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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 331 September Term, 2004 _______________________________

WAYNE DAVID WHEELER

V.

STATE OF MARYLAND

_______________________________ Salmon, Kenney, Eyler, Deborah S., JJ. _______________________________ Opinion by Salmon, J. Filed: October 28, 2005

Wayne David Wheeler was convicted by a jury sitting in the Circuit Court for Prince George's County of first-degree murder, second-degree murder, and use of a handgun in commission of a crime of violence. He was sentenced to life imprisonment for the first-

degree murder conviction and a consecutive twenty-year term for the handgun offense. The second-degree murder conviction was merged Wheeler noted a timely appeal and

for purposes of sentencing. presents two questions: I.

Did the circuit court err in denying his motion to dismiss, which was based on an [alleged] violation of the Hicks rule? Was the evidence sufficient to sustain appellant's convictions?

II.

We answer appellant's first question in the affirmative and reverse the judgment of the circuit court. reach Question II. Therefore, we need not

I.

BACKGROUND

During the early morning hours of August 2, 2002, an off-duty Prince George's County police officer patrolling in the area of the Forest Creek apartments in Prince George's County heard gunshots, then observed a minivan traveling away from the Forest Creek apartment complex at a high rate of speed. van, which then crashed. The officer pursued the They

Three men ran from the minivan.

were chased on foot by the police, but they evaded immediate capture. stolen. Police investigation proved that the minivan had been

Approximately four hours later, the Prince George's County Police Department received a report of a strange man leaving a backyard in a residential neighborhood not far from the scene of the shooting. Police officers responded to the area and saw and A police officer who had

stopped appellant, who had a swollen lip.

taken part in the earlier foot pursuit identified appellant as one of the men who had run from the minivan. Meanwhile, one victim died as a result of the shooting at the Forest Creek Apartments complex; a second victim was shot in the leg and survived; a third person was fired upon but escaped injury. Testing of a shotgun found in the minivan that crashed proved to be the murder weapon. A 9 mm handgun was recovered by the police a That

short distance from the location where the minivan crashed.

handgun was also proven to have been used in the shootings at the Forest Creek apartment complex. The State's theory of the case was that appellant was the getaway driver of the minivan that crashed but was not one of the shooters. On September 5, 2002, the State filed an indictment against appellant. Defense counsel entered his appearance for appellant on September commencing Procedure 23, 2002. set of Consequently, forth the in the 180-day of period the and for

trial Article

Section

6-103

Criminal Maryland

Annotated

Code

(2001)

Rule 4-271 expired on March 22, 2003. On December 30, 2002, the State filed its discovery without request and advised defense counsel that it intended to present 2

deoxyribonucleic acid ("DNA") evidence against appellant at trial. The State hoped to prove that appellant drove the minivan by analyzing DNA from the vehicle, as well as various items recovered in the vehicle, including: the driver's side air bag, the

passenger's side air bag, a spot of blood on the steering column, a neoprene mask, a cigarette, a bandana, and a T-shirt. On January

17, 2003, more than five months after the shootings, the State filed a motion in which it sought to obtain a DNA sample from appellant for comparison. circuit court. A DNA sample was taken from appellant in early February 2003. The DNA analysis of some, but not all, of the items in the minivan was first attempted by the Prince George's County Crime Laboratory on February 14, 2003. cigarette, the The items not initially and the T-shirt. tested were the profiles were The motion was promptly granted by the

bandana,

DNA

obtained from the passenger side air bag, the blood on the steering column, and the neoprene mask, but none of the DNA found on those items matched appellant's. On February 27, 2003, the prosecutor contacted defense counsel and informed him that she had received the results of the DNA analysis, but due to the fact that none of the DNA profiles matched appellant's, she intended to request a continuance on February 28. Due to inclement weather, the courthouse was closed on Friday, February 28, 2003. On Monday, March 3, 2003, the date set for

trial, appellant appeared before the Honorable Ronald D. Schiff, who was assigned to try the case. 3 The prosecutor requested a

continuance for several reasons, one of which was to allow time for the remaining items recovered from the minivan to be subjected to a DNA test. After the prosecutor recounted her efforts to reach a plea agreement, the trial judge inquired: "The only reason you postponed the DNA testing was the hopes you would get a plea out of the case?" The prosecutor responded: No. We thought we were going to get a plea. When no plea was forthcoming, then I said we'll have to do DNA testing. [Defense counsel] said that's fine. He led me to believe that if it came back positive would be the impetus for him to force his client to make a plea. The prosecutor also told Judge Schiff that, at her direction, the laboratory did not test all the items recovered from the minivan. The prosecutor explained: We have limited resources, and we attempt to make judgments on what we think will be [the] more valuable items to be tested. So clearly the driver's side air bag, the passenger side air bag, and the blood on the steering column were the most likely sources in which we would be able to contain [sic] DNA. The prosecutor then offered this assessment of the State's case in light of the negative DNA analysis: Now I find myself in the position that the report is not back yet. [The lab] gave me the test results. These will be the results, but there's no report yet. . . . I have now DNA from three different people, none of which [sic] are the defendant. There are a number of things I need to do at this point. It significantly hurts my case that I've got police officers who say they saw three different people get out of the minivan. . . . 4

* * * Because the State wants

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