Edwards v. State , 453 Md. 174 ( 2017 )

Richard A. Edwards v. State of Maryland, No. 47, September Term, 2016. Opinion by Greene,
J.
CRIMINAL JUSTICE—POST-CONVICTION DNA TESTING
Pursuant to § 8-201 of the Criminal Procedure Article, persons convicted of crimes of violence
are entitled to post-conviction DNA testing upon a showing that “a reasonable probability exists
that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence
relevant to a claim of wrongful conviction or sentencing and the requested DNA test employs
a method of testing generally accepted within the relevant scientific community.” The statute
does not require a petitioner to show that the outcome of his or her case necessarily would have
been different, had the jury been presented with the evidence the petitioner seeks to obtain
through the requested DNA testing. In other words, the petitioner need not show that the DNA
testing has a reasonable probability to exonerate the petitioner. Instead, as clearly delineated
in the statute, the petitioner need only show that there is a reasonable probability that the testing
has the scientific potential to produce exculpatory or mitigating evidence. Exculpatory
evidence is evidence that tends to establish the innocence of the petitioner. It need not
definitively prove the petitioner’s innocence but only tend to prove or disprove a disputed
material fact.
The Circuit Court applied the incorrect legal standard in ruling that there was no possibility that
DNA testing of the requested items would “exonerate” the Appellant.
Circuit Court for St. Mary’s County IN THE COURT OF APPEALS
Case No. 18-K-10-000193
Argued: January 6, 2017 OF MARYLAND
No. 47
September Term, 2016
______________________________________
RICHARD A. EDWARDS
v.
STATE OF MARLAND
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: May 24, 2017
This is a direct appeal pursuant to the DNA testing provisions of the DNA Evidence-
Post Conviction Review. Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the
Criminal Procedure Article (Crim. Pro.). Appellant Richard A. Edwards seeks our review
of the denial, by the Circuit Court for Saint Mary’s County, of his Petition for Post-
Conviction DNA Testing. For the reasons set forth below, we shall vacate the judgment
of the Circuit Court and remand this case to that court with directions to order the DNA
testing of the cigarette lighter.
BACKGROUND
Procedure
On May 12, 2010, a grand jury sitting in the Circuit Court for Saint Mary’s County
returned an indictment in three counts charging Appellant with committing attempted first-
degree rape, third-degree sexual offense, and second-degree assault.1 These charges went
before a Circuit Court jury for trial on February 8 and 9, 2011, following which the jury
convicted Appellant on all counts. On February 9, the trial court sentenced Appellant to
life imprisonment for the attempted first-degree rape, and imposed a concurrent ten years’
imprisonment for the third-degree sexual offense. The second-degree assault merged.
Appellant lodged a direct appeal with the Court of Special Appeals, which, in an unreported
opinion, affirmed in all respects.
1
Md. Code (2002, 2009 Supp.), § 3-309 of the Criminal Law Article (Crim. Law)
(attempted rape in the first degree); Crim. Law § 3-307 (sexual offense in the third degree);
Crim. Law § 3-203 (assault in the second degree).
On or about September 14, 2015, Appellant filed a Petition for Post-Conviction
Relief in the Circuit Court for Saint Mary’s County. On January 4, 2016, the Circuit Court
granted Appellant’s motion to withdraw this first Petition, and on that date Appellant’s
Petition for Post-Conviction DNA Testing was filed pursuant to Crim. Pro. § 8-201 and
Maryland Rule 4-701.2 A hearing on the petition was held on June 14, 2016 before a
Circuit Court judge (“Post-conviction Court”), who, in a written opinion and order issued
on July 6, 2016 denied the petition.3 On July 21, 2016, Appellant noted a direct appeal to
this Court pursuant to § 8-201(k)(6).4
Facts
The operative facts are not in dispute.5 At the trial, the jury heard testimony that,
on the evening of February 12, 2010, the complainant, J.K.,6 went to the Big Dogs Paradise
bar in Mechanicsburg. She arrived at 9:00 p.m. and remained there until the bar closed at
2:00 a.m. the next morning. After leaving the bar, Ms. K., accompanied by some friends,
went outside to smoke a cigarette and socialize. Soon thereafter, the others left, and Ms.
2
Title 4, Chapter 700 of the Maryland Rules governs “Post-Conviction DNA
Testing.”
3
The Post-conviction Court set forth its reasons in a separate “Statement of Reasons
and Opinion of Court.”
4
See Thompson v. State, 411 Md. 664, 681-82, 985 A.2d 32, 41-42 (2009). See also
Brown v. State, 431 Md. 576, 583, 66 A.3d 675, 679 (2013).
5
The Post-conviction Court held a hearing on Appellant’s Petition, but that
proceeding was limited to argument. The Post-conviction Court made no findings of
historical fact.
6
We shall refer to the Complainant by her initials (or “Ms. K.”) to protect her
privacy. See Thomas v. State, 429 Md. 246, 252 n. 4, 55 A.3d 680, 684 n. 4 (2012).
2
K. decided to call a friend, Alex, for a ride home because she had been drinking. She
returned to her car, locked the doors, and called another friend, Mark, to pass the time until
her ride arrived.
While Ms. K. was on the phone with Mark, a man approached her car and identified
himself as a “security guy” at Big Dogs. He claimed that he wanted to ensure Ms. K. had
a safe ride home. Ms. K. told the man that she had a friend on the way to give her a ride
and the man left. A few minutes later, however, while Ms. K. was still on the phone, the
man returned to her car with a cigarette in his hand and asked to borrow her lighter. When
Ms. K. gave the man her lighter, he asked to use her door to shield him from the wind while
he lit his cigarette. Ms. K. agreed. The man crouched down in front of the passenger door
to light the cigarette, but then he entered her car and sat down. When Ms. K. told the man
to get out of her car he did not comply.
Ms. K. then told the man she needed to go to the bathroom and that she was going
back to the bar to see if she could use the bathroom. The man responded, “Oh no, I work
for Big Dogs, they are closed. They won’t let you back in there.” Ms. K. then said “Well,
I’m gonna go check.” She then ended her phone call with Mark, opened her door and
started to get out.
The man got out of the car about the same time and pushed Ms. K. to the ground.
He then pulled Ms. K. back up and pushed her into the driver’s seat of the car. At that
point, he fondled her, kissed her neck, and attempted to pull down her pants, placed his
fingers in her vagina, and attempted to force her to have sexual intercourse with him. At
3
one point during the attack, the man took Ms. K.’s keys and threw them. Ms. K. managed
to retrieve her keys and start the ignition. She “gunned it” and the man fell out of the car
and ran toward the back of the bar. Ms. K. drove to the front of the bar and continuously
honked her horn until some of the Big Dogs bouncers came out. When these employees
asked what was wrong, Ms. K. reported that a man tried to rape her. The police were
summoned.
Officers processed Ms. K.’s car for fingerprints, and investigators also recovered
some items from the car that the suspect could have touched, including a Bic lighter, a
Forever 21 plastic shopping bag, and a pack of Marlboro Menthol cigarettes. Ms. K. did
not go to the hospital on the night of her attack and the police did not take her clothing for
examination. The police did not submit any evidence for DNA testing from Ms. K., her
car, or the items in the car.
Ms. K. testified that she had not known her attacker, but recalled that she had seen
him earlier that night inside the bar. Ms. K. described her attacker as having brown hair
and dark eyes, being in his late thirties to forties, and wearing a long-sleeve denim button-
up shirt. Based on Ms. K’s description of her assailant and on interviews with the
employees and owners of Big Dogs, the police had initially identified a man named Richard
Wathen as a suspect. The police showed Ms. K. two photo arrays, each containing a photo
of a St. Mary’s county resident named Richard Wathen. Ms. K. was unable to make a
positive identification from these arrays.
The police later identified Appellant as a possible suspect and compiled a photo
array with Appellant’s picture, which they showed to Ms. K. She positively identified
4
Appellant as the man who assaulted her in the parking lot outside of Big Dogs. Ms. K.
later testified that she was “positive” of her identification of Appellant as the man who
assaulted her. At trial, Ms. K’s friend Mark, who was on the phone with her that evening
during her interaction with her assailant, recounted that Ms. K. had said she was at Big
Dogs and that during their conversation, Mark could hear a person with a male voice asking
for a light or a cigarette.
The co-owner of Big Dogs, Victoria Adkins, had been working at the bar that
evening and testified that she had spoken with Ms. K. about the incident. Ms. Adkins
testified that after hearing Ms. K. describe the man who attacked her, Ms. Adkins came to
the conclusion that the man was Ricky Edwards, who was at the bar that evening and
wearing a denim button-up shirt. Brian Adkins, who also owns Big Dogs, testified that
when he heard Ms. K.’s description, he thought the person’s name was Ricky. Mr. Adkins
also said Ricky was at the bar that evening and was wearing a blue denim button-up shirt.7
A bar employee named James Dougherty testified that he believed the man who Ms. K.
described was Appellant, a man with whom Mr. Dougherty had had an altercation on the
night in question. Before trial, Mr. Dougherty positively identified Appellant in a photo
array shown to him by police as the man he saw in the bar that evening.
At trial, Appellant called the investigating detective, Det. Thomas Hedderich, as a
defense witness. Det. Hedderich testified that he interrogated Appellant and that Appellant
7
Mr. Adkins initially told police the man’s name was Ricky Wathen, but later
discovered that his last name was not Wathen. Mr. Adkins testified at trial that Appellant
was known as “Ricky.”
5
did not confess to the crime despite the fact that the detective lied to Appellant, claiming
that police had obtained DNA evidence, that the incident was captured on video, and that
an undercover narcotics officer had seen the incident. Appellant also testified in his own
defense and acknowledged that he was at Big Dogs from 12:30 am to 1:30 am, when he
left the bar in the car that his wife drives. Appellant denied having any contact with Ms.
K. on the night in question. Appellant finally testified that he has green eyes, and that he
has a rotten tooth and missing teeth, which he displayed at trial for the jury.
The Post-Conviction Petition
In his post-conviction Petition, Appellant asserted that there was a reasonable
probability that DNA testing of the requested items has the scientific potential to produce
exculpatory evidence relevant to his claim of wrongful conviction. Appellant noted that
the victim testified that the perpetrator used her lighter and two witnesses testified that the
victim told them the perpetrator asked her for a cigarette. Appellant maintained that it is
likely that the perpetrator transferred epithelial cells to the lighter when he used it and that
the perpetrator could also have touched the Forever 21 bag and the cigarette pack given his
proximity to those items when he sat in the passenger seat. 8
Appellant contended that “even with minute or degraded quantities of DNA, it is
‘frequently possible to obtain successful DNA results from cellular material transferred
from the skin of an individual who has simply touched an object.’” (quoting Ray A.
Wickenheiser, Trace DNA: A Review, Discussion of Theory, and Application of the
8
Appellant used the term “skin cells,” but for the sake of clarity and consistency
with the statute, we equate skin cells with the synonymous term “epithelial cells.”
6
Transfer of Trace Quantities of DNA Through Skin Contact, 3 J. FORENSIC SCI. 442
(2002)). The petition noted Wickenheiser’s observation that cigarette lighters specifically
are an “unusual exhibit material yielding successfully DNA profiles using polymerase
chain reaction (PCR) and short tandem repeat (STR) typing.”
Appellant further asserted that the testing could show that his DNA was absent on
all of the tested items but that the DNA profile of another individual may instead be present
on the items. Appellant argued that this would not only support his testimony that he was
falsely identified as the perpetrator but it also has the potential to identify the actual
perpetrator. Finally, the petition asserted that the DNA testing requested, including
polymerase chain reaction (PCR) and short tandem repeat (STR) testing, are generally
accepted as reliable in the relevant scientific community.
As noted, a hearing on the petition was held on June 14, 2016 in the Circuit Court
for St. Mary’s County. At the hearing, the State did not challenge whether the DNA testing
requested by Appellant is employed by a method generally accepted within the relevant
scientific community. Rather, the focus of the hearing was whether there was a reasonable
probability that the testing requested has the scientific potential to produce exculpatory
evidence relevant to Appellant’s claim that he was not the individual who assaulted Ms. K.
On July 6, 2016, the Post-conviction Court issued an order denying Appellant’s
petition for DNA testing. The order was accompanied by a written opinion, which stated
in pertinent part:
As previously stated, the standard in CP § 8-201(d)[(1)](i) is that there must
be a “reasonable probability . . . that the DNA testing has the scientific
potential to produce exculpatory or mitigating evidence.” Because of the
7
highly speculative nature of what petitioner hopes to gain from DNA testing
of these items, this [c]ourt can see no possibility that a DNA test performed
on the items requested would exonerate Petitioner. Even if petitioner’s
DNA is not found on the items and other persons’ DNA is found, that does
not prove or even suggest that any of those other people committed this
crime, even if one of them turns out to be a convicted sex offender.
Here, there is no instrument that was used to commit the crime, and
therefore, no relevance to finding the DNA of random people on the items
Petitioner seeks to have tested. The [c]ourt need not “conduct a fishing
expedition to indulge every permutation” that Petitioner might imagine.
The Post-conviction Court continued:
In this case, it is noteworthy and even dispositive that, at trial, the victim
positively identified Petitioner as the perpetrator. She was able to give the
police a description of him and what he was wearing. She testified that she
got a good look at him because “[h]e was in my face quite a bit . . . I had
seen him earlier in the bar . . . I said that guy looks like a creeper because he
kept looking at me as we were dancing.” In addition, the victim identified
Petitioner for the jury and testified to identifying Petitioner in a photo array.
Trial counsel cross-examined the victim and she did not waiver in her
identification of Petitioner.
The judge distinguished cases where relief had been granted:
This is clearly different than Gregg where it was highly probative that the
killer had handled a gun which was the murder weapon and the DNA on the
gun would have a reasonable probability of producing exculpatory evidence
that would corroborate defendant’s claim that he was not the shooter. This
was especially true given the ambivalent evidence which did convict the
Petitioner. It is also different than Brown where the defendant was
challenging whether the crime had actually happened and wanted the items
tested to disprove it had. Here, there is no such probability that the testing
would produce exculpatory or mitigating evidence for the Petitioner.
(citations omitted).
On July 21, 2016, Appellant noted a direct appeal to this Court pursuant to § 8-
201(k)(6), and presents the following question on appeal:
Did the Circuit Court err when it denied Mr. Edwards’ Petition for Post-
8
Conviction DNA Testing, where a reasonable probability exists that the
requested testing has the scientific potential to produce exculpatory evidence
relevant to Mr. Edwards’ claim of wrongful conviction?
For the following reasons, we shall answer the Appellant’s question in the affirmative and
remand the case to the Post-conviction Court for to order testing.
DISCUSSION
Standard of Review
There is some dispute as to the appropriate standard of review. The State insists at
length that our review of the Post-conviction Court’s ruling is for an abuse of discretion.
We do not agree. Because we are asked to interpret the language in the post-conviction
DNA testing statute, and to determine whether the hearing judge applied the correct
standard of law in denying Appellant’s petition, our review is plenary.9 See Fuster v. State,
437 Md. 653, 671, 89 A.3d 1114, 1124 (2014) (“An appellate court reviews without
deference the legal standard that a trial court uses in ruling on a petition.”). See also, e.g.,
Howard v. State, 440 Md. 427, 434, 103 A.3d 572, 576 (2014).
The cases cited by the State in support of its version of the appropriate standard of
review for an abuse of discretion, do not support its argument on this record. Brown v.
State, 431 Md. 576, 66 A.3d 675 (2013); Washington v. State, 424 Md. 632, 37 A.3d 932
(2012); Arrington v. State, 411 Md. 524, 983 A.2d 1071 (2009). In each of the cases upon
which the State relies, we were asked to review the circuit court’s denial of a motion for a
9
Specifically, we shall review the statute to determine when and whether a post-
conviction DNA petitioner is entitled to DNA testing of evidence in the State’s possession
and the meaning of the terms “reasonable probability” and “exculpatory” under the statute.
9
new trial. By contrast, in the case before us, the Post-conviction Court concluded that the
sought after DNA testing could not yield results that would exonerate Appellant. The Post-
conviction Court effectively denied Appellant’s Petition as a matter of law.
Parties’ Contentions
On appeal, Appellant maintains that a reasonable probability exists that the testing
has scientific potential to produce exculpatory evidence relevant to Appellant’s claim of
wrongful conviction. Ms. K. told the jury that her attacker used her lighter and moreover,
photographs of the crime scene show a Forever 21 bag and a pack of cigarettes on the edge
of the passenger seat where the attacker sat before the assault. Appellant maintains that it
is likely that the perpetrator of the crime transferred epithelial cells onto the lighter when
he touched it and that it is also likely the perpetrator could have touched the cigarette pack
or Forever 21 bag given his proximity to those items.
Further, Appellant urges that the hearing judge applied the wrong standard in
denying the petition when the judge ruled that “the [c]ourt can see no possibility that a
DNA test performed on the items requested would exonerate the Petitioner.” Appellant
insists that the proper standard is not whether DNA testing would “exonerate" him or that
such testing would “prove” someone else committed the crime. Instead, Appellant
contends that the proper inquiry is whether a reasonable probability exists that the testing
has the scientific potential to produce exculpatory or mitigating evidence relevant to the
claim of wrongful conviction or sentencing. Appellant posits that this case turns upon the
meaning of exculpatory, which, he argues, sweeps more broadly than the term exonerating.
Appellant also argues that the inclusion of the terms “or mitigating” and “or sentencing”
10
in the statute show that the standard is one of exculpatory evidence and not exonerating
evidence. Finally, Appellant avers that the absence of his DNA on an item where one
would expect the perpetrator’s DNA, although not necessarily exonerating, is certainly
exculpatory to the extent that it would tend to establish that Appellant was not the person
that assaulted Ms. K. In other words, negative DNA results would satisfy the broader, less
stringent threshold for entitlement to DNA testing than the standard advocated by the State
and applied by the post-conviction court.
Urging that we affirm, the State avers that Appellant’s hoped-for outcome of DNA
testing would not be exculpatory. The State first notes that there is no evidence that the
assailant touched the Forever 21 bag and the cigarette pack, thus the absence of his DNA
on these items would in no way tend to exonerate him. The State explains that the testing
would reveal one of two things—either Appellant’s DNA is on the lighter or it is not—and
argues that neither is exculpatory. The State contends that the best result for Appellant is
that Appellant’s DNA is not on the lighter and notes that the jury was already told that
there was no DNA evidence in this case inculpating Appellant.
Crim. Proc. § 8-201
We agree with Appellant that the standard to be employed by a post-conviction court
in the analysis of a petition for DNA testing does not require the proponent to establish that
the results must, in all instances, exonerate the defendant. We also conclude that our
decision in Brown is, on this record, inapposite.
Maryland’s post-conviction DNA testing statute, which was enacted by the General
11
Assembly in 2001, is codified at § 8-201 of the Criminal Procedure Article.10 “Section 8-
10
Section 8-201 provides in relevant part:
§ 8-201. DNA evidence – Postconviction review.
***
(b) Filing of petition. -- Notwithstanding any other law governing
postconviction relief, a person who is convicted of a crime of violence under
§ 14-101 of the Criminal Law Article may file a petition:
(1) for DNA testing of scientific identification evidence that the State
possesses that is related to the judgment of conviction; or
(2) for a search by a law enforcement agency of a law enforcement data
base or log for the purpose of identifying the source of physical evidence
used for DNA testing.
(c) New trial. -- A petitioner may move for a new trial under this section on
the grounds that the conviction was based on unreliable scientific
identification evidence and a substantial possibility exists that the petitioner
would not have been convicted without the evidence.
(d) Findings requiring DNA testing. --
(1) Subject to subsection (e) of this section, a court shall order DNA testing
if the court finds that:
(i) a reasonable probability exists that the DNA testing has the scientific
potential to produce exculpatory or mitigating evidence relevant to a claim
of wrongful conviction or sentencing; and
(ii) the requested DNA test employs a method of testing generally
accepted within the relevant scientific community.
(2) A court shall order a data base search by a law enforcement agency if
the court finds that a reasonable probability exists that the data base search
will produce exculpatory or mitigating evidence relevant to a claim of
wrongful conviction or sentencing.
***
12
201 entitles persons convicted of certain serious crimes to pursue DNA testing of physical
evidence that is in the possession of the State and might produce exculpatory or mitigating
evidence relevant to a claim of wrongful conviction or sentencing.” Simms v. State, 409
Md. 722, 727, 976 A.2d 1012, 1015–16 (2009). See also Md. Rule 4-703(2)(A).
The statute was enacted “in line with a nationwide trend to adopt post-conviction
DNA testing statutes designed to provide an avenue for the exoneration of the actually
(i) Disposition upon receipt of results. --
(1) If the results of the postconviction DNA testing are unfavorable to the
petitioner, the court shall dismiss the petition.
(2) If the results of the postconviction DNA testing are favorable to the
petitioner, the court shall:
(i) if no postconviction proceeding has been previously initiated by the
petitioner under § 7-102 of this article, open a postconviction proceeding
under § 7-102 of this article;
(ii) if a postconviction proceeding has been previously initiated by the
petitioner under § 7-102 of this article, reopen a postconviction proceeding
under § 7-104 of this article; or
(iii) on a finding that a substantial possibility exists that the petitioner
would not have been convicted if the DNA testing results had been known
or introduced at trial, order a new trial.
(3) If the court finds that a substantial possibility does not exist under
paragraph (2)(iii) of this subsection, the court may order a new trial if the
court determines that the action is in the interest of justice.
(4) If a new trial is granted, the court may order the release of the petitioner
on bond or on conditions that the court finds will reasonably assure the
presence of the petitioner at trial.
13
innocent.” Blake v. State, 395 Md. 213, 219, 909 A.2d 1020, 1023 (2006). We have stated
that the purpose of Crim. Proc. § 8-201 is to “facilitate the establishment of claims of actual
innocence for serious crimes.” Thompson v. State, 395 Md. 240, 252, 909 A.2d 1035, 1042
(2006).11
Under Crim. Proc. § 8-201, persons convicted of certain crimes of violence may file
a petition requesting “DNA testing of scientific identification evidence that the State
possesses that is related to the judgment of conviction.”12 Crim. Proc. § 8-201(b)(1).
“Scientific identification evidence” is defined in Crim. Proc. § 8-201(a)(5) as evidence that
(i) is related to an investigation or prosecution that resulted in a judgment of
conviction;
(ii) is in the actual or constructive possession of a law enforcement agency
or agent of a law enforcement agency; and
(iii) contains biological evidence from which DNA may be recovered that
may produce exculpatory or mitigating evidence relevant to a claim of a
convicted person of wrongful conviction or sentencing if subject to DNA
testing.
11
“The statute has undergone a number of amendments since its enactment in 2001,
and because we have discussed its legislative history on several occasions, we do not repeat
that discussion here.” Simms v. State, 409 Md. 722, 727–28, 976 A.2d 1012, 1016 (2009)
(citing Gregg v. State, 409 Md. 698, 708–12, 976 A.2d 999, 1004–07 (2009)). See also
Jackson v. State, 448 Md. 387, 395–401, 139 A.3d 976, 980–84 (2016) (discussing the
most recent amendments to Crim. Proc. § 8-201). The statute was most recently amended
by 2015 Md. Laws, ch. 369, § 1, which took effect on October 1, 2015, before Appellant
filed his petition for DNA testing. Accordingly, any reference made to Crim. Proc. § 8-
201 in this opinion is to the version of the statute current through the date of this opinion,
unless otherwise specifically noted.
12
Maryland Rules 4-701 et seq. govern post-conviction DNA testing procedures.
Maryland Rule 4-704 governs the contents of a petition for DNA testing.
14
Crim. Proc. § 8-201(a)(5).13 “Biological evidence” is defined as evidence that “includes,
but is not limited to, any blood, hair, saliva, semen, epithelial cells, buccal cells, or other
bodily substances from which genetic marker groupings may be obtained.” Crim. Proc. §
8-201(a)(2). The statute mandates that a court grant a petition for DNA testing if the court
finds:
(i) a reasonable probability exists that the DNA testing has the scientific
potential to produce exculpatory or mitigating evidence relevant to a claim
of wrongful conviction or sentencing; and
(ii) the requested DNA test employs a method of testing generally accepted
with in the relevant scientific community.
Crim. Proc. § 8-201(d)(1).
Here, the parties do not disagree that the requested DNA test employs a method that
is generally accepted within the relevant scientific community. Hence, there is no dispute
that Crim. Proc. § 8-201(d)(1)(ii) is satisfied. At issue in this case is whether a reasonable
probability exists that the requested testing has the scientific potential to produce
exculpatory evidence relevant to the Appellant’s claim of wrongful conviction.
Again, in denying the petition, the post-conviction judge reasoned:
Because of the highly speculative nature of what Petitioner hopes to gain
from DNA testing of these items, this [c]ourt can see no possibility that a
DNA test performed on the items requested would exonerate Petitioner.
Even if Petitioner’s DNA is not found on the items and other persons’ DNA
is found, that does not prove or even suggest that any of those other people
13
All of the evidentiary items at issue in this case, the Forever 21 bag, the cigarette
pack, and the lighter, meet the statutory definition of “scientific identification evidence.”
Md. Code (2001, 2008 Repl. Vol., 2015 Supp.), § 8-201(a)(5). These items are related to
the investigation of Appellant to the extent that the police collected these items from the
scene of crime for processing. See generally, Wallace v. State, ___ Md. ___, ___, ___ A.3d
___, ___, 2017 WL 1422828 *8 (filed April 21, 2017).
15
committed this crime, even if one of them turns out to be a convicted sex
offender.
(Emphasis added). The theory of the court’s denial, that the proposed DNA analysis would
not exonerate Appellant, leaves no room for the broader reach of the statute as indicated
by the term “exculpatory.” The State argues that the hearing judge applied the appropriate
standard. On this point, the parties are in disagreement, specifically over the meaning and
application of the term “exculpatory.”
The term “exculpatory” as employed in the statute embraces a far broader scope of
relief than the “zero sum” standard characterized by the term “exonerate” and advanced by
the State and applied by the Post-conviction Court. The sought after testing of objects
described by Ms. K., most notably the cigarette lighter, have the “scientific potential to
produce exculpatory or mitigating evidence.” Nothing in the plain language of the statute
suggests that the testing results must “exonerate” a petitioner or “prove” that someone else
committed the crime.
Although the General Assembly did not define the word “exculpatory” in the statute,
we are able to discern the term “exculpatory” with its plain and ordinary meaning. See Ali
v. CIT Tech. Fin. Servs., Inc., 416 Md. 249, 262, 6 A.3d 890, 897–98 (2010) (“When the
Court can ascertain the Legislature’s intent from the plain meaning of the verbiage, the
Court need not delve deeper. . . . In seeking to apply the plain-meaning rule, it is proper to
consult a dictionary or dictionaries for a term’s ordinary and popular meaning.”). Black’s
Law Dictionary defines exculpatory as “evidence tending to establish a criminal
16
defendant’s innocence.” BLACK’S LAW DICTIONARY at 577 (7th ed. 1999). This is
consistent with the policy of the statute - to facilitate claims of actual innocence.
Our cases confirm this conclusion. In Gregg v. State, 409 Md. 698, 976 A.2d 999
(2009), we discussed § 8-201(d)(1) and noted that:
Given that the statute only requires a showing that the desired testing has a
reasonable probability that the DNA testing of the epithelial cells has the
scientific potential to produce relevant exculpatory or mitigating evidence,
the petition, on its face, satisfies that standard. Appellant was not required
to show that the outcome of his case necessarily would have been different,
had the jury been presented with the evidence he seeks to obtain through the
requested DNA testing. That is why the State’s argument on appeal, that the
evidence at trial “overwhelmingly” established Appellant’s guilt, does not
defeat the prima facie case that the petition makes for satisfaction of the
requirement set forth in § 8-201(c)(1).
Gregg, 409 Md. at 720, 976 A.2d at 1011 (emphasis added).
Our decision in Thompson v. State, 411 Md. 664, 985 A.2d 32 (2009), is also
instructive. The defendant in that case filed for post-conviction relief, asserting that the
results of DNA testing established that he had been convicted of rape, felony murder and
associated offenses in error. One issue before us was whether the “more liberal” standards
for the granting of a new trial should apply to Thompson’s case. 14 In 2008, the General
Assembly amended the DNA provisions of the Criminal Procedure Article by adding, inter
alia, the following standard for the post-conviction court to apply in assessing a motion for
a new trial:
A petitioner may move for a new trial under this section on the grounds that
the conviction was based on unreliable scientific identification evidence and
14
See 2008 Laws of Maryland, chap. 337, § 1, abrogated December 31, 2013. See
id., § 4.
17
a substantial possibility exists that the petitioner would not have been
convicted without the evidence.
Md. Code (2009 Supp.), § 8-201(c). We held that, although Thompson had filed for post-
conviction relief prior to the effective date of the amendment, January 1, 2009, the
appropriate standard for the post-conviction court to apply should be the above provision,
Section 8-201(c), as added in 2008. Thompson, 411 Md. at 683-84, 985 A.2d at 43. In a
footnote, we further commented on the appropriate standard, and this note is particularly
relevant to the case before us:
We note that this is in keeping with the standard employed by many
other jurisdictions. See, e.g., Bedingfield v. Commonwealth, 260 S.W.3d 805,
814-15 (Ky. 2008) (determining that DNA evidence that would “probably”
produce a different result was sufficient to warrant a new trial, and need not
explicitly exculpate the petitioner); People v. Jackson, 283 N.W.2d 648, 650
(Mich. Ct. App. 1979) (employing standard of whether new testing could
make a different result “possible” on retrial); Brewer v. State, 819 So. 2d
1169, 1173 (Miss. 2002) (citation omitted) (stating that standard is whether
DNA evidence will “probably produce a different result”); Commonwealth
v. Reese, 663 A.2d 206, 209 (Pa. Super. Ct. 1995) (quoting statutory standard
that DNA evidence must “have affected the outcome of the trial”); State v.
Hicks, 549 N.W.2d 435, 439 (Wis. 1996) (explaining that different result at
trial not necessary if the court concludes that the “real controversy” was not
fully tried); In re Bradford, 165 P.3d 31, 33-34 (Wash. Ct. App. 2007) (using
“will probably change the result of the trial” standard in evaluating DNA
evidence).
Thompson, 411 Md. at 684 n. 10, 985 A.2d at 43 n. 10. Although we were concerned, inter
alia, with the “new trial” provision set forth in Section 8-201(c) (2009), the decision in
Thompson informs our analysis of the sum and substance of the term “exculpatory” and its
place in a remedial statute.
In Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008), cited with approval
in Thompson, the Supreme Court of Kentucky ruled that the defendant was entitled to a
18
new trial on a rape charge after newly discovered DNA test results ruled out the presence
of his DNA in sperm recovered from the victim’s rape kit. After surveying decisions from
other jurisdictions on the issue, the Kentucky high court elaborated:
It would seem that this Court has never thoroughly examined the exculpatory
effect of newly discovered DNA evidence in this context. However, many of
our sister jurisdictions, acknowledging the accuracy, effectiveness, and
implicit interests of justice inherent in DNA testing have recognized the
exculpatory effect that such evidence may have in post-conviction criminal
proceedings.
Bedingfield, 260 S.W.3d at 811. In securing Bedingfield’s conviction, the prosecutor had
emphasized that semen analyzed from the rape kit was crucial proof of Bedingfield’s
identity. A police lab technician, who could not prove Bedingfield as the source of the
semen, nevertheless prompted the “supposition” that he was in any event the perpetrator.
The lab technician’s analysis buttressed an already suspect circumstantial evidence case,
which would have been undermined by the precision of the later DNA test results. The
Kentucky Supreme Court’s conclusion as to the clarifying impact of the DNA testing
merits quotation at length:
Ultimately, the substantive exculpatory nature of the newly discovered DNA
evidence coupled with the blatant testimonial inconsistencies of the material
witnesses and the substantial impact which this newly discovered evidence
has upon said testimony, along with the fact that this evidence would
probably induce a different conclusion by a jury, all serve to warrant a new
trial to avoid a substantial miscarriage of justice.
***
For clarity's sake we emphasize: the presence of sperm which DNA testing
proves did not belong to Appellant does not exonerate him; however, the
presence of this new evidence does cast a long shadow and assuredly merits
consideration in the form a new trial. It cannot be overlooked that in
Appellant's initial trial, all other arguments were enhanced and corroborated
19
by the supposition that the sperm found belonged to Appellant. Indeed, this
theme was central to the Commonwealth's prosecution. Because the
technology was not available for Appellant to refute that claim, Appellant
was left to rely on his word against that of the Commonwealth. This new
evidence is substantial, if not pivotal, and we are inclined to believe that it is
precisely the type of evidence that is envisioned by the rule and that may
change the result if a new trial were granted.
Bedingfield, 260 S.W.3d at 814–15 (emphasis added) (statutory citation omitted).
The Bedingfield Court’s analysis of the “exculpatory effect” of the DNA evidence
applies with substantial force to our inquiry into the proper assessment of the term
“exculpate” as written in our statute.
The Kansas Supreme Court’s opinion in State v. Hernandez, 366 P.3d 200 (Kan.
2016), also helps to inform our analysis. Hernandez was convicted of raping and
sodomizing his daughter. Hernandez, 366 P.3d at 202. At trial, evidence showed that the
assaults took place on the victim’s bed and on the petitioner’s bed. Id. Evidence also
showed that the petitioner sometimes used condoms and sometimes did not. Id. During
the investigation of the crime, police recovered a sheet from the victim’s bed and bedding
from the petitioner’s bed, but neither item of evidence was tested for DNA at that time.
Hernandez, 366 P.3d at 203. After his conviction, the petitioner filed a petition seeking
DNA testing of the sheets and bedding. Id. Kansas’s post-conviction DNA testing statute
is similarly worded to our own, and provides that “[a] court shall order DNA testing
pursuant to a petition made under subsection (a) upon a determination that testing may
produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that
the petitioner was wrongfully convicted or sentenced.” KAN. STAT. ANN. § 21-2512;
20
Hernandez, 366 P.3d at 204. The trial court denied his petition and petitioner appealed to
the Kansas Supreme Court. Hernandez, 366 P.3d at 203.
The prosecution argued that the absence of Hernandez’s DNA on the evidence
“would not have changed the verdict.” Hernandez, 366 P.3d at 206. In rejecting the state’s
argument, the Kansas high court defined exculpatory as evidence that “tends to disprove a
fact in issue which is material to guilt or punishment.” Id. The court noted that evidence
can be exculpatory without being exonerating and that “[t]o be exculpatory evidence, it
need not definitively prove the petitioner’s innocence but only tend to disprove a disputed
material fact.” Hernandez, 366 P.3d at 208 (emphasis added). The Hernandez court’s
interpretation of the term “exculpatory” applies with equal force to the case before us. This
is consistent with the interpretation of this term by our intermediate appellate court. See
Jackson v. State, 207 Md. App. 336, 357, 52 A.3d 980, 992 (“[E]xculpatory evidence is
that which is capable of clearing or tending to clear the accused of guilt.”) (citations and
internal quotation marks omitted), cert. denied, 429 Md. 530, 56 A.3d 1242 (2012).
We thus hold that “exculpatory” under § 8-201(d)(1) means evidence that would
tend to clear the accused of guilt, or tend to establish his or her innocence. We further hold
that “exculpatory” under this provision does not require a petitioner to establish that the
result would have been different if the DNA results sought were known at the time of the
trial. Accordingly, we hold that the hearing judge erroneously applied the wrong standard
when she ruled that there was “no possibility that a DNA test performed on the items
requested would exonerate [Appellant].”
Recently, in Wallace v. State, this Court had the occasion to address the definition
21
of “scientific identification evidence” for purposes of the evidence retention provisions of
the Postconviction DNA testing statute. See Crim. Proc. §§ 8-201(a)(5), 8-201(j). In that
case, we examined the different thresholds that a petitioner must satisfy in showing the
State’s duty to preserve certain evidence, Crim. Proc. § 8-201(j), and in demonstrating
entitlement to DNA testing, Crim. Proc. § 8-201(d). Wallace, ___ Md. at ___, ___ A.3d at
___, 2017 WL 1422828 *7.
We concluded in Wallace that the correct legal standard for holding the State to the
obligation to preserve evidence was not stringent:
The threshold that a petitioner must satisfy in order to show that the
State had a duty to preserve certain evidence under the Postconviction DNA
Testing Statute is lower than the threshold that a petitioner must satisfy in
order to be entitled to DNA testing on that evidence. In other words,
evidence that satisfies the “reasonable probability” standard of subsection
(d), and is therefore subject to DNA testing, is a subcategory of evidence that
satisfies the definition of “scientific identification evidence” in subsection
(a), and is therefore subject to the State's duty of preservation. “Scientific
identification evidence” includes all evidence that “contains biological
evidence from which DNA may be recovered that may produce exculpatory
or mitigating evidence relevant to a claim of a convicted person of wrongful
conviction or sentencing if subject to DNA testing.”
Wallace, ___ Md. at ___, ___ A.3d at ___, 2017 WL 1422828, at *7 (footnote omitted).
We went on to hold in Wallace that the T-shirt in question did not qualify as
“scientific identification evidence” because there was “no possibility, or chance, that DNA
testing could have produced exculpatory or mitigating evidence. Wallace, ___ Md. at ___,
___ A.3d at ___, 2017 WL 1422828, at *9. By contrast, the articles described by Ms. K. in
the case before us, particularly the cigarette lighter, were not merely random items that
22
would be the subject of a “fishing expedition,” but potentially relevant material that may
satisfy the slightly higher threshold for demonstrating entitlement to DNA testing.
The State argues that the absence of Appellant’s DNA on the lighter does not
“prove” he was not the assailant because Appellant “was charged with sexual assault; he
was not charged with touching a lighter” and that “[a]ny assessment of the exculpatory
value of lighter-related evidence must be understood in that context—the lighter (unlike,
say, the murder weapon in Gregg) was of marginal relevance.” (emphasis added). This
contention confuses the concept of exculpatory evidence. The fact that the jurors were
informed, even repeatedly, that there was no forensic evidence linking Appellant with the
incident, does not detract from the fact that DNA testing might rule out the presence of
Appellant’s DNA on the items tested.
The State posits that our decision in Brown v. State, 431 Md. 576, 66 A.3d 675
(2013), is apposite. In that case we held that DNA test results showing an absence of the
defendant’s DNA on an assault weapon “did not contradict or undercut any information
presented to the jury at trial.” Brown, 431 Md. at 589, 66 A.3d at 683. In denying Brown’s
motion for a new trial, the post-conviction court in that case determined that negative
results from DNA testing did not undermine the prosecution’s case, because the jury heard,
at length, evidence that there was no forensic evidence linking Brown to the crime. We
affirmed.
We explained that, in the context of a motion for a new trial, the post-conviction
court “did not abuse its discretion in finding that the absence of Brown’s DNA on [the
23
evidence in question] did not provide a substantial possibility that the jury would have
reached a different conclusion with respect to Brown’s guilt.” Brown, 431 Md. at 589, 66
A.3d at 683. The distinction between Brown and the case before us is that Brown’s petition
was evaluated in the context of a motion for a new trial and the evidence of trial was such
that the post-conviction court was satisfied that, in light of the DNA evidence, Brown failed
to demonstrate a “substantial possibility that he would not have been found guilty if the
DNA evidence had been introduced at trial,” while the post-conviction court in the case
applied an incorrect legal standard. 431 Md. at 590, 66 A.3d at 683-84.
The State further posits that the absence of trace evidence only proves that there was
no trace evidence. The State claims that DNA cannot establish a negative, meaning that
although the presence of Appellant’s DNA on the lighter would tend to establish he was
the perpetrator, the absence of his DNA would not tend to establish that he was not the
perpetrator; the absence of a DNA match effectively proves nothing, according to the State.
The absence of Appellant’s DNA has the potential to exculpate Appellant to the
extent that it would tend to prove that he either did or did not use the lighter that Ms. K.
testified was used by the man who assaulted her. Where criminal agency is an issue, such
as in this case, evidence tending to prove or disprove that the accused’s DNA is present on
items that the perpetrator touched or may have come into contact with has a great potential
to exculpate. Thus, the State’s attempt to distinguish Gregg on the basis that the item to
be tested in that case was the instrument of the crime, is not dispositive with respect to all
24
cases of DNA testing.15 Although the absence of Appellant’s DNA on the lighter would
not conclusively prove that Appellant did not assault Ms. K., as the attacker may not have
transferred any trace DNA to the lighter, absolute certainty is not the standard.
In assessing whether there is a reasonable probability that DNA testing may produce
exculpatory or mitigating evidence, where the State has possession of an item that a
perpetrator allegedly touched, a court may take into account factors such as the nature of
the item (e.g., whether it is an instrumentality of the crime), the physical proximity between
where the item was located and where the crime occurred, and the temporal proximity
between when the perpetrator touched the item and when the crime occurred. Applying
these factors to the instant case, we conclude that Appellant has established that DNA
testing is warranted as to the cigarette lighter. Although the cigarette lighter is not an
instrumentality of the crime, the physical proximity between where the lighter was located
and where the crime occurred and the temporal proximity between when the perpetrator
touched the lighter and when the crime occurred are factors that weigh heavily in favor of
granting Appellant’s request. The perpetrator gained access to Ms. K.’s vehicle by asking
15
This is only true with respect to the cigarette lighter. Under our interpretation of the
DNA statute, Appellant would not be entitled to testing of the Forever 21 bag and the
cigarette pack. Appellant’s contention that the perpetrator “could have” transferred
epithelial cells due to his “proximity” to these items speaks to a mere possibility and is
insufficient to satisfy the reasonable probability standard. These items were items that the
perpetrator could have possibly or conceivably come into contact with, but the trial record
in this case contains no evidence that the perpetrator actually did come into contact with
these items. Unlike the cigarette lighter in this case, the absence of Appellant’s DNA on
these items would not tend to establish that he was not the perpetrator of this crime, as the
perpetrator of this crime was never alleged to or shown to have come into contact with
these items.
25
to borrow her lighter, and the crime occurred immediately after the perpetrator touched the
lighter. In sum, as discussed above, the standard is simply whether there is a reasonable
probability, or fair likelihood, that the testing has the potential to produce exculpatory
evidence, which in turn, is evidence that tends to disprove or negate a petitioner’s guilt.
CONCLUSION
The hearing judge incorrectly applied a more stringent standard that would require
Appellant to show that the DNA testing he seeks would exonerate him. Given the extant
record, we conclude that Appellant has established that DNA testing is warranted in light
of the proper standard set forth above. Accordingly, we shall vacate the order of the hearing
judge and remand the case to the Circuit Court to enter an order directing DNA testing on
the cigarette lighter. Crim. Proc. § 8-201(d). See Gregg v. State, 409 Md. at 721, 976 A.2d
at 1012 (remanding a post-conviction DNA case for circuit court to direct DNA testing).
Cf. Simms v. State, 409 Md. at 733-34, 976 A.2d at 1019–20 (holding petition facially
sufficient to warrant DNA testing; remanding for Circuit Court to direct State to respond
to petition).
JUDGMENT OF THE CIRCUIT COURT
FOR ST. MARY’S COUNTY VACATED.
CASE REMANDED TO THAT COURT
WITH DIRECTION TO ISSUE AN
ORDER FOR DNA TESTING
CONSISTENT WITH THIS OPINION.
STATE TO PAY THE COSTS.
26