Wallace v. State

⁵⁶² Getty, J. The Postconviction DNA Testing Statute provides for post-conviction review related to DNA evidence for individuals convicted of certain enumerated offenses. See generally Md. Code (2001, 2008 Repl. Vol.), Criminal Procedure Article (“CP”) § 8-201. When the Maryland General Assembly passed the Statute in 2001, the legislature was responding to a nationwide concern over individuals being wrongfully convicted for serious crimes and held in prison for many years.

Blake v. State, 395 Md. 213, 219 , 909 A.2d 1020 (2006). Prior to 2001, a convicted person could only file one postconviction petition within ten years of being sentenced, and the court retained the discretion to reopen a postconviction proceeding if to do so was “in the interests of justice.” Dep’t Legis. Servs., Fiscal and Policy Note (Revised), Senate Bill 694, at 3 (2001 Session). 1 Under the Statute, a convicted person can “obtain DNA testing of evidence when either the DNA tests were not available or not as sophisticated at the time the inmate was convicted.” Id. Thus, the Postconviction DNA Testing Statute provides convicted persons a second bite of the postconviction apple. 2 The Statute also establishes separate procedures for these postconviction proceedings.

An individual convicted of a qualifying offense may file a petition for either “DNA testing of scientific identification evidence that the State possesses ... that is related to the judgment of conviction; or ... a search by a law enforcement agency of a law enforcement data base ⁵⁶³ or log for the purpose of identifying the source of physical evidence used for DNA testing.” CP § 8—201(b). If the circuit court denies the petition, the petitioner can appeal directly to this Court. CP § 8-201(k)(6). Furthermore, the Statute imposes on the State a duty to preserve certain evidence that might later be subject to DNA testing.

See CP § 8-201(j). If the State fails to produce evidence that it had a duty to preserve, then the petitioner is entitled to a hearing for “the court to determine whether the failure to produce evidence was the result of intentional and willful destruction.” CP § 8—201 (j)(3)(i). In this case, the appellant, Thomas Clifford Wallace, filed a petition in the Circuit Court for Washington County requesting a hearing under CP § 8—201 (j)(3)(i) because the State admitted that it had destroyed the requested evidence—a black t-shirt that Mr. Wallace was wearing when he was arrested in 1997. The circuit court denied Mr. Wallace’s petition, concluding that the black t-shirt did not constitute “scientific identification evidence,” as defined by the Statute, and therefore the State did not have a duty to preserve it.

On appeal, Mr. Wallace challenges the denial of his petition, as well as the circuit court’s decision not to appoint counsel to represent Mr. Wallace at the proceedings on his petition. For the following reasons, we shall affirm the circuit court’s judgment on both issues. BACKGROUND A. The Crime Darrius Fetterhoff disappeared from Hagerstown, Mary-land on August 20, 1997, after driving his wife to work that morning. Five days later, on August 25, two men on a raft on Conococheague Creek in Washington County saw a man lying in the rocks along the creek bank.

They called out to the man and told him they were going to get him help; the man raised his right hand. Later that day, when police officers located the man, he was unconscious but still alive. They identified the man as Mr. Fetterhoff. Three days later, on August 28, he ⁵⁶⁴ died in the hospital without regaining consciousness.

The medical examiner testified that the cause of death was multiple blunt force injuries to the head, torso, and extremities, including a fractured skull and ribs. One can only speculate what the five days lying injured in the rocks were like for Mr. Fetterhoff. During the investigation into Mr. Fetterhoff s disappearance and murder, police identified three key witnesses who later testified at Mr. Wallace’s trial. Keisha Russ recounted that on the morning of August 20, she witnessed Clara Miller driving a car with Mr. Wallace in the passenger seat and Mr. Fetter-hoff in the back seat.

Ms. Russ, who knew all three occupants from previous encounters with them, described Ms. Miller as a white female, Mr. Wallace as a black male, and Mr. Fetterhoff as a white male. Later in the day, Ms. Russ saw Mr. Wallace and Ms. Miller at an apartment. 3 By that time, Mr. Wallace was shirtless and had a bloody rag wrapped around his hand. Kim Stottlemeyer testified that, while driving on August 20, she was stopped by a black male who asked if he could siphon some gasoline from her car. She described the man as wearing a white t-shirt with red stains on it and later identified Mr. Wallace as the man she encountered.

