For Appellant: Renee Hutchins, University of Maryland School of Law on the brief, Baltimore, MD.
For Appellee: Jessica V. Carter, Douglas F. Gansler, Attorney General on the brief, Baltimore, MD.
Meredith, Woodward, Sharer, J. Frederick (Retired, specially assigned), JJ.
[221 Md.App. 148] In October 1993, a jury in the Circuit Court for Baltimore City convicted Gary Ward, appellant, of first degree murder and the use of a handgun in the commission of a crime of violence. See State v. Ward, 350 Md. 372, 374-75, 712 A.2d 534 (1998). Appellant was sentenced to life imprisonment for first degree murder and a consecutive term of five years' imprisonment for the handgun offense.
On January 4, 2012, appellant filed a petition for a writ of actual innocence pursuant to Maryland Code (2001, 2005 Repl. Vol., 2011 Supp.), Criminal Procedure Article (" CP" ), § 8-301. Appellant asserted that the State's case against him placed substantial reliance upon expert testimony regarding comparative bullet lead analysis (" CBLA" ), and appellant argued that his conviction should be vacated because of scientific studies published in 2002 and 2004 that criticized the use of CBLA in criminal trials. Moreover, appellant argued that the Federal Bureau of Investigation (" FBI" ) -- the only lab in the United [221 Md.App. 149] States that performed CBLA tests -- had discontinued CBLA comparisons in 2005, and the Court of Appeals had declared such testimony inadmissible in 2006 in Clemons v. State, 392 Md. 339, 896 A.2d 1059 (2006). Appellant argued that the new scientific findings about the conclusions that could be reasonably supported by CBLA constituted newly discovered evidence that supported the issuance of a writ of actual innocence granting a new trial pursuant to CP § 8-301. Following a June 14, 2012, hearing, the circuit court denied the petition, and filed a written opinion and order on November 28, 2012. Appellant noted this appeal. While the present appeal was pending, the Court of Appeals considered another case in which the prosecution had relied on expert testimony regarding CBLA, and the Court of Appeals granted a new trial in that case as a consequence of issues regarding the CBLA evidence. Kulbicki v. State, 440 Md. 33, 99 A.3d 730 (2014), reconsideration denied, id.
Appellant presents one issue for our review:
Did the lower court err by failing to recognize that national scientific studies, released in 2002 and 2004, followed by the FBI's official rejection and discontinuation of comparative bullet lead analysis (CBLA) in 2005 constitute newly discovered evidence under [CP] § 8-301?
For the reasons stated below, we conclude that the court erred in ruling that the reports were not newly discovered evidence. We vacate the judgment of the circuit court and remand the case for further consideration in light of the Court of Appeals's opinion in Kulbicki.
FACTS AND PROCEDURAL HISTORY
At approximately 11:30 p.m. on September 30, 1992, Alfred Stewart was shot to death in the 1400 block of Cliftview Avenue in Baltimore. Ward, supra, 350 Md. at [221 Md.App. 150] 374. In the following days, anonymous callers reported to police that appellant had murdered Stewart. Id. at 374. On October 3, police questioned appellant. Id. Although appellant was not charged with the murder at that point, the police impounded appellant's vehicle due to expired tags. Id. After a witness identified appellant from a photographic array as Stewart's killer, police obtained a warrant to search appellant's home and vehicle. Id. Police recovered three .357 caliber " MAG" hollow point cartridges from the trunk of the vehicle. Id. The murder weapon was never found. Appellant was charged with first degree murder and the use of a handgun in the commission of a crime of violence. Id.
The circuit court conducted a jury trial in October 1993, with the Honorable Elsbeth Bothe presiding. At trial, the State presented CBLA evidence in an effort to link the bullet fragments found in Stewart's body to the unfired cartridges recovered from appellant's vehicle. In the prosecutor's opening statement, he told the jury that the FBI analysis would show that the bullet that killed Stewart " came from the same lot as those bullets that were found in defendant's car, the same exact make of bullets from the same lot." An FBI agent, Ernest Peele, testified that the composition of the fragments was the same as that of the bullets from appellant's car. The agent stated: " It has the same amount of all the elements present and as such it is consistent with coming from the same source of ammunition."
Agent Peele's testimony about CBLA included the following assertions:
If comparing two pieces [of bullets] and they have the same composition, the reasonable place to expect that they originated would be from the same homogenous source.
For instance, they could be from the same piece. They could be from the same bullet if you were to take any two small pieces.
[221 Md.App. 151] The next reasonable place would be via the manufacturer's packaging process, would be the same box of ammunition. That would be the reasonable place or source of determination to occur.
And then it is possible the same type, the same manufacturer packaged on or about the same date because obviously the source could be larger than what would be used in a box.
During closing arguments at appellant's trial, the prosecutor argued to the jury that, based upon Agent Peele's CBLA testimony, they could find a connection between appellant and the bullets taken from Stewart's body:
We also know that the bullets were recovered from Alfred [Stewart]'s body match the cartridges, which means the bullet and the casing that it was in, that was found where? In the Defendant's car. That's a little bit more than coincident, ladies and gentlemen, in light of the fact that you have also have an eyewitness testimony. Got some strong evidence in this case.
The prosecutor emphasized the connection that had been proved by the CBLA evidence which purportedly showed that the bullets that killed Stewart came from the same box as the bullets found in appellant's car. The prosecutor stated:
This stuff was found right inside the trunk. A box of Winchester Super-X cartridges, silver tip, 357 magnum. Just so happens that the same kind of cartridges that were found. Just so happens that they are consistent with the bullets that are recovered from Al [Stewart]. In fact, not only consistent, but they match. They match from the same source. They came from the same box.
. . . The testimony of the ballistics experts in here may have, on first blush, appeared to be complicated, but one thing that we know that there was a connection between Al [Stewart]'s murder weapon and the bullet that killed [221 Md.App. 152] him, and what was found in the Defendant's car. That's a fact. That's a fact.
The State also presented the testimony of Mohammed Taylor, who was familiar with both appellant and Stewart. Taylor testified that, around midnight on September 30, 1992, he saw appellant and Stewart arguing about drugs which Stewart had recently purchased from appellant. A short time after that, Taylor stated, he heard a gunshot, and he turned around. He testified that he heard two more gunshots and saw Stewart on the ground, and saw appellant running away, holding a gun. Taylor later identified appellant in a photo array.
Alan Wise also testified for the State. At the time of trial, Wise was serving a sentence for an unrelated charge. Wise stated that he had known appellant for a long time. Wise testified that he witnessed appellant fire a silver gun during an unrelated incident that occurred on September 17, 1992. Additionally, Wise stated that, shortly before the September 30 shooting of Stewart, appellant told Wise that he needed money and that he " don't want to have to put the gun to nobody mouth . . . ." Wise testified that he was in the vicinity of the September 30 shooting and heard gunshots, but he did not see anything. Appellant represents in his brief: " Wise has since recanted his testimony in postconviction proceedings [in 2003, at which time Wise testified] that his identification of Gary Ward as the shooter at the earlier incident was a lie." (The State points out, however, that the postconviction judge discounted Wise's recantation as not being credible.)
At appellant's trial, the State also presented expert ballistics testimony that the bullets recovered from the September 17 shooting were fired by the same caliber of gun ...