Arey v. State

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Douglas Scott Arey v. State of Maryland No. 82, September Term, 2006. CRIMINAL PROCEDURE - POSTCONVICTION DNA TESTING: Circuit Court erred in dismissing petition for postconviction DNA testing under § 8-201 of the Criminal Procedure Article based solely on an affidavit stating that the police sergeant in charge of Baltimore City s Evidence Control Unit (ECU)had checked the ECU database and the forms kept on file and failed to find sought-after DNA evidence. CRIMINAL PROCEDURE - POSTCONVICTION DNA TESTING: Petitioner seeking postconviction DNA testing under § 8-201 of the Criminal Procedure Article has no statutory or constitutional right to an evidentiary hearing. The court has inherent power to hold a hearing, however, and ordinarily should do so where there is a genuine factual dispute as to whether the evidence exists. CRIMINAL PROCEDURE - POSTCONVICTION DNA TESTING: postconviction DNA testing under § 8-201 of the Article has no statutory or constitutional right counsel. The trial court, however, possesses appoint counsel when it finds that doing so interest of justice. Petitioner seeking Criminal Procedure to court-appointed inherent power to would further the CRIMINAL PROCEDURE - POSTCONVICTION DNA TESTING: Prosecutors should not conclude too hastily that evidence that an inmate has asked to be tested no longer exists and should search for evidence in nontraditional sources. Prosecutors should check most likely places, including the prosecutor s office, state and local crime laboratories, hospitals, clinics or doctors offices, defense investigators, courthouse property and evidence rooms, independent crime laboratories, clerks of court and court reporters. CRIMINAL PROCEDURE - POSTCONVICTION DNA TESTING: Before the State avers that the evidence no longer exists, the State should identify the protocol that was in place from the time of the trial to the time of the request for testing, if possible, and see if that protocol was followed. In the Circu it Court for B altimore C ity Case No. 17301204 IN THE COURT OF APPEALS OF MARYLAND No. 82 September Term, 2006 DOUGLAS SCOTT AREY v. STATE OF MARYLAND Raker *Cathell Harrell Greene Eldridge, John C. (Retired, specially assigned) Rodowsky, Lawrence F. (Retired, specially assigned) Wilner, Alan M. (Retired, specially assigned) JJ. Opinio n by Rak er, J. Filed: August 1, 2007 *Cathell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This case concerns a request by an inmate for DNA testing of evidence used by the State at his criminal trial in 1974. Dougla s Scott Are y, appellant, was con victed by a jury in the Criminal Court of Baltimore, now known as the Circuit Court for Baltimore City, of first degree murder and use of a handgun in the commission of a crime of violence. On May 7, 2002, appellant filed a petition in the Circu it Court for B altimore C ity pursuant to Md. Code (2001, 2006 C um. Sup p.) § 8-201 of the Crim inal Proced ure Article,1 requesting DNA testing of blood evidence introduced at his 1974 trial. On July 18, 2006, the court denied the petition on the grounds that the requested evidence no longer exists. Appellant noted a timely appeal directly to this Court pursuant to § 8-201(j)(6). 2 We shall reverse and remand. I. In May 1973, appellant was indicted by the Grand Jury for Baltimore City on charges of first deg ree mu rder an d other related c rimes. He proceede d to trial before a jury in April 1974, and was convicted of first degree murder and use of a handgun in the commission of a crime of violence. The court imposed a sentence of life imprisonment for first degree murder, and a concurrent sentence of ten years for the handgun violation. On June 2, 1975, the Court of Special Appeals, in an unreported opinion, affirmed the judgments of conviction. 1 Unless otherwise indicated, all subsequent statutory references hereinafter shall be to the Md. Code (2001, 2006 Cum. Supp.) of the Criminal Procedure Article. 2 Md. Code (2001, 20 06 Cum . Supp.) § 8 -201(j)(6) of the Crimin al Procedu re Article provides that [a]n appeal to the court of appeals may be taken from an order entered under subsec tion (c), (h )(2), or (j) (4) of th is section . We glean the following facts underlying appellant s conviction from the record of appellant s trial and the unreported opinion of the Court of Special Appeals. Appellant was employed by Samuel Shapiro, and was fired by him around April 27, 1973 because of appellant s violent temper. Shapiro s secretary, Nancy Frank, testified at trial that she overheard an argument between appellant an d Shapiro about w hen appe llant could pick up his final paycheck. Shapiro told appellant that he could pick up the paycheck a week after his termination, and after appella nt return ed a spe cific set o f