Simms v. State

McDonald, j. In this case, both sides have sought to prove a negative. The Appellant, Joseph E. Simms, was convicted of first degree murder and related offenses in 1996. In 2008, well after his conviction had become final, he embarked on an effort under the post-conviction DNA testing statute, Maryland Code, Criminal Procedure Article (“CP”), § 8-201, to prove that one item of the prosecution’s evidence—socks he had allegedly worn at the time of the murders—lacked his DNA.

The State ultimately responded with documentation that the socks no longer existed, having been destroyed long ago, along with other items seized in the case after his conviction had become final. Mr. Simms apparently accepted the fact that the socks had been destroyed and unsuccessfully pursued other post-conviction relief for several years on the theory that the socks had been destroyed in bad faith. This case arose when Mr. Simms sought to reopen the proceedings under CP § 8-201 and obtain a hearing to explore ¹⁶⁷ the circumstances of the destruction of the socks. The pro bono counsel who had assisted him in the earlier proceedings under that statute moved to strike their appearance.

The Circuit Court granted the motion to withdraw and denied Mr. Simms’ request for new court-appointed counsel. The Circuit Court also turned down his request to conduct further proceedings under the post-conviction DNA testing statute. For the reasons that follow, we affirm the rulings of the Circuit Court. I Background We describe first the post-conviction DNA testing statute that is the basis for this proceeding and then the factual and procedural history of this particular case.

A. The Post-Conviction DNA Testing Statute In 2001, the General Assembly enacted the post-conviction DNA testing statute to provide a mechanism for a person who has been convicted of certain serious crimes to obtain exculpatory or mitigating evidence through DNA testing of items related to that conviction. Chapter 418, Laws of Maryland 2001, codified as later amended at CP § 8-201; see Thompson v. State, 395 Md. 240, 252-53 , 909 A.2d 1035 (2006). In 2009, this Court adopted rules to govern proceedings under the statute. Maryland Rules 4-701 et seq.

Petition, Answer, and Court Action Under the statute, a convicted person may ask a circuit court to order testing of “scientific identification evidence”— that is, evidence in the possession of the State related to the individual’s prosecution that contains biological evidence in which there may be DNA. See CP § 8—201(b)(1) 1 ; CP § 8- ¹⁶⁸ 201(a)(5) (definition of “scientific identification evidence”); Maryland Rules 4-703, 4-704. The petition may also seek to have a law enforcement agency search a data base or log to identify the source of physical evidence used for DNA testing. CP § 8—201(b)(2).

A copy of the petition is to be provided to the State. CP § 8-201(e); Maryland Rule 4-705. The State is to file an answer to the petition that states, among other things, the existence, location, and amenability to testing of the evidence specified in the petition. Maryland Rule 4-706(c).

If the evidence is missing or has been destroyed, the State is to provide certain details as to its search or the circumstances of the destruction. Id. The petitioner may then file a response to the State’s answer contesting the accuracy or the adequacy of the State’s answer, and requesting a search of other databases or logs. Maryland Rule 4-708.

Upon consideration of the filings, the Court may dismiss the petition in certain circumstances. Maryland Rule 4-707(a). If it does not dismiss the petition, it may appoint counsel for an indigent petitioner. Maryland Rule 4—707(b); Fuster v. State, 437 Md. 653, 668 , 89 A.3d 1114 (2014).

In certain circumstances, the court must hold a hearing on the petition. Maryland Rule 4-709. 2 ¹⁶⁹ The court is to order DNA testing of the physical evidence if the State agrees to the testing. Maryland Rule 4-710(a)(2)(A)(i). The court is also to order testing if it finds: (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.

CP § 8—201(d)(1); see also Maryland Rule 4-710(a)(2)(A)(ii). In addition, the court is to order a database search by a law enforcement agency if the court finds that “a reasonable probability exists that the database search will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing.” CP § 8—201(d)(2). 3 The court is ¹⁷⁰ also to deny the petition if it concludes that there is no reasonable probability that DNA testing has the potential to produce exculpatory or mitigating evidence. Maryland Rule 4—710(a)(1)(B). 4 Resolving the Adequacy of the State’s Search If the State has been unable to locate the evidence and there is a genuine dispute at to the adequacy of its search, the court must conduct a hearing. Maryland Rule 4—709(a)(2).

Similarly, a hearing must be conducted if the evidence was destroyed and there is a genuine dispute over the lawfulness of the destruction. Maryland Rule 4—709(a)(3). If the petitioner challenges the adequacy of the State’s search, the State has the burden of establishing that it conducted a reasonable search for the evidence. If the State is unable to locate the evidence, it is to submit a detailed affidavit concerning its search for the evidence.

