GREENE, J.

In 1974, Appellant, Douglas Scott Arey, was convicted of first-degree murder and use of a handgun in the commission of a felony. In 2001, the Maryland Legislature passed the DNA Evidence—Postconviction Review Act,1 becoming one of more than thirty states which now have similar statutes providing for postconviction scientific testing of evidence in cases where the petitioner was convicted of one or more statutorily enumerated crimes. See Blake v. State, 395 Md. 213, 218-19, 909 A.2d 1020, 1023 (2006) (Blake I). Section 8-201(b) of Criminal Procedure Article of the Maryland Code grants a right to a person convicted of one or more specified crimes to file a petition for DNA testing of evidence in the possession of the State that relates to a conviction. See Md.Code (2001, 2008 Repl.Vol.), § 8-201(b) of the Criminal Procedure Article.2 On May 7, 2002, Arey filed a petition in the Circuit Court for Baltimore City for postconviction DNA testing of evidence related to his conviction. On April 21, 2010, the Circuit Court dismissed the petition, concluding that the evidence related to Arey's conviction no longer existed. On July 26, 2010, Arey filed a timely appeal from that ruling directly to this Court pursuant to § 8-201(j)(6).3 We are asked to decide the following questions:

For the reasons stated below, we shall reverse the dismissal of Arey's petition for DNA testing and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In May 1973, Baltimore City police officers contacted Arey and requested that he come into the station for questioning regarding the death of his former employer, Samuel Shapiro. After voluntarily submitting to questioning, Arey confessed to the police that he shot Shapiro and was charged with first degree murder and other related crimes. Among the evidence presented by the State at the original trial was a blue denim shirt which Arey had been wearing when he arrived at the police station for questioning. There was a small amount of blood on the right shoulder area of the shirt, which Arey claimed was his own blood. At a pretrial hearing, Arey asserted that he had been nervously picking at pimples on his face during interrogation and had wiped the blood on the back of his shirt. Detective James Russell of the Baltimore City Police Department testified that he had observed this occur. The State presented expert testimony from Robert S. Davis, the police department's crime laboratory technician, who testified that scientific analysis had resulted in the finding that the shirt contained type AB blood, which matched the victim's blood type, and did not match Arey's type O blood. Arey's counsel argued that the mixture of blood and bacteria from Arey's pimples could have created an inaccurate blood type result if the bacteria contained antigens similar to those found in AB blood. Arey's counsel attempted to demonstrate this effect at a pretrial hearing by applying a mixture of Arey's blood and bacteria to the same shirt and submitting it for re-testing. The blood type test, however, resulted in a finding of type O blood.

The results of the scientific analysis of the blood on Arey's shirt were admitted into evidence, along with the testimony of Dennis Moon, who claimed to have assisted Arey with the murder, and the confession from Arey himself. In April 1974, Arey was convicted of first-degree murder and use of a handgun in the commission of a felony, and sentenced to life imprisonment plus ten years concurrent. The Maryland Court of Special Appeals affirmed the conviction on June 2, 1975.

On May 7, 2002, Arey filed a pro se petition in the Circuit Court for Baltimore City under § 8-201 of the Criminal Procedure Article, seeking postconviction DNA testing of evidence related to his convictions. The State produced an affidavit of a police sergeant averring that the evidence no longer existed after the sergeant searched the database and records of the Baltimore City Police Department's Evidence Control Unit (ECU) and found no reference to the evidence. On the basis of the affidavit, the Circuit Court for Baltimore City dismissed the petition on July 17, 2006.

In 2007, we reversed and remanded, holding that the Circuit Court erred in dismissing the petition because the State's affidavit was not sufficient to constitute a reasonable search for the evidence requested. See Arey v. State, 400 Md. 491, 503-04, 929 A.2d 501, 508 (2007) (Arey I). We pointed out that "[t]he State should have attempted to determine the proper protocol for handling and destroying evidence in Baltimore City in 1974. From this, the State might have discovered other locations to search for the requested evidence or determined more conclusively its fate." Arey I, 400 Md. at 504, 929 A.2d at 508.

