McGhie v. State

• Decision Date: 24 August 2016
• Docket Number: Sept. Term, 2015,No. 78,78
• Citation: 144 A.3d 752,449 Md. 494
• Parties: Robert Anthony McGhie v. State of Maryland
• Court: Court of Special Appeals of Maryland

449 Md. 494

144 A.3d 752

Robert Anthony McGhie

v.State of Maryland

No. 78

Sept. Term, 2015

Court of Appeals of Maryland.

August 24, 2016

Allison Pierce Brasseaux, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner

Robert Taylor, Jr., Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen., Baltimore, MD), on brief, for Respondent

Argued before Barbera, C.J., Battaglia,^* Greene, Adkins, McDonald, Watts and Irma S. Raker (Retired, Specially Assigned), JJ.

Barbera

, C.J.

Maryland law affords persons convicted of certain crimes the chance to obtain a new trial based on “newly discovered evidence” that “creates a substantial or significant possibility” that the result of the trial would have been different. The vehicle for obtaining such relief is a Petition for Writ of Actual Innocence. See Md. Code Ann., Crim. Proc. § 8–301(a)(1)

(2010, 2008 Repl. Vol., 2015 Supp.).¹ Petitioner Robert McGhie is serving a life sentence for murder and related offenses stemming from a 1994 failed armed robbery. In 2013, Petitioner filed a petition under § 8–301, basing it on newly discovered evidence that the State's ballistics expert, Joseph Kopera, testified falsely about his academic credentials at Petitioner's trial. Following a hearing on the petition, the Circuit Court for Montgomery County denied relief, concluding that Kopera's lies about his academic credentials did not create a substantial or significant possibility of a different outcome at trial. The Court of Special Appeals affirmed the judgment of the Circuit Court. McGhie v. State , 224 Md.App. 286, 288, 120 A.3d 828 (2015). We, in turn, affirm the judgment of the Court of Special Appeals.

I.

The Trial and Appeal

Petitioner was tried before a jury in the Circuit Court for Montgomery County. The State proceeded on charges of murder, attempted murder, two counts of use of a handgun during the commission of a crime of violence, and conspiracy to commit armed robbery. The target of the planned robbery was the American Mailbox, a business located in Silver Spring, Maryland that provides mailing services to customers. Much of the State's evidence of Petitioner's involvement in the crimes was presented through the testimony of one of the co-conspirators to the robbery, Edward Borrero.

Borrero, sixteen years old at the time of trial, testified pursuant to a plea agreement.² His testimony was lengthy and detailed. According to Borrero, at 2:30 p.m. on January 31, 1994, he called a man known to him as “Mike.”³ After the call, Borrero and his friend, then-sixteen-year-old Terrance Robinson, went to Mike's apartment on 19th Street in Washington, D.C., arriving around 3:00 p.m. or sometime shortly thereafter. Mike talked with Borrero and Robinson about “a little store that [they] could hit.” In discussing a plan for the robbery, Mike drew a blueprint of the American Mailbox and told the two teenagers that there was $40,000 to $80,000 in cash in the back office.

Petitioner arrived at the apartment a few minutes later. Shortly thereafter, he, Mike, Borrero, and Robinson drove in a Chevrolet Celebrity (“the Celebrity”) to an apartment where Mike retrieved a 9-millimeter chrome handgun. Mike then returned to the car, accompanied by his girlfriend, Angie. An acquaintance of Mike, Earl (“Skinny”) Patterson, was waiting together with the others. Mike handed Borrero the handgun, and Skinny gave Borrero the keys to a Chrysler New Yorker (“the New Yorker”).

With Borrero driving the New Yorker, and Petitioner, Mike, Angie, and Robinson in the Celebrity, the group traveled in the direction of the American Mailbox. The trip was interrupted by a detour to take Angie back to the apartment, as she had decided not to participate in the planned robbery. After dropping her off, Borrero joined Petitioner, Mike, and Robinson in the Celebrity. They drove together to view the exterior of the American Mailbox and discuss the robbery plan. Once the plan was set, the four men retrieved the New Yorker.

The four men then drove separately in the two cars to the apartment of Vanessa Hood. There, Mike collected a .38 revolver and handed it to Borrero. Borrero opted to use the chrome pistol and passed the revolver to Robinson. Borrero and Robinson then drove the Celebrity to the American Mailbox, while Mike and Petitioner drove the New Yorker to a spot a few blocks from the store.

Borrero and Robinson entered the American Mailbox. Borrero, with a book of stamps in hand, approached the counter where the storekeeper, Joseph Atkins, was speaking on the telephone. When the call ended, Borrero pulled out a gun. Atkins reached across the counter to defend himself, and Borrero shot him in the face.

