Argued: February 7, 2017
Court for Washington County Case No. 21-K-00-26006
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
Postconviction DNA Testing Statute provides for
postconviction review related to DNA evidence for individuals
convicted of certain enumerated offenses. See
generally Md. Code (2001, 2008 Repl. Vol.), Criminal
Procedure Article ("CP") § 8-201. When the
Maryland General Assembly passed the Statute in 2001, the
legislature was responding to a nationwide concern over
individuals being wrongfully convicted for serious crimes and
held in prison for many years. Blake v. State, 395
Md. 213, 219 (2006). Prior to 2001, a convicted person could
only file one postconviction petition within ten years of
being sentenced, and the court retained the discretion to
reopen a postconviction proceeding if to do so was "in
the interests of justice." Dep't Legis. Servs.,
Fiscal and Policy Note (Revised), Senate Bill 694,
at 3 (2001 Session). Under the Statute, a convicted person can
"obtain DNA testing of evidence when either the DNA
tests were not available or not as sophisticated at the time
the inmate was convicted." Id. Thus, the
Postconviction DNA Testing Statute provides convicted persons
a second bite of the postconviction apple.
Statute also establishes separate procedures for these
postconviction proceedings. An individual convicted of a
qualifying offense may file a petition for either "DNA
testing of scientific identification evidence that the State
possesses . . . that is related to the judgment of
conviction; or . . . 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." CP § 8-201(b). If the circuit court
denies the petition, the petitioner can appeal directly to
this Court. CP § 8-201(k)(6).
the Statute imposes on the State a duty to preserve certain
evidence that might later be subject to DNA testing.
See CP § 8-201(j). If the State fails to
produce evidence that it had a duty to preserve, then the
petitioner is entitled to a hearing for "the court to
determine whether the failure to produce evidence was the
result of intentional and willful destruction." CP
case, the appellant, Thomas Clifford Wallace, filed a
petition in the Circuit Court for Washington County
requesting a hearing under CP § 8-201(j)(3)(i) because
the State admitted that it had destroyed the requested
evidence-a black t-shirt that Mr. Wallace was wearing when he
was arrested in 1997. The circuit court denied Mr.
Wallace's petition, concluding that the black t-shirt did
not constitute "scientific identification evidence,
" as defined by the Statute, and therefore the State did
not have a duty to preserve it. On appeal, Mr. Wallace
challenges the denial of his petition, as well as the circuit
court's decision not to appoint counsel to represent Mr.
Wallace at the proceedings on his petition. For the following
reasons, we shall affirm the circuit court's judgment on
Fetterhoff disappeared from Hagerstown, Maryland on August
20, 1997, after driving his wife to work that morning. Five
days later, on August 25, two men on a raft on Conococheague
Creek in Washington County saw a man lying in the rocks along
the creek bank. They called out to the man and told him they
were going to get him help; the man raised his right hand.
Later that day, when police officers located the man, he was
unconscious but still alive. They identified the man as Mr.
Fetterhoff. Three days later, on August 28, he died in the
hospital without regaining consciousness. The medical
examiner testified that the cause of death was multiple blunt
force injuries to the head, torso, and extremities, including
a fractured skull and ribs. One can only speculate what the
five days lying injured in the rocks were like for Mr.
the investigation into Mr. Fetterhoff's disappearance and
murder, police identified three key witnesses who later
testified at Mr. Wallace's trial. Keisha Russ recounted
that on the morning of August 20, she witnessed Clara Miller
driving a car with Mr. Wallace in the passenger seat and Mr.
Fetterhoff in the back seat. Ms. Russ, who knew all three
occupants from previous encounters with them, described Ms.
Miller as a white female, Mr. Wallace as a black male, and
Mr. Fetterhoff as a white male. Later in the day, Ms. Russ
saw Mr. Wallace and Ms. Miller at an apartment. By that time, Mr.
Wallace was shirtless and had a bloody rag wrapped around his
Stottlemeyer testified that, while driving on August 20, she
was stopped by a black male who asked if he could siphon some
gasoline from her car. She described the man as wearing a
white t-shirt with red stains on it and later identified Mr.
Wallace as the man she encountered. She also stated that he
was with a female passenger.
Kursey testified that, while driving on the same road as Ms.
Stottlemeyer on August 20, he saw a car in the middle of the
road and a black male talking to someone inside the car. The
man approached Mr. Kursey and asked him for a ride into town.
Mr. Kursey drove the man and the woman who had been inside
the car into town. He stated that the man had a bloody white
t-shirt wrapped around his hand, and later identified Mr.
Wallace as the man he encountered.
August 20, at 6:20 p.m., the Washington County Narcotics Task
Force arrested Mr. Wallace for drug charges, unrelated to Mr.
