Hudson v. State

• Citation: 190 S.W.3d 434
• Decision Date: 28 March 2006
• Docket Number: No. WD 64725.,WD 64725.
• Parties: Greggory HUDSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

190 S.W.3d 434

Greggory HUDSON, Appellant, v. STATE of Missouri, Respondent.

No. WD 64725.

Missouri Court of Appeals, Western District.

March 28, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2006.

Application for Transfer Denied May 30, 2006.

Phillip R. Gibson, Blue Springs, MO, Ellen Y. Suni, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before EDWIN H. SMITH, C.J., and LOWENSTEIN and HOWARD, JJ.

EDWIN H. SMITH, Chief Judge.

Greggory Hudson appeals from the order of the circuit court overruling, without issuing a show cause order or conducting an evidentiary hearing, his post-conviction motion for DNA testing, as authorized by § 547.035.¹ In 1996, the appellant was convicted, after a jury trial in the Circuit Court of Jackson County, of first-degree murder, in violation of § 565.020, and armed criminal action (ACA), in violation of § 571.015, for which he was sentenced to consecutive prison sentences, in the Missouri Department of Corrections, of life without parole and life, respectively. In his motion, the appellant sought to have DNA testing done on certain evidence concerning CW, who in 1997, was shot and killed in an unrelated incident and was characterized by the appellant as an "alternative perpetrator" of the offenses for which he was convicted and incarcerated in this case, to establish CW's DNA profile to compare to the profile of a cigarette butt found at the scene of the crimes.

The appellant raises two points on appeal. In Point I, he claims that the motion court clearly erred in overruling his § 547.035 post-conviction motion for DNA testing, without issuing a show cause order or conducting an evidentiary hearing, based on its finding that the motion and the files and records of the case conclusively showed that the appellant was not entitled to relief under the statute since he could not establish, as required by § 547.035.2(2), that the evidence upon which he requested DNA testing was "secured in relation to the crime," because "§ 547.035 R.S.Mo. does not require, and should not require, that all of the evidence requested to be tested with DNA technology be secured in relation to the crime." In Point II, he claims that the motion court clearly erred in overruling his § 547.035 post-conviction motion for DNA testing, without issuing a show cause order or conducting an evidentiary hearing, based on its finding that the motion and the files and records of the case conclusively showed that the appellant was not entitled to relief under the statute since he could not establish, as required by § 547.035.2(5), that if exculpatory results were obtained from the requested DNA testing, a reasonable probability existed that he would not have been convicted, because:

if the jury had been presented with the results of DNA testing identifying the person who smoked the cigarette butt as CW or (any other African-American male meeting the description offered by the sole eyewitness to the shooting) who had access to a blue Cadillac with Kansas License plates, there is a reasonable probability appellant would not have been convicted.

We affirm.

Facts

On May 1, 1996, the appellant, after a jury trial, in the Circuit Court of Jackson County, Missouri, was convicted of first-degree murder and ACA and was sentenced to consecutive prison sentences of life without parole and life, respectively. The appellant appealed his convictions to this court. We affirmed his convictions on June 24, 1997, in State v. Hudson, 950 S.W.2d 543 (Mo.App.1997), summarizing the facts:

On November 14, 1994, firefighters from Kansas City, Missouri, were sent to a truck fire located at Tenth and Olive. A deceased man, Roderick Morgan, was discovered lying in the seat of a water department truck. He had been shot. Upon opening the truck door, police observed a spent shell casing fall from inside the truck.

Kansas City, Missouri, detectives interviewed Bruford Logan who lived near the scene. Mr. Logan reported that he saw a water department truck stop on his street and a blue Cadillac drive up behind it. A tall, slender, brown-skinned man exited the car and went to the water truck. Mr. Logan said he heard three or four shots and saw the man return to the Cadillac and leave.

Police obtained seven shell casings from the scene — three on the ground, two on the driver's seat, one on the victim and one on the truck's floorboard. A spent bullet was located in the right door interior. Detectives also lifted a latent palm print from the exterior left door above and forward of the chrome handle.

A search warrant was executed on November 18, 1994, at Mr. Hudson's home. Two shell casings were recovered from the driveway of the house. Mr. Hudson's brother, Claude Hudson, present at the search, explained that the casings were a result of Mr. Hudson's firing shots into the air.

