Darrell Eugene Matthews v. State of Maryland, No. 12, September Term, 2023. Opinion
by Eaves, J.
MD. CODE ANN., CRIMINAL PROCEDURE ARTICLE § 8-201 – POST-CONVICTION DNA TESTING – EVIDENCE PRESERVATION
The Supreme Court of Maryland held that the State’s duty to preserve scientific
identification evidence is limited to those crimes enumerated in § 8-201(j)(1)(ii) of the
Criminal Procedure Article (“CP”) and does not extend to all crimes for which a person is
permitted to petition for DNA testing. Although there is a difference between the list of
petition-eligible crimes in CP § 8-201(b) and the list of crimes in CP § 8-201(j)(1)(ii) for
which evidence preservation is required, this difference does not constitute ambiguity. The
plain text of the statute, supported by its historical context, indicates that the General
Assembly intended a broad category of crimes for which convicted persons could petition
for DNA testing, but a narrower category of crimes for which evidence preservation is
required.
MD. CODE ANN., CRIMINAL PROCEDURE ARTICLE § 8-201 – POST-CONVICTION DNA TESTING – EVIDENCE PRESERVATION – INCHOATE
OFFENSES
The Supreme Court held that the State’s duty to preserve scientific identification evidence
does not apply to the inchoate offenses of those crimes listed under CP § 8-201(j)(1)(ii).
Because the language of the evidence preservation requirement is clear and unambiguous,
the Court declined to extend the requirement beyond the plain text to attempted murder or
other inchoate offenses.
MD. CODE ANN., CRIMINAL PROCEDURE ARTICLE § 8-201 – POST-CONVICTION DNA TESTING – EVIDENCE PRESERVATION – ATTEMPTED
MURDER
The Supreme Court held that the circuit court properly denied the Petition for Post-Conviction DNA Testing because the State was not required to preserve evidence related
to Appellant’s attempted murder conviction for the duration of his sentence and because
the evidence Appellant sought to test had been destroyed consistent with the police
department’s evidence retention policy. Therefore, the Court affirmed the judgment of the
circuit court.
Circuit Court for Montgomery County
Case No. 114155C
Argued: December 5, 2023
IN THE SUPREME COURT
OF MARYLAND
No. 12
September Term, 2023
______________________________________
DARRELL EUGENE MATTHEWS
v.
STATE OF MARYLAND
______________________________________
Fader, C.J.
Watts
Hotten
Booth
Biran
Gould
Eaves,
JJ.
______________________________________
Opinion by Eaves, J.
______________________________________
Filed: March 25, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2024.03.25
13:23:21
'00'04-
Gregory Hilton, Clerk
This case stems from the Circuit Court for Montgomery County’s denial of
Appellant, Darrell Eugene Matthews’s, second Petition for Post-Conviction DNA Testing
(the “Petition”) of a black glove found at the scene of the crime of attempted murder for
which Appellant was convicted. During the trial that led to Appellant’s conviction, the
glove was not marked for identification, offered or admitted into evidence, or discussed at
length. In 2019, after the filing of Appellant’s first petition for DNA testing in 2014, but
before the second petition for DNA testing in 2022, the glove was destroyed in accordance
with the evidence retention policy of the Montgomery County Police Department
(“MCPD”).
We are asked to decide whether the circuit court correctly denied Appellant’s
Petition. We hold that while the State’s duty to preserve scientific identification evidence
is governed by § 8-201(j) of the Criminal Procedure Article (“CP”) of the Maryland Code,
that duty does not extend to all crimes for which a person is permitted to petition for DNA
testing, nor does it apply to the inchoate offenses of those crimes listed in CP § 8-
201(j)(1)(ii). Further, the circuit court did not err when it denied Appellant’s Petition
because the glove was properly destroyed under the MCPD’s evidence retention policy.
Accordingly, for the reasons we outline below, we affirm the judgment of the circuit court.
