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Law Digest — Md. Court of Appeals — June 10, 2021

Maryland Court of Appeals

Criminal Procedure; Petition for writ of actual innocence: Where petitioner, who was serving a life sentence for a 1991 murder conviction, sought post-conviction relief based upon newly-discovered evidence that the State’s ballistics expert who testified at his trial had misrepresented his credentials, judgement of the Court of Special Appeals, which affirmed the circuit court’s denial of the petition, reversed because the circuit court failed to determine whether the newly-discovered evidence could not have been discovered in time to move for a new trial. Ronnie Hunt v. State of Maryland, No. 21, Sept. Term, 2020.

Estates & Trusts; Trustees: To make out a prima facie case in a negligence action for a trustee’s failure to comply with a duty imposed on it by statute or ordinance, a plaintiff is required only to show the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff and that the violation proximately caused the injury complained of, and, by this standard, the plaintiffs satisfied their burden at summary judgment as to the trustee bank’s personal fault by producing facts from which a jury could find that the bank breached a duty it owed to the plaintiffs under the Baltimore City Housing Code as the “owner” of the property where the plaintiffs resided and were injured by lead paint poisoning. Hector v. Bank of New York Mellon, No. 10, Sept. Term, 2020.

Criminal Procedure

Petition for writ of actual innocence

BOTTOM LINE: Where petitioner, who was serving a life sentence for a 1991 murder conviction, sought post-conviction relief based upon newly-discovered evidence that the State’s ballistics expert who testified at his trial had misrepresented his credentials, judgement of the Court of Special Appeals, which affirmed the circuit court’s denial of the petition, reversed because the circuit court failed to determine whether the newly-discovered evidence could not have been discovered in time to move for a new trial.

CASE: Ronnie Hunt v. State of Maryland, No. 21, Sept. Term, 2020 (filed June 7, 2021) (Judges McDonald, Watts, Hotten, Getty, Booth, Biran, HARRELL & Glenn, (Senior Judge, Specially Assigned).

FACTS: In September 1991, Ronnie Hunt, Jr. was convicted in the Circuit Court for Baltimore City of first-degree murder. The jury found that Hunt shot to death Sheldene Simon on the front lawn of the victim’s home in Baltimore during a gunfight involving multiple shooters. Hunt was sentenced to life imprisonment for murder.

In September 2010, Hunt filed pro se a petition for writ of actual innocence in the circuit court. The petition was inspired by the 2007 revelation that Joseph Kopera, the State’s ballistics expert who testified at Hunt’s trial, had lied about his educational background and had forged at least one university transcript. Kopera’s fraud was discovered by an exceptionally diligent attorney working for the Innocence Project, who, apparently, had read transcripts from many earlier Kopera trials and noticed inconsistencies that set her on a path of deeper exploration of his claimed credentials. Until then, however, no one – neither defense attorneys nor prosecutors – had ever questioned Kopera’s credentials in any of the hundreds of cases in which he testified.

The circuit court ultimately denied Hunt’s petition on the sole ground that Kopera’s false testimony concerning his credentials was not newly discovered evidence. The court did not address whether Hunt had demonstrated a “substantial or significant possibility” that, but for Kopera’s perjured testimony, the outcome of his trial may have been different.

Hunt appealed to the Court of Special Appeal, contending that the circuit court erred in finding a lack of due diligence by trial counsel because he failed to discover Kopera’s fraud in time to move for a new trial under Maryland Rule 4-331(c). The Court of Special Appeals affirmed, concluding that the circuit court had not abused its discretion in finding an absence of due diligence by trial counsel in failing to discover Kopera’s fraud earlier than 2007.

Hunt appealed to the Court of Appeals, which reversed and remanded.

