Gordon v. State, 032316 UTSC, 20140345

Docket Nº:20140345
Opinion Judge:LEE, ASSOCIATE CHIEF JUSTICE
Party Name:Adrian Gordon, Petitioner, v. State of Utah, Respondent.
Attorney:Troy L. Booher, Beth E. Kennedy, Jensie L. Anderson, Salt Lake City, for petitioner. Sean D. Reyes, Att'y Gen., Andrew F. Peterson, Ass't Att'y Gen., Salt Lake City, for respondent.
Judge Panel:Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Justice Himonas joined. Justice John A. Pearce
Case Date:March 23, 2016
Court:Supreme Court of Utah
 
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2016 UT 11

Adrian Gordon, Petitioner,

v.

State of Utah, Respondent.

No. 20140345

Supreme Court of Utah

March 23, 2016

On Direct Appeal Third District, Salt Lake The Honorable Paul G. Maughan No. 130908310

Troy L. Booher, Beth E. Kennedy, Jensie L. Anderson, Salt Lake City, for petitioner.

Sean D. Reyes, Att'y Gen., Andrew F. Peterson, Ass't Att'y Gen., Salt Lake City, for respondent.

Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Justice Himonas joined.

Justice John A. Pearce became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.

OPINION

LEE, ASSOCIATE CHIEF JUSTICE

¶1 This case and its companion, Meinhard v. State, 2016 UT 12, present issues of first impression under Part 3 of the Post-Conviction Remedies Act (PCRA). Utah Code §§ 78B-9-300 to -304. In this case Adrian Gordon's petition for postconviction DNA testing was denied on the basis of the State's assertion that Gordon had declined to request DNA testing at the time of the underlying trial for " tactical reasons." Id. § 78B-9-301(4). We reverse and remand on procedural grounds. We hold that Gordon was entitled to file a memorandum in opposition to the State's motion to dismiss the petition. We also clarify the operative burdens of pleading and proof on the question whether the petitioner declined DNA testing at trial for " tactical reasons, " and provide guidance as to the meaning of the " tactical reasons" clause.

I

¶2 Adrian Gordon was convicted of murder in 2002. After we affirmed his conviction in 2004, State v. Gordon, 2004 UT 2, 84 P.3d 1167, Gordon filed a petition under Part 3 of the PCRA, see Utah Code § 78B-9-300 to -304. His petition seeks DNA testing on previously untested items from the scene of the murder in an effort to prove his factual innocence.

¶3 Gordon has identified several items found at the scene of the crime that allegedly could contain the true killer's DNA: the victim's wallet and pants pocket, a pair of sunglasses, two Big Gulp cups left near the victim's body, and a bloody slab of cement that may have been used as the murder weapon. If each piece of evidence produces DNA from the same third party (not Gordon), Gordon posits that the DNA testing would " significantly undermine the prosecution's theory." Petition for Post-Conviction DNA Testing at 6. And he claims that such testing could establish his factual innocence in light of the largely circumstantial case presented against him at trial.

¶4 Gordon's petition set forth the pleading elements enumerated in section 301(2) of the PCRA. See Utah Code § 78B-9-301(2). It also included an allegation addressed to section 301(4), which forecloses DNA testing if the petitioner failed to seek DNA testing at trial for " tactical reasons." Id. § 78B-9-301(4). On this matter Gordon asserted that he " did not fail to request testing of the above-described evidence at the time of trial for tactical reasons." Petition for Post-Conviction DNA Testing at 7 But he failed to offer any further explanation of this assertion, either in the petition or in the supporting memorandum.

