IN THE COURT OF SPECIAL APPEALS OF MARYLAND SEPTEMBER TERM, 2000 NO. 923 lttWB ADNAN SYED, Appellant v. STATE OF MARYLAND, Appellee FEB 2 7 ZWZ BY COURT OF SPtClAl APPEALS APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE CITY (HONORABLE WANDA KEYES HEARD, PRESIDING) BRIEF OF APPELLANT WARREN A. BROWN WARREN A. BROWN, P.A. 1200 Court Square Building 200 East Lexington Street Baltimore, Maryland 21202 (410) 576-3900 Lisa J. Sansone, Esquire Law Office of Lisa J. Sansone 1002 Frederick Road Baltimore, Maryland 21228 (410) 719-0221 Attorneys for Appellant TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES 11 STATEMENT OF THE CASE QUESTIONS PRESENTED 2 STATEMENT OF FACTS 3 ARGUMENT 17 A. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT, VIOLATED BRADY AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS WHEN IT SUPPRESSED FAVORABLE MATERIAL EVIDENCE OF AN ORAL SIDE AGREEMENT WITH ITS KEY WITNESS, AND WHEN IT INTRODUCED FALSE AND MISLEADING EVIDENCE, AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING APPELLANT FROM PRESENTING THIS EVIDENCE TO THE JURY 17 1 . The State suppressed favorable material evidence and introduced and elicited false and misleading testimony relating to the plea agreement with its key witness in violation of Brady 18 2. The State's actions constituted prosecutorial misconduct 41 3. The trial court committed reversible error in prohibiting Appellant from calling Benaroya and recalling Wilds as a witness 43 4. The trial court committed reversible error in restricting the cross- examination of Wilds 44 5. The trial court committed reversible error in denying Appellant's motion to strike the testimony of Wilds 47 6. The trial court committed reversible^ error in precluding Appellant from calling Ms. Julian as a witness 48 7. The trial court committed reversible error in denying Appellant's motion to disclose documents and information from the State 49 8. The trial court committed reversible error in denying Appellant's motion to question Mr. Urick out of the presence of the jury 50 B. THE TRIAL COURT ERRED IN ADMITTING HEARSAY IN THE FORM OF A LETTER FROM THE VICTIM TO APPELLANT, WHICH IS HIGHLY PREJUDICIAL 51 C. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF THE VICTIM'S 62-PAGE DIARY, WHICH CONSTITUTED IRRELEVANT HIGHLY PREJUDICIAL HEARSAY 55 CONCLUSION 63 CERTIFICATE OF SERVICE 64 PERTINENT AUTHORITIES 65 APPENDIX 75 TABLE OF AUTHORITIES Cases Page(s) Arizona v. Youngblood . 488 U.S. 51, 109 S.Ct. 333 (1988) 41 Banks v. State . 92 Md. App. 422, 438, 608 A.2d 1249 (1992) .... 51, 54, 55, 58, 59, 61 Brady v. Maryland . 373 U.S. 83, 83 S.Ct. 1194 (1963) 18 Buckeve Powder Co. v. DuPont Powder Co. . 248 U.S. 55, 39 S.Ct. 38(1918) 60 Case v. State . 1 18 Md. App. 279. 702 A.2d 777 (1997) 61 Clark v. State. 364 Md. 61 1. 774 A.2d 1 136 (2001) 18,41 ii Cluster v.. Cole. 2 1 Md. App. 242, 3 1 9 A.2d 320 (1 974) 63 Commonwealth v. DelValle. 351 Mass. 489, 221 N.E.2d 922 (1966) 60 Commonwealth v. Gilday . 3 82 Mass. 1 66, 4 1 5 N.E.2d 797 ( 1 980) . 37 Commonwealth v. Hill . 432 Mass. 704 : 739 NR. 2d 670 (2000) ... 37 Convers v. State . Md. , A.2d (No. 26. Sept. Term 2001) (filed February 5, 2002) 18,30,31,33-37, 39, 40, 47, 48, 49 Davis v. Alaska . 415 U.S. 308, 94 S.Ct. 1 105 (1974) 45 Delaware v. Van ArsdalL 475 U.S. 673, 106 S.Ct. 1431 (1986) ... 45 E.I, du Pont de Nemours & Co. v. Forma-Pack. Inc. . 351 Md. 396, 718 A.2d 1129(1998) 47,49,50 Fontaine v. State . 134 Md. App. 275, 759 A.2d 1 136, cert, denied . 362 Md. 188 (2000) 18 Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997) 44, 46-49, 51 Martin v. State . Ala. Crim App. , 2001 Ala. Crim. App. Lexis 298, 21 (2001) 32 McNeil v. State . 1 12 Md. App. 434 : 685 A.2d 839 (1 996) 41 Moosavi v. State . 355 Md. 651. 736 A.2d 285 (1999) 63 Move v. State . 139 Md. App. 538, 776 A.2d 120, cert, granted . 366 Md. 274 (2001) 63 Napue v. People of 111. . 360 U.S. 264, 79 S.Ct. 1173 (1959) 32, 36, 37 Richardson v. State 324 Md. 611. 598 A.2d 1 80 (1 991 ) 62 Simmons v. State . 333 Md. 547, 636 A.2d 463, iii cert, denied . 513 U.S. 815, 115 S.Ct 70 (1994) 45 State v. Cox. 298 Md. 173, 468 A.2d 319 (1983) 45 Taliaferro v. State . 295 Md. 376, 456 A.2d 29, cert, denied . 461 U.S. 948, 103 S.Ct. 2114 (1983) 47, 48 Trupp v. Wolff . 24 Md. App. 588, 335 A.2d 178, cert, denied . 275 Md. 757 (1975) 50 United States v. Bag ley. 473 U.S. 667, 105 S.Ct 3375 (1985) .... 32 United States v. Brown . 490 F.2d 758, 763 n. 10 (D.C.Cir.1973) . . 60 United States v. Day , 591 F.2d 861 (D.C.Cir.1978) 60 United States v. Lovasco . 431 U.S. 783, 97 S.Ct. 2044 (1977) ... 41 United States v. Marion , 404 U.S. 307 r 92 S.Ct 455 (1 971 ) 41 University of Maryland Medical Systems Corp. v. Malory . Md. App. , A2d (No. 1883, Sept. Term, 2000) (Filed Oct 31, 2001) (2001 WL 1335643) 47,48 Wilson v. State . 363 Md. 333, 768 A2d 675 (2001) 31,33-38,40 Statutes. Rules. Constitutional Provisions Maryland Rule 4-242 24,42 Maryland Rule 5-401 61 Maryland Rule 5-801 53 Maryland Rule 5-802 53 Maryland Rule 5-803 54, 55, 61, 62 iv Maryland Rule 8-131 Maryland Rule 8-504 U.S. Const. Amend. VI U.S. Const. Amend. XTV Article 21, Md. Decl. Rights Article 24, Md. Decl. Rights IN THE COURT OF SPECIAL APPEALS OF MARYLAND SEPTEMBER TERM, 2000 NO. 923 ADNAN SYED, Appellant v. STATE OF MARYLAND, Appellee APPEAL FROM THE CmCUIT COURT FOR BALTIMORE CITY (HONORABLE WANDA KEYES HEARD, PRESIDING) BRIEF OF APPELLANT I. STATEMENT OF THE CASE On February 25, 2000, Appellant was convicted by a jury in Baltimore City, the Honorable Wanda Keyes Heard presiding, of the following offenses: first degree murder, robbery, kidnapping and false imprisonment. 1 On June 6, 2000, Judge Heard sentenced Appellant as follows: life imprisonment for first degree murder; 30 years imprisonment for kidnapping, consecutive to the life sentence; 10 years imprisonment for robbery concurrent to 30 years for kidnapping and consecutive to the life imprisonment sentence; and the trial court merged the false imprisonment with the kidnapping count. *A first trial ended in a mistrial on December 15, 1999 after the jury overheard a different trial judge at a bench conference refer to defense counsel as a "liar." (12/15/99- 253) II. QUESTIONS PRESENTED A. Whether the State Committed Prosecutorial Misconduct, Violated Brady and Violated Appellant's Due Process Rights When it Suppressed Favorable Material Evidence of an Oral Side Agreement with its Key Witness, and When it Introduced False and Misleading Evidence, and the Trial Court Committed Reversible Error In Prohibiting Appellant from Presenting this Evidence to the Jury? 1. Whether the State suppressed favorable material evidence and introduced and elicited false and misleading testimony relating to the plea agreement with its key witness in violation of Brady ? 2. Whether the State's actions constituted prosecutorial misconduct? 3. Whether the trial court committed reversible error in prohibiting Appellant from calling Benaroya and recalling Wilds as a witness? 4. Whether the trial court committed reversible error in restricting the cross-examination of Wilds? 5. Whether the trial court committed reversible error in denying Appellant's motion to strike the testimony of Wilds? 6. Whether the trial court committed reversible error in precluding Appellant from calling Ms. Julian as a witness? 7. Whether the trial court committed reversible error in denying Appellant's motion to disclose documents and information from the State? 8. Whether the trial court committed reversible error in denying Appellant's motion to question Mr. Urick out of the presence of the jury? B . Whether the Trial Court Erred in Admitting Hearsay in the Form of a Letter from the Victim to Appellant, Which Is Highly Prejudicial? C. Whether the Trial Court Erred in Permitting the Introduction of the Victim's 62-page Diary, Which Constituted Irrelevant Highly Prejudicial Hearsay? 2 III. STATEMENT OF FACTS Appellant was convicted of killing his close friend and former girlfriend Hae Min Lee on or about January 13, 1999. Appellant and Hae were seniors at Woodlawn High School in Baltimore County. They were both in the gifted and talented program there and had both been accepted to colleges. (1/28/00-238) 2 At trial, there was considerable testimony relating References to the Transcript are as follows: Date 7/9/99 7/23/99 12/15/99 1/21/00 1/24/00 1/27/00 1/28/00 1/31/00 2/1/00 2/2/00 2/3/00 2/4/00 2/8/00 2/9/00 2/10/00 2/11/00 2/14/00 2/15/00 2/16/00 2/17/00 2/21/00 2/22/00 2/23/00 2/24/00 2/25/00 Proceedings Motion To Disqualify Defense Counsel Prior to First Trial Ruling on Motion to Disqualify Defense Counsel First Trial - Mistrial Motions, Voir Dire Second Trial Trial on the Merits, Second Trial and Verdict 3 to the religious differences between Hae and Appellant, and the difficulties posed by these differences in dating each other. Appellant is a Muslim, and dating is forbidden. Hae was a Christian, and ultimately, their religious differences led the pair to end their relationship. (1/28/00-141) Friends testified that both Hae and Appellant were sad about the breakup, but not bitter or angry. (1/28/00-224) Yaser Ali, Appellant's best friend, testified that Appellant told him that the relationship was over because it was too hard to hide it from his family, and that the breakup was a mutual decision. (2/3/00-88) Ali also testified that Appellant wanted to remain friends with Hae after the break up, and that Appellant had interests in other girls as of December, 1998. (2/3/00-117-123) At the beginning of January, 1999, Hae began dating Don Cliendienst, whom she met while working part time at Lens Crafters. (1/28/00- 64-69) Hae was last seen alive on January 13, 1999 at school around 2:30 p.m. Her family filed a missing persons report when she failed to pick up her cousin at school as she regularly did. (1/1 3/00-5) She was supposed to pick up her 6 year-old cousin at 3 :00 or 3 : 1 5 p.m. that day. (1/28/00-25) Inez Butler Hendricks, a teacher and athletic trainer at Woodlawn High School and Hae's friend, testified that she saw Hae at 2:15-2:30 p.m. on January 13. Hae told her she was in a hurry to pick up her cousin from school, but that it was not far and she would be back soon. Hendricks told her to hurry because Hae had to be back by 5:00 p.m. to ride the wrestling team bus to an away match for which Hae was to keep score. (2/4/00- 6/6/00 Sentencing and Motion for New Trial 4 19-20) When Hae did not return by 5:00 p.m., Hendricks took Hae's place as scorer. (2/4/00-21) She testified that Appellant was on the track team, and practice begins by 3:30 p.m. (2/4/00-17) Appellant was questioned by police on January 25, 1999 about Hae's disappearance. He told the police that he and Hae used to date. He said that on January 13, 1999, a Wednesday, he had class with Hae from 12:50 to 2: 1 5 p.m. Appellant said he went to track practice that afternoon. He did not see Hae the next two days at school, Thursday and Friday, because the school was closed for inclement weather. (1/31/00-25) Hae's body was found in Leakin Park on February 9, 1 999 by a man named Alonso Sellers. (1/3 1/00-27) He testified that he saw the body in Leakin Park when he went to find a private spot to urinate. Unbeknownst to the jury, Alonso Sellers had been previously convicted of indecent exposure. Sellers testified that he left his house and was driving to work when he had to pull his car over to urinate in the park. The park was only a few blocks away from his house. (2/23/00-9) The body was 127 feet from the road and was difficult to see. (1/31/00-101) The body was not even visible to Dr. Rodriguez, a member of the recovery team who went to exhume the body. (1/28/00-1 82) Dr. Rodriguez testified that the body was well hidden, and the average person would not be able to see it. (1/28/00-1 82) The Medical Examiner testified that Hae had been strangled, but was unable to testify as to when she had been killed. (2/2/00-66) Hairs found on Hae's body were compared to Appellant and did not match Appellant's hair. (2/1/00-1 1 6) Those hairs were not compared 5 to anyone else. (2/1/00-1 16) Fibers found on Hae's body were compared to fibers from Appellant's clothing, and no match was made. (2/1/00-123) Likewise, Appellant's clothing