Gregg v. State

BARBERA, J. In 2001, the Maryland General Assembly enacted the DNA Postconviction statute. The statute is codified at Maryland Code (2001, 2008 Repl.Vol.), § 8-201 of the Criminal Procedure Article and, as amended several times in the ensuing-years, has consistently provided persons convicted of serious crimes to pursue DNA testing of physical evidence, in the possession of the State, that might prove exculpatory or mitigating and result in a new trial or sentencing. 1 Appellant Donte Gregg was convicted in 2003 of first degree murder. He sought relief under § 8-201 by filing a petition for DNA testing of epithelial cells that were collected on the murder weapon’s trigger during investigation of the crime. The circuit court judge who had presided over Appellant’s trial denied the petition without a hearing.

Appellant argues that the Circuit Court erred in denying the petition for DNA testing, and, moreover, doing so without a hearing. For the reasons that follow, we agree with Appellant that the court erred by summarily denying the petition. Moreover, because the record that has developed in this case plainly shows Appellant’s entitlement to the relief he seeks, we ⁷⁰² shall vacate the Circuit Court’s order denying the petition and remand the case with the direction that the court order the requested DNA testing be done. I. Appellant was convicted of firing a single shot, during the early morning hours of June 15, 2002, that fatally wounded Phillip Adams.

The only witness to the shooting was Anthony King, who at that time was selling drugs for Adams and was intoxicated from heroin and cocaine. From his position 30 to 40 yards away, King saw a man hold a gun to Adams’s head and heard him twice ask Adams to “give it up.” Adams replied that he had nothing, and the man shot him. The shooter then got into the passenger seat of a van about ten feet away and said to the driver, “drive or I’ll shoot you, too.” King was unable to see the driver. The van left the scene.

The police soon located the van being driven in an area near the crime scene. As the police followed, the van stopped and two occupants alighted. Shortly thereafter, police stopped and arrested Appellant. According to the police, Appellant had been the passenger in the van.

Police searched the van and found a .45 caliber shell on the passenger seat and blood, later determined to be Adams’s, spattered across the back bumper and back door of the van. Police also found a .45 caliber handgun in the passenger side wheel axle area, beneath a removable storage compartment. Registration forms in the van identified Appellant as the owner. Ballistics test established that the gun retrieved from the van was the murder weapon.

Shortly after Appellant arrived at the police station, the police dabbed his hands for the purpose of detecting gunshot residue. The State’s expert witness testified that testing of the material removed from Appellant’s hands produced evidence of gunshot residue in an amount consistent with his having fired a gun. The witness agreed with defense counsel, however, that the number of particles taken from Appellant’s hands did not prove that he had fired a gun. The witness explained that particles could ⁷⁰³ have been transferred to Appellant’s hands if they were adjacent to a gun when it was fired, or if he touched a surface with gunshot residue on it.

Latent fingerprints of comparison value were retrieved from the gun, the storage surface area where the gun was found in the van, a cup on the passenger side of the van, and the interior of the vehicle’s passenger area. None of the prints matched those of Appellant. Swabbing of the murder weapon produced epithelial cells on its trigger. The parties have since disputed whether the defense was informed during discovery of the existence of the epithelial cells.

The parties do not dispute, however, that neither the State nor the defense had a DNA analysis of the cells performed before or during trial. The State’s eyewitness to the shooting, King, testified that he had never seen Appellant before trial. He also testified that Appellant’s physical appearance did not match the physical appearance of the shooter. Appellant testified that, on the night in question, he was the driver of the van, not the passenger, and he had nothing to do with the crime.

He acknowledged having driven a man by the name of Andre Robinson to the area where the shooting took place, explaining that Robinson had asked to be taken to his girlfriend’s home. Appellant testified that he saw Robinson shoot Adams, whom he, Appellant, did not know. Robinson then ran to the van, pointed the gun at him, and told him to drive. Appellant testified that he grabbed the barrel of the gun when Robinson pointed it at him and pushed it away.

Appellant started driving and Robinson went into the back of the van. Robinson then told Appellant to pull over and he did. He and Robinson got out of the van and walked away from it. Sometime thereafter, the police arrested Appellant and took him into custody.

