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Smallwood v. State

Court of Special Appeals of Maryland

February 24, 2016

DAMERON SMALLWOOD
v.
STATE OF MARYLAND

          Meredith, Leahy, Sonner, Andrew L. (Retired, specially assigned), JJ.

          OPINION

Page 343

         [227 Md.App. 2] Meredith, J.

         In 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.

         BACKGROUND

         In 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 day.

          [227 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

Page 344

denied the request to waive the case to the juvenile court.

         Smallwood 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, my God."

         Smallwood was found guilty of all counts, and was sentenced to imprisonment for life.

         Twenty-five 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 criminally responsible.[1]

         The 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.

         The 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

Page 345

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."

         Second, 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."

         Finally, 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 " ...


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