Thompson v. State

RAKER, J. In this case, we are called upon to decide two issues relating to an Order issued by the Circuit Court for Baltimore City granting appellant’s petition for postconviction DNA testing pursuant to Md.Code (2001, 2006 Cum.Supp.), § 8-201 of the Criminal Procedure Article. 1 The Order at issue states as follows: 2 “It is FURTHER ORDERED that the Maryland Medical Examiner’s Office, or the appropriate State agency in possession of the following, shall release a portion of the following forensic samples directly to Reliagene Technologies, Inc., 5525 Mounces Street, Suite 101, New Orleans, LA 70123 “1) Portions of all slides taken from vaginal or rectal swabbings or washings relating to the autopsy of [the victim] conducted on August 3,1987; and “2) The ‘cut-off blue jeans,’ Property number 33870. “It is FURTHER ORDERED that the Maryland Medical Examiner’s Office, or appropriate State agency, retain a sufficient portion of the evidentiary samples for future confirmatory DNA testing; ²⁴⁵ “It is FURTHER ORDERED that Petitioner is precluded from relying on any DNA test results involving any evidence samples of which Reliagene Technologies, Inc. has failed to preserve a sufficient portion thereof for future confirmatory DNA testing; and “It is FURTHER ORDERED that the Maryland Office of the Public Defender shall pay initially the designated laboratory all reasonable expenses incurred during the testing of the DNA samples.” First, we determine whether the trial court abused its discretion in ordering the retention of samples of the materials to be tested pursuant to the Order sufficient to permit retesting. We shall vacate that portion of the Order and hold that the Circuit Court abused its discretion by ordering such retention without first determining whether it was scientifically feasible given the nature of the samples to be tested under the Order. Second, we decide whether the trial court erred by ordering the results of the testing be precluded from use in further proceedings if samples for retesting are not retained. We shall also vacate the portion of the Order that prohibits the future use of the DNA test results.

I. Appellant James A. Thompson was convicted by a jury in the Circuit Court for Baltimore City on October 13, 1988 of first degree felony murder, first degree rape, burglary, and carrying a weapon with intent to injure. He was sentenced to life imprisonment for the first degree murder conviction, and a term of three years incarceration, to be served consecutively for the carrying conviction, with the remaining charges merged for sentencing purposes. On direct appeal, the Court of Special Appeals affirmed in an unreported opinion. Before that Court, appellant’s only argument was that the trial court committed reversible error by admitting into evidence expert testimony that a pubic hair found on the back of the victim matched his pubic hair.

Appellant’s contention was that the microscopic comparison ²⁴⁶ method used by the State’s expert was less reliable than DNA testing, and that this relative lack of reliability rendered expert testimony based on microscopic comparison inadmissible. The Court of Special Appeals affirmed, concluding that microscopic comparison was generally accepted within the relevant scientific community, and hence expert testimony based upon such a method is admissible under Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978). In the Circuit Court for Baltimore City, appellant, through counsel, filed a petition for postconviction DNA testing pursuant to § 8-201. 3 The State opposed appellant’s petition. In his petition, appellant requested DNA testing of evidence in the possession of the State relating to appellant’s conviction.

He averred that his counsel had been informed by the Maryland Medical Examiner’s Office that it had possession of the cytology slides containing some of this evidence, which consisted of semen taken from vaginal and/or rectal swabs of the victim. Appellant further alleged that identity was an issue in his trial, that DNA testing of the evidence in the possession of the State could determine whether appellant was identified correctly at trial as the perpetrator, and that this evidence had not previously been subject to DNA testing. On November 8, 2004, the Circuit Court held a hearing on the petition. At the hearing, appellant requested testing of two additional items of evidence: material from a pair of blue jeans owned by appellant that contained a blood stain that matched the blood type of the victim, and the cytology slides containing the pubic hairs taken from appellant for microscopic comparison with the pubic hairs found on the victim at appellant’s trial.

After requesting and receiving additional briefing from the parties, on August 31, 2005, the Circuit Court denied appellant’s petition. In its Order denying the petition, the Circuit Court explained that it was denying the ²⁴⁷ petition because appellant had failed to meet his burden under § 8-201 (c)(2) to establish that “the requested DNA test employs a method of testing generally accepted within the relevant scientific community.” On September 15, 2005, appellant noted a timely appeal to this Court pursuant to § 8-201(j)(6), and, on the same day, filed a motion for reconsideration in the Circuit Court. On November 17, 2005, the Circuit Court granted appellant’s motion for reconsideration, vacated its Order of August 31, 2005, and granted in part appellant’s petition for DNA testing. In its memorandum opinion, the Circuit Court first stated that appellant had now satisfied the Court that his proposed method of testing met the requirements of § 8-201(c)(2).