She also stated that he was with a female passenger. Robert Kursey testified that, while driving on the same road as Ms. Stottlemeyer on August 20, he saw a car in the middle of the road and a black male talking to someone inside the car. The man approached Mr. Kursey and asked him for a ride into town. Mr. Kursey drove the man and the woman who had been inside the car into town.

He stated that the man had a bloody white t-shirt wrapped around his hand, and later identified Mr. Wallace as the man he encountered. Also on August 20, at 6:20 p.m., the Washington County Narcotics Task Force arrested Mr. Wallace for drug charges, ⁵⁶⁵ unrelated to Mr. Fetterhoffs disappearance and murder, and placed him in the Washington County Detention Center (“WCDC”). When he was arrested, Mr. Wallace was wearing a black t-shirt and blue shorts. WCDC officials inventoried and stored those items, along with other personal effects, at the time of Mr. Wallace’s arrest.

B. The Physical Evidence On August 30, 1997, after connecting Mr. Wallace to Mr. Fetterhoffs death through witness statements, Corporal Roy Harsh of the Washington County Sheriffs Department decided to review WCDC’s property record for Mr. Wallace. At that time, Corporal Harsh took possession of all of Mr. Wallace’s property, including the black t-shirt and blue shorts he had been wearing when he was arrested, and placed the items in the Washington County Sheriffs Department’s property room. In his affidavit for a search and seizure warrant, Corporal Harsh noted the following observations regarding Mr. Wallace’s clothes: “When the tee shirt & dark blue shorts were packaged separately for storage, I observed hair fibers on the shirt & unidentified stains on the shorts.” (Emphasis added.) Forensic chemist Jeffrey Kercheval of the Western Mary-land Regional Crime Laboratory examined Mr. Wallace’s property and found “no stains consistent with blood” on the black t-shirt, but identified “stains consistent with blood” on the shorts. Mr. Kercheval’s report made no mention of any hair fibers on any of the items.

DNA testing on the shorts later confirmed that the stains were in fact blood, and that it was Mr. Fetterhoffs blood. The black t-shirt was never tested for DNA. Investigators also recovered hair fibers from Mr. Fetter-hoffs car—the same car that was seen by Ms. Stottlemeyer and Mr. Kursey on the morning Mr. Fetterhoff disappeared, which police found abandoned near the site where they later recovered Mr. Fetterhoff. Forensic scientist David Exline compared three of these hair fibers to known hair samples ⁵⁶⁶ submitted by Mr. Wallace.

Mr. Exline concluded that the hair fibers from the car were “Negroid in origin,” which he defined as originating from an individual in the African-American population. He determined that two of the hair fibers “exhibited characteristics that were unlike the known hair samples submitted from Mr. Wallace.” The third hair fiber “exhibited some similarities but also some differences” to Mr. Wallace’s hair samples, so Mr. Exline could not conclusively determine whether it originated from Mr. Wallace. C. The Trial, Direct Appeals, and First Postconviction Proceeding On November 80, 2000, a jury in the Circuit Court for Washington County convicted Mr. Wallace of first- and second-degree murder, first-degree assault, and the unlawful taking of a motor vehicle. On March 8, 2001, the circuit court, Judge John H. McDowell presiding, sentenced Mr. Wallace to life imprisonment without the possibility of parole for first-degree murder, and to a concurrent five-year term of imprisonment for the unlawful taking of a motor vehicle.

The second-degree murder and first-degree assault convictions merged into the first-degree murder conviction for sentencing purposes. Mr. Wallace appealed his convictions to the Court of Special Appeals, which affirmed the convictions on May 9, 2002, in an unreported opinion. Mr. Wallace petitioned this Court for a writ of certiorari, which we granted on August 22, 2002. Wallace v. State, 370 Md. 268 , 805 A.2d 265 (2002).

