Argued: May 7, 2018
Circuit Court for Anne Arundel County Case No.:
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
Gustav Givens was convicted of first-degree murder and
sentenced to life without parole. Givens appeals from a
ruling by the Circuit Court for Anne Arundel County denying
post-conviction DNA testing under Maryland Code (2001, 2008
Repl. Vol., 2017 Supp.), § 8-201 of the Criminal
Procedure Article ("CP"). We affirm the
post-conviction court's denial of Givens's motion
because the court did not err when it concluded that there
was no reasonable probability that DNA testing could produce
exculpatory or mitigating evidence.
AND LEGAL PROCEEDINGS
was first convicted of the murder of Marlene Kilpatrick in
1993. After filing for post-conviction relief,
Givens was granted a new trial in 1999. His second trial in
2003 ended in a mistrial after the jury could not reach a
unanimous verdict. Givens was tried for a third time in 2004,
and the Court of Special Appeals reversed his conviction due
to evidentiary errors. Givens's fourth trial began in 2006
but ended in a mistrial shortly after the first witness began
her testimony. Givens's fifth trial, the primary subject
of this appeal, took place in 2006.
testimony established the following. Marlene Kilpatrick's
body was discovered by her daughter, Lisa Kilpatrick
O'Connell, in Kilpatrick's home in Arnold, Maryland
on January 3, 1992. Kilpatrick had suffered multiple blunt
force injuries to her skull, which caused multiple skull
fractures and injuries to her brain. She had been stabbed
three times in the torso, and a knife was embedded in one of
the wounds. Fuel injection cleaner had been poured on her
face and in her mouth. A Sprite bottle had been inserted into
her vagina-a detail that officers withheld from the public.
was no sign of forced entry into Kilpatrick's home,
although the telephone line had been cut. A cup of coffee and
a partially full bottle of Coca-Cola were found on the table.
There was a substantial amount of blood in the kitchen,
leading to the bedroom where Kilpatrick's body was
discovered. Kilpatrick's purse, keys, daily reminder
book, and car were missing from the home. Based on the
circumstances of the crime, the police theorized that the
killer was acquainted with Kilpatrick. They investigated a
number of individuals, including Givens. Givens had become
friends with the Kilpatrick family through the victim's
son, Jay Kilpatrick. He had also painted and done minor
repairs for the victim.
after Kilpatrick's body was discovered, police questioned
Givens regarding his activities on the date of the murder. He
stated that he was with his girlfriend, but after she
corrected him, Givens told police that he had been drinking
with a friend.
Kilpatrick's blood was found at the crime scene. Police
recovered hair and fibers, but none matched Givens. A
footprint was found outside Kilpatrick's home, but was
not adequate for a plaster mold. The police were able to swab
saliva from the partially full Coca-Cola bottle on the
kitchen table and sent it to Cellmark for DNA comparison and
testing against samples from numerous suspects, including
Givens. The initial results established that Givens could be
a match to the saliva on the bottle.
car was located several miles away in the parking lot of a
hardware store in Severna Park. The owner of the store,
Gordon Clement, had arrived at the store around 7:00 a.m. on
January 2, 1993. Around 7:30 a.m., Clement observed a man in
front of his store. Approximately two hours later, Clement
noticed a car in his parking lot that had not been there when
he arrived. The car was still there the next day. After work,
Clement heard a report on the radio about Kilpatrick's
murder that described her missing vehicle and included the
tag number. Clement contacted the store, verified that the
car in the lot matched the one described in the radio report,
and the matter was reported to the police. Police showed
Clement a photographic array that included a picture of
Givens but Clement did not identify him at that time. Some
months later, after Givens had been arrested and charged,
Clement saw his picture in the newspaper and recognized
Givens as the man he had seen. Clement identified Givens at
was arrested in July 1993, after the DNA testing established
that he was a likely match to the saliva on the Coca-Cola
bottle. During police interviews after his arrest, Givens
maintained that he had been with a friend the day Kilpatrick
was killed. After being confronted with the DNA evidence on
the Coca-Cola bottle, Givens asserted that he had seen
Kilpatrick at a store in Severna Park several days before her
death and gave her the bottle for disposal. Givens also made
a statement about the Sprite bottle being in the victim's
vagina and explained his knowledge by claiming that this fact
was more widely known than the police had thought.
arresting Givens and executing search warrants, the police
discovered a large toolbox containing over 100 tools in
Givens's car. Dr. William Vosburgh, who testified as the
State's expert in forensic serology and blood stain
pattern analysis, had examined the contents of the toolbox in
1992. He testified that the majority of the tools were oily
and dirty, but one item, a 15-inch Sears Craftsman crescent
wrench, appeared unusually clean in comparison. The
State's theory, presented at all of Givens's trials,
was that Givens had used the wrench to bludgeon Kilpatrick
before stabbing and further assaulting her, and that Givens
had cleaned the wrench after the murder. The State presented
expert testimony from several witnesses to establish that the
wrench was a likely murder weapon.
was unable to obtain any serological test results that could
show with any reasonable degree of scientific certainty
whether blood or human tissue had been present on the
wrench. Vosburgh swabbed the wrench and took a
scraping from it and sent both samples to Cellmark for
further testing. He explained that after examining the
wrench, he found no lubricant, dirt, or grime in the
adjustable mechanism of the wrench, although he would have
expected to find lubricant in the mechanism. Vosburgh also
testified that cleaning a surface can remove or affect blood
and other serological fluids such that testing may be unable
to establish if such fluids were ever present.