The Circuit Court explained its reasoning for concluding that appellant’s request for testing of the semen samples taken from the victim and the blood-stained blue-jeans satisfied the requirements of § 8-201(c)(1), 4 but that appellant’s request for testing of his pubic hair comparison sample did not meet these requirements. Notably absent in the Circuit Court’s opinion was any discussion of the provisions in its Order requiring retention of samples sufficient for future confirmatory testing, and prohibiting appellant from relying on the results of the testing in future proceedings in the event that sufficient samples for future confirmatory testing are not preserved. Pursuant to § 8-201(j)(6), appellant noted a timely appeal to this Court.

II

We first address the aspect of the Order prohibiting appellant from using the results of the ordered DNA testing if samples sufficiently large to permit confirmatory retesting are not retained. Appellant presents two arguments. First, appel ²⁴⁸ lant claims that “[t]here is nothing in § 8-201 that justifies this requirement.” Second, appellant argues that, because the State is permitted in criminal cases to present scientific evidence against a criminal defendant based on destructive testing, a petitioner challenging his conviction under § 8-201 should have a similar right to make use of the results of a destructive test to challenge his conviction in a postconviction proceeding. The State replies that the plain language of § 8-201(e) reserves to the discretion of the circuit court the particular conditions of the release of DNA evidence for testing, and that the prohibition on the future use of the test results if there is no retest sample available is nothing more than such a condition.

On the second issue, appellant argues that the court Order that the State agencies in possession of the evidence to be tested retain a sufficient portion of the evidence to permit retesting is unworkable because those agencies do not have the required scientific expertise to determine the size of the sample necessary to permit retesting. The State responds that appellant’s contentions concerning the inability of the State agencies to determine how much evidence to retain to permit retesting have not yet been addressed by the Circuit Court, as they were raised for the first time in appellant’s December 6, 2005 motion for reconsideration. Consequently, the State argues, there is no basis on this record for this Court to disturb the evidence retention provision in the Circuit Court’s Order. Additionally, the State argues that appellant’s appeal is not properly before this Court because a party only has a right to appeal an adverse decision of a lower court, and the Circuit Court’s Order was not adverse to appellant because it granted appellant’s petition for DNA testing.

III

As a preliminary matter, we dispatch with the State’s argument that the appeal is not properly before us. In Administrator, Motor Vehicle Administration v. Vogt, 267 Md. 660, 664 , 299 A.2d 1, 3 (1973), we observed that “[generally, a party cannot appeal from a judgment or order which is ²⁴⁹ favorable to him, since he is not thereby aggrieved.” See also Wright v. Baker, 197 Md. 315, 318 , 79 A.2d 159, 161 (1951). This principle, however, does not prevent a party from challenging an aspect of a lower court judgment or order that results in the party receiving less than the full relief it sought below, even though the judgment or order is otherwise in accord with the relief the party requested. See Mugford v. Mayor and City Council of Baltimore, 185 Md. 266, 269, 271-72 , 44 A.2d 745, 746-47 (1946) (holding that taxpayers who sought to have a contract between Baltimore City and a union declared void, and further sought to enjoin the City from deducting union dues from employee wages and remitting them to the union as provided for in the contract, could challenge on appeal the portion of the trial court’s decree that expressly permitted voluntary collection of union dues by the city, despite the fact that the decree declared the contract invalid and otherwise enjoined the city and the union from “carrying out the undertakings of [the] contract”).

The Circuit Court’s Order, although it ordered the release of the cytology slides and blue jean samples for DNA testing, did not do so unconditionally. The release of these items for testing was conditioned on the retention by the relevant state agencies of samples sufficiently large to permit retesting, and prohibited appellant from using the test results in future proceedings challenging his convictions if this condition was not met. Appellant’s petition for DNA testing requested testing of these items simpliciter, without mention of a retention condition of the sort imposed on the testing by the Circuit Court. Appellant may challenge on appeal these conditions imposed on the testing. 5 ²⁵⁰ rv.

Turning to the merits, we address first whether the Circuit Court properly ordered retention of samples sufficient for retesting on the record before it. Section 8-201(e), Contents of Order, provides as follows: “(e) If the court orders DNA testing under subsection (c) of this section, the court in its order may issue orders the court considers appropriate, including designation of any of the following: (1) the specific evidence to be tested; (2) the method of testing to be used; (3) the preservation of some of the sample for replicate testing and analysis; (4) the laboratory where the testing is to be performed, provided that if the parties cannot agree on a laboratory, the court may approve testing at any laboratory accredited by the American Society of Crime Laboratory Directors (ASCLAD), the Laboratory Accreditation Board (LAB), or the National Forensic Science Technology Center; and (5) release of biological evidence by a third party.” Because § 8-201(e)(3) expressly permits a court ordering DNA testing under § 8-201 to order “the preservation of some of the sample for replicate testing and analysis,” the Circuit Court had the power to enter a retention order. The question, rather, is whether the Circuit Court abused its discretion in ordering retention on the basis of the record before it. The Circuit Court acted prematurely in ordering retention of samples sufficient for retesting on the record before it.

