Adkins, J.
Appellant Trendon Washington is serving a life sentence for conspiracy to commit murder. He filed a petition for postconviction DNA testing pursuant to Maryland Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the Criminal Procedure Article ("CP").
Washington was charged with conspiracy to commit murder, first-degree murder, second-degree murder, and handgun offenses in connection with the death of Ricardo Paige. On March 20, 2007, Ricardo Paige was found dead at 502 East 43rd Street in Baltimore, Maryland. He had been shot six times. The police recovered two .45 caliber shell casings from the scene along with a bloody broom and dust pan that appeared to have been used to sweep up spent shell casings. The broom and the dust pan tested positive for blood, but the items were not tested for DNA. On January 21, 2009, a jury convicted Washington of conspiracy to commit murder but could not reach a unanimous verdict on the remaining charges. Washington was sentenced to life imprisonment.
On August 6, 2015, Washington filed a petition, pro se, in the Circuit Court for Baltimore City requesting postconviction DNA testing of the broom and dust pan. The Circuit Court dismissed the petition without a hearing on December 14, 2015 because it concluded that Washington did not have standing to file a petition under CP § 8-201(b).
Washington noted a direct appeal to this Court pursuant to CP § 8-201(k)(6). Arrington v. State, 411 Md. 524, 544, 983 A.2d 1071 (2009). He presented the following questions for our review:
(Emphasis in original.)
In this appeal we are tasked with interpreting Maryland's postconviction DNA testing statute to determine if individuals convicted of conspiracy to commit murder are eligible to file a petition for testing. This is a question of law, which we review without deference to the postconviction court. Arrington, 411 Md. at 551, 983 A.2d 1071 (citation omitted).
Maryland's postconviction DNA testing statute, CP § 8-201, grants individuals convicted of certain crimes the right to file a petition requesting postconviction DNA testing. CP § 8-201(b). In 2015, the General Assembly amended the statute to enlarge the class of individuals eligible to file a petition to all those convicted of crimes of violence defined in CR § 14-101.
At issue is whether individuals convicted of conspiracy to commit murder are eligible to file a petition for postconviction DNA testing under the recently-expanded list of petition-eligible crimes. Washington argues that, as an individual convicted of conspiracy to commit murder and sentenced to life imprisonment, he is eligible to file a petition based upon a reading of CP § 8-201(b) in the context of the larger statutory scheme and purpose. Washington also asserts that denying him access to DNA evidence for testing violates his due process rights under the U.S. Constitution and the Maryland Declaration of Rights because it "constitutes a deprivation of his residual, core liberty interest." Finally, Washington contends that denying him access to DNA evidence violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and the Maryland Declaration of Rights because the State has no rational basis for distinguishing him, an individual sentenced to life imprisonment, from individuals convicted of first-degree murder or attempted first-degree murder who received the same sentence.
To the contrary, the State urges us to affirm the dismissal of Washington's petition for lack of standing. Postconviction petitions for DNA testing of scientific identification evidence, it says, are authorized by CP § 8-201(b), and are limited to those convicted of a crime of violence as defined in CR § 14-101. The State points out that conspiracy to commit murder is simply not listed as a crime of violence in CR § 14-101. Therefore, Washington, who was convicted of conspiracy to commit murder, lacks standing to file a petition. As to due process, the State avers that the procedures Maryland has in place for such testing go above and beyond the constitutional procedural requirements. Finally, the State asserts that denying access to postconviction DNA testing is not a violation of the Equal Protection Clause of the U.S. Constitution or Article 24 of the Maryland Declaration of Rights because Washington is not similarly situated to individuals convicted of consummated crimes of violence and, even if he is, the State has a rational basis for creating this distinction.
The current text of CP § 8-201(b) provides:
(Emphasis added.)
Section 14-101 of the Criminal Law Article, which CP § 8-201(b) incorporates to define those eligible to file DNA testing petitions, lists crimes of violence subject to mandatory minimum sentencing. Relevant for our purposes, CR §§ 14-101(a)(7) and (17) define murder and attempted murder as crimes of violence.