keys. Soon thereafter, a woman attempted to retrieve the paycheck from Frank fo r appellant, bu t Frank ref used to giv e it to her because appellant had yet to return the keys. Frank testifie d that whe n she return ed to work the following M onday morning, the che ck had been stolen from her desk. Fra nk testified that after appellant was fired, she found a note stuffed under the door which stated, I ll get you , you dirty Jew bastard . At trial, the State called as a witness Dennis Moon, who testified, under a grant of imm unity, that h e had assis ted a ppellant in murde ring Sha piro. Spe cific ally, Moon testified that on May 9, 1973, he lured Shapiro to the Belvedere Hotel, where appellant shot and killed Shapiro. Appellant and Moon placed Shapiro s body in a trunk, which they then placed in appellant s car. Appellant drove to Pennsylvania and threw the trunk into a ravine. The police telephoned appellant about a week later, when Shapiro s body was found, and asked him to come in for questioning concerning the death of his former boss. Appellant complied and admitted to the police that he shot Shapiro. After charging appellant, the police 2 seized a shirt and a pair of pants that appellant was then wearing in order to test blood stains on each. The blood was tested and the lab results revealed that the clothing contained type AB blood. The police also took samples of Shapiro s and appellant s blood. Appellant had type O blood; Shapiro had type AB. Appellant filed several pretrial motions, including a motion to suppress the results of the blood tests. At a pretrial hearing, he argued that during the police interrogation b efore the police seized his clothing, he became nervous and started to pick the pimples on his face. By doing this, he caused sm all amoun ts of blood to pool on the open sores. Detective James Russell of the Baltimore City Police Department witnessed the actions of appellant and testified that he observed him wipe the blood from his face onto his shirt. Appellant contended that bacteria fro m the pus tules that em anated fro m his pimples, w hich mixe d with his blood, may have skewed the results of the blood tests performed on the clothing. Appellant claimed tha t his bacteria like ly contained antigens sim ilar to those teste d for in type A and B blood, and that when his bacteria mixed with his blo od through p icking his pimples the mixture produced a result of AB, rather than O. During a pretrial hearing, appellant asked the court to allow him to replicate the process of putting blood and bacteria from his pimples on the same shirt to show that the original lab results were potentially flawed. T he court granted app ellant s request, but the re-testing of appellant s blood and bacteria mixture resulted in a finding of group O blood. Appellan t, still unsatisfied by the results of the blood tests, requested custody of the shirt to 3 conduct an independent analysis on the original blood stains. Th e State claimed, how ever, that there was insufficient blood remaining to run a proper test, and appellant never obtained custody of the clothing. At trial, the S tate intro duced , inter alia, the results from the blood tests, the testimony of Frank and Moon, and appellan t s confessio n to establish th at appellant w as involved in Shapiro s m urder. As in dicated, the ju ry convicted a ppellant. On May 7, 2002, appellant, acting pro se from priso n, filed a petition in the Circu it Court for Baltimore City pursuant to § 8-201 for DNA testing of the blood that was present on the clothing seized from him during the police interrogation.3 Appellant requested that 3 Section 8-201 provides, in pertinent part, as follows: (a) Definitions (1) In this section the following words have the meanings indicated. (2) Biological evidence includes, but is not limited to, any blood, hair, saliva, semen, epithelial cells, buccal cells, or other bodily substance s from w hich gene tic marker groupings may be obtained. *** (5) Scientific identification evidence means ev idence that: (i) is related to an investigation or prosecution that resulted in a judgment of conviction; (ii) is in the actual or constructive possession of a law enforcement agency or agent of a law enforcement agency; and (iii) contains biological evidence from which DNA may be recovered that may produce exculpatory or mitigating evidence relevant to a claim of a conv icted person of wrongful conviction or sentencing if subject to DNA (contin ued...) 4 the clothing marked as evidence be immediately retrieved from th e Criminal Court Evidence Lockers, Hall of Records or wherever it may be secured, and provided to defense counsel for independent laboratory analysis . . . . In support of his petition, appellant recounted the testimony of Detective Russell and proffered that DNA testing of the blood on