Andre Robinson, though subpoenaed by the defense, failed to appear in court. Defense counsel proffered that, although ⁷⁰⁴ he knew from Robinson’s attorney that Robinson would invoke his Fifth Amendment privilege, the defense simply wished the jury to assess Robinson’s physical appearance. It was not until the jury had begun deliberating that Robinson was located in the courthouse. The court denied Appellant’s request to allow the jury to view Robinson at that time.

The court, however, ordered that Robinson be held in the courthouse in case the jury asked about him. The jury did not ask about Robinson before rendering the verdict. The jury found Appellant guilty of first degree murder, conspiracy to commit murder, and use of a handgun in the commission of a felony, and acquitted him of attempted robbery. The court sentenced Appellant to concurrent life sentences for murder and conspiracy and a concurrent twenty-year sentence on the handgun conviction.

The Court of Special Appeals affirmed the judgments in an unreported opinion filed on October 25, 2004. Appellant’s post-trial efforts to obtain DNA testing On or about September 18, 2003, while the direct appeal was pending, Appellant filed a “Petition for DNA Evidence—Post Conviction Review,” pursuant to § 8-201. 2 The petition was prepared by Appellant’s trial counsel. Appellant represented in the petition that, “during the course of the trial the state produced evidence that the murder weapon contained[,] on the trigger, cells that were capable of comparison through DNA analysis.” Appellant recounted his version of the events surrounding the crime and summarized what had occurred at trial concerning Robinson. Appellant argued that DNA evidence analysis of the epithelial cells found on the trigger of the murder weapon would show that he had not fired it and therefore would exonerate him of the charges.

Under those ⁷⁰⁵ circumstances, Appellant asserted, he was entitled to the requested court-ordered DNA testing. The State responded in opposition to the petition. The State argued that Appellant had not carried his burden of showing entitlement to the DNA testing of the evidence, under the then-extant version of § 8-201 (c). That version of the statute required a petitioner to establish, among other facts, that the lack of prior DNA testing was “for reasons beyond the control of the petitioner.” The State asserted that it had disclosed to the defense well before trial that swabbings of the trigger area of the murder weapon “were positive for the presence of epithelial cells and same were examined.” The State argued that Appellant could have soiight to have the cells subjected to DNA analysis before trial.

The State further argued that “no amount of analysis of the cells will determine who fired the weapon”; rather, the most that could be ascertained from the analysis would be “who may have come into contact with the weapon over the course of time.” (Emphasis in original). The Circuit Court did not rule on the merits of the September 2003 petition. Instead, the court, at the behest of Appellant, dismissed the petition without prejudice in November 2005. Also in November 2005, Appellant filed, through counsel, a “Motion for New Trial and for Release of Evidence for Forensic Testing,” which we hereafter shall refer to as the 2005 petition or, simply, the petition.

Appellant served a copy of the petition on the State. Appellant relied in the petition on § 8-201(c), which had undergone significant amendment since the filing of the original petition in September 2003, in seeking a court order directing the State to release the epithelial cell evidence for DNA testing. Appellant also relied on Maryland Rule 4-331, which provides for the relief of a new trial on the basis of newly discovered evidence, in seeking an order for DNA testing of the epithelial cells and for comparison of the latent fingerprints lifted from the van to those of Andre Robinson. ⁷⁰⁶ Appellant recounted in the 2005 petition much of the evidence that was developed at trial. And he asserted, as he had done in the 2003 petition, that “[d]uring the course of the trial defense counsel realized for the first time that biological evidence in the form of epithelial cells recovered from the trigger of the gun had been recovered by a crime lab technician.” Appellant noted that the epithelial cells were amenable for DNA testing but had not been tested.

Appellant argued that the DNA and fingerprint evidence has the potential to corroborate [his] version of what occurred on June 15, 2002 by establishing that Andre Robinson was in the passenger area of the vehicle, handled the murder weapon and pulled the trigger. Taken in conjunction with the testimony of the State’s only eyewitness to the crime that the shooter had threatened to shoot the operator of the van if he didn’t drive off with the shooter, forensic evidence linking Robinson to the van and the murder weapon certainly has enormous potential to support the defense of [Appellant] that he was not guilty of murder or of conspiracy to murder the victim in this case. Appellant requested a hearing on the petition. The State did not answer the petition.

