Blake v. State

RAKER, J. George E. Blake was convicted in 1982 of first degree rape and first degree sexual offense. On December 1, 2004, he 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 an evidentiary hearing and DNA testing of scientific evidence used by the State at his trial in January 1982. On May 17, 2005, the Circuit Court summarily dismissed the petition. This case requires us to address the procedures a circuit court must follow before it denies a petition for postconviction DNA testing pursuant to § 8-201 on grounds that the evidence the petitioner has asked to be tested no longer exists.

We shall reverse. I. In January 1982, Blake was tried and convicted in the Circuit Court for Baltimore City on the charges of first degree rape and first degree sexual offense. He was sentenced to two consecutive life terms without the possibility of parole. Evidence collected from the victim included pubic hair samples and combings, vaginal swabs, and a blood sample.

An examination by the Maryland crime laboratory revealed intact, non-motile spermatozoa on the vaginal swab samples. ²¹⁷ On December 1, 2004, appellant, George E. Blake, filed this petition in the Circuit Court for Baltimore City pursuant to § 8-201, requesting DNA testing of evidence used by the State at his trial in January 1982. On January 21, 2005, the State filed a motion to dismiss the petition and, on May 17, 2005, filed a supplemental motion to dismiss, stating that the evidence had been destroyed well before October 1, 2001. The State’s certificate of service of the supplemental motion to dismiss was also dated May 17, 2005. The supplemental motion included two attachments.

The first was a letter from the Assistant State’s Attorney to Lt. Sandra Joyce of the Baltimore City Police Department, Special Investigations, requesting the officer consult with the Evidence Control Unit of the Baltimore City Police Department and determine whether there was any evidence preserved relating to Blake’s case. The second attachment was a memorandum directed to Major Frederick Taber from Sgt. Charles Morgan, stating that “[t]he Evidence Control Section was checked by the undersigned, and there was no Evidence found for that case.” On May 17, 2005, the same day the State filed the supplemental motion to dismiss, the trial court summarily dismissed appellant’s petition without holding a hearing or otherwise giving appellant an opportunity to respond to the State’s dispositive motion.

Appellant then noted an application for leave to appeal to the Court of Special Appeals, which transferred the appeal to this Court pursuant to Md. Rule 8-132 on grounds that the appeal should have been noted directly to this Court. 2 II. Appellant raises three issues on appeal. First, he argues that the trial court dismissed his petition improperly because it did not have an adequate factual record before it from which to conclude that the State no longer possessed the evidence appellant asked to be tested, and further that he was entitled ²¹⁸ to a hearing to resolve the factual dispute over the existence of the evidence. Second, appellant alleges that the Circuit Court erred in denying him appointed counsel for proceedings related to his post-conviction petition for DNA testing. 3 Finally, appellant contends that the two mandatory life sentences without parole he received are illegal.

The State contends that an evidentiary hearing is not required because the plain language of § 8-201 does not require an evidentiary hearing, and therefore, the Circuit Court was permitted under the statute to dismiss appellant’s petition without holding a hearing. As to the right to counsel, the State contends that there is no right to counsel under § 8-201. Finally, on the illegal sentence issue, the State argues that we should not address this issue because it was previously litigated and abandoned by appellant on his direct appeal.

III

Maryland is among the many states in this country that have enacted post-conviction DNA testing statutes. 4 Section ²¹⁹ 8-201 was enacted in Maryland in 2001, in line with a nationwide trend to adopt postconviction DNA testing statutes designed to provide an avenue for the exoneration of the actually innocent. In 1994, New York was the first state to adopt a postconviction DNA testing statute. N.Y.Crim. Proc.

Law § 440.30(1-a) (2006). Illinois soon followed in 1998. See 725 Ill. Comp.

