Opinion
No. 107,506.
2013-12-27
STATE of Kansas, Appellee, v. Merrill ANDREWS, Appellant.
Appeal from Sedgwick District Court; Jeff Goering, Judge. Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tesdesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeff Goering, Judge.
Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tesdesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
The sole issue presented on appeal is whether the trial court erred when it denied Merrill Andrews' request for DNA testing.
More than 25 years after Andrews was convicted of aggravated burglary and murder, he moved under K.S.A. 21–2512 for DNA testing of a spare tire rim from the trunk of a car that a witness identified as similar to the one used in the crime. The fingerprint evidence from the spare tire, along with almost all of the other evidence in Andrews' case, had been destroyed. The only remaining physical evidence from Andrews' murder conviction was four fingerprint cards that were collected from items in the victim's residence. Andrews' counsel asked that the cards be tested to determine whether any biological evidence was on them. After an evidentiary hearing, the trial court determined that the cards could not be tested in a way that would produce a scientifically valid result or uniquely relevant exculpatory evidence. Because the evidence showed that the fingerprint cards did not contain testable biological material, Andrews' argument fails. Moreover, even if the fingerprint cards contained testable biological material, Andrews' argument still fails because the fingerprint cards do not constitute noncumulative exculpatory evidence. Accordingly, we affirm.
In 1978, Andrews was convicted of felony murder and aggravated burglary. The crime involved the beating death of a 91–year–old woman during a burglary of her home. Part of the evidence used to convict Andrews consisted of a fingerprint found on a spare tire rim in the trunk of a car. A witness identified the car as being similar to the one used by the perpetrators. Andrews' conviction was affirmed in State v. Andrews, No. 50,416, an unpublished opinion filed June 9, 1979. Since his conviction, Andrews has moved for new trial and moved under K.S.A. 60–1507 five times. None of these motions are pertinent to this appeal.
On January 31, 2007, Andrews moved for forensic testing under K.S .A. 21–2512. In a motion minutes sheet, the trial court found the State's arguments “persuasive” and determined that the requested evidence for testing was not of the type contemplated by K.S.A. 21–2512. Andrews appealed to this court, which “[r]eversed and remanded with directions for appointment of counsel and an evidentiary hearing in accordance with Bruner.” State v. Andrews, No. 98,678, 2008 WL 4849195, at *3 (Kan.App.2008) (unpublished opinion).
After remand to the trial court, the court held a series of hearings concerning the evidence from Andrews' case. Lieutenant Kenneth Landwehr testified at the June 30, 2009, hearing that the fingerprints from the spare tire—which was the subject of Andrews' motion—had been destroyed. Landwehr also testified that all of the other evidence in Andrews' case, except for four fingerprint cards, had been destroyed. When Andrews' counsel noticed a dark stain on one of the fingerprint cards, he requested that the card be analyzed for the presence of blood. The trial court ordered analysis of the fingerprint cards for the presence of any biological material.
On September 11, 2009, a hearing was held to address the DNA analysis of the dark stain on the fingerprint card. DNA analyst Shelly Steadman reported that the dark stain tested negative for blood. Andrews' counsel then requested that all of the fingerprint cards be subjected to forensic DNA analysis. The trial court granted counsel's request and ordered that the State attempt forensic DNA analysis on the four fingerprint cards.
On July 9, 2010, the parties appeared for another evidentiary hearing. This hearing involved the forensic DNA analysis of the four fingerprint cards. At the hearing, Steadman testified that no valid method existed to test the fingerprint cards for DNA. Based in part on Steadman's testimony, the trial court determined that no evidence had been presented to show that the fingerprint cards could be tested in a manner that could produce noncumulative exculpatory evidence relevant to Andrews' claims. Thus, the trial court determined that “the four (4) remaining lift cards shall not be subjected to DNA analysis at this time.”
In reaching its decision, the trial court stated the following:
“My ruling today is based on—what I'm ruling is that the Sedgwick County Regional Forensic Science Center is not able to test these cards in a way that would yield results that are scientifically valid or would have evidentiary value. If you've got another lab in mind to do these tests, and we can set it up for another hearing and take evidence on whether or not these cards can be tested by somebody else in some other way, I'm open to that and I don't have any problems with that.”
As a result, the trial court ordered the State to maintain the evidence in the event that Andrews found a DNA laboratory with a means of conducting the requested analysis. Did the trial court err when it denied Andrews' motion for forensic testing?