On remand, the Circuit Court held four separate hearings between November of 2007 and April of 2010. At the first hearing on November 19, 2007, the State contended that a large amount of evidence was damaged or destroyed when the basement of the Baltimore City Police Department building was flooded by Hurricane Isabel in 2003. The State claimed that it was in the process of securing an outside contractor to conduct an inventory of all of the evidence recovered from the flood. At the second hearing on February 19, 2009, Lieutenant Colonel Michael Andrew, the commanding officer of the Baltimore City Police Department's ECU, testified that a contractor had inventoried 417,000 pieces of evidence recovered from the flood and found no evidence related to Arey's case. Lt. Col. Andrew did testify, however, that a warehouse containing a mass of unidentifiable clothing damaged in the flood was not searched. At the third hearing on June 12, 2009, the State provided the logbook from the Baltimore City Police Department's crime laboratory which showed that the evidence in Arey's case was examined in May 1973 by someone with the initials "R.S.D." The Circuit Court for Baltimore City ordered the State to ascertain the identity of R.S.D. and to provide Arey's counsel with access to the logbook. On April 19, 2010, the State filed an affidavit from Robert S. Davis,5 the crime laboratory technician who testified at Arey's original trial, which contained the following relevant averments:

On April 21, 2010, two days later, the Circuit Court dismissed the petition for DNA testing on the ground that the State conducted a reasonable search for the evidence. The court issued the following Order:

Arey noted a timely appeal from that ruling to this Court.

DISCUSSION

When reviewing a Circuit Court's ruling that the State's search was reasonable under § 8-201, this Court will uphold findings of fact unless they are clearly erroneous. Blake v. State, 418 Md. 445, 460, 15 A.3d 787, 796 (2011) (Blake II). In his appeal to this Court, Arey first contends that the hearing judge erred in holding that the State performed a reasonable search for evidence relating to his conviction. According to Arey, the State's search for evidence was not reasonable because it consisted only of a search by property number when the property number associated with Arey's case was either undisclosed or unknown. More specifically, Arey argues that the State has failed to look through a large mass of "old clothing" for the shirt and has neglected to search for the blood slides used by the crime laboratory for blood type analysis. These issues, in our view, are best left for the hearing judge to resolve in the first instance, on remand, and we decline to address them. Secondly, Arey argues that the hearing judge erred in prematurely ruling on his petition for DNA testing by dismissing it the day after the State filed the pivotal affidavit of Mr. Davis.6

The State contends that the hearing judge's finding that the State conducted a reasonable search for evidence is not "clearly erroneous" pursuant to the standard of review set forth in Blake II. According to the State, by submitting Davis's affidavit, it has met its burden of conducting a reasonable search. Additionally, the State contends that it has searched all of the places where the evidence could possibly have been found including the ECU, original trial judge's chambers, original trial courtroom, State's Attorney's office, court clerk's office, and the court reporter's office. While the property control number associated with the evidence in Arey's case was never located, the State contends that other attempts were made to find the evidence using the criminal complaint number and the physical description of the shirt. Finally, the State maintains that it has sufficiently identified the evidence-handling protocol in 1974 by presenting testimony that officers would authorize the destruction of evidence after any direct appeals concluded. Although we decline to hold that the hearing judge's ultimate conclusion was clearly erroneous, we do decide that, on the record before us, the ruling was premature. Accordingly, we remand the case to the Circuit Court for Baltimore City for further proceedings.

The hearing judge erred in ruling on Arey's petition for testing only two days after the State submitted an affidavit from a key witness. This Court's decisions in Blake I and Horton v. State, 412 Md. 1, 985 A.2d 540 (2009) support the reversal of the hearing judge's order in this case. In Blake I, we held that the Circuit Court erred in summarily dismissing Blake's petition for testing before Blake had an opportunity to respond to the State's allegation that the evidence related to Blake's conviction was no longer in its possession. We stated:

Blake I, 395 Md. at 228, 909 A.2d at 1028.

In addition, we held that Blake's rights to due process entitled him to notice of the court's impending ruling and an opportunity to respond. We concluded that:

Blake I, 395 Md. at 230, 909 A.2d at 1030 (emphasis in original). Similar to the appellant in Blake, Arey was not given adequate opportunity to respond to the affidavit before the hearing judge dismissed his petition. Arey's due process rights entitled him to notice and a reasonable opportunity to respond to the averments in Davis's affidavit before a ruling was made.

In Horton, the hearing judge dismissed Horton's petition under § 8-201 for DNA testing of evidence related to his conviction on the ground that the evidence did not exist. Horton, 412 Md. at 3, 985 A.2d at 541. We held that the Circuit Court erred in dismissing Horton's petition for DNA testing two days after the State made available a document authorizing destruction of the evidence related to Horton's conviction, and less than one month after the State filed affidavits, because the petitioner did not have a reasonable amount of time to examine the document or to respond to the affidavits by arranging for depositions or interviews with the affiants. Horton, 412 Md. at 17-18, 985 A.2d at 549-50. We reversed the dismissal despite the fact that the State in Horton had recovered a the document authorizing destruction of the evidence related to Horton's conviction, documentation which is lacking in Arey's case. See Horton, 412 Md. at 12-13, 985 A.2d at 546-47. Like Horton, Arey's counsel expressed a desire to interview the State's affiant, Robert S. Davis, and was not afforded a reasonable opportunity to arrange for his interview or to respond to the State's representations when the trial judge dismissed the petition within two days of the State's filing.

