Givens v. State

Adkins, J. Albert Gustav Givens was convicted of first-degree murder and sentenced to life without parole. Givens appeals from a ruling by the Circuit Court for Anne Arundel County denying post-conviction DNA testing under Maryland Code (2001, 2008 Repl. Vol., 2017 Supp.), § 8-201 of the Criminal Procedure Article ("CP"). 1 We affirm the post-conviction court's denial of Givens's motion because the court did not err when it concluded that there was no reasonable probability that DNA testing could produce exculpatory or mitigating evidence. FACTS AND LEGAL PROCEEDINGS Givens was first convicted of the murder of Marlene Kilpatrick in 1993. 2 After filing for post-conviction relief, Givens was granted a new trial in 1999.

His second trial in 2003 ended in a mistrial after the jury could not reach a unanimous verdict. Givens was tried for a third time in 2004, and the Court of Special Appeals reversed his conviction due to evidentiary errors. 3 Givens's fourth trial began in 2006 but ended in a mistrial shortly after the first witness began her testimony. Givens's fifth trial, the primary subject of this appeal, took place in 2006. The testimony established the following.

Marlene Kilpatrick's body was discovered by her daughter, Lisa Kilpatrick O'Connell, in Kilpatrick's home in Arnold, Maryland on January 3, 1992. Kilpatrick had suffered multiple blunt force injuries to her skull, which caused multiple skull fractures and injuries to her brain. She had been stabbed three times in the torso, and a knife was embedded in one of the wounds. Fuel injection cleaner had been poured on her face and in her mouth.

A Sprite bottle had been inserted into her vagina-a detail that officers withheld from the public. There was no sign of forced entry into Kilpatrick's home, although the telephone line had been cut. A cup of coffee and a partially full bottle of Coca-Cola were found on the table. There was a substantial amount of blood in the kitchen, leading to the bedroom where Kilpatrick's body was discovered.

Kilpatrick's purse, keys, daily reminder book, and car were missing from the home. Based on the circumstances of the crime, the police theorized that the killer was acquainted with Kilpatrick. They investigated a number of individuals, including Givens. Givens had become friends with the Kilpatrick family through the victim's son, Jay Kilpatrick.

He had also painted and done minor repairs for the victim. Shortly after Kilpatrick's body was discovered, police questioned Givens regarding his activities on the date of the murder. He stated that he was with his girlfriend, but after she corrected him, Givens told police that he had been drinking with a friend. Only Kilpatrick's blood was found at the crime scene.

Police recovered hair and fibers, but none matched Givens. A footprint was found outside Kilpatrick's home, but was not adequate for a plaster mold. The police were able to swab saliva from the partially full Coca-Cola bottle on the kitchen table and sent it to Cellmark for DNA comparison and testing against samples from numerous suspects, including Givens. The initial results established that Givens could be a match to the saliva on the bottle. 4 Kilpatrick's car was located several miles away in the parking lot of a hardware store in Severna Park.

The owner of the store, Gordon Clement, had arrived at the store around 7:00 a.m. on January 2, 1993. Around 7:30 a.m., Clement observed a man in front of his store. Approximately two hours later, Clement noticed a car in his parking lot that had not been there when he arrived. The car was still there the next day.

After work, Clement heard a report on the radio about Kilpatrick's murder that described her missing vehicle and included the tag number. Clement contacted the store, verified that the car in the lot matched the one described in the radio report, and the matter was reported to the police. Police showed Clement a photographic array that included a picture of Givens but Clement did not identify him at that time. Some months later, after Givens had been arrested and charged, Clement saw his picture in the newspaper and recognized Givens as the man he had seen.

Clement identified Givens at trial. Givens was arrested in July 1993, after the DNA testing established that he was a likely match to the saliva on the Coca-Cola bottle. During police interviews after his arrest, Givens maintained that he had been with a friend the day Kilpatrick was killed. After being confronted with the DNA evidence on the Coca-Cola bottle, Givens asserted that he had seen Kilpatrick at a store in Severna Park several days before her death and gave her the bottle for disposal.

Givens also made a statement about the Sprite bottle being in the victim's vagina and explained his knowledge by claiming that this fact was more widely known than the police had thought. Upon arresting Givens and executing search warrants, the police discovered a large toolbox containing over 100 tools in Givens's car. Dr. William Vosburgh, who testified as the State's expert in forensic serology and blood stain pattern analysis, had examined the contents of the toolbox in 1992. He testified that the majority of the tools were oily and dirty, but one item, a 15-inch Sears Craftsman crescent wrench, appeared unusually clean in comparison.

