Albert Gustav Givens v. State of Maryland, No. 31, September Term, 2017, Opinion by
Adkins, J.

CRIMINAL JUSTICE — CRIMINAL PROCEDURE ARTICLE § 8-201 — POST-
CONVICTION DNA TESTING: Under Maryland Code (2001, 2008 Repl. Vol., 2017
Supp.), § 8-201(d)(1) of the Criminal Procedure Article, a court must grant a petition for
DNA testing upon finding that a reasonable probability exists that the DNA testing has
scientific potential to produce exculpatory or mitigating evidence relevant to a claim of
wrongful conviction or sentencing and that the requested DNA test employs a method that
is generally accepted in the relevant scientific community. Appellant, serving a sentence
of life without parole for first-degree murder, could not satisfy the burden of demonstrating
that there was a reasonable probability that the results produced would be exculpatory or
mitigating.
Circuit Court for Anne Arundel County
Case No.: 02-K-92-002270
Argued: May 7, 2018

                                        IN THE COURT OF APPEALS

                                             OF MARYLAND



                                                  No. 31

                                           September Term, 2017



                                        ALBERT GUSTAV GIVENS

                                                     v.

                                          STATE OF MARYLAND




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

                                                  JJ.



                                           Opinion by Adkins, J.



          2018-07-12                        Filed: July 12, 2018
          14:55-04:00
       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.




       1
         The General Assembly has amended this statute. The amendments are not relevant
to this case. See Md. Code (2001, 2008 Repl. Vol. 2017 Supp.), § 8-201 of the Criminal
Procedure (“CP”) Article, amended by 2018 Md. Laws, ch. 602.
       2
         Givens had been charged with first, second, and third-degree sexual offenses,
robbery with a deadly weapon, robbery, and felony theft, but was acquitted of those
offenses in his 1993 trial.
       3
           See Givens v. State, No. 88, Sept. Term 2005 (Md. Ct. Spec. App. Apr. 19, 2005).
       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


                                              2
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




       4
         At the first trial, the State’s expert witness in DNA identification, Dr. Charlotte
Word, testified that Givens could be responsible for the sample on the Coca-Cola bottle,
although DNA matching at that time was not as precise as it later became. After Givens
received post-conviction relief in 1999, the DNA from the bottle was re-tested using more
advanced methods, specifically STR (short tandem repeat) testing. The results of this
testing were admitted in Givens’s subsequent trials.

       In these trials, the State’s expert witness testified that STR testing showed that
Givens’s DNA matched the DNA found on the Coca-Cola bottle at each of the 13 areas of
comparison. She stated that it was her opinion that, “within a reasonable degree of
scientific certainty Albert Givens is the source of the DNA on the swab from the [Coca-
Cola] bottle.” See Young v. State, 388 Md. 99, 119–20 (2005). We discuss the specifics
of DNA testing in greater detail infra.

                                             3
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




                                              4
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



       5
         In 1992, Dr. William Vosburgh used phenolphthalein, a preliminary serology
testing method, on the scraping from the wrench. He obtained a weak positive test for
blood. Vosburgh did no confirmatory tests. Phenolphtalein offers a quick result but may
be subject to false positives. See D.P. Lyle, Forensic Science 167 (2012). Serologists use
both presumptive and confirmatory tests to determine whether blood is present. Id. at 166.
Other testing is necessary to identify whether blood is of human origin. Id. at 168.
Vosburgh testified to the preliminary test results during Givens’s first trial in 1993, but the
evidence was excluded from Givens’s later trials, including his 2006 trial.
       6
        Dr. Charlotte Word also testified about the DNA testing Cellmark performed on
the Coca-Cola bottle.

                                              5
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




                                              6
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.



       7
         Givens has filed several petitions for post-conviction relief on various grounds.
We limit our discussion to petitions seeking testing of forensic evidence, because the merits
of his other claims for post-conviction relief are not before this Court.

                                             7
       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-Reed8 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 exculpatory or mitigating, but rather, is inculpatory.
              Number one.