was examined and compared to fibers from Hae's clothing, and no match was found. (2/1/00-123) Appellant's coat was examined and nothing of evidentiary value was found. (2/1/00-165) Soil from Appellant's boots which were seized from his house were compared to soil samples from the burial site and no match was found. (2/1/00-165) Appellant was ruled out from having been the source of a stain on a shirt in Hae's car. (2/2/00-28) Don Cliendinst testified that he dated Hae after she and Appellant broke up, from January 1, 1999 until her disappearance on January 13, 1999. (2/1/00-71) On one occasion between January 1 and 13, he saw Appellant at the Lens Crafter store where both Don and Hae worked. Appellant came out to the store to inspect Hae's car because it was not running properly. Both Don and Appellant concluded that the car was not safe for Hae to drive home. Don said that Appellant, who knew Hae and Don were dating, was not hostile to him. Appellant drove Hae home that night. (2/1/00-76-86) Appellant's fingerprints were found in Hae's car after she disappeared. Appellant admitted he had been in Hae's car before on numerous occasions. (2/1/00-39) Inez Butler Hendricks testified that after Hae's body was found, Appellant told her that his last memories of Hae were not good, that they had a fight about Hae going to the prom with Appellant. (2/4/00-26) Jay Wilds was the chief prosecution witness, who testified as follows. He was one grade older than Hae and Appellant. Wilds dated Stephanie McPherson, who was 6 Appellant's close friend. (2/4/00-1 1 5) Wilds said Appellant was an acquaintance of his, and he gave Wilds a ride in his car one time. Even though Appellant was the prom king and Stephanie was the prom' queen, Wilds said he was not jealous of Appellant's relationship with Stephanie. (2/14/00-66) On January 12, 1999, which was Wilds' birthday, Appellant called him at 10:00 p.m. He asked Wilds what he was doing the next day. Wilds said "nothing," and that was the end of the conversation. (2/4/00-1 1 9) The next morning, January 13, 1999, which happened to be Stephanie's birthday, Appellant called Wilds at 10:45 a.m. Wilds told Appellant he needed to go to the mall to get Stephanie a gift, and Appellant said he would take him. He and Appellant went to Security Square Mall, shopped for about one and a half hours, and Appellant said he needed to go back to school. (2/4/00-125) On the way to school, Appellant talked about his relationship with Hae, and said it was not going well. Wilds testified that Appellant seemed hurt rather than angry. (2/4/00-125) Wilds then testified that Appellant said Hae made him mad and said, "I am going to kill that bitch." (2/4/00-126) Appellant told Wilds he could drop Appellant off at school and take Appellant's car as long as he picked Appellant up later. Appellant gave Wilds Appellant's cell phone so that he could call Wilds when he was ready to be picked up. Cell phone records for Appellant's cell phone showed that at 12:07 p.m., Wilds called the home of his friend Jen Pusiteri. Wilds went to her home and played video games with Jen's brother Mark for about 30 minutes. Jen was not home. Wilds then left with Mark to go back to the mall. (2/4/00-127-130) Wilds testified that he and Mark returned to Mark's 7 house and Jen was there. Later, Wilds went to his friend Jeff s house, but he was not at - home. Appellant allegedly called Wilds to come pick him up at Best Buy. (2/4/1 30) Wilds testified that he saw Appellant standing near a payphone outside of Best Buy wearing red gloves. Appellant allegedly directed Wilds to park near a gray Sentra. Wilds testified that Appellant asked him if he was ready for this, and then opened the trunk of the Sentra to reveal Hae's body. (2/4/00-13 1) Wilds said that Appellant got in Hae's car and told Wilds to follow in Appellant's car. They allegedly drove to a Park and Ride on Interstate 70. Wilds said he got into the passenger side of Hae's car. Wilds called Jen at 3:21 p.m. to see if his friend Patrick was home so he could buy marijuana, but he was not. Wilds said Appellant called a young lady in Silver Spring and made small talk, and that Appellant received a call from someone speaking Arabic, possibly his mother. (2/4/00-134-40, 143) Wilds said Appellant told him, "it's done." Wilds said Appellant said it kind of hurt him but not really, because when someone treats him like that they deserve to die. Appellant allegedly said, "how can you treat someone like that that you are supposed to love." He allegedly then said, "all knowing is Allah." (2/4/00-142) Then Appellant allegedly said he needed to get back to track practice because he needed to be seen. As he got out of the car at school, Appellant allegedly said "motherfuckers think they are hard, I killed someone with my bare hands." (2/4/00-142) Wilds testified that Appellant told him that he thought Hae was trying to say something Like apologize to him and that she kicked off the turn signal in the car. Appellant allegedly said he was afraid Hae would scratch him in the face. (2/4/00- 8 142-43) After dropping Appellant off at school, Wilds testified that he went to Kristi Vincent's house, smoked some marijuana, and debated about what to do. Kristi and her boyfriend were there. (2/4/00-144) About 30 minutes later, Appellant called and Wilds went to school to get him. They went back to Vincent's and Appellant allegedly fell asleep on the floor after smoking some marijuana. Appellant got a call from Hae's parents asking if he had seen Hae and he said no, and suggested they ask her new boyfriend. (2/4/00-145) Appellant then received a call from the police asking where Hae was and he said he did not know. Wilds said he left Vincent's with Appellant. According to Wilds' testimony, Appellant drove Wilds home and said, "you have got to help me get rid of Hae." (2/4/00-147) Wilds feared that Appellant would use his knowledge of Wilds' drug dealing against him and agreed to help. (2/4/00-147) Wilds got two shovels form his house and put them in Appellant's car. They drove to pick up Hae's car, and Appellant got in Hae's car. Wilds followed Appellant around for 45 minutes, and they ended up in Leakin Park (2/4/00-148). Wilds said he was supposed to meet Jen at 7:00 p.m., so he paged her at 7:00 p.m. from Leakin Park. While Wilds and Appellant were digging, Jen called the cell phone, returning Wilds' page. Appellant allegedly answered and told Jen they were busy and hung up-. Wilds said after they dug for a while, Appellant asked Wilds to help him get Hae out of the car, but Wilds refused. (2/4/00-152) Allegedly, while Appellant took Hae's body to the 9 shallow grave and put dirt on her to cover her, he received another call. He spoke part in Arabic and part in English. (2/4/00-153) Wilds testified that after burying Hae, they left and parked Hae's car near some apartments. According to Wilds, Appellant said, "it kind of makes me feel better and it kind of doesn't." (2/4/00-1 56) He said they went to Value City and threw away some of Hae's belongings and some other evidence in a dumpster. Wilds paged Jen again. Appellant allegedly drove Wilds home and Wilds changed his clothes and put them in a bag. Jen came to pick up Wilds at his home and took him to Super Fresh where he threw the shovels and his bag of clothes away in a dumpster. (2/4/00- 158) Wilds told Jen that he wanted her "to be the one person to know that I didn't kill Hae." (2/4/00-158) Wilds was questioned three times by the police, the first time was on February 28, 1999. (2/10/00-14) On that date, the police questioned him for two hours, and then turned a tape recorder on and questioned him for two more hours. He said the police confronted him with things Jennifer Pusiteri had told them earlier when she was questioned by police. Wilds said that he told Jennifer what happened on January 13. Wilds said he asked the police to turn off the recorder, which they did, and he asked for an attorney. The police asked him why he needed one, and turned on the recorder to continue the questioning. (2/10/00-49) Wilds acknowledged that he lied to the police. (2/4/00-221) The first time Wilds spoke to the police, he said he was not involved in killing or burying Hae. (2/4/00-229) He said he lied to the police about the location of Hae's car. (2/10-66) He told the police that 10 he saw Hae's body in a truck, not in the trunk of Hae's.Sentra. (2/10/00-76) He also told police he walked to the mall on January 13. He said his only contact with Appellant on January 13 was at 2:00 p.m. when Appellant called him and asked for directions to a shop in East Baltimore. Wilds told the police different stories about where Jennifer picked him up on January 13. On March 15, 1999, Wilds gave a second statement to the police. (2/10/00-83) During this questioning, Wilds told police that Appellant said on January 12 that "he was going to kill that bitch, " and then later said it was four days before January 12. (2/10/00- 187) On April 13, 1999, Wilds gave a third statement to police. He told police that Appellant killed Hae in Patapsco State Park, and that Appellant paid him to help. (2/14/00- 115) Wilds eventually took the police to where the body was buried and to where Hae's car was located. Detective MacGillivary testified as follows. On February 9, 1999, he responded as the primary detective to Leakin Park, where Hae's body was recovered. (2/17/00-153) Based upon information contained in Hae's missing person report, he obtained Appellant's cell phone records. On February 26, 1999, he went to Jennifer Pusiteri's house and asked her to come to the police station to talk. (2/17/00-156) Jennifer came to the station that night and gave a statement. She said that she heard that Hae had been strangled, although that information had not yet been publicly released. (2/1 7/00-3 14) 11 Contrary. to Wilds' testimony, MacGillivary said at no time did Wilds request a lawyer, because if he had, all questioning would have ceased. (2/18/00-128-129) MacGillivary denied that Wilds first took him to the wrong location before showing police where the car was. He also said that Wilds told him that Appellant showed him Hae's body in the trunk on Franklintown Road, contrary to Wilds' testimony that it happened at the Best Buy. (2/1 8/00- 151) MacGillivary interviewed Wilds a second time on March 15, 1 999, with Appellant's cell phone records, and noticed that Wilds' statement did not match up to the records. Once confronted with the cell phone records, Wilds "remembered things a lot better." (2/17/00-158) Wilds gave yet a third statement on April 1 3, 1 999, and admitted that he lied on the two previous occasions to cover up the fact that he bought and sold marijuana. (2/18/00-166) On cross-examination, MacGillivary testified that Alonso Sellers was considered to be a suspect. (2/1 7/00-225) On February 26, 1999, after speaking with Jennifer, MacGillivary went to Appellant's home and Appellant gave a statement. Appellant said he had a relationship with Hae, and had been in her car before, but not on January 1 3, 1 999. (2/1 7/00-264) Appellant said he did not remember what happened on January 13, 1999. (2/17/00-271) A police report of this statement was not written until September 14, 1999. On February 27, 1999, Appellant was questioned at school and at the police station and gave statements denying his involvement. Jennifer Pusiteri testified as follows. On January 13,1 999, Wilds came over to her house in a tan car to hang out with her and her brother. Wilds was acting different, not 12 relaxed, and had a cell phone which was unusual. (2/1 5/00-1 85) Wilds said he was waiting for a call. At 3:00-3:30 p.m., Wilds left her house. After 4:30 p.m., Jennifer called her friend Kristi's house and Wilds was there. Wilds and Jennifer had plans to go to Kristi's house together that evening. She called the cell phone later and someone answered the phone and said, "Jay will call you back when he is ready for you to come and get him, he is busy." (2/1 5/00-1 89) The voice on the cell phone was an older male, deep, not like a kid, and it was not Wilds. (2/16/00-169) Between 8:00-8:15 p.m., Jennifer got a message from Wilds to pick him up at Westview Mall in 15 minutes, so she left and picked him up in front