Stat. 5/116 — 3(c)(1) (2006) (permitting testing only if “the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence ...” (emphasis added)). Within three years after the enactment of § 8-201, Maryland was one of thirty-two states to have enacted statutes providing for some form of postconviction DNA testing. Continuing this trend Congress enacted the Innocence Protection Act of 2004, Pub.L. 108-405, Title IV, § 401 et seq. (2004), which provides for postconviction DNA testing of prisoners convicted under federal and certain state laws.

See 18 U.S.C. § 3600 (a). Aside from the title, the Innocence Protection Act makes clear that its principal purpose is exoneration of the actually innocent by requiring an applicant for postconviction DNA testing to assert under penalties of perjury that the he or she is actually innocent of the conviction challenged through DNA testing. See id. A broad approach to the future of DNA evidence and recommendations for handling postconviction DNA testing requests were addressed in a report by the National Commission on the Future of DNA Evidence, a commission created in 1998 by the National Institute of Justice (“NIJ”) 5 at the ²²⁰ request of Attorney General Janet Reno.

The National Commission on the Future of DNA Evidence was chaired by Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court, and its members included a number of prominent forensic scientists, legal academics, law enforcement officials, elected public officials, and legal practitioners. The report from the Commission, entitled Postconviction DNA Testing: Recommendations for Handling Requests, National Institute of Justice, National Commission on the Future of DNA Evidence, September 1999, http://www.nc.jrs. org/pdffilesl/nij/177626.pdf (“1999 NIJ Report”), set out proposed guidelines for analyzing cases in which DNA evidence is presented. As a backdrop to our discussion, it is helpful to look briefly at some of the relevant recommendations contained within the report. The report groups requests for post-conviction DNA testing into five broad categories and sets out a framework for analyzing requests of DNA testing as follows: “Category 1.

These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing. Category 2.

These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner’s claim of innocence, but reasonable persons might disagree as to whether the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence. Category 3.

These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will be inconclu ²²¹ sive. Future developments may cause such a case to be reassigned to a different category. Category 4.

These are cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible. Category 5. These are cases in which a request for DNA testing is frivolous.

In these cases, prosecutors and defense counsel should generally agree that no testing is warranted.” Id. at xiii-xiv. The Commission recognized that “[fjinding the evidence is the most difficult part of the process,” id. at 45 , and cautioned prosecutors against concluding too hastily that evidence sought by an inmate no longer exists. The report notes that “[m]any times all parties believe that the evidence has been destroyed, when in fact it has not.” Id. The report states as follows: “If, from initial contact with the investigating officer or review of case files, it appears that evidence suitable for DNA analysis was never collected, or has since been destroyed, it may prove impossible to continue with the rest of this guideline....

However, no final decision or notification should be made until it has been carefully verified that evidence did not or does not still exist.” Id. at 36 (emphasis added). The report recommends that the searcher for evidence should check the most likely places where the evidence may be found, and suggests the following locations: “Police department evidence or property rooms. Evidence is often found here if the evidence was never tested or it was sent to the State crime laboratory, which then returned it. 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 ²²² 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.” Id. at 46 .

IV

We address first the issue of whether the Circuit Court erred in summarily dismissing appellant’s petition for postconviction DNA testing. We hold that the court erred in dismissing the petition without giving appellant an opportunity to respond to the State’s assertion that the evidence at issue no longer was in its possession. Subsections (b), (c), and (d) of § 8-201, which address the prerequisites for entering a DNA testing order, provide as follows: “(b) Filing of petition. — Notwithstanding any other law governing postconviction relief, a person who is convicted of a violation of § 2-201, § 2-204, § 2-207, or §§ 3-303 through 3-306 of the Criminal Law Article may file a petition for DNA testing of scientific identification evidence that the State possesses as provided in subsection (i) of this section and that is related to the judgment of conviction, (c) Findings requiring DNA testing. — Subject to subsection (d) of this section, a court shall order DNA testing if the court finds that: (1) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or ²²³ mitigating evidence relevant to a claim of wrongful conviction or sentencing; and (2) the requested DNA test employs a method of testing generally accepted within the relevant scientific community* (d) Notification of petition; response.— (1) A petitioner shall notify the State in writing of the filing of a petition under this section. (2) The State may file a response to the petition within 15 days after notice of the filing or within the time that the court orders.” None of these subsections address expressly the procedures which must be followed when the State represents that the evidence no longer exists, or where there is a factual dispute over the existence of evidence a petitioner seeks to have tested.

