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State v. George

Court of Appeals of Kansas.
Oct 30, 2015
358 P.3d 878 (Kan. Ct. App. 2015)

Opinion

112,224.

10-30-2015

STATE of Kansas, Appellee, v. Gregory Mark GEORGE, Jr., Appellant.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Todd G. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.


Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Todd G. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BUSER and GARDNER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Gregory Mark George, Jr., appeals two adverse rulings from the Leavenworth District Court. First, George appeals the district court's summary denial of his petition for postconviction deoxyribonucleic acid (DNA) testing as provided by K.S.A.2014 Supp. 21–2512. Second, he appeals the denial of his motion seeking habeas corpus relief pursuant to K.S.A. 60–1507. Having carefully reviewed the record and considered the parties' briefs, we affirm both of the district court's rulings.

Factual and Procedural Background

A jury convicted George of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. The facts underlying George's convictions are set forth in State v. George, No. 97,679, 2008 WL 4471431, at *1 (Kan.App.2008) (unpublished opinion) (George I ), as follows:

“R.L., a clerk at a Lansing convenience store, testified that on December 21, 2004, George entered the store, told R.L. he ‘wanted the money,’ and showed her a gun. R.L. handed George cash from the register, which he stuffed in his pockets. Then, holding the gun at the back of her head, George pushed R.L. into the storeroom at the back of the store and raped her.

“George left after he heard a bell, signaling that a customer had entered the front of the store. Before leaving, however, George told R.L. that he would kill her and her children if she told police about the incident. R.L. remained in the storeroom until she was found by customers, who contacted police. After police arrived, R.L. was briefly interviewed, then taken to the hospital and examined.

“A few days later, R.L. identified George in a photo identification lineup. She also viewed the video from the store's recording system and recognized George robbing her and forcing her to the storeroom.

“Lansing police officer Anthony Waterman later linked George to a complaint from Amanda Yoho, a clerk at another local convenience store. Officer Waterman asked Yoho to contact him when George next appeared at the store, which she did. Officer Waterman spotted George driving near the store, followed him for a short distance, and then pulled him over and arrested him.

“George was charged with, and convicted by a jury of, kidnapping, K.S.A. 213420; aggravated intimidation of a witness or victim, K.S.A. 21–3833 ; rape, K.S.A. 21–3502(a)(1)(A) ; and aggravated robbery, K.S.A. 21–3427. He was sentenced to 722 months' imprisonment. The district court denied George's motion for a new trial, in which he alleged that the verdicts of kidnapping, rape, and aggravated robbery were not supported by sufficient evidence.”

George filed a direct appeal with our court which affirmed the convictions. George I, 2008 WL 4471431, at *1, 3, 5. Our Supreme Court granted George's petition for review, however, and remanded the case to our court to reconsider George's kidnapping conviction in light of State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). Upon reconsideration, our court determined the State had presented insufficient evidence to support the charge of kidnapping, reversed the conviction, and remanded the case for resentencing on the remaining convictions. State v. George, No. 97,679, 2010 WL 2502869, at *1 (Kan.App.2010) (unpublished opinion) (George II ). As a result, on September 3, 2010, the district court resentenced George to a controlling prison term of 663 months.

On June 23, 2011, George filed a pro se K.S.A. 60–1507 motion alleging: (1) prosecutorial misconduct in his underlying criminal case; (2) ineffective assistance of trial counsel for failing to call “an expert to testify regarding the DNA evidence,” failing to object to prosecutorial misconduct, and exhibiting “ ‘obnoxious behavior at voir dire’ “; (3) ineffective assistance of appellate counsel for failure to raise prosecutorial misconduct and his trial counsel's deficient performance on direct appeal; and (4) cumulative error. George v. State, No. 108,060, 2013 WL 196569, at *1–2, 4 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. 1201 (2013) ( George III ).

In response, the State asserted an evidentiary hearing was unnecessary and moved to dismiss the motion. The district court held a preliminary hearing on January 26, 2012, whereupon “George's 1507 counsel repeatedly stated that he did not see the need for an evidentiary hearing. As a result, the district court thereafter denied George's motion concluding no issues of fact or law had been presented that would entitle him to a new trial.” 2013 WL 196569, at *1.

