State of Kan. v. Lackey, 100,890.

• Decision Date: 19 October 2012
• Docket Number: No. 100,890.,100,890.
• Citation: 295 Kan. 816,286 P.3d 859
• Parties: STATE of Kansas, Appellee, v. Robert Henry LACKEY II, Appellant.
• Court: Kansas Supreme Court

295 Kan. 816

286 P.3d 859

STATE of Kansas, Appellee,

v.Robert Henry LACKEY II, Appellant.

No. 100,890.

Supreme Court of Kansas.

Oct. 19, 2012.

Syllabus by the Court

The plain language of K.S.A. 21–2512 directs that a district court, upon receiving a request from a qualified inmate for DNA testing pursuant to that statute, should initially follow a three-step process: (1) notify the prosecuting attorney that a petition has been made under K.S.A. 21–2512(a); (2) determine whether the biological material sought to be tested qualifies for testing under K.S.A. 21–2512(a)(1)–(3); and (3) determine whether testing may produce noncumulative, exculpatory evidence relevant to the petitioner's claim of wrongful conviction or sentencing. In performing the second and third steps, the district court must assess whether to appoint counsel for an indigent applicant, as provided by K.S.A. 21–2512(e), and whether an evidentiary hearing is required.

Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.

Ellen H. Mitchell, county attorney, argued the cause, and Nicole Romine, assistant county attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

Robert Henry Lackey II appeals from the trial court's summary denial of his petition for DNA testing pursuant to K.S.A. 21–2512. Because we hold that Lackey's petition satisfied the criteria of K.S.A. 21–2512(a) and (c), we reverse and remand for an evidentiary hearing with appointed counsel.

FACTUAL AND PROCEDURAL OVERVIEW

A more complete factual recitation can be found in State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), cert. denied547 U.S. 1056, 126 S.Ct. 1653, 164 L.Ed.2d 399,overruled in part by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). Here, we will provide a brief overview.

In 2002, a jury convicted Lackey of premeditated first-degree murder and rape for acts committed two decades earlier, in December 1982. The victim was a 22-year-old college student who volunteered at the Gospel Mission in Salina where Lackey—then known as Bob Moore—was a transient resident who also worked as a cook.

Lackey was last seen at the mission around 10 or 11 p.m. on December 11, 1982. The following day, Lackey and his personal belongings were gone, except for a pair of men's underwear left under the bed Lackey had been using.

In the same time frame, the victim was last seen by her boyfriend, Jay Czarnowski, on December 9, and last spoken to by her mother and sister on December 10. On December 18, Czarnowski found the victim dead in a closet in the back bedroom of her mobile home. Evidence collected during the investigation of the victim's death included the underwear found under Lackey's bed; swabs from the victim's anal, oral, and vaginal cavities; and scrapings from underneath the victim's fingernails. Lackey also alleges that short hairs were found on the victim's body.

The case remained unsolved until the Kansas Bureau of Investigation (KBI) received information from Canadian authorities in 1996 that a man named Bob Moore had been involved in a homicide in Salina in 1982. The KBI discovered that Bob Moore was an alias for Lackey, and in January 2002 the KBI located Lackey in Alabama. Ultimately, Lackey was extradited to Kansas in March 2002 and put on trial later that year.

At trial, the State proffered the testimony of Lisa Marie Burdett, a forensic scientist with the KBI. Burdett testified that she conducted DNA testing on vaginal, anal, and oral swabs taken from the victim; scrapings from underneath the victim's fingernails; and biological material on the underwear found under Lackey's bed in the Salina mission. Burdett then compared the DNA from these items to known DNA samples of the victim, Lackey, and Czarnowski.

Burdett's testimony established that sperm cells found in the victim's vagina were consistent with Lackey's DNA. The probability of selecting an unrelated Caucasian individual at random with that specific profile is 1 in 194 billion. Additionally, Burdett's testimony established that Lackey could not be excluded as a partial contributor to the DNA profile from the victim's fingernail scrapings, while Czarnowski could be eliminated as a contributor to that sample.

