Brown v. State

ADKINS, J. Appellant Antonio Levar Brown is serving the twelfth year of an eighty-five-year sentence for rape, kidnapping, and related charges. He requested, but was denied, a new trial based on what he alleges to be a “favorable” DNA test result. His case reaches us on direct appeal under Section 8 — 201(k)(6) of the Criminal Procedure Article. We affirm the postconviction court’s denial of Brown’s motion, holding that — even if the DNA test results could be considered favorable to Brown — the court did not abuse its discretion in finding that there was no substantial possibility that Brown would not have been convicted, had the DNA evidence been presented at trial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY The facts underlying the issue before us are not pretty. Brown was charged and convicted for beating and raping Mildred Fleming, who allegedly used to buy drugs from him and owed him $80. The testimony at trial established that, on the night in question, Brown and Fleming ran into each other at the home of a mutual acquaintance, Jacqueline Maize. When Fleming saw Brown, she noticed that his “hand was bleeding” and “asked him what had happened and what was wrong.” Brown did not answer, but led Fleming into the bathroom for a chat.

Once there, Brown demanded payment of the money Fleming allegedly owed him. When Fleming was unable to make a payment, Brown punched her in the face, ripped off her shirt, and handcuffed her. After that, Brown and his three cohorts put Fleming in the trunk of a car and drove her to an apartment of another acquaintance, Patty Bruce. As the Court of Special Appeals summarized the facts in an unpublished 2003 opinion, at Bruce’s place, they “beat Fleming with a cane and a broomstick and burned her with a heated ⁵⁷⁹ knife, an iron, and a lamp bulb.” Brown also “put a broomstick in Fleming’s rectum, then removed one of her handcuffs and ordered her to masturbate.

He blindfolded her with a shirt ..., took her to the bathroom, and shoved her head into the toilet.” Some time later, Brown “removed the handcuffs, took Fleming to the bedroom and raped her.” When Brown and the other men were done torturing Fleming, they “took her back to Maize’s home, this time, in the passenger compartment of the car.” Fleming said nothing “about the incident” to Maize and “got high on crack cocaine.” Fleming testified at trial that “she did not call the police or go to the hospital because she knew there was a warrant for [her] arrest for a probation violation.” About one week after the incident, however, Fleming did talk to the police. “She showed them the burn marks and was taken to the hospital for treatment. Detective Sergeant Misty Saunders, who took Fleming to the hospital, testified that Fleming had ‘soft scabs.’ She took photographs, which were shown to the jury.” At the trial, Maize “confirmed Fleming’s testimony that Fleming was taken into the bathroom and that she was handcuffed when she was brought out.” She testified that Brown, “Fleming, and the others left around 5:00 a.m., and returned sometime later. Fleming was upset and crying, and seemed scared.” Bruce also testified at Brown’s trial. She told the jury that “she was drunk when appellant and his companions showed up at her home with Fleming.

She recalled that Fleming looked ‘like herself,’ except that her hands were crossed and her shirt was hanging over her shoulder.” High on “Percocets and crack,” Bruce “was ‘in and out of it’ when the group went into the bedroom,” but “[ajfter they left, she found her bedroom lamp broken and burning. Later, she discovered a burned and bent butter knife on the stove. She threw the knife away.” Another witness, Dorothea Wars, testified that Fleming came to her house after the rape and showed her body, allowing the witness to see “everything that happened.” Wars ⁵⁸⁰ “also described a telephone call from [Brown], in which he asked if she knew what Fleming was saying. When Wars recounted what Fleming had said about the incident, [Brown] first denied, then admitted, his participation.

He asked Wars to tell Fleming that he was sorry and to convey the message that he would ‘give her anything she wanted’ if she dropped the charges.” The father of Fleming’s child, Walter Groomes, then testified and “described Fleming’s appearance when he arrived at Maize’s residence the evening following the rape. He testified that Fleming’s face and mouth were bruised, cut and swollen, her clothes were raggedy, and she had burn marks on the back and inside of her thigh.” Brown himself stated to the police “that Fleming owed him money for drugs. He stated that he met her at Maize’s home and drove her to Bruce’s apartment, but that she rode in the car and not in the trunk. He admitted hitting her with his fist ‘a couple times,’ but denied raping her.” There was no physical evidence tying Brown to the crimes.