the clothing would show that his blood only is present. Appellant asserted that the laboratory technician who had performed the blood tests was unqualified and gave false testimony about the blood test res ults. Appe llant represen ted that DN A testing w ill prove that the laboratory technician lied, and will thereby exonerate him. It is unclear w hether app ellant was ac ting pro se in this case, or whether he was 3 (...continued) testing. (b) Filing of petition. Notwithstanding any other law governing postconviction relief, a perso n who is convicted of a violation of § 2-201, § 2204, § 2-207, or §§ 3-303 through 3-306 of the Criminal L aw Artic le may file a petition for DNA testing of scientific identification evidence that the State possesses as provided in subsection (i) of this section an d that is related to the judgment of conviction. (c) Findings Requiring DNA testing. Subject to subsection (d) of this section, a co urt shall order DNA testing if the co urt finds that: (1) a reasonable probability exists that the DNA testing has the scientific potential to produce excu lpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing *** (d) Notification of petition; response. (1) A petitioner shall notify the State in writing of the filing of a petition under this section. (2) The State ma y file a resp onse to the pet ition with in 15 days after notice of the filing or within the tim e that the court orders. 5 represented by a public defender. 4 Although his initial pleadings were filed pro se, the Circuit Court sen t a letter to appe llant and the S tate, dated A ugust 8, 2005, stating that an assistant public defender, Suzanne Drouet, reported to the court that she was told the requested evidence was destroyed many years ago and appellant had 30 days from the date of the letter to prov ide inform ation to the co urt indicating otherwise. In response to the court s letter, appellant filed a pleading, entitled Response to Bald Allegations; A ffidavit of Facts and Exhibits; Motion for Appointment of Counsel and Request for Witness Summons to App ear and Produ ce Evid ence a t a Mo tions H earing. He maintained tha t [i]t would be egregio us to grant th e State s M otion [to dismiss] because Drouet . . . has no authority to make c laims for the State of Maryland. Her bald allegation is not supported by any facts . . . . He prayed that the court order the State to enter affidavits and evidence that the DNA evidence , and clothin g and related trial materials, be certified as having been searched for and the results of such said search outside of second-hand hea rsay, and to [h]old an eviden tiary hearing fo r appointm ent of cou nsel should the Offic e of the Pu blic Defe nder de cline to c ontinu e to repr esent [a ppellan t] . . . . The court scheduled a hearing for July 25, 200 6, noting tha t [s]hould the State produce prior to the hearing an affidavit from someone with firsthand knowledge stating that the State no longer has the evidence for which the [appellant] has requested the testing, there will be no nee d for the hearing and it will be cancelled. Subsequently, the State filed an 4 Before this Court, appellant was represented by the Office of the Public Defender. 6 affidavit of police Sergeant David K. Ferber. The affidavit stated as follows: 1. I have been employed with the Baltimore Police Department since October 17, 1979. I currently serve as the Sergeant-in-charge of the Evidence Control Unit ( EC U ). ECU is charged with the storage of evidence and property seized by the Baltimo re Police D epartmen t. 2. I have searched the ECU database for the clothes requested by Mr. Arey but cannot locate the same. In addition, I have searched the forms kept on file in ECU to determine the location of the clothes. However, I did not find any forms that reference the clothes. 3. Because I cannot locate the clothes requested b y Mr. Arey through ECU s database or the forms ke pt on file, and in light of my experience at ECU, I have concluded that the reques ted evid ence n o longe r exists. On July 17, 2006, in light of Sergeant Ferber s affidavit, the court cancelled the hearing and filed the fo llowing Order: Upon consideration of Petitioner s Motion for DNA Analysis, all supplemental memo randa filed by Petitioner in support thereof, and the Affidavit of Sergeant David K. Ferber, Sergeant-in-charge of the Evidence Control Unit, it is this 17th day of July 2006, ORDERED that the Petitioner s Motion for DNA Analysis is hereby DENIED for the reason that Sergeant David K. Ferber represented in his affidavit that the [] evidence [requested by Petitioner to be tested] no longer e xists and Mr. Arey ha s failed to prod uce an y eviden ce to the contrar y. Appellant filed two su bsequen t motions en titled Motion to Strike Defective Affid avit of Sergean t Ferber an d