Circuit Court for Talbot County
Case No. 20-K-00-6884


                                                    REPORTED

                                    IN THE COURT OF SPECIAL APPEALS

                                                 OF MARYLAND

                                                 Nos. 1069 & 1879

                                              September Term, 2016

                                  ______________________________________


                                             JONATHAN D. SMITH

                                                         v.

                                             STATE OF MARYLAND

                                  ______________________________________

                                        Meredith,
                                        Graeff,
                                        Reed,

                                                    JJ.
                                  ______________________________________

                                             Opinion by Graeff, J.
                                  ______________________________________

                                        Filed: July 26, 2017


                                  * Judge Christopher B. Kehoe did not
                                  participate, pursuant to Md. Rule 8-605.1, in the
                                  Court’s decision to report this opinion.
       On January 5, 1987, 64-year-old Adeline Wilford was stabbed to death in the

kitchen of her farmhouse. The investigation stalled for years, but on March 1, 2001, a jury

in the Circuit Court for Talbot County convicted Jonathan D. Smith, appellant, of felony

murder and daytime housebreaking. The circuit court subsequently sentenced him to life

imprisonment. 1

       Approximately 10 years later, after appellant’s effort to reverse his convictions by

appeal and post-conviction relief were unsuccessful, the Innocence Project in New York

filed Maryland Public Information Act (“MPIA”) requests regarding this case. Based on

information received from those requests, appellant filed a Petition for Writ of Actual

Innocence and a Motion to Reopen Post-Conviction Proceedings. 2 The circuit court denied

both the petition and the motion.

       On appeal, appellant presents several questions 3 for this Court’s review, which we

have consolidated and rephrased, as follows:


       1
        Two others were implicated in the murder. David Faulkner was tried separately,
and he was convicted of murder. Ray Andrews was found guilty, pursuant to a plea, of
involuntary manslaughter.
       2
         Appellant referred to his petition as an “application,” but the circuit court referred
to this pleading as a “petition,” and we shall do the same.
       3
           Appellant’s original questions presented were as follows:

       1. Did the circuit court err in finding that Mr. Smith’s evidence of innocence
          was not newly discovered?

       2. Did the circuit court err in finding that the newly discovered evidence did
          not demonstrate a substantial or significant possibility of a different
          result?
      1. Did the circuit court abuse its discretion in denying appellant’s Petition
         for Writ of Actual Innocence?

      2. Did the circuit court abuse its discretion in denying appellant’s Motion to
         Reopen Post-Conviction Proceedings?

      For the reasons set forth below, we shall vacate the judgments of the circuit court

and remand for further proceedings.

                 FACTUAL AND PROCEDURAL BACKGROUND

                                            I.

                           The Murder of Adeline Wilford

      On January 5, 1987, at approximately 3:00 p.m., Jack Ripley, Ms. Wilford’s friend,

discovered Ms. Wilford’s body in her kitchen and called the police. Ms. Wilford had been

photographed by her bank’s security system driving her car through the bank drive-through

that day at 2:10 p.m., and therefore, the murder appeared to have been committed at some

point in the 50-minute period of time between when she left the bank and when her body

was found.

      Maryland State Police (“MSP”) officers responded to the scene shortly after the call.

A window on the west side of the house was propped open with a stick. The police believed

that entry to the home had been made through that window, which led to a utility room.




      3. Did the circuit court err in failing to reopen Mr. Smith’s postconviction
         proceedings in the interests of justice?

      4. Did the circuit court err in failing to vacate Mr. Smith’s convictions due
         to multiple Brady violations and his counsel’s ineffective assistance?

                                           -2-
       When the police entered the house, they saw that the keys to the house were still in

the door lock, and Ms. Wilford was lying face up on the floor. She was wearing a blue

coat, and she had a set of glasses on a cord around her neck. There were numerous stab

wounds to her hands and face, and a large butcher knife with an eight-inch blade was

“shoved right through the side of [her] cheek and head.” There were groceries on the

kitchen table that had not been taken out of the bag, which suggested that she had surprised

someone in the house.

       The officers performed a sweep of the house to ensure that no one else was inside.

Items inside the home seemed “out of place,” and dressers were opened with “stuff taken

out,” which suggested that “someone had broken into the house and was looking for money

or other goods.” The police lifted fingerprints and palm prints from various places in the

house, including the outside of the utility room window and the washing machine in the

utility room.

       A number of items were missing from Ms. Wilford’s residence, including the tan

pocketbook that Ms. Wilford was seen carrying that day, Ms. Wilford’s custom-made

diamond and sapphire ring, and her wallet containing credit cards and an undetermined

amount of cash. The police did not recover any of these items.

                                            II.

                               Subsequent Investigations

       After a number of years passed and the murder investigation had stalled, the victim’s

son, Charles Curry Wilford, encouraged the police to reopen the investigation. He offered



                                            -3-
a reward of $10,000 for information leading to the arrest of the perpetrator(s) and an

additional $15,000 if there was a conviction.

       Sergeant John Bollinger met with Beverly Haddaway on January 14, 2000, and she

told him that her nephew, appellant, and two others had committed the crime.

Ms. Haddaway stated that, approximately two years after the incident, appellant confessed

to her that he had killed Ms. Wilford.

       Ms. Haddaway agreed to wear a “wire” and surreptitiously record appellant. On

April 11, 2000, she recorded a conversation with appellant that occurred in a shed behind

her house. During that conversation, Ms. Haddaway asked appellant about the day she saw

him on “Kingston Road when that old woman got murdered and you told me the dog bit

ya and you stabbed it.” She asked who killed the woman. After appellant initially stated,

while laughing, that he did not know, 4 the following occurred:

       [BH:]       Why were you in that field with blood all over ya? And they take,
                   I seen ya goin’ up the road that day, you know it? And you had a
                   blue coat on and Ray [Andrews] and you both had huntin’ hats on.
                   And then when I come back by there and you were in that cornfield
                   and you said that blood come off a dog, but I think that you held
                   her and David [Faulkner] killed her or one of you three done it.

       [JS:]       They never found out yet have they?

       [BH:]       I know, that’s why I want to know ‘fore I die. I seen ya, did I ever
                   tell anybody? You know I ain’t gonna tell on ya, goddamn, you’re
                   my blood. I just wanted to know if you done it. I didn’t really
                   think you did. I think crazy David did.

       [JS:]       It’s a secret. It’s a secret when one person knows[.] It aint [sic] a
                   secret when two people know.


       4
           Beverly Haddaway mentioned twice that appellant was laughing.

                                              -4-
      [BH:]     Well, the three of you know.

      [JS:]     Right, there’s only two left.

      [BH:]     It was you and Ray and David.

      [JS:]     Ray wasn’t there until after it was over.

      [BH:]     Where was he?

      [JS:]     Down the road.

      [BH:]     Ray was right with you in the goddamn field.

      [JS:]     Yeah. That was after it was all done with.

      Ms. Haddaway asked again who killed the victim. When appellant responded that

he could not remember, Ms. Haddaway stated: “Jonathan, you’re lying ‘cause you’re

laughing.” The conversation continued, as follows:

      [BH:]     Well why do you think I would tell anybody. I ain’t told nobody
                in 12 goddamn years. I just wanted to know.

      [JS:]     (Inaudible) she had money.

      [BH:]     Huh?

      [JS:]     She had money.

      [BH:]     She had money?

      [JS:]     Uh huh.

                                          ***

      [BH:]     [Dick] said that he’d heard three or four times that you had tried
                to get somebody to . . . . But, ah . . . .

      [JS:]     It’s been a long time. I don’t even remember it no more.

      [BH:]     Oh. You know whether you done it or David done it if Ray
                weren’t there. I’ll tell ya reason I ask. . . . [T]his lady that lived
                over Ridgley . . . . told me that David’s foster mother had
                something and . . . the old woman said that they had bought David

                                           -5-
                 out of a murder. And I was wondering, you know, if she knew
                 anything or did she tell you, I just wondered if he did it or you.
                 Tell me. I ain’t gonna tell nobody, I just want to know (inaudible).

       [JS:]     He didn’t do it.

       [BH:]     You done it.

       [JS:]     Uh huh.

       [BH:]     You said you did it before. Why did you kill her? I thought she
                 let you in there when you went fishin’[.] . . . What, you didn’t
                 know her?

       [JS:]     I knew she had money.

       [BH:]     You knew she had money.

       [JS:]     She had money.

       [BH:]     But you didn’t get none?

       [JS:]     Uh huh.

       [BH:]     You did get it.

       [JS:]     Uh huh.

Appellant then stated that the men got $60,000, and they split it three ways.

       In response to Ms. Haddaway’s question regarding why Mr. Faulkner had

appellant’s coat, appellant said that Mr. Faulkner “got cut” and had too much blood on his

coat, so he got rid of it. Appellant then stated that both he and Mr. Faulkner had stabbed

the victim, and the conversation continued as follows:

       [BH:]     [T]hat day you told me I thought no, he ain’t done it, that stupid
                 David if he, anybody done it.

       [JS:]     If there’s enough money I’ll do it.

       [BH:]     Enough money. Well, it’s alright if you don’t get caught.



                                            -6-
       [JS:]     I won’t get caught.

       On April 25, 2000, the police brought appellant, Mr. Faulkner, and Mr. Andrews to

the Easton MSP barrack for questioning. Appellant was advised of his rights, and although

he initially “almost seemed happy to be answering [their] questions,” his demeanor

changed when Sergeant Jack McCauley asked if appellant and Mr. Faulkner had been

involved in any criminal activity together. At that point, appellant “became somewhat

withdrawn, dropped his head . . . . [a]nd he became very evasive, fidgety in his seat.”

Appellant denied any involvement with the murder of a woman. He acknowledged his

conversation with Ms. Haddaway, but he claimed that he admitted involvement in the

murder because he wanted Ms. Haddaway to think that he was a tough person. 5

       Sergeant Bollinger and another officer interviewed appellant again later that day.

Sergeant Bollinger advised appellant of his Miranda rights, giving him a copy of the form

to “follow along as [Sergeant Bollinger] was reading it to him.” Before Sergeant Bollinger

asked any questions, appellant volunteered his narrative of what had happened, and

Sergeant Bollinger listened for several minutes without interrupting. Appellant stated that

“he, David Faulkner, [and] Ray Andrews, had gone to the residence,” and “he and

David Faulkner broke into the residence,” but Mr. Andrews stayed outside.           While

appellant and Mr. Faulkner were in the house, Ms. Wilford returned, and when appellant



       5
        Sergeant Jack McCauley testified that he was aware that appellant had a hearing
impairment.     Whenever appellant did not understand what he was saying,
Sergeant McCauley would determine whether it was because he did not hear the question
or “simply did not understand the question,” and he would then repeat or rephrase the
question.

                                            -7-
“noticed her she was standing in front of him screaming and . . . David Faulkner was

stabbing her.” Appellant stated that Ms. Wilford was wearing a blue coat and had glasses

on a chain around her neck, and “she was fighting and moving her arms about.” As

Mr. Faulkner was stabbing Ms. Wilford, she fell back on appellant, getting blood on his

shirt. Sergeant Bollinger then asked appellant if he had stabbed Ms. Wilford, and at that

point, appellant asked for an attorney.

       Mr. Andrews also talked to the police. He told Sergeant Joseph Gamble that

appellant and Mr. Faulkner discussed burglarizing Ms. Wilford’s house, but he did not

want to, so they told him to stay in the wooded area. Approximately 20 minutes after

appellant and Mr. Faulkner approached the house, Mr. Andrews saw a vehicle pull up the

Wilford driveway. A few minutes later, appellant and Mr. Faulkner ran from the house.

Appellant had blood on his shirt. The three men then ran through woods and fields until

they reached Black Dog Alley, where they saw Ms. Haddaway driving down the road.

Ms. Haddaway asked appellant why he had blood on his shirt, and appellant replied that he

had been attacked by a dog. The three men then went to appellant’s house, where appellant

changed his clothes. 6 Appellant and Mr. Faulkner removed money from their pockets and

divided it up. The next day, appellant told him that the woman at the house was dead, and

Mr. Andrews should never tell anybody about it.




       6
         Mr. Andrews initially stated that they did not get a ride to appellant’s house. When
Sergeant Joseph Gamble asked if there was a possibility that they got a ride, Mr. Andrews
said that he did not think so, but he was not sure because that part of the day was not clear
in his mind.

                                            -8-
                                            III.

                                    Appellant’s Trial

       Appellant’s four-day trial began on February 26, 2001. In addition to the evidence

discussed, supra, Alexander Mankevich, a fingerprint expert for the Maryland State Police

Crime Laboratory, testified that he did not match any fingerprints left at the scene to any

known suspects. He further explained how a fingerprint typically is left on a surface, why

fingerprints might not be located, and the inability to determine the length of time a

fingerprint has been on any surface. Sergeant Bollinger testified that, although fingerprint,

DNA, and hair samples were taken from appellant, those samples did not match any of the

evidence the police had collected from the crime scene.

       Ms. Haddaway testified that, on January 5, 1987, she was driving on Black Dog

Alley and saw her nephew, appellant, emerge from a cornfield with Mr. Faulkner and

Mr. Andrews. 7 She pulled over to the side of the road, and appellant approached her truck.

His glasses were broken and repaired with tape or a bandaid, and he was wearing a white

t-shirt that had “red dots” around the collar. Ms. Haddaway asked him what he was doing

there. 8 Appellant stated that he was waiting for somebody, and he thought that person was

in the truck Ms. Haddaway was driving. When asked again what the men were doing,



       7
         Sergeant Gamble testified that Ms. Wilford’s house was approximately 1.5 to 2
miles from Black Dog Alley.
       8
        Ms. Haddaway was aware that appellant had a hearing impairment, so she mouthed
her words slowly so he could read her lips. When appellant could not understand what she
was saying, he would “go uh-huh or what,” and Ms. Haddaway would repeat what she had
said.

