Circuit Court for Baltimore County Case No. 03-K-93-4253
Meredith, Berger, Wells, JJ.
French, appellant, appeals from the denial of his petition
for a writ of actual innocence, in which he sought a new
trial pursuant to Maryland Code (2001, 2018 Repl. Vol.),
Criminal Procedure Article ("CP"), § 8-301,
having been convicted by a jury in April 1994 of attempted
first degree murder, robbery with a dangerous weapon, and two
counts of a use of a handgun in the commission of a crime of
violence. Mr. French contends the Circuit Court for Baltimore
County erred in denying his petition that asserted his
convictions were based upon the perjured testimony of the
State's ballistics expert, Joseph Kopera, who testified
falsely regarding his academic credentials.
French presents the following questions for our
consideration, which we have reordered, consolidated, and
1. Did the circuit court use the incorrect legal standard for
reviewing a case in which a state agent had given perjured
2. Did the circuit court abuse its discretion when it found
that, even if it struck all of Joseph Kopera's testimony,
and all related testimony of other witnesses, there was still
not a substantial possibility that the outcome of Mr.
French's trial may have been different?
reasons set forth herein, we shall affirm the decision of the
AND PROCEDURAL BACKGROUND
twenty years ago, Mr. French was charged with committing an
armed robbery of Brian Sherry and the attempted murder of
Baltimore County Police Officer Joseph Beck on October 31,
1993. On April 13, 1994, following a three-day jury trial in
the Circuit Court for Baltimore County, Mr. French was
convicted of attempted first degree murder, robbery with a
dangerous weapon, and two counts of use of a handgun in the
commission of a crime of violence. He was sentenced to life
imprisonment for attempted first degree murder, plus a total
of 35 years for the other convictions. On direct appeal, we
affirmed Mr. French's convictions in an unreported
opinion. French v. State, No. 1277, September Term,
1994 (filed March 28, 1995).
24, 2012, Mr. French filed a motion for a new trial asserting
various claims related to the testimony given by Joseph
Kopera at the 1994 trial. Because the relief was requested
pursuant to CP § 8-301, the circuit court treated Mr.
French's motion for a new trial as a petition for writ of
actual innocence. On May 3, 2013, the circuit court held a
hearing and denied Mr. French's petition. Mr. French
noted an appeal to this Court, which was docketed as No. 488,
September Term, 2013.
October 2016, Mr. French, through counsel, filed a motion in
this Court asking us to remand his case to the Circuit Court
for Baltimore County for reconsideration in light of the
Court of Appeals's opinion that was filed on August 24,
2016, in McGhie v. State, 449 Md. 494 (2016). On
November 22, 2016, we granted the motion, remanded the case
without affirmance or reversal, and stayed the appeal in No.
488, September Term, 2013, to permit Mr. French to petition
the circuit court to reconsider its denial of his actual
innocence petition in light of the Court of Appeals's
intervening decision in McGhie.
McGhie, the Court of Appeals announced the
appropriate analysis for reviewing a petition for writ of
actual innocence in a case in which a petitioner contended
that he was entitled to a new trial because newly discovered
evidence of Mr. Kopera's false testimony about his
academic credentials created a substantial or significant
possibility that the result of McGhie's trial may have
been different. Although the parties in McGhie
agreed the "substantial or significant possibility"
standard "falls between 'probable,' which is
less demanding than 'beyond a reasonable doubt,' and
'might' which is less stringent than probable[,
]" the parties disagreed as to the analyses courts
should employ in applying that standard to a case such as
McGhie's. Id. at 510.
State argued in McGhie that the circuit court judge
hearing the petition for writ of actual innocence, and any
reviewing court, should take a "prospective"
approach; in other words, the court should "hypothesize
whether a new trial without the expert witness's
perjured testimony would result in a verdict different from
that reached at the actual trial." 449 Md. at 510
(emphasis in original). McGhie argued that the hearing judge
considering a petition for writ of actual innocence, and any
reviewing court, should take a "retrospective approach
that considers the impact of the newly discovered evidence at
the trial" at which the petitioner was convicted.
