Smith v. State ( 2022 )

Jonathan D. Smith, Sr. v. State of Maryland, No. 283, September Term, 2021.
Opinion by Graeff, J.
CRIMINAL PROCEDURE – PROPER REMEDY – BRADY VIOLATION
Where there is a Brady violation, a new trial typically is the most severe sanction
available, and dismissal of an indictment on due process grounds is an appropriate remedy
only in rare cases. Even in the situation where a defendant shows willful misconduct by
the State, dismissal is appropriate only where there is irreparable prejudice to the defendant
that cannot be resolved by less drastic alternatives. Appellant failed to make this showing.
Where an appellant’s trial is reversed for a reason other than the legal sufficiency of
the evidence, there is no double jeopardy bar to a retrial.
The circuit court properly determined that appellant was not entitled to dismissal of
the charges on due process or double jeopardy grounds.
Circuit Court for Talbot County
Case No. 20-K-00-006884
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 283
September Term, 2021
______________________________________
JONATHAN D. SMITH, SR.
v.
STATE OF MARYLAND
______________________________________
Wells, C.J.,
Graeff,
Eyler, Deborah S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Graeff, J.
______________________________________
Filed: September 28, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
*Kehoe, Christopher B., J., did not participate in
the Court’s decision to designate this opinion for
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-09-28 14:58-04:00
publication pursuant to Md. Rule 8-605.1.
Suzanne C. Johnson, Clerk
This is the sixth time that this Court has considered challenges to the convictions of
Jonathan D. Smith, Sr., appellant, relating to the 1987 murder of Adeline Wilford, who was
stabbed to death in her farmhouse in Talbot County, Maryland.1 In this appeal, appellant
contends that the Circuit Court for Talbot County erred in denying his motion to dismiss
the charges against him on due process and double jeopardy grounds.
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts and proceedings have been detailed in previous reported
opinions. See Faulkner and Smith v. State, 468 Md. 418 (2020); Smith v. State, 233 Md.
App. 372 (2017).2 We set forth here only the facts needed to address the issues on appeal.
1
Previous cases include: Smith v. State, No. 688, Sept. Term, 2001 (filed Jan. 17,
2002) (denying appellant’s claims of error during trial, but remanding for a hearing on
appellant’s motion for a new trial), aff’d, 371 Md. 496 (2002); Smith v. State, No. 1184,
Sept. Term, 2003 (filed Nov. 4, 2004) (affirming trial court’s decision on remand to deny
appellant’s motion for new trial); Smith v. State, No. 850, Sept. Term, 2009 (filed June 9,
2010) (affirming trial court’s denial of appellant’s petition for post-conviction relief); Smith
v. State, 233 Md. App. 372 (2017) (vacating trial court’s denials of petition for a writ of
actual innocence and motion to reopen post-conviction proceedings and remanding for
further proceedings); and Smith v. State, No. 619, Sept. Term, 2018 (filed June 3, 2019)
(affirming trial court’s decision on remand to deny appellant’s petition for a writ of actual
innocence), rev’d sub nom. Faulkner v. State, 468 Md. 418 (2020).
Faulkner and Smith were both convicted of Ms. Wilford’s murder, and the Court
2
of Appeals addressed their petitions for a writ of actual innocence in one opinion.
1
I.
The Murder of Adeline Wilford
On January 5, 1987, Ms. Wilford was stabbed to death in the kitchen of her
farmhouse in Talbot County. A neighbor of the 68-year-old victim found her body. When
Maryland State Police (“MSP”) officers arrived at the farmhouse, they saw the keys to the
house still in the door lock and Ms. Wilford lying face up on the kitchen floor. She was
wearing a blue wool coat and had a pair of corded glasses around her neck. “There were
numerous stab wounds to Ms. Wilford’s hands and face, and a large butcher knife was
imbedded in Ms. Wilford’s cheek/eye area. There were numerous defensive wounds on
Ms. Wilford’s hands and arms, suggesting that she had struggled with her killer, attempting
to ward off the attack.” Faulkner, 468 Md. at 428.
A ground-floor window of the farmhouse was propped open with a stick. The
window led to a utility room containing a washing machine. The police “lifted latent
fingerprints and palm prints from various places in the home, including the exterior of the
utility room window and the washing machine in the utility room.” Id. at 428-29.3
Based on the condition of the farmhouse and items missing from the home, the
police “theorized that one or more individuals burglarized Ms. Wilford’s home on the
afternoon of January 5 by entering the utility room through the propped-open window, and
3
After Maryland State Police (“MSP”) officers discovered the palm prints at Ms.
Wilford’s farmhouse, “the local MSP implemented a policy, in several jurisdictions, of
collecting palm prints from 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.” Smith, 233 Md. App. at 393.
2
were in the process of stealing items when Ms. Wilford returned home.” Id. at 429. 4 The
burglars then “stabbed Ms. Wilford to death after she entered the home, and left before Ms.
Wilford’s neighbor arrived.” Id.
II.
Subsequent Investigations and the Arrest of Appellant
The murder investigation continued for years. In 1991 and 1992, James Brooks told
MSP that his friend, William Thomas, advised that he and Tyrone (“Ty”) Brooks
burglarized Ms. Wilford’s farmhouse and stabbed her to death.5
The investigation stalled until December 1999, when Ms. Wilford’s son asked to
have the case reopened due to information from a potential witness. Id. at 431-32. 6 On
January 17, 2000, Beverly Haddaway advised the police that, on the afternoon of the
Wilford murder, she observed three individuals, David Faulkner, Ray Andrews, and her
4
Several items were missing from Ms. Wilford’s farmhouse, including a tan
pocketbook that Ms. Wilford was seen carrying on the day of the murder, her custom-made
diamond and sapphire ring, and her wallet, which contained credit cards and an
undetermined sum of cash. Smith, 233 Md. App. at 381. “The police did not recover any
of these items.” Id.
5
MSP subsequently learned that William Thomas and Tyrone Brooks “had criminal
records involving armed robbery and burglary convictions, respectively, in Talbot County
in the 1980s, and that both suspects were at liberty on the day of the Wilford burglary and
murder.” Faulkner, 468 Md. at 425. “However, MSP did not attempt to determine in
1991–92 whether the palm prints left at the scene of the crime matched the palm prints of
either suspect.” Id.
6
Ms. Wilford’s son, Charles Curry Wilford, “offered 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.” Smith, 233 Md. App. at 381.
3
nephew, appellant, exit a cornfield on foot near the intersection of Black Dog Alley and
Kingston Road. Id. at 426.7 They had blood on them. Id. Ms. Haddaway stated that, two
years after the encounter, appellant told her that he killed Ms. Wilford. Smith, 233 Md.
App. at 381.
Ms. Haddaway subsequently agreed to wear a wire and record a conversation
between herself and appellant. During a recorded conversation on April 11, 2000, Ms.
Haddaway asked appellant about “that day” she saw him on Kingston Road when “that old
woman got murdered,” and appellant told her that a dog had bit him and he stabbed it.
