Kulbicki v. State

Decision Date26 September 2012
Docket NumberNo. 2940,Sept. Term, 2007.,2940
Citation53 A.3d 361,207 Md.App. 412
PartiesJames Allen KULBICKI v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

Edwin J. Kilpela, Jr., Denver, CO (Wheeler, Trigg, O'Donnell, LLP, Denver, CO, Robert M. Cary, Williams & Connolly, LLP, Washington, D.C., Paul B. DeWolfe, Public Defender, Baltimore, MD) on the brief, for Appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: WRIGHT, MATRICCIANI, and WATTS, JJ.

WRIGHT, J.

Following a jury trial in the Circuit Court for Baltimore County, appellant, James Kulbicki, was convicted of first degree murder on October 20, 1993. On December 1, 1994, this Court reversed and remanded for a new trial. Kulbicki v. State, 102 Md.App. 376, 649 A.2d 1173 (1994). On November 22, 1995, Kulbicki was again convicted, by a jury, of murder, as well as a related handgun charge. He was sentenced to life in prison without parole. On December 20, 1996, this Court affirmed Kulbicki's convictions, and on April 9, 1997, the Court of Appeals denied Kulbicki's petition for writ of certiorari. Kulbicki v. State, 345 Md. 236, 691 A.2d 1312 (1997).

On or about March 17, 1997, while his request for certiorari review was pending, Kulbicki filed a petition for postconviction relief. After filing several amendments and repeatedly seeking postponements of his postconviction proceedings, Kulbicki filed an amended petition for postconviction relief on April 4, 2006. Following a five-day hearing in April 2007, the circuit court denied postconviction relief through an opinion and order dated January 2, 2008. Kulbicki then filed an application for leave to appeal the denial of postconviction relief, which this Court granted on March 9, 2010.

Questions Presented

We have rephrased and renumbered the questions presented by Kulbicki, as follows: 1

1. Where Kulbicki alleged that his conviction was based on unreliable, false, and misleading scientific evidence, did the postconviction court correctly conclude that he did not have a cognizable due process claim?

2. Where Kulbicki alleged that the State used perjured, false, and misleading expert ballistics testimony in securinghis conviction, did the postconviction court correctly find that he was not denied a fair trial?

3. Did the postconviction court correctly conclude that Kulbicki failed to establish his ineffective assistance of counsel claim?

For the reasons that follow, we affirm the circuit court's judgment.

Facts

The testimony at Kulbicki's 1995 trial established that at about 8 a.m. on Sunday, January 10, 1993, Walter Kutcha was walking his dog near the archery range at Gunpowder State Park when he saw a body lying by one of the trash cans. Suspecting “foul play,” Kutcha went to a park ranger's cabin and came back with Ranger Ross Harper. Upon their return, Kutcha and Ranger Harper discovered that the body was that of a deceased woman, lying on her back.

Officers of the Baltimore County Police Department responded to the scene at approximately8:30 a.m. Detective William Ramsey, a member of the Baltimore County Police Department's Homicide and Missing Persons units, testified that he arrived at 10:18 a.m. and began his investigation. He observed blood on the victim's forehead, around her nose, and on the right side of her shoulder. Det. Ramsey also noted that the victim's jewelry had not been removed. Upon turning the body over, Det. Ramsey saw a wound near the back of the victim's head, but no blood on the ground underneath. Based on the leaves and debris under the victim's jacket, the position of her clothes and arms, the disturbance of the leaves and debris in an area leading toward the body, as well as the absence of bullets and shell casings on the surrounding ground, Det. Ramsey concluded that the victim had “been killed somewhere else and taken there and ... dragged there and dumped.”

Det. Ramsey unzipped the victim's jacket and saw that she was wearing a Royal Farms store smock with a name tag that said “Gina.” While Det. Ramsey was conducting his investigation,he received a call from the Baltimore City Police Department instructing him to contact the city's Homicide Unit. Upon doing so, Det. Ramsey was informed that the city police were “ investigating a missing girl from Baltimore City.” Eventually, the Baltimore City Homicide Squad arrived at the crime scene, along with “a subject ... who identified the victim as Gina Marie Neuslein.”

Geraldine Neuslein, Gina's mother, testified that she last saw Gina on Saturday, January 9, 1993, when Gina left to walk to work at around 3:30 p.m. At about 4:10 p.m., Geraldine received a call from Gina's employer, stating that Gina never arrived.

