Edwards v. State

Richard A. Edwards v. State of Maryland, No. 47, September Term, 2016. Opinion by Greene,

J.

CRIMINAL JUSTICE—POST-CONVICTION DNA TESTING

Pursuant to § 8-201 of the Criminal Procedure Article, persons convicted of crimes of violence

are entitled to post-conviction DNA testing upon a showing that “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 the requested DNA test employs

a method of testing generally accepted within the relevant scientific community.” The statute

does not require a petitioner to show that the outcome of his or her case necessarily would have

been different, had the jury been presented with the evidence the petitioner seeks to obtain

through the requested DNA testing. In other words, the petitioner need not show that the DNA

testing has a reasonable probability to exonerate the petitioner. Instead, as clearly delineated

in the statute, the petitioner need only show that there is a reasonable probability that the testing

has the scientific potential to produce exculpatory or mitigating evidence. Exculpatory

evidence is evidence that tends to establish the innocence of the petitioner. It need not

definitively prove the petitioner’s innocence but only tend to prove or disprove a disputed

material fact.

The Circuit Court applied the incorrect legal standard in ruling that there was no possibility that

DNA testing of the requested items would “exonerate” the Appellant.

Circuit Court for St. Mary’s County IN THE COURT OF APPEALS

Case No. 18-K-10-000193

Argued: January 6, 2017 OF MARYLAND

No. 47

September Term, 2016

______________________________________

RICHARD A. EDWARDS

v.

STATE OF MARLAND

Barbera, C.J.

Greene,

Adkins,

McDonald,

Watts,

Hotten,

Getty,

JJ.

______________________________________

Opinion by Greene, J.

______________________________________

Filed: May 24, 2017

This is a direct appeal pursuant to the DNA testing provisions of the DNA Evidence-

Post Conviction Review. Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the

Criminal Procedure Article (Crim. Pro.). Appellant Richard A. Edwards seeks our review

of the denial, by the Circuit Court for Saint Mary’s County, of his Petition for Post-

Conviction DNA Testing. For the reasons set forth below, we shall vacate the judgment

of the Circuit Court and remand this case to that court with directions to order the DNA

testing of the cigarette lighter.

BACKGROUND

Procedure

On May 12, 2010, a grand jury sitting in the Circuit Court for Saint Mary’s County

returned an indictment in three counts charging Appellant with committing attempted first-

degree rape, third-degree sexual offense, and second-degree assault.1 These charges went

before a Circuit Court jury for trial on February 8 and 9, 2011, following which the jury

convicted Appellant on all counts. On February 9, the trial court sentenced Appellant to

life imprisonment for the attempted first-degree rape, and imposed a concurrent ten years’

imprisonment for the third-degree sexual offense. The second-degree assault merged.

Appellant lodged a direct appeal with the Court of Special Appeals, which, in an unreported

opinion, affirmed in all respects.

1

Md. Code (2002, 2009 Supp.), § 3-309 of the Criminal Law Article (Crim. Law)

(attempted rape in the first degree); Crim. Law § 3-307 (sexual offense in the third degree);

Crim. Law § 3-203 (assault in the second degree).

On or about September 14, 2015, Appellant filed a Petition for Post-Conviction

Relief in the Circuit Court for Saint Mary’s County. On January 4, 2016, the Circuit Court

granted Appellant’s motion to withdraw this first Petition, and on that date Appellant’s

Petition for Post-Conviction DNA Testing was filed pursuant to Crim. Pro. § 8-201 and

Maryland Rule 4-701.2 A hearing on the petition was held on June 14, 2016 before a

Circuit Court judge (“Post-conviction Court”), who, in a written opinion and order issued

on July 6, 2016 denied the petition.3 On July 21, 2016, Appellant noted a direct appeal to

this Court pursuant to § 8-201(k)(6).4

Facts

The operative facts are not in dispute.5 At the trial, the jury heard testimony that,

on the evening of February 12, 2010, the complainant, J.K.,6 went to the Big Dogs Paradise

bar in Mechanicsburg. She arrived at 9:00 p.m. and remained there until the bar closed at

2:00 a.m. the next morning. After leaving the bar, Ms. K., accompanied by some friends,

went outside to smoke a cigarette and socialize. Soon thereafter, the others left, and Ms.

2

Title 4, Chapter 700 of the Maryland Rules governs “Post-Conviction DNA

Testing.”

3

The Post-conviction Court set forth its reasons in a separate “Statement of Reasons

and Opinion of Court.”

4

See Thompson v. State, 411 Md. 664, 681-82, 985 A.2d 32, 41-42 (2009). See also

Brown v. State, 431 Md. 576, 583, 66 A.3d 675, 679 (2013).

5

The Post-conviction Court held a hearing on Appellant’s Petition, but that

proceeding was limited to argument. The Post-conviction Court made no findings of

historical fact.

6

We shall refer to the Complainant by her initials (or “Ms. K.”) to protect her

privacy. See Thomas v. State, 429 Md. 246, 252 n. 4, 55 A.3d 680, 684 n. 4 (2012).

2

K. decided to call a friend, Alex, for a ride home because she had been drinking. She

returned to her car, locked the doors, and called another friend, Mark, to pass the time until

her ride arrived.

