Horton v. State

Dissenting Opinion by HARRELL, J., which CATHELL, J., joins.

I dissent. I would conclude that the State conducted a reasonable search for the possible DNA-containing evidence, under the circumstances of this case, and affirm the judgment of the Circuit Court for Montgomery County.

The search for testable DNA evidence in the present case met the standard of a reasonable search set forth in Blake v. State, 395 Md. 213, 909 A.2d 1020 (2006) and Arey v. State, 400 Md. 491, 929 A.2d 501 (2007). In Blake, we established the appropriate burdens of proof when the State contends that the requested evidence no longer exists. When the State seeks to have a petition for DNA testing dismissed on the ground that the requested evidence no longer exists, the burden is on the State to establish that the evidence no longer exists. 395 Md. *19at 232, 909 A,2d at 1031. The burden is so placed because “the State gathered the evidence and was the custodian of the evidence. The information as to the location of the evidence and the manner of its destruction would not be within the knowledge of an inmate.” Id. “At a minimum, a motion to dismiss a postconviction DNA testing petition on grounds that testing evidence does not exist should be supported by an affidavit before the court may grant the motion.” Id. at 233, 909 A.2d at 1032.

Although “when an inmate files a petition for postconviction DNA testing, the State should make an extensive search for the evidence,” Blake, at 232, 909 A.2d at 1031, we explained in Arey that the extent of the required search is measured against a reasonableness standard. See Arey, 400 Md. at 504, 929 A.2d at 508 (“[A] court should not conclude that evidence no longer exists until the State performs a reasonable search for the requested evidence.”). This standard requires the State “to check any place the evidence could reasonably be found, unless there is a written record that the evidence had been destroyed in accordance with then existing protocol.” Id. at 503-504, 929 A.2d at 508. “Once the State performs a reasonable search and demonstrates sufficiently a prima facie case, either directly or circumstantially, that the requested evidence no longer exists, the State will have satisfied its burden of persuasion.” Id. at 505, 929 A.2d at 509.

If the State satisfies its burden, “[t]he burden of production then shifts to the petitioner to demonstrate that the evidence actually exists.” Id. In Blake, we held that an “unsworn, unverified memorandum” was insufficient to sustain the State’s burden of proof as to destruction. 395 Md. at 231-32, 909 A.2d at 1031. In Arey, the State filed an affidavit of the police officer in charge of the Evidence Control Unit (the “ECU”). 400 Md. at 499, 929 A.2d at 505-506. The affidavit asserted that the officer had searched the ECU database and ECU forms on file, but was unable to find the requested evidence or any forms that referenced the requested evidence. Id. at 499, 929 A.2d at 506. Therefore, the officer concluded that the requested evidence no longer existed. Id. We held *20that this search also was insufficient. Id. at 503, 929 A.2d at 508.

The Majority opinion here concludes that the State did not conduct a reasonable search for several reasons, although conceding that the search here “undoubtedly went several steps beyond the searches conducted” in Blake and Arey. (Maj. op. at 15, 985 A.2d at 548). The State conducted multiple searches in various locations. A search of the Montgomery County Crime Laboratory failed to uncover any evidence. A search of the various computer programs maintained by the Montgomery County Police Department (the “MCPD”) to catalog physical evidence and several physical searches of the Central Property/Evidence Unit and Police headquarters failed to yield any leads. The State was also unable to find any evidence after searching both the State’s Attorney’s and the Circuit Court’s files in Petitioner’s underlying case. Finally, a Suburban Hospital (the “Hospital”) employee conducted a physical search of the Hospital, but failed to find any evidence related to Petitioner’s case. The State found, however, a police document indicating that the evidence had been authorized for destruction in 1986.