Our court affirmed the district court's judgment and, relevant to this appeal, found that George had failed to establish prejudice by his trial counsel's failure to call an expert witness to “ ‘establish firmly’ that George's DNA was not found on the victim.” 2013 WL 196569, at *3. Our Supreme Court denied review on October 1, 2013.

Meanwhile, on August 26, 2013, George filed a pro se petition for postconviction DNA testing. See K.S.A.2014 Supp. 21–2512. In particular, George requested that numerous hair fibers collected at the crime scene be examined and compared with the DNA profile of Brian Kennedy, R.L.'s boyfriend, whose DNA was consistent with the DNA found on R.L.'s pants, panties, and vaginal smears.

In response, the State asserted the requested testing would not lead to noncumulative, exculpatory evidence. According to the State, assuming the hair contained DNA matching Kennedy's DNA, this evidence would be of no benefit to George because the rape kit evidence had produced similar evidence. The State explained that the “results from the testing [of the rape kit] came up negative to ... George ... and a possibility for ... Kennedy.” Moreover, at trial the State stipulated that the seminal fluid found on R.L. did not match George. The State concluded: “The jury has already been presented with DNA evidence that seminal fluids were found in three different areas and none of those samples matched [George]. To test any hair that may exist would be compounding the evidence the jury has already heard and disqualified .” The State also questioned the relevance of this evidence because the hairs were found on the storage room floor where the rape occurred and they could have come from anyone with access to that area, i.e., employees, vendors, visitors, or repairmen. Finally, the State noted that the Kansas Bureau of Investigation (KBI) was not capable of performing the forensic testing George requested.

On January 14, 2014, while George's petition for DNA testing was pending, George's court-appointed attorney, Debra Snider, filed a motion for new trial and/or habeas corpus relief under K.S.A. 60–1507. Snider claimed George's trial counsel was ineffective based on Mullins v. State, 30 Kan.App.2d 711, 717–18, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002), wherein our court found that counsel was ineffective for failing to hire an expert in child interview techniques. In particular, Snider argued that George's trial counsel was ineffective because he failed to consult with experts or present expert testimony regarding inaccuracies of eyewitness identifications and issues related to DNA.

Snider acknowledged that George was requesting habeas corpus relief beyond the time limitation set forth in K.S.A. 60–1507(f) and that he had previously filed a K.S.A. 60–1507 motion alleging ineffective assistance. Snider claimed, however, that because George did not receive an evidentiary hearing on his prior K.S.A. 60–1507 motion and that motion did not raise the applicability of “the Mullins standard,” it was necessary to reconsider the matter to prevent a manifest injustice.

In response, the State asserted that George's second K.S.A. 60–1507 motion was untimely and successive. The State also insisted the conclusory allegations contained within the motion were insufficient to mandate an evidentiary hearing because Snavely v. State, No. 89,156, 2003 WL 22430275, *2 (Kan.App.2003) (unpublished opinion) demonstrated that the Mullins court's ruling was limited to its facts and did not create a bright-line rule for all types of expert testimony.

On January 28, 2014, the district court held a nonevidentiary hearing to consider both of George's motions. Regarding George's petition for DNA testing, Snider conceded that testing comparing George's DNA with Kennedy's DNA would be cumulative and “would not be helpful.” Instead, Snider sought to supplement George's pro se motion by asking that the hairs be cross-referenced with CODIS, the FBI's nationwide database of DNA because the results “will help to support his claim that he is not the individual who perpetrated the rape upon this lady.” In response, the State reiterated its contention that subjecting the hairs to DNA testing would merely produce cumulative and irrelevant evidence.

As for George's second K.S.A. 60–1507 motion, Snider conceded the motion was untimely, but she insisted that it was still reviewable because his first motion was summarily denied. Snider contended that an expert in eyewitness identification was crucial to George's defense because “eyewitness identifications are frequently flawed and very faulty.” Additionally, Snider argued that while there was no DNA evidence linking George to the crimes, a DNA expert could have emphasized the lack of “DNA transference evidence.”

After taking the matter under advisement and reviewing supplemental briefing by the parties, the district court denied George's petition for DNA testing and his K.S.A. 601507 motion. Regarding the petition for DNA testing, the district court denied George's request because “additional testing [of hairs and other materials] would not point to Mr. George's innocence or that he was wrongfully convicted.”

