Cook v. State

Thomas Dwayne Cook v. State of Maryland, No. 14, September Term, 2023. Opinion by Eaves, J. MD. CODE ANN., CRIMINAL PROCEDURE ARTICLE § 8-201 – POST- CONVICTION DNA TESTING – EXCULPATORY OR MITIGATING EVIDENCE Section 8-201(d)(1) of the Criminal Procedure Article of the Maryland Code provides that a person convicted of a crime of violence is entitled to post-conviction DNA testing if “a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing[]” and “the requested DNA test employs a method of testing generally accepted within the relevant scientific community.” Appellant claimed that DNA testing had a reasonable probability of producing evidence tending to show that he engaged in self- defense and that the victim’s injuries lacked the requisite severity to sustain his conviction. The Supreme Court of Maryland held that there was not a reasonable probability that DNA testing of the evidence requested had the scientific potential to produce exculpatory or mitigating evidence.

As such, the circuit court properly denied Appellant’s petition for post-conviction DNA testing without a hearing. Circuit Court for Somerset County Case No. 19-K-05-008029 Argued: June 3, 2024 IN THE SUPREME COURT OF MARYLAND No. 14 September Term, 2023 THOMAS DWAYNE COOK v. STATE OF MARYLAND Fader, C.J., Watts, Booth, Biran, Gould, Eaves, Hotten, Michelle D., (Senior Justice, Specially Assigned), JJ. Opinion by Eaves, J. Filed: August 20, 2024 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2024.08.20 12:10:58 -04'00' Gregory Hilton, Clerk I INTRODUCTION Section 8-201 of the Criminal Procedure Article (“CP”) of the Maryland Annotated Code (1957, 2018 Repl. Vol.) (the “DNA Testing Statute”) allows individuals convicted of certain crimes to petition for DNA testing of certain evidence.1 Under this statute, an individual is entitled to that DNA testing if a circuit court finds that two criteria have been met: (1) “a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or 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.”2 This case is a direct appeal from an order of the Circuit Court for Somerset County, denying a request for DNA testing.3 Thomas Dwayne Cook, Appellant, was convicted of several crimes, including the first-degree assault of Lieutenant Aubrey Fletcher, while Appellant was serving a prison sentence for a prior, unrelated crime at Eastern Correctional Institution (“ECI”) in Westover, Maryland.

Appellant appeals an October 19, 2023, order 1 CP § 8-201(b)(1). 2 Id. § 8-201(d)(1)(i)–(ii). 3 The DNA Testing Statute provides for a direct appeal from the circuit court to this Court. Id. § 8-201(k)(6) (“An appeal to the [Supreme Court of Maryland] may be taken from an order entered under this section.”). The General Assembly enacted the DNA Testing Statute in 2001, see 2001 Md. Laws, ch. 418, but an individual’s direct right of appeal did not arise until two years later, see 2003 Md. Laws, ch. 240. While the original appellate right was limited only to orders issued pursuant to certain subsections at that time, a direct appeal to this Court—as the right exists today—may be taken from any order entered under CP § 8-201. of the circuit court that denied, without a hearing, his July 2023 Petition for DNA Testing (the “Petition”), in which he seeks DNA testing of the shirt he wore at the time of the assault against Lt.

Fletcher. For the reasons that follow, we affirm the judgment of the circuit court. II BACKGROUND A. Factual Background The pertinent facts underlying Appellant’s convictions come from the trial testimony of correctional staff, Appellant, and other inmates at ECI. On the morning of October 30, 2004, Appellant started his work assignment as the housing tier’s laundryman.

While doing his rounds, Correctional Officer (“CO”) Thomas Cook (unrelated to Appellant) and Appellant became involved in an argument. CO Cook believed that, at some point in the argument, Appellant called him an expletive. Accordingly, CO Cook informed his supervisor, Lt. Fletcher, about the infraction.

Looking to question Appellant about the argument, Lt. Fletcher found and ordered Appellant to follow him to a part of the housing unit where other inmates would not hear the conversation. The testimony paints markedly different versions of what happened next. The correctional staff’s version is as follows.

Lt. Fletcher claimed that, once in a more private area, he asked Appellant about the argument with CO Cook and whether Appellant used profanity. Lt. Fletcher described Appellant as “belligerent”—flailing his arms while declaring that he did not have to listen to the lieutenant.

In response, Lt. Fletcher fired Appellant from his work assignment and instructed Appellant to return to his 2 cell and “lock in” by shutting the door behind himself. Appellant did not comply and instead walked away to converse with other inmates. Lt.