LAW: In the sixteen years between Hunt’s trial and the discovery of Kopera’s deceit, neither defense attorneys nor prosecutors had ever questioned his credentials in the hundreds of cases in which he had testified until 2007. The issue on appeal was whether the Court of Special Appeals erred in holding that the mere fact that Kopera’s false credentials were found years later by another attorney in another case was enough for the trial court to find that Hunt’s 1991 trial counsel failed to act with due diligence.

The actual innocence statute, Md. Code Ann., Crim. Proc. (“CP) §8-301(a), was enacted to alleviate a perceived problem faced by convicted persons seeking to challenge their convictions on the ground of newly discovered evidence, namely, that, under some circumstances, a claim of newly discovered evidence was time-barred despite the due diligence of the claimant in raising it as soon as feasible. The statute provides, in pertinent part, a person may file a petition for writ of actual innocence at any time “if the person claims that there is newly discovered evidence that…could not have been discovered in time to move for a new trial under Maryland Rule 4-331.”

Under Rule 4-331(c), which defines the outermost time limit in the rule, a court “may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule [i.e., within ten days after a verdict].” Thus, the actual innocence statute incorporates by reference the due diligence requirement of Rule 4-331(c).

To “qualify as ‘newly discovered,’ evidence must not have been discovered, or been discoverable by the exercise of due diligence, within ten days after the jury has returned a verdict.” Argyrou v. State, 349 Md. 587, 600 (1998). “Exculpatory evidence known, at the time of trial, or, as in Maryland, prior to the expiration of the time for filing a motion for new trial, though unavailable, in fact, is not newly discovered evidence, and, thus, will not suffice as a ground on which to grant a new trial.” Id. at 600 n.9.

Whether evidence is newly discovered “has two aspects”: a “temporal one,” that is, when the evidence was discovered; and a “predictive one,” that is, when it “should” or “could” have been discovered. Id. at 602. “Due diligence” is relevant to the latter aspect, id., and, in this context, “contemplates that the defendant act reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him or her.” Id. at 605.

Here, the evidence of Kopera’s fraud could have been discovered at the time of Hunt’s trial. Although that proposition may be attractive in a more perfect world, it reflects a cramped and unrealistic notion, under the circumstances of the Kopera cases, of the reasonableness and good faith envisioned in the due diligence standard.

Simply put, Kopera was, prior to the unearthing of his fraud, regarded widely as a trained and knowledgeable expert in ballistics who had been accepted to testify in courts throughout Maryland and several neighboring jurisdictions for decades before 2007. It appears that no cause was given, nor did it occur reasonably to any defense counsel until 2007 to question his credentials. The Court of Appeals rejected the implication that all these attorneys, over a period spanning decades, failed to exercise due diligence. The failure of anyone to unearth Kopera’s fraud prior to its fortuitous discovery showed that it was not reasonable to expect that a hypothetical competent attorney would have stumbled onto this discovery prior to 2007.

It was held, therefore, that, in this and all similarly situated cases tried prior to the 2007 discovery of Kopera’s fraud, in the absence of particularized facts that would have put defense counsel on inquiry notice of Kopera’s fraud, due diligence did not require defense counsel to unearth the charade. In this case, because the circuit court did not assess whether Hunt could establish a substantial or significant possibility that, had Kopera’s false testimony about his credentials been known at the time of his trial, the result of his trial may have been different, the judgment of the Court of Appeals was reversed and the case was remanded so that the circuit court may make that determination.

COMMENTARY: On remand, the circuit court will have the task of determining whether Hunt can demonstrate “a substantial or significant possibility that the result [of his trial] may have been different,” CP §8-301(a)(1)(i). The Court of Appeals provided guidance regarding a possible misunderstanding in prior decisions applying the prejudice standard.

Yorke v. State, 315 Md. 578, 588, 556 A.2d 230, 235 (1989) set forth a bifurcated test for weighing the impact of newly discovered evidence: first, a court should determine whether the evidence is “material” to the outcome of the case; and second, if so, whether there is “a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Id. at 588; see also Stevenson v. State (“Stevenson II”), 299 Md. 297, 473 A.2d 450 (1984).

