Opinion
No. 106,731.
2012-12-21
STATE of Kansas, Appellee, v. Ramon RODRIGUEZ, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant, and Ramon Rodriguez, appellant pro se. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant, and Ramon Rodriguez, appellant pro se. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., MALONE, C.J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ramon Rodriguez appeals the district court's denial of his motion for new trial based on new forensic DNA testing. For the reasons set forth herein, we affirm the district court's judgment.
This court concisely recited the history of this case in State v. Rodriguez, No. 100,636, 2009 WL 3630919, at *1–2 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1102(2010):
“In 1997, Rodriguez was charged with one count of rape, two counts of aggravated criminal sodomy, and one count of criminal restraint. In August of that year, Rodriguez and J.S. were among a group of people having a party at a house belonging to Javier Vallejos' sister and brother-in-law. When the party began to wind down (sometime between 6 and 7 a.m.), J.S. was very tired. Vallejos offered J.S. a bed to sleep in so she could get some rest before driving home. J.S. accepted. After showing her to the master bedroom, Vallejos left J.S. and closed the door behind him. J.S. eventually fell asleep on the bed.
“Sometime later, J.S. was awakened by a man she identified as Rodriguez who, while using his legs to pin her arms, digitally penetrated her and put his penis in her mouth and ejaculated. According to J.S., Rodriguez forced her to swallow his semen before getting off of her. J.S. eventually left the residence and reported the incident to the police. J.S. was taken to the hospital where a rape kit was performed on her. Items in the rape kit were later tested for the presence of semen, none of which was found.
“Items recovered from the bedroom were later tested for the presence of semen and hair. Though semen was found on some of the items, Rodriguez was either excluded as the contributor of the semen, or the samples were so small that testing could not be performed to determine whether Rodriguez was the contributor. Though hair was found on the items, only one hair was determined to be consistent with a sample taken from J.S. None of the hair samples matched samples taken from Rodriguez.
“The police also obtained saliva and blood samples from Vallejos. However, these samples were never compared to any biological samples found on the items removed from the bedroom.
“Rodriguez' case proceeded to a jury trial where his main defense was that someone else (possibly Vallejos) had sexually assaulted J.S. earlier that night while she was passed out in the bedroom. Rodriguez contended that he was wrongly accused of the crimes charged because, at the same time J.S. awoke from her sleep and realized that she had been molested, he had accidentally walked into the bedroom. Rodriguez argued that when J.S. saw him in the bedroom, she mistakenly concluded that he had just finished sexually assaulting her, resulting in J.S. concocting a story to support her conclusion. Finally, Rodriguez stressed to the jury that no physical evidence linked him to the crime.
“The jury acquitted Rodriguez of one count of aggravated sodomy, but convicted him of the remaining counts. On appeal, a panel of this court found that Rodriguez' rape and criminal restraint convictions were multiplicitous and, thus, reversed his criminal restraint conviction. State v. Rodriguez, No. 85,125, unpublished opinion filed October 4, 2002, rev. denied 275 Kan. 968 (2003), slip op. at 28. However, the panel found that the record did not support any other errors raised in Rodriguez' appeal and, accordingly, affirmed the rape and aggravated criminal sodomy convictions. Slip op. at 31.”
Rodriguez later filed a K.S.A. 60–1507 motion, which was denied by the district court. This court affirmed the denial of the K.S.A. 60–1507 motion. Rodriguez v. State, No. 96,587, 2008 WL 3367543 (Kan.App.2008) (unpublished opinion), rev. denied 787 Kan. 766 (2009).
While the outcome of his K.S.A. 60–1507 motion was pending, Rodriguez filed a petition requesting DNA testing pursuant to K.S.A. 21–2512. 2009 WL 3630919, at *2. In his petition, Rodriguez asked that DNA testing be performed on Vallejos' blood and saliva samples to compare with the biological samples recovered from the crime scene. After conducting a preliminary hearing where no evidence was presented, the district court denied Rodriguez' petition, finding that additional testing would not produce noncumulative, exculpatory evidence.
On appeal, this court analyzed and distinguished Kansas caselaw and concluded that “the possibility exists that DNA testing of Vallejos' blood and saliva samples may lead to exculpatory evidence being produced.” 2009 WL 3630919, at *7. Therefore, this court reversed and remanded for an evidentiary hearing on whether testing Vallejos' samples would lead to exculpatory evidence. 2009 WL 3630919, at *7.