                                             -9-
appellant said that he had just killed a dog. Ms. Haddaway called appellant a liar.

Appellant started laughing and stated: “Yes I did. I killed him cause [sic] it bit me.” He

told her that he had stabbed the dog. Another truck then pulled up behind Ms. Haddaway,

and the three men got into the truck. As Ms. Haddaway drove away, she saw a number of

police vehicles and an ambulance driving fast on Black Dog Alley and then turning left

onto Kingston Road.

       Mr. Andrews testified, consistent with his statement to the police, that he waited in

a wooded area while appellant and Mr. Faulkner went to Ms. Wilford’s house, and after

they came running back, the three men ran until they arrived at Black Dog Alley and saw

Ms. Haddaway in her vehicle. 9 Ms. Haddaway asked appellant what happened to him, and

appellant responded that he had been attacked by a dog. Mr. Andrews believed that

someone was with Ms. Haddaway that day, but he was “not sure if it was a man or not.”

The three then went to appellant’s house. 10 Appellant and Mr. Faulkner did not talk about

what happened, but they pulled out of their pockets a large quantity of cash, approximately

$300 to $400. Mr. Andrews did not get any of the money. Appellant and Mr. Faulkner

never talked to him about what occurred that afternoon. When Mr. Andrews saw a report

in a newspaper the next day, appellant and Mr. Faulkner told him “to keep quiet.”




       9
            Mr. Andrews testified that he was appellant’s brother-in-law; they “married two
sisters.”
       10
          Mr. Andrews testified that he told the police that they walked to appellant’s house.
He subsequently testified, however, that he told the police that he did not recall if he got a
ride that day.

                                             -10-
       On cross-examination, Mr. Andrews acknowledged that, in exchange for his

testimony against appellant and his agreement to enter an Alford plea to the crime of

involuntary manslaughter for his role in Ms. Wilford’s murder, the prosecutor would

recommend that he be sentenced to five years. 11 Mr. Andrews testified, however, that he

had not been promised any financial reward or incentive to testify.

       Michael Snow, a former Baltimore City police officer who had been convicted of

bank robbery, testified that he was housed with appellant in the same protective custody

ward at the Talbot County Detention Center. At one point during their detention, he asked

appellant if he really killed “that lady.” 12 Appellant “just looked at [him] and said uh-hum.”

When Mr. Snow asked how appellant killed her, appellant “had his hand kind of just folded

like if he was holding something,” and he made stabbing motions. When Mr. Snow asked

appellant why he killed the woman, appellant stated that “she was an old lady” who

“startled him when she came in.” Appellant explained that “he was fighting with her trying

to get away” when “she bit him,” and he then “went crazy.”




       11
          “An Alford plea . . . lies somewhere between a plea of guilty and a plea of nolo
contendere. Drawing its name from North Carolina v. Alford, 400 U.S. 25 (1970), such a
plea is a guilty plea containing a protestation of innocence.” Bishop v. State, 417 Md. 1,
19 (2010) (citations and quotation marks omitted).
       12
           Michael Snow testified that, at the time, he was aware that appellant was charged
with murdering Ms. Wilford, noting that it was “pretty much common knowledge in the
facility on who’s charged with what,” and he had read articles about the crime and “the
substance of a tape recorded . . . conversation” that appellant was trying to exclude from
his trial.


                                             -11-
       Mr. Snow testified that he did not receive a plea deal or anything else in exchange

for his testimony. He stated that he testified against the advice of his attorney because he

found what appellant said to him “appalling.”

       After the State concluded its case-in-chief, the defense recalled Ms. Haddaway.

Defense counsel questioned her about inconsistencies between her testimony and the police

report of her conversation with Sergeant Bollinger on January 17, 2000. Ms. Haddaway

stated that a “lot of things that they wrote down [were] wrong.” 13

       Ms. Haddaway acknowledged that she had visited Mr. Andrews in jail. There were

occasions that Mr. Andrews’ lawyer was present when she went to visit him.

       Ms. Haddaway also testified that she received a $10,000 deposit on a $25,000

reward for providing information that led to an arrest. The police told her that, to get the

$25,000 reward, all she had to do was testify, which she agreed to do “as long as [she could]

tell the truth and only the truth.”

       On the last day of trial, appellant testified. He recalled his April 11, 2000, recorded

conversation with Ms. Haddaway, but he stated that the “whole time [he] did not ever know

what she was saying, referring to or what she was talking about or nothing.” He denied

admitting to Ms. Haddaway that he killed Ms. Wilford. Although he did tell her that “all




       13
          Ms. Haddaway did acknowledge that her statement to the police that she drove to
Glen Burnie on January 5, 1987, to pick up an insurance check, and she was driving down
Black Dog Alley with Thomas Marshall, was incorrect. She testified that she subsequently
realized that she actually had gone to Chestertown that day with Susan Fitzhugh, and they
had stopped off at Ms. Fitzhugh’s mother’s house, who lived in Black Dog Trailer Park
nearby.

                                            -12-
three got the money,” and they “all split $20,000 apiece,” that statement was not true. He

testified that he lied to Ms. Haddaway because she kept asking him questions “about

something that happened that I had no knowledge [of]” and “that was the only way [he]

could think of to get her to leave [him] alone.”

       Appellant also testified about his interview with Sergeant Bollinger. He stated that

he could not hear the recording Sergeant Bollinger tried to play for him. Sergeant Bollinger

then advised that if he did not “come clean you’ll never, ever see your wife or your kids

again.” At that point, and because Sergeant McCauley told him that he would see appellant

“strapped down and [given] lethal injection,” he told Sergeant Bollinger that he “did it,

David did it. Ray was there. I didn’t know what else to do.”

       Appellant acknowledged that he was placed in protective custody with Mr. Snow.

He denied, however, that he told Mr. Snow that he killed Ms. Wilford or that he made

“stabbing motions” with his hand.

       Appellant denied taking part in Ms. Wilford’s murder. He testified that he was not

with Mr. Faulkner and Mr. Andrews at the time because he “did not know neither of the

(inaudible) at all, neither one.” He also denied seeing Ms. Haddaway on Black Dog Alley

that day.

       Sergeant McCauley was recalled as a rebuttal witness for the State. He testified that

he had reviewed various newspaper articles from 1987 through 1999, and none of the

articles that he reviewed contained a description of what Ms. Wilford was wearing when

she was killed.



                                            -13-
       As indicated, on March 1, 2001, a jury found appellant guilty of felony murder and

daytime house breaking.

                                            IV.

                            Subsequent Procedural History

       On March 13, 2001, appellant filed a motion for new trial, arguing that “exculpatory

DNA evidence was withheld from the defense,” specifically that DNA analysis of debris

taken from under the victim’s fingernails was not a match for appellant or Mr. Faulkner.

The circuit court denied the motion.

       On appeal, this Court rejected appellant’s claims of error during the trial, but we

concluded that the circuit court erred in denying appellant’s motion for a new trial without

a hearing, and therefore, we remanded for a hearing on the motion. Smith v. State, No.

688, Sept. Term, 2001 (filed Jan. 17, 2002). The Court of Appeals subsequently affirmed.

Smith v. State, 371 Md. 496 (2002).

       On remand, defense counsel abandoned the argument regarding the withheld DNA

evidence, and instead argued that appellant had been “set up” by Ms. Haddaway and

Mr. Andrews. Defense counsel argued that, Mr. Andrews’ attorney, Grayson Eckel, had a

conflict of interest because he represented: (1) Mr. Andrews in the criminal case regarding

Ms. Wilford’s murder; (2) Lacy Janda, Ms. Haddaway’s daughter, in an estate matter

addressing whether appellant or Ms. Janda would inherit appellant’s father’s property; and

(3) Ms. Haddaway in a civil suit against Ms. Wilford’s son, regarding the reward money.

The circuit court denied the motion, stating that the argument that the dual representation



                                           -14-
suggested that Mr. Eckel exercised any influence against Mr. Andrews on behalf of

Ms. Haddaway was “conjecture.” This Court affirmed. Smith v. State, No. 1184, Sept.

Term, 2003, slip op. at 7-8 (filed Nov. 4, 2004).

       On September 28, 2005, appellant, an unrepresented litigant, filed a Petition for Post

Conviction Relief. On April 13, 2009, the circuit court denied his petition, and this Court

subsequently denied his application for leave to appeal. Smith v. State, No. 850, Sept.

Term, 2009 (filed June 9, 2010). On December 27, 2011, appellant, again unrepresented,

filed a motion to reopen post-conviction proceedings, which the court subsequently denied.

                                             V.

             Petition for Writ of Actual Innocence and Motion to Reopen

       In 2011, the New York Innocence Project filed MPIA requests on behalf of

appellant. 14 A paralegal with the Innocence Project visited MSP, and she observed a

number of “tape cassettes” in the boxes of evidence. Upon request, and after other legal

maneuvers, MSP produced copies of the tapes, which contained several recorded

conversations between Sergeant Bollinger and Ms. Haddaway (“the Bollinger-Haddaway

tapes”).

       On August 2, 2013, appellant filed a Motion to Reopen Postconviction Proceeding,

arguing that, “based on newly-discovered and otherwise-suppressed evidence,” “the State

violated his Due Process rights by withholding exculpatory evidence and affirmatively




       14
          In 2012, the Mid-Atlantic Innocence Project filed a Public Information Act
request on behalf of Mr. Faulkner.

                                            -15-
misleading both [appellant’s] prior counsel and the jury on material issues in the case.”

Specifically, he pointed to his discovery of the Bollinger-Haddaway tapes, and the State’s

alleged wrongful withholding of “DNA test results showing a foreign profile on the

victim’s fingernails from which all defendants were excluded.” He asserted that these

violations, in addition to ineffective assistance of counsel, warranted reopening his case.

       As explained in more detail, infra, Mr. Mankevich subsequently entered the

unidentified palm prints from Ms. Wilford’s residence into the Maryland Automated

Fingerprint Identification System (“MAFIS” or “AFIS”). He determined that Tyrone

Anthony Brooks (“Ty Brooks”) was the source of the palm prints found on Ms. Wilford’s

washing machine and on the outside of the utility room window. 15

       On June 11, 2015, appellant filed a petition for writ of actual innocence. In his

petition, and at the subsequent hearing, he asserted three claims of newly discovered

evidence: (1) the identification of Ty Brooks as the source of the palm prints; (2) the

recorded conversations between Ms. Haddaway and Sergeant Bollinger; and (3) statements

by an eyewitness that he saw a vehicle at Ms. Wilford’s house at approximately 2:00 p.m.

on the day of the murder.




       15
          Appellant subsequently filed a supplement to his motion to reopen post-
conviction, raising two new categories of alleged newly discovered evidence: (1) a
“database comparison [which] resulted in the identification of Ty Brooks as the source of
palm prints at the point of entry to the crime scene”; and (2) “recently disclosed files from
the Maryland State Police (“MSP”) that contain additional exculpatory tape recorded
statements by Beverly Haddaway as well as other documents that further undermine
Haddaway’s credibility.”

                                            -16-
       The circuit court consolidated the hearings on appellant’s and Mr. Faulkner’s

petitions and motions. The court issued an order detailing the order of presentation, which

stated as follows:

       I.     Opening Statements limited to the Petitions for Writs of Actual
              Innocence;

       II.    Presentation of evidence in support and rebuttal of Petitions for Writs
              of Actual Innocence;

       III.   Closing Arguments limited to the Petitions for Writs of Actual
              Innocence;

       IV.    Ruling by the Court on the Petitions for Writs of Actual Innocence (or
              announcement that decision will be taken under advisement);

       V.     If the Court does not grant or defers ruling on the Petitions for Writs
              of Actual Innocence and provided there is time remaining, the Court
              will entertain proceedings regarding Petitioners’ Motions to Reopen
              their prospective Post-Conviction Petitions starting with opening
              statements;

       VI.    Presentation of evidence/information in support of rebuttal of Motion
              to Reopen Post Conviction Proceedings[; and]

       VII.   Closing Arguments limited to the Motion to Reopen Post Conviction
              Proceedings.

       A seven-day evidentiary hearing began on April 11, 2016. We will discuss the

evidence as it relates to the various claims raised by appellant.

                                             A.

                              The Utility Room Palm Prints

       Mr. Mankevich testified that, after the police discovered the palm prints on the

outside of the utility room window and on the washing machine at Ms. Wilford’s residence,

the local MSP implemented a policy, in several jurisdictions, of collecting palm prints from


                                            -17-
all arrestees, on the chance that, if the perpetrators were engaging in a pattern of burglaries,

they might return to the area and commit more offenses. 16              From 1987 to 2000,

Mr. Mankevich performed 72 manual comparisons of the prints lifted from Ms. Wilford’s

residence.

       In October 2008, the State’s vendor for the MAFIS system “went online” with the

ability to perform electronic fingerprint searches, and in 2009, the vendor added the ability

to perform electronic palm print searches. The system uses an algorithm that performs a

“statistical analysis of the minutia[e]” and creates a score for possible candidates, which

are then listed and ranked by the closeness of the match. Mr. Mankevich explained that,

before the MSP Crime Laboratory gained access to MAFIS, there was “no systematic way

to follow through” with an unidentified print. “So if a print was unidentified at that time it

would remain sealed as evidence until another name got forwarded. There was no follow

through with it.”

       In August 2013, appellant and Mr. Faulkner filed a motion for post-conviction

comparison of latent fingerprints, requesting that the court order the State to enter the

unidentified latent palm prints found at the crime scene into the MAFIS database to

determine whether an unknown suspect could be identified. The State opposed this motion,

stating that appellant failed to cite any authority that gave the court the power to order the

State to provide such testing.