I
BACKGROUND
A. Factual and Procedural History
In May 2011, Appellant was convicted of attempted first-degree murder and four
other charges stemming from an incident in Montgomery County, Maryland, in which the
victim survived two gunshot wounds.1
At trial, the MCPD detective who served as the lead investigator for the shooting
testified that the victim said that “he believed [the defendant] had a glove” during the
incident. The lead investigator further testified that, on the night of the shooting, a citizen
had turned over a glove to a patrol officer. That officer then delivered the glove to a
forensic technician who was present at the crime scene. On cross-examination, the lead
investigator testified that her understanding of the glove’s significance was that “it might
have . . . belonged to Darrell Matthews.” The investigator explained that she did not order
forensic testing of the glove for two reasons: (1) it was not collected in a standard manner,
and she did not know the glove’s origins, later clarifying, “[the glove] wasn’t recovered by
an officer. I don’t know how many hands it had passed through before it had got into an
evidence bag” and (2) she “had a victim and an eyewitness saying . . . who had shot [the
victim].”
The victim testified that he had known Appellant for approximately eight to 10
years, “maybe even longer,” before the shooting, Appellant was the shooter, he could see
Appellant clearly when Appellant shot him, and he (the victim) had called two people
shortly after the shooting and told them that Appellant was the shooter. The victim was
also asked at trial about whether he saw a glove and testified, “I don’t remember seeing a
glove.” Following his conviction, Appellant was subsequently sentenced to life
imprisonment for the attempted murder charge, along with 30 years consecutive for the
1
This trial was Appellant’s second; a 2010 trial on these charges resulted in a
mistrial due to juror misconduct.
2
other charges.2
In October 2014, Appellant filed a pro se petition seeking testing of the glove for
DNA and gunshot residue under CP § 8-201 (sometimes referred to herein as the “DNA
Testing Statute” or the “Statute). The State filed a response in opposition, arguing that
Appellant had not been convicted of any of the crimes for which a convicted person could
petition for testing and that the Statute does not provide for gunshot residue testing.3 The
circuit court denied Appellant’s request for testing in March 2015.4
Appellant filed a motion in August 2019 seeking the grand jury testimony
transcripts from his case, which the circuit court granted.
On August 5, 2022, Appellant filed the Petition that is the subject of this appeal.
Therein, Appellant noted that several of his convictions, including attempted murder, made
2
Following an appeal, Appellant’s conviction for possession of a regulated firearm
by a prohibited person under § 5-133(b) of the Public Safety Article of the Maryland Code
was vacated, and his sentence was reduced to a life sentence with 25 consecutive years.
See Matthews v. State, No. 1442, Sept. Term, 2011, slip op. at 7 (Md. Ct. Spec. App. Feb.
22, 2013). That appeal and the subsequent resentencing are not relevant to the present
appeal.
3
At the time of this pro se petition, attempted murder was not included in the list of
crimes for which a person could petition for DNA testing. 2008 Md. Laws, ch. 337.
4
Along with his October 2014 petition seeking testing, Appellant filed a pro se
Petition for Post-Conviction Relief based on ineffective assistance of counsel and an
amended petition through counsel in February 2015. Among other alleged examples of
ineffective assistance, the petition asserted that trial counsel had failed to request DNA and
gunshot residue testing of the glove. In April 2015, the circuit court denied relief based on
the failure-to-test argument, stating that the decision not to request testing was not
unreasonable. However, the circuit court granted the petition in part on alternative grounds
and allowed Appellant to file for review of his sentence by a three-judge panel. Ultimately,
a three-judge panel affirmed the sentence without a hearing.
3
him eligible to petition for DNA testing under CP § 8-201. He sought DNA testing of the
glove, arguing that such testing was in the interest of justice because “if DNA testing
excludes [him], that evidence would be exculpatory.”
In November 2022, the circuit court held a hearing on the Petition. While the parties
agreed that Appellant was eligible to petition for testing based on his attempted murder
conviction, the State nonetheless argued that Appellant could not meet the standard under
the statute because any DNA results from the glove would not produce exculpatory or
mitigating evidence. Because the State did not know at that point whether the glove still
existed, the court granted a continuance and ordered the State to determine the status of the
glove. On January 5, 2023, the State filed an affidavit from the MCPD lead investigator, 5
which stated that the time limit under the MCPD’s evidence retention policy (seven years
for attempted first-degree murder) had elapsed, the lead investigator had “authorized
destruction of the glove[,]” and the glove had been destroyed as of November 1, 2019.
One week later, the circuit court reconvened the hearing on the Petition, in light of
the MCPD’s verification that the glove had been destroyed. Appellant’s counsel argued
that the glove should have been preserved for the duration of Appellant’s sentence and that,
because it had been intentionally and willfully destroyed, the court must reopen the post-
conviction proceeding and order a new trial. The State argued that the statute’s evidence
preservation requirement does not cover attempted murder and reiterated its argument that,
even if it did, the glove would not provide exculpatory or mitigating evidence.
