Stevenson v. State

• Decision Date: 09 April 1984
• Docket Number: No. 46,46
• Citation: 299 Md. 297,473 A.2d 450
• Parties: Dorothy L. STEVENSON v. STATE of Maryland. Sept. Term 1983.
• Court: Maryland Court of Appeals

Page 297

299 Md. 297

473 A.2d 450

Dorothy L. STEVENSON v. STATE of Maryland.

No. 46 Sept. Term 1983.

Court of Appeals of Maryland.

April 9, 1984.

Gary W. Christopher, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Carmina Szunyog, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COUCH, Judge.

We are asked to hold that the Circuit Court for Kent County (Clark, J.) erred in denying appellant's motion for a new trial in this criminal case. The motion was based on the newly discovered evidence that one of the state's expert witnesses had perjured himself with respect to his academic credentials. We affirm.

The facts giving rise to the issue before us may be succinctly stated. The appellant was charged with the first degree murder of her husband and related offenses including setting fire while perpetrating a crime. ¹ It appears that her husband's death was the result of severe burns he received from a gasoline fire in his bedroom. The deceased victim lived for nineteen days after the incident and, during this time, he made several statements to the effect that appellant poured gasoline on him and ignited it with a match. Appellant, however, denied the presence of a match, contending that the ignition was spontaneous. At trial both sides called numerous witnesses. Approximately forty witnesses testified for the state, including nine experts in the case in chief, and four experts on rebuttal. The defense called seventeen witnesses, including five experts. At issue was the origin of the fire.

Dennis Michaelson was one of the rebuttal witnesses called by the state to counter defense expert testimony as to the origin of the fire. In the qualifying part of his testimony Michaelson testified that he had graduated cum laude from the Illinois School of Technology, a fact which subsequently proved to be untrue.

Prior to this perjured testimony coming to light, appellant's convictions were affirmed on appeal. Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980). Nearly two years after the trial the State's Attorney, who prosecuted the case, was advised by the Illinois Department of Law Enforcement, Division of Criminal Investigation, that Michaelson had not graduated from the school. The record clearly demonstrates the State's Attorney had no prior knowledge of the perjured testimony. After being apprised of this fact the State's Attorney informed defense counsel. Thereafter, appellant filed the motion for a new trial ² alleging that appellant "was convicted in large part on the sworn testimony of a State's 'expert' witness in rebuttal, one Dennis Michael Michaelson."

At the hearing on this motion appellant's counsel argued that a new trial was required because if the jury had been aware of Michaelson's perjury it could have reached a different verdict, a verdict more favorable to appellant. The trial judge, in denying the motion, did so on the basis that he was convinced "beyond a reasonable doubt that the State presented a case without the testimony of Mr. Michaelson that overwhelmingly pointed to the guilt of the accused." The Court of Special Appeals affirmed in an unreported opinion. (No. 726, September Term, 1982, filed March 7, 1983). We issued certiorari to determine questions of public importance.

(1)

Standard To Be Used In Granting A New Trial Based On Newly

Discovered Evidence

Maryland Rule 770 b provides, in part, that a court may, in a criminal case, grant a new trial or other appropriate relief on the ground of newly discovered evidence. No standard is set forth in the rule to guide a trial judge, except to denote the exercise of discretion through the use of the word "may."

The appellant argues that error was committed when the trial judge, citing Ginnelly v. Continental Paper Co., 57 N.J.Super. 480, 155 A.2d 154 (1959), held the test (standard) to be applied is whether the newly discovered evidence would probably alter the judgment. We are urged to adopt the less stringent standard of might alter the judgment, as a murder conviction "may not rest on probabilities."

Under the circumstances present in this case we need not decide which standard should apply because the trial judge expressly found, as noted above, that the state's evidence without Michaelson's testimony overwhelmingly pointed to appellant's guilt. Thus, in essence, the trial judge implicitly concluded that the newly discovered evidence was not material to the outcome of the case. Whether or not the evidence is material to the result is thus a threshold question. It should be decided in the affirmative before the court inquires into the possible impact the newly discovered evidence would have on the outcome of the trial.

