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Fuster v. State

Court of Appeals of Maryland

April 22, 2014

DAVID E. FUSTER
v.
STATE OF MARYLAND

Argued March 6, 2014.

Page 1115

DNA Appeal (Circuit Court for Montgomery County. Criminal No. 94184), Marielsa A. Bernard, JUDGE.

ARGUED BY Bradford C. Peabody, Assistant Public Defender (Paul B. DeWolfe, Public Defender, of Baltimore MD) on brief FOR APPELLANT.

ARGUED BY Robert Taylor, Jr., Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief FOR APPELLEE.

ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, and Watts, JJ. Opinion by Watts, J.

OPINION

Page 1116

[437 Md. 657] Watts, J.

We decide: (I.A) whether Maryland Rule 4-707(b) entitles an indigent petitioner to appointed counsel for purposes of a petition under Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol., 2013 Supp.) (" CP" ) § 8-201; (I.B) whether the Circuit Court for Montgomery County (" the circuit court" ) abused its discretion in not considering whether to appoint counsel for David E. Fuster (" Fuster" ), Appellant, for purposes of a petition under CP § 8-201; (II) whether the circuit court erred in applying an incorrect standard in ruling on the petition under CP § 8-201; and (III) whether Fuster preserved for appellate review the issue of whether the circuit court clearly erred in concluding that the State, Appellee, conducted a reasonable search of collected evidence for the victim's socks and shoes.

We hold that: (I.A) Rule 4-707(b) does not entitle an indigent petitioner to appointed counsel for purposes of a [437 Md. 658] petition under CP § 8-201; (I.B) the circuit court did not abuse its discretion in not considering whether to appoint counsel for Fuster for purposes of the petition under CP § 8-201; (II) the circuit court used the correct standard in ruling on the petition under CP § 8-201; and (III) Fuster failed to preserve for appellate review the issue of whether the circuit court clearly erred in concluding that the State conducted a reasonable search for the victim's socks and shoes.

BACKGROUND

A. Trial and Direct Appeal

The State charged Fuster, a dentist, with various sexual crimes against a minor

Page 1117

patient. In the circuit court, a jury tried Fuster.

At trial, as a witness for the State, W.K.[1] testified as follows. On October 10, 2001 (when W.K. was fifteen-years-old), W.K. visited Fuster's dental office. Fuster administered gas to W.K. and placed his hand on W.K.'s thigh. W.K. lost consciousness. When W.K. awoke, Fuster was " massaging" her inner thigh. W.K. lost consciousness again. Sometime after W.K. awoke again, her pants were unzipped, and Fuster was rubbing her vagina with his hand. W.K. lost consciousness again. Sometime after W.K. awoke again, Fuster " grabbed [W.K.,] put [W.K.] on top of him," and said: " Don't worry, I'm using a condom[.]" Sometime afterward, Fuster was naked, W.K.'s " shirt was halfway up[,] and [her] bra was undone."

At trial, as a witness for the State, Donna Seelye (" Nurse Seelye" ), a " sexual assault forensic nurse examiner[,]" testified that on October 10, 2001, she examined W.K., placing " each piece of clothing . . . in a separate bag" and " check[ing W.K.] from head to toe[.]"

The jury convicted Fuster of second-degree rape, child abuse, third-degree sexual offense, and second-degree assault. Fuster appealed, and the Court of Special Appeals affirmed. [437 Md. 659] Fuster petitioned for a writ of certiorari, which this Court denied. See Fuster v. State, 412 Md. 256, 987 A.2d 16 (2010).

B. Petition

On November 3, 2010, in the circuit court, while self-represented, Fuster filed a " Petition for DNA Testing - Post Conviction Review" (" the Petition" ). In the Petition, Fuster stated:

[Fuster] request[s] that the underpants . . . [that W.K.] wore [on] the day [that] she was allegedly raped[] be tested using PCR (STR) " touch DNA" or " contact DNA" analysis. (Test for [Fuster's] epithelial cells)[.]
[Fuster] request[s] that the leg cuffs of the jeans worn by [W.K.] . . . be tested using touch DNA or contact DNA analysis for [Fuster']s epithelial cells.
[Fuster] request[s] that the socks and shoes worn by [W.K.] . . . be analyzed for [Fuster's] epithelial cells using PCR[ ](STR) touch DNA analysis.

In the answer to the Petition, the State responded:

[W.K.]'s jeans and underpants [] are in the custody of the Montgomery County Police Department, Central Supply Section-Evidence Property Unit [(" the Property Unit" )]. . . . Officer William Bickle [(" Officer Bickle" )], the Supervisor of the Property Unit, has advised undersigned counsel that a check of the file documentation and storage container location relative to the evidence in the Fuster matter " do[es] not indicate the presence of any shoes or socks." Officer [] Bickle has further advised undersigned counsel that [he] checked with Sergeant Dan Clemen[]s [(" Sergeant Clemens" )], the investigating officer for the Fuster matter, to determine if shoes or socks were seized at the hospital. According to Officer Bickle, Sergeant Clemens " has no recall that these items were ever taken[,] and if they were, he would have packaged them separately and listed them on the chain of custody documentation. . . ."

[437 Md. 660] On September 18, 2012, the circuit court conducted a hearing on the Petition. At the hearing, the following exchanges occurred:

Page 1118

THE COURT: . . . Mr. Fuster, you are representing yourself?

[] FUSTER: Yes, Your Honor.

[PROSECUTOR]: Your Honor, there's no right to representation under the --
THE COURT: I know, . . . but he can certainly get private counsel if he so desires.
* * *
[] FUSTER: [Nurse Seelye testified that] she collected all of [W.K.'s] clothing. That she stripped [W.K.] from head to toe[.]
* * *
THE COURT: That doesn't mean that [Nurse Seelye] collected [W.K.'s] socks or shoes.
[] FUSTER: I agree with you, Your Honor.
* * *
[PROSECUTOR]: . . . I will look for [W.K.'s] socks and shoes. I will conduct the type of investigation that the Court of Appeals would require us to conduct, and I'm going to ask for this hearing to be reset[.]

On March 14, 2013, the circuit court resumed the hearing on the Petition. During the hearing, the following exchanges occurred:

THE COURT: . . . I can't order the DNA testing unless . . . two conditions [are] met.
* * *
THE COURT: [T]hat there's a reasonable probability that if we go forward with DNA testing, [and] that there will be a potential for that test to ...

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