Spicer v. Roxbury Correctional Institute

Decision Date08 June 1999
Docket NumberCA-97-2295-PJM,No. 99-6119,99-6119
Citation194 F.3d 547
Parties(4th Cir. 1999) BRADY GEORGE SPICER, Petitioner-Appellee, v. ROXBURY CORRECTIONAL INSTITUTE, Warden; ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents-Appellants. (). . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Ann Norman Bosse, Assistant Attorney General, Criminal Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellants. Nancy Maggitti Cohen, COHEN & MCCABLE, L.L.C., Annapolis, Maryland, for Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellants.

Before WILKINSON, Chief Judge, and NIEMEYER and KING, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Wilkinson joined. Judge King wrote a dissenting opinion.


NIEMEYER, Circuit Judge:

The grave question over the fairness and accuracy of the trial that the State of Maryland provided to Brady George Spicer on charges that he brutally assaulted Francis Denvir arises from the state's violation of Spicer's due process rights under Brady v. Maryland, 373 U.S. 83 (1963). To correct the fatal flaw and to assure that Spicer receives a fair trial, we affirm the district court's order granting Spicer's petition for the writ of habeas corpus under 28 U.S.C. § 2254 and directing the state either to retry Spicer within four months or to release him unconditionally from custody.


Shortly before noon on February 22, 1990, an assailant approached Francis Denvir from behind, while he was seated at his desk, and struck him on the back side of his head and the side of his face, knocking him unconscious. The assailant then continued to beat Denvir savagely in the head and face, leaving him seriously and permanently injured.

Denvir was the manager and part-owner of a popular bar and restaurant in downtown Annapolis, Maryland, known as Armadillo's. At the time of his assault, Denvir was in a small office upstairs from the bar, signing payroll checks. Between $1,500 and $2,000 in cash, banded in stacks, lay on Denvir's desk and remained there after the assault. Denvir neither saw nor heard the assailant enter his office because he had his back to the door and he was listening to audition tapes through headphones.

As the assault was taking place, Henry Connick, an Armadillo's bartender, heard 10 to 15 thumps, which he described as a "methodical banging," and went upstairs to investigate. When he entered the office, he saw Denvir on the floor and the assailant standing over Denvir, with a liquor bottle in his right hand. Connick ran back down the stairs and out the door of the bar, and the assailant followed, dropping the liquor bottle at the foot of the stairs. When the assailant ran out the door past Connick, Connick chased the fleet-footed assailant for several blocks before giving up and returning to the bar.

Sam Novella, who was cutting tile in an alley near Armadillo's, saw the chase and obtained "a very quick view" of "a black gentlemen running very fast and an employee of Armadillo's chasing him."

This violent, midday crime at a popular bar in the heart of Annapolis garnered significant media attention. The Annapolis Police did not believe that robbery was the motive for the crime because the money on Denvir's desk remained untouched and the assailant had continued to attack Denvir even after rendering him unconscious. Moreover, Denvir received hang-up calls at his home after the attack and was reluctant to talk to police about the incident. Some police officers were left with the impression that Denvir knew more than he was willing to tell. While the police pursued many leads and investigated a number of suspects, the assault remained unsolved for over six months and the investigation was placed on a "suspended" status.

In September 1990, Larry Brown, who had been arrested on three counts of distributing cocaine, first introduced Brady George Spicer's name in connection with the Armadillo's assault in his efforts to plea bargain with prosecutors. Brown's lawyer, Gary Christopher, a public defender, asked Brown if he had any information to assist prosecutors. As Christopher later recounted, he "made clear to [Brown that] it was very important to . . . present as much evidence as we could to the State in order to interest them in working out a deal." To this end, Christopher told Brown that he did not want all of the details, but he did need "the major things."

