Canales-Yanez v. State

472 Md. 84

• Court: Court of Appeals of Maryland
• Decided: January 29, 2021
• Docket: 11/20
• Status: Published

Opinion

Jose Canales-Yanez v. State of Maryland, No. 11, September Term, 2020

BRADY VIOLATIONS – STANDARD OF REVIEW A trial court’s determination as to the existence of a violation of Brady v. Maryland, following either a bench or jury trial, is a constitutional question subject to de novo review. The defendant bears the burden of establishing a Brady violation and must show that: (1) the government suppressed or withheld evidence, (2) that would have been favorable to the defense, and (3) that would have been material to the trial, meaning that there is a reasonable probability that it would have affected the verdict. In analyzing the materiality of undisclosed impeachment evidence, courts should also apply the six factors enumerated in Wilson v. State. Here, the trial court properly found that the undisclosed evidence was not material, as there is not a reasonable probability that it would have affected the verdict. Therefore, there was no Brady violation and the trial court did not abuse its discretion in denying the defendant’s motion for new trial. Circuit Court for Montgomery County Case No. 132902C Argued: October 29, 2020 IN THE COURT OF APPEALS OF MARYLAND

No. 11

September Term, 2020

JOSE CANALES-YANEZ

v.

STATE OF MARYLAND

Barbera, C.J., McDonald Watts Hotten Getty Booth Biran

JJ.

Opinion by Barbera, C.J.

Filed: January 29, 2021

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2021-01-29 14:47-05:00

Suzanne C. Johnson, Clerk At 10:30 p.m. on June 5, 2017, the night before their high school graduation, Shadi

Najjar and Artem Ziberov were shot and killed while sitting in Shadi’s parked car. The

two had been lured to Gallery Court, a cul-de-sac in Montgomery Village, Maryland,

believing that they were going to meet up with Roger Garcia to sell him one of Shadi’s

graduation ceremony tickets. In total, upwards of thirty rounds were fired at the vehicle

during this chilling and tragic double homicide.

Four individuals were charged with committing the murders: Roger Garcia, Edgar

Garcia-Gaona, Rony Galicia, and Petitioner, Jose Canales-Yanez. After an eight-day

bench trial, the Circuit Court for Montgomery County found Petitioner guilty of the

murders, concluding that his motive to kill Shadi was that several months earlier Shadi had

stolen marijuana from Petitioner’s then-pregnant wife and run over her foot with his car

while fleeing. The court convicted Petitioner of conspiracy to commit the first-degree

murder of Shadi, two counts of first-degree murder, armed robbery, and four counts of use

of a firearm in the commission of a felony.

Following the trial, but prior to sentencing, the State informed Petitioner’s counsel

of an interview that took place between two detectives and the mother and stepfather of

one of the State’s witnesses, Victoria Kuria. According to Petitioner, during that interview

the detectives conveyed threats of prosecuting Ms. Kuria to her mother and stepfather that

caused Ms. Kuria to meet with the police the following day and to alter her testimony

regarding the events she witnessed on the night of the murders. During the late-disclosed

interview, Ms. Kuria’s mother also indicated to the detectives that Ms. Kuria had

previously said that she did not know who had committed the murders. Petitioner moved for a new trial on the basis of this alleged newly discovered

evidence, arguing that its nondisclosure constituted a violation of Brady v. Maryland, 373

U.S. 83 (1963) and its progeny. At the sentencing hearing the circuit court denied the

motion, finding that the evidence of the interview was not material, as it would not have

affected the verdict. The circuit court then sentenced Petitioner to two consecutive life

sentences, without parole, plus forty years. Petitioner appealed and the Court of Special

Appeals affirmed the denial of his motion for new trial, holding that the circuit court’s

determination that the newly discovered evidence was immaterial was not “patently

unreasonable.”

We are asked to determine whether the circuit court’s ruling as to the non-existence

of a Brady violation was proper, and whether to endorse the Court of Special Appeals’

newly articulated “patently unreasonable” standard of review. Although we decline to

adopt the deferential standard of review put forth by the Court of Special Appeals, we

affirm that court’s ultimate affirmance of the circuit court’s determination that the evidence

of the interview was not material to the trial, and thus that there was not a Brady violation

in this case.

I.

Facts and Procedural History

The State’s case against Petitioner was long and complex, with testimony from

thirty-five witnesses and over 400 exhibits. One of the State’s witnesses at trial, Victoria

Kuria, had been dating one of the other suspects, Roger Garcia, at the time of the murders.

2 Officers took Roger1 into custody for his suspected involvement in the murders on or

around June 16, 2017. Several days later Ms. Kuria moved in with Roger’s family at their

trailer home after leaving her mother’s and stepfather’s house as a result of an argument.

Ms. Kuria’s First Interview

Ms. Kuria first met with the police on June 29, 2017, after being taken into custody

for driving without a license. She spoke with Detective Frank Springer in a recorded

interview at the police station. Ms. Kuria explained that on the day of the murders she had

gone to Roger’s home after finishing her shift at work. When she arrived at the trailer,

present were Roger, his father, and a friend of Roger known as Joker. She told Detective

Springer that she had intercourse with Roger and then took a nap in his bedroom from

approximately 9:30 to 10:20 p.m. When she awoke, Roger, his father, and Joker were still

in the trailer. She left shortly thereafter to return home before her midnight curfew. She

admitted that she was under the influence of drugs that night but did not provide exact

details. Ms. Kuria repeatedly stated that she did not know anything about the murders and

had not overheard anything being discussed in that regard.

Detective Springer indicated many times throughout the course of the forty-minute

interview that, although he sympathized with the difficult position Ms. Kuria was in, he

believed that she was lying and told her that he had “good information” that she knew

something about the case. Detective Springer repeatedly stated that he did not believe that

1 Much of the trial testimony referred to the victims and alleged co-conspirators by their first names. When warranted to avoid confusion, we will do the same throughout this opinion. 3 she was involved in the murders and she was not yet in any trouble, but warned her that

lying to the police was a crime:

I’m not trying to come across as threatening, but when you lie to the police, that’s a crime. You can’t . . . lie to the police. Because if it’s a provable lie that we know that you’re lying, that can be a problem . . . for you obviously. And you have a job. You know, you have a baby on the way, probably, possibly. There are things that are important for you to consider. . . . So I’m trying to stress to you that the better route to go is to be truthful, and then we can work with that. . . . You see what I’m saying? I can’t impress that upon you enough.

Detective Springer indicated that he thought Ms. Kuria was lying in order to protect

Roger, in part because she may have been pregnant at the time, but that by doing so she

was creating a problem for herself down the road. Detective Springer also stated that it

was a “pivotal moment” for her and suggested that she take a polygraph examination. At

this point in the interview Ms. Kuria became visibly distressed. She declined Detective

Springer’s request to take a polygraph exam and asked to speak with a lawyer.

Detective Springer then explained to Ms. Kuria that she was not under arrest, but

she could be brought before a grand jury where thirty people would ask her questions about

what she witnessed on the night of the murders. He said that she would not be allowed to

have a lawyer in the room and if she lied to the grand jury she could be charged with

perjury. Detective Springer stated that there was already an outstanding subpoena for her

to testify before a grand jury, but that he had declined to serve it on her because he wanted

a chance to interview her one-on-one instead. He told her that based on the information

that the State’s attorney had, and the fact that she was not disclosing what he believed she

4 actually knew about the night of the murders, the prosecutor was likely going to reissue the

subpoena.

