Washington v. State

GREENE, J. On January 24, 1990, Appellant Michael D. Washington 1 was convicted by a jury in the Circuit Court for Wicomico County of first degree rape and related offenses. On February 23, 1990, Appellant was sentenced to life in prison. He subsequently noted an unsuccessful appeal to the Court of Special Appeals, after which this Court denied his petition for writ of certiorari. Washington v. State, 323 Md. 186 , 592 A.2d 179 (1991).

Appellant then filed several unsuccessful post-conviction petitions. On May 29, 2009, Appellant filed in the Circuit Court for Wicomico County a Petition for Search for DNA Material and Petition for DNA Testing, pursuant to the DNA Evidence — Postconviction Review Act, Md.Code (2001, 2008 Repl-Vol.), § 8-201 of the Criminal Procedure Article. On August 28, 2009, the Circuit Court granted Appellant’s Petition for Search for DNA Material, and the court’s Order was served on various law enforcement agencies that may have had possession of or access to biological evidence related to Appellant’s case. Several affidavits and letters were sent to the court in response to its Order to search for the requested evidence.

On August 3, 2010, Appellant filed a Petition for Production and Testing of DNA Material, a Motion for a New Trial, and a Petition for Writ of Actual Innocence. 2 A hearing on the various requests for relief was held on January 20, 2010, and the presiding judge issued a written opinion on March 7, 2011, denying the relief requested by Appellant. On March 21, 2011, pursuant to Md.Code (2001, 2008 Repl. Vol.), § 8-201(k)(6) of the Criminal Procedure Article, Appel ⁶³⁶ lant noted a direct appeal to this Court. Appellant presents the following issues for our review: (1) Did the lower court err in finding that the conceded destruction of biological evidence relating to Mr. Washington-Bey’s conviction by the Wicomico County Sheriffs Office was not intentional and willful, and in refusing to afford Mr. Washington-Bey relief due to this intentional and willful destruction of evidence?

(2) Did the lower court err in finding that Mr. Washington-Bey’s conviction does not rest upon unreliable scientific identification evidence, and denying Mr. Washington-Bey’s Motion for a New Trial on that basis, given that the evidence at trial showed that semen found in connection with a rape was produced by another man, the archaic forensic science used at trial could not eliminate Mr. Washington-Bey as a contributor to that sample, the State’s theory of the case posited that this evidence showed Mr. Washington-Bey’s guilt, and present-day technology would disclose the number of contributors to the semen sample, the genetic identities of all contributors, and Mr. Washington-Bey’s definitive innocence? (3) Did the lower court err in finding that the State had performed a reasonable search for the requested biological identification evidence when the State refused to provide the Wicomico County Sheriffs Office’s evidence retention and destruction policies pre-dating 2007, despite being ordered by the court to do so, and a deputy sheriff testified that those policies were not only in the office’s present possession, but sitting on another deputy’s desk? We shall hold that the determination made by the hearing judge, based upon all of the evidence presented, that the State performed a reasonable search and that the requested scientific identification evidence 3 no longer exists was not clearly ⁶³⁷ erroneous. We shall also hold that the State’s duty to preserve scientific identification evidence, pursuant to § 8-201(j), 4 begins as of the date the statute was enacted and is not to be applied retroactively.

Because the hearing judge’s determination that the scientific identification evidence in this case was destroyed prior to the enactment date of the statute, was not clearly erroneous, we hold that subsection (j) of the statute is not applicable to the circumstances of this case and Appellant is not entitled to the relief provided therein. Lastly, we hold that the hearing judge’s denial of Appellant’s Motion for a New Trial, filed pursuant to § 8-201(c), 5 was not an abuse of discretion, as Appellant did not establish that the serological testing and results offered by the State at trial were unreliable and that there was a substantial possibility that Appellant would not have been convicted without the serological evidence. ⁶³⁸ FACTUAL AND PROCEDURAL BACKGROUND At Appellant’s jury trial in the Circuit Court for Wicomico County, Estelle Mae Coleman testified that on August 18, 1989, she left her home in Salisbury, Maryland, at approximately 12:30 a.m. to meet an acquaintance. She claimed that while she was walking along a road near her home, she encountered a man, whom she identified at trial and in a pretrial photo array as Appellant, and she asked if she could have a cigarette. Ms. Coleman stated that Appellant then attacked her, dragging her to the side of the road.

She testified that Appellant raped her and that he ejaculated during the rape. Ms. Coleman stated that Appellant told her his name was “Mike,” and she observed that he had been “carrying a tote bag” that he left at the scene when he fled. Ms. Coleman testified that she gave the clothes she was wearing at the time of the attack to the police and that she later went to the hospital, 6 where a rape kit was collected. Deputy Ron Boles of the Wicomico County Sheriffs Department testified that he responded to the scene of the attack in the early morning hours of August 18, 1989.