       16
          Corporal Roger Layton explained that the MSP directed the agencies in
Dorchester, Talbot, and Caroline counties to collect palm prints after every arrest, but he
was not sure whether the policy “included Centreville and Kent County.”

                                             -18-
      On October 16, 2013, however, the Office of the State’s Attorney for Talbot County,

prior to a ruling by the court, contacted Mr. Mankevich and asked him to run the palm

prints lifted from the crime scene through the MAFIS database. He retrieved the lift cards

from the Hall of Records and personally put them into the MAFIS system. After receiving

the computer generated list of potential matches, Mr. Mankevich compared Ty Brooks’

known prints to the palm print taken from Ms. Wilford’s washing machine and the palm

print taken from the bottom pane of the “point of entry” utility room window. He

concluded that Ty Brooks was the source of those prints. 17

      On March 22, 2016, Mr. Mankevich received a request from appellant’s defense

counsel to compare the remaining prints with known samples from William (“Boozie”)

Clarence Thomas.      Of the eight remaining “unidentified latent print impressions,”

Mr. Mankevich eliminated Mr. Thomas as the source for seven of the prints, but he was

unable to perform a full comparison of the eighth print, which was taken from the porch

door. The methodology used to perform a manual comparison was the same that he used

in 2000, i.e., the science had been the same since 1987, and the “development of the AFIS

system played no part in [his] ability to examine the prints and [make a] comparison for

[Mr.] Thomas.”




      17
         Alexander Mankevich testified that, as a matter of policy, “a manual examination
is done that is verified before we report the AFIS match out as an official result.”
Mr. Mankevich excluded Ty Anthony Brooks as the source of prints from other places in
the house.

                                           -19-
       On cross-examination, Mr. Mankevich testified that “[p]art of the mission of

Maryland State Police is to provide forensic services to any legitimate party requesting,

whether it’s the defense part or the [S]tate.” When asked whether he would have compared

prints of Mr. Thomas or Ty Brooks to the latent prints recovered if appellant had asked, he

responded that he would have if the person requesting had “investigative authority,” which

could include the Public Defender’s Office, private defense attorneys, and the Innocence

Project. Mr. Mankevich agreed that, except in cases where he received a match “generated

by the AFIS system,” all he needed to make a comparison between Ty Brooks’ hands and

the latent prints was “an inked print” from Ty Brooks’ hands and “a request to do so,”

which could have been initiated by appellant.

       With respect to the process of comparing latent print lifts, Mr. Mankevich explained

that he looked for “artifacts in the background,” such as “scratches, nicks, cuts, those sort

of things,” which “could be matched from image to image.” The State then followed up

on Mr. Mankevich’s testimony that, with respect to the prints here, he “noticed rain drops

or something.” Mr. Mankevich stated: “Right, moisture, that would be in the second group

of impression[s] so that moisture that gets on the background, whether it’s again raindrops

or it could be spray from Windex. Some liquid source will leave a distinguishing mark

that later gets developed with powder.” He explained that in one group of prints, he saw a

“U shaped feature in the center,” which he believed was “caused by extraneous moisture

being present that the powder had adhered to.” The following then occurred:




                                            -20-
       [STATE:] So the existence of raindrops after the print was left?

       [MR. MANKEVICH:] Correct.

       [STATE:] Which would indicate the print was left before it rained. . . .

       [MR. MANKEVICH:] You really can’t make that age, timeline association.

       [STATE:] Okay, let’s talk about that. You can’t tell whether it was before
       it rained or after it rained.

       [MR. MANKEVICH:] That’s correct.

       [STATE:] You couldn’t tell how long a print had been there?

       [MR. MANKEVICH:] There is no forensic technique to allow you to date a
       fingerprint.

       [STATE:] You cannot testify to a degree of scientific certainty at all about
       the timing of these prints relative to the date of collection?

       [MR. MANKEVICH:] Again we have no reliable consistent validated
       forensic techniques that can indicate the lifetime of a latent print.

       Kate Wilford Carraher and Evelyn Wilford Lippincott, the daughters of

Ms. Wilford, testified that, in the months leading up to the murder, the window in the utility

room was propped open with “a stick” because there was a “persistent,” “God awful” odor

that smelled “like a family of dead mice.” The window being open was particularly

memorable to Ms. Lippincott because Ms. Wilford had the window open “in the middle of

the winter,” and she gave her mother “a hard time about it.”

       Mr. Butler, a member of the MSP evidence collection unit, noted that, if the utility

room window was opened, the lower portion where a palm print was found would be

“pushed up” behind the upper portion, rendering the exterior panes “[i]naccessible to

anyone’s hand.”



                                            -21-
                                             B.

                                 The Keene Observation

       Sergeant Sabrina Metzger testified about a police report, dated June 12, 1987, in

which Sergeant James Harmon reported that he was contacted by Daniel (“Danny”) O’Neil

Keene on January 9, 1987. That police report stated as follows:

       Same date [January 9, 1987,] the writer [Sergeant Harmon] and [Sergeant
       Samuel] Shelly were contacted at the Easton Barrack by Danny Keene. He
       reported seeing a silver colored vehicle he believed to be an Olds Cutlass.
       He was taken to the victim’s residence, at which time he showed the writer
       the location he observed the vehicle parked. The location was backed in next
       to the front porch, next to several bushes, bearing a similar type leaf as found
       in the living room floor of the victims [sic] house. He was [driven] around
       Easton, and upon observing a vehicle at the Bonanza Rest[a]urant, he stated
       it was a vehicle similar to the one he observed. He had picked out a 77 Olds
       Cutlass. Refer to [Sgt.] Shelly’s supplements for further details of this
       individuals [sic] interviews.

Mr. Keene’s observation also was noted in a case review complied by Sergeant Bollinger. 18

Neither document, however, specifically noted when Mr. Keene observed the Oldsmobile

Cutlass.

       Mr. Keene testified that, in January 1987, he lived in Trappe, Maryland, and he was

working as a hunting guide. He rented a farm next to Ms. Wilford’s house. He often drove

by Ms. Wilford’s house, but he did not know her. On the afternoon of January 5, 1987,

between approximately 1:50 and 1:55 p.m., he drove past Ms. Wilford’s residence. It was

sunny, and he looked at Ms. Wilford’s property for geese. Although he had driven past



       18
       Marie Hill, the trial prosecutor, testified that this case review, a binder designated
Respondent’s Exhibit 7, was disclosed to trial defense counsel.


                                            -22-
Ms. Wilford’s house multiple times, he had never seen any “signs of life.” On that

occasion, however, he looked and saw some “clothes on [a] line” next to and behind

Ms. Wilford’s house, and he thought to himself, “well somebody does live there.” After

the clothes on the line drew his attention to the property, he began “looking all around.”

As he reached the point where some “little trees start thinning out,” he saw a “jacked up”

Oldsmobile Cutlass Supreme “[b]acked up against” Ms. Wilford’s house. 19 The car was

parked “very close” to the house, “[l]ike it was backed in.

       Approximately four days later, Mr. Keene reported his observation to the police.

They interviewed him at the Easton barrack and drove him around Easton until he spotted

a car “that resembled the one that was parked in the lane.”

       The police also had Mr. Keene hypnotized on February 9, 1987, in an attempt to

develop more information about his observation. A copy of a recording of this hypnosis

session, which originally was recorded on Betamax videotapes, was provided to appellant

in 2016. During the actual innocence hearing, the beginning of the video was played, in

which Sergeant Shelly explained the attempt to get more information regarding

Mr. Keene’s statement that he saw a vehicle at the residence of Ms. Wilford at

approximately 1:55 p.m. on the date of the murder.




       19
          Corporal Layton similarly noted that there was a line of trees that ran along
Kingston Road that ended approximately at the point where Ms. Wilford’s driveway
connected to the road. Although Danny Keene testified that he saw the Cutlass Supreme
once the “little trees start[ed] thinning out,” Corporal Layton testified that the line of trees
would “interfere with the line of sight” between the road and the front porch of the
residence.

                                             -23-
          Mr. Keene denied asking for any money in exchange for his assistance. He testified

that he “[n]ever heard another word” about the murder until years later, when he was

approached by appellant’s post-conviction counsel.

          On cross-examination, the State asked Mr. Keene if George Merritt was with him

when he witnessed the car parked at Ms. Wilford’s house. He did not “remember anybody

being in that truck with [him]” at that time, but when confronted with a recording in which

he told the police that Mr. Merritt was with him when he saw the car, Mr. Keene stated: “I

guess he was, you know.” Mr. Keene stated that, notwithstanding his inability to recall

other circumstances, his observation of the Oldsmobile was particularly memorable

because that was the first time he had seen a car parked there, and the car had a distinctive

appearance, i.e., it was “jacked up. She had chrome wheels. She had whitewalls. Split

grill.”

                                              C.

                      James Brooks Implicates Others in the Murder

          James Brooks, Jr., testified that he grew up in Trappe, Maryland, and he was a

longtime friend of Mr. Thomas. At some point around 1991, he contacted MSP and

advised that Mr. Thomas had told him that he and Ty Brooks had murdered Ms. Wilford. 20




          20
         Sergeant Sabrina Metzger testified that James Brooks was identified in police
records as a confidential informant.


                                             -24-
      James Brooks testified, consistent with his statement to the police, that Mr. Thomas

confessed to him in late 1989 or early 1990. 21 Mr. Thomas told him that he had borrowed

his uncle’s car to get to Ms. Wilford’s house, Ms. Wilford “might have wrote [sic] down

the tag number” of the car when she came home that day, and Mr. Thomas instructed him

not to tell anyone about his confession. When asked if he could recall if Mr. Thomas said

where that the victim had been stabbed during the murder, he said “it might have been in

the back.”

      As discussed in more detail, infra, the court sustained the State’s objection to the

question whether Mr. Thomas had named another individual involved in breaking into the

house, on the ground that this hearsay statement did not fall within the hearsay exception

for a statement against penal interest because the “particular identification of who the

accomplice is . . . goes beyond [a] statement against penal interest.” James Brooks

subsequently testified, without naming the person, that Mr. Thomas told him that he was

with another person when Ms. Wilford was murdered. James Brooks stated that he was

acquainted with Ty Brooks, and Mr. Thomas and Ty Brooks were brothers-in-law and

knew each other in 1987.

      Counsel for Mr. Faulkner subsequently moved to admit into evidence

James Brooks’ written statement to the police. In this statement, he explained that he and




      21
      Appellant and Mr. Faulkner called Mr. Thomas to testify, but he invoked his Fifth
Amendment right against self-incrimination.

                                          -25-
Mr. Thomas were on a drinking binge one night, and Mr. Thomas confessed to killing

Ms. Wilford, as follows:

       [H]e said that him and a guy named Ty Brooks were in her house stealing
       and the lady came home early on them[.] [H]e had borrowed his sister’s car
       [and] she noticed the car parked near her house and wrote the tag # of the car
       down before she entered the house[.] [H]e took a butcher knife I believe
       [and] hid behind the kitchen door[.] [W]hen she came in he stabbed her to
       death and left her for dead.

The circuit court admitted the statement, over the State’s objection, but it ruled that it would

redact two words, i.e., “Ty Brooks,” to be “consistent with [its] earlier ruling [on] the

identity of any other person.”

       When counsel for Mr. Faulkner asked James Brooks about his motivation for

contacting the police, he testified: “I was strung out on drugs. I was trying to cash in on

the reward.” James Brooks admitted that he previously had been convicted of a number of

offenses, including uttering a false document, taking a car without the owner’s permission,

and various thefts. When asked whether there was any motivation for him “to be testifying

here today other than to tell the truth,” James Brooks responded: “Yeah. I mean I was told

to do what was right and turn it over to God.”

                                              D.

                  Ty Anthony Brooks and William Clarence Thomas

       Appellant introduced evidence of Ty Brooks’ extensive criminal history, including

breaking and entering and burglary charges in 1986. The State stipulated that Ty Brooks

and Mr. Thomas were not incarcerated in Maryland at the time of Ms. Wilford’s murder.




                                             -26-
       Appellant attempted to call Ty Brooks as a witness and to introduce a portion of

Ty Brooks’ 2015 recorded interview with the police. In this interview, Ty Brooks admitted

that he had committed numerous offenses in Easton, but he did not recall going to

Ms. Wilford’s house, stating that murder was not his “MO.” As explained in more detail,

infra, the court sustained the State’s objection to the admission of this evidence on the

ground that Ty Brooks had been convicted of perjury, and therefore, he was not a

competent witness.

       Appellant also introduced a statement of charges that alleged that, on March 12,

1987, Ty Brooks was observed riding as a passenger in a blue 1982 Oldsmobile.

Donald M. Stoop, a staff investigator with the MidAtlantic Innocence Project, testified that

his investigation revealed that Ty Brooks “had access to multiple vehicles,” but “none

[were] registered to him at the time.”

                                            E.

                            The Bollinger–Haddaway Tapes

       Sergeant Bollinger, who became lead investigator on the Wilford murder case in

1999, testified that he spoke to Ms. Haddaway “several hundred times” before appellant’s

trial. One of the reasons Ms. Haddaway contacted Sergeant Bollinger in 2001 was to

request that the criminal charges pending against her grandson, Landon Janda, be dropped.

When questioned whether Ms. Haddaway asked “in an aggressive manner,”

Sergeant Bollinger stated that Ms. Haddaway “did everything in an aggressive manner.”




                                           -27-
       At some point before February 2, 2001, Sergeant Bollinger participated in a meeting

at the Talbot County State’s Attorney’s Office with Marie Hill, the prosecutor on

appellant’s case, and John Mark McDonald, the prosecutor on Mr. Janda’s case.