5
The individual who filed the 2023 affidavit is the same detective who served as
lead investigator for the 2009 shooting and who testified at Appellant’s 2011 trial.
4
In July 2023, the circuit court issued an opinion and order denying the Petition. The
circuit court ruled that under the DNA Testing Statute, the State’s destruction of the glove
was not wrongful because the evidence preservation requirement does not apply to
attempted murder convictions. It further stated that under Maryland Rule 4-710, the court
must deny the Petition because the State had searched for the glove, the glove no longer
existed, and there was no evidence that the glove had been intentionally and willfully
destroyed in contravention of the DNA Testing Statute or any applicable protocol. The
court also denied Appellant’s oral motion to reopen a post-conviction proceeding and order
a new trial. Appellant noted his appeal from the order, and the Appellate Court of Maryland
subsequently transferred the appeal to this Court. See CP § 8-201(k)(6).
B. The DNA Testing Statutory Framework and Crimes of Violence
An individual may petition for DNA testing in accordance with the following:
(b) Notwithstanding any other law governing postconviction relief, a person
who is convicted of a crime of violence under § 14-101 of the Criminal Law
Article may file a petition:
(1) for DNA testing of scientific identification evidence that the State
possesses that is related to the judgment of conviction; or
(2) for 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). The State is required to preserve certain scientific identification evidence
in accordance with the following:
(j)(1) The State shall preserve scientific identification evidence that:
(i) the State has reason to know contains DNA material; and
5
(ii) is secured in connection with a violation of § 2-201 [first-degree
murder], § 2-204 [second-degree murder], § 2-207 [manslaughter], §
3-303 [first-degree rape], or § 3-304 [second-degree rape] of the
Criminal Law Article.
(2) The State shall preserve scientific identification evidence described in
paragraph (1) of this subsection for the time of the sentence, including any
consecutive sentence imposed in connection with the offense.
CP § 8-201 (j). CP § 8-201(j)(3) sets forth the procedure a court must follow if the State
is unable to produce certain scientific identification evidence that it is required to preserve
under subsection (j)(1). It provides:
(3)(i) If the State is unable to produce scientific identification evidence
described in [CP § 8-201(j)(1)], the court shall hold a hearing to determine
whether the failure to produce evidence was the result of intentional and
willful destruction.
(ii) If the court determines at a hearing under subparagraph (i) of this
paragraph that the failure to produce evidence was the result of intentional
and willful destruction, the court shall:
1. order a postconviction hearing to be conducted in accordance
with subparagraph (iii) of this paragraph; and
2. at the postconviction hearing infer that the results of the
postconviction DNA testing would have been favorable to the
petitioner.
CP § 8-201(j)(3). Although this is the current version of the DNA Testing Statute at issue
here, we start with a review of the history of the statute.
In 2001, the General Assembly enacted a law to permit people to petition for post-
conviction DNA testing of scientific identification evidence related to seven specifically
enumerated crimes: first-degree murder, second-degree murder, manslaughter, first-degree
rape, second-degree rape, first-degree sexual offense, and second-degree sexual offense.
6
2001 Md. Laws, ch. 418. The original version of the Statute also required the State to
preserve scientific identification evidence secured in connection with those crimes for three
years after sentencing or for an additional period pursuant to an order from this Court or
the Appellate Court. Id.
The following year, the General Assembly revised the Statute to extend the length
of time for which the State must preserve scientific identification evidence to “the time of
the sentence, including any consecutive sentence imposed in connection with the offense.”
2002 Md. Laws, ch. 465. This revision to the Statute, however, did not expand the list of
crimes for which the additional length of time applied.
In 2015, the General Assembly considered a bill to expand the scope of the DNA
Testing Statute as it related to the list of crimes. S.B. 583, 2015 Leg., 435th Sess. (Md.