The petition was directed to the circuit court judge who presided over Appellant’s trial. The court did not direct the State to respond to the petition, nor did the court hold a hearing. In an order docketed on April 17, 2006, the court denied Appellant’s request for DNA testing, for release of the fingerprint evidence, and for a new trial. Appellant did not timely receive notice of the court’s order.

Upon learning of the order, Appellant filed, on May 2, 2006, a motion for reconsideration of the order and requested a hearing. On the same day, Appellant filed a notice of appeal from the denial of the petition, pursuant to § 8-201(j)(6). 3 ⁷⁰⁷ The Court of Special Appeals subsequently dismissed the appeal as untimely. Meanwhile, the State answered in opposition to the motion for reconsideration. The circuit court did not hold a hearing on the motion; instead, it issued an order denying the motion for reconsideration.

Appellant thereafter filed a petition for postconviction seeking the relief of the right to file a belated appeal from the court’s denial of the petition. The court granted that relief by order dated March 20, 2008. This appeal timely followed. Appellant presents the following question: “Did the trial court err in ruling without affording Appellant a hearing and err in denying Appellant’s request for DNA testing?” II.

Before getting to the issues in this appeal that implicate § 8-201, we dispose of a preliminary matter. The appeal is brought from the court’s denial of the November 2005 “Motion for Release of Evidence for Forensic Testing and for New Trial.” Appellant sought DNA testing under both § 8-201 and Maryland Rule 4-331. 4 The State argues that, unlike the court’s denial of Appellant’s requested relief under § 8-201, which is subject to direct review by this Court, the court’s denial of relief under Rule 4-331 can reach us only by issuance of a writ of certiorari. Appellant, at oral argument before us, agreed with the State. So do we.

See Md. Rule 8-301 (a). We therefore shall confine our review to whether the court properly denied the petition seeking relief under § 8-201. ⁷⁰⁸ III. The parties’ arguments focus on § 8-201 and include a disagreement about which version of subsection (c) controls Appellant’s case—the version of the subsection that was in effect at the time Appellant was convicted and filed the 2003 petition, or the version currently in effect. The arguments are best understood by a preliminary overview of the statute.

Section 8-201 became law by Chapter 418 of the Acts of 2001. Although § 8-201 has been amended several times in the ensuing years, much of the original version of the law remains essentially intact. 5 Section 8-201 (a), the definitions subsection, from the outset has included a definition of the term, “scientific identification evidence.” As of 2003, such evidence is defined in (a)(5) 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 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. Subsection (b) has provided from the outset that, “[njotwithstanding any other law governing postconviction relief,” per ⁷⁰⁹ sons convicted of certain enumerated crimes “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.” Before its amendment in 2003 subsection (c) provided: Findings requiring DNA testing.—Subject to subsection (d) of this section, a court shall order DNA testing if the court finds that: (1) (i) the scientific identification evidence was not previously subjected to the DNA testing that is requested for reasons beyond the control of the petitioner; or (ii) the type of DNA test being requested is different from tests previously conducted and would have a reasonable likelihood of pi'oviding a more probative result than tests previously conducted; (2) the scientific identification evidence was secured as provided in subsection (i) of this section, in relation to the crime for which the petitioner was convicted; (3) the scientific identification evidence to be tested has been subject to a chain of custody as provided under subsection (i) of this section that is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect; (4) identity was an issue in the trial that resulted in the petitioner’s conviction; (5) a reasonable probability exists that the DNA testing has the scientific potential to produce results materially relevant to the petitioner’s assertion of innocence; and (6) the requested DNA test employs a method of testing generally accepted within the relevant scientific community. tinder this subsection, so long as findings (1) through (6) are made, and subject to subsection (d), the court must order the requested DNA testing (“the court shall order DNA testing”) (emphasis added). ⁷¹⁰ Subsection (d) from the beginning has required the petitioner to notify the State of the petition, in writing, and has provided the State an opportunity to respond. Subsection (e) has been modified somewhat over the years.