Sergeant Bollinger asked Mr. McDonald to drop the charges against Mr. Janda, but he “said

no.”

       Sergeant Bollinger recorded some of his conversations with Ms. Haddaway because

they were “directly involved with [his] homicide investigation.” 22           One of these

conversations occurred on February 2, 2001, during which Sergeant Bollinger told

Ms. Haddaway that the State was not going to drop the charges against her grandson.

Sergeant Bollinger tried to clarify whether she was “still going to come and tell the truth,”

and Ms. Haddaway replied: “I’m going to come in and tell the truth but I don’t think the

truth is going to want to be known.”




       22
          In addition to his testimony on the recorded conversations, Sergeant Bollinger
also identified handwritten notes discussing the opinions of Ms. Haddaway held by other
officers. A note from his interview of Corporal Cooper read: “Beverly Haddaway, as bad
a woman as Talbot County has ever seen. Rather lie than tell the truth.” A note from an
interview with Captain Benjamin Blue read: “Either get out of trouble or . . . [g]et one favor
up. No information is free from Beverly.” Sergeant Bollinger stated that his colleagues’
statements were simply “their opinion,” not “part of [his] investigation.” He asserted that,
in his investigation, what Ms. Haddaway told him “turned out to be accurate and true,”
noting that Ms. Haddaway had given him her account of what happened on January 5,
1987, multiple times, and she had always been consistent that she saw the three men on
Black Dog Alley immediately after the time of the murder. He agreed that the veracity of
Ms. Haddaway’s statements was bolstered by (1) the fact that she came forward early in
the investigation, and (2) the accuracy of her description of the events that day, such as her
correct description of the order in which the police vehicles and the ambulance responded
to the crime scene.


                                            -28-
       Sergeant Bollinger then stated that he could ask the State to reconsider its position

regarding her grandson after the trial, and the following occurred:

       Haddaway: Well, it won’t be no need to ask after the trial’s over because
       [defense counsel is] going to win hands down. They’ll be doubt in everybody
       on the jurors’ mind and I’m the one that’s going to roll the iceberg right down
       there and watch that son of a bitch hit everybody in that fucking courtroom.
       Do you think I’m kidding, John? I’m not. You can go get the newspaper to
       start printing: Three People Found Innocent and I’ve got just one little piece
       of paper and it can all be had with one word that nobody knows but I know
       and I got the paper and I got the proof and one word, just one word out of the
       English language will let all three of them walk and for my grandson, you
       don’t think I’ll use that fucking word? . . . [23]

       Bollinger: [Chuckles]

       Haddaway: Now . . . . Do you think I’m kidding?

       Bollinger: No, I know you’re not kidding.          You just make me laugh
       sometimes.[24]

       Ms. Haddaway subsequently stated that the one word was “crazy,” meaning that she

was crazy. She showed Sergeant Bollinger a document from a doctor that she had “an

extensive emotional and psychological problem.”




       23
         Sergeant Bollinger testified that, when Ms. Haddaway referred to “all three of
them,” she was referring to appellant, Mr. Faulkner, and Mr. Andrews.
       24
           Counsel asked Sergeant Bollinger whether he interpreted Ms. Haddaway’s
statement as “a threat.” He stated that he did not, noting: “I laughed at her then, I laughed
listening to it again. I heard this a hundred times so no it was not a threat.” Counsel asked
him if Ms. Haddaway was lying when she made the statement, and he responded: “Beverly
just liked to blow off steam. . . . You call it lying. I disagree with your reference on that.
She wasn’t lying to me. She’d blow off steam, that’s what she did.” On cross-examination,
he noted that there was “no doubt she was going to testify no matter what.”

                                            -29-
       During that conversation, Ms. Haddaway suggested that Sergeant Bollinger go over

Mr. McDonald’s head to “the boss,” i.e., the State’s Attorney, to get the charges against

Mr. Janda dropped. Sergeant Bollinger stated that he would talk to the State’s Attorney.

       During their conversations that day, statements were made indicating that

Ms. Haddaway had access to case files related to the Wilford murder. For example,

Sergeant Bollinger stated that he “got the stuff [she] wanted [him] to get,” that she could

“see the pictures if you want,” and he got her “two pages of a letter” and a drawing of a

ring. Ms. Haddaway indicated that defense counsel gave her things illegally, such as a

report which she then underlined.

       Sergeant Bollinger testified that he did not allow Ms. Haddaway to look through his

“investigative file,” but he did show her some photographs of the Wilford property and “a

letter.” Although it was not common practice for the police to permit a witness to look at

case files before trial, he showed Ms. Haddaway the evidence “at the direction of the

State’s Attorney’s Office.” Counsel asked Sergeant Bollinger why he would “show a

witness who was not by Ms. Wilford’s house on January 5th, 1987 pictures of the

property,” and he responded: “She wanted to see them.” Sergeant Bollinger could not

recall whether he showed Ms. Haddaway an illustration of Ms. Wilford’s ring, which the

police believed was taken from Ms. Wilford’s residence.

       Sergeant Bollinger did note, however, that Mr. Eckel, who represented

Mr. Andrews, had “allowed [Ms. Haddaway] to view everything he had in his possession.”




                                           -30-
He did not know whether she had access to “everything or not,” but he did “know she had

access to his files.”

       Sergeant Bollinger identified Ms. Haddaway’s handwriting on a seven-page police

report, written by Sergeant Gamble on June 8, 2000, that detailed an interview with

Mr. Andrews.       Ms. Haddaway wrote “lie” a number of times on the report.

Sergeant Bollinger could not say when Ms. Haddaway made those annotations.

       The February 2, 2001, conversation between Ms. Haddaway and Sergeant Bollinger

also indicated that Ms. Haddaway had a conversation with Mr. Andrews before she testified

at appellant’s trial. Ms. Haddaway advised that she had gone to the jail with defense

counsel and talked with “Ray.” Although Sergeant Bollinger knew that Ms. Haddaway, a

fact witness, had met with another fact witness, Mr. Andrews, he did not inform appellant’s

trial counsel of this fact.

       On February 8, 2001, Sergeant Bollinger had another conversation with

Ms. Haddaway, which he also recorded. That conversation referred to a conversation the

previous day, where Sergeant Bollinger told Ms. Haddaway that the State’s Attorney had

decided to “nolle [pros] Landon’s case.” 25 Ms. Haddaway wanted the decision to be in




       25
         There was conflicting testimony from the Office of the State’s Attorney for Talbot
County regarding what led to the nol pros of the charges against Landon Janda.
Mr. McDonald, who was assigned to prosecute the case, testified that Scott Patterson, the
State’s Attorney for Talbot County, ordered him to dismiss the charges, telling him that
“Beverly Haddaway was giving him trouble and . . . in the great scheme of things the
murder case was more important.” Mr. Patterson, however, testified that he did not “recall
having a conversation with Sergeant Bollinger about Mrs. Haddaway in (continued . . .)


                                           -31-
writing, but Sergeant Bollinger told her that was not going to happen. Ms. Haddaway was

not happy, and Sergeant Bollinger then said: “I don’t know what they’re gonna do. But,

but the only thing we want, and protecting whatever we’re trying her[e], our interest, is all

we’re doing. We have three murder trials coming up.” 26

       As soon as Sergeant Bollinger finished recording these conversations, he put them

in the case file, which “was sent to [a] centralized location . . . for the Maryland State Police

homicide files.” He could not say whether the tapes made it to the State’s Attorney’s

Office. On cross-examination, Sergeant Bollinger agreed that he “made no effort to inform

anybody of [the] alleged deal” with Ms. Haddaway,” but he “also made no effort to hide it

from anybody.” On redirect, counsel asked Sergeant Bollinger whether he “purposely . . .

refused to put [the deal with Ms. Haddaway] in writing so that it would remain secret,” and

he responded: “That was not my decision.” 27




(. . . continued) that time frame in any regard,” and to the best of his recollection, he “never
spoke to Mr. McDonald about the Landon Janda case.”
       26
          We did not find in the record any written letter detailing the agreement to nol pros
the charges against Mr. Janda. Mr. McDonald stated that, although he was told to nol pros
the case, he was not told to write a letter. There were, however, two letters, one signed by
Sergeant Bollinger, and one with the State’s Attorney’s signature, providing that
Ms. Haddaway was supplying valuable information in the homicide investigation, and no
charges would be brought against her for information related to the investigation.
       27
         The parties below indicated that Ms. Haddaway passed away prior to the
innocence hearing.

                                              -32-
                                             F.

                                    Discovery Provided

       Scott Patterson, the State’s Attorney for Talbot County, testified that, at some point

after taking office in 1991, he established an “open file” discovery policy. This policy

entailed copying “everything in the file,” i.e., “police investigative reports, witness

statements, technical lab reports or, or reports from other experts, anything of that nature,”

but not “attorney’s notes, work product, that sort of thing,” and turning the copies over to

the defense. He noted that confidential informants were “tricky,” but if they were “actively

involved in the case then they would have to be disclosed.” Handwritten police notes

would also be included “[i]f they were part of [a police] report.”

       Counsel then asked Mr. Patterson about his understanding of the State’s Brady

obligations. 28 He stated that “Brady now is a lot more comprehensive [than] it was 10, 15,

20, 35 years ago when I started prosecuting cases.” He agreed that Brady as it currently is

interpreted requires prosecutors to inquire into the knowledge of State agents “about the

existence of any exculpatory information,” but he could not say whether that rule was clear

at the time appellant was prosecuted. Similarly, he agreed that, today, it would be a

prosecutor’s obligation, pursuant to Brady, to disclose to the defense an agreement between

the State and a witness to drop charges against the witness’ family member in exchange

for the witness’ testimony, but he could not say whether that rule was clear at the time

appellant was prosecuted.


       28
            Brady v. Maryland, 373 U.S. 83 (1963).

                                            -33-
       Ms. Hill testified that she complied with the State’s discovery obligations in two

ways: “automatic discovery” and “open file” discovery. She sent out the “basics” in

“automatic discovery,” which included documents such as a witness list, police reports,

defendant, co-defendant, and witness statements, and an autopsy report. The automatic

discovery packet included a “Suspect Information” list, which included the following:

       James Edward BROOKS
       William Clarence THOMAS
       Anthony BROOKS

       James BROOKS was originally a confidential source who came forward and
       provided information regarding an individual identified as William
       THOMAS. BROOKS alleged that THOMAS told him that he and Anthony
       BROOKS were responsible for the homicide. James BROOKS provided a
       written statement and submitted to a polygraph examination.

       With respect to the Talbot County State’s Attorney’s Office’s “open file” discovery

policy in 2000 and 2001, “[defense] attorneys would have full access to [the State’s] files.

They could come in and go through [their] cases, the files for them.” Defense attorneys

could look at “[a]ny of the police reports, written statements, [and other] things that the

defense was entitled to.” They were permitted to take notes, request photocopies, and come

back any time to review the files. Ms. Hill followed this open file discovery policy in

appellant’s case, and it was her intent to have defense counsel rely on their open file policy

as her Brady disclosure.

       Ms. Hill recalled that appellant’s trial counsel came to her office to review the

State’s files, but she could not recall when that occurred. After trial was over, the files in

each case were securely stored.



                                            -34-
       Ms. Hill could not recall if there were any audio or video cassette tapes in her files,

but she noted that, if they were in her possession, defense counsel would have had access

to them. Counsel showed Ms. Hill two audio cassette tapes containing the Bollinger-

Haddaway conversations, but she did not recall seeing them before. She stated that, in her

view, dismissing criminal charges against a grandson of a witness was not required to be

disclosed under Brady.

                                              VII.

                                The Circuit Court’s Ruling

       On June 21, 2016, the circuit court denied appellant’s petition for writ of actual

innocence and motion to reopen post-conviction proceedings, as well as those of

Mr. Faulkner. As discussed in more detail, infra, the court found that the evidence

presented did not indicate that appellant was innocent of the crimes, that the court was not

“persuaded that there is newly discovered evidence that would lead to a substantial or

significant possibility of a different result in the Petitioners’ respective trials,” and that it

would not advance the interests of justice to reopen the post-conviction proceedings.

                                        DISCUSSION

                                               I.

                           Petition for Writ of Actual Innocence

       Appellant contends that the circuit court erred in denying his Petition for Writ of

Actual Innocence.      He asserts that the following evidence was “newly discovered”

evidence that “mandates granting of [his] Innocence Writ”: (1) the identification of



                                              -35-
Ty Brooks as the person who left the palm prints on a window on the exterior of

Ms. Wilford’s utility room and the washing machine inside the room; (2) Mr. Keene’s

statement that he saw a vehicle in Ms. Wilford’s driveway at approximately 2:00 p.m. on

the day of the murder; and (3) the Bollinger-Haddaway tapes discussing, inter alia, the nol

pros of the charges against Ms. Haddaway’s grandson. 29

       Appellant argues that the court’s ruling denying his petition was “premised on

erroneous evidentiary rulings, factual findings unsupported by the record, and legal errors

in determining” that the evidence was not newly discovered. He asserts that these errors

prevented the court from “properly considering the totality of the evidence, which far

exceeds the quantum necessary to demonstrate” that the new evidence created a substantial

possibility that the result of the trial may have been different.

