Osborne v. State

• Decision Date: 06 July 2007
• Docket Number: No. A-8399.,A-8399.
• Citation: 163 P.3d 973
• Parties: William G. OSBORNE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

163 P.3d 973

William G. OSBORNE, Appellant, v. STATE of Alaska, Appellee.

No. A-8399.

Court of Appeals of Alaska.

July 6, 2007.

Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, for the Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Marquez, Attorney General, Juneau, for the Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

COATS, Chief Judge.

More than a decade ago, William G. Osborne and his friend, Dexter Jackson, were convicted of kidnapping, first-degree assault, and first-degree sexual assault stemming from an attack on an Anchorage prostitute. This Court affirmed both men's convictions on direct appeal.¹

The current appellate litigation arises from Osborne's post-conviction request for further DNA testing of certain physical evidence in his case.

In our previous decision in this matter, Osborne v. State,² we declined to decide whether defendants in Alaska have a due process right to demand post-conviction DNA testing of physical evidence. However, we declared that, at a minimum, a defendant would have to establish three things before claiming entitlement to post-conviction DNA testing: (1) that the defendant's conviction rested primarily on eyewitness identification; (2) that there was a demonstrable doubt concerning this identification; and (3) that scientific testing of physical evidence would likely be conclusive on the issue of whether the defendant was the perpetrator of the crime.³

Having established this three-part test, we remanded Osborne's case to the superior court so that the parties could litigate whether, under the facts of Osborne's case, this test was satisfied.⁴ After considering this matter, Superior Court Judge Sharon L. Gleason concluded that Osborne had failed to establish any of the three factors that we set forth in Osborne. Accordingly, she entered an order denying Osborne's further request for DNA testing.

Osborne now appeals that decision. For the reasons explained here, we affirm Judge Gleason's ruling.

The underlying facts of Osborne's criminal case

In order to explain why we agree with Judge Gleason's ruling, we must recount the evidence presented at Osborne's trial in the underlying criminal case. The following account is taken from our decision denying Osborne's direct appeal, with some additional details taken from Judge Gleason's written findings.

On the night of March 22, 1993, Osborne and Jackson invited K.G. into Jackson's car, promising her that they would pay $100 for oral sex. The two men took K.G. to a secluded spot at the western end of Northern Lights Boulevard. During the ride along Northern Lights Boulevard, Osborne and Jackson asked K.G. if she was armed. When she told them that she had a Swiss army knife, the men asked if they could look at the knife. They then took the knife from her and placed it on the car's dashboard.

Jackson stopped the car at the end of Northern Lights Boulevard, and the men then asked K.G. to perform fellatio on each of them. When K.G. told Osborne and Jackson that she would not perform without first being paid, Osborne pointed a gun at her and told her, "I think you will."

Osborne and Jackson took what little money K.G. had, made K.G. strip, and then had sex with her against her will. Osborne then ordered K.G. to get out of the car and lie face-down in the snow. When K.G. refused to leave the car and began pleading for her life, Jackson hit her in the head with the gun. Osborne then began to choke her. In fear for her life, K.G. defecated on the front passenger seat of Jackson's car. Osborne scooped up some of the excrement and rubbed it in K.G.'s face, hair, and clothing. K.G. fled from the car, but the two men took a piece of wood, probably an axe handle, from the back of the car and began to strike K.G. on her head and ribs. When K.G. tried to run away, Osborne battered her knees repeatedly, yelling "Go down, bitch; go down."

Osborne and Jackson hit and kicked K.G. until she fell down. Jackson continued to hit K.G. in her pubic area with a stick even after she had fallen. At one point, Osborne allowed K.G. to stand up, but he then hit her in the head with the axe handle.

K.G. decided to pretend that she was dead; she curled up in the snow and stopped moving. She heard a gun discharge, and she felt a bullet graze her head. (K.G. believed, based on glimpses of her assailants' feet and of Osborne's sweatsuit, that it was Osborne who shot her.) After firing this shot, Osborne and Jackson buried K.G. in the snow, apparently believing that she was either dead or dying.

