State v. George

• Decision Date: 08 June 2018
• Docket Number: No. 112,224,112,224
• Parties: STATE of Kansas, Appellee, v. Gregory Mark GEORGE, Jr., Appellant.
• Court: Kansas Supreme Court

418 P.3d 1268

STATE of Kansas, Appellee,

v.Gregory Mark GEORGE, Jr., Appellant.

No. 112,224

Supreme Court of Kansas.

Opinion filed June 8, 2018.

Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.

Todd G. Thompson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The decision of the court was delivered by Nuss, C.J.:

Gregory Mark George, Jr. appeals the denial of his petition for postconviction DNA testing filed under K.S.A. 2015 Supp. 21-2512. The majority of a panel of the Court of Appeals affirmed the district court's denial.

George argues both lower courts erred because the testing of hair from the crime scene may have indeed produced exculpatory evidence that was "noncumulative" as required by the statute. We agree with George. So we reverse and remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

George was convicted by a jury of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. The basic facts as established in the direct appeal of his convictions include:

"R.L., a clerk at a Lansing convenience store, testified that on December 21, 2004, George entered the store, told R.L. he 'wanted the money,' and showed her a gun. R.L. handed George cash from the register, which he stuffed in his pockets. Then, holding the gun at the back of her head, George pushed R.L. into the storeroom at the back of the store and raped her.

"George left after he heard a bell, signaling that a customer had entered the front of the store. Before leaving, however, George told R.L. that he would kill her and her children if she told police about the incident. R.L. remained in the storeroom until she was found by customers, who contacted police. After police arrived, R.L. was briefly interviewed, then taken to the hospital and examined.

"A few days later, R.L. identified George in a photo identification lineup. She also viewed the video from the store's recording system and recognized George robbing her and forcing her to the storeroom.

"Lansing police officer Anthony Waterman later linked George to a complaint from Amanda Yoho, a clerk at another local convenience store. Officer Waterman asked Yoho to contact him when George next appeared at the store, which she did. Officer Waterman spotted George driving near the store, followed him for a short distance, and then pulled him over and arrested him." State v. George , No. 97679, 2008 WL 4471431, at *1 (Kan. App. 2008) (unpublished opinion).

The record reflects the rape occurred in front of the storeroom's sink near a hot water heater. From the floor near that heater a Lansing police officer collected 10 pieces of hair and fiber evidence which were eventually turned over to the department's evidence custodian. The hair was never tested by the Kansas Bureau of Investigation (KBI). Through use of a rape kit, an examination was performed on R.L. and fluid was collected. This was later identified as seminal fluid, which was also found on R.L.'s pants and underwear.

George's first trial ended in a mistrial. There, the State called the nurse who had administered R.L.'s rape kit, the forensic scientist who processed the evidence once the KBI received it, and the forensic scientist who conducted the DNA testing on the fluids. Per testimony, George's DNA was not found in any of the samples tested from the rape kit or R.L.'s clothing. But testing results of the fluid samples were consistent with R.L.'s boyfriend's DNA.

At the retrial, however, none of these witnesses testified about the DNA evidence. Accordingly, there was no testimony regarding the rape kit or the subsequent DNA testing other than an officer's testimony that he was present in the hospital when the rape kit contents were collected. And the DNA testing results showing consistency with R.L.'s boyfriend were not admitted into evidence. Apparently, this evidence was meant to be replaced by a stipulation that was presented to the jury. But the stipulation is not included in the record on appeal, whether by the document itself or by a transcript reciting its specific contents.

The majority of the evidence on retrial concerned R.L.'s testimony combined with surveillance video and photo lineups. It was upon this evidence that the jury convicted George of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. He was sentenced to 722 months' imprisonment, which was later reduced to 663 months. See State v. George , No. 97679, 2010 WL 2502869, at *1 (Kan. App. 2010) (unpublished opinion) (reversing the conviction of kidnapping and remanding the case for resentencing).