While Ms. K. was on the phone with Mark, a man approached her car and identified

himself as a “security guy” at Big Dogs. He claimed that he wanted to ensure Ms. K. had

a safe ride home. Ms. K. told the man that she had a friend on the way to give her a ride

and the man left. A few minutes later, however, while Ms. K. was still on the phone, the

man returned to her car with a cigarette in his hand and asked to borrow her lighter. When

Ms. K. gave the man her lighter, he asked to use her door to shield him from the wind while

he lit his cigarette. Ms. K. agreed. The man crouched down in front of the passenger door

to light the cigarette, but then he entered her car and sat down. When Ms. K. told the man

to get out of her car he did not comply.

Ms. K. then told the man she needed to go to the bathroom and that she was going

back to the bar to see if she could use the bathroom. The man responded, “Oh no, I work

for Big Dogs, they are closed. They won’t let you back in there.” Ms. K. then said “Well,

I’m gonna go check.” She then ended her phone call with Mark, opened her door and

started to get out.

The man got out of the car about the same time and pushed Ms. K. to the ground.

He then pulled Ms. K. back up and pushed her into the driver’s seat of the car. At that

point, he fondled her, kissed her neck, and attempted to pull down her pants, placed his

fingers in her vagina, and attempted to force her to have sexual intercourse with him. At

3

one point during the attack, the man took Ms. K.’s keys and threw them. Ms. K. managed

to retrieve her keys and start the ignition. She “gunned it” and the man fell out of the car

and ran toward the back of the bar. Ms. K. drove to the front of the bar and continuously

honked her horn until some of the Big Dogs bouncers came out. When these employees

asked what was wrong, Ms. K. reported that a man tried to rape her. The police were

summoned.

Officers processed Ms. K.’s car for fingerprints, and investigators also recovered

some items from the car that the suspect could have touched, including a Bic lighter, a

Forever 21 plastic shopping bag, and a pack of Marlboro Menthol cigarettes. Ms. K. did

not go to the hospital on the night of her attack and the police did not take her clothing for

examination. The police did not submit any evidence for DNA testing from Ms. K., her

car, or the items in the car.

Ms. K. testified that she had not known her attacker, but recalled that she had seen

him earlier that night inside the bar. Ms. K. described her attacker as having brown hair

and dark eyes, being in his late thirties to forties, and wearing a long-sleeve denim button-

up shirt. Based on Ms. K’s description of her assailant and on interviews with the

employees and owners of Big Dogs, the police had initially identified a man named Richard

Wathen as a suspect. The police showed Ms. K. two photo arrays, each containing a photo

of a St. Mary’s county resident named Richard Wathen. Ms. K. was unable to make a

positive identification from these arrays.

The police later identified Appellant as a possible suspect and compiled a photo

array with Appellant’s picture, which they showed to Ms. K. She positively identified

4

Appellant as the man who assaulted her in the parking lot outside of Big Dogs. Ms. K.

later testified that she was “positive” of her identification of Appellant as the man who

assaulted her. At trial, Ms. K’s friend Mark, who was on the phone with her that evening

during her interaction with her assailant, recounted that Ms. K. had said she was at Big

Dogs and that during their conversation, Mark could hear a person with a male voice asking

for a light or a cigarette.

The co-owner of Big Dogs, Victoria Adkins, had been working at the bar that

evening and testified that she had spoken with Ms. K. about the incident. Ms. Adkins

testified that after hearing Ms. K. describe the man who attacked her, Ms. Adkins came to

the conclusion that the man was Ricky Edwards, who was at the bar that evening and

wearing a denim button-up shirt. Brian Adkins, who also owns Big Dogs, testified that

when he heard Ms. K.’s description, he thought the person’s name was Ricky. Mr. Adkins

also said Ricky was at the bar that evening and was wearing a blue denim button-up shirt.7

A bar employee named James Dougherty testified that he believed the man who Ms. K.

described was Appellant, a man with whom Mr. Dougherty had had an altercation on the

night in question. Before trial, Mr. Dougherty positively identified Appellant in a photo

array shown to him by police as the man he saw in the bar that evening.

At trial, Appellant called the investigating detective, Det. Thomas Hedderich, as a

defense witness. Det. Hedderich testified that he interrogated Appellant and that Appellant

7

Mr. Adkins initially told police the man’s name was Ricky Wathen, but later

discovered that his last name was not Wathen. Mr. Adkins testified at trial that Appellant

was known as “Ricky.”

5

did not confess to the crime despite the fact that the detective lied to Appellant, claiming

that police had obtained DNA evidence, that the incident was captured on video, and that

an undercover narcotics officer had seen the incident. Appellant also testified in his own

defense and acknowledged that he was at Big Dogs from 12:30 am to 1:30 am, when he

left the bar in the car that his wife drives. Appellant denied having any contact with Ms.

K. on the night in question. Appellant finally testified that he has green eyes, and that he

has a rotten tooth and missing teeth, which he displayed at trial for the jury.

The Post-Conviction Petition

In his post-conviction Petition, Appellant asserted that there was a reasonable

probability that DNA testing of the requested items has the scientific potential to produce

exculpatory evidence relevant to his claim of wrongful conviction. Appellant noted that

the victim testified that the perpetrator used her lighter and two witnesses testified that the

victim told them the perpetrator asked her for a cigarette. Appellant maintained that it is

likely that the perpetrator transferred epithelial cells to the lighter when he used it and that

the perpetrator could also have touched the Forever 21 bag and the cigarette pack given his

proximity to those items when he sat in the passenger seat. 8

Appellant contended that “even with minute or degraded quantities of DNA, it is

‘frequently possible to obtain successful DNA results from cellular material transferred

from the skin of an individual who has simply touched an object.’” (quoting Ray A.