After the assailant fled, Deputy Boles conducted an area search of the scene, during which he discovered a bag that contained papers addressed to Michael Washington. Appellant later testified that he had a traveling bag with him on the evening of August 17, 1989, and into the early morning hours the following day. Appellant testified that he left this bag in some bushes behind a local Elks Club, and when he went to retrieve it at approximately 2:00 a.m., he discovered it had been stolen. Officer Wanda Bonang of the Wicomico County Sheriff’s Department testified that she took custody of Ms. Coleman’s clothing at approximately 12:00 p.m., on August 18, 1989.

Officer Bonang testified that she took the clothes “to [the] Sheriffs Department and secured them in a property locker, and they were later transported up to the crime lab.” Officer ⁶³⁹ Bonang also indicated that Detective Robin Roberts of the Wicomico County Sheriffs Department transported Ms. Coleman to the hospital, where a “Maryland State Police Sexual Assault Evidence Collection Kit” was used to gather biological evidence. Detective Roberts testified that she was presented with Ms. Coleman’s rape kit by hospital personnel. Officer Bonang took custody of the rape kit from Detective Roberts, and indicated that she “placed it in [the Sheriffs Department] refrigeration unit, [the] security refrigerator, and advised [the] property custodian that [she] had blood and hair samples and other samples from a rape that needed to be taken to Pikes-ville and examined[.]” Detective Roberts testified that she and a nurse took samples from Appellant at the Wicomico County Detention Center following his arrest, including “pubic hairs, head hairs, blood, [and] saliva.” Sharon Dubey, a serologist with the Maryland State Police Crime Laboratory, testified as an expert in the field of serology regarding the analysis she performed on the biological evidence obtained in connection with the case. In defining the term “secretor,” Ms. Dubey stated, “If a person is a secretor they secretfe] into their other body fluids other than their blood [meaning semen or saliva]....

Therefore, you can type what a person’s blood type will be from another body fluid[ ] if they [a]re a secretor.” Ms. Dubey testified that twenty percent of the population are non-secretors. From her analysis of Appellant’s blood and saliva samples, Ms. Dubey concluded that her results were consistent with Appellant being a non-secretor with blood type O. From her analysis of Ms. Coleman’s blood in a known sample, Ms. Dubey determined that Ms. Coleman was a secretor with blood type O. Ms. Dubey testified that her examination of the vaginal swabs from the rape kit indicated that there was semen present but that there was no antigenic activity detected. This finding led her to conclude that the sample was “either consistent with a person who is a non-secretor having contributed it or consistent with not enough sample to even detect [any blood group antigens.]” Ms. Dubey testified that there ⁶⁴⁰ was “a possibility” that a non-secretor contributed to the semen found on the vaginal swabs in the rape kit. Ms. Dubey examined Ms. Coleman’s underwear “[f]or the presence of blood or semen or any other body fluids.” Her examination led her to conclude that there was a stain on the underwear containing semen and spermatozoa.

When she analyzed the stain, Ms. Dubey detected the “[pjresence of A and H blood antigens,” which is consistent with a secretor having contributed to the stain. Ms. Dubey testified that there were four possibilities that could explain the results she obtained from her testing of the stain: (1) group A secretor(s) contributed; (2) group A secretor(s) and group 0 secretor(s) contributed; (3) group A secretor(s) and non-secretor(s) of any blood group contributed; or (4) group A secretor(s), group O secretor(s), and non-secretor(s) of any blood group contributed. Ms. Dubey maintained that, in accordance with this list of possible explanations, her findings did not eliminate Appellant as a suspect. Because Ms. Dubey’s analysis indicated that Appellant and Ms. Coleman both had blood type 0, she testified that it was impossible that the fluids on the underwear came from either Ms. Coleman or Appellant.

Ms. Coleman was recalled to the witness stand and testified that she had consensual intercourse with a man whose name she did not know earlier in the evening, prior to the rape; Ms. Coleman testified that she was wearing the same clothing from that time until the time of the rape. The State, in the rebuttal portion of its closing argument, referenced Ms. Dubey’s testimony regarding Appellant’s nonsecretor status and the results of her analysis: The expert point blank told you that in her examination she could not eliminate the defendant, that what she found does not eliminate the defendant. Unfortunately, I had to call Miss Coleman to explain the presence of someone else’s semen in the underwear. We have discussed that, difficult to do, and she [hjas indicated she has had a rough time.

