Opinion
2 CA-CR 2023-0137-PR
08-10-2023
The State of Arizona, Respondent, v. Edward John Sanders, Petitioner.
Edward John Sanders, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20002900 The Honorable Howard Fell, Judge Pro Tempore
Edward John Sanders, Florence In Propria Persona
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge:
¶1 Petitioner Edward Sanders seeks review of the trial court's order denying his request for DNA testing, made pursuant to Rule 32.17, Ariz. R. Crim. P. We review a trial court's denial of post-conviction relief, including for DNA testing, for an abuse of discretion. See State v. Gutierrez, 229 Ariz. 573, ¶ 19 (2012); State v. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021). Sanders has not sustained his burden of establishing such abuse here.
¶2 Following a jury trial, Sanders was convicted of first-degree murder, sexual assault, second-degree burglary, kidnapping, and sexual abuse, based in part on DNA testing results connecting saliva found on the victim's body to him. The trial court sentenced him to consecutive prison terms of natural life and life imprisonment and to concurrent terms of 3.5 years, 5 years, and 1.5 years, respectively. We affirmed his convictions and sentences on appeal. State v. Sanders, No. 2 CA-CR 2005-0284 (Ariz. App. Dec. 26, 2006) (mem. decision).
¶3 Sanders thereafter sought and was denied post-conviction relief, and this court denied relief on review. State v. Sanders, No. 2 CA-CR 2011-0069-PR (Ariz. App. June 28, 2011) (mem. decision). In that proceeding, before filing his petition, Sanders requested funds for a DNA expert and to be allowed to test certain evidence, including fingernail scrapings, hairs found at the scene, and bodily fluid. The trial court rejected the request, and, although Sanders asserted on review that the DNA should be retested because "it did not [match]," he did not otherwise argue he was entitled to DNA testing pursuant to Rule 32.17 or A.R.S. § 13-4240.
¶4 In February 2022, Sanders filed a successive notice, followed by a form petition, requesting post-conviction relief on various grounds, including that DNA evidence had not been stored and tested correctly. He stated in the notice that his untimely filing was not his fault because it "was filed from court counsel." The trial court dismissed the petition as untimely and further explained that even were the proceeding not untimely, "the issues raised . . . would be precluded" as they had "either already been raised or could have been raised in previous proceedings."
¶5 In November 2022, Sanders filed a petition for forensic DNA testing pursuant to Rule 32.17(a), requesting DNA testing of a "saliva sample" and "unknown hair samples." He argued that current DNA testing is "more precise and reliable than the testing procedure" in place at the time of his trial and could establish whether the DNA in the evidentiary samples was his or "someone else's to a degree of almost absolute certainty." He pointed to testimony at a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), showing that one test done on the saliva evidence, Y-STR, could only narrow the match to Sanders or "anyone that's in the direct male line of descent." And he pointed out that a hair sample found in the victim's hand was not his. The hairs found at the scene were examined microscopically and tested for DNA.
¶6 The trial court initially denied the motion, but granted Sanders's subsequent motion for reconsideration, concluding it had denied the motion prematurely and allowing the state time to file a response. After receiving the state's response, the trial court denied the motion, concluding Sanders had "failed to meet the legal requirements necessary" to order DNA testing. It determined Sanders had not shown that additional testing of the saliva evidence would resolve any issue not previously resolved, because "the then-existing DNA database was sufficiently robust to match" the sample to Sanders and "there is no issue of whether the saliva sample is that of a close male relative." It also concluded it could not order testing of the hair sample because it "ha[d] no known tie to this case beyond being in the home of the victim." Therefore, it would at best show someone else had once been in the victim's home, which was unlikely to have changed the decision to charge Sanders or the outcome of the proceedings.
¶7 On review, Sanders argues the trial court abused its discretion in concluding he had not met the legal requirements for DNA testing. Pursuant to Rule 32.17(a), a defendant convicted of a felony offense may request DNA testing of evidence that is "(1) in the possession or control of the court or the State; (2) related to the investigation or prosecution that resulted in the judgment of conviction; and (3) that may contain biological evidence." The court must order testing if it finds a reasonable probability the defendant would not have been prosecuted or would have received a more favorable verdict or sentence if DNA testing produced exculpatory evidence; the evidence to be tested still exists; and either has not been tested or the defendant requests a type of testing that has not previously been done and such "testing may resolve an issue not resolved by previous testing." Ariz. R. Crim. P. 32.17(d)(1); see also § 13-4240.
¶8 Sanders's request for DNA testing is arguably barred by claim preclusion. See State v. Little, 87 Ariz. 295, 304 (1960) (doctrine of claim preclusion generally applies in criminal cases). But, because the trial court ultimately addressed them and because Sanders's arguments are now clearly presented as a request for DNA testing, we likewise address them. See In re Marriage of Gibbs, 227 Ariz. 403, ¶ 8 (App. 2011) (doctrine not applied rigidly).
¶9 Sanders acknowledges that the saliva samples were previously tested, but contends the trial court should have granted the motion because that testing could only "show . . . that [his] DNA profile was among that of many others that could have possibly been the perpetrator" and testing with current "proto[cols] and procedures . . . would answer the unanswered question on who really raped and killed [the victim]." But as the court noted, the DNA testing done for trial showed that DNA in the tested saliva was consistent with Sanders's DNA so that he could "not be excluded" as a contributor to the saliva. Again focusing on the Y-STR testing, Sanders ignores this testimony, which was based on STR testing that was also performed on the saliva samples. In testifying about this testing, the state's expert explained that she could not make a positive identification because the sample tested had been a mixed sample. Although Sanders criticizes the use of "a mixed sample," he does not explain how new testing would avoid this problem.
¶10 Sanders also argues that hair evidence, specifically including hairs found on the victim's body, "could have very well exonerated" him. At trial, the state presented expert testimony that the hairs had been examined microscopically. DNA testing was done on some of the hairs, while there were insufficient markers found in others to make a determination. None of the hairs matched Sanders, and some matched the victim. Based on this evidence, Sanders argued in opening statements that the hair in the victim's hand did not match his, which "said it wasn't him."
¶11 In sum, some of the evidence Sanders seeks to retest was already exculpatory to him. He indeed relied on the presence of hairs that did not belong to him or the victim in his defense. Although identification of another person as the contributor of the unidentified hair or DNA may have further assisted his defense, we cannot say the trial court abused its discretion in determining such an identification would not have created a "reasonable probability" that Sanders "would not have been prosecuted" or would have received a different verdict or sentence. Ariz. R. Crim. P. 32.17.
¶12 We grant the petition for review, but deny relief.