The State maintains that continued questioning of Davis will not reveal any further information regarding the location of the DNA evidence. We reject that argument as a bar to Arey's opportunity to respond. The State contends that it is unclear whether the blood slides were ever marked as evidence or held in the ECU. The record before us, however, does not provide any indication of the procedure for the storing or disposing of slides. Even though the 2007 affidavit from the crime laboratory supervisor avers that the slides were not found in a hand search of the crime laboratory, the State subsequently was able to find a notation regarding the analysis of evidence for this case in the laboratory's log book with the initials of Robert S. Davis. Davis's affidavit indicates that evidence was not kept in the crime laboratory after testing was complete and that the small amount of blood was generally "consumed" by testing, but it is still unclear what protocol existed for the disposal of the blood slides made for analysis.

Given the opportunity to interview Davis, Arey's counsel may be able to obtain information about the crime laboratory protocol that could shed light on the possible location of the evidence. Davis may be able to provide a more detailed account of the procedures actually followed at the time of trial such as whether slides were disposed of once analysis was complete, whether slides were stored in the freezer, or whether there was a procedure in place for slides in those situations where the blood was not completely consumed by the process of analysis. While the possibility exists that no further information would come from an interview with Davis, Arey still must be given the opportunity to probe, challenge, or otherwise respond to the statements in the affidavit before a decision can be rendered.

We consider the case of Blake II where this Court affirmed the hearing judge's dismissal of a petition for DNA testing. See Blake II, 418 Md. 445, 15 A.3d 787. While several of the hearings for the two petitioners were held jointly and the circumstances surrounding Blake's petition were similar in some respects to Arey's, there exists a significant difference between the two cases. At the final hearing for Blake's petition, Blake's counsel explicitly stated that once the State submitted the final requested information, counsel did not "have any further requests of the State. . . ." Blake II, 418 Md. at 458-59, 15 A.3d at 795. On the contrary, Arey's counsel expressly stated that he still wished to speak with Davis to attempt to find out more information about the protocol followed in the 1970's. At the final hearing on April 7, 2010,7 counsel for Arey stated:

In accordance with this Court's decisions in Blake I and Horton, the hearing judge should not have dismissed the petition by ruling on it two days after the State provided an affidavit from Mr. Davis, the retired laboratory technician, without providing the defendant "an opportunity to respond and to challenge the State's representation." Blake I, 395 Md. at 228, 909 A.2d at 1028. Although the State has taken considerable steps to conduct a reasonable search for the evidence in this case, the petition for testing should not have been dismissed, at least, until Arey had an opportunity to respond to the State's most recent affidavit. Therefore, we reverse and remand this case to the Circuit Court for further proceedings.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY IS REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

HARRELL, J., Concurs.

HARRELL, J., Concurring.

I concur in the judgment of the Court, subscribing as I do to the Majority opinion's reasoning supporting its conclusion that the trial court acted prematurely and unfairly when it entered an order on 21 April 2010 denying Arey's petition.1 I am perplexed, however, at the Majority opinion's avoidance of Arey's initial question presented regarding whether the trial judge was clearly erroneous in declaring penultimately and effectively that the State had discharged its initial burden of production regarding whether it had conducted a reasonable search for the missing evidence to that point. The Majority opinion, in its short shrift treatment of this question,2 dooms to exploitable confusion what should happen on remand.3 Accordingly, I would reach and decide Arey's first question as well.

Although mentioning the correct standard of review, see Majority op. at 333-34, 29 A.3d at 989, the Majority opinion declines to apply that standard to the trial judge's reasonableness determination. The clear instructions in Blake v. State, 418 Md. 445, 460, 15 A.3d 787, 796 (2011), are for us to defer to the trial judge's determination of the reasonableness of the State's search, unless that determination is "clearly erroneous." The Majority's (and my) conclusion that Arey and his counsel deserve an opportunity, in part, to respond to the State's submission of the crime lab technician's (Robert S. Davis's) affidavit (which Arey can do in discharging the burden of production now shifted to him), does not relieve us from resolving properly the threshold inquiry of whether the hearing judge's finding in the first instance that the State made a reasonable search is clearly erroneous. For the sake of order alone, we must reach and decide this issue now.

Maryland Code (2001, 2008 Repl.Vol.), Criminal Procedure Article, § 8-201, Maryland Rule 4-710 (2009), and the cases alluded to in the Majority opinion interpreting the statute and rule require the State to conduct a "reasonable" search for the missing evidence. The State is not required to conduct a "complete" or "exhaustive" search.