Furthermore, no provision in the Maryland Rules applies explicitly to proceedings under § 8-201. The Maryland statute mandates that the State shall preserve scientific identification evidence that the State has reason to know contains DNA material and is secured in connection with a conviction under § 2-201, § 2-204, § 2-207 or §§ 3-303 through 3-306 of the Criminal Law Article. 6 § 8-201(i). The statute, as drafted, presumes that the evidence a petitioner requests to be tested in fact exists, and does not, on its face, contemplate circumstances where the evidence has been destroyed before the adoption of the statute, or where there is a factual dispute over the existence of DNA testing evidence. See § 8-201(b).

The question we must address is whether Blake was entitled to notice of the State’s motion to dismiss his petition for DNA testing on the grounds that the evidence did not then exist, and, whether he was entitled to an opportunity to ²²⁴ respond before the Circuit Court summarily dismissed his petition. 7 We look first to the language of § 8-201. We apply the well settled rules of statutory construction in interpreting the statute before us. The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. See Oakland v. Mountain Lake, 392 Md. 301, 316 , 896 A.2d 1036, 1045 (2006).

In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the statute’s apparent purpose, we give effect to the statute as it is written. See Mackey v. Compass, 391 Md. 117, 141 , 892 A.2d 479, 493 (2006). If the language of the statute is ambiguous, we resolve the ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose. See Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005).

We consider both the ordinary meaning of the language of the statute and how that language relates to the overall meaning, setting, and purpose of the act. Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004). We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense. Gwin v. MVA, 385 Md. 440, 462 , 869 A.2d 822, 835 (2005).

We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Moore v. State, 388 Md. 446, 453 , 879 A.2d 1111, 1115 (2005). Section 8-201 is silent with respect to hearings upon the filing of a petition requesting DNA testing. 8 In addition, this ²²⁵ Court has not adopted rules implementing the statute, as have some other states. 9 The legislative history offers no help ²²⁶ either. 10 ²²⁷ We turn to the statute and conclude that the court erred in several respects. First, the court should not have summarily dismissed the petition for testing before Blake had an opportunity to respond to the State’s motion to dismiss.

Second, the court should not have dismissed the petition based merely on the memorandum before it stating that the evidence no longer existed. Inasmuch as the statute requires that the State preserve scientific evidence, Blake was entitled to know, if such could be determined, if the evidence was destroyed before or after the enactment of the statute. Third, because the evidence has been in the custody of the State, the State has the burden of establishing that it no longer exists. An unsworn memorandum, stating that the State merely requested the police to look in the evidence control unit, is insufficient to establish this critical fact.

Finally, the court should make some findings of fact and should set forth the underlying reasons when it dismisses a petition for testing. 11 ²²⁸ We conclude that the Circuit Court erred in dismissing the petition without, at a minimum, giving appellant an opportunity to respond to the State’s allegation that the DNA testing evidence was no longer in its possession. Fundamental fairness requires that a petitioner be given an opportunity to respond and to challenge the State’s representation. When it is the State’s position that the evidence sought to be tested no longer exists, the circuit court may not summarily dismiss the petition requesting DNA testing. The court must give a petitioner notice of and an opportunity to respond to the State’s allegation.

A petitioner has a right to notice and opportunity to contest the State’s representation that the evidence is unavailable. The evidence preservation provisions in § 8-201 support our conclusion. Section 8-201 (i) provides, in relevant part, as follows: “(1) The State shall preserve scientific identification evidence that: (i) the State has reason to know contains DNA material; and (ii) is secured in connection with an offense described in subsection (b) of this section. (2) The State shall preserve scientific identification evidence described in paragraph (1) of this subsection for the time of the sentence, including any consecutive sentence imposed in connection with the offense.” Section 8-201(j), although it permits the State to dispose of evidence it would otherwise be required to retain as required by § 8 — 201(i), only allows the State to do so if it “notifies ... the person who is incarcerated in connection with the case,” any attorney of record for such a person, and the public defender. § 8 — 201(j)(1).