On August 26, 2013, George filed a pro se petition for postconviction DNA testing under K.S.A. 2013 Supp. 21-2512. George asked that the collected, but previously untested, hairs be tested against the DNA profile of R.L.'s boyfriend. His petition also requested an evidentiary hearing and the appointment of counsel. In effect, George maintained that he was not the perpetrator.

The district court appointed counsel and a preliminary hearing was held to discuss, in part, the petition. During that hearing, George's counsel clarified that they also wanted the hair DNA testing results to be "cross referenced and checked against" an FBI database like CODIS. In their view, this could connect a third party with a criminal record to the scene and further support the claim that R.L. mistakenly identified George as the perpetrator.

In denying George's petition, the district court relied on the legal standard from State v. Lackey , 42 Kan. App. 2d 89, 208 P.3d 793 (2009) ( Lackey I ), which had been overruled by State v. Lackey , 295 Kan. 816, 286 P.3d 859 (2012) ( Lackey II ), before the district court ruling. Based upon Lackey I , the district court concluded that "additional testing would not point to Mr. George's innocence or that he was wrongfully convicted."

George appealed and the Court of Appeals panel split. The majority ruled that while the district court erred in relying on Lackey I , the decision to deny still should be affirmed. The majority cited Lackey II to conclude that while the hairs could produce exculpatory results, they nevertheless would be cumulative to other record evidence. So testing was not required by K.S.A. 2015 Supp. 21-2512. In deciding the hair testing results would be cumulative evidence, the majority relied on the stipulation after acknowledging that "[d]ue to the parties' failure to cite to the actual stipulation and/or request the addition of the stipulation to the record on appeal, the precise wording is unknown." State v. George , No. 112224, 2015 WL 6622153, at *5 (Kan. App. 2015) (unpublished opinion).

In dissent, Judge Atcheson opined the district court applied too strict of a standard and the case should be remanded for that court to evaluate the request using the correct legal measure. George , 2015 WL 6622153, at *10. He also analyzed George's petition, opining like his colleagues, that the hair testing might produce evidence of "at least some limited exculpatory character." But unlike them he believed that such evidence also "would appear to be noncumulative." 2015 WL 6622153, at *10.

We granted George's petition for this court's review. Our jurisdiction is proper under K.S.A. 20-3018(b).

More facts will be added as necessary to the analysis.

ANALYSIS

Issue: On this record, the district court erred in denying George's petition for DNA testing of hairs found at the crime scene.

Standard of review

After a district court appoints counsel and conducts a nonevidentiary hearing, its denial of a K.S.A. 21-2512 petition for DNA testing presents a question of law over which we exercise unlimited review. State v. Hernandez , 303 Kan. 609, 613, 366 P.3d 200 (2016).

Discussion

The requirements for postconviction DNA testing are established by K.S.A. 2017 Supp. 21-2512, which provides in relevant part:

"(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for ... rape ... may petition the court that entered 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.

....

"(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced. " (Emphases added.)

The State does not challenge that the district court erred in relying upon Lackey I 's interpretation of subsection (c) of the statute. So we can proceed to examine the contours of the district court's role and the tests for exculpatory and cumulative evidence explained in Lackey II and its progeny, e.g., State v. Johnson , 299 Kan. 890, 327 P.3d 421 (2014).

We identified some of the different roles in postconviction DNA testing, including the district court's, in Lackey II:

"The district court is charged with the responsibility of assessing the exculpatory and cumulative nature of each item proposed to be tested. In [State v .] Bruner , we clarified that the statute does not require the prisoner to make specific allegations regarding how the requested testing would produce noncumulative, exculpatory evidence. 277 Kan. [603] 606 [88 P.3d 214 (2004) ]. Instead, we opined that it was the legislature, through the language employed in K.S.A. 21-2512, that had concluded a 'fishing expedition' for DNA evidence is worth conducting in these case s. 277 Kan. at 606, 88 P.3d 214." ( Emphasis added.) 295 Kan. at 824, 286 P.3d 859.

Exculpatory evidence

In J...