We affirmed the judgment of the Court of Special Appeals on February 13, 2003. Wallace v. State, 373 Md. 69 , 816 A.2d 883 (2003). Mr. Wallace filed his first Petition for Postconviction Relief on May 27, 2009. The Circuit Court for Washington County, Judge Donald Beachley presiding, held a hearing on the petition on May 26, 2011.

Appointed counsel represented Mr. Wallace at the hearing. On September 15, 2011, the circuit court granted Mr. Wallace’s petition in part, allowing him to file an application for review of his sentence by a three-judge panel pursuant to Maryland Rule 4-352. The circuit court ⁵⁶⁷ denied Mr. Wallace’s petition with regard to all other relief sought. 4 Mr. Wallace filed an application for review of his sentence on September 21, 2011. On November 1, 2011, a three-judge review panel declined to increase, decrease, or otherwise modify Mr. Wallace’s sentence.

D. The Postconviction DNA Petition On May 23, 2013, Mr. Wallace filed a Public Information Act Request with the Office of the State’s Attorney for Washington County requesting the results of any testing performed on the hair fibers from the black t-shirt he was wearing when he was arrested on August 20, 1997. Assistant State’s Attorney Gina Cirincion, one of the prosecutors who tried Mr. Wallace’s case, responded to the PIA Request in a letter dated March 11, 2014. Ms. Cirincion stated that there was no reference in Mr. Wallace’s case file to any hair fibers on the black t-shirt “other than the sentence included in the search warrant affidavits prepared by [Corporal] Harsh. There is no other record, and no testing was ever done.” Ms. Cirincion further stated that her co-counsel in Mr. Wallace’s case had no recollection of any hairs being found on the black t-shirt, nor did the forensic chemist Mr. Kercheval who processed all of the evidence in his case.

Ms. Cirincion also revealed that the “actual evidence,” i.e. the black t-shirt, “was destroyed on February 28, 2003, after the appellate process was exhausted.” On April 29, 2014, Mr. Wallace filed a Petition for a Post-conviction DNA Hearing pursuant to CP § 8-201. In his petition, Mr. Wallace asserted that the hair fibers found on the black t-shirt “would exonerate him,” but he was “prevented from presenting this exculpatory evidence because it was destroyed,” without notification to either himself or his counsel as required by CP § 8-201(k)(1). 5 Therefore, Mr. Wallace ⁵⁶⁸ requested a hearing pursuant to CP § 8-201(j)(3) “to determine whether the [State’s] failure to produce evidence was the result of intentional and willful destruction.” The State answered Mr. Wallace’s petition on May 1, 2014, asserting that Mr. Wallace was not entitled to a hearing under CP § 8—201(j)(3) because the black t-shirt did not constitute “scientific identification evidence” as defined by the Statute. The State admitted that the black t-shirt had been destroyed, but denied that it had a duty to preserve the t-shirt under the Statute. The State asserted that “[t]here is no conceivable fashion in which either the shirt or the alleged fibers could have produced ‘exculpatory or mitigating evidence relevant to a claim of ... wrongful conviction’ ” because the shirt was only associated with Mr. Wallace, and not with the victim or the crime scene.

(Ellipsis in original) (quoting CP § 8-201(a)(5)(iii)). Mr. Wallace responded to the State’s answer on May 14, 2014, and filed an amended petition on June 10, 2014. E. Hearings and Orders in the Circuit Court The Circuit Court for Washington County, Judge Donald Beachley presiding, held a hearing on the petition on December 4, 2014. During that hearing, the State again asserted that a hearing to determine whether its destruction of the black t-shirt “was intentional and willful” was unnecessary because the t-shirt did not satisfy the statutory definition of “scientific identification evidence.” Furthermore, the State asserted that if the court did decide to have a hearing, it would be required to appoint counsel for Mr. Wallace.

