State v. Denney, 95,495.
| Decision Date | 27 April 2007 |
| Docket Number | No. 95,495.,95,495. |
| Citation | 156 P.3d 1275 |
| Parties | STATE of Kansas, Appellee, v. Dale M.L. DENNEY, Appellant. |
| Court | Kansas Supreme Court |
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
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.
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:
. . . .
"Motion for DNA testing
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 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:
The report concluded:
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 ." 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.
Introduction: the statute at issue.
Postconviction forensic DNA testing is governed by K.S.A.2006 Supp. 21-2512. The statute allows an inmate convicted of certain crimes to request...
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