*1
Court of Sept. 18, 2011. Denied Nov.
Reconsideration *2 DeSimone, Jr., (Paul Marc A. Assistant Public Defender B. DeWolfe, Defender, Baltimore, MD), Public on brief Jr., Taylor, Gansler,
Robert Atty. Asst. Gen. F. (Douglas Atty. Baltimore, MD), brief, of Maryland, Gen. Appel- for lee.
Argued HARRELL, GREENE, before ADKINS, BARBERA, ELDRIDGE, (Retired, JOHN C. Specially Assigned), RODOWSKY, (Retired, LAWRENCE F. Specially Assigned) RAKER, (Retired, and IRMA S. Specially Assigned), JJ.
GREENE, J. 1974, In Appellant, Douglas Arey, Scott was convicted of first-degree murder and use of a handgun the commission 2001, of a felony. In Maryland Legislature passed the DNA Act,1 Evidence—Postconviction Review becoming one of more than thirty states which now have similar statutes providing for postconviction scientific testing evidence in cases petitioner where the was convicted of one or more statutorily enumerated crimes. See Blake v.
213, 218-19, (2006) 1020, I). 909 A.2d Section 8- {Blake 201(b) of Criminal Procedure Article of the Maryland Code grants a right person to a convicted of one or more specified crimes to petition file a for DNA testing evidence in the possession of the State that relates to a conviction. See Md. (2001, 8-201(b) Code 2008 Repl.Vol.), § of the Criminal Proce- 7, dure 2002, Article.2 On May filed a in the Chapter 418 of the Acts of 2001. specified, 2. Unless statutory otherwise all references are to Md.Code (2001, Repl.Vol.), § 8-201 of the Criminal Procedure Article. provides pertinent Section part: 8-201 City postconviction Baltimore for Court for Circuit On related to his conviction. concluding that petition, dismissed the Circuit Court no existed. Arey’s longer conviction the evidence related ruling timely appeal filed from that July On are 8-201(j)(6).3 directly pursuant this Court We following questions: asked decide (1) City] when Did Baltimore err for [Circuit had a reasonable search performed
held that the State conviction, to Mr. relating for biological Mr. request production and dismissed evidence?4 City] deny- Did Court for Baltimоre err the [Circuit testing of Arey’s request production
ing Mr. *3 day to his biological relating evidence conviction affidavit, thus, pivotal filed a and without after the State to Arey respond a reasonable to giving Mr. to prior in that affidavit allegations the factual contained dismissal. (b) governing Filing other law petition.—Notwithstanding of relief, § 2- person of a of
postconviction a who is convicted violation 2-20'4, through §§ § or 3-306 the Criminal 3-303 of testing of DNA scientific identifica- Law Article file for (i) possesses provided as of tion that the State subsection judgment is related of conviction. this section and that to (d) (c) requiring testing.—Subject to of this Findings DNA subsection section, testing that: order DNA if court finds a court shall (1) testing probability exists that the DNA has reasonable produce exculpatory mitigating potential to or scientific sentencing; and wrongful relevant to a claim conviction testing generally requested employs test a method DNA community. accepted the relevant scientific within an 8—201(j)(6) appeal Appeals allows an to the Court from 3. Section of the statute. order entered under certain subsections prematurely Arey's hearing judge ruled 4. Because we hold that the provided adequate opportunity petition, Arey was not to affidavit, regard first issue to the we decline address the with Instead, Circuit search. we shall remand to the reasonableness of the proceedings. Court for further below, For the shall reverse the dismissal reasons stated we and for Arey’s petition remand further proceedings opinion. consistent with this AND
FACTS PROCEDURAL HISTORY In May City police Arey Baltimore officers contacted and that he come into the requested questioning station regarding the death of his former Samuel employer, Shapiro. voluntarily submitting Arey After questioning, confessed the police Shapiro charged that he shot and was with first dеgree murder and other related Among crimes. the evidence presented by original the State at the trial was a blue denim wearing shirt which had been when he arrived at the police questioning. station for There a small amount of shirt, blood on the right shoulder area of the which pretrial claimed was his own blood. At a hearing, Arey asserted nervously picking pimples that he had been on his during face interrogation wiped had the blood on the back of his shirt. Detective James City Russell Baltimore Police Department testified that he had observed this occur. Davis, The State presented expert testimony from Robert S. technician, police department’s crime laboratory who testi- fied that analysis scientific had resulted in the finding that the blood, type shirt contained AB which matched the victim’s type, blood Arey’s type did not match 0 blood. counsel argued that the mixture of blood and bacteria from Arey’s pimples could have created an inaccurate type blood if result the bacteria antigens contained similar to those found *4 in AB blood. counsel attempted to demonstrate this pretrial effect at a hearing by applying a mixture of Arey’s blood and bacteria to the samе submitting shirt and it for re- test, however, testing. type The blood in finding resulted of type 0 blood.
The analysis results of the scientific of the blood Arey’s on evidence, shirt were into along admitted with the testimony Moon, Dennis who claimed to Arey have assisted with the murder, Arey 1974, and the confession from In April himself. Arey was first-degree convicted of murder and use of life felony, of a and sentenced commission
handgun
Court
Maryland
years
ten
concurrent.
plus
imprisonment
2,
on June
1975.
the conviction
affirmed
Special Appeals
in the Circuit
7, 2002, Arey
pro
petition
filed a
se
May
On
of the Criminal
under
8-201
City
Baltimore
Court for
evi-
Article, seeking postconviction
Procedure
an
produced
The State
his convictions.
related to
dence
no
that the evidence
averring
sergeant
of a police
affidavit
the database
searched
sergeant
after the
existed
longer
Evidence
Department’s
Police
City
Baltimore
of the
records
(ECU)
reference to the evidence.
and found no
Unit
Control
Baltimore
affidavit,
Court for
the Circuit
the basis of the
On
17,
July
2006.
on
petition
dismissed the
City
remanded,
that the Circuit
2007,
holding
In
reversed and
we
because the State’s
dismissing
erred
search
constitute a reasonable
was not sufficient
affidavit
491,
See
rеquested.
the evidence
I).
out
501,
(Arey
pointed
We
929 A.2d
to determine
attempted
State should
that “[t]he
in Balti-
handling
destroying
proper protocol
this,
have discover-
might
From
the State
in 1974.
City
more
evidence or
requested
for the
to search
other locations
ed
I,
Md. at
fate.”
conclusively its
more
determined
504,
On At the first of 2010. of 2007 and November between that a contended State hearing on November destroyed when damaged amount of evidence large building Police City Department Baltimore basement claimed by Hurricane Isabel was flooded contractor to an outside securing in the that it was recovered from of all of the evidence inventory conduct February Lieuten- hearing At the second flood. Andrew, officer of commanding Michael ant Colonel ECU, that a testified City Department’s Police Baltimore 417,000 recov- of evidence pieces had inventoried contractor evidence related to and found no from the flood ered *5 however, did that a warehouse testify, Lt. Col. Andrew case. clothing damaged a mass of unidentifiable containing At third on June hearing not searched. flood was Baltimore logbook City from the provided the State laboratory crime which showed that the Department’s Police May evidence in case was examined some- Court for Baltimore one with the initials “R.S.D.” Circuit City identity ordered the State to ascertain the R.S.D. with access to the On provide Arey’s logbook. counsel 19, 2010, the State filed an affidavit from Robert S. April Davis,5 laboratory crime technician who testified at trial, original following which contained the relevant aver- ments: shirt, I performed do not recall the work I I
upon certainly might it and have no recollection of where I it might last have seen it or where be now.
(4) I dо recall that I did not personally keep any physical after was testing performed upon cases such [i]n items, shirt, evidence and that such ordinarily were returned to the laboratory Evidence Control Unit after work completed.
(5) The I sample small about test would gener- [sic] ally be consumed of analysis. We retained no laboratory when our work was complete. later, April days On the Circuit Court dis- missed the for DNA on the that the ground State conducted a reasonable search for the evidence. The following court issued the Order: the State’s
With submission the affidavit of Ronald Davis, the ECU crime lab technician who handled Petition- case; having er’s evidence held a final hearing 7, 2010; previous hearings 5. The initials R.S.D. caused some confusion at in this case, Davis,” parties referring with the often to a "Ronald S. when it gave was "Robert. S. Davis” who the averments and who testified at Arey's original dismissing petition, trial. In the order the Circuit incorrectly referred to affiant as Ronald S. Davis. done a reason- that the State has *6 is satisfied The Court Proce- Maryland’s § Criminal under 8-201 able search 2010, hereby Article; Day April, it is this 21st dure Testing Motion for Arey’s that Mr. ORDERED DENIED. this ruling that Court. appeal from timely noted a
DISCUSSION that the ruling Court’s reviewing a Circuit When will under was reаsonable State’s search clearly erroneous. they unless are findings of fact uphold State, 15 A.3d Blake v.
(Blake II). Court, Arey first contends In to this appeal his per in that the State judge holding erred hearing that the to his convic relating evidence search for formed a reasonable evidence was the search for Arey, State’s According tion. by proper only it consisted of a search because not reasonable with number associated property the ty number when specifically, More or unknown. either undisclosed case was large through to look has failed that State Arey argues neglected the shirt and has clothing” for mass of “old laboratory the crime used search for blood slides view, issues, in are left our best analysis. These type blood instance, on in the first to resolve hearing judge for the Secondly, Arey them. remand, to address and we decline on prematurely ruling erred hearing judge argues that day it the after by dismissing for DNA petition his Mr. Davis.6 affidavit of pivotal State filed that the hearing judge’s finding contends that The State “clear- for evidence is not a reasonable search conducted State of review set forth to the standard pursuant erroneous” ly affida- submitting Davis’s II. to the Blake According a reasonable search. conducting vit, met its burden it has all of the that it has searched contends Additionally, the State noted, April the trial on 2010 and supra, the affidavit was filed 6. As 21, 2010, receiving days after dismissed affidavit, day, Arey asserts. than one rather found have been could possibly the evidence where places chambers, original ECU, judge’s original trial including office, courtroom, office, court clerk’s Attorney’s State’s control property office. court While reporter’s and the was never the evidence case associated with number made located, attеmpts that were the State contends other and the complaint the criminal number using find the maintains Finally, the shirt. description of physical evidence-handling proto- sufficiently identified the it has officers would author- by presenting testimony col con- appeals direct the destruction of after ize judge’s hearing to hold that the we decline Although cluded. that, erroneous, clearly we do decide ultimate conclusion *7 us, Accord- premature. ruling record before on the Baltimore case to Circuit Court for remand the ingly, we proceedings. for further City ruling petition hearing judge erred affidavit after thе submitted an
testing only
days
two
I and
decisions in Blake
key
a
witness. This Court’s
from
1,
support
412
Appellant had a liberty stake, interest at was, at a minimum, entitled to notice of the impending action, even if he did not have the right to an oral hearing. See Mathews v. Eldridge, 319, 333, U.S. S.Ct. 47 L.Ed.2d (1976). Consequently, the failure of the Circuit Court to provide any notice to appellant that the State had filed the motion to dismiss and that the court intended to rule upon it, and its dismissal of the petition without affording appel- lant opportunity to respond, violated his rights to due process. I,
Blake
In
the hearing judge dismissed Horton’s petition
under
8-201 for
testing
of evidence related to his
conviction on the ground that
the evidence did not exist.
Horton, 412
Md. at
The that continued State maintains location of regarding the any not further information reveal a bar to argument as reject evidence. the DNA We that it is contends respond. State opportunity were ever marked evi- the blood slides unclear whether us, however, before held in the ECU. record dence or for the procedure of the not indication provide does affidavit though Even of slides. storing disposing slides laboratory avers that supervisor crime from the laboratory, the of the crime in hand search were not found regarding to find a notation was able subsequently log book laboratory’s case analysis of evidence this Davis’s affidavit indicates initials Robert S. Davis. with the laboratory аfter not in the crime kept was amount of blood was and that the small complete was still unclear what by testing, “consumed” but it is generally slides made for the blood protocol disposal existed for analysis. Davis, Arey’s counsel opportunity to interview
Given laboratory the crime may able to information about be obtain of the possible on the location light that could shed protocol a more detailed provide be able evidence. Davis at the time of trial actually followed procedures account of analysis of once disposed whether were such as slides freezer, in the or wheth- slides were stored complete, whether for slides those situations procedure place er there was consumed completely where the blood was that no further infor- possibility While exists analysis. Davis, Arey with mation come from an interview still would or other- probe, challenge, given must be before a the statements in the affidavit wise can be rendered. decision II affirmed where consider the case Blake
We
for DNA
testing.
of a
hearing judge’s
dismissal
II,
I’d love have the opportunity to interview him____Specif- ically want, what I if it were up to me and I were the what I would do is I would have RSD come in and on the record talk to him about the protocols that were found Now if he [sic].... doesn’t remember specifically handling this, which I think likely, he will remember what the protocols then, were back I hope____ would I think Mr. Davis would be a place to start who give could us informa- tion of the places mean, best to look. I once we get that it, information if he has I mean maybe he doesn’t remember anything, but we don’t know. And this, the whole point of I believe, is for the State ... to be able to say with certainty, they’re what saying. They’re saying the evidence doesn’t my exist. And question is how you do know that____[W]hy don’t we ask peoplе might who have seen it.
In accordance with this Court’s decisions in Blake I and
Horton,
the hearing judge should not have dismissed the
petition by ruling on it
days
after the State provided an
Davis,
affidavit from Mr.
the retired laboratory technician,
without providing the defendant “an
and to challenge the State’s representation.”
I,
Blake
339 should case, in this the least, to dismissed, had an at until been Therefore, we most recent affidavit. to the State’s Court for further case to the Circuit and remand this reverse proceedings. FOR BALTI- COURT THE CIRCUIT OF
JUDGMENT REMANDED TO CASE CITY IS REVERSED. MORE PROCEEDINGS CONSIS- THAT FOR FURTHER COURT BE PAID BY TO TENT THIS COSTS WITH OPINION. OF BALTIMORE. THE AND CITY COUNCIL MAYOR J., HARRELL, Concurs.
HARRELL, J., Concurring. Court, as I subscribing
I the do judgment in the of concur its conclusion opinion’s reasoning supporting Majority to the unfairly when it prematurely trial court acted and that the Arey’s I April denying petition.1 an order on 21 2010 entered however, Majority opinion’s at the avoidance of perplexed, am the initial whether trial Arey’s question presented regarding declaring in clearly penultimately erroneous initial burden of effectively discharged that the State had its conducted a reasonable production regarding whethеr had to missing point. Majority for the that search dooms opinion, question,2 its short shrift treatment prosecutor 1. S. Davis was to The affidavit Robert transmitted April Arey’s 19 2010. The trial counsel cover letter of copy as 20 2010. There is no Court's was docketed filed on extract that counsel knew in advance indication the record be, although he what the contents of the Davis affidavit would had State, Davis, apparent ability employee to a retired of the on his contact prior receipt for some time to of the affidavit initiative considerable course, long juncture to at that in the life of this and failed do so. Of because, case, imperative statutory legal to at had no do so time, production the burden of as to the reasonable- the State bore still missing ness its search for evidence. parties' reciting appellate arguments to 2. After the reasonable- determination, Majority opinion says simply, ness "These issues in resolve, hearing judge our are best to first view left for course, instance, Majority op. at 29 at Of on remand.” A.3d exploitable happen confusion what should on remand.3 Accordingly, I reach and would decide first question as well. review,
Although mentioning the correct standard of see Majority op. at opinion A.3d the Majority declines to apply judge’s standard the trial reasonable- ness determination. clear instructions Blake v. 445, 460,15 (2011), A.3d are for us defer judge’s determination reasonableness search, State’s unless that determination errone- “clearly *11 (and ous.” The Majority’s my) that Arey conclusion and his in opportunity, counsel deserve an part, respond to the (Robert State’s submission the crime lab technician’s S. Davis’s) (which affidavit can do in Arey the bur- discharging production him), den of now shifted does not us from relieve resolving the properly threshold inquiry of whether the hear- ing judge’s finding first instance that the made a State clearly reasonable search is erroneous. For the sake order alone, we must reach and decide this issue now. (2001,
Maryland Code Repl.Vol.), 2008 Criminal Procedure Article, § Maryland (2009), Rule 4-710 and the cases hearing judge already resolved "these when issues” she concluded production that State met its initial burden of that a reasonable (2001, missing had search been made for the See evidence. Md.Code Art., Repl.Vol.), 2008 Criminal Proc. 8-201. This determination preceded court’s ultimate conclusion that should be Majority opinion agree The denied. аnd I that ultimate decision premature Arey was opportunity and unfair because given should have been discharge to the State's of its initial burden of production, completed was filing which with the of Mr. Davis’s affida- between, Majority opinion The completely
vit. misses the distinction of, significance penultimate and and ultimate determinations hearing judge, implicitly throwing (although out purports both not to judge’s finding decide whether clearly reasonableness errone- 335, 990, Majority op. ous—see "[ajlthough 29 A.3d at we decline to hearing judge's hold that the clearly ultimate conclusion was erroneous ...”). Clarity in our directions important on remand is all more here judge a because proceedings. judge different will conduct those The presided who proceedings culminating over extensive the 21 April 2010 denial order has retired since and did seek the Court’s approval to be recalled.
341 and the statute interpreting Majority opinion to in the alluded ” search a “reasonable to conduct the State require rule a required to conduct The is not missing evidence. “exhaustive” search. “complete” litigators, litigants, leaves muddled Majority opinion in similar by parties to be borne Bench alike the burdens remand. Our particular in this case proceedings to which respect already unclear with caselaw somewhat con- hearing a to the defendant when shift burdens here, prima a cludes, the State established happened example, For we its search. reasonableness of facie case of I that: stated and demon- reasonable search performs the State
Once case, directly or either prima sufficiently strates fade ex- longer no circumstantially, requested persuasion. ists, will have satisfied its burden the State petitioner shifts to the production then The burden аctually exists. that the evidence demonstrate (2007) 501, 509 400 929 A.2d Md. added). synonymous facie” are “prima words (emphases See, Questar Build e.g., production.” “burden of usually with LLC, n. A.2d ers, Flooring, Inc. v. Md. CB (“CB the initial burden of Flooring 651, 675 n. 25 bears *12 that prima showing Questar a to adduce facie production clause in bad termination for convenience the invoked ”). Thus, that, at in I suggests the language faith.... a the State inception proceeding, of DNA post-conviction the and but both production persuasion, the burdens of bears defendant, the satisfacto upon showing shift to the a search, that, the DNA the after a reasonable ry judgе, found does not exist. not be evidence could production of shifts between only the burden Ordinarily, party with the persuasion usually of parties; stays the burden Lynn Maryland Mclain, originally. bore it See Evi- (“As (2d 2001) a § 23 ed. 300:2 n. and Federal dencia—State shift, but rale, persuasion] does general th[e] [of burden beginning of as allocated the throughout the trial remains Pickett, 186, 203-04, 401 v. Md. trial.”); Co. 285 Sergeant 342 651, (“The i.e.,
A.2d burden of [persuasion], the risk non[-]persuasion, of never shifts from the on it is party whom (internal omitted)). placed.” quotation In marks citation elucidating conceit, this we from quoted Dean McCormick for proposition that:
“The producing burden of on an issue means the liability to an ruling (generally finding adverse a or directed verdict) if evidence has produced____ on issue not been of producing burden evidence is a in critical mechanism trial, jury as it empowers judge to decide the case without jury party consideration when fails sustain burden. of persuasion burden becomes a if only crucial factor parties sustained their burdens of evi- producing only
dence and all of when the evidence has intro- been duced. It does not from party during shift party simply course of the trial it because need not be allocated until it is time for a decision. When the time for a decision comes ... must jury [t]he be told that if party having persuasion burden, the burden of satisfy has failed to the issue is to be decided him. against jury If there is no doubt, himself and the finds he too must decide issue against party having the burden persuasion [C. (3d at 947 ed. McCormick, McCormick Evidence 1984)].” Inc., Corp. Warehouses, Reserve
Commodities Belt’s Wharf (1987). Md. 368 n. A.2d 823 n. 2 a clearer Without indication of legislative Maryland intent (2001, Code 2008 Repl.Vol.), Article, § Criminal Procedure 8- 201, Maryland (2009), caselaw, Rule our 4-710 we be should reluctant to shifting countenance the burden persuasion, opposed production, to thе burden missing cases. The defendant does not regain usually control from type evidence taken him case after Thus, and used acquired at trial. if the evidence is trial, (or likely retained after is in *13 most the State’s its agents’) possession, if all. this, it exists at Because of has production State the burden of and persuasion at the
343 however, if the DNA proceeding; aof post-conviction outset DNA evidence that the showing facie prima State makes a testimony documents (e.g., presents not exist does and/or was a reasonable search judge that hearing persuading shifts to made), production only then the burden Corp., 353 Md. St. Cadillac Murphy defendant. See 24th (1999). 727 A.2d 921 “clearly erroneous” stan- the deferential Applying properly of the State’s here as to reasonableness dard to record determi- hearing judge’s that the search, we should conclude discharged prima its facie burden that the State nation and, thus, production the burden of clearly erroneous I, at See 929 Arey to on remand. Arey shifts case, that, its (stating presents after the State A.2d at petitioner to production burden of then shifts to the “[t]he exists”). The record is actually that the demonstrate as judge’s finding the trial reasonableness ample support to well Majority opinion to The documents the State’s search. op. 29 A.3d at finding Majority for that the bases 988-89. (and Arey an concern that Majority opinion’s my) and, the face Davis’s affidavit inquire to behind
further, judge that his attempt persuade hearing denied, through Arey vindicated should not be be production. the shifted burden of attempting discharge role he already played who Davis is Arey knows his Davis testified at securing conviction because missing sought-after work on the trial. Davis’s lab crime) trial). (the (Arey’s and 1974 occurred between present proceedings, informed in the course of ad- triаl of the since-retired Davis’s current counsel dress, some months before as ordered Thus, may examine was filed here. Davis’s affidavit (once Arey him or the open court serves with Davis accommodation) appear persuades Davis he of his versus what challenging accuracy non-recollection recall in the affidavit.4 does apparently imagine probe what will behind It is little difficult to how non, regarding the vel and the Davis in his affidavit existence stated whereabouts, "missing” Davis evidence. stated: *14 hearing judge’s and premature unfair decision to deny so promptly after receiving Davis affidavit does reflect adversely prior on determination as to the prima facie reasonableness of State’s search to that point. reasonable, search State’s notwithstanding the hear- ing judge’s denial, error in signing 2010 order of without giving adduce evidence that exists and it may evidence where be found. That why case, there questions presented were one address- (for ing the reasonableness of the State’s search burden and shifting purposes) the other the prematurity fairness judge’s Arey’s petition denial of 21 April on We questions. should answer both (cid:127) shirt, any performed "I do not recall the work I have on it and certainly might I have no of where recollection I last seen it might where be now.” (cid:127) physical personally keep any shirt, "I do recall that I did not items, ordinarily such that- as a were returned to the laboratory Evidence Control Unit after complet- ["ECU"] work was ed.” (cid:127) sample generally [amount] "The small that I test would be analysis. consumed We retained no evidence in laboratory complete.” when our work was here, proved
As the State the ECU was searched and the evidence not expectancy found It highly there. seems to me a low that even skilled likely inspire leading cross-examination of Davis is a catharsis and, shedding light actually information whether exists so, event, given of where it is. In opportunity. should be