Faulkner, 468 Md. at 433. Ms. Haddaway asked appellant: “Who killed the old woman,
you? You told me you did.” Id. Appellant answered: “I don’t know.” Id. The
conversation then continued, as follows:
[Ms. Haddaway]: . . . I just wanted to know before I died. I always think that
[Mr. Faulkner] done it. You? You said you did. Why are you laughing?
[Appellant]: I didn’t do nothing like that.
[Ms. Haddaway]: Why were you in that field with blood all over you and no
coat? . . . [Y]ou said that blood [had] come off of a dog, but I think that you
held her and [Mr. Faulkner] killed her. Or one of you three done it.
[Appellant]: They never found out yet have they?
[Ms. Haddaway]: I know that’s why I want to know before I die. I [saw]
you, did I ever tell anybody? You know I ain’t going to tell, God damn
you’re my blood. I just wanted to know if you done it. I didn’t really think
you did. I think crazy [Mr. Faulkner] did.
7
“According to an MSP officer’s testimony at trial, Ms. Wilford’s home was
approximately two-and-a-half to three miles from the intersection of Black Dog Alley and
Kingston Road.” Faulkner, 468 Md. at 432 n.4.
4
[Appellant]: They could of, it’s a secret when one person knows it ain’t a
secret when two people know.
[Ms. Haddaway]: Well all three of you know.
[Appellant]: What, there’s only two of us.
[Ms. Haddaway]: It was you and [Mr. Andrews] and [Mr. Faulkner].
[Appellant]: [Mr. Andrews] wasn’t there until after it was over.
[Ms. Haddaway]: Where was he?
[Appellant]: Down the road.
[Ms. Haddaway]: [Mr. Andrews] was right with you in the God damn field.
[Appellant]: That was after it was all done with.
....
[Ms. Haddaway]: . . . What the hell did you kill her for or did he kill her for?
[Appellant]: I don’t know I can’t remember.
[Ms. Haddaway]: Jonathan you’re lying because you’re laughing.
[Appellant]: I can’t remember.
[Ms. Haddaway]: Well why do you think I would tell anybody? I ain’t never
told nobody in 12 God damn years. I just wanted to know.
[Appellant]: (inaudible)
[Ms. Haddaway]: Huh?
[Appellant]: She had money.
....
[Ms. Haddaway]: . . . I just wondered if [Mr. Faulkner] did it or you? Tell
me. I ain’t going to tell nobody. I just want to know –
5
[Appellant]: (inaudible) didn’t do it.
[Ms. Haddaway]: You done it. You said you did before. Why did you kill
her? . . .
[Appellant]: I knew she had money.
[Ms. Haddaway]: You knew she had money.
[Appellant]: She had money.
Faulkner, 468 Md. at 433-35. Appellant then stated that the men got $60,000 and split it
three ways.
Appellant stated that he and Mr. Faulkner both stabbed Ms. Wilford, noting: “If
there’s enough money I’ll do it.” Smith, 233 Md. App. at 384. Ms. Haddaway said, “it’s
alright if you don’t get caught,” and appellant replied: “I won’t get caught.” Id.
On April 25, 2000, the police brought appellant, Mr. Faulkner, and Mr. Andrews to
the Easton MSP barrack for questioning. Mr. Andrews told the police that he, Mr.
Faulkner, and appellant walked to a friend’s home on the day of the Wilford murder, and
appellant and Mr. Faulkner “said something to the friend about ‘rob or robbing.’”
Faulkner, 468 Md. at 436. The three men left the friend’s residence and walked toward
Ms. Wilford’s farmhouse. Mr. Andrews waited at the edge of the woods off Kingston
Road while appellant and Mr. Faulkner walked across a field to the farmhouse.
Approximately 20 minutes later, Mr. Andrews saw appellant and Mr. Faulkner running
from the house toward the woods. They told Mr. Andrews to run, and he saw blood on
appellant’s shirt. They encountered Ms. Haddaway on their way to Black Dog Alley, and
appellant told Ms. Haddaway that he had been attacked by a dog. When they got to
6
appellant’s house, appellant and Mr. Faulkner pulled approximately $300–$400 from their
pockets. The next day, when there was news of the Wilford murder, appellant told Mr.
Andrews to “keep his mouth shut” about what had happened.
Appellant also talked to the police. He was advised of his rights, and “although he
initially ‘almost seemed happy to be answering [their] questions,’ his demeanor changed
when [MSP] Sergeant Jack McCauley asked if appellant and Mr. Faulkner had been
involved in any criminal activity together.” Smith, 233 Md. App. at 384. “At that point,
appellant ‘became somewhat withdrawn, dropped his head . . . [a]nd he became very
evasive, fidgety in his seat.’” Id. “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.” Id.
MSP Sergeant John Bollinger subsequently questioned appellant again on April 25,
2000. Appellant ultimately confessed to breaking into Ms. Wilford’s home with Mr.
Faulkner, while Mr. Andrews waited outside. As discussed in more detail, infra, Officer
Bollinger testified that appellant stated that Mr. Faulkner stabbed Ms. Wilford. When
Sergeant Bollinger asked appellant if he had stabbed Ms. Wilford, appellant asked for an
attorney.
III.
Appellant’s Trial
Appellant subsequently was charged with burglary, murder, and related offenses.
Trial began in February 2001. The State’s fingerprint expert, Alexander Mankevich,
7
testified that “he never matched any of the latent prints found at the crime scene to anyone
submitted as a suspect in the case.” Faulkner, 468 Md. at 439. The State’s evidence of
appellant’s guilt consisted of testimony from Mr. Andrews, Ms. Haddaway, and Michael
Snow, a jailhouse informant, as well as appellant’s statements to Ms. Haddaway and
Sergeant Bollinger.
Mr. Andrews testified consistently with the account he gave to the officers. Id. He
stated 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.” Smith, 233 Md. App.
at 387.8 He testified, however, “that he had not been promised any financial reward or
incentive to testify.” Id. at 388.
Ms. Haddaway testified, as follows:
[O]n 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. She pulled over to the side of the road, and appellant approached
her truck. His glasses were broken and repaired with tape or a [band aid],
and he was wearing a white t-shirt that had “red dots” around the collar. Ms.
Haddaway asked him what he was doing there. 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,
appellant said that he had just killed a dog. Ms. Haddaway called appellant
8
“An Alford plea – derived from North Carolina v. Alford, 400 U.S. 25 (1970) –
‘lies somewhere between a plea of guilty and a plea of nolo contendere.’” Faulkner, 468
Md. at 438 n.6 (quoting Bishop v. State, 417 Md. 1, 19 (2010)). “In an Alford plea, the
defendant, ‘although pleading guilty, continues to deny his or her guilt, but enters the plea
to avoid the threat of greater punishment.’” Id. (quoting Ward v. State, 83 Md. App. 474,
478 (1990)). “A defendant entering an Alford plea, while maintaining his or her innocence,
agrees to a proffer of stipulated evidence or to an agreed statement of facts that provides a
factual basis for a finding of guilt.” Id. (citing Jackson v. State, 448 Md. 387, 391 n.3
(2016)).