Fletcher approached Appellant, whose back was facing Lt. Fletcher, and reiterated that Appellant needed to lock in. At this point, CO Cynthia Powell, who was on duty in the housing unit, witnessed Appellant turn around and say, “I’m not going to have anyone disrespect me, you’re treating me like a child[,]” and “with a clenched fist . . . hit [Lt. Fletcher.]” Lt.

Fletcher recounted that Appellant “started beating [him] in [his] head and face area.” Another inmate joined Appellant, kicking Lt. Fletcher in the same area. Lt. Fletcher recalled that he received six to eight blows before blacking out.

He also asserted that he never touched Appellant during their encounter. CO Vanessa Jones, the second officer in charge of the housing unit, did not witness Appellant’s initial punch but observed Appellant and the second inmate assaulting Lt. Fletcher. CO Powell used a can of mace against the inmates assaulting Lt.

Fletcher, but they continued their attack. The assault only concluded after CO Powell retreated to CO Jones’s station to retrieve another can of mace. By the time CO Powell returned to Lt. Fletcher, Appellant and the other inmate had fled from the area where the assault took place.

Appellant recalled the events differently. He described how Lt. Fletcher raised his voice while pointing his finger in Appellant’s face. After telling Lt.

Fletcher that he did not curse at CO Cook, the conversation ended, and Appellant proceeded to grab his laundry. Appellant then explained that he started conversing with another inmate just as Lt. Fletcher came from behind and grabbed his arm. Aware that it was Lt.

Fletcher, but 3 worried that he was going to be assaulted,4 Appellant “instinct[ually] . . . turned around and . . . struck [Lt. Fletcher].”5 According to Appellant, he and Lt. Fletcher then exchanged three or four punches each. Appellant believed that, during the altercation, Lt.

Fletcher struck Appellant in the “lower eye”6 with a “big ring” that Lt. Fletcher was wearing. The fight concluded, according to Appellant, after CO Powell deployed a can of mace, causing Appellant to retreat to the tier’s dayroom to wash his face. Another CO eventually detained Appellant.

COs Powell and Jones described Lt. Fletcher’s physical condition in the aftermath of the assault. CO Powell saw Lt. Fletcher crouched in the corner of the room fading in and out of consciousness as blood poured from his face.

CO Jones observed Lt. Fletcher slumped over and unable to move. CO Jones saw medical staff place Lt. Fletcher’s neck in a brace and take him by stretcher for medical treatment.

At the local hospital where Lt. Fletcher was taken by ambulance, one of Lt. Fletcher’s neurologists determined that Lt. Fletcher suffered a concussion.

The neurologist expressed that Lt. Fletcher deserved “appropriate attention and evaluation in the emergency room” because there was “certainly reason to believe there was a potential of serious injury[,] meaning . . . potentially 4 Given “the way [Lt. Fletcher] grabbed [him,]” Appellant feared that Lt. Fletcher was going to “assault [him].” 5 Two other inmates called to testify at trial similarly recounted that Lt.

Fletcher grabbed Appellant’s arm, who responded by spinning around and striking Lt. Fletcher. However, desiring to stay out of the fray, the two inmates quickly left the area without witnessing the rest of the altercation. 6 The record does not indicate in which eye Appellant claims that Lt. Fletcher struck him. 4 intercranial bleeding[.]” As a result of the assault, Lt.

Fletcher suffered hearing loss, tinnitus, dizziness, blurry vision, headaches, loss of balance, neck and back pain, depression as a result of post-traumatic stress disorder, and short-term memory loss. These injuries caused Lt. Fletcher to retire early. B. Procedural Background In addition to the testimony recounted above, we highlight several components of Appellant’s criminal trial relevant to this appeal.

Notably, the State introduced into evidence the shirt and shorts that Appellant wore during the altercation with Lt. Fletcher. On the shirt are several circular-shaped stains in a line across what would be the stomach area. The State also introduced a picture of Appellant taken during the subsequent investigation, which depicts Appellant wearing the same shirt bearing the stains just described.

At the close of the evidence, the circuit court instructed the jury on the law of perfect self-defense, which we discuss further below. The jury was also instructed on the law of first-degree assault, with the circuit court saying that the “State must prove all of the elements of second[-]degree assault . . . and must also prove[] . . . that the defendant . . . intended to cause serious physical injury in the commission of the assault.” The circuit court then defined serious physical injury for the jury as one that either “creates a substantial risk of death or[] . . . causes serious and permanent or serious and protracted disfigurement or loss of impairment of the function of any bodily member or organ.” In closing arguments, the State told the jury that “the most important part” of the instructions was the portion that a “defendant [must have] intended to cause serious 5 physical injury[]” to be convicted of first-degree assault. That instruction was most important, the State argued, because pictures of Lt. Fletcher that were also introduced into evidence demonstrated Appellant’s intent to cause serious physical harm.