       The State contends that the circuit court properly exercised its discretion in denying

the petition. It makes two arguments in this regard. First, it argues that appellant did not

present evidence of innocence, asserting that the above-referenced evidence was not


       29
          Appellant’s argument on appeal relating to Ms. Haddaway primarily focuses on
information found in the Bollinger-Haddaway tapes. He does, however, reference “an
array of additional exculpatory evidence,” subsequently found “[b]uried in MSP files,”
which he asserts “demonstrated, among other things, [Ms.] Haddaway’s true character as
a dishonest, scheming manipulator who was always motivated by self-interest in stark
contrast to the image she presented to the jury.” In that regard, he cites a police report
revealing that, in 1994, Ms. Haddaway sought to have criminal charges against her son
dropped in exchange for information about the Wilford murder, handwritten notes
regarding negative opinions of other officers regarding Ms. Haddaway’s character, and
immunity agreements stating that no charges would be brought against her for information
relating to the Wilford murder. Given that the focus of appellant’s argument is on the tapes,
and that was the basis for the circuit court’s decision, we will confine our analysis in this
regard to the Bollinger-Haddaway tapes.

                                             -36-
“exonerating” evidence. Second, the State asserts that the circuit court did not abuse its

discretion in concluding that appellant was not diligent in discovering the evidence that he

alleges is “newly discovered.”

       In 2009, the Maryland General Assembly enacted Maryland Code (2016 Supp.)

§ 8-301 of the Criminal Procedure Article (“CP”), which allows certain convicted persons

to petition for a writ of actual innocence based on newly discovered evidence. See

Smallwood v. State, 451 Md. 290, 313-20 (2017) (setting forth the legislative history of CP

§ 8-301). CP § 8-301 states, in pertinent part, as follows:

           (a) A person charged by indictment or criminal information with a crime
       triable in circuit court and convicted of that crime may, at any time, file a
       petition for writ of actual innocence in the circuit court for the county in
       which the conviction was imposed if the person claims that there is newly
       discovered evidence that:
               (1) creates a substantial or significant possibility that the result may
       have been different, as that standard has been judicially determined; and
               (2) could not have been discovered in time to move for a new trial
       under Maryland Rule 4-331.

                                            ***
          (g) A petitioner in a proceeding under this section has the burden of proof.

The court has several options if it grants the petition; it “may set aside the verdict,

resentence, grant a new trial, or correct the sentence, as the court considers appropriate.”

CP § 8-301(f)(1).

       Thus, to prevail on a petition for writ of innocence, the petitioner must produce

evidence that is newly discovered, i.e., evidence that was not known to petitioner at trial.

Hawes v. State, 216 Md. App. 105, 134-36 (2014). Pursuant to CP § 8-301, the newly

discovered evidence must satisfy two requirements: (1) it must be such that it “could not


                                            -37-
have been discovered in time to move for a new trial under Maryland Rule 4-331”; and (2)

it must create “a substantial or significant possibility that the result may have been

different.”

       The Maryland appellate courts, however, recently have made clear that there is a

third requirement for newly discovered evidence. Relief under CP § 8-301 is limited to

situations where the petitioner shows newly discovered evidence that supports a claim that

the petitioner is innocent of the crime of which he or she was convicted. See Smallwood,

451 Md. at 320 (“Only defendants who can allege that they are ‘actually innocent,’

meaning they did not commit the crimes for which they were convicted, may bring a

petition for relief under [CP] § 8-301.”); Yonga v. State, 221 Md. App. 45, 61-62 (2015)

(The “thrust of the writ” and the “substantive object that has to be asserted and then

supported by an adequate show of proof” is actual innocence.), aff’d on other grounds, 446

Md. 183 (2016). See also Douglas v. State, 423 Md. 156, 176 (2011) (a petition for writ

of actual innocence gives a convicted person “an opportunity to seek a new trial based on

newly discovered evidence that speaks to his or her actual innocence”); Blake v. State, 395

Md. 213, 219 (2006) (CP § 8-201 was “designed to provide an avenue for the exoneration

of the actually innocent”); Md. Rule 4-332(d)(9) (petition for writ of actual innocence must

allege “that the conviction sought to be vacated is based on an offense that the petitioner

did not commit.”).

       Accordingly, a petitioner asserting newly discovered evidence must satisfy three

requirements to prevail in a petition for actual innocence. A petitioner must produce newly



                                           -38-
discovered evidence that: (1) “speaks to” the petitioner’s actual innocence; (2) “could not

have been discovered in time to move for a new trial under Md. Rule 4-331”; and (3) creates

“a substantial or significant possibility that the result may have been different.” 30

       When an appellate court reviews a circuit court’s decision to deny a petition for writ

of actual innocence, we limit our review “to whether the trial court abused its discretion.”

Smallwood, 451 Md. at 308-09. Accord Patterson v. State, 229 Md. App. 630, 639 (2016),

cert. denied, 451 Md. 596 (2017). “Under that standard, this Court will not disturb the

circuit court’s ruling, unless it is well removed from any center mark imagined by the

reviewing court and beyond the fringe of what the court deems minimally acceptable.”

Patterson, 229 Md. App. at 639 (citations and quotation marks omitted). A trial court must,

however, “‘exercise its discretion in accordance with correct legal standards.’” Jackson v.

Sollie, 449 Md. 165, 196 (2016) (quoting Alston v. Alston, 331 Md. 496, 504 (1993)). With

respect to the circuit court’s factual findings, we accept these findings unless clearly

erroneous. Yonga, 221 Md. App. at 95.

       Applying this standard of review, we address the requisite elements of a petition for

writ of actual innocence as they apply to the present case. Initially, we note that there is


       30
         As Judge Moylan explained in Yonga v. State, 221 Md. App. 45, 57-58, 62 (2015),
aff’d on other grounds, 446 Md. 183 (2016), the test that the newly discovered evidence
“creates a substantial or significant possibility that the result may have been different” is
“simply the weight or level of persuasion that the newly discovered evidence of actual
innocence must possess in order to justify the issuance of the writ.” Putting forth a “mere
bald assertion of actual innocence or some highly speculative or unsupported claim of
actual innocence is not enough to justify the granting of a writ. The claim must be
substantial enough for the hearing judge to conclude that there may, indeed, be a plausible
case of actual innocence.” Id.

                                             -39-
no dispute that the three categories of evidence, the Keene evidence, Ty Brooks’ palm

prints, and the Bollinger-Haddaway tapes, were not known at trial, and therefore, this

evidence was newly discovered evidence. There is a dispute, however, regarding whether

this newly discovered evidence meets the three requirements to entitle appellant to relief.

We will address, in turn, these requirements.

                                             A.

                                    Actual Innocence

       As indicated, a petition for writ of actual innocence is limited to cases involving

newly discovered evidence that “speaks to” the petitioner’s actual innocence. The State

argues that this requirement was not met here because the newly discovered evidence

alleged, i.e., the Keene evidence, Ty Brooks’ palm prints, and the Bollinger-Haddaway

tapes, “did not tend to exonerate” appellant.

       The State points to several categories of evidence that were provided to the General

Assembly as types of evidence that could support a finding of innocence, including

scientific evidence found after trial “‘to be unreliable or completely false after subsequent

research and analysis,’” Smallwood, 451 Md. at 318 (quoting Testimony of Delegate

Samuel I. Rosenberg on H.B. 366, before the House Judiciary Committee (Feb. 17, 2009)),

as well as:

       (1) a confession by another individual to having committed the crime; (2)
       acknowledgement by an eyewitness or other evidence indicating he was
       mistaken; (3) acknowledgment by an eyewitness or other evidence indicating
       that the witness intentionally lied; or (4) evidence casting serious doubt on
       the reliability of scientific evidence used against the defendant.



                                            -40-
Id. at 319 (quoting Memorandum from the Governor’s Office of Crime Control and

Prevention and the Office of the Public Defender to Chairman B. Frosh and Members of

the Senate Judicial Proceedings Committee, at 8-9 (Jan. 15, 2009)).

       With respect to the newly discovered evidence here, the State contends that the

evidence regarding Mr. Keene did not tend to exonerate appellant and was not “the type of

evidence that the Court of Appeals noted in Smallwood that an innocence petition was

designed to address.”       It asserts that the Bollinger-Haddaway tapes “do not show

Haddaway as a recanting, mistaken or intentionally lying eyewitness.” With respect to the

Ty Brooks palm prints, it contends that the “presence of his palm prints in Mrs. Wilford’s

home does not mean” that appellant was “not in Mrs. Wilford’s home at the time of the

murder.”

       The State’s view of the type of evidence of innocence required under CP § 8-301 is

too narrow. Initially, as appellant notes, the enumerated list of types of evidence that could

support a finding of innocence, upon which the State relies, was a recitation of categories

of evidence provided to the General Assembly by various stakeholders; it did not purport

to be an exhaustive list. Moreover, no case has held that the evidence must definitively

exonerate the petitioner.

       We hold that, although CP § 8-301 applies only to newly discovered evidence that

“speaks to” actual innocence, the petitioner need not definitively prove his or her innocence

to warrant relief under the statute.      That the newly discovered evidence does not

definitively exonerate appellant, or may be countered by other evidence, goes to the weight



                                            -41-
of the evidence, which is considered in the third part of our analysis. In the first part of the

analysis, we look to whether the newly discovered evidence “speaks to,” or could support,

a claim that the petitioner did not commit the crime for which he or she was convicted.

       Applying this analysis to the present case, we conclude that the newly discovered

evidence “speaks to,” or could support, appellant’s claim that he did not commit the crimes

for which he was convicted. Appellant contends that the match of the palm prints found at

the scene to Ty Brooks, a person with a history “of committing crimes similar to the break-

in that led to Mrs. Wilford’s murder,” and which corroborated “a 1992 informant’s report

that [Mr.] Thomas confessed that [he] and [Ty] Brooks committed the murder,” shows that

Ty Brooks, and not appellant, was guilty of the murder. We agree that the palm print

evidence, as well as the Keene observation, “speaks to” appellant’s innocence because the

evidence, if believed and sufficiently proved, could support appellant’s contention that

“two career criminals, Ty Anthony Brooks and William Thomas, Jr., actually committed

this crimes.” To the extent the evidence was offered to show that someone other than

appellant and Mr. Faulkner committed the crime, it was evidence that supports a claim of

actual innocence.

       With respect to the Bollinger-Haddaway tapes, appellant argues that they undermine

“the State’s Haddaway-based theory of the crime.” He contends that Ms. Haddaway was

a crucial witness for the State, and the statements that Ms. Haddaway made in those

recordings places her credibility and objectivity seriously into question. Appellant asserts

that the tapes show that Ms. Haddaway “extorted a deal from the prosecution with threats



                                             -42-
to torpedo the State’s case by threatening to ‘come in and tell the truth’ that the State would

not ‘want to be known,’” and they “reveal a shocking level of corruption, an utter disregard

for the truth, and the willingness of the prosecution to give in to extortion to obtain

[appellant’s] conviction.”

       Although appellant’s characterization of the effect of the tapes appears to be

overstated, we do agree that the tapes could support an argument that Ms. Haddaway may

have deliberately lied. In the context of this case, where Ms. Haddaway was a key witness

for the State implicating appellant, and the new evidence could significantly impair her

credibility regarding the core merits of the case, we conclude that this newly discovered

evidence satisfies the first prong of the analysis, i.e., the evidence speaks to actual

innocence. See Smallwood, 451 Md. at 319 (listing as an example of evidence supporting

a finding of innocence evidence indicating that an eyewitness intentionally lied).

                                              B.

                  Could Not Have Been Discovered by Due Diligence

       Having determined that the newly discovered evidence satisfies the first

requirement, we turn to the second prong of the analysis, which is whether the newly

discovered evidence “could not have been discovered in time to move for a new trial under

Maryland Rule 4-331.”        CP § 8-301(a)(2).      A Rule 4-331 motion based on newly

discovered evidence must be filed “within one year after the later of (A) the date the court

imposed sentence or (B) the date the court received a mandate issued by the final appellate

court to consider a direct appeal from the judgment or a belated appeal permitted as post



                                             -43-
conviction relief.” Rule 4-331(c)(1). Here, the docket entries indicate that the circuit court

received the mandate from this Court affirming his convictions on direct appeal on

February 8, 2005. Accordingly, the appellant must show that the newly discovered

evidence could not have been discovered before the one-year deadline of February 8, 2006.

       It is important to note that the requirement that the petitioner show that evidence

could not have been discovered at an earlier time does not require that defense counsel

exhaust every lead or seek to discover a needle in a haystack. Cf. Maryland v. Kulbicki,

136 S. Ct. 2, 4-5 (2015) (standard of “reasonable competence” does not require defense

counsel to “go ‘looking for a needle in a haystack,’ even when they have ‘reason to doubt

there is any needle there’”) (quoting Rompilla v. Beard, 545 U.S. 374, 389 (2005)). Rather,

CP § 8-301(a)(2) requires only that defense counsel exercise due diligence to discover

evidence. See Hawes, 216 Md. App. at 136 (CP § 8-301(a)(2) requires a showing that

newly discovered evidence “could not, with due diligence, have been discovered in time to

move for a new trial under Maryland Rule 4-331.”). See also Argyrou v. State, 349 Md.

587, 600-01 (1998) (“To qualify as ‘newly discovered,’ evidence must not have been

discovered, or been discoverable[,] by the exercise of         due diligence.”); Md. Rule

4-332(d)(6) (A petition for a writ of actual innocence must allege that it is based on “newly

discovered evidence” “which, with due diligence, could not have been discovered in time

to move for a new trial pursuant to Rule 4-331.”).

       This second requirement, that the evidence could not, with due diligence, have been

discovered in time to move for a new trial, is “a threshold question.” Argyrou, 349 Md. at



                                            -44-
604. Accord Jackson v. State, 216 Md. App. 347, 364, cert. denied, 438 Md. 740 (2014).

“[U]ntil there is a finding of newly discovered evidence that could not have been

discovered by due diligence, no relief is available, ‘no matter how compelling the cry of

outraged justice may be.’” Argyrou, 349 Md. at 602 (quoting Love v. State, 95 Md. App.

420, 432 (1993)).