8
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.
Id. at 386-87 (footnotes omitted). The jury also heard the recording of Ms. Haddaway’s
April 11, 2000 conversation with appellant.
Sergeant Bollinger testified that,
after he tried unsuccessfully to get [appellant] to listen to the recording of
[appellant’s] conversation with [Ms.] Haddaway, [he] asked [appellant]
“what his involvement was in the case,” and [appellant] then told the officers
that [Mr.] Faulkner stabbed Ms. Wilford after she interrupted him and [Mr.]
Faulkner while they were burglarizing her house. [Sergeant] Bollinger
testified that [appellant] told him that, as Ms. Wilford was fighting [Mr.]
Faulkner, “Ms. Wilford fell back into him and that he got blood on his shirt.”
[Sergeant] Bollinger further testified that [appellant] described Ms. Wilford
as “wearing a blue coat, had black hair, had glasses on, on a chain around her
neck.” According to [Sergeant] Bollinger, “after this couple of minutes that
he talked to me,” [Sergeant] Bollinger asked [appellant] if he had ever
stabbed Ms. Wilford, at which point [appellant] asked for an attorney.
Faulkner, 468 Md. at 440.
Mr. 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.” 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.”
9
Smith, 233 Md. App. at 388. Mr. Snow testified that “he did not receive a plea deal or
anything else in exchange for his testimony,” and “he testified against the advice of his
attorney because he found what appellant said to him ‘appalling.’” Id.At the conclusion of the State’s case-in-chief, the defense called Ms. Haddaway as
a defense witness. With respect to inconsistencies between her testimony and the police
report of her conversation with Sergeant Bollinger, Ms. Haddaway stated that a “lot of
things that they wrote down [were] wrong.” Id. She admitted that she and Mr. Andrews’
attorney, Grason Eckel, had visited Mr. Andrews together in jail, and based on the
information she gave, she received “a $10,000 deposit toward a total reward of $25,000.”
Faulkner, 468 Md. at 439-40. “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.’” Smith, 233 Md. App. at 389.
On the last day of trial, appellant testified in his own defense and denied making
any incriminating statements to Mr. Snow. He acknowledged that he made inculpatory
statements to Ms. Haddaway and Sergeant Bollinger, but he testified that those statements
were not true. “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.” Smith, 233 Md. App. at 389.
On rebuttal, the State called Sergeant McCauley as a witness for the State. “He
testified that he had reviewed various newspaper articles from 1987 through 1999, and
10
none of the articles that he reviewed contained a description of what Ms. Wilford was
wearing when she was killed.” Id. at 390.
On March 1, 2001, the jury found appellant guilty of felony murder and daytime
house breaking. Appellant’s direct appeals and post-conviction petitions were
unsuccessful.
IV.
Subsequent Procedural History
In October 2008, the Maryland Automated Fingerprint Identification System
(“MAFIS”) was created, providing MSP with the ability to perform electronic fingerprint
searches. Approximately one year later, in 2009, MAFIS was expanded, giving MSP the
additional ability to perform electronic palm print searches.
In 2011, the New York Innocence Project filed a Public Information Act request on
appellant’s behalf. MSP subsequently produced several recorded conversations between
Ms. Haddaway and Sergeant Bollinger (the “Haddaway-Bollinger recordings”), in which
Ms. Haddaway threatened to testify in a way that would lead to appellant’s acquittal,
“unless the State dismissed unrelated drug charges against her grandson,” Landon Janda.
Faulkner, 468 Md. at 444. Ms. Haddaway stated that she had “one word” that would let
appellant “walk,” explaining that the word was “crazy,” and she “threatened to reveal to
the jury that she had been diagnosed with ‘an extensive emotional and psychological
problem.’” Id. 450. On February 9, 2001, three days before Mr. Andrews’ trial was
11
scheduled to begin, the State entered a nolle prosequi of Mr. Janda’s drug charges. Id. at
444.9
In another recorded conversation between Ms. Haddaway and Sergeant Bollinger
on February 2, 2001, “statements were made indicating that Ms. Haddaway had access to
case files related to the Wilford murder.” Smith, 233 Md. App. at 403. “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.” Id. at 403. “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.’” Id. at 404.
In this recorded conversation, Ms. Haddaway stated that she had gone to the local
jail with Mr. Andrews’ counsel, Mr. Eckel, 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.” Id.
In a recorded conversation several days later, Sergeant Bollinger told Ms.
Haddaway that the State’s Attorney had decided to nol pros her grandson’s case. “Ms.
Haddaway wanted the decision to be in writing, but Sergeant Bollinger told her that was
not going to happen.” Id. at 405. He said: “‘[T]he only thing we want, and protecting
9
“A nolle prosequi, or nol pros, is an action taken by the State to dismiss pending
charges when it determines that it does not intend to prosecute the defendant under a
particular indictment.” Silver v. State, 420 Md. 415, 424 n.5 (2011) (quoting State v.
Huntley, 411 Md. 288, 291 n.4 (2009)).
12
whatever we’re trying her[e], our interest, is all we’re doing. We have three murder trials
coming up.’” Id.During that conversation, Ms. Haddaway stated that
“they gotta go to the jail and scrape the bottom of the bucket to find out if
they can get somebody that’s got six months’ time a way out to see if he’ll
lie for ‘em. And then they gotta go up to jail and try to get a federal prisoner
or [an] undercover cop to try to lie for them, who’s not interested in it. Who
told us that he happened to be a federal prisoner and he don’t give a fuck.”
Faulkner, 468 Md. at 452. Sergeant Bollinger then asked: “Who’s us? Told who?” Id.
Ms. Haddaway answered: “Wonder. I don’t have any papers on it. I just have to go by
memory.” Id.
In August 2013, appellant “filed a motion for post-conviction comparison of latent
prints, requesting that the circuit court order the State to enter the unidentified latent palm
prints from the crime scene into MAFIS to determine whether an unknown suspect could
be identified.” Id. at 444-45. In October 2013, prior to a ruling by the court, the State
asked its fingerprint expert, Mr. Mankevich,
to run the palm prints from the Wilford crime scene in MAFIS. Mr.
Mankevich retrieved the lift cards from the Hall of Records and personally
entered them into MAFIS. After receiving the computer-generated list of
potential matches, Mr. Mankevich compared [Mr. Brooks’] known palm
prints to the palm print taken from Ms. Wilford’s washing machine and the
palm print taken from the exterior of the utility room window. Mr.
Mankevich concluded that [Mr. Brooks] was the source of both those prints.
Id. at 445. The known palm prints that Mr. Mankevich used to make the match were taken
from Mr. Brooks in 2011. Smith, 233 Md. App. at 429.
