Thomas Clifford Wallace v. State of Maryland, No. 29, September Term, 2016. Opinion 

by Getty, J. 

CRIMINAL PROCEDURE — POSTCONVICTION DNA TESTING STATUTE — 

DUTY TO PRESERVE SCIENTIFIC IDENTIFICATION EVIDENCE 

Black t-shirt worn by appellant at the time of his arrest did not constitute “scientific 

identification evidence” as defined by the Postconviction DNA Testing Statute, Maryland 

Code, Criminal Procedure Article (“CP”) § 8-201. Multiple eyewitnesses described 

appellant as wearing a white t-shirt when the crime occurred, and appellant admitted that 

he did not obtain the black t-shirt until later that day. Thus, even if the black t-shirt 

contained hair fibers, there was no possibility that testing those fibers “may produce 

exculpatory or mitigating evidence relevant to” appellant’s claim of wrongful conviction. 

CP § 8-201(a)(5)(iii). Accordingly, the State did not have a duty to preserve the black tshirt under the Statute, and appellant was not entitled to a hearing to determine whether the 

State’s failure to produce the black t-shirt “was the result of intentional and willful 

destruction.” CP § 8-201(j)(3)(i). 

CRIMINAL PROCEDURE — POSTCONVICTION DNA TESTING STATUTE — 

APPOINTMENT OF COUNSEL 

Fuster v. State, 437 Md. 653 (2014), holding that appointment of counsel under the 

Postconviction DNA Testing Statute is discretionary, is not “clearly wrong or contrary to 

established principles,” and has not “been superseded by significant changes in the law or 

facts,” such that it would be appropriate for the Court to overrule its own precedent. Circuit 

court did not abuse its discretion in declining to appoint counsel for appellant where 

appellant did not request counsel in his petition, appellant had previously litigated a 

postconviction proceeding represented by counsel, and court perceived appellant’s 

potential for success as being minimal. 
Circuit Court for Washington County 

Case No. 21-K-00-26006 

Argued: February 7, 2017 

IN THE COURT OF APPEALS

OF MARYLAND 

No. 29 

September Term, 2016 

THOMAS CLIFFORD WALLACE 

 v. 

STATE OF MARYLAND 

Barbera, C.J. 

Greene,

Adkins,

McDonald,

Watts, 

Hotten,

Getty, 

JJ.

Opinion by Getty, J. 

Filed: April 21, 2017
 The Postconviction DNA Testing Statute provides for postconviction review 

related to DNA evidence for individuals convicted of certain enumerated offenses. See 

generally Md. Code (2001, 2008 Repl. Vol.), Criminal Procedure Article (“CP”) § 8-201. 

When the Maryland General Assembly passed the Statute in 2001, the legislature was 

responding to a nationwide concern over individuals being wrongfully convicted for 

serious crimes and held in prison for many years. Blake v. State, 395 Md. 213, 219 (2006). 

Prior to 2001, a convicted person could only file one postconviction petition within ten 

years of being sentenced, and the court retained the discretion to reopen a postconviction 

proceeding if to do so was “in the interests of justice.” Dep’t Legis. Servs., Fiscal and 

Policy Note (Revised), Senate Bill 694, at 3 (2001 Session).1 Under the Statute, a convicted 

person can “obtain DNA testing of evidence when either the DNA tests were not available 

or not as sophisticated at the time the inmate was convicted.” Id. Thus, the Postconviction 

DNA Testing Statute provides convicted persons a second bite of the postconviction apple.2

 The Statute also establishes separate procedures for these postconviction 

proceedings. An individual convicted of a qualifying offense may file a petition for either 

 

1 http://mgaleg.maryland.gov/2001rs/fnotes/bil_0004/sb0694.PDF 

[https://perma.cc/5NT4-RE84].

2

 The General Assembly has amended the Postconviction DNA Testing Statute numerous 

times since its enactment in 2001, including once during the course of proceedings in the 

circuit court in this case. See 2015 Md. Laws, ch. 369. The 2015 amendments, which took 

effect after the petition was filed but before the circuit court issued its decision, are not at 

issue in this appeal. Therefore, all references to the Statute in this opinion are to the 2008 

version, which took effect on January 1, 2009. See 2008 Md. Laws, ch. 337. For a detailed 

discussion of previous amendments to the Statute, see Gregg v. State, 409 Md. 698, 708–

12 (2009). 
2

“DNA testing of scientific identification evidence that the State possesses . . . that is related 

to the judgment of conviction; or . . . a search by a law enforcement agency of a law 

enforcement data base or log for the purpose of identifying the source of physical evidence 

used for DNA testing.” CP § 8-201(b). If the circuit court denies the petition, the petitioner 

can appeal directly to this Court. CP § 8-201(k)(6). 

Furthermore, the Statute imposes on the State a duty to preserve certain evidence 

that might later be subject to DNA testing. See CP § 8-201(j). If the State fails to produce 

evidence that it had a duty to preserve, then the petitioner is entitled to a hearing for “the 

court to determine whether the failure to produce evidence was the result of intentional and 

willful destruction.” CP § 8-201(j)(3)(i). 

 In this case, the appellant, Thomas Clifford Wallace, filed a petition in the Circuit 

Court for Washington County requesting a hearing under CP § 8-201(j)(3)(i) because the 

State admitted that it had destroyed the requested evidence—a black t-shirt that Mr. 

Wallace was wearing when he was arrested in 1997. The circuit court denied Mr. 

Wallace’s petition, concluding that the black t-shirt did not constitute “scientific 

identification evidence,” as defined by the Statute, and therefore the State did not have a 

duty to preserve it. On appeal, Mr. Wallace challenges the denial of his petition, as well 

as the circuit court’s decision not to appoint counsel to represent Mr. Wallace at the 

proceedings on his petition. For the following reasons, we shall affirm the circuit court’s 

judgment on both issues. 

BACKGROUND 

A. The Crime
3

Darrius Fetterhoff disappeared from Hagerstown, Maryland on August 20, 1997, 

after driving his wife to work that morning. Five days later, on August 25, two men on a 

raft on Conococheague Creek in Washington County saw a man lying in the rocks along 

the creek bank. They called out to the man and told him they were going to get him help; 

the man raised his right hand. Later that day, when police officers located the man, he was 

unconscious but still alive. They identified the man as Mr. Fetterhoff. Three days later, 

on August 28, he died in the hospital without regaining consciousness. The medical 

examiner testified that the cause of death was multiple blunt force injuries to the head, 

torso, and extremities, including a fractured skull and ribs. One can only speculate what 

the five days lying injured in the rocks were like for Mr. Fetterhoff. 