       Here, appellant claims that the newly discovered evidence, including Mr. Keene’s

observations, the identification of Ty Brooks’ palm prints, and the Bollinger-Haddaway

tapes, satisfied this requirement. The circuit court disagreed, and we review that decision

for an abuse of discretion. See Love, 95 Md. App. at 435 (“We cannot say that [the judge]

abused his discretion in finding the absence of due diligence.”). With this background in

mind, we review the three categories of evidence at issue.

                                            1.

                                  The Keene Evidence

       We begin with appellant’s contention that information contained in undisclosed

MSP notes and Betamax videotapes of an interview with Mr. Keene, indicating that

Mr. Keene saw an Oldsmobile at Ms. Wilford’s house the day of the murder at 1:55 p.m.,

was newly discovered evidence that could not have been discovered with due diligence

before February 2006. The circuit court rejected that argument, noting that the following

statement, available to defense counsel prior to trial, was contained in a report by

Trooper Harmon:

       Same date [January 9, 1987,] the writer [Sergeant Harmon] and Tfc. Shelly
       were contacted at the Easton Barrack by Danny Keene. He reported seeing


                                           -45-
       a silver colored vehicle he believed to be an Olds Cutlass. He was taken to
       the victim’s residence, at which time he showed the writer the location he
       observed the vehicle parked. The location was backed in next to the front
       porch, next to several bushes, bearing a similar type leaf as found in the living
       room floor of the victims [sic] house. He was [driven] around Easton, and
       upon observing a vehicle at the Bonanza Rest[a]urant, he stated it was a
       vehicle similar to the one he observed. He had picked out a 77 Olds Cutlass.
       Refer to Tfc. Shelly’s supplements for further details of this individuals [sic]
       interviews.

       Appellant contends that this report was part of “over 700 pages of documents”

provided in discovery, and because it did not “indicate when [Mr. Keene] saw the vehicle,”

“there was nothing to tip anyone that he had seen the vehicle at the time of the murder.” 31

The circuit court, noting that it must consider the totality of the circumstances in

considering due diligence, found that the “substance of Mr. Keene’s testimony was

available at trial and [appellant was] on notice that he was a possible witness.” Because

the State’s theory of the case was that appellant and his two companions were “on foot” on

January 5, 1987, and they walked several miles to Ms. Wilford’s house and back to Black

Dog Alley, the court reasoned that “any information that would have contradicted the story

that [they] were on foot for the entire time would have been highly relevant to mounting a

defense.” The circuit court found that “[d]ue diligence required a reasonable good faith

effort to follow up on this information and assess Mr. Keene’s credibility.”




       31
         Mr. Faulkner, in his separate appeal arising from the court’s ruling, states that this
“paragraph was not even a ‘needle in a haystack’; it was the shaft of a needle without the
eye,” and even if counsel had focused on this paragraph, the critical detail of the date and
time was missing.

                                             -46-
       We perceive no abuse of discretion in the circuit court’s finding in this regard. It is

undisputed that appellant was provided access to the Harmon police report, which included

Mr. Keene’s observation. And as the circuit court stated, a sighting of a vehicle at

Ms. Wilford’s house would have been relevant, either to counter the State’s theory that

appellant travelled on foot to and from Ms. Wilford’s residence or to develop whether

someone else was at the residence at the time of the murder. The defense could have

discovered the time when Mr. Keene saw the car by contacting Mr. Keene or seeking to

review the “supplements” referred to in the report, which included “further details.” A

reasonable investigation would have led them to discover the additional details regarding

the timing of his observation.        See Argyrou, 349 Md. at 605 (“‘[D]ue diligence’

contemplates that the defendant act reasonably and in good faith to obtain the evidence, in

light of the totality of the circumstances and the facts known to him or her.”).

       Accordingly, the circuit court did not abuse its discretion in finding that appellant

failed to exercise due diligence by not investigating further into Mr. Keene’s sighting of a

car, and therefore, that the evidence of the timing of the observation did not constitute

“newly discovered evidence” that could not have been discovered with due diligence in

time to move for a new trial under Maryland Rule 4-331. Because the newly discovered

Keene evidence did not satisfy the second prong of the analysis, the court was not required

to address the third requirement, that it creates a substantial possibility that the result of the




                                              -47-
trial may have been different, before concluding that this evidence did not warrant granting

the petition for writ of actual innocence. 32

                                                 2.

                                    Bollinger-Haddaway

       Appellant next claims that the circuit court erred in finding that the Bollinger-

Haddaway tapes, which were not discovered until after the New York Innocence Project

filed a MPIA request in 2011, did not qualify as newly discovered evidence pursuant to CP

§ 8-301. Appellant contends that these tapes revealed: (1) the State’s agreement to

Ms. Haddaway’s demands to drop charges against her grandson; (2) that Ms. Haddaway,

Mr. Andrews, and his attorney, Mr. Eckel “colluded to frame” appellant; and (3) that

Ms. Haddaway was “a dishonest, scheming manipulator.”

       The circuit court initially found that the tapes, “which discuss an agreement between

the State and Ms. Haddaway to nolle prosequi the case against her grandson,” were not




       32
         The circuit court’s findings also indicate that it found Mr. Keene’s statement that
he observed a car at the Wilford residence to be unbelievable. The court stated:

              [W]ere his testimony to be believed the car that he saw would have
       been obscured from his view because of the line of trees, the shape o[f]
       Mrs. Wilford’s home and the direction that he was travelling until he reached
       her driveway. It would then appear that he would have had to have turned
       his head 90 degrees to see the front of the car as he passed Mrs. Wilford’s
       driveway. The remainder of his description of the vehicle would have had
       to come from observing the car in his rearview mirror.

To the extent that the circuit court found the testimony incredible, a finding that was not
clearly erroneous, this would be another basis to find that the Keene evidence did not justify
a grant of a petition for writ of actual innocence.

                                                -48-
disclosed prior to trial. Given this undisputed factual finding that the tapes were not known

to appellant at trial, and were discovered more than 10 years later, they constituted “newly

discovered evidence.” See Hawes, 216 Md. App. at 136 (report in existence prior to trial

but not known to defendant was newly discovered evidence).

       The circuit court, therefore, correctly stated that the question “becomes whether this

information could have been discovered within the timeframe set forth in Rule 4-331(c).”

The court concluded that appellant’s argument that the tapes could not have been

discovered in this timeframe was “doomed by [his] own efforts,” noting that appellant

discovered the tapes through his MPIA requests, and “[t]hese requests could have been

made within the time frame set forth in Rule 4-331(c) and the information could have been

available.”    Accordingly, the circuit court concluded that “the tapes of the

Haddaway/Bollinger conversations do not meet the definition of newly discovered

evidence” that warrants relief under CP § 8-301.

       Appellant contends that the circuit court erred in holding that due diligence required

him to file a MPIA request to discover the tapes prior to the Rule 4-331(c) deadline. He

notes that, pursuant to Conyers v. State, 367 Md. 571, 603, cert. denied, 537 U.S. 942

(2002), when a prosecutor relies, as the State did here, on an open file policy to satisfy its

Brady obligations, “defense counsel may reasonably rely on that file to contain all materials

the State is constitutionally obligated to disclose under Brady.” He asserts that he was

“allowed to take the State at its word that it disclosed all of its evidence through its open

file and there was no exculpatory evidence,” and “[d]iligence did not require him to seek



                                            -49-
the information that was hidden from him.” Appellant also contends that the circuit court’s

due diligence ruling conflicts with this Court’s decision in Hawes, which he asserts

“rejected an identical argument” and held “that exculpatory evidence suppressed by the

State was ‘newly discovered’ for the purposes of a writ of actual innocence, even though

it was later obtained through public information requests.”

       The State argues that “the court’s due diligence determination as to the

discoverability of . . . the Haddaway/Bollinger tapes was a proper exercise of the court’s

discretion.” It contends that appellant failed to demonstrate that his trial counsel was

diligent in counsel’s review of the State’s files, asserting that the evidence adduced at the

hearings below indicates that “the tapes were contained within the police investigative

files,” and it was “not usual for defense counsel to sift through the police investigative files

in advance of trial.” The State also argues that it was not unreasonable for the court to

conclude that appellant was not diligent because he could have filed a MPIA request “to

review the investigative boxes post-trial, before the expiration of the Rule 4-331(c)” time

period. Finally, the State disagrees that Hawes resolves the issue here.

       We begin with appellant’s reliance on Hawes. Initially, we note that, in Hawes, 216

Md. at 130-31, the circuit judge dismissed the petition for writ of actual innocence without

a hearing, and the issue we addressed involved the pleading requirements for a petition for

writ of actual innocence, not the burden of proof at the hearing, the issue here. The petition

in Hawes was based, in part, on a withheld police report that subsequently was obtained

through a MPIA request. Id. at 134-36. We noted that defense counsel diligently attempted



                                             -50-
to obtain all police reports prior to trial, through discovery requests and subpoenas, but he

did not receive it until a MPIA request was filed after trial. Id. Hawes did not allege in his

petition, however, the date that he received the report. Id. at 137. We explained that this

was a “critical” date because it determined whether he could have moved for a new trial

within the one-year time frame. Id. at 136-37. In light of that deficiency, we concluded

that Hawes’ petition did not state a claim for writ of actual innocence as a matter of law,

and the circuit court properly dismissed the petition without a hearing. Id. at 137. Hawes

did not, as appellant asserts, address whether “due diligence” requires a criminal defendant

to file a MPIA request to seek documents not disclosed. 33

       In this case, we will address whether “due diligence” requires a criminal defendant

to file a MPIA request. In this regard, we note that the State was obligated to disclose the

Bollinger-Haddaway tapes, which included favorable impeachment evidence of

Ms. Haddaway’s request for dismissal of charges against her grandson. A prosecutor has

a duty to disclose any understanding or agreement with a key witness requiring a future

prosecution because it would be relevant to the witness’ credibility. State v. Williams, 392

Md. 194, 210 (2006); Conyers, 367 Md. at 597-98. This disclosure obligation exists even

as to evidence “known only to police investigators and not to the prosecution.” Id. at 602

(quoting Strickler v. Greene, 527 U.S. 263, 280-81 (1999)). Accord Riggins v. State, 223




       33
          Hawes v. State, 216 Md. App. 105, 136-37 (2014), makes clear that a petitioner
will not prevail on a petition for writ of actual innocence if he was actually aware of the
“newly discovered” evidence, by knowledge gained through a MPIA request or otherwise,
in time to move for a new trial pursuant to Rule 4-331.

                                            -51-
Md. App. 40, 56 (2015) (“That the . . . reports were in the physical possession of the

[Police] Department did not obviate the State’s responsibility to disclose them.”). Md.

Rule 4-263(c)(22) (the obligations of the State’s Attorney extend to material and

information that must be disclosed under this Rule and “are in the possession or control of

the attorney, members of the attorney’s staff, or any other person who either reports

regularly to the attorney’s office or has reported to the attorney’s office in regard to the

particular case.”). Indeed, the State conceded below, and on appeal, that it should have

turned over the Bollinger-Haddaway tapes to appellant pursuant to its disclosure

obligations.

         We hold that the due diligence requirement in CP § 8-301 does not encompass a

requirement that a defendant file a MPIA request with the police, or other agency that

reports to the prosecutor, seeking information that the State is required to disclose pursuant

to Brady and Rule 4-263. As appellant notes, a criminal defendant should be able to rely

upon the State to comply with its Brady and discovery obligations. Conyers, 367 Md. at

603 (“‘[I]f a prosecutor asserts that he complies with Brady through an open file policy,

defense counsel may reasonably rely on that file to contain all materials the State is

constitutionally obligated to disclose under Brady.’”) (quoting Strickler, 527 U.S. at 283

n.23).

         The parties do not cite, and we have not found, any case supporting the proposition

that due diligence requires a defendant to file a public information act request to double-

check that the State complied with its disclosure obligations. The only case found to be



                                            -52-
remotely on point is Ex Parte Miles, 359 S.W.3d 647, 671 (Tex. Crim. App. 2012). In that

case, the court did not specifically discuss this issue, but it held that, where the State failed

to produce police reports that identified other potential suspects, and reports were

discovered years later pursuant to a Freedom of Information Act request, the evidence

constituted newly discovered evidence that could not be known with the exercise of due

diligence. This holding supports, albeit indirectly, our holding that the due diligence

requirement in CP § 8-301 does not encompass a requirement that a defendant file a MPIA

request to ensure that the State complied with its disclosure obligations.

       The circuit court, in finding that appellant did not meet the requirement of due

diligence in discovering the Bollinger-Haddaway tapes because he did not file an earlier

MPIA request, misconstrued the legal standard for due diligence. Accordingly, the circuit

court abused its discretion in finding that the Bollinger-Haddaway tapes did not meet the

second requirement for newly discovered evidence, i.e., that it could not have been

discovered with due diligence in time to move for a new trial pursuant to Rule 4-331. See

Jackson, 449 Md. at 196 (“‘[A] trial court must exercise its discretion in accordance with

correct legal standards.’”) (quoting Alston, 331 Md. at 504); Bass v. State, 206 Md. App.

1, 11 (2012) (“‘[A]n exercise of discretion based upon an error of law is an abuse of

discretion.’”) (quoting Brockington v. Grimstead, 176 Md. App. 327, 359 (2007)).

       At oral argument, the State shifted gears and argued, as an alternative ground, that

the circuit court properly found a lack of due diligence because the tapes were contained

within the police investigation files (although mislabeled), and counsel could have looked



                                              -53-
through these files, either in advance of trial or after conviction. Again, the issue is not

whether counsel could have looked through these files. Rather, the issue is whether due

diligence required counsel to seek review of the files for information that the State was

obligated to provide. As indicated, when the State has an obligation to provide evidence,

defense counsel is entitled to rely on the State’s disclosure as satisfaction of its obligation.