In determining whether to grant or deny a motion for new trial on the ground of newly discovered evidence, the standard a trial court should apply is whether “there was a substantial or significant possibility that the verdict of the trier of fact would have been affected,” had the newly discovered evidence been available at trial. Id. at 588. That standard is now codified in CP §8-301(a)(1)(i). The only reference to “material” in that opinion was to uphold, under an abuse of discretion standard, the trial court’s determination that the newly discovered evidence “touch[ed] upon the evidence that was presented” at trial and was therefore material. Id. at 585.

The actual innocence statute was drafted with the specific understanding that the Yorke standard was well-established in Maryland law and applies, not only to motions for new trial on the ground of newly discovered evidence, but also to ineffective assistance claims, Bowers v. State, 320 Md. 416, 425-27 (1990), and Brady claims (so long as they do not involve knowing use of perjured testimony by the prosecution). Yearby v. State, 414 Md. 708, 717-18 (2010). Yet, neither ineffective assistance claims nor Brady claims are subject to a bifurcated test. Indeed, in the Brady context, the Supreme Court has said that “materiality” is co-extensive with the “reasonable probability” (i.e., “substantial or significant possibility”) standard. Strickler v. Greene, 527 U.S. 263, 280-82 (1999).

Here, because the Court could envision no instance in which newly discovered evidence satisfies the “substantial or significant possibility” test, but could be deemed not “material,” it clarified that it is not necessary to conduct a “threshold” screening as suggested by Yorke. Weighing the effect of newly discovered evidence in an actual innocence proceeding involves substantially the same inquiry as determining prejudice in the context of an ineffective assistance claim or assessing whether Brady evidence is material.

  

PRACTICE TIPS: In interpreting Maryland Rule 4-331(c) (governing motions for new trial on the ground of newly discovered evidence), “the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed or immutable; rather, it will expand or contract depending upon the nature of the factors being considered, and the extent to which the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and justice.” Campbell v. State, 373 Md. 637, 665 (2003).

Estates & Trusts

Trustees

BOTTOM LINE: To make out a prima facie case in a negligence action for a trustee’s failure to comply with a duty imposed on it by statute or ordinance, a plaintiff is required only to show the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff and that the violation proximately caused the injury complained of, and, by this standard, the plaintiffs satisfied their burden at summary judgment as to the trustee bank’s personal fault by producing facts from which a jury could find that the bank breached a duty it owed to the plaintiffs under the Baltimore City Housing Code as the “owner” of the property where the plaintiffs resided and were injured by lead paint poisoning.

CASE: Hector v. Bank of New York Mellon, No. 10, Sept. Term, 2020 (filed Ma7 27, 2021) (Judges Barbera, McDonald, Watts, Hotten, Getty, Booth & BIRAN).

FACTS: As young children, Ashley Hector and Alyaa Hector lived with their parents in a rowhouse in Baltimore City that contained lead-based paint. While the Hector family lived in the home, the paint chipped in several rooms, including Ashley’s and Alyaa’s bedroom. Blood tests taken in January 2002 – after the Hector family had lived in the home for approximately one year – revealed that both girls had elevated levels of lead in their bodies. The Hector family moved out of the home in the spring of 2002.

The Hector family’s landlord, Sharlene Epps-Smith, had taken out a mortgage on her interest in the property. That mortgage subsequently was bundled with many others and became part of, and owned by, a residential mortgage-backed securitization trust. The trustee of this trust was the Bank of New York, now known as the Bank of New York Mellon (“BNYM”). On December 27, 2001, following Epps-Smith’s default on the mortgage, BNYM as Trustee caused Epps-Smith’s interest in the property to be sold at foreclosure. BNYM as Trustee was the purchaser. On February 5, 2002, the circuit court ratified the foreclosure sale to BNYM as Trustee.