At the end of the interview, Detective Springer asked Ms. Kuria if she had ever seen

any guns in Roger’s trailer; she responded that she had not. Finally, Detective Springer

asked her if she knew Petitioner. She replied that she had “seen him before,” but did not

know him well.

The Undisclosed Interview with the Bells

On October 10, 2017, more than three months after Ms. Kuria’s first contact with

the police, Detective Springer and Detective Gwynn went to the home of Ms. Kuria’s

mother and stepfather, Mr. and Mrs. Bell, attempting to locate Ms. Kuria. The detectives

spoke with the Bells in a recorded interview. Detective Springer stated that he thought the

Bells had “spoken with the police before about this issue with like [Ms. Kuria] had a

boyfriend [i.e., Roger Garcia] a little while ago,” which Mrs. Bell confirmed.2 When the

detectives asked the Bells about Ms. Kuria’s current living situation, Mrs. Bell indicated

that Ms. Kuria had moved out of Roger’s trailer, and that she may have been staying with

a prior boyfriend named Mitchell at the time.

2 Petitioner argues that because the State never provided him with information regarding any interactions between the Bells and the police prior to October 10, 2017, this statement indicates the possible existence of another Brady violation. Petitioner bears the burdens of production and persuasion with respect to his Brady claim. See Yearby v. State, 414 Md. 708, 720 (2010). He failed to produce enough evidence to substantiate the existence of any such other potential violation. In any event, that argument was not put forth below and is accordingly not preserved for review by this Court. See Md. Rule 8- 131. 5 Mrs. Bell explained to the detectives that she had met with Ms. Kuria a few days

prior and that she had seemed depressed and had stopped taking her medication. Mrs. Bell

also told the detectives that the week before, Mitchell called her “and said Vicki was trying

to kill herself or something like that. She wanted to throw herself out the window.” The

detectives indicated that they would try to follow up with Mitchell and confirmed with

Mrs. Bell that they had the correct phone number for Ms. Kuria. The detectives also

inquired about Ms. Kuria’s friends and whether the Bells “had ever heard the name Ashley

Foogle . . . [b]ecause [they] were told she might have a friend with that name.” Mr. Bell

responded that he had not.3

When Detective Springer stated that they were investigating the murders of Shadi

Najjar and Artem Ziberov, Mr. Bell said: “[Vicki] knows about that, she knows about that.

She said she knew who did it . . . .” Mr. Bell then asked Mrs. Bell if she remembered Ms.

Kuria saying that. Mrs. Bell replied: “No, Vicki . . . said she didn’t know” who committed

the murders. Detective Springer explained that he believed Ms. Kuria had lied to him in

her first interview and that she knew more than she had previously disclosed because “she

felt allegiance to [Roger] and wanted to protect him.” Detective Springer stated that “when

you have information in a case and you lie to the police about it, that can turn into a crime

3 Ms. Foogle’s name appears only once in the record. The nature of Ms. Kuria’s relationship with Ms. Foogle, if any, is unknown. Ms. Foogle was never called to testify at trial, and there is no indication in the record of her involvement in this case or the underlying events. We will, however, address Petitioner’s argument that the undisclosed interview with the Bells deprived him of the opportunity to question Ms. Foogle. 6 for you.” He said that based on the other evidence in the case, including phone records,

“we now know that Vicki was lying to us.”

Detective Springer explained to the Bells that “now that she’s no longer with

[Roger], [they were] trying to reach out to her” “to kind of give her a second chance” and

“see if she’ll do the right thing and be truthful with us.” When Mrs. Bell asked if Ms. Kuria

was in trouble, Detective Springer said:

She’s not in trouble, the problem is, because she’s lied to us and we can prove it now, that could be an issue for her and I’m trying to make it so that it’s not an issue for her. . . . But in order for that to happen, I need her to come in and talk to me and tell me the truth.

At various points during the interview, Mr. Bell also expressed a desire that Ms. Kuria

cooperate with the police and told the officers to do their job and not to give her any

“breaks.”

The State did not provide Petitioner with the recording or transcript of the interview

with the Bells until after trial. The late disclosure of that evidence is the foundation of

Petitioner’s Brady claim and his motion for a new trial.

Ms. Kuria’s Second Interview

On October 11, 2017, the day after the undisclosed interview with the Bells,

Detective Springer and Detective Gwynn interviewed Ms. Kuria a second time. At the

outset of the interview, Detective Springer again expressed sympathy for the position that

Ms. Kuria was in but stated that, although she was not under arrest, it was important that

she be honest and tell the detectives everything that she knew. Ms. Kuria began to cry and

7 explained why she had lied about not knowing anything regarding the murders during her

first interview:

I never thought I would ever find myself in a position where I would be lying to an officer, but in that moment I was scared out of my mind because I didn’t know what to do and on top of that, at the time, I was living with [Roger’s family] and just seeing how they carried themselves and, you know, making my own judgments. . . . I knew that if I were to say anything, that I would be putting my own life after this, that’s the only thing that kept on going through my head is, what if they do what they did to those boys to me, too.4

Ms. Kuria also indicated that early on, despite her fear, she did not want to believe that

Roger was capable of committing the murders.

Ms. Kuria explained that since her first interview, Roger’s family had “kicked her

out” of the trailer. She said that they did so because they saw her name on a discovery list

indicating that she had given a written witness statement, even though she had never done

so. At that point in time she became homeless and either stayed with friends or slept in her

car. She also explained that she was no longer in a relationship with Roger.

Ms. Kuria stated that while she had been trying not to think about what had

happened on the night of the murders, that approach had not been successful for her “in the

4 As the trial judge noted, this fear of retribution may have been well-founded. During trial, the prosecution informed the judge at a bench conference that Petitioner’s wife was present and was seen using her cell phone to take a picture of Ms. Kuria while she was on the stand. When the judge asked Petitioner’s wife about the incident at the bench, she initially denied doing so. After the judge asked her to show counsel and the court the pictures on her phone, she admitted that she took a picture of Ms. Kuria. At a later bench conference, the prosecution informed the judge that Petitioner’s wife was also overheard making threatening statements about Ms. Kuria. The judge ultimately confiscated her cell phone and banned her from the courtroom for the remainder of the trial. 8 past couple [of] months at all. I’ve done nothing but just cry and feel empty inside and I’m

not going to lie, [there have] been times [when] I’ve tried to commit suicide because I just

. . . felt so lost I didn’t know what to do.” Ms. Kuria said that she did not “mind helping

[the detectives] because it’s the right thing to do and honestly, I am tired of feeling like I’m

dead inside because I’m carrying something so heavy with me.” At the end of the second

interview, Ms. Kuria again began to cry and asked not to be involved in the case, as she

feared that there would be retribution against her. She also apologized to Detective

Springer for lying to him during their first interaction.

During this second interview, Ms. Kuria provided a different account of what she

witnessed on the night of the murders. She again explained that she had gone to Roger’s

trailer after work. This time she said that she smoked marijuana with Roger prior to having

intercourse, and that smoking makes her “sleepy.” She then fell asleep at approximately

7:00 p.m. She told the detectives that at that point there were four men in the room: Roger,

Edgar, Joker, and a large Hispanic man she did not know. When she awoke from her nap

shortly before 9:30 p.m., Petitioner and two African American men she also did not

recognize were in the room, in addition to the four men who were present when she fell

asleep. Several of the men were crowded around a cell phone. She then heard someone

say “something court” in the context of an address, and also heard “Montgomery Village

Avenue,” “East Montgomery Village Avenue,” or “East Village Avenue.”5

5 East Village Avenue and Montgomery Village Avenue are both located near Gallery Court, where the murders took place. When Ms. Kuria learned from the news the 9 Ms. Kuria told the detectives that she had a “sickening feeling” about whatever was

happening in the trailer, so she quickly gathered her things and left as soon as she could.