Fetterhoff's disappearance and murder, and placed him in
the Washington County Detention Center ("WCDC").
When he was arrested, Mr. Wallace was wearing a black t-shirt
and blue shorts. WCDC officials inventoried and stored those
items, along with other personal effects, at the time of Mr.
The Physical Evidence
August 30, 1997, after connecting Mr. Wallace to Mr.
Fetterhoff's death through witness statements, Corporal
Roy Harsh of the Washington County Sheriff's Department
decided to review WCDC's property record for Mr. Wallace.
At that time, Corporal Harsh took possession of all of Mr.
Wallace's property, including the black t-shirt and blue
shorts he had been wearing when he was arrested, and placed
the items in the Washington County Sheriff's
Department's property room. In his affidavit for a search
and seizure warrant, Corporal Harsh noted the following
observations regarding Mr. Wallace's clothes: "When
the tee shirt & dark blue shorts were packaged separately
for storage, I observed hair fibers on the shirt &
unidentified stains on the shorts." (Emphasis added.)
chemist Jeffrey Kercheval of the Western Maryland Regional
Crime Laboratory examined Mr. Wallace's property and
found "no stains consistent with blood" on the
black t-shirt, but identified "stains consistent with
blood" on the shorts. Mr. Kercheval's report made no
mention of any hair fibers on any of the items. DNA testing
on the shorts later confirmed that the stains were in fact
blood, and that it was Mr. Fetterhoff's blood. The black
t-shirt was never tested for DNA.
also recovered hair fibers from Mr. Fetterhoff's car-the
same car that was seen by Ms. Stottlemeyer and Mr. Kursey on
the morning Mr. Fetterhoff disappeared, which police found
abandoned near the site where they later recovered Mr.
Fetterhoff. Forensic scientist David Exline compared three of
these hair fibers to known hair samples submitted by Mr.
Wallace. Mr. Exline concluded that the hair fibers from the
car were "Negroid in origin, " which he defined as
originating from an individual in the African-American
population. He determined that two of the hair fibers
"exhibited characteristics that were unlike the known
hair samples submitted from Mr. Wallace." The third hair
fiber "exhibited some similarities but also some
differences" to Mr. Wallace's hair samples, so Mr.
Exline could not conclusively determine whether it originated
from Mr. Wallace.
The Trial, Direct Appeals, and First Postconviction
November 30, 2000, a jury in the Circuit Court for Washington
County convicted Mr. Wallace of first- and second-degree
murder, first-degree assault, and the unlawful taking of a
motor vehicle. On March 8, 2001, the circuit court, Judge
John H. McDowell presiding, sentenced Mr. Wallace to life
imprisonment without the possibility of parole for
first-degree murder, and to a concurrent five-year term of
imprisonment for the unlawful taking of a motor vehicle. The
second-degree murder and first-degree assault convictions
merged into the first-degree murder conviction for sentencing
purposes. Mr. Wallace appealed his convictions to the Court
of Special Appeals, which affirmed the convictions on May 9,
2002, in an unreported opinion. Mr. Wallace petitioned this
Court for a writ of certiorari, which we granted on August
22, 2002. Wallace v. State, 370 Md. 268 (2002). We
affirmed the judgment of the Court of Special Appeals on
February 13, 2003. Wallace v. State, 373 Md. 69
Wallace filed his first Petition for Postconviction Relief on
May 27, 2009. The Circuit Court for Washington County, Judge
Donald Beachley presiding, held a hearing on the petition on
May 26, 2011. Appointed counsel represented Mr. Wallace at
the hearing. On September 15, 2011, the circuit court granted
Mr. Wallace's petition in part, allowing him to file an
application for review of his sentence by a three-judge panel
pursuant to Maryland Rule 4-352. The circuit court denied Mr.
Wallace's petition with regard to all other relief
sought. Mr. Wallace filed an application for
review of his sentence on September 21, 2011. On November 1,
2011, a three-judge review panel declined to increase,
decrease, or otherwise modify Mr. Wallace's sentence.
The Postconviction DNA Petition
23, 2013, Mr. Wallace filed a Public Information Act Request
with the Office of the State's Attorney for Washington
County requesting the results of any testing performed on the
hair fibers from the black t-shirt he was wearing when he was
arrested on August 20, 1997. Assistant State's Attorney
Gina Cirincion, one of the prosecutors who tried Mr.
