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Washington v. State

Court of Appeals of Maryland

November 1, 2016

TRENDON WASHINGTON
v.
STATE OF MARYLAND

          Argued: September 1, 2016

         Circuit Court for Baltimore City Case No.: 107164029

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Adkins, J.

         Appellant Trendon Washington is serving a life sentence for conspiracy to commit murder. He filed a petition for postconviction DNA testing pursuant to Maryland Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the Criminal Procedure Article ("CP").[1]The postconviction court dismissed his petition because he was not convicted of a crime of violence and is therefore not eligible for postconviction relief under the statute. We affirm the postconviction court's dismissal of Washington's petition, and hold that a person convicted of conspiracy to commit murder is not eligible to file a petition for postconviction DNA testing under CP § 8-201(b). We further hold that Maryland's postconviction DNA testing statute does not violate due process or equal protection rights accorded by the U.S. Constitution or the Maryland Declaration of Rights.

         FACTS AND LEGAL PROCEEDINGS

         Washington was charged with conspiracy to commit murder, first-degree murder, second-degree murder, and handgun offenses in connection with the death of Ricardo Paige. On March 20, 2007, Ricardo Paige was found dead at 502 East 43rd Street in Baltimore, Maryland. He had been shot six times. The police recovered two .45 caliber shell casings from the scene along with a bloody broom and dust pan that appeared to have been used to sweep up spent shell casings. The broom and the dust pan tested positive for blood, but the items were not tested for DNA. On January 21, 2009, a jury convicted Washington of conspiracy to commit murder but could not reach a unanimous verdict on the remaining charges. Washington was sentenced to life imprisonment.

         On August 6, 2015, Washington filed a petition, pro se, in the Circuit Court for Baltimore City requesting postconviction DNA testing of the broom and dust pan. The Circuit Court dismissed the petition without a hearing on December 14, 2015 because it concluded that Washington did not have standing to file a petition under CP § 8-201(b).[2]The court reasoned that in order to qualify for relief under this statute, a person must be convicted of a crime of violence under Maryland Code (1957, 2012 Repl. Vol.), § 14-101 of the Criminal Law Article ("CR"). Because Washington had been convicted only of conspiracy to commit murder, which is not defined as a crime of violence in CR § 14-101, he lacked standing to pursue the remedies under the statute.

         Washington noted a direct appeal to this Court pursuant to CP § 8-201(k)(6). Arrington v. State, 411 Md. 524, 544 (2009). He presented the following questions for our review:

1. Whether a person convicted of conspiracy to commit first degree murder and sentenced to incarceration for life is eligible to file a petition for postconviction DNA testing of scientific identification evidence pursuant to § 8-201 of the Criminal Procedure Article?
2. Whether a person convicted of conspiracy to murder and sentenced to incarceration for life has a residual, core liberty interest protected by the [Due Process Clause] of the Fourteenth Amendment and Article 24 that in limited circumstances gives rise to a procedural right to access forensic evidence the State previously produced at trial?
3. Whether § 8-201 of the Criminal Procedure Article, which permits only those convicted of murder to petition for postconviction DNA testing, violates the [Equal Protection Clause] of the Fourteenth Amendment and Article 24 as applied to a person sentenced to life for conspiracy to murder?

(Emphasis in original.)

         STANDARD OF REVIEW

         In this appeal we are tasked with interpreting Maryland's postconviction DNA testing statute to determine if individuals convicted of conspiracy to commit murder are eligible to file a petition for testing. This is a question of law, which we review without deference to the postconviction court. Arrington, 411 Md. at 551 (citation omitted).

         DISCUSSION

         Maryland's postconviction DNA testing statute, CP § 8-201, grants individuals convicted of certain crimes the right to file a petition requesting postconviction DNA testing. CP § 8-201(b). In 2015, the General Assembly amended the statute to enlarge the class of individuals eligible to file a petition to all those convicted of crimes of violence defined in CR § 14-101.[3] Previously, only individuals convicted of first-degree murder, second-degree murder, manslaughter, rape in the first and second degree, and first- and second-degree sex offense were eligible to file such a petition. Md. Code (2001, 2008 Repl. Vol.), CP § 8-201(b).