In a situation such as that involved here, where the State uses open file discovery to satisfy

its obligations, and defense counsel has no reason to believe that the State has not satisfied

those obligations, due diligence does not require defense counsel to “scavenge for hints of

undisclosed Brady material.” Banks v. Dretke, 540 U.S. 668, 695-96 (2004) (rule declaring

“‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally

bound to accord defendants due process”).

       We also note that, even if defense counsel had looked through the police boxes

during the course of preparing for trial, a fact that is not clear from the record, counsel

might not have seen the tapes. 34 In addition to the evidence that the tapes subsequently

were found in a mislabeled envelope, the tapes were not created until February 2 and

February 8, 2001, and appellant’s trial began approximately three weeks later, on February

26, 2001. Thus, even if counsel had requested to see the police files and been granted




       34
         The State refers to Sergeant Metzger’s testimony at the innocence hearing as
support for its argument that defense counsel looked at the boxes. Sergeant Metzger
however, did not become involved with the Wilford murder investigation until 2014. Her
testimony, therefore, did not address what defense counsel looked at prior to trial.

                                             -54-
access during pre-trial investigation, the tapes may not have been in existence at the time

of access. Once the tapes were made, the State had the obligation to disclose them

       Accordingly, the Bollinger-Haddaway tapes meet the second prong of the analysis;

they could not have been discovered with due diligence in the requisite time period. As

discussed in more detail, infra, this evidence, therefore, must be assessed to determine if it

satisfies the third requirement for newly discovered evidence pursuant to CP § 8-301,

whether it creates a substantial possibility that the result of the trial may have been

different.

                                              3.

                                        Palm Prints

       We turn next to the third item of newly discovered evidence, the discovery more

than ten years after appellant’s conviction that Ty Brooks’ palm prints matched the prints

discovered in Ms. Wilford’s utility room. Appellant contends that the circuit court erred

in finding that this newly discovered evidence failed to satisfy the second requirement, that

it could not have been discovered with due diligence within the requisite time period.

       In addressing this claim of newly discovered evidence, the circuit court found as

follows:

       Again the court must consider the totality of the circumstances to determine
       whether this identification could have been known at the time of trial as a
       result of due diligence. First, as noted before, the identification [of]
       Ty Brooks as a possible suspect was available to the Petitioners at the time
       of their respective trials because of the statement that James Brooks made to
       Trooper Wiley. The crux of the Petitioners’ contention is that the AFIS
       system was not in place at the time of trial, and, therefore, matching the latent
       palm print to Ty Brooks. Mr. M[a]nkevich, whose testimony the court finds


                                             -55-
       to be credible, stated that, although there had been advances in the ways of
       gathering information, the fundamental means of identifying fingerprints,
       visual observation, is the same technique that was available in 1987 and
       2000. He also stated that the AFIS did not represent a new technology for
       comparing prints. It was a much more efficient database for finding known
       prints and became available in 2008.

              Mr. M[a]nkevich testified that, between June 2000 and March 2016,
       the prints of seven people, including the Petitioners, Ty Brooks and
       Boozie Thomas, had been compared to the latent palm prints.
       Mr. M[a]nkevich noted that the palm print used to identify the latent print
       with Ty Brooks was on file, and that it was not necessary to have him take
       additional prints. He did not indicate the file print from Mr. Brooks.

              Looking at the totality of the circumstances, it appears to the court that
       due diligence would have required the Petitioners to seek palm prints from
       Ty Brooks and Boozie Thomas through the use of Rule 4-264. Again, the
       MSP investigative file, which was available to the Petitioners, indicated that
       these two men were suspects in the murder.[35]

               Accordingly, any evidence regarding the possible identification of
       Ty Brooks and Boozie Thomas to the murder was available to the Petitioners
       at the time of their trial and could have been obtained through due diligence.
       In this regard, it should be noted that Mr. Smith’s defense was premised on
       the lack of credibility of Ms. Haddaway . . . . The purpose of the statute is to
       afford the innocent the opportunity to show their innocence, and not to recast
       their defense with information that was otherwise available to them.[36]


       35
          The court earlier noted that the MSP investigative file, which was available to
defense counsel, contained a document referencing a statement made by James Brooks to
Trooper Wiley, stating that Mr. Thomas told James Brooks that Mr. Thomas and Ty Brooks
went to the victim’s house to rob it, Ms. Wilford came home, and Mr. Thomas stabbed her.
The court indicated that, based on this statement, appellant “could have availed [himself]
of Rule 4-264 to get the fingerprints of [Mr.] Thomas and Ty Brooks.”
       36
          In an earlier part of the opinion, the court stated that, based on Mr. Mankevich’s
testimony regarding distortion on the latent print found on the window that resulted from
rain, the palm print appeared to tie Ty Brooks to Ms. Wilford’s house on a day prior to the
murder. Appellant strenuously argues that the court misconstrued Mr. Mankevich’s
testimony, and the court’s factual findings in this regard are clearly erroneous. The record
appears to support this contention, and we suggest that the circuit court revisit this issue on
remand.

                                             -56-
       Appellant contends that the court’s ruling that he could have obtained evidence that

the unidentified palm print belonged to Ty Brooks was erroneous, asserting that

“reasonable diligence does not require defense counsel to conduct a full forensic

investigation into dozens of potential suspects that the State ruled out.” He argues that the

search was impossible prior to the addition of palm prints to the database in 2009.

Accordingly, he asserts, “the palm print match and all the information that flowed from

that match were not available through the exercise of diligence.”

       The State concedes that the court’s finding that appellant could have obtained palm

prints from Ty Brooks pursuant to Rule 4-264 was erroneous, stating that Rule 4-264 “has

little utility [to appellant] in this context.” That concession was appropriate.

       Maryland Rule 4-264 provides, in relevant part, as follows:

              On motion of a party, the circuit court may order the issuance of a
       subpoena commanding a person to produce for inspection and copying at a
       specified time and place before trial designated documents, recordings,
       photographs, or other tangible things, not privileged, which may constitute
       or contain evidence relevant to the action.

In Chew v. State, 71 Md. App. 681, 721 (1987), vacated on other grounds, 317 Md. 233

(1989), this Court held that Rule 4-264 “does not authorize subjecting a human being to

physical examination, such as the furnishing of pubic hair, a blood sample, a voice

exemplar, etc.” Pursuant to this reasoning, Rule 4-264 would not have permitted appellant

to obtain an order requiring Ty Brooks to provide a palm print.

       The State argues, however, that although the circuit court’s reliance on Rule 4-264

was erroneous, the court’s “point—that [a]ppellants could have set into motion legal



                                             -57-
proceedings to compel Ty Brooks to submit to fingerprinting—is well founded.” At oral

argument, when pressed to explain what mechanism counsel could have used in this regard,

counsel for the State argued that appellant could have asked the circuit court to issue an

order to compel Ty Brooks to submit to palm printing based on Howard v. State, 232 Md.

App. 125, 156-57 (2017), which the State argues supports the proposition that the due

process right to present a meaningful defense would enable a defendant to obtain such

evidence, based on need.

       We are not persuaded by the State’s argument. In Howard, 232 Md. App. at 146,

this Court stated that, in a criminal case, “discovery only may be obtained when permitted

by the common law, by statute, or by court rule, or when it is constitutionally necessary.”

We declined to decide whether “the Due Process Clause of the Fourteenth Amendment

entitles a criminal defendant to obtain, pre-trial, evidence relevant and material to his

defense that is not in the possession or control of the SAO,” noting that, even if it did,

Howard failed to make the requisite threshold showing of a need to make an inspection of

the crime scene, the rape victim’s home, to obtain evidence that was relevant and material

to his defense. Id. at 158. This case, the only authority cited by the State, does not support

the State’s argument that appellant was entitled to a court order to have Ty Brooks submit

his palm prints or that defense counsel did not act with due diligence in failing to seek such

an order.

       The State also argues that counsel could have asked Mr. Mankevich to manually

compare the palm prints found at the murder scene with Ty Brooks’ prints, which it asserts



                                            -58-
“were already on file.” It contends that appellant knew that Ty Brooks was a suspect, based

on the statement by James Brooks that Mr. Thomas identified himself and Ty Brooks as

possible perpetrators. Under these circumstances, the State argues that Ty Brooks’ prints

“were discoverable,” and due diligence required a request to compare the unidentified

prints found at the scene with those of Ty Brooks.

       There are two problems with this argument. First, contrary to the State’s assertion,

the evidence does not reflect that Ty Brooks’ palm prints were on file and available for a

manual comparison, either at the time of trial or during the time period in which to file a

motion for new trial. Indeed, the record reflects that the police did not begin taking palm

prints of arrestees in the area until after Ms. Wilford’s murder, and the known palm prints

that Mr. Mankevich used to make the match were taken from Ty Brooks in 2011.

       Second, as appellant notes, Ty Brooks was one of 24 potential suspects disclosed to

trial counsel, not including appellant, Mr. Faulkner, and Mr. Andrews. To be sure, this list

of persons who could have left the palm prints could be further narrowed down to 12,

including Ty Brooks, Boozie Thomas, and James Brooks, based on police records that

showed that other suspects already had been palm printed or could otherwise be eliminated

as suspects. Ty Brooks, however, remained as just one of a number of suspects. 37 Given


       37
           Other suspects who had not had their palm prints taken, pursuant to the suspect
list in the State’s files, included: a “prison escapee” who was reported by a neighbor of the
victim as a possible suspect; the minister of Ms. Wilford’s church who had “scratches on
his face on the day following the homicide” and who allegedly was “extremely upset over
the victim’s death even though he hardly knew her”; a man who allegedly told his employer
that his sister’s boyfriend and the boyfriend’s brother had committed the (continued . . .)


                                            -59-
the number of possible suspects, we cannot conclude that “due diligence” required

appellant to take legal action, assuming that was possible, to obtain palm prints of all of

the potential suspects, including Ty Brooks, Mr. Thomas, and James Brooks, and have

them manually compared to the crime scene lifts.

       We agree with appellant that the palm print “match” satisfied the second prong of

the CP § 8-301 test, i.e., newly discovered evidence that could not have been discovered

by due diligence in the requisite time period. It is not disputed that the palm print match

was not known prior to February 2006, and the capability of the automated system to

conduct palm print searches was not available before 2009, when the State’s AFIS vendor

added the function. Under these circumstances, and given that the match was determined

only after a new development in matching technology, we hold that the evidence that the

previously unidentified palm print was a match to Ty Brooks constitutes newly discovered

evidence that could not have been discovered with due diligence. See Ward v. State, 221

Md. App. 146, 163 (2015) (newly discovered evidence can include new testing methods

that did not exist at trial and are used to test evidence introduced at the original trial). See

also Ex Parte Miles, 359 S.W.3d at 664 (new evidence of identification of the source of




(. . . continued) homicide but “denied making such statement” when questioned by the
police; a man implicated via “anonymous letter”; a confidential source who later became a
suspect when it was discovered that he was “very paranoid,” allegedly “stab[bed] . . . walls
and counter tops” with a knife to frighten his estranged wife, and attempted to “burn [his
wife’s] house down while she was still inside”; a “former bo[a]rder” of Ms. Wilford who
was implicated by a confidential source; and a man who allegedly told a cellmate that “he
was a hired killer and had just completed a job on the ‘Shore’ for ten thousand dollars,”
which involved killing a woman.

                                             -60-
the previously unidentified fingerprint was “not ascertainable through the exercise of

reasonable diligence” prior to the requisite time period). The circuit court abused its

discretion in finding to the contrary.

       In sum, appellant met his burden of showing that the palm print evidence and the

Bollinger-Haddaway tapes constituted newly discovered evidence that could not have been

discovered in the exercise of due diligence in time to move for a new trial pursuant to Rule

4-331. Accordingly, the next step in the analysis is whether that evidence met the third

requirement for newly discovered evidence, that it creates “a substantial or significant

possibility that the result may have been different, as that standard has been judicially

determined.” CP § 8-301(a)(1).

                                            C.

                       Substantial Possibility of a Different Result

       The third prong of the analysis “involves a determination regarding the impact of

the evidence.” Jackson, 216 Md. App. at 366. The test is “whether, if [the convicting] jury

had had the benefit of the newly discovered evidence as well as the evidence that was

before them, would there be ‘a substantial or significant possibility that the result would

have been different?’” Yonga v. State, 446 Md. 183, 211 (2016) (quoting Yonga, 221 Md.

App. at 69) (internal quotation marks omitted).         “‘[T]he 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.’” McGhie v. State,




                                           -61-
449 Md. 494, 510 (2016) (quotation marks omitted) (quoting Yorke v. State, 315 Md. 578,

588 (1989)).

       Appellant contends that the circuit court erroneously discounted the significance of

the newly discovered evidence, which he asserts “both (1) undermines the State’s case

against Smith at its core and (2) implicates Brooks and Thomas as the murderers.” He

argues that, given the presence of Ty Brooks’ prints at the point of entry, “corroborated by

[Mr.] Thomas’ confession independently made years earlier, [Mr.] Keene’s observation of

a suspicious car at the house, and evidence showing [Ms.] Haddaway’s corruption of the

prosecution, the proof of innocence is overwhelming.”

       The State argued in its brief that, given the court’s determination that appellant did

not exercise due diligence with respect to discovering the new evidence, “it is not necessary

to consider whether the evidence created substantial possibility of a different outcome.”

As indicated, we have rejected that proposition, at least with respect to the palm print

evidence and the Bollinger-Haddaway tapes. On the merits of the court’s decision in this

regard, the State argues merely that the circuit court is presumed to properly exercise its

discretion in applying the substantial possibility test to the evidence.