None of Brown’s blood or hair was found at the crime scene or any of the objects used in the attack of Fleming, including the broomstick. Brown’s counsel emphasized this point at trial, eliciting testimony that the broomstick had been tested for blood and hair, but “all of it came back negative.” There was testimony at trial that some fibers, which were found on the bristles of the broomstick with which Fleming was sodomized, were still to be tested for DNA. But Brown’s attorney stressed that the fibers were on the bristles only and — other than those fibers — everything else was tested and “everything else came back negative.” Despite Brown’s counsel’s efforts to establish the lack of physical evidence tying Brown to the crimes, Brown was convicted of first degree rape and related charges on September 27, 2001 after a four-day trial in the Circuit Court for Carroll County. He was also unsuccessful in appealing his convictions. ⁵⁸¹ On June 6, 2009, Brown filed a petition for postconviction DNA testing.

His initial request was denied, 1 but on July 8, 2010, the Circuit Court heard argument on a Revised Petition for Post-Conviction DNA Testing, in which Brown asked to test for the absence of Fleming’s DNA on the broom and the knives used during the attack. Brown argued that Fleming lied and “if the events occurred as she claimed, then testing [would] find her DNA.” In other words, Brown sought “to attack [Fleming’s] credibility by showing that her DNA is not on [those] items.” On September 29, 2010, the Circuit Court granted Brown’s motion. The DNA testing produced two types of results with respect to the broomstick. First, the testing indicated the presence of DNA consistent with Fleming’s on the top three inches and somewhere around the mid-section of the broomstick.

Second, the testing showed that Brown’s DNA was not on the broomstick. 2 Brown interpreted these results as “favorable” to his case, and on May 2, 2011, filed a Motion for Relief under Section 8-201 of the Criminal Procedure Article, requesting a new trial. On April 30, 2012, the postconviction court denied the motion, having found that no “substantial possibility exists that the Petitioner would not have been convicted had the DNA testing been introduced at trial or that ordering a new trial is in the interests of justice.” The court also added that “the testing results are unfavorable to the Petitioner” because ⁵⁸² he “argued that the testing would fail to find the victim’s DNA, but the results could not exclude her.” Brown noted a direct appeal to this Court under Section 8-201(k)(6) of the Criminal Procedure Article. He presented the following questions for our review: 1. Did the lower court err in finding that the DNA test results were unfavorable to Mr. Brown? 2.

Did the lower court err in finding that there was not a substantial possibility that Mr. Brown would not have been convicted had the DNA test results been introduced at trial? 3. Did the lower court err in refusing to order a new trial in the interests of justice? 3 We hold that — even if the absence of Brown’s DNA on the broomstick could be considered “favorable” evidence 4 — there is no substantial possibility that he would not have been convicted had that evidence been introduced at trial. DISCUSSION Brown seeks a new trial under the DNA postconviction statute, codified as Md.Code (2001, 2008 Repl.Vol., 2012 Cum. ⁵⁸³ Supp.), § 8-201 of the Criminal Procedure Article (“CP”). Under the statute, a new trial is available as a remedy, but only when (1) “the results of the postconviction DNA testing are favorable to the petitioner,” and (2) there is “a substantial possibility ... that the petitioner would not have been convicted if the DNA testing results had been known or introduced at trial.” Id. § 8 — 201 (i)(2)(iii).

If, however, “the results of the postconviction DNA testing are unfavorable to the petitioner, the court shall dismiss the petition.” Id. § 8-201(i)(l). A postconviction court’s rulings under CP § 8-201 are subject to direct review by this Court. CP § 8-201(k)(6). Because a decision on “whether to grant a new trial is within the discretion of the trial court,” Arrington v. State, 411 Md. 524, 551 , 983 A.2d 1071, 1087 (2009) (quoting Cooley v. State, 385 Md. 165, 175 , 867 A.2d 1065, 1071 (2005)) (quotation marks omitted), we review denials of a new trial under CP § 8-201(i)(2)(iii) for abuse of discretion.

