Sartain v. State, DA 16-0430.

• Decision Date: 05 September 2017
• Docket Number: DA 16-0430.
• Citation: 388 Mont. 421,2017 MT 216,401 P.3d 701
• Parties: Danny SARTAIN, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

388 Mont. 421

401 P.3d 701

2017 MT 216

Danny SARTAIN, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

DA 16-0430.

Supreme Court of Montana.

Submitted on Briefs: May 31, 2017

Decided: September 5, 2017

For Appellant: Danny Sartain, Self-Represented, Deer Lodge, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bozeman, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶ 1 Danny Sartain (Sartain) appeals from an Order entered in the Montana Eighteenth Judicial District Court, Gallatin County, denying his petition for touch DNA testing. We affirm.

¶ 2 Sartain presents the following issue for review:

Whether the District Court properly denied Sartain's petition for touch DNA testing.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In 2009, Sartain was found guilty of burglary, designated a persistent felony offender, and sentenced to forty years in the Montana State Prison. He appealed that conviction to this Court, challenging the district court's denial of his speedy trial claim and also raising ineffective assistance of counsel (IAC) claims. This Court summarized the facts relevant to Sartain's direct appeal as follows:

On March 25, 2008, in Bozeman, Timothy Hop returned from snow skiing and found a male intruder in his house. He chased the man out of his house and called 911. Police were dispatched. A responding officer observed a man matching Hop's description of the intruder jogging down a sidewalk in the area. Another resident of the area, Jason Schutz, was watching the jogging man when the officer stopped and asked Schutz what he was watching. He responded that the jogging man had just jumped the fence in his backyard, cut through a neighbor's yard, and then started running down the street. The officer arrested the jogging man, defendant Sartain, on suspicion of burglary. A short time later, the officer took Sartain back to the scene of the burglary, had him step out of the police vehicle and conducted a "show-up" identification of Sartain first with Hop and then Kristi Helsper, another neighbor who had observed a man jogging down the street after hearing a loud noise. Both stated that Sartain matched the description of the person, but that they were not able to positively identify him. Later at trial, Hop testified that he was positive that Sartain was the intruder.

State v. Sartain , 2010 MT 213, ¶ 4, 357 Mont. 483, 241 P.3d 1032 ( Sartain I ).

¶ 4 Relevant to the instant proceeding, our review of the trial transcript filed in the direct appeal indicates there was testimony that fresh footprints were found around Timothy Hop's (Hop) backyard fence, which were consistent with the tread pattern and size of boot Sartain was wearing when he was apprehended. Hop also discovered fresh "jimmy" marks on the back and front doors to his apartment, which were consistent with use of a pry bar that was found by law enforcement in an alley approximately one block from Hop's apartment. Officers also found a footprint near the pry bar—similar to the other footprints found in the alley, in Hop's backyard, and in Jason Schutz' (Schutz) backyard—which was consistent with the tread pattern and size of boot Sartain wore.

¶ 5 We affirmed the denial of Sartain's speedy trial claim and dismissed the IAC claims without prejudice to Sartain raising them in a postconviction proceeding. The United States Supreme Court denied Sartain's petition for writ of certiorari. Sartain v. Montana , 562 U.S. 1237, 131 S.Ct. 1514, 179 L.Ed.2d 336 (2011). Next, Sartain filed a petition for postconviction relief in district court raising primarily his IAC claims. The district court dismissed Sartain's petition and we affirmed. Sartain v. State , 2012 MT 164, 365 Mont. 483, 285 P.3d 407 ( Sartain II ). On March 29, 2013, Sartain filed a Petition for Performance of Fingerprint Analysis and Testing, which the district court denied with prejudice. Sartain appealed and we affirmed. We concluded that Sartain's claims could have been raised on direct appeal and that Sartain did not meet the exception to the time limitations governing direct appeal and postconviction relief set forth in § 46-21-102(2), MCA, because there was no basis to assume a reasonable jury would not have convicted Sartain with the additional fingerprint analysis evidence. State v. Sartain , 2013 MT 372N, 373 Mont. 443, 318 P.3d 174 ( Sartain III ). Finally, on May 22, 2014, Sartain filed a Motion for Credit for Time Served in the district court seeking 384 days credit toward his sentence for burglary. The district court concluded that Sartain was incarcerated on unrelated offenses and denied his motion. We affirmed. State v. Sartain , 2015 MT 306N, 382 Mont. 407, 363 P.3d 1145 ( Sartain IV ).