Wickenheiser, Trace DNA: A Review, Discussion of Theory, and Application of the

8

Appellant used the term “skin cells,” but for the sake of clarity and consistency

with the statute, we equate skin cells with the synonymous term “epithelial cells.”

6

Transfer of Trace Quantities of DNA Through Skin Contact, 3 J. FORENSIC SCI. 442

(2002)). The petition noted Wickenheiser’s observation that cigarette lighters specifically

are an “unusual exhibit material yielding successfully DNA profiles using polymerase

chain reaction (PCR) and short tandem repeat (STR) typing.”

Appellant further asserted that the testing could show that his DNA was absent on

all of the tested items but that the DNA profile of another individual may instead be present

on the items. Appellant argued that this would not only support his testimony that he was

falsely identified as the perpetrator but it also has the potential to identify the actual

perpetrator. Finally, the petition asserted that the DNA testing requested, including

polymerase chain reaction (PCR) and short tandem repeat (STR) testing, are generally

accepted as reliable in the relevant scientific community.

As noted, a hearing on the petition was held on June 14, 2016 in the Circuit Court

for St. Mary’s County. At the hearing, the State did not challenge whether the DNA testing

requested by Appellant is employed by a method generally accepted within the relevant

scientific community. Rather, the focus of the hearing was whether there was a reasonable

probability that the testing requested has the scientific potential to produce exculpatory

evidence relevant to Appellant’s claim that he was not the individual who assaulted Ms. K.

On July 6, 2016, the Post-conviction Court issued an order denying Appellant’s

petition for DNA testing. The order was accompanied by a written opinion, which stated

in pertinent part:

As previously stated, the standard in CP § 8-201(d)[(1)](i) is that there must

be a “reasonable probability . . . that the DNA testing has the scientific

potential to produce exculpatory or mitigating evidence.” Because of the

7

highly speculative nature of what petitioner hopes to gain from DNA testing

of these items, this [c]ourt can see no possibility that a DNA test performed

on the items requested would exonerate Petitioner. Even if petitioner’s

DNA is not found on the items and other persons’ DNA is found, that does

not prove or even suggest that any of those other people committed this

crime, even if one of them turns out to be a convicted sex offender.

Here, there is no instrument that was used to commit the crime, and

therefore, no relevance to finding the DNA of random people on the items

Petitioner seeks to have tested. The [c]ourt need not “conduct a fishing

expedition to indulge every permutation” that Petitioner might imagine.

The Post-conviction Court continued:

In this case, it is noteworthy and even dispositive that, at trial, the victim

positively identified Petitioner as the perpetrator. She was able to give the

police a description of him and what he was wearing. She testified that she

got a good look at him because “[h]e was in my face quite a bit . . . I had

seen him earlier in the bar . . . I said that guy looks like a creeper because he

kept looking at me as we were dancing.” In addition, the victim identified

Petitioner for the jury and testified to identifying Petitioner in a photo array.

Trial counsel cross-examined the victim and she did not waiver in her

identification of Petitioner.

The judge distinguished cases where relief had been granted:

This is clearly different than Gregg where it was highly probative that the

killer had handled a gun which was the murder weapon and the DNA on the

gun would have a reasonable probability of producing exculpatory evidence

that would corroborate defendant’s claim that he was not the shooter. This

was especially true given the ambivalent evidence which did convict the

Petitioner. It is also different than Brown where the defendant was

challenging whether the crime had actually happened and wanted the items

tested to disprove it had. Here, there is no such probability that the testing

would produce exculpatory or mitigating evidence for the Petitioner.

(citations omitted).

On July 21, 2016, Appellant noted a direct appeal to this Court pursuant to § 8-

201(k)(6), and presents the following question on appeal:

Did the Circuit Court err when it denied Mr. Edwards’ Petition for Post-

8

Conviction DNA Testing, where a reasonable probability exists that the

requested testing has the scientific potential to produce exculpatory evidence

relevant to Mr. Edwards’ claim of wrongful conviction?

For the following reasons, we shall answer the Appellant’s question in the affirmative and

remand the case to the Post-conviction Court for to order testing.

DISCUSSION

Standard of Review

There is some dispute as to the appropriate standard of review. The State insists at

length that our review of the Post-conviction Court’s ruling is for an abuse of discretion.

We do not agree. Because we are asked to interpret the language in the post-conviction

DNA testing statute, and to determine whether the hearing judge applied the correct

standard of law in denying Appellant’s petition, our review is plenary.9 See Fuster v. State,

437 Md. 653, 671, 89 A.3d 1114, 1124 (2014) (“An appellate court reviews without

deference the legal standard that a trial court uses in ruling on a petition.”). See also, e.g.,

Howard v. State, 440 Md. 427, 434, 103 A.3d 572, 576 (2014).

The cases cited by the State in support of its version of the appropriate standard of

review for an abuse of discretion, do not support its argument on this record. Brown v.

State, 431 Md. 576, 66 A.3d 675 (2013); Washington v. State, 424 Md. 632, 37 A.3d 932

(2012); Arrington v. State, 411 Md. 524, 983 A.2d 1071 (2009). In each of the cases upon

which the State relies, we were asked to review the circuit court’s denial of a motion for a

9

Specifically, we shall review the statute to determine when and whether a post-

conviction DNA petitioner is entitled to DNA testing of evidence in the State’s possession

and the meaning of the terms “reasonable probability” and “exculpatory” under the statute.