       8
        See Reed v. State, 283 Md. 374 (1978) (standards for admissibility of scientific
evidence); see also Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), superseded by
Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).

                                              8
             Number two, if it had Mr. Givens’s DNA profile on it, or
             someone matching his profile, then it would only confirm that
             this was a tool in his possession.

             The third possibility would be that the test comes back
             inconclusive, and that if it were inconclusive, it would be at the
             same part and the same thing that the evidence—that the final
             jury heard in Mr. Givens’s fifth trial.

             And of course, the fourth possibility is that it came back with
             another DNA.

      The judge observed that Givens had claimed that Jay Kilpatrick gave him the

wrench before the crime, and it was discovered in Givens’s possession more than six

months after the murder. From this, the judge reasoned that finding an unknown third

party’s DNA on the wrench would not be exculpatory or mitigating because the evidence

at trial did not demonstrate that any DNA on the wrench matched a particular person.

Accordingly, the hearing judge denied Givens’s petition.

      Givens sought review under CP § 8-201(k)(6), which permits a direct appeal to the

Court of Appeals from an order of a Circuit Court entered under CP § 8-201. See Arrington

v. State, 411 Md. 524, 544 (2009). We consider whether the lower court erred in denying

Givens’s petition for post-conviction DNA testing. We shall conclude that it did not.

                              STANDARD OF REVIEW

      We review a circuit court’s determination of whether a reasonable probability exists

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

evidence for clear error. Simms v. State, 445 Md. 163, 185 (2015). “Under this standard,

‘if there is any competent evidence to support the factual findings below, those findings




                                             9
cannot be held to be clearly erroneous.’” Id. (quoting Washington v. State, 424 Md. 632,

651 (2012)).

                                       DISCUSSION

       Givens argues that the Circuit Court committed clear error by finding that the

wrench was not at trial and that “[n]o one said unequivocally that the tool was matched to

the blunt force trauma to the victim’s head in this case.” At trial, the State relied on expert

testimony that an object the size, shape, and weight of the wrench caused Kilpatrick’s head

injuries. Givens reasons that if the State is correct, any DNA on the wrench should be

Kilpatrick’s. But if the DNA does not match Kilpatrick, then it disproves the State’s claim

that the wrench was the murder weapon. This finding, he claims, would “mitigate, if not

exculpate, him as the possible murderer[,]” and impeach the State’s witness. Givens

acknowledges that the results from testing the scraping proved “inconclusive,” but

contends that new testing procedures are more sophisticated.

       The State argues that the wrench scraping is not scientific identification evidence

because the wrench had already been tested, there was “insufficient biological material to

produce a DNA profile,” and any cells in the original scraping were consumed by the initial

testing. Further, current DNA testing methods still rely upon polymerase chain reaction

(“PCR”) amplification to achieve the necessary amount of DNA for analysis. The original

PCR amplifications did not result in testable DNA, and the record does not demonstrate

that another round of amplification would be successful.

       The State also maintains that any result obtained would not be exculpatory. The

presence of Givens’s DNA on the wrench would not be exculpatory because he owned the


                                              10
wrench and it was in his possession for months. Finding Kilpatrick’s DNA on the wrench

would be inculpatory. If no usable DNA is found on the wrench, that would not be

exculpatory because that is what the jury heard, and it still convicted Givens. If a third

person’s DNA is on the wrench, that would not be exculpatory because Givens has not

claimed that someone else used the wrench to murder Kilpatrick—he asserts that the

wrench was not the murder weapon.

                       The Post-Conviction DNA Testing Statute

       “DNA testing has an unparalleled ability both to exonerate the wrongly convicted

and to identify the guilty.” District Atty’s Office for the Third Judicial Dist. v. Osborne,

557 U.S. 52, 55 (2009). Recognizing this important fact, in 2001, the General Assembly

enacted CP § 8-201, which authorizes post-conviction DNA testing.                  The General

Assembly intended the statute to serve as “a mechanism for a person who has been

convicted of certain serious crimes to obtain exculpatory or mitigating evidence through

the DNA testing of items related to that conviction.” Simms, 445 Md. at 167.