Further, during its rebuttal argument, the State argued to the jury that the pictures depict “blood splatter all over [Appellant],” and that the only source of that blood could be Lt. Fletcher. This, the State pressed, had to be so because, despite Appellant’s testimony to the contrary, the picture of Appellant did not depict any injury to his eye. The jury convicted Appellant of first-degree assault and reckless endangerment for the attack on Lt.

Fletcher. The circuit court merged Appellant’s convictions and sentenced Appellant to 25 years’ imprisonment to be served consecutively to the life-sentence he already was serving.7 On appeal, Appellant challenged the sufficiency of the evidence for his convictions. As to his first-degree assault conviction, he argued that “the jury could not have found [that] he possessed the requisite intent to cause serious physical injury,” because he did not use a weapon and because Lt. Fletcher was not a “vulnerable person.” Cook v. State, No. 2930, Sept. Term, 2007, slip op. at 9–10 (Md. Ct. Spec.

App. July 24, 2009). While the Appellate Court recognized that it was unclear how many of Lt. Fletcher’s injuries were attributable to Appellant, as opposed to the other inmate who attacked Lt. Fletcher, it held 7 Appellant also was tried on charges of second-degree assault and reckless endangerment against CO Powell.

The jury could not reach a unanimous verdict for the former, but it did convict him of the latter. The circuit court sentenced Appellant to five years’ incarceration for the reckless endangerment of CO Powell, to be served consecutively to the sentence for the crimes against Lt. Fletcher. 6 that the jury “could reasonably conclude that [A]ppellant, who was the first inmate to attack [Lt.] Fletcher, was intentionally attempting to inflict serious physical injury by his repeated blows to [Lt.] Fletcher’s head.” Id. at 10. Appellant sought review in this Court, but we declined to issue a writ of certiorari.

Cook v. State, 411 Md. 600 (2009). On July 31, 2023, Appellant filed the instant Petition, seeking DNA testing of the substance on the shirt he wore during the time he assaulted Lt. Fletcher.8 In the Petition, Appellant alleges that the State misrepresented to the jury that the blood spatter was Lt. Fletcher’s blood.

The Petition then concludes that DNA testing will identify the stain’s source, and, therefore has a reasonable probability of being exculpatory or mitigating. In its Answer, the State argued that Appellant simply failed to provide any “explanation as to what reasonable probability exists that this testing would produce exculpatory or mitigating evidence.” On October 19, 2023, the circuit court, having received no reply from Appellant, issued its Order denying the Petition without a hearing.9 The court stated: A clear review of the evidence and testimony from the trial of [Appellant] reflects overwhelming and persuasive evidence that [Appellant] assaulted Lt. Aubrey Fletcher and . . . that the assault on Lt. Fletcher was of such a heinous and vicious nature so as to constitute finding, beyond reasonable doubt, by a duly sworn and empaneled jury in the Circuit Court for Somerset County of first[-]degree assault. 8 Appellant previously filed for post-conviction relief under the Uniform Postconviction Procedure Act, CP § 7-101, et seq., but he was unsuccessful in obtaining any relief via that avenue. 9 The circuit court previously denied the Petition in August 2023 via a one-sentence order.

This Court remanded the matter back to the circuit court to issue an order compliant with Maryland Rule 4-709(e), explaining why the Petition should be denied without a hearing. The circuit court then issued the order currently on appeal. 7 The court, thus, was “not persuaded . . . that DNA testing in [Appellant’s] case ha[d] the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing and, therefore, that the Petition . . . should be denied without a hearing.” Appellant then noted an appeal to the Appellate Court of Maryland, which was transferred to this Court. III STANDARD OF REVIEW “This Court ‘reviews without deference the legal standard that a [circuit] court uses in ruling on a petition[]’ for post-conviction DNA testing.” Satterfield v. State, 483 Md. 452, 463 (2023) (alterations in original) (quoting Fuster v. State, 437 Md. 653, 671 (2014)). The issue presented in this case is whether the circuit court erred in denying the Petition without a hearing.

Under Maryland Rule 4-709(b)(1)(B), “the court shall deny the petition . . . as a matter of law,” where the “facts alleged in the petition . . . do not entitle the petitioner to relief” under the DNA Testing Statute. This Court reviews questions of law de novo. See Satterfield, 483 Md. at 466 (holding that, “as a matter of law, the facts alleged do not afford Petitioner relief[]”). IV ANALYSIS We first provide an overview of the relevant law before we address the parties’ arguments and our resolution of those arguments.

