State v. Denney, 95,495.

Citation156 P.3d 1275
Decision Date27 April 2007
Docket NumberNo. 95,495.,95,495.
PartiesSTATE of Kansas, Appellee, v. Dale M.L. DENNEY, Appellant.
CourtKansas Supreme Court
156 P.3d 1275
STATE of Kansas, Appellee,
v.
Dale M.L. DENNEY, Appellant.
No. 95,495.
Supreme Court of Kansas.
April 27, 2007.

[156 P.3d 1276]

Carl F.A. Maughan, of Maughan Hitchcock LC, of Wichita, argued the cause and was on the brief for appellant.

Jeffrey E. Evans, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:


Dale M.L. Denney appeals the district court's dismissal of his petition for postconviction forensic DNA testing under K.S.A. 2006 Supp. 21-2512 and of various satellite motions. We transferred his appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Does an actual controversy exist, warranting review? Yes.

2. Did the district court err in dismissing Denney's petition for postconviction forensic DNA testing? No.

3. Did the district court err in dismissing Denney's pro se motions? No.

Accordingly, we affirm the district court.

FACTS

The procedural history was previously set out in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004). The summary relevant to the instant matter is as follows:

"Criminal Acts and Convictions

"Case No. 87 CR 944

"In 1987, Denney was convicted of rape and aggravated burglary. His sentences were of indeterminate length, and his sentence begin date was January 7, 1988. He was paroled on July 20, 1992, and was on parole at the times of the offenses described below.

"Case No. 93 CR 1343

"Among other things, Denney held a steak knife against the throat of his sister-in-law, P.D., and penetrated her anus with his penis. Because these offenses occurred in October 1992, the new Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., did not yet apply. See K.S.A. 21-4723. Accordingly, Denney was charged with, and eventually convicted of a Class B felony, aggravated criminal sodomy; a Class D felony, aggravated sexual battery; and a Class E felony, aggravated

156 P.3d 1277

weapons violation. The sentences for aggravated sexual battery (6-20 years) and aggravated weapons violations (2-10 years) were to run concurrent with each other but consecutive to the aggravated criminal sodomy sentence of 30 years to life.

"Case No. 93 CR 1268

"After beating and choking his former girlfriend, A.L., and placing a belt around her throat, Denney penetrated her anus with his penis. Because these offenses occurred on July 16, 1993, the KSGA did apply. See K.S.A. 21-4723. These charges were consolidated for trial with the charges in 93 CR 1343. Denney was convicted in 93 CR 1268 of aggravated criminal sodomy (severity level 2 person felony), aggravated battery (severity level 4 person felony), aggravated sexual battery (severity level 5 person felony), and aggravated weapons violation (severity level 9 nonperson felony). The accompanying sentences were to run consecutively, for a total of 228 months. They were also to run consecutive to the sentences of 93 CR 1343.

"This court upheld the convictions from both 1993 cases in State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995). Additionally, based upon these additional convictions, Denney's parole in 87 CR 944 was revoked on April 15, 1994.

. . . .

"Motion for DNA testing

"On September 12, 2002, Denney filed a pro se motion requesting that DNA testing be performed in 93 CR 1268 and 93 CR 1343 pursuant to K.S.A.2003 Supp. 21-2512. The trial court denied the motion without appointing counsel and without oral argument, noting that the statute expressly limits testing to those cases in which an offender has been convicted of rape or murder and that Denney had been convicted of neither." 278 Kan. at 643-46, 101 P.3d 1257.

On appeal, this court held that there was no rational basis for allowing postconviction DNA testing for rapists — those convicted of penetration of the female sex organ by the male sex organ when consent is obtained through knowing misrepresentation — and not allowing testing for Denney, who was convicted of aggravated criminal sodomy for penetrating his victims' anuses with his penis through force or fear. Denney, 278 Kan. at 656, 101 P.3d 1257. We held that K.S.A.2003 Supp. 21-2512 violated the Equal Protection Clause because it failed to include Denney's specific situation.

Rather than nullify the statute, we extended it to include DNA testing for conduct like Denney's. We also remanded to the district court for further determination of whether Denney met the remaining qualifications for testing under the statute. 278 Kan. at 660-61, 101 P.3d 1257.

