Grandison v. State

• Decision Date: 14 October 2015
• Docket Number: No. 0150,0150
• Citation: Grandison v. State, No. 0150 (Md. App. Oct 14, 2015)
• Parties: ANTHONY GRANDISON, SR., a/k/a JAMES WILLIAMS v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

ANTHONY GRANDISON, SR., a/k/a JAMES WILLIAMS v. STATE OF MARYLAND

No. 0150

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

October 14, 2015

UNREPORTED

^*Zarnoch, Reed, Davis, Arrie W.(Retired, Specially Assigned), JJ.

Opinion by Davis, J.

^*Zarnoch, Robert A., J., participated in the conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

**This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority.Md. Rule 1-104.

Anthony Grandison, Sr.,¹appellant, appeals from the denial, without a hearing, of his petition for writ of error coram nobis, raising two questions:

I.Whether the circuit court erred in finding that he failed to show that he was suffering a significant collateral consequence as a result of the conviction he was challenging; and

II.Whether the circuit court erred in denying his coram nobis petition without a hearing.

Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Grandison has an extensive criminal history and was twice sentenced to death for the murders-for-hire of David Scott Piechowicz and his sister-in-law, Susan Kennedy, to prevent them from testifying against him in a pending narcotics trial in federal court.²Grandison v. State, 341 Md. 175, 192-95(1995).But those sentences are only indirectly at issue, as they are, Grandison alleges, the collateral consequence he is suffering because of the judgment of conviction that is at issue in this appeal.

Years before committing those murders, in 1975, Grandison was convicted, by a jury sitting in the Criminal Court of Baltimore, of wearing, carrying, or transporting a handgun, in violation of former Article 27, § 36B(b)(although he was acquitted of several other charges, including assault with intent to murder), and was sentenced to eighteen months'imprisonment.Grandison v. State, 32 Md. App. 705, 706-07, cert. granted, 279 Md. 682(1976), cert. dismissed(May 4, 1977)(unreported).At the time of the jury trial in that case, Maryland Rule 756 provided that the court"may and at the request of any party shall, give such advisory instructions to the jury as may correctly state the applicable law" and that the court"shall in every case in which instructions are given to the jury, instruct the jury that they are the judges of the law and that the court's instructions are advisory only."Md. Rule 756 b (1975)(Emphasis added).

Grandison did not further challenge that 1975 conviction through a proceeding under the Maryland Uniform Post-conviction Procedure Act.³However, in 2008, Grandison filed, in the Circuit Court for Baltimore City,⁴ a petition for writ of error coram nobis (which he subsequently amended, in 2011, and supplemented, in 2012), contending that his 1975 conviction for wearing, carrying, or transporting a handgun was infected with two fundamental errors: (1) that, since the advisory jury instructions given at his trial created the possibility that the jury disregarded the court's instructions as to the State's burden of proof, his right to due process was violated; and (2) that the late Joseph Kopera, a State's expert witness in ballistics, firearms identification, and gunpowder residue, offered perjuredtestimony at that same 1975 trial, again violating his right to due process.⁵Grandison further alleged that, because that tainted 1975 conviction became part of his criminal record, it appeared in the pre-sentencing investigation report subsequently used and, in fact, considered by the sentencing jury in his most recent capital sentencing procedure, as well as in several other federal cases.Accordingly, Grandison asserted that his 1975 handgun conviction should be vacated.

The circuit court determined that Grandison failed to show that he had suffered a "significant collateral consequence" as a result of the challenged 1975 handgun conviction and, without a hearing, issued a memorandum opinion and order denying Grandison's coram nobis petition.He then noted this appeal.

DISCUSSION

I.

During the pendency of this appeal, the Court of Appeals granted the State's petition for a writ of certiorari in State v. Waine, which addressed the question of what relief, if any, should be available under the Maryland Uniform Post-conviction Procedure Act to persons who were convicted, prior to December 1980, in jury trials in which "advisory only"instructions had been given.441 Md. 61(2014)(table).Because the outcome of that case could have affected our disposition of the present case, we issued a stay of this appeal pending the Court of Appeals' resolution of Waine.Now that a decision in Waine has been rendered, ___ Md. ___, 2015 WL 5081623(Aug. 28, 2015), we lift that stay and decide the instant appeal.