The Majority opinion concludes, under Arey and despite these extensive searches, that the Circuit Court should have required the State to identify the protocols for handling and destroying evidence in Montgomery County in 1982 and subsequent years (Maj. op. at 17, 985 A.2d at 549). I do not read Arey to require such a showing in every case. In Arey, we held that the Circuit Court erred in dismissing the petition based on a police officer’s representation in an affidavit that “because he checked the ECU’s database and forms on file, it was reasonable to conclude that the evidence no longer exists.” 400 Md. at 502, 929 A.2d at 508. That affidavit was the only basis in Arey for the State’s motion to dismiss the petition for DNA testing.1 Id. at 499, 929 A.2d at 506. There was no indication that the evidence had been authorized for destruc*21tion. The State also did not search the crime laboratory. We noted that, “[t]he evidence in this case had been tested by a laboratory; slides possibly had been made.” Id. at 503, 929 A.2d at 508. Because the State did not conduct a reasonable search, we held that “the State should have attempted to determine the proper protocol for handling and destroying evidence in Baltimore City in 1974.” Id. at 504, 929 A.2d at 508. Knowledge of the proper protocol might have helped the State

discover[ ] other locations to search for the requested evidence or determined more conclusively its fate. At a minimum, a reasonable search in the instant case wTould have required the State to look in the crime lab referred to in Detective Russell’s testimony, if the lab is still in existence, for any slides used to test the blood evidence used against appellant or for pieces of the clothing he requested; the property room if it was different from the ECU; and because the testimony at trial was that the evidence had been stored in the Judge’s chambers, as unlikely as it is that it would be there after all these years, an inquiry as to that location.

Id. at 504, 929 A.2d at 508-509.

In Horton’s case, the police conducted multiple physical searches of locations where the evidence might be located, in addition to searching multiple evidence/property databases and the crime laboratory. Furthermore, the trial court ordered the Hospital to search for any evidence it might have. No evidence was found. The State presented two signed affidavits asserting that the State no longer had any evidence relating to Petitioner’s 1983 conviction. The first affidavit was made by Karolyn Leclaire Tontarski, a forensic scientist formerly in the Forensic Biology Unit of the Montgomery County Crime Laboratory. The second affidavit was made by Arthur D. Hanopole, a Supply Technician III in the Supply and Central Property Unit of the MCPD. In her affidavit, Tontarski stated that “[ijn 1982, no stained portions of items were retained in the Crime Laboratory.” Nevertheless, she conducted a search of the Forensic Science Biology Unit evidence vault. Her search confirmed that the laboratory did *22not possess any physical evidence related to Petitioner’s conviction.

In his affidavit, Hanopole detailed the numerous searches he conducted for evidence related to Petitioner’s conviction. First, he conducted a computer search of the MCPD’s Quetel Evidence System (the “System”). He explained in his affidavit that the System, in place since September 1999, is “intended to track all physical evidence and. property maintained by the Central Property/Evidence Control Unit of the [MCPD].... ” and only contains pre-1999 evidence “if an item of evidence was moved from one location to another after the Quetel Evidence System was put in place.” The underlying rape and other crimes for which Petitioner was convicted occurred on 29 September 1982. His trial took place in 1983. Thus, the System would only contain evidence related to his conviction if the evidence had been moved to another location. Hanopole did not find a record of any evidence from Petitioner’s case in the System.

Next, he searched the 1982 handwritten log that, as asserted in his affidavit, contains a record of “all ... evidence received by the Central Property/Evidence Unit ... in the year of 1982.” As noted previously, the underlying rape and other crimes for which Petitioner was convicted occurred in 1982. In the log, he found an entry reflecting that the evidence from Petitioner’s case was assigned the reference number R.247665 when the Unit received the evidence. He was unable, however, to find any other paper file or computer entry referring to the designation R.247665.

After an Assistant State’s Attorney advised Hanopole “that there existed a copy of a document addressed to Central Property, Police Headquarters, which bore the designation R.247665 and the signature of Officer J. Hennesey, and which specified that the evidence in R.247665 could be destroyed,” he searched the “Closed 2: Table” database and found a reference there to R.247665. He stated in his affidavit that it was his understanding that a group of police officer candidates created the “Closed 2” database on 24 October 2003, while *23reviewing boxes of 526 Forms being sent to archives and that the 526 Forms that they reviewed that day “were for cases in which the evidence had been destroyed.” He explained that a “526 Form is a Central Property/Evidenee Unit form that reflects receipt of property by the Central Property/Evidenee Unit.” Even though all evidence at the Central Property/Evidence Unit was scanned into the Quetel Evidence System in 2006, Hanopole and a co-worker conducted a physical search of the Central Property/Evidenee Control Unit’s storage area on 9 July 2007. They “started at opposite ends of the storage area and each went shelf-by-shelf to the other end looking at every box to determine whether if [sic] bore the designation R.247665.” Neither found any relevant evidence.