         At issue is whether individuals convicted of conspiracy to commit murder are eligible to file a petition for postconviction DNA testing under the recently-expanded list of petition-eligible crimes. Washington argues that, as an individual convicted of conspiracy to commit murder and sentenced to life imprisonment, he is eligible to file a petition based upon a reading of CP § 8-201(b) in the context of the larger statutory scheme and purpose. Washington also asserts that denying him access to DNA evidence for testing violates his due process rights under the U.S. Constitution and the Maryland Declaration of Rights because it "constitutes a deprivation of his residual, core liberty interest." Finally, Washington contends that denying him access to DNA evidence violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and the Maryland Declaration of Rights because the State has no rational basis for distinguishing him, an individual sentenced to life imprisonment, from individuals convicted of first-degree murder or attempted first-degree murder who received the same sentence.

         To the contrary, the State urges us to affirm the dismissal of Washington's petition for lack of standing. Postconviction petitions for DNA testing of scientific identification evidence, it says, are authorized by CP § 8-201(b), and are limited to those convicted of a crime of violence as defined in CR § 14-101. The State points out that conspiracy to commit murder is simply not listed as a crime of violence in CR § 14-101. Therefore, Washington, who was convicted of conspiracy to commit murder, lacks standing to file a petition. As to due process, the State avers that the procedures Maryland has in place for such testing go above and beyond the constitutional procedural requirements. Finally, the State asserts that denying access to postconviction DNA testing is not a violation of the Equal Protection Clause of the U.S. Constitution or Article 24 of the Maryland Declaration of Rights because Washington is not similarly situated to individuals convicted of consummated crimes of violence and, even if he is, the State has a rational basis for creating this distinction.

         Eligibility to File a Petition Under CP § 8-201

         The current text of CP § 8-201(b) provides:

(b) Notwithstanding any other law governing postconviction relief, a person who is convicted of a crime of violence under § 14-101 of the Criminal Law Article may file a petition:
(1) for DNA testing of scientific identification evidence that the State possesses that is related to the judgment of conviction; or
(2) for a search by a law enforcement agency of a law enforcement data base or log for the purpose of identifying the source of physical evidence used for DNA testing.

(Emphasis added.)

         Section 14-101 of the Criminal Law Article, which CP § 8-201(b) incorporates to define those eligible to file DNA testing petitions, lists crimes of violence subject to mandatory minimum sentencing. Relevant for our purposes, CR §§ 14-101(a)(7) and (17) define murder and attempted murder as crimes of violence.[4]

         We employ Maryland's long-settled rules of statutory construction to guide our interpretation of CP § 8-201. "The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature." Blake v. State, 395 Md. 213, 224 (2006). First, we examine the plain language of the statute to ascertain the Legislature's intent. Id. When examining the plain language, "[w]e neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with 'forced or subtle interpretations' that limit or extend its application." Willis v. Montgomery Cty., 415 Md. 523, 537 (2010) (citation omitted). We "examine the language 'within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.'" Id. (citation omitted). To confirm our plain language reading, we may also consider a statute's legislative history to determine legislative intent. Moore v. State, 388 Md. 623, 635 n.4 (2005) (collecting cases). If the language of the statute is clear and unambiguous, we presume the Legislature meant what it said. Willis, 415 Md. at 536. If the language of the statute is ambiguous, we seek to ascertain the Legislature's intent from the legislative history, case law, and statutory purpose to resolve the ambiguity. Blake, 395 Md. at 224.

         As the State argues, CP § 8-201(b) permits only "a person who is convicted of a crime of violence under § 14-101 of the Criminal Law Article" to file a petition. Examination of the language of CR § 14-101 confirms this reading of CP § 8-201(b). Conspiracy has never been included on the CR § 14-101 list. This omission does not appear to be an oversight, moreover, considering that CR § 14-101 does expressly include one type of inchoate crime-attempt. CR § 14-101(a) ("In this section, 'crime of violence' means: . . . (17) an attempt to commit any of the crimes described in items (1) through (16) of this subsection[.]" (emphasis added)).