We employ Maryland's long-settled rules of statutory construction to guide our interpretation of CP § 8-201. "The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature." Blake v. State, 395 Md. 213, 224, 909 A.2d 1020 (2006). First, we examine the plain language of the statute to ascertain the Legislature's intent. Id. When examining the plain language, "[w]e neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with `forced or subtle interpretations' that limit or extend its
As the State argues, CP § 8-201(b) permits only "a person who is convicted of a crime of violence under § 14-101 of the Criminal Law Article" to file a petition. Examination of the language of CR § 14-101 confirms this reading of CP § 8-201(b). Conspiracy has never been included on the CR § 14-101 list. This omission does not appear to be an oversight, moreover, considering that CR § 14-101 does expressly include one type of inchoate crime — attempt. CR § 14-101(a) ("In this section, `crime of violence' means: . . . (17)
This reading of CP § 8-201(b) is further supported by examining other statutes that incorporate the CR § 14-101 definition of crimes of violence and expressly add "conspiracy" to commit those crimes as a separate offense. For example, Maryland's witness-tampering statutes impose a criminal penalty for inducing false testimony or retaliating against a witness who is offering testimony related to "the commission of a crime of violence as defined in § 14-101 of this article,
Although Washington concedes that CP § 8-201(b) is unambiguous and by its plain language does not include conspiracy crimes, he urges us to find ambiguity in the broader statutory scheme. In support of his argument, Washington points to CP
Even if we accepted Washington's argument that a duty to preserve triggers a right to petition, which we do not, no CP § 8-201 duty to preserve DNA evidence postconviction exists in this case whether CP § 8-201(j) is read in isolation or as part of the statutory scheme. CP § 8-201(j), which governs the State's duty to preserve DNA evidence postconviction, requires the State to preserve "scientific identification evidence . . . secured in connection with a violation of § 2-201, § 2-204, § 2-207, or § 3-303 through § 3-306 of the Criminal Law Article." These sections are, respectively, the statutory provisions defining first-degree murder, second-degree murder, manslaughter, rape in the first and second degree, and first- and second-degree sex offense. Conspiracy is not included.
At oral argument, Washington argued that the phrase "in connection with a violation of [CR] § 2-201" in CP § 8-201(j) encompasses conspiracy to commit murder because it requires the State to preserve DNA evidence used in the investigation and prosecution of his underlying first-degree murder charge.
The term "violation" does not include merely being charged with a crime. A "violation" of a statutory provision in this context quite plainly means taking action prohibited by that statute.
Washington also points to CP § 8-201(a)(5)(i)'s definition of the term, "scientific identification evidence," to support his argument. Scientific identification evidence is defined, in relevant part, as evidence that "is related to an investigation or prosecution that resulted in a judgment of conviction." CP § 8-201(a)(5)(i). Washington emphasizes the phrase "related to an investigation and prosecution" of first-degree murder, which, he asserts, creates a pre-conviction duty to preserve. Certainly, the State must preserve DNA evidence while the investigation and trial are pending — some of it may be exculpatory. But CP § 8-201(a)(5)(i), which kicks in upon conviction, does not accord Washington the relief he seeks. As indicated above, the State had no duty under this section to preserve DNA evidence after the trial because the jury failed to convict him of murder. Moreover, this definition of scientific identification evidence merely reiterates CP § 8-201(j)'s requirement of a conviction before the State has a duty to preserve. CP § 8-201(j) by its plain language requires the State to preserve all DNA evidence in cases where there has been a first-degree murder conviction, not a conspiracy conviction.
Although the postconviction DNA testing statute is remedial, Gregg v. State, 409 Md. 698, 715, 976 A.2d 999 (2009), and must be construed liberally, this does not grant us license to redraft the statute "beyond its clear meaning and the legislature's intent." Emps.' Ret. Sys. of City of Balt. v. Dorsey, 430 Md. 100, 113 (2013) (citation omitted). Therefore, we do not "add provisions or tailor existing ones to change the mandatory nature of the statute's language in order to favor the [petitioner]." Id. (citation omitted). As discussed previously, the Legislature knows
Washington argues that he has a procedural due process right to test the evidence used to convict him for DNA under both the Fourteenth Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights.