As for George's K.S.A. 60–1507 motion, the district court found that because George's request for relief was “identical to the past request,” his motion should be denied as successive. Nevertheless, the district court opted to consider, in the alternative, the merits of George's ineffective assistance of counsel allegations. The district court found that George's trial counsel was not ineffective because the “use of experts regarding eyewitness identification is discouraged” and “[i]n light of no DNA testing linking [George] to [R.L.],” whether to call a DNA expert “falls in [the] area of [a strategic,] tactical decision.”

George filed this timely appeal.

Denial of Petition for Postconviction DNA Testing

George contends the district court erred when it summarily denied his petition for postconviction DNA testing of hair fibers because, despite the district court's finding to the contrary, such “testing may produce noncumulative, exculpatory evidence relevant to his claim that he was wrongfully convicted.”

Our standard of review provides: “The summary denial of a motion for DNA testing presents a question of law over which [appellate courts] exercise unlimited review. [Citations omitted.] Further, it requires interpretation of K.S.A. 21–2512, and statutory interpretation is also a question of law allowing ... unlimited review. [Citation omitted.]” State v. Johnson, 299 Kan. 890, 892, 327 P.3d 421 (2014).

K.S.A.2014 Supp. 21–2512 governs postconviction DNA testing. It provides, in pertinent part:

“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for ... rape ... may petition the court that entered the judgment for forensic DNA testing (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.”

See State v. Lackey, 295 Kan. 816, 820–21, 286 P.3d 859 (2012) (Lackey II ).

The central question presented by this issue is whether the district court erred in finding, under K.S.A.2014 Supp. 21–2512(c), that DNA testing of the hair samples would not produce noncumulative, exculpatory evidence relevant to George's wrongful conviction claim.

We first address the district court's finding that the hair evidence, if tested and found not to match George's DNA, would not be exculpatory. In reaching its conclusion that “additional testing would not point to ... George's innocence or that he was wrongfully convicted,” the district court noted that State v. Lackey, 42 Kan.App.2d 89, 208 P.3d 793 (2009)( Lackey I), rev'd 295 Kan. 816, provided “an excellent review of the law.” As George points out, however, the district court relied on a definition of “ ‘exculpatory evidence’ “ in Lackey I that was later disapproved in Lackey II.

In Lackey II, the Kansas Supreme Court rejected our court's definition of exculpatory evidence “as being a function of weighing evidence. [Citation omitted.]” 295 Kan. at 823. The Lackey II court found that “evidence is exculpatory when it simply “ “tends to disprove a fact in issue which is material to guilt or punishment.” “ [Citations omitted.]” Johnson, 299 Kan. at 894. Evidence need not be exonerating to be exculpatory; such evidence “must only “ ‘tend [ ] to establish a criminal defendant's innocence.’ “ [Citations omitted.]” 299 Kan. at 894. Moreover, “ ‘DNA testing is intended to confirm or dispute the identity of individuals involved in or at the scene of a purported crime.’ [Citation omitted.] So DNA evidence may be exculpatory if it tends to establish innocence based on an individual's identity.” 299 Kan. at 894.

We conclude the district court erred in relying on Lackey I for its definition of exculpatory evidence. Moreover, following the instruction of our Supreme Court in Lackey II, we are persuaded that if George's DNA was not discovered on hair recovered from the crime scene, the evidence would have some, albeit slight, tendency to show that George was not present at the crime scene. This evidence also would be material especially given George's defense of misidentification.

Next, we consider whether DNA testing of the hair fibers could produce noncumulative evidence that George was not the perpetrator of the crimes against R.L. On appeal, the parties agree that the jury had as evidence a stipulation that “George's DNA was not found on the complaining witness.” Due to the parties' failure to cite to the actual stipulation and/or request the addition of the stipulation to the record on appeal, the precise wording is unknown.

Nevertheless, during the trial both parties addressed the fact that George's DNA was not found on R.L. or associated with the crime scene. During his closing argument, the prosecutor made the following comments: “Now one of the things you might wonder is why wasn't there any DNA.... One of the reasons there may not have been any DNA, he did not ejaculate. If he didn't ejaculate; he didn't put any seminal fluids into her.” Notably, R.L. testified that “as far as [she] knew [she] didn't feel a condom” and she had “no idea” whether her assailant ejaculated.