Charlotte Word, the State's expert in DNA identification,
testified about Cellmark's attempts in 1992 to identify
and test DNA on the scraping and swab. Cellmark made
three attempts to extract DNA that might be in the scraping
and two attempts to extract DNA that might be on the swab.
Cellmark was unable to obtain any results. Word testified
that based on the results of the test, she was unable to
determine whether there was enough DNA to obtain a sample,
whether the DNA was too degraded to obtain results, or
whether there was any DNA present at all.
David Fowler, the Chief Medical Examiner for the State of
Maryland, testified that the lacerations, abrasions, and
fractures on Kilpatrick's skull were consistent with the
wrench. Fowler further opined that the wrench matched the
patterns of Kilpatrick's injuries. He asserted that, in
his opinion "within a reasonable degree of medical
certainty, an object which has the size, weight, and shape
characteristics of that wrench caused the injuries to Mrs.
counsel attempted to undermine Fowler's conclusions. They
offered three expert witnesses, one on postmortem examination
and two on forensic pathology, who disputed Fowler's
assertion about the wrench. Two of the experts, one of whom
had performed Kilpatrick's autopsy, testified that the
injuries were not distinct and there was not sufficient
evidence to match any patterns to the wrench or to conclude
that the wrench caused the injuries. The third expert
testified that the wrench was a "possible object"
that could have caused the injuries, but there was not enough
evidence to permit a conclusion that the wrench was the
testified that on January 2, 1993, he ran into Jay
Kilpatrick, the victim's son, and Jay's co-worker,
Matt. All three drove together to Kilpatrick's home. Jay
and Matt went into the house and Givens waited in the car.
Givens testified that he entered the house about 15 minutes
after they arrived, and Kilpatrick offered him a drink.
Givens took a bottle of Coca-Cola from the fridge and drank
from it. Givens claimed that he witnessed Jay arguing with
his mother and striking her on the head. Givens stated that
when he pulled Jay off of Kilpatrick, Jay drew a knife, told
Givens to leave, and threatened to kill him and his family.
Givens testified that he left, but he went to Jay's house
to confront him the next day. Jay told Givens that he had
beaten and stabbed his mother to death because she would not
give him money to pay the restitution required as a condition
of Jay's probation. Givens denied that he killed
jury again found Givens guilty of first-degree murder and he
was sentenced to life without parole.
2011, Givens filed a petition for post-conviction relief for
forensic testing.Givens sought a renewed comparison analysis
of the wrench, the autopsy report, and the photographs. He
also requested short tandem repeat ("STR") DNA
testing of the swab taken from the wrench. After a hearing,
the Circuit Court denied the petition.
Testing Hearing Following Second Conviction
January 2017, Givens filed a pro se petition for
post-conviction DNA testing under CP § 8-201 in the
Circuit Court for Anne Arundel County. On this occasion,
Givens sought STR testing of the scraping obtained from the
wrench, which was not available at the time the samples were
initially tested in 1992. Givens asserted that STR testing
could prove that the wrench was not the murder weapon and
would "therefore constitute exculpatory evidence
relevant to his claim of wrongful conviction." The State
opposed Givens's petition, contending that because the
evidence had previously been unsuccessfully tested, the
scraping was not likely to contain adequate biological
material for analysis. Further, the State argued that any
results would not be exculpatory or mitigating.
hearing in June 2017, the Circuit Court denied Givens's
petition. The hearing judge concluded that the method of DNA
testing Givens sought-STR-was "very common,"
satisfies the Frye-Reed standards, and is
"accepted within the relevant scientific
community." He agreed with the State that the sample
"is very likely to have nothing probative left because
it was used for three amplifications already[, ]" but
did not agree that it was a sufficiently compelling reason to
deny Givens's petition. Rather, the hearing judge
determined that under the facts of the case, there was no
reasonable probability that the testing could produce
exculpatory or mitigating evidence.
judge set out his reasoning for that conclusion:
And I also note that the [wrench] itself was not at trial. No
one said unequivocally that the tool was matched to the blunt
force trauma to the victim's head in this case. In fact,
there were experts that had dueling testimony to that effect.
But what the Court does find even more compelling than all of
that, that is that it was a tool that was in his exclusive
possession and not, say, found at the crime scene, is that
you can only work through the four possibilities . . . .
And that is the first three that were mentioned in the
State's motion in this case, which is if it contained the
victim's DNA profile, or at least one that matched to an
incredibly high degree of scientific certainty. Then you
would have something that is not ...