Larrison v. United States, 24 F.2d 82, 87 (7th Cir.1928), is the case credited with establishing the "might" rule that appellant urges this Court to adopt. The court held that a new trial must be awarded if it is established: a) that a material witness has testified falsely, and b) that without his testimony the jury might have reached a different conclusion. However, the court there finds that "the evidence amply supports the verdict ...", id. at 87, and that the "testimony was cumulative." Id. at 88. Additionally, as the trial judge found in the case sub judice, in Larrison there also "was sufficient evidence to convict ... without [this] testimony." Id. at 88. Therefore, because the defendant did not overcome the initial materiality inquiry, the court never considered whether the jury might have reached a different verdict. Similarly, the cases adopting the "might" rule also make materiality a key factor. See United States v. Strauss, 443 F.2d 986, 990 (1st Cir.) (issue was the possible impact of newly discovered evidence on the credibility of a key prosecution witness), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971); United States v. Meyers, 484 F.2d 113, 116 (3d Cir.1973) (an important factor in the government's case depended upon perjured testimony); United States v. Wallace, 528 F.2d 863, 866 (4th Cir.1976) ("might" rule applied for perjured testimony of material witness); Newman v. United States, 238 F.2d 861, 863 (5th Cir.1956) (trial testimony of principal witness rather than affidavit of recantation was true); Gordon v. United States, 178 F.2d 896, 900 (6th Cir.1949) (trial testimony of principal government witness was true), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); United States v. Briola, 465 F.2d 1018, 1022 (10th Cir.1972) (trial court noted and applied rule and found elements not satisfied), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973); United States v. Persico 339 F.Supp. 1077, 1088 (E.D.N.Y.) (court not satisfied that trial testimony of the material witness was false), aff'd, 467 F.2d 485 (2d Cir.1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1360, 35 L.Ed.2d 613 (1973); State v. Caldwell, 322 N.W.2d 574, 586 (Minn.1982) (the testimony was "damning--and it was false. It was unquestionably material; its significance should not be underestimated."); Marshall v. State, 305 N.W.2d 838, 841 (S.D.1981) (new trial not granted because jury had overwhelming evidence at trial to base a verdict of guilt without testimony of witness; "The jury would have concluded that the defendant was guilty had ... not testified."); Mesarosh v. United States, 352 U.S. 1, 13, 77 S.Ct. 1, 7, 1 L.Ed.2d 1, 9 (1956) (key government witness had apparently testified untruthfully in similar proceedings).

On the other hand, several courts have rejected the Larrison rule but still require an initial showing of materiality. See United States v. Stofsky, 527 F.2d 237, 247 (2d Cir.1975) (key issue in dispute would not have been affected by new evidence), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. Krasny, 607 F.2d 840, 845 (9th Cir.1979) (when a key witness's testimony is false it may be probable that an acquittal would result on retrial; this may not be so "when a rather inconsequential witness has prevaricated on a minor or collateral issue."), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980); United States v. Jackson, 579 F.2d 553, 557 (10th Cir.) (recanting testimony did not affect the evidence) (additionally the court stated: "We observe that this court in Briola, supra, did not necessarily adopt the Larrison rule."), cert. denied, 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978).

Other courts still adhere to the majority "probable" rule without having considered the Larrison rule. However, materiality is still a key factor for consideration. See, e.g., Hudson v. United States, 387 F.2d 331 (5th Cir.1967), cert. denied, 393 U.S. 876, 89 S.Ct. 172, 21 L.Ed.2d 147 (1968); Anderson v. United States, 369 F.2d 11 (8th Cir.1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967).

The Court of Special Appeals also recognized that one of the principles which governs the grant of a new trial in criminal cases is that the evidence must be material to the issues involved. Angell v. Just, 22 Md.App. 43, 321 A.2d 830 (1974); Jones v. State, 16 Md.App. 472, 477, 298 A.2d 483, 486, cert. denied, 268 Md. 750 (1973); see also 24 C.J.S. Criminal Law, § 1453 (1961); 58 Am.Jur.2d New Trial, § 175 (1971).

Thus, no matter which rule is followed in a particular jurisdiction, they all require a finding of materiality to the result of the case. If the requirement of materiality is not demonstrated, there is no necessity to consider whether knowledge of the falsity by the factfinder "might" or "probably" would have resulted in a different verdict.

Accordingly, when the trial court found that the evidence of guilt was so overwhelming that the verdict would have been the same without Michaelson's testimony, the fact of the alleged...