Opinion
ID. No. 9511012975
Submitted: September 13, 2002
Decided: December 20, 2002
Upon Consideration of Defendant's Motion for Postconviction DNA Testing DENIED
John R. Garey, Esq., Dover, Delaware. Attorney for State.
Sandra W. Dean, Esq., Dover, and Lisa M. Schwind, Esq., Wilmington, Delaware. Attorneys for Defendant.
ORDER
Upon consideration of the defendant's motion for postconviction DNA testing, the State's response, and the record of the case, it appears that:
1. On February 27, 1998 the defendant was convicted by a jury of six counts of Unlawful Sexual Intercourse in the First Degree, one count of Unlawful Sexual Contact in the Second Degree and three counts of Unlawful Sexual Penetration in the Third Degree. He was sentenced to life plus 78 years. His conviction was affirmed on appeal. The victim is his daughter, who was less than 16 years of age at the time of the offenses.
2. At trial a comforter from the daughter's bed was introduced into evidence. DNA testing which was done at the time showed that the comforter was stained with a small number of human sperm cells. No conclusion could be reached, however, as to the individual source of the cells. The defendant has now filed a motion for postconviction DNA testing pursuant to 11 Del. C. § 4504 in which he seeks to have the comforter subjected to further DNA testing. After determining that both the defendant and the State have completed their submissions, I am now prepared to decide the motion.
3. Under 11 Del. C. § 4504, a person convicted of a crime may file a motion requesting the performance of DNA testing to demonstrate the person's actual innocence. The motion may be granted if (1) the testing is to be performed on evidence secured in relation to the trial which resulted in the conviction, (2) the evidence was not previously subject to testing because the technology for testing was not available at the time of the trial, (3) the movant presents a prima facie case that identity was an issue in the trial, (4) the movant presents a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, degraded, contaminated, altered or replaced in any material aspect, (5) the requested testing has the scientific potential to produce new, non-cumulative evidence materially relevant to the person's assertion of actual innocence, and (6) the requested testing employs a scientific method which is generally accepted within the relevant scientific community and which satisfies the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence. All six factors must be satisfied in order to grant the defendant's motion.
4. The defendant contends that all of these factors are satisfied in this case. The State agrees that factors (1), (4) and (6) are satisfied. It contends, however, that factors (2), (3) and (5) are not satisfied and that the motion should therefore be denied. I will address factors (2), (3) and (5) only since they are the ones with which the State takes issue.
5. In support of his contention that the evidence was not previously subject to testing because the technology for testing was not available at the time of trial, the defendant states only that DNA testing is now able to be successful in many situations where previously it was inconclusive, and that the State of Delaware Medical Examiner's Office is now capable of doing STR testing. According to the record, however, DNA testing with PCR amplification was performed by the Maryland State Police prior to the defendant's trial; and DNA(PCR) testing with STR amplification was performed by Cellmark Diagnostics Lab prior to trial. No conclusions could be drawn from any of that testing. On this record the defendant has not demonstrated that technology now exists that was not available at the time of the defendant's trial.
6. In support of his contention that identity was an issue at trial, the defendant contends that "the identity of [the daughter's] sexual partner was a major issue in Woods' trial." He contends that the State offered the comforter into evidence to corroborate the daughter's testimony that the defendant had ejaculated on her bed and to create an inference that the sperm cells were those of the defendant. If DNA testing establishes that the donor of the sperm cells is someone other than the defendant, he argues, the new evidence will tend to impeach the daughter's testimony that the defendant ejaculated on her bed. The new evidence, the defendant further contends, will tend to impeach testimony from the daughter that she had not had sexual relations with anyone else. There is reason to believe that the sperm cells may have been from someone else, the defendant contends, because a friend of the daughter was prepared to testify that the daughter had admitted to her that she, the daughter, had sex with her boyfriend once in 1995, when she would have been approximately 15 years of age. The daughter denied having said that to the friend, and the trial judge excluded the friend's testimony under the rape shield statute.
7. The defendant's motion establishes that an issue existed as to whether the sperm cells on the comforter were those of the defendant or someone else, but it does not establish a prima facie case that identity was an issue in the trial. The daughter identified her father as having sexually abused her repeatedly. The issue at trial was whether the defendant did or did not commit the offenses charged. The defendant's identity was not in doubt. Therefore, the defendant's motion fails as to this issue.
8. The defendant's arguments in support of his position that identity was an issue at trial are also offered in support of his contention that the requested testing has the potential to produce new, non-cumulative evidence materially relevant to his assertion of actual innocence. On this point he emphasizes that evidence that the daughter had sexual relations with a boyfriend, coupled with confirmation that the sperm cells on the comforter belonged to someone other than the defendant, would cast grave doubt on the daughter's credibility. For the following reasons, however, the defendant's motion fails as to this issue as well.
9. The fifth factor requires that the testing must have the potential to produce new, non-cumulative evidence materially relevant to the person's assertion of actual innocence. The evidence against the defendant in this case included the testimony of the daughter, who testified that repeated sexual assaults occurred at several places in the house over a period of three years or more, and the testimony of a physician, who testified that the daughter's vagina showed evidence of multiple episodes of sexual intercourse occurring well before the age of 15. As the trial judge stated when he excluded the testimony of the daughter's friend, the relevance of an episode of sexual relations with a boyfriend at age 15 was "minimal." At most, the requested testing would show that the daughter did, or may have, had sexual relations with someone other than the defendant, presumably the boyfriend. If testing were to reveal that the sperm cells were not those of the defendant, however, significant evidence of the defendant's guilt would still remain. New evidence which would tend to weaken the credibility of a witness for the State or weaken the State's case is not sufficient. The new evidence must be materially relevant to an assertion of actual innocence. The potential new evidence involved here does not rise to that level.
10. The defendant's motion for postconviction DNA testing is, therefore, denied.
IT IS SO ORDERED.