of Value City. (2/15/00-190-192) Appellant was with him, driving, and said hello to Jennifer. Wilds got in her car and said, "I have to tell you something, but you can't tell anyone." He said Appellant strangled Hae in the Best Buy parking lot. Wilds saw her body in the trunk. He said Appellant used Wilds' shovels to bury her and Wilds wanted to make sure there were no fingerprints on them. (2/1 5/00- 1 94- 1 96) Jennifer testified Wilds told her he wanted to go check on Stephanie to make sure she was okay. They went to Stephanie's house between 8:30-9:00 p.m. The next day Jennifer took Wilds to F&M drugstore to get rid of clothing and boots in a dumpster. (2/1 5/00- 1 96- 198) Kristi Vinson testified as follows. On January 13, 1999, at 5:00-5:15 p.m., she arrived home, and her boyfriend Jeff Johnson was there. Wilds and Appellant arrived later, and were acting "shady." (2/16/00-217) She had never met Appellant before. They all watched 13 television at about 6:00 p.m. Appellant was lying on some pillows on her floor when he asked, "how do you get rid of a high?" (2/16/00-210) Appellant got a call on his cell phone and said, "they're going to come and talk to me, what should I say, what should I do?" (2/16/00-213) Then Appellant and Wilds left. (2/16/00-214) Wilds returned hours later with Jennifer, but Appellant was not with them. Debbie Warren testified as follows. She was a close friend of Hae's. Appellant and Hae were boyfriend and girlfriend, but broke up and got back together two or three times. She said that the last time they broke up because Hae felt that Appellant was being overprotective of her. Hae began to date "Donnie" and Appellant knew about it. Appellant told Debbie he thought Hae and Donnie were having sex while Appellant and Hae were still dating, but Debbie told Appellant that it was not true. (2/16/00-298-302) The last time Debbie saw Hae on January 1 3 was in gym class, and Hae was happy and rushing to go somewhere at 3:00 p.m. Debbie could not remember where Hae was going, but she told police on January 28, 1999 that Hae said she was going to the mall with Don. (2/16/00-306, 2/17/00-70) On cross-examination, Debbie stated that she was friends with Stephanie, and Stephanie confided to Debbie that she was interested in Appellant. At the prom in 1998, when Appellant was voted prom king and Stephanie was prom queen, they danced. Appellant, however, left Stephanie during the dance and went to get Hae to finish the dance with him. (2/17/00-30-34) Hae broke up with Appellant two or three times because she did 14 not want Appellant to have to choose between her and his religion, and Hae's parents did not want her to date Appellant either. (2/17/00-48) Appellant was not mad when Hae broke up with him on these occasions. In fact, even after the final breakup in December 1998, Hae and Appellant exchanged holiday gifts. (2/17/00-57) When Appellant found out Hae was dating Don, he said he accepted it and would try to move on. (2/17/00-59) Abraham Waranowitz testified as an expert in AT&T network design as to Erickson cell phone equipment. Waranowitz testified that a cell phone activates a cell site which has three sides. Each side points to a unique direction. Using exhibits which showed the number of the cell tower activated by the cell phone when a call was made or received, Waranowitz testified as to the location of the cell tower, and testified as to which of the three sides was activated. Waranowitz testified that his tests revealed that the cell sites that were activated were consistent with cell phone calls being made and received from Kristi Vincent's house and the burial site in Leakin Park. (2/8/00-98-1 15) On cross-examination, Waranowitz admitted that he could have used Appellant's actual phone for the tests but did not. He could not remember when the tests were done, only that he performed them somewhere between September and December. He verbally gave his results to the State over the phone. (2/9/00-49-96) He admitted that the tests cannot tell where the call was made or where the cell phone was within the wide cell site. He admitted that some calls could trigger as many as three different cell sites. (2/9/00- 1 42- 1 72) The State rested its case and Appellant called Rebecca Walker, a close friend of both 15 Appellant and Hae, who testified that even after Appellant and Hae broke up, they still cared for each other and were still friends. (2/23/00-142) She also testified that Appellant was not possessive about Hae, and he was extremely upset by her disappearance. (2/23/00-1 60, 1 75) Syed Rahman, Appellant's father, testified that Appellant had been in the top 5% of his class academically since eighth grade. Appellant led prayers at the family's place of worship, which is a high honor. Mr. Rahman testified that although his religion does not permit Appellant to date girls, Appellant was simply encouraged to do the right thing, and not to date girls. (2/23/00-285-291) On January 13, 1999, Appellant attended religious services with his father from 7:30 p.m. to 10:30 p.m. (2/24/00-6) Andrew Davis, Appellant's investigator, testified that Hae's bank records showed that on January 13, 1999, she made a purchase of $1.71 at Crown gas station at Harford Road and Northern Parkway, which is far from Woodlawn. (2/24/00-1 06) Saad Chaudry, Appellant's close friend, testified that Appellant obtained the cell phone in order to call girls. He also explained that the cell phone was programmed with phone numbers of Appellant's friends such that the numbers could automatically be dialed. (2/24/00-145) He said that after Hae and Appellant broke up, Appellant was "laid back" about it, and showed interest in other girls. (2/24/00-126) Bettye Stuckey, Appellant's guidance counselor, testified that Appellant was a bright, enthusiastic and delightful student. He was admitted to college at the University of Maryland and the University of Maryland at Baltimore County. (2/24/00-203) 16 Other facts will be discussed as necessary, infra. IV. ARGUMENT A. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT, VIOLATED BRADY AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS WHEN IT SUPPRESSED FAVORABLE MATERIAL EVIDENCE OF AN ORAL SIDE AGREEMENT WITH ITS KEY WITNESS, AND WHEN IT INTRODUCED FALSE AND MISLEADING EVIDENCE, AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING APPELLANT FROM PRESENTING THIS EVIDENCE TO THE JURY. Summary of Argument The prosecutor suppressed favorable material evidence relating to the plea agreement with its key witness, Jay Wilds. The prosecutor also introduced false and misleading evidence. The suppressed evidence included the fact that there was a separate oral agreement with Jay Wilds which permitted Wilds to withdraw from the plea agreement at any time, which fact was not included in the written plea agreement furnished to Appellant and introduced by the State at trial. In addition, the State hid the fact that it provided Wilds with a free private attorney, who recommended that Wilds sign the plea agreement. The State waited to charge Wilds with a crime until after he accepted the services of the free private attorney selected by the State so that Wilds would be ineligible to obtain a public defender. Wilds earlier sought to obtain the services of a public defender, but was told he could not receive a public defender until after he was charged with a crime. This and other evidence was suppressed by the State, and was discovered by . Appellant's trial counsel during and after Wilds' highly damaging testimony against 17 Appellant. When Appellant attempted to learn all of the facts surrounding the plea agreement, the State objected and the trial court made numerous evidentiary rulings preventing Appellant from presenting all of the terms of the plea agreement and the full circumstances surrounding the plea agreement to the jury (see infra ). The State's conduct amounted to prosecutorial misconduct, violated Brady? violated Appellant's rights to due process of law, and the trial court's rulings constituted reversible error. The standard for determining whether the State violated Brady is whether the prosecutor suppressed favorable material evidence. Conyers v. State . Md. , A.2d (No. 26. Sept. Term 2001) (filed February 5, 2002). The standard for determining prosecutorial misconduct is whether the misconduct actually prejudiced the defendant and whether the prosecution acted intentionally to prejudice the defendant. Clark v. State . 364 Md. 61 1, 774 A.2d 1 136 (2001). A trial court's evidentiary rulings are reviewed for abuse of discretion. Fontaine v. State . 134 Md. App. 275, 287-88, 759 A.2d 1 136, cert, denied . 362 Md. 188 (2000). 1. The State suppressed favorable material evidence and introduced and elicited false and misleading testimony relating to the plea agreement with its key witness in violation of Brady . a) Facts Jay Wilds, the chief prosecution witness, testified on direct examination that he signed 3 Brady v. Maryland . 373 U.S. 83, 83 S.Ct. 1 194, 10 L.Ed.2d 215 (1963). 18 a plea agreement and pled guilty on September 7, 19.99 4 to being an accessory after the fact with regard to the death of Hae Min Lee. (2/4/00-162) Wilds testified that as long as he told the truth, the State agreed that his sentence would be capped at two years. (2/4/00-1 63) The State offered the written plea agreement into evidence. (State's Exhibit 35, App. 1-4) (2/4/00-162, App. 5) The prosecutor asked Wilds, "[a]nd that's the plea agreement you entered into when you pled guilty to accessory in this murder? A. Yes." (2/4/00-162-63, App. 5-6) The written agreement provided that if Wilds failed to complete the terms of the agreement, the State will recommend a sentence of five years incarceration. (Exhibit 35, page 2 #2(d)) The agreement also expressly provided that "[Wilds] shall not be permitted to withdraw a guilty plea tendered pursuant to this Agreement under any circumstances." (Exhibit 35 at page 3, #5) The Agreement also provides "[fjhere are no other agreements, promises or understandings between [Wilds] and the State. This Agreement can only be amended in a writing signed by all the parties." (Exhibit 35, Paragraph 9 page 3) After the State rested its case, a few days from the end of a nearly six-week trial, Appellant discovered the existence of an oral side agreement between the State and Wilds, that was not turned over by the State in discovery and was fortuitously discovered by Appellant during trial. This side agreement provided that Wilds could withdraw from the plea agreement at any time, contrary to the written plea agreement and contrary to the "Appellant's first trial was scheduled to begin on October 13, 1999. 19 assertions" of the prosecutor.' This discovery unfolded out of the presence of the jury, as follows: [BY DEFENSE COUNSEL]: [Ms. Benaroya, Wilds' attorney] would have said, but — couldn't go any further and cut off questioning of her, that ~ she may [sic - made]- with Mr. Urick [the prosecutor] on the 7 th [of September, 1999], in the presence of her client and that she made sure [her] client understood that one of the benefits that's not reflected in the typewritten plea agreement and would not be reflected on the record was an agreement that would allow Mr. Wilds to withdraw his plea at a time later than the 7 th , and she would have testified that's what she told me in the presence of my law clerk, that her concern and insistence on that being a benefit of the bargain because she felt that .... since it was so unusual that his lawyer be provided by the prosecutor that he had an absolute right, after reflection, to withdraw the plea. (2/22/00-63-64, App. 7-8) There is reference to this questioning of Benaroya occurring out of the presence of the jury and under oath (2/23/00-238), but it is not part of the record. Apparently, the frial court was present when Ms. Benaroya told this to Appellant's counsel, and agreed that defense counsel's recitation of Benaroya's testimony was accurate: 6 5 The prosecutor told the trial court in a bench conference: It was made clear to him that he was entering a guilty plea, that it would be a binding plea. . . It was made clear to him that those procedures were binding, that they could be done without his presence, in his absence (2/4/00-203) 6 At the close of the previous trial day's testimony, February 18, 2000 (February 21. 