       CP § 8-201(b)(1) authorizes a person “convicted of a crime of violence”9 to file a

petition in circuit court seeking “DNA testing of scientific identification evidence that the

State possesses that is related to the judgment of conviction . . . .” CP § 8-201(a)(5) defines

“scientific identification evidence” as evidence that:

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


       9
        The individual must be convicted of a crime of violence as defined by Md. Code
(2002, 2012 Repl. Vol.), § 14-101 of the Criminal Law Article. This statute was also
amended recently. See 2018 Md. Laws, ch. 143.

                                              11
              (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[10] 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.

(Emphasis added).

       CP § 8-201(d) requires the court to order DNA testing if the petitioner demonstrates

that two conditions are met. Simms, 445 Md. at 169. First, the court must find 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 . . . .” CP § 8-201(d)(1)(i) (emphasis added). The court must also find that the

“requested DNA test employs a method of testing generally accepted within the relevant

scientific community.” Id. (d)(1)(ii).

       Under CP § 8-201(d), a “reasonable probability” requires more than mere

possibility, rather, it is a fair likelihood that something is true. Beaman v. State, 453 Md.

407, 420 (2017). The petitioner’s burden to demonstrate a reasonable probability that the

evidence would be exculpatory does not require “establish[ing] that the result would have

been different if the DNA results sought were known at the time of trial.” Edwards v.

State, 453 Md. 174, 196 (2017). The results need not exonerate the petitioner or prove that

someone else committed the crime. Id. at 191. Rather, “exculpatory” in CP § 8-201 means


       10
          “‘Biological evidence’ 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.” CP § 8-201(a)(2).

                                               12
only “evidence that would tend to clear the accused of guilt, or tend to establish his or her

innocence.” Id. at 196 (emphasis added). To satisfy his burden, Givens must demonstrate

that the testing he seeks has the scientific potential to produce evidence that would tend to

show that he did not commit the crime, or that he is innocent.

                              The Process Of Testing DNA

       To fully understand the issues presented, it is necessary to discuss the processes

utilized to test DNA. Polymerase chain reaction, or PCR, “magnifies short sequences of

interest in a small number of DNA fragments into millions of exact copies.” David H.

Kaye & George Sensabaugh, Reference Guide on DNA Identification Evidence, in

Reference Manual on Scientific Evidence 129, 143 (3d ed. 2011). PCR makes “it possible

to analyze minute or degraded samples.” Young v. State, 388 Md. 99, 108 (2005). PCR

uses a three-step process to extract and amplify a DNA sample.                Id.   First, in

“denaturization,” the DNA is heated to separate the two strands of the double helix.

Second, in the “annealing” process, primers11 containing nucleotide sequences12

complementary to the DNA region being amplified are added. Kaye & Sensabaugh, supra,


       11
          “Primers are small, manmade pieces of DNA, usually between 15 and 30
nucleotides long, of known sequences.” David H. Kaye & George Sensabaugh, Reference
Guide on DNA Identification Evidence, in Reference Manual on Scientific Evidence 129,
143 (3d ed. 2011). The primers have complementary sequences to the locus of interest in
the DNA. Id.
       12
          DNA is made up of “subunits that include four chemical structures known as
nucleotide bases.” Kaye & Sensabaugh, supra, at 136. The structures are guanine,
cytosine, thymine, and adenine. Lyle, supra, at 180. Cytosine only binds to guanine, and
thymine only bonds with adenine. This bonding creates base pairs. Each individual has
approximately three billion base pairs in his or her DNA. Id. The ordering of the bases is
a sequence, e.g., GCAAAATTCGG. Kaye & Sensabaugh, supra, at 138.

                                             13
at 143. The primers bond to the DNA when cooled. Young, 388 Md. at 108–09. Third, in

“extension,” the material is copied repeatedly to produce a larger sample of DNA for

analysis. Id. at 109; see also Kaye & Sensabaugh, supra, at 143.