¶ 6 The subject of the instant appeal is Sartain's request that touch DNA analysis be conducted on fingerprint evidence collected from the medicine cabinet mirror and rear door of Hop's apartment, areas which Hop believed Sartain had touched. The evidence technician investigating the crime scene, Thomas Weightman, obtained a partial print from these areas, but the prints collected were insufficient to conduct a traditional DNA analysis. Sartain contends that if touch DNA testing of the partial fingerprints revealed DNA that did not match his, there is a strong possibility he would have been exonerated. Sartain, referring to the Innocence Protection Act (IPA), 18 U.S.C. § 3600, and federal precedent holding that touch DNA evidence can constitute new evidence, argues that his request for DNA testing is therefore timely and must be allowed.

¶ 7 The District Court requested briefing from the parties and considered the merits of Sartain's request pursuant to both the IPA and Montana's statute allowing for petitions to perform DNA testing, § 46-21-110, MCA. The District Court concluded that even if the IPA applied to Sartain's request, Sartain failed to set forth a plausible theory under which the DNA evidence would establish his innocence. The District Court noted that failure to establish a plausible theory of innocence was fatal to Sartain's petition under the IPA. The District Court addressed application of § 46-21-110, MCA, and similarly concluded that Sartain had not shown, in light of the evidence produced at trial, there was a reasonable probability that Sartain would not have been convicted if favorable results had been obtained through DNA testing.

¶ 8 We consider the application of the IPA to these proceedings, and resolve Sartain's request by applying the provisions of § 46-21-110, MCA.

STANDARD OF REVIEW

¶ 9 A district court's decision regarding a petition for DNA testing under § 46-21-110, MCA, constitutes a mixed question of law and fact, which we review de novo. Golden v. State , 2014 MT 141, ¶ 14, 375 Mont. 222, 326 P.3d 430. Questions of statutory interpretation are reviewed de novo. State v. Cooksey , 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174 ; United States v. Watson , 792 F.3d 1174, 1177 (9th Cir. 2015).

DISCUSSION

¶ 10 Improvements in the accuracies in building DNA profiles have opened the door to new sources of DNA evidence. Touch DNA is

the genetic information recovered from epithelial (skin) cells left behind when a person makes contact with an object. During the commission of a crime, an assailant can leave touch DNA samples behind ... on a victim's clothing or other items implicated in the crime. Touch DNA testing uses the same ... technology used to test more traditional sources of DNA—blood, semen, saliva, and other bodily fluids—to test recovered epithelial cells. The difference between "traditional" DNA testing—the testing of bodily fluids—and touch DNA testing is that material from which the DNA is collected, not the method by which the DNA sample is analyzed.

Victoria Kawecki, Comment, Can't Touch This? Making a Place for Touch DNA in Post-Conviction DNA Testing Statutes , 62 Cath. U. L. Rev. 821, 828-29 (2013). See also Watson , 792 F.3d at 1177 ; Bean v. State , 373 P.3d 372, 377-78 (Wyo. 2016). Touch DNA testing "is possible even if the sample contains only seven or eight cells from the outermost layer of [ ] skin." Davis Phillips, State v. Carver: A Cautionary Tale about the Use of Touch DNA as Inculpatory Evidence in North Carolina , 49 Wake Forest L. Rev. 1545, 1558 (2014) (internal citations and quotations omitted). Although not specifically addressed, we assume for purposes of this appeal that touch DNA testing was not available at the time of Sartain's prosecution.

¶ 11 Sartain argues that the District Court erred in holding that his petition for touch DNA testing was untimely. The State contends that timeliness was not the basis for the court's ruling. Also, the State argues that, even assuming favorable DNA results, Sartain has failed to show the evidence would be material to the question of whether he was the perpetrator of the burglary.

¶ 12 In 2004, Congress passed the IPA, 18 U.S.C. § 3600, which opened the door to revisiting convictions when DNA left at the crime scene could potentially exonerate the wrongly convicted. The IPA provides that the court "shall order DNA testing" upon "a written...