Brown told Christopher that a few days before the assault, an individual, whom he knew as "Spicy," asked him questions about Armadillo's, such as whether or not they were hiring and what he knew about a man who counts money upstairs in the morning. Those questions made Brown suspicious that "Spicy" was planning a robbery. Brown stated that the next time he saw "Spicy" was a day or two after the Armadillo's assault and that "Spicy" had made some expression of thanks, presumably for not disclosing their prior conversation. Believing that this information that Brown related would be insufficient to induce the state prosecutor to bargain, Christopher "pressed [Brown] for any further information he might have as to whether . . . he saw Spicy the day of the offense or whether he could connect him any more closely to the offense and he could not." When Brown specifically denied seeing "Spicy" the day of the assault, Christopher further "pressed him" on that because, as Christopher later related, "I was concerned, what he told me was not enough to go to the Grand Jury with. . . . [I]t would be very much to[his] benefit if [he] knew any other detail that could help -that could make the package more attractive, as it were." Brown nevertheless maintained that he had not seen "Spicy" on the day of the assault.

With that information, Christopher contacted Steve Sindler, the prosecutor on Brown's drug charges, and related the information that Brown had told him. Eventually, Brown pled guilty and agreed to testify against Spicer in exchange for a suspended sentence. When prosecutor Sindler interviewed Brown without Christopher present, Brown stated, for the first time, that he had seen Spicer running from the crime scene on the day of the assault. Brown also testified before the grand jury that he had witnessed Spicer's flight from Armadillo's. Sindler recognized the discrepancy between Brown's testimony and his account to Christopher but "didn't think anything of it." He explained that he preferred to rely on what Brown told him directly rather than what Brown's attorney had earlier related about Brown's original version of the events.

In October 1991, Spicer was charged with assault with intent to murder and other lesser offenses arising out of the attack on Denvir at Armadillo's. At the time, Spicer was serving a one-year sentence for an unrelated theft. In an interview with David Cordell, the investigator for the Anne Arundel County State's Attorney's Office, Spicer denied any involvement and requested a polygraph test, which he was not given. In addition, he told Cordell, as well as his own attorney, that he had shattered his kneecap approximately 18 months prior to the Armadillo's incident and, following an operation, was unable to run -unlike the assailant described by Connick and Novella. Spicer even showed Cordell a scar from the operation. Spicer's attorney obtained the medical records confirming an operation to repair a fractured patella during the indicated time frame, although this information was not presented to the jury.

On May 14, 1992, 12 days after being released from the theft sentence, Spicer appeared in court of his own accord-no detainer had been issued -believing that the Armadillo's charges were a matter of mistaken identity. At his trial, the prosecution introduced no physical evidence linking Spicer to the Armadillo's assault. The prosecution's case relied exclusively on testimony from three purported eyewitnesses: Henry Connick, the Armadillo's bartender; Sam Novella, the man who had been installing tile near Armadillo's; and Larry Brown.

Connick, the bartender, made a courtroom identification of Spicer, who, Spicer's attorney observed, was the only African-American male in the courtroom other than a deputy. Connick stated that "[h]e doesn't look exactly the same today as he did then. He's heavier now. . . . He looks different than his pictures, here. You can see he's changed. He looks considerably different, now. But I'm positive that's him." Cross-examination revealed that within hours of the Armadillo's incident, Connick had described the perpetrator to the police as a black male, 5'9" tall, weighing 165 pounds. Spicer is 6'4" tall and weighs over 200 pounds. Connick also testified that, during the course of the investigation, he had identified several other individuals in five photo arrays as "not positive, but could be," intending to convey that those individuals looked the most like the perpetrator. In January 1991, Connick selected Spicer's photograph from another array, stating that "number three has the same complexion, same facial features, and [he] is almost positive that number three is the person that he chased out of Armadillo's office."

Sam Novella was the prosecution's next eyewitness. Defense counsel had sought to suppress any pretrial photo-identifications that Novella and Connick had made. But when the prosecution advised the court at the suppression hearing that it was unable to locate Novella and did not plan to use him as a witness at trial, the court proceeded With the suppression hearing without...

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