Andrews' sole argument on appeal is that the trial court erred when it denied his motion for forensic testing under K.S.A. 21–2512. In particular, Andrews argues that the probability of biological material being stuck to the laminate material warrants the testing of these cards to determine whether DNA evidence is present. On the other hand, the State contends that the trial court did not err when it denied Andrews' motion under K.S.A. 21–2512 for the following two reasons: “(1) the DNA analysts at the Sedgwick County Regional Forensic Science Center had no viable technique to conduct forensic DNA analysis of the four fingerprint cards; and (2) the four fingerprint cards could not be tested in a manner that may produce non-cumulative, exculpatory evidence relevant to [Andrews'] claims.”
Because the facts relevant to this case are undisputed, the issue entails the application of those facts to the statute authorizing DNA testing. Therefore, this court is presented with a question of law resting on the interpretation of K.S.A. 21–2512. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009) (civil); State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (criminal). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009) (civil); Arnett, 290 Kan. at 47 (criminal). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009) (civil); State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010) (criminal). In other words, the court's function does not include adding or taking away from the language of a statute. The courts should not impose a meaning on a statute beyond what the words themselves convey through their common and usual definitions. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. Double MConstr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009) (civil); see also Urban, 291 Kan. at 216 (criminal case stating “other background considerations” can also be used to construe the legislature's intent).
The main statute at issue here is K.S.A. 21–2512. As provided in K.S.A. 21–2512, convicted murderers and rapists in state custody may file motions requesting DNA testing. A convict may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material under the following conditions:
“(1) Is related to the investigation or prosecution that resulted in the conviction;
“(2) is in the actual or constructive possession of the state; and
“(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.” K.S .A. 21–2512(a).
If the convict can make that showing, the “court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the [ convict's ] claim [ he or she ] was wrongfully convicted.” (Emphasis added.) K.S.A. 21–2512(c).
Our Supreme Court recently clarified the meaning of exculpatory evidence in State v. Lackey, 295 Kan. 816, 286 P.3d 859 (2012). With regards to exculpatory evidence, the Lackey court stated the following:
“[W]e previously, and rather explicitly, rejected the notion of defining exculpatory evidence under K.S.A. 21–2512(c) as being a function of weighing evidence. See Bruner, 277 Kan. at 606 (plain statutory language does not limit DNA testing to cases where evidence not overwhelming). In the context of a prosecutor's obligation to disclose exculpatory evidence, we have said that “ ‘[e]vidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.’ “ State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997) (quoting State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 [1986] ). Additionally, Black's Law Dictionary 637 (9th ed.2009) defines exculpatory evidence as [e]vidence tending to establish a criminal defendant's innocence. (Emphasis added.) Finally, and most compelling, Haddock v. State, 295 Kan. 738, 759, 286 P.3d 837 (2012), specifically acknowledged that evidence may be exculpatory without being exonerating.” 295 Kan. at 823.
Initially, we point out that Andrews' DNA testing argument fails because he has not identified any known biological material that could be tested. See State v. Lingenfelter, No. 105,551, 2012 WL 687836, at *4 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (2013) ( “Because Lingenfelter has not identified known biological material, he has failed to present a request, either in his petition or at the hearing, coming within the scope of K.S.A. 21–2512. The petition was properly denied on that basis”.). Moreover, even if the fingerprint cards contained testable biological material, Andrews' DNA testing argument still fails because he has failed to show that the testing “may produce noncumulative, exculpatory evidence” relevant to his accusation that he “was wrongfully convicted or sentenced.” See K.S.A. 21–2512(c).
Originally, Andrews requested DNA testing of a fingerprint found on a spare tire rim in the trunk of a car that a witness identified as similar to the one used in the crime. The spare tire, however, had been destroyed and could not be tested. As mentioned earlier, the only remaining evidence in Andrews' case consisted of the four fingerprint cards. At Andrews' hearing, forensic DNA analyst Steadman testified that after she conducted a search of the forensic literature, she performed a validation study within the laboratory to determine if there was a method to process the fingerprint cards for DNA analysis. After completing the validation study, Steadman concluded that no valid method existed to test the fingerprint cards for DNA. Significantly, Steadman testified that with the exception of the dark stain that tested negative for blood, the cards did not contain any biological material.
Andrews spends a significant part of his brief challenging Steadman's testimony that a test of the fingerprint cards would not show biological material or DNA evidence relevant to his accusation that he was wrongfully convicted or sentenced. Even though Steadman conceded on cross-examination to some of Andrews' counsel's questions regarding biological material and forensic testing, she was unequivocal in her conclusion that there was no valid method for testing the fingerprint cards for DNA. For example, the State's question and Steadman's response reads as follows:
“Q. Just—bottom line, I just want to make sure the record's clear. Are you satisfied, as a scientist, that there is a valid way that you developed or that others have developed to conduct the testing you've been asked to do?
“A. No.”
Moreover, Steadman expressly stated that the fingerprint cards did not contain any biological material. Steadman's testimony is persuasive.
As a result, Andrews' argument fails.
Affirmed.