RICHARD A. EDWARDS
STATE OF MARLAND
Argued: January 6, 2017
Court for St. Mary's County Case No. 18-K-10-000193.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
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
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. 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.
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. 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. On July 21, 2016, Appellant noted a direct
appeal to this Court pursuant to §
operative facts are not in dispute. At the trial, the jury heard
testimony that, on the evening of February 12, 2010, the
complainant, J.K.,  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.
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.
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.
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.
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.
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.
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.
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.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
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.
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.
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."
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.
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.
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
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
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
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.
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?
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.
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. 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
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