Opinion
110,822.
04-03-2015
Michael P. Whalen and Krystal Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen and Krystal Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Akira T. Brown appeals the district court's denial of his petition for forensic DNA testing of blood samples collected during the investigation of the shooting that led to his 2003 conviction of first-degree murder. Brown contends that the district court erroneously found that the requested DNA testing would not lead to exculpatory evidence, or to evidence that tends to establish Brown's innocence. For the reasons stated herein, we reverse the district court's decision and remand with directions to grant Brown's petition for forensic DNA testing of the blood samples in question.
In 2003, the State charged Brown with first-degree murder in connection with the shooting death of James Cooper near a Wichita nightclub located at Second Street and Mosley. The underlying facts are set forth in detail in State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007). Cooper was shot after exiting the nightclub at closing time, when “a crowd estimated to number ‘a couple hundred’ exited onto the streets and sidewalks around the club” and “[s]everal fights broke out in the crowd.” 285 Kan. at 267.
After Brown's first jury trial ended in a mistrial, a second jury found Brown guilty of first-degree murder. The district court sentenced Brown to life imprisonment without the possibility of parole for 25 years. The Kansas Supreme Court affirmed Brown's conviction and sentence in December 2007. See 285 Kan. at 265–67. Among other issues, our Supreme Court rejected Brown's contentions that (1) his confession to police was not voluntary and (2) the district court erred in refusing to admit certain testimony that “tend[ed] to suggest a third party committed the shooting.” 285 Kan. at 266–67.
On October 25, 2012, Brown filed a petition pursuant to K.S.A. 21–2512 for forensic DNA testing of two blood samples taken from a parking lot north of Second Street. In the petition, Brown contended that witnesses of the crime had told investigating police officers that the man who had shot Cooper had been spitting blood in that parking lot and that the blood samples taken in the parking lot, which were never tested, would belong to neither Brown nor Cooper, thereby exonerating Brown as the shooter.
The State filed a response to the motion, claiming that the requested testing would not lead to exculpatory evidence showing that someone other than Brown committed the murder. The State pointed out that two witnesses testified at trial that they saw Brown fire a shot in the victim's direction and two witnesses testified at trial that they saw Brown fleeing the scene after the shot. The State characterized the blood samples as being “recovered far from the crime scene” and argued that there was nothing in the record to suggest that the blood samples were relevant to the murder. Attached to the State's response was a diagram—although not to scale—showing the neighborhood of the crime scene and the location of the blood in question.
The district court held a hearing on March 14, 2013, at which Brown was not present but was represented by counsel. Counsel asserted that the blood samples in question had never been tested, were still in existence, and would exonerate Brown of the murder. The State reiterated its assertion that the blood samples were from a location “pretty far away from the crime scene” and reminded the court that this was not a case based upon DNA evidence. After hearing the arguments, the district judge stated:
“I have had an opportunity to review the materials presented by the State in this matter and it just strikes me that the idea here is to seek evidence that would be exculpatory as suggested by the defendant maybe to exonerate him of the crime. The fact of the matter is the requests do not comply with the statute in that they're—this evidence was not even referred to or made a part of the investigation or presentation of the case at trial.
“After considering the evidence that was presented at trial, as far as the Court is concerned, there is absolutely no rational path of thought that could even lead to a suggestion, any reason or probability of some different outcome at a trial if such DNA evidence were presented assuming it would show just exactly what Defendant is saying it might show. So I cannot find that it is—well, I'm not convinced in any way that it would produce any exculpatory evidence. I think I've stated that clearly enough. Thank you.”
On March 25, 2013, the district court filed a written order that likewise denied Brown's motion for DNA testing, adopting the State's argument “that the requested DNA testing would not lead to exculpatory evidence, or to evidence that tends to establish [Brown's] innocence.” Brown timely appealed the district court's judgment.
On appeal, Brown argues that the district court erred in denying his petition for forensic DNA testing of the blood samples collected during the investigation that led to his conviction. Specifically, Brown argues that the DNA testing could have identified the blood as belonging to one of the people whom witnesses identified as having fought with Cooper on the night of the murder, which would have corroborated Brown's defense and tied a third party to the crime. The State argues the opposite, contending that Brown's identity as the shooter “was not in issue because several eyewitnesses identified him as the shooter and [Brown] voluntarily confessed to committing the murder.” The State again emphasizes that the blood samples were recovered far from the crime scene and argues there was nothing to show that the blood was relevant to the murder.
The district court summarily denied Brown's petition for DNA testing without conducting an evidentiary hearing. Our Supreme Court has stated: “The summary denial of a motion for DNA testing presents a question of law over which we exercise unlimited review. [Citation omitted.] Further, it requires interpretation of K.S.A. 21–2512, and statutory interpretation is also a question of law allowing our unlimited review. [Citation omitted.]” State v. Johnson, 299 Kan. 890, 892, 327 P.3d 421 (2014).
K.S.A.2014 Supp. 21–2512 states, in relevant part:
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder in the first degree ... may petition the court that entered the judgment for forensic DNA (deoxyribonucleic acid testing) of any biological material that:
“(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.
....