On remand, the district court ordered DNA testing of Vallejos' samples to compare with the samples recovered from the crime scene. Ross Capps, a forensic scientist, prepared a DNA report. Based on the report, Rodriguez filed a motion for a new trial, arguing that the results of the DNA testing would likely have resulted in his acquittal.
The district court held a hearing on the motion for new trial on July 21, 2011. Capps testified about the DNA test results. The testing compared Rodriguez', J.S.'s, and Vallejos' samples to the evidence collected during the original investigation. The test results utilized newer technology than tests performed for Rodriguez' trial. Consistent with the DNA testing performed for trial, the new tests did not reveal any DNA from either Rodriguez or J.S. in any of the five samples. Testing Vallejos' sample for the first time, Capps did not find Vallejos' DNA on four of the five stains from the bedroom. But tests on one stain from a pillowcase indicated that Vallejos' DNA was included in the nonsperm fraction of the stain. Also, although the sperm fraction of the pillowcase stain was officially inconclusive, “everything in that partial profile was consistent with the known DNA of Javier Vallejos.”
Capps testified that it was “very unlikely” that the pillowcase stain was contemporaneous with the crime because J.S.'s DNA could not be found in either the sperm or nonsperm fraction of the pillowcase stain. Capps explained that when there is an oral or vaginal assault, there typically will be a mixture of the attacker's semen and the victim's cellular material in the sample. If the stain with Vallejos' DNA was related to the crime, Capps testified that he would have expected to find J.S.'s DNA as well.
After hearing the evidence, the judge denied the motion for new trial, finding that although Vallejos' DNA results would probably have been admitted at trial, there was no evidence linking the DNA evidence to the sexual assault. The judge noted that there was a logical explanation for Vallejos' DNA to be found in the bedroom because Vallejos was staying at the house when the crime was committed. The judge concluded that substantial evidence supported the jury's verdict and that “this additional fact is unlikely to have yielded or would yield in the event of a new trial a different outcome.” Rodriguez appealed the district court's decision.
Rodriguez first argues that the district court failed to make findings of fact and conclusions of law when denying Rodriguez' motion for a new trial. At the conclusion of the hearing, the judge stated that the new DNA evidence “is unlikely to have yielded or would yield in the event of a new trial a different outcome.” Based on this language, Rodriguez asserts that the judge did not apply the standards of Haddock v. State, 282 Kan. 475, 499, 146 P.3d 187 (2006) ( Haddock I ), in which the judge must determine whether “a reasonable probability exists that [the new DNA evidence] would result in a different outcome at trial.” Thus, Rodriguez insists that the case must be remanded for the district court to make clear findings of fact and conclusions of law pursuant to Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot. 259).
Supreme Court Rule 183(j) requires the district court to make findings of fact and conclusions of law after a preliminary or full evidentiary hearing on all issues presented in a K.S.A. 60–1507 motion. Also, our Supreme Court has applied the standard established by Rule 183(j) to a motion for a new trial based upon newly discovered evidence. State v. Moncla, 269 Kan. 61, 64–65, 4 P.3d 618 (2000). If, taken together, the district court's findings and conclusions in the journal entry and its oral expressions at the time of the hearing are sufficient for an appellate court to discuss and act on movant's arguments, then remand is not required. Robertson v. State, 288 Kan. 217, 233, 201 P.3d 691 (2009). Whether the district court's findings of fact and conclusions of law comply with Supreme Court Rule 183(j) is a question of law that is reviewed de novo. Robertson, 288 Kan. at 232.
Generally, litigants and their counsel bear the responsibility of objecting to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct them. Where no objection is made, an appellate court will presume the district court found all facts necessary to support its judgment. However, an appellate court may still consider a remand if the lack of specific findings precludes meaningful review. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012). Rodriguez did not object to the district court's findings below. Therefore, this court must presume that the district court found all facts necessary to support the judgment. See O'Brien, 294 Kan. at 361.
Rodriguez' argument hinges on the difference in wording between “unlikely” and “reasonable probability.” Rodriguez asserts that the district court's findings were insufficient because the judge stated that the new DNA evidence was “unlikely” to have resulted in a different trial outcome, rather than finding whether a “reasonable probability” existed that the DNA evidence would result in a different outcome at trial. See Haddock, 282 Kan. at 499. Rodriguez concedes that “the language is close” and may actually represent the same standard. Nonetheless, Rodriguez believes remand is necessary to resolve any ambiguity.