Police analyzed the bullets and shell casings and concluded that the three bullets recovered from the victim and the bullet and casings taken from the truck as well as the two casings from Mr. Hudson's home were fired by the same .40 caliber weapon. Police also examined the latent palm print found on the truck and concluded that it was from Mr. Hudson's left palm. The state's fingerprint expert testified that rain would have washed away the print. Rain fell on November 13, 1994, the day before the murder, and the water truck was stored in the outdoor lot exposed to the elements.

Id. at 545.

In addition to the shell casings and the palm print, Melanie Hart, a crime scene technician with the Kansas City, Missouri, Police Department collected a brown cigarette butt from the ground near where the shooter was standing when he shot the victim. Logan had told the police that the shooter had a cigarette in his mouth. DNA analysis of the cigarette butt, admitted at trial, established that the profile on the cigarette butt did not match either the profile of the victim or the profile of the appellant.

The appellant filed a timely Rule 29.15² motion for post-conviction relief, alleging ineffective assistance of counsel, which was denied by the motion court, without an evidentiary hearing. The appellant appealed the motion court's ruling to this court in Hudson v. State, 35 S.W.3d 876 (Mo.App. 2001). On January 23, 2001, we affirmed the motion court, pursuant to Rule 84.16(b). Id.

On March 13, 2003, the appellant filed a post-conviction motion for DNA testing, pursuant to § 547.035, requesting DNA testing of certain evidence concerning CW, who he characterized as an "alternative perpetrator" of the offenses for which the appellant was convicted and incarcerated. As noted in the facts, supra, in order to obtain a DNA profile for CW to compare to the profile obtained on the cigarette butt, he sought to test the blood on the clothing that CW was wearing when he was shot to death on May 1, 1997, or in the alternative, he requested DNA testing of the "bodily fluids" that were drawn from CW. As a further alternative, he sought the DNA profile of CW that may have been available in the CODIS database of the Kansas Bureau of Investigation. The appellant alleged that the requested testing would demonstrate his innocence of the crimes for which he was in custody.

A show cause order was issued to the Prosecuting Attorney of Jackson County to appear on February 5, 2004, and show cause why the requested testing should not be issued. On January 21, 2004, after a written response by the prosecutor had been filed to the show cause order, the motion court withdrew its show cause order and denied the appellant's motion, without an evidentiary hearing.

On January 29, 2004, the appellant filed a motion for reconsideration by the motion court of its denial of his motion. On February 2, 2004, the court vacated its order overruling the appellant's motion and granted leave to the appellant to file an amended motion, which he filed on February 23, 2004. On October 6, 2004, the amended motion was denied without a show cause order being issued or an evidentiary hearing being conducted.

This appeal follows.

Standard of Review

A motion for DNA testing, pursuant to § 547.035, is a post-conviction motion, governed by the rules of civil procedure. § 547.035.1; Weeks v. State, 140 S.W.3d 39, 43-44 (Mo. banc 2004). Section 547.035 does not set out a standard for appellate review of the motion court's rulings on such motions. However, because Rules 29.15 and 24.035 set out the applicable standard of review for other post-conviction motions, it is appropriate to apply that standard to the review of the denial of a post-conviction motion for DNA testing under § 547.035. Weeks, 140 S.W.3d at 43-44.

Our review of a denial of a post-conviction motion under Rules 29.15 and 24.035 is limited to a determination of whether the motion court's findings of fact and conclusions of law were clearly erroneous. Id. at 44. Hence, our review here is to determine whether the motion court's findings of fact and conclusions of law, in denying the appellant's motion, were clearly erroneous. Id. "The motion court's findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made." Id. (quoting State v. Brown, 998 S.W.2d 531, 550 (Mo. banc 1999)).

I.

In Point I, the appellant claims that the motion court clearly erred in overruling his § 547.035 post-conviction motion for DNA testing, without issuing a show cause order or conducting an evidentiary hearing, based on its finding that the motion and the files and records of the case conclusively showed that the appellant was not entitled to relief under the statute since he could not establish, as required by § 547.035.2(2), that the evidence upon which he requested DNA testing was "secured in relation to the crime," because "§...