The State's theory, presented at all of Givens's trials, was that Givens had used the wrench to bludgeon Kilpatrick before stabbing and further assaulting her, and that Givens had cleaned the wrench after the murder. The State presented expert testimony from several witnesses to establish that the wrench was a likely murder weapon. Vosburgh was unable to obtain any serological test results that could show with any reasonable degree of scientific certainty whether blood or human tissue had been present on the wrench. 5 Vosburgh swabbed the wrench and took a scraping from it and sent both samples to Cellmark for further testing. He explained that after examining the wrench, he found no lubricant, dirt, or grime in the adjustable mechanism of the wrench, although he would have expected to find lubricant in the mechanism.

Vosburgh also testified that cleaning a surface can remove or affect blood and other serological fluids such that testing may be unable to establish if such fluids were ever present. Dr. Charlotte Word, the State's expert in DNA identification, testified about Cellmark's attempts in 1992 to identify and test DNA on the scraping and swab. 6 Cellmark made three attempts to extract DNA that might be in the scraping and two attempts to extract DNA that might be on the swab. Cellmark was unable to obtain any results. Word testified that based on the results of the test, she was unable to determine whether there was enough DNA to obtain a sample, whether the DNA was too degraded to obtain results, or whether there was any DNA present at all.

Dr. David Fowler, the Chief Medical Examiner for the State of Maryland, testified that the lacerations, abrasions, and fractures on Kilpatrick's skull were consistent with the wrench. Fowler further opined that the wrench matched the patterns of Kilpatrick's injuries. He asserted that, in his opinion "within a reasonable degree of medical certainty, an object which has the size, weight, and shape characteristics of that wrench caused the injuries to Mrs. Kilpatrick." Defense counsel attempted to undermine Fowler's conclusions. They offered three expert witnesses, one on postmortem examination and two on forensic pathology, who disputed Fowler's assertion about the wrench.

Two of the experts, one of whom had performed Kilpatrick's autopsy, testified that the injuries were not distinct and there was not sufficient evidence to match any patterns to the wrench or to conclude that the wrench caused the injuries. The third expert testified that the wrench was a "possible object" that could have caused the injuries, but there was not enough evidence to permit a conclusion that the wrench was the weapon. Givens testified that on January 2, 1993, he ran into Jay Kilpatrick, the victim's son, and Jay's co-worker, Matt. All three drove together to Kilpatrick's home.

Jay and Matt went into the house and Givens waited in the car. Givens testified that he entered the house about 15 minutes after they arrived, and Kilpatrick offered him a drink. Givens took a bottle of Coca-Cola from the fridge and drank from it. Givens claimed that he witnessed Jay arguing with his mother and striking her on the head.

Givens stated that when he pulled Jay off of Kilpatrick, Jay drew a knife, told Givens to leave, and threatened to kill him and his family. Givens testified that he left, but he went to Jay's house to confront him the next day. Jay told Givens that he had beaten and stabbed his mother to death because she would not give him money to pay the restitution required as a condition of Jay's probation. Givens denied that he killed Kilpatrick.

The jury again found Givens guilty of first-degree murder and he was sentenced to life without parole. In 2011, Givens filed a petition for post-conviction relief for forensic testing. 7 Givens sought a renewed comparison analysis of the wrench, the autopsy report, and the photographs. He also requested short tandem repeat ("STR") DNA testing of the swab taken from the wrench. After a hearing, the Circuit Court denied the petition.

DNA Testing Hearing Following Second Conviction In January 2017, Givens filed a pro se petition for post-conviction DNA testing under CP § 8-201 in the Circuit Court for Anne Arundel County. On this occasion, Givens sought STR testing of the scraping obtained from the wrench, which was not available at the time the samples were initially tested in 1992. Givens asserted that STR testing could prove that the wrench was not the murder weapon and would "therefore constitute exculpatory evidence relevant to his claim of wrongful conviction." The State opposed Givens's petition, contending that because the evidence had previously been unsuccessfully tested, the scraping was not likely to contain adequate biological material for analysis. Further, the State argued that any results would not be exculpatory or mitigating.