9

new trial. By contrast, in the case before us, the Post-conviction Court concluded that the

sought after DNA testing could not yield results that would exonerate Appellant. The Post-

conviction Court effectively denied Appellant’s Petition as a matter of law.

Parties’ Contentions

On appeal, Appellant maintains that a reasonable probability exists that the testing

has scientific potential to produce exculpatory evidence relevant to Appellant’s claim of

wrongful conviction. Ms. K. told the jury that her attacker used her lighter and moreover,

photographs of the crime scene show a Forever 21 bag and a pack of cigarettes on the edge

of the passenger seat where the attacker sat before the assault. Appellant maintains that it

is likely that the perpetrator of the crime transferred epithelial cells onto the lighter when

he touched it and that it is also likely the perpetrator could have touched the cigarette pack

or Forever 21 bag given his proximity to those items.

Further, Appellant urges that the hearing judge applied the wrong standard in

denying the petition when the judge ruled that “the [c]ourt can see no possibility that a

DNA test performed on the items requested would exonerate the Petitioner.” Appellant

insists that the proper standard is not whether DNA testing would “exonerate" him or that

such testing would “prove” someone else committed the crime. Instead, Appellant

contends that the proper inquiry is whether a reasonable probability exists that the testing

has the scientific potential to produce exculpatory or mitigating evidence relevant to the

claim of wrongful conviction or sentencing. Appellant posits that this case turns upon the

meaning of exculpatory, which, he argues, sweeps more broadly than the term exonerating.

Appellant also argues that the inclusion of the terms “or mitigating” and “or sentencing”

10

in the statute show that the standard is one of exculpatory evidence and not exonerating

evidence. Finally, Appellant avers that the absence of his DNA on an item where one

would expect the perpetrator’s DNA, although not necessarily exonerating, is certainly

exculpatory to the extent that it would tend to establish that Appellant was not the person

that assaulted Ms. K. In other words, negative DNA results would satisfy the broader, less

stringent threshold for entitlement to DNA testing than the standard advocated by the State

and applied by the post-conviction court.

Urging that we affirm, the State avers that Appellant’s hoped-for outcome of DNA

testing would not be exculpatory. The State first notes that there is no evidence that the

assailant touched the Forever 21 bag and the cigarette pack, thus the absence of his DNA

on these items would in no way tend to exonerate him. The State explains that the testing

would reveal one of two things—either Appellant’s DNA is on the lighter or it is not—and

argues that neither is exculpatory. The State contends that the best result for Appellant is

that Appellant’s DNA is not on the lighter and notes that the jury was already told that

there was no DNA evidence in this case inculpating Appellant.

Crim. Proc. § 8-201

We agree with Appellant that the standard to be employed by a post-conviction court

in the analysis of a petition for DNA testing does not require the proponent to establish that

the results must, in all instances, exonerate the defendant. We also conclude that our

decision in Brown is, on this record, inapposite.

Maryland’s post-conviction DNA testing statute, which was enacted by the General

11

Assembly in 2001, is codified at § 8-201 of the Criminal Procedure Article.10 “Section 8-

10

Section 8-201 provides in relevant part:

§ 8-201. DNA evidence – Postconviction review.

***

(b) Filing of petition. -- Notwithstanding any other law governing

postconviction relief, a person who is convicted of a crime of violence under

§ 14-101 of the Criminal Law Article may file a petition:

(1) for DNA testing of scientific identification evidence that the State

possesses that is related to the judgment of conviction; or

(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.

(c) New trial. -- A petitioner may move for a new trial under this section on

the grounds that the conviction was based on unreliable scientific

identification evidence and a substantial possibility exists that the petitioner

would not have been convicted without the evidence.

(d) Findings requiring DNA testing. --

(1) Subject to subsection (e) of this section, 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.

(2) A court shall order a data base search by a law enforcement agency if

the court finds that a reasonable probability exists that the data base search

will produce exculpatory or mitigating evidence relevant to a claim of

wrongful conviction or sentencing.

***

12

201 entitles persons convicted of certain serious crimes to pursue DNA testing of physical

evidence that is in the possession of the State and might produce exculpatory or mitigating

evidence relevant to a claim of wrongful conviction or sentencing.” Simms v. State, 409

Md. 722, 727, 976 A.2d 1012, 1015–16 (2009). See also Md. Rule 4-703(2)(A).

The statute was enacted “in line with a nationwide trend to adopt post-conviction

DNA testing statutes designed to provide an avenue for the exoneration of the actually

(i) Disposition upon receipt of results. --

(1) If the results of the postconviction DNA testing are unfavorable to the

petitioner, the court shall dismiss the petition.

(2) If the results of the postconviction DNA testing are favorable to the

petitioner, the court shall:

(i) if no postconviction proceeding has been previously initiated by the

petitioner under § 7-102 of this article, open a postconviction proceeding

under § 7-102 of this article;

(ii) if a postconviction proceeding has been previously initiated by the

petitioner under § 7-102 of this article, reopen a postconviction proceeding

under § 7-104 of this article; or

(iii) on a finding that a substantial possibility exists that the petitioner

would not have been convicted if the DNA testing results had been known

or introduced at trial, order a new trial.

(3) If the court finds that a substantial possibility does not exist under

paragraph (2)(iii) of this subsection, the court may order a new trial if the

court determines that the action is in the interest of justice.