      Whether DNA amplification is possible depends on the quantity of DNA available

in the sample, and whether the DNA is severely degraded. Kaye & Sensabaugh, supra, at

151. Studies have demonstrated that, despite its hardiness, DNA may be degraded such

that it cannot be analyzed. Id. at 153. “The extent to which degradation affects a PCR-

based test depends on the size of the DNA segment to be amplified.” Id. If amplification

is successful, the resulting DNA can then be analyzed. PCR amplification is, as the State

correctly points out, still in use today to amplify DNA for analysis in STR testing. Id. at

144; see also Young, 388 Md. at 109.

      STRs are “very short repeating sequences of DNA that are three to seven bases

long . . . .” D.P. Lyle, Forensic Science 184 (2012). Each person has a “variable number

of STRs in any given locus” on his or her DNA. Id. at 186. It is possible to determine the

number of any given STRs at a given locus. Id. That number varies from person to person

and can be used to confirm if two samples came from the same person. Id. If it is known

how often a specific number of STR repeats are found at a given locus in the general

population, then experts can determine the statistical odds that the same individual is

responsible for two samples. Id. at 186–87. A match from a single locus is generally not

conclusive. If there are multiple matches from multiple loci, then the odds that a single

person is responsible for both samples increase. See Young, 388 Md. at 110–11; Lyle,

supra, at 187–88; A. Jamie Cuticchia, Genetics: A Handbook for Lawyers 86–87 (2d ed.


                                            14
2018). Importantly, STR analysis of minute samples requires PCR amplification to achieve

sufficient DNA to analyze. Young, 388 Md. at 109; Cuticchia, supra, at 88–89; Kaye &

Sensabaugh, supra at 144; Lyle, supra, at 184–85.

       In the early 1990s, when the DNA was first tested, analysis focused on the Human

Leukocyte Antigen DQ-Alpha (“HLA DQα”).13 HLA DQα relied on PCR amplification.

See Barry C. Scheck, DNA and Daubert, 15 Cardozo L. Rev. 1959, 1963 n.17 (1994). This

analysis has since been replaced by the “more discriminating” STR analysis. See Osborne,

557 U.S. at 60; Lyle, supra, at 185. “STR testing is considered ‘the most widely used

testing in the field of molecular biology,’ and importantly, ‘it is the most commonly used

DNA testing in the criminal justice system.’” Gregg v. State, 409 Md. 698, 720 n.10 (2009)

(quoting Catherine Arcabasico, Chimeras: Double the DNA—Double the Fun for Crime

Scene Investigators, Prosecutors and Defense Attorneys?, 40 Akron L. Rev. 435, 499

(2007)). We agree with the Circuit Court that Givens has satisfied the requirement set forth

in CP § 8-201(d)(1)(ii) because he has shown that the “requested DNA test employs a

method of testing generally accepted within the relevant scientific community.” See, e.g.,

Gregg, 409 Md. at 720; Young, 388 Md. at 105; Lyle, supra, at 185–86.

       But, like the Circuit Court, our resolution instead turns on whether there is a

reasonable probability that testing the samples from the wrench has the “scientific potential



       13
         “DQ Alpha testing is a relatively inexact form of DNA testing that can clear some
wrongly accused individuals, but generally cannot narrow the perpetrator down to less than
5% of the population.” District Atty’s Office for Third Judicial Dist. v. Osborne, 557 U.S.
52, 57 (2009). Cellmark used this method in 1992 to conclude that Givens was a likely
match for the saliva found on the Coca-Cola bottle in Kilpatrick’s kitchen.

                                             15
to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction

or sentencing . . . .” CP § 8-201(d)(1)(i). We examine whether STR testing is likely to

produce anything of exculpatory or mitigating value relevant to Givens’s claims.

       The State maintains that the scraping is not scientific identification evidence under

CP § 8-201(a)(5). It does not dispute that the wrench is related to Givens’s prosecution—

the State introduced the wrench at trial14 and asserted that it was the likely murder weapon.

