Carver v. State

• Decision Date: 31 March 2022
• Docket Number: 2042-2018
• Parties: STEVEN G. CARVER v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

STEVEN G. CARVER v. STATE OF MARYLAND

No. 2042-2018

Court of Special Appeals of Maryland

March 31, 2022

Circuit Court for Baltimore City Case No. 18916403

Shaw Nazarian, Harrell (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Shaw J. Appellant Steven Carver filed a petition for writ of actual innocence in the Circuit Court for Baltimore City and following a hearing, the court denied relief. Carver has appealed to this Court, and presents two questions for our review:

1. Did the circuit court abuse its discretion in denying Appellant's petition for writ of actual innocence?

a. Did the circuit court abuse its discretion in finding that documents relating to a third-party perpetrator did not speak to Appellant's innocence or create a substantial possibility of a different result?

b. Did the circuit court abuse its discretion in finding that outstanding but unserved arrest warrants for a crucial State's witness were not newly discovered and did not create a substantial possibility of a different result?

c. Did the circuit court abuse its discretion in finding that evidence of Joseph Kopera's false credentials and testimony was not newly discovered and did not create a substantial possibility of a different result?

2. Did the circuit court err and/or abuse its discretion in failing to serve a body attachment issued for an important witness and failing to grant a postponement so the witness's presence could be secured?

For the following reasons, we affirm.

BACKGROUND

On November 16, 1989, a jury in the Circuit Court for Baltimore City convicted Steven Carver ("Carver" or "appellant") of first-degree murder, use of a handgun in a crime of violence, and wearing or carrying a handgun. He was sentenced to life without parole for first-degree murder and a consecutive 20-year term for the handgun offense. This Court affirmed the convictions in Carver v. State, Sept. 1990, unreported (Md. Ct. Spec. App. Jan. 13, 1992).

In 1997, Carver filed a pro se petition for post-conviction relief, then retained private counsel, who subsequently withdrew the petition. In 2008, Carver, represented by another attorney, re-filed his petition for post-conviction relief, which was denied in 2010. Carver then filed an application for leave to appeal which was denied. Also, in 2010, Carver filed a pro se petition for federal habeas relief in U.S. District Court, which was deemed time-barred in 2013. That same year, Carver filed a motion to correct an illegal sentence, which was denied in 2015.

In 2012, Carver filed a pro se petition for writ of actual innocence which was denied without a hearing. On appeal, this Court vacated the denial and ordered a hearing be held. Carver represented himself at the hearings on December 1, 2015 and March 9, 2016. He filed an amended petition on December 9, 2015. In September 2016, a public defender, on Carver's behalf, filed an amended petition. Following hearings on May 10 and August 31 of 2017, Carver's petition was denied. He noted this appeal.

STATEMENT OF FACTS

On March 14, 1989, around 4:30 pm, John Green ("Green") was shot and killed in the 4000 block of Old York Road near the intersection of Cator Avenue. Carver and Joe Hodge ("Hodge") were both accused of killing Green and were tried jointly and convicted of first-degree murder. During trial, the State called three eyewitnesses, several law-enforcement officers, a medical examiner, and firearms expert. Its first eyewitness was Carmelita McIntosh ("McIntosh"), who testified that shortly before the incident, she was driving down Cator Avenue and as she proceeded to turn onto Old York Road, she saw three men and slowed down to avoid hitting them. She stated she thought the three men were "just talking playing . . ." but she then saw the man in the center lean to his right and she heard a pop. The man in the center was "falling" towards her car, so she swerved and drove around him. A child crossed in front of her and she moved her car to avoid hitting the child as well. Through her rearview mirror, she saw the man to the right of the man in the center "go to his head with a gun" and heard a pop. She stopped, began to exit her car and "heard him say, bust him, yo, and the other guy started shooting." As "he" was shooting, "[h]e was moving around fighting." The "other person," who "maneuver[ed] around the body," also had a gun. She heard "four or five" "sounds" while the gun was "pointed at the victim." The shooting "was ending" when she was able to get out of her car. She heard a total of "five or six" "pops" but was uncertain because she was distracted, and "wanted to get away."

