Campbell v. State

• Decision Date: 07 April 2003
• Docket Number: No. 26,26
• Citation: 821 A.2d 1,373 Md. 637
• Parties: Lawrence CAMPBELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

821 A.2d 1

373 Md. 637

Lawrence CAMPBELL v. STATE of Maryland.

No. 26, Sept. Term, 2002.

Court of Appeals of Maryland.

April 7, 2003.

Geraldine K. Sweeney, Assistant Public Defender, (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Sarah Page Pritzlaff, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

HARRELL, Judge.

We granted certiorari in this case to determine whether a trial judge had jurisdiction to consider an out-of-time supplement to a timely filed motion for a new trial in a criminal matter, pursuant to Maryland Rule 4-331(2000), and, if so, whether the trial judge abused his discretion by denying the motion on the supplemental ground on its merits. We find that the trial judge did have authority to consider the pertinent supplement and that he properly denied the motion for a new trial.

I.

This underlying case arose from a shooting incident that occurred outside of a Kentucky Fried Chicken (KFC) restaurant in Prince George's County. One of the State's witnesses, Oscar Veal, a self-confessed "hit man" who pled guilty in a federal court to seven counts of murder in aid of racketeering activities (18 U.S.C. § 1959(a)(1) (1994)), and whose credibility the defendant sought to impeach both at trial and through newly discovered evidence, became the focus of defendant's effort to gain a new trial.

The fatal shooting occurred at approximately 11:15 p.m. on 2 February 1998. Doris Bryant testified at trial that she witnessed the shooting from the parking lot of her apartment building located near the KFC. She stated that a Chevy Suburban was parked in the parking lot of the KFC restaurant on Md. Route 202 in Cheverly, Maryland. She described six principal actors at the scene of the shooting. One tall black man stood in the shadows of the parking lot fence with a "shiny object" in his hand, later confirmed to be a gun; a second black man, described by the witness as "chubby" and later confirmed to be one Walter Fleming, exited the passenger's side of the Chevy truck and walked towards a phone booth; a third man, later alleged to be Campbell, walked from the street towards the passenger's side of the truck; and, a fourth man was walking from the KFC to the driver's side of the truck. Ms. Bryant heard a "pop" sound, followed by a fifth young man, in a crouching position, getting out of the Suburban from the rear passenger's side. The exiting passenger started shooting a gun at the man standing at the phone booth. Campbell, who was standing at the driver's side of the Suburban, was shooting into the car at yet another man seated behind the steering wheel (later identified to be Milton J. Hill). At some point, Ms. Bryant testified, Campbell also began shooting at the man by the phone booth. The man at the phone booth, Fleming, after executing a drop and roll maneuver, got up, and ran into a 7-11 store located in the same parking lot as the KFC. Ms. Bryant reported that Fleming did not appear to have a gun and that the man standing by the fence did not fire his gun. All, save Hill and Fleming, fled the scene of the crime after one of the shooters noticed Ms. Bryant.

Hill was pronounced dead at the scene and Fleming was transported on advanced life support to a hospital. Fleming survived. He told the police officer who arrived first at the scene before he was transported that "Inky shot me.... Inky rolled up and shot me and my boy." "Inky" was later confirmed to be the nom de guerre of Lawrence Campbell, Petitioner.

Campbell was tried by a jury in the Circuit Court for Prince George's County.¹ At trial, the State introduced no physical evidence of criminal agency, relying instead on the testimony of Doris Bryant, Walter Fleming, and Oscar Veal. Fleming gave testimony about his thirteen-year career as a drug dealer handling substantial amounts distributed over a large geographic area.² On the day of the shooting, Petitioner had ordered $16,000.00 worth of cocaine from Fleming. Fleming and his friend, Milton J. Hill, met Petitioner at an arranged meeting place to deliver the requested cocaine. They agreed to reconvene fifteen minutes later at the KFC parking lot for delivery of the purchase money. After waiting in the truck in the parking lot for about half an hour, Fleming walked to the pay phone leaving Hill in the truck. As he did so, the shooting began. Fleming claimed that he struggled hand-to-hand with one of the gunmen, but that the person who shot him was not Campbell. The other witness for the State, Oscar Veal, Jr., was a drug dealer and self-confessed "hit man."³ Veal testified that, in the summer of 1998, Petitioner told him he had committed a murder at a KFC in Maryland resulting from "drugs and money, and a gentleman was killed because he was with [Fleming]." He also testified that Campbell told him that the man who had been killed "was a guy that was with another gentleman who was a witness." That man clearly was Fleming. During the course of his testimony, Veal admitted to killing seven people within an eighteen-month period. He appeared in court wearing a religious headdress and further intimated that his willingness to testify in Petitioner's trial resulted from a religious rebirth that coincided with his federal conviction and sentencing. On the basis of this evidence, Petitioner was convicted of the attempted first degree murder of Fleming and second degree murder of Hill, as well as conspiracy to murder Hill and conspiracy to murder Fleming.