Id. The Court of Appeals examined the plain language
of CP § 8-301(a)(1) and determined that the General
Assembly's word choice, using the past tense, requires
courts to take a retrospective approach. In considering this
issue, the Court of Appeals also drew guidance from its prior
decision in State v. Hunt, 443 Md. 238, 264 (2015),
where the Court explained: "[T]he Circuit Court must
determine whether the new evidence regarding Kopera creates a
substantial or significant possibility that the result of
their trials may have been different." McGhie,
449 Md. at 511.
parties in McGhie further disagreed about the manner
in which the hearing judge should apply the
"retrospective approach." The State asserted that
the hearing judge "need only excise the false testimony
and then determine from the remaining evidence whether there
is a substantial or significant possibility that the result
at trial may have been different." Id. But
McGhie asserted that the hearing judge must decide whether,
"had the jurors been aware of the falsehood,
there is a substantial or significant possibility that the
result of the trial may have been different."
Id. at 511 (emphasis added). The Court of Appeals
agreed with McGhie's argument and held:
The appropriate analysis is not simply to excise the
falsehood, for such an approach, as applied to this case,
ignores the "substantial or significant
possibility" that one or more of the jurors at
Petitioner's trial, had they known of Kopera's false
testimony about his credentials, would have discredited his
testimony in its entirety.
Id. (footnote omitted).
closing paragraphs of the majority opinion in McGhie
provided this instructive summary regarding the proper
analysis of a petition for a writ of actual innocence based
upon the false testimony of Mr. Kopera:
It is important to note that the hearing judge made no
mention of the three witnesses who testified that Petitioner
shot a gun in an unrelated incident on January 23, 1994. We
assume that the hearing judge understood that the testimony
of those lay witnesses had to be discounted, along with
Kopera's ballistics testimony, as the jury would not have
heard the testimony of the lay witnesses save for
Kopera's testimony linking that gun to the crime at
issue. The hearing judge correctly eliminated that lay
witness testimony from his analysis.
We discern no legal error or abuse of
discretion on the part of the hearing judge in
properly analyzing the petition by recognizing the reasonable
possibility that the jury, aware of Kopera's lies about
his academic credentials, would have discounted his testimony
on the merits, as well as the lay witness testimony that
followed from it. Neither did the hearing judge
abuse his discretion in ruling, in the end, that, given the
weight of the evidence presented against him at trial,
Petitioner was unable to prove that Kopera's lies
"create[d] a substantial or significant possibility that
the result may have been different." . . .
Id. at 514 (emphasis added).
to this Court's remand to reconsider Mr. French's
actual innocence petition in light of McGhie, the
Circuit Court for Baltimore County held a new hearing on May
21, 2018. On August 10, 2018, the circuit court denied Mr.
French's petition in a written opinion and order. The
circuit court's opinion set out the pertinent facts that
were presented at Mr. French's trial as follows:
I. Petitioner's Trial
In 1993, Petitioner was charged with Attempted First Degree
Murder, Robbery with a Dangerous and Deadly Weapon, two (2)
counts of Use of a Handgun in the Commission of a Felony,
Burglary (general), and Burglary (breaking and entering at
common law).4 [Footnote 4 in the circuit court's opinion
appeared at this point and stated: The counts as charged were
as follows: Count One (1) - Attempted First Degree Murder;
Count Two (2) - Handgun Use in the Commission of a Felony;
Count Three (3) - Robbery with a Dangerous and Deadly Weapon;
Count Four (4) -Handgun Use in the Commission of a Felony;
Count Five (5) - Burglary (generally); Count Six (6) -
Burglary (breaking and entering at common law).]
Petitioner's jury trial before the Honorable James T.
Smith, Jr. began on April 11, 1994, at which time Petitioner
successfully moved pre-trial to sever the two (2) burglary
counts from the other offenses charged. (Tr., Trial, April
11, 1994, p. 21). The trial concluded on April 13, 1994, when
Petitioner was found guilty and convicted of First Degree
Attempted Murder, Robbery with a Dangerous and Deadly Weapon,
and both counts of Use of a Handgun in the Commission of a
Felony. Petitioner subsequently accepted the State's
offer to place the severed burglary charges on a stet docket.
At the request of Petitioner's counsel, Judge Smith
ordered a Presentence Investigation and held Petitioner's
disposition sub curia.
On May 25, 1994, Judge Smith sentenced Petitioner to the
following: Life on the charge of Attempted First Degree
Murder; ten (10) years on the charge of Robbery with a
Dangerous & Deadly Weapon, to run consecutive to
Petitioner's life sentence; twenty (20) years, the first
five (5) to be served without the possibility of parole, on
one count of Use of Handgun in the Commission of a Felony, to
run consecutive to Petitioner's life sentence; and five
(5) years, to be ...