November 21, 2014
STEVEN M. JOHNSON
STATE OF MARYLAND
Argued: October 7, 2014.
Circuit Court for Charles County Case No. K-80-7357.
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
Under Section 8-201 of the Criminal Procedure Article of the Maryland Code,  a person convicted of certain specified crimes is permitted to file a petition "for DNA testing of scientific identification evidence that the State possesses . . . and that is related to the judgment of conviction".
In 2011, Steven Johnson filed, pro se, a Motion for New Trial, later referred to as a Petition for DNA Testing, in which he requested that the State produce a T-shirt recovered from the victim and admitted into evidence in Johnson's trial in 1980,  as well as an empty cigarette package recovered from the crime scene and a sex crimes kit produced by Physician's Memorial Hospital,  the hospital in which the victim had been examined. Judge Helen Harrington of the Circuit Court for Charles County, after three hearings,  found that the Charles County Sheriff's Office no longer had possession of the T-shirt, cigarette package and "sex crimes kit"; as to the "sex crimes kit", she also decided that even were the kit to have been produced, it only would have contained blood drawn from the victim. Johnson, thereafter, noted a direct appeal to this Court in which he asks us to resolve the following question:
Did the circuit court err in finding that the State had performed a reasonable search for requested evidence which might contain biological identification material?
We shall affirm the Circuit Court's findings and conclude that the Judge was not clearly erroneous when she concluded that the State performed a reasonable search for the requested scientific identification evidence and that the evidence no longer existed.
At the end of three hearings, Judge Harrington stated:
[THE COURT:] I think there has been a reasonable search. . . .
And there is no evidence whatsoever that there has been any intentional or willful destruction of evidence. It simply doesn't exist. We can't find it.
So I have to deny the Motion for a New Trial based on a request for post-DNA; post-conviction DNA.
Judge Harrington also made specific findings that the T-shirt, cigarette package and sex crimes kit were no longer in the possession of the Sheriff's Office and, therefore, were unavailable for testing. She had found, at the end of the second hearing, that the Sheriff's Office had twice inventoried all items in its evidence storage area, Building 104, without having uncovered the T-shirt, cigarette package or sex crimes kit from which she concluded that the evidence sought by Johnson was no longer in the possession of the Sheriff's Office:
[THE COURT:] I'm reasonably satisfied that evidence that was in property held and transferred from the old units to the new units was inventoried and logged in not just once but twice. So I think the loose ends have more to do with where else might it be rather than whether things are actually in the Sheriff's possession right now.
Charles Smith, the civilian property custodian of the Sheriff's Office, had testified at the second hearing and explained that all items of evidence held in Building 104 had been moved twice. According to Mr. Smith, the property that had been held in Building 104 was moved in 2006, when the Sheriff's Office had been relocated, and again in approximately "2008, 2009", when the building had been emptied in order to enable the County to "take care of" a mold problem. Mr. Smith also stated that he perused the handwritten inventories compiled during both relocations and had not found any reference to the T-shirt, cigarette package or sex crimes kit. Mr. Smith further testified that, prior to the second hearing before Judge Harrington, he and others had searched "around the whole building" in order to confirm that the T-shirt, cigarette package and sex crimes kit were not obtainable.
Judge Harrington's conclusion that the State had performed a reasonable search for the sex crimes kit at the Sheriff's Office was based not only on the affidavit and testimony regarding Building 104, but also upon another affidavit by Shelly Herold, a technician in the Charles County Sheriff's Office Forensic Science Unit. Ms. Herold affirmed that she had searched the Forensic Science Unit's storage areas for the sex crimes kit, to no avail.
Regarding the sex crimes kit, Judge Harrington also found that Physician's Memorial Hospital did not possess the sex crimes kit and even had the kit been found it would have only contained blood drawn from the victim:
[THE COURT:] There is evidence that there was [a sex crimes kit] but there's no evidence that it was ever logged in to The Sheriff's Department. It apparently does not appear to have been their procedure at that time.
There's no information indicating that it has been preserved or kept in any refrigerator there. We do have that affidavit from Shelly Herold that says that she did a search.
[COUNSEL FOR JOHNSON:] If you, if you collect evidence from a rape kit by definition you're gonna have skin cells on it and that's biological material that could be submitted to testing.
And with respect to the shirt, you know, it's a kind of ridiculous - -.
THE COURT: Yeah, as I said it could be there but I, we don't have any evidence that there were . . . [s]kin cells collected at the hospital. There was a blood, blood work; blood draw.
