Blake v. State

• Decision Date: 24 October 2006
• Docket Number: No. 88, September Term, 2005.,88, September Term, 2005.
• Citation: 395 Md. 213,909 A.2d 1020
• Parties: George E. BLAKE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1020

909 A.2d 1020

395 Md. 213

George E. BLAKE v. STATE of Maryland.

No. 88, September Term, 2005.

Court of Appeals of Maryland.

October 24, 2006.

Michael R. Malloy, Assistant Public Defender (Nancy S. Forster, Public Defender, on brief) of Baltimore, for appellant.

Shannon E. Avery, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, for appellee.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

George E. Blake was convicted in 1982 of first degree rape and first degree sexual offense. On December 1, 2004, he filed a petition in the Circuit Court for Baltimore City pursuant to Md.Code (2001, 2006 Cum.Supp.) § 8-201 of the Criminal Procedure Article,¹ requesting an evidentiary hearing and DNA testing of scientific evidence used by the State at his trial in January 1982. On May 17, 2005, the Circuit Court summarily dismissed the petition. This case requires us to address the procedures a circuit court must follow before it denies a petition for postconviction DNA testing pursuant to § 8-201 on grounds that the evidence the petitioner has asked to be tested no longer exists. We shall reverse.

I.

In January 1982, Blake was tried and convicted in the Circuit Court for Baltimore City on the charges of first degree rape and first degree sexual offense. He was sentenced to two consecutive life terms without the possibility of parole. Evidence collected from the victim included pubic hair samples and combings, vaginal swabs, and a blood sample. An examination by the Maryland crime laboratory revealed intact, non-motile spermatozoa on the vaginal swab samples.

On December 1, 2004, appellant, George E. Blake, filed this petition in the Circuit Court for Baltimore City pursuant to § 8-201, requesting DNA testing of evidence used by the State at his trial in January 1982. On January 21, 2005, the State filed a motion to dismiss the petition and, on May 17, 2005, filed a supplemental motion to dismiss, stating that the evidence had been destroyed well before October 1, 2001. The State's certificate of service of the supplemental motion to dismiss was also dated May 17, 2005. The supplemental motion included two attachments. The first was a letter from the Assistant State's Attorney to Lt. Sandra Joyce of the Baltimore City Police Department, Special Investigations, requesting the officer consult with the Evidence Control Unit of the Baltimore City Police Department and determine whether there was any evidence preserved relating to Blake's case. The second attachment was a memorandum directed to Major Frederick Taber from Sgt. Charles Morgan, stating that "[t]he Evidence Control Section was checked by the undersigned, and there was no Evidence found for that case."

On May 17, 2005, the same day the State filed the supplemental motion to dismiss, the trial court summarily dismissed appellant's petition without holding a hearing or otherwise giving appellant an opportunity to respond to the State's dispositive motion. Appellant then noted an application for leave to appeal to the Court of Special Appeals, which transferred the appeal to this Court pursuant to Md. Rule 8-132 on grounds that the appeal should have been noted directly to this Court.²

II.

Appellant raises three issues on appeal. First, he argues that the trial court dismissed his petition improperly because it did not have an adequate factual record before it from which to conclude that the State no longer possessed the evidence appellant asked to be tested, and further that he was entitled to a hearing to resolve the factual dispute over the existence of the evidence. Second, appellant alleges that the Circuit Court erred in denying him appointed counsel for proceedings related to his post-conviction petition for DNA testing.³ Finally, appellant contends that the two mandatory life sentences without parole he received are illegal.

The State contends that an evidentiary hearing is not required because the plain language of § 8-201 does not require an evidentiary hearing, and therefore, the Circuit Court was permitted under the statute to dismiss appellant's petition without holding a hearing. As to the right to counsel, the State contends that there is no right to counsel under § 8-201. Finally, on the illegal sentence issue, the State argues that we should not address this issue because it was previously litigated and abandoned by appellant on his direct appeal.

III.

Maryland is among the many states in this country that have enacted post-conviction DNA testing statutes.⁴ Section 8-201 was enacted in Maryland in 2001, in line with a nationwide trend to adopt postconviction DNA testing statutes designed to provide an avenue for the exoneration of the actually innocent. In 1994, New York was the first state to adopt a postconviction DNA testing statute. N.Y.Crim. Proc. Law § 440.30(1-a) (2006). Illinois soon followed in 1998. See 725 Ill. Comp. Stat. 5/116-3(c)(1) (2006) (permitting testing only if "the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence . . ." (emphasis added)). Within three years after the enactment of § 8-201, Maryland was one of thirty-two states to have enacted statutes providing for some form of postconviction DNA testing.

Continuing this trend Congress enacted the Innocence Protection Act of 2004, Pub.L. 108-405, Title IV, § 401 et seq. (2004), which provides for postconviction DNA testing of prisoners convicted under federal and certain state laws. See 18 U.S.C. § 3600(a). Aside from the title, the Innocence Protection Act makes clear that its principal purpose is exoneration of the actually innocent by requiring an applicant for postconviction DNA testing to assert under penalties of perjury that the he or she is actually innocent of the conviction challenged through DNA testing. See id.

A broad approach to the future of DNA evidence and recommendations for handling postconviction DNA testing requests were addressed in a report by the National Commission on the Future of DNA Evidence, a commission created in 1998 by the National Institute of Justice ("NIJ")⁵ at the request of Attorney General Janet Reno. The National Commission on the Future of DNA Evidence was chaired by Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court, and its members included a number of prominent forensic scientists, legal academics, law enforcement officials, elected public officials, and legal practitioners.

The report from the Commission, entitled POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS, National Institute of Justice, National Commission on the Future of DNA Evidence, September 1999, http://www.ncjrs. org/pdffiles1/nij/177626.pdf ("1999 NIJ Report"), set out proposed guidelines for analyzing cases in which DNA evidence is presented. As a backdrop to our discussion, it is helpful to look briefly at some of the relevant recommendations contained within the report. The report groups requests for post-conviction DNA testing into five broad categories and sets out a framework for analyzing requests of DNA testing as follows:

"Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing.

Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner's claim of innocence, but reasonable persons might disagree as to whether the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence.

Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will be inconclusive. Future developments may cause such a case to be reassigned to a different category.

Category 4. These are cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is frivolous. In these cases, prosecutors and defense counsel should generally agree that no testing is warranted."

Id. at xiii-xiv. The Commission recognized that "[f]inding the evidence is the most difficult part of the process," id. at 45, and cautioned prosecutors against concluding too hastily that evidence sought by an inmate no longer exists. The report notes that "[m]any times all parties believe that the evidence has been destroyed, when in fact it has not." Id. The report states as follows:

"If, from initial contact with the investigating officer or review of case files, it appears that evidence suitable for DNA analysis was never collected, or has since been destroyed, it may prove impossible to continue with the rest of this guideline. . . . However, no final decision or notification should be made until it has been carefully verified that evidence did not or does not still exist."

Id. at 36 (emphasis added).

The report recommends that the searcher for evidence should check the most likely places where the evidence may be found, and suggests the following locations:

"Police department evidence or property rooms. Evidence is often found here if the evidence was never tested or it was sent to the State crime laboratory, which then returned it.

Prosecutor's office. Evidence is often found here when it has been introduced at trial.

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