As she was telling Roger that she had to leave he was changing into “a blacked-out hoodie.”

She also saw him grab a black semiautomatic pistol, which she had not previously seen,

from the nightstand next to the bed. Ms. Kuria said that on her way out she glanced over

at the phone that the men were crowded around and saw that it was displaying a map. She

stated that the large Hispanic man was holding the phone and “moving [the map] around

to look at all the roads” as the other men looked on.

When Ms. Kuria was leaving the trailer around 9:30 p.m., she noticed a silver SUV

parked outside that she had previously seen in the neighborhood but was not normally

there. She explained that Roger did not respond to her text messages that night after she

returned home, and that in the following days he provided conflicting accounts of what he

had been doing that night after she left the trailer. Ms. Kuria stated that prior to his arrest,

Roger told her “whatever you do, don’t ask me why, but whatever you do, if anyone asks

you any questions, say you left my house at like 10:20, 10:30,” because “if you say that,

you know, it only gives me 10 minutes.” Ms. Kuria told the detectives that Roger gave her

the impression that if she did not lie to the police for him about what she witnessed, she

would be “a dead woman walking.” At this point during the interview, Ms. Kuria again

became emotional.

following morning where the murders occurred, she was convinced that the night before one of the statements that she had overheard was “Gallery Court.” 10 The detectives questioned Ms. Kuria about whether she had confided in anyone

regarding what she had witnessed that night. She told the detectives that she had spoken

with her mother about Roger, “but [she] didn’t tell her everything.” She also confided in

a former boyfriend named Diego, telling the detectives that: “I didn’t tell him too much,

but I would tell him enough to try to make sense of it.” She told Diego that she thought

the men in the trailer that night may have committed the murders.

Finally, Ms. Kuria told the detectives that prior to her first interview with Detective

Springer, she had spoken with Jasmine Jones, her coworker at the time. Ms. Kuria said

that she had gone through “step-by-step” what she had witnessed that night while Ms. Jones

was taking notes. Ms. Kuria indicated that she had told Ms. Jones essentially the same

version of events of that night that she was then recounting to the detectives. She stated

that “Jasmine was the person that [she], literally, told everything to.” Ms. Kuria also

repeatedly told the detectives that after speaking with Ms. Jones, she was “paranoid” that

she was going to be killed for confiding in Ms. Jones.

During the interview, Detective Springer acknowledged that he had previously

spoken with Mrs. Bell and told her that they “wanted to give [Ms. Kuria] another chance

because we’ve learned a whole lot more and we don’t really have to do this.” Ms. Kuria

also indicated to the detectives that Mrs. Bell had spoken with her the night before. Mrs.

Bell shared with her some of the substance of what the detectives had discussed with the

Bells during their interview in relation to why Ms. Kuria had moved out of the trailer.

11 When the detectives asked how well Ms. Kuria knew Petitioner, she stated that she

had seen him three or four times. She also said that she immediately recognized Petitioner

upon seeing his picture posted online when he was first accused of committing the murders.

This time she also admitted to having seen Petitioner take out a silver and black pistol and

place it on a table in the trailer on previous occasions.

At the time of the second interview, Ms. Kuria was still homeless and living out of

her car. When the detectives asked if she lived with a man named Mitchell, she responded

that she did not but that she sometimes stayed with him. Shortly after the second interview,

the Montgomery County State’s Attorney’s Office paid for Ms. Kuria to stay at a hotel for

a few weeks and then paid the security deposit and first month’s rent for an apartment for

her.

The Bench Trial

When Ms. Kuria testified at trial, she recounted a version of the events of the night

of the murders that was substantially the same as the one she provided in her second

interview with Detectives Springer and Gwynn. Her trial testimony differed from her

explanation during her second interview in that at trial she testified that she left Roger’s

trailer at around 9:00 p.m., not 9:30 p.m., she identified Rony Galicia as the large Hispanic

man she had seen at Roger’s trailer on the night of the murders,6 and she said that she had

not seen the silver vehicle that was parked outside the trailer prior to that night.

6 After her second police interview, Ms. Kuria identified Rony from a set of police photographs. She testified at trial that she had learned his name after living at Roger’s 12 The State asked Ms. Kuria on direct examination whether she told the truth to

Detective Springer during her first interview. She answered that she did not because “[a]t

the time I was in doubt and did not believe that someone I thought I knew would commit

such a crime and I was scared.” She also testified on re-direct that the reason she declined

Detective Springer’s request to take a polygraph exam during her initial interview was that

she was lying at the time. When asked why she told the truth during the second interview,

she responded that “I felt like I was losing my senses. I didn’t feel okay with myself. I

felt like I was battling a fight between myself and I wanted to do the right thing for once in

my life.”

During her lengthy cross-examination, defense counsel repeatedly attempted to

establish that Ms. Kuria was biased towards the State based either on a threat of prosecution

for lying to the police, or on some sort of deal whereby the State would not prosecute her

and would drop her other outstanding driving-related charges. Defense counsel asked if

she was “being paid by the prosecutors or the police office right now” or “at any time.”

Ms. Kuria acknowledged that the State’s Attorney’s Office had paid for her to live in a

hotel for a period of time, and that they then paid for the security deposit and first month’s

rent for her apartment. However, she did not state that she was otherwise being paid or

offered a benefit by the State for her testimony. Ms. Kuria also denied the existence of any

trailer. Following Ms. Kuria’s identification of Rony, the detectives collected a DNA sample from him. 13 deal with the State to drop her driving-related charges, and she indicated that the

arrangements for her accommodations were discussed only after her second interview.

Defense counsel also read at length from the transcript of the first interview,

identifying with Ms. Kuria each statement that she made that was a lie. Ms. Kuria agreed

with defense counsel that she had lied at least seventeen times to Detective Springer during

her first interview. Ms. Kuria also explained on cross-examination that she was in contact

with the detectives prior to the second interview after the police had spoken to her mother.

Detective Springer also testified at trial. When asked about how he had located Ms.

Kuria prior to her second interview, he said that “I tried a few different ways, but eventually

I found where her mother lived. I went and I spoke to her mother and asked if she could

assist me in finding her.” Detective Springer said that when Ms. Kuria spoke on the phone

with him the next day she “was crying . . . scared . . . [and] apologetic.” When asked if he

had ever “during that interview or at any time speaking with her, [made] any promises to

her regarding any court case,” Detective Springer responded that he had not. He also

denied knowledge of any details of Ms. Kuria being charged with driving under the

influence. Defense counsel did not cross-examine Detective Springer.

The State also called Jasmine Jones, Ms. Kuria’s former coworker. Ms. Jones

testified that approximately a week after the murders—several weeks prior to Ms. Kuria’s

first police interview—Ms. Kuria had met with her to discuss what she had witnessed on

the night of the murders. Ms. Jones stated that Ms. Kuria had called her, indicating that

she was scared and wanted to come to her house to talk. When she arrived, Ms. Kuria told

14 Ms. Jones that “she was dating someone who she [thought] might be involved in the

[murders].” According to Ms. Jones, Ms. Kuria was considering going to the police, but

she was fearful of retribution.

Ms. Kuria told Ms. Jones that on that night, when she awoke from her nap, Roger,

Edgar, and Edgar’s “best friend”7 were in the room along with some other men she did not

know. She told Ms. Jones that she “heard some conversations going on that made her feel

really uncomfortable.” Ms. Jones also said that within ten minutes of Ms. Kuria’s arrival

at her house, Ms. Kuria was crying “hysterically.” Ms. Jones testified that she later

informed the police that she thought Ms. Kuria was in danger and asked them to contact

her. Defense counsel objected to the admissibility of Ms. Jones’ testimony. However, the

circuit court admitted her testimony under the prior consistent statement exception to the

hearsay rule. See Md. Rule 5-802.1(b).