2000 was a holiday), the trial court stated: "I still need to speak to her [Benaroya] myself . . . "which may shed light on when tins questioning of Benaroya took place. (2/18//00-202) 20 THE COURT: She did say it She said it. She said that she was - it was her understanding that the Defendant Wilds, her client, could withdraw his plea. [BY DEFENSE COUNSEL]: Right. At any time. THE COURT: That's what she said. (2/22/00-71) Mr. Urick, the prosecutor, denied that this was part of the plea. (2/22/00-66) Appellant argued to the trial court at a bench conference why this information was important and relevant to present to the jury : As to that issue ... I believe we're absolutely entitled to get in all the benefits of the bargain that were extended to Mr. Wilds, whether or not Mr. Wilds testifies truthfully as to what they are. Now, the fact finder has a right to consider all of the benefits of the bargain in assessing whether or not the bargains have anything to do with influencing his testimony or what the bargain is or what extent he may be beholding [sic] to him when he made the bargain, both what's written and what's not written, and it's up to the jury to decide whether Mr. Wilds is telling the truth and to decide as to all thing, including what Mr. Wilds' perception of the bargain ~ or his lawyer says that was part of the bargain, it was made in front of him, and that goes directly to impeach him. And that's certainly not attorney/client privilege, made in the presence of and in the earshot of Mr. Urick. Since the bargain that the jury knows about makes Mr. Urick the arbiter of truth, the issue of whether or not there's a side deal that Mr. Wilds may not want to admit to because if, in fact, it's true it makes him out to be a liar as to that issue, as to what the bargain was .... (2/22/00-65) When Appellant requested permission to introduce evidence of the side agreement through the testimony of Benaroya and by recalling Wilds, who had finished testifying before 21 Appellant learned of the side agreement, the trial court ruled that Appellant could not call Benaroya or recall Wilds to testify in front of the jury: "I believe that calling [Benaroya] would not be appropriate and it would just take us off on a needless presentation of evidence. And I would find that the credibility of Mr. Wilds has been exhausted." (2/22/00-74, App. 9) Similarly, the trial court denied Appellant's previous motion to question Mr. Urick as a witness out of the presence of the jury to determine the circumstances surrounding the plea negotiations. (2/1 1/00-23, App. 10) The trial court also denied Appellant's previous motion to strike all of Wilds testimony because the State failed to disclose all of the circumstances surrounding the plea negotiations.(2/l 5/00-34, App. 1 1) The evidentiary rulings will be dealt with separately, infra . In addition to the side oral agreement, the State suppressed other evidence. On cross- examination of Wilds by Appellant, over objections from the State, it was disclosed for the first time that the State had provided Wilds with a free private attorney: [BY DEFENSE COUNSEL]: Incidentally, at what point did your lawyer come about after the 1 3 th of April? [BY THE STATE]: Objection. THE COURT: Sustained. [BY DEFENSE COUNSEL]: Did anyone help provide you a lawyer? [BY THE STATE]: Objection. THE COURT: Overruled. MR. WILDS: Yes, ma'am. 22 QWho? A Mr. Urick. Q Mr. Urick the prosecutor in this case helped provide you a lawyer? A Yes, ma'am. Q And was that before or after you got notice that you would be charged by him? [BY THE STATE]: Objection. THE COURT: Overruled. MR. WILDS: Before, ma'am. [BY DEFENSE COUNSEL]: Did you meet your lawyer before the day you signed [the plea agreement]? MR. WILDS: No, ma'am. * * * Q . . . . Now, you didn't have to pay for your lawyer, did you? [BY THE STATE]: Objection. THE COURT: Sustained. (2/10/00-155-56, 159, App. 12-13) (Emphasis supplied) 7 Wilds testified in the jury's presence that when Mr. Urick introduced the lawyer, Ms. Benaroya, to him, Mr. Urick stated that she was "a very good lawyer." (2/15/00-60) 7 Later, Wilds testified that he considered a free private attorney to be a benefit, because he could not afford private counsel. (2/15/00-127) 23 As Appellant delved into the circumstances surrounding the State providing the chief prosecution witness with a free private attorney, it became clear that the State attempted to and did improperly influence the witness to retain the attorney that the State chose, whom the State believed would recommend that Wilds sign the plea agreement. The State, knowing that Wilds could not obtain the advice of a public defender until he was actually charged, refrained from charging Wilds until after he met with and retained the services of Ms. Benaroya. (2/10/00-156) Wilds testified out of the presence of the jury that he had attempted to get a public defender prior to September 7, but was told by the Office of the public defender that he could not get an attorney until he was charged. (2/ 1 1 /00-2 1 3 ) Wilds was charged on September 7, 1 999, after he was introduced to the free private attorney. (2/1/00-182) Wilds met with Ms. Benaroya, agreed to accept her as his attorney, and negotiated and signed the plea agreement. Immediately after signing the agreement, Wilds was taken to a "guilty plea" hearing. The State failed to disclose other favorable evidence as well. On cross-examination by Appellant, Wilds, over objections from the State, disclosed for the first time that no statement of facts was read at his "guilty plea" proceeding. (2/4/00- 1 93 -94) Thus, there was no factual basis for the plea as required by Maryland Rule 4-242, and no finding of guilt could have been made. The plea therefore was not binding, and Wilds or the State could withdraw it at any time, contrary to what the jury was told and contrary to the terms of the written plea agreement. As defense counsel further attempted to find out exactly what 24 transpired with Jay Wilds, the guilty plea and the free private attorney, it became apparent, even to the trial court, that the State was trying to hide the true nature of the "guilty plea" proceedings: (Jury not present) THE COURT: ... It would appear to the Court that every effort was made to hide the existence of Mr. Wilds['] plea or attempted [sic] to plead because this [Wilds' court file] says guilty verdict held sub curia. Which means what you did was everything except for have the Court find the Defendant guilty. He held the issue of whether or not the Defendant was guilty sub curia pending the State providing a statement of facts. It appears the only reason why one would do that, in my mind is so that there would be no record of a guilty plea because if there's no guilty finding [then] he hasn't been found guilty. . . . The other thing that I find interesting is that as Counsel has pointed out, I've never seen a file like this before It appears very, very odd and unusual and I can see why Ms. Gutierrez [defense counsel] would start to wonder. (2/1 1/00-122-23) The trial court noted that the State was misrepresenting to the trial court, defense counsel, and the jury that Mr. Wilds pled guilty, when, in fact, it was not a guilty plea: "Well, what was difficult Mr. Urick, the other day when we asked, I know I asked whether or not Mr. Wilds pled guilty, you said he pled guilty. . . . But the verdict wasn't entered. I mean to say, to lead the Court to believe that the verdict was entered is not true. ... the reason [that defense] Counsel has been asking over and over, how could there be a guilty plea with no statement of facts. It's very simple, is that no guilty verdict was entered, that's how you kept the statement of facts out." (2/1 1/00-126-27) The State hid still more evidence. During proceedings outside the presence of the jury it was learned that Judge McCurdy, the Judge who heard the "guilty plea" or "attempted 25 guilty plea," had an ex parte hearing with Wilds and his attorney, Ms. Benaroya, after the guilty plea hearing. (2/1 1/00-128) This "post-plea" hearing was held at the request of the State, which waived its right to be present at the hearing. In the face of direct questioning from the trial court, the State hid the fact that sometime after the September 7, 1999 "guilty plea" hearing, Jay Wilds became disenchanted with his attorney, questioned whether that attorney was given to him by the State solely for the purpose of advising him to sign the plea agreement, questioned whether the attorney was loyal to him or to the State, and thought about withdrawing his plea, (2/1 1/00-150, 160, 168, 171) Wilds called Judge McCurdy to inform him of his doubts and problems. Wilds also called the prosecutor and informed the State of his situation. (2/1 1/00-204-06) The trial court repeatedly asked the State specifically whether it knew if something happened after the plea to necessitate the post-plea hearing, and the State at least three times answered falsely that it did not. The State knew that Wilds called Judge McCurdy to inform him of these problems, because Wilds also called the State and informed it of the problems. (2/1 1/00-204-06) It is clear that the prosecutor deliberately failed to tell the trial court why the hearing was necessary: (Jury not present) [BY THE STATE]: When we asked Judge McCurdy to advise him of his right to Counsel due to review of that to make sure he understood it and that he was in fact, his assistance of counsel. THE COURT: And when did that happen? 26 [BY THE STATE]: It happened sometime in September. I did not . . . Ms. Benaroya [Wilds' attorney] showed up with him that day, he was given the option, you know, explained. In abundance of caution we asked Judge McCurdy to do an in camera review to make sure that he understood his right to counsel, that he was making his election of his counsel. Judge McCurdy did a review of that with him. [BY DEFENSE COUNSEL]: . . . Having taken the beginnings of the plea or if you believe Mr. Urick's version, well he thought that was a guilty plea then what reason would exist to ask the Judge to review the voluntariness or the adequacy of the satisfaction with the lawyer. THE COURT: Good question. [BY DEFENSE COUNSEL]: Something had to happen. THE COURT: Did something happen post plea[?] Mr. URICK: We were just discussing all possibilities . We thought in abundance of caution we should. THE COURT: What does that mean? Did something happen post plea? MR. URICK. Post plea. No, it was debating around our office how we were proceeding. THE COURT: Post plea? MR. URICK: Yeah . THE COURT: On what? If he's pled guilty. The only thing his disposition you need to have a conversation with the witness as to whether or not he's going to withdraw his plea, is that what happened? MR. URICK: No, we wanted Judge McCurdy to - do that we had made sure there was an independent judicial advisement of his right to counsel, that he understood that he was exercising it. We thought - 27 THE COURT: That's post plea. I'm asking after the plea. Okay. Let me get the scenario right because I'm getting confused. * * * And you asked [Judge McCurdy] to set up the hearing? MR. URICK: Yes. THE COURT: You're suggesting that a Judge would have ex parte communications with a Defendant and his attorney without the presence of the State? MR. URICK: It was with our permission. We waived our presence. (2/1 1/00-1 28-1 34)(emphasis suppled) It was not until after this exchange that Wilds testified out of the presence of the jury that the trial court and defense counsel learned that the reason for the hearing was that Wilds had second thoughts about the loyalties of the attorney provided by the State and was having doubts about his guilty plea. (2/1 1/00-205) By waiving its right to be present, the State ensured the fact that an informal, off-the- record hearing in the Judge's chambers would be held. 8 The fact that the State waived its right to be present at the post-plea hearing in which its key witness in a murder prosecution could decide to withdraw his plea demonstrates the lengths to which it was willing to go to hide the fact that it provided the benefit of a free private attorney to its chief prosecution witness, and to hide its knowledge of the fact that Wilds was unhappy with that free private 8 Although Wilds testified out of the presence of the jury that he believed the ex parte hearing was on the record, no record or evidence of the hearing could be found. (2/22/00-63) 28 State-provided attorney. In sum, the State failed to disclose the following information to Appellant: 9 the side agreement permitting Wilds to withdraw at any time from the plea agreement without court approval; Wilds never entered a binding and completed guilty plea because the State intentionally did not enter into evidence at that hearing a statement of facts in support of the plea; the State knowingly allowed Wilds to testify falsely that he entered a guilty plea; the State obtained and provided for Wilds a free private attorney; Wilds was not charged with a crime until just after he agreed to be represented by the free private attorney, so that Wilds would not be eligible to obtain a public defender who may not have recommended that he sign the plea agreement; Wilds became disenchanted with his free private attorney jeopardizing the "guilty plea"; the State arranged for Judge MeCurdy to have an ex parte hearing with Wilds and his attorney, the record of which could not be found (2/22/00-63), where the Judge addressed Wilds' concerns. 