That was the purpose of calling her in, back in I should say. ⁶⁴¹ The expert based on her examination of [the] vaginal swabs doesn’t eliminate him; in fact, includes him in this small group of 20 percent of the population. Vaginal swabs, if you recall examined — indicated that the person could be a non-secretor in which the defendant was one. So it is not excluded. He is in fact linked in the vaginal swabs.

The jury convicted Appellant of first degree rape, second degree rape, third degree sexual offense, fourth degree sexual offense, assault, and battery. Thereafter, the court imposed a life sentence. In his Opinion and Order, the Circuit Court judge presiding over the post-trial matters that are the subject of this appeal summarized the procedural history of this case following Appellant’s sentencing: [Appellant] filed several post-conviction motions, including a Motion for a New Trial, a Motion for Reduction or Modification of Sentence, [and] a Motion to Correct an Illegal Sentence. Each of these motion[s] was denied. [Appellant] also appealed and on March 27, 1991, the Court of Special Appeals affirmed the judgment. [Appellant] filed a Petition for Writ of Certiorari, which was denied by the Court of Appeals on July [18], 1991.

On December 6, 1991, [Appellant] filed a Petition for Post-Conviction Relief. A hearing was held on July 24, 1992 and post-conviction relief was denied. [Appellant] subsequently filed an Application for Leave to Appeal, which the Court of Special Appeals denied. On August 22, 2003, [Appellant] then filed three subsequent Motions to Re-Open Post Conviction Case. The first two motions were denied.

The third motion to ReOpen Post Conviction was granted; however, relief was denied. [Appellant] filed an Application for Leave to Appeal, which the Court of Special Appeals granted. On June 11, 2008, the Court of Special Appeals affirmed the judgment of this court. [Appellant] filed a Petition for Writ of Certiorari, which was denied on September [12], 2008. ⁶⁴² [O]n May 29, 2009, Defendant filed a Petition for Search for DNA Material and Petition for DNA Testing. This matter was called for a hearing on July 31, 2009. At the hearing, the State was represented by Deputy State’s Attorney Sampson G. Vincent. [Appellant] was represented by Marc A. DeSimone of the Office of the Public Defender.

On August 28, 2009, this [c]ourt granted [Appellant’s] Petition for Search for DNA Material. The Order was then served on the various parties who may have had access to any DNA material relating to [Appellant’s] case. Various affidavits were returned in response to th[is] court’s [O]rder. The Order issued by the Circuit Court directed “the Wicomico County Sheriffs Office, the Maryland State Police, the Maryland State Police Crime Laboratory, Peninsula Regional Medical Center (successor to Peninsula General Hospital Medical Center), and the State’s Attorney for Wicomico County” to comply with its mandates, which included “searching] for any and all biological evidence relating to the investigation, trial, and conviction” of Appellant.

The named recipients were to report their search efforts and results to the court within sixty days after being served with the Order. In response to the court’s Order, on October 27, 2009, Sampson G. Vincent, the Deputy State’s Attorney for Wicomico County, filed an affidavit with the court stating that he was the prosecutor at Appellant’s trial. Mr. Vincent asserted that at the time of the trial, all physical exhibits entered into evidence were retained by the court following trial and were then returned to the Sheriffs Office, specifically to Howard Perdue, on June 12,1991. Mr. Vincent stated that all physical material not offered into evidence would have been retained by the investigating deputies.

Mr. Vincent claimed that before the State’s Attorney’s Office was relocated in 1998, the Office had no room or locker for evidence retention, so all evidence would have been returned to the investigators. Mr. Vincent maintained that when he moved to the new Office location he did not have any material related to Appellant’s case in his personal possession. ' Furthermore, Mr. ⁶⁴³ Vincent claimed that he personally conducted a search of each shelf and box in the State’s Attorney’s evidence room, assisted by Lee Butler, and was unable to find any evidence, evidence logs, or documentation related to Appellant’s case. Lastly, Mr. Vincent asserted that “[t]he State’s Attorney’s Office has always advocated that physical evidence in all ... cases ... with a life sentence! ] be maintained by the police agency even after appeals are exhausted as post conviction petitions are often filed years later.” Moreover, Mr. Vincent claimed that he “never would have authorized the destruction of evidence in a rape case in which a defendant received a life sentence.” A letter dated November 18, 2009, from Detective Sergeant Gary A. Bromwell, Assistant Barrack Commander of the Maryland State Police Department, was filed with the court in response to its Order to search for evidence related to Appellant’s case. In the letter, Sergeant Bromwell indicated that “after careful review of our files, we were unable to locate any of the requested evidence from a 1989 rape case.

