James Patrick Beaman v. State of Maryland, No. 67, Sept. Term 2016. Opinion by Greene, J.

CRIMINAL JUSTICE—POST-CONVICTION DNA TESTING

Under § 8-201 of the Criminal Procedure Article, persons convicted of crimes of violence are
entitled to post-conviction DNA testing upon a showing that “a reasonable probability exists
that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence
relevant to a claim of wrongful conviction or sentencing and the requested DNA test employs
a method of testing generally accepted within the relevant scientific community.” Exculpatory
evidence is evidence that tends to establish the innocence of the petitioner. The statute does
not require a petitioner to show that the outcome of his or her case necessarily would have been
different, had the jury been presented with the evidence the petitioner seeks to obtain through
the requested DNA testing. The Circuit Court applied the incorrect legal standard in ruling that
there was not a “substantial possibility” that DNA testing of the requested items would “change
the verdict.”

CRIMINAL JUSTICE—POST-CONVICTION DNA TESTING—EXCULPATORY
EVIDENCE

Appellant asserts that DNA testing of blood evidence, found on the patio under a broken
window from which the victim jumped, would show that the blood belonged to the victim,
which in turn, would establish that an eyewitness misidentified Appellant. Section § 8-201(d)
requires a reasonable probability that the testing has the scientific potential to exculpate a
petitioner, which rises above a mere possibility. There is no reasonable probability that the
testing of the blood found on the patio would have the scientific potential to produce
exculpatory or mitigating evidence. Testing blood, found at a location where a victim landed
after being shot and jumping out of a fourth-story window, to show that the blood belonged to
the victim does not logically suggest that an eyewitness misidentified Appellant. For these
reasons, the Circuit Court’s denial of Appellant’s petition is affirmed.
Circuit Court for Prince George’s County
Case No. CT900270B
Argued: May 5, 2017


                                                 IN THE COURT OF APPEALS

                                                        OF MARYLAND

                                                             No. 67

                                                     September Term, 2016

                                           ______________________________________

                                                 JAMES PATRICK BEAMAN

                                                                v.

                                                   STATE OF MARYLAND


                                                Greene,
                                                Adkins,
                                                McDonald,
                                                Watts,
                                                Hotten,
                                                Getty,
                                                Rodowsky, Lawrence F., (Senior Judge,
                                                Specially Assigned)

                                                             JJ.
                                           ______________________________________

                                                     Opinion by Greene, J.
                                           ______________________________________

                                                Filed: June 21, 2017
      This case involves a direct appeal under the Post-conviction DNA Testing Statute,

Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the Criminal Procedure Article

(“CRIM. PROC.”). James Patrick Beaman (“Appellant”) seeks review of the denial by the

Circuit Court for Prince George’s County of his Petition for Post-conviction DNA Testing.

                                   BACKGROUND
                                  Procedural History

      On February 2, 1990, Appellant was charged in the Circuit Court for Prince

George’s County with four counts of first-degree murder, four counts of using a handgun

in the commission of a crime of violence, and conspiracy to commit first-degree murder.

After a jury trial between April 18, 1990 and April 21, 1990, the jury convicted Appellant

of all counts. On September 13, 1990, Appellant was sentenced to four consecutive terms

of life without the possibility of parole, and four concurrent terms of twenty years.

Appellant noted an appeal on September 19, 1991, and the intermediate appellate court

affirmed the convictions and sentences.

      Appellant subsequently filed several post-conviction petitions. Appellant filed the

instant pro se Petition for DNA Testing of Scientific Evidence in the Circuit Court for

Prince George’s County on August 30, 2012. A hearing on the Petition was held on March

17, 2016. On October 20, 2016, the Circuit Court issued an order denying Appellant’s
Petition. On November 2, 2016, Appellant filed a notice of direct appeal to this Court

pursuant to § 8-201(k)(6).1

                                           Facts

       In the early morning hours of November 7, 1989, police responded to the scene of

6439 Hil-Mar Drive, an apartment residence in Prince George’s County, after receiving a

call for shots fired.   Police found four men—Terrance Stephenson, Edmond Stephenson,

Robert Morton, and Abraham Williams—murdered as a result of gunshot wounds. The

body of Abraham Williams was found inside the fourth-floor apartment unit in front of the

door. Police discovered a broken window in one of the bedrooms, through which it

appeared someone had jumped. Officers found a second body in the hallway of the living

room, and a third body in the den area of the apartment. The three men in the apartment

each had a gunshot wound to the head. Police found a fourth body, that of Edmond

Stephenson, at the side of the apartment building.