 During the investigation into Mr. Fetterhoff’s disappearance and murder, police 

identified three key witnesses who later testified at Mr. Wallace’s trial. Keisha Russ 

recounted that on the morning of August 20, she witnessed Clara Miller driving a car with 

Mr. Wallace in the passenger seat and Mr. Fetterhoff in the back seat. Ms. Russ, who knew 

all three occupants from previous encounters with them, described Ms. Miller as a white 

female, Mr. Wallace as a black male, and Mr. Fetterhoff as a white male. Later in the day, 

Ms. Russ saw Mr. Wallace and Ms. Miller at an apartment.3 By that time, Mr. Wallace 

was shirtless and had a bloody rag wrapped around his hand.

 

3

 Ms. Miller also gave statements to the police implicating Mr. Wallace in Mr. Fetterhoff’s 

murder, and the State charged her as a co-defendant in the case. She went missing in 

September 1997, and was found dead in March 1998. Her murder remains unsolved. 
4

 Kim Stottlemeyer testified that, while driving on August 20, she was stopped by a 

black male who asked if he could siphon some gasoline from her car. She described the 

man as wearing a white t-shirt with red stains on it and later identified Mr. Wallace as the 

man she encountered. She also stated that he was with a female passenger. 

 Robert Kursey testified that, while driving on the same road as Ms. Stottlemeyer on 

August 20, he saw a car in the middle of the road and a black male talking to someone 

inside the car. The man approached Mr. Kursey and asked him for a ride into town. Mr. 

Kursey drove the man and the woman who had been inside the car into town. He stated 

that the man had a bloody white t-shirt wrapped around his hand, and later identified Mr. 

Wallace as the man he encountered. 

 Also on August 20, at 6:20 p.m., the Washington County Narcotics Task Force 

arrested Mr. Wallace for drug charges, unrelated to Mr. Fetterhoff’s disappearance and 

murder, and placed him in the Washington County Detention Center (“WCDC”). When 

he was arrested, Mr. Wallace was wearing a black t-shirt and blue shorts. WCDC officials 

inventoried and stored those items, along with other personal effects, at the time of Mr. 

Wallace’s arrest. 

B. The Physical Evidence 

 On August 30, 1997, after connecting Mr. Wallace to Mr. Fetterhoff’s death through 

witness statements, Corporal Roy Harsh of the Washington County Sheriff’s Department 

decided to review WCDC’s property record for Mr. Wallace. At that time, Corporal Harsh 

took possession of all of Mr. Wallace’s property, including the black t-shirt and blue shorts 

he had been wearing when he was arrested, and placed the items in the Washington County 
5

Sheriff’s Department’s property room. In his affidavit for a search and seizure warrant, 

Corporal Harsh noted the following observations regarding Mr. Wallace’s clothes: “When 

the tee shirt & dark blue shorts were packaged separately for storage, I observed hair 

fibers on the shirt & unidentified stains on the shorts.” (Emphasis added.) 

 Forensic chemist Jeffrey Kercheval of the Western Maryland Regional Crime 

Laboratory examined Mr. Wallace’s property and found “no stains consistent with blood” 

on the black t-shirt, but identified “stains consistent with blood” on the shorts. Mr. 

Kercheval’s report made no mention of any hair fibers on any of the items. DNA testing 

on the shorts later confirmed that the stains were in fact blood, and that it was Mr. 

Fetterhoff’s blood. The black t-shirt was never tested for DNA. 

Investigators also recovered hair fibers from Mr. Fetterhoff’s car—the same car that 

was seen by Ms. Stottlemeyer and Mr. Kursey on the morning Mr. Fetterhoff disappeared, 

which police found abandoned near the site where they later recovered Mr. Fetterhoff. 

Forensic scientist David Exline compared three of these hair fibers to known hair samples 

submitted by Mr. Wallace. Mr. Exline concluded that the hair fibers from the car were 

“Negroid in origin,” which he defined as originating from an individual in the AfricanAmerican population. He determined that two of the hair fibers “exhibited characteristics 

that were unlike the known hair samples submitted from Mr. Wallace.” The third hair fiber 

“exhibited some similarities but also some differences” to Mr. Wallace’s hair samples, so 

Mr. Exline could not conclusively determine whether it originated from Mr. Wallace. 

C. The Trial, Direct Appeals, and First Postconviction Proceeding
6

 On November 30, 2000, a jury in the Circuit Court for Washington County 

convicted Mr. Wallace of first- and second-degree murder, first-degree assault, and the 

unlawful taking of a motor vehicle. On March 8, 2001, the circuit court, Judge John H. 

McDowell presiding, sentenced Mr. Wallace to life imprisonment without the possibility 

of parole for first-degree murder, and to a concurrent five-year term of imprisonment for 

the unlawful taking of a motor vehicle. The second-degree murder and first-degree assault 

convictions merged into the first-degree murder conviction for sentencing purposes. Mr. 

Wallace appealed his convictions to the Court of Special Appeals, which affirmed the 

convictions on May 9, 2002, in an unreported opinion. Mr. Wallace petitioned this Court 

for a writ of certiorari, which we granted on August 22, 2002. Wallace v. State, 370 Md. 

268 (2002). We affirmed the judgment of the Court of Special Appeals on February 13, 

2003. Wallace v. State, 373 Md. 69 (2003). 

 Mr. Wallace filed his first Petition for Postconviction Relief on May 27, 2009. The 

Circuit Court for Washington County, Judge Donald Beachley presiding, held a hearing on 

the petition on May 26, 2011. Appointed counsel represented Mr. Wallace at the hearing. 

On September 15, 2011, the circuit court granted Mr. Wallace’s petition in part, allowing 

him to file an application for review of his sentence by a three-judge panel pursuant to 

Maryland Rule 4-352. The circuit court denied Mr. Wallace’s petition with regard to all 

other relief sought.4

 Mr. Wallace filed an application for review of his sentence on 

 

4

 Mr. Wallace’s first postconviction petition is not part of the record in this case. Thus, 

this Court is unaware of what other relief Mr. Wallace requested in that petition.
7

September 21, 2011. On November 1, 2011, a three-judge review panel declined to 

increase, decrease, or otherwise modify Mr. Wallace’s sentence. 

D. The Postconviction DNA Petition 

 On May 23, 2013, Mr. Wallace filed a Public Information Act Request with the 

Office of the State’s Attorney for Washington County requesting the results of any testing 

performed on the hair fibers from the black t-shirt he was wearing when he was arrested 

on August 20, 1997. Assistant State’s Attorney Gina Cirincion, one of the prosecutors who 

tried Mr. Wallace’s case, responded to the PIA Request in a letter dated March 11, 2014. 

Ms. Cirincion stated that there was no reference in Mr. Wallace’s case file to any hair fibers 

on the black t-shirt “other than the sentence included in the search warrant affidavits 

prepared by [Corporal] Harsh. There is no other record, and no testing was ever done.” 