After a hearing in June 2017, the Circuit Court denied Givens's petition. The hearing judge concluded that the method of DNA testing Givens sought-STR-was "very common," satisfies the Frye - Reed 8 standards, and is "accepted within the relevant scientific community." He agreed with the State that the sample "is very likely to have nothing probative left because it was used for three amplifications already[,]" but did not agree that it was a sufficiently compelling reason to deny Givens's petition. Rather, the hearing judge determined that under the facts of the case, there was no reasonable probability that the testing could produce exculpatory or mitigating evidence. The judge set out his reasoning for that conclusion: And I also note that the [wrench] itself was not at trial.

No one said unequivocally that the tool was matched to the blunt force trauma to the victim's head in this case. In fact, there were experts that had dueling testimony to that effect. * * * * But what the Court does find even more compelling than all of that, that is that it was a tool that was in his exclusive possession and not, say, found at the crime scene, is that you can only work through the four possibilities .... And that is the first three that were mentioned in the State's motion in this case, which is if it contained the victim's DNA profile, or at least one that matched to an incredibly high degree of scientific certainty. Then you would have something that is not exculpatory or mitigating, but rather, is inculpatory.

Number one. Number two, if it had Mr. Givens's DNA profile on it, or someone matching his profile, then it would only confirm that this was a tool in his possession. The third possibility would be that the test comes back inconclusive, and that if it were inconclusive, it would be at the same part and the same thing that the evidence-that the final jury heard in Mr. Givens's fifth trial. And of course, the fourth possibility is that it came back with another DNA.

The judge observed that Givens had claimed that Jay Kilpatrick gave him the wrench before the crime, and it was discovered in Givens's possession more than six months after the murder. From this, the judge reasoned that finding an unknown third party's DNA on the wrench would not be exculpatory or mitigating because the evidence at trial did not demonstrate that any DNA on the wrench matched a particular person. Accordingly, the hearing judge denied Givens's petition. Givens sought review under CP § 8-201(k)(6), which permits a direct appeal to the Court of Appeals from an order of a Circuit Court entered under CP § 8-201.

See Arrington v. State , 411 Md. 524 , 544, 983 A.2d 1071 (2009). We consider whether the lower court erred in denying Givens's petition for post-conviction DNA testing. We shall conclude that it did not. STANDARD OF REVIEW We review a circuit court's determination of whether a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence for clear error.

Simms v. State , 445 Md. 163 , 185, 126 A.3d 26 (2015). "Under this standard, 'if there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.' " Id. (quoting Washington v. State , 424 Md. 632 , 651, 37 A.3d 932 (2012) ). DISCUSSION Givens argues that the Circuit Court committed clear error by finding that the wrench was not at trial and that "[n]o one said unequivocally that the tool was matched to the blunt force trauma to the victim's head in this case." At trial, the State relied on expert testimony that an object the size, shape, and weight of the wrench caused Kilpatrick's head injuries.

Givens reasons that if the State is correct, any DNA on the wrench should be Kilpatrick's. But if the DNA does not match Kilpatrick, then it disproves the State's claim that the wrench was the murder weapon. This finding, he claims, would "mitigate, if not exculpate, him as the possible murderer[,]" and impeach the State's witness. Givens acknowledges that the results from testing the scraping proved "inconclusive," but contends that new testing procedures are more sophisticated.

The State argues that the wrench scraping is not scientific identification evidence because the wrench had already been tested, there was "insufficient biological material to produce a DNA profile," and any cells in the original scraping were consumed by the initial testing. Further, current DNA testing methods still rely upon polymerase chain reaction ("PCR") amplification to achieve the necessary amount of DNA for analysis. The original PCR amplifications did not result in testable DNA, and the record does not demonstrate that another round of amplification would be successful. The State also maintains that any result obtained would not be exculpatory.

The presence of Givens's DNA on the wrench would not be exculpatory because he owned the wrench and it was in his possession for months. Finding Kilpatrick's DNA on the wrench would be inculpatory. If no usable DNA is found on the wrench, that would not be exculpatory because that is what the jury heard, and it still convicted Givens. If a third person's DNA is on the wrench, that would not be exculpatory because Givens has not claimed that someone else used the wrench to murder Kilpatrick-he asserts that the wrench was not the murder weapon.