2015) (as introduced and assigned to the S. Jud. Proc. Comm., Feb. 9, 2015). The bill
originally proposed extending the ability to petition for DNA testing to convictions for any
“crime of violence under § 14-101 of the Criminal Law Article.” Id. At the time of this
bill’s introduction, § 14-101 included more crimes of violence or categories of crimes of
violence than the seven crimes enumerated in the original DNA Testing Statute; in addition
to murder, rape, first- and second-degree sexual offense, and voluntary manslaughter, the
“crimes of violence” list included, and continues to include, abduction, first-degree arson,
robbery, two carjacking offenses, several assault offenses, and other crimes. Md. Code
Ann., Crim. Law (“CR”) § 14-101(a) (2002, 2021 Repl. Vol.). Notably, the list of crimes
of violence also includes attempt offenses for many of the enumerated crimes, including
attempted murder. Id. § 14-101(a)(19).
7
The bill as originally introduced also proposed extending the evidence preservation
requirement to all of these crimes, including attempted murder. S.B. 583, 2015 Leg., 435th
Sess. (Md. 2015) (as introduced and assigned to the S. Jud. Proc. Comm., Feb. 9, 2015).
During the legislative process, however, the bill was changed to reduce the list of crimes
for which the State was required to preserve scientific identification evidence throughout
the term of a sentence. S. Jud. Proc. Comm. Rep. 32, 435th Sess. (Md. 2015). Specifically,
the amendment limited the evidence preservation requirement to those crimes for which
evidence preservation was already required under the statute (i.e., first-degree murder,
second-degree murder, manslaughter, first-degree rape, second-degree rape, first-degree
sexual offense, and second-degree sexual offense). Id. Ultimately, while the final bill
significantly expanded the list of offenses for which a person was eligible to petition for
DNA testing, it left unchanged the list of offenses for which the State was required to
preserve scientific identification evidence.6 2015 Md. Laws, ch. 369 (codified as revised
at CP § 8-201(b), (j)).
Therefore, since 2015, the DNA Testing Statute has permitted a person to petition
for testing based on any crime of violence listed in CR § 14-101, including the inchoate
offense of attempted murder. But the Statute requires the State to preserve scientific
6
There have been other revisions to the DNA Testing Statute beyond the ones
summarized here. See CP § 8-201 (2001, 2018 Repl. Vol.). Those amendments—which
address technical revisions and expand the ability to petition to searches of law
enforcement databases or logs, clarify the statute’s applicability to guilty pleas and other
pleas, modify the requirements for a court to order testing and the requirements for a
subsequent order, and establish the procedure following intentional and willful destruction
of evidence—are, however, not relevant to this appeal.
8
identification evidence only for the duration of a convicted person’s sentence for five
crimes: first-degree murder, second-degree murder, manslaughter, first-degree rape, and
second-degree rape.7 CP § 8-201(j)(1)(ii).
Once a petition for DNA testing has been filed and the court has held a hearing, 8
Maryland Rule 4-710 governs how the court must proceed. The Rule provides in pertinent
part:
(a)(1) The court shall deny a petition for DNA testing if it finds that:
(A) the State has made an adequate search for scientific identification
evidence that is related to the judgment of conviction, that no such
evidence exists within its possession or within its ability to acquire from
a third party on its own initiative or by court order, and that no such
evidence that the State was required by law or applicable protocol to
preserve was intentionally and willfully destroyed; or
(B) scientific identification evidence exists but the method of testing
requested by petitioner is not generally accepted in the relevant scientific
community, or that there is no reasonable probability that DNA testing
has the scientific potential to produce exculpatory or mitigating evidence
relevant to a claim of wrongful conviction or sentencing.
With the framework of the DNA Testing Statute, its application to crimes of violence, and
the procedural rule in mind, we turn now to an analysis of the case before us.
II
STANDARD OF REVIEW
Because Appellant’s Petition rests on an interpretation of the DNA Testing Statute,
7
In 2017, the General Assembly reclassified first- and second-degree sexual offense
as first- and second-degree rape, respectively. 2017 Md. Laws, ch. 161; see also 2017 Md.
Laws, ch. 62, § 6.
8
In certain circumstances, a hearing is not required after the filing of a petition. See
Md. Rule 4-709(b).
9
this Court reviews the circuit court’s decision de novo. See Edwards v. State, 453 Md. 174,
185 (2017) (“Because we are asked to interpret the language in the post-conviction DNA
testing statute . . . our review is plenary.”). For factual findings that do not rely on this
Court’s statutory interpretation (e.g., whether the State has made an adequate search for
scientific identification evidence), we apply a clearly erroneous standard. See Phillips v.
State,
451 Md. 180, 189 (2017) (“The trial court’s determination . . . to the extent that [it]
is a factual finding, will not be set aside unless clearly erroneous.”).