Ms. Cirincion further stated that her co-counsel in Mr. Wallace’s case had no recollection 

of any hairs being found on the black t-shirt, nor did the forensic chemist Mr. Kercheval 

who processed all of the evidence in his case. Ms. Cirincion also revealed that the “actual 

evidence,” i.e. the black t-shirt, “was destroyed on February 28, 2003, after the appellate 

process was exhausted.” 

 On April 29, 2014, Mr. Wallace filed a Petition for a Postconviction DNA Hearing 

pursuant to CP § 8-201. In his petition, Mr. Wallace asserted that the hair fibers found on 

the black t-shirt “would exonerate him,” but he was “prevented from presenting this 

exculpatory evidence because it was destroyed,” without notification to either himself or 
8

his counsel as required by CP § 8-201(k)(1).5 Therefore, Mr. Wallace requested a hearing 

pursuant to CP § 8-201(j)(3) “to determine whether the [State’s] failure to produce 

evidence was the result of intentional and willful destruction.”

 The State answered Mr. Wallace’s petition on May 1, 2014, asserting that Mr. 

Wallace was not entitled to a hearing under CP § 8-201(j)(3) because the black t-shirt did 

not constitute “scientific identification evidence” as defined by the Statute. The State 

admitted that the black t-shirt had been destroyed, but denied that it had a duty to preserve 

the t-shirt under the Statute. The State asserted that “[t]here is no conceivable fashion in 

which either the shirt or the alleged fibers could have produced ‘exculpatory or mitigating 

evidence relevant to a claim of . . . wrongful conviction’” because the shirt was only 

associated with Mr. Wallace, and not with the victim or the crime scene. (Ellipsis in 

original) (quoting CP § 8-201(a)(5)(iii)). Mr. Wallace responded to the State’s answer on 

May 14, 2014, and filed an amended petition on June 10, 2014. 

E. Hearings and Orders in the Circuit Court

 

5 CP § 8-201(k)(1) provides, 

The State may dispose of scientific identification evidence before the 

expiration of the time period described in subsection (j) of this section if the 

State notifies the following persons: 

(i) the person who is incarcerated in connection with the case;

(ii) any attorney of record for the person incarcerated; and 

(iii) the Office of Public Defender for the judicial district in which the 

judgment of conviction was entered. 
9

 The Circuit Court for Washington County, Judge Donald Beachley presiding, held 

a hearing on the petition on December 4, 2014. During that hearing, the State again 

asserted that a hearing to determine whether its destruction of the black t-shirt “was 

intentional and willful” was unnecessary because the t-shirt did not satisfy the statutory 

definition of “scientific identification evidence.” Furthermore, the State asserted that if the 

court did decide to have a hearing, it would be required to appoint counsel for Mr. Wallace. 

Mr. Wallace did not include a request for the appointment of counsel in either his petition 

or his amended petition, nor in his response to the State’s answer. However, Mr. Wallace 

did indicate a desire for appointed counsel during the December 4 hearing. 

 On December 18, 2014, the circuit court issued a memorandum order in which it 

concluded that a hearing was required “in the interest of justice” to determine whether the 

black t-shirt satisfied the statutory definition of “scientific identification evidence.” 

Furthermore, the circuit court disagreed with the State that it was required to appoint 

counsel for Mr. Wallace. Instead, the court determined that under Maryland Rule 4-707(b)

and Fuster v. State, 437 Md. 653 (2014), the appointment of counsel for a hearing under 

the Postconviction DNA Testing Statute is within the court’s discretion. The court then 

declined to appoint counsel for Mr. Wallace, noting that he “ha[d] actually litigated a prior 

petition for post conviction relief[,] and in consideration of the potential for success in the 

present case.” Mr. Wallace subsequently filed a Petition for Appointment of Counsel on 

August 27, 2015, which the circuit court denied on September 4, 2015.

 The circuit court held another hearing on May 4, 2016, during which the State and 

Mr. Wallace debated whether the black t-shirt constituted “scientific identification 
10

evidence” under the Statute. Mr. Wallace indicated at the start of the hearing that he had 

been attempting to obtain counsel, but was unsuccessful. He then indicated that he was 

ready to proceed with the hearing and represent himself. During the hearing, Mr. Wallace 

acknowledged that he did not obtain the black t-shirt until after the murder “allegedly” 

occurred. 

 On May 31, 2016, the circuit court issued a memorandum opinion and order denying 

Mr. Wallace’s Petition for a Postconviction DNA Hearing. In its opinion, the court found 

that Mr. Wallace had “utterly failed to show any connection between the black shirt he was 

wearing on the evening of August 20 and the murder that occurred earlier that day.” 

Therefore, the court concluded “that there is no reasonable probability that DNA testing of 

the black t-shirt would have produced exculpatory or mitigating evidence.” 

Mr. Wallace noted an appeal of the circuit court’s order on June 27, 2016, which 

was docketed by this Court on August 8, 2016. In his brief,6

 Mr. Wallace presents the 

following questions for this Court’s review: 

1. Did the [circuit court] err when it concluded that there was no 

reasonable probability that DNA testing of the black T-shirt would 

have produced exculpatory or mitigating evidence? 

2. Did the [circuit court] abuse its discretion by denying [Mr. Wallace’s] 

and the State’s request to appoint counsel for [Mr. Wallace]?

DISCUSSION

A. The State’s Duty to Preserve Scientific Identification Evidence

 

6

 This Court assigned an attorney to represent Mr. Wallace on a pro bono basis for purposes 

of his appeal only. 
11

 Mr. Wallace argues that the circuit court erred in denying his Petition for a 

Postconviction DNA Hearing because the State had a duty, under the Postconviction DNA 

Testing Statute, to preserve the black t-shirt and accompanying hair fibers, but the State 

admitted that it had in fact destroyed the t-shirt. The State responds that it did not have a 

duty to preserve the t-shirt because it did not constitute “scientific identification evidence,” 

as defined by the Statute. Therefore, the State concludes that the circuit court did not err 

in denying Mr. Wallace’s petition for a hearing. 

 The Postconviction DNA Testing Statute imposes a duty on the State to preserve 

“scientific identification evidence”:

(1) The State shall preserve scientific identification evidence that:

(i) the State has reason to know contains DNA material; and

(ii) is secured in connection with an offense described in subsection 

(b) of this section. 

(2) The State shall preserve scientific identification evidence described in 

paragraph (1) of this subsection for the time of the sentence, including any 

consecutive sentence imposed in connection with the offense.

(3) (i) If the State is unable to produce scientific identification evidence 

described in paragraph (1) of this subsection, the court shall hold a 

hearing to determine whether the failure to produce evidence was the 

result of intentional and willful destruction.

