Richardson v. State

• Citation: 767 So.2d 195
• Decision Date: 14 September 2000
• Docket Number: No. 1998-KA-01090-SCT.,1998-KA-01090-SCT.
• Parties: Tommy RICHARDSON a/k/a Tommye Dewayne Richardson v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

767 So.2d 195

Tommy RICHARDSON a/k/a Tommye Dewayne Richardson v. STATE of Mississippi.

No. 1998-KA-01090-SCT.

Supreme Court of Mississippi.

September 14, 2000.

Joe M. Ragland, Robert O. Waller, Jackson, Attorneys for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

EN BANC.

ON MOTION FOR REHEARING

BANKS, Presiding Justice, for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. In this capital rape case we hold that the trial court erred by failing to grant defendant a lesser-included offense instruction where the lesser offense was charged in the indictment and by denying defendant's request for DNA testing at county expense, where the presence of unidentified seminal fluid was considered throughout this case as further proof of sexual penetration of the victim.

I.

¶ 3. Tommy Richardson was indicted for capital rape and/or lustful touching of a child under Miss.Code Ann. §§ 97-3-65 & 97-5-23. He was convicted in the Lauderdale County Circuit Court of capital rape and sentenced to life in prison.

¶ 4. Richardson, thirty-eight, was charged with raping his cousin, who was twelve years of age, while visiting in the home of relatives. The State presented evidence suggesting that Richardson, who claims to have had mental problems since age six, entered his cousin's bedroom after everyone had gone to bed and proceeded to commit the crime. Richardson argues it was a crime of lustful touching of a child, as he withdrew from the encounter prior to penetration.

¶ 5. Shortly before trial, it was revealed to both the State and the defense that the presence of seminal fluid had been detected on one of the vaginal slides taken with the "rape kit." The defendant sought the funds to conduct DNA testing on that fluid. His request was denied. Nevertheless, throughout the trial the presence of seminal fluid was relied upon as evidence that there had in fact been penetration.

¶ 6. The trial court denied the defendant's request for a lesser offense instruction and denied requests from the jury, made during its deliberations, for further instruction on the definition of penetration and to be allowed to see the victim's statement.¹ The jury then convicted Richardson of capital rape. This appeal ensued.

II.

¶ 7. The standard of review of the trial court's denial of expert assistance is that an abuse of discretion occurred such that the defendant was denied due process whereby the trial was fundamentally unfair. Coleman v. State, 697 So.2d 777, 780 (Miss.1997) (citing Hunt v. State, 687 So.2d 1154 (Miss.1996) (other citations omitted)). "`Undeveloped assertions' that expert assistance will be helpful are insufficient." Id. (citing Griffin v. State, 557 So.2d 542, 550 (Miss.1990)).

¶ 8. On the day before the trial, both parties learned that semen had been found by the state crime lab on one of the slides of material taken from the victim's vagina as part of the rape kit. Richardson requested that the trial court order the DNA testing. Richardson's position was that he was indigent and unable to have the tests done on his own. The trial court denied the motion, finding that Richardson had no evidence that the victim had ever been sexually active. The trial court ruled that there was no justification under the circumstances to order the State to pay for the DNA testing, as Richardson had not even indicated, as of the day before trial, a desire to submit a saliva sample or blood sample. The judge stated he was not going on a "fishing expedition," and he also noted that the State was not going to use a DNA expert in order to convict the defendant.

¶ 9. After the trial, Richardson's mother hired counsel who filed a Motion for DNA Testing and Suspension of Briefing or in the Alternative Motion to Remand to Trial Court for DNA Testing, which was denied by this Court.

¶ 10. A defendant must demonstrate a substantial need in order to justify the trial court expending public funds for an expert to assist the defense. Holland v. State, 705 So.2d 307, 334 (Miss.1997). Concerning the question of appointment of a pathologist and an investigator, this Court held in Holland that the accused must offer concrete reasons, not just undeveloped assertions, that the assistance would be beneficial. Id.