In June 2016, the Hectors (through their father) filed suit in the circuit court against BNYM in its individual capacity, claiming that BNYM’s negligence while serving as Trustee resulted in their lead poisoning. BNYM filed a motion for summary judgment. The Hectors opposed the motion for summary judgment, arguing that BNYM breached a duty it owed to them under the Baltimore City Housing Code as the “owner” of the property. The circuit court granted summary judgment to BNYM on the ground that the Hectors had erroneously named BNYM in its individual capacity, as opposed to its fiduciary (trustee) capacity.

On appeal, the Court of Special Appeals held that BNYM could theoretically be liable in its individual capacity for a tort it committed while serving as the Trustee. However, the intermediate appellate court affirmed the circuit court’s judgment on the ground that the Hectors had failed to produce facts from which the trier of fact could conclude that BNYM was personally at fault for the failure to properly maintain the property. The Hectors appealed to the Court of Appeals, which affirmed in part and reversed in part the judgment of the Court of Special Appeals and remanded the case to the Court of Special Appeals with instructions to remand to the circuit court for further proceedings.

LAW: The Hectors based their argument for reversal of summary judgment on the “Statute or Ordinance Rule,” which holds that where there is an applicable statutory scheme designed to protect a class of persons which includes the plaintiff, the defendant’s duty ordinarily is prescribed by the statute or ordinance and that the violation of the statute or ordinance is itself evidence of negligence. Id. The Hectors contended that to withstand BNYM’s motion for summary judgment, they were required only to show that sufficient facts existed for a jury to conclude that BNYM breached a duty the Housing Code imposed upon it as an “owner” of the property. The Hectors further contended that BNYM became an “owner” of the property prior to the date they moved out in the spring of 2002.

Under the Baltimore City Housing Code, Balt. City Code (2000 Repl. Vol.), Art. 13, §310(a), any person “who is either an owner or operator of a property subject to this Code shall be responsible for compliance with all of the provisions of the Code.” Section 702 of the Housing Code states that every building occupied as a dwelling shall, while in use, “be kept in good repair, in safe condition, and fit for human habitation.” Under §703, “good repair and safe condition” includes the standard that all “walls, ceilings, woodwork, doors and windows shall be kept clean and free of any flaking, loose, or peeling paint.” The Housing Code further states that an “owner” is: (1) any person, firm, corporation, guardian, conservator, receiver, trustee, executor, or other judicial officer, who, alone or jointly or severally with others, owns, holds, or controls the whole or any part of the freehold or leasehold title to any dwelling or dwelling unit, with or without accompanying actual possession thereof; and (2) shall include in addition to the holder of legal title, any vendee in possession thereof, but shall not include a mortgagee or an owner of a reversionary interest under a ground rent lease. Id. §105(jj).

The Maryland Trust Act, Title 14.5 of the Estates and Trusts Article (“ET”), 2014 Md. Laws ch. 585, §14.5-908(a), states that, except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into by the trustee in the fiduciary capacity of the trustee in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity. A claim based on a contract entered into by a trustee in the fiduciary capacity of the trustee, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the fiduciary capacity of the trustee, regardless of whether the trustee is personally liable for the claim. ET §14.5-908(b). A claim based on a contract entered into by a trustee in the trustee’s fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee’s fiduciary capacity, whether or not the trustee is personally liable for the claim. ET §14.5-908(c).

According to BNYM, to satisfy the requirement that a plaintiff must produce facts from which the jury could find that the trustee owner was “personally at fault” for the tort and show that the trustee was “personally at fault,” the plaintiff must prove that the trustee “personally committed, inspired, or participated” in the tort. Thus, BNYM effectively claimed an exception to the Statute or Ordinance Rule for trustee defendants. At the time the trust was created, BNYM as Trustee executed a Pooling and Servicing Agreement (“PSA”) establishing and governing the rights and responsibilities of the parties in the administration of the Trust. BNYM emphasized that, under the PSA, it had only a “passive” role with respect to the mortgages that were part of the Trust’s assets. The PSA called for the Master Servicer, Indymac, Inc., to make decisions concerning foreclosures and other actions the Trust might take with respect. BNYM argued that it could not be personally at fault for Indymac’s failure to properly fulfill the Master Servicer’s duties under the terms of the PSA.