Finally, on 23 August 2007, Hanopole stated that he “physically searched a storage area behind Police Headquarters that is referred to as ‘the shed.’ ” The only evidence in that location was related to cases from 1995 or later, with the exception of evidence from one 1975 case. Again, he did not find any evidence related to Petitioner’s conviction.

The State also conducted a search of the State’s Attorney’s Office’s and the Circuit Court for Montgomery County’s files from Petitioner’s case. The State’s file did not contain any physical evidence from Petitioner’s case. The Circuit Court’s file contained letters dated 3 December 1984 to Petitioner’s counsel and counsel for the State advising the parties that they had thirty days in which to arrange to pick up their respective trial exhibits. The letter states that the Clerk “shall dispose of them in such a manner as may be appropriate,” unless retrieved. The file also contained a receipt indicating that a “Sergeant Thomas Kestel” retrieved the State’s evidence on 20 December 1984. The State also asserted, in its Response to Request Dated June 15, 2007, that Police Officer III William L. Bickle, the current Evidence/Property Manager of the MCPD, had a conversation with retired Detective Hennessey, the officer who signed the Form 526, in which he explained “that it was the practice at the time he approved the destruction of the physical evidence maintained by the Central Property Unit in the Horton case to authorize destruction of *24evidence in a non-capital case once the direct appeal process in a case was concluded.”2

In my view,' the multiple searches in various locations demonstrate that the State met its burden to conduct a reasonable search and presented affidavits in support of its assertion that the evidence no longer exists. These were not mindless, “make work” labors, but carefully considered and targeted forays. Therefore, the State should not have to identify the protocol for handling and destroying evidence in Montgomery County in 1982 and subsequent years, as required by the Majority opinion in its too generous application of the statute and cases.

Second, the Majority opinion opines that the search was insufficient because the search for DNA evidence did not exhaust the list of locations where evidence might be found as enumerated in Blake and Arey (Maj. op. at 7, 17, 985 A.2d at 543, 549). The Majority opinion asserts that “an appropriate search should include certain most likely places, including police evidence or property rooms, the prosecutor’s office, state and local crime laboratories, hospitals, defense investigators, courthouse property rooms, offices of defense counsel, independent crime laboratories, clerks of court and court reporters.” (Maj. op. at 7, 985 A.2d at 543). Judged by this statement, the Majority, apparently, foretells that it would hold that, in every case, the State is required to search all of those locations, regardless of whether there is any indication in the record to suggest that there is any likelihood that evidence might be found in such a location or locations.

Arey does not require that each of its enumerated locations be searched in every case. Arey requires only a search of locations where the record indicates relevant evidence reasonably is likely to be found. The places enumerated in Arey were only suggestions of possible locations to be searched, not a mandatory scavenger hunt list. For example, here the State *25did not search the trial judge’s chambers (Maj. op. at 17 n. 5, 985 A.2d at 549 n. 5). Although, as the Majority opinion notes, evidence found in the trial judge’s chambers in the case of Kirk Bloodsworth led to the discovery of exonerating DNA evidence (Maj. op. at 6-7, 985 A.2d at 543-44), we never have held that a search of the trial judge’s chambers is required in every case. In Arey, we opined that the State should search the trial judge’s chambers because there was testimony that the evidence was stored there during the underlying trial. 400 Md. at 504, 929 A.2d at 509. There is no such evidence in the record in the present case. The State in the present proceeding has searched all places the evidence reasonably might be found and satisfied its burden as articulated in Blake and Arey.

The Majority opinion explains further that the search was not reasonable because the search at the Hospital was not exhaustive (Maj. op. at 17, 985 A.2d at 549). It bases this conclusion on two rationales. First, the Majority apparently agrees with Petitioner’s argument that the court should have allowed him to depose or interview an employee from the Hospital’s microbiology department. Petitioner alleges that his counsel spoke with a former employee of the Hospital’s histology department, following Horton’s deposition of the Hospital’s designated legal representative.3 He alleges that the former employee stated that, if the hospital had performed a test on the victim for sexually transmitted diseases, the microbiology department, not the cytology or histology departments, would have processed the results and may have retained the tested specimen(s). The former employee did not know whether such a test had been performed on the victim. Because the Hospital’s representative only testified with regard to the cytology and histology departments, Petitioner argued that he ought to be able to interview someone from the microbiology department. The Majority points out that, in Arey, the Petitioner “suggested another possible location for *26the requested evidence, namely the trial judge’s chambers, where the trial transcript showed that the evidence had been stored____” (Maj. op. at 7, 985 A.2d at 543). Here, unlike the evidentiary-backed suggestion in Arey that evidence might be in the trial judge’s chambers, there is no mention in the record in this case that the hospital performed any such tests on the victim. Furthermore, although Petitioner’s counsel may have spoken to the former employee after the deposition of the Hospital representative, Petitioner had the opportunity to depose a Hospital representative. We are not obliged to permit another interview or deposition of someone else based on the unsupported theory that some unidentified employee might know something about evidence that might exist.