(ii) If the court determines at a hearing under subparagraph (i) of this 

paragraph that the failure to produce evidence was the result of 

intentional and willful destruction, the court shall:

1. order a postconviction hearing to be conducted in 

accordance with subparagraph (iii) of this paragraph; and

2. at the postconviction hearing infer that the results of the 

postconviction DNA testing would have been favorable to the 

petitioner. 
12

* * * 

CP § 8-201(j). The Statute defines “scientific identification evidence” as evidence that 

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

conviction;

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

or agent of a law enforcement agency; and 

(iii) contains biological evidence from which DNA may be recovered that 

may produce exculpatory or mitigating evidence relevant to a claim of a 

convicted person of wrongful conviction or sentencing if subject to DNA 

testing.

CP § 8-201(a)(5). “Biological evidence,” in turn, “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). 

 Mr. Wallace argues that the State had a duty to preserve the black t-shirt and 

accompanying hair fibers because the State had reason to know the t-shirt contained DNA 

material by virtue of Corporal Harsh’s mention of the hairs in his affidavit, and because 

the t-shirt was secured in connection with the State’s investigation of Mr. Fetterhoff’s 

murder. Because the State admitted to destroying the t-shirt, Mr. Wallace asserts that he 

is entitled to a postconviction hearing at which the court must infer that the results of DNA 

testing on the t-shirt would have been favorable to Mr. Wallace. 

The State responds that it did not have a duty to preserve the black t-shirt and 

accompanying hair fibers because the t-shirt did not constitute “scientific identification 

evidence.” Specifically, the State asserts that the t-shirt was not related to Mr. Fetterhoff’s 

murder, see CP § 8-201(a)(5)(i), and that it did not “contain[] biological evidence from 

which DNA may [have been] recovered that may [have] produce[d] exculpatory or 
13

mitigating evidence relevant to” Mr. Wallace’s claim of wrongful conviction.7 See CP § 

8-201(a)(5)(iii). Additionally, the State argues that even if the black t-shirt did constitute 

scientific identification evidence, the denial of Mr. Wallace’s petition was nonetheless 

harmless because there is no “favorable result” that could have come from DNA testing on 

the t-shirt. Finally, the State notes that the circuit court did not make a determination as to 

whether the State’s failure to produce the t-shirt “was the result of intentional and willful 

destruction.” See CP § 8-201(j)(3)(i). Therefore, the State contends that if this Court were 

to hold that the circuit court’s decision was erroneous, and the error was not harmless, then 

the appropriate relief for Mr. Wallace would be a remand for the circuit court to make that 

determination. 

In deciding whether the black t-shirt constituted “scientific identification evidence” 

as defined by the Postconviction DNA Testing Statute, “[w]e give due regard to the 

[circuit] court’s role as fact-finder and will not set aside factual findings unless they are 

clearly erroneous.” Phillips v. State, 451 Md. 180, 189 (2017) (quoting Bottini v. Dep’t of 

Fin., 450 Md. 177, 187 (2016)). However, when the circuit court’s decision “involves an 

interpretation and application of Maryland statutory and case law, our Court must 

determine whether the [circuit] court’s conclusions are legally correct under a de novo

 

7

 The State does not dispute that the black t-shirt satisfied the condition of CP § 8-

201(a)(5)(ii), because it was “in the actual or constructive possession of a law enforcement 

agency,” i.e. the Office of the State’s Attorney for Washington County, when it was 

destroyed. 
14

standard of review.” Blickenstaff v. State, 393 Md. 680, 683 (2006) (quoting Gray v. State, 

388 Md. 366, 375 (2005)). 

First, we reject the State’s contention that the black t-shirt and accompanying hair 

fibers were not “related to an investigation or prosecution that resulted in a judgment of 

conviction.” CP § 8-201(a)(5)(i). Although the black t-shirt was not introduced at Mr. 

Wallace’s trial, it was mentioned in Corporal Harsh’s affidavit for a search and seizure 

warrant, examined for blood stains by the forensic chemist, and held in the Washington 

County Sheriff’s Department’s property room along with the other evidence. We hold that 

these factors are sufficient to conclude that the black t-shirt was “related to [the] 

investigation,” if not the prosecution, of Mr. Fetterhoff’s murder, which “resulted in a 

judgment of conviction” for Mr. Wallace. See id.

Next, we address whether the black t-shirt “contain[ed] biological evidence from 

which DNA may [have been] recovered that may [have] produce[d] exculpatory or 

mitigating evidence relevant to” Mr. Wallace’s claim of wrongful conviction. See CP § 8-

201(a)(5)(iii). In its memorandum opinion, the circuit court summarized the trial testimony 

of Ms. Russ, Ms. Stottlemeyer, and Mr. Kursey. These witnesses all indicated that Mr. 

Wallace was either wearing a white t-shirt with red stains on it, or was shirtless with a 

bloody white t-shirt wrapped around his hand, on the morning of Mr. Fetterhoff’s murder. 

The circuit court also recounted that Mr. Wallace was wearing the black t-shirt and blue 

shorts when he was arrested later that evening for unrelated drug offenses. Finally, the 

court noted that investigators did not find any blood stains on the black t-shirt.
15

The circuit court concluded “that there is no reasonable probability that DNA testing 

of the black t-shirt would have produced exculpatory or mitigating evidence.” The court 

found that Mr. Wallace had “utterly failed to show any connection between the black shirt 

he was wearing on the evening of August 20 and the murder that occurred earlier that day.” 

The court then reiterated that “there is no reasonable possibility [sic] that DNA testing of 

the black shirt would produce exculpatory or mitigating evidence.” On this basis, the 

circuit court denied Mr. Wallace’s Petition for a Postconviction DNA Hearing.

It is apparent that the circuit court applied an incorrect legal standard in determining 

whether the black t-shirt constituted “scientific identification evidence” under the 

Postconviction DNA Testing Statute. The proper standard, as noted above, is whether the 

t-shirt “contain[ed] biological evidence from which DNA may [have been] recovered that 

may [have] produce[d] exculpatory or mitigating evidence relevant to a claim of a 

convicted person of wrongful conviction or sentencing if subject to DNA testing.” CP § 

8-201(a)(5)(iii). Instead, the circuit court utilized the standard that governs when the court 

is required to order DNA testing on the requested evidence. On this distinct question, the 

Postconviction DNA Testing Statute provides that 

a court shall order DNA testing if the court finds that: 

(i) a reasonable probability exists that the DNA testing has the 

scientific potential to produce exculpatory or mitigating evidence 

relevant to a claim of wrongful conviction or sentencing; and

(ii) the requested DNA test employs a method of testing generally 

accepted within the relevant scientific community.
16

CP § 8-201(d)(1). The circuit court quoted this provision of the Statute in its memorandum 

opinion, and referenced this language in its conclusions by stating that there was “no 

reasonable probability” and “no reasonable possibility” that DNA testing on the black tshirt would have produced exculpatory or mitigating evidence for Mr. Wallace. 

