Argyrou v. State

Decision Date01 September 1996
Docket NumberNo. 63,63
Citation709 A.2d 1194,349 Md. 587
PartiesKyriakos S. ARGYROU a/k/a Charles S. Argyrou v. STATE of Maryland. ,
CourtMaryland Court of Appeals

T. Joseph Touhey, Glen Burnie, for petitioner.

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI * and RAKER, JJ., and MARVIN H. SMITH, Judge, (retired), Specially Assigned.

BELL, Chief Judge.

The issue that Kyriakos S. Argyrou, a/k/a Charles Argyrou, the petitioner, presents is whether the Circuit Court for Anne Arundel County abused its discretion when it denied his motion, pursuant to Md. Rule 4-331(c) 1 and premised on newly discovered evidence, for a new trial. The evidence upon which the petitioner relied and denominated newly discovered consisted of a confession by one Robert Lee Benner, Jr., which was submitted in affidavit and audio taped form to the court. The circuit court denied the petitioner's motion, concluding that the confession did not qualify as newly discovered evidence.

I.

The facts are not in dispute. The petitioner was convicted by a jury in the Circuit Court for Anne Arundel County of theft of property valued at more than $300.00. The State's proof established to the jury's satisfaction beyond a reasonable doubt, that the petitioner was one of two men, 2 who, on June 30,1992, using the stolen identification of Robert Flens, rented construction equipment, to wit, a jack hammer with four bits, a 2,500-watt generator, an electric breaker, and a cart, from Taylor Rental, located in Glen Burnie, Maryland, which they took away in a van, described as light-colored, i.e. beige or powdery blue, and did not return. Specifically, an employee of Taylor Rental selected the petitioner's photograph from a photographic array, prepared by the detective investigating the case, and identified the petitioner at trial as the man who claimed to be Robert Flens and who signed the rental agreement. Also, the real Robert Flens testified that he had not rented the equipment and that his wallet, containing his identification and credit cards, had been stolen prior to the Taylor Rental theft. The petitioner was sentenced to five years imprisonment and ordered to pay a $1000.00 fine and $2000.00 restitution to Taylor Rental Company. The Court of Special Appeals affirmed his conviction in an unreported opinion.

The petitioner moved for a new trial, citing what he contended was newly discovered evidence. The newly discovered evidence was, the petitioner asserted, a confession by one Robert Benner, in which Benner admitted committing the Taylor Rental theft and, at the same time, fully exonerated the petitioner. The confession was in the form of a notarized statement, his affidavit, taken by the petitioner's attorneys, when Benner came to their office. The confession was corroborated by handwriting exemplars given by Benner; one of his signature, and the other, Benner's signing of the name "Robert Flens." These exemplars were the subject of expert testimony.

A hearing was held on the motion for new trial. Benner was not present at the hearing, 3 and, so, did not testify. Instead, Benner's notarized statement, i.e. his affidavit, was introduced into evidence. In that statement, after acknowledging that he was on probation and the inculpatory nature of the statements he was about to make, denying that he had been coerced to make them, and recognizing that he could be prosecuted and jailed, and his probation violated as a result, Benner stated that he was involved in the Taylor Rental theft, along with Rodney Seekford and Michael Raub. Benner claimed Seekford acquired the various Flens identifications, which they used to obtain the construction equipment. He admitted that he signed the rental contract. Benner was asked specifically if the petitioner signed the rental contract, to which he positively stated that he had not.

The statement also contained an account of an incident, involving the use of the same credit cards, that occurred at the Marley Station Mall and that concededly involved the petitioner. According to Benner, he and Seekford had gone to the Mall in order to use the stolen credit cards, to acquire, for resale, expensive tennis shoes. Michael Raub was supposed to be waiting outside for them with a car. Benner stated that he became suspicious when a transaction between a clerk and Seekford took too long, and he saw a security guard approaching the store where the transaction was occurring and, so, he alerted Seekford and they left. When they exited the Mall, Raub was not in sight, but there were "several police coming out the door and ... a jeep ... was right there on top of us." Having seen a man, the petitioner, sitting in a van, Benner said that he "more or less commandeered the van by jumping into it and putting a knife into his [petitioner's] back and telling him to drive." The jeep followed for a time, but then "veered off," at which time Benner told the petitioner to pull into a Wendy's fast food restaurant, the previously agreed destination point where Raub was to meet him and Seekford, should something go wrong. Benner stated that they met up with Raub, who was driving a blue Grand Prix. Benner again exonerated the petitioner, stating that he had nothing to do with the Marley Station matter. 4 He described the petitioner's van as "maroon" in color and the van they used to haul away the construction equipment as "white."

