Evans v. State

• Decision Date: 23 July 2004
• Docket Number: No. 78 Sept. Term 2003.,78 Sept. Term 2003.
• Citation: 855 A.2d 291,382 Md. 248
• Parties: Vernon EVANS, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

855 A.2d 291

382 Md. 248

Vernon EVANS, Jr. v. STATE of Maryland.

No. .

Court of Appeals of Maryland.

July 23, 2004.

Reconsideration Denied September 10, 2004.

A. Stephen Hut, Jr. (Todd Zubler, Kalea Seitz Clark and Catherine M. Grosso of Wilmer, Cutler & Pickering; Jeffrey B. O'Toole and Julie S. Dietrich of O'Toole, Rothwell, Nassau & Steinbach, on brief), Washington, DC, for appellant.

Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for appellee.

Argued before BELL, C.J., RAKER, WILNER, HARRELL, BATTAGLIA, GREENE, JOHN C. ELDRIDGE, (Retired, specially assigned), JJ.

ELDRIDGE, Judge.

The appellant, Vernon Evans, Jr., admittedly participated in the contract murders of David Scott Piechowicz and Susan Kennedy on April 28, 1983, in the Warren House Motel located in Baltimore County, Maryland. Evans was convicted of first degree murder of both victims, and he is presently under sentences of death. This Court has, on eight prior occasions, rejected Evans's challenges to his prosecution, convictions, and sentences.¹

In the present case, the ninth time he has been before this Court, Evans argues that he is entitled to a new sentencing hearing on either of two grounds. First, he contends that allegedly newly discovered evidence would show "that he was not the shooter and therefore not eligible for the death penalty." (Appellant's brief at 11). Second, Evans argues that the trial judge's application, at his sentencing hearing, of an amendment to the Maryland death penalty statute regarding mitigating circumstances, which amendment became effective a few months after the murders, violated the ex post facto clauses of the United States and Maryland constitutions.² We shall reject both of Evans's arguments.

I.

Some basic facts underlying the prosecution were summarized by this Court in Evans v. State, 304 Md. 487, 494-496, 499 A.2d 1261, 1264-1265 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 722 (1986), as follows:

"According to the State's evidence, the defendant Evans and Anthony Grandison entered into an agreement whereby Evans would kill David Scott Piechowicz and his wife, Cheryl, because the couple were scheduled to testify against Grandison in a narcotics case pending in the United States District Court for the District of Maryland. Evans was to receive $9,000.00 from Grandison for performing the murders.

"David Scott Piechowicz and Cheryl Piechowicz were employed at the Warren House Motel in Baltimore County. On April 28, 1983, Susan Kennedy, the sister of Cheryl Piechowicz, was working in place of Cheryl at the Warren House Motel. The evidence was sufficient to prove beyond a reasonable doubt that, on April 28th, Evans went to the motel and, not knowing the Piechowiczs, shot David Scott Piechowicz and Susan Kennedy with a MAC-11 machine pistol. Nineteen bullets were fired at the victims, who died from the multiple gunshot wounds.

"A two count indictment was filed against Evans and Grandison in the United States District Court. They were charged with violating the Piechowiczs' civil rights by interfering with their right to be witnesses in a judicial proceeding, in violation of 18 U.S.C. § 241, and with witness tampering, in violation of 18 U.S.C. § 1512.

"Subsequently the present case began with a four count indictment in the Circuit Court for Baltimore County, charging Evans and Grandison each with two counts of first degree murder, one count of conspiracy to commit murder, and use of a handgun in the commission of a felony or crime of violence. Upon the defendants' requests for removal, Grandison's trial was transferred to the Circuit Court for Somerset County and Evans's trial was transferred to the Circuit Court for Worcester County.

"Prior to the trial in the instant case, Evans was convicted on the federal charges and sentenced to life plus ten years imprisonment. He then filed a pretrial motion to dismiss the charges in this case on double jeopardy grounds. The motion was denied by the trial judge, and this Court affirmed. Evans v. State, 301 Md. 45, 481 A.2d 1135 (1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1411, 84 L.Ed.2d 795 (1985).

