Opinion
No. 108,369.
2013-08-30
Jack L. GOLDSMITH, Appellant, v. STATE of Kansas, Appellee.
Appeal from Cowley District Court; John E. Sanders, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Christopher Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cowley District Court; John E. Sanders, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Christopher Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The district court ruled that testing on 34 items of evidence from Jack L. Goldsmith's 1998 trial did not need to be done as the testing on the sweatpants was unfavorable and revealed Goldsmith's DNA coupled with the victim's. Goldsmith appeals the district court's ruling, asserting the hearing failed to address the Supreme Court's mandate. We find the district court fully and completely complied with the Supreme Court's mandate on remand and we affirm.
Facts
Procedural History
In 1998, Goldsmith was convicted of aggravated kidnapping, aggravated burglary, rape, and aggravated criminal sodomy. Goldsmith was sentenced to 1,116 months' imprisonment. This is Goldsmith's fifth appeal related to his 1998 conviction.
In 2004, Goldsmith filed a request for DNA testing pursuant to K.S.A.2004 Supp. 21–2512. The district court treated the motion as a K.S.A. 60–1507 petition, found it was not timely filed, and summarily dismissed it. The Court of Appeals found there was a “vast amount of physical evidence” seized by the police which had not been subjected to DNA testing. Goldsmith v. State, 34 Kan.App.2d 789, 794, 124 P.3d 516 (2005). Accordingly, the panel reversed the decision and remanded the case for appointment of counsel and an evidentiary hearing.
On remand, the district court conducted a hearing and by agreement of the parties, ordered 35 items to be DNA tested. The KBI laboratory filed its report indicating only Goldsmith's blue sweatpants had been tested and the DNA profile was consistent with a mixture of Goldsmith and the victim. The KBI declared in a letter it would not provide additional testing on the remaining 34 items, as such testing would “ ‘not be utilizing resources wisely.’ “ The district court ruled without a hearing that the test results from the KBI were unfavorable to Goldsmith, and the lab report complied with the previous order, there was no need to test the other 34 items, and dismissed the case pursuant to K.S.A. 21–2512(f)(1). Goldsmith v. State, No. 99,041, 2009 WL 596532, at *2 (Kan.App.2009) (unpublished opinion), rev. granted September 2, 2009.
Goldsmith appealed the district court's decision, arguing the State breached its agreement by failing to test all the items from the court's order on remand and thereby denied him due process. 2009 WL 596532, at *2. The Court of Appeals agreed, ruling there was no substantial and competent evidence the State complied with the order and the KBI lacked the discretion to unilaterally determine what or when testing should be done. 2009 WL 596532, at *3. Accordingly, the panel remanded the issue to the district court “for such further proceedings as are appropriate under the order of April 18, 2006, and the provisions of K.S.A. 21–2512.” 2009 WL 596532, at *5.
The State filed a petition for review, and the Kansas Supreme Court affirmed the Court of Appeals in Goldsmith v. State, 292 Kan. 398, 255 P.3d 14 (2011). If the State requested modification of the original order for DNA testing of the remaining 34 items, the district court was to conduct an evidentiary hearing with both parties present.
District Court Hearing on State's Motion to Reconsider Previous Order for DNA Testing
Upon receipt of the mandate, the State filed a motion to reconsider the district court's previous order to test for DNA evidence. The State argued the DNA evidence on the sweatpants was clearly unfavorable to Goldsmith and asked the district court to amend its previous order to require no further testing because testing the remaining 34 items would be “pointless.”
The district court conducted the hearing on the motion on two separate days: December 16, 2011, and March 2, 2012. Each will be discussed in turn.
Hearing on December 16, 2011
At the December hearing, the State called no witnesses and asked the district court to take judicial notice of the trial transcripts and the test results on the sweatpants. Counsel for Goldsmith argued the statute required DNA test results to be considered holistically, but stipulated to no longer requesting DNA analysis of 12 items on the list; however, Goldsmith still wanted items from the scene of the crime tested.
Goldsmith testified extensively at the December hearing. He explained the DNA testing was incomplete because they only tested his sweatpants. Goldsmith explained the semen found on the sweatpants was from a nocturnal emission, while the other DNA source occurred because he bought the sweatpants at a second-hand shop. Therefore, Goldsmith claimed the DNA evidence contained additional DNA which prevented determining his guilt beyond a reasonable doubt. Goldsmith also claimed evidence at his jury trial had been inappropriately stipulated into evidence and fingerprints found at the scene did not match his. When asked by his counsel if he had left out anything, Goldsmith responded, “Not off-hand.” On cross-examination, Goldsmith claimed his understanding of DNA analysis stemmed from his training as a medic in the U.S. Navy from 1972 to 1974, but admitted he had no experience in DNA analysis.