10 Based upon these actions, Appellant moved 9 It should be noted that the State, prior to trial, moved for a Protective Order to withhold discovery of all statements made by Jay Wilds. (R. 144-147) Appellant requested: pretrial "all information about Jay Wilds" including his statements. (R. 509- 525) The trial court denied the State's Motion and ordered them to turn over such materials. (R. 540-544) I0 It is interesting to note that when Wilds was sentenced after Appellant's trial, in addition to noting that Wilds had fulfilled his plea agreement, Mr. Urick made an additional recommendation for leniency based upon Mr. Urick' s belief that Wilds showed remorse for his actions. Based upon this recommendation, the Judge gave Wilds a suspended sentence, instead of the two years imprisonment called for by the plea agreement which was admitted before the jury at Appellant's trial. State v. Wilds . 29925000 1 (July 6, 2000). Obviously, had Appellant known of this additional recommendation, he would have used it to further impeach Wilds' credibility by arguing 29 at trial to strike Wilds' testimony, but the trial court denied the motion. (2/15/00-34) See infra . The State's actions in the present case violate Brady , b) The Law Just this month, the Court of Appeals decided Conyers v. State. Md. , A.2d (No. 26. Sept. Term 2001) (filed February 5, 2002). In Conyers . the Court of Appeals reversed two murder convictions and a death sentence because the prosecution withheld from the defense the fact that a key prosecution witness, Charles Johnson, asked for reduction in his sentence on his pending charges before he would sign a statement he had given to police inculpating Conyers. The State did disclose prior to trial that the plea agreement required Johnson to plead guilty to a misdemeanor charge of conspiracy to commit robbery and the State would recommend a sentence of one to six years imprisonment, whereas Johnson faced a total of 244 years before he cut a deal. The plea agreement required that Johnson testify truthfully against Conyers, and was introduced as evidence at trial. On direct examination at trial, the prosecutor asked Johnson whether he requested any favors in exchange for the information he gave to police, and Johnson replied in the negative. The police officer who took Johnson's statement, Detective Marll, testified in response to the prosecutor's questions at trial that at no time did Johnson ever ask for a favor in exchange Wilds would have additional motive to testify since he was getting no jail time versus two years of jail time. 30 for giving the information. At the post conviction hearing, Marll testified in response to Conyers' question that Johnson refused to sign the statement unless he had a commitment for a plea bargain. The State argued to the Court of Appeals that the trial testimony of Johnson and Marll was technically accurate, because Johnson had given the information before he asked for a favor, and requested the favor in exchange for his testimony at Conyers' trial. The Court of Appeals disagreed, and held that the State exhibited a "lack of candor" and used a "deceptive approach." Slip op. at 32-33. In determining whether there was a violation of Brady,, the Court noted the appropriate standard: "(1) that the prosecutor suppressed or withheld evidence that is (2) favorable to the defense-either because it is exculpatory, provides a basis for mitigation of sentence, or because it provides grounds for impeaching a witness~and (3) that the suppressed evidence is material." Slip op. at 25 ( quoting Wilson v. State . 363 Md. 333, 345-46, 768 A.2d 675 (2001)). The Court held that the State suppressed the information regarding Johnson's refusal to sign the statement until he got a favor. Id at 33-34. The Court further held that the information was favorable to Conyers because it would have: strengthened Petitioner's assertion that Johnson had fabricated Petitioner's alleged confession in an effort to gamer a benefit on outstanding charges. . . . Defense counsel was entitled to explore and argue from all of the pertinent evidence as to Johnson's bias and credibility. Suppression of this evidence deprived the jurors of a full opportunity to evaluate the credibility of Johnson's testimony, and Detective Marll 's corroborating testimony, and deprived Petitioner of potentially valuable impeachment evidence. . . . Similar to Wilson, the value of the suppressed information as impeachment 31 evidence was confirmed by the State's efforts to conceal it from Petitioner. . . . The State's conduct continued in its closing arguments at trial and sentencing, in which it extolled Johnson's credibility as a witness, knowing its own sins of omission. IcL at 38-39. The Court held the evidence was favorable even though Johnson was fully cross-examined as to the plea agreement, and defense counsel vigorously argued to the jury that Johnson's motive in testifying was to gain a benefit for himself. Vigorous cross- examination: does not necessarily vitiate any error caused by the State's failure to disclose this impeachment evidence. Ware v. State . 363 Md. at 351, 768 A.2d at 684 (stating that cross-examination of a witness regarding inducement "to testify does not substitute for adequate disclosure"); Boone . 541 F.2d at 451 (noting that "[n]o matter how good defense counsel's argument may have been, it was apparent to the jury that it rested upon conjecture - a conjecture which the prosecution disputed."). See also . Martin v. State . Ala. Crim App. , 2001 Ala. Crim. App. Lexis 298, 21 (2001) (likening defendant to a "fighter with one hand tied behind his back ~ the fact that he was able to land a few punches in cross-examination with one fist did not make the match a fair one."). Id at 39. In discussing materiality, the Court first noted that the standard where the State knowingly uses perjured testimony is whether there is any reasonable likelihood that the false testimony affected the jury. IcL at 40 ( citing Napue v. People of III . 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). The materiality standard pursuant to United States v. Baelev . 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) and Brady where the State fails to turn over exculpatory evidence is whether: "there is a reasonable probability that, had the evidence been disclosed to the 32 defense, the result of the proceeding, would have been different. A 'reasonable probability 1 is a probability sufficient to undermine confidence in the outcome." Bagley . 473 U.S. at 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481. Wilson . 363 Md. at 347; see also Conyers at 41 . The Conyers Court further stated that a reasonable probability is "'a substantial possibility that ... the result of the trial would have been different.'" Id (citation omitted). Based upon the Bagley/Brady standard, the Court in Conyers held that the suppression of the evidence "relating to Johnson's complete negotiations for a benefit" was material, and that, had the evidence been disclosed, "there was a substantial possibility that the result would have been different." Slip op. at 43. The Court noted that Johnson was a key witness in establishing that Conyers was a principal in the murder, which was a prerequisite for the application of the death penalty. In addition, the Court held that to prove materiality, it was not necessary to prove the evidence was insufficient to sustain the conviction absent the testimony of the key witness. The Conyers Court held that even though there was sufficient evidence other than Johnson's testimony on the issue of principalship, the "taint" from the withheld evidence "so undermines confidence in the convictions" that a new trial is warranted. IdL at 45. Finally, the Court noted that the importance of Johnson's credibility was evidenced by the State's efforts to argue his credibility in its last words to the jury. See Wilson . 363 Md. at 355, 768 A.2d at 687 (recognizing that "the 'likely damage' of the State's suppression of evidence in this case 'is best understood by taking the word of the prosecutor ... during closing argument.' ") ( quoting Ware . 348 Md. at 53, 702 A.2d at 715 (citations omitted)). 33 Rat 46.. Likewise, the Court of Appeals in Wilson reversed two robbery deadly weapon convictions based on the State's failure to disclose evidence relating to plea agreements with two key prosecution witnesses. The Court held that, although the witnesses testified as to their plea agreements, the actual agreements were more favorable than the witnesses described to the jury. The Court specifically held that: "The failure to disclose evidence relating to anv understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness's credibility." Id (Emphasis supplied). 11 c) Analysis Here, as in Conyers and Wilson , the evidence relating to the plea agreement was suppressed as it was not disclosed to Appellant prior to trial. Since the evidence of the side agreement was the term of a plea agreement between the State and its chief witness, and the "In Wilson, the Court examined additional factors in determining whether the suppressed evidence was material: * the specificity of the defendant's request for disclosure of materials; the closeness of the case against the defendant and the cumulative weight of the other independent evidence of guilt; the centrality of the particular witness to the State's case; the significance of the inducement to testify; whether and to what extent the witness's credibility is already in question; and the prosecutorial emphasis on the witness's credibility in closing arguments. 363 Md. at 352 (citations omitted). 34 other evidence related to the plea agreement, the evidence was favorable to Appellant. Conyers . Slip op. at 38; Wilson . 363 Md. at 35 1 . Even the trial court found, as a matter of fact, that providing the attorney was a benefit. (2/1 1/00-55) 12 While the jury learned through Appellant's cross-examination of Wilds that the State provided him a free private attorney, it was not informed whether the State paid his attorney. (2/15/00-68, App. 14) This fact is relevant to the nature of the benefit provided by the State. Even the State conceded it would be a benefit if the State paid the attorney. (2/1 1/00-56) Moreover, the jury never learned that the procedures used by the State in providing an attorney are rare, and in fact no one including the Public Defender's Office was aware that this had ever occurred in any other case. The trial court did not permit Appellant to elicit these facts. (2/23/00-239, 246 App. 15, 19) See infra. Also, the trial court refused to permit Appellant to inquire what changes were requested by Wilds to the plea agreement during plea negotiations. (2/15/00-75, App. 16) The jury also never learned that the State withheld the charges so that Wilds would not qualify for a public defender until after he agreed to be represented by Benaroya. This evidence could have been used to impeach Wilds, to show the pressure exerted on Wilds to sign the agreement and testify against Appellant and prevent him from backing out of his agreement This is relevant to Wilds' bias, motive to testify, and 12 The trial court instructed the jury that"[i]f you find that Jay Wilds' lawyer was provided with the assistance of the State at no cost, this was a benefit that Mr. Wilds received as part of his bargain with the State. You may consider this in the same way as you may consider the plea agreement itself as to what, of any, pressure existed on Mr. Wilds when he testified in this case." (2/25/00-36) 35 credibility. In any event, vigorous cross-examination as to inducement to testify does not substitute for full disclosure. Conyers at 39, Ware . 