Borrero and Robinson then searched, without success, for the money. As they were doing that, a storekeeper from down the street, Randall Covington, entered the American Mailbox. Borrero shot him as well. Covington died of the gunshot wound

.

Borrero and Robinson fled the store and drove in the Celebrity to meet Mike and Petitioner, who were waiting in the New Yorker. The four abandoned the Celebrity on the street and drove in the New Yorker to Hood's apartment. At the apartment, Mike left the two guns with Hood. About ten minutes after their arrival, a young man, later determined to be Hood's son, Vandell Roseman, entered the apartment. Soon thereafter, Petitioner, Mike, and Roseman left the apartment. Borrero and Robinson remained at the apartment watching television, then left after seeing a news report about the shooting.

Borrero further testified that he was arrested on February 8, 1994, and at that time told a different story to the police. In that interview, he reversed Mike's and Petitioner's participation in the crime and reversed his role with that of Robinson.

The State called Hood and her son, Roseman, each of whom corroborated aspects of Borrero's testimony. Hood testified that, on January 31, 1994, around 3:30 p.m. to 4:00 p.m., Petitioner and Mike came to her apartment, which is about a fifteen-minute drive from the American Mailbox, to collect a gun that Mike had left there. The gun was brown and black and had a cylinder in the middle. About thirty to forty-five minutes later, Petitioner and Mike returned to her house with two boys. Hood testified that they must have arrived sometime before 5:00 p.m. because she was watching the Oprah Winfrey show, which airs from 4:00 p.m. to 5:00 p.m. Mike gave her two guns and asked her to keep them; one gun was the brown and black gun that Mike had picked up earlier that afternoon and the other gun was flat and silver. Ten to fifteen minutes later, Roseman came home but left sometime thereafter. Like Borrero, Hood testified that the two boys were watching television at Hood's apartment for a time but left after they watched a news report about a shooting nearby. About two to three days after the incident, Hood decided that she did not want the guns in her home and gave them to Roseman to discard.

Roseman testified that, on January 31, 1994, he came home around 5:00 or 6:00 in the evening and saw Petitioner, Mike, and two boys. At Petitioner's request, Roseman drove him to the American Mailbox. When upon arrival they saw that police were surrounding the area, Petitioner told Roseman to “forget it and just to go back home.” Roseman's mother instructed him a couple of days later to discard two handguns, a silver automatic and a black and brown revolver. He threw the guns into a trash can.

Barbara Rogers resides at the apartment on 19th Street where Borrero and Robinson had met with Mike earlier on January 31, 1994, to discuss the robbery plan. Rogers testified that, towards the end of 1993, she allowed Mike and Petitioner to move into her apartment; Petitioner left after a short stay and, in January 1994, Rogers asked Mike to leave. Mike came to her apartment on January 31, 1994, to pick up his belongings. Petitioner arrived sometime after 2:00 p.m. and, thereafter, he and Mike “were in and out” of the apartment. Rogers overheard Mike say that there was a “sweet spot” that had $80,000, to which Petitioner responded, “[l]et's take the motherfucking joint.” Mike said that he “would never have to hustle again” and would take his share and return to Jamaica. Petitioner said that he was going to buy a nice car. Borrero called Rogers's apartment that same afternoon to speak to Mike. About thirty to forty-five minutes later, Borrero and Robinson arrived at her apartment. Rogers believed that all four left sometime before 3:00 p.m.

Rogers further testified that, a couple of days later, Petitioner and Mike were in her apartment and she again heard them talking about the robbery. Rogers testified that she overheard Petitioner say that “his fingerprints ain't on nothing and didn't nobody see him nowhere near the place.” She also heard Petitioner say that “a man dead and we didn't get a damn dime.” Rogers also testified that in early 1994 she helped the Montgomery County Police Department identify persons involved in the crime and received $820 and additional money to pay her telephone bill. She also admitted that she was negotiating a bad checks case with the U.S. Attorney, stating, though, that her case had nothing to do with her testimony and she did not receive any financial assistance or leniency in that federal case for her testimony as a witness against Petitioner.

Atkins, the American Mailbox storekeeper, survived the shooting and testified about the incident. On that day, two kids came into the store. After one kid made a purchase, Atkins handed him his change and the receipt; the kid then pulled out a dark grey gun and shot Atkins in the mouth. The kid shooter then looked for money while the other kid stood there. When Covington, the storekeeper from down the street, entered the store, the kid who shot Atkins also shot Covington. That same kid then stood over Atkins and shot him again; Atkins had his hands over his head and the bullet went through his arm. Atkins...