The district court directly asked Goldsmith why the KBI analysis of the sweatpants should not be considered unfavorable to his case. Goldsmith responded that the KBI had failed to do a “cross-examination of the penis swabs with the blue sweatpants,” had failed to consider all of the evidence, and had relied upon DNA evidence that was not reliable.
The court granted Goldsmith's request for the KBI analyst to testify and continued the hearing until the KBI analyst who provided the DNA report, Lance Antle, could appear.
Hearing on March 2, 2012
Lance Antle, the KBI analyst, appeared at the March hearing and testified regarding the DNA analysis. Antle stated he chose to do DNA testing on the sweatpants because there was semen on both the sweatpants and the penis swabs. Antle also tested blood from the victim and Goldsmith to provide a “known DNA profile” to compare to the sweatpants and penis swabs. Because this case involved sexual assault, Antle assumed a mixture of DNA from two people, composed of male and female DNA. On both the sweatpants and the penis swabs, the male fraction (F2) produced a “clean profile” of the male, but the female fraction (F1) produced a mixture of two or more people. On the penis swabs, the major component of the mixture was consistent with Goldsmith.
Antle was able to exclude the victim as a contributor to the DNA on the sweatpants F2 fraction, but not Goldsmith. Antle was unable to exclude either the victim or Goldsmith as contributors to the DNA on the sweatpants, F1 fraction. Antle testified the possibility of two random persons in the community generating a DNA profile as obtained from the F2 fraction of the sweatpants at 1 in 9 million in the Caucasian database. Antle testified the report stated the F2 fraction on the sweatpants matched the DNA profile of Goldsmith. Antle admitted he did not do this type of analysis with any other items because he targeted the items with semen on them.
On cross-examination, Antle testified no further analysis was conducted of other items because it would be very unusual to go back and try to make results better. Defense counsel extensively cross-examined about the DNA results. Antle testified that degradation, if any, in the DNA sample would not have affected his confidence in the results.
In closing arguments, defense counsel stressed the data was faulty because the starting point of the analysis, Goldsmith's DNA profile, was already known. To correct this error, Goldsmith's attorney argued the statistical process should be reevaluated and corrected. Without this correction, Goldsmith's attorney argued it would be unclear whether the DNA analysis was favorable or unfavorable.
The court held that even if the odds were not 1 in 9 million, but were half of that, it did not change the fact the victim testified Goldsmith sat on her bed, under a light, for 10 to 20 minutes. The court held the victim was able to get a good look at Goldsmith. Goldsmith himself attempted to interrupt at this point, but the district court stopped him, saying “[N]o. You've got a lawyer. So, you know, we're not going to retry this case.... We're here to determine whether or not to tell the KBI to do any more testing. That's all we're here for.”
Goldsmith's attorney asked the court to clarify whether it was saying the results were unfavorable, and, even if it were not, there was no substantial question of innocence. The court answered in the affirmative. Defense counsel said he wanted to make that clear before he sat down and “shut up.” The district court noted it had not ruled yet, and defense counsel again said he would “sit down and shut up.” The district court said that was all right and thanked everyone. The district court then granted the motion to terminate testing because the results were “profoundly unfavorable” to Goldsmith, and, even if they were not, the “other supporting evidence in the case would show that there would be little question that the defendant is guilty.”
Goldsmith timely appeals.
Analysis
Did the District Court Fail to Follow the Supreme Court's Mandate?
Standard of Review
When a case has been reversed and remanded, the district court's only duty is to conform to the mandate of the appellate court. The district court has no authority to consider other matters not contained in the mandate, and its authority is restricted to the rendition of the judgment as authorized by its terms. Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 231, 898 P.2d 1131 (1995) (citing W.K.H. Trust Co. v. Building Co., 160 Kan. 605, Syl. ¶ 1, 164 P.2d 143 [1945] ). Two separate panels of this court have construed the appellate court's review of a district court's compliance with the mandate to be a matter of law over which an appellate court has unlimited review. See State v. DuMars, 37 Kan.App.2d 600, 603, 154 P.3d 1120,rev. denied 284 Kan. 948 (2007); Edwards v. State, 31 Kan.App.2d 778, 780, 73 P.3d 772 (2003). If the district court failed to properly apply the appellate mandate, the case should be remanded again to comply with the mandate. See State v. Reed, 31 Kan.App.2d 1025, 1029, 77 P.3d 153 (2003). The mandate controls the district court's responsibility and also our review on appeal. Therefore, we set it out below.