Similarly, George's trial counsel also referred to the parties' stipulation in both his opening and closing arguments:

“Now I think what is going to be a very important for you, you're not going to hear the witnesses but the evidence is going to be in the form of a stipulation. And the parties have so stipulated, there is no DNA match at all to [George] to this crime scene. Nothing whatsoever.

....

“... Our defense is we weren't there and we didn't do it.... You can tell that with the fact there is no DNA found that matched [George]. Now there was DNA found that matched the young lady's boyfriend or fiance [sic ], but there was nothing that matched [George]'s or anyone else. And you take that, and I know counsel says, well, there may not have been ejaculation, well we may not have planned on those but pretty sure we did at some point in history. And also a thing called preejaculation and all of you are smart enough to know that DNA comes to the point of incredible decision. It doesn't take much to get a sample of DNA that can be tested.” (Emphasis added.)

“ ‘Cumulative evidence is evidence of the same kind to the same point, and whether it is cumulative is to be determined from its kind and character, rather than its effect. [Citation omitted.]” State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012). In the present case, the jury was provided with evidence and argument that George's DNA was not found on R.L. or at the crime scene. That hair fibers found on the floor of the crime scene also were not consistent with George's DNA profile is evidence “of the same kind to the same point.” The DNA markers contained in hair fiber evidence, like the DNA markers found on R.L.'s pants, panties, and rape kit samples, would be of the same kind and character and probative of the same point—that George was not the perpetrator.

We are persuaded that the hair fiber evidence, if tested and shown not to contain George's DNA, would be cumulative evidence and, as a result, such testing was not required under K.S.A.2014 Supp. 21–2512(c). See Hockett v. The Trees Oil Co., 292 Kan. 213, 218, 251 P.3d 65 (2011) (if a district court reaches the correct result, its decision will be upheld even though it relied on the wrong ground for its decision).

Summary Denial of the Second K.S.A. 60–1507 Motion

George contends the district court erred when it summarily denied his second K.S.A. 60–1507 motion without holding an evidentiary hearing. In particular, George insists that he was entitled to such a hearing to address whether his trial counsel provided constitutionally deficient representation by failing to consult with or present experts to testify regarding “the possibility of DNA transference of cellular material other than semen” and the inherent “problems with eyewitness identification[s].” On the other hand, the State counters that George's second K.S.A. 60–1507 motion was untimely and successive.

District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion and make findings of fact and conclusions of law, with respect thereto, unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b) ; Supreme Court Rule 183(f) and (j) (2014 Kan. Ct. R. Annot. 285). It is the movant's burden to allege facts which prove that his or her K.S.A. 60–1507 motion warrants an evidentiary hearing. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). When, as is true in this case, the district court denies relief under K.S.A. 60–1507 based solely upon counsel's legal argument at a nonevidentiary hearing and the court's review of the records of the case, an appellate court is in as good a position as the district court to consider the merits. Therefore, appellate review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).

We conclude the district court did not err in summarily denying George's second K.S.A. 60–1507 motion for two reasons. First, a review of George's second K.S.A. 60–1507 motion is precluded under the doctrine of res judicata.

“ ‘The doctrine of res judicata provides that “where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.’ “ [Citation omitted.]” Grossman v. State, 300 Kan. 1058, 1062, 337 P.3d 687 (2014).

A prior judgment has res judicata effect when four conditions occur: “(1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity in the quality of persons for or against whom the claim is made. [Citation omitted.]” State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361 (2013). In other words, “ ‘ “(1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits.’ “ [Citation omitted.]” Whether res judicata applies is a question of law over which this court exercises unlimited review. 298 Kan. at 344.

The prior judgment on George's initial K.S.A. 60–1507 motion has res judicata effect. First, the cause of action and parties involved were identical—George was the proponent of his position in the previous motion and appeal, while the State was supporting the validity of the district court's rulings and George's convictions. Second, both of George's K.S.A. 60–1507 motions raised allegations of ineffective assistance of counsel; and while George presented additional grounds for relief in his second pleading, the doctrine of res judicata does not only apply to matters which were actually litigated and resolved, it also applies to all matters which could have been litigated by the parties or their privies in that action. See Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175, rev. denied 282 Kan. 797 (2006). In other words, “[t]he doctrine of res judicata prevents a party's attempt to litigate any claim that could have been previously litigated in another action, even if the particular theory argued in the later proceeding was not raised or considered by the court in the previous litigation.” Winkelman v. Tihen, No. 96,488, 2007 WL 2767973, at *5 (Kan.App .2007) (unpublished opinion) (citing Johnson v. Johnson, 26 Kan.App.2d 321, 327–28, 988 P.2d 244 [1999] ; 47 Am.Jur.2d, Judgments § 475, pp. 32–33 ), rev. denied 286 Kan. 1186 (2008). Thirdly, the district court ruled on the merits of George's appeal and initial K.S.A. 60–1507 motion.