         This reading of CP § 8-201(b) is further supported by examining other statutes that incorporate the CR § 14-101 definition of crimes of violence and expressly add "conspiracy" to commit those crimes as a separate offense. For example, Maryland's witness-tampering statutes impose a criminal penalty for inducing false testimony or retaliating against a witness who is offering testimony related to "the commission of a crime of violence as defined in § 14-101 of this article, or a conspiracy or solicitation to commit such a crime." Md. Code (1957, 2012 Repl. Vol.), CR §§ 9-302(c)(2), 9-305(c)(2) (emphasis added); Md. Code (1957, 2012 Repl. Vol., 2016 Supp.), CR § 9-303(c)(2) (emphasis added). Similarly, Maryland Code (1977, 2013 Repl. Vol.), § 10-407(c)(2)(iii) of the Courts and Judicial Proceedings Article ("CJP"), provides an exception to Maryland's statute criminalizing wiretapping[5] if, "All parties to the communication were co-conspirators in a crime of violence as defined in [CR] § 14-101." (Emphasis added.) These provisions show that the Legislature knows how to include conspiracy to commit crimes of violence in statutory provisions when it so desires. The Legislature did not do so in CP § 8-201(b). See Stoddard v. State, 395 Md. 653, 661 (2006) ("[T]he Legislature is presumed to have meant what it said and said what it meant." (citation omitted)). Consequently, based on the plain and unambiguous language of CP § 8-201(b), we conclude that the Legislature did not intend for individuals convicted of conspiracy to commit the crimes of violence enumerated in CR § 14-101 to have standing to file a petition for postconviction DNA testing.

         Although Washington concedes that CP § 8-201(b) is unambiguous and by its plain language does not include conspiracy crimes, he urges us to find ambiguity in the broader statutory scheme. In support of his argument, Washington points to CP § 8-201(j), which, he contends, imposes a duty on the State to preserve evidence for DNA testing for the duration of his life sentence. He argues that this "duty to preserve controls the ability to test." Washington also invokes CP § 8-201's legislative history and remedial purpose, which, he argues, demonstrate the General Assembly's commitment to expanding access to postconviction DNA testing and support his broad reading of CP § 8-201(b). He contends that in light of the State's duty to preserve the DNA evidence in his case and the remedial purpose of the statute, denying him access to the evidence for testing produces an absurd result. We disagree.

         Even if we accepted Washington's argument that a duty to preserve triggers a right to petition, which we do not, no CP § 8-201 duty to preserve DNA evidence postconviction exists in this case whether CP § 8-201(j) is read in isolation or as part of the statutory scheme. CP § 8-201(j), which governs the State's duty to preserve DNA evidence postconviction, requires the State to preserve "scientific identification evidence . . . secured in connection with a violation of § 2-201, § 2-204, § 2-207, or § 3-303 through § 3-306 of the Criminal Law Article." These sections are, respectively, the statutory provisions defining first-degree murder, second-degree murder, manslaughter, rape in the first and second degree, and first- and second-degree sex offense. Conspiracy is not included.

         At oral argument, Washington argued that the phrase "in connection with a violation of [CR] § 2-201" in CP § 8-201(j) encompasses conspiracy to commit murder because it requires the State to preserve DNA evidence used in the investigation and prosecution of his underlying first-degree murder charge.[6] In essence, Washington argues that "violation" means "charged, " and his first-degree murder charge triggered the State's CP § 8-201 duty to preserve DNA evidence in his case. And this duty to preserve, Washington contends, grants him a corresponding ability to test the evidence. Washington's argument misses the mark.

         The term "violation" does not include merely being charged with a crime. A "violation" of a statutory provision in this context quite plainly means taking action prohibited by that statute.[7] Thus, to give rise to CP § 8-201's duty to preserve, Washington had to be convicted of murder. CR § 2-201 defines acts that constitute murder in the first degree, deems the crime a felony, and prescribes penalties for violating the provision-life imprisonment or life without the possibility of parole.[8] CR § 2-201 makes no mention of conspiracy to commit murder, which, by contrast, is a common-law misdemeanor that is not defined by statute.[9] Johnson v. State, 362 Md. 525, 528 (2001). Washington was only convicted of conspiracy to commit murder, not of murder itself. Thus, the State's duty to preserve DNA evidence postconviction under CP § 8-201(j) was never implicated.

         Washington also points to CP § 8-201(a)(5)(i)'s definition of the term, "scientific identification evidence, " to support his argument. Scientific identification evidence is defined, in relevant part, as evidence that "is related to an investigation or prosecution that resulted in a judgment of conviction." CP § 8-201(a)(5)(i). Washington emphasizes the phrase "related to an investigation and prosecution" of first-degree murder, which, he asserts, creates a pre-conviction duty to preserve. Certainly, the State must preserve DNA evidence while the investigation and trial are pending-some of it may be exculpatory. But CP § 8-201(a)(5)(i), which kicks in upon conviction, does not accord Washington the relief he seeks. As indicated above, the State had no duty under this section to preserve DNA evidence after the trial because the jury failed to convict him of murder. Moreover, this definition of scientific identification evidence merely reiterates CP § 8-201(j)'s requirement of a conviction before the State has a duty to preserve. CP § 8-201(j) by its plain language requires the State to preserve all DNA evidence in cases where there has been a first-degree murder conviction, not a conspiracy conviction.