However, the Housing Code places a duty personally on a trustee to comply with the statutory requirements of an “owner.” See Housing Code §105(jj). The Housing Code put BNYM on notice before it became the Trustee that a trustee “owner” of a covered property has the same duty to maintain the property as any other “owner” that has a direct interest in such a property. The Housing Code does not permit any such “owner” to absolve itself of its obligations under the Housing Code by delegating its duties to a third party.

As such, there was basis for creating an exception to the application of the Statute or Ordinance Rule where the defendant is a trustee. Where a trustee is an “owner” of a property subject to the Housing Code by virtue of its direct interest in the property, it is treated the same as an individual, corporation, or any other person or entity that has a similar direct interest in a property. After BNYM became an “owner” by virtue of its direct interest in the property, it was personally under a statutory duty to maintain it, including keeping it free of a lead paint hazard. To the extent that BNYM became an “owner” of the property while the Hectors resided there, the Hectors needed only to produce facts showing a violation of the Housing Code during that time, and that the violation proximately caused their injuries, in order for their claim against BNYM in its individual capacity to go to the jury. See Brooks v. Lewin Realty III, Inc., 378 Md. 70, 79 (2003), abrogated on other grounds by Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594 (2011). BNYM did not contend that the Hectors failed to make such a showing.

BNYM became an “owner” of the property as of the date of the foreclosure sale on December 27, 2001. It was undisputed that the Hectors were still living at the property at that time. BNYM owed the Hectors a duty under the Housing Code beginning on that date. Therefore, the circuit court erred in granting summary judgment to BNYM. Accordingly, the judgment of the Court of Appeals was affirmed in part and reversed in part, and the case was remanded to the Court of Special Appeals with instructions to remand the case to the circuit court for further proceedings.

COMMENTARY: The Court of Special Appeals disagreed with the circuit court’s reasoning for granting judgment to BNYM, holding that BNYM, at least in theory, could be held individually liable for actions it took in its representative capacity as trustee. At common law, neither a trust nor a trustee in its representative capacity could sue or be sued. See Doermer v. Oxford Fin. Grp., 884 F.3d 643, 647 (7th Cir. 2018). Over the past several decades, however, this traditional approach has fallen out of favor. Under the Maryland Trust Act, a claim based on a contract entered into by a trustee in the fiduciary capacity of the trustee, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the fiduciary capacity of the trustee, regardless of whether the trustee is personally liable for the claim. Maryland Trust Act, Md. Code, Est. & Trusts (“ET”) §14.5-908(b) (2017 Repl. Vol.).

Although the modern approach thus allows a third party to assert a claim against a trust by proceeding against a trustee in its representative capacity, this rule does not insulate a trustee from also being sued in an individual capacity. Plaintiffs may sue trustees in both individual and representative capacities. Id. Indeed, the phrase “whether the trustee is personally liable for the claim” in ET §14.5-908(b) suggests that, in some cases, a trustee will be individually liable for a tort it commits in the course of trust administration.

Here, in the caption of their complaint, the Hectors named BNYM in both its individual and trust capacities. Because BNYM could be individually liable for acts or omissions it committed in its capacity as a trustee, the Hectors were permitted to sue BNYM in its individual capacity. As such, the circuit court erred in dismissing the complaint on the ground that the Hectors improperly named BNYM as a defendant in its individual capacity.

  

PRACTICE TIPS: The Statute or Ordinance Rule does not impose upon a plaintiff the additional burden of proving that the defendant was aware that he or she was violating the statute or ordinance in question. Rather, it is the violation of the statute or ordinance alone which is evidence of negligence.