In June 2015, appellant filed a petition for a writ of actual innocence, asserting three
claims of newly discovered evidence: (1) the palm print match to Mr. Brooks; (2) the
13
Haddaway-Bollinger recordings; and (3) a January 9, 1987 report by Mr. Keene to MSP
that, at approximately 2:00 p.m. on the afternoon of the murder, he saw an Oldsmobile
Cutlass parked next to the front porch of Ms. Wilford’s farmhouse. The circuit court denied
the petition, and this Court reversed, holding that the circuit court erred in finding that
certain evidence did not qualify as newly discovered evidence and remanding for further
proceedings to determine if the newly discovered evidence created “a substantial or
significant possibility that the result of the trial would have been different.” Smith v. State,
233 Md. App. at 433 (2017). On remand, the circuit court again denied the petition, and
this Court affirmed in an unreported opinion. Smith v. State, No. 619, Sept. Term 2018
(filed June 3, 2019).
In 2020, the Court of Appeals reversed. The Court acknowledged that, at
appellant’s 2001 trial, there was “a substantial amount of evidence” introduced against
appellant, including the testimony of Ms. Haddaway and Mr. Andrews that they saw blood
on appellant after the Wilford murder, and Mr. Andrews’ testimony that appellant was at
the farmhouse that day. Faulkner, 468 Md. at 473, 479. Moreover, appellant confessed to
three different people, including to Sergeant Bollinger, where he accurately stated that Ms.
Wilford was wearing a blue coat and had glasses on a chain around her neck. Id. at 440.10
The Court concluded, however, that despite this evidence, there was a substantial or
significant possibility that the jury would have reached a different result if the jury had
10
As indicated, 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.
14
heard the newly discovered evidence. Id. at 479. It found that the palm print evidence
showing that Ty Brooks entered Ms. Wilford’s home through the ground-floor window,
where the police believed the murderer to have entered the home, was compelling evidence,
and this evidence, as well as related evidence linking Mr. Brooks and Mr. Thomas to the
crime, created a substantial possibility that a jury would have found appellant not guilty.
Id. at 468-70. The Court stated that the Haddaway-Bollinger recordings “confirm[ed] that
relief [was] warranted.” Id. at 474.
The Court then discussed the appropriate remedy. Appellant asked that the Court
order his convictions vacated or, in the alternative, remand for a trial. The Court stated
that it did “not exonerate” appellant, noting that appellant had confessed involvement in
the murder on several occasions, and Mr. Andrews’ consistent account of the murder was
“difficult to reconcile” with appellant’s claim of actual innocence. Id. at 479. The Court
concluded that a new trial was warranted in light of the newly discovered evidence, where
the jury could consider the conflicting evidence. Id. at 479-80.
V.
Appellant’s Motion to Dismiss
On July 16, 2020, appellant filed a motion to dismiss the charges against him,
asserting that the State’s “willful misconduct” in suppressing favorable evidence that was
material to the case violated his due process rights under Brady v. Maryland, 373 U.S. 83(1963), and “no lesser remedy would adequately cure the violations.” He also contended
that the charges should be dismissed under the federal Double Jeopardy Clause, arguing
15
that the State “engaged in bad faith misconduct to prejudice [his] prospects for an
acquittal.”
The State opposed the motion. It argued that appellant’s motion was untimely,
asserting that the deadline for filing the motion “expired five days after discovering the
allegedly previously unknown information.” It also argued that the Court of Appeals had
“the absolute power” to acquit appellant by exonerating him, but it declined to do so in
Faulkner, and therefore, pursuant to the law of the case doctrine, the circuit court was
“powerless to stop the mandate of the Court of Appeals for a new trial.” Finally, the State
asserted that the rule established in Oregon v. Kennedy, 456 U.S. 667 (1982), which
prohibits prosecutors from intentionally “goading” a criminal defendant into moving for a
mistrial, did not apply in this case because the Maryland appellate courts have not extended
Kennedy “to ever bar the retrial of a case on remand.”
On November 30, 2020, the circuit court held a hearing on the motion to dismiss.
Appellant’s counsel reiterated that the motion was predicated on two grounds: (1) due
process; and (2) double jeopardy. With respect to the due process claim, the first inquiry
was “whether there was willful . . . misconduct . . . by the State . . . that was not negligent
but a higher level of culpability including recklessness or intentional conduct or even bad
faith.” The second inquiry was whether there was prejudice.
With respect to double jeopardy, counsel argued that, “if a prosecutor engages in
misconduct in bad faith that is designed to prejudice the [d]efendant’s chances for acquittal
during a trial and a mistrial is granted[,] that such conduct should preclude a retrial.”
16
Defense counsel argued that dismissal “was appropriate where a case was reversed and
remanded because of a pattern of misconduct.”
The court responded: “This is a remand from the Court of Appeals. The slate i[s]
wiped clean. There is no jeopardy.” It stated: “This is not a double jeopardy issue. This is
whether the conduct of the State in withholding exculpatory information demands that . . .
the door to the courthouse be closed to the State to further prosecute [appellant]. It’s not a
double jeopardy case. There is no jeopardy at this point.”
The State then presented its argument. It asserted that, “[e]ven had there been a
Brady violation . . . dismissal of an indictment as a sanction is appropriate only when less
drastic alternatives are not available.” It argued that dismissal was a last resort, noting that
“[t]he Court [of Appeals] has issued an order for a new trial . . . . [Ms.] Haddaway is
probably not likely . . . to testify. That’s the remedy. And that remedy is less drastic than
dismissal of the case.” With respect to the motion’s second ground, the State argued that
appellant’s double jeopardy claim was a “red herring.” It asserted that a double jeopardy
bar “only applies in cases of mistrial. And it has not been extended therefrom. And this
[case] was not a mistrial case.”
On January 7, 2021, the court issued a Memorandum Opinion and Order denying
the motion to dismiss. The court noted that there was “no need to outline the Brady
violations by the State” because they had been set forth by the Court of Appeals.11
11
The Court of Appeals, in assessing appellant’s and Mr. Faulkner’s petitions for
writ of actual innocence, discussed the State’s failure to meet its duty to disclose: (1) in its
disclosure to the defense that Mr. Keene told the police that he saw an Oldsmobile Cutlass
17
Addressing appellant’s due process claim, the court stated that, although the State
“failed to meet its legal obligation to turn potentially exculpatory evidence over” to
appellant, the State’s conduct did “not shock the conscience of the court.” It stated that
appellant “has a remedy against the State: a new trial in which exculpatory evidence can
be presented.”
With respect to appellant’s double jeopardy claim, the court stated that “a retrial to
afford a defendant an opportunity to vindicate the evils of the first trial does not trigger the
double jeopardy clause . . . . It is the criminal defendant’s opportunity to have the fair trial
to which he or she was entitled.” The court stated that “the proper remedy for [appellant]
is a new trial, in which [he] would have all of the rights to object to, or otherwise test, the
evidence.”
VI.