Once notice has been provided, the inmate and the other parties have 120 days to file an objection to the proposed disposal of the evidence, and are then entitled to a hearing as to whether the proposed disposal is appropriate. § 8 — 201 (j) (3) — (4). ²²⁹ The Maryland Rules that address notice and opportunity to be heard in other types of proceedings also provide support for our holding. The rules allow the party opposing a motion, at a minimum, to respond, particularly to a dispositive motion. See Md. Rule 2-311(b) (applicable to civil actions in circuit court, providing an opportunity for “a party against whom a motion is directed” to file a response); Md. Rule 2-311(e)-(f) (in a civil case, a court may not grant a motion for judgment notwithstanding the verdict, for a new trial, or a motion to amend the judgment without a hearing on the motion, and may not rule on a dispositive motion without a hearing if the opposing party has requested a hearing); Md. Rule 4-252(f) (applying to motions filed in criminal proceedings in circuit court, and providing the opposing party an opportunity to respond); Md. Rule 4-406 (applicable in proceedings under the Uniform Post Conviction Procedure Act, and requiring a hearing on a petition under the Act). The pervasive philosophy in our Rules of Procedure that a party is entitled to notice should apply to dispositive motions under § 8-201. 12 Due process considerations bear also on our conclusion that appellant was entitled to an opportunity to respond to the State’s motion.

Appellant was afforded no notice of the ²³⁰ State’s motion to dismiss his petition, and no notice of the Circuit Court’s intent to dismiss his petition based solely on the representations in the State’s motion. Appellant had a liberty interest at stake, and 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, 424 U.S. 319, 333 , 96 S.Ct. 893, 902 , 47 L.Ed.2d 18 (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 appellant any opportunity to respond, violated his rights to due process.

This Court addressed a party’s due process right to notice and opportunity to be heard prior to a court ruling on a dispositive motion in Phillips v. Venker, 316 Md. 212 , 557 A.2d 1338 (1989). While a summary judgment motion by the defendants in a negligence action was pending before the trial court, the judge scheduled a telephone conference call between the parties. Id. at 213-15 , 557 A.2d at 1338-39 . The stated purpose of the conference call was to discuss plaintiffs’ request for a continuance of a hearing that was scheduled on the summary judgment motion.

Id. at 215 , 557 A.2d at 1339 . Nonetheless, after the call had begun, the trial judge decided to conduct the summary judgment hearing during the conference call, even though plaintiffs’ counsel told him that he did not have his file at hand and had not reviewed his file prior to the call. Id. After allowing plaintiffs’ counsel to retrieve his case file, the trial judge heard approximately twenty to twenty-five minutes of argument from the parties on the summary judgment motion.

Id. The judge then granted the defendants’ motion. Id. We held that the trial court violated the plaintiffs’ due process rights by failing to give them adequate notice that it intended to conduct the hearing on the summary judgment motion during the conference call and that “they were entitled to adequate notice of the time, place, and nature of that hearing, so that they could adequately prepare.” Id. at 222 , 557 A.2d at 1343 (internal citations omitted). ²³¹ Other courts have concluded that due process rights are implicated when courts make dispositive rulings on postconviction DNA testing requests without a hearing. 13 In People v. Sanchez, the court held that the inmate’s due process rights were violated when a trial court dismissed a petition for postconviction DNA testing on the basis of the State’s allegation in an ex parte hearing that it no longer possessed the evidence the petitioner sought to be tested.