Maryland Rule 4-706(c)(2)(B). If the evidence has been destroyed, the State is to submit an affidavit containing a description of relevant protocols and legal requirements, stating whether the destruction complied with those requirements, and documenting the destruction. Maryland Rule 4—706(c)(2)(C); see also Arey v. State, 400 Md. 491, 503-04 , 929 A.2d 501 (2007) (“Because the State was the custodian of evidence, the 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.”) (emphasis added). The State must make “a prima facie case, either directly or circumstantially, that the requested scientific identification ¹⁷¹ evidence no longer exists.... ” Washington v. State, 424 Md. 632, 651 , 37 A.3d 932 (2012); Johnson v. State, 440 Md. 559, 568 , 103 A.3d 650 (2014).

If the State establishes that it has conducted a reasonable search, either by documenting the destruction of the evidence or by demonstrating that a diligent search has proved fruitless, the State has satisfied its burden of persuasion. Arey, 400 Md. at 505 , 929 A.2d 501 . If the court finds that the State has conducted an adequate search and that the evidence sought to be tested is not within its possession and was not “intentionally and willfully destroyed,” the court is to deny the petition. Maryland Rule 4-710(a)(1)(A).

State’s Obligation to Preserve Evidence The statute requires the State to preserve scientific identification evidence that may be subject to testing under the statute for a defined period of time and creates procedures for the earlier disposal of such evidence. CP § 8-201(j), (k)(l)-(4). If evidence that should have been preserved is unavailable as a result of “intentional and willful destruction,” the court is to infer that testing would have been favorable to the petitioner. CP § 8-201(j)(3)(ii); Maryland Rule 4-710(a)(3).

The State’s preservation obligation is not retroactive— i.e., it applies only to evidence in possession of the State on or after October 1, 2001, the date the statute became effective. Washington, 424 Md. at 666-67 , 37 A.3d 932 ; Chapter 418, §§ 2, 3, Laws of Maryland 2001. Post-Testing Actions If the court orders DNA testing, depending on the results of the test, the court will either dismiss the petition, open post-conviction proceedings, or order a new trial. CP § 8—201(i); Maryland Rule 4-711.

Other Provisions Other provisions of the statute concern the timing of the testing and the allocation of the costs of testing. CP § 8-201(g), (h). An appeal from an order issued in a proceeding ¹⁷² under the post-conviction DNA testing statute is taken directly to this Court. CP § 8-201(k)(6).

B. Factual and Procedural History 1. Trial, Sentencing, Appeal, and Post-Conviction Petition On the morning of December 13, 1995, the bodies of Mr. Simms’ former girlfriend, Belinda Baynor, and Peter W. Williams were discovered inside Mr. Williams’ house. 5 Both victims had died from stab wounds. Law enforcement officers found Mr. Simms at the crime scene. They took Mr. Simms to the police station for questioning.

At the police station, Mr. Simms admitted that he had visited the Williams residence the prior evening and had quarreled with Ms. Baynor. He also admitted to a prior altercation with Mr. Williams. The police tested the hair on Mr. Simms’ hand, as well as his right hand, for the presence of blood. Both tests yielded positive results.

Mr. Simms was charged with the murders of Ms. Baynor and Mr. Williams and additional weapons-related offenses. At trial, the State introduced into evidence several articles of clothing—including a jacket, boots, socks, and a towel—that had been found in a trash bag close to the home of Mr. Simms’ aunt. The aunt testified that she observed Mr. Simms acting nervously and wearing those clothes in the early morning hours of December 13, 1995. The State also presented expert testimony that the clothing had blood stains with DNA profiles that matched those of Mr. Williams and Ms. Baynor.

On April 6, 1998, the jury convicted Mr. Simms of two counts of first degree murder and two counts of weapons-related offenses. He was sentenced to two consecutive sentences of life imprisonment without the possibility of parole. Mr. Simms appealed. The Court of Special Appeals affirmed ¹⁷³ the convictions in an unreported opinion in 1999.

Mr. Simms subsequently sought post-conviction relief, basing his petition on a long list of contentions concerning alleged prosecutorial misconduct and ineffective assistance of counsel. His post-conviction petition was denied by the Circuit Court in a thorough opinion filed in June 2001 addressing each of his issues. 6 2. Petition for DNA Testing On January 7, 2008, Mr. Simms filed a pro se petition for relief pursuant to CP § 8-201. He alleged that a more sophisticated DNA test 7 of the clothes found in a trash bag near his aunt’s home that the State introduced into evidence at trial would establish that he had never worn those clothes.

Mr. Simms alleged that he has dry peeling skin on his lower legs as a result of a degenerative skin condition (relying on a prison medical record that described him as having that condition in 2007) and that, as a result, some of his epithelial ceils would be found on the socks if he had worn them at the time of the murders in 1995. He sought a DNA test to prove that the socks from the trash bag did not contain any of his epithelial cells. In the petition, he also asked the court to appoint counsel for him. The Circuit Court summarily denied Mr. Simms’ petition without requiring the State to respond.