Mo tion to Strike th e Prematu re Court Order of July 17, 20 06. Appellant asserted that the court ruled on a serious case through acceptance of patently false 7 submi ssions. In the latter motion, he claimed that it is egregious for the court to act on any purported affidavit submitted by the respondent State prior to perm itting the [app ellant] appropriate time . . . to rebut or pro vide furthe r evidence contrary to that alle gedly supplied by the State. In each motion, appellant req uested a he aring in the C ircuit Court to enable him to respond to the Ferber affidavit. The court denied both motions. Pursuant to § 8201(j)(6), ap pellant noted a timely appea l directly to this Cou rt. II. Before this Court, appellant argues that the trial cou rt erred in denying his petition for DNA testing beca use the State failed to show that the evidence he requested for testing no longer exists. He m aintains that the Circuit Co urt erred by plac ing the burd en on him to show that the e videnc e exists. Appellant also asserts tha t due proce ss of law e ntitled him to an evidentiary hearing on his petition for DNA testing. Finally, he argues that he was entitled to the assistance of counsel under Article 24 of the Maryland Declaration of Rights,5 or, at a minimu m, a discretio nary ruling by the c ourt on his re quest for c ounsel. The State responds that the trial court denied appellant s petition properly by relying 5 Maryland Declaration of Rights, Art. 24, provides as follows: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or, in any manner, destroyed, or deprived of his life, liberty or prop erty, but by the judgment of his peers, or by the Law of the land. 8 on Sergean t Ferber s af fidavit. As to any right to an evidentiary hearing, the State argues that the plain language of § 8-201 does not entitle appellant to an evidentiary hearing on the issue as to whether the DNA evidence still exists. Finally, the State maintains that appellant was not entitled to a ppointed c ounsel. III. We address first appellant s argument that the State failed to show that the evidence in question no longer exists. Appellant argues that merely checking the ECU database or ECU forms kept on file is neith er extensive nor intensiv e enough to support a reasonab le conclusion that the clothe s do not ex ist. Appellant points out that in his affidavit and motion of August 11, 200 6, he suggested ano ther location where the clothing could be located, that being the trial judge s chambers. As a basis for this suggestion, appellant quotes the trial transcript, which reflects that appellant s clothing was kept locked there during the trial, 6 and 6 At appellant s trial, Detective Russell of the Baltimore City Police Department testified as follows: Q: What happened to those clothes, Detective Russell, after you saw them on Mr. Are y? A: He was charged, and they were taken away from him and submitted to the Crime Lab. To the property room first. *** Q: All right. Did you physically bring those clothes from the Crime Lab the early part of last week to the Courtroom? A: Yes, I did. Q: A ll righ t. Ha ve th ey bee n in yo ur cu stod y from that t ime u ntil to day? A: They have been locked up in the Judge s chambers. 9 the case of Kirk Blo odswo rth, where B loodswo rth was exonerated by DNA evidence found in the judge s chambers. This Court had occasion to interpret § 8-201 in Blake v. Sta te, 395 Md. 213, 909 A.2d 1020 (2006). Pu rsuant to § 8-201, Blake sought an evidentiary hearing and DNA testing of scientific evidence used by the State at his 1982 trial for first degree rape an d first degree sexual assault. The Circuit Court summarily dismissed the petition before Blake had an opportun ity to respond to the State s motion to dismiss, which represented that the evidence had been destroyed. This Court held that the Circuit Court sh ould not h ave sum marily dismissed the petition for testing before Blake had an opportunity to respond to the State s motion to dism iss. Id. at 222, 909 A.2d at 1025. W e concluded that the court should not have dismiss ed the p etition b ased m erely on th e motio n befo re it. Id. at 227, 909 A.2d at 1028. In addition, we pointed out that because the evidence had been in the custody of the State, the State had the burden of estab lishing th at it no lo nger ex isted. Id. An unswo rn memorandum, stating that the police ch ecked on ly the evidence control unit and nothing was found, was insufficient to establish that the eviden ce no lo nger ex isted. Id. at 231, 909 A.2d at 1031. As guidance, we carefully considered a cogent report published by the National Commission of the Future of DNA Evidence a commission created in 1998 by the National Institute of Justice ( NIJ ) entitled Postconviction DNA Testing: Recommendations for Handling Requ ests ( N IJ 10 Rep ort ). Available at http://www.ncjrs.org/pdffiles1/nij/177626.pdf. We noted that the NIJ Report urges prosecutors to search for evidence in nontraditional sources an d cautions prosecutors against concluding too hastily that evidence that an inmate has asked to be tested no longer exists. Blake, 395 Md. at 233, 909 A.2d at 1031. We noted that the NIJ Report recommended that a sea rch for eviden ce shou ld includ e certain most li kely place s, includin g, inter alia, the following:7 Prosecutor s office. Evidence is often found here when it has been introd uced at trial. State and local crime laboratories will often retain slides or other pieces of evidence after conducting testing. Laboratories will usually return to the police department the clothing and vaginal swabs tha t are introduc ed as exh ibits at trial. Hospitals, clinics, or doctors offices w here sexu al assault kits are prepared. Defense investigators. Courthouse property/evidence rooms. Offices of defense counsel in jurisdictions that require parties to preserve e xhibits prod uced at trial. Independent crime laboratories. Clerks of court. Court r eporter s. Blake, 395 M d. at 221-22 , 909 A.2d at 1025 (q uoting N IJ Report a t 46). In additio n, it is 7 Not all of these sites may be relevant, in a given case. 11 reasonab le to assume that police departments, sheriff departments, clerk offices of the court, and like departm ents had p rotocols in place for the destruction of evidence, even before the enactment of § 8-201. The State should identify the protocol that was in place from the time of the trial to the time of the request for testing, if possible, and see if that protocol was followed. We agree with appellant that the Circuit Court erred in dismissing his petition for testing based on Serge ant Ferber s representation that, beca use he checked the ECU s database and forms on file, it was reasonable to conclude that the evidence no longer exists.8 Searching the ECU alone was in suffici ent. See Blake, 395 Md. at 232-33, 909 A.2d at 1031 (stating that [s]imply asking a police officer to check an evidence unit locker is not sufficient ). The evidence in this case had been tested by a laboratory; slides possibly had been made. We have no idea as to the protocol the police or the custodian of evidence utilized at the time the evidence purportedly was destroyed. Because the State was the custodian of the evidence, the State needs to check any place the evidence could reaso nably be found, unless there is a written record that the evidence had been destroyed in accordance with then existing protocol. [N ]o final decision or notification should be made until it has been carefully verified that evidence did not or does not still exist. Id. at 233, 909 A.2d at 1031-32 (quoting NIJ Report at 36). In other word s, a court should not conclude that 8 We note that when appellant s p etition came before the Circuit Court, the court did not have the benefit of our recent opinion in Blake v. Sta te, 395 Md. 213, 909 A.2d 1020 (2006). 12 evidence no longer exists until the State performs a reasonable search for the requested evidence. In this case, the 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 e vidence or determine d more conclusive ly its fate. At a minimum, a reasonable search in the instant case would have required the State to look in the crime lab referred to in Detective Russell s testimony, if the lab is still in existence, for any slides used to test the blood evidence used against appellant or for pieces of the clothing he requested; the property room, if it was different from the ECU; and because the testimony at trial was that the evidence had b een stored in the Judge s chambers, as unlikely as it is that it would be there after all these years, an inquiry as to that location. IV. We address next appellant s argument that the trial court erred by placing the burden on him to produce evidence as to the continuing existence of the DNA evidence. We reiterate that which we said in Blake: [T]he burden is on the State to establish that it is no longer in possession of the DNA testing eviden ce re quested by a petitioner when it seeks to have the court dismiss a DNA testing petition on such groun ds. It is only logical th at this burden is upon the State, as the State gathered the evidence and was the custodian of the evid ence. The informatio n as to the location of 13 the evidence and the manner of its destruction would not be within the kno wledg e of an inmate . Blake, 395 Md. at 232, 909 A.2d at 1031. Once the State performs a reasonable search and demonstrates sufficiently a prima facie case, either directly or circumstantially, that the requested evidence no longer exists, the State will have satisfied its burden of persuasion. The burden of production then shifts to the petitioner to demonstrate