On remand, the district court concluded that because the crimes alleged in 93 CR 1343 — concerning Denney's sister-in-law — were not reported until months after the episode, no evidence existed that could be submitted for DNA testing. However, evidence was available for testing in 93 CR 1268 — concerning Denney's former girlfriend — including rape kit swabs, light blue panties, and one blue washrag. Per the court's order in accordance with 21-2512(c), on March 4, 2005, the evidence was submitted to the Sedgwick County Regional Forensic Science Center (Center) for testing, along with a recent sample of DNA obtained from Denney by law enforcement. The Center's forensic laboratory division is an ASCLD/Lab accredited laboratory. A lab report of the Center's test results was submitted on May 31, 2005.

On July 21, 2005, Denney filed a motion of "judicial notice of defendant's DNA expert witness with motion to extend court's July 22nd & 29th, 2005 hearings and to subpoena DNA expert witness to counter State's erroneous DNA profile." In the motion, Denney asserted that he had acquired the services of Dr. Edward Blake of Richmond, California; that Dr. Blake had reviewed the State's DNA profile; and that Blake "stated said profile is erroneous and inconclusive."

Despite Denney's motion to extend, a hearing was held on July 29, 2005. There, the State summarized the Center's lab report: "[T]here's no — absolutely no question that the semen detected in the rectal swab of the

156 P.3d 1278

victim was the defendant's." While no DNA testing of the victim's light blue panties could be done, semen was detected on the blue washrag and the DNA from the sperm cell fraction obtained there was consistent with Denney's DNA.

The three-page lab report stated that Polymerase Chain Reaction (PCR) DNA analysis had been performed. It specifically provided:

"1. The DNA profile obtained from the sperm cell fraction of the rectal swabs (Q2F2) is a mixture of at least two individuals. The major contributor to this profile is consistent with the profile of Dale M.L. Denney (K1) and the minor contributor is consistent with [A.L.] (K1); therefore, Dale M.L. Denney and [A.L.] cannot be excluded as possible contributors to this profile.

"2. The DNA profile obtained from the sperm cell fraction of the cutting from the blue wash rag (Q5C1F2) is consistent with the profile of Dale M.L. Denney (K3), therefore, Dale M.L. Denney cannot be excluded as the source of this profile. [A.L.] (K1) is excluded as a possible source of this profile.

"3. The DNA profile obtained from the non-sperm fraction of the rectal swabs (Q2F1) is consistent with the profile of [A.L.] (K1), therefore [A.L.] cannot be excluded as the source of this profile. Dale M.L. Denney (K3) is excluded as a possible source of this profile."

The report concluded:

"The probability of selecting an unrelated individual at random from the following population groups who:

"Exhibits a profile that is a potential major contributor to the mixture profile obtained from Q2F2 [rectal swab] and exhibits a matching DNA profile with the profile from Q5C1F2 [blue washrag] . . . is approximately:

 "Caucasian 1 in 120 quintillion.
                 "Black 1 in 2.69 sextillion.
                 "Hispanic 1 in 185 quintillion."
                

The State moved to admit the lab report and supporting documentation, including reports of the chain of custody and the recent acquisition of Denney's DNA through oral swabs. The court admitted the report over defense counsel objections of foundation, best evidence, hearsay, and chain of custody.

Defense counsel also objected to Denney's absence from the proceedings and asked the court to reserve judgment on Denney's petition until Denney had the opportunity to hire his own expert to test the DNA evidence. When the court learned that Dr. Blake had not provided a written report nor was he present to testify, it concluded that Denney had no evidence to submit for the court's consideration.

The State argued that per the plain language of 21-2512(f), because the test results were "unfavorable to the petitioner," the court was required to summarily dismiss his petition and was without jurisdiction to do anything else. It also argued that outside of the parameters established in 21-2512, Denney at any time could conduct his own DNA testing at his own expense.

The district court dismissed Denney's petition, stating "the evidence is very clear that this was Mr. Denney's DNA in the one case [93 CR 1268]." It also dismissed his other pro se motions for lack of jurisdiction, e.g., finding that it possessed no evidence of Dr. Blake's opinions and therefore could not consider the possibility of another hearing at that time.

The district court also ruled that the DNA evidence would be preserved and made "available to any reputable scientist that wants to evaluate it." In this vein, it also ruled that if Denney's family hired Dr. Blake or anyone else and they "like his results better," Denney could file a motion to reopen the petition. The court suggested it could be captioned "motion for new trial based on newly discovered evidence."

Denney timely appealed.

ANALYSIS

Introduction: the statute at issue.

Postconviction forensic DNA testing is governed by K.S.A.2006 Supp. 21-2512. The statute...

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