On 29 December 2000, ten days after the verdict was entered, defense counsel filed a motion for a new trial. Counsel alleged the existence of newly discovered exculpatory evidence that was divulged to defense counsel for the first time three days after the verdict. The motion proffered that a former associate (Naurice Bland) of Fleming's long-time rival, Roy Cobb, was prepared to testify that Cobb had set-up Fleming at the KFC and that Cobb had shot Hill and Fleming. It was alleged also that Bland would assert that Fleming retaliated by murdering Cobb a few months after the KFC shooting.

On 9 January 2001, defense counsel filed a supplement to the original motion for a new trial. The supplement proffered that additional evidence had been newly discovered⁴ from Joseph Penny, Fleming's cell-mate at the Arlington County Detention Center. Penny's sworn statement to defense counsel attested that Fleming had told him he was "set up" by Cobb at the KFC. In response to the motion and supplement, the State filed an "Opposition to Defendant's Motion for New Trial" denouncing the credibility of the Penny and Bland statements, arguing that the new evidence was immaterial, and asserting that defense counsel failed to show that the newly discovered evidence from Penny could not have been discovered by due diligence in time to file with the original motion. Petitioner filed a responsive pleading on 20 February 2001, relying on Maryland Rule 4-331(a)⁵ and Maryland Rule 4-331(c),⁶ to support his proffer of the Bland and Penny evidence, respectively. Additionally, Petitioner proffered additional new evidence that Oscar Veal previously had accused falsely another person of murder in an unrelated case.⁷ The State responded to the allegations concerning Veal's credibility by stating,

nowhere in Oscar Veal's statement to the FBI does he say that Derrick Moore was present when Clyburn was killed. Thus, there is no impeachable evidence against Veal. Assuming arguendo that it is, the law is clear that the evidence must be more than merely cumulative or impeaching in order to be considered newly discovered evidence.

The trial court heard the post-trial motion on 23 February 2001, the same day scheduled for Campbell's sentencing. Petitioner elected not to press further that the Bland testimony would support a new trial, thereby abandoning that contention. Instead, Petitioner relied on the statements of Penny and the new evidence concerning Veal's credibility. In assessing the arguments regarding Penny's sworn statement, the judge stated "I have no confidence in that information. And like I say, it could not be offered for any purpose other than for the possibility of impeachment of Mr. Fleming, and I don't think that it would have had any effect on the verdict of the jury." The judge also was unpersuaded by the additional impeachment evidence against Oscar Veal as proffered in the second supplement, noting that "[defense counsel was] able to challenge Mr. Veal on the fact that he had committed a number of murders, and what you've just related would just be one more line of impeachment." Thus, rather than conduct an evidentiary hearing regarding the new evidence as to Veal, as requested by Petitioner, the judge denied the motion for a new trial based on the proffer. The State did not press at oral argument on the new trial motion any contention that the trial judge lacked authority under Rule 4-331 to reach and decide the motion based on either the Penney or Veal newly discovered evidence claims.

Campbell appealed to the Court of Special Appeals. The sole issue raised on appeal was whether "the trial court err[ed] in denying appellant's motion for new trial."

Campbell argued to the Court of Special Appeals that proof of Veal's false accusation of Derrick Moore was a type of impeachment different in kind from the impeachment employed at trial concerning Veal's concessions as having committed seven murders.⁸ He contended that because proof of his criminal agency in the present case was so weak that the new evidence may have affected the jury's assessment of Veal's credibility resulting in an acquittal. Campbell asserted that the trial judge abused his discretion by denying the motion for a new trial.

In the intermediate appellate court, the State relied on Isley v. State, 129...