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McGhie v. State

Court of Appeals of Maryland

August 24, 2016


          Argued: April 5, 2016

         Circuit Court for Montgomery County Case No. 71295

          Barbera, C.J., [*] Battaglia, Greene, Adkins, McDonald, Watts, Raker, Irma (Retired, Specially Assigned), JJ.


          BARBERA, C.J.

         Maryland law affords persons convicted of certain crimes the chance to obtain a new trial based on "newly discovered evidence" that "creates a substantial or significant possibility" that the result of the trial would have been different. The vehicle for obtaining such relief is a Petition for Writ of Actual Innocence. See Md. Code Ann., Crim. Proc. § 8-301(a)(1) (2010, 2008 Repl. Vol., 2015 Supp.).[1] Petitioner Robert McGhie is serving a life sentence for murder and related offenses stemming from a 1994 failed armed robbery. In 2013, Petitioner filed a petition under § 8-301, basing it on newly discovered evidence that the State's ballistics expert, Joseph Kopera, testified falsely about his academic credentials at Petitioner's trial. Following a hearing on the petition, the Circuit Court for Montgomery County denied relief, concluding that Kopera's lies about his academic credentials did not create a substantial or significant possibility of a different outcome at trial. The Court of Special Appeals affirmed the judgment of the Circuit Court. McGhie v. State, 224 Md.App. 286, 288 (2015). We, in turn, affirm the judgment of the Court of Special Appeals.

         I. The Trial and Appeal

         Petitioner was tried before a jury in the Circuit Court for Montgomery County. The State proceeded on charges of murder, attempted murder, two counts of use of a handgun during the commission of a crime of violence, and conspiracy to commit armed robbery. The target of the planned robbery was the American Mailbox, a business located in Silver Spring, Maryland that provides mailing services to customers. Much of the State's evidence of Petitioner's involvement in the crimes was presented through the testimony of one of the co-conspirators to the robbery, Edward Borrero.

         Borrero, sixteen years old at the time of trial, testified pursuant to a plea agreement.[2]His testimony was lengthy and detailed. According to Borrero, at 2:30 p.m. on January 31, 1994, he called a man known to him as "Mike."[3] After the call, Borrero and his friend, then-sixteen-year-old Terrance Robinson, went to Mike's apartment on 19th Street in Washington, D.C., arriving around 3:00 p.m. or sometime shortly thereafter. Mike talked with Borrero and Robinson about "a little store that [they] could hit." In discussing a plan for the robbery, Mike drew a blueprint of the American Mailbox and told the two teenagers that there was $40, 000 to $80, 000 in cash in the back office.

         Petitioner arrived at the apartment a few minutes later. Shortly thereafter, he, Mike, Borrero, and Robinson drove in a Chevrolet Celebrity ("the Celebrity") to an apartment where Mike retrieved a 9-millimeter chrome handgun. Mike then returned to the car, accompanied by his girlfriend, Angie. An acquaintance of Mike, Earl ("Skinny") Patterson, was waiting together with the others. Mike handed Borrero the handgun, and Skinny gave Borrero the keys to a Chrysler New Yorker ("the New Yorker").

         With Borrero driving the New Yorker, and Petitioner, Mike, Angie, and Robinson in the Celebrity, the group traveled in the direction of the American Mailbox. The trip was interrupted by a detour to take Angie back to the apartment, as she had decided not to participate in the planned robbery. After dropping her off, Borrero joined Petitioner, Mike, and Robinson in the Celebrity. They drove together to view the exterior of the American Mailbox and discuss the robbery plan. Once the plan was set, the four men retrieved the New Yorker.

         The four men then drove separately in the two cars to the apartment of Vanessa Hood. There, Mike collected a .38 revolver and handed it to Borrero. Borrero opted to use the chrome pistol and passed the revolver to Robinson. Borrero and Robinson then drove the Celebrity to the American Mailbox, while Mike and Petitioner drove the New Yorker to a spot a few blocks from the store.

         Borrero and Robinson entered the American Mailbox. Borrero, with a book of stamps in hand, approached the counter where the storekeeper, Joseph Atkins, was speaking on the telephone. When the call ended, Borrero pulled out a gun. Atkins reached across the counter to defend himself, and Borrero shot him in the face.

         Borrero and Robinson then searched, without success, for the money. As they were doing that, a storekeeper from down the street, Randall Covington, entered the American Mailbox. Borrero shot him as well. Covington died of the gunshot wound.

