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Givens v. State

Court of Appeals of Maryland

July 12, 2018

ALBERT GUSTAV GIVENS
v.
STATE OF MARYLAND

          Argued: May 7, 2018

          Circuit Court for Anne Arundel County Case No.: 02-K-92-002270

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

          OPINION

          Adkins, J.

         Albert 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").[1] 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.

         FACTS AND LEGAL PROCEEDINGS

         Givens was first convicted of the murder of Marlene Kilpatrick in 1993.[2] 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.[3] 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.

         The 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.

         There 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.

         Shortly 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.

         Only 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.[4]

         Kilpatrick's 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 trial.

         Givens 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.

         Upon 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.

         Vosburgh 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.[5] 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.

         Dr. 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.[6] 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.

         Dr. 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. Kilpatrick."

         Defense 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 weapon.

         Givens 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 Kilpatrick.

         The jury again found Givens guilty of first-degree murder and he was sentenced to life without parole.

         In 2011, Givens filed a petition for post-conviction relief for forensic testing.[7]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.

         DNA Testing Hearing Following Second Conviction

         In 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.

         After a 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[8] 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.

         The 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 ...

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