In our view, § 8-201(e), although it provides for the preservation of some of the sample for replicate testing, only permits a circuit court to enter an unconditional preservation order if the court has determined that preservation of some sample for replicate testing and analysis is possible. In this case, there was no basis on the record before the court to ²⁵¹ conclude that retention of samples was possible. Section 8-201(c), Findings Requiring DNA Testing, provides as follows: “(c) 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.” Subsection (c), by stating that a court “shall order DNA testing” if it makes the findings specified in (c)(1) and (c)(2), manifests a legislative intent in favor of DNA testing of potentially exculpatory physical evidence. The Circuit Court’s Order frustrates this intent.

Even assuming arguendo that the State agencies in possession of the evidence to be tested under the Order possess the requisite scientific expertise to determine whether nondestructive DNA testing of the evidence is possible, 6 the Circuit Court’s Order requiring these agencies to retain a sample sufficient for retesting would require the State agencies in possession of the evidence to retain all of the evidence in the event that there was only enough material for a single test. Thus, in the event that the only way the evidence could be subjected to DNA testing is by destructive testing, 7 the Circuit Court’s Order would preclude any testing of the evidence, contrary to the intent manifested by the plain language of § 8-201(c). ²⁵² Although we rest our holding on the plain language of the statute, our holding is farther supported by the primary purposes behind the enactment of § 8-201 — to facilitate the establishment of claims of actual innocence for serious crimes. Interpreting § 8-201 to permit a circuit court, once it has made the prerequisite findings under § 8-201 (c), to enter a DNA testing order that could have the effect of potentially making DNA testing impossible is, in our view, inconsistent with this purpose, because it could result in the continued incarceration of an actually innocent person whose innocence might be established in the absence of such an order. Examination of the legislative history of § 8-201 reveals the General Assembly’s concern with actual innocence.

Section 8-201 was enacted in 2001. See 2001 Md. Laws, Chap. 418, S.B. 694. 8 The Revised Fiscal Note for Senate Bill 694 of 2001 observed as follows: “The push for postconviction DNA testing gained momentum with the creation of the Innocence Project at Benjamin Cardozo School of Law in New York in 1992. The Innocence Project was founded to help wrongly convicted prison inmates prove their innocence through DNA testing. According to news reports, 76 prisoners nationwide, including eight inmates on death row, have been released from prison because of postconviction DNA testing that has exonerated the person who was convicted.” Furthermore, the General Assembly’s rejection of a requirement that DNA testing not have been available at the time of trial supports the view that the legislative intent in enacting § 8-201 was to provide a mechanism for exoneration of the actually innocent.

One witness before the Maryland Senate Committee on Judicial Proceedings testified in support of S.B. 694 that such a requirement, which was included in other ²⁵³ DNA testing bills introduced in the General Assembly in 2001, is inconsistent with the goal of ensuring that the actually innocent are exonerated, stating as follows: “S.B. 15 establishes a threshold requirement for post-conviction DNA testing that ‘the technology for such testing was not available to the petitioner at the trial.’ S.B. 84 and S.B. 699 contain a variation on that theme — they require that the evidence was not previously tested ‘for reasons beyond the control of the petitioner.’ “Both of these formulations create an unjustified hurdle to DNA testing. There are cases in which DNA testing is, in a scientific sense, “available” to a defendant, but he does not obtain DNA testing at that time.... ” “Any such threshold is an unnecessary ‘procedural default’ rule — if the defendant missed his opportunity, too bad. But that logic does not explain why the state should continue to incarcerate or even execute an innocent man who failed to obtain testing previously for whatever reason.” Testimony of Ronald Weich, Counsel to the Justice Project, before the Senate Judicial Proceedings Committee (Feb. 22, 2001). The General Assembly’s ultimate rejection of such a requirement provides evidence of its concern with actual innocence.

Our holding should not be misconstrued as disapproving generally of the practice of retention of DNA samples for potential retesting when doing so is feasible. To the contrary, we agree with the view expressed by the Minnesota Supreme Court, and by several commentators, that retention of samples for potential future retesting is advisable when it is possible. See State v. Traylor, 656 N.W.2d 885, 898-900 (Minn.2003) (approving of testing policy of State Bureau of Criminal Apprehension which “requires that, when possible, a portion of the evidence sample be retained at the ... laboratory” and “if a test precludes any further testing, the defense must receive reasonable notice and an opportunity to have a qualified expert observe the test.”); DNA Advisory Board Standard 7.2 ²⁵⁴ (providing that “[w]here possible, the laboratory shall retain or return a portion of the evidence sample or extract”); American Bar Association, Criminal Justice Standards on DNA Evidence, Standard 3.4(a) (approved by the American Bar Association House of Delegates August 7, 2006) (counseling that “[w]hen possible, a portion of the DNA evidence tested and, when possible, a portion of any extract from the DNA evidence should be