Mr. Wallace did not include a request for the appointment of counsel in either his petition or his amended petition, nor in his response to the ⁵⁶⁹ State’s answer. However, Mr. Wallace did indicate a desire for appointed counsel during the December 4 hearing. On December 18, 2014, the circuit court issued a memorandum order in which it concluded that a hearing was required “in the interest of justice” to determine whether the black t-shirt satisfied the statutory definition of “scientific identification evidence.” Furthermore, the circuit court disagreed with the State that it was required to appoint counsel for Mr. Wallace. Instead, the court determined that under Maryland Rule 4-707(b) and Fuster v. State, 437 Md. 653 , 89 A,3d 1114 (2014), the appointment of counsel for a hearing under the Postconviction DNA Testing Statute is within the court’s discretion.

The court then declined to appoint counsel for Mr. Wallace, noting that he “ha[d] actually litigated a prior petition for post conviction relief[,] and in consideration of the potential for success in the present ease.” Mr. Wallace subsequently filed a Petition for Appointment of Counsel on August 27, 2015, which the circuit court denied on September 4, 2015. The circuit court held another hearing on May 4, 2016, during which the State and Mr. Wallace debated whether the black t-shirt constituted “scientific identification evidence” under the Statute. Mr. Wallace indicated at the start of the hearing that he had been attempting to obtain counsel, but was unsuccessful. He then indicated that he was ready to proceed with the hearing and represent himself.

During the hearing, Mr. Wallace acknowledged that he did not obtain the black t-shirt until after the murder “allegedly” occurred. On May 31, 2016, the circuit court issued a memorandum opinion and order denying Mr. Wallace’s Petition for a Post-conviction DNA Hearing. In its opinion, the court found that Mr. Wallace had “utterly failed to show any connection between the black shirt he was wearing on the evening of August 20 and the murder that occurred earlier that day.” Therefore, the court concluded “that there is no reasonable probability that DNA testing of the black t-shirt would have produced exculpatory or mitigating evidence.” ⁵⁷⁰ Mr. Wallace noted an appeal of the circuit court’s order on June 27, 2016, which was docketed by this Court on August 8, 2016. In his brief, 6 Mr. Wallace presents the following questions for this Court’s review: 1.

Did the [circuit court] err when it concluded that there was no reasonable probability that DNA testing of the black T-shirt would have produced exculpatory or mitigating evidence? 2. Did the [circuit court] abuse its discretion by denying [Mr. Wallace’s] and the State’s request to appoint counsel for [Mr, Wallace]? DISCUSSION A. The State’s Duty to Preserve Scientific Identiñcation Evidence Mr. Wallace argues that the circuit court erred in denying his Petition for a Postconviction DNA Hearing because the State had a duty, under the Postconviction DNA Testing Statute, to preserve the black t-shirt and accompanying hair fibers, but the State admitted that it had in fact destroyed the t-shirt. The State responds that it did not have a duty to preserve the t-shirt because it did not constitute “scientific identification evidence,” as defined by the Statute.

Therefore, the State concludes that the circuit court did not err in denying Mr. Wallace’s petition for a hearing. The Postconviction DNA Testing Statute imposes a duty on the State to preserve “scientific identification evidence”: (1) The State shall preserve scientific identification evidence that: (i) the State has reason to know contains DNA material; and (ii) is secured in connection with an offense described in subsection (b) of this section. ⁵⁷¹ (2) The State shall preserve scientific identification evidence described in paragraph (1) of this subsection for the time of the sentence, including any consecutive sentence imposed in connection with the offense. (3) (i) If the State is unable to produce scientific identification evidence described in paragraph (1) of this subsection, the court shall hold a hearing to determine whether the failure to produce evidence was the result of intentional and willful destruction. (ii) If the court determines at a hearing under subpara-graph (i) of this paragraph that the failure to produce evidence was the result of intentional and willful destruction, the court shall: 1. order a postconviction hearing to be conducted in accordance with subparagraph (iii) of this paragraph; and 2. at the postconviction hearing infer that the results of the postconviction DNA testing would have been favorable to the petitioner. *** CP § 8-201(j).

