Meredith, Leahy, Sonner, Andrew L. (Retired, specially
Md.App. 2] Meredith, J.
2009, the Maryland General Assembly enacted a statute that
permits a convicted person to file a petition for a "
writ of actual innocence" based upon a claim of newly
discovered evidence. Maryland Code (2001, 2008 Repl. Vol.,
2009 Supp.), Criminal Procedure Article (" CP" ),
§ 8-301. In 2011, the Court of Appeals of Maryland
adopted Maryland Rule 4-332, which provides, in pertinent
part, that each petition for writ of actual innocence "
shall state: . . . that the conviction sought to be vacated
is based on an offense that the petitioner did not
commit." Rule 4-332(d)(9). Dameron Smallwood, appellant,
urges us to hold that the Court of Appeals erred in
construing CP § 8-301 to limit the availability of a
writ of actual innocence to persons who assert that they did
not commit the offense of which they have been convicted. We
are not persuaded that the Court of Appeals erred in its
interpretation of CP § 8-301. We shall therefore affirm
the ruling of the Circuit Court for Baltimore County denying
Smallwood's application for writ of actual innocence.
1985, Smallwood was convicted of committing a brutal murder.
He was tried upon an agreed statement of facts. He does not
dispute that, on the morning of October 22, 1984, when he was
15 years old, he knocked on the door of a stranger at an
apartment complex in Baltimore County, and told the
76-year-old occupant that he had a package that she needed to
sign for. When she opened the door, Smallwood stabbed her ten
times in the chest and abdomen and arms. He then fled, and
was observed disposing of items of clothing and a bloody,
brown paper bag. The victim of the stabbing died later that
Md.App. 3] After Smallwood was indicted for first degree
murder and related offenses, his attorneys moved for a
reverse waiver to juvenile court. At the reverse waiver
hearing, Smallwood's attorneys called a psychiatrist, a
psychologist and a psychiatric social work expert to testify
that it would be appropriate for Smallwood to be tried as a
juvenile because he would be amenable to treatment if the
reverse waiver was granted, and, in the view of these
experts, it would be preferable to commit Smallwood to an
institution rather than incarcerate him. None of the
psychological experts expressed an opinion that Smallwood was
not criminally responsible for the fatal stabbing of the
victim. The circuit court
denied the request to waive the case to the juvenile court.
entered a plea of not guilty, but, agreed to a lengthy
statement of facts, which included grisly details such as:
Mrs. Gibson went to answer the door. . . . The defendant was
the person knocking on her door. With the door shut, Mrs.
Gibson asked who was there and what they wanted. The
defendant said that he had a package to deliver. She told him
to leave the package outside her door. The defendant told her
that she had to sign for the package. . . . Believing what
the defendant said, the victim began to open the door. The
defendant pushed the door open and forcibly entered the
apartment, pushing the victim back inside. Armed with a
knife, the defendant stabbed Mrs. Gibson ten times. During
the struggle with the defendant, Mrs. Gibson cried out to her
daughter-in-law, [who was] still on the phone, "
Barbara, call the police." Barbara Gibson heard the
struggle and [heard] the defendant yell, " Bitch, son of
a bitch." Lastly, she heard Mrs. Gibson cry, " Oh,
was found guilty of all counts, and was sentenced to
imprisonment for life.
years later, a psychiatrist who had testified as a defense
expert at the reverse waiver hearing in 1985 -- Dr. Ellen
McDaniel -- indicated to Smallwood's attorneys that she
was now willing to revise the opinions she had expressed at
[227 Md.App. 4] the reverse waiver hearing, and was now
willing to testify that Smallwood was not criminally
responsible for killing Mrs. Gibson in 1984. Smallwood's
attorneys filed a petition for writ of actual innocence in
which they asserted that Dr. McDaniel's revised opinion
as to criminal responsibility was newly discovered evidence
that would now support a plea of not criminally responsible,
and, they posited, this newly discovered evidence created a
substantial or significant possibility of a different result
for Smallwood, namely, a verdict finding him guilty but not
Circuit Court for Baltimore County conducted an evidentiary
hearing on Smallwood's petition for writ of actual
innocence. The court received deposition testimony of Dr.
McDaniel (who had passed away prior to the hearing), and the
court heard testimony from a clinical psychiatrist called by
the State who disputed the psychiatric basis for Dr.
McDaniel's revised opinion. Smallwood did not argue that
he was not the person who killed Mrs. Gibson.
circuit court denied Smallwood's petition for writ of
actual innocence for three independent reasons. First, the
court ruled that a writ of actual innocence was not available
to Smallwood because he " is not claiming, and cannot
claim that he is
actually innocent. Rather, he is maintaining that he is
actually guilty, but not criminally responsible for the act
of [227 Md.App. 5] murder." After reviewing legislative
history of CP § 8-301, the circuit court observed:
" Nothing about the legislative history of the provision
suggests that it was intended to include a claim made decades
after a conviction that a defendant was guilty of the crime,
but not criminally responsible for its commission."
the circuit court ruled that, " even if it is determined
that a Petition for Writ of Actual Innocence can be used by a
defendant who is guilty [but not criminally responsible], it
is also important to determine if Dr. McDaniel's new
opinions constitute 'newly discovered evidence'
within the meaning of Section 8-301." The circuit court
concluded that the revised opinions would not constitute
newly discovered evidence, noting: " There was no change
between 1984 and the present in the facts of this
case. No new or different fact was unearthed or otherwise
discovered suggesting that the Petitioner's trial was
unfair in 1984."
the circuit court explained that, even if a revised
expert's opinion might qualify as newly discovered
evidence, the court found Dr. McDaniel's revised
testimony to be entitled to " ...