that the evidence actually exists. Because the trial court erre d in dismissing appellant s petition based on the representation in the Ferber affidavit, we do not reach appellant s argument that the c ourt shif ted th e burden of persu asion improp erly. V. Appellant makes the broad claim that due process en titles him to an evidentiary hearing. In Blake, we examined § 8-201 in ligh t of Blake s contention that before the Circuit Court dismissed his petition for DNA testing on grounds that the evidence no longer existed, he was entitled to respond to the State s representation that the evidence no longer exists. We concluded as follows: [T]he Circuit Court erred in dismissing the petition without, at a minimum, giving appellant an opportunity to respond to the State s allegation that the DNA testing evidence was no longer in its possession. Fundamental fairness requires that a petitioner be given an opportun ity to respond and to ch allenge the State s representation. When it is the State s position that the evidence sought to be tested no longer exists, the circuit court may not summa rily dismiss the p etition reques ting DNA testing. The court must give a petitioner notice of and an opportunity to 14 respond to the State s allegation . A petitioner has a right to notice and opportunity to contest the State s representation that the evid ence is u navaila ble. Blake, 395 Md. at 228, 909 A.2d at 10 28-29. W e did not, however, address the question of whether, and if so, under what circumstances, a person requesting DNA testing of evidence under § 8-201 is entitled to an ev identiar y hearing . Id. at 229, n.12, 909 A.2d at 1029, n.12. Many statutes of our sister states require courts to hold hearings when petitions for DNA testing are filed.9 Other statu tes leave the decision to hold hearings on DNA testing petitions to the discretion of the courts.10 It appears to us that these statutes merely codify the inherent power of a court to hold a hearing. As we noted in Blake, § 8-201 does not expressly require a hearing on a petition for 9 See, e.g., A RK. C ODE A NN. § 16-112-205 (a) (2006) ( Unless the petition and files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the p etition . . . ); G A. C ODE A NN. § 5-541(c)(6)(A) (Supp. 20 06) ( If, afte r the state files its response, if any, and the court determines that the motion complies w ith the require ments of...this s ubsection, th e court shall order a hearing to occur a fter the state has filed its re sponse . . . ); N EV. R EV. S TAT. § 176.0918(5 ) (2003) ( T he court sh all hold a he aring on a p etition filed pu rsuant to this section ); R.I. G EN. L AWS § 10-9.1-12(a)-(b) (Supp. 2006) ( After notice to the prosecution and a hearing a justice of the superior co urt shall order testing after [mak ing certain findings] ); V A. C ODE A NN. § 19.2-327.1(C) (2004 & Supp. 2007) ( The court shall, no sooner than 30 an d no later than 90 days after such motion is filed, hear the mo tion ). 10 See, e.g., C AL. P ENAL C ODE § 1405(e) (West 2000 & Supp. 2007) ( The co urt, in its discretion, may order a hearing o n the motio n ); I ND. C ODE A NN. § 35-38-7-7 (West 2006) ( The court may, in its discretion, order a hearing on the petition ); N.J. S TAT. A NN. § 2A:84A-32a(b) (West 1994 & Supp. 2007) ( The court, in its discretion, may order a hearing on the motion ). 15 DNA testing, and this Court has not ad opted rules that would require a hearing.11 Id. at 22425, 909 A.2d at 1026-27. In a footnote, we discussed due process and the right to a hearing, noting as follows: Writing for the Court in Phillips v. Venker, 316 Md. 212, 557 A.2d 1338 (1989), Judge John F. McAuliffe discussed due process concerns and the types of hearings which may be required. He noted as follows: In some instances, even a temporary deprivation of a property interest followed by a right to a full hearing has been held to violate due process unless a pretermination hearing is prov ided. In other circumstan ces, a pape r hearing, i.e. the right to be heard thro ugh the filin g of docu ments and written arguments, may suffice. As the Supreme Court has said, [d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Rather, it is flexible and calls for such procedural protections as the particular situation demands. Id. at 218, 5 57 A.2 d at 134 1 (intern al citation s omitte d). Blake, 395 Md. at 229, n.12, 909 A.2d at 1029 n.12. We do not believe that Article 24 of the Maryland Declaration of Rights requires an evidentiary hearing w hen the pe tition is filed. Nonetheless, given the purpose underlying the statute, which is to provide a means for incarcerated persons to produce exculpatory or 11 We suggest that this C ourt s Standing Committee on Practice and Procedure review § 8-201 and consider drafting rules trial courts should follow in considering petitions for DNA testing. It is clear that the issue will arise again in the future, and the statute, as enacted by the General Assembly, does not contemplate the myriad issues that may arise. 