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French v. State

Court of Special Appeals of Maryland

October 31, 2019

MARK PHILLIP FRENCH
v.
STATE OF MARYLAND

          Circuit Court for Baltimore County Case No. 03-K-93-4253

          Meredith, Berger, Wells, JJ.

          OPINION

          Meredith, J.

         Mark 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.

         QUESTIONS PRESENTED

         Mr. French presents the following questions for our consideration, which we have reordered, consolidated, and rephrased:[1]

1. Did the circuit court use the incorrect legal standard for reviewing a case in which a state agent had given perjured testimony?
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?

         For the reasons set forth herein, we shall affirm the decision of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Over 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).

         On July 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.

         In 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.

         In 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.

         The 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.

         The 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).

          The 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).

         Pursuant 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 ...

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