People v. Sanchez, 363 Ill.App.3d 470 , 299 Ill.Dec. 894 , 842 N.E.2d 1246, 1254 (2006). At a purported status conference, the State advised the court that it could not locate the testing evidence. Id. at 1253. Upon being so informed by the State, the trial court dismissed the testing petition even though the issue of the existence of the evidence had not been previously raised by the State, and despite the absence of the defendant from the hearing.

Id. at 1253-54. The Sanchez court reasoned that the trial court’s dismissal under these circumstances denied the defendant procedural due process “[bjecause [he] had no notice or opportunity to contest the State’s representations, and because the State’s representations formed the basis of the trial court’s denial.” Id. at 1254. We address next the State’s representation in this case that the evidence does not exist. Merely stating in an unsworn, unverified memorandum directed to Major Frederick Taber from Sgt.

Charles Morgan, that “[t]he Evidence Control Section was checked by the undersigned, and there was no Evidence found for that case” is insufficient. Although the statute is silent as to which party has the burden to establish whether the evidence still exists and is ²³² available for testing, we conclude that the burden is on the State to establish that it is no longer in possession of the DNA testing evidence requested by a petitioner when it seeks to have the court dismiss a DNA testing petition on such grounds. It is only logical that this burden is upon the State, as the State gathered the evidence and was the custodian of the evidence. The information as to the location of the evidence and the manner of its destruction would not be within the knowledge of an inmate.

This approach is supported by relevant authority from other jurisdictions. In People v. Pitts, 4 N.Y.3d 303 , 795 N.Y.S.2d 151 , 828 N.E.2d 67 (2005), the New York Court of Appeals addressed a similar issue that arose under New York’s post-conviction DNA testing statute. See N.Y.Crim. Proc. § 440.30(2006).

In Pitts , the court reversed the Appellate Division holding that the New York postconviction DNA testing statute placed the burden on the defendant to establish that the evidence the defendant asked to be tested still exists. Id. at 71-72. The eourt held that the lower court “erred in interpreting [the statute] ... to place on defendants the burden to establish the location and status of the evidence they seek to be tested.” Id. The intermediate appellate court erred, the Court of Appeals reasoned, because “it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing.” Id. at 72.

See also People v. Travis, 329 Ill.App.3d 280 , 264 Ill.Dec. 785 , 771 N.E.2d 489, 493 (2002) (observing that when there is a factual dispute as to whether evidence has been subjected to a proper chain of custody, as required by statute, the trial court should permit limited discovery on this issue, because “[i]t asks too much to require petitioning defendant^] in these cases to plead and prove proper chain of custody at the outset, for the evidence at issue will undoubtedly have been within the safekeeping of the State”). As the 1999 NIJ Report suggests, when an inmate files a petition for postconviction DNA testing, the State should make an extensive search for the evidence. See 1999 NIJ Report at 36. Simply asking a police officer to check an ²³³ evidence unit locker is not sufficient.

There are many other likely places where the evidence may have been stored. The report urges prosecutors to search for evidence in nontraditional sources, and to “[c]onsider the possibility of testing items not traditionally thought to contain DNA evidence, such as slides taken by medical personnel during sexual assault examinations and paraffin-imbedded tissue samples taken at the time of an autopsy.” Id. The Report cautions prosecutors against concluding too hastily that evidence that an inmate has asked to be tested no longer exists. Id.

(noting that “no final decision or notification should be made until it has been carefully verified that evidence did not or does not still exist”). The motion to dismiss in this case is analogous to a summary judgment motion in a civil case. At a minimum, a motion to dismiss a postconviction DNA testing petition on grounds that testing evidence does not exist should be supported by an affidavit before the court may grant the motion. This conclusion is supported by authority from other jurisdictions.

For instance, in Pitts , discussed supra, the New York Court of Appeals reversed an intermediate appellate court ruling affirming a trial court’s dismissal of a motion for postconviction DNA testing. Pitts, 4 N.Y.3d 303 , 795 N.Y.S.2d 151 , 828 N.E.2d 67, 72 . There, in denying a motion for postconviction DNA testing, the court held that it was improper