The Maryland State Police did not investigate this case.” Lieutenant Mark David Babe Wilson filed a notarized letter with the court on December 14, 2009, stating that he was the current Division Commander of the Property and Evidence Unit for the Wicomico County Sheriffs Office. Lieutenant Wilson asserted that on November 4, 2009, he personally searched each shelf and box of the Wicomico County Sheriffs Office property and evidence room, assisted by Corporal Brian Donahoe, and was unable to find any evidence relating to Appellant’s case. Lieutenant Wilson stated that “[t]he last documentation of evidence in a chain of custody log date[d] back to June 12, 1991,” and the entry indicated that Wendy Restein, a clerk of the Wicomico County Circuit Court, returned the evidence to Howard O. Perdue, the Property Custodian at the time. 7 Lieutenant Wilson maintained that neither he nor any personnel currently assigned to the Property and Evidence Unit had “any direct or indirect knowledge ⁶⁴⁴ about the handling and maintaining of evidence regarding the Washington case in 1989 to June 12, [1]991.” Attached to Lieutenant Wilson’s letter was a memorandum written in 2002 by James J. Nealon, the Property Custodian for the Wicomico County Sheriffs Office, asserting that the Maryland State Police Crime Laboratory and all of the evidence vaults within the Sheriffs Office were searched and did not produce any evidence relating to Appellant’s case. Mr. Nealon further maintained that “[i]t is unknown where and when the evidence was destroyed.” Teresa M. Long, Director of the Maryland State Police Forensic Sciences Division, submitted an affidavit to the court on December 16, 2009, indicating that staff members “searched any and all places in which biological evidence relating to the investigation [of Appellant’s case] might have been found[.]” Ms. Long stated that current logbooks and logbooks for the long-term storage facility were searched, and there were no relevant entries.

Ms. Long asserted that staff members searched files kept in the unit for cold case analysis, and they did not find any files related to Appellant’s case. In addition, according to Ms. Long, staff members searched the current inventory list, which contained no reference to Appellant’s case. Ms. Long maintained that in the original chain of custody for the file, there was a communication dated April 16, 2002, stating that the Sheriffs Office disposed of the evidence. The chain of custody also indicated that the DNA reference samples from the victim and the suspect were returned to Crime Scene Technician, M. Webster on October 17, 2001.

Ms. Long concluded that, pursuant to her search, the Division did not possess any evidence related to Appellant’s case nor did it have any record of having destroyed any evidence related to the case. An affidavit from Roberta Mandelson, Director of Laboratory Services for Peninsula Regional Medical Center, was filed with the court on December 23, 2009. Ms. Mandelson asserted that she personally conducted a search of the Medical Center and “found no hematology and histology samples taken from Estelle Mae Coleman on August 18,1989, and tested and ⁶⁴⁵ placed in Ms. Coleman’s Permanent Pile at Peninsula Regional Medical Center[.]” Moreover, Ms. Mandelson indicated that the evidence drawer from 1989 no longer exists. Ms. Mandelson stated that she found no underwear, vaginal swabs, or laboratory slides related to Appellant’s case.

Ms. Mandelson claimed that she searched the slide storage areas in the Cytology Department, in her office, and in the old section of the Medical Center, and she was unable to find any slides related to Appellant’s case. Lastly, Ms. Mandelson explained that regulations required the hospital to keep cytology slides for ten years, and after that period, slides were microwaved and removed by an outside company. On August 3, 2010, Appellant filed a Petition for Production and Testing of DNA Material and a Motion for a New Trial. On January 20, 2011, a hearing on the Motions was held in the Circuit Court for Wicomico County.

During the hearing, the presiding judge took judicial notice of the affidavits submitted by Sampson Vincent and Teresa Long, as well as the letter submitted by Sergeant Gary Bromwell. At the hearing, the State called Roberta Mandelson, and the court took judicial notice of her affidavit. When asked whether there were any hospital policies dealing with collection of sexual assault DNA evidence, Ms. Mandelson responded, “Yes. Two are laboratory procedures dealing with the specimens, and one is ... from the hospital manual for the Emergency Department in collection of evidence.” With regard to when these policies were put in place, Ms. Mandelson stated, “The hospital policy for the Emergency Department was effective September 1st of 2007.