Appellant’s Subsequent Plea
On April 21, 2021, appellant pleaded guilty, pursuant to a conditional Alford plea,
to the charges of first-degree felony murder and daytime housebreaking, with the right to
appeal the circuit court’s denial of the motion to dismiss. The Agreement and Proffer
Statement between the State and appellant, which included 17 pages, provided, in pertinent
part, as follows:
[Appellant] is not admitting guilt to any crime and maintains his absolute
innocence, but agrees that the State has sufficient evidence to support a prima
at Ms. Wilford’s home, by failing to disclose that the date and time of this alleged sighting
was close to 2:00 p.m. on the day of the murder, Faulkner, 468 Md. at 461 n.19; and (2)
by “improperly suppress[ing] the agreement between the State and Haddaway to dismiss
drug charges against Haddaway’s grandson prior to her testimony.” Id. at 474.
18
facie case that a jury might rely upon to return a guilty verdict (“Conditional
Alford Plea”). In exchange for [appellant] entering into the Conditional
Alford Plea, the State has agreed that the [c]ourt, if it accepts his plea, shall
be bound to sentence [appellant] to life in prison with the possibility of
parole, and shall be bound to suspend the balance of [appellant’s] sentence
with credit for time served since April 25, 2000. In addition, the parties have
agreed that the [c]ourt shall place [appellant] on a period of probation on the
condition that [appellant] have no contact, directly or indirectly, with the
surviving children of . . . [Ms.] Wilford. The State [w]ill defer to the [c]ourt
on all other terms of the probation, but [appellant], through counsel, will be
free to advocate to the [c]ourt concerning the terms of probation.
* * *
Pursuant to this agreement, the State and the [d]efense submit the following
Proffer Statement in Support of Conditional Alford Plea Under Md. Criminal
Rule 4-242(d):
The State and the [d]efense agree that the following evidence would
be offered by one of the parties at any retrial of [appellant], through
the testimony of witnesses, prior transcripts, other documents, audio
recordings, and photographs. The State and the [d]efense do not
necessarily agree upon the truth of any particular piece of evidence
nor do the State and the [d]efense agree that any particular piece of
evidence would be admitted at retrial, unless expressly stated below.
Some or all of the evidence described herein might or might not be
heard by the trier of fact at trial, the parties nonetheless agree that the
record described in this proffer is established for the purpose of
consideration of [appellant’s] [a]ppeal (for instance, the testimony of
Ms. Haddaway, the contents of her recorded discussion with
[Sergeant] Bollinger, the dismissal of charges against her grandson,
and the withholding of evidence by Deputy State’s Attorney Marie
Hill might not be heard by a jury, but the State and Defense agree that
they are crucial portions of the record for consideration of
[appellant’s] appeal).
* * *
The State and the [d]efense agree that [Ms.] Haddaway’s testimony
would not be admissible at any retrial in the State’s case in chief . . . .
* * *
19
The State and the [d]efense agree that then Deputy State’s Attorney
Marie Hill knew of the existence of witness [Ms.] Haddaway’s
demand that her grandson’s charges be dismissed, and knew or should
have known that the State nol prossed the charges against the
grandson on February 9, 2001 and intentionally, willfully, and/or
recklessly suppressed exculpatory evidence including, but not limited
to, the Haddaway-Bollinger [t]apes and failed to explicitly notify
counsel for [appellant] of the dismissal of the grandson’s charges in
exchange for [Ms.] Haddaway’s cooperation, and failed to provide
exculpatory evidence to the [d]efense prior to trial. The State and the
[d]efense further agree that Marie Hill engaged in other intentional,
willful, and/or reckless misconduct, including misrepresenting the
results of exculpatory DNA evidence . . . .[12]
* * *
The State and the [d]efense finally agree that: [(1)] the murder of
[Ms.] Wilford occurred in Talbot County, Maryland; [(2)] [Mr.]
Andrews would identify [appellant], seated in the [c]ourtroom during
the retrial, as the person present at [Ms.] Wilford’s home on January
5, 1987, the date of that homicide, although [appellant] denies being
present, does not agree to the truth of [Mr.] Andrews’ identification,
and maintains his absolute innocence of any involvement in the crime;
[(3)] Former [Sergeant] Bollinger and [Sergeant] McCauley would
identify [appellant], seated in the [c]ourtroom during the retrial, as the
person who spoke with [Ms.] Haddaway on the covertly recorded
statement on April 11, 2000, although [appellant] denies the truth of
the matters discussed on the recording and maintains his absolute
innocence of any involvement in the crime; [(4)] Bollinger and
McCauley would identify [appellant], seated in the [c]ourtroom
during the retrial, as the person who gave statements to each of them
on April 25, 2000, although [appellant] denies the truth of the former
officers’ testimony concerning his interrogation and maintains his
absolute innocence of any involvement in the crime.
12
Forensic DNA testing performed after the filing of charges excluded appellant as
the source of DNA material “that was found in scrapings taken from under Ms. Wilford’s
fingernails and that came from a source other than Ms. Wilford.” Faulkner, 468 Md. at
438, 443. “[T]he MSP crime lab had furnished the State’s Attorney’s Office with that
information in advance of [appellant’s] trial.” Id. at 443 n.8. At no point prior to trial,
however, did the State disclose to appellant’s counsel information regarding the DNA test
results. Id.
20
The court found that appellant knowingly and intentionally entered a plea of guilty,
and it found appellant guilty of first degree felony murder and daytime housebreaking. The
court imposed a life sentence, suspending all but time served, and placed appellant on
supervised probation for five years.
This timely appeal followed.13
STANDARD OF REVIEW
The dismissal of a criminal indictment is a matter within the sound discretion of the
trial court, and we generally review the court’s decision in this regard for abuse of
discretion. State v. Grafton, 255 Md. App. 128, 143 (2022); Kimble v. State, 242 Md. App.
73, 78 (2019). When, however, a trial court’s decision involves a question of law, such as
the “interpretation and application of Maryland constitutional, statutory, or case law, we
determine de novo, whether the trial court’s conclusions are legally correct.” Grafton, 255
Md. App. at 143; Kimble, 242 Md. App. at 78.
13
A conditional guilty plea under Maryland Rule 4-242 (d)(2) permits the defendant
to “reserve the right to appeal one or more issues specified in the plea that (A) were raised
by and determined adversely to the defendant, and, (B) if determined in the defendant’s
favor would have been dispositive of the case.” Such pleas may be tendered only with the
consent of the court and the State. Id. The defendant has a right to a direct appeal “from
a final judgment entered following a conditional plea of guilty.” MD. CODE ANN., CTS &
JUD. PROC. (“CJ”) § 12-302(e)(3) (2020 Repl. Vol.).
21
DISCUSSION
Appellant contends that the circuit court erred in denying his motion to dismiss the
charges against him, for two reasons. 14 First, appellant argues that his charges should have
been dismissed because the State’s misconduct in suppressing evidence in violation of its
Brady obligations was egregious, violated his due process rights, and substantially
prejudiced his opportunity for a fair trial. He asserts that, under these circumstances, the
proper remedy for the Brady violations is dismissal of the charges with prejudice, as
opposed to a retrial. Second, appellant contends that his charges should be dismissed
because the “State’s bad-faith misconduct…trigger[ed] a double jeopardy bar to retrial.”