A. The DNA Testing Statute, Associated Rules, and Relevant Caselaw Because Appellant seeks relief through DNA testing, we first review the pertinent provisions of CP § 8-201, the associated Maryland Rules, and relevant precedent from this 8 Court. The DNA Testing Statute authorizes an individual, who has been convicted of a crime of violence, pursuant to § 14-101 of the Criminal Law Article (“CR”) (1957, 2021 Repl. Vol.),10 to petition for DNA testing of “scientific identification evidence” that (1) the State possesses and (2) is related to the judgment of conviction. “Scientific identification evidence” is any evidence that: (i) is related to an investigation or prosecution that resulted in a judgment of conviction; (ii) is in the actual or constructive possession of a law enforcement agency or agent of a law enforcement agency; and (iii) contains biological evidence from which DNA may be recovered that may produce exculpatory or mitigating evidence relevant to a claim of a convicted person of wrongful conviction or sentencing if subject to DNA testing. CP § 8-201(a)(5).

A court must order DNA testing if the court finds that: (i) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and (ii) the requested DNA test employs a method of testing generally accepted within the relevant scientific community. Id. § 8- 201(d)(1)(i)–(ii). Under subsection (d), a “reasonable probability” is a “fair likelihood that something is true[,]” Givens, 459 Md. 694, 707 (2018) (citing Beaman v. State, 453 Md. 407 , 420 10 When discussing the DNA Testing Statute, we have often referred to the requirement that an individual be convicted of a necessary predicate offense before being able to file a petition as “standing.” See Simms v. State, 409 Md. 722 , 725 n.3 (2009) (“Appellant, as a person convicted of first[-]degree murder, has standing to file the petition.”). Appellant meets the standing requirement because of his conviction for first- degree assault.

See CR § 14-101(21). 9 (2017)); it does not mean that an individual must establish “that the result would have been different if the DNA results sought were known at the time of trial[,]” id. (quoting Edwards v. State, 453 Md. 174, 196 (2017)). Nor does an individual who seeks DNA testing need to prove that the results would exonerate the individual. Edwards, 453 Md. at 191 (“Nothing in the plain language of the statute suggests that the testing results must ‘exonerate’ a petitioner or ‘prove’ that someone else committed the crime.”).

Rather, the evidence need only “tend to clear the accused of guilt, or tend to establish [the accused’s] innocence.” Givens, 459 Md. at 708 (emphases omitted) (quoting Edwards, 453 Md. at 196 ). We move next to the procedural requirements outlined in CP § 8-201’s accompanying rules. Maryland Rule 4-704(a) governs the content of an individual’s petition. As relevant here, a petition has three requirements.

First, the petition must include a description of the specific scientific identification evidence that an individual seeks to test. Md. Rule 4- 704(a)(2)(A). Second, the petition must state a factual basis establishing that (1) the State either possesses that evidence or can acquire it, (2) the evidence relates to the conviction, and (3) a reasonable probability exists that the testing has the scientific potential to produce exculpatory or mitigating evidence relevant to the wrongful conviction or sentencing claim. Id. 4-704(a)(2)(B).

Third, “to the extent known[,]” the petitioner must describe the type of DNA testing they wish to employ and explain that method’s general acceptance within the relevant scientific community. Id. 4-704(a)(2)(C). Upon receiving notice of the filing of a petition, the State is required to file an answer within 60 days, unless the time to answer has been extended by the court. Id. 4- 10 706(a), (c)(1).

A petitioner may then respond to the State no later than 60 days after receipt of the answer, id. 4-708; however, “[u]pon consideration of the State’s answer, the court may deny the petition if it finds as a matter of law that (1) the petitioner has no standing or (2) the facts alleged in the petition do not entitle the petitioner to relief[,]” id. 4-707(a). As we recently have held, the court’s discretion to deny the petition under Rule 4-707(a) does not require that it wait to receive a petitioner’s response or for the window in which the petitioner may file a response to close. Satterfield, 483 Md. at 481 (“Rule 4-707(a) neither requires the circuit court to await or consider [a p]etitioner’s response nor entitles [a p]etitioner to a response.”). As relevant to this case, a court must hold a hearing if it finds that a petitioner has standing, the identified “scientific identification evidence” exists and is related to a judgment of conviction, there is a method of DNA testing that may exist and is “generally accepted within the relevant scientific community,” and “there is or may be a reasonable probability that [DNA] testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing[.]” Md. Rule 4-709(a)(1).