The original procedure in the laboratory was written December of 1996 and — actually, both laboratory procedures were December 1996.” Ms. Mandelson stated that she did not have any knowledge of prior policies used by the hospital. On cross-examination, Ms. Mandelson stated that old cytology slides are destroyed by an outside company twice per year, and there is no record kept of which slides are destroyed. ⁶⁴⁶ After the court took judicial notice of Lieutenant Mark David Babe Wilson’s affidavit, Lieutenant Wilson was cross-examined regarding his knowledge of the Wicomico County Sheriffs Office evidence retention policies. When questioned about the Office’s current purging policies, in effect since October 2007, Lieutenant Wilson stated, “Whatever we may have in our system is sent back to the officer for review, and he contacts the State’s Attorney to see if there is any outstanding litigation that is in effect to include civil, traffic and criminal as well as appeals.” Lieutenant Wilson testified that he was only aware of Sheriffs Office policies regarding evidence retention and destruction in existence from October 2007 to the time of the hearing. Lieutenant Wilson asserted, however, that older versions of Sheriffs Office evidence retention policies are retained and that “[t]hey would be with the Administrative Captain.” Lieutenant Wilson testified that, although the policy of the Office since 2007 has been to keep documentation of evidence that is purged, he could not speak to the policies in place prior to that time.

With regard to Appellant’s case, Lieutenant Wilson stated that “we have nothing showing a destruction of it.... We just show it coming back in '91 to our debit.” The State next called Corporal Brian Donahoe, the Wicomico County Sheriffs Office Property and Evidence Section Supervisor. Corporal Donahoe testified that he performed a hands-on search of all of the shelves, and the areas behind the shelves, in the evidence vaults, and he was unable to locate any evidence related to Appellant’s case. Corporal Donahoe stated that his knowledge of evidence retention and destruction policies dated back to when he came to the Office in August 2008, and he was not familiar with any policies prior to that time.

In describing the current policy, Corporal Donahoe stated: I do annual purges of all the property that’s on the shelves, and I go through the property. I write down the case number, what the description of the property is, and who the investigating deputy is, and I submit to them what is ⁶⁴⁷ called a disposal form. It’s a disposition status of their property from their case. And I submit that to them. [8] They have ten days to respond back to that with what disposition they want done with their property, to be held for continuing court purposes or destroyed or returned to owner, returned to MVA for tags, that type of thing.

It is the deputy’s responsibility to contact the State’s Attorney’s Office and say, our case, because they worked on the case together through trial, I have evidence disposal for this, what would you like done with this evidence? Thus, according to the retention policies in place at the time of the hearing, as explained by Corporal Donahoe, the process involved a collaborative effort between the investigating officer and the State’s Attorney’s Office. If the officer and the State’s Attorney’s Office determined that the evidence should not be destroyed, the paperwork was “marked HOLD really big on it,” to indicate that the evidence should continue to be retained. Corporal Donahoe stated that when he reviewed the paper file for Appellant’s case, the evidence had come into the Sheriffs Office in 1991 to a previous property custodian, and in 2001 “Mr. Nealon had researched looking for it.

He had written up an affidavit or something, said he couldn’t find it, that it wasn’t there[.]” Corporal Donahoe maintained that the paper file did not indicate that the evidence had been purged. Wendy Restein testified that in 1990, she was a courtroom clerk in the Circuit Court for Wicomico County. Ms. Restein reviewed the property log from Appellant’s case, and testified that the log indicated that she accepted evidence for the case on January 24, 1990, and later released the evidence to Howard Perdue, with the Sheriffs Office, on June 12, 1991. With regard to the court’s retention of certain evidence, Ms. ⁶⁴⁸ Restein stated, “The Clerk’s Office is required to keep evidence either until the appeal time is up or if it’s appealed, until the mandate is received from the Court of Special Appeals.” Following the hearing, on March 7, 2011, the hearing judge issued a written Opinion and Order denying the relief requested by Appellant.

In analyzing this Court’s case law construing § 8-201 of the Criminal Procedure Article, the hearing judge referenced our opinion in Blake v. State, in which we stated that “when an inmate files a petition for postconviction DNA testing, the State should make an extensive search for the evidence.” Blake v. State, 395 Md. 213, 232 , 909 A.2d 1020, 1031 (2006) [hereinafter Blake I] (citation omitted). The judge noted this Court’s holding in Arey v. State, 400 Md. 491, 503 , 929 A.2d 501, 508 (2007) [hereinafter Arey I], that “[t]he State should identify the protocol [of the relevant law enforcement agency] that was in place from the time of the trial to the time of the request for testing, if possible, and see if that protocol was followed.” The hearing judge stated that, consistent with this Court’s opinion in Arey I, the burden was on the State to demonstrate “a prima facie case, either directly or circumstantially, that the requested evidence no longer exists.” Arey I, 400 Md. at 505 , 929 A.2d at 509 . Lastly, according to the hearing judge, Arey I supports the proposition that only after the State has performed a “reasonable search” should the court conclude that the scientific identification evidence no longer exists. Id.