III
ANALYSIS
In urging this Court to reverse the circuit court’s denial of his Petition, Appellant
first argues that he is eligible for post-conviction DNA testing because he was convicted
of a crime of violence under CR § 14-101 and because there is a reasonable probability that
the testing has the potential to produce exculpatory or mitigating evidence. See CP § 8-
201(d)(1). Next, Appellant asserts that the State was required to preserve the glove as
scientific identification evidence because the evidence preservation requirement logically
follows from a person’s ability to petition for DNA testing. Appellant also contends, albeit
briefly, that his attempted murder conviction is covered by the State’s duty to preserve
evidence for murder convictions, noting that attempted murder is the inchoate offense of
murder and carries the same penalty. The Statute requires evidence preservation when the
scientific identification evidence is secured, he argues, “in connection with a violation” of
the listed crimes, which includes both first- and second-degree murder. Appellant argues
that the statute is ambiguous and that it should be construed in his favor based on the rule
10
of lenity. Finally, Appellant reasons that because the State had a duty to preserve the glove
as scientific identification evidence for the duration of his sentence, its willful destruction
means that the court must grant a post-conviction hearing and infer that the results of the
testing would have been favorable to him. See CP § 8-201(j)(3)(ii) (“If the court determines
. . . that the failure to produce evidence was the result of intentional and willful destruction,
the court shall . . . order a post-conviction hearing . . . and . . . at the post-conviction hearing
infer that the results of the post-conviction DNA testing would have been favorable to the
petitioner.”).
The State argues that the evidence preservation requirement in the DNA Testing
Statute applies only to certain completed offenses and, therefore, the State did not violate
the statute when it destroyed evidence related to an attempted murder conviction. Under
the plain text of the statute, the State contends, there is a clear distinction between the list
of crimes for which DNA testing petitions are permitted and the list of crimes for which
evidence preservation is required. Attempted murder is a crime for which a convicted
person may petition for DNA testing, but it is not a crime for which the State is required to
preserve the evidence throughout the duration of the sentence. The State also points to the
2015 revision of the DNA Testing Statute to support its argument that the General
Assembly “specifically and intentionally declined to expand the evidence retention
requirement” to attempted murder and other crimes. According to the State, because it was
not required to preserve the glove as scientific identification evidence, the circuit court
correctly denied Appellant’s Petition under Maryland Rule 4-710.
We hold that the DNA Testing Statute’s evidence preservation requirement does not
11
apply to an attempted murder conviction. To begin, we disagree with Appellant that CP §
8-201 is ambiguous as to whether the State’s duty to preserve scientific identification
evidence for the duration of the sentence applies to an attempted murder conviction. We
have long adhered to the principle that “[t]he best source of legislative intent is the statute’s
plain language, and when the language is clear and unambiguous, our inquiry ordinarily
ends there.” Smith v. State, 399 Md. 565, 578 (2007) (citations omitted). In addition, we
“neither add nor delete words to a clear and unambiguous statute to give it a meaning not
reflected by the words the [General Assembly] used or engage in forced or subtle
interpretation in an attempt to extend or limit the statute’s meaning.” Taylor v.
NationsBank, N.A.,
365 Md. 166, 181 (2001).
Here, the statute is clear and unambiguous. It expressly lists the crimes for which
the State is required to preserve evidence throughout the individual’s sentence: “The State
shall preserve scientific identification evidence that . . . is secured in connection with a
violation of § 2-201 [first-degree murder], § 2-204 [second-degree murder], § 2-207
[manslaughter], § 3-303 [first-degree rape], or § 3-304 [second-degree rape] of the
Criminal Law Article.” CP § 8-201(j)(1). Attempted first-degree murder—a violation of
CR § 2-205—is not included in this list. In light of this unambiguous statutory text, this
Court cannot engage in “[a] forced . . . interpretation” to extend the evidence preservation
requirement to attempt offenses. Taylor, 365 Md. at 181.
The DNA Testing Statute’s historical amendments, which are a part of
understanding the context of the statutory scheme, further support our interpretation of its
12
plain text.9 The 2015 revision is remarkably on point. Therein, the General Assembly
considered S.B. 583, which, as originally introduced, would have extended the evidence
preservation requirement to additional crimes, including attempted first-degree murder.