As originally enacted, it provided that, if the court ordered DNA testing under subsection (c), the court must identify the specific evidence to be tested and the method of testing to be used, and select the laboratory where the testing should be performed. As of 2003, the court may, but need not, issue such orders. Subsection (f) has provided from the outset that the testing be done as soon as practicable and gives the court the power to order testing to be completed by a certain date. Subsection (g) has always required the petitioner to pay for the court-ordered DNA testing.

If the results are favorable to the petitioner, however, the court “shall order” the State to reimburse the petitioner for the costs of the testing. Subsection (h) directs the court’s actions following the results of the DNA testing. As originally enacted, it provided: Disposition upon receipt of results.—(1) If the results of the postconviction DNA testing are unfavorable to the petitioner, the court shall dismiss the petition. (2) If the results of the postconviction DNA testing are favorable to the petitioner, the court shall: (i) if no postconviction proceeding has been previously initiated by the petitioner under § 7-102 of this article, open a postconviction proceeding under § 7-102 of this article; or (ii) if a postconviction proceeding has been previously initiated by the petitioner under § 7-102 of this article, reopen a postconviction proceeding under § 7-104 of this article.[ 6 ] ⁷¹¹ Subsection (i) addressed preservation of scientific identification evidence and the State’s obligation to make such evidence available.

Subsection (j) as originally enacted addressed the circumstances under which the State could dispose of such evidence. 7 In 2003, the General Assembly amended § 8—201(c), and made other changes to the statute not pertinent here. Effective October 1, 2003, subsection (c) was amended to provide: 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 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. See Chapter 240 of the Acts of 2003. The 2003 amendment significantly changed subsection (c).

The amendment deleted the finding required by former subsection (c)(1), along with the findings required by former subsections (c)(2), (3), and (4). As a consequence of the deletion of former (c)(1), a petitioner is no longer burdened with establishing that the scientific identification evidence sought to be tested “was not previously subjected to the DNA testing that is requested for reasons beyond [his or her] control.” The 2003 amendment also relaxed the standard the petitioner must meet to establish entitlement to testing: whereas former subsection (c)(5) required the petitioner to show that “a reasonable probability exists that the DNA testing has the scientific potential to produce results materially relevant to ⁷¹² the petitioner’s assertion of innocence,” the amended subsection (c) requires the petitioner to demonstrate a reasonable probability “that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing!)]” 8 The 2003 amendment to subsection (c) did not amend the directive that “the court shall order DNA testing,” so long as the required findings of that subsection are made (and the petitioner has complied with the notice requirement of subsection (d)). Notwithstanding that, as of January 1, 2009, what was subsection (c) has been re-lettered, we shall refer in this opinion to that subsection and other subsections of § 8-201 as they were lettered at the times relevant to this appeal.

IV

Appellant mounts two arguments in support of his challenge to the court’s denial of his request for DNA testing of the epithelial cells on the trigger area of the murder weapon. We have examined the bill files of both S.B. 363 and H.B. 575, and found nothing in either file that informs the legislative purpose behind the amendment to § 8-201(c). He argues that he satisfied the standard set forth in the version of § 8-201(c) that went into effect on October 1, 2003. Appellant argues that, because he satisfied that standard, the court was required to order the testing, and its refusal to do so was legal error.

Appellant separately argues that the court erred by denying the requested relief without a hearing. The State responds that Appellant incorrectly relies on the 2003 version of § 8-201(c). The State argues that, because ⁷¹³ Appellant was convicted and filed his first petition for DNA testing before the effective date of the 2003 amendment, the original version of subsection (c), in particular, (c)(1), controls the case. Under that version, the State argues, the court properly denied the petition because Appellant was unable to show that the epithelial cell evidence was not previously tested for reasons beyond his control.

The State asserts that Appellant “knew of the evidence well prior to trial and had every opportunity to have it tested[,]” and he “made the tactical choice to forego testing of the evidence.” The State contends that Appellant, by failing to pursue testing before trial, “has waived the right to demand such testing now.” The State advances a separate waiver argument that § 8-201 is limited by the procedural default provisions of the Uniform Postconviction Procedure Act, Md.Code (2001, 2008 RepLVol.), § § 7-101-7-301 of the Criminal Procedure Article (hereinafter “UPPA”). The State asserts that the two postconviction statutes must be read in conjunction. The State directs us, first,