Mr. Simms appealed ¹⁷⁴ to this Court, which held that his pro se petition, when liberally construed, presented a prima facie case for DNA testing and therefore should not have been denied summarily. Simms v. State, 409 Md. 722, 733 , 976 A.2d 1012 (2009). The Court remanded the case to the Circuit Court with directions to require the State to respond to the petition, to allow Mr. Simms’ attorney 8 to reply to the State’s response, and to hold a hearing if necessary to resolve any disputes material to the disposition of the petition. The Court cautioned that it was not directing the Circuit Court to grant the relief sought in the petition. 409 Md. at 734 , 976 A.2d 1012 .

On remand, at the request of the Public Defender, pro bono attorneys from the University of Baltimore School of Law Innocence Project Clinic—Michele Nethercott, the clinic’s director, and Justin Esworthy—represented Mr. Simms in his quest for DNA testing. The State apparently did not oppose DNA testing of the socks. On July 16, 2010, the Circuit Court held a brief hearing. At the hearing, the Assistant State’s Attorney advised that the socks themselves had been destroyed, but that “cuttings” from the socks that still existed were being made available for the DNA testing requested by Mr. Simms.

Appearing on behalf of Mr. Simms, Mr. Esworthy advised the Circuit Court that the lab was not expected to have results for approximately two months. The Circuit Court directed Mr. Esworthy to provide a status report and to request a further hearing upon receipt of the lab results. On March 3, 2011, the State filed an affidavit by Sgt. Larry Bazzle, the custodian of records for the Evidence Control Unit of the Baltimore Police Department.

In the affidavit, Sgt. Bazzle stated that he had determined from a review of the unit’s records that the socks recovered from the trash bag had been destroyed on October 23, 2000, along with the other evidence obtained from the trash bags, in accordance with the existing protocols of the unit. Attached to the affidavit was ¹⁷⁵ supporting documentation, including a copy of the police report concerning seizure of the evidence, a property sheet listing the evidence obtained from the bags, chain of custody reports concerning those items and recording their destruction, and a report listing the status of various items of evidence. Shortly thereafter, on March 15, 2011, Mr. Esworthy sent a status report to the Circuit Court.

He informed the court that it had been determined that the cuttings that had been sent to the lab were not from the socks that Mr. Simms sought to have tested. 9 He stated that a further search had determined that the correct pair of socks had been destroyed on October 23, 2000, after Mr. Simms’ conviction had been affirmed on direct appeal, and referenced Sgt. Bazzle’s affidavit. In light of this development, Mr. Esworthy explained that “we will not be pursuing any further action on behalf of Mr. Simms at this time.” Mr. Esworthy also informed Mr. Simms of the destruction of the socks and his view that there was nothing more to be done in the case under the post-conviction DNA testing statute. 10 Mr. Simms did not take any action then—or for the next two and a half years—to question the fact that the particular evidence he sought to have tested no longer existed. An outside observer might well have concluded that the proceeding under the post-conviction DNA testing statute was over.

The Circuit Court apparently did. On September 28, 2011, it closed the case. ¹⁷⁶ 3. Habeas Corpus Petition Based on Destruction of Socks While he did not pursue further action in the proceeding under CP § 8-201, Mr. Simms did institute a separate action seeking relief based on the destruction of the socks. On August 1, 2011, he filed a pro se petition in the Circuit Court for a writ of habeas corpus.

In that petition, he asserted that he was denied due process and equal protection when the State destroyed the evidence that had been admitted at trial. He also asserted that the State should have notified him when it destroyed the evidence. The State responded to that petition. The Circuit Court ultimately denied the petition in October 2012, holding that Mr. Simms failed to show that the State had acted in bad faith when it destroyed the socks.

Mr. Simms, represented by the Public Defender, appealed the Circuit Court’s decision. The Court of Special Appeals dismissed the appeal. Simms v. Shearin, 221 Md.App. 460, 479 , 109 A.3d 1215 (2015). 11 k. Motion for Further Relief under the Postr-Conviction DNA Testing Statute On December 23, 2013, more than a year after the Circuit Court had denied relief to Mr. Simms with respect to his allegation that the State had improperly destroyed the socks, Mr. Simms seemingly reversed course and questioned whether the socks had been destroyed on the date set forth in the Bazzle affidavit.