Wallace's case, responded to the PIA Request in a letter
dated March 11, 2014. Ms. Cirincion stated that there was no
reference in Mr. Wallace's case file to any hair fibers
on the black t-shirt "other than the sentence included
in the search warrant affidavits prepared by [Corporal]
Harsh. There is no other record, and no testing was ever
done." Ms. Cirincion further stated that her co-counsel
in Mr. Wallace's case had no recollection of any hairs
being found on the black t-shirt, nor did the forensic
chemist Mr. Kercheval who processed all of the evidence in
his case. Ms. Cirincion also revealed that the "actual
evidence, " i.e. the black t-shirt, "was destroyed
on February 28, 2003, after the appellate process was
April 29, 2014, Mr. Wallace filed a Petition for a
Postconviction DNA Hearing pursuant to CP § 8-201. In
his petition, Mr. Wallace asserted that the hair fibers found
on the black t-shirt "would exonerate him, " but he
was "prevented from presenting this exculpatory evidence
because it was destroyed, " without notification to
either himself or his counsel as required by CP §
8-201(k)(1). Therefore, Mr. Wallace requested a hearing
pursuant to CP § 8-201(j)(3) "to determine whether
the [State's] failure to produce evidence was the result
of intentional and willful destruction."
State answered Mr. Wallace's petition on May 1, 2014,
asserting that Mr. Wallace was not entitled to a hearing
under CP § 8-201(j)(3) because the black t-shirt did not
constitute "scientific identification evidence" as
defined by the Statute. The State admitted that the black
t-shirt had been destroyed, but denied that it had a duty to
preserve the t-shirt under the Statute. The State asserted
that "[t]here is no conceivable fashion in which either
the shirt or the alleged fibers could have produced
'exculpatory or mitigating evidence relevant to a claim
of . . . wrongful conviction'" because the shirt was
only associated with Mr. Wallace, and not with the victim or
the crime scene. (Ellipsis in original) (quoting CP §
8-201(a)(5)(iii)). Mr. Wallace responded to the State's
answer on May 14, 2014, and filed an amended petition on June
Hearings and Orders in the Circuit Court
Circuit Court for Washington County, Judge Donald Beachley
presiding, held a hearing on the petition on December 4,
2014. During that hearing, the State again asserted that a
hearing to determine whether its destruction of the black
t-shirt "was intentional and willful" was
unnecessary because the t-shirt did not satisfy the statutory
definition of "scientific identification evidence."
Furthermore, the State asserted that if the court did decide
to have a hearing, it would be required to appoint counsel
for Mr. Wallace. Mr. Wallace did not include a request for
the appointment of counsel in either his petition or his
amended petition, nor in his response to the State's
answer. However, Mr. Wallace did indicate a desire for
appointed counsel during the December 4 hearing.
December 18, 2014, the circuit court issued a memorandum
order in which it concluded that a hearing was required
"in the interest of justice" to determine whether
the black t-shirt satisfied the statutory definition of
"scientific identification evidence." Furthermore,
the circuit court disagreed with the State that it was
required to appoint counsel for Mr. Wallace. Instead, the
court determined that under Maryland Rule 4-707(b) and
Fuster v. State, 437 Md. 653 (2014), the appointment
of counsel for a hearing under the Postconviction DNA Testing
Statute is within the court's discretion. The court then
declined to appoint counsel for Mr. Wallace, noting that he
"ha[d] actually litigated a prior petition for post
conviction relief[, ] and in consideration of the potential
for success in the present case." Mr. Wallace
subsequently filed a Petition for Appointment of Counsel on
August 27, 2015, which the circuit court denied on September
circuit court held another hearing on May 4, 2016, during
which the State and Mr. Wallace debated whether the black
t-shirt constituted "scientific identification
evidence" under the Statute. Mr. Wallace indicated at
the start of the hearing that he had been attempting to
obtain counsel, but was unsuccessful. He then indicated that
he was ready to proceed with the hearing and represent
himself. During the hearing, Mr. Wallace acknowledged that he
did not obtain the black t-shirt until after the murder
31, 2016, the circuit court issued a memorandum opinion and
order denying Mr. Wallace's Petition for a Postconviction
DNA Hearing. In its opinion, the court found that Mr. Wallace
had "utterly failed to show any connection between the
black shirt he was wearing on the evening of August 20 and
the murder that occurred earlier that day." Therefore,
the court concluded "that there is no reasonable
probability that DNA testing of the black t-shirt would have
produced exculpatory or mitigating evidence."
Wallace noted an appeal of the circuit court's order on
June 27, 2016, which was docketed by this Court on August 8,
2016. In his brief,  Mr. Wallace presents the following
questions for this Court's review:
1. Did the [circuit court] err when it concluded that there
was no reasonable probability that DNA testing of the black
T-shirt would have produced exculpatory or mitigating
2. Did the [circuit court] abuse its discretion by denying
[Mr. Wallace's] and the State's request to appoint
counsel for [Mr. Wallace]?
The State's Duty to Preserve Scientific ...