The postconviction court’s factual findings are also subject to a deferential standard of review and will not be disturbed unless there is clear error. Id., 983 A.2d at 1086-87 . Brown seeks a new trial, arguing that “[t]he DNA test results were inconsistent with the State’s theory of the case.” 5 ⁵⁸⁴ He sees a mismatch between Fleming’s testimony that his hand was bleeding right before he allegedly sodomized her with a broomstick and the lack of his DNA on the broomstick. 6 Brown is confident that his DNA would have been on the broomstick, if the “events really took place as Fleming claims.” As a result, Brown believes that the DNA test results show that Fleming was untruthful in her testimony, and that there is a substantial possibility that he would not have been convicted if the DNA test results would have been introduced at trial. The State disagrees.

In its opinion, the DNA test results were not favorable and there was no substantial possibility that Brown would not have been convicted. With respect to the favorability prong, the State points out that the fact that Brown’s DNA was not on the broomstick is not new evidence: “Brown was aware at trial of the absence of affirmative forensic evidence that he bled on the broomstick. The jury ⁵⁸⁵ also was made aware of it.” Indeed, in his Petition for DNA Testing, Brown “noted that the items were tested for blood with negative results.” Furthermore, the State argues that “[e]ven if the absence of blood on the broomstick constituted newly discovered evidence ... it cannot be considered ‘favorable’ because it is not exculpatory.” According to the State, regardless of whether Brown “actually handle[d] the broomstick, it in no way absolves him of his liability as [an] accomplice in that particular sexual assault.” In any event, the State maintains that, even if the DNA test results could be considered “favorable,” 7 there was no substantial possibility that the trial would have reached a different outcome, had these DNA test results been introduced. In making these competing arguments, the parties rely on Thompson v. State, 411 Md. 664 , 985 A.2d 32 (2009) and Arrington v. State, 411 Md. 524 , 983 A.2d 1071 (2009), two cases in which we considered whether there was a substantial possibility that the defendant would not have been convicted, had the newly-discovered DNA evidence been presented at trial.

At Thompson’s trial for “rape, burglary, felony murder and a weapons offense,” the State argued to the jury that the sperm recovered during the victim’s autopsy “came from the rapist” and that “the blood found on Thompson’s jeans was the same blood type [as the victim’s].” 8 Thompson , 411 Md. at ⁵⁸⁶ 670-71, 985 A.2d at 35-36 . After the trial, however, DNA testing “excluded both [Thompson’s co-defendant] and Thompson as depositors of the sperm,” and “the testing on Thompson’s blue jeans at the location of the bloodstain showed that the blood did not come from the victim.” Id. at 672-73 , 985 A.2d at 37 . Although the DNA testing conclusively established that Thompson did not rape the victim, the postconviction court denied the motion for a new trial because “the DNA evidence did not remove Thompson from the scene of the crime and thus could not exculpate him on a felony murder charge.” Id. at 674 , 985 A.2d at 38 . We vacated that order and remanded with directions that the postconviction court “consider whether this highly persuasive new evidence might have made a difference to the jury as to the rape and its dual service as a predicate felony for the felony murder charge.” Id. at 689 , 985 A.2d at 47 .

Arrington also involved the State’s reliance on blood evidence, which later proved to be incorrect. Arrington was convicted of second degree murder, in part, based on the testimony that blood of the same type as the victim’s was found on his sweat pants. Arrington, 411 Md. at 529 , 983 A.2d at 1072 . Postconviction DNA testing “conclusively proved,” however, that the blood was not the victim’s.

Id. at 534 , 983 A.2d at 1076 . Emphasizing the jury’s specific questions about the blood stains and the State’s express reference to the stains and the matching blood type, we held that there was a substantial possibility that the outcome at trial would have been different, had the evidence been presented at trial. Id. at 553-56 , 411 A.2d at 1088-89. Brown analogizes this case to Thompson and Arrington , arguing that, as in those two cases, the DNA test results here “showed the absence of [his] DNA,” and “were inconsistent with the State’s theory of the case.” The