Detective Paula Hamill, the co-lead investigator on the case along with Detective

Springer, testified that Jasmine Jones had reached out to the police in June of 2017 and that

Ms. Jones’ message was relayed to her via email on June 23. Thereafter—still prior to Ms.

Kuria’s first interview but after she had moved into Roger’s trailer—Detective Hamill

attempted to contact Ms. Kuria. Detective Hamill testified that on June 24, 2017, five days

before Ms. Kuria’s first interview, several detectives went to the Bells’ home in order to

speak with Ms. Kuria. According to Detective Hamill, Ms. Kuria’s stepfather said that Ms.

7 Based on the record, it is possible that this refers to Petitioner. The State also proffered evidence tending to show that Edgar and Petitioner were close friends of Rony. 15 Kuria did not live there and that he did not know how to get in touch with her. Following

that interaction, Ms. Kuria’s mother called the detectives in order to provide them with

more information. Finally, Detective Hamill testified on cross-examination that Ms. Kuria

never received any money on behalf of the Montgomery County Police Department.

In addition to all of the testimony by and in relation to Ms. Kuria, the State

introduced other circumstantial evidence inculpating Petitioner and his alleged co-

conspirators, including Snapchat records showing the following. Roger became Snapchat

friends with Shadi Najjar, one of the victims, on May 31, 2017. On June 5, 2017, the day

of the murders, Shadi posted a picture of one of his graduation tickets on Snapchat,

advertising it for sale to his Snapchat friends. Roger sent a message to Shadi at 8:16 p.m.

that evening asking if the ticket was still available. Shadi responded that it was and asked

where Roger wanted to meet. Roger directed him to “East Village” and Gallery Court,

which is a cul-de-sac located off of East Village Avenue, but did not provide a street

address. At 10:00 p.m. Shadi indicated that he was there and later said that he was parked

“by a random house.” At 10:25 p.m. Roger asked “what color is your whip”?8 In the final

message sent by Shadi to Roger, approximately four and a half minutes before the murders,

Shadi responded that his car was blue.

The State also introduced cell tower data showing that on the night of June 5, 2017,

Petitioner traveled from the area of his parent’s house towards Roger’s trailer between 9:00

and 9:30 p.m. The cell tower data also showed that Petitioner, Edgar, and Roger were in

8 There was testimony at trial that “whip” is often used in relation to a vehicle. 16 the vicinity of the trailer prior to 10 p.m. that night. At 10:11 and 10:22 p.m., Petitioner

was identified as moving east of the trailer towards Gallery Court. At approximately 10:32

p.m., two minutes after the murders were committed, Roger was located in the vicinity of

Gallery Court. Finally, the data showed that Petitioner was back at or near the trailer by

10:44 p.m.

A resident of Gallery Court who lived close to where Shadi’s car was parked

testified that he heard what sounded like firecrackers at approximately 10:30 p.m. on the

night of the murders. The resident had security camera footage from that night, which the

State played at trial, wherein a hail of gunfire can be heard starting two seconds before

10:30 p.m. and lasting for approximately seven seconds. A neighbor from an adjoining

street testified that he heard multiple gunshots and approximately two minutes later saw a

silver or beige minivan or SUV “rushing” through Gallery Court. He said that the driver

had black hair and may have been Hispanic.

Officers recovered at least thirty shell casings from the crime scene. The casings

were from bullets of .40, .45, and 9-millimeter calibers. The State’s expert in tool mark

identification, Detective Grant Lee, analyzed the casings in order to determine which

casings had been fired from the same weapons. Based on Detective Lee’s testimony, the

casings were fired from one .40 caliber gun, one .45 caliber gun, and either one or two 9-

millimeter guns. He identified the .40 caliber casings as Smith and Wesson, Blazer Brass

brand. The State’s DNA analyst also identified Rony’s DNA on some of the .45 caliber

shell casings found at the scene.

17 During their investigation, officers searched the residences of the four suspected co-

conspirators and recovered ammunition and other firearm paraphernalia, but never located

any weapons. Detectives recovered a gunlock from Petitioner’s residence. The officers

who searched Roger’s residence found an empty handgun magazine and a box of

Winchester .40 caliber Smith and Wesson cartridges inside the trailer, in addition to a

single live round recovered outside of the trailer. Detective Lee examined the live round

and testified that it was a .380 caliber round that had been cycled through one of the 9-

millimeter weapons used at the crime scene—meaning that it had been loaded into the gun

and then unloaded. He explained that a 9-millimeter handgun is likely capable of firing a

single .380 caliber round, but that after one round it would likely malfunction.

Luz DaSilva, a former girlfriend of Edgar Garcia-Gaona, one of the four suspects,

also testified on behalf of the State. She explained that she lived with Edgar in June of

2017. She testified that, at that time, Roger, Rony, and Edgar did not have vehicles, but

Petitioner owned a vehicle which she confirmed to be the silver Saturn Vue depicted in

several of the State’s exhibits. Ms. DaSilva testified that around midnight on June 5, 2017,

she saw Edgar exiting Petitioner’s car outside their home. The next day Edgar was acting

“jittery” and “weird” and became “nervous” as he was watching news reports on the

murders.

Ms. DaSilva also testified that she later observed Petitioner hand over a box of

bullets to Edgar while he was visiting, saying that “it was too hot outside.” Ms. DaSilva

understood this statement to relate to the police. She said that the bullets were placed

18 behind the television at their residence. Ms. DaSilva then called the police because she

“wanted to do the right thing.” Officers later recovered a box of .40 caliber Blazer Brass

brand ammunition from behind a television at Edgar’s residence. Officers were able to lift

what was later determined to be Petitioner’s fingerprint from that box of ammunition.

Ms. DaSilva also testified that she had previously seen Edgar with a Springfield

brand 9-millimeter handgun. She said that he had purchased the gun in May or June of

2017, prior to the murders. On cross-examination she correctly identified that type of

weapon when shown a photograph. Finally, Ms. DaSilva testified that Edgar often sold

drugs from outside of Roger’s trailer and that Petitioner was at the trailer “all the time

basically.”

The State also produced evidence regarding an incident in December of 2016 during

which Shadi allegedly stole marijuana from Petitioner’s wife and ran over her foot with his

car. The body camera footage of several responding officers shows Petitioner on the scene.

Petitioner provided one of the officers with a description of the driver of the vehicle that

tended to match Shadi, as well as a description of the vehicle tending to match Shadi’s car,

but did not provide the officers with Shadi’s name. Petitioner said that he was able to see

the driver from inside the house he was visiting at the time. While at the hospital,

Petitioner’s wife indicated to a detective that she did not want the police to perform an

investigation. The State further showed that immediately following the incident, Petitioner

attempted to call Shadi’s cell phone six times. Shadi’s phone records also showed that he

was located at the scene at the time of the incident.

19 In June of 2017, Detective Hamill interviewed Petitioner upon being taken into

custody for his suspected involvement in the murders of Shadi and Artem. When Detective

Hamill questioned Petitioner about the December 2016 incident he repeatedly denied

knowledge of any details, saying that his wife “just had an accident, that’s all I know.”

Petitioner also denied being in the area at the time and said that he only found out about it

when his wife called him while he was at work.

The State also called Eugene Illarionov, one of Shadi’s friends. Mr. Illarionov

testified that several months before the murders Shadi told him that he had stolen some

marijuana and “might have run over the drug dealer’s wife’s foot.” During the

investigation of the murders, the State also interviewed Shadi’s girlfriend, Hanan Saif. In

a recording of that interview, played at trial at the request of Petitioner’s counsel, Ms. Saif

describes an incident that Shadi had told her about in which he stole marijuana from a drug

dealer’s “girlfriend.” She said that he had expressed fear of retribution following the

incident. Ms. Saif also told the detectives that prior to 10 p.m. on the night of the murders,

Shadi had texted her saying that he was going to sell a graduation ticket to Roger Garcia.

The State also produced evidence recovered from Petitioner’s cell phone, including

a photograph of a silver and black pistol that was taken on May 23, 2017, several weeks

prior to the murders. At 5:55 a.m. on the morning following the murders, internet browsing

history records show that Petitioner began viewing news articles reporting on the murders,

which he continued to do over the course of the next few days. He also searched for Shadi’s

full name five times between 4:40 p.m. on June 6, 2017 and 12:38 a.m. the next day. Then,

20 on June 10, Petitioner searched for “[I] kill for my family rap songs.” Finally, the State

showed that Petitioner had deleted his call and text message history from prior to June 5,

2017.

The defense called three witnesses in total, with one testifying out of order during

the State’s case. The State did not offer a rebuttal case. During closing argument, the State

focused largely on the circumstantial and forensic evidence presented at trial in arguing

that Petitioner and his alleged co-conspirators had committed the murders. The entirety of

the prosecutor’s discussion of Ms. Kuria’s testimony was as follows:

And [the cell tower and Snapchat record evidence is] consistent with what Victoria [is] telling us about then she sees these four plus two other people that we don’t know who they are, standing around a phone. And she hears East Village and Court. And what do we have after [Petitioner] has arrived at 9:26 at the trailer? We have [in Roger’s Snapchat messages to Shadi] East Village at 9:37 and we’ve got [Gallery] Court at 9:46. They’re in this [S]napchat conversation.

So, she’s actually hearing the words of the planning that go towards where they’re going to lure these guys to.

***

And Victoria sees a gray SUVish type car parked in the trailer that night.

And that brings me to Victoria. She sees that car. She sees -- she hears the conversation she hears. But also, what’s really important about her testimony is she sees a gun that night that she’s never seen before, and she also says that she [has] seen the defendant with a gun. And she describes it as a black and silver gun. And what happens to be a black and silver gun, but this photograph that we see that’s on the defendant’s cell phone taken in Detective Miglianti’s opinion, on May 23rd.

21 So, this is all -- all of these pieces of evidence are consistent with the defendant having a gun on May 23rd that’s silver and black. The same description given by Victoria and he takes a picture of it that’s then erased from his phone.

In rendering the verdict, the court credited Ms. Kuria’s trial testimony. The court

noted that she had “a very strong motive . . . not to say anything” based upon her “personal

safety,” and found that she did not provide her testimony for financial gain. The court also

credited and relied upon the testimony of Ms. DaSilva, Edgar’s former girlfriend, and

found that the circumstantial evidence corroborated both of their stories and indicated that

Petitioner had planned to kill Shadi in revenge for the incident with his wife.

The court found that on the night of the murders, Petitioner, Roger, Edgar, and Rony

lured Shadi to Gallery Court in Montgomery Village, ostensibly to sell a graduation ticket

to Roger. Once Shadi was there, the four men traveled from Roger’s trailer to that location.

The men drove past Shadi’s car, with Artem Ziberov, the second murder victim, clearly

visible in the front seat. The men turned around at the cul-de-sac and drove back towards

Shadi’s vehicle, providing enough time for them to premeditate the murder of Artem. The

four men surrounded Shadi’s car and fired at least thirty rounds at the decedents, with

Petitioner firing three .40 caliber rounds into Shadi’s face and neck from point blank range.

Artem was also shot ten times.

The court further found that Petitioner then took Shadi’s phone, which was never

recovered, from inside the car in order to erase the evidence of the conversations from that

night. Following the murders, the four men disposed of the weapons and Petitioner erased

information from his phone and relocated bullets from his home to Edgar’s residence in

22 order to hide that evidence from the police. Finally, the court found that Petitioner’s search

for “[I] kill for my family rap songs” “says it all about this defendant’s motive, intent, and

actions on June 5th, 2017.”

The court then convicted Petitioner of two counts of first-degree murder, conspiracy

to commit first-degree murder, armed robbery, and four counts of use of a firearm in the

commission of a felony.

The Motion for New Trial and Sentencing Hearing

After the bench trial but prior to the sentencing hearing, the State informed defense

counsel of the recording of the interview with the Bells on the day prior to Ms. Kuria’s

second interview. Petitioner, by way of new counsel, filed a motion for a new trial based

on that newly discovered evidence.

Petitioner argued that the recording revealed that Ms. Kuria had told her mother that

she did not know who committed the murders, tending to corroborate her statements made

during her first interview with the police. Petitioner also argued that the timing of the

threats conveyed to the Bells was compelling because Ms. Kuria came in for the second

interview the very next day. Petitioner’s counsel asked the court to draw an inference that

the Bells conveyed a threat to Ms. Kuria on behalf of the police, but counsel admitted to

the court that the interview only served as circumstantial evidence of the possible existence

of such a threat or an agreement not to prosecute her in exchange for favorable testimony.

23 The court considered the motion for new trial at the sentencing hearing.9 The court

concluded that the recording of the detectives’ interview with the Bells did not present any

new relevant information and that it was cumulative at best. The court noted that it was

established at trial that the police had met with Ms. Kuria’s mother prior to her second

interview, and Detective Springer made similar threats of prosecution for lying to the police

to Ms. Kuria during her first interview. The court did not find that the transcript of the

interview with the Bells revealed any express threat of prosecution or a deal in exchange

for Ms. Kuria to testify in a biased manner towards the State. The court also found that if

Ms. Kuria had told her mother that she did not know who had committed the murders, that

likely would have been true, given that Ms. Kuria was not alleged to be at the scene of the

crime.

9 At the hearing, Petitioner’s new counsel offered an affidavit signed by Petitioner’s lead trial counsel the day before stating that had she known about the undisclosed interview prior to trial, she would not have advised Petitioner to waive a jury trial. The court accepted the affidavit as an exhibit with the comment that the court would “listen to both sides about whether or not it’s relevant to the issue of materiality.” Petitioner’s new counsel only mentioned the affidavit in closing and stated that the undisclosed interview of the Bells deprived the defense of the necessary “tools in their toolbox to put up a good defense,” including “the decision about whether to go with a judge trial, or [a] jury trial.” There was no further mention from either party or the court concerning the substance of the hypothetical advice to Petitioner to proceed with a jury trial. On appeal to the Court of Special Appeals, Petitioner’s counsel did not raise, much less argue, the notion that trial counsel’s hypothetical advice was grist for a Brady claim. Petitioner then retained new counsel for representation before this Court. Much like the hearing on the motion for new trial, counsel briefly referenced, but did not otherwise argue, that the nondisclosure of the interview with the Bells prevented trial counsel from advising Petitioner to proceed with a jury trial. Given that throughout the post-trial activity in this case Petitioner has devoted little to no written or oral argument on this hypothetical advice, we can detect no reason to entertain the issue. 24 The court further noted that Jasmine Jones’ testimony established that Ms. Kuria

had made a prior consistent statement, and thereby undermined Petitioner’s argument that

the interview with the Bells provided Ms. Kuria with a new motive to fabricate a different

version of the events she witnessed that night. The court also credited Ms. Kuria’s

testimony that the reason that she lied to Detective Springer during the first interview was

that she was in a relationship with Roger and living with his family at the time, and she

feared “retribution would be brought down on her if she were to tell the police what she

knew.” The court also found that even if it were to disregard all of Ms. Kuria’s testimony,

there would still be “an overwhelming case of evidence against the defendant.” The court

then denied the motion, concluding that the recording was not material as it would not have

affected the outcome of the trial. After denying the motion, the court heard several

statements from family and friends of the victims, and proceeded to sentencing. The court

then sentenced Petitioner to two consecutive life terms, plus forty years, without the

possibility of parole.

Proceedings in the Court of Special Appeals

Petitioner appealed the denial of his motion for new trial to the Court of Special

Appeals, which affirmed the circuit court’s ruling in a reported opinion. Canales-Yanez v.

State, 244 Md. App. 285 (2020). The Court of Special Appeals gave considerable weight

to the fact that Petitioner elected a bench trial rather than a jury trial. Id. at 300–04. The

court reasoned that, because in this case the trial judge had acted as the factfinder, the judge

was uniquely well-situated in ruling on the motion for new trial and determining whether

25 the newly discovered evidence would have affected his guilty verdict. Id. at 300. The

Court of Special Appeals cited to several other states that have adopted a more deferential

standard of review of denials of motions for new trial following bench trials. Id. at 300–

02. Finding these out-of-state authorities to be persuasive, the court adopted a new

standard of review in Maryland for motions for new trial following bench trials under

which “a trial judge’s ‘no prejudice’ finding should only be set aside if it is patently

unreasonable.” Id. at 304. The Court of Special Appeals determined that the circuit court’s

ruling in this case, that the newly discovered evidence would not have altered the verdict,

was not patently unreasonable. Id. Therefore, it upheld the circuit court’s denial of

Petitioner’s motion for new trial. Id.

We granted certiorari to determine the proper standard of review of a trial court’s

determination, following a bench trial, as to the existence of a Brady violation, and whether

the circuit court’s finding that there was no such violation in this case was appropriate.10

10 Petitioner styled the questions as follows:

1. When a Brady violation occurs during a bench trial, is the test for materiality satisfied simply by the judge’s determination that his verdict would not have changed had the evidence not been suppressed unless such a conclusion would be patently unreasonable, without giving due consideration to the effect of the suppression of evidence on the defense[’s] case preparation and trial strategy? 2. Did the Court of Special Appeals err in finding that the Brady violation did not undermine confidence in the verdict?

The phrasing of both questions presupposes that a Brady violation has occurred, but the existence of a Brady violation is only determined after the trial court finds, inter alia, that the suppressed evidence was material. See Strickler v. Greene, 527 U.S. 263, 281 (1999). Given that the circuit court here found that the evidence was not material, it 26 II.

Standard of Review

We review a trial court’s denial of a motion for new trial based on newly discovered

evidence for abuse of discretion. Argyrou v. State, 349 Md. 587, 600 (1998). However,

this Court held in Ware v. State that we review de novo a trial court’s determination as to

the existence vel non of a Brady violation, as it presents a constitutional issue. See Ware

v. State, 348 Md. 19, 48 (1997). The de novo standard announced in Ware does not turn

on the fact that Ware involved a jury trial. The rule applies with equal force where the

motion for new trial follows a bench trial. Thus, the “patently unreasonable” standard

espoused by the Court of Special Appeals provides improper deference to the trial court,

and we decline to adopt it. Although several of our sister states allow greater deference to

trial courts in cases involving bench trials, e.g., Deville v. Commonwealth, 627 S.E.2d 530,

532 (Va. Ct. App. 2006), we reaffirm our precedent establishing the propriety of de novo

review in all cases as to trial court findings in relation to alleged Brady violations.

III.

Discussion

The Parties’ Contentions

According to Petitioner, the undisclosed police interview with the Bells creates an

inference that the Bells communicated a threat to Ms. Kuria, on behalf of the detectives,

necessarily also found that there was not a Brady violation. We affirm the circuit court’s ruling in both respects. 27 that she could be prosecuted for lying to the police. In turn, this threat induced Ms. Kuria

to change her testimony from the first interview in a manner that was beneficial to the

prosecution. Petitioner argues that this establishes bias towards the State, created either

through this threat or through a subsequent bargain not to prosecute Ms. Kuria and drop

her other outstanding charges, in exchange for favorable testimony. Petitioner contends

that evidence of bias is particularly powerful impeachment evidence, and thus the interview

with the Bells was critical information that the State should have disclosed to him prior to

trial. Petitioner also claims that had he known about the interview prior to trial, he would

have altered his trial strategy in several ways. Petitioner thus argues that the failure to

disclose this evidence constituted a violation of Brady v. Maryland, entitling him to a new

trial.

The State responds that the undisclosed evidence is merely cumulative of the other

evidence of Ms. Kuria’s alleged bias towards the State and her potential lack of credibility.

The State further contends that Petitioner failed to meet his burden of “closing the loop”

and affirmatively establishing the existence of a threat to Ms. Kuria or a deal between the

State and Ms. Kuria. Instead, Petitioner merely asked the circuit court, and now similarly

asks this Court, to infer such a threat or deal based on what the detectives said to the Bells

during the undisclosed interview. Moreover, the State takes issue with Petitioner’s

contention that Ms. Kuria was the key witness on behalf of the State, and points to the

substantial amount of other evidence the prosecution proffered at trial that not only

corroborated Ms. Kuria’s testimony, but independently established Petitioner’s guilt.

28 Finally, the State disputes whether the interview likely would have impacted Petitioner’s

defense strategy in the ways in which Petitioner claims. The State therefore contends that

the undisclosed evidence of the interview of the Bells was not material and the

nondisclosure did not run afoul of the dictates of Brady.

Analysis

“Brady v. Maryland and its progeny guarantee to a criminal defendant who stands

trial the right to receive material exculpatory and impeachment evidence in the possession

of the State.” Byrd v. State, 471 Md. 359, 372 (2020) (citing Brady v. Maryland, 373 U.S.

83 (1963); Giglio v. United States, 405 U.S. 150 (1972)). Evidence of bias towards one

party or the other, as Petitioner contends the interview with the Bells establishes in the case

sub judice, can constitute particularly impactful impeachment evidence under the right

circumstances. See Ware, 348 Md. at 50 (“Evidence of agreements or deals with witnesses

often provides powerful impeachment evidence against a witness and enables a defendant

to attack the motive or bias of a witness who might otherwise appear to have no motive to

falsify or color his testimony.”) (citing Giglio, 405 U.S. at 154–55) (other citation omitted).

In order to establish that the State has violated his due process rights under Brady v.

Maryland, Petitioner must establish: “(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.” Ware, 348 Md. at 38 (citations omitted).

29 At issue here is whether the evidence of the interview with the Bells was material. 11 The

Supreme Court has held that “evidence is material only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). This Court

has interpreted a “reasonable probability” within this context as meaning a substantial

possibility. See Yearby v. State, 414 Md. 708, 719 (2010) (citing State v. Thomas, 325 Md.

160, 190 (1992); Bowers v. State, 320 Md. 416, 426–27 (1990)).12

In Wilson v. State, this Court also identified several important factors in assessing

materiality within the context of suppressed impeachment evidence:

[1] the specificity of the defendant’s request for disclosure of materials; [2] the closeness of the case against the defendant and the cumulative weight of the other independent evidence of guilt; [3] the centrality of the particular witness to the State’s case; [4] the significance of the inducement to testify; [5] whether and to what extent the witness’s credibility is already in question; and [6] the prosecutorial emphasis on the witness’s credibility in closing arguments.

11 The Court of Special Appeals determined that Petitioner had established that the evidence would have been favorable to him and assumed without deciding that it had been suppressed or withheld. Canales-Yanez, 244 Md. App. at 298–99. Given our holding that the evidence was not material, we need not reach those two remaining elements. 12 The State relies instead upon the standard articulated in Maryland Rule 4-331(c), governing motions for new trial on the basis of newly discovered evidence. However, as Petitioner has put forth a constitutional claim pursuant to Brady, we evaluate the newly discovered evidence under that standard. See Diallo v. State, 413 Md. 678, 702–15 (2010) (analyzing the petitioner’s claim under Brady’s standard, notwithstanding that it was raised in the context of a Rule 4-331 motion for new trial). 30 Wilson v. State, 363 Md. 333, 352 (2001) (internal citations omitted). “Some of those

considerations may point in one direction, some in another. The ultimate determination of

materiality must arise from a composite, an amalgam, of them.” Harris v. State, 407 Md.

503, 524 (2009).

Based upon Brady’s materiality standard, and the Wilson factors, we affirm the

circuit court’s ruling that the suppressed evidence was not material, as there is not a

reasonable probability (or, put otherwise, a substantial possibility) that it would have

altered the outcome of the trial. However, we do not cabin this affirmance to the sole

ground that the trial judge indicated that the other circumstantial evidence presented by the

State at trial was overwhelming. Rather, after review of the Wilson factors, as well as

consideration of the potential impacts on defense counsel’s trial strategy, we find that there

is not a reasonable probability that the suppressed evidence would have had an effect on

the conviction of Petitioner.

A. The Wilson Factors

As an initial matter, the record before us is silent as to what material Petitioner

requested from the State during discovery, so the first Wilson factor is unavailing in this

case. As Petitioner bears the burden on his Brady claim, the inapplicability of the first

factor does not weigh in his favor. We next consider together the second and third Wilson

factors. Notwithstanding Petitioner’s claims to the contrary, Ms. Kuria’s testimony was

not central to the State’s theory of the case. As discussed above, she was one of thirty-five

witnesses called by the State, and there was significant circumstantial and forensic

31 evidence linking Petitioner and his co-conspirators to the crime that was not dependent

upon Ms. Kuria’s testimony. Additionally, given the cumulative weight of the State’s other

evidence, this was not a close case against Petitioner. Furthermore, the State placed only

minimal weight on Ms. Kuria’s testimony during closing argument. The prosecutor merely

stated that it was consistent with the other evidence proffered and noted that Ms. Kuria said

she saw a pistol at the trailer on the night of the murders that she had not seen before.

Notably, that pistol was not the weapon the State accused Petitioner of using in connection

with the murders.

Thus, on its face this case is unlike others where we have found undisclosed

impeachment evidence to be material where the witness at issue served a crucial role in

linking the defendant to the crime or in establishing a necessary element of the crime or

the sentence. See Wilson, 363 Md. at 353 (“In general, impeachment evidence has been

found to be material where the witness at issue ‘supplied the only evidence linking the

defendant(s) to the crime,’ . . . or where the likely impact on the witness’s credibility would

have undermined a critical element of the prosecution’s case.”) (citations omitted); Harris,

407 Md. at 524 (finding the undisclosed evidence to be material where the impeached

witness provided most of the incriminating evidence, including the only direct evidence of

what occurred at the scene of the crime, and the State’s case rested largely on the witness’

credibility); Conyers v. State, 367 Md. 571, 612 (2002) (finding the undisclosed evidence

to be material where the impeached witness was the key witness establishing the

32 defendant’s principalship in the murder—a necessary component of the death sentence the

defendant received).

Here, by contrast, Ms. Kuria’s testimony was not central to the State’s case in

linking Petitioner to the murders and, given the overwhelming cumulative weight of the

other incriminating evidence, Petitioner’s case was not a close one. Therefore, the second

and third Wilson factors weigh against materiality.

We next consider the fourth Wilson factor—the significance of Ms. Kuria’s

inducement to testify based upon the undisclosed interview. It is possible that after

Detectives Springer and Gwynn met with the Bells, one or both of the Bells conveyed to

Ms. Kuria that the police were threatening her with prosecution for lying during her first

interview. This set of facts would tend to support the fourth Wilson factor weighing in

favor of materiality. Petitioner also argues that if that did occur, it would help to explain

why Ms. Kuria was crying and was so apologetic when she spoke on the phone with

Detective Springer prior to her second interview.

We agree with Petitioner that it is reasonable to infer that the interview with the

Bells was at least a motivating factor as to why Ms. Kuria met with the police the next day.

However, based on the record it is also plausible, along with myriad other possibilities, that

Ms. Kuria was crying and apologetic and changed her story during the second interview

not because of a threat or deal, but for all of the reasons that she provided during that

interview and at trial—reasons credited by the circuit court in rendering its verdict as well

as denying the motion for new trial. As such, Petitioner did not establish that his proffered

33 version of events tending to establish bias towards the State actually occurred, as was his

burden. See Yearby, 414 Md. at 720.13

Moreover, the threats of prosecution during the first interview were already

established in the record—thereby lessening the relative significance of any possible

inducement as communicated solely by the Bells. Thus, even if Petitioner’s alleged version

of the conversation between the Bells and Ms. Kuria were substantially accurate, it would

not provide a new motive for Ms. Kuria’s supposed fabrication of what she witnessed on

the night of the murders. See Conyers, 367 Md. at 616–17 (Cathell, J., dissenting) (“The

purpose of the Brady holding (as applied in the impeachment context) is to insure that the

[factfinder] is made aware of the motive for fabrication on the part of the witness, not to

mandate that every nuance of the process from which the motive to fabricate originates be

remembered and/or disclosed.”). Therefore, the fourth Wilson factor does not weigh in

favor of Petitioner, and is at best neutral.

We turn next to the fifth Wilson factor—the extent to which Ms. Kuria was already

impeached. On cross-examination of Ms. Kuria, defense counsel brought out that the

13 We do not hereby suggest that a defendant alleging a Brady violation must affirmatively establish, to the exclusion of all other possibilities, that a threat or deal caused a witness to provide biased testimony. Here however, Petitioner’s argument rests on multiple layers of inferences. First, Petitioner asks us to infer that the Bells told Ms. Kuria that she should meet with the police and change her story if she wanted to avoid prosecution. Second, Petitioner asks us to infer that Ms. Kuria then lied to the police out of fear of prosecution, and in a manner that was conveniently consistent with the State’s other evidence against Petitioner. When viewed in light of the rest of Ms. Kuria’s testimony, and in conjunction with the remainder of the State’s case, these inferences are not strong enough to satisfy Petitioner’s burden. 34 State’s Attorney’s Office had paid for a hotel and the security deposit and first month’s

rent for an apartment for her, tending to show the possibility for bias. Furthermore,

Detective Springer repeatedly threatened Ms. Kuria with prosecution during her first

interview, and Ms. Kuria admitted on the stand that she had lied to the police during that

interview at least seventeen different times. Thus, the fifth factor weighs strongly against

a finding that the undisclosed evidence was material.

The potential for Ms. Kuria’s bias in favor of the State was laid bare on cross-

examination, and the newly discovered evidence of the interview with the Bells does not

change that fact. At best, it creates an inference that further substantiates defense counsel’s

theory that Ms. Kuria fabricated her testimony in acquiescence to the State—a theory

which the circuit court apparently rejected. However, it is clear from a review of the totality

of the State’s case that whatever the undisclosed evidence does to lend some level of

credence to that theory, it does nothing to undermine confidence in the verdict.

Finally, the prosecutor never discussed Ms. Kuria’s credibility during her closing

argument, so the sixth Wilson factor also weighs against a finding of materiality. On

balance then, the Wilson factors weigh firmly against materiality and indicate that the

pretrial disclosure of the recording of the interview of the Bells would not have had a

reasonable probability of affecting the outcome of the trial.

We also note, as did the circuit court, that the interview with the Bells revealed

relatively little new information, material or otherwise. It was established during Ms.

Kuria’s second interview and at trial that Detectives Springer and Gwynn had met with

35 Mrs. Bell the day prior to Ms. Kuria’s second interview. Thus, whether or not the timing

of the interview with the Bells was critical, as Petitioner contends, that information was

available to Petitioner prior to trial. Additionally, while the recording of the interview

revealed for the first time that the detectives indicated to the Bells that Ms. Kuria could be

prosecuted for lying, Detective Springer had made that fact abundantly clear to Ms. Kuria

during her first interview. Thus, even if the Bells did in fact convey that threat to Ms.

Kuria, as Petitioner asks us to infer, that was not new information to her and did not

constitute a new motive to revise her testimony. Finally, as discussed by the circuit court,

the fact that Ms. Kuria may have told her mother that she did not know who committed the

murders is consistent with the fact that at no point did Ms. Kuria or anyone else suggest

that she was present at Gallery Court when the murders were committed. It would also be

consistent with Ms. Kuria’s statement during her second interview that she spoke with Mrs.

Bell about Roger, “but [she] didn’t tell her everything.”

B. Purported Effects on Petitioner’s Trial Strategy

Petitioner also relies upon precedent suggesting that in determining the possible

effect of undisclosed evidence on a verdict, a reviewing court should also consider the

likely impacts on the defense’s trial strategy. Petitioner principally relies upon the

Supreme Court’s decision in United States v. Bagley. There, in the context of a

prosecutor’s failure to provide material that would have been responsive to a specific

request by the defense, the Court stated:

[T]he reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or

36 presentation of the defendant’s case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.

Bagley, 473 U.S. at 683.14 The Court in Bagley explained that the failure by the prosecution

to respond to a specific request is particularly prejudicial to the defense because it implies

that such evidence does not exist. 473 U.S. at 682–83. We note that Petitioner has not

identified a specific request for information made to the State which would encompass the

interview with the Bells. However, for the sake of argument, we will assume that such a

request was made, or at least that such a deficiency would not be fatal to Petitioner’s claim.

Petitioner argues that if he had known about the recording of the interview with the

Bells, he would have altered his trial strategy in several ways. Petitioner first contends that

the suppression of the interview with the Bells deprived him of the opportunity to question

the Bells. He also argues that it prevented him from questioning Ms. Kuria’s prior

boyfriend, Mitchell, as well as Ashley Foogle—both of whom were discussed during the

interview.15

14 See also Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1353 (11th Cir. 2011) (“In determining the impact of the State’s action in suppressing favorable evidence, courts should consider how the defense’s knowledge of the withheld information would have impacted not just the evidence presented at trial, but also the strategies, tactics, and defenses that the defense could have developed and presented to the trier of fact.”). 15 Based upon the record before us, it appears that Petitioner did not preserve these arguments in relation to Ms. Foogle and Mitchell. 37 Even assuming that merely alleging that the defense was deprived of questioning

witnesses without actually showing a court what information they would have provided

could alone satisfy the standard for materiality, it is difficult to see how any of these alleged

changes to Petitioner’s defense could have strengthened his ability to impeach Ms. Kuria

and thereby potentially alter the verdict. See United States v. Bowie, 198 F.3d 905, 911

(D.C. Cir. 1999) (“When the undisclosed Brady material consists of impeachment

evidence, a court seeking to determine the probable impact of the violation must form some

idea about how effectively the evidence could have been used in cross-examination.”). For

example, during the interview with the Bells, the detectives merely suggested that Ms.

Foogle might have been a friend of Ms. Kuria. At no point did Ms. Kuria indicate that she

had spoken with Ms. Foogle about what she witnessed on the night of the murders, or even

acknowledge that she knew Ms. Foogle for that matter. Thus, it is unclear on the record

before us how questioning her could go to anything aside from Ms. Kuria’s general

credibility. As previously discussed, Ms. Kuria was already heavily impeached.

We also question Petitioner’s claim that the undisclosed interview deprived him of

the opportunity to question the Bells and Mitchell. It was clear from the transcript of Ms.

Kuria’s second interview that the police had spoken with Mrs. Bell prior to the second

interview. Therefore, defense counsel could have questioned Mrs. Bell and discovered that

Mr. Bell was also involved in the conversation, to the extent that was relevant. Ms. Kuria

also discussed Mitchell, her previous boyfriend, during her second interview, and she

admitted to staying with him for a time after the murders. Therefore, the defense had

38 sufficient information to question both Mitchell and the Bells prior to trial regardless of the

undisclosed evidence.

Finally, Petitioner argues that the call that Mitchell made to Mrs. Bell about Ms.

Kuria wanting to “throw herself out the window” could have been used as evidence of

consciousness of guilt. However, Ms. Kuria discussed her state of mind on the stand, and

in the second interview she indicated to the detectives that she had attempted to commit

suicide several times. Furthermore, as Ms. Kuria was not alleged to be a co-conspirator, it

is unclear how her suicidal thoughts could be relevant for consciousness of guilt. The only

relevant crime of which Ms. Kuria could have been guilty at the time Mitchell made that

call would have been lying to the police during her first interview, see Md. Crim. Law § 9-

501, which undermines Petitioner’s argument that it was Ms. Kuria’s story during the first

interview that should be credited. Therefore, none of the alleged effects on Petitioner’s

trial strategy undermine confidence in the verdict.

IV.

Conclusion

Based upon our analysis of the Wilson factors, and consideration of the likely effects

on Petitioner’s defense strategy, we hold that the undisclosed evidence of the interview

with the Bells was not material to Petitioner’s case. It was almost entirely cumulative of

defense counsel’s theory at trial that Ms. Kuria was biased towards the prosecution.

Moreover, in light of the overwhelming other independent evidence of Petitioner’s guilt,

Ms. Kuria’s testimony was not central to the State’s case against Petitioner, and it was not

39 a close case. Defense counsel relied on Ms. Kuria’s testimony to a minimal extent during

closing argument and did not discuss her credibility. Although Petitioner has asked this

Court to draw inferences about what the Bells may have conveyed to Ms. Kuria following

their interview with the police, and then to infer how that may have affected Ms. Kuria’s

testimony, this is simply insufficient to satisfy his burdens of production and persuasion in

order to establish his entitlement to the relief he seeks.

In sum, most of the Wilson factors weigh against a finding of materiality, and

Petitioner has not established that any weigh in his favor. Additionally, the undisclosed

evidence did not meaningfully hamper Petitioner’s trial strategy. It follows that there is

not a reasonable probability that the undisclosed evidence would have affected Petitioner’s

guilty verdict. We thus hold that the nondisclosure of the interview with the Bells did not

constitute a violation of Brady v. Maryland. As there was no Brady violation, the trial

court did not abuse its discretion in denying Petitioner a new trial. Though we decline to

endorse the “patently unreasonable” standard of review adopted below, we affirm the

judgment of the Court of Special Appeals affirming the circuit court’s denial of Petitioner’s

motion for new trial.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.