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Edwards v. State

Court of Appeals of Maryland

May 24, 2017

RICHARD A. EDWARDS
v.
STATE OF MARLAND

          Argued: January 6, 2017

         Circuit Court for St. Mary's County Case No. 18-K-10-000193.

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

          OPINION

          Greene, J.

         This is a direct appeal pursuant to the DNA testing provisions of the DNA Evidence-Post Conviction Review. Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the Criminal Procedure Article (Crim. Pro.). Appellant Richard A. Edwards seeks our review of the denial, by the Circuit Court for Saint Mary's County, of his Petition for Post-Conviction DNA Testing. For the reasons set forth below, we shall vacate the judgment of the Circuit Court and remand this case to that court with directions to order the DNA testing of the cigarette lighter.

         Background

         Procedure

         On May 12, 2010, a grand jury sitting in the Circuit Court for Saint Mary's County returned an indictment in three counts charging Appellant with committing attempted first-degree rape, third-degree sexual offense, and second-degree assault.[1] These charges went before a Circuit Court jury for trial on February 8 and 9, 2011, following which the jury convicted Appellant on all counts. On February 9, the trial court sentenced Appellant to life imprisonment for the attempted first-degree rape, and imposed a concurrent ten years' imprisonment for the third-degree sexual offense. The second-degree assault merged. Appellant lodged a direct appeal with the Court of Special Appeals, which, in an unreported opinion, affirmed in all respects.

         On or about September 14, 2015, Appellant filed a Petition for Post-Conviction Relief in the Circuit Court for Saint Mary's County. On January 4, 2016, the Circuit Court granted Appellant's motion to withdraw this first Petition, and on that date Appellant's Petition for Post-Conviction DNA Testing was filed pursuant to Crim. Pro. § 8-201 and Maryland Rule 4-701.[2] A hearing on the petition was held on June 14, 2016 before a Circuit Court judge ("Post-conviction Court"), who, in a written opinion and order issued on July 6, 2016 denied the petition.[3] On July 21, 2016, Appellant noted a direct appeal to this Court pursuant to § 8-201(k)(6).[4]

         Facts

         The operative facts are not in dispute.[5] At the trial, the jury heard testimony that, on the evening of February 12, 2010, the complainant, J.K., [6] went to the Big Dogs Paradise bar in Mechanicsburg. She arrived at 9:00 p.m. and remained there until the bar closed at 2:00 a.m. the next morning. After leaving the bar, Ms. K., accompanied by some friends, went outside to smoke a cigarette and socialize. Soon thereafter, the others left, and Ms. K. decided to call a friend, Alex, for a ride home because she had been drinking. She returned to her car, locked the doors, and called another friend, Mark, to pass the time until her ride arrived.

         While Ms. K. was on the phone with Mark, a man approached her car and identified himself as a "security guy" at Big Dogs. He claimed that he wanted to ensure Ms. K. had a safe ride home. Ms. K. told the man that she had a friend on the way to give her a ride and the man left. A few minutes later, however, while Ms. K. was still on the phone, the man returned to her car with a cigarette in his hand and asked to borrow her lighter. When Ms. K. gave the man her lighter, he asked to use her door to shield him from the wind while he lit his cigarette. Ms. K. agreed. The man crouched down in front of the passenger door to light the cigarette, but then he entered her car and sat down. When Ms. K. told the man to get out of her car he did not comply.

         Ms. K. then told the man she needed to go to the bathroom and that she was going back to the bar to see if she could use the bathroom. The man responded, "Oh no, I work for Big Dogs, they are closed. They won't let you back in there." Ms. K. then said "Well, I'm gonna go check." She then ended her phone call with Mark, opened her door and started to get out.

         The man got out of the car about the same time and pushed Ms. K. to the ground. He then pulled Ms. K. back up and pushed her into the driver's seat of the car. At that point, he fondled her, kissed her neck, and attempted to pull down her pants, placed his fingers in her vagina, and attempted to force her to have sexual intercourse with him. At one point during the attack, the man took Ms. K.'s keys and threw them. Ms. K. managed to retrieve her keys and start the ignition. She "gunned it" and the man fell out of the car and ran toward the back of the bar. Ms. K. drove to the front of the bar and continuously honked her horn until some of the Big Dogs bouncers came out. When these employees asked what was wrong, Ms. K. reported that a man tried to rape her. The police were summoned.

