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“Defense counsel had the option to hire his own ballistics expert, like Mr. Conrad, to examine the bullet fragments and testify at the time of trial, but he elected not to do so,” Justice Michele D. Hotten wrote for the majority. (The Daily Record/File Photo)
The Maryland Supreme Court last week upheld the murder conviction of a man who has spent over 30 years in prison, saying his claim of “newly discovered evidence” of tainted testimony at trial would not have changed the verdict and could have been addressed then had defense counsel been diligent.
The high court also rejected as insignificant Steven G. Carver’s assertion that newly discovered evidence indicates John Green was shot to death on a Baltimore street to prevent him from testifying at a murder trial while Carver was merely standing near him.
This alleged murder plot – even if known at the time – would not have changed the jurors’ verdict in light of other evidence, the court said in its 6-1 decision.
The Supreme Court’s ruling marked its latest application of its test for determining the merits of a convict’s assertion that newly discovered evidence warrants a new trial.
A new trial is warranted if the newly discovered evidence was undiscoverable at the original trial and would have created “a substantial or significant possibility that, had the jury received such evidence, its verdict would have been different.”
The high court held that Carver’s claims that evidence was tainted and a murder plot unrevealed failed the test.
In his ill-fated appeal, Carver said his conviction followed the testimony of a since-discredited Baltimore police ballistics expert, who confirmed for the jury the prosecution’s theory that Carver and co-defendant Joe Hodge had shot Green at 4:30 p.m. on March 14, 1989, on Old York Road.
Hodge, who was also found guilty of first-degree murder, was not a party to Carver’s appeal.
Carver, who is serving a life sentence without parole, said a since-retained ballistics expert has concluded Green was shot by a lone gunman, thus contradicting the trial testimony of Joseph Kopera, whose claimed education in firearms identification was found to be false in 2007 – after he had testified in cases for 20 years.
But the high court said the testimony of Carver’s ballistics expert, William Conrad, cannot be regarded as newly discovered because such testimony would have been available to his trial counsel had it been sought then.
“Regardless of the inconclusive nature of his testimony, Mr. Conrad reveals the obvious: Defense counsel had the option to hire his own ballistics expert, like Mr. Conrad, to examine the bullet fragments and testify at the time of trial, but he elected not to do so,” Justice Michele D. Hotten wrote for the majority.
The court added Kopera’s testimony did not actually help the state’s case because he could not determine if the recovered bullets were fired from one or more guns.
Kopera killed himself in March 2007 amid mounting evidence – later confirmed – that he had lied about his credentials when testifying.
Carver also argued on appeal that he recently discovered prosecutors knew but did not disclose to the defense that the only witness who said he saw Carver shoot John Green 33 years ago was the subject of two open but unserved arrest warrants.
But the high court said defense counsel could have uncovered the warrants by conducting a background check. In addition, disclosure of the warrants at the 1989 trial would not have affected the verdict because their existence went not to contradicting Hodges Epps’ testimony but to potentially impeaching his credibility, the court said.
“Regardless, Mr. Epps’ open warrants carry little impeachment value because Mr. Epps was likely unaware of them and, thus, not likely motivated to lie in exchange for leniency from the state,” Hotten wrote.
The court also rejected Carver’s argument that a new trial was warranted because new evidence indicated Hodge alone shot Green at the behest of a jailed Bryant McArthur, whom Green had allegedly seen kill Damon Barrett and with whom Carver did not associate.
McArthur was convicted in 1991 of having murdered Barrett.
“At face value, petitioner (Carver) offers new evidence that an imprisoned individual sought the victim’s death and, through a speculative chain of events, perhaps successfully enlisted Mr. Hodge or some third-party assailant,” Hotten wrote.
However, “a reasonable jury could believe the following and still convict petitioner: (1) Mr. McArthur plotted Mr. Green’s death; and (2) petitioner and Mr. Hodge happened to kill Mr. Green first,” Hotten added. “Accordingly, the circuit court did not err when it determined the newly discovered evidence was not substantially likely to produce a different outcome at trial.”
But Justice Steven B. Gould, the court’s sole dissenter, said the likelihood of McArthur’s plot to kill Green and Carver’s lack of a relationship with McArthur was information that would have influenced defense counsel’s strategy, “changed the complexion of the trial” and may have yielded a different verdict.
“The fundamental mistake the majority makes is that it holds constant the trial that occurred – that is, the majority assumes the evidence would have unfolded exactly as it did – without considering the ripple effect the additional evidence would have had on the trial court’s evidentiary rulings, the state’s case, the testifying detectives’ credibility, and defense counsel’s ability to put on a defense,” Gould wrote.
“As a result, we should have little confidence in the guilty verdict, as it was premised entirely on inconsistent eyewitness testimony, the very type of evidence this court has deemed unreliable, and the jury decided the case without the benefit of exculpatory evidence,” Gould added in stating that Carver should have been granted a new trial.
Assistant Maryland Public Defender Eva Shell, Carver’s appellate attorney, called her client “an innocent man who was wrongly convicted.”
“The alternative perpetrator evidence, as thoughtfully reviewed by the dissenting justice, would have led to a different verdict had it been presented to the jury,” Shell stated via email Tuesday. “Separately, beyond the overarching concerns of Mr. Kopera’s fraud, the reevaluation of Mr. Kopera’s analysis by an independent expert in this case seriously called into question Mr. Kopera’s conclusions relied upon by the prosecution.”
The Maryland Attorney General’s office declined to comment on the decision.
The high court rendered its decision in Steven G. Carver v. State of Maryland, No. 14, September Term 2022.