During Det. Ramsey's investigation, he received “information over the radio that there was an individual who might have some information relative to the crime.” Det. Ramsey sent an officer to interview that witness, Barbara Clay. At trial, as a witness for the State, Clay testified that at approximately 3 p.m. on January 9, 1993, she and her son went to the archery club at Gunpowder State Park. As they were leaving the parking area around 4:40 p.m., she saw a black Ford pickup truck coming down the road with its headlights on. When the truck turned into the parking area, it passed parallel to Clay's vehicle, about four feet away. With her window down, Clay raised her hand, “yelled and [ ] said hi.” The driver of the truck [s]lowly looked at [her] full face” but did not respond. Clay identified the driver as Kulbicki.

After passing the truck, Clay drove about one third of a mile down the road and parked, hoping to see some deer. After waiting approximately fifteen minutes, Clay left with her son. She did not see the truck leave, nor did she see any other vehicles enter the area.

The next morning, Clay heard information from a television news program that prompted her to call the Baltimore County Police Department.2 Upon calling the authorities, Clay relayedinformation that was not provided on the news. Specifically, she told an officer that she “had seen a white male in his mid-thirties driving a Ford longbed pickup truck” at the archery range parking lot at Gunpowder State Park. Clay added that the driver had dark hair and “was wearing a dark jacket with a contrasting lighter shirt.”

On the evening of January 13, 1993, Clay saw a television broadcast showing a man in shackles being arrested. Because of the man's “very distinctive profile, [and] very distinctive nose,” Clay “without doubt, [ ] knew that was the man that [she] saw at Gunpowder State Park.” Thus, Clay called the police and told them that she “recognized that man that they had arrested ... as being the man that [she] saw.”

Shortly after Det. Ramsey concluded his investigation at the park on January 10, 1993, he received information that prompted him to visit the home of James Kulbicki, a sergeant of the Baltimore City Police Department, to ask questions about Gina. Det. Ramsey was accompanied by his partner, Detective Robert Capel. Kulbicki told the detectives that he did know Gina and has been friends with her for about four years.” Without prompting, Kulbicki added that he and Gina were “very good friends, although they've never had a sexual relationship.”

Kulbicki stated that he last saw Gina at around 3:30 p.m. on Friday, January 8, 1993, when he picked her up close to her house and drove her to work. Kulbicki also stated that he last spoke to Gina when she called him on “Friday night at midnight into early Saturday morning.” When Det. Capel informed Kulbicki that Gina's body was found in Baltimore County, Kulbicki said he suspected that was the case, because the detectives admitted they were from the Homicide Squad. Kulbicki did not ask where and how Gina was killed. According to Det. Capel, Kulbicki “just said he didn't have anything to do with it.”

The detectives asked Kulbicki about an upcoming paternity hearing scheduled for the following Wednesday as well as genetic tests indicating that Kulbicki was the father of Gina's 18–month old child. In response, Kulbicki said:

Well, that's absolutely impossible that I'm the father. I don't believe in genetic tests. And the only reason why they'd even be closest, because we're both Slavic.... I've never had sex with her.

When the detectives first interviewed Kulbicki, his black Ford pickup truck was parked outside the house. The following day, the police returned with a warrant. They seized, among other things: Kulbicki's pickup truck, which had not been moved since the detectives' prior visit; a denim jacket taken from a hall closet; and a fully loaded .38 Smith & Wesson revolver with a two-inch barrel and its leather holster.

Detective Patrick Kamberger, a Crime Lab mobile technician with the Baltimore County Police Department, processed Kulbicki's truck on January 11, 1993. Det. Kamberger testified that the truck, a 1988 Ford F250, had a “filthy” exterior, but “inside the truck appeared to be clean.” The first thing he noticed when he opened the door was “a smell [of] household cleaner.” According to Det. Kamberger, there was no surface dust on the dashboard or around the steering wheel, and the floorboard underneath the driver's floor mat was damp, although the mat itself was dry.

Det. Kamberger noticed that a piece of red plastic molding was missing from the rear passenger-side window, revealing a rubber strip that had metallic marks. Beneath the rubber strip, Det. Kamberger noticed “an impact area” or “i [n]dentation.” Subsequent chemical testing of the rubber strip established that the rubber was struck by something made of lead. A piece of red plastic fitting the damaged molding area was found in the truck bed.

Inside the cab, there was no blood visible to the naked eye. Preliminary examination of the truck using ultraviolet light, however, indicated the possibility that blood stains were present. Therefore, Det. Kamberger requested the...

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    ...ineffective assistance of counsel claim as it related to Kulbicki's attorneys' exploration of CBLA evidence. Kulbicki v. State, 207 Md.App. 412, 450–53, 53 A.3d 361, 383–85 (2012). We granted certiorari to consider the following questions, which we have renumbered:6 1. Does the failure of d......
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