The State agrees with appellant that the circuit court’s judgment denying the motion
to dismiss on due process grounds should be vacated and the charges dismissed. It
disagrees, however, that the court erred in denying appellant’s motion to dismiss on double
jeopardy grounds, asserting that, because there was no mistrial in this case, dismissal of
the charges is not warranted on double jeopardy grounds.
Although the State concedes error in the court’s denial of the motion to dismiss, that
is not the end of the inquiry. We are not bound by a party’s concession. See Spencer v.
Md. State Bd. Pharm., 380 Md. 515, 523 (2004) (an appellate court “is not bound by the
14
The Association of Prosecuting Attorneys filed an amicus curiae brief, supporting
appellant’s argument that dismissal of the charges against appellant, with prejudice, is
required.
22
concessions made by the parties on issues of law, which we may independently review.”)
(quoting In re Heather B., 369 Md. 257, 266 n. 9 (2002)).
I.
Law of the Case Doctrine
Before turning to appellant’s two contentions, we briefly address the impact on our
decision of the Court of Appeals’ previous denial of appellant’s request to vacate his
convictions. In Faulkner, 468 Md. at 479, the Court stated that it did “not exonerate
[appellant],” but instead, would grant him a new trial. We note that, pursuant to the “law
of the case” doctrine, where an issue has been decided by the Court of Appeals, it “should
be regarded as settled, and the principles upon which such decision rests should be taken,
as far as applicable, to control” questions in subsequent litigation in the same case. Hagez
v. State, 131 Md. App. 402, 418-19 (2000) (quoting Cohill v. Chesapeake & Ohio Canal
Co., 177 Md. 412, 421-22 (1939)).
Although the Court of Appeals in Faulkner declined to vacate Smith’s convictions
but instead ordered a new trial, it did so in the context of a petition for a writ of actual
innocence. It was not asked to consider, as we are in this appeal, whether the State’s
suppression of evidence barred retrial on the grounds of due process or double jeopardy.
Accordingly, the Court of Appeals did not address the issues presented to this Court, and
the law of the case doctrine does not preclude us from considering them here.
23
II.
Brady Violations
In Brady, 373 U.S. at 87, the Supreme Court held that the State violates a
defendant’s right to due process if it suppresses evidence that is favorable to the defense
and material to guilt or punishment. The parties here, as well as the circuit court, agree
that the State’s suppression of evidence, including the Haddaway-Bollinger recordings and
the DNA test results, amounted to a Brady violation.
The issue we need to decide here is the proper remedy for the Brady violation.
Although a retrial is the typical remedy, we must decide whether dismissal of the charges
is an available remedy, and if so, under what circumstances.
Before addressing that issue and appellant’s specific contentions, we note that “the
dismissal of charges ‘for prosecutorial misconduct is an extreme sanction.’” State v.
Graham, 233 Md. App. 439, 459 (2017) (quoting United States v. O’Keefe, 825 F.2d 314,
318 (11th Cir. 1987)). “[T]he sanction of dismissal should be used sparingly, if at all.”
Thompson v. State, 395 Md. 240, 261 (2006). When considering whether dismissal is a
proper sanction for a Brady violation, it is important to keep in mind the underlying
principle of Brady, which “is not punishment of society for misdeeds of a prosecutor but
avoidance of an unfair trial to the accused.” Brady, 373 U.S. at 87.
24
III.
Due Process
Appellant contends that the State’s conduct was so egregious, it “shocks the
conscience,” and due process requires that his charges be dismissed.15 The determination
whether the government engaged in conduct that violated the defendant’s due process
rights is a mixed question of fact and law. People v. Uribe, 132 Cal. Rptr. 3d 102, 120
(Cal. Ct. App. 2011); see also State v. Gutierrez, 153 Md. App. 462, 470 (2003) (when a
claim is based upon a violation of a constitutional right, the appellate court must make “an
independent constitutional appraisal from the entire record,” and the ultimate issue is a
mixed question of fact and law).
Appellant does not cite any case from the Supreme Court holding that dismissal of
the charges is a proper remedy for a prosecutor’s violation of his or her Brady obligations,
and we have not found one. The United States Supreme Court has stated, however, that
“the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
219 (1982).
Appellant similarly has failed to cite a Maryland appellate court case holding that
dismissal of the charges is a proper remedy for a Brady violation. We note that, recently,
15
Appellant asserts that “[t]he Constitution, Maryland common law, and principles
of justice” support his due process claim. To the extent Smith relies on the due process
protections in the Maryland Constitution, the Court of Appeals has held that they afford no
broader protection than that of the federal Fourteenth Amendment. Dua v. Comcast Cable
of Md., Inc., 370 Md. 604, 628 (2002).
25
in Grafton, 255 Md. App. at 151, we expressly declined to “decid[e] whether dismissal is
or is not an appropriate sanction for a Brady violation.”
In Williams v. State, 183 Md. App. 517, 525-27 (2008), rev’d on other grounds, 416
Md. 670 (2010), this Court rejected an argument that dismissal of Williams’ indictment
with prejudice based on repeated Brady violations was warranted. We stated that “the
provision of a new trial is the standard remedy for a Brady violation, for the simple reason
that evidence, which was initially suppressed, can then be presented to a new jury.” Id. at
526. This Court found “no reason to now depart from this well-settled approach to curing
such violations,” noting that the evidence that had been suppressed at the first trial had
been disclosed, and Williams was free to use it at the second trial. Id. at 526-27.
The Court of Appeals reversed Williams’ convictions, on other grounds, holding
that Williams was entitled to a new trial. 416 Md. at 673-74. Appellant cites this case as
confirming that dismissal of charges for a Brady violation is an appropriate remedy. There
was, however, no such holding in that regard.
With respect to the Brady issue, the Court held that there was no Brady violation,
and therefore, Williams’ argument that the court erred in declining to dismiss the
indictment due to Brady violations failed. Id. at 693. In a footnote, the Court stated that,
even if there had been a Brady violation, “dismissal of an indictment as a sanction is
appropriate only where less drastic alternatives are not available.” Id. at 693 n.8 (citing
Gov't of the Virgin Islands v. Fahie, 419 F.3d 249, 254-55 (3d Cir. 2005)). This footnote
clearly was not a holding of the Court of Appeals, but rather, it was dicta. Moreover, as
26
dicta, the footnote did not explore the circumstances in which dismissal of charges might
be a permissible sanction. Accordingly, to decide if dismissal is a proper remedy for a
Brady violation, and if so, under what circumstances, we look to the reasoning of other
courts.