The Supreme Court has held that criminal defendants who have been convicted have "only a limited interest in postconviction relief" based on newly discovered evidence because they have already received a fair trial. Id. at 69, 129 S.Ct. 2308. Once the government has proven its case beyond a reasonable doubt, "the criminal defendant has been constitutionally deprived of his liberty." Id. (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)). "The State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief." Id. Therefore, the State only fails to provide adequate process under the Due Process Clause of the Fourteenth Amendment if its procedures for postconviction relief "offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. (citation omitted). A state's procedures for postconviction relief can also violate the Due Process Clause if they "transgress[ ] any recognized principle of fundamental fairness in
In Osborne, the Supreme Court upheld Alaska's procedures for postconviction relief under this standard. Id. at 69-70, 129 S.Ct. 2308. An Alaska statute provided for relief if the defendant made a "clear and convincing" showing of new evidence—including new DNA analysis—establishing innocence. Id. at 64, 129 S.Ct. 2308 (quoting Alaska Stat. § 12.72.020(b)(2) (2004)). The new evidence must have been newly available, diligently pursued, and sufficiently material for the court to consider granting relief. Id. at 70, 129 S.Ct. 2308 (citing § 12.72.020(b)(2)). Additionally, Alaska courts recognized a right to DNA testing under the state constitution when (1) a defendant's conviction rested primarily on eyewitness identification, (2) there was demonstrable doubt as to the defendant's guilt, and (3) DNA evidence "would likely be conclusive" on the issue. Id. at 65, 129 S.Ct. 2308 (quoting Osborne v. State, 110 P.3d 986, 995 (Alaska Ct. App. 2005)). Because these procedures exempted petitioners from otherwise applicable time limits for filing for relief, provided for discovery in postconviction proceedings, and were "similar to those provided for DNA evidence by federal law and the law of other [s]tates, see, e.g., 18 U.S.C. § 3600(a)," the Supreme Court held that they were "not inconsistent with the `traditions and conscience of our people' or with `any recognized principle of fundamental fairness.'" Osborne, 557 U.S. at 70, 129 S.Ct. 2308 (citation omitted).
Similarly, in McKithen v. Brown, 626 F.3d 143 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit held that New York's postconviction relief statute was adequate to protect a convicted criminal defendant's limited liberty interest in demonstrating his innocence with new evidence. Id. at 154. To obtain relief under New York's statute, a defendant must show that had the DNA testing been performed for use at trial, "there exists a reasonable probability that the verdict would have been more favorable to the [petitioner]." Id. at 153 (quoting N.Y. Crim. Proc. Law § 440.30(1-a(a)) (1994)). Comparing New York's statute to Alaska's, the court reasoned that this standard was less stringent than Alaska's requirement that DNA evidence would "clearly and convincingly" or "conclusively" establish the petitioner's innocence. Id. at 153-54. Therefore, it concluded, New York's statute neither offended principles of justice nor was fundamentally unfair. Id.
In Morrison v. Peterson, 809 F.3d 1059 (9th Cir. 2015), the United States Court of Appeals for the Ninth Circuit upheld two aspects of California's postconviction DNA statute under the Osborne standard. Id. at 1069. It held that neither the statute's reasonable probability requirement—like New York's—nor its chain of custody provision violated the Due Process Clause. Id. The court rejected the petitioner's argument that California's reasonable probability requirement was more stringent than Alaska's requirement that the new evidence be material or "conclusive." Id. at 1068-69. California's postconviction DNA statute also requires petitioners to show that "[t]he evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect." Id. at 1069 (quoting Cal. Penal Code § 1405(f)(2) (West 2005)). Because
The United States Court of Appeals for the Eleventh Circuit used the same comparative approach in Cunningham v. District Attorney's Office for Escambia County, 592 F.3d 1237 (11th Cir. 2010), to uphold Alabama's postconviction DNA testing statute under the Due Process Clause. Id. at 1263 ("Alabama's procedures pass muster if they compare favorably with Alaska's."). The court observed that both Alabama and Alaska allow a defendant to initiate postconviction proceedings when he can show newly discovered material facts that require that his conviction be vacated. Id. Furthermore, it found that in one respect Alabama's procedures were more petitioner-friendly than Alaska's. To obtain a new trial, Alaska requires the petitioner to demonstrate innocence by clear and convincing evidence, while Alabama only requires a preponderance of the evidence. Id. at 1263-64. Therefore, the court concluded that the statute's procedures met the constitutional standard.