A district court is presumed to know the law. State v. Loggins, 40 Kan.App.2d 585, 594, 194 P.3d 31 (2008), rev. denied 289 Kan. 1283 (2009) (citing State v. Johnson, 258 Kan. 61, 65, 899 P.2d 1050 [1995] ). Here, although the judge at Rodriguez' hearing used the phrase “unlikely” rather than “not a reasonable probability,” there is no indication that the judge did not understand the law or applied the wrong standard. By deeming it “unlikely,” the judge clearly determined that there was not a reasonable probability that the new DNA evidence would result in a different outcome at trial. Further, the judge's findings and conclusions were sufficient for this court to discuss and act on Rodriguez' arguments. See Robertson, 288 Kan. at 233. Therefore, we conclude there is no need to remand for additional findings.
Turning to the merits of the case, Rodriguez argues that the district court abused its discretion in denying his motion for a new trial. Specifically, Rodriguez asserts that the DNA test results were favorable to him, that the new evidence would likely result in a different verdict in a new trial, and that no reasonable person would agree with the district court's conclusion that a different verdict would be unlikely.
Generally, an appellate court reviews the district court's decision on a motion for new trial for an abuse of discretion. State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012). Additionally, in Haddock v. State, 295 Kan. ––––, 286 P.3d 837 (2012) ( Haddock II ), our Supreme Court discussed the standard of review for appeals from K.S.A. 21–2512 proceedings. Appellate courts apply a de novo standard to the analysis if evidence is material to the determination of whether postconviction DNA-test results are favorable or unfavorable under K.S.A. 21–2512(f), giving deference to the district court's factual findings. Haddock II, 295 Kan. ––––, Syl. ¶ 4. Therefore, the district court's decision of whether to grant a new trial under K.S.A. 21–2512(f)(2) is reviewed to determine “if a reasonable person would agree with a district court's decision regarding whether postconviction DNA test results are of such materiality that a reasonable probability exists that the new evidence would result in a different outcome at trial.” Haddock II, 295 Kan. ––––, Syl. ¶ 5. The potential impact of the evidence must be examined as a whole and in light of all the evidence in order for the court to make “a probabilistic determination about the likely impact of the new evidence on reasonable, properly instructed jurors.” 295 Kan. ––––, Syl. ¶ 6.
K.S.A. 21–2512 provides that a person in state custody for murder or rape may petition the district court for forensic DNA testing of any biological material in the State's custody related to his or her prosecution that was either not previously tested or that should be retested because of new DNA techniques. The district court shall order DNA testing upon determination that testing may produce noncumulative, exculpatory evidence supporting a claim of wrongful conviction. K.S.A. 21–2512(f) addresses the procedures to be followed in three possible scenarios where the results of postconviction DNA testing (1) are unfavorable to the petitioner; (2) are favorable to the petitioner; or (3) are inconclusive. The statute requires “specific and distinct procedures for each result.” Goldsmith v. State, 292 Kan. 398, 402, 255 P.3d 14 (2011). The statute states:
“(f)(1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing.
“(2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
“(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).” (Emphasis added.) K.S.A. 21–2512(f).
DNA test results that are favorable to the defendant require the district court to hold a hearing. 282 Kan. at 496. After the hearing, the district court must enter “any order that serves the interests of justice,” granting the district court wide discretion. 282 Kan. at 496–97. New DNA results “need not be completely exonerating in order to be considered favorable.” 282 Kan. at 501; see also Goldsmith, 292 Kan. at 402. Similarly, DNA results need not be completely exonerating in order to warrant a new trial. Haddock II, 286 P.3d at 850. But even if the results are favorable, the district court is not required to grant affirmative relief. See 286 P.3d at 848.
Although Rodriguez does not argue that the DNA evidence conclusively establishes his innocence, he argues that the evidence was favorable and would likely result in a different outcome at a new trial. According to Rodriguez, the district court implicitly found the test results were favorable because it held an evidentiary hearing. The State does not dispute Rodriguez' interpretation that the evidence was favorable. But the State observes that even if the evidence was favorable, the district court must consider the mix of unfavorable evidence against Rodriguez as well when deciding which order to enter that serves the interest of justice. K.S.A. 21–2512(f)(2).
In Haddock I, testing of hair, fingernails, and eyeglasses from a murder crime scene produced some DNA that was inconsistent with the defendant's DNA. While not totally exonerating, these results were favorable to the defendant. Our Supreme Court determined that DNA test results that supplied a favorable inference that someone other than the defendant could have committed the crime must be analyzed as favorable evidence under K.S.A. 21–2512(f)(2) rather than as inconclusive evidence under K.S.A. 21–2512(f)(3). Haddock I, 282 Kan. at 501–02.