II.

The State, invoking Maryland Rules 8-602(a)(6) and 8-413(a),⁶ as well as the rules governing coram nobis proceedings,⁷ moves to dismiss the instant appeal, on the ground that Grandison has failed to provide transcripts from either his 1975 trial or any other relevant proceedings.While we would otherwise be inclined to grant that request, because, as we shall explain, the record is adequate to resolve Grandison's claim, we shall exercise our discretion to deny it.Md. Rule 8-602(a).

As for Grandison's claim of error based upon the giving of advisory jury instructions, we observe that he has attached to his coram nobis petition an excerpt from what purports to be the transcript of his 1975 trial.That transcript indicates that the court instructed the jury:

Members of the jury, under the Constitution of Maryland, you, the jury, are the judges of the law as well as the facts.It is within your province to resolve conflicting interpretations of the law and to decide whether the law should be applied in dubious factual situations.However, you do not have unlimited discretion to make new law or to repeal or ignore clearly existing laws as whim, fancy or compassion might dictate even within the limited confines of a single criminal case.

Anything that I might say to you regarding the facts of the case and any further instructions which I give with respect to the law are advisory only.You are in no way bound by what I say to you as to either.* * *

(Emphasis added.)

Shortly thereafter, the trial court instructed the jury as to the presumption of innocence and the burden of proof.It thereafter instructed the jury as to the charged offenses and then further instructed:

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.In the course of your deliberations, do not hesitate to reexamine your own views and change your own view if it is erroneous.However, do not surrender your own convictions as to the weight or effect[ of the] evidence solely because of the arguments of your fellow jurors or merely for the purpose of arriving at a verdict.You are not partisans, you are judges.You are judges of both the law and the facts.Your sole interest in this case is to ascertain the truth from all of the evidence.

(Emphasis added.)

Moreover, that transcript excerpt contains self-authenticating facts consistent with Grandison's implied assertion that it is authentic.The trial court's instruction as to chargedoffenses in the transcript excerpt just happened to coincide with the charged offenses recited in the reported opinion of this Court in Grandison's direct appeal in the same case.Grandison v. State, supra, 32 Md. App. at 706-07.In additional, there is a self-authenticating fact in that transcript, namely, that Grandison was charged, in one of the indictments at issue, with wearing, carrying, or transporting a handgun on November 18, 1974, which fact is also recited in our reported opinion in his direct appeal.Id. at 706.Given that a "presumption of regularity" attaches to criminal proceedings, Skok v. State, 361 Md. 52, 78(2000), as well as the fact that Rule 756 then required a trial court to give advisory instructions, we have little doubt that the transcript excerpt is authentic and that it is sufficient to set forth a prima facie case that, in fact, advisory instructions were given at Grandison's 1975 trial.If, however, the coram nobis court had granted Grandison's request for a hearing, he would have been obligated to provide the entire transcript or explain why he was unable to do so, Md. Rule 15-1202(c), or else risk a finding that he has failed to carry his burden of proof.SeeSkok, 361 Md. at 78.

As for Grandison's "Kopera claim," his coram nobis petition contains, as an attached exhibit, only a single page from the 1975 transcript, indicating that Kopera was recalled as a defense witness.That exhibit contains absolutely none of Kopera's testimony, much less the closing arguments of the State and the defense, all of which would be crucial in evaluating the effect of Kopera's testimony, if any, on the jury.Grandison's failure to provide a transcript, both here and below, renders his "Kopera claim" nothing more than a bald allegation, which the coram nobis court was not required to consider.SeeMd. Rule15-1202(c)(coram nobis petitioner"shall attach to the petition all relevant portions of the transcript or explain why the petitioner is unable to do so").In any event, Grandison does not, so far as we can determine from his pro se brief in this appeal, raise any allegation of error based upon a "Kopera claim," and we therefore regard that claim as abandoned.SeeMd. Rule 8-504(a)(6)(providing that a brief "shall" contain "[a]rgument in support of the party's position on each issue");id.(c)...