Other jurisdictions have held that dismissal of an indictment may be an appropriate
remedy for a violation of Brady, but only in limited circumstances. In Fahie, 419 F.3d at
252, the United States Court of Appeals for the Third Circuit discussed “when, if ever,
dismissal with prejudice is an appropriate remedy for a Brady violation.” In that case, it
was discovered during trial that Brady material had not previously been disclosed, and the
trial court dismissed the case with prejudice. Id. On appeal, the court noted that, although
other jurisdictions had held that dismissal could be a proper remedy, they recognized it as
a rare sanction. Id. at 254. The court ultimately held that, although retrial typically “is the
most severe sanction for a Brady violation, dismissal may be proper where a defendant
shows both willful misconduct and prejudice. Id. at 255. Because Fahie could not prove
willful misconduct, the court held that dismissal with prejudice on the basis of the Brady
violations was improper. Id. at 256-57. It further held that, although there was prejudice
to Fahie from the failure to disclose the evidence prior to trial, the prejudice “could be
corrected with the lesser remedy of mistrial.” Id. at 259.
27
In Ex Parte State of Alabama, 287 So.3d 384, 368 (Ala. 2018), the defendant was
convicted of murder. After obtaining a new trial based on a Brady violation, he moved to
dismiss the indictment against him with prejudice as a sanction for the State’s misconduct.
Id. at 387. The circuit court granted the motion. Id.
In reversing that ruling, the Supreme Court of Alabama held that “the dismissal of
an indictment is an extreme sanction that should be used only when a lesser sanction would
not achieve the desired result. To warrant dismissal of the indictment the defendant must
establish intentional or willful misconduct by the State and irreparable prejudice.” Id. at
396. It explained:
The obvious rationale for limiting the sanction of dismissal of criminal
charges to only those cases where no other sanction can remedy the prejudice
to the defendant is to insure that the public’s interest in having persons
accused of crimes brought to trial is not sacrificed in the name of punishing
a prosecutor’s misconduct. And, of course, where the prosecutor’s failure to
make discovery has not irreparably prejudiced the defendant, the sanction of
dismissal punishes the public, not the prosecutor, and results in a windfall to
the defendant.... [T]he rule authorizing the imposition of sanctions for
discovery violation[s] was ‘never intended to furnish a defendant with a
procedural device to escape justice.’
Id. at 395-96 (quoting State v. Carpenter, 899 So.2d 1176 (Fla. Dist. Ct. App. 2005)). The
Court held that the prejudice suffered by the defendant in the first trial due to the suppressed
evidence could be corrected by a new trial, and therefore, it was error to dismiss the
indictment. Id. at 399.
In United States v. Pasha, 797 F.3d 1122, 1138 (D.C. Cir. 2015), the United States
Court of Appeals for the District of Columbia stated that, once a Brady violation has been
found, “a new trial follows as the prescribed remedy.” The rationale is that, when there is
28
a failure to disclose evidence, the defendant can introduce the previously suppressed
evidence at the new trial. Id. If, however, a new trial “does not cure the prejudice, more
is required.” Id. In fashioning the applicable analysis for a Brady violation following a
conviction, the Court stated:
(1) a Brady violation requires a remedy of a new trial; (2) such new trial may
require striking evidence, a special jury instruction, or other additional
curative measures tailored to address persistent prejudice; and (3) if the
lingering prejudice of a Brady violation has removed all possibility that the
defendant could receive a new trial that is fair, the indictment must be
dismissed.
Pasha, 797 F.3d at 1139. The Court concluded that “dismissal is appropriate only as a last
resort, where no other remedy would cure prejudice against a defendant. Id.
The Court ultimately ordered a new trial “with appropriate remedies to cure the
damage caused by the Government’s delayed disclosure.” Id. at 1125. Noting the
defense’s suggested remedies, such as precluding the Government from introducing
evidence or precluding cross-examination of a witness, that Court stated that, “if a remedy
is available that gives the defendant a fair trial—such as precluding cross-examination
completely or precluding impeachment with a prior statement—that remedy is preferable
to dismissal of the indictment.” Id. at 1140.
Other jurisdictions similarly recognize that dismissal of an indictment on due
process grounds based on Brady violations is a rare sanction that is appropriate only when
less drastic alternatives are not available. See e.g., United States v. Mauskar, 557 F.3d 219,
231-32 (5th Cir.) (noting that dismissal based on prosecutorial conduct is appropriate only
in the “rarest circumstances” and holding that the Brady violation was not so “shocking to
29
the universal sense of justice” that the government should be deprived of the opportunity
to retry the defendant.) (quoting United States v. Russell, 411 U.S. 423, 432 (1973), cert.
denied, 556 U.S. 1277 (2009)); State v. Arrasmith, 966 P.2d 33, 45-46 (Idaho Ct. App.
1998) (dismissal of an indictment is an appropriate sanction for a Brady violation only
when a less drastic alternative is not available); Commonwealth v. Burke, 781 A. 2d 1136,
1144 (2001) (“Because of the compelling societal interest in prosecuting criminal
defendants to conclusion . . . dismissal of charges is an extreme sanction that should be
imposed sparingly and . . . only in cases of blatant prosecutorial misconduct.”).
Here, the record shows willful misconduct by the State in failing to disclose
exculpatory evidence. In Fahie, 419 F.3d at 256, the court noted that willful misconduct
involves conduct that is “intentional, knowing, or reckless.” (quoting Wehr v. Burroughs
Corp., 619 F.2d 276, 281 (3d Cir. 1980)).
The State has taken conflicting positions during litigation on this issue. In the circuit
court, it argued that there was no willful misconduct. It asserted that, although it did not
turn over evidence prior to the first trial, it ultimately, “produced all of this evidence
without a motion to compel, and assisted the Defendant at every step of the way to gather
this information.” The circuit court found that the State’s failure “to meet its legal
obligation to turn potentially exculpatory evidence over to [] Mr. Smith” was “troubling,”
but it did not “shock the conscience of the court.”
30
Subsequent to the court’s ruling on the motion to dismiss, however, the parties
submitted a proffer in support of a plea agreement, and the State conceded that it committed
willful misconduct. The proffer stated:
The State and the Defense agree that then Deputy State’s Attorney…knew
of the existence of witness Haddaway’s demand that her grandson’s charges
be dismissed, and knew or should have known that the State nol prossed the
charges against the grandson on February 9, 2001, and intentionally, willfully
and/or recklessly suppressed exculpatory evidence including, but not limited
to, the Haddaway-Bollinger tapes and failed to explicitly notify counsel for
Smith of the dismissal of the grandson’s charges in exchange for Haddaway’s
cooperation, and failed to provide exculpatory evidence to the Defense prior
to trial. The State and the Defense further agree that [the prosecutor] engaged
in other intentional, willful, and/or reckless misconduct, including
misrepresenting the results of exculpatory DNA evidence.
Based on this record, the State conceded that there was willful misconduct, and we
agree. This conclusion, however, is not the end of the inquiry.
As other courts have held, dismissal of an indictment is an appropriate remedy for
a Brady violation only in limited circumstances. There is a reasonable public “expectation
that those who have been charged with crimes will be fairly prosecuted to the full extent of
the law.” Burke, 781 A.2d at 1144 (quoting Commonwealth v. Shaffer, 712 A.2d 749, 752
(1998)).