         Borrero and Robinson fled the store and drove in the Celebrity to meet Mike and Petitioner, who were waiting in the New Yorker. The four abandoned the Celebrity on the street and drove in the New Yorker to Hood's apartment. At the apartment, Mike left the two guns with Hood. About ten minutes after their arrival, a young man, later determined to be Hood's son, Vandell Roseman, entered the apartment. Soon thereafter, Petitioner, Mike, and Roseman left the apartment. Borrero and Robinson remained at the apartment watching television, then left after seeing a news report about the shooting.

         Borrero further testified that he was arrested on February 8, 1994, and at that time told a different story to the police. In that interview, he reversed Mike's and Petitioner's participation in the crime and reversed his role with that of Robinson.

         The State called Hood and her son, Roseman, each of whom corroborated aspects of Borrero's testimony. Hood testified that, on January 31, 1994, around 3:30 p.m. to 4:00 p.m., Petitioner and Mike came to her apartment, which is about a fifteen-minute drive from the American Mailbox, to collect a gun that Mike had left there. The gun was brown and black and had a cylinder in the middle. About thirty to forty-five minutes later, Petitioner and Mike returned to her house with two boys. Hood testified that they must have arrived sometime before 5:00 p.m. because she was watching the Oprah Winfrey show, which airs from 4:00 p.m. to 5:00 p.m. Mike gave her two guns and asked her to keep them; one gun was the brown and black gun that Mike had picked up earlier that afternoon and the other gun was flat and silver. Ten to fifteen minutes later, Roseman came home but left sometime thereafter. Like Borrero, Hood testified that the two boys were watching television at Hood's apartment for a time but left after they watched a news report about a shooting nearby. About two to three days after the incident, Hood decided that she did not want the guns in her home and gave them to Roseman to discard.

         Roseman testified that, on January 31, 1994, he came home around 5:00 or 6:00 in the evening and saw Petitioner, Mike, and two boys. At Petitioner's request, Roseman drove him to the American Mailbox. When upon arrival they saw that police were surrounding the area, Petitioner told Roseman to "forget it and just to go back home." Roseman's mother instructed him a couple of days later to discard two handguns, a silver automatic and a black and brown revolver. He threw the guns into a trash can.

         Barbara Rogers resides at the apartment on 19th Street where Borrero and Robinson had met with Mike earlier on January 31, 1994, to discuss the robbery plan. Rogers testified that, towards the end of 1993, she allowed Mike and Petitioner to move into her apartment; Petitioner left after a short stay and, in January 1994, Rogers asked Mike to leave. Mike came to her apartment on January 31, 1994, to pick up his belongings. Petitioner arrived sometime after 2:00 p.m. and, thereafter, he and Mike "were in and out" of the apartment. Rogers overheard Mike say that there was a "sweet spot" that had $80, 000, to which Petitioner responded, "[l]et's take the motherfucking joint." Mike said that he "would never have to hustle again" and would take his share and return to Jamaica. Petitioner said that he was going to buy a nice car. Borrero called Rogers's apartment that same afternoon to speak to Mike. About thirty to forty-five minutes later, Borrero and Robinson arrived at her apartment. Rogers believed that all four left sometime before 3:00 p.m.

         Rogers further testified that, a couple of days later, Petitioner and Mike were in her apartment and she again heard them talking about the robbery. Rogers testified that she overheard Petitioner say that "his fingerprints ain't on nothing and didn't nobody see him nowhere near the place." She also heard Petitioner say that "a man dead and we didn't get a damn dime." Rogers also testified that in early 1994 she helped the Montgomery County Police Department identify persons involved in the crime and received $820 and additional money to pay her telephone bill. She also admitted that she was negotiating a bad checks case with the U.S. Attorney, stating, though, that her case had nothing to do with her testimony and she did not receive any financial assistance or leniency in that federal case for her testimony as a witness against Petitioner.

         Atkins, the American Mailbox storekeeper, survived the shooting and testified about the incident. On that day, two kids came into the store. After one kid made a purchase, Atkins handed him his change and the receipt; the kid then pulled out a dark grey gun and shot Atkins in the mouth. The kid shooter then looked for money while the other kid stood there. When Covington, the storekeeper from down the street, entered the store, the kid who shot Atkins also shot Covington. That same kid then stood over Atkins and shot him again; Atkins had his hands over his head and the bullet went through his arm. Atkins had identified Borrero before trial as the shooter and confirmed that identification at trial. Atkins also identified the receipt for the attempted robbers' purchase that had been left behind. The receipt was dated January 31, 1994, with a time of 4:39 p.m.