363 Md. at 35 1 . Thus, the evidence was favorable to Appellant as a matter of law since it relates to the impeachment of the chief prosecution witness. Seg Conyers . at 38; Wilson . 363 Md. at 346. In addition, here, as in Conyers . that the evidence was favorable to Appellant is evidenced by the State's efforts to conceal it. The State's efforts to conceal the evidence went far beyond the efforts of the State in Conyers that amounted to several carefully-crafted questions. See Conyers at 38. Here, the State engaged in a pattern of deception including permitting Wilds to testify falsely that he had completed a binding guilty plea, and repeatedly denying to the trial court in the face of direct questions its knowledge that the reason for the ex parte post-plea hearing was that Wilds was having doubts about proceeding further. Moreover, the State repeatedly objected during cross-examination of Wilds, and moved in limine to preclude Appellant from asking Wilds questions about how he obtained his attorney. (2/1 1/00-54) The State also opposed Appellant's requests to call Benaroya and recall Wilds to testify for the jury. It is necessary to determine whether the Napue or the Bagley/Brady standard for materiality applies in the present case. Based upon the fact that the prosecutor knowingly entered the incomplete plea agreement into evidence, without the side agreement, failed to elicit the existence of the side agreement from Wilds, and stated on the record to the trial 36 court that there was no side agreement, the stricter Napue standard of materiality applies. 13 The Napue standard is whether there is any reasonable likelihood that the false testimony affected the jury. Conyers. Slip op. at 40 ( citing Napue v. People of ill . 360 U.S. 264, 269, 79 S.Ct. 1 173, 1 177, 3 L.Ed.2d 1217 (1959) (reversible error for prosecutor to fail to correct false testimony by its witness that he received no promises of leniency in exchange for his testimony); see also Wilson . 363 Md. at 346. Had the jury known that Wilds could have withdrawn from the plea agreement at any time, the jury may well have discredited Wilds' testimony. The jury may have believed that Wilds would have an additional incentive to make his testimony more pleasing to the State if he could get out of the agreement, and then the State would not recharge him. See Wilson. 363 Md. at 347. Thus, the side agreement in the present case was directly related to the jury's assessment of Wilds' credibility. Since Wilds was the key prosecution witness upon which the State's entire case rested, the failure to disclose the side agreement and other impeachment evidence creates a reasonable likelihood that the suppression affected the jury. 13 In Wilson . 363 Md. at 351, the Court noted: In addition, the Massachusetts Supreme Judicial Court recently held that any time that, " 'through misfeasance or nonfeasance by the prosecutor, false testimony is introduced concerning an arrangement between the witness and the prosecutor, a strict standard of materiality is applied. A conviction will be set aside if there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury." 1 " Commonwealth v. Hill . 432 Mass. 704, 739 N.E.2d 670, 679 (2000) (quoting Commonwealth v. Gildav . 382 Mass. 166, 415 N.E.2d 797, 803 (1980)). 37 In the alternative, should this Court find that the Bagley/Brady standard of materiality is appropriate, that is, that there is a reasonable likelihood or substantial possibility that had the evidence of the side agreement and other impeachment evidence been disclosed, the result of the proceeding would have been different, Appellant demonstrates materiality under that standard as well. In the present case, all of the evidence withheld was material. 14 The side agreement was material because, had the jury heard about it, it may have found that Wilds testimony was not credible. It may have determined that Wilds could have been influenced to make his testimony even more incriminating against Appellant with the thought that if the State liked his testimony, he could withdraw his plea, withdraw from the agreement and not be subjected to any criminal charges. 13 The suppression of the provision of the free attorney and the delayed charges to make Wilds ineligible for a public defender was material because it was evidence of the State's influence over Wilds and its desperation 14 "[M]ateriality is assessed by considering all of the suppressed evidence collectively." Wilson . 363 Md. at 347. 15 T^ie Wilson Court held: * The fact that [the witness] was not aware of the exact terms of the plea agreement only increases the significance, for purposes of assessing credibility, of his expectation of favorable treatment.... [A] tentative promise of leniency might be interpreted by a witness as contingent upon the nature of his testimony. Thus, there would be a greater incentive for the witness to try to make his testimony pleasing to the prosecutor. That a witness may curry favor with a prosecutor by his testimony was demonstrated when the prosecutor renegotiated a more favorable plea agreement with [the witness] after [the defendant] was convicted. 363 Md. at 350 (citations omitted). 38 to have Wilds sign the agreement. Had the jury known of all of the circumstances surrounding the provision of the attorney, it may well have determined that the State's desperation showed its knowledge of its own weak case. Suppression of evidence of the non- binding nature of the "guilty plea" hearing was material because the jury did not know that as a result, the guilty plea was not binding and Wilds would not be bound by the plea agreement. 16 As stated above, if Wilds is not bound by the plea or the agreement, Wilds could have been influenced to make his testimony even more incriminating against Appellant. The State's closing argument to the jury is additional evidence of materiality in the present case, as it was in Conyers . The State in which it repeatedly argued Wilds' credibility. The State argued: "You don't have to like Jay Wilds or like what he did to know that he's telling the truth." (2/25/00-58) "You know he knows what happened." (2/25/00-58) "Jay Wilds was sincere. ... He was honest with you." (2/25/00-60) "That makes sense with what Jay Wilds is telling you." (2/25/00-67) "Now, the Defense told you it's fantastic that Jay Wilds could look in the trunk of a car for 10 seconds and see taupe stockings and identify Hey Lee. No, it's not." (2/25/00-127) 16 While it is true that the jury was eventually instructed by the trial court that Wilds did not yet enter a completed guilty plea because a statement of facts was not provided at the hearing on September 7, 1999, (2/25/00-35), the jury never learned that the legal effect of the failure to have a guilty verdict entered meant that Wilds could withdraw his guilty plea at any time. Regardless of the Maryland Rules, the jury still believed that the plea agreement was in full force because it was unaware of the side agreement. 39 There was a reasonable likelihood or substantial possibility that absent the suppression of the side agreement and other impeachment evidence, the result would have been different. As in Conyers . the nature of Wilds' testimony and his importance to the case rendered the suppressed evidence material, by the State's own admission: "[l]et's talk about Jay Wilds because, clearly, this case hinges on his testimony." (2/25/00-57) In addition, Wilds' credibility was in serious doubt. It was not contested that Wilds had lied in every pretrial statement he gave to the police. (2/1 1/00-205) Further impeachment by Appellant could have caused the jury to completely disregard his testimony, which would have resulted in the acquittal of Appellant. As such, the suppression of the evidence in the present case was material, constituted a violation of Brady , and Appellant's rights to due process under the 1 4 * Amendment and Article 24 of the Maryland Declaration of Rights. Appellant's convictions must therefore be reversed. See Wilson . 363 Md. at 341-42 ( "The failure to disclose evidence relating to any understanding or agreement with a key witness as to a future prosecution, in particular, violates due process, because such evidence is relevant to witness's credibility."). 17 Thus, the evidence withheld was material and violated Brady . 17 The trial court found that the State did not err in suppressing evidence that it provided Wilds with a free private attorney on the grounds that "the State honestly and in good faith did not perceive it as a benefit." (2/1 1/00-56, App. 17) The trial court was clearly erroneous in that the good faith of the prosecutor is irrelevant in a Brady determination. See Wilson , 363 Md. at 345-46 ("the suppression by the prosecution of evidence . . . violates due process . . . irrespective of the good faith or bad faith of the prosecution.") (citation omitted). 40 2. The State's actions constituted prosecutorial misconduct. a) Facts The State suppressed material favorable evidence, presented false and incomplete testimony, misrepresented to the trial court and the jury that Wilds entered a completed guilty plea, and obstructed Appellant's attempts to obtain information independently from the State. The State was not truthful with the trial court when it was directly questioned regarding the reason for the post-plea hearing. This lack of candor was in furtherance of the State suppressing evidence regarding the plea agreement with its key witness. b) The Law The standard for proving prosecutorial misconduct is whether the prosecutor acted in bad faith, to gain a tactical advantage, and caused actual prejudice to the defendant. See Clark v. State .. 364 Md. 61 1, 774 A.2d 1 136 (2001) (preindictment delay); see also McNeil v. State . 1 12 Md, App, 434, 685 A.2d 839 (1996) (prosecutorial misconduct can arise from failure to provide exculpatory evidence); Arizona v. Youngblood . 488U.S.51,57, 109S.Ct. 333, 337 (1988) (destruction of potentially exculpatory evidence); United States v. Lovasco . 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (preindictment delay); United States v. Marion . 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (preindictment delay). c) Analysis In the present ease, the bad faith of the prosecutor was evident when he knowingly 41 introduced into evidence a plea agreement he knew to be materially incomplete, and failed to elicit testimony regarding the side agreement from Wilds. The prosecution in bad faith objected to Benaroya testifying in front of the jury, because then the jury would know that the prosecutor had not been honest with the jury. The bad faith of the prosecution is most evident when viewed along with the suppression of the circumstances surrounding the plea agreement. The pattern of suppression of evidence and misleading statements of the prosecutor can only lead to the conclusion that the actions were intentional, and meant to cause harm to Appellant's ability to fully and effectively impeach the main witness against him. The acts of the State caused actual prejudice, in that Appellant was unable to effectively cross-examine Wilds as to all of the terms of the plea agreement, including that he could withdraw from it at any time without a judicial finding that it would be in the interest of justice. See Maryland Rule 4-242. Moreover, Appellant was actually prejudiced because the jury did not hear all the terms of the plea agreement, or know that Wilds could withdraw his plea of guilty at any time. All of the suppressed evidence was exculpatory, in that it would have negatively effected Wilds' credibility. As such, the jury could not fully and adequately judge Wilds' credibility. Had the jury had all of the impeachment evidence, it may well have concluded that Wilds was not to be believed. As the State's case hinged on Wilds' testimony, Appellant's convictions must be reversed on the grounds of prosecutorial misconduct. 