Blake v. State

MURPHY, J. George E. Blake, Appellant, is before this Court for the second time. At 1:15 p.m. on January 7,1982, a jury convicted Appellant of first degree rape and first degree sexual offense. The State’s evidence was sufficient to establish that he committed those offenses on July 27, 1981. He filed his petition for DNA testing on December 1,2004.

As a result of his first petition, this Court (1) held that the Circuit Court for Baltimore City erred in “summarily” dismissing Appellant’s pro se petition for DNA testing, and (2) established “the procedures a circuit court must follow before it denies a petition for postconviction DNA testing pursuant to § 8-201 [of the Criminal Procedure Article (CP § 8-201) ] on grounds that the evidence the petitioner has asked to be tested no longer exists.” Blake v. State, 395 Md. 213, 216 , 909 A.2d 1020, 1021 (2006) (“Blake /”). While reversing the dismissal of Appellant’s petition, this Court stated: 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. We conclude that the Circuit Court erred in dismissing the petition without, at a minimum, giving appellant an ⁴⁴⁸ 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. 395 Md. at 227-28 , 909 A.2d at 1028-29 (footnotes omitted).

Because a remand for further proceedings was required as a result of the State’s insufficient response to Appellant’s petition, this Court provided the following guidance to the parties and to the Circuit Court: 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”) at the request of Attorney General Janet Reno. * * * The report from the Commission, entitled POSTCON-VICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS, National Institute of Justice, National Commission on the Future of DNA Evidence, September 1999, http://www.ncjrs.org/pdffilesl/nij/177626. pdf (“1999 NIJ Report”), set out proposed guidelines for analyzing cases in which DNA evidence is presented. 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 ⁴⁴⁹ 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. Laboratories 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. 395 Md. at 219-222 , 909 A.2d at 1023-25 (footnote omitted). In Arey v. State, 400 Md. 491 , 929 A.2d 501 (2007), while reversing another “summary dismissal” of a pro se petition for DNA testing (on the ground that the State’s response was insufficient to establish that the evidence no longer existed), this Court stated: [T]he State needs to check any place the evidence could reasonably be found unless there is a written record that the evidence had been destroyed in accordance with then existing protocol____ [A] court should not conclude that evidence no longer exists until the State performs a reasonable search for the requested evidence. Once the State performs a reasonable search and demonstrates sufficiently a prima facie case, either directly or circumstantially, that the requested evidence no longer exists, the State will have satisfied its burden of persuasion. ⁴⁵⁰ The burden of production then shifts to the petitioner to demonstrate that the evidence actually exists.

Id. at 503-05 , 929 A.2d at 508-09 . In a Rules Order entered on September 10, 2009, this Court adopted Title 4, Chapter 700 of the Maryland Rules of Procedure, which took effect on October 1, 2009, and which “insofar as practicable, [are applicable] to all [petitions for DNA testing] then pending[.]” Although our remand in Blake I preceded the adoption of Title 4, Chapter 700, the Circuit Court crafted a procedure that conformed to the requirements of that chapter. The record shows that the Circuit Court (1) identified the most likely places where the evidence might be found, (2) required a thorough search of each place that should be searched, and (3) provided for an “on-the-record” determination of whether the search conformed to the requirements of CP § 8-201. To resolve the issue of whether the State satisfied its ultimate burden of persuasion, the Circuit Court held four hearings, 1 during which it received testimony, documentary evidence, affidavits, and proffered information about the State’s efforts to locate the evidence sought to be tested. 2 The Circuit Court ultimately concluded that the State had met its burden of proving that the evidence no longer exists, and “ORDERED that [Appellant’s] Petition [for DNA testing be] DENIED.” Appellant has noted a timely appeal from that ruling.

In support of its argument that this Court should affirm the judgment of the Circuit Court, the State asserts (in the words of its brief): Of the ten suggested places to search listed by this Court in Blake I and Arey , four are not applicable (defense investigators, courthouse evidence rooms, offices of defense counsel, ⁴⁵¹ and independent laboratories) and the other six are well accounted for. The police evidence storage facilities were hand-searched by teams of people looking for any evidence from Blake’s case, and the relevant police evidence protocols produced. Every member of the State’s Attorney’s office was directed repeatedly to look for anything that could be related to Blake’s case, and the files of the Sex Assault division were individually searched. The computer records and paper records of the crime lab were searched, and its storage facility hand-searched.

The hospital where the “rape kit” examination was conducted was searched and its protocols presented to the court. The courtroom clerk and the court reporter’s office confirmed that they did not have, and would never take possession of, physical evidence in Blake’s case or any other case. The fact that the court, on repeated occasions, compelled the State to go [ask] and search a little more indicates that the court was quite cognizant of its duty to carefully decide this matter. Its ultimate decision — that the State’s combined, cumulative efforts were “reasonable” — was well-founded and should not be disturbed.