The hearing judge ultimately concluded that the State had met its burden under Arey I. The judge determined that “[a] reasonable search was undertaken which included the Wicomico County State’s Attorney’s Office and Sheriffs Office, the Maryland State Police Crime Laboratory, PRMC and the clerk’s office of the Circuit Court.” The judge asserted that, pursuant to the holding in Arey I, the burden shifts to the defendant to establish that the requested evidence still exists. The judge concluded that Appellant had not met this burden, and, accordingly, he denied Appellant’s request for relief. Furthermore, the hearing judge determined, as a matter of fact, that “[t]he evidence presented at the hearing showed that ⁶⁴⁹ the searches for evidence related to this case, dating back to 2002, produced no results” and, therefore, “the evidence was either lost or destroyed prior to that time.” Without specifically discussing retroactive application of the State’s duty to preserve scientific identification evidence, the hearing judge concluded that “there was no law which existed at the time of [Appellant’s trial], or indeed until Md.Code Ann., Criminal Procedure Article § 8-201 was enacted in 2001, that required the State to preserve scientific identification evidence [following Appellant’s conviction and sentencing.]” Reiterating that the requested evidence was not located by the State, following a series of searches dating back to 2002, the hearing judge concluded that the evidence was destroyed prior to the time the unsuccessful searches began. Ultimately, the hearing judge determined that “[a]s no legal duty existed for the State to preserve the [scientific identification] evidence until 2001, any destruction that occurred prior to that time would not have been in violation of a known legal duty[.]” Thus, the judge declined to grant Appellant’s request for relief under § 8-201(j).

The hearing judge also declined to grant Appellant’s Motion for a New Trial, reasoning that Appellant had not established, pursuant to § 8-201(e), that his “conviction was based on unreliable scientific identification evidence and a substantial possibility exists that [he] would not have been convicted without the evidence.” Although Appellant compared the circumstances of this case to those in Arrington v. State, 411 Md. 524 , 983 A.2d 1071 (2009), a case in which we reversed a circuit court judge’s denial of a motion for a new trial, the hearing judge concluded that the instant case is distinguishable from Arrington in several material respects. First and foremost, the hearing judge noted that in Arrington the scientific identification evidence still existed and could be tested. Arrington, 411 Md. at 534 , 983 A.2d at 1076 . In contrast, the hearing judge concluded that “no scientific identification evidence exists [in this case] that may be tested in accordance with the standard methods used today.” Moreover, the judge determined that “at the time of the trial, the ⁶⁵⁰ testing that was done was reliable under the standard methods used at that time.” The hearing judge also asserted that the serological evidence presented at Appellant’s trial actually favored Appellant.

Furthermore, according to the hearing judge, the serological evidence comprised only a small part of the rebuttal portion of the State’s closing argument, as the State relied mostly on identification evidence and other circumstantial evidence to prove its case. Lastly, the hearing judge determined that “there is no indication in this case that the jury relied heavily on the serological evidence presented in making [its] decision.” DISCUSSION In Gregg v. State, 409 Md. 698 , 976 A.2d 999 (2009), we provided a comprehensive overview of the history of Md.Code (2001, 2008 Repl.Vol.), § 8-201 of the Criminal Procedure Article. We noted in Arey I, 400 Md. at 507 , 929 A.2d at 510 , that “the purpose underlying the statute ... is to provide a means for incarcerated persons to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing^]” Furthermore, in Thompson v. State, 895 Md. 240 , 252, 909 A.2d 1035, 1043 (2006) [hereinafter Thompson I ], we concluded that the General Assembly expressed a concern with actual innocence in its adoption of the statute, as the legislative intent “was to provide a mechanism for exoneration of the actually innocent.” Md.Code (2001, 2008 Repl.Vol.), § 8-201(b) of the Criminal Procedure Article provides: Notwithstanding any other law governing postconviction relief, a person who is convicted of a violation of § 2-201, § 2-204, § 2-207, or §§ 3-303 through 3-306 of the Criminal Law Article may file a petition: (1) for DNA testing of scientific identification evidence that the State possesses as provided in subsection (j) of this section and that is related to the judgment of conviction; or ⁶⁵¹ (2) for a search by a law enforcement agency of a law enforcement data base or log for the purpose of identifying the source of physical evidence used for DNA testing. Pursuant to the language in the statute, this Court has determined that if the State has performed a reasonable search and has demonstrated sufficiently a prima facie case, either directly or circumstantially, that the requested scientific identification evidence no longer exists, the State will have satisfied its burden of persuasion.