(4) If a new trial is granted, the court may order the release of the petitioner

on bond or on conditions that the court finds will reasonably assure the

presence of the petitioner at trial.

13

innocent.” Blake v. State, 395 Md. 213, 219, 909 A.2d 1020, 1023 (2006). We have stated

that the purpose of Crim. Proc. § 8-201 is to “facilitate the establishment of claims of actual

innocence for serious crimes.” Thompson v. State, 395 Md. 240, 252, 909 A.2d 1035, 1042

(2006).11

Under Crim. Proc. § 8-201, persons convicted of certain crimes of violence may file

a petition requesting “DNA testing of scientific identification evidence that the State

possesses that is related to the judgment of conviction.”12 Crim. Proc. § 8-201(b)(1).

“Scientific identification evidence” is defined in Crim. Proc. § 8-201(a)(5) as evidence that

(i) is related to an investigation or prosecution that resulted in a judgment of

conviction;

(ii) is in the actual or constructive possession of a law enforcement agency

or agent of a law enforcement agency; and

(iii) contains biological evidence from which DNA may be recovered that

may produce exculpatory or mitigating evidence relevant to a claim of a

convicted person of wrongful conviction or sentencing if subject to DNA

testing.

11

“The statute has undergone a number of amendments since its enactment in 2001,

and because we have discussed its legislative history on several occasions, we do not repeat

that discussion here.” Simms v. State, 409 Md. 722, 727–28, 976 A.2d 1012, 1016 (2009)

(citing Gregg v. State, 409 Md. 698, 708–12, 976 A.2d 999, 1004–07 (2009)). See also

Jackson v. State, 448 Md. 387, 395–401, 139 A.3d 976, 980–84 (2016) (discussing the

most recent amendments to Crim. Proc. § 8-201). The statute was most recently amended

by 2015 Md. Laws, ch. 369, § 1, which took effect on October 1, 2015, before Appellant

filed his petition for DNA testing. Accordingly, any reference made to Crim. Proc. § 8-

201 in this opinion is to the version of the statute current through the date of this opinion,

unless otherwise specifically noted.

12

Maryland Rules 4-701 et seq. govern post-conviction DNA testing procedures.

Maryland Rule 4-704 governs the contents of a petition for DNA testing.

14

Crim. Proc. § 8-201(a)(5).13 “Biological evidence” is defined as evidence that “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.” Crim. Proc. §

8-201(a)(2). The statute mandates that a court grant a petition for DNA testing if the court

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

with in the relevant scientific community.

Crim. Proc. § 8-201(d)(1).

Here, the parties do not disagree that the requested DNA test employs a method that

is generally accepted within the relevant scientific community. Hence, there is no dispute

that Crim. Proc. § 8-201(d)(1)(ii) is satisfied. At issue in this case is whether a reasonable

probability exists that the requested testing has the scientific potential to produce

exculpatory evidence relevant to the Appellant’s claim of wrongful conviction.

Again, in denying the petition, the post-conviction judge reasoned:

Because of the highly speculative nature of what Petitioner hopes to gain

from DNA testing of these items, this [c]ourt can see no possibility that a

DNA test performed on the items requested would exonerate Petitioner.

Even if Petitioner’s DNA is not found on the items and other persons’ DNA

is found, that does not prove or even suggest that any of those other people

13

All of the evidentiary items at issue in this case, the Forever 21 bag, the cigarette

pack, and the lighter, meet the statutory definition of “scientific identification evidence.”

Md. Code (2001, 2008 Repl. Vol., 2015 Supp.), § 8-201(a)(5). These items are related to

the investigation of Appellant to the extent that the police collected these items from the

scene of crime for processing. See generally, Wallace v. State, ___ Md. ___, ___, ___ A.3d

___, ___, 2017 WL 1422828 *8 (filed April 21, 2017).

15

committed this crime, even if one of them turns out to be a convicted sex

offender.

(Emphasis added). The theory of the court’s denial, that the proposed DNA analysis would

not exonerate Appellant, leaves no room for the broader reach of the statute as indicated

by the term “exculpatory.” The State argues that the hearing judge applied the appropriate

standard. On this point, the parties are in disagreement, specifically over the meaning and

application of the term “exculpatory.”

The term “exculpatory” as employed in the statute embraces a far broader scope of

relief than the “zero sum” standard characterized by the term “exonerate” and advanced by

the State and applied by the Post-conviction Court. The sought after testing of objects

described by Ms. K., most notably the cigarette lighter, have the “scientific potential to

produce exculpatory or mitigating evidence.” Nothing in the plain language of the statute

suggests that the testing results must “exonerate” a petitioner or “prove” that someone else

committed the crime.

Although the General Assembly did not define the word “exculpatory” in the statute,

we are able to discern the term “exculpatory” with its plain and ordinary meaning. See Ali

v. CIT Tech. Fin. Servs., Inc., 416 Md. 249, 262, 6 A.3d 890, 897–98 (2010) (“When the

Court can ascertain the Legislature’s intent from the plain meaning of the verbiage, the

Court need not delve deeper. . . . In seeking to apply the plain-meaning rule, it is proper to

consult a dictionary or dictionaries for a term’s ordinary and popular meaning.”). Black’s

Law Dictionary defines exculpatory as “evidence tending to establish a criminal

16

defendant’s innocence.” BLACK’S LAW DICTIONARY at 577 (7th ed. 1999). This is

consistent with the policy of the statute - to facilitate claims of actual innocence.