"Thereafter the trial in the present case proceeded. Among the witnesses offering significant incriminating evidence against the defendant Evans were Janet Moore, Charlene Sparrow and Calvin Harper. Moore, Grandison's girlfriend, had been contacted by Grandison, who was then in the Baltimore City Jail, to assist in making arrangements for the murder of the witnesses. Sparrow was Evans's girlfriend and offered the most damaging testimony about the defendant's involvement as the killer. According to Sparrow, she had accompanied the defendant and Moore to the Baltimore City Jail where the latter two visited Grandison two days before the shooting, inspected the reception desk area of the Warren House Hotel, and reported to the defendant concerning the people working there and the presence or absence of security features. Sparrow testified that, at the request of the defendant and with his funds, she obtained a room at the motel, was with the defendant in the immediate area of the [Motel] at the time of the shooting, and wiped down the smoking MAC-11 machine pistol handed to her by the defendant immediately after the shooting. She related that the defendant told her that he would receive $9,000.00 `if he knocked both of them off.' Harper's testimony involved activities of April 26, 27 and 28, 1983, and included a description of the defendant's acquisition of the machine pistol from Rodney Kelly, as well as the defendant's statement that he liked the gun."

Additional factual detail was set forth by the United States Court of Appeals for the Fourth Circuit in Evans v. Smith, 220 F.3d 306, 310 (2000), cert. denied, 532 U.S. 925, 121 S.Ct. 1367, 149 L.Ed.2d 294 (2001), as follows:

"During the state trial, the prosecution offered overwhelming incriminating evidence against Evans through a number of witnesses. The most damaging testimony came from Charlene Sparrow, who was Evans' girlfriend at the time of the murders. Sparrow testified that she accompanied Evans and Janet Moore to the Baltimore City Jail two days before the shooting. At the jail, Evans and Moore met with Grandison, who was awaiting his federal drug trial. Sparrow then inspected the reception desk area of the Warren House Motel. She reported to Evans concerning the people working there and the presence or absence of security features. Sparrow also obtained a room at the motel with Evans' funds at his request. On the day of the murders, Evans told Sparrow to wait for him in the car behind the motel. Just before Evans walked to the motel, Sparrow looked inside the brown canvas bag he was carrying and saw a machine gun. Some ten to fifteen minutes later, Evans returned to the car, gave the smoking MAC-11 machine pistol to Sparrow, and asked her to wipe it down. Evans had also told her that he would receive $9,000 `if he knocked both of them off.' Evans and Sparrow went to the mall that night to spend part of the proceeds from the murders.

"Other witnesses also supplied incriminating testimony as to Evans' central role in the murders. For example, Moore testified as to her and Evans' visit to Grandison at the jail two days before the killings. Calvin Harper testified concerning the day of the murder and the two days leading up to it. Harper's testimony included a description of Evans' acquisition of the machine pistol used in the crime from Rodney Kelly and Evans' statement that he liked the gun. Several other witnesses were able to place Evans in the motel lobby during the time immediately preceding the murders. For example, Etta Horne, who worked at the motel, identified Evans as the man she saw sitting in the motel lobby shortly before the murders. Helen Kondilidis, who had entered the motel shortly before the murders, also identified Evans as the man she saw sitting in the lobby."

In a proceeding under the Maryland Uniform Post Conviction Procedure Act, now codified as Maryland Code (2001), §§ 7-101 through 7-301 of the Criminal Procedure Article, the Circuit Court for Worcester County on March 28, 1991, vacated Evans's death sentences on the authority of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and ordered a new capital sentencing proceeding. The Circuit Court refused, however, to vacate the guilty verdicts. This Court on June 4, 1991, denied both the State's and Evans's applications for leave to appeal.

Upon Evans's request for removal, the new sentencing proceeding was removed from the Circuit Court for Worcester County back to the Circuit Court for Baltimore County. At his resentencing hearing in 1992, Evans conceded that he was involved in the murders, although not as the "triggerman." During his allocution, "Evans apologized ... for causing pain to the victims' families, ... for being `involved in this hideous crime,' ... and for allowing his drug-ridden life to twist him into `the type of individual that would take two innocent lives'" (appellant's reply brief at 2). Evans's counsel at the 1992 sentencing hearing "conceded that the jury should check the box on the verdict sheet, indicating that Evans had been a principal in the first degree." Defense counsel "emphasized mitigation" and "argued that life imprisonment, rather than death, was the appropriate punishment." Evans v. Smith, 54 F.Supp.2d 503, 516 and n. 26 (D.Md.1999), affirmed, Evans v. Smith, supra, 220 F.3d 306.

At the conclusion of the 1992 resentencing proceeding, the jury determined again that Evans should receive two death sentences, and this Court affirmed. Evans v. State, 333 Md. 660, 637 A.2d 117, cert. denied, 513 U.S. 833, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994).

The present case began when Evans filed in the Circuit Court for Baltimore County a motion for a new trial based on allegedly newly...