       The State’s theory of the case was that the victims, who were living in the apartment

together, were killed by Appellant and Ervin Holton in retaliation for a dispute over turf

for narcotic sales. The dispute between Appellant, Holton, and the Stephenson brothers

had occurred one week prior to the murders.2 Investigators recovered blood evidence from


1
 Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201(k)(6) of the Criminal Procedure
Article provides that, “[a]n appeal to the court of appeals may be taken from an order
entered under this section.”
2
  The State maintains that there were two shooters in the Stephenson apartment because
the ballistics evidence showed that two of the men were shot with a .38 and the other two
with a 9mm firearm.


                                           2
the ground-level patio, directly below the fourth-floor apartment’s window, from which,

the State believed, the fourth victim had jumped. The State’s theory regarding the murder

of the fourth victim, Edmond Stephenson, was that he jumped through the bedroom

window to escape and was shot in the buttocks as he did so. The State believed that

Edmond Stephenson landed on a balcony where he tried to get into that apartment to evade

the shooters. Edmond Stephenson left blood on the ground of the balcony’s patio as well

as on a table that was on the balcony’s patio. The State argued that Edmond Stephenson

was then “chased, pursued like an injured animal” and ultimately shot to death by either of

the two shooters as he ran around the back of the building.3

       At trial, Doria Rogers testified as an eyewitness. Ms. Rogers and her mother lived

in the same apartment complex where the murders took place. Ms. Rogers knew the

deceased residents of the apartment. Ms. Rogers testified that loud noises “like people was

fighting or something” awoke her on the morning of the November 7. She testified that

she got up and ran to the balcony and saw “two boys running past.” One was light-skinned

and wore a white jacket with blue windbreaker pants and was carrying a gun. The other

was dark-skinned and wore a black coat.        Ms. Rogers described the men as being

“together.” Ms. Rogers testified that the light-skinned man was in front and the dark-




3
  The State believed the two shooters ran out of the apartment after Edmond jumped out of
the window. A witness, Hattie Tharps testified that she heard running footsteps down the
stairs after hearing shots in the apartment next to hers.


                                           3
skinned man was behind him.4 Both men were about the same height and the dark-skinned

man had a “big nose and a little bit of hair on his mustache.” Ms. Rogers testified that she

watched until the men disappeared from her sight. Once she returned inside the apartment,

she heard gunshots.

       On the day following the murders, Ms. Rogers saw the same two men walking by

the apartment building. She testified that the dark-skinned man was wearing the same

pants he wore the previous night and the light-skinned man was wearing the same coat he

wore the previous night. The police showed Ms. Rogers photographic arrays and she

identified Appellant and Ervin Holton as the two men she saw running from the scene the

morning of the murders.

       At trial, the State conceded that it could not ascertain which of the two suspects shot

which victim, but the State argued that Appellant at least bore accomplice liability in all

four shootings.    Defense counsel explained to the jury during closing arguments

Appellant’s theory of misidentification:

       [Mr. Ferguson5] was specifically inquired of as to whether there were one
       person or two persons who ran behind that building. He said there was one
       person. This evidence was established primarily through the direct
       examination of the [S]tate, but the [S]tate doesn’t mention this evidence to
       you, and why not? Because if you consider this evidence and you consider
       the credibility, and you are the judges of the credibility of the witnesses, if
       you consider the credibility of Mr. Ferguson, who is a middle-aged

4
  This testimony was apparently inconsistent with an earlier statement Ms. Rogers made to
police, in which she said that the dark-skinned man was in front, followed by the light-
skinned man.
5
  William Ferguson was a witness who lived in one of the nearby apartments and testified
that he looked outside of his window after hearing gunshots.