There is a second basis upon which to uphold the district court's summary denial of George's second K.S.A. 60–1507 motion—it was successive. Similar to res judicata, district courts are not required to entertain a second or successive K.S.A. 60–1507 motion requesting similar relief on behalf of the same defendant. See K.S.A. 60–1507(c) ; State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) ; Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 285). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief”; thus, the prohibition against successive motions does not only bar claims raised in prior motions, it also prohibits any claims that could have been raised in a prior motion. Trotter, 296 Kan. 898, Syl. ¶ 2. Accordingly, absent a showing of exceptional circumstances justifying the movant's failure to allege a ground for relief in the previous proceeding, a district court may dismiss a successive motion as an abuse of remedy. 296 Kan. 898, Syl. ¶ 2 ; State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011) ; see also Supreme Court Rule 183(d) (providing that “[a] sentencing court may not consider a second or successive motion for relief by the same movant when: [1] the ground for relief was determined adversely to the movant on a prior motion; [2] the prior determination was on the merits; and [3] justice would not be served by reaching the merits of the subsequent motion”).

While the parties on appeal discuss the successive nature of George's K.S.A. 60–1507 motion, they do so in terms of the manifest injustice exception for motions that are untimely under K.S.A. 60–1507(f) rather than the exceptional circumstances exception which may be applicable for successive motions. “Exceptional circumstances have been defined as ‘unusual events or intervening changes in the law.’ [Citation omitted.]” Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009).

George argues that his prior K.S.A. 60–1507 motion should not bar consideration of his current motion because his prior K.S.A. 60–1507 counsel deprived him of his right to be heard by informing the district court that it was unnecessary to hold an evidentiary hearing and he has never raised “the expert issue” in the context of Mullins. According to George, he filed his previous motion pro se and was unaware of all of the potential grounds for relief.

Neither of these explanations qualifies as exceptional circumstances which justify the consideration of George's successive motion. Nor do these explanations address whether George could have raised the applicability of Mullins or the additional ineffective assistance allegations he now advances.

First, although George appealed the denial of his first K.S.A. 60–1507 motion, he did not contend the district court should have conducted an evidentiary hearing on his claims or that the procedures the district court followed were “in any way inconsistent with the preliminary hearing process endorsed in Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).” George v. State, No. 108,060, 2013 WL 196569, at *1 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. 1201 (2013) ( George III ).

Second, Mullins does not qualify as an intervening change in the law, as the opinion was issued in 2002, more than 9 years before George filed his first K.S.A. 60–1507 motion.

Finally, while appellate courts liberally construe pro se pleadings to give effect to the content rather than the form or label of the pleading, Kansas courts still hold pro se litigants to the same procedural and evidentiary rules as licensed attorneys:

“A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se.” Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595–96, 730 P.2d 1109 (1986).

We conclude the doctrine of res judicata and the rule against successive filings of K.S.A. 60–1507 motions bar relitigation of George's ineffective assistance of counsel allegations. George may not use a second K.S.A. 60–1507 pleading as an attempt to “ ‘breathe new life’ “ into issues that were previously determined against him. See Robertson, 298 Kan. at 344–45.

Affirmed.

ATCHESON, J., concurring in part and dissenting in part.

Gregory Mark George has not advanced reasons that would support habeas corpus relief under K.S.A. 60–1507, so I agree with the majority that the Leavenworth County District Court properly denied the motion. But I do not agree that the district court should be affirmed in denying George's request for DNA testing. I respectfully dissent from that part of the majority's decision. The district court imposed too rigorous a standard on George. I would remand to the district court with directions to evaluate the request using the correct legal measure.

