Spicer v. Warden of Roxbury Correctional Institute, CIV. PJM 97-2295.
| Decision Date | 29 December 1998 |
| Docket Number | No. CIV. PJM 97-2295.,CIV. PJM 97-2295. |
| Parties | Brady George SPICER, Petitioner, v. WARDEN OF THE ROXBURY CORRECTIONAL INSTITUTE, Respondent and The Attorney General for the State of Maryland, Respondent. |
| Court | U.S. District Court — District of Maryland |
Jonathan Paul Van Hoven, Baltimore, MD, Brady George Spicer, R.C.I., Hagerstown, MD, for Petitioner.
J. Joseph Curran, Jr., Ann N. Bosse, David Jonathan Taube, Office of Attorney General, Baltimore, MD, for Respondent.
Brady Spicer asks the Court to vacate his state court criminal conviction pursuant to 28 U.S.C. § 2254. Since his petition was filed after April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996, review is governed by 28 U.S.C. § 2254(d). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Section 2254(d) provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
In the Court's view, the decision of the State post-conviction courts involved an unreasonable application of clearly established Supreme Court law and an unreasonable determination of the facts in light of the evidence presented. Accordingly, the writ of habeas corpus will issue.
The Court explains.
On February 22, 1990, between 11:00 a.m. and noon, Francis "Bones" Denvir was viciously beaten in the upstairs office of Armadillo's, the bar he owned near the Annapolis docks. Brady Spicer is serving a 30-year sentence in the Roxbury Correctional Institute for having committed the crime. In May, 1992, an Anne Arundel County jury found him guilty of assault with intent to murder Denvir.1 His motion for a new trial, direct appeal, and petition for post-conviction relief in the Maryland Courts were unsuccessful.
Spicer's conviction was based exclusively on eyewitness testimony, none of which came from the victim, who was unable to identify his assailant. At his trial, which occurred 27 months after the event, three witnesses identified Spicer as the culprit.
The first, Henry Connick, a bartender at Armadillo's, who did not know Spicer previously, testified that he came upon Spicer and Denvir as Denvir was being beaten, chased Spicer down the street but was unable to catch him.
The second eyewitness, Larry Brown, who indicated that he knew Spicer from "around" for a period of about 2 weeks prior to the incident, testified that he saw Spicer at the time of the incident running up the street being chased by another man.
The third witness, Sam Novella, who was standing in the street and had a glimpse of a man being chased about the time of the incident, when asked in court if Spicer was the man he had seen, testified that Spicer looked "very, very familiar."
No other direct or circumstantial evidence linked Spicer to the crime and he had no apparent motive to commit it. A large pile of money was found beside Denvir when his assailant fled.
Although the Assistant State's Attorney told the jury in opening statement that Connick had made a "positive" out-of-court identification of Spicer from a photographic array, Connick in fact had originally told the prosecutor he was "almost positive."
The second witness, Brown, had been granted a plea bargain to testify against Spicer. Facing his third conviction on drug charges, Brown stood to receive a sentence of up to 20 years incarceration but could receive probation if he helped incriminate Spicer.
The third witness, Novella, had been unable to make a definite out-of-court identification from a photo array, although he had initialled a photograph of Spicer as possibly being the culprit.
All these facts were known to court-appointed defense counsel prior to trial. Certain other facts were not known to defense counsel prior to trial or, if known, were not acted upon.
Thus defense counsel knew that Connick, the first witness, had described the assailant to the police immediately after the attack as being a black male, approximately 5'9" tall, weighing about 165 pounds. At the end of his brief interrogation of Connick, defense counsel inquired if that was indeed what Connick had reported and, after Connick confirmed that was what he had said if that was what was written down, counsel inquired no further. Spicer, a black male, is apparently 6'3" or 6'4" tall and weighs in excess of 200 pounds. Spicer did not testify at trial nor was he asked to stand and demonstrate his size and bulk to the jury.
Defense counsel also knew that the second witness, Brown, had approached the prosecutor through his own attorney, Gary Christopher, who had told the prosecutor that Brown was able to identify Spicer as the perpetrator of the crime. What defense counsel did not know and what the prosecution did not disclose to him was that Brown's attorney had not told the prosecutor that his client saw Spicer on the day of the crime, only that Brown had seen Spicer a few days before and a few days after the crime. Before the grand jury and at trial, however, Brown was permitted to testify that he had been at work in the vicinity on the day of the crime and that he had in fact seen Spicer running away from the scene being chased by another man. The prosecutor never bothered to clarify the discrepancy between what Brown's attorney told him Brown would say and what Brown himself (in the absence of his counsel) told the prosecutor, the grand jury, and trial jury. Defense counsel, for his part, never inquired of Brown's counsel prior to trial as to what Brown might say, merely acting upon the prosecutor's representation of what Brown would say, i.e. that Brown saw Spicer being chased on the day of the assault. Defense counsel never interviewed Brown's employer regarding his attendance at work on the date of the crime.
The third witness, Novella, who had been unable to make a definite out-of-court identification of Spicer, testified at trial that Spicer looked "very, very familiar." Novella was permitted to testify to this effect without objection by defense counsel despite the fact that an objection would almost certainly have precluded the testimony altogether. Specifically, a hearing on Spicer's motion to suppress out-of-court identifications had been held immediately prior to the commencement of the trial on the merits. Novella failed to show up for the hearing, in consequence of which the State advised both the court and defense counsel that it did not intend to call Novella at trial. Accordingly, no record was made before trial of what Novella's testimony might be and no groundwork laid for his possible impeachment were he to testify. In fact Novella not only showed up for trial later that day; despite the fact that the court had imposed a rule on witnesses, he sat in the courtroom through the initial part of the trial proceedings before being called as a witness. When Novella was called by the prosecution in its case-in-chief, defense counsel raised no objection nor did he object to Novella's in-court identification of Spicer as looking "very, very familiar."
Finally, Spicer had advised his counsel that some 17 months prior to the crime for which he was on trial, he fractured his knee cap as a result of which, according to Spicer, he was unable to run in the fashion that the assailant was supposed to have run while being chased. Although defense counsel had Spicer's medical record in his possession, he neither offered the record in evidence nor called any doctor or expert to testify to the effect that the injury might have had on Spicer's ability to run. Counsel explained to Spicer at the time that he was not disposed of to offer the medical record in evidence because it would make the defense case seem "desperate."
Against this background, the jury found Spicer guilty beyond a reasonable doubt of assault with intent to murder. He has been incarcerated ever since. Throughout, he has vigorously maintained his innocence.
Spicer argues that his conviction is tainted for several reasons:
1) The Assistant State's Attorney for Anne Arundel County committed a Brady2 violation by failing to disclose the inconsistent statement made by State's witness Larry Brown.
2) He was denied effective assistance of counsel because counsel failed to investigate the inconsistent statement made by Brown.
3) The Assistant State's Attorney engaged in prosecutorial misconduct by calling Sam Novella after Novella failed to appear at the suppression hearing and the State represent to counsel and the court that it would not be calling him and after Novella violated the court's rule on witnesses.
4) Spicer was denied effective assistance of counsel because counsel failed to object to Novella's testimony after Novella failed to appear at the suppression hearing and the State represented to defense counsel and the court that it would not be calling him and after Novella violated the court's rule on witnesses.
5) He was denied effective assistance of counsel because counsel failed to investigate with Brown's employers whether Brown was at work in the vicinity of the crime on the day the crime occurred.
6) He was denied effective assistance of counsel because counsel failed to enter into evidence medical records or medical or expert testimony showing that Spicer was unable to run as the assailant was described to have done.3
A state prisoner may not seek habeas...
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