According to Appellant, however, the search of two “most likely places where the evidence [at issue] may be found” was inadequate. In the words of his brief: 1. The Search of the Evidence Control Unit (ECU)/OffSite Storage Facility Conducted by the State to Locate DNA Evidence from [Appellant’s] 1982 Rape Trial was Unreasonable Based on the Guidance Provided by this Court and the Good-Faith, Reasonableness Standard Adopted by the Circuit Court for Baltimore City. 2. The Search of the State’s Attorney’s Office was Unreasonable Based on this Court’s Previous Guidance and the Good-Faith, Reasonableness Standard.

For the reasons that follow, we hold that there is no merit in either of these arguments, and we shall therefore affirm the ⁴⁵² judgment denying Appellant’s request that the State be required to conduct additional searches for the evidence at issue. Background During the jury trial that resulted in Appellant’s convictions, the State introduced into evidence the Baltimore City Police Department’s “LABORATORY REPORT” that identified twelve “specimens” recovered from the victim and examined in the laboratory. According to this report, after the examination, this “[ejvidence was placed in the Evidence Control Section under property numbers 858944 and 858947.” Returning the examined specimens to Evidence Control was consistent with the Department’s “General Order 4-79” on the subject of the investigation of rape and related sexual offenses. A stated purpose of this General Order was “to promulgate a new ‘Physical Examination and Collection of Evidence for Rape and Sexual Assault’ form, which was developed in cooperation with and approved by the Office of the Baltimore City State’s Attorney and the appropriate staff representatives of the participating hospitals, and representatives of the Maryland Department of Mental Health and Hygiene.” The REQUIRED ACTION section of General Order 4-79 includes the following requirements with respect to evidence: Evidence All evidence which is recovered as a result of the medical examination shall be turned over to the investigating officer and shall be submitted to the Evidence Control Section for Scientific examination by the Laboratory Division.

All other evidence, whether recovered at the scene, from the victim or from the assailant, shall also be collected and submitted promptly to Evidence Control Section. Material evidence which may contain semen, blood, or other organic derivatives shall be designated for analysis by the Laboratory Division. During the February 20, 2009 hearing, which was a “joint” hearing held on both Appellant’s petition and a similar petition ⁴⁵³ filed by Douglas Scott Arey, 3 the State presented testimony from Lieutenant Colonel Michael Andrew (Andrew), the commanding officer of the Baltimore City Police Department’s Evidence Control Unit, and Sergeant Larry Bazzle, the officer assigned to that unit who supervised the search for evidence in the Blake and Arey cases. The following transpired during Andrew’s direct examination: Q [H]ave you recently conducted an inventory and a search of the facilities at the Police Department? * * * A We finally got funding from the City to get an outside company, Regis, to come in, do a definitive inventory of all of the evidence we have in the Evidence Control Unit.

They conducted this process from February 3 through February 6 of this year. And we just got the results of their definitive inventory. Q And was there also a problem with the flood from Isabel? A In our Evidence Control Unit at the time, in 2003, we were located in the basement of the Headquarters Building located at 601 East Fayette Street.

Unfortunately, we had a hurricane [come] through that flooded the area and flooded the basement of the Police Department. We had a number of evidence, I can’t definitively say which evidence items, but we had a number of items that were destroyed with that hurricane____ * * * Q And when you say “a number”, can you give us a ballpark estimate? Are we talking about a few, are we ⁴⁵⁴ talking about dozens, hundreds, thousands of pieces of evidence, can you say? A I would say thousands.

We hired a company, at the time the Baltimore Police Department hired a company from Texas to come in and dry out the evidence and relocate it to an off-site warehouse. There were some items we just couldn’t identify that the water ruined. Thousands, I do know for a fact, that thousands of items were relocated and dried out and relocated to the warehouse I mentioned. Q And with regard to the case of, the Blake case, were you also asked to look for certain pieces of evidence in that case?

A Yes ma’am. Q ECU 858947, a microscopic slide, four vaginal slides, three oral slides, four swabs, head and pubic hair, pubic combings, multi-colored panties, multi-colored sheets, fitted and flat, and a multi-colored pillow case. And also ECU 858944, a blood sample? A Yes ma’am.

Q And were any of those found pursuant to the search? A No evidence was found under that property number. * * * Q And is there any other searching that could be done or have you exhausted all possible avenues of searching? A With this definitive inventory that we just conducted, we’ve conducted all possible inventories. We’ve conducted many hand searches thinking that it might have been placed on a different shelf, it might have been relocated to a different place over the course of the past two years.

That’s why we got the money from the City to conduct the definitive inventory that I just mentioned. They couldn’t find it. They had over 80 auditors for the four days that I mentioned, plus I had 25 officers and other employees of the Police Department ⁴⁵⁵ that helped them. And we searched for all evidence related to these cases