         Officers processed Ms. K.'s car for fingerprints, and investigators also recovered some items from the car that the suspect could have touched, including a Bic lighter, a Forever 21 plastic shopping bag, and a pack of Marlboro Menthol cigarettes. Ms. K. did not go to the hospital on the night of her attack and the police did not take her clothing for examination. The police did not submit any evidence for DNA testing from Ms. K., her car, or the items in the car.

         Ms. K. testified that she had not known her attacker, but recalled that she had seen him earlier that night inside the bar. Ms. K. described her attacker as having brown hair and dark eyes, being in his late thirties to forties, and wearing a long-sleeve denim button-up shirt. Based on Ms. K's description of her assailant and on interviews with the employees and owners of Big Dogs, the police had initially identified a man named Richard Wathen as a suspect. The police showed Ms. K. two photo arrays, each containing a photo of a St. Mary's county resident named Richard Wathen. Ms. K. was unable to make a positive identification from these arrays.

         The police later identified Appellant as a possible suspect and compiled a photo array with Appellant's picture, which they showed to Ms. K. She positively identified Appellant as the man who assaulted her in the parking lot outside of Big Dogs. Ms. K. later testified that she was "positive" of her identification of Appellant as the man who assaulted her. At trial, Ms. K's friend Mark, who was on the phone with her that evening during her interaction with her assailant, recounted that Ms. K. had said she was at Big Dogs and that during their conversation, Mark could hear a person with a male voice asking for a light or a cigarette.

         The co-owner of Big Dogs, Victoria Adkins, had been working at the bar that evening and testified that she had spoken with Ms. K. about the incident. Ms. Adkins testified that after hearing Ms. K. describe the man who attacked her, Ms. Adkins came to the conclusion that the man was Ricky Edwards, who was at the bar that evening and wearing a denim button-up shirt. Brian Adkins, who also owns Big Dogs, testified that when he heard Ms. K.'s description, he thought the person's name was Ricky. Mr. Adkins also said Ricky was at the bar that evening and was wearing a blue denim button-up shirt.[7]A bar employee named James Dougherty testified that he believed the man who Ms. K. described was Appellant, a man with whom Mr. Dougherty had had an altercation on the night in question. Before trial, Mr. Dougherty positively identified Appellant in a photo array shown to him by police as the man he saw in the bar that evening.

         At trial, Appellant called the investigating detective, Det. Thomas Hedderich, as a defense witness. Det. Hedderich testified that he interrogated Appellant and that Appellant did not confess to the crime despite the fact that the detective lied to Appellant, claiming that police had obtained DNA evidence, that the incident was captured on video, and that an undercover narcotics officer had seen the incident. Appellant also testified in his own defense and acknowledged that he was at Big Dogs from 12:30 am to 1:30 am, when he left the bar in the car that his wife drives. Appellant denied having any contact with Ms. K. on the night in question. Appellant finally testified that he has green eyes, and that he has a rotten tooth and missing teeth, which he displayed at trial for the jury.

         The Post-Conviction Petition

         In his post-conviction Petition, Appellant asserted that there was a reasonable probability that DNA testing of the requested items has the scientific potential to produce exculpatory evidence relevant to his claim of wrongful conviction. Appellant noted that the victim testified that the perpetrator used her lighter and two witnesses testified that the victim told them the perpetrator asked her for a cigarette. Appellant maintained that it is likely that the perpetrator transferred epithelial cells to the lighter when he used it and that the perpetrator could also have touched the Forever 21 bag and the cigarette pack given his proximity to those items when he sat in the passenger seat. [8]

         Appellant contended that "even with minute or degraded quantities of DNA, it is 'frequently possible to obtain successful DNA results from cellular material transferred from the skin of an individual who has simply touched an object.'" (quoting Ray A. Wickenheiser, Trace DNA: A Review, Discussion of Theory, and Application of the Transfer of Trace Quantities of DNA Through Skin Contact, 3 J. Forensic Sci. 442 (2002)). The petition noted Wickenheiser's observation that cigarette lighters specifically are an "unusual exhibit material yielding successfully DNA profiles using polymerase chain reaction (PCR) and short tandem repeat (STR) typing."