         Three Montgomery County Police Department officers testified about the crime scene, the arrest of Petitioner, and the Celebrity-the car that had been abandoned a few blocks from the American Mailbox. In addition, Charles Felker, a latent fingerprint examiner for Montgomery County Police Department admitted as an expert in fingerprint identification, testified that he found Borrero's prints on the driver's side of the Celebrity and Petitioner's and Mike's fingerprints on the New Yorker.

         As further support of its theory that Petitioner participated in the crime, the State called Joseph Kopera, a ballistics expert, to testify that a bullet and shell casings found at the American Mailbox crime scene matched bullets and shell casings from an unrelated shooting incident on January 23, 1994, involving Petitioner. Kopera testified that he worked for the Maryland State Police Ballistics Laboratory, a position he held for the past three years and, for twenty-two years before that, he worked at the Baltimore City Crime Lab in the Ballistics Unit. He added that he worked long hours, testified about 125 to 130 times a year, and conducted around 1, 200 to 1, 400 examinations a year. He explained that the ballistics field entails identification of firearms, projectiles, and cartridge cases. He stated that he had testified in jurisdictions across Maryland, in other state courts in the mid-Atlantic region, and in the federal courts.

         Pertinent here, Kopera testified about his credentials as follows:

There are no colleges or universities that offer a degree in the field specifically of ballistics or firearms identification, so all knowledge of the field is done by way of on-the-job training. I spent a tenure of five years on-the-job training with the FBI and also with the Baltimore City Firearms Laboratory before becoming court-qualified. Before this training, we must fit the qualifications as far as educational background to get into the field. The State Police and also the Baltimore City Crime Lab and the FBI require a science-related degree in a field relative - in an area relative to your field. I hope [sic] a degree in engineering from the University of Maryland here in the State of Maryland and also an engineering degree from the Rochester Institute of Technology in the state of New York. I am a graduate of the FBI Academy in the fields of ballistics. I am on the board of directors for the Association of Firearm and Tool Mark Examiners, which is the governing agency of firearms experts here in the United States and many countries abroad.

         The trial court admitted Kopera as an expert in ballistics identification.

         Kopera testified that he examined two 9-millimeter bullets and three casings recovered from the unrelated January 23rd shooting and one 9-millimeter bullet and three casings from the American Mailbox crime scene. Kopera concluded that the bullets and casings from both scenes were fired from the same gun. He further opined to a reasonable degree of scientific probability that the firearm used in both shootings was a semiautomatic pistol.

         In support of Petitioner's involvement in the January 23rd incident, the State presented three witnesses to the shooting on that day. All three testified that they saw Petitioner shoot a gun while hanging out with Mike.

         Petitioner testified that he was not involved in the planning or commission of the failed armed robbery. According to Petitioner, a couple of days before the crime, he traded the New Yorker for Skinny's Celebrity. Then, on January 31, 1994, he was driving the Celebrity "up Georgia Avenue." He testified: "I stopped [the] car to go into a store to buy something to eat . . . . I left the ignition running to go and purchase something. By the time I returned to the car, the car was not there." Petitioner added that the car was stolen sometime between 3:00 p.m. and 4:00 p.m., or as early as 2:30 p.m. Petitioner then called Mike so that Mike could contact Skinny to inform him that the car had been stolen. Petitioner found the New Yorker parked nearby and, having a set of keys to that car on his person that day, began driving that vehicle. In response to the court's questioning how he knew the New Yorker was only a few blocks away from where the Celebrity was stolen, Petitioner said, "I guess I had drove by and seen it there. I'm not quite sure, but I know it was there." Petitioner testified that, once in possession of the New Yorker, he picked up Mike. The two went to Skinny's girlfriend's house to let her know that the Celebrity had been stolen. Petitioner and Mike then drove to Mike's daughter's house in Maryland; he was there "around 4:30 to 5:00, " and then "was just basically driving around basically for the rest of the evening."

         Petitioner was questioned on cross-examination about a signed statement he had made to police that was not completely consistent with his testimony on direct examination. In that statement, Petitioner had told the police that, between 3:00 p.m. and 4:00 p.m. on the day of the crime, he was with Mike at a McDonald's on Georgia Avenue and that he gave the Celebrity to a girl who was with Skinny. When questioned at trial why he did not tell the police that the Celebrity had been stolen, Petitioner testified that he had not wanted to tell the police that he had been driving that car while his license was suspended.