Burdett also testified that she did not compare Czarnowski's DNA to the cutting from the underwear because it was a match with Lackey's DNA. Burdett indicated that under usual circumstances, once there is a match she does not further compare DNA against anyone else, but on occasion she will make further comparisons when there are requests by agents of law enforcement. Burdett did compare Czarnowski's blood to the DNA found on the vaginal swabs from the victim. The results eliminated or excluded Czarnowski as a possible contributor.

Lackey was convicted and sentenced to life in prison on both counts. On appeal to this court, his convictions were upheld, but his sentences under the Habitual Criminal Act were vacated. Lackey, 280 Kan. at 235, 120 P.3d 332. Lackey's resentencing on remand is not in issue here.

On May 16, 2007, Lackey filed a pro se petition for DNA testing pursuant to K.S.A. 21–2512. In the petition, Lackey asserted that the prior DNA test results were incompetent for a number of reasons, including the cross-contamination of male and female samples. He complains that some of the results were not compared against the DNA of the victim's boyfriend, Czarnowski. The motion asked that a DNA expert of Lackey's choosing be allowed to examine the DNA test procedures utilized, as well as the evidence samples and test results, in order to allow Lackey to make an informed and intelligent request for further testing. Lackey specifically requested the following testing:

“1) Re-test DNA of fingernail scrapings;

“2) Test underwear for semen of defendant AND vaginal fluid of alleged victim;

“3) Test all evidentiary DNA samples against Czarnowski; and

“4) Test the short hairs found on the alleged victim's body.”

On May 30, 2007, the district court summarily denied Lackey's petition, determining that the DNA evidence was properly offered and admitted by the court; that the DNA techniques used by the State were representative of the latest techniques available; that Lackey failed to show that more accurate techniques were available; and that Lackey's petition failed to state a cause of action upon which relief could be granted pursuant to K.S.A. 21–2512. After the district court denied Lackey's motion for reconsideration, he appealed to the Court of Appeals.

The Court of Appeals held that the defendant was “unable to establish that the DNA samples collected in this case were capable of producing noncumulative, exculpatory evidence relevant to his claim that he was wrongly convicted of the premeditated murder and rape [of the victim.]” State v. Lackey, 42 Kan.App.2d 89, 101, 208 P.3d 793 (2009). The panel relied on the fact that Lackey's DNA was consistent with the DNA found in the victim's vagina and underneath the victim's fingernails to opine “that testing of the biological evidence could not produce noncumulative, exculpatory evidence.” 42 Kan.App.2d at 102, 208 P.3d 793. We granted Lackey's petition for review.

STATUTORY REQUIREMENT FOR DNA TESTING

Lackey argues on appeal that the district court ignored the plain meaning of K.S.A. 21–2512 in ruling on his petition for DNA testing. Specifically, Lackey complains that the district court failed to notify the prosecuting attorney of the petition, as required by K.S.A. 21–2512(b)(1), and that both the trial and appellate courts ignored the clear meaning of K.S.A. 21–2512(a)(3) with respect to the summary denial of his petition for DNA testing of the short hair and bloodstain evidence. In response, the State argues that Lackey's petition was inadequate under K.S.A. 21–2512 and that Lackey failed to adequately brief his argument for DNA testing of the short brown hairs found on the victim's body.

Standard of Review

The summary denial of a request for DNA testing under K.S.A. 21–2512 presents a question of law over which this court has unlimited review. Wimbley v. State, 292 Kan. 796, 810, 257 P.3d 328 (2011). Additionally, the interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

Analysis

As noted above, Lackey's petition specifically requested the following testing: (1) retesting of fingernail scrapings; (2) testing of underwear for Lackey's semen and the victim's vaginal fluid; (3) testing of all evidentiary DNA samples against Czarnowski's DNA; and (4) testing of the short hairs found on the victim's body. We begin by considering the initial, pretesting statutory procedure to be followed upon the filing of a DNA testing request under K.S.A. 21–2512. The relevant provisions of K.S.A. 21–2512 are as follows:

“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21–3401, and amendments thereto, or for rape as defined by K.S.A. 21–3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:

(1) Is related to the investigation or prosecution that resulted in the conviction;

(2) is in the actual or constructive possession of the state; and

(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.

“(b)(1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond.

(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material...