Arey v. State

29 A.3d 986, 422 Md. 328, 2011 Md. LEXIS 581

• Court: Court of Appeals of Maryland
• Decided: September 22, 2011
• Docket: 104, September Term, 2010
• Status: Published

Opinions

GREENE, J.

In 1974, Appellant, Douglas Scott Arey, was convicted of first-degree murder and use of a handgun in the commission of a felony. In 2001, the Maryland Legislature passed the DNA Evidence—Postconviction Review Act,¹ becoming one of more than thirty states which now have similar statutes providing for postconviction scientific testing of evidence in cases where the petitioner was convicted of one or more statutorily enumerated crimes. See Blake v. State, 395 Md. 213, 218-19, 909 A.2d 1020, 1023 (2006) {Blake I). Section 8-201(b) of Criminal Procedure Article of the Maryland Code grants a right to a person convicted of one or more specified crimes to file a petition for DNA testing of evidence in the possession of the State that relates to a conviction. See Md. Code (2001, 2008 Repl.Vol.), § 8-201(b) of the Criminal Procedure Article.² On May 7, 2002, Arey filed a petition in the Circuit Court for Baltimore City for postconviction DNA testing of evidence related to his conviction. On April 21, 2010, the Circuit Court dismissed the petition, concluding that the evidence related to Arey’s conviction no longer existed. On July 26, 2010, Arey filed a timely appeal from that ruling directly to this Court pursuant to § 8-201(j)(6).³ We are asked to decide the following questions:

(1) Did the [Circuit Court for Baltimore City] err when it held that the State had performed a reasonable search for biological evidence relating to Mr. Arey’s conviction, and dismissed Mr. Arey’s request for the production of evidence?⁴

(2) Did the [Circuit Court for Baltimore City] err in denying Mr. Arey’s request for production and testing of biological evidence relating to his conviction the day after the State filed a pivotal affidavit, and thus, without giving Mr. Arey a reasonable opportunity to respond to the factual allegations contained in that affidavit prior to dismissal.

For the reasons stated below, we shall reverse the dismissal of Arey’s petition for DNA testing and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In May 1973, Baltimore City police officers contacted Arey and requested that he come into the station for questioning regarding the death of his former employer, Samuel Shapiro. After voluntarily submitting to questioning, Arey confessed to the police that he shot Shapiro and was charged with first degree murder and other related crimes. Among the evidence presented by the State at the original trial was a blue denim shirt which Arey had been wearing when he arrived at the police station for questioning. There was a small amount of blood on the right shoulder area of the shirt, which Arey claimed was his own blood. At a pretrial hearing, Arey asserted that he had been nervously picking at pimples on his face during interrogation and had wiped the blood on the back of his shirt. Detective James Russell of the Baltimore City Police Department testified that he had observed this occur. The State presented expert testimony from Robert S. Davis, the police department’s crime laboratory technician, who testified that scientific analysis had resulted in the finding that the shirt contained type AB blood, which matched the victim’s blood type, and did not match Arey’s type 0 blood. Arey’s counsel argued that the mixture of blood and bacteria from Arey’s pimples could have created an inaccurate blood type result if the bacteria contained antigens similar to those found in AB blood. Arey’s counsel attempted to demonstrate this effect at a pretrial hearing by applying a mixture of Arey’s blood and bacteria to the same shirt and submitting it for retesting. The blood type test, however, resulted in a finding of type 0 blood.

The results of the scientific analysis of the blood on Arey’s shirt were admitted into evidence, along with the testimony of Dennis Moon, who claimed to have assisted Arey with the murder, and the confession from Arey himself. In April 1974, Arey was convicted of first-degree murder and use of a handgun in the commission of a felony, and sentenced to life imprisonment plus ten years concurrent. The Maryland Court of Special Appeals affirmed the conviction on June 2, 1975.

On May 7, 2002, Arey filed a pro se petition in the Circuit Court for Baltimore City under § 8-201 of the Criminal Procedure Article, seeking postconviction DNA testing of evidence related to his convictions. The State produced an affidavit of a police sergeant averring that the evidence no longer existed after the sergeant searched the database and records of the Baltimore City Police Department’s Evidence Control Unit (ECU) and found no reference to the evidence. On the basis of the affidavit, the Circuit Court for Baltimore City dismissed the petition on July 17, 2006.