42 3. The trial court committed reversible error in prohibiting Appellant from calling Benaroya and recalling Wilds as a witness. a) Facts The trial court ruled that Appellant could not call Benaroya as a witness or recall Wilds as a witness to elicit evidence that the State had an oral side agreement with Wilds which provided that Wilds could withdraw his plea at any time. The trial court ruled that Appellant could not call Benaroya or recall Wilds: "I believe that calling [Benaroya] would not be appropriate and it would just take us off on a needless presentation of evidence. And I would find that the credibility of Mr. Wilds has been exhausted." (2/22/00-74, App. 9) b) The Law In Marshall v. State. 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held that the trial court committed reversible error in limiting the defendant's cross examination of a witness as to terms of his plea agreement with the State. The Court held that the defendant was entitled to present evidence of terms of a plea agreement, which is relevant to the jury's determination of the witness' credibility, bias, and motive to testify falsely. Id at 197. c) Analysis The trial court committed reversible error in failing to permit Appellant to call Benaroya as a witness or recall Wilds to testify as to the existence of a side oral agreement, The side agreement was a term of the plea agreement. (2/22/00-64, App. 8) Thus, the trial 43 court erred in ruling that Appellant could not introduce this testimony. 4. The trial court committed reversible error in restricting the cross-examination of Wilds. a) Facts The trial court erroneously restricted Appellant's cross examination of Jay Wilds on issues relating to the plea and other issues. First, Wilds' plea agreement, introduced by the State, provides that Wilds "represents that he/she has fully and truthfully responded to all question put to [him] by law enforcement during all prior interviews. (Exhibit 35, page 1 para, la) If Wilds lied in any prior interview, "the State is immediately released from any obligation under this agreement." Appellant twice attempted to question Wilds about the effect that his admitted previous lies in prior statements to police had on the plea agreement. On each occasion, the trial court sustained the State's objections to these questions. (2/10/00-157, 2/15/00-79, App. 13, 18) In addition, the trial court sustained objections to Appellant's attempts to learn what changes Wilds sought to the plea agreement during plea negotiations. (2/15/00-75, App. 16) Also, Appellant asked Wilds whether he knew if anyone paid his attorney any money. An objection to this question was sustained by the trial court. (2/15/00-68, App. 14) b) The Law In Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held that the defendant's Sixth Amendment rights and rights pursuant to Article 21 of the 44 Maryland Declaration of Rights were violated when the trial court refused to permit the defendant to cross-examine a witness as to a condition of his plea agreement. The Court in Marshall noted: The Confrontation Clause of the Sixth Amendment guarantees an accused in a criminal proceeding the right "to be confronted with the witnesses against him." Delaware v. VanArsdall. 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1 986). This right means more than simply confronting the witness physically. Davis v. Alaska . 415 U.S. 308, 315, 94 S.Ct. 1 105, 1 1 10, 39 L.Ed.2d 347, 353 (1974). This same right is guaranteed to a criminal defendant by Article 21 of the Maryland Declaration of Rights. Simmons v. State . 333 Md. 547, 555-56, 636 A.2d 463, 467, cert, denied . 513 U.S. 815, 1 15 S.Ct. 70, 130 L.Ed.2d 26 (1994). The constitutional right of confrontation includes the right to cross-examine a witness about matters which affect the witness's bias, interest or motive to testify falsely. Ebb . 341 Md. at 587, 671 A.2d at 978. An attack on the witness's credibility "is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." Davis . 415 U.S. at 3 16, 94 S.Ct. at 1 1 10, 39 L.Ed.2d at 354. 346 Md. at 1 92, 695 A.2d at 1 87. In addition, the Court stated the trial court: has no discretion to limit cross-examination to such an extent as to deprive the accused of a fair trial. See State v. Cox . 298 Md. 1 73, 1 83, 468 A.2d 3 1 9, 324 (1983). In assessing whether the trial court has abused its discretion in the limitation of cross-examination of a State's witness, the test is whether the jury was already in possession of sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely in favor of the government. 346 Md. at 194, 695 A.2d at 188. The Court held: Turning to the case at hand, we conclude that the trial judge erred in limiting the cross-examination of Edwards. Petitioner was prohibited from asking the witness any questions about the terms of his plea agreement, and although the trial judge said defense counsel could ask about motive, the offer was, in reality, a hollow gesture. Where a witness has a "deal" with the State, the jury 45 is entitled to know the terms of the agreement and to assess whether the "deal" would reasonably tend to indicate that his testimony has been influenced by bias or motive to testify falsely. 346 Md. at 197, 695 A.2d at 189 (footnote omitted). The Court held that the error was not harmless beyond a reasonable doubt: The jurors were entitled to hear this evidence to enable them to make an informed judgment as to what weight, if any, to place on the testimony of Edwards, the State's only eyewitness linking Petitioner to the murder. Inasmuch as we conclude that defense counsel was denied the opportunity to cross-examine Edwards, a key prosecution witness, about the condition of Edwards's plea agreement that he testify at Petitioner's trial, and that agreement was not otherwise made known to the jury, we conclude that the jury lacked the opportunity to properly assess Edwards's testimonial motivation or potential bias. The issue of Edwards's credibility was crucial to the jury's determination of Petitioner's guilt. Because the jury was not provided with sufficient information to make a discriminating appraisal of Edwards's possible motives for testifying falsely or coloring his testimony in favor of the State, we cannot say that the trial court's error Was harmless beyond a reasonable doubt. 346 Md. at 198, 695 A.2d at 190 (footnote omitted). c) Analysis In the present case, the trial court's failure to permit Appellant to ask Wilds about his plea agreement, specifically, about the effect of his previous lies on the agreement, and about what terms he wanted to change during negotiations violated Appellant's Sixth Amendment right and rights under Article 21 to confront and cross-examine witnesses against him. This evidence was relevant to Wilds' testimonial motivation and credibility. As such, the trial court erred, and the error was not harmless beyond a reasonable doubt. As in Marshall. Wilds was the chief prosecution witness. Impeachment of Wilds was the central mission of 46 the defense. Thus, Appellant is entitled to reversal of his convictions. £eg Marshall . 346 Md. at 197; Conyers . Slip op. at 41. 5. The trial court committed reversible error in denying Appellant's motion to strike the testimony of Wilds. a) Facts Appellant moved to strike the testimony of Jay Wilds as one of many remedies it requested in light of the State's actions discussed above. The trial court erroneously denied this motion. (2/15/00-34, App. 1 1) b) The Law In Taliaferro v. State. 295 Md. 376, 390-91, 456 A.2d 29, 37, cert, denied . 461 U.S. 948, 103 S.Ct 21 14, 77 L.Ed.2d 1307 (1983), the Court approved the trial court's refusal to let the defendant's alibi witness testify where the name of the witness was not disclosed to the State until last day of trial. In University of Maryland Medical Syste ms Corp. v. Malorv. Md. App. , A.2d (No. 1 883, Sept. Term, 2000) (Filed Oct. 31,2001) (200 1 WL 1 335643) WL at 1 1, in a civil context, the Court upheld the trial court's striking of testimony where party hid evidence in discovery: "This remedy is supported by the holding in Bartholomee . that 'the injury inherent in failure to make discovery is unfair surprise. It would seem that the only effective cure for this disease is preclusion of the material withheld.' Id," 47 c) Analysis In light of the fact that the State hid exculpatory evidence relating to the plea agreement with its chief prosecution witness, the motion should have been granted. Se e Taliaferro. 295 Md. at 390-91, 456 A.2d at 37; University of Maryland Medical Systems Corp. WL at 11, 6. The trial court committed reversible error in precluding Appellant from calling Ms. Julian as a witness. a) Facts The trial court erroneously ruled that Appellant could not present testimony from Ms. Julian, a member of the Office of the Public Defender, who would have testified that the actions of the State in the present case in procuring a free private attorney for a witness was so rare that she had never even heard of it before. (2/23/00-239, 246, App. 15, 19) b) The Law In Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held that the trial court committed reversible error in limiting the defendant's cross examination of a witness as to terms of his plea agreement with the State, and that the defendant was entitled to present evidence of terms of a plea agreement, which is relevant to the jury's determination of the witness' credibility, bias, and motive to testify falsely. In Conyers . the Court held that evidence of the complete negotiations and circumstances of the plea 48 agreement are material. Slip op. at 41 . c) Analysis The trial court erred in restricting Appellant's case. Appellant has the right to put all of the facts and circumstances surrounding the plea before the jury. Marshall. 346 Md. at 1 97; Conyers . Slip op. at 41 . The jury never heard how unusual it was for the State to act in such a manner. Had the jury heard this testimony, it may well have concluded that Wilds' testimony was too coerced by the State to be believed. As such, the trial court committed reversible error. 7. The trial court committed reversible error in denying Appellant's motion to disclose documents and information from the State. a) Facts The trial court erroneously ruled that Appellant was not entitled to obtain documents and information from the State regarding communications between Mr. Urick and Wilds' attorney Ms. Benaroya. (2/1 1/00-41-47, App. 20-21) That request was erroneously denied on the ground that such a disclosure would violate Wilds' right to have privileged communications with his attorney. Appellant, however, sought only communications and information involving the State. (2/ 1 1 /00-4 1 -42) b) The Law In E.I, du Pont de Nemours & Co. v. Forma-Pack. Inc. . 351 Md, 396, 416, 718 A.2d 49 1 129 (1998), .the Court held : "for a communication to be confidential, it is essential that it not be intended for disclosure to third persons. ... 'if a client communicates information to his attorney with the understanding that the information will be revealed to others, that information ... will not enjoy the privilege.' United States v. (Under Seal) . 748 F.2d at 875. See also. [Trupp v. Wolff . 24 Md. App. 588, 609, 335 A.2d 178, 184 (1975)](holding that for the attorney-client privilege to apply, the subject of communication must be confidential and not made in the presence of a third person.)." c) Analysis This information was not privileged as it involved a third party. Thus, the trial court committed reversible error. See E.I, du Pont de Nemours & Co. . 351 Md. at 416. 