However, as noted above in Section I.B., the General Assembly ultimately amended the
bill to keep the evidence preservation requirement unchanged—a decision that specifically
omitted the inchoate offense of attempted first-degree murder. From this statutory context,
we conclude that the General Assembly considered—but ultimately rejected—a proposal
to extend the evidence preservation requirement beyond the statute’s current scope.
This interpretation is also consistent with our prior case law. In Washington v. State,
we held that conspiracy to commit murder was not a petition-eligible offense under CP §
8-201, even though murder and attempted murder are included on the statutory list of
crimes of violence. 450 Md. 319, 331 (2016). We noted that because the General
Assembly knows how to draft legislation that includes conspiracy, but had declined to do
so in this statute, we were prohibited from interpreting the statute beyond its plain meaning
and legislative intent. Id. at 334–35. Just as in Washington, where we reasoned that the
list of specific petition-eligible offenses within the statute does not encompass any related
inchoate offenses, here we conclude that the offenses enumerated in CP § 8-201(j)(1)(ii),
for which evidence preservation is required, do not encompass their related inchoate
9
As we discussed in Kaczorowski v. Mayor and City Council of Baltimore, we “may
and often must consider” certain evidence that provides context for the statutory language,
including “amendments that occurred as it passed through the legislature[.]” 309 Md. 505,
515 (1987); cf. Williams v. Morgan State Univ.,
484 Md. 534, 557 n.13 (2023) (examining
revisions to the Maryland Tort Claims Act as part of the statute’s historical context).
13
offenses.
Second, we reject Appellant’s argument that the rule of lenity should apply in this
case. Citing Quansah v. State, 207 Md. App. 636 (2012), Appellant argues:
The statute, being somewhat ambiguous, should be governed by the Rule of
Lenity and fundamental fairness, and construed in favor of the Appellant.
When an ambiguity exists, the rule of lenity applies. For example, if there is
doubt as to the penalty, the law directs that his punishment must be construed
to favor a milder penalty over a harsher one.
The rule of lenity is a principle of statutory construction. White v. State, 318 Md.
740, 746 (1990). Under that rule, when there is an “otherwise unresolvable ambiguity” in
a criminal statute, this Court will employ the interpretation that favors the defendant.
Oglesby v. State,
441 Md. 673, 681 (2015). We have cautioned, however, that “[i]t is a
tool of last resort, to be rarely deployed and applied only when all other tools of statutory
construction fail to resolve an ambiguity.”
Id. Here, reliance on the rule is not appropriate
because there is no ambiguity; the legislative intent is clear based on both the statutory text
and historical context. Therefore, we decline Appellant’s invitation to apply the rule of
lenity in this case.
The authority to extend the evidence preservation requirement to attempted murder
rested with the General Assembly when it revised CP § 8-201 in 2015, and that authority
remains with the General Assembly today. If Appellant or others similarly situated believe
that the evidence preservation requirement should extend to certain attempt offenses,
including attempted murder, they can urge the General Assembly to make that change.
However, this Court declines to do so by judicial fiat.
14
After considering the clear and unambiguous text of CP § 8-201, examining its
historical amendments, reviewing our analysis in Washington v. State, and reasoning that
the rule of lenity does not apply, we hold that the State’s duty to preserve scientific
identification evidence is limited to those offenses enumerated in CP § 8-201(j)(1)(ii) and
does not extend to all crimes for which a person is permitted to petition for DNA testing.
Furthermore, we hold that the duty to preserve scientific identification evidence does not
apply to the inchoate offenses of those crimes listed in CP § 8-201(j)(1)(ii).10
Finally, Appellant also contends that the State’s willful and intentional destruction
of the glove means that the circuit court was required to grant a post-conviction hearing
and infer that the results of the testing would have been favorable to him.11 Essentially, he
suggests that, because the glove was destroyed after he filed a motion in August 2019
seeking grand jury testimony transcripts from his case, the State willfully and intentionally
destroyed the glove to thwart his effort to have it tested. We find no merit in Appellant’s
argument.
10
The only exception is where an inchoate offense is specifically enumerated. For
instance, the first-degree murder statute states that “[a] person who solicits another or
conspires with another to commit murder in the first degree is guilty of murder in the first
degree if the death of another occurs as a result of the solicitation or conspiracy.” CR § 2-
201(c). Because the statute explicitly includes these two inchoate offenses, if a person is
convicted of first-degree murder under CR § 2-201, the State has a duty to preserve the
scientific identification evidence related to that conviction, even if the murder was
accomplished through solicitation or conspiracy.