 The threshold that a petitioner must satisfy in order to show that the State had a duty 

to preserve certain evidence under the Postconviction DNA Testing Statute is lower than 

the threshold that a petitioner must satisfy in order to be entitled to DNA testing on that 

evidence.8

 In other words, evidence that satisfies the “reasonable probability” standard of 

subsection (d), and is therefore subject to DNA testing, is a subcategory of evidence that 

satisfies the definition of “scientific identification evidence” in subsection (a), and is 

 

8

 The Postconviction DNA Testing Statute contains yet another legal threshold that a 

petitioner must satisfy in order to be entitled to a new trial. If the petitioner moves for a 

new trial “on the grounds that the conviction was based on unreliable scientific evidence,” 

then the court must determine whether “a substantial possibility exists that the petitioner 

would not have been convicted without the evidence.” CP § 8-201(c) (emphasis added). 

Similarly, “[i]f the results of the postconviction DNA testing are favorable to the 

petitioner,” then the court must find “that a substantial possibility exists that the petitioner 

would not have been convicted if the DNA testing results had been known or introduced 

at trial,” before ordering a new trial. CP § 8-201(i)(2)(iii) (emphasis added). 

Because this “substantial possibility” standard relates to whether the outcome of the 

petitioner’s trial would have been different, it is a higher threshold than the “reasonable 

probability” standard, which relates only to whether the DNA testing has the potential to 

produce exculpatory or mitigating evidence, not what the effect of that evidence would 

have been at trial. See Fuster, 437 Md. at 671 (affirming circuit court’s use of “substantial 

possibility” standard on petitioner’s motion for new trial and use of “reasonable 

probability” standard on petitioner’s request for DNA testing); Gregg, 409 Md. at 720 (In 

petition for DNA testing, petitioner “was not required to show that the outcome of his case 

necessarily would have been different, had the jury been presented with the evidence he 

seeks to obtain through the requested DNA testing.”).
17

therefore subject to the State’s duty of preservation. “Scientific identification evidence” 

includes all evidence that “contains biological evidence from which DNA may be

recovered that may produce exculpatory or mitigating evidence relevant to a claim of a 

convicted person of wrongful conviction or sentencing if subject to DNA testing.” CP § 

8-201(a)(5)(iii) (emphases added). In contrast, for the petitioner to be entitled to DNA 

testing of the evidence, there must exist a “reasonable probability . . . 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). 

While this Court has not yet defined the term “reasonable probability” in the context 

of the Postconviction DNA Testing Statute, we thoroughly discussed the term and its 

implications in the distinct context of demonstrating when a certain property “is a 

reasonable probable source of lead exposure.” Rowhouses, Inc. v. Smith, 446 Md. 611, 654 

(2016). In that context, we held that, “for purposes of causation in lead-based paint cases 

at the summary judgment phase, a reasonable probability requires a showing that is less 

than ‘more likely than not,’ but more than a mere ‘possibility.’” Id. at 655 (footnote 

omitted). After examining various definitions for the term “reasonable probability,” we 

concluded “that a ‘reasonable probability’ is a fair likelihood that something is true.” Id.

at 657. We then examined various definitions for the term “possibility,” and concluded 

that this means “a mere chance that something might be true, as opposed to a fair likelihood 

that something is true.” Id. at 658. Therefore, “[e]stablishing a possibility requires a lower 

quantum of proof or evidence (the showing of a chance, not necessarily a fair likelihood) 
18

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

higher standard than a ‘possibility.’” Id. at 658–59. 

Thus, the relationship between the terms “possibility” and “reasonable probability” 

mirrors the relationship between the two standards for establishing what constitutes 

“scientific identification evidence” and what entitles a petitioner to DNA testing, 

respectively. Specifically, establishing that certain evidence meets the statutory definition 

of “scientific identification evidence” “requires a lower quantum of proof” than 

establishing that the petitioner is entitled to DNA testing on that evidence. Therefore, we 

deem it appropriate to employ the same definitions of these terms in the context of the 

Postconviction DNA Testing Statute. 

Accordingly, we hold that the “may produce” language of CP § 8-201(a)(5)(iii) is 

equivalent to a “mere possibility” or “chance.” In other words, “scientific identification 

evidence” is evidence that “contains biological evidence from which DNA [could possibly 

be] recovered that [could possibly produce] exculpatory or mitigating evidence relevant 

to a claim of a convicted person of wrongful conviction or sentencing if subject to DNA 

testing.” If there is any chance that the requested evidence could produce exculpatory or 

mitigating evidence (and it satisfies the other statutory requirements), then it is scientific 

identification evidence, which the State has a duty to preserve. Contrary to the language 

used by the circuit court, this “chance” or “mere possibility” need not rise to the level of a 

“reasonable probability” in order to establish that the State had a duty to preserve the 

evidence at issue.
19

Applying the correct legal standard to the circuit court’s factual findings, we hold 

that the black t-shirt did not constitute “scientific identification evidence,” as defined by 

the Statute. While recognizing that the “may produce” standard is a lower threshold than 

the “reasonable probability” standard employed by the circuit court, we nonetheless 

conclude that there was no possibility, or chance, that DNA testing on the black t-shirt 

could have produced exculpatory or mitigating evidence. This is because, as the circuit 

court found, it was never alleged that Mr. Wallace was wearing the black t-shirt when the 

murder occurred. Instead, multiple eyewitnesses stated that they saw Mr. Wallace on the 

morning of the murder either wearing a white t-shirt or shirtless with a bloody white shirt 

wrapped around his hand. At the hearing on his petition, Mr. Wallace acknowledged that 

he did not obtain the black t-shirt until after the murder “allegedly” occurred. 

Mr. Wallace argued that DNA testing the hair fibers on the black t-shirt could have 

shown those hairs to match the ones found in Mr. Fetterhoff’s abandoned car. While we 

acknowledge that this result is a statistical possibility, however unlikely, we do not see how 

such evidence, if it existed, could possibly qualify as “exculpatory or mitigating evidence 

relevant to [Mr. Wallace’s] claim of wrongful conviction or sentencing.” CP § 8-

201(a)(5)(iii). At best, this result could indicate that there was another individual with hair 

“of Negroid origin” in Mr. Fetterhoff’s car at some unknown time, and that that individual 

also came into contact with Mr. Wallace’s black t-shirt at some other unknown time. 