¶5 After Gordon filed his petition, the State filed a response asking the district court to dismiss Gordon's petition. In its response, the State alleged that Gordon failed to demonstrate that he had not declined DNA testing at trial for " tactical reasons" under the terms of section 301(4). Id. § 78B-9-301(4). And the State identified a specific tactical reason that it sought to attribute to Gordon-that he declined to request DNA testing so that he could use the absence of testing to undermine the prosecution's case. In support, the State pointed to the fact that Gordon's counsel had asked a police detective on cross-examination whether DNA testing was done, and referred to the lack of DNA evidence in closing arguments in an effort to undermine the prosecution's case. In the alternative, the State also claimed that even if Gordon could satisfy section 301(4), he could not satisfy his burden under 301(2)(f) of proving that the evidence he sought to test had " the potential to produce new, noncumulative evidence that will establish [his] factual innocence." Id. § 78B-9-301(2)(f).

¶6 The district court dismissed Gordon's petition twenty days after the State's response was filed. It did so before Gordon had an opportunity to oppose the State's filing, and without holding a hearing or conducting any additional fact-finding. In the dismissal order the court explained that it was dismissing the petition because Gordon failed to establish a non-tactical reason for declining DNA testing at trial under section 301(4). The order did not address the State's arguments regarding section 301(2)(f).1

¶7 After the district court entered its order, Gordon filed a motion for reconsideration. In that motion Gordon asserted that (1) the court should have allowed Gordon to reply to the State's response before dismissing the petition, and (2) the State bears the burden of establishing a tactical reason for Gordon's failure to request DNA testing. In support of that motion, Gordon submitted a declaration stating that his failure to request testing " was not a tactical . . . decision, " explaining that he did not realize that the evidence in question could be subject to DNA testing and insisting that he could not afford such testing in any event. Memorandum in Support of Petitioner's Motion for Reconsideration at Exhibit B.

¶8 The district court denied Gordon's motion for reconsideration on three grounds. It first noted that motions for reconsideration " are not recognized by the Utah Rules of Civil Procedure." Minute Entry and Order (April 9, 2014). Second, the court concluded that the PCRA does not explicitly give a petitioner a right to reply to a response by the State. And third, the court stated that Gordon's motion " still [did] not address the clear statutory mandate that prohibits the [c]ourt from ordering DNA testing where it 'was available at the time of trial and the person did not request DNA testing . . . for tactical reasons.'" Id.

¶9 Gordon filed this appeal. In challenging the district court's decision, Gordon raises a series of threshold questions of law-as to whether a petitioner under Utah Code section 78B-9-301 has a right to file a reply to the State's opposition, who bears the burden of proof on alleged " tactical reasons" for not seeking DNA testing at trial, and what is the proper interpretation of the term " tactical reasons." We consider those questions de novo, without any deference to the district court. Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d 1115.

II

¶10 Gordon challenges the dismissal of his petition for DNA testing on both procedural and substantive grounds. As to procedure, Gordon claims that the district court erred in refusing to allow him an opportunity to file a response in support of his petition and in assigning him the burden of proof on the question whether he declined to request DNA testing at the underlying trial for " tactical reasons." As for substance, Gordon claims the court erred in its determination that his decision not to request such testing was " tactical" under the terms of the statute.

¶11 We reverse on procedural grounds. We hold that Gordon was entitled to file a response to the State's opposition to his petition under Utah Rule of Civil Procedure 65C, and remand to give him an opportunity to do so. In so doing, we resolve two other matters that were briefed on appeal and are likely to arise on remand. We hold that the question whether DNA testing was declined for " tactical reasons" is a matter on which the State bears the burden of pleading but the petitioner bears the burden of proof. And we clarify the interpretation of the " tactical reasons" that may foreclose a petition for DNA testing.

A

¶12 The procedure for filing and disposition of a petition for DNA testing is governed by statute and also by rule. By statute, a petitioner seeking postconviction DNA testing must file a petition " assert[ing] factual innocence under oath" and alleging that a series of statutory conditions are met. Utah Code § 78B-9-301(2). The petitioner is also required to " serve notice upon the office of the prosecutor who obtained the conviction" and " upon the Utah attorney general." Id. § 78B-9-301(6)(a). And " [t]he attorney general shall, within 30 days after receipt...

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