Our cases confirm this conclusion. In Gregg v. State, 409 Md. 698, 976 A.2d 999

(2009), we discussed § 8-201(d)(1) and noted that:

Given that the statute only requires a showing that the desired testing has a

reasonable probability that the DNA testing of the epithelial cells has the

scientific potential to produce relevant exculpatory or mitigating evidence,

the petition, on its face, satisfies that standard. Appellant was not required

to show that the outcome of his case necessarily would have been different,

had the jury been presented with the evidence he seeks to obtain through the

requested DNA testing. That is why the State’s argument on appeal, that the

evidence at trial “overwhelmingly” established Appellant’s guilt, does not

defeat the prima facie case that the petition makes for satisfaction of the

requirement set forth in § 8-201(c)(1).

Gregg, 409 Md. at 720, 976 A.2d at 1011 (emphasis added).

Our decision in Thompson v. State, 411 Md. 664, 985 A.2d 32 (2009), is also

instructive. The defendant in that case filed for post-conviction relief, asserting that the

results of DNA testing established that he had been convicted of rape, felony murder and

associated offenses in error. One issue before us was whether the “more liberal” standards

for the granting of a new trial should apply to Thompson’s case. 14 In 2008, the General

Assembly amended the DNA provisions of the Criminal Procedure Article by adding, inter

alia, the following standard for the post-conviction court to apply in assessing a motion for

a new trial:

A petitioner may move for a new trial under this section on the grounds that

the conviction was based on unreliable scientific identification evidence and

14

See 2008 Laws of Maryland, chap. 337, § 1, abrogated December 31, 2013. See

id., § 4.

17

a substantial possibility exists that the petitioner would not have been

convicted without the evidence.

Md. Code (2009 Supp.), § 8-201(c). We held that, although Thompson had filed for post-

conviction relief prior to the effective date of the amendment, January 1, 2009, the

appropriate standard for the post-conviction court to apply should be the above provision,

Section 8-201(c), as added in 2008. Thompson, 411 Md. at 683-84, 985 A.2d at 43. In a

footnote, we further commented on the appropriate standard, and this note is particularly

relevant to the case before us:

We note that this is in keeping with the standard employed by many

other jurisdictions. See, e.g., Bedingfield v. Commonwealth, 260 S.W.3d 805,

814-15 (Ky. 2008) (determining that DNA evidence that would “probably”

produce a different result was sufficient to warrant a new trial, and need not

explicitly exculpate the petitioner); People v. Jackson, 283 N.W.2d 648, 650

(Mich. Ct. App. 1979) (employing standard of whether new testing could

make a different result “possible” on retrial); Brewer v. State, 819 So.2d

1169, 1173 (Miss. 2002) (citation omitted) (stating that standard is whether

DNA evidence will “probably produce a different result”); Commonwealth

v. Reese, 663 A.2d 206, 209 (Pa. Super. Ct. 1995) (quoting statutory standard

that DNA evidence must “have affected the outcome of the trial”); State v.

Hicks, 549 N.W.2d 435, 439 (Wis. 1996) (explaining that different result at

trial not necessary if the court concludes that the “real controversy” was not

fully tried); In re Bradford, 165 P.3d 31, 33-34 (Wash. Ct. App. 2007) (using

“will probably change the result of the trial” standard in evaluating DNA

evidence).

Thompson, 411 Md. at 684 n. 10, 985 A.2d at 43 n. 10. Although we were concerned, inter

alia, with the “new trial” provision set forth in Section 8-201(c) (2009), the decision in

Thompson informs our analysis of the sum and substance of the term “exculpatory” and its

place in a remedial statute.

In Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008), cited with approval

in Thompson, the Supreme Court of Kentucky ruled that the defendant was entitled to a

18

new trial on a rape charge after newly discovered DNA test results ruled out the presence

of his DNA in sperm recovered from the victim’s rape kit. After surveying decisions from

other jurisdictions on the issue, the Kentucky high court elaborated:

It would seem that this Court has never thoroughly examined the exculpatory

effect of newly discovered DNA evidence in this context. However, many of

our sister jurisdictions, acknowledging the accuracy, effectiveness, and

implicit interests of justice inherent in DNA testing have recognized the

exculpatory effect that such evidence may have in post-conviction criminal

proceedings.

Bedingfield, 260 S.W.3d at 811. In securing Bedingfield’s conviction, the prosecutor had

emphasized that semen analyzed from the rape kit was crucial proof of Bedingfield’s

identity. A police lab technician, who could not prove Bedingfield as the source of the

semen, nevertheless prompted the “supposition” that he was in any event the perpetrator.

The lab technician’s analysis buttressed an already suspect circumstantial evidence case,

which would have been undermined by the precision of the later DNA test results. The

Kentucky Supreme Court’s conclusion as to the clarifying impact of the DNA testing

merits quotation at length:

Ultimately, the substantive exculpatory nature of the newly discovered DNA

evidence coupled with the blatant testimonial inconsistencies of the material

witnesses and the substantial impact which this newly discovered evidence

has upon said testimony, along with the fact that this evidence would

probably induce a different conclusion by a jury, all serve to warrant a new

trial to avoid a substantial miscarriage of justice.