       Our review of the circuit court’s memorandum opinion suggests that the circuit

court rested its decision on its finding that the second prong of the test, due diligence, was

not satisfied, and therefore, the court did not address the third prong, the substantial

possibility of a different result. After a five-page discussion of the evidence as it related to

the second prong of the test, the circuit court stated as follows:



                                             -62-
              The court is, therefore, not persuaded that the Petitioners have proved
       that there is a substantial or significant possibility that the result in their
       respective trials. Nor is the court persuaded that there is newly discovered
       evidence that would lead to a substantial or significant possibility of a
       different result in the Petitioners’ respective trials.

       The State argues that, in the first sentence, the words “would have been different”

simply were deleted, and this sentence shows that the court did address the substantial

possibility prong and resolved it against appellant. Although that is one possibility, a

review of the entire memorandum opinion suggests the more likely possibility that the

denial of the petition was based on the second requirement, due diligence, and the first

sentence, which is incomplete, was intended to be cut, or rewritten, as opposed to words

being inadvertently omitted. We are not persuaded that the court conducted an independent

analysis of the third requirement, the substantial possibility of a different result.

       That presents a problem for review of this requirement by this Court, which reviews

the circuit court’s decision for an abuse of discretion. Indeed, the statute provides, contrary

to the State’s argument that we presume that the court correctly applied the statute, that the

court “shall state the reasons for its ruling on the record.” CP § 8-301(f)(2). The court

here did not give its reasons for a finding, if any, that the tapes and the palm print evidence

did not create a substantial or significant possibility of a different result in appellant’s trial.

As indicated, that is a trial court function that we review for an abuse of discretion. See

Jackson v. State, 164 Md. App. 679, 713-14 (2005) (“It is not for an appellate court to

decide whether it thinks a piece of newly discovered evidence might have made a

difference” in appellant’s trial; that is for the trial judge, “who is uniquely competent to



                                               -63-
assess whether the new evidence is worthy of being credited” and whether there was a

substantial possibility it would have led to a different result.).

       Indeed, in Thompson v. State, 411 Md. 664, 683-84 (2009), where the circuit court,

in the context of a CP § 8-201 claim, applied the wrong standard, i.e., whether the evidence

“will exculpate the Petitioner,” the Court of Appeals remanded the case to the circuit court

to consider, under the appropriate test, whether a “substantial possibility exists that the

petitioner would not have been convicted.” We also will remand the case to the circuit

court to consider whether, if the jury that convicted appellant had the benefit of the

Bollinger-Haddaway tapes and the palm print evidence, there is a substantial or significant

possibility that the result of the trial would have been different. The circuit court will

determine whether presentation of new evidence will be permitted on remand.

                                               D.

                                     Evidentiary Issues

       Appellant contends that the circuit court erred in curtailing his ability to present

evidence at the innocence hearing that implicated Ty Brooks in Ms. Wilford’s murder.

Specifically, he asserts that the court erred: (1) in precluding him from calling Ty Brooks

as a witness on the ground that he was incompetent to testify based on his out-of-state

perjury conviction; and (2) in redacting Ty Brooks’ name from Mr. Thomas’ statement

implicating the two of them in the murder.

       Because we are remanding the case for further proceedings, we need not decide

these claims. On remand, the parties can choose whether to revive these issues, and if so,



                                              -64-
the court can determine whether evidence in this regard is admissible in the court’s analysis

of the substantial possibility of a different result. We will, however, for the guidance of

the circuit court, offer a few comments.

                                             1.

                            Scope of the Admissible Evidence

       As indicated, the appellate courts have explained that the third requirement requires

an analysis regarding “whether, if [the convicting] jury had had the benefit of the newly

discovered evidence as well as the evidence that was before them, would there be ‘a

substantial or significant possibility that the result would have been different?’” Yonga v.

State, 446 Md. 183, 211 (2016) (quoting Yonga, 221 Md. App. at 69) (internal quotation

marks omitted). See also Campbell v. State, 373 Md. 637, 670 (2003) (The trial judge

“weighed the newly discovered evidence and considered its significance in relation to the

evidence already presented at trial.”). Thus, the analysis focuses on the significance of the

newly discovered evidence on the verdict.

       Here, however, the evidentiary claims involve evidence that is not claimed to be

newly discovered. 38 Neither party on appeal addresses whether, in addressing a petition

for writ of actual innocence, the court can consider evidence other than the newly

discovered evidence in assessing the possibility of a different result. Compare State v.

Hess, 290 P.3d 473, 476 (Ariz. Ct. App. 2012) (in determining whether newly discovered


       38
          The circuit court found that Mr. Thomas’ statement to the police was made
available to the defense at trial, and therefore, it was not newly discovered evidence. This
contention has not been challenged on appeal.

                                            -65-
evidence probably would result in a different verdict, court should consider other evidence

affecting value of new evidence), with Commonwealth v. Reese, 663 A.2d 206, 209-10 (Pa.

Super. Ct. 1995) (in determining whether newly discovered evidence would have affected

the outcome of the trial if it had been introduced, court should not consider other evidence

that was not introduced at the original trial). If, on remand, appellant wants the court to

consider the Ty Brooks evidence that is not claimed to be newly discovered evidence, nor

evidence presented at trial, the court should assess whether that is appropriate in the context

of the CP § 8-301 analysis of the substantial possibility of a different result. If the court

determines that it is appropriate to consider this evidence, we suggest it reassess its original

rulings in light of the following discussion.

                                                2.

                                          Ty Brooks

       Appellant’s first claim is that the circuit court erroneously precluded him from

calling Ty Brooks, a convicted perjurer, as a witness at the hearing. 39 The court’s decision

barring testimony by Ty Brooks was based on Md. Code (2015 Supp.) § 9-104 of the Courts

and Judicial Proceedings Article (“CJP”), which at the time of the hearing stated: “A person


       39
          Appellant also claims that the court erred in precluding him from playing a portion
of Ty Brooks’ 2015 recorded police interview in which he stated that he “terrorized
Easton,” admitting that he committed numerous robberies and burglaries in the area. He
stated, however, that he did not remember Ms. Wilford’s house, that murder was not his
“MO.” Defense counsel argued that these statements were not offered for the truth of the
matter asserted, “but for the opposite of the truth—as false denials demonstrating his
consciousness of guilt—and they were admissible as nonhearsay.” Although it is not clear
to us how these statements showed consciousness of guilt, that will be an issue for the
circuit court to address on remand if appellant seeks again to introduce it.

                                             -66-
convicted of perjury may not testify.” The parties on appeal dispute the applicability of

this statute to out-of-state perjury convictions.

       Although this presents an interesting issue, it will not be relevant to the proceedings

on remand. The General Assembly repealed CJP § 9-104, effective October 1, 2016. The

effect of a prior perjury conviction is now addressed in CJP § 10-905(c), which states:

“Evidence that a witness has been convicted of perjury shall be admitted for the purpose

of attacking the credibility of the witness, regardless of the date of the conviction, if the

evidence is elicited from the witness or established by public record during examination of

the witness.” Accordingly, on remand, Ty Brooks’ perjury conviction will no longer be a

bar to his testimony.

                                              3.

             Redacting Ty Brooks’ Name from James Brooks’ Statement

       Appellant’s second evidentiary claim involves James Brooks’ statement that

Mr. Thomas advised that he and Ty Brooks killed Ms. Wilford. The court precluded

reference to Ty Brooks, noting that a “statement against penal interest . . . applies to the

declarant not some other person.” It ruled that counsel could ask James Brooks if

Mr. Thomas “might have had an accomplice,” but counsel could not attempt to elicit an

identification of any accomplice because the “particular identification of who the

accomplice is . . . goes beyond [a] statement against penal interest.”

       In State v. Matusky, 343 Md. 467, 482 (1996), the Court of Appeals applied a more

nuanced test. It held that, in determining the admissibility of a declaration against the penal



                                             -67-
interest of an unavailable declarant, the court should review “the entire declaration to

determine which portions of it are directly contrary to the declarant’s penal interest, and

which collateral portions are so closely related as to be equally trustworthy.”

       We note, however, that the circuit court’s comments suggest that it found

James Brooks’ statement to be suspect, indicating that the statement did not warrant much

weight because it was “at best, equivocal.” In that regard, the court stated:

              The problem with the Petitioners’ assertion [that James Brooks’
       statement was reliable] is that stabbing Mrs. Wilford and leaving her dead is
       contradicted by the forensic evidence that was adduced at trial. She must
       have come in the house and placed her groceries on the table before being
       confronted by her assailants. The evidence revealed that she had been
       stabbed repeatedly. There were broken knife blades on the floor around her
       body. Further, the knife wounds indicated that she was in a defensive posture
       and, therefore, there appeared to have been something of a struggle between
       Mrs. Wilford and her assailant(s). Also, the most compelling image of
       Mrs. Wilford is that she was lying on her back with a knife jammed into her
       cheek. None of this evidence suggests the possibility that she could have
       been stabbed in the back and left for dead.

               Although [James] Brooks did not recant his statement that
       Boozie Thomas had told him that he had killed Mrs. Wilford, the court finds
       his testimony as being, at best, equivocal. He said that he was on drugs and
       that he had been high for several days and that Boozie Thomas and he were
       high at the time that he made the alleged statement. He also testified that
       when he was a drug addict he did some bad things and now wanted to set
       things right. He told this story because he believed that he could get reward
       money.

On remand, if appellant seeks to pursue this evidentiary issue, the court can clarify whether

James Brooks’ statement warrants any weight in the analysis whether the newly discovered

evidence creates a substantial or significant possibility of a different result.




                                             -68-
                                              II.

                     Motion to Reopen Post-Conviction Proceedings

       After the circuit court concluded that it would not grant appellant’s petition for writ

of actual innocence, the court turned to appellant’s motion to reopen his post-conviction

proceeding. In that context, it addressed only the Bollinger-Haddaway tapes, and it found

that the discovery of these tapes did not warrant reopening post-conviction proceedings

because “[a]dditional impeaching evidence against Ms. Haddaway does not necessarily

mean that the testimony of the other witnesses becomes less credible.” 40 The court noted

that the “arrangement regarding Landon Janda does not contradict any other evidence

presented,” and it was not a precondition to Ms. Haddaway providing information that led

to the arrest of appellant. Accordingly, the court stated that it did “not believe that it would

advance the interests of justice to reopen the post-conviction proceedings.”

       Appellant contends that the circuit court “erred in denying [his] motion to reopen

and by not granting postconviction relief.” He argues that the court “abused its discretion

because it ignored nearly all of the evidence and claims [appellant] presented in his motion

to reopen, exclusively addressing the suppression of the Haddaway Tapes.” Appellant

asserts that the tapes were “only a single facet” of the “cascade of innocence evidence and


       40
         In that regard, the court earlier in its opinion noted that Ms. Haddaway’s testimony
was corroborated by Mr. Andrews and appellant’s three separate confessions, to
Sergeant Bollinger, Ms. Haddaway, and Mr. Snow. We also note that, in his confession to
Sergeant Bollinger, appellant accurately stated that Ms. Wilford was wearing a blue coat
and had glasses on a chain around her neck, and Sergeant McCauley testified that he had
reviewed various newspaper articles from 1987 through 1999, and none of these articles
contained a description of what Ms. Wilford was wearing when she was killed.

                                             -69-
the indisputable proof of serious constitutional violations that marred [his] trial

proceedings,” all of which demonstrate that it is in the interests of justice to grant his

motion to reopen.

       The State does not dispute that the circuit court’s order denying appellant’s motion

to reopen should be vacated, and it argues that the proceedings should be remanded to the

circuit court for further consideration. We agree.

       The circuit court “may reopen a postconviction proceeding that was previously

concluded if the court determines that the action is in the interests of justice.” CP § 7-104.

The court must exercise discretion when ruling on a motion to reopen post-conviction

proceedings, which “prevents the court from acting arbitrarily.” Gray v. State, 388 Md.

366, 382 (2005). The record must reflect that the court’s discretion “was in fact exercised.”

Id. at 384.

       Here, the record does not indicate that the court properly exercised its discretion in

deciding the motion to reopen post-conviction proceedings for several reasons. Initially,

as noted by the State, the circuit court issued an order setting forth the schedule for the

proceedings, which provided that the petitions for writ of actual innocence be addressed

first, and separate from, the motions to reopen. Following this schedule, the court heard

opening arguments, received evidence, and heard closing arguments on the petitions for

writ of actual innocence. On the last day of this hearing, which the State asserts lasted

more than 11 hours, the court advised that it would “take th[e] matter sub curia.” Contrary

to the ordered schedule, and without hearing additional evidence or separate argument on



                                            -70-
the motions to reopen, the court then decided both the petitions for writ of actual innocence

and the motions to reopen, without providing any explanation for the change in procedure.

       Moreover, the court’s opinion indicates that it did not consider all of appellant’s

claims. Although a court is not required to explain its reasons for denying a motion to

reopen, see Gray, 388 Md. at 381, the record reflects that the circuit court mischaracterized

the basis of the motion as including only one ground. In its written memorandum, the court

characterized the Bollinger-Haddaway tapes as “the basis” for appellant’s motion, where

the motion actually encompassed several claims, including an ineffective assistance of

counsel claim. Under these circumstances, we conclude that the court abused its discretion

in denying the motion to reopen post-conviction proceedings.

       Accordingly, we vacate the circuit court’s judgments denying appellant’s petition

for writ of actual innocence and his motion to reopen post-conviction proceedings and

remand to the circuit court for further proceedings.


                                                       JUDGMENTS OF THE CIRCUIT
                                                       COURT FOR TALBOT COUNTY
                                                       VACATED. CASE REMANDED
                                                       FOR FURTHER PROCEEDINGS.
                                                       COSTS TO BE PAID BY TALBOT
                                                       COUNTY.




                                            -71-