         Appellant further asserted that the testing could show that his DNA was absent on all of the tested items but that the DNA profile of another individual may instead be present on the items. Appellant argued that this would not only support his testimony that he was falsely identified as the perpetrator but it also has the potential to identify the actual perpetrator. Finally, the petition asserted that the DNA testing requested, including polymerase chain reaction (PCR) and short tandem repeat (STR) testing, are generally accepted as reliable in the relevant scientific community.

         As noted, a hearing on the petition was held on June 14, 2016 in the Circuit Court for St. Mary's County. At the hearing, the State did not challenge whether the DNA testing requested by Appellant is employed by a method generally accepted within the relevant scientific community. Rather, the focus of the hearing was whether there was a reasonable probability that the testing requested has the scientific potential to produce exculpatory evidence relevant to Appellant's claim that he was not the individual who assaulted Ms. K.

         On July 6, 2016, the Post-conviction Court issued an order denying Appellant's petition for DNA testing. The order was accompanied by a written opinion, which stated in pertinent part:

As previously stated, the standard in CP § 8-201(d)[(1)](i) is that there must be a "reasonable probability . . . that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence." Because of the highly speculative nature of what petitioner hopes to gain from DNA testing of these items, this [c]ourt can see no possibility that a DNA test performed on the items requested would exonerate Petitioner. Even if petitioner's DNA is not found on the items and other persons' DNA is found, that does not prove or even suggest that any of those other people committed this crime, even if one of them turns out to be a convicted sex offender.
Here, there is no instrument that was used to commit the crime, and therefore, no relevance to finding the DNA of random people on the items Petitioner seeks to have tested. The [c]ourt need not "conduct a fishing expedition to indulge every permutation" that Petitioner might imagine.

         The Post-conviction Court continued:

In this case, it is noteworthy and even dispositive that, at trial, the victim positively identified Petitioner as the perpetrator. She was able to give the police a description of him and what he was wearing. She testified that she got a good look at him because "[h]e was in my face quite a bit . . . I had seen him earlier in the bar . . . I said that guy looks like a creeper because he kept looking at me as we were dancing." In addition, the victim identified Petitioner for the jury and testified to identifying Petitioner in a photo array. Trial counsel cross-examined the victim and she did not waiver in her identification of Petitioner.

         The judge distinguished cases where relief had been granted:

This is clearly different than Gregg where it was highly probative that the killer had handled a gun which was the murder weapon and the DNA on the gun would have a reasonable probability of producing exculpatory evidence that would corroborate defendant's claim that he was not the shooter. This was especially true given the ambivalent evidence which did convict the Petitioner. It is also different than Brown where the defendant was challenging whether the crime had actually happened and wanted the items tested to disprove it had. Here, there is no such probability that the testing would produce exculpatory or mitigating evidence for the Petitioner.

(citations omitted).

         On July 21, 2016, Appellant noted a direct appeal to this Court pursuant to § 8-201(k)(6), and presents the following question on appeal:

Did the Circuit Court err when it denied Mr. Edwards' Petition for Post-Conviction DNA Testing, where a reasonable probability exists that the requested testing has the scientific potential to produce exculpatory evidence relevant to Mr. Edwards' claim of wrongful conviction?

         For the following reasons, we shall answer the Appellant's question in the affirmative and remand the case to the Post-conviction Court for to order testing.

         DISCUSSION

         Standard of Review

         There is some dispute as to the appropriate standard of review. The State insists at length that our review of the Post-conviction Court's ruling is for an abuse of discretion. We do not agree. Because we are asked to interpret the language in the post-conviction DNA testing statute, and to determine whether the hearing judge applied the correct standard of law in denying Appellant's petition, our review is plenary.[9] See Fuster v. State, 437 Md. 653, 671, 89 A.3d 1114, 1124 (2014) ("An appellate court reviews without deference the legal standard that a trial court uses in ruling on a petition."). See also, e.g., Howard v. State, 440 Md. 427, 434, 103 A.3d 572, 576 (2014).

         The cases cited by the State in support of its version of the appropriate standard of review for an abuse of discretion, do not support its argument on this record. Brown v. State, 431 Md. 576, 66 A.3d 675 (2013); Washington v. State, 424 Md. 632, 37 A.3d 932 (2012); Arrington v. State, 411 Md. 524, 983 A.2d 1071 (2009). In each of the cases upon which the State relies, we were asked to review the circuit court's denial of a motion for a new trial. By contrast, in the case before us, the Post-conviction Court concluded that the sought after DNA ...


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