Again, we are unable to see how this result could possibly qualify as “exculpatory or 

mitigating evidence” for Mr. Wallace. 
20

Therefore, we conclude that the black t-shirt and accompanying hair fibers did not 

satisfy condition (iii) in the statutory definition of “scientific identification evidence.” See 

CP § 8-201(a)(5). Because the t-shirt did not constitute “scientific identification evidence” 

as defined by the Statute, the State did not have a duty to preserve it, and Mr. Wallace was 

not entitled to a hearing to determine whether the State’s failure to produce the t-shirt “was 

the result of intentional and willful destruction.” See CP § 8-201(j)(3)(i). Accordingly, we 

affirm the circuit court’s denial of Mr. Wallace’s Petition for a Postconviction DNA 

Hearing.

B. The Circuit Court’s Denial of Appointed Counsel for Mr. Wallace

Next, Mr. Wallace argues that the circuit court abused its discretion in declining to 

appoint counsel to represent him at the postconviction hearing. Mr. Wallace recognizes 

that under Fuster, there is no right to appointed counsel for purposes of a petition under 

CP § 8-201. See Fuster, 437 Md. at 669. However, Mr. Wallace asserts that Fuster was 

wrongly decided and should be overruled. The State responds that Mr. Wallace waived 

this argument, and it is nonetheless without merit. Additionally, the State asserts that the 

circuit court did not abuse its discretion in denying Mr. Wallace’s “post-hoc request for 

appointment of counsel,” because it was reasonable for the court to deny the request in this 

case.

At the time when Mr. Wallace filed his petition and when the circuit court declined 

to appoint him counsel (in response to both the State’s request and Mr. Wallace’s belated 

request), Maryland Rule 4-707(b) provided, 
21

If the court finds that a petitioner who has requested the appointment of 

counsel is indigent, the court shall appoint counsel within 30 days after the 

State has filed its answer unless (1) the court denies the petition as a matter 

of law or (2) counsel has already filed an appearance to represent the 

petitioner. 

Md. Rule 4-707(b) (2009) (amended 2015) (emphasis added).9 Despite the use of 

mandatory language (“shall”) in the Rule, this Court held in Fuster that there is never “any 

circumstance under which a trial court must, or shall, appoint counsel for an indigent 

petitioner for purposes of a petition under CP § 8-201.” 437 Md. at 669. Instead, we 

reiterated “that the appointment of counsel for purposes of a petition under CP § 8-201 is 

discretionary,” and “a trial court may appoint counsel to represent a petitioner when the 

[trial] court believes [that] counsel would be necessary to further the interest of justice.” 

Id. at 667, 668 (alterations in original) (internal quotation marks omitted) (citing Simms v. 

State, 409 Md. 722, 726 n.5 (2009) (“Simms I”); Arey v. State, 400 Md. 491, 509 (2007)). 

Accordingly, we held that we review the circuit “court’s decision as to whether to appoint 

counsel for an indigent petitioner for purposes of a petition under CP § 8-201” for abuse 

of discretion. Id. at 669. 

Furthermore, we determined in Fuster that appointment of counsel pursuant to the 

Rule was premised upon the petitioner’s request for appointed counsel in the petition. Id. 

at 670. Therefore, we held, “A trial court does not abuse its discretion in not choosing 

whether to exercise the discretion to appoint counsel for a petitioner for purposes of a 

 

9

 Maryland Rule 4-701 provides that the “Rules in this Chapter apply to proceedings filed 

under Code, Criminal Procedure Article, § 8-201.” 
22

petition under CP § 8-201 where the petitioner does not request appointment of counsel in 

the petition.” Id.

Following our decision in Fuster, the Standing Committee on Rules of Practice and 

Procedure amended Rule 4-707(b) to reflect our holding that the appointment of counsel 

for purposes of a petition under CP § 8-201 is discretionary rather than mandatory, and this 

Court adopted the amended Rule on December 7, 2015. Simms v. State, 445 Md. 163, 183 

n.16 (2015) (“Simms II”). Effective January 1, 2016, the Rule now provides, 

If the court finds that a petitioner who has requested the appointment of 

counsel is indigent, the court may appoint counsel within 30 days after the 

State has filed its answer unless (1) the court denies the petition as a matter 

of law or (2) counsel has already filed an appearance to represent the 

petitioner. 

Md. Rule 4-707(b) (2016) (emphasis added). Thus, both the Rule and our precedents make 

it abundantly clear that an indigent petitioner under CP § 8-201 has no right to appointed 

counsel. Instead, the decision whether to appoint counsel for purposes of a petition under 

CP § 8-201 lies within the sound discretion of the circuit court, which must consider 

whether the appointment of counsel is necessary to further the interest of justice. Fuster, 

437 Md. at 668. 

 Mr. Wallace does not dispute that this is the law. Instead, Mr. Wallace asserts that 

the holding of Fuster is contrary to “the concept of fundamental fairness” because it will 

often require “a generally uneducated person living in a penal institution” to “argue against 

an educated and skilled prosecutor” on the complex and highly technical subject of DNA 

in order to achieve his freedom. Therefore, Mr. Wallace urges this Court to overrule our 
23

holding in Fuster, and hold that indigent petitioners under CP § 8-201 are entitled to 

appointed counsel.

 The State responds that Mr. Wallace waived this argument by failing to request 

appointed counsel in his petition, and by telling the circuit court at the hearing that he was 

prepared to proceed pro se. Furthermore, the State asserts that if the Court does consider 

Mr. Wallace’s claim of error, there is no basis to overrule Fuster. The State contends that 

a defendant is only entitled to postconviction DNA review by virtue of the Statute, and 

therefore any entitlement to be represented by counsel at a postconviction DNA hearing 

must also be statutory. Thus, the State concludes, unless the legislature amends CP § 8-

201 to provide a statutory right to counsel, there is no such right for postconviction DNA 

hearings. 

We disagree with the State’s contention that Mr. Wallace waived his argument 

regarding the correctness of our holding in Fuster. It is true that Mr. Wallace did not 

request appointed counsel in his original petition or in his amended petition. Under Fuster, 

Mr. Wallace’s failure to request counsel means that the circuit court was not required to 

exercise its discretion to determine whether the appointment of counsel was necessary to 

further the interest of justice. 437 Md. at 670. But this holding is precisely what Mr. 

Wallace now challenges—whether the circuit court was required, by “the concept of 

fundamental fairness,” to appoint him counsel despite his failure to request it. To hold that 

Mr. Wallace waived this argument by failing to make the request would effectively affirm 

our holding in Fuster—that the request is required to trigger the circuit court’s exercise of 

discretion—without substantively examining the correctness of that holding. Moreover, 
24

we note that the petitioner in Fuster also did not request appointed counsel in his petition, 

yet we did not deem this to be a waiver of his argument regarding the right to counsel. 

Additionally, we disagree with the State’s contention that Mr. Wallace waived this 

argument by informing the circuit court at the hearing on May 4, 2016 that he was prepared 

to proceed pro se. Mr. Wallace informed the court at the start of this hearing that he had 

been attempting to secure counsel to represent him, but his efforts had been unsuccessful. 