         During closing arguments, the State emphasized that the case rested upon accomplice liability and that, because Petitioner was a co-conspirator to the planned armed robbery, he was guilty of the crimes committed in furtherance of the conspiracy. The State pointed out that Petitioner could not keep his story straight while testifying; moreover, his own words "place[d] him with Mike at the time of the murder." The State recapped the testimony that linked Petitioner to Mike and the murder weapon and, in that regard, referred to the ballistics testimony of Kopera. The State emphasized that the timing of events in the case was crucial and that the testimony of Vanessa Hood, her son, Vandell Roseman, and Barbara Rogers each, standing alone, corroborated aspects of Borrero's testimony.

         The jury found Petitioner guilty on all counts. The judgment was affirmed by the Court of Special Appeals in an unreported opinion.

         The Petition for Writ of Actual Innocence

         On May 16, 2013, Petitioner filed a petition for writ of actual innocence. Petitioner alleged that, at his trial, Kopera lied to the jury by testifying that he earned engineering degrees from Rochester Institute of Technology and the University of Maryland and graduated from the FBI Academy in the field of ballistics. Petitioner stated that, on December 15, 2011, he received a cover letter from an Assistant State's Attorney enclosing a letter to her, dated March 8, 2007, from Colonel Thomas E. Hutchins, Secretary of the Maryland State Police. Colonel Hutchins's letter addressed the discovery of discrepancies concerning Kopera's education. Petitioner attached those two letters to his petition along with two newspaper articles reporting that state police investigators had confirmed that Kopera did not earn degrees from Rochester Institute of Technology or the University of Maryland and that Kopera provided a forged college transcript from the University of Maryland to an attorney who confronted him about the discrepancies. Petitioner also attached an affidavit of William E. Conrad, Forensic Firearms Consultant, which had been filed in a separate, unrelated case in which Kopera had testified. Conrad expressed concern with Kopera's alleged qualifications because Kopera had stated that he graduated from the "F.B.I. Academy in the field of firearms identification and gunpowder residues"; yet, no such educational course had been offered.

         Petitioner argued that Kopera's false testimony about his academic credentials rendered his remaining testimony unreliable. Moreover, "without the contested ballistics results and perjured testimony" from Kopera, there is a "substantial or significant possibility that the result may have been different." The State opposed the petition but conceded that Kopera had lied about his credentials. The State argued, among other things, that the claim was waived because a competent defense attorney would have discovered Kopera's falsehoods in time to file a motion for new trial and, even so, there was "no significant possibility that the outcome of the proceedings in McGhie's case would have been different had counsel discovered the falsification of credentials by Mr. Kopera."

         The Honorable Robert Greenberg ("the hearing judge") presided over the hearing on the petition and denied it in a written opinion and order. The hearing judge rejected the State's assertion that Petitioner had waived his claim. The judge explained that Kopera's false testimony could not have been discovered by defense counsel's exercise of due diligence:

There is no evidence that was presented to this court to demonstrate that Kopera was exaggerating his qualifications prior to Petitioner's trial in 1994. Apparently, no red flags had been raised from Kopera's testimony in other cases that would require a competent defense attorney to question Kopera's pedigree, collegiate record, or the like.
. . . To hold defense counsel to the requirement of a background check of an expert who had testified in scores of cases is unrealistic. Indeed, the State - which should bear some responsibility for its own expert's mendacity - was likewise in the dark about the situation. Why should a greater burden devolve upon the defense?

         Turning to whether Petitioner had proved his entitlement to a new trial based on the newly discovered evidence, the hearing judge noted the absence of a provision in § 8-301 or case law explaining the analysis a court should employ when considering the impact of such evidence. The hearing judge pondered whether a court should "simply excise the false testimony and then, based on the remaining evidence, determine whether the result would have been different" or "consider whether the result would have been different if it was revealed during the trial that Kopera's educational qualifications were exaggerated."

         The hearing judge concluded that the first of the two standards-excision of the false testimony-is the correct standard and, applying that standard, determined that there was no possibility that the verdict would have been different without Kopera's testimony about his education.[4] The hearing judge concluded that the "jury would not have been influenced in any way - much less substantially or significantly - by the lack of testimony concerning Kopera's college education." The judge further reasoned that Kopera's testimony, to which the State during ...

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