State v. Harris

• Decision Date: 23 March 2021
• Docket Number: No. ED 108750,ED 108750
• Citation: 627 S.W.3d 47
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Fred L. HARRIS, Appellant.

627 S.W.3d 47

STATE of Missouri, Respondent,

v.Fred L. HARRIS, Appellant.

No. ED 108750

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: March 23, 2021

Application for Transfer Denied August 31, 2021

FOR APPELLANT: Edward S. Thompson, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Robert J. Bartholomew, Jr., Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Kelly C. Broniec, Judge

I. Introduction

Fred Harris, Sr., ("Movant") appeals the motion court's denial of his motion for post-conviction DNA testing, pursuant to § 547.035.¹ Movant raises two points on appeal. First, Movant argues that the motion court clearly erred in denying his motion following a hearing because the DNA testing methods that he seeks were not reasonably available to him at trial. He also alleges that the motion court applied the incorrect test in making its determination. In his second point on appeal, Movant asserts that the motion court clearly erred in denying his motion because it incorrectly concluded that he chose not to pursue independent DNA testing as a matter of trial strategy.

We affirm.²

II. Factual and Procedural Background

On June 16, 2005, a jury convicted Movant of forcible rape. He received a fifty-year sentence from the trial court on August 8, 2005. The State had conducted scientific and DNA testing on evidence prior to his trial. This Court affirmed Movant's conviction in State v. Harris , 193 S.W.3d 795 (Mo. App. E.D. 2006). He later sought post-conviction relief through proceedings pursuant to Rule 29.15.³ This Court affirmed the denial of that motion in Harris v. State , 282 S.W.3d 387 (Mo. App. E.D. 2009).

On March 4, 2019, Movant filed this motion for post-conviction DNA testing pursuant to § 547.035. The motion court denied the motion following a hearing on December 19, 2019. The motion court heard expert testimony from Diane Higgins, a forensic DNA analyst with the Missouri State Highway Patrol Troop E Crime Laboratory ("Highway Patrol Lab"). Higgins conducted DNA testing for the State prior to Movant's trial while working as a forensic criminalist with the Southeast Missouri Regional Crime Lab ("SEMO Lab"), which later merged with the Highway Patrol Lab. Movant also testified.

This appeal follows.

III. Standard of Review

Motions for post-conviction DNA testing pursuant to § 547.035 are post-conviction motions governed by Rules 29.15 and 24.035 and therefore are governed by the standard of review set out in those rules. Weeks v. State , 140 S.W.3d 39, 43-44 (Mo. banc 2004). The appellate court reviews solely to determine whether the motion court commits clear error in its findings of fact and conclusions of law. State v. Ruff , 256 S.W.3d 55, 56 (Mo. banc 2008) (citing Weeks , 140 S.W.3d at 44 ). The motion court commits clear error when the appellate court, after reviewing the record, "is left with the definite and firm impression that a mistake has been made." Id. at 56 (internal citation omitted).

IV. Discussion

The Missouri General Assembly enacted § 547.035 to provide inmates with "an opportunity to have potentially exculpatory DNA tests performed on evidence." Id. at 58. To receive a hearing, a movant must first file a motion alleging the following under oath:

(1) There is evidence upon which DNA testing can be conducted; and

(2) The evidence was secured in relation to the crime; and

(3) The evidence was not previously tested by the movant because:

(a) The technology for the testing was not reasonably available to the movant at the time of the trial;

(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or

(c) The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and

(4) Identity was an issue in the trial; and

(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.

§ 547.035.2.⁴ The court will then order the prosecutor to show cause as to why it should not grant the motion, unless "it appears from the motion that the movant is not entitled to relief" or "the files and records of the case conclusively show that the movant is not entitled to relief." § 547.035.4. "If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held." § 547.035.6. "The court shall order appropriate testing" if it finds the following, after a hearing:

(1) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and

(2) That movant is entitled to relief.