The results of Rodriguez' new DNA testing are analogous to Haddock I. While the presence of Vallejos' DNA is far from conclusive proof of Rodriguez' innocence, it at least supplies a favorable inference that someone other than Rodriguez, namely Vallejos, could have committed the crime. Therefore, the proceedings should have been handled under K.S.A. 21–2512(f)(2). Although the record is somewhat ambiguous, it appears that the district court found the results favorable and did proceed under K.S.A. 21–2512(f)(2) rather than (f)(3). The district court never referred to the standard for a hearing on inconclusive test results and did not require Rodriguez to prove by a preponderance of the evidence that there was a substantial question of innocence. Instead, the district court held a hearing on the test results and ultimately refused to grant a new trial because the additional evidence was “unlikely” to yield a different result in a new trial. This was appropriate, as it was an order that “serve[d] the interests of justice.” See K.S.A. 21–2512(f)(2)(B). Haddock II clarified that although K.S.A. 21–2512(f)(2) only lists examples of affirmative relief, “justice may [sometimes] be served by denying a motion for a new trial.” Haddock II, 286 P.3d at 849.
In Haddock II, new DNA testing revealed that one of the hairs found in the murder victim's hand was not consistent with either the victim's or the defendant's DNA. While our Supreme Court agreed that this new favorable evidence to the defendant was “significant,” it still found that reasonable people could agree with the district court's decision to deny a motion for new trial. 286 P.3d at 858. This new evidence would not have changed the State's central theme at trial and was not conclusive proof that someone else was the murderer. 286 P.3d at 859.
Similarly, the presence of Vallejos' DNA does not fundamentally alter the evidence or strategy at trial. As the judge indicated in his oral ruling, the presence of Vallejos' DNA would provide additional evidence for the defense, but its impact would likely be minimal for two reasons. First, there was a logical reason why Vallejos' DNA would be found in the bedroom because Vallejos was staying at the house when the crime was committed. Second, and more importantly, the pillowcase stain was not clearly related to the crime because J.S.'s DNA was not found in the stain. As Capps testified, it was “very unlikely” that the pillowcase stain was contemporaneous with the crime.
When the district court ruled that the new evidence was unlikely to change the outcome in a new trial, it made “a probabilistic determination about the likely impact of the new evidence on reasonable, properly instructed jurors.” Haddock II, 295 Kan. ––––, Syl. ¶ 6. Considering the new test results with all the other evidence in the case, there was not a reasonable probability that the new DNA evidence would result in a different outcome at trial. Accordingly, we conclude the district court did not abuse its discretion in denying Rodriguez' motion for new trial.
As a final matter, in his pro se supplemental brief, Rodriguez argues (1) insufficiency of the evidence supporting his convictions, (2) prosecutorial misconduct, and (3) ineffective assistance of trial counsel. All of Rodriguez' arguments focus on the failure to test Vallejos' DNA samples prior to trial. Rodriguez' pro se arguments are procedurally barred for at least three independent reasons. First, a defendant must raise all available issues relating to trial errors (such as sufficiency of the evidence and prosecutorial misconduct) on direct appeal. See State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (citing State v. Neer, 247 Kan. 137, Syl. ¶ 1, 795 P.2d 362 [1990] ). Second, where a party has filed a prior motion for habeas relief under K.S.A. 60–1507, the party is precluded from bringing successive motions raising claims that were or could have been raised in the prior motion. See K.S.A. 60–1507(c); Supreme Court Rule 183(d) (2011 Kan. Ct. R. Annot. 259). Third, issues not raised before the district court cannot be raised on appeal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009).
Here, Rodriguez had the opportunity to raise these claims in earlier proceedings. Although Vallejos' DNA was not tested until recently, any alleged errors in failing to have the evidence tested could have been raised at any time. It was known at trial that investigators had obtained Vallejos' DNA sample but declined to have it tested. Rodriguez challenged the sufficiency of the evidence on direct appeal and this court found his challenge to have no merit. State v. Rodriguez, No. 85,125, unpublished opinion filed October 4, 2002, rev. denied 275 Kan. 968 (2003), slip op. at 31. Rodriguez also filed a prior K.S.A. 60–1507 motion arguing the same or similar issues of sufficiency of the evidence, ineffective assistance of trial counsel, and prosecutorial misconduct. Rodriguez, 2009 WL 3630919, at *1. This court affirmed the district court's denial of that motion. 2009 WL 3630919, at *1. Further, Rodriguez did not raise these claims in his motion for new trial. The only issue raised below and properly before this court is the denial of Rodriguez' motion for new trial.
Affirmed.