Id. (a)(5)(i). The scraping remains in the State’s possession. Id. (a)(5)(ii). The State

contends that there is no biological evidence remaining in the scraping that could produce

exculpatory or mitigating evidence because the attempts to amplify and test DNA in 1992

consumed the whole sample.15 Id. (a)(5)(iii).

       In Wallace v. State, 452 Md. 558, 577 (2017), we explained that “the ‘may produce’

language of [subsection] (a)(5)(iii) is equivalent to a ‘mere possibility’ or ‘chance.’” This

is a lower threshold than the “reasonable probability” standard in CP § 8-201(d)(1)(i). In

short, if there is biological evidence from which DNA could possibly be recovered, which

in turn could possibly produce exculpatory or mitigating evidence, then the statutory

definition is met. Id. In determining whether the scraping is scientific identification

evidence as defined by the statute, we “give due regard to the [circuit] court’s role as fact-



       14
         The hearing judge incorrectly stated that the wrench was not at Givens’s trial.
Nonetheless, this relatively minor error is not sufficient to render his conclusions clearly
erroneous.
       15
          The State pointed out that at the 2011 post-conviction hearing, the Circuit Court
for Anne Arundel County denied Givens’s petition to test the swab because it concluded
that there was no biological material left for testing. Here, Givens seeks to test the scraping.

                                              16
finder and will not set aside factual findings unless they are clearly erroneous.” Id. at 573

(quoting Phillips v. State, 451 Md. 180, 189 (2017)).

       When Givens was granted a new trial in 1999, the Circuit Court ordered re-testing

of several items of evidence, including the swab and scraping. The testing took place in

2002 at the Serological Research Institute. Preliminary tests for the presence of blood

revealed negative results and no further testing was attempted. At Givens’s second trial in

2003, defense counsel opposed Vosburgh’s testimony about the result of the 1992

preliminary test on the swab and scraping that showed a weak positive result for blood. At

that time, defense counsel acknowledged that it was likely that the 1992 attempt at PCR

amplification had removed any biological material.

       After considering this information, as well as the 2011 post-conviction proceedings

that denied re-testing of the swab from the wrench, the hearing judge explained that “if the

argument were exclusively, well, it is likely that there is nothing left worthy of testing

because in the three prior amplifications it was essentially destroyed to get to that product,

then . . . .why speculate and why not try, right?” He found the State’s contentions on this

point less persuasive “because technology obviously does get better over time and maybe

we are further along in our ability to extract [DNA] than we were in 2011.” He did not

make an unambiguous finding as to whether the scraping was scientific identification

evidence under CP § 8-201(a)(5).

       Our review of the record demonstrates that prior attempts at PCR amplification were

unsuccessful, and that it is unlikely that testable biological material remains in the scraping.

Nonetheless, we defer to the hearing judge’s finding that there may be a chance that the


                                              17
scraping contains biological evidence from which DNA could possibly be recovered.

Therefore, we assume that the scraping satisfies the definition of scientific identification

evidence set forth in CP § 8-201(a)(5). This means that our next task is to examine the

basis of the post-conviction court’s ruling—specifically that Givens had not satisfied his

burden under CP § 8-201(d)(1)(i), by showing that the results of the testing had a

reasonable probability of producing exculpatory or mitigating evidence.

                          Exculpatory Or Mitigating Evidence

       Edwards offers a useful illustration of when evidence is exculpatory. Edwards had

been convicted of sexual offenses stemming from an attempted rape. 453 Md. at 178. The

victim had been approached by a man who asked to borrow her lighter. The man used the

lighter, entered the victim’s car, and subsequently assaulted her.          Id. at 179–80.

Investigators recovered the lighter and other items the assailant might have touched. Id. at

180. Edwards sought testing of these items for epithelial DNA cells, arguing that if another

individual’s DNA profile appeared on the items, that would support his claim that he had

been falsely identified as the assailant. Id. at 182–83.