                                            4
         gentleman who is living across the court who knows none of the people
         involved here who testified to you directly, looked right at you, told you that
         that is what he saw, that there were no obstructions, and you consider that
         evidence together with what Doria Rogers tells you that she saw, you must
         reach the inescapable conclusion that the second person that she saw from
         inside of her apartment looking out across the balcony and her limited field
         of vision, and there is an exhibit which demonstrates that where she was
         asked to make some marks …the conclusion is that the dark-skinned person
         that she saw ahead of the light[-]skinned person was a person who ended up
         dead at the corner of 6437, Edmond Stephenson.
         What she saw in those two seconds was Edmond Stephenson running for his
         life and a gentleman in a white coat and white hood with a gun she said she
         saw that individual with a gun chasing after him.
As previously stated, the jury found Appellant guilty of all counts.6

                                Post-conviction Proceedings

         In Appellant’s pro se Petition, he sought DNA testing of the blood-evidence found

on the first-floor patio. The Circuit Court held a hearing on March 17, 2016 regarding

Appellant’s post-conviction petition. At the hearing, Appellant, representing himself,

stated in a colloquy with the hearing judge why he believed that DNA testing of the blood

was appropriate:

         THE COURT:            Because there was some confusion by Ms. Rogers with
         respect to this dark-skinned man versus light-skinned man, right?

         [APPELLANT]:          Exactly.

         THE COURT:            And the order they were moving in.

         [APPELLANT]:         Yes, Your Honor. Yes.

         THE COURT:          Okay. And why would that information have some
         mitigation or exculpatory effect on your case?


6
    The State tried Appellant separately from Ervin Holton.
                                              5
       [APPELLANT]:        It would show that she misidentified me as being the
       victim. And also, Your Honor –

       THE COURT:            She misidentified you as being the victim?

       [APPELLANT]:          She identified me as being the dark-skinned man. And
       I’m trying to say it was not me, it was Mr. Edward Stevenson [sic] that she
       seen running when (inaudible). Also I’d like to say that in my trial, on page,
       I believe it’s 420, the trial judge told the jury that if you believe her
       identification, then it was enough to convict me. She also gave a second
       identification saying the next day or two days later, she seen the same two
       men that she seen out back of her apartment, in front of her apartment two
       days later. She gave the jury reason to believe that she did see me. But the
       blood tests will show that it was the victim that she seen and it would have
       been impossible for her to see the same two men, because the victim, Edward
       Stevenson [sic] was deceased.

                                             ***

       [APPELLANT]:        It could establish that the dark-skinned man was
       somebody else other than myself. That’s what I’m claiming . . . I’m saying
       that the dark-skinned person that was seen running underneath the
       (inaudible) was the victim. I’m saying if I could have that blood tested, I
       could establish by showing a jury that it was the victim that she seen
       underneath (inaudible), not the defendant.

       The Circuit Court issued a written order denying Appellant’s petition. In doing so,

the court ruled:

               [Mr. Beaman] was charged with four counts of first degree murder.
       Murder is a crime of violence as detailed in § 14-101 of the Criminal Law
       Article, thus it is the Petitioner’s right to request for DNA testing of scientific
       identification evidence the State possesses related to the judgment of
       conviction.
               [Mr. Beaman] contends that the State’s eyewitness Doria Rogers
       testified at Grand Jury that a dark-skinned man was in the front. [Mr.
       Beaman] continues to explain that on June 20, 1990, Doria Rogers testified
       in trial that the dark-skinned man was second. [Mr. Beaman] states that on