However, the court must deny the petition without a hearing if the petitioner has no standing or, as a matter of law, the facts alleged in the petition, as required by Rule 4-704, do not entitle the petitioner to relief under CP § 8-201. Id. 4-709(b)(1). “If the court declines to hold a hearing, it shall enter a written order stating the reasons why no hearing is required.” Id. 4-709(e). Where a hearing is not required by the Rules, a reviewing court nevertheless has the discretion to hold a hearing on the petition. Id. 4-709(c). 11 B. The Petition’s Facial Sufficiency At the outset, the State contends that the Petition fails to comply with CP § 8-201 and Rule 4-709 in that the Petition “does not so much as hint” at how testing has the scientific potential to produce exculpatory or mitigating evidence.

The State argues that the Petition “provided no factual basis for [Appellant’s] bare assertion that DNA testing had a reasonable probability of producing exculpatory or mitigating evidence.” (Emphasis added). The State also highlights how Appellant asked the circuit court for permission to reply to the State so he could explain how DNA testing would have a reasonable probability of producing exculpatory or mitigating evidence. This, the State believes, “is exactly the factual basis that [Appellant] was required to include in [the P]etition[]” and believes that Appellant’s request concedes the Petition’s facial inadequacy, requiring that it be denied without a hearing. (Emphasis added).

The State does not cite to Rule 4-704(a)(2)(B) in making these assertions. But, the requirement that a petition contain “statement[s] of the factual bas[e]s” for certain claims comes directly from that Rule. See Md. Rule 4-704(a)(2)(B) (“The petition shall contain: . . .a statement of the factual basis for the claims that . . . .”) (emphasis added)). Naturally, then, the State’s allegation that the Petition contained “no factual basis” for one of the three required claims is an argument that the Petition did not conform to the pleading requirements in Rule 4-704(a)(2)(B).11 11 Our interpretation of the State’s argument is further confirmed by the State’s position during oral argument.

There, the State reiterated that it believed the Petition was “legally insufficient” because it contained only three facts: (1) the introduction of the picture showing Appellant in his stained shirt, (2) the shirt contained a blood-like substance 12 We recognize that Appellant petitioned the circuit court pro se and that we liberally construe such pleadings, Simms, 409 Md. at 731 (citing Hughes v. Rowe, 449 U.S. 5 , 10 n.7 (1980)), especially in the case of remedial laws like the DNA Testing Statute, id. at 731–32. Applying a liberal construction, the Petition meets the pleading requirements of Rule 4-704. The Petition asserts that Appellant “seeks to have tested [the] clothing that’s under the State’s control purportedly with the victim’s blood on them.” It also alleges that, during the criminal trial, the State presented evidence of a “blood[-]like substance” on the Appellant’s clothes from the incident, which “[t]he State misrepresented . . . by indicating that [Appellant’s] clothing was covered in blood.” The Petition also asserts that the State told the jury that there was only one place “this blood” could have come from—the victim, Lt. Fletcher.

Finally, Appellant’s Petition concludes by stating that there “is a reasonable probability that the DNA testing will produce exculpatory or mitigating evidence” by “identify[ing] the source of . . . the blood splatter that’s on [Appellant’s]clothing.” Appellant, thus, identified the scientific evidence to be tested as the blood or other substance on his clothing, alleged that the clothing is in the State’s control, and explained how the State used the evidence at trial. These assertions satisfied Maryland Rules 4- 704(a)(2)(A)–(a)(2)(B)(ii). This leaves us to discern whether Appellant’s assertion that the on it, and (3) the State’s suggestion to the jury that the blood came from Lt. Fletcher.

From that, the State believes that it was “not reasonable” that the circuit court could come up with the “novel theory” that Appellant advances, i.e., that the blood stain came from Lt. Fletcher and, therefore, supports Appellant’s claim of self-defense. Thus, the State believes that the Petition “did not allege facts on which a court could find in his favor.” (Emphasis added). Again, we interpret the State to be arguing that the Petition did not contain the requisite “factual basis” as required by Rule 4-704(a)(2)(B). 13 State misrepresented the stains as Lt.

Fletcher’s blood, and his contention that DNA testing would determine the stains’ source satisfies Rule 4-704(a)(2)(B)(iii)’s requirement to plead the existence of a reasonable probability that testing the stain has the scientific potential to produce relevant exculpatory or mitigating evidence. While Appellant’s formulation perhaps is not the most fine-tuned, applying the liberal construction appropriate to his pro se pleading, we hold that it is sufficient. The Petition reflects Appellant’s theory that the State improperly argued to the jury that Appellant’s shirt,