Even after K.G. heard Jackson's car drive away, she continued to lie under the snow for a time, to make sure that her attackers had really left. Then she got up and started walking toward town. After walking for a short while, K.G. was able to flag down a passing automobile. K.G. told the driver and the passenger what had happened to her; she described the men who had attacked her, and the car that they were driving. K.G. asked to be taken home, because she wished to avoid the police. The driver of the car complied with her request.

At about the same time that K.G. was making her way home, witnesses saw Osborne and Jackson together. Some of these witnesses observed that there was blood on Osborne's clothing.

The next day, a neighbor of one of the occupants of the car that had taken K.G. home reported to the police what K.G. had said about this incident. When the police contacted K.G., she was initially uncooperative, but she ultimately described what had happened to her, and she turned over the clothes that she had been wearing. These clothes were soiled with feces. K.G. also underwent a physical examination, and most of her injuries were photographed.

Five days later, in the early morning of March 28, 1993, the military police on Fort Richardson stopped Jackson's car. The military police initially stopped Jackson because he had been flashing his headlights at a pickup driving in front of him. However, the police observed that Jackson's vehicle resembled composite drawings that had been circulated by the Anchorage Police Department, based on K.G.'s description of her attackers' car. When Jackson opened his glove compartment to retrieve his vehicle registration, one of the military police officers saw a gun case. This discovery led to a search of Jackson and his vehicle.

The gun case contained Jackson's .380 caliber semi-automatic pistol. And, during their search of Jackson's person, the military police found K.G.'s Swiss army knife. (This knife was uniquely marked and dented, and K.G. was able to identify it.)

The military police seized Jackson's car and turned it over to the Anchorage police, along with the items of evidence found during the searches of the car and Jackson's person. During their subsequent search of the vehicle, the Anchorage police found a bottle of perfume that K.G. had been carrying on the night of the assault. The police also detected blood in the car. When this blood was tested for DNA at the DQ alpha locus, the testing showed that the DNA in the blood sample matched K.G.'s DNA at that same site (i.e., the DQ alpha locus). This DNA type occurs in less than 5% of white females. In addition, when the police tested the sweaters that K.G. had been wearing that night, they found fibers matching the carpeting in Jackson's vehicle, as well as a pubic hair that was later found to have the same characteristics as Osborne's pubic hair.

K.G. later identified both Osborne and Jackson in separate photographic lineups. She also identified Jackson's car.

When the police conducted a search of the scene of the assault on March 23rd (following their initial interview with K.G.), they discovered an area of disturbed and bloody snow, as well as two pairs of K.G.'s gray stretch pants, which were also bloody. The officers observed tire tracks at the scene—tracks which were later found to match the tires on Jackson's vehicle. In addition, the police found an expended round of .380 ammunition; forensic testing later showed that this round had been fired from Jackson's gun.

The police also discovered a used blue condom near the scene. A pubic hair taken from this blue condom had the same characteristics as Osborne's pubic hair. In addition, sperm found in the condom matched Osborne's DNA type at the DQ alpha locus— a DNA type that is shared by about one-sixth (between 14.7% and 16%) of the African-American population.

Osborne's request for additional testing of the blue condom as part of his petition for post-conviction relief

After this Court affirmed Osborne's convictions on direct appeal, Osborne filed a petition for post-conviction relief. In this petition, Osborne asserted that he had received ineffective assistance of counsel from his trial attorney, Sidney Billingslea. Osborne's primary allegation was that Billingslea acted incompetently when she decided not to seek further DNA testing of the blue condom.

As just explained, forensic testing of the sperm found in this condom revealed that the DNA strand at the DQ alpha locus matched Osborne's DNA type at the same locus. This finding tended to link Osborne to the crime, but it was not conclusive—because approximately one-sixth of the African-American population shares this same DNA type.

The DNA testing of this sperm was conducted using a method known as "polymerase chain reaction" (PCR).⁵ At the time of Osborne's trial, more discriminating methods of DNA testing were available. These methods might have excluded Osborne as the source of the sperm—or, conversely, they might have identified him more conclusively as the source of the sperm. Billingslea chose not to pursue further testing.

Responding to Osborne's allegation that this decision demonstrated incompetence, Billingslea explained that she had actively explored the possibility of having the physical evidence...