The Statute 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 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). “Biological evidence,” in turn, “includes, but is not limited to, any blood, hair, saliva, semen, epithelial cells, buccal cells, or other bodily substances from which genetic marker groupings may be obtained.” CP § 8-201(a)(2). ⁵⁷² Mr. Wallace argues that the State had a duty to preserve the black t-shirt and accompanying hair fibers because the State had reason to know the t-shirt contained DNA material by virtue of Corporal Harsh’s mention of the hairs in his affidavit, and because the t-shirt was secured in connection with the State’s investigation of Mr. Fetterhoffs murder. Because the State admitted to destroying the t-shirt, Mr. Wallace asserts that he is entitled to a postconviction hearing at which the court must infer that the results of DNA testing on the t-shirt would have been favorable to Mr. Wallace. The State responds that it did not have a duty to preserve the black t-shirt and accompanying hair fibers because the t-shirt did not constitute “scientific identification evidence.” Specifically, the State asserts that the t-shirt was not related to Mr. Fetterhoffs murder, see CP § 8-201(a)(5)(i), and that it did not “contain[ ] biological evidence from which DNA may [have been] recovered that may [have] produce[d] exculpatory or mitigating evidence relevant to” Mr. Wallace’s claim of wrongful conviction. 7 See CP § 8—201 (a)(5)(iii).

Additionally, the State argues that even if the black t-shirt did constitute scientific identification evidence, the denial of Mr. Wallace’s petition was nonetheless harmless because there is no “favorable result” that could have come from DNA testing on the t-shirt. Finally, the State notes that the circuit court did not make a determination as to whether the State’s failure to produce the t-shirt “was the result of intentional and willful destruction.” See CP § 8—201(j)(3)(i). Therefore, the State contends that if this Court were to hold that the circuit court’s decision was erroneous, and the error was not harmless, then the appropriate relief for Mr. Wallace would be a remand for the circuit court to make that determination. In deciding whether the black t-shirt constituted “scientific identification evidence” as defined by the Postconviction ⁵⁷³ DNA Testing Statute, “[w]e give due regard to the [circuit] court’s role as fact-finder and will not set aside factual findings unless they are clearly erroneous.” Phillips v. State, 451 Md. 180, 189 , 152 A.3d 712 (2017) (quoting Bottini v. Dep’t of Fin., 450 Md. 177, 187 , 147 A.3d 371 (2016)).

However, when the circuit court’s decision “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the [circuit] court’s conclusions are legally correct under a de novo standard of review.” Blickenstaff v. State, 393 Md. 680, 683 , 904 A.2d 443 (2006) (quoting Gray v. State, 388 Md. 366, 375 , 879 A.2d 1064 (2005)). First, we reject the State’s contention that the black t-shirt and accompanying hair fibers were not “related to an investigation or prosecution that resulted in a judgment of conviction.” CP § 8-201(a)(5)(i). Although the black t-shirt was not introduced at Mr. Wallace’s trial, it was mentioned in Corporal Harsh’s affidavit for a search and seizure warrant, examined for blood stains by the forensic chemist, and held in the Washington County Sheriffs Department’s property room along with the other evidence. We hold that these factors are sufficient to conclude that the black t-shirt was “related to [the] investigation,” if not the prosecution, of Mr. Fetterhoff s murder, which “resulted in a judgment of conviction” for Mr. Wallace.

See id. Next, we address whether the black t-shirt “contained] biological evidence from which DNA may [have been] recovered that may [have] produce[d] exculpatory or mitigating evidence relevant to” Mr. Wallace’s claim of wrongful conviction. See CP § 8—201(a)(5)(iii). In its memorandum opinion, the circuit court summarized the trial testimony of Ms. Russ, Ms. Stottlemeyer, and Mr. Kursey.

These witnesses all indicated that Mr. Wallace was either wearing a white t-shirt with red stains on it, or was shirtless with a bloody white t-shirt wrapped around his hand, on the morning of Mr. Fetterhoff s murder. The circuit court also recounted that Mr. Wallace was wearing the black t-shirt and blue shorts when he was arrested later that evening for unrelated drug offenses. Finally, the ⁵⁷⁴ court noted that investigators did not find any blood stains on the black t-shirt. The circuit court concluded “that there is no reasonable probability that DNA testing of the black t-shirt would have produced exculpatory or mitigating evidence.” The court found that Mr. Wallace had “utterly failed to show any connection between the black shirt he was wearing on the evening of August 20 and the murder that occurred earlier that day.” The court then reiterated that “there is no reasonable possibility [sic] that DNA testing of the black shirt would produce exculpatory or mitigating evidence.” On this basis, the circuit court denied Mr. Wallace’s Petition for a Postconviction DNA Hearing.