Maryland offers individuals convicted of designated crimes a robust process by which to seek postconviction DNA testing, and its procedures overlap significantly with those found to be constitutionally adequate by other courts. Like New York's statute, Maryland's postconviction DNA law directs courts to order DNA testing if "a
Although no court has specifically addressed a state's limitation on access to DNA testing based on the petitioner's type of crime under the Due Process Clause, we do not consider this aspect of the Maryland statute to deprive Washington of due process.
In making our decision, we bear in mind that, in addition to relief available under the Maryland Uniform Postconviction Procedure Act, Md. Code (2001, 2008 Repl. Vol., 2013 Supp.) §§ 7-101 through 7-109, persons convicted of "a crime triable in circuit court" may also at any time, file a "petition for writ of actual innocence" if the person claims that there is newly discovered evidence that "creates a substantial or significant possibility that the result may have been different." CP § 8-301(a)(1) (2009, 2008 Repl. Vol., 2016 Supp.). Additionally, Washington had the opportunity to obtain DNA testing of the evidence against him at the time of his trial, and he failed to do so. Therefore, we decline to hold that Maryland's postconviction DNA testing procedures are constitutionally inadequate to protect Washington's limited liberty interest in postconviction relief.
We also decline to hold that Article 24 of the Maryland Declaration of Rights
Washington next argues that Maryland's postconviction DNA testing statute violates the Equal Protection Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights. Under the Equal Protection Clause, "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citation omitted). Washington contends that because the State has granted those convicted of first-degree murder and attempted
Because Washington's claim neither implicates a fundamental right nor a suspect class, we apply a rational basis standard in evaluating the State's classification.
Washington argues that individuals convicted of first-degree murder or attempted first-degree murder are similarly situated to him because he is subject to the same sentence of life imprisonment. Washington relies on the Kansas Supreme Court decision State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013), for this assertion. In Cheeks, the court held that the state's postconviction DNA testing statute violated the Equal Protection Clause because it allowed individuals convicted of first-degree murder the opportunity to petition for postconviction DNA testing, but denied that opportunity to those convicted of second-degree murder who were sentenced to the same maximum of 15 years to life. Id. at 354. The court reasoned that due to the identical length of their sentences, the two groups were similarly situated for the purpose of the law, which was to "provide an opportunity for exoneration to innocent individuals convicted of severe crimes." Id. at 352. The Kansas court observed that premeditation—the element that distinguishes first-degree from second-degree murder—was not relevant to the purpose of the statute, so it did not deem the petitioner differently situated. Id. It explained that "the relevant trait for [its] similarly situated analysis [was] the sentence imposed by the district court and not the elements of the crimes." Id. The court further held that Kansas had no rational basis for its distinction between these similarly situated individuals. Id. at 354.
Kansas's postconviction DNA statute is readily distinguishable from Maryland's. In Cheeks, Kansas differentiated between individuals convicted of two crimes bearing the same likelihood that the perpetrator would leave traces of DNA—they both require physical presence. This is not so with conspiracy. Moreover, denying individuals convicted of second-degree murder access to postconviction DNA testing ran contrary to the Kansas statute's stated purpose
Unlike first-degree murder or attempted first-degree murder, Washington's conviction of conspiracy to commit murder does not generally require physical presence at the scene of the underlying crime. Thus, including conspiracy within the postconviction DNA testing statute would not further the purpose of the law, which is to give access to DNA testing when DNA evidence is most likely to remedy a wrongful conviction. To commit conspiracy, the law only requires an individual to have entered into an agreement with another to commit a crime, and to have actually intended for the crime to be committed. Salzman v. State, 49 Md.App. 25, 54, 430 A.2d 847 (1981). This "meeting of the minds" could take place in person, over the phone, or through the Internet. See id. (citation omitted). First-degree murder and attempted first-degree murder, on the other hand, both require an individual to take physical action—either the murder itself or an overt act towards the completion of the murder. CR § 2-201; State v. Holmes, 310 Md. 260, 271-72, 528 A.2d 1279 (1987). Because conspiracy to commit murder does not require physical presence, individuals convicted of first-degree murder and attempted first-degree murder are not similarly situated to Washington. As a result, the State does not violate the Equal Protection Clause when it distinguishes between them.