When asked about the "person [she] saw going to the head of that person in the street with the gun," she said there were two males, one lighter-skinned, one darker-skinned, both with "very vague" attire. The lighter male went to the head, the darker male maneuvered around the body. The "lightest one" said "[b]ust him, yo." As she exited her vehicle, the two men ran past her, turning right. She asked someone to call the police and "checked for [the victim's] pulse." She stayed at the scene and spoke to the police when they arrived. She was later shown a photo array, and she "did not make a positive identification" of appellant.

The State's next eyewitness was Hodges Epps ("Epps"), who testified that during this timeframe, he was in a laundromat on Old York Road and Rosehill Terrace and decided to go to a store across the street. He testified that when he left the laundromat, he heard a gunshot. ". . . I seen the defendants walking up the street with [Green]. One of the defendants pulled out a gun and shot him." He stated that he saw Green, Carver, and "another defendant" before the gunshot. After the first gunshot, he saw "Carver shooting [Green]" in the lower part of his body, and then "[a]nother person came behind [Green] and shot him in his head" while he was on the ground. He also testified that when he first heard the gunshot, Green was already "on the ground." Later, Epps testified that he saw Green with three people before he heard the first shot - Carver, Arlin Doles ("Doles"), and "another person." Epps named Doles and said he had never seen him before, but on cross-examination, he testified that Doles was a high school classmate. Epps also stated that he "grew up" with Green, saw him often, and after the shooting, he went to Green's body and put his coat on top of him. Epps said that he knew Carver for about six to twelve months prior to the shooting and he would see Carver "once a week sometimes." At the time of the murder, he stated that he did not know Carver's last name. He later was told Carver's full name by his "niece's father." Epps identified Carver from a photo array as "the one that shot [Green]." He testified that he could not recall any details relating to the other shooter, including physical build or clothing.

The final eyewitness was Doles, who knew Green from high school.^[1] The night before the murder, Green introduced Doles to Carver and they spent about 45 minutes together. The three went to a restaurant, and Doles overheard Carver reconcile with Green. The next day just before 4:30 pm, Doles ran into Green at Old York Road and Dumbarton Avenue. They spoke and walked north on Old York Road toward Cator Avenue. Doles went behind a store to relieve himself, and when he rejoined Green, Carver was there. The three kept talking as they walked up the street and Doles "veered off into the street." Doles noticed someone coming up from behind "through my peripheral vision. . . ." "So I turned around and as I'm turning around, I seen a man approaching."

Doles testified that man was Hodge:

. . . I looked him full in the face . . . and that's when he looked at me. Then he turned away. His eyes turned away towards in the direction of where [Green] was standing. He asked what time it was. . . . But before I could say anything, [Green] . . . said 4:30 and as I was still watching at my watch, I heard the first shot.

Doles ran north on Old York Road, hearing four more shots. He jumped a fence, turned around, and "Green was still standing and [Carver] was directly in front of him." Carver "just stood there" with his right hand in his pocket. Green "grabbed [Carver's] left arm," Carver "jerked his arm around away from him," and Green fell to the ground. Hodge stepped between Green's legs and shot him in the back of the head. Doles stated that he was about fifteen feet away. Hodge and Carver then ran in the same direction, with Hodge behind Carver. Doles never saw Carver with a gun. After viewing a photo array, Doles identified Carver as a person that he saw at the scene. He later identified Hodge, in a photo array, as the person he saw shoot Green.

Several law-enforcement officials also testified. Officer Clyde Day ("Officer Day") was one of the first officers to arrive at the scene and testified that he found Green lying in the street, with Epps and Doles standing over him. Detective Richard James ("Detective James") compiled the photo arrays that were shown to the witnesses and included a photograph of Carver and Hodge. Detective James testified that two of the witnesses identified Carver. And the day after the shooting, Doles pointed to a photo of Hodge and said "that's him."

Detective James testified he "had no reason to" investigate any other suspects besides Carver and Hodge because he had a "positive identification." He acknowledged that Green had been shot previously. Officer Day had also testified observing Green wearing a bulletproof vest several months prior to being shot in March. Detective James testified that he had information about an additional person Ralph Washington, but he did not make meaningful efforts to locate him...