                                              6
       August 8, 1990,7 State’s witness Doria Rogers testified that the dark-skinned
       person was in front and the light[-]skinned person was in the back, and then
       she recanted her testimony. Because of this, [Mr. Beaman] claims that the
       State knowingly used false evidence to obtain a conviction. [Mr. Beaman]
       explains that the jury determines the truthfulness and or the falsity of the
       evidence and had no reason to believe that the red fluid substance was
       relevant to the identity of the dark-skinned person. [Mr. Beaman] claims that
       the DNA test is relevant to the true identity of the dark-skinned person seen
       running underneath and past the balcony area. [Mr. Beaman] continues to
       claim that there was no eyewitness testimony or evidence introduced at his
       trial that identified the victim Edmond Stephenson as the dark-skinned
       person running to or from the patio area. [Mr. Beaman] requests a search of,
       but not limited to, the Prince George’s County Police Department’s Forensic
       Science Division and other law enforcement agencies or databases or logs
       used for the purpose of identifying the source of the physical evidence used
       for DNA testing.
               The State argues that [Mr. Beaman] is seeking to prove what was
       already presented at trial, that the donor of the blood found on or about the
       patio area belonged to the victim Edmund Stephenson, and thus the petition
       should be denied as DNA testing would not produce mitigating or
       exculpatory evidence relevant to a claim of wrongful conviction or
       sentencing. The [c]ourt agrees. In this instance, it is not reasonable to
       believe that simply testing blood found at the crime scene would prove [Mr.
       Beaman’s] innocence, especially since the State never presented an argument
       that the blood belonged to [Mr. Beaman]. The Victim was found shot several
       times, and therefore it is reasonable to believe his blood would be found at
       the scene. Since there is not a substantial probability that testing DNA would
       have changed the verdict, the request is denied.
                                      DISCUSSION
                                   Standard of Review

       Because we must interpret CRIM. PROC. § 8-201 and determine whether the hearing

court applied the correct legal standard when it denied Appellant’s petition, our review is



7
 In his response to the State’s answer to his petition, Appellant refers to Ms. Rogers’
August 8, 1990 testimony at the trial of Ervin Holton.
                                           7
de novo. Edwards v. State, __ Md. __, __ A.2d __, Slip Op. 9 (2017). See also 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.”).

                                    Parties’ Contentions

       Appellant maintains that the Circuit Court erroneously denied his petition for post-

conviction DNA testing because in reaching its conclusion, the court applied the incorrect

standard of law. Appellant argues that the standard is whether there is a reasonable

probability that DNA testing has the scientific potential to produce exculpatory or

mitigating evidence relevant to a claim of wrongful conviction or sentencing. Appellant

contends that the Circuit Court applied a more stringent standard when it ruled that DNA

testing would not “prove” Appellant’s “innocence” and that there was not a “substantial

probability” that DNA testing would have “changed the verdict.”

       The State argues that even if the outcome of the requested testing is as Appellant

desires, such would not produce exculpatory or mitigating evidence. The State contends

that if DNA testing showed that the blood belonged to the victim, this would be consistent

with the State’s theory at trial that the victim jumped out of the window after being shot in

the buttocks in an attempt to flee from the shooters, but that the shooters chased after the

victim and shot him fatally outside the apartment. The State notes that it argued at trial

that the blood on the ground was that of the victim, and that it never argued that the blood

belonged to the assailant.

                                    CRIM. PROC. § 8-201

       We recently discussed generally our Post-conviction DNA testing statute in

                                             8
Edwards v. State:

              Maryland’s post-conviction DNA testing statute, which was enacted
      by the General Assembly in 2001, is codified at § 8-201 of the Criminal
      Procedure Article. “Section 8-201 entitles persons convicted of certain
      serious crimes to pursue DNA testing of physical evidence that is in the
      possession of the State and might produce exculpatory or mitigating evidence
      relevant to a claim of wrongful conviction or sentencing.” Simms v. State,
      409 Md. 722, 727, 976 A.2d 1012, 1015–16 (2009). See also Md. Rule 4-
      703(2)(A).
              The statute was enacted “in line with a nationwide trend to adopt post-
      conviction DNA testing statutes designed to provide an avenue for the
      exoneration of the actually innocent.” Blake v. State, 395 Md. 213, 219, 909
      A.2d 1020, 1023 (2006). We have stated that the purpose of CRIM. PROC. §
      8-201 is to “facilitate the establishment of claims of actual innocence for
      serious crimes.” Thompson v. State, 395 Md. 240, 252, 909 A.2d 1035, 1042
      (2006).
              Under CRIM. PROC. § 8-201, persons convicted of certain crimes of
      violence may file a petition requesting “DNA testing of scientific
      identification evidence that the State possesses that is related to the judgment
      of conviction.” CRIM. PROC. § 8-201(b)(1). “Scientific identification
      evidence” is defined in § 8-201(a)(5) as evidence that