¶ 11. Richardson cites Polk v. State for the proposition that due process considerations require that a defendant who is the subject of DNA testing must have access to an independent expert who can independently evaluate the DNA evidence presented against him. Polk v. State, 612 So.2d 381, 393-94 (Miss.1992). Here, the issue is not whether the defendant was allowed to have an expert to evaluate the DNA evidence, but rather was the defendant denied the right to have the DNA tests administered. Polk is not applicable. Nevertheless, it has never been said that a defendant is only entitled to expert witnesses where the State proposes to put forth experts on the subject.

¶ 12. This Court has held since Polk that "[d]etermination of whether the State must pay for an expert witness for an indigent defendant must be made on a case by case basis." Coleman v. State, 697 So.2d at 782 (citing Davis v. State, 374 So.2d 1293, 1297 (Miss.1979)). "This Court has previously held that DNA evidence is not always valuable enough to warrant a trial delay." Id.; see Rhymes v. State, 638 So.2d 1270, 1274 (Miss.1994)

(holding that trial delay for DNA testing was attributable to the State, but was mere negligence). "Tennessee and North Carolina have held that a criminal defendant must show a `particularized necessity' to justify funds for independent DNA experts or analysis." Coleman v. State, 697 So.2d at 782. "Considering the expense and time required to conduct DNA testing, we will not require the State to pay for DNA testing where there is no showing that it would significantly aid the defense." Id.

¶ 13. In Coleman, the Court held that DNA testing would not aid the defendant. Id. There, the defendant admitted to having sex with the murder victim, who was a prostitute. The Court found that having a DNA test done on the victim would not "significantly aid the defense." Id. The defendant argued that he was not the murderer because the semen (DNA sample) was found in the victim's anus. The defendant argued that he did not have anal intercourse with the victim. Id. The Court held that because the evidence taken from the anal swab did not necessarily connect the murder to the anal sex, the DNA evidence was not particularly helpful. Id.

¶ 14. The Court's holding in Coleman was based on the facts of that case. The facts here are different. Here, Richardson contests the fact of penetration. While most of the evidence supports a finding of penetration, without the seminal fluid evidence that finding rests almost entirely on the testimony of the twelve-year-old victim who admitted that she was in a dreamlike state during a part of the incident. Clearly, the State relied upon the evidence that semen was present for the inference that the defendant did in fact sexually penetrate the girl. The trial court relied upon the presence of seminal fluid in denying a directed verdict and also in denying a lesser-offense instruction.

¶ 15. Under these circumstances the DNA evidence would be relevant and material. It could significantly aid the defense by showing that the semen sample found was not his, thus eliminating the semen as objective evidence of penetration. The fact that it could show otherwise does not diminish its relevance or materiality.

¶ 16. Both the State and the defendant were notified at the same time that there was a seminal DNA sample. The fact that the State did not present DNA results before the jury does not deny the defendant the right to have the evidence tested. The defendant should be permitted to inspect tangible evidence that might be used against him or which might be useful in his defense. Armstrong v. State, 214 So.2d 589, 596 (Miss.1968).

¶ 17. The defendant has a right to have an expert analyze DNA evidence when the State tenders an expert using that evidence. Polk v. State, 612 So.2d at 393-94. The State's consistent reference to the semen, suggesting that it was the defendant's, entitles the defendant to the opportunity to show that it was not his. It strains reason to deny the defendant's request to test evidence which he is entitled to have an expert analyze.

¶ 18. The "determination of whether the State must pay for an expert witness for an indigent defendant must be made on a case by case basis." Davis v. State, 374 So.2d at 1297. In this case, the State should pay.

¶ 19. The Supreme Court of the United States has made it clear that a defendant is entitled to exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, the Court has set out three factors for determining whether a criminal defendant is entitled to the aid of an expert as a "basic tool" for his defense. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Those factors are as follow: 1) the private interest that will be affected by the action interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. 470 U.S. at 77, 105 S.Ct. at 1093.

¶ 20. Applying those factors in this case, it cannot be gainsaid that DNA evidence has become a "basic tool" in criminal proceedings. Here, as stated in Ake, "the private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling." Id. The probative value of the DNA evidence is great. This Court has...