The Post-Conviction DNA Testing Statute "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." District Atty's Office for the Third Judicial Dist. v. Osborne , 557 U.S. 52 , 55, 129 S.Ct. 2308 , 174 L.Ed.2d 38 (2009). Recognizing this important fact, in 2001, the General Assembly enacted CP § 8-201, which authorizes post-conviction DNA testing. The General Assembly intended the statute to serve as "a mechanism for a person who has been convicted of certain serious crimes to obtain exculpatory or mitigating evidence through the DNA testing of items related to that conviction." Simms , 445 Md. at 167 , 126 A.3d 26 . CP § 8-201(b)(1) authorizes a person "convicted of a crime of violence" 9 to file a petition in circuit court seeking "DNA testing of scientific identification evidence that the State possesses that is related to the judgment of conviction ...." CP § 8-201(a)(5) defines "scientific identification evidence" as 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 [ 10 ] 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.

(Emphasis added). CP § 8-201(d) requires the court to order DNA testing if the petitioner demonstrates that two conditions are met. Simms , 445 Md. at 169 , 126 A.3d 26 . First, the court must find that "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 ...." CP § 8-201(d)(1)(i) (emphasis added).

The court must also find that the "requested DNA test employs a method of testing generally accepted within the relevant scientific community." Id. (d)(1)(ii). Under CP § 8-201(d), a "reasonable probability" requires more than mere possibility, rather, it is a fair likelihood that something is true. Beaman v. State , 453 Md. 407 , 420, 162 A.3d 864 (2017).

The petitioner's burden to demonstrate a reasonable probability that the evidence would be exculpatory does not require "establish[ing] that the result would have been different if the DNA results sought were known at the time of trial." Edwards v. State , 453 Md. 174 , 196, 160 A.3d 642 (2017). The results need not exonerate the petitioner or prove that someone else committed the crime. Id. at 191 , 160 A.3d 642 . Rather, "exculpatory" in CP § 8-201 means only "evidence that would tend to clear the accused of guilt, or tend to establish his or her innocence." Id. at 196 , 160 A.3d 642 (emphasis added).

To satisfy his burden, Givens must demonstrate that the testing he seeks has the scientific potential to produce evidence that would tend to show that he did not commit the crime, or that he is innocent. The Process Of Testing DNA To fully understand the issues presented, it is necessary to discuss the processes utilized to test DNA. Polymerase chain reaction, or PCR, "magnifies short sequences of interest in a small number of DNA fragments into millions of exact copies." David H. Kaye & George Sensabaugh, Reference Guide on DNA Identification Evidence , in Reference Manual on Scientific Evidence 129, 143 (3d ed. 2011). PCR makes "it possible to analyze minute or degraded samples." Young v. State , 388 Md. 99 , 108, 879 A.2d 44 (2005).

PCR uses a three-step process to extract and amplify a DNA sample. Id. First, in "denaturization," the DNA is heated to separate the two strands of the double helix. Second, in the "annealing" process, primers 11 containing nucleotide sequences 12 complementary to the DNA region being amplified are added.

Kaye & Sensabaugh, supra , at 143. The primers bond to the DNA when cooled. Young , 388 Md. at 108 -09 , 879 A.2d 44 . Third, in "extension," the material is copied repeatedly to produce a larger sample of DNA for analysis.

Id. at 109 , 879 A.2d 44 ; see also Kaye & Sensabaugh, supra , at 143. Whether DNA amplification is possible depends on the quantity of DNA available in the sample, and whether the DNA is severely degraded. Kaye & Sensabaugh, supra , at 151. Studies have demonstrated that, despite its hardiness, DNA may be degraded such that it cannot be analyzed.

Id. at 153. "The extent to which degradation affects a PCR-based test depends on the size of the DNA segment to be amplified." Id. If amplification is successful, the resulting DNA can then be analyzed. PCR amplification is, as the State correctly points out, still in use today to amplify DNA for analysis in STR testing.

Id. at 144; see also Young , 388 Md. at 109 , 879 A.2d 44 . STRs are "very short repeating sequences of DNA that are three to seven bases long ...." D.P. Lyle, Forensic Science 184 (2012). Each person has a "variable number of STRs in any given locus" on his or her DNA. Id. at 186 .

It is possible to determine the number of any given STRs at a given locus. Id. That number varies from person to person and can be used to confirm if two samples came from the same person. Id.

If it is known how often a specific number of STR repeats are found at a given locus in the general population, then experts can determine the statistical odds that the same individual is responsible for two samples. Id. at 186-87 . A match from a single locus is generally not conclusive. If there are multiple matches from multiple loci, then the odds that