In 2007, we reversed and remanded, holding that the Circuit Court erred in dismissing the petition because the State’s affidavit was not sufficient to constitute a reasonable search for the evidence requested. See Arey v. State, 400 Md. 491, 503-04, 929 A.2d 501, 508 (2007) (Arey I). We pointed out that “[t]he State should have attempted to determine the proper protocol for handling and destroying evidence in Baltimore City in 1974. From this, the State might have discovered other locations to search for the requested evidence or determined more conclusively its fate.” Arey I, 400 Md. at 504, 929 A.2d at 508.

On remand, the Circuit Court held four separate hearings between November of 2007 and April of 2010. At the first hearing on November 19, 2007, the State contended that a large amount of evidence was damaged or destroyed when the basement of the Baltimore City Police Department building was flooded by Hurricane Isabel in 2003. The State claimed that it was in the process of securing an outside contractor to conduct an inventory of all of the evidence recovered from the flood. At the second hearing on February 19, 2009, Lieutenant Colonel Michael Andrew, the commanding officer of the Baltimore City Police Department’s ECU, testified that a contractor had inventoried 417,000 pieces of evidence recovered from the flood and found no evidence related to Arey’s case. Lt. Col. Andrew did testify, however, that a warehouse containing a mass of unidentifiable clothing damaged in the flood was not searched. At the third hearing on June 12, 2009, the State provided the logbook from the Baltimore City Police Department’s crime laboratory which showed that the evidence in Arey’s case was examined in May 1973 by someone with the initials “R.S.D.” The Circuit Court for Baltimore City ordered the State to ascertain the identity of R.S.D. and to provide Arey’s counsel with access to the logbook. On April 19, 2010, the State filed an affidavit from Robert S. Davis,⁵ the crime laboratory technician who testified at Arey’s original trial, which contained the following relevant averments:

(3) I do not recall the shirt, any work I may have performed upon it and I certainly have no recollection of where I might last have seen it or where it might be now.

(4) I do recall that I did not personally keep any physical evidence [i]n cases after testing was performed upon such evidence and that items, such as a shirt, were ordinarily returned to the Evidence Control Unit after laboratory work was completed.

(5) The small about [sic] of sample that I test would generally be consumed by the process of analysis. We retained no evidence in the laboratory when our work was complete.

On April 21, 2010, two days later, the Circuit Court dismissed the petition for DNA testing on the ground that the State conducted a reasonable search for the evidence. The court issued the following Order:

With the State’s submission of the affidavit of Ronald Davis, the ECU crime lab technician who handled Petitioner’s evidence in this case; and having held a final hearing on April 7, 2010;

The Court is satisfied that the State has done a reasonable search under § 8-201 of Maryland’s Criminal Procedure Article; and it is this 21st Day of April, 2010, hereby

ORDERED that Mr. Arey’s Motion for DNA Testing is DENIED.

Arey noted a timely appeal from that ruling to this Court.

DISCUSSION

When reviewing a Circuit Court’s ruling that the State’s search was reasonable under § 8-201, this Court will uphold findings of fact unless they are clearly erroneous. Blake v. State, 418 Md. 445, 460, 15 A.3d 787, 796 (2011) (Blake II). In his appeal to this Court, Arey first contends that the hearing judge erred in holding that the State performed a reasonable search for evidence relating to his conviction. According to Arey, the State’s search for evidence was not reasonable because it consisted only of a search by property number when the property number associated with Arey’s case was either undisclosed or unknown. More specifically, Arey argues that the State has failed to look through a large mass of “old clothing” for the shirt and has neglected to search for the blood slides used by the crime laboratory for blood type analysis. These issues, in our view, are best left for the hearing judge to resolve in the first instance, on remand, and we decline to address them. Secondly, Arey argues that the hearing judge erred in prematurely ruling on his petition for DNA testing by dismissing it the day after the State filed the pivotal affidavit of Mr. Davis.⁶

The State contends that the hearing judge’s finding that the State conducted a reasonable search for evidence is not “clearly erroneous” pursuant to the standard of review set forth in Blake II. According to the State, by submitting Davis’s affidavit, it has met its burden of conducting a reasonable search. Additionally, the State contends that it has searched all of the places where the evidence could possibly have been found including the ECU, original trial judge’s chambers, original trial courtroom, State’s Attorney’s office, court clerk’s office, and the court reporter’s office. While the property control number associated with the evidence in Arey’s case was never located, the State contends that other attempts were made to find the evidence using the criminal complaint number and the physical description of the shirt. Finally, the State maintains that it has sufficiently identified the evidence-handling protocol in 1974 by presenting testimony that officers would authorize the destruction of evidence after any direct appeals concluded. 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. Accordingly, we remand the case to the Circuit Court for Baltimore City for further proceedings.