Even if Washington were similarly situated to individuals convicted of first-degree murder or attempted first-degree murder, he still bears the burden of proving that the law is not rationally related to any legitimate State interest. Heller v. Doe ex. rel. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (citation omitted). Under rational basis review, a statute is presumed constitutional and will be upheld if there is "any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Commc'ns Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Washington advances three reasons to support his argument that the State has no rational basis for its distinction. We will address each in turn.
First, Washington claims that the State is under the same obligation to preserve scientific evidence whether an individual is convicted of conspiracy to commit murder, attempted first-degree murder, or first-degree murder. This is not so. As discussed supra, under CP § 8-201(j)(1), the State is only required to preserve scientific evidence when (1) it "has reason to know [the evidence] contains DNA material" and (2) the defendant is convicted of first-degree murder, second-degree murder, manslaughter, first-degree rape, or other sexual offenses. CP § 8-201 imposes no statutory obligation on the State to preserve DNA evidence related to a conspiracy to commit murder.
Second, Washington argues that there is no rational basis to give access to postconviction DNA testing to those convicted of attempted first-degree murder under the statute, while denying access to those convicted of conspiracy to commit murder— another inchoate crime. Unlike attempted first-degree murder, the crime of conspiracy to commit murder does not require the defendant to take any physical action towards the commission of a murder. In fact, there is no requirement that the murder have been attempted at all. Therefore, it is rational for the State to conclude that
Even though some conspirators may leave traces of DNA in the physical location where they reach mental agreement — meeting in a particular room, for example — that does not mean the State's distinction fails under rational basis review. We have explained that "a classification having some reasonable basis need not be made with mathematical nicety and may result in some inequality." Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 352, 499 A.2d 178 (1985). Additionally, "the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all." Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (citation omitted). Thus, it is rational for the State to work to remedy wrongful convictions by providing access to postconviction DNA testing in cases where the testing is most likely to exonerate.
Lastly, Washington contends that fiscal concerns do not provide a rational basis for the statutory distinction because the statute requires petitioners to pay for the DNA testing. This argument is unpersuasive because the State is not focused on the cost of conducting the DNA testing. Rather, it seeks to avoid the administrative costs of allowing an additional class of individuals access to the petition process. Allowing those convicted of conspiracy to petition for postconviction DNA testing requires the State to preserve evidence from these crimes and increases the judicial and prosecutorial resources spent on addressing petitions under the statute. These fiscal concerns constitute a rational basis for the State to distinguish among similarly situated individuals. See Dandridge, 397 U.S. at 486-87, 90 S.Ct. 1153 (Maryland had a rational basis for its welfare scheme when it decided how to best allocate limited funds.); Jefferson v. Hackney, 406 U.S. 535, 549, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) ("[B]udgetary constraints" provided a rational basis for distinction between welfare recipients.).
In short, Washington has failed to negate the State's rationale for excluding those convicted of conspiracy to commit murder from access to postconviction DNA testing. Accordingly, Maryland has a rational basis for allowing individuals convicted of first-degree murder and attempted first-degree murder to petition for postconviction DNA testing, while disallowing those convicted of conspiracy to commit murder from doing so. Therefore, the postconviction DNA testing statute does not violate the Equal Protection Clause.
Because the Maryland Constitution does not otherwise have language establishing equal protection of the laws, it is well settled that Article 24 should be interpreted to encompass this concept. Waldron, 289 Md. at 704, 426 A.2d 929. As with the Due Process Clause, Article 24 is applied in a "like manner and to the same extent" as the Equal Protection Clause of the Fourteenth Amendment. Id. (citation omitted). Accordingly, Washington's equal protection claim under the Maryland Constitution also fails.
Because conspiracy to commit murder is not a petition-eligible offense under CP § 8-201, Washington does not have standing to request DNA testing. In addition, the postconviction DNA statute survives Washington's constitutional challenges. Thus, we affirm the Circuit Court's order dismissing Washington's petition.