Judge Harrington also relied upon the report compiled by Sergeant George Watts, the investigating officer in Johnson's case, as well as the report completed by the physician who had examined the victim at Physician's Memorial Hospital; both reports had been introduced into evidence during the second of the three hearings. The authors of both reports noted that the examining physician had handed the sex crimes kit over to Sergeant Watts after examining the victim, thereby establishing that the Hospital did not retain the sex crimes kit.
Judge Harrington's finding that the sex crimes kit had only contained blood taken from the victim was based upon the hospital report upon which was written, under the heading "Evidence Collected by Examining Physician", that only "BLOOD" had been collected from the victim.
Johnson argued both before the trial court as well as before us that, because "the victim's t-shirt, a cigarette package, and a sex crimes kit-did exist at one point", it is "reasonable that all or some of the items [Johnson] now seeks are somewhere in the State's possession." Johnson asserts that the State must produce "all relevant property logs" from the Charles County Sheriff's Office as part of a reasonable search. Producing the property logs, he reasons, would provide his counsel an opportunity to review them with an "advocate's eye" to determine if there were entries missed which could lead to the discovery of the missing T-shirt, cigarette package and sex crimes kit.
Johnson also argued before the trial court as well as before us that "evidence, testimony, or affidavits as to the procedures in place at the hospital for conducting the sexual assault kit" must be produced, because they would demonstrate that more than the victim's blood had been collected, as well as "what was then done with the examination." For support that more than blood drawn from the victim had been collected, Johnson asserts that "if a hospital subjected a victim to a sexual assault kit, it would be reasonable to assume that, even in 1980, more than just blood was taken".
In evaluating whether the State has conducted a reasonable search, we ask whether it has "demonstrated sufficiently a prima facie case, either directly or circumstantially, that the requested scientific identification evidence no longer exists". Washington v. State, 424 Md. 632, 651, 37 A.3d 932, 942 (2012). The Circuit Court's finding that the State had met its burden and shown that the requested evidence no longer exists is reviewed under the "clearly erroneous" standard of review. Id., citing Blake v. State, 418 Md. 445, 460, 15 A.3d 787, 796 (2011) (hereinafter "Blake II"). See also Fuster v. State, 437 Md. 653, 89 A.3d 1114 (2014); Arey v. State, 422 Md. 328, 29 A.3d 986 (2011) (hereinafter "Arey II"). Under the "clearly erroneous" standard, "if there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous." Washington, 424 Md. at 651, 37 A.3d at 942, quoting Solomon v. Solomon, 383 Md. 176, 202, 857 A.2d 1109, 1123 (2004). Based upon the application of these principles, we conclude that Judge Harrington did not err in her finding that the State conducted a reasonable search for the T-shirt, cigarette package and sex crimes kit. Her decision is supported by undisputed evidence that the T-shirt, cigarette package and sex crimes kit could not be located by the State.
Our conclusion that Judge Harrington did not err is guided by our past jurisprudence that has refined the standard of what is a reasonable search under Section 8-201. In Washington, 424 Md. at 635, 37 A.3d at 933, Washington had sought for testing, under Section 8-201, evidence compiled during the investigation that had led to his 1990 rape conviction. The circuit court ultimately concluded that "a reasonable search was undertaken which included the Wicomico County State's Attorney's Office and Sheriff's Office, the Maryland State Police Crime Laboratory, [the hospital in which the victim had been examined] and the clerk's office of the Circuit Court" based upon testimony and affidavit that each shelf and box in these locations had been searched for the evidence Washington had requested. Id. at 648, 37 A.3d at 941. The hearing judge in Washington also determined that "the evidence presented at the hearing showed that the searches for evidence related to this case, dating back to 2002, produced no results" and, therefore, "the evidence was either lost or destroyed prior to that time." Id. at 648-49, 37 A.3d at 941.
We opined in Washington that the circuit court had not erred when it found that the State had conducted a reasonable search. We also held that it was irrelevant that the State had not introduced the storage protocols of the Sheriff's Office, because the protocols "would only indicate that the requested scientific identification evidence was in the possession of the Sheriff's Office", which had already been reasonably searched to no avail. Id. at 661-62, 37 A.3d at 949.
Washington informs us that the search conducted here was reasonable, as well as that production of the Hospital's protocols is not required in the present case. Judge Harrington determined that the T-shirt, cigarette package and sex crimes kit were no longer in the State's possession based upon Charles Smith's testimony, from which she found that Building 104 had been fully inventoried twice and searched once without having uncovered the evidence in question. As in Washington, in which we determined that the search of the Sheriff's Office was reasonable, it was not clearly erroneous for Judge Harrington to conclude that the search of the Charles County Sheriff's Office was reasonable and that the Sheriff's Office no longer possessed the T-shirt, cigarette package or sex crimes kit.