It is in this context that Mr. Wallace told the court that he was ready to proceed on his own. 

This exchange makes clear that Mr. Wallace was still hoping to be represented by counsel 

at the time of the hearing, and only agreed to represent himself when that became his only 

option. Under these circumstances, and considering that Mr. Wallace did file a belated 

request for appointed counsel after the circuit court ruled that he was not entitled to such 

counsel, we hold that Mr. Wallace has not waived his argument regarding the right to be 

represented by counsel for purposes of a petition under CP § 8-201. 

 We turn now to Mr. Wallace’s argument that we should overrule our holding in 

Fuster. “Under stare decisis, absent ‘extremely narrow’ exceptions, an appellate court 

does not overrule its precedent.” Thompson v. UBS Fin. Servs., Inc., 443 Md. 47, 57 (2015) 

(citing DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 63 (2010)). “Stare decisis ‘promotes 

the evenhanded, predictable, and consistent development of legal principles, fosters 

reliance on judicial decisions, and contributes to the actual and perceived integrity of the 

judicial process.’” Id. at 58 (quoting DRD Pool Serv., Inc., 416 Md. at 63). Still, this Court 

has recognized two “extremely narrow” circumstances under which it would be appropriate 

to overrule our own precedent. DRD Pool Serv., Inc., 416 Md. at 63–64. First, the “Court 
25

may strike down a decision that is, ‘clearly wrong and contrary to established principles.’” 

Id. at 64 (quoting State v. Adams, 406 Md. 240, 259 (2008)). “Second, precedent may be 

overruled when there is a showing that the precedent has been superseded by significant 

changes in the law or facts.” Id.; see also Thompson, 443 Md. at 58 (“An appellate court 

need not adhere to stare decisis where ‘changed conditions or increased knowledge’ have 

rendered the appellate court’s precedent ‘unsound in the circumstances of modern life, a 

vestige of the past, [and] no longer suitable to [the] people.’” (alterations in original) 

(quoting DRD Pool Serv., Inc., 416 Md. at 64)). 

 While Mr. Wallace does not specify which of these exceptions he claims to be 

applicable to Fuster, we infer from his argument regarding “fundamental fairness” that Mr. 

Wallace believes Fuster to be “clearly wrong and contrary to established principles.” 

Regardless of his position, we hold that the second exception to stare decisis—“that the 

precedent has been superseded by significant changes in the law or facts”—is inapplicable 

here. Certainly, it cannot be said that Fuster, which we decided just three years ago, has 

become “unsound in the circumstances of modern life, a vestige of the past, [or] no longer 

suitable to [the] people.” DRD Pool Serv., Inc., 416 Md. at 64. Additionally, Mr. Wallace 

does not point us to any “significant changes in the law or facts” that may have 

“superseded” our holding in Fuster, see id., nor are we aware of any such significant 

changes. To the contrary, we note that this Court has since reaffirmed our holding in 

Fuster. See Simms II, 445 Md. at 183 (“Although [Rule 4-707(b)] uses the phrase ‘shall 

appoint,’ this Court has held that a circuit court’s decision whether to appoint counsel is 

discretionary.” (citing Fuster, 437 Md. at 664–69)). Thus, having eliminated the second 
26

exception to stare decisis, we must determine whether Fuster is “clearly wrong and 

contrary to established principles,” such that it would be appropriate for us to overrule our 

own precedent. See DRD Pool Serv., Inc., 416 Md. at 64. 

 We first examined whether indigent petitioners have a right to appointed counsel 

under CP § 8-201 in Blake v. State. There, we noted that “[t]here is no federal constitutional 

right to counsel in a postconviction collateral attack on a criminal conviction,” nor is there 

such a right under the Maryland Constitution. Blake, 395 Md. at 234–35. Therefore, we 

determined that “[a]ny right to counsel . . . under the DNA testing statute must be found in 

[CP] § 8-201.” Id. at 235. We then examined the Public Defender Act and the Uniform 

Post Conviction Procedure Act, and held that neither one created “a statutory right to 

appointed counsel for proceedings under [CP] § 8-201.” Id. at 237. We noted that the 

Public Defender Act includes a provision requiring the appointment of counsel “in 

postconviction proceedings ‘when the defendant has a right to counsel pursuant to Title 7 

of the Criminal Procedure.’” Id. “The right to file a petition for postconviction DNA 

testing, however, is granted by § 8-201(b), located in Title 8 of the Criminal Procedure 

Article, not Title 7.” Id. Therefore, we concluded that there was neither a constitutional 

nor a statutory right to appointed counsel under CP § 8-201. Id.

We returned to this issue in Arey v. State, where we held that “[t]here is no right to 

appointed counsel under [CP] § 8-201, either statutory or constitutional, to assist a person 

in filing a petition under the [S]tatute or during the initial stages of the proceedings.” 400 

Md. at 507 (citing Blake, 395 Md. at 234–38). We further explained “that under [CP] § 8-

201, a petitioner has no absolute statutory right to assistance from counsel unless and until 
27

the petitioner receives favorable DNA testing results, and has not opened a postconviction 

hearing previously.” Id. at 508. However, we also noted “that although there is no 

constitutional or statutory right to counsel at the time a petitioner files the petition for DNA 

testing, a court has the inherent power to appoint counsel at any stage of proceedings under 

[CP] § 8-201” when the appointment is necessary to further the interest of justice. Id. at 

508–09. 

Later, in Simms I, we reiterated our holding from Arey: 

“There is no right to appointed counsel under [CP] § 8–201, either 

statutory or constitutional, to assist a person in filing a petition under the 

statute or during the initial stages of the proceedings.” Arey v. State, 400 Md. 

491, 507 (2007) (citing [CP] § 8–201(h)(2)). A court nevertheless “has the 

inherent power to appoint counsel at any stage of proceedings under [CP] § 

8–201.” Id. at 508. Consequently, the court may “appoint counsel to 

represent a petitioner when the court believes counsel would be necessary to 

further the interest of justice.” Id. at 509.

Simms I, 409 Md. at 726 n.5. 

 Approximately one and a half months after issuing our decision in Simms I, this 

Court adopted Rule 4-707(b) on September 10, 2009. A committee note to Rule 4-704(a), 

adopted concurrently with Rule 4-707(b), indicated that the Court’s purpose in adopting 

the Rule was to implement our holdings in Arey and Simms I: 

A petition filed by an unrepresented petitioner may be lacking in some of the 

details required by subsections (a)(2) and (a)(3) of this Rule. To justify an 

order requiring DNA testing or a search of law enforcement databases or 

logs, however, those details must be provided at some point. That may be 

achieved by the appointment of counsel under Rule 4-707 and an 

appropriate amendment to the petition.