             (i) is related to an investigation or prosecution that resulted in
             a judgment of conviction;

             (ii) is in the actual or constructive possession of a law
             enforcement agency or agent of a law enforcement agency; and

             (iii) contains biological evidence from which DNA may be
             recovered that may produce exculpatory or mitigating evidence
             relevant to a claim of a convicted person of wrongful
             conviction or sentencing if subject to DNA testing.

      CRIM. PROC. § 8-201(a)(5). “Biological evidence” is defined as evidence that
      “includes, but is not limited to, any blood, hair, saliva, semen, epithelial cells,
      buccal cells, or other bodily substances from which genetic marker groupings
      may be obtained.” CRIM. PROC. § 8-201(a)(2). The statute mandates that a
      court grant a petition for DNA testing if the court finds:

             (i) a reasonable probability exists that the DNA testing has the
             scientific potential to produce exculpatory or mitigating
             evidence relevant to a claim of wrongful conviction or

                                             9
                sentencing; and

                (ii) the requested DNA test employs a method of testing
                generally accepted with in the relevant scientific community.

       CRIM. PROC. § 8-201(d)(1).

Edwards, __ Md. __, __ A.3d __, Slip Op. 11–15 (footnotes omitted). The parties have

not raised as an issue on appeal Appellant’s compliance with the scientific testing

requirements of § 8-201(d)(1)(ii), thus our concern is focused on the requirements of § 8-

201(d)(1)(i).

       In Edwards, we defined the term “exculpatory” under § 8-201(d)(1) as meaning

“evidence that would tend to clear the accused of guilt, or tend to establish his or her

innocence.” __ Md. __, __ A.3d __, Slip Op. 21. We further explained that “‘exculpatory’

under this provision does not require a petitioner to establish that the [outcome] would have

been different if the DNA results sought were known at the time of the trial.” Id. There,

we held that the hearing judge applied the incorrect standard of law in denying Mr.

Edward’s petition for post-conviction DNA testing where the judge ruled that there was

“no possibility that a DNA test performed on the items requested would exonerate” Mr.

Edwards. Id.

       Here, the hearing judge’s ruling included language that “it is not reasonable to

believe that simply testing blood found at the crime scene would prove [Mr. Beaman’s]

innocence[.]” (emphasis added). Further, the hearing judge concluded “Since there is not

a substantial possibility that testing DNA would have changed the verdict, the request is

denied.” (emphasis added). Applying Edwards, we hold that the hearing judge applied the


                                            10
wrong standard of law in denying Appellant’s petition. By invoking language suggesting

that a petitioner must show that the DNA results would prove his or her innocence or that

the result would have been different had the DNA results been known at the time of the

conviction, the hearing judge applied a standard of law more stringent than § 8-201(d)(1)

requires.

       Furthermore, in concluding that “there is not a substantial possibility that testing

DNA would have changed the verdict,” the hearing judge ostensibly relied on the more

rigorous standard used to determine whether a petitioner is entitled to a new trial under §

8-201(c). Recently, in Wallace v. State, we explained:

       If the petitioner moves for a new trial “on the grounds that the conviction
       was based on unreliable scientific evidence,” then the court must determine
       whether a “substantial possibility exists that the petitioner would not have
       been convicted without the evidence.” CP § 8-201(c) (emphasis added).
       Similarly, “[i]f the results of the postconviction DNA testing are favorable to
       the petitioner,” then the court must find “that a substantial possibility exists
       that the petitioner would not have been convicted if the DNA testing results
       had been known or introduced at trial” before ordering a new trial. CP § 8-
       201(i)(2)(iii) (emphasis added).
       Because this “substantial possibility” standard relates to whether the
       outcome of the petitioner’s trial would have been different, it is a higher
       threshold than the “reasonable probability” standard, which relates only to
       whether the DNA testing has the potential to produce exculpatory or
       mitigating evidence, not what the effect of that evidence would have been at
       trial.
Wallace v. State, __ Md. __, __ A.3d __, Slip Op. 16, n. 8 (2017) (emphasis in italics

added). Accordingly, we hold that the hearing court erred in applying the incorrect

standard of law when denying the petition. We shall now evaluate Appellant’s petition

under the correct standard of law as set forth in Edwards.

                                            11
       In Edwards, we held that under the correct standard of law, Mr. Edwards was

entitled to DNA testing of a cigarette lighter, and we ordered that such testing be

performed. Edwards, __ Md. __, __ A.3d __, Slip Op. 26. The pertinent facts of that

case were that Mr. Edwards was convicted of attempted rape and assault of the victim, Ms.

K. Edwards, __ Md. __, __ A.3d __, Slip Op 1. In his post-conviction petition for DNA

testing, Mr. Edwards sought DNA testing of a cigarette lighter, a plastic Forever 21 bag,

and a cigarette pack. Edwards, __ Md. __,         __ A.3d __, Slip Op. 1.     At trial Ms. K.

testified that her attacker used her cigarette lighter and that he sat in the passenger seat of

her vehicle (in close proximity to the bag and the cigarette pack). Edwards, __ Md. __,

__ A.3d __, Slip Op. 3.

       We held that there was a reasonable probability that DNA testing of the lighter had

the scientific potential to produce exculpatory or mitigating evidence because the attacker

was alleged to have come into direct contact with the lighter, and the absence of Mr.

Edwards’ DNA on the lighter would tend to suggest that he was not the man who assaulted

her. Edwards, __ Md. __, __ A.3d __, Slip Op. 24. (“The absence of [Mr. Edwards’]

DNA has the potential to exculpate [him] to the extent that it would tend to prove that he

either did or did not use the lighter that Ms. K testified was used by the man who assaulted

her. Where criminal agency is an issue, such as in this case, evidence tending to prove or

disprove that the accused’s DNA is present on items that the perpetrator touched or may

have come into contact with has a great potential to exculpate.”). We limited our holding

to the DNA testing of the lighter because the bag and the cigarette pack



                                             12
       were items that the perpetrator could have possibly or conceivably come into
       contact with, but the trial record in th[e] case contains no evidence that the
       perpetrator actually did come into contact with these items. Unlike the
       cigarette lighter . . . the absence of [Mr. Edwards’] DNA on these items
       would not tend to establish that he was not the perpetrator of this crime, as
       the perpetrator of this crime was never alleged to or shown to have come into
       contact with these items.

Edwards, __ Md. __, __ A.3d __, Slip Op. 25, n. 15.

       In the case before us, Appellant’s argument for DNA testing is comparatively

weaker than the argument made by Mr. Edwards in Edwards. Here, Appellant argues that

he was misidentified as the dark-skinned man who Ms. Rogers saw running from the

apartment before she heard gunshots. He argues that the man Ms. Rogers saw was in fact

the victim, Edmond Stephenson. Appellant wishes to support this contention by testing

the DNA of blood evidence found on the patio where the victim, injured with a non-fatal

gunshot wound to the buttocks, landed after jumping from the apartment window.

Appellant’s desired-for outcome is that said DNA testing will show the blood belonged to

the victim.