With respect to the sex crimes kit specifically, Judge Harrington observed that the affidavit from Shelly Herold reflected that the kit was not stored within the Charles County Sheriff's Office's Forensic Science Unit. Judge Harrington also recognized that the sex crimes kit had been handed over to Sergeant Watts of the Charles County Sheriff's Office on the evening the victim had been examined based upon reports from Physician's Memorial Hospital and the Sheriff's Office that had been admitted into evidence. Judge Harrington, at the end of the second hearing, noted that neither the Hospital nor the Sheriff's Office possessed the sex crimes kit and instructed the State to explore other facilities that may have received the kit, namely the Maryland State Police Crime Laboratory and the FBI Crime Laboratory. The documentation from the Hospital, the Sheriff's Office, the Maryland State Police and the FBI, together with Ms. Herold's affidavit, was prima facie proof that the sex crimes kit was no longer in the possession of the State, so that it was not clear error to conclude that the sex crimes kit no longer existed thirty-three years after it was removed from Physician's Memorial Hospital.
As to Johnson's assertion that the Hospital's protocols for collecting and handling evidence from a sexual assault victim needed to be produced, because they may have shown additional places to search, we have noted that the protocol of a place to be searched is immaterial when the hearing judge already has concluded that the location to which the protocol was related has been futilely searched. Washington, 424 Md. at 661-62, 37 A.3d at 949. In the present case, Judge Harrington relied upon documents admitted into evidence, created both by the Charles County Sheriff's Office and Physician's Memorial Hospital, which conclusively established that the hospital no longer had possession of the sex crimes kit. 
Our decision in Horton v. State, 412 Md. 1, 985 A.2d 540 (2009), also does not offer succor to Johnson with regard to his request for the Hospital's protocols. In Horton, 412 Md. at 17, 985 A.2d at 549, we ordered production of protocols only because a "former Hospital official had suggested that evidence concerning the victim" could still have been stored in the hospital. No such testimony was adduced in the present case.
Here, Johnson merely asserts that "more than just blood was taken", so that the Hospital should be searched or at least queried regarding its protocols for collecting specimens in a sex crimes kit. The Hospital report admitted into evidence and relied upon by Judge Harrington, however, indicates that only "BLOOD" had been collected from the victim and included in the sex crimes kit, which was prima facie proof that only blood was taken. Johnson's mere assertion, without more, that other scientific identification evidence was collected does not render the search unreasonable.
With regard to Johnson's contention that he should have been provided the Charles County Sheriff's Office's property logbooks, because his counsel could have reviewed them to determine if there were errors in their compilation, we chalk this up again to mere speculation, rather than based upon proof of a mistake. We have determined, however, that speculation is not sufficient to overcome a prima facie showing that the State followed its procedures for storing and maintaining evidence. Blake II, 418 Md. at 461-62, 15 A.3d at 797.
In Blake II, Blake sought for testing, under Section 8-201, evidence from his 1982 conviction of first degree rape and first degree sex offense. He asserted that evidence from his trial may have been held in the State's Attorney's Office following his trial and, therefore, a reasonable search must have included the State's Attorney's Office. We rejected Blake's argument, first opining that it "is reasonable to conclude that the evidence sought to be tested was handled in conformity with the routine practice of the Circuit Court and the Police Department"; we then acknowledged that a tape recorded statement by the prosecutor in Blake's criminal trial "confirming that Assistant State's Attorneys did not take custody of exhibits at the conclusion of criminal trials" established that the evidence was not held by the State's Attorney. Id. at 460, 462, 15 A.3d at 796, 797. We reasoned that, when "it has been established that the prosecutor's office does not take custody of exhibits", the circuit court could properly deny a request for a search of the prosecutor's office. Id. at 462, 15 A.3d at 797. In the case before us, similarly, the logbooks were reviewed, the locations searched and the detail of their compilation and searches were produced; Johnson adduced no proof that there were mistakes in the compilation of the logbooks and in the locations searched.
Johnson, however, urges that the State had produced a logbook in Arey II, 422 Md. 328, 29 A.3d 986 (2011), and so his request for the Charles County Sheriff's Office's logbooks should have been granted. Whether Arey received a logbook was not in issue in Arey II and did not form the basis for any decision by the trial court or this Court. The reversal of the trial court's decision in Arey II resulted from our determination that Arey should have had an opportunity in the circuit court to contest evidence adduced by the State, which had nothing at all to do with the production of logbooks.
In conclusion, Judge Harrington's findings that the State had performed a reasonable search for the T-shirt, cigarette pack and sex crimes kit and that they no longer were in the possession of the Charles County Sheriff's Office were not clearly erroneous, and we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR CHARLES COUNTY IS AFFIRMED. COSTS IN THIS COURT TO BE PAID BY APPELLANT.