See Horton v. State, 412 Md. 1, 7 , 985 A.2d 540, 543-44 (2009); Arey I, 400 Md. at 505 , 929 A.2d at 508 . A. Reasonable Searches As we stated in Blake v. State, 418 Md. 445, 460 , 15 A.3d 787, 796 (2011) [hereinafter Blake II], “[t]he ‘clearly erroneous’ standard of review is applicable to the Circuit Court’s finding that [a] search ... was ‘a reasonable search under § 8-201 of Maryland’s Criminal Procedure Article.’ ” In construing this standard, we have maintained that we “must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834, 835-36 (1975) (citations omitted). Thus, “[i]f there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Solomon v. Solomon, 383 Md. 176, 202 , 857 A.2d 1109, 1123 (2004) (quotation and citation omitted). Blake I, 395 Md. at 216, 909 A.2d at 1022, involved the denial of a petition for DNA testing of scientific identification evidence that the State had used at Blake’s trial for first degree rape and first degree sexual offense in 1982.

Blake filed the petition for DNA testing pursuant to § 8-201 of the Criminal Procedure Article. Blake I, 395 Md. at 217, 909 A.2d at 1022. The State filed a motion to dismiss the petition, followed by a supplemental motion to dismiss, claiming that the scientific identification evidence had been destroyed well ⁶⁵² before October 1, 2001, the effective date of the statute. Id.

Included with the motions were two attachments. Id. One of the attachments was a letter from an Assistant State’s Attorney to a lieutenant of the Baltimore City Police Department requesting that the officer conduct a search of the Evidence Control Room to determine whether there was any evidence related to Blake’s case. Id.

The second attachment was a memorandum written by a sergeant and addressed to a major in the Baltimore City Police Department, indicating that the Evidence Control Room had been searched and no evidence had been located. Id. The court then summarily dismissed Blake’s petition without a hearing and without giving Blake an opportunity to respond to the State’s motion. Id.

On review before this Court, Blake contended that the lower court improperly dismissed his petition because it lacked an adequate factual record from which to conclude that the State no longer possessed the requested scientific identification evidence. Id. We held that because the State was the custodian of the evidence and because information regarding the location and potential manner of destruction of the evidence would be within the exclusive knowledge of the State, it had the burden of establishing that the evidence no longer exists. Blake I, 395 Md. at 232, 909 A.2d at 1031.

In evaluating whether the State had met its burden, we held that “[a]n unsworn memorandum, stating that the State merely requested the police to look in the evidence control unit, is insufficient to establish [that the evidence no longer exists.]” Blake I, 395 Md. at 227, 909 A.2d at 1028. While discussing the history of § 8-201 and the purpose of the statute, we described in detail a report issued by the National Commission on the Future of DNA Evidence. See Blake I, 395 Md. at 220-22, 909 A.2d at 1024-25 (discussing Nat’l Inst. of Justice, Nat’l Comm’n on the Future of DNA Evidence, Postconviction DNA Testing: Recommendations for Handling Requests (Sept. 1999) [hereinafter NIJ Report], available at http://www.ncjrs.org/pdffilesl/nij/177626.pdf). We noted in Blake I that the Commission “cautioned prosecutors against concluding too hastily that evidence sought by an ⁶⁵³ inmate no longer exists.” Blake I, 395 Md. at 221, 909 A.2d at 1024 (citing NIJ Report at 45).

The NIJ Report suggests looking for evidence in places where it will most likely be found, and it provides a list of recommended locations. Blake I, 395 Md. at 221-22, 909 A.2d at 1024-25 (quoting NIJ Report at 46). In accordance with the NIJ Report’s recommendation that the State conduct an “extensive search for the evidence,” we held that the State’s efforts in Blake I were insufficient. Blake I, 395 Md. at 232-33, 909 A.2d at 1031 (citing NIJ Report at 36).

Therefore, we reversed the judgment of the lower court and remanded the case for further proceedings. Blake I, 395 Md. at 239, 909 A.2d at 1035. In Blake II, 418 Md. at 448 , 15 A.3d at 789 , we addressed the sufficiency of subsequent efforts by the State to conduct a reasonable search following our remand to the Circuit Court. The Circuit Court concluded that after “four hearings, during which [the court] received testimony, documentary evidence, affidavits, and proffered information about the State’s efforts to locate the evidence sought to be tested,” the State had met its burden of establishing a prima facie case that the requested scientific identification evidence no longer exists.

Blake II, 418 Md. at 450 , 15 A.3d at 790 . We applied the clearly erroneous standard of review, and we concluded, based on the extensive search conducted by the State and the evidence presented on remand, that the Circuit Court judge’s denial of Blake’s petition was not clearly erroneous. Blake II, 418 Md. at 462 , 15 A.3d at 797 . In Arey I, we addressed, inter alia, the issue of whether a Circuit Court judge erred in concluding that scientific identification evidence related to Arey’s 1974 conviction for first degree murder and use of a handgun in the commission of a crime of violence no longer existed.