The hearing judge erred in ruling on Arey’s petition for testing only two days after the State submitted an affidavit from a key witness. This Court’s decisions in Blake I and Horton v. State, 412 Md. 1, 985 A.2d 540 (2009) support the reversal of the hearing judge’s order in this case. In Blake I, we held that the Circuit Court erred in summarily dismissing Blake’s petition for testing before Blake had an opportunity to respond to the State’s allegation that the evidence related to Blake’s conviction was no longer in its possession. We stated:

Fundamental fairness requires that a petitioner be given an opportunity to respond and to challenge the State’s representation. When it is the State’s position that the evidence sought to be tested no longer exists, the circuit court may not summarily dismiss the petition requesting DNA testing. The court must give a petitioner notice of and an opportunity to respond to the State’s allegation. A petitioner has a right to notice and opportunity to contest the State’s representation that the evidence is unavailable.

Blake I, 395 Md. at 228, 909 A.2d at 1028.

In addition, we held that Blake’s rights to due process entitled him to notice of the court’s impending ruling and an opportunity to respond. We concluded that:

Appellant had a liberty interest at stake, and was, at a minimum, entitled to notice of the impending action, even if he did not have the right to an oral hearing. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). Consequently, the failure of the Circuit Court to provide any notice to appellant that the State had filed the motion to dismiss and that the court intended to rule upon it, and its dismissal of the petition without affording appellant any opportunity to respond, violated his rights to due process.

Blake I, 395 Md. at 230, 909 A.2d at 1030 (emphasis in original). Similar to the appellant in Blake, Arey was not given adequate opportunity to respond to the affidavit before the hearing judge dismissed his petition. Arey’s due process rights entitled him to notice and a reasonable opportunity to respond to the averments in Davis’s affidavit before a ruling was made.

In Horton, the hearing judge dismissed Horton’s petition under § 8-201 for DNA testing of evidence related to his conviction on the ground that the evidence did not exist. Horton, 412 Md. at 3, 985 A.2d at 541. We held that the Circuit Court erred in dismissing Horton’s petition for DNA testing two days after the State made available a document authorizing destruction of the evidence related to Horton’s conviction, and less than one month after the State filed affidavits, because the petitioner did not have a reasonable amount of time to examine the document or to respond to the affidavits by arranging for depositions or interviews with the affiants. Horton, 412 Md. at 17-18, 985 A.2d at 549-50. We reversed the dismissal despite the fact that the State in Horton had recovered a the document authorizing destruction of the evidence related to Horton’s conviction, documentation which is lacking in Arey’s case. See Horton, 412 Md. at 12-13, 985 A.2d at 546-47. Like Horton, Arey’s counsel expressed a desire to interview the State’s affiant, Robert S. Davis, and was not afforded a reasonable opportunity to arrange for his interview or to respond to the State’s representations when the trial judge dismissed the petition within two days of the State’s filing.

The State maintains that continued questioning of Davis will not reveal any further information regarding the location of the DNA evidence. We reject that argument as a bar to Arey’s opportunity to respond. The State contends that it is unclear whether the blood slides were ever marked as evidence or held in the ECU. The record before us, however, does not provide any indication of the procedure for the storing or disposing of slides. Even though the 2007 affidavit from the crime laboratory supervisor avers that the slides were not found in a hand search of the crime laboratory, the State subsequently was able to find a notation regarding the analysis of evidence for this case in the laboratory’s log book with the initials of Robert S. Davis. Davis’s affidavit indicates that evidence was not kept in the crime laboratory after testing was complete and that the small amount of blood was generally “consumed” by testing, but it is still unclear what protocol existed for the disposal of the blood slides made for analysis.