It is apparent that the circuit court applied an incorrect legal standard in determining whether the black t-shirt constituted “scientific identification evidence” under the Postconviction DNA Testing Statute. The proper standard, as noted above, is whether the t-shirt “contain[ed] biological evidence from which DNA may [have been] recovered that may [have] produce[d] 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)(iii). Instead, the circuit court utilized the standard that governs when the court is required to order DNA testing on the requested evidence. On this distinct question, the Postconviction DNA Testing Statute provides that a court shall 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- CP § 8-201(d)(l).

The circuit court quoted this provision of the Statute in its memorandum opinion, and referenced this language in its conclusions by stating that there was “no ⁵⁷⁵ reasonable probability” and “no reasonable possibility” that DNA testing on the black t-shirt would have produced exculpatory or mitigating evidence for Mr. Wallace. The threshold that a petitioner must satisfy in order to show that the State had a duty to preserve certain evidence under the Postconviction DNA Testing Statute is lower than the threshold that a petitioner must satisfy in order to be entitled to DNA testing on that evidence. 8 In other words, evidence that satisfies the “reasonable probability” standard of subsection (d), and is therefore subject to DNA testing, is a subcategory of evidence that satisfies the definition of “scientific identification evidence” in subsection (a), and is therefore subject to the State’s duty of preservation. “Scientific identification evidence” includes all evidence that “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)(iii) (emphases add ⁵⁷⁶ ed). In contrast, for the petitioner to be entitled to DNA testing of the evidence, there must exist 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.” CP § 8-201(d)(l)(i) (emphasis added). While this Court has not yet defined the term “reasonable probability” in the context of the Postconviction DNA Testing Statute, we thoroughly discussed the term and its implications in the distinct context of demonstrating when a certain property “is a reasonable probable source of lead exposure.” Rowhouses, Inc. v. Smith, 446 Md. 611, 654 , 133 A.3d 1054 (2016), In that context, we held that, “for purposes of causation in lead-based paint cases at the summary judgment phase, a reasonable probability requires a showing that is less than ‘more likely than not,’ but more than a mere ‘possibility.’” Id. at 655 , 133 A.3d 1054 (footnote omitted).

After examining various definitions for the term “reasonable probability,” we concluded “that a ‘reasonable probability’ is a fair likelihood that something is true.” Id. at 657, 133 A.3d 1054 . We then examined various definitions for the term “possibility,” and concluded that this means “a mere chance that something might be true, as opposed to a fair likelihood that something is true.” Id. at 658, 133 A.3d 1054 . Therefore, “[establishing a possibility requires a lower quantum of proof or evidence (the showing of a chance, not necessarily a fair likelihood) than establishing a reasonable probability. In that regard, a ‘reasonable probability’ is a higher standard than a ‘possibility.’ ” Id. at 658-59, 133 A.3d 1054 .

Thus, the relationship between the terms “possibility” and “reasonable probability” mirrors the relationship between the two standards for establishing what constitutes “scientific identification evidence” and what entitles a petitioner to DNA testing, respectively. Specifically, establishing that certain evidence meets the statutory definition of “scientific identification evidence” “requires a lower quantum of proof’ than establishing that the petitioner is entitled to DNA testing on that evidence. Therefore, we deem it appropriate to employ the ⁵⁷⁷ same definitions of these terms in the context of the Postcon-viction DNA Testing Statute. Accordingly, we hold that the “may produce” language of CP § 8-201 (a)(5)(iii) is equivalent to a “mere possibility” or “chance.” In other words, “scientific identification evidence” is evidence that “contains biological evidence from which DNA [could possibly be] recovered that [could possibly produce] exculpatory or mitigating evidence relevant to a claim of a convicted person of wrongful conviction or sentencing if subject to DNA testing.” If there is any chance that the requested evidence could