16 mitigating evidence relevant to a claim of wrongful conviction or sentencing, and notwithstanding that § 8-201 is silent on the iss ue of hea rings, if the court determines that there is a genuine factual dispute as to wheth er the evidence exists, ordinarily the court should hold a hearing. VI. Appellant s final argument is that he was e ntitled to the assistance of counsel under Article 24 of the Maryland Declaratio n of Righ ts or, at a minim um, to a discretionary ruling on his request for counsel. There is no right to appointed counsel under § 8-201, either statutory or constitution al, to assist a person in filing a petition under the statute or during the initial stages of the procee dings. Blake, 395 Md. at 234-38, 909 A.2 d at 1032. B y contrast, the rights of a petitioner change if the DNA testing results are favorable to the petitioner. Section 8-201(h)(2) provides as follows: If the results o f the postco nviction D NA testin g are favo rable to the petitione r, the court sha ll: (i) if no postconviction proceeding has been previously initiated by the petitioner under § 7102 of this article, open a postconviction proceeding under § 7-102 of this article; or (ii) if a postconviction proceeding has been previously initiated by the petitioner under § 7102 of this article, reo pen a pos tconviction procee ding un der § 7- 104 of this article . Section 7-108 of the Uniform Postconviction Procedure Act provides that a person is entitled to assistance of counsel and a hearing on a petition filed under § 7-102. Section 17 7-108(b) provides f urther that the court shall determine whether assistance from counsel or a hearing should be granted on a petition filed under § 7-104. It is clear that under § 8-201, a petitioner has no absolute statutory right to assistance from counsel unless and until the petitioner receives favorable DNA testing results, and has not opened a postconviction hearing previously. If a petitioner has opened a postconviction hearing previously, the court may, in its discretion , appoint co unsel. We conclude that although there is no constit utional or statutory right to counsel at the time a petitioner file s the petition f or DNA testing, a cou rt has the inhe rent pow er to appoint counsel at any stag e of pro ceedin gs und er § 8-2 01. See Wyn n v. State, 388 Md. 423, 433, 879 A.2d 1097, 1103 (2005) ( The concept of inherent authority . . . is grounded in the understanding that courts must possess certain powers in order to function as courts ). See also State ex rel. F itas v. Milw aukee C ounty, 221 N.W.2d 902, 904-05 (Wis. 1974) ( It is within the inheren t power o f the courts to appoint counsel for indigen ts ); Wise v. State , 708 N.W.2d 66, 69-70 (Iowa 2006) (noting that courts are not required to, but may, at their own discretion, appoint counsel in postconviction cases). The inherent powers of the court are not derived from legislative grant or specific constitutional provisions, but from the very fact that the court has been created and charged by the Maryland Constitution with certain duties and respon sibilities. See Wynn, 388 Md. at 432, 879 A.2d at 1102-03 (stating that in addition to the specific powers and functions expressly granted to the three organs of the government by the Constitution, each branch possesses additional powers perforce implied 18 from the right and obligation to perform its constitutional duties (quoting Attorney General v. Waldron, 289 M d. 683, 690 -91, 426 A .2d 929, 93 3-34 (198 1))); Comm n on Med. Discipline v. Stillman, 291 Md. 390, 401, 435 A.2d 747, 753 (1981) (stating that the test for inherent powers is whether such a power is necessary to the performance of the judicial function as contemplated in our state constitution (quoting Clerk of C ourt s Comp. for L. C. v. L. C. Com rs, 241 N.W.2d 781,786 (Minn. 1976))). The inherent powers of the court are those powers which are necessary to exercise its jurisdiction, administer justice, and preserve its indep enden ce and integrity. See United States v. Hudson, 11 U.S . (7 Cran ch.) 32, 34, 3 L.Ed . 259 (181 2) ( Certain implied po wers mu st necessarily result to our Co urts of justice from the nature of their institution ). Accordingly, the Circuit Court has the inherent power to appoint counsel to represent a petitioner when the court believes counsel would be necessary to further the interest of justice. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT F O R F U RT H E R P R O C E E D I N GS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE MAYOR AND CITY COUN CIL OF BALTIMORE. 19

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