Given the opportunity to interview Davis, Arey’s counsel may be able to obtain information about the crime laboratory protocol that could shed light on the possible location of the evidence. Davis may be able to provide a more detailed account of the procedures actually followed at the time of trial such as whether slides were disposed of once analysis was complete, whether slides were stored in the freezer, or whether there was a procedure in place for slides in those situations where the blood was not completely consumed by the process of analysis. While the possibility exists that no further information would come from an interview with Davis, Arey still must be given the opportunity to probe, challenge, or otherwise respond to the statements in the affidavit before a decision can be rendered.

We consider the case of Blake II where this Court affirmed the hearing judge’s dismissal of a petition for DNA testing. See Blake II, 418 Md. 445, 15 A.3d 787. While several of the hearings for the two petitioners were held jointly and the circumstances surrounding Blake’s petition were similar in some respects to Arey’s, there exists a significant difference between the two cases. At the final hearing for Blake’s petition, Blake’s counsel explicitly stated that once the State submitted the final requested information, counsel did not “have any further requests of the State____” Blake II, 418 Md. at 458-59, 15 A.3d at 795. On the contrary, Arey’s counsel expressly stated that he still wished to speak -with Davis to attempt to find out more information about the protocol followed in the 1970’s. At the final hearing on April 7, 2010,⁷ counsel for Arey stated:

I’d love to have the opportunity to interview him____Specifically what I want, if it were up to me and I were the State, what I would do is I would have RSD come in and on the record talk to him about the protocols that were found [sic].... Now if he doesn’t remember specifically handling this, which I think is likely, he will remember what the protocols were back then, I would hope____ I think Mr. Davis would be a place to start who could give us information of the best places to look. I mean, once we get that information if he has it, I mean maybe he doesn’t remember anything, but we don’t know. And the whole point of this, I believe, is for the State ... to be able to say with certainty, what they’re saying. They’re saying the evidence doesn’t exist. And my question is how do you know that____[W]hy don’t we ask people who might have seen it.

In accordance with this Court’s decisions in Blake I and Horton, the hearing judge should not have dismissed the petition by ruling on it two days after the State provided an affidavit from Mr. Davis, the retired laboratory technician, without providing the defendant “an opportunity to respond and to challenge the State’s representation.” Blake I, 395 Md. at 228, 909 A.2d at 1028. Although the State has taken considerable steps to conduct a reasonable search for the evidence in this case, the petition for testing should not have been dismissed, at least, until Arey had an opportunity to respond to the State’s most recent affidavit. Therefore, we reverse and remand this case to the Circuit Court for further proceedings.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY IS REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

HARRELL, J., Concurs.

1 . Chapter 418 of the Acts of 2001.

2 . Unless otherwise specified, all statutory references are to Md.Code (2001, 2008 Repl.Vol.), § 8-201 of the Criminal Procedure Article. Section 8-201 provides in pertinent part:

(b) Filing of petition.—Notwithstanding any other law governing postconviction relief, a person who is convicted of a violation of § 2-201, § 2-20'4, § 2-207, or §§ 3-303 through 3-306 of the Criminal Law Article may file a petition for DNA testing of scientific identification evidence that the State possesses as provided in subsection (i) of this section and that is related to the judgment of conviction.

(c) Findings requiring DNA testing.—Subject to subsection (d) of this section, a court shall order DNA testing if the court finds that:

(1) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and

(2) the requested DNA test employs a method of testing generally accepted within the relevant scientific community.

3 . Section 8—201(j)(6) allows an appeal to the Court of Appeals from an order entered under certain subsections of the statute.

4 . Because we hold that the hearing judge ruled prematurely on Arey's petition, as Arey was not provided an adequate opportunity to respond to the affidavit, we decline to address the first issue with regard to the reasonableness of the search. Instead, we shall remand to the Circuit Court for further proceedings.

5 . The initials R.S.D. caused some confusion at previous hearings in this case, with the parties often referring to a "Ronald S. Davis,” when it was "Robert. S. Davis” who gave the averments and who testified at Arey's original trial. In the order dismissing the petition, the Circuit Court incorrectly referred to the affiant as Ronald S. Davis.

6 . As noted, supra, the affidavit was filed on April 19, 2010 and the trial judge dismissed the petition on April 21, 2010, two days after receiving the affidavit, rather than one day, as Arey asserts.

7 . At this hearing, the judge ordered the State to secure an affidavit from Mr. Davis to be filed by April 19, 2010.