“(c) 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 claim of the petitioner that the petitioner was wrongfully convicted or sentenced.”
The State has conceded that prongs (1) through (3) in subsection (a) have been met, i.e., that the blood samples in question are related to the investigation that resulted in Brown's conviction; that the blood samples are in the actual or constructive possession of the State; and that the blood samples were not previously subjected to DNA testing. Thus, the central issue is whether the district court erred in finding under K.S.A.2014 Supp. 21–2512(c) that testing of these blood samples would not produce noncumulative, exculpatory evidence relevant to Brown's claim that he was wrongfully convicted.
In the context of K.S.A.2014 Supp. 21–2512, our Supreme Court has stated that evidence is exculpatory when it simply “ “tends to disprove a fact in issue which is material to guilt or punishment.' “ [Citation omitted.]” Johnson, 299 Kan. at 894. Evidence need not be exonerating to be exculpatory but must only “ ‘tend [ ] to establish a criminal defendant's innocence.’ (Emphasis added.) [Citation omitted.]” 299 Kan. at 894.
Here, the district court agreed with the State that Brown's identity was not at issue because witnesses had identified Brown as the shooter and he voluntarily confessed to committing the murder. The district court found that DNA testing would not reveal that someone else had committed the crime because witnesses testified at trial that after firing a shot in Cooper's direction, Brown fled east down Second Street, but the blood samples were from a parking lot to the north of the crime scene. The district court concluded that nothing in the record showed that the blood samples were relevant to the murder.
The State's argument that Brown's identity was not at issue because witnesses had identified him as the shooter requires the court to weigh the evidence presented at Brown's trial. But our Supreme Court recently stated: “[W]e have ‘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.’ [Citation omitted.]” Johnson, 299 Kan. at 894, citing Bruner v. State, 277 Kan. 603, 606, 88 P.3d 214 (2004) (“Our reading of the plain language of K.S.A.2003 Supp. 21–2512 finds no reference limiting the statute to cases where the evidence was not overwhelming.”). Therefore, the strength of the State's case against Brown is irrelevant. Brown has asserted all along that other suspects may have shot Cooper, which put the identity of the shooter into question.
Brown takes issue with the district court's finding that the requested DNA testing would not lead to exculpatory evidence, or to evidence that tends to establish his innocence. Brown points out that his theory of defense at trial was that his confession was coerced, that police did not sufficiently investigate other suspects, and that he was misidentified as Cooper's shooter. Brown notes that Cooper's girlfriend, Cecilia Arnold, told police that she and Cooper left the nightclub at the same time and that Terrell Cole ran in front of their car chasing two people while holding a gun. According to Arnold, Cooper got out of the car to follow Cole and told him to stop fighting and to put the gun away. Although Arnold did not actually see the shooting, she had told the police that she believed Cole was the shooter. See Brown, 285 Kan. at 267–68.
Another witness, Russell Hunt, testified at Brown's trial that he observed the altercation occurring in the road at Second Street and Mosley and that he observed “three to four individuals” jumping on a man on the ground before one of the individuals pulled out a handgun and shot the victim. See 285 Kan. at 268. Furthermore, Brown alleged in his petition for DNA testing that witnesses told investigating police officers that the man who had shot the victim had been spitting blood in the parking lot adjacent to Second Street where the blood samples were later found.
We disagree with Brown's contention that if the blood samples in question do not belong to either Brown or Cooper, such evidence would “exonerate” Brown as the shooter. However, in the context of K.S.A.2014 Supp. 21–2512, evidence need not be exonerating to be exculpatory but must only tend to establish a criminal defendant's innocence. See Johnson, 299 Kan. at 894.
Here, if DNA testing establishes that the blood samples do not belong to either Brown or Cooper, such evidence would at least tend to support Brown's claim that a third party was involved in the crime, especially if the blood samples can later be matched to Cole or another possible suspect identified as being at the scene of the crime. In Brown's direct appeal, our Supreme Court rejected Brown's attempt to introduce evidence that a third party committed the crime because there was “nothing tying these third parties to the shooting.” Brown, 285 Kan. at 305. Brown's requested DNA testing of the blood samples may provide the first step in tying a third party to the shooting, thereby making the third-party evidence admissible to help establish Brown's innocence.
In summary, K.S.A.2014 Supp. 21–2512(c) provides that the court shall order DNA testing “upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim ... that the petitioner was wrongfully convicted or sentenced.” (Emphasis added.) Evidence need not be exonerating to be exculpatory but must only tend to establish a criminal defendant's innocence. Johnson, 299 Kan. at 894. Although there is substantial evidence supporting Brown's guilt, our Supreme Court has explicitly rejected the notion of defining exculpatory evidence under K.S.A. 21–2512(c) as being a function of weighing evidence. 299 Kan. at 894. For these reasons, we agree with Brown that the district court erred in finding that the DNA testing would not produce noncumulative, exculpatory evidence relevant to Brown's claim that he was wrongfully convicted. Thus, we reverse the district court's judgment and remand with directions to grant Brown's petition for forensic DNA testing of the blood samples collected during the investigation that led to his conviction.
Reversed and remanded with directions.