We agree and hold that, when there is a Brady violation, a new trial typically is the
most severe sanction available. The extreme sanction of dismissal of an indictment is
warranted only in rare cases. Even in the situation where a defendant shows willful
misconduct by the State, dismissal is appropriate only when: (1) the misconduct results in
irreparable prejudice; and (2) no less drastic alternative is available. As explained below,
31
appellant failed to make this showing, and therefore, the circuit court properly determined
that he was not entitled to dismissal of the charges.
Although evidence was improperly suppressed prior to the first trial, appellant has
not shown that he has suffered irreparable prejudice that could not be corrected by a new
trial. The evidence that was suppressed has not been destroyed. Rather, it has now been
turned over to appellant, who would be free to use it in a new trial. He could introduce the
evidence that Mr. Keene saw an Oldsmobile Cutlass at Ms. Wilford’s house around the
time of the murder, and that he was excluded as a source of DNA found in scrapings of
Ms. Wilford’s fingernails. He could also introduce other newly discovered evidence,
including the evidence, discovered in 2013, that the palm print found at the scene of the
crime matched Mr. Brooks.
To be sure, as appellant points out, the death of Ms. Haddaway, a key State’s witness
against him, prevents him from using the previously suppressed Haddaway-Bollinger tapes
to cross-examine her about the tapes, including impeaching matters revealed in her
statements, such as statements that her testimony hinged on the State dismissing unrelated
drug charges against her grandson. There are, however, less drastic remedies than
dismissal that would provide appellant with a fair trial. Ms. Haddaway’s prior testimony
against appellant could be excluded in the State’s case-in-chief, which the State has
previously recognized is an appropriate remedy. To the extent that appellant believes that
previously suppressed evidence relating to Ms. Haddaway would be helpful to impeach
other witnesses, appellant could do so, if he thought it was in his best interest.
32
With respect to the fading memories of the witnesses that appellant may want to
call, the record reflects prior statement made. We are confident that a remedy less drastic
than dismissal could be found.
Appellant has failed to meet his burden to show that due process required the
extreme remedy of dismissal of the charges as a result of the State’s suppression of
evidence at his first trial. The circuit court did not err in denying the motion to dismiss the
charges on this ground.
IV.
Double Jeopardy
Appellant’s second contention is that a new trial would violate his right against
double jeopardy. Whether principles of double jeopardy bar a retrial is a question of law,
which we review de novo. Giddins v. State, 393 Md. 1, 15 (2006).
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that no person “shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb . . . .” U.S. CONST. amend. V. 16 “Double Jeopardy, under
both the Fifth Amendment and at common law, bars multiple punishments and trials for
the same offense.” State v. Long, 405 Md. 527, 536 (2008). As a general rule, however,
“a criminal defendant ordinarily may be retried after obtaining appellate reversal of a
16
The federal Double Jeopardy Clause was applied to the states in 1969. State v.
Smith, 244 Md. App. 354, 385 (2020). “Maryland is one of only five states that does not
have an analogue to the Fifth Amendment’s Double Jeopardy Clause in its own constitution
. . . but equivalent protections are a fundamental part of Maryland common law.” Id. at
382.
33
conviction.” Hagez v. State, 131 Md. App. 402, 423, cert. denied, 359 Md. 669. “This
precept rests on the notion ‘that the original conviction has, at the defendant’s behest, been
wholly nullified and the slate wiped clean.’” Id. (quoting North Carolina v. Pearce, 395
U.S. 711, 721 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794(1989)).
There is, however, an exception to the general rule that appellate reversal of a
conviction does not bar retrial. The “Double Jeopardy Clause prohibits retrial after a
conviction has been reversed because of insufficiency of the evidence.” Id. at 424 (quoting
United States v. DiFrancesco, 449 U.S. 117, 131 (1980)). That exception does not apply
here.
Appellant’s contention relies on Oregon v. Kennedy, 456 U.S. 667, 676 (1982),
where the Supreme Court held that the Double Jeopardy Clause bars a retrial if the
government engages in conduct “intended to ‘goad’ the defendant into moving for a
mistrial.” The Court explained: “[[t]he Double Jeopardy Clause] bars retrials where ‘bad-
faith conduct by judge or prosecutor,’ threatens the ‘[h]arassment of an accused by
successive prosecutions or declaration of a mistrial so as to afford the prosecution a more
favorable opportunity to convict’ the defendant.” Id. (quoting United States v. Dinitz, 424
U.S. 600, 611 (1976)).
Kennedy does not support a dismissal in this case because there was no mistrial.
There was a conviction, which appellant succeeded in getting reversed. In this situation,
the Supreme Court has been clear:
34
“[I]f the first trial has ended in a conviction, the double jeopardy guarantee
‘imposes no limitations whatever upon the power to retry a defendant who
has succeeded in getting his first conviction set aside’ (emphasis in original).
North Carolina v. Pearce, 395 U.S., at 720, 89 S.Ct., at 2078. ‘It would be a
high price indeed for society to pay were every accused granted immunity
from punishment because of any defect sufficient to constitute reversible
error in the proceedings leading to conviction.’ United States v. Tateo, 377
U.S., at 466, 84 S.Ct., at 1589. ‘[T]o require a criminal defendant to stand
trial again after he has successfully invoked a statutory right of appeal to
upset his first conviction is not an act of governmental oppression of the sort
against which the Double Jeopardy Clause was intended to protect.’ United
States v. Scott, 437 U.S., at 91, 98 S.Ct., at 2193. There is, however, one
exception to this rule: the Double Jeopardy Clause prohibits retrial after a
conviction has been reversed because of insufficiency of the evidence.”
DiFrancesco, 449 U.S. at 131.
As Judge Moylan explained in Hagez: “[T]he appellant’s first trial ended in a
conviction. That conviction was reversed for a reason other than the legal insufficiency of
the evidence. There is, therefore, no double jeopardy bar to a retrial. That is all that needs
to be said.” Id. at 443 (Moylan, J., concurring).
Other courts have rejected arguments similar to that made by appellant. See, e.g.,
United States v. Lewis, 368 F.3d 1102, 1107 (9th Cir. 2004) (“[b]arring a retrial for the
prosecution's alleged intentional Brady violations would be an unnecessary expansion of
the Double Jeopardy Clause”); Green v. State, 380 S.W.3d 368, 374-75 (Ark. 2011)
(declining to extend Kennedy beyond circumstance where prosecutor has intentionally
provoked a mistrial and holding that a new trial based on a Brady violation was the relief
to which Green was entitled).
35
The circuit court properly concluded that appellant’s “expansive reading of double
jeopardy is not the law.” It properly denied appellant’s motion to dismiss based on double
jeopardy and determined that the proper remedy for the Brady violations here was a new
trial.
JUDGMENT OF THE CIRCUIT COURT
FOR TALBOT COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
36