       We identified several relevant factors for courts to consider when assessing whether

a reasonable probability exists that DNA testing for epithelial cells would produce

exculpatory or mitigating evidence. Specifically, “the nature of the item (e.g., whether it

is an instrumentality of the crime), the physical proximity between where the item was

located and where the crime occurred, and the temporal proximity between when the

perpetrator touched the item and when the crime occurred.” Id. at 199. Applying these

factors, testing that showed an absence of Edwards’s DNA on the lighter would tend to


                                             18
exculpate him because, although the lighter was not an instrumentality, it was located at

the crime scene, and the perpetrator used the lighter directly before the assault. Id. at 199–

200.

       On the other hand, Beaman demonstrates when the results of testing would not be

exculpatory. In Beaman, the petitioner, who had been convicted of four counts of first-

degree murder and other related charges, sought DNA testing of blood found at a crime

scene. 453 Md. at 409. Three victims were found inside an apartment. The fourth victim

was found outside the building. Investigators located blood on a patio directly below the

apartment’s window. The State’s theory was that the victim found outside had jumped

through the window to escape and was shot while he jumped. Id. at 410. An eyewitness

saw two men running past and identified Beaman as one of the men. Id. at 411.

       Beaman sought testing to prove that the blood on the patio belonged to the victim.

This, he reasoned, would prove that the witness misidentified him, and that the man she

identified was actually the fourth victim. Id. at 420. We concluded that even if the blood

did belong to the fourth victim, it would not tend to establish Beaman’s innocence. The

State had argued at trial that the blood belonged to the victim. Conclusively establishing

that fact “would not logically support the conclusion that [the witness] saw the victim and

not [Beaman].” Id. at 421. Thus, there was no reasonable probability that the testing could

produce exculpatory or mitigating evidence. Id.

       To assess whether a reasonable probability exists that test results could produce

exculpatory or mitigating evidence, a court must examine the facts of the crime, as well as

the petitioner’s assertions. See id. at 420–21; Edwards, 453 Md. at 199. We consider that


                                             19
some of the factors set forth in Edwards are relevant here, specifically, the nature of the

item and the proximity between where the item was located and where the crime occurred.

Edwards, 453 Md. at 199. Other relevant factors include the temporal proximity between

the crime and the discovery of the item, the condition of the item, and the evidence the jury

heard regarding that item. See Beaman, 453 Md. at 420–21.

       Although here, as in Edwards, there is a connection between the item (the scraping

from the wrench) and Givens’s claim (the wrench is not the murder weapon), most of the

evidence connecting the wrench to the murder was circumstantial. The wrench was not

located at the crime scene—it was found in Givens’s toolbox seven months later. The jury

heard conflicting expert testimony about whether the wrench could have caused

Kilpatrick’s injuries.   In every trial after Givens’s first successful petition for post-

conviction relief in 1999, including the most recent one, the jury has heard that there were

no test results that could show with any reasonable degree of scientific certainty that human

blood or tissue were on the wrench. The State’s expert, Dr. Word, testified that attempts

to test material from the wrench for DNA produced no result. She explained that cleaning

could potentially degrade or remove biological material and inhibit results, or PCR

amplification could have failed because there was insufficient DNA, or no DNA

whatsoever.

       Givens maintains that the results of DNA testing of the scraping would be

exculpatory because if the wrench is the murder weapon, then any DNA must be consistent

with the victim. He argues that if the DNA does not match, then the State’s claim that the

wrench was the weapon is “untenable,” or at least would “impeach” the State’s experts.


                                             20
Givens acknowledges that if the DNA matches Kilpatrick, that result would be inculpatory.

As we explained in Edwards, 453 Md. at 187, a petitioner does not have to establish that

the results in every instance would be exculpatory. But the petitioner must demonstrate

that there is a reasonable probability that some result would be exculpatory or mitigating.

Id. at 196.

       In considering the other possibilities that might result from DNA testing, we observe

that Givens has admitted ownership of the wrench and maintains that it was in his

possession before and after the murder. Finding Givens’s DNA on the wrench is not

exculpatory or inculpatory. If Givens had used the wrench to attack Kilpatrick and

subsequently cleaned it, his DNA could very well be on the wrench. Or his DNA could

have been on the wrench from handling it in the course of ordinary use. Finding Givens’s

DNA on the wrench would not “tend to clear . . . [him] of guilt, or tend to establish

his . . . innocence.” Id. at 196. Such a result would certainly not undermine the State’s

experts.