***

For clarity's sake we emphasize: the presence of sperm which DNA testing

proves did not belong to Appellant does not exonerate him; however, the

presence of this new evidence does cast a long shadow and assuredly merits

consideration in the form a new trial. It cannot be overlooked that in

Appellant's initial trial, all other arguments were enhanced and corroborated

19

by the supposition that the sperm found belonged to Appellant. Indeed, this

theme was central to the Commonwealth's prosecution. Because the

technology was not available for Appellant to refute that claim, Appellant

was left to rely on his word against that of the Commonwealth. This new

evidence is substantial, if not pivotal, and we are inclined to believe that it is

precisely the type of evidence that is envisioned by the rule and that may

change the result if a new trial were granted.

Bedingfield, 260 S.W.3d at 814–15 (emphasis added) (statutory citation omitted).

The Bedingfield Court’s analysis of the “exculpatory effect” of the DNA evidence

applies with substantial force to our inquiry into the proper assessment of the term

“exculpate” as written in our statute.

The Kansas Supreme Court’s opinion in State v. Hernandez, 366 P.3d 200 (Kan.

2016), also helps to inform our analysis. Hernandez was convicted of raping and

sodomizing his daughter. Hernandez, 366 P.3d at 202. At trial, evidence showed that the

assaults took place on the victim’s bed and on the petitioner’s bed. Id. Evidence also

showed that the petitioner sometimes used condoms and sometimes did not. Id. During

the investigation of the crime, police recovered a sheet from the victim’s bed and bedding

from the petitioner’s bed, but neither item of evidence was tested for DNA at that time.

Hernandez, 366 P.3d at 203. After his conviction, the petitioner filed a petition seeking

DNA testing of the sheets and bedding. Id. Kansas’s post-conviction DNA testing statute

is similarly worded to our own, and provides that “[a] court shall order DNA testing

pursuant to a petition made under subsection (a) upon a determination that testing may

produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that

the petitioner was wrongfully convicted or sentenced.” KAN. STAT. ANN. § 21-2512;

20

Hernandez, 366 P.3d at 204. The trial court denied his petition and petitioner appealed to

the Kansas Supreme Court. Hernandez, 366 P.3d at 203.

The prosecution argued that the absence of Hernandez’s DNA on the evidence

“would not have changed the verdict.” Hernandez, 366 P.3d at 206. In rejecting the state’s

argument, the Kansas high court defined exculpatory as evidence that “tends to disprove a

fact in issue which is material to guilt or punishment.” Id. The court noted that evidence

can be exculpatory without being exonerating and that “[t]o be exculpatory evidence, it

need not definitively prove the petitioner’s innocence but only tend to disprove a disputed

material fact.” Hernandez, 366 P.3d at 208 (emphasis added). The Hernandez court’s

interpretation of the term “exculpatory” applies with equal force to the case before us. This

is consistent with the interpretation of this term by our intermediate appellate court. See

Jackson v. State, 207 Md. App. 336, 357, 52 A.3d 980, 992 (“[E]xculpatory evidence is

that which is capable of clearing or tending to clear the accused of guilt.”) (citations and

internal quotation marks omitted), cert. denied, 429 Md. 530, 56 A.3d 1242 (2012).

We thus hold that “exculpatory” under § 8-201(d)(1) means evidence that would

tend to clear the accused of guilt, or tend to establish his or her innocence. We further hold

that “exculpatory” under this provision does not require a petitioner to establish that the

result would have been different if the DNA results sought were known at the time of the

trial. Accordingly, we hold that the hearing judge erroneously applied the wrong standard

when she ruled that there was “no possibility that a DNA test performed on the items

requested would exonerate [Appellant].”

Recently, in Wallace v. State, this Court had the occasion to address the definition

21

of “scientific identification evidence” for purposes of the evidence retention provisions of

the Postconviction DNA testing statute. See Crim. Proc. §§ 8-201(a)(5), 8-201(j). In that

case, we examined the different thresholds that a petitioner must satisfy in showing the

State’s duty to preserve certain evidence, Crim. Proc. § 8-201(j), and in demonstrating

entitlement to DNA testing, Crim. Proc. § 8-201(d). Wallace, ___ Md. at ___, ___ A.3d at

___, 2017 WL 1422828 *7.

We concluded in Wallace that the correct legal standard for holding the State to the

obligation to preserve evidence was not stringent:

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. 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.”

Wallace, ___ Md. at ___, ___ A.3d at ___, 2017 WL 1422828, at *7 (footnote omitted).

We went on to hold in Wallace that the T-shirt in question did not qualify as

“scientific identification evidence” because there was “no possibility, or chance, that DNA

testing could have produced exculpatory or mitigating evidence. Wallace, ___ Md. at ___,

___ A.3d at ___, 2017 WL 1422828, at *9. By contrast, the articles described by Ms. K. in

the case before us, particularly the cigarette lighter, were not merely random items that

22

would be the subject of a “fishing expedition,” but potentially relevant material that may

satisfy the slightly higher threshold for demonstrating entitlement to DNA testing.

The State argues that the absence of Appellant’s DNA on the lighter does not

“prove” he was not the assailant because Appellant “was charged with sexual assault; he

was not charged with touching a lighter” and that “[a]ny assessment of the exculpatory

value of lighter-related evidence must be understood in that context—the lighter (unlike,

say, the murder weapon in Gregg) was of marginal relevance.” (emphasis added). This

contention confuses the concept of exculpatory evidence. The fact that the jurors were

informed, even repeatedly, that there was no forensic evidence linking Appellant with the

incident, does not detract from the fact that DNA testing might rule out the presence of

Appellant’s DNA on the items tested.

