Argued: September 1, 2016
Court for Baltimore City Case No.: 107164029
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
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").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.
AND LEGAL PROCEEDINGS
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
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).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.
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
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.)
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
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. 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).
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.
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.
to File a Petition Under CP § 8-201
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
(1) for DNA testing of scientific identification evidence
that the State possesses that is related to the judgment of
(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.
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.
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.
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)).
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 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.
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
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.
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. 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.
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. 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. 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. 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.
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.
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.
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. 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
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
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).
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 § 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