As a result of his conviction for rape, George could petition for DNA testing of biological material as provided in K.S.A.2014 Supp. 21–2512. The district court refused testing of hair samples found in the back room of the convenience store where the rape occurred on the grounds the results would not “point to” George's innocence or show that he had been wrongfully convicted. The district court relied on this court's decision in State v. Lackey, 42 Kan.App.2d 89, 208 P.3d 793 (2009), rev'd 295 Kan. 816, 286 P.3d 859 (2012), without acknowledging the Kansas Supreme Court reversed on this very issue.

The Kansas Supreme Court characterized this court's decision as construing K.S.A. 21–2512 to require a showing the DNA testing would produce evidence that “exonerates the defendant when weighed against the other evidence in the case and when viewed in light of the defendant's theory of defense.” 295 Kan. at 823. The court, however, rejected that standard as too stringent an interpretation of the statute. 295 Kan. at 823. But the district court here appears to have used some approximation of the rejected standard in denying George's request for DNA testing of the hair.

DNA testing of biological material should be allowed if the results would produce evidence tending to exculpate the defendant based on the argument advanced for the testing. 295 Kan. at 823–24 (testing should be allowed if it would produce exculpatory evidence, recognizing exculpatory evidenced need not be exonerating evidence). Thus, in this case, George argues that the DNA testing would show the hairs did not belong to him, meaning other people had been at the place where the rape occurred and could have been the perpetrator. As the majority notes, that would seem to be marginally exculpatory, since George denies having had any interaction with the victim. But it would be of limited evidentiary value. The storage area was accessible to store employees and presumably other people having a business purpose for being there. And the hairs could have been present in the storage area for some time before the crime. Nonetheless, the DNA testing seems to be fit the exculpatory-though-not-exonerating standard the Kansas Supreme Court set out in Lackey.

The Lackey decision also recognized that “[t]he district court is charged with the responsibility of assessing the exculpatory and cumulative nature of each item proposed to be tested .” 295 Kan. at 824. I would send the request for DNA testing back to the district court for that purpose.

The stipulation at trial that George's DNA was not found on the victim fails to negate the potential evidentiary value of the hair samples recovered from the storage room. They were not found on the victim and were not within the scope of the stipulation. The stipulation dealt with semen found on the victim's clothing that matched her boyfriend's DNA and the absence of any biological evidence from George. The lawyers argued the stipulation to the jurors that way.

As I understand the stipulation, the parties intended it to substitute for that part of the victim's testimony in George's first trial explaining she and her boyfriend had consensual sexual contact shortly before the rape, accounting for the bodily fluids on her clothing. The district court declared a mistrial in the first trial without submitting the case to the jury because of cumulative problems during that proceeding.

Although the victim testified in the second trial—the one at issue here—the stipulation eliminated the need for her to go into certain facts and for the prosecutor to elicit scientific testimony about the DNA comparison of the semen. Neither the stipulation nor the underlying evidence implicated someone other than George as the rapist. But if DNA testing established the hair samples came from someone other the victim's boyfriend (his hair could have been transferred on the victim's clothing) or from George, that would tend to place a third person at the crime scene, though not necessarily during the crime. Such evidence would appear to be noncumulative and of at least some limited exculpatory character.

Less clear is whether the district court could deny the motion by assuming the DNA testing would show the hair came from a third party—George's contention in favor of the testing—and based on that assumption conclude the evidence would be of so little probative worth that it could not have swayed a reasonable jury to acquit given the evidence actually presented at trial. Both the Kansas Supreme Court and K.S.A.2014 Supp. 21–2512 would suggest not. See K.S.A.2014 Supp. 21–2512(c) (district court “shall order DNA testing” if the testing “may produce noncumulative, exculpatory evidence”); Lackey, 295 Kan. at 824 (indicating that a comparative assessment of the DNA evidence must be done after the actual testing). Consistent with the statutory language, a district court can make that sort of assessment only after the DNA testing has been done.


Summaries of

State v. George

Court of Appeals of Kansas.
Oct 30, 2015
358 P.3d 878 (Kan. Ct. App. 2015)
Case details for

State v. George

Case Details

Full title:STATE of Kansas, Appellee, v. Gregory Mark GEORGE, Jr., Appellant.

Court:Court of Appeals of Kansas.

Date published: Oct 30, 2015

Citations

358 P.3d 878 (Kan. Ct. App. 2015)