       There are two more possibilities. First, that testing again fails to recover any DNA

in the scraping. The second, which Givens considers the more desirable result, is that

testing reveals an unknown individual’s DNA in the scraping. We examine each.

       The failure to obtain a test result is consistent with the evidence used to convict

Givens. In Beaman, 453 Md. at 420, the State argued at trial that the blood belonged to the

victim—it had never suggested that it belonged to the perpetrator. Here, the State had not

argued that there was DNA evidence that connected the wrench to the victim or the




                                            21
perpetrator.16 Rather, it offered an expert who testified that an item the size, shape, and

weight of the wrench likely caused the injuries to Kilpatrick’s skull, an expert who testified

that the wrench was unusually clean in comparison to Givens’s other tools, and experts

who explained why there might not be any DNA on the wrench. The absence of DNA does

not tend to clear Givens of guilt or establish that he was innocent. It simply maintains the

status quo.

       Givens contends that finding another DNA profile would impeach the State’s expert

because the State theorized that Givens had washed the wrench. But finding an unknown

individual’s DNA in the scraping would not eliminate the wrench from consideration as

the murder weapon. Givens could have used the wrench to murder Kilpatrick, washed the

wrench, and then placed it back in his tool box where another person might have touched

it and left behind DNA. Finding a third party’s DNA would not suggest that someone else

committed the crime with the wrench. Instead, it would only show that someone else

touched the wrench at some point.

       In Edwards, the lighter was found at the crime scene, shortly after the crime took

place. There, the presence of an unknown individual’s DNA on the lighter, as opposed to

Edwards’s DNA, would have tended to prove innocence because the perpetrator handled

the lighter immediately before the assault. 453 Md. at 198. Here, the wrench was found



       16
          In Edwards v. State, 453 Md. 174, 197 (2017), we concluded that the fact that
jurors were told that there was no forensic evidence that linked Edwards to the attempted
rape did not “detract from the fact that DNA testing might rule out the presence of
[Edwards’s] DNA on the items tested.” In that case, however, the lighter had not been
tested. Id. at 180. Here, the items were tested, and the jury was told the result.

                                             22
seven months after the crime in an entirely different location. It is unknown whether other

individuals handled the wrench during that time. But the only logical conclusion is that

the extended period of time between the crime and the wrench’s discovery only increased

the chance of exposure to another person’s DNA. As such, the presence of another DNA

profile would not tend to prove anything.

       We agree with the Circuit Court that any results of testing would not tend to clear

Givens’s guilt or establish his innocence. See id. at 196. Although DNA testing is a

powerful tool, it is not a universal solution. As the United States Supreme Court explained

in Osborne, 557 U.S. at 62,

              DNA testing alone does not always resolve a case. Where there
              is enough other incriminating evidence and an explanation for
              the DNA result, science alone cannot prove a prisoner
              innocent. . . . The availability of technologies not available at
              trial cannot mean that every criminal conviction, or even every
              criminal conviction involving biological evidence, is suddenly
              in doubt.

       The State used circumstantial evidence to establish Givens’s guilt and offered

logical explanations for why DNA testing of the samples from the wrench did not lead to

results. Givens has failed to show that there is a reasonable probability that the results of

any testing, assuming that adequate DNA could be amplified, would be exculpatory or

mitigating.

                                     CONCLUSION

       We hold that Givens has failed to establish that a reasonable probability exists that

DNA testing has the scientific potential to produce exculpatory or mitigating evidence.




                                             23
The circumstances of the crime and the available evidence reflect that any results of the

testing would not produce exculpatory or mitigating evidence.

                                                JUDGMENT OF THE CIRCUIT
                                                COURT FOR ANNE ARUNDEL
                                                COUNTY AFFIRMED. COSTS TO
                                                BE PAID BY APPELLANT.




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