After one of the petitioner's attorney's testified to the circumstances surrounding the acquisition of the handwriting exemplars, especially that of Benner signing "Robert Flens," noting specifically that the Taylor Rental rental agreement had not been shown to Benner, expert testimony was presented as to whether the same person signed the rental agreement as signed the exemplars. The expert, Katherine Koppenhaver having been qualified as an handwriting expert, testified without equivocation that it was Benner who signed the name of "Robert Flens" on the June 30, 1992 Taylor Rental contract.

In addition to the audio-taped statement that it took from Benner, the State offered testimony from two witnesses, Detective Ronald Sappington, who investigated the Taylor Rental matter, and Scott Rowe, the Marley Station Mall security officer who observed Benner and Seekford enter the petitioner's van and the petitioner drive away. Benner's audio-taped statement was more detailed than the one he gave the petitioner's attorneys, perhaps demonstrating, as the petitioner contended, that the State took the "opportunity to cross-examine Mr. Benner," in an effort "to challenge Mr. Benner at length regarding his alleged involvement in the crime."

In his statement, Benner stated that he did not know the petitioner and had not seen him before the day that he forced the petitioner, at knife-point, to drive him and Seekford away from the Marley Station Mall. He also stated, however, that about six months after that incident, in the western part of Baltimore City, where he had gone to buy drugs, he saw the petitioner and the van and "it clicked together," i.e., he recognized the petitioner as the person he car-jacked. At that time, Benner maintained that he began making inquiries about the petitioner. Initially Benner said that he sought to discover if the petitioner had identified him to the police as the person who had car-jacked him at the Marley Station Mall. Later, the focus was on what happened to the petitioner. As a result of these inquiries, made of various individuals in the area, Benner learned that the petitioner had been convicted of the Taylor Rental theft and sentenced to five years imprisonment. With that information and having learned who the petitioner's attorney was, Benner said that he went to petitioner's attorney's office and confessed. 5 As to why he did so, Benner had this to say "I had found out from his attorney. I mean, the night that I was there, he had kids but I'm more or less trying to get my life back. I don't want nobody doing five years for something that they didn't do. I mean, it's --- I guess maybe crime is not my, you know, something that I like I do. Maybe I just have the right outlook for it."

Later, he gave another reason for coming forward and confessing: Benner said that it was not simply because it bothers his conscience, but also because it could help him get off drugs, which he wanted to do. As he put it,

"Well, I mean you know, apparently, you know, I'm going to be incarcerated here for a short period of time. And however short period of time will be time that I'm away from drugs."

At the beginning of the interview, Benner had explained why he'd come to the State's Attorney's office:

"... I have a lot of personal problems myself that I'd like to get straightened out, and this is one way that I feel I can go about it. But also, I can't ??? see somebody else actually taking the blame for something I've done. You know, I'm trying to put my life back together and this is something that I don't want to come back in the future. So, I'd like to get it ironed out."

Benner did not name anyone from whom he received information about the petitioner. Even when pressed, he gave only the names, "Bob," whose last name he claimed not to know, and "Gary or something," again claiming not to know the last name. And he also refused to point out any of the persons he said he spoke with to the State, explaining that he was not "trying to get anyone else involved in this."

The State's questioning of Benner leaves no doubt that it did not consider him or his story to be reliable. In that regard, the State inquired why Benner had failed to meet with the Assistant State's Attorney following the postponed hearing on the motion for new trial. Benner had apparently agreed to do so, but did not. Benner also failed to meet with the Assistant State's Attorney two...

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