         Although the postconviction DNA testing statute is remedial, Gregg v. State, 409 Md. 698, 715 (2009), and must be construed liberally, this does not grant us license to redraft the statute "beyond its clear meaning and the legislature's intent." Emps.' Ret. Sys. of City of Balt. v. Dorsey, 430 Md. 100, 113 (2013) (citation omitted). Therefore, we do not "add provisions or tailor existing ones to change the mandatory nature of the statute's language in order to favor the [petitioner]." Id. (citation omitted). As discussed previously, the Legislature knows how to draft legislation that includes conspiracy along with statutory offenses. It has declined to do so here.[10]

         Due Process Clause

         Washington argues that he has a procedural due process right to test the evidence used to convict him for DNA under both the Fourteenth Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights.[11] Under the Fourteenth Amendment, "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. This requires states to follow certain procedures before restricting or taking away an individual's liberty interest. Dist. Atty's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 67 (2009). The Supreme Court has recognized a limited liberty interest in postconviction relief when a state provides procedures for convicted defendants to demonstrate their innocence with new evidence. Id. at 68. Relying on Osborne, Washington argues that by denying him access to postconviction DNA testing, the State has unconstitutionally denied him the opportunity to pursue postconviction relief under Maryland law.

         The Supreme Court has held that criminal defendants who have been convicted have "only a limited interest in postconviction relief" based on newly discovered evidence because they have already received a fair trial. Id. at 69. Once the government has proven its case beyond a reasonable doubt, "the criminal defendant has been constitutionally deprived of his liberty." Id. (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)). "The State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief." Id. Therefore, the State only fails to provide adequate process under the Due Process Clause of the Fourteenth Amendment if its procedures for postconviction relief "offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. (citation omitted). A state's procedures for postconviction relief can also violate the Due Process Clause if they "transgress[ ] any recognized principle of fundamental fairness in operation." Id. (quoting Medina v. California, 505 U.S. 437, 448 (1992)). Washington, however, bears the burden of demonstrating the procedural inadequacy of Maryland's postconviction DNA testing statute. See id. at 71. In determining whether the statute meets this standard, it is helpful to review how courts have applied it to other states' postconviction relief procedures.

         In Osborne, the Supreme Court upheld Alaska's procedures for postconviction relief under this standard. Id. at 69-70. An Alaska statute provided for relief if the defendant made a "clear and convincing" showing of new evidence-including new DNA analysis- establishing innocence. Id. at 64 (quoting Alaska Stat. § 12.72.020(b)(2) (2004)). The new evidence must have been newly available, diligently pursued, and sufficiently material for the court to consider granting relief. Id. at 70 (citing § 12.72.020(b)(2)). Additionally, Alaska courts recognized a right to DNA testing under the state constitution when (1) a defendant's conviction rested primarily on eyewitness identification, (2) there was demonstrable doubt as to the defendant's guilt, and (3) DNA evidence "would likely be conclusive" on the issue. Id. at 65 (quoting Osborne v. State, 110 P.3d 986, 995 (Alaska Ct. App. 2005)). Because these procedures exempted petitioners from otherwise applicable time limits for filing for relief, provided for discovery in postconviction proceedings, and were "similar to those provided for DNA evidence by federal law and the law of other [s]tates, see, e.g., 18 U.S.C. § 3600(a), " the Supreme Court held that they were "not inconsistent with the 'traditions and conscience of our people' or with 'any recognized principle of fundamental fairness.'" Osborne, 557 U.S. at 70 (citation omitted).

         Similarly, in McKithen v. Brown, 626 F.3d 143 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit held that New York's postconviction relief statute was adequate to protect a convicted criminal defendant's limited liberty interest in demonstrating his innocence with new evidence. Id. at 154. To obtain relief under New York's statute, a defendant must show that had the DNA testing been performed for use at trial, "there exists a reasonable probability that the verdict would have been more favorable to the [petitioner]." Id. at 153 (quoting N.Y. Crim. Proc. Law ยง 440.30(1-a(a)) (1994)). Comparing New York's statute to Alaska's, the court reasoned that this standard was less stringent than Alaska's requirement that DNA evidence would "clearly and convincingly" or ...


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