       In Wallace, we explained that the “reasonable probability” standard of § 8-201(d)

requires a showing of “a fair likelihood that something is true.” Wallace, __ Md. at *8, __

A.3d __ (citation omitted). We also explained that the reasonable probability standard

requires showing more than a mere possibility. Id. Even if Appellant were to achieve his

desired result of the DNA testing, it would in no way tend to establish that Ms. Rogers saw

the victim and not the Appellant. The State argued at trial that the blood came from the

victim. There was never any argument or suggestion that the blood came from the

perpetrator of the crime. That a gunshot victim who jumps from a window might leave

                                           13
behind blood is obvious. That the blood belongs to the victim does not tend to suggest that

Ms. Rogers saw one perpetrator chasing a victim, as opposed to seeing two perpetrators

chasing a victim that had already run past Ms. Rogers’ line of vision. In other words, there

is not a “fair likelihood” that DNA testing of the blood would produce evidence that would

“tend to establish [Appellant’s] innocence.” Wallace, __ Md. at *8, __ A.3d __; __ Md.

__, __ A.3d __, Slip Op. 21.

       In Edwards, there was a connection between the item on which testing was sought

and the contention the petitioner wished to support—the evidence showed that the

perpetrator touched the lighter, and by showing that his DNA was not on the lighter, Mr.

Edwards sought to support the conclusion that he was not the perpetrator. Here, there is

no such connection. The evidence in this case showed that the blood came from the victim.

Appellant wishes to have testing performed to show that his DNA is not in the blood found

on the patio to support the contention that he was falsely identified by an eyewitness. That

the blood may belong to the victim would not logically support the conclusion that Ms.

Rogers saw the victim and not Appellant. We thus hold that there is no reasonable

probability that the testing of the blood found on the patio would have the scientific

potential to produce exculpatory or mitigating evidence. Accordingly, we hold that the

arguments presented by Appellant in his petition and at the hearing on the petition utterly

fail to satisfy the requirements of § 8-201. See Wallace, __ Md. at *8, __ A.3d __

(“Therefore, ‘[e]stablishing a possibility requires a lower quantum of proof or evidence

(the showing of a chance, not necessarily a fair likelihood) than establishing a reasonable

probability.   In that regard, a ‘reasonable probability’ is a higher standard than a

                                           14
possibility.’”) (citations omitted). In this respect, we shall affirm the ruling of the hearing

court.

         Finally, with respect to the ultimate disposition of this case, we must determine

whether or not we should remand for further proceedings. In Edwards, we recognized that

“[t]he Post-conviction Court effectively denied Appellant’s Petition as a matter of law.”

Edwards, __ Md. __,       __ A.3d __, Slip Op. 10. There we held that the hearing judge

applied the incorrect standard of law and we did not remand the case for further

proceedings. Because we determined that the petition satisfied the requirements of § 8-

201, we applied Gregg v. State, 409 Md. 698, 721, 976 A.2d 999, 1012 (2009) 8, and

remanded the case with directions for the Circuit Court to order testing. Edwards, __ Md.

__, __ A.2d __, Slip Op. 26.

         The difference between this case and the cases of Gregg and Edwards is that the

petition and Appellant’s assertions in this case do not come close to satisfying the standard

under § 8-201 for ordering DNA testing. We conclude that Appellant is not entitled to

testing under the statute. Notwithstanding the fact that the hearing court confounded the

applicable standards in its ruling, there is no reason to remand this case for further

proceedings because of the obvious futility of Appellant’s assertions. See Jackson v. State,

448 Md. 387, 411, 139 A.3d 976, 990 (2016) (“[W]e determine that Jackson’s 2015 Petition

was properly denied without a hearing by the Circuit Court, albeit without [it] including



8
  In Gregg, the hearing judge applied the incorrect standard of law in summarily denying
the petitioner’s petition for DNA testing, but because we found the petition to satisfy § 8-
201, we remanded the case with directions to order the testing.
                                             15
factual findings; we choose not to remand for inclusion of further findings, however,

because of the obvious futility of Jackson’s assertions.”) (emphasis added).

                                    CONCLUSION

       For the foregoing reasons, we shall affirm the judgment of the Circuit Court for

Prince George’s County.

                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR PRINCE GEORGE’S COUNTY
                                            AFFIRMED. APPELLANT TO PAY THE
                                            COSTS.




                                           16