The second ground upon which the Majority opinion props up its conclusion that the search at the Hospital was not exhaustive is the trial court’s refusal to order the State to provide the Hospital with the victim’s social security number (Maj. Op. at 7, 985 A.2d at 543). Petitioner requested the victim’s social security number so that the Hospital could perform a second search for the victim’s medical records. It is not clear from the record specifically how the social security number would aid the hospital in better searching for evidence when a search using the victim’s name and date of birth yielded no evidence. There are substantial privacy issues related to this request and it was reasonable for the trial court to deny Petitioner’s request, especially when a search using the victim’s name and date of birth failed to uncover any evidence relating to Petitioner’s conviction.

Finally, the Majority opinion determines that “the petitioner and his counsel were not given an adequate amount of time to examine and investigate the ‘Form 526’ and the documents referred to in the affidavit of Hanopole, as well as an opportunity to question the him.” (Maj. op. at 17, 985 A.2d at 549). Petitioner, however, had approximately four years to interview the one affiant, Tontarski. She stated in her affidavit that, in a letter dated 2 December 2002, she informed Erin E. Murphy, a student at the Georgetown University Law Center, who was assisting the Mid-Atlantic Innocence Project (the “Inno*27cence Project”) with its investigation of Petitioner’s case, that the paperwork in the laboratory’s file indicated that the evidence related to Petitioner’s conviction “was signed over for destruction on March 17, 1986 once it was determined that all appeals had been exhausted and the case was considered closed.” The letter and Tontarski’s affidavit state that she turned over all documents in the laboratory’s file to the Innocence Project, and “specifically the laboratory reports, bench notes, and chain of custody/destruction documents.” According to Petitioner’s brief, the Innocence Project assisted Petitioner in obtaining his present counsel. Petitioner does not assert that he did not have knowledge of this letter. Moreover, counsel for the State discussed the letter at the 18 June 2007 hearing, at which Petitioner was represented by counsel. Although, as noted by the Majority opinion, it is unknown whether the “Form 526” was among the “custody/destruction documents” that Tontarski turned over to the Innocence Project, (Maj. op. at 17-18, 985 A.2d at 549), it is undisputed that Petitioner had knowledge of the fact that the paperwork in the laboratory file indicated that the evidence in his case had been authorized for destruction. He could have, upon receipt of the letter, or at any other time in the intervening four years, interviewed or requested to depose Tontarski. Petitioner took neither course. From this, I conclude that Petitioner had over four years to interview Ms. Tontarski.

The State conducted an extensive search in this case and demonstrated circumstantially, if not directly, that the evidence was destroyed. It searched not only the MCPD’s computer and paper evidence files, but also directed several physical searches to be made, in addition to the search conducted by the Hospital. The State satisfied its burden by searching any location the evidence reasonably might be found and submitting affidavits detailing its efforts and supporting its conclusion that the evidence no longer exists. Thus, the burden of production shifted to Horton. Petitioner has not satisfied his burden by demonstrating that the evidence exists. The Majority opinion demands that the State continue to hunt for the Grail, well beyond the standards set forth in Blake and *28Arey. Blake and Arey require only reasonable efforts. I would affirm the judgment of the Circuit Court for Montgomery County. Accordingly, I dissent.

Judge CATHELL authorizes me to state that he joins this dissent.

. It does not appear from the facts recited in our opinion in Arey that the police conducted a physical search of the ECU.

. On 22 October 1984, we denied Horton’s Petition for Writ of Certiorari. 301 Md. 176, 482 A.2d 501, 502 (1984).

. At the 26 September 2007 hearing, Petitioner's counsel identified the former employee as Cassie Arthur.