The Majority opinion leaves muddled for litigants, litigators, and Bench alike the burdens to be borne by parties in similar proceedings and in this case in particular on remand. Our caselaw is somewhat unclear already with respect to which burdens shift to the defendant when a hearing judge concludes, as happened here, that the State established a prima facie case of reasonableness of its search. For example, we stated in Arey I that:

Arey v. State, 400 Md. 491, 505, 929 A.2d 501, 509 (2007) (emphases added). The words "prima facie" are synonymous usually with "burden of production." See, e.g., Questar Builders, Inc. v. CB Flooring, LLC, 410 Md. 241, 281 n. 25, 978 A.2d 651, 675 n. 25 (2009) ("CB Flooring bears the initial burden of production to adduce a prima facie showing that Questar invoked the termination for convenience clause in bad faith. . . ."). Thus, the language in Arey I suggests that, at the inception of a post-conviction DNA proceeding, the State bears the burdens of production and persuasion, but both may shift to the defendant, upon a showing by the State, satisfactory to the trial judge, that, after a reasonable search, the DNA evidence could not be found and does not exist.

Ordinarily, only the burden of production shifts between parties; the burden of persuasion stays usually with the party that bore it originally. See LYNN MCLAIN, MARYLAND EVIDENCE—STATE AND FEDERAL § 300:2 n. 23 (2d ed. 2001) ("As a general rule, th[e] burden [of persuasion] does not shift, but remains throughout the trial as allocated at the beginning of the trial."); Sergeant Co. v. Pickett, 285 Md. 186, 203-04, 401 A.2d 651, 660 (1979) ("The burden of [persuasion], i.e., the risk of non[-]persuasion, never shifts from the party on whom it is placed." (internal quotation marks and citation omitted)). In elucidating this conceit, we quoted from Dean McCormick for the proposition that:

Commodities Reserve Corp. v. Belt's Wharf Warehouses, Inc., 310 Md. 365, 368 n. 2, 529 A.2d 822, 823 n. 2 (1987).

Without a clearer indication of legislative intent in Maryland Code (2001, 2008 Repl.Vol.), Criminal Procedure Article, § 8-201, Maryland Rule 4-710 (2009), or our caselaw, we should be reluctant to countenance shifting the burden of persuasion, as opposed to the burden of production, in DNA missing evidence cases. The defendant does not regain control usually of the type of evidence taken from him in this case after it is acquired and used by the State at trial. Thus, if the evidence is retained after trial, most likely it is in the State's (or its agents') possession, if it exists at all. Because of this, the State has the burden of production and persuasion at the outset of a post-conviction DNA proceeding; however, if the State makes a prima facie showing that the DNA evidence does not exist (e.g., presents testimony and/or documents persuading the hearing judge that a reasonable search was made), then the burden of production only shifts to the defendant. See Murphy v. 24th St. Cadillac Corp., 353 Md. 480, 492, 727 A.2d 915, 921 (1999).

Applying properly the deferential "clearly erroneous" standard to the record here as to the reasonableness of the State's search, we should conclude that the hearing judge's determination that the State discharged its prima facie burden was not clearly erroneous and, thus, the burden of production shifts to Arey on remand. See Arey I, 400 Md. at 505, 929 A.2d at 509 (stating that, after the State presents its case, "[t]he burden of production then shifts to the petitioner to demonstrate that the evidence actually exists"). The record is ample to support the trial judge's finding of reasonableness as to the State's search. The Majority opinion documents well the bases for that finding at Majority op. 332-33, 29 A.3d at 988-89.

The Majority opinion's (and my) concern that Arey have an opportunity to inquire behind the face of Davis's affidavit and, further, to attempt to persuade the hearing judge that his petition should not be denied, may be vindicated through Arey attempting to discharge the shifted burden of production.

Arey knows already who Davis is and the role he played in securing his conviction because Davis testified at Arey's 1974 trial. Davis's lab work on the sought-after missing evidence occurred between 1973 (the crime) and 1974 (Arey's trial). The State, in the course of the present proceedings, informed Arey's trial counsel of the since-retired Davis's current address, as ordered by the trial judge some months before Davis's affidavit was filed here. Thus, Arey may examine Davis in open court (once Arey serves him with process or the State persuades Davis to appear as an accommodation) by challenging the accuracy of his non-recollection versus what he apparently does recall in the affidavit.4

The hearing judge's premature and unfair decision to deny Arey's petition so promptly after receiving the Davis affidavit does not reflect adversely on the prior determination as to the prima facie reasonableness of the State's search to that point. The State's search was reasonable, notwithstanding the hearing judge's error in signing the 21 April 2010 order of denial, without giving Arey an opportunity to adduce evidence that the evidence exists and where it may be found. That is why there were two questions presented in this case, one addressing the reasonableness of the State's search (for burden shifting purposes) and the other the prematurity and fairness of the trial judge's denial of Arey's petition on 21 April 2010. We should answer both questions.