11
It is unclear if this is connected to Appellant’s argument that the rule of lenity
applies or if it is a separate contention. Nonetheless, we will address it separately.
15
The relief Appellant seeks is grounded in subsection (j)(3) of the DNA Testing
Statute which states:
If the State is unable to produce scientific identification evidence
described in paragraph (1) of this subsection, the court shall hold a hearing
to determine whether the failure to produce evidence was the result of
intentional and willful destruction.
In order for the Appellant to be entitled to such a hearing, the State must be unable
to produce scientific identification evidence that it was statutorily required to preserve. CP
§ 8-201(j)(1) requires the State to preserve evidence only when it has reason to know it
contains DNA material and it was secured in connection with one of the offenses
enumerated in the statute. Because attempted murder is not one of the statutorily
enumerated offenses, the State had no duty to preserve the glove. Accordingly, the circuit
court was not required “to determine whether the failure to produce the evidence was the
result of intentional and willful destruction.” CP § 8-201(j)(3).12 Having determined that
12
We note that Maryland Rule 4-710 further supports our conclusion that the glove’s
intentional and willful destruction is immaterial in this case. That Rule, in pertinent part,
provides that the
court shall deny a petition for DNA testing if it finds that:
the State has made an adequate search for scientific identification evidence
that is related to the judgment of conviction, that no such evidence exists
within its possession or within its ability to acquire from a third party on its
own initiative or by court order, and that no such evidence that the State was
required by law or applicable protocol to preserve was intentionally and
willfully destroyed[.]
Md. Rule 4-710(a)(1)(A) (emphasis added). Here, as explained, the State was not “required
by law or applicable protocol to preserve” the glove. In addition to there being no statutory
requirement for the preservation of the glove, the uncontroverted evidence was that the
16
the glove the Appellant sought to test had been destroyed and that retention was not
required, the circuit court correctly denied the Petition pursuant to Maryland Rule 4-710(a).
IV
CONCLUSION
We hold that the State was not required to preserve scientific identification evidence
related to Appellant’s attempted murder conviction. Maryland Rule 4-710(a)(1)(A)
requires a court to deny a petition seeking DNA testing if it finds that the State has
adequately searched for scientific identification evidence, the evidence is neither in the
State’s possession nor obtainable from a third party, and the State did not intentionally and
willfully destroy any evidence that it was required by law or protocol to preserve.13 The
circuit court correctly found that the State had searched for the glove, the glove had been
glove was destroyed in conformance with the Montgomery County Police Department’s
Retention Policy.
13
At the November 7, 2022, hearing on Appellant’s Petition—prior to the discovery
that the glove had been destroyed—the State argued that there was not a reasonable
probability that the testing would produce exculpatory or mitigating evidence because
“there’s . . . no chain of custody for this glove beyond the officer receiving it from
someone[.]” In the original statute from 2001, an unbroken chain of custody was an
explicit requirement for testing. See 2001 Md. Laws, ch. 418 (codified at CP § 8-201)
(“[A] court shall order DNA testing if the court finds that . . . the scientific identification
evidence to be tested has been subject to a chain of custody . . . that is sufficient to establish
that it has not been substituted, tampered with, replaced, or altered in any material
aspect . . . .”). However, in 2003, the General Assembly significantly reduced the
requirements to petition for testing, including eliminating the chain of custody requirement.
See 2003 Md. Laws, ch. 240; see also Jackson v. State, 448 Md. 387, 405-06 (2016) (“In
2001, the standards governing when DNA testing could be ordered were rigorous[,]” but
“the 2003 amendment relaxed the standard for entitlement to DNA testing[.]”). We,
therefore, caution the State against relying in the future on the argument that testing need
not occur solely because of a chain of custody issue, given the General Assembly’s decision
to eliminate that requirement.
17
destroyed, and the State was not required to preserve it by law or applicable protocol. The
circuit court was, therefore, required to deny the petition under Maryland Rule 4-
710(a)(1)(A). Accordingly, we affirm the judgment of the Circuit Court for Montgomery
County.
JUDGMENT OF THE
CIRCUIT COURT FOR
MONTGOMERY COUNTY
AFFIRMED. APPELLANT
TO PAY COSTS.
18
