IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND STATE OF MARYLAND, VS. Case Number : 108266016 DEMETRIUS D. SMITH, DEFENDANT. / REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Motion's Hearing) Baltimore, Maryland Friday, July 28, 2017 BEFORE: HONORABLE BARRY G. WILLIAMS, Associate Judge APPEARANCES: For the State: RICHARD GIBSON, ESQUIRE For the Defendant: ADAM BRASKICH, ESQUIRE * Proceedings digitally recorded * Transcribed by: PATRICIA A. TRIKERIOTIS, CVR Chief Court Reporter 111 N. Calvert Street Suite 515, Courthouse East Baltimore, Maryland 21202 1 T A B L E O F C O N T E N T S P a g e Defendant’s Motion for Modification of Sentence - The Court's Ruling (Denied) 2 3 13 1 P R O C E E D I N G S 2 (10:08 a.m.) 3 4 MR. GIBSON: Your Honor, may I call another matter? 5 THE COURT: 6 MR. GIBSON: 7 The State calls State of Maryland versus 8 9 Mmm-hmm. Thank you. Demetrius Smith, Case Number 108266016. Rich Gibson on behalf of the State. 10 Good morning, Your Honor. 11 MR. BRASKICH: 12 Adam Braskich on behalf of the defendant, 13 Good morning, Your Honor. Demetrius Smith, who’s to my left. 14 THE COURT: Good morning. 15 Where are we, Counsel? 16 MR. GIBSON: Your Honor, this is a request for 17 modification of sentence by the defendant at issue in 18 Case Number 108266016. 19 modification. 20 THE COURT: 21 MR. GIBSON: The State is going to oppose said Okay. The State reviewed the file, and 22 indicated there was an ABA plea in this guideline. 23 State does recognize that Mr. Smith has engaged in 24 positive choices and positive behaviors while on 25 probation for this case. 3 The 1 However, in light of the totalities in this 2 case and the violent nature of the case involved, the 3 State would ask that his -- 4 THE COURT: Excuse me one second. 5 MR. GIBSON: 6 (Brief pause.) 7 THE COURT: 8 MR. GIBSON: 9 In light of the facts in the case, despite the I’m sorry, Your Honor. All right. Continue. Yes, Your Honor. 10 fact that we acknowledge that he’s done positive things 11 while on probation, we ask that his -- the terms and 12 conditions of his probation not be modified. 13 Thank you. 14 THE COURT: 15 16 Go ahead. All right. I’ll hear from you. MR. BRASKICH: Your Honor, it was nine years 17 ago that Mr. Smith, a man with no history of violence, 18 was charged and later convicted of a murder that we now 19 know he did not commit. 20 And it was because of that wrongful conviction 21 that he did something he otherwise never would have done, 22 which was enter an Alford plea to the unrelated assault 23 charge that is before you now. 24 25 As the Court will recall, Mr. Smith protested his innocence throughout that plea hearing. 4 And the deal 1 he struck with the State was for a concurrent sentence 2 that he could serve alongside his murder sentence. 3 he also reserved the right to come back to court to 4 request modification of this sentence in the event he was 5 ever successful in getting his murder conviction 6 overturned. 7 And That, in fact, happened when the State’s 8 Attorney’s Office moved to vacate the conviction after a 9 federal investigation revealed that Mr. Smith was 10 innocent. 11 both the man contracted to kill and the trigger man who 12 is set to go trial in federal court later this year. 13 The federal prosecutors have since indicted Mr. Smith sought modification in the form of 14 reduction to time already served. 15 Office in that hearing not only did not object but Mr. 16 Tony Gioia appeared for the State and said, I quote, 17 “I've reviewed the police documents and have some issues 18 about the facts,” expressing doubt about the strength of 19 the evidence in this assault case. 20 The State’s Attorney’s Now that was before one of two witnesses, a 21 prostitute by the name of Dawn Whitehead swore under oath 22 that she, in fact, had not seen Mr. Smith commit the 23 robbery, but had falsely implicated him in response to 24 threats from detectives. 25 And that bore an eerie similarity to the facts 5 1 of the murder case, which was investigated by on the same 2 detectives, wherein one of two witnesses against Mr. 3 Smith, again a local prostitute, said that she had been 4 threatened to identify Mr. Smith. 5 not the man she had seen at the scene of the crime. 6 And that, in fact, was Your Honor, we request a sentence modification 7 to probation before judgment and believe that would serve 8 the interest of justice for two reason. 9 The first is the new evidence I’ve alluded to 10 that casts further doubt on what the State itself at one 11 point characterized as a weak evidentiary case against 12 Mr. Smith. 13 And also that I don’t think it’s an 14 exaggeration to say that Mr. Smith has been a model 15 returning citizen. 16 17 18 In the four years since his release, he’s had not so much as a traffic ticket. He’s been gainfully employed, and has earned 19 the praise of his supervisor as he currently works as a 20 landscaper for a company called Natural Concerns. 21 president of that company, Mr. Roland Harvey, who is 22 present in the court today. If he could just raise his 23 hand or stand for a moment. But he’s here to voice his 24 support for Mr. Smith. 25 The And I have just a couple letters that I would 6 1 like to read into the record very quickly with the 2 Court’s permission. 3 THE COURT: Go ahead. 4 MR. BRASKICH: Mr. Harvey writes: “This letter 5 is to serve as a wholehearted endorsement of Demetrius 6 Smith. 7 since March 22nd, 2017. 8 to work every day and has missed no days without prior 9 notice. 10 11 12 He’s been employed by Natural Concerns, Inc., He’s been on time and prepared “He’s earned one raise and is going to receive a second raise yet this season. “He’s gained the trust and respect of his 13 peers, as well as supervisors. 14 interest in learning all aspects of our industry. 15 16 17 18 19 20 21 And shows genuine “Our clients have commented on his politeness and work ethic when left unsupervised. “It’s our desire that he continues to grow with our company for many years to come.” I have a second letter from Mr. Smith’s immediate supervisor that I will submit without reading. But I would like to share a letter from a man 22 named Mark Connor (phonetic), who volunteered to serve as 23 Mr. Smith’s mentor upon his release and has gotten to 24 know him quite well. 25 only how well Mr. Smith has done, but also the challenges And this letter illuminates not 7 1 that he’s faced because of this felony conviction on his 2 record that he now seeks to remove. 3 He writes: “Dear Judge Williams, I’m writing 4 in earnest support of Demetrius Smith. 5 Demetrius when assigned by a mentoring program to assist 6 him three and a half years ago. 7 been released from prison, having spent five years behind 8 bars due to a wrongful murder conviction. 9 I first met Demetrius had recently “And I’ve maintained regular contact with 10 Demetrius since then no less frequently monthly and have 11 come to know and admire him quite a bit. 12 “I have worked with more than 100 young men in 13 Baltimore as a mentor and have learned to spot people of 14 promise. Demetrius is one of those people. 15 “He’s above all else a motivated worker, 16 diligent at any job, reliably punctual, and always 17 prepared for work. 18 “I find all of this remarkable given the 19 reasons he’s been handed for giving up. 20 him give up nor have I seen him carry a grudge. 21 last ability is truly remarkable, given his wrongful 22 conviction and resulting five-year sentence. 23 I’ve never seen And this “Though his past, including his felony assault 24 charges, both challenges for him since his exoneration, 25 he’s undaunted. The instances when Demetrius has told me 8 1 he was rejected for a job because of the remaining 2 assault charge have been numerous. 3 is the one remaining obstacle to better employment. 4 my opinion, that has caused to be passed over when, in 5 fact, he’d be a very good hire. 6 And he’s told me this In “As examples, Mr. Smith has been offered jobs 7 on three different occasions, only to have the job offers 8 rescinded after standard backgrounds show this felony 9 conviction. This included a foreman job at Humanim, an 10 environmental tech at Union Memorial Hospital, and a 11 construction position at a company called Blueprint 12 Robotics. 13 14 “He’s been unable to even enter into an apartment lease because of the assault charge. 15 “And more positively, one of the most 16 impressive things about Demetrius is his strong will and 17 his success in resisting the temptations of the street. 18 19 “We were once eating lunch while parked near North Avenue before driving him to an interview” -- 20 THE COURT: Thank you, Counsel. 21 All right. State, what is your basis for 22 saying no? You acknowledge that the underlying -- the 23 initial conviction, not the assault, but the murder, has 24 been dealt with in a different way, that he was 25 exonerated; is that correct? 9 1 MR. GIBSON: The State acknowledges that -- 2 that after the case was tried, and the defendant was 3 convicted of murder, and after the -- the Court of 4 Appeals affirmed that conviction, my office, after 5 discussions with federal authorities, chose to vacate 6 that conviction to allow the federal prosecution to go 7 forward the way they envisioned it. 8 THE COURT: 9 MR. GIBSON: 10 Of the murder? Of a conspiracy to commit the murder. 11 THE COURT: So you’re stating in open court 12 that your office isn’t saying that he wasn’t guilty. 13 just did it for other reasons? 14 MR. GIBSON: I’m saying in open court that I 15 was shown information that -- I was personally 16 information that they had. 17 federal authorities had -- 18 THE COURT: You And the information that the Well, let me ask you, why did the 19 State’s Attorney’s Office move to vacate the murder 20 charge, the murder conviction, against this defendant? 21 MR. GIBSON: 22 another individual -- 23 THE COURT: They had information that -- that Well no, Counsel, it’s a simple 24 question. Why did your office move to vacate the murder 25 conviction against this defendant? 10 1 2 MR. GIBSON: That was a decision that was made above my purview, Your Honor. 3 THE COURT: So then what you’re saying is you 4 don’t really have any power or control about what you’re 5 saying? 6 MR. GIBSON: I don’t have any control -- I have 7 no control over the decision that that office -- that my 8 office made in relation to the murder. 9 THE COURT: So are you sitting here saying that 10 he’s still guilty of the murder? 11 basis to -- for me not to do anything in this case. 12 Because that would be a But if you’re saying that he is not guilty of 13 the murder, and the reason that the plea was taken was to 14 run it concurrent to that -- what are you saying? 15 MR. GIBSON: 16 a position on the 17 federal authorities. 18 decision. 19 20 murder in light of discussions with I have no ability to affect that The State’s position -THE COURT: But you haven’t -- an ability to affect this case -- 21 MR. GIBSON: 22 THE COURT: 23 So I am saying that my office took Yes. -- which is connected to the other case? 24 MR. GIBSON: 25 THE COURT: The -- so -So maybe you need to bring a 11 1 supervisor in since you’re not sure? 2 Well, it’s clear something’s not going right. 3 MR. GIBSON: 4 THE COURT: 5 MR. GIBSON: No, no, Your Honor. Yes, yes, Counsel. Here’s what I’m saying, Your 6 Honor. In terms of this case, the defendant, when he was 7 accused of the murder, had a bail review for the murder 8 case. He was given bail for the murder case. 9 While out on bail for the murder case, this 10 case occurred in a separate shooting of an individual 11 named Mr. Hendricks, if I recall correctly. 12 THE COURT: 13 MR. GIBSON: 14 Mmm-hmm. (Indiscernible at 10:18:16) Hendricks. 15 That incident -- in that incident, Mr. 16 Hendricks identified the defendant as the person who shot 17 him. 18 has -- 19 And another individual named Dawn Whitehead, who THE COURT: Well, obviously there are issues 20 with -- there are allegations of issues both with the 21 murder, obviously, and then the assault case that we have 22 here. 23 We’re not here to retry it. I guess I don’t understand the position that 24 the State is in. 25 Alford Plea. The sentence was served. 12 There was an 1 But here’s the thing, if that’s the position 2 that the State is in, if that’s where you find yourself, 3 you’re absolutely right. 4 State’s position is a man who’s done all these things 5 doesn’t deserve another chance. 6 So is that the State’s position? 7 MR. GIBSON: 8 THE COURT: 9 It was a binding plea. And the And I have no control. Respectfully, yes, Your Honor. It’s not respectfully, Counsel. It’s -- if that’s your position -- 10 MR. GIBSON: Yes, yes, yes, Your Honor. Yes. 11 THE COURT: 12 I have not authority, as you know or are well Very well. 13 aware, Counsel. It’s a binding ABA plea, despite what I 14 would -- may or may not want to do -- 15 MR. BRASKICH: Your Honor -- 16 THE COURT: 17 Motion is denied. 18 THE COURT: 19 MR. BRASKICH: 20 THE COURT: 21 MR. GIBSON: 22 May I be excused? 23 THE COURT: 24 MR. GIBSON: 25 (Whereupon, the matter concluded at 10:19 p.m.) -- it’s irrelevant. Thank you. And it’s the State’s position. Your Honor, if I -- Thank you. Thank you, Your Honor. You may. Thank you. 13 REPORTER'S CERTIFICATE I, Patricia A. Trikeriotis, Chief Court Reporter of the Circuit Court for Baltimore City, do hereby certify that the proceedings in the matter of State of Maryland vs. Demetrius D. Smith, Case Number 108266016, on July 28, 2017, before the Honorable Barry G. Williams, Administrative Judge, were duly recorded by means of digital recording. I further certify that the page numbers 1 through 13 constitute the official transcript of excerpts of these proceedings as transcribed by me or under my direction from the digital recording to the within typewritten matter in a complete and accurate manner. In Witness Whereof, I have affixed my signature this 8th day of August, 2017. ____________________________ Patricia A. Trikeriotis Chief Court Reporter 14