8. The trial court committed reversible error in denying Appellant's motion to question Mr. Urick out of the presence of the jury, a) Facts The trial court denied Appellant's request to question Mr. Urick under oath out of the presence of the jury as to the fact surrounding the plea agreement, but particularly as to his communications with Ms. Benaroya and his efforts to obtain her as an attorney for Wilds. (2/1 1/00-23, App. 10) The trial court based its ruling on its finding that the same information could be obtained by Appellant questioning Ms. Benaroya and Wilds. Later, however, the trial court ruled that Appellant could not call Ms. Benaroya as a witness in front of the jury. 50 (2/22/00-74, App. 9) b) The Law As stated above, in Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held that the trial court committed reversible error in limiting the defendant's cross examination of a witness as to terms of his plea agreement with the State, and that the defendant was entitled to present evidence of terms of a plea agreement, which is relevant to the jury's determination of the witness' credibility, bias, and motive to testify falsely. c) Analysis Given the fact that the prosecution suppressed evidence relating to the plea agreement, and admitted it provided a free attorney to its chief witness, Appellant was entitled to question Mr. Urick. Since the trial court denied Appellant's request to obtain the information from other sources, the ruling regarding Mr. Urick constituted reversible error. See Marshall . 346 Md. at 197. B. THE TRIAL COURT ERRED IN ADMITTING HEARSAY IN THE FORM OF A LETTER FROM THE VICTIM TO APPELLANT, WHICH IS HIGHLY PREJUDICIAL. 1. Standard of Review The standard of reviewing a trial court's ruling on the admission of evidence is • whether the trial court erred in admitting the evidence. Banks v. State . 92 Md. App. 422, 51 438, 608 A.2d 1249 (1992). The appellate court must then decide whether the error was harmless beyond a reasonable doubt. IcL 2. Argument At trial, the State introduced a letter from Hae to Appellant, on the back of which Appellant and one of his classmates, Aisha Pittman, allegedly exchanged notes during a high school class. (State's Exhibit 38, App. 22-23) The letter constituted inadmissible hearsay which did not fall under any exception to the hearsay rule. In it, Hae told Appellant of her feelings about the break up, and about her perceptions and opinions as to Appellant's feelings about the break up. .... I'm really getting annoyed that this situation is going the way it is. . . . Your life is NOT going to end. You'll move on and I'll move on. But, apparently, you don't respect my decision. ... I NEVER wanted to end this like this, so hostile and cold. . . . Hate me if you will. But you should remember that I could never hate you. During trial, the State offered the letter, as Exhibit 38, to be moved into evidence: [BY THE STATE]: Your Honor, I would ask that State's Exhibit 38 be moved at this time? THE COURT: Any objection? [BY DEFENSE COUNSEL]: I would object. THE COURT: For the record, I note your objection. I ask that you indicate a time frame, and, if you are able to do that through this witness, the exhibit will be admitted. (Witness states letter was written sometime early in November as were 52 comments on the back) * * * THE COURT: Very Well. It'll be admitted over objection. [BY THE STATE]: Thank you, Your Honor. Your Honor, I would ask to publish this letter to the jurors by was of Ms. Pittman reading first the front side and then the back side? THE COURT: Any objection? I know you have objection to the ~ [BY DEFENSE COUNSEL]: Only to the - THE COURT: I understand you have an objection ~ [BY DEFENSE COUNSEL]: to the document. THE COURT: That's preserved. Do you have any objection to the process of her reading it as opposed to passing it along the jurors and having them read it? [BY DEFENSE COUNSEL]: I do. I'd prefer the jurors read it. THE COURT: I'm gonna allow the witnesses to read the exhibit (1/28/00-243-45, App. 24-26) Maryland Rule 5-801 provides: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 5-802 provides: "Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible." The hearsay letter of the 53 victim allegedly written over two months before her disappearance does not fall under any exception to the hearsay rule. The letter cannot fall under the state of mind exception found in Maryland Rule 5-803(b) (3), which provides as follows: (3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or the declarant's future action, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (Emphasis supplied). This exception is inapplicable for several reasons. First, the declarant speaks not only of her state of mind, but her opinion of Appellant's state of mind. Even if the letter contained only Hae's state of mind, the letter would be inadmissible because Hae's state of mind is not relevant to prove any fact at issue. "Statements offered, not to prove the truth of the matters asserted therein, but as circumstantial evidence that the declarant had ... a particular state of mind, when that ... state of mind is relevant, are nonhearsay." McLain, § 801.10 at 282-83 (citations omitted) (emphasis added). Here, even if the statements were not being offered for their truth, but rather as evidence of McDonald's state of mind, i.e., fear of appellant, this would not resolve the issue of their admissibility because evidence must also be both relevant and not unduly prejudicial. Banks v. State . 92 Md. App. 422, 434, 608 A.2d 1249 (1992). Further, although Appellant's state of mind is relevant, Hae's statements about Appellant's state of mind are inadmissible and do not satisfy the exception. The exception permits statements by the declarant about the declarant's state of mind, but not statements 54 by the declarant about someone other than the declarant's state of mind. See Maryland Rule 5-803(b)(3). The introduction of the letter to Appellant was not harmless beyond a reasonable doubt. The letter referred to Hae's opinion that Appellant was cold, hostile and hateful. These statements were highly prejudicial, especially where Hae portrayed herself as being sympathetic and loving. No juror could rationally and reasonably decide the issues in the case without extreme sympathy for the victim and malice toward Appellant after reading that letter. As such, it cannot be said that the erroneous introduction of the letter was harmless beyond a reasonable doubt. See. Banks . 92 Md. App. at 438. C. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF THE VICTIM'S 62-PAGE DIARY, WHICH CONSTITUTED IRRELEVANT HIGHLY PREJUDICIAL HEARSAY. 1. Standard of Review The standard of reviewing a trial court's ruling on the admission of evidence is whether the trial court erred in admitting the evidence. Banks v. State . 92 Md. App. 422, 438, 608 A.2d 1249 (1992). The appellate court must then decide whether the error was harmless beyond a reasonable doubt. Id In determining whether there was plain error, the appellate court must decide whether the error was material to the rights of the defendant, such that the defendant was deprived of a fair trial. Move v. State . 139 Md. App. 538, 776 A.2d 120, cert, granted . 366 Md. 274 (2001). 55 2. Argument At trial, the State introduced the 62-page diary of the victim in its entirety. (State's Exhibit 2, 1/28/00-32, App. 27) Although Appellant did not object at that point, Appellant objected numerous times when the State asked a witness to read several pages of the diary: Q If I may, I'll ask you to read for the jurors the entry under May 14, 1998? [BY DEFENSE COUNSEL]: Objection. THE COURT: Overruled. A I think I'll try the one week recess Deb suggested. I hope forth and went out with Iesha [sic], Deb and Sean in Sean's new car. It is so fly with those tinted windows I couldn't be with my baby because he had to go to D.C. for his religious stuff That's what I need to figure out. Do I dare to pull him away from his religion? Ms. Savic [sic] was all up in my face about it. She said stuff like well Adnan used to be so religious and strict last year but this year he is so loose, like I changed him. Actually, I did and I don't want to pull him away from who he is. I think I need time to organize these things but I do not know that — but I do know one thing. I love him and he loves me. Nothing will change that. I'll try the recess week and see what happens. I'll probably kill myself if I lose him but I'll go crazy with things complicating. I wish he'll [sic] call back soon- jjc jf; sjs Q I ask you to read the entry under May 15 th ? [BY DEFENSE COUNSEL]: Again objection, THE COURT: Overruled. A I did it. Me and Adnan are officially on recess week or time out. I don't know what's going to happen to us. Although I'm in love with him, I don't know about him. He actually suggests that what we have is like, not love. I heard the doubt in his voice. Although he couldn't pick up mine, I felt the 56 same way. I like him. No, I love him. It's just all the things that stand in the middle, his religion and Muslim customs all are in the way. It irks me to know that I am against his religion. He called me a devil a few times. I knew he was only joking, but it's somewhat true. I hate that. It's like making him choose between me and his religion. The second thing is the possessiveness. Independence rather. I'm a very independent person. I rarely rely on my parents. Although I love him it's not like I need him. I know I'll do just fine without him. I need time for myself and my friends other than him. How dare he get mad at me for planning to hang out with lesha [sic]. The third thing is the mind play. I've matured out of my jealosy shit. I don't get jealous over trying to get him jealous as a fool - him trying to get me jealous is [sic] a fool because I'll definitely lose him ~ me. I prefer a straight relationship that doesn't get in people mixed up just because he wanted to play mind games. The fourth thing is nothing. Because I do love him. It's just all of the shitty things that are messing with my mind. I'm just too confused. If I don't take the time to set things straight, the whole thing will blow up ... in my head making me mad and do something I'll regret forever. That's why I need the time out. I just hope I don't lose him because of this. I love him. When I hold him, I want it to be forever. I feel secure and comfy with him. I think he expected more of a spontaneous combustion. That's not going to happen all of the time. Our relationship burns lightly at first and then it eventually calms down. We started strong but now we settle in a boring but secure and loving relationship. I don't know what he wants. All I want is him to hold on to, to cuddle up to, kiss when I feel empty inside. Maybe I'm not supposed to be loved but supposed to love and I thought that I had found another keeper and maybe I have. Hopefully, we'll go through this and come out much stronger ~ with a much stronger foundation. I love him. I can live without him but I love him and want him with me. Please Adnan be patient with me, love. (2/16/00-304-307, App. 28) In addition, the trial court previously ruled that hearsay of the victim is admissible: (Out of the presence of the jury) 57 THE COURT: I'm gonna allow the State to inquire as to the relationship that this witness was aware based on conversations that she had directly with the defendant or directly with the victim in a period of time preceding the murder. [BY THE STATE]: I'm sorry. Did you say she can't say anything the victim told her? THE COURT: She can tell you- she can say what the victim said, she can say what the defendant said as to their relationship. But beyond that - [BY DEFENSE COUNSEL]: At any time prior to her disappearance? THE COURT: The period of time on or about, as you've indicated, October, November, December in 1998. However, I will not allow anything other than what conversations she had with the witness, victim or the defendant. Other than that, not a we knew, what we all knew, what we all heard. That will not be permitted. . . . [BY THE STATE]: Thank you. [BY DEFENSE COUNSEL]: We would note an objection. THE COURT: All right. (1/28/00-136-37, App. ) Further, the issue of the diary was clearly before the court prior to trial when the State filed a Motion for Admission of Excerpts of Victim's Diary. (R. 560- 576,) Thus, the trial court had before it the issue of the diary, and the issue of the admissibility of the diary is preserved for appe