§ 547.035.7. "To show that he is entitled to relief, under § 547.035, the movant has the ‘burden of proving the allegations of the motion, which must be as outlined in § 547.035.2.’ " Hudson v. State , 190 S.W.3d 434, 439 (Mo. App. W.D. 2006) (quoting Matney v. State , 110 S.W.3d 872, 876 (Mo. App. S.D. 2003) ); accord State v. Fields , 517 S.W.3d 549, 553 (Mo. App. E.D. 2016). "Whether or not a hearing is held, the court shall issue findings of fact and conclusions of law." State v. Cox , 563 S.W.3d 801, 811 (Mo. App. W.D. 2018) (citing § 547.035.8).

In both points on appeal, Movant contends the motion court clearly erred in finding that he failed to satisfy the requirements of § 547.035.2(3)(a). Movant makes no allegations that he has satisfied subsections (b) or (c) of § 547.035.2(3).

To satisfy § 547.035.2(3)(a), a movant must show that "the technology for the testing was not reasonably available to the movant " at trial. Weeks , 140 S.W.3d at 48 (quoting § 547.035.2(3)(a)) (emphasis in original). "The test is a subjective one, subject to a reasonable availability standard, not a question of objective scientific feasibility." Id. (emphases in original). Therefore, Missouri courts must consider the movant's particular circumstances in determining the reasonable availability of testing prior to trial. State v. Fields , 517 S.W.3d at 554-55 (citing Weeks , 140 S.W.3d at 48 ).

Point I

In his first point on appeal, Movant makes two arguments.⁵ First, he argues that the motion court clearly erred in finding that, because the State conducted DNA testing for his trial, he cannot obtain further DNA testing because the testing he seeks was not reasonably available to him at trial. Specifically, he seeks testing with methods and techniques unavailable prior to his trial, and he seeks testing on objects that went untested prior to his trial. Second, he argues that the motion court erred by incorrectly applying an objective test in reaching its conclusions, rather than the proper subjective test.

Advancements in DNA Technology

Movant first argues that evolutions in DNA testing technology have made the prior-used testing technologies unreliable. The Supreme Court of Missouri has noted that § 547.035.2(3)(a) "specifically contemplates technological developments that will permit later testing; where new testing techniques become available that shed doubt on previous findings, subsequent motions are permitted." Belcher v. State , 299 S.W.3d 294, 297 (Mo. banc 2009). However, there is "no legislative intent [behind § 547.035 ] to allow serial retesting of evidence due to a change in DNA technology." State v. Kinder , 122 S.W.3d 624, 632 (Mo. App. E.D. 2003) (denying a motion requesting the newly developed PCR DNA testing method prior to the movant's trial because the State conducted RFLP DNA testing, which was still considered reliable); see also Fields v. State , 425 S.W.3d 215, 217 (Mo. App. E.D. 2014) (noting that Kinder is still "good law" for the principle that "there is no second bite of the apple" when it comes to DNA testing). This Court has "decline[d] to read the language in this subsection as referring to the availability of a specific method of DNA testing, potentially opening the door to retesting each time a new and improved method of DNA testing may be developed." Kinder , 122 S.W.3d at 633.

According to the motion court, DNA testing has made some advancements since the time of Movant's trial, but these advancements are insubstantial and therefore not enough to afford Movant any relief. The motion court also "[did] not find any support for Movant's allegation that DNA testing was not done on evidentiary items prior to trial or that DNA testing has developed substantially beyond what was reasonably available to Movant at the time of the pre-trial litigation of his case." It reached this conclusion following an evidentiary hearing where it heard testimony from Higgins and Movant.

Movant has not demonstrated that the motion court clearly erred in reaching this conclusion. He has not shown that he "did not test the evidence because scientifically reliable DNA testing technology was unavailable, not merely because a specific method of testing was unavailable." Id. at 632. He first attempts to do this by calling into question the reliability of the acid phosphatase and p30 testing used prior to his trial.⁶ Laboratories use these tests to detect the presence of genetic material that might lead to the creation of a DNA profile. At Movