Arey v. State

RAKER, J. This case concerns a request by an inmate for DNA testing of evidence used by the State at his criminal trial in 1974. Douglas Scott Arey, appellant, was convicted by a jury in the Criminal Court of Baltimore, now known as the Circuit Court for Baltimore City, of first degree murder and use of a handgun in the commission of a crime of violence. On May 7, 2002, appellant filed a petition in the Circuit Court for Baltimore City pursuant to Md.Code (2001, 2006 Cum.Supp.) § 8-201 of the Criminal Procedure Article, 1 requesting DNA testing of blood evidence introduced at his 1974 trial. On July 18, 2006, the court denied the petition on the grounds that the ⁴⁹⁵ requested evidence no longer exists.

Appellant noted a timely appeal directly to this Court pursuant to § 8—201(j)(6). 2 We shall reverse and remand. I. In May 1973, appellant was indicted by the Grand Jury for Baltimore City on charges of first degree murder and other related crimes. He proceeded to trial before a jury in April 1974, and was convicted of first degree murder and use of a handgun in the commission of a crime of violence. The court imposed a sentence of life imprisonment for first degree murder, and a concurrent sentence of ten years for the handgun violation.

On June 2, 1975, the Court of Special Appeals, in an unreported opinion, affirmed the judgments of conviction. We glean the following facts underlying appellant’s conviction from the record of appellant’s trial and the unreported opinion of the Court of Special Appeals. Appellant was employed by Samuel Shapiro, and was fired by him around April 27, 1973 because of appellant’s violent temper. Shapiro’s secretary, Nancy Frank, testified at trial that she overheard an argument between appellant and Shapiro about when appellant could pick up his final paycheck.

Shapiro told appellant that he could pick up the paycheck a week after his termination, and after appellant returned a specific set of keys. Soon thereafter, a woman attempted to retrieve the paycheck from Frank for appellant, but Frank refused to give it to her because appellant had yet to return the keys. Frank testified that when she returned to work the following Monday morning, the check had been stolen from her desk. Frank testified that after appellant was fired, she found a note stuffed under the door which stated, “I’ll get you, you dirty Jew bastard.” ⁴⁹⁶ At trial, the State called as a witness Dennis Moon, who testified, under a grant of immunity, that he had assisted appellant in murdering Shapiro.

Specifically, Moon testified that on May 9, 1973, he lured Shapiro to the Belvedere Hotel, where appellant shot and killed Shapiro. Appellant and Moon placed Shapiro’s body in a trunk, which they then placed in appellant’s car. Appellant drove to Pennsylvania and threw the trunk into a ravine. The police telephoned appellant about a week later, when Shapiro’s body was found, and asked him to come in for questioning concerning the death of his former boss.

Appellant complied and admitted to the police that he shot Shapiro. After charging appellant, the police seized a shirt and a pair of pants that appellant was then wearing in order to test blood stains on each. The blood was tested and the lab results revealed that the clothing contained type AB blood. The police also took samples of Shapiro’s and appellant’s blood.

Appellant had type 0 blood; Shapiro had type AB. Appellant filed several pretrial motions, including a motion to suppress the results of the blood tests. At a pretrial hearing, he argued that during the police interrogation before the police seized his clothing, he became nervous and started to pick the pimples on his face. By doing this, he caused small amounts of blood to pool on the open sores.

Detective James Russell of the Baltimore City Police Department witnessed the actions of appellant and testified that he observed him wipe the blood from his face onto his shirt. Appellant contended that bacteria from the pustules that emanated from his pimples, which mixed with his blood, may have skewed the results of the blood tests performed on the clothing. Appellant claimed that his bacteria likely contained antigens similar to those tested for in type A and B blood, and that when his bacteria mixed with his blood—through picking his pimples— the mixture produced a result of AB, rather than 0. During a pretrial hearing, appellant asked the court to allow him to replicate the process of putting blood and bacteria from his pimples on the same shirt to show that the original lab ⁴⁹⁷ results were potentially flawed.

The court granted appellant’s request, but the re-testing of appellant’s blood and bacteria mixture resulted in a finding of group 0 blood. Appellant, still unsatisfied by the results of the blood tests, requested custody of the shirt to conduct an independent analysis on the original blood stains. The State claimed, however, that there was insufficient blood remaining to run a proper test, and appellant never obtained custody of the clothing. At trial, the State introduced, inter alia, the results from the blood tests, the testimony of Frank and Moon, and appellant’s confession to establish that appellant was involved in Shapiro’s murder.

As indicated, the jury convicted appellant. On May 7, 2002, appellant, acting pro se from prison, filed a petition in the Circuit Court for Baltimore City pursuant to § 8-201 for DNA testing of the blood that was present on the clothing seized from him during the police interrogation. 3 ⁴⁹⁸ Appellant requested that “the clothing marked as ‘evidence’ be immediately retrieved from the Criminal Court Evidence Lockers, Hall of Records or wherever it may be secured, and provided to defense counsel for independent laboratory analysis.... ” In support of his petition, appellant recounted the testimony of Detective Russell and proffered that DNA testing of the blood on the clothing would show that his blood only is present. Appellant asserted that the laboratory technician who had performed the blood tests was unqualified and gave false testimony about the blood test results. Appellant represented that DNA testing will prove that the laboratory technician lied, and will thereby exonerate him.

It is unclear whether appellant was acting pro se in this case, or whether he was represented by a public defender. 4 Although his initial pleadings were filed pro se, the Circuit Court sent a letter to appellant and the State, dated August 8, 2005, stating that an assistant public defender, Suzanne Drouet, reported to the court that she was told the requested evidence was destroyed many years ago and appellant had 30 days from the date of the letter to provide information to the court indicating otherwise. In response to the court’s letter, appellant filed a pleading, entitled “Response to Bald Allegations; Affidavit of Facts and Exhibits; Motion for Appointment of Counsel and Request for Witness Summons to Appear and Produce Evidence at a Motions Hearing.” He maintained that “[i]t would be egregious to grant the State’s Motion [to dismiss] because Drouet ... has no authority to make claims for the State of Maryland. Her bald allegation is not sup ⁴⁹⁹ ported by any facts....” He prayed that the court order the State to “enter affidavits and evidence that the DNA evidence, and clothing and related trial materials, be certified as having been searched for and the results of such said search outside of second-hand hearsay,” and to “[h]old an evidentiary hearing for appointment of counsel should the Office of the Public Defender decline to continue to represent [appellant]----” The court scheduled a hearing for July 25, 2006, noting that “[s]hould the State produce prior to the hearing an affidavit from someone with firsthand knowledge stating that the State no longer has the evidence for which the [appellant] has requested the testing, there will be no need for the hearing and it will be cancelled.” Subsequently, the State filed an affidavit of police Sergeant David K. Ferber. The affidavit stated as follows: “1.

I have been employed with the Baltimore Police Department since October 17, 1979. I currently serve as the Sergeant-in-charge of the Evidence Control Unit (“ECU”). ECU is charged with the storage of evidence and property seized by the Baltimore Police Department. 2. I have searched the ECU database for the clothes requested by Mr. Arey but cannot locate the same.

In addition, I have searched the forms kept on file in ECU to determine the location of the clothes. However, I did not find any forms that reference the clothes. 3. Because I cannot locate the clothes requested by Mr. Arey through ECU’s database or the forms kept on file, and in light of my experience at ECU, I have concluded that the requested evidence no longer exists.” On July 17, 2006, in light of Sergeant Ferber’s affidavit, the court cancelled the hearing and filed the following Order: “Upon consideration of Petitioner’s Motion for DNA Analysis, all supplemental memoranda filed by Petitioner in support thereof, and the Affidavit of Sergeant David K. Ferber, Sergeant-in-charge of the Evidence Control Unit, it is this 17th day of July 2006, ⁵⁰⁰ ORDERED that the Petitioner’s Motion for DNA Analysis is hereby DENIED for the reason that Sergeant David K. Ferber represented in his affidavit that ‘the [ ] evidence [requested by Petitioner to be tested] no longer exists’ and Mr. Arey has failed to produce any evidence to the contrary.” Appellant filed two subsequent motions entitled “Motion to Strike Defective Affidavit of Sergeant Ferber” and “Motion to Strike the Premature Court Order of July 17, 2006.” Appellant asserted that the court ruled “on a serious case through acceptance of patently false submissions.” In the latter motion, he claimed that “it is egregious for the court to act on any purported affidavit submitted by the respondent State prior to permitting the [appellant] appropriate time ... to rebut or provide further evidence contrary to that allegedly supplied by the State.” In each motion, appellant requested a hearing in the Circuit Court to enable him to respond to the Ferber affidavit. The court denied both motions.

Pursuant to § 8-201(j)(6), appellant noted a timely appeal directly to this Court.

II

Before this Court, appellant argues that the trial court erred in denying his petition for DNA testing because the State failed to show that the evidence he requested for testing no longer exists. He maintains that the Circuit Court erred by placing the burden on him to show that the evidence exists. Appellant also asserts that due process of law entitled him to an evidentiary hearing on his petition for DNA testing. Finally, he argues that he was entitled to the assistance of counsel under Article 24 of the Maryland Declaration of Rights, 5 or, at ⁵⁰¹ a minimum, a discretionary ruling by the court on his request for counsel.

The State responds that the trial court denied appellant’s petition properly by relying on Sergeant Ferber’s affidavit. As to any right to an evidentiary hearing, the State argues that the plain language of § 8-201 does not entitle appellant to an evidentiary hearing on the issue as to whether the DNA evidence still exists. Finally, the State maintains that appellant was not entitled to appointed counsel.

III

We address first appellant’s argument that the State failed to show that the evidence in question no longer exists. Appellant argues that merely checking the ECU database or ECU forms kept on file is neither extensive nor intensive enough to support a reasonable conclusion that the clothes do not exist. Appellant points out that in his affidavit and motion of August 11, 2006, he suggested another location where the clothing could be located, that being the trial judge’s chambers. As a basis for this suggestion, appellant quotes the trial transcript, which reflects that appellant’s clothing was kept locked there during the trial, 6 and the case of Kirk Bloodsworth, where Bloodsworth was exonerated by DNA evidence found in the judge’s chambers.

This Court had occasion to interpret § 8-201 in Blake v. State, 395 Md. 213 , 909 A.2d 1020 (2006). Pursuant to § 8- ⁵⁰² 201, Blake sought an evidentiary hearing and DNA testing of scientific evidence used by the State at his 1982 trial for first degree rape and first degree sexual assault. The Circuit Court summarily dismissed the petition before Blake had an opportunity to respond to the State’s motion to dismiss, which represented that the evidence had been destroyed. This Court held that the Circuit Court should not have summarily dismissed the petition for testing before Blake had an opportunity to respond to the State’s motion to dismiss.

Id. at 222, 909 A.2d at 1025 . We concluded that the court should not have dismissed the petition based merely on the motion before it. Id. at 227 , 909 A.2d at 1028 . In addition, we pointed out that because the evidence had been in the custody of the State, the State had the burden of establishing that it no longer existed.

Id. An unsworn memorandum, stating that the police checked only the evidence control unit and nothing was found, was insufficient to establish that the evidence no longer existed. Id. at 231 , 909 A.2d at 1031 . As guidance, we carefully considered a cogent report published by the National Commission of the Future of DNA Evidence—a commission created in 1998 by the National Institute of Justice (“NIJ”)—entitled “Postconviction DNA Testing: Recommendations for Handling Requests” (“NIJ Report”).

Available at http://www.ncjrs.org/pdffllesl/nij/ 177626.pdf. We noted that the NIJ Report “urges prosecutors to search for evidence in nontraditional sources” and “cautions prosecutors against concluding too hastily that evidence that an inmate has asked to be tested no longer exists.” Blake, 395 Md. at 233 , 909 A.2d at 1031 . We noted that the NIJ Report recommended that a search for evidence should include certain “most likely places,” including, inter alia, the following: 7 “Prosecutor’s office. Evidence is often found here when it has been introduced at trial.

State and local crime laboratories will often retain slides or other pieces of evidence after conducting testing. Labora ⁵⁰³ tories will usually return to the police department the clothing and vaginal swabs that are introduced as exhibits at trial. Hospitals, clinics, or doctors’ offices where sexual assault kits are prepared. Defense investigators.

Courthouse property/evidence rooms. Offices of defense counsel in jurisdictions that require parties to preserve exhibits produced at trial. Independent crime laboratories. Clerks of court.

Court reporters.” Blake, 395 Md. at 221-22 , 909 A.2d at 1025 (quoting NIJ Report at 46). In addition, it is reasonable to assume that police departments, sheriff departments, clerk offices of the court, and like departments had protocols in place for the destruction of evidence, even before the enactment of § 8-201. The State should identify the protocol that was in place from the time of the trial to the time of the request for testing, if possible, and see if that protocol was followed. We agree with appellant that the Circuit Court erred in dismissing his petition for testing based on Sergeant Ferber’s representation that, because he checked the ECU’s database and forms on file, it was reasonable to conclude that the evidence no longer exists. 8 Searching the ECU alone was insufficient.

See Blake, 395 Md. at 232-33 , 909 A.2d at 1031 (stating that “[sjimply asking a police officer to check an evidence unit locker is not sufficient”). The evidence in this case had been tested by a laboratory; slides possibly had been made. We have no idea as to the protocol the police or