He renewed his request for relief under the post-conviction DNA testing statute by a pro se “Petitioners [sic] Motion for Appropriate Relief Under DNA Postconviction State Section 8—201(c)(i).” In that document, he argued that the Bazzle affidavit, which had been filed two years earlier, was insufficient by itself to establish when the socks had been destroyed or that the socks did not exist. He asked the Circuit Court to hold a hearing and to appoint counsel for him. ¹⁷⁷ The Circuit Court reopened the proceeding under CP § 8-201 and issued a scheduling order. Although Mr. Simms had asked for appointment of counsel, the court appeared to assume that the Innocence Project attorneys continued to represent him, copying them on the scheduling order. Soon thereafter, Ms. Nethercott informed Mr. Simms that she intended to withdraw the appearance of the Innocence Project attorneys, and filed a motion to that effect. 12 On May 14, 2014, the Circuit Court held a hearing to address the motion to withdraw the appearance of the Innocence Project attorneys, Mr. Simms’ request for appointment of counsel, and Mr. Simms’ motion for relief under CP § 8-201.

The Circuit Court first granted the motion to withdraw the appearance of the Innocence Project attorneys and denied Mr. Simms’ motion for appointment of new counsel. The Court then considered the merits of Mr. Simms’ request for relief under CP § 8-201. Mr. Simms argued that the State had destroyed the evidence without providing him with 120 days’ notice, as now required by CP § 8-201(k)(2). The Assistant State’s Attorney responded that the evidence had been destroyed in 2000, pursuant to the then-current practice after the conviction had become final and before the passage or effective date of the 2001 legislation that enacted the post-conviction DNA testing ¹⁷⁸ statute with its preservation and notification obligations.

In response, Mr. Simms argued that the statutory preservation and notification obligations should be treated as retroactive. He also asserted that he should have been given an opportunity to cross-examine Sgt. Bazzle as to the extent of the State’s search for the evidence. Consistent with the allegations in his habeas corpus motion, at the hearing on his renewed petition under CP § 8-201, Mr. Simms did not dispute that the evidence had been destroyed.

Rather, he argued that the socks had been destroyed in bad faith. The Circuit Court took the motion under advisement. Three weeks later, the Circuit Court rendered its decision in a memorandum opinion dated June 3, 2014. Consistent with this Court’s approach in Mr. Simms’ prior appeal under the post-conviction DNA testing statute, the Circuit Court construed his pro se motion liberally.

But, even giving his renewed petition a liberal reading, the court found that he was not entitled to the relief that he sought. In its opinion, the Circuit Court held that the State had made an adequate search for scientific identification evidence, that there was “no reasonable probability” that a further search would produce relevant evidence, and that the relief sought by Mr. Simms had already been fully granted. With respect to Mr. Simms’ assertion that the State failed to preserve evidence in compliance with the statute, the court noted in a footnote that the statutory obligation to preserve such evidence was not effective at the time of the destruction of the evidence sought by Mr. Simms. Mr. Simms appealed that decision directly to this Court.

His pro se notice of appeal, filed July 1, 2014, appeared to raise, as its primary argument, the question whether the socks had actually been destroyed. It also reiterated his contention—made in his habeas corpus petition and at the hearing on his motion under CP § 8-201—that the evidence had been destroyed in bad faith. Before us, Mr. Simms was represented by able and experienced pro bono counsel. ¹⁷⁹ II Discussion In this appeal we must decide the following questions: 1— Did the Circuit Court abuse its discretion when it granted the motion of the Innocence Project counsel to strike their appearance? 2— Did the Circuit Court abuse its discretion when it declined to appoint new counsel for Mr. Simms? 3— Was the Circuit Court clearly erroneous when it declined to order relief under CP § 8-201? The answer to all of these questions is “no.” A. Motion to Strike Appearance At the outset, there is some confusion as to what rule and standards govern a motion by counsel to withdraw from representation of a petitioner in a proceeding under CP § 8-201.

Like other post-conviction proceedings, it has a hybrid nature. On the one hand, courts frequently refer to post-conviction proceedings as “separate and distinct civil procedure[s].” E.g., Ruby v. State, 353 Md. 100, 107 , 724 A.2d 673 (1999). Yet some of the rules governing such proceedings, including the rules governing proceedings under the post-conviction DNA testing statute, are codified in a title of the Maryland Rules called “Criminal Causes.” See Maryland Rules, Title 4, Chapters 400, 700. 13 Cf. Harris v. Nelson, 394 U.S. 286, 293-94 , 89 S.Ct. 1082 , 22 L.Ed.2d 281 (1969) (although habeas corpus proceedings are characterized as “civil,” the label is “gross and inexact” as such a proceeding is essentially “unique.”) The Motion to Strike Appearance filed by the Innocence Project counsel was purported to be made under Rule 4-214(d), ¹⁸⁰ 14 a rule governing withdrawal of a defense counsel in a criminal case.

That rule requires an oral motion in the presence of “the defendant,” or a -written motion served on “the defendant” at least 10 days before the filing of the motion. If no other attorney is entering an appearance to replace the departing defense attorney, the motion to withdraw the attorney’s appearance may be accomplished only by court order and the court must then conduct proceedings under Rule 4-215 governing unrepresented criminal defendants. The court may refuse to permit