The State posits that our decision in Brown v. State, 431 Md. 576, 66 A.3d 675

(2013), is apposite. In that case we held that DNA test results showing an absence of the

defendant’s DNA on an assault weapon “did not contradict or undercut any information

presented to the jury at trial.” Brown, 431 Md. at 589, 66 A.3d at 683. In denying Brown’s

motion for a new trial, the post-conviction court in that case determined that negative

results from DNA testing did not undermine the prosecution’s case, because the jury heard,

at length, evidence that there was no forensic evidence linking Brown to the crime. We

affirmed.

We explained that, in the context of a motion for a new trial, the post-conviction

court “did not abuse its discretion in finding that the absence of Brown’s DNA on [the

23

evidence in question] did not provide a substantial possibility that the jury would have

reached a different conclusion with respect to Brown’s guilt.” Brown, 431 Md. at 589, 66

A.3d at 683. The distinction between Brown and the case before us is that Brown’s petition

was evaluated in the context of a motion for a new trial and the evidence of trial was such

that the post-conviction court was satisfied that, in light of the DNA evidence, Brown failed

to demonstrate a “substantial possibility that he would not have been found guilty if the

DNA evidence had been introduced at trial,” while the post-conviction court in the case

applied an incorrect legal standard. 431 Md. at 590, 66 A.3d at 683-84.

The State further posits that the absence of trace evidence only proves that there was

no trace evidence. The State claims that DNA cannot establish a negative, meaning that

although the presence of Appellant’s DNA on the lighter would tend to establish he was

the perpetrator, the absence of his DNA would not tend to establish that he was not the

perpetrator; the absence of a DNA match effectively proves nothing, according to the State.

The absence of Appellant’s DNA has the potential to exculpate Appellant to the

extent that it would tend to prove that he either did or did not use the lighter that Ms. K.

testified was used by the man who assaulted her. Where criminal agency is an issue, such

as in this case, evidence tending to prove or disprove that the accused’s DNA is present on

items that the perpetrator touched or may have come into contact with has a great potential

to exculpate. Thus, the State’s attempt to distinguish Gregg on the basis that the item to

be tested in that case was the instrument of the crime, is not dispositive with respect to all

24

cases of DNA testing.15 Although the absence of Appellant’s DNA on the lighter would

not conclusively prove that Appellant did not assault Ms. K., as the attacker may not have

transferred any trace DNA to the lighter, absolute certainty is not the standard.

In assessing whether there is a reasonable probability that DNA testing may produce

exculpatory or mitigating evidence, where the State has possession of an item that a

perpetrator allegedly touched, a court may take into account factors such as the nature of

the item (e.g., whether it is an instrumentality of the crime), the physical proximity between

where the item was located and where the crime occurred, and the temporal proximity

between when the perpetrator touched the item and when the crime occurred. Applying

these factors to the instant case, we conclude that Appellant has established that DNA

testing is warranted as to the cigarette lighter. Although the cigarette lighter is not an

instrumentality of the crime, the physical proximity between where the lighter was located

and where the crime occurred and the temporal proximity between when the perpetrator

touched the lighter and when the crime occurred are factors that weigh heavily in favor of

granting Appellant’s request. The perpetrator gained access to Ms. K.’s vehicle by asking

15

This is only true with respect to the cigarette lighter. Under our interpretation of the

DNA statute, Appellant would not be entitled to testing of the Forever 21 bag and the

cigarette pack. Appellant’s contention that the perpetrator “could have” transferred

epithelial cells due to his “proximity” to these items speaks to a mere possibility and is

insufficient to satisfy the reasonable probability standard. These items were items that the

perpetrator could have possibly or conceivably come into contact with, but the trial record

in this case contains no evidence that the perpetrator actually did come into contact with

these items. Unlike the cigarette lighter in this case, the absence of Appellant’s DNA on

these items would not tend to establish that he was not the perpetrator of this crime, as the

perpetrator of this crime was never alleged to or shown to have come into contact with

these items.

25

to borrow her lighter, and the crime occurred immediately after the perpetrator touched the

lighter. In sum, as discussed above, the standard is simply whether there is a reasonable

probability, or fair likelihood, that the testing has the potential to produce exculpatory

evidence, which in turn, is evidence that tends to disprove or negate a petitioner’s guilt.

CONCLUSION

The hearing judge incorrectly applied a more stringent standard that would require

Appellant to show that the DNA testing he seeks would exonerate him. Given the extant

record, we conclude that Appellant has established that DNA testing is warranted in light

of the proper standard set forth above. Accordingly, we shall vacate the order of the hearing

judge and remand the case to the Circuit Court to enter an order directing DNA testing on

the cigarette lighter. Crim. Proc. § 8-201(d). See Gregg v. State, 409 Md. at 721, 976 A.2d

at 1012 (remanding a post-conviction DNA case for circuit court to direct DNA testing).

Cf. Simms v. State, 409 Md. at 733-34, 976 A.2d at 1019–20 (holding petition facially

sufficient to warrant DNA testing; remanding for Circuit Court to direct State to respond

to petition).

JUDGMENT OF THE CIRCUIT COURT

FOR ST. MARY’S COUNTY VACATED.

CASE REMANDED TO THAT COURT

WITH DIRECTION TO ISSUE AN

ORDER FOR DNA TESTING

CONSISTENT WITH THIS OPINION.

STATE TO PAY THE COSTS.

26