Arey I, 400 Md. at 494-95 , 929 A.2d at 503 . Arey filed a petition requesting DNA testing of blood evidence, pursuant to § 8-201 of the Criminal Procedure Article. Arey I, 400 Md. at 494 , 929 A.2d at 503 . The court scheduled a hearing for the matter, but asserted that “[s]hould the State produce prior to the hearing an affidavit from someone with firsthand knowledge stating that ⁶⁵⁴ the State no longer has the evidence for which the [appellant] has requested the testing, there will be no need for the hearing and it will be cancelled.” Arey I, 400 Md. at 499 , 929 A.2d at 505-06 .

A Baltimore City Police Department sergeant, on behalf of the State, thereafter filed an affidavit stating that he was in charge of the Evidence Control Unit (ECU), that he performed a search for the requested evidence by searching the ECU database and forms kept on file, and that he was unable to locate the requested evidence. Arey I, 400 Md. at 499 , 929 A.2d at 506 . In light of this affidavit and the fact that Arey did not produce any evidence to contradict it, the judge denied the petition for DNA testing. Arey I, 400 Md. at 499-500 , 929 A.2d at 506 .

On review, we reaffirmed our holding in Blake I that the burden is on the State to establish a prima facie case that the requested scientific identification evidence no longer exists. Arey I, 400 Md. at 504-05 , 929 A.2d at 509 (quoting Blake I, 395 Md. at 232, 909 A.2d at 1031). We maintained that the State will only have satisfied its burden of persuasion after performing a reasonable search and demonstrating a prima facie case that the requested evidence no longer exists. Arey I, 400 Md. at 505 , 929 A.2d at 509 .

We determined that unless there is a written record that the requested evidence has been destroyed in accordance with existing protocol, the State must check every location where the evidence could reasonably be located. Arey I, 400 Md. at 503-04 , 929 A.2d at 508 . Ultimately, we held that the State did not perform a reasonable search for scientific identification evidence related to Arey’s case because it did not search every location where the evidence could reasonably have been located. Arey I, 400 Md. at 503 , 929 A.2d at 508-09 .

On remand following this Court’s mandate in Arey I, the Circuit Court held four hearings, during which the State provided a logbook from the Baltimore City Police Department’s crime laboratory that indicated evidence from Arey’s case had been examined in 1973 by a person with the initials “R.S.D.” Arey v. State, 422 Md. 328, 332-33 , 29 A.3d 986, 988-89 (2011) [hereinafter Arey II]. The court ordered the State ⁶⁵⁵ to ascertain the identity of this person, and the State subsequently provided an affidavit from Robert S. Davis, the crime laboratory technician who testified at Arey’s original trial. Arey II, 422 Md. at 333 , 29 A.3d at 989 . The affidavit asserted that Mr. Davis did not recall examining the relevant piece of evidence, nor did he know where it might currently be located.

Id. Mr. Davis did aver, however, that he did not personally keep evidence that he tested; rather, he returned the evidence to the Evidence Control Unit after testing was completed. Id. Lastly, Mr. Davis maintained that the small amount of sample that was tested would usually be consumed in the test.

Id. The Circuit Court dismissed Arey’s petition two days later, concluding that the State had conducted a reasonable search for the evidence. Id. On appeal before this Court, we decided to remand the case again to the Circuit Court, reasoning that, “[although we decline to hold that the hearing judge’s ultimate conclusion was clearly erroneous, we do decide that, on the record before us, the ruling was premature.” Arey II, 422 Md. at 335 , 29 A.3d at 990 .

We determined that Arey should have been given “the opportunity to probe, challenge, or otherwise respond to the statements in [Mr. Davis’s] affidavit,” despite the State’s contention that continued questioning would not reveal any additional information regarding the location of the evidence. Arey II, 422 Md. at 337 , 29 A.3d at 991 . In Horton v. State, 412 Md. 1, 8 , 985 A.2d 540, 544 (2009), we reviewed the denial of a petition for DNA testing following Horton’s conviction in 1983 for first degree rape, assault with intent to maim, and burglary. As part of the investigation, a rape kit had been collected by hospital personnel, and police had obtained the hospital gown and clothing of the victim, as well as biological evidence from the victim’s home.

Horton, 412 Md. at 8-9 , 985 A.2d at 544 . Horton’s petition requested production of “any physical evidence related to the victim.” Horton, 412 Md. at 9 , 985 A.2d at 545 . The State responded to the petition with an affidavit from the hospital’s medical director, stating that the hospital does not retain cytology slides for more than ten years and that the hospital was ⁶⁵⁶ unable to locate any slides or genetic material from the victim. Horton, 412 Md. at 10 , 985 A.2d at 545 .

Thereafter, the court ordered