The Supreme Court Mandate
“The State, or the KBI on its behalf, was not free to simply disregard the remainder of the order for testing, nor was the district court free to ignore its earlier provisions without Goldsmith's input.
“Rather, on proper motion from the State, the district court should have conducted an evidentiary hearing on the result of the DNA test on the blue sweatpants and should have permitted Goldsmith to be present with counsel. At such a hearing the parties can present their full arguments on why testing on the 34 other items should cease or continue.
“In view of all of the foregoing, we affirm the decision of the Court of Appeals, reverse the decision of the district court, and remand to the district court for further proceedings consistent with this opinion.” Goldsmith v. State, 292 Kan. at 404.
Thus, to address further DNA testing results, the State was required to file a motion seeking amendment of the district court's prior order. If a motion was filed, the district court was required to conduct an evidentiary hearing regarding the motion. Pursuant to the mandate, Goldsmith was to be present and represented by counsel, with both parties given the opportunity to present evidence for and against the State's motion to modify the previous order to test 35 items.
Was the Mandate Followed?
Neither party cites to any caselaw to support their arguments; however, the case is similar in many respects to Haddock v. State, 295 Kan. 738, 286 P.3d 837 (2012). In Haddock, the defendant was convicted of murder and appealed with a motion for new trial based on postconviction DNA testing. The district court denied the motion, but the Kansas Supreme Court determined the district court erred in its treatment of the motion for new trial and reversed and remanded the case. State v. Haddock, 282 Kan. 475, 525, 146 P.3d 187 (2006).
At the hearing on remand, the district court heard testimony from the analyst who performed the DNA analysis report. The analyst testified regarding several incomplete DNA profiles and mixtures of DNA, including some evidence of DNA that did not belong to either the victim or the defendant. However, the minor donor of the DNA was still consistent with the defendant. The district court held the analysis of the items did not exonerate the defendant, the results were not favorable to the defendant, and there was no new evidence that would impeach the verdict or create a reasonable probability of a different outcome at a new trial. Haddock, 295 Kan. at 750–54.
The defendant appealed, claiming the district court failed to follow the Kansas Supreme Court's earlier mandate. Haddock, 295 Kan. at 754. The Kansas Supreme Court ruled the district court had followed the Supreme Court mandate. Even though the district court referred to the mandate only ambiguously, the Supreme Court held that overall, the district court's oral statements indicated it did not ignore the mandate. Haddock, 295 Kan. at 761.
The Supreme Court's mandate required Goldsmith's presence at the hearing and an opportunity to be heard about whether DNA testing of the other 34 items should continue or cease. Goldsmith v. State, 292 Kan. at 404. This hearing was held after the State moved to modify the DNA testing order and both parties presented evidence. Over objection, Goldsmith was permitted to testify for most of the first day of the hearing regarding the fallacies of DNA evidence, despite his lack of training in the area. On the second day of the hearing, both parties meticulously examined Antle, the KBI analyst who performed the DNA analysis and prepared the report. Finally, both parties presented closing arguments to summarize their positions to the district court.
Goldsmith fails to explain how the district court denied him the opportunity to present his full argument regarding why the additional items should be tested. There is no argument contained in Goldsmith's brief or evidence in the record he was denied the opportunity to call witnesses for the hearing. The district court did stop Goldsmith from speaking during his attorney's closing arguments. The district court has broad discretion in controlling closing arguments. State v. Burton, 235 Kan. 472, 483, 681 P.2d 646 (1984). At the time, the district court's response to Goldsmith was reasonable and responsible in order to manage its courtroom.
The mandate was simple and required the district court to consider whether the previous order to test 35 items should be enforced or modified. Goldsmith's complaint that 2 days of testimony were insufficient to satisfy the Supreme Court's mandate is disingenuous and without merit. Goldsmith exercised his right to be present and testify. Goldsmith was allowed to testify and say all he wanted until finally he could not think of anything else to say. He also extensively cross-examined the KBI's DNA expert.
Conclusion
On remand, the district court heard the State's motion to terminate additional DNA testing over 2 days of testimony in full compliance of the Supreme Court's mandate. The record reflects the district court was very patient with Goldsmith. Goldsmith failed to show how the district court did not comply with the mandate. The district court properly concluded there was no need for additional testing as the one item tested was “profoundly unfavorable” to Goldsmith pursuant to K.S.A. 21–2512(f)(1). We affirm.
Affirmed.