(Emphasis added.) Based on the timing of the Rule, the committee note that accompanies 

it, and our holdings in Arey and Simms I, we held in Fuster that “Rule 4-707(b) does not 
28

entitle an indigent petitioner to counsel for purposes of a petition under CP § 8-201; instead 

a trial ‘court may “appoint counsel to represent a petitioner when the [trial] court believes 

[that] counsel would be necessary to further the interest of justice.”’” 437 Md. at 668 

(alterations in original) (quoting Simms I, 409 Md. at 726 n.5 (quoting Arey, 400 Md. at 

509)). 

 Thus, it is apparent that our decision in Fuster was premised upon our earlier 

holdings in Arey and Simms I, which in turn drew upon Blake, where we first examined 

whether there is a right to counsel for purposes of a petition under CP § 8-201. Based upon 

our independent review of these earlier cases, and of our analysis of those cases and Rule 

4-707(b) in Fuster, we conclude that Fuster is not “clearly wrong.” 

 Nor do we believe that our holding in Fuster is “contrary to established principles.” 

While we acknowledge the potential difficulties for indigent petitioners representing 

themselves for purposes of a petition under CP § 8-201, we reiterate that the right to 

postconviction DNA review is purely statutory, and therefore any right to appointed 

counsel in those proceedings must also be statutory. See Blake, 395 Md. at 235 (“Any right 

to counsel appellant may have under the DNA testing statute must be found in [CP] § 8-

201.”). Moreover, we note that Mr. Wallace’s argument—that being required to represent 

himself against a skilled and trained prosecutor on the complex and highly technical subject 

of DNA is contrary to “the concept of fundamental fairness”—is the same argument we 

considered and rejected in Blake. See id. (“[Mr. Blake’s] sole argument is that as an 

indigent, he is entitled to the appointment of counsel because of the scientific complexity 

of DNA evidence analysis and that the legal procedures authorized by [CP] § 8-201 are too 
29

difficult for a layman to navigate successfully.”). Additionally, the circuit court retains the 

discretion to appoint counsel for indigent petitioners when it believes the appointment is 

necessary to further the interest of justice, which serves to alleviate some of these concerns 

on a case-by-case basis. “However appealing [these] arguments are from a policy 

perspective, they are unavailing with respect to the issue of statutory construction before 

us.” Id. at 237. As such, Mr. Wallace’s “remedy is with the Legislature, not with this 

Court.” Id. at 238.

 We therefore conclude that neither of the two “extremely narrow” exceptions to 

stare decisis applies to our holding in Fuster. Accordingly, we decline Mr. Wallace’s 

invitation to overrule our own precedent. Instead, we hold that Fuster was correctly 

decided and remains binding on this Court. 

 Finally, we consider Mr. Wallace’s argument that the circuit court abused its 

discretion in declining to appoint counsel to represent him at the hearing on his petition. 

Beyond arguing that Fuster was wrongly decided and that every indigent petitioner is 

entitled to appointed counsel at a hearing under CP § 8-201, Mr. Wallace does not explain 

how the circuit court’s denial of his request constituted an abuse of discretion in this 

particular case. The State asserts that the circuit court’s decision was not an abuse of 

discretion because, “given the nature of [Mr.] Wallace’s claim, there is no possibility that 

the appointment of counsel would have altered the outcome of the case, let alone that it 

was in the ‘interests of justice’” to do so.

Whether to appoint counsel for purposes of a petition under CP § 8-201 lies within 

the sound discretion of the circuit court, which must consider whether the appointment of 
30

counsel is “necessary to further the interest of justice.” Fuster, 437 Md. at 668 (quoting 

Simms I, 409 Md. at 726 n.5). Accordingly, we will not reverse the decision of the circuit 

court unless it abused its discretion. Id. at 669. 

An abuse of discretion occurs where no reasonable person would take 

the view adopted by the trial court, or when the court acts without reference 

to any guiding principles or rules, or when the ruling under consideration is 

clearly against the logic and effect of facts and inferences before the court or 

when the ruling is violative of fact and logic. Generally, the standard is that 

absent a showing that a court acted in a harsh, unjust, capricious and arbitrary 

way, this Court will not find an abuse of discretion. 

Md. Bd. of Physicians v. Geier, --- Md. ---, --- (2017) (brackets, internal quotation marks, 

and citations omitted).

 Here, Mr. Wallace did not request appointed counsel in either his petition or his 

amended petition, but the State indicated at the initial hearing on December 4, 2014 that 

the court would be required to appoint counsel for Mr. Wallace for further proceedings. 

Despite Mr. Wallace’s failure to formally request counsel at the appropriate time, the 

circuit court nonetheless considered the State’s suggestion, and correctly determined that 

the decision whether to appoint counsel for Mr. Wallace was within the court’s discretion. 

The circuit court then concluded, based on the fact that Mr. Wallace had previously 

litigated a postconviction proceeding—represented by counsel—and the court’s perception 

of Mr. Wallace’s potential for success on his petition, that appointment of counsel was not 

necessary to further the interest of justice. When Mr. Wallace subsequently submitted a 

formal request for appointed counsel, the circuit court summarily denied it. 

 The court did not act “without reference to any guiding principles or rules”; instead, 

it appropriately considered whether appointed counsel was necessary to further the interest 
31

of justice. The circuit court’s conclusion is not unreasonable, nor “clearly against the logic 

and effect of facts and inferences before the court,” nor “violative of fact and logic.” 

Furthermore, the circuit court did not act “in a harsh, unjust, capricious, or arbitrary way.” 

Instead, the court carefully considered the State’s suggestion for appointed counsel, even 

though not required to do so by virtue of Mr. Wallace’s failure to request it in his petition. 

Therefore, we hold that the circuit court did not abuse its discretion in declining to appoint 

counsel to represent Mr. Wallace for purposes of a petition under CP § 8-201. 

CONCLUSION 

The circuit court did not err in denying Mr. Wallace’s Petition for a Postconviction 

DNA Hearing to determine whether the State’s failure to produce the black t-shirt “was the 

result of intentional and willful destruction” under CP § 8-201(j)(3)(i). The black t-shirt 

did not satisfy the statutory definition of “scientific identification evidence,” and therefore 

the State did not have a duty to preserve it. Therefore, Mr. Wallace was not entitled to a 

hearing under CP § 8-201(j)(3)(i). Additionally, we decline Mr. Wallace’s request to 

overrule our holding in Fuster, and reaffirm that the appointment of counsel for purposes 

of a petition under CP § 8-201 is discretionary, not mandatory. In this case, the circuit 

court did not abuse its discretion in declining to appoint counsel for Mr. Wallace. 

Therefore, we affirm the judgment of the circuit court. 

JUDGMENT OF THE CIRCUIT 

COURT FOR WASHINGTON 

COUNTY AFFIRMED. COSTS 

TO BE PAID BY APPELLANT.