State, No. 1337, Sept. Term 1985, at 3 (filed May 28, 1986) (per curiam), cert. denied, 307 Md. 406, 514 A.2d 24 (1986). That motion was denied, and Seward was sentenced to consecutive terms of life imprisonment for both first-degree rape and first-degree sexual offense; as well as additional sentences of thirty years for assault with intent to murder; three years for breaking and entering a dwelling house; twenty years for use of a handgun in the commission of [220 Md.App. 9] a felony; and twenty years for robbery with a dangerous and deadly weapon, all of which were to run consecutively to the first life
sentence. His convictions were later affirmed by this Court in an unreported opinion, Seward v. State, No. 1337, Sept. Term 1985, and the mandate of this Court was received and filed in the circuit court on July 1, 1986.
Eleven years later, in 1997, Seward filed a petition for postconviction relief in the Baltimore County circuit court, alleging ineffective assistance of counsel. He claimed that his trial counsel had " failed to present available evidence," namely, Ms. Stamathis's payroll records, " or to conduct reasonable investigation to uncover" such evidence, which, he maintained, " would have tended to exculpate" him. At the hearing held on that petition, Ms. Stamathis produced the handwritten payroll records that she had been unable to find during Seward's 1985 trial and testified that, based upon those records, Seward, on the day of the crimes, had been working at her shop, which was approximately two miles from the crime scene, and that it would have been " [i]mpossible" for him to have left her shop during the relevant time period. She further testified that, if she had been issued a court order, at the time of Seward's trial, to search her records, she would " had to have done it" and that, ...