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«UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1791 September Term, 2014 _ RICHARD WAYNE BOGER, SR. v. STATE OF MARYLAND _ Eyler, Deborah ...»

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UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1791

September Term, 2014

_____________________________________

RICHARD WAYNE BOGER, SR.

v.

STATE OF MARYLAND

_____________________________________

Eyler, Deborah S., Arthur, Kenney, James A., III (Retired, Specially Assigned), JJ.

_____________________________________

Opinion by Kenney, J.

_____________________________________

Filed: January 15, 2016 *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

— Unreported Opinion — In August 1986, a jury sitting in the Circuit Court for Prince George’s County convicted Richard Wayne Boger, Sr., appellant, of murder in the first degree of his girlfriend, Clara Dolores Barnett, and use of a handgun in the commission of a felony. He was sentenced to a term of life imprisonment for first-degree murder and a concurrent term of fifteen years’ imprisonment for use of a handgun. Those convictions were affirmed by this Court on appeal. Boger v. State, No. 1441, Sept. Term, 1986 (filed May 25, 1987) (per curiam).

Several years later, Boger sought post-conviction relief, but his petition was denied, as was his ensuing application for leave to appeal from that denial. Then, in 2012, Boger filed, in the Circuit Court for Prince George’s County, a petition for writ of actual innocence contending that he was “both actually and jurisdictionally innocent” of the crimes for which he had been convicted. The following year, while his actual innocence petition was still pending in the circuit court, Boger filed, in that same court, a motion to correct an illegal sentence contending that he was entitled to an additional day of creditfor pre-trial incarceration. The circuit court, in a single order, dismissed the actual innocence petition and denied the motion to correct an illegal sentence. Boger noted this timely appeal, raising two

questions for our review, which we have rephrased:1

–  –  –

Washington, D.C. near 7th Street. Eventually, [Boger] made his way to the office of Richard Ringell, a lawyer at 301 I Street, N.W., Washington, D.C. At 11:00 a.m., Mr. Ringell telephoned the D.C. [Metropolitan] Police Department [hereafter “MPD”], alerting them that a dead person could be found in Room 101 of the Howard Johnson Motel in Laurel and that [Boger] was in his office and might be a suspect in the case.

The police found Ms. Barnett’s body on one of the beds, covered with a bedspread. [Boger’s] car was parked in front of Room 101. The window on the driver’s side was broken and glass was found on the inside of the vehicle. There was blood on the passenger seat and console. No glass was found outside the vehicle; however, a shoe print was found in a bloodstain outside the vehicle on the passenger side. In addition, a.25 caliber bullet was found underneath the car. The firearm and ballistics expert testified that the bullet found under the car and the.25 caliber bullet removed from Ms. Barnett’s head were fired from the same gun. Also, he testified that few firearms available in the United States could fire such bullets but one which could is a.25 caliber pistol manufactured by Raven. On file with the Maryland State Police was a.25 caliber Raven [semi-]automatic pistol which had been registered by [Boger].

Despite a search by police academy recruits, no weapon was found inside or outside the motel. A small black holster and two.25 caliber bullet casings without projectiles were found within [Boger’s] car.

Inside Room 101 the police found blood on the bed and at the doorway of the room. Ms. Barnett’s fingerprints were not found in the room. The room exhibited no signs of a struggle.

Ms. Barnett’s jeans, panties and pantyhose were found folded and piled behind a chair; however, no female shoes were found in the room. The Medical Examiner testified that sperm was present in the victim’s vagina. Detective White testified that, in her opinion, Barnett’s body had been moved to the motel from another location, either inside or outside the State of Maryland.

At 3:00 p.m. on February 13th two Prince George’s County policemen went to Attorney Ringell’s office and [Boger]

–  –  –

Boger v. State, slip op. at 2-4.

Because the precise location of the events surrounding Ms. Barnett’s death (as noted by the police detective) was uncertain, Boger’s trial counsel requested a jury instruction that the State bore the burden of proving beyond a reasonable doubt that the murder occurred in Prince George’s County. Id. at 4-5. In upholding the trial court’s refusal to give that instruction, this Court observed that, if the proposed jury instruction had “been based on jurisdictional grounds, i.e., that the State has the burden of proving beyond a reasonable doubt that the offense was committed in the State of Maryland, then the trial court would have been required to give the instruction” but, because the proposed instruction “was cast solely in terms of venue,” which must be raised by preliminary motion or else it is waived, see Md. Rule 4-252(a)(1) (1986),2 it was “properly refused.” Boger v. State, slip op. at 4-5.





This Court further concluded that, had a jurisdictional instruction been given, “there was sufficient evidence for the jury to have found that [Boger] committed the offense in Maryland, beyond a reasonable doubt,” because the “situs of the commission of a crime may be established by circumstantial evidence.” Id. at 5 (quoting McDonald v. State, 61 Md.

–  –  –

App. 461, 468 (1985)).3 Boger’s petition for writ of certiorari was denied. Boger v. State, 311 Md. 20 (1987).

Boger subsequently filed a post-conviction petition, alleging ineffective assistance of trial counsel for failure to request the proper jurisdictional jury instruction. The post-conviction court denied that petition, relying upon the trial court’s belief that, given Boger’s election not to testify in his own defense, the lack of territorial jurisdiction was supported by nothing more than a “bald allegation,” and consequently, a territorial jurisdiction instruction was not required. After referring to this Court’s determination that the evidence was sufficient to support a finding of territorial jurisdiction beyond a reasonable doubt, the post-conviction court indicated that the burden to establish a reasonable probability of a different result, in the absence of trial counsel’s unprofessional errors, had not been met. In the Court’s view, the decision not to testify was a matter of trial tactics to which Boger acquiesced. Boger’s ensuing application for leave to appeal was denied.

In 2012, Boger filed, a petition for writ of actual innocence, contending that, in light of purportedly “newly discovered evidence,” he was “both actually and jurisdictionally innocent” of the crimes for which he had been convicted and requested a hearing. The following year, while his petition was still pending in the circuit court, he also filed a motion

–  –  –

to correct an illegal sentence, alleging that the circuit court had erred in calculating the number of days of credit for pre-trial incarceration to which he was entitled. Upon the circuit court’s dismissal of his petition and the denial of his motion, Boger noted this appeal.

Additional facts will be included where pertinent to the discussion of the issues.

–  –  –

Boger contends that the circuit court “misconstrued” his actual innocence claim, which, he insists, was founded upon his allegation that the MPD had invoked a “new position,” namely, that it had “no active involvement” in the investigation of his case.5 He claims that this “new position” is directly contrary to that presented at his 1986 trial during his attorney’s cross-examination of Detective Jan Richard Veeder, who stated that automobile glass had been collected at 1905 Constitution Ave., N.E., Washington, D.C., where the decedent had last been seen alive. Boger argues that the MPD was obviously involved in this case and presumably maintained possession of the evidence it collected until 4 The State has moved to dismiss this appeal because Boger has failed to provide any transcripts of the proceedings below, in violation of Maryland Rules 8-411 and 8-413(a)(2).

Maryland Rule 8-413(a)(2) mandates that the “record on appeal shall include... the transcript required by Rule 8-411[.]” Rule 8-602(a)(6) permits an appellate court to dismiss an appeal if “the contents of the record do not comply with Rule 8-413[.]” Because, as we shall explain in the following sections, the record is adequate to resolve Boger’s claims, we shall exercise our discretion to deny the motion. Md. Rule 8-602(a). We further note that the State has helpfully provided pertinent parts of the record in an appendix to its brief.

5 In construing Boger’s actual innocence petition, which, as the State points out, is not the easiest task, we recognize that we must do so “liberally.” Douglas v. State, 423 Md. 156, 182-83 (2011).

-6 Unreported Opinion — it decided it was no longer involved in the investigation. For reasons that are somewhat unclear from Boger’s brief, MPD’s “new position” calls into question the jurisdiction of the Circuit Court for Prince George’s County over his underlying criminal case. In other words, the automobile glass that had been collected would support his claim that the crimes for which he was convicted occurred in the District of Columbia and not Maryland. On the other hand, clearly Boger and trial counsel were aware of the glass collected in the District of Columbia by the time of the trial.

He further contends that the circuit court erred in denying his actual innocence petition without a hearing because, he asserts, that petition complied with the pleading requirements of Douglas v. State, 423 Md. 156 (2011) (interpreting pleading requirements under actual innocence statute, Maryland Code (2001, 2008 Repl. Vol.), § 8-301 of the Criminal Procedure Article (“CP § 8-301").

According to his petition, Boger, from 2009 to 2011, sought from the MPD, under a FOIA6 request, “all documents related to” his February 13, 1986 arrest, but the MPD “ignor[ed]” and “stonewall[ed]” his request for those documents. Boger ultimately did obtain a single document, a form “PD-163,” dated February 24, 1986, which stated that he had surrendered to the MPD on February 13, 1986, that an arrest warrant naming him had been issued by the Prince George’s County Police Department for a homicide that took place on that same date, and that he was thereafter interviewed by a Prince George’s County Police

–  –  –

detective. In a letter, issued in response to Boger’s request for additional information, the MPD informed him that it “does not have any other information regarding you in our files” and that he should contact the Prince George’s County Police Department “to assist you further as the incident occurred in Maryland and you were tried and convicted in Maryland.” According to Boger, the MPD’s current position of “no active involvement” is belied by its investigation and erection of a crime scene, in 1986, at 19th St. and Constitution Ave., N.E., Washington, D.C., and the collection of broken glass discovered at the site. He contends that the broken glass, considered in combination with testimony at his trial that there was no broken glass found anywhere outside of his vehicle found in the parking lot of the Howard Johnson Motel in Laurel, would have established that the crimes for which he was convicted occurred in Washington, D.C.7 In regard to the actual shooting of the victim, Boger alleges that “the prosecution again tricked the jury.” In support of that allegation is an attached letter from the Federal Bureau of Investigation, dated August 21, 1986, along with two hand-written notes, which describe the results of the forensic analysis of a cap that was discovered in Room 101 and 7 We note that, to the extent Boger’s actual innocence petition rests on a jurisdictional claim, it is problematic whether it states grounds for relief under the actual innocence statute.

See Md. Rule 4-332(d)(9) (stating that petition under CP § 8-301 must assert that “the conviction sought to be vacated is based on an offense that the petitioner did not commit”);

Yonga v. State, 221 Md. App. 45, 57 (2015) (observing that claim under CP § 8-301 requires showing of “factual innocence, not mere legal insufficiency”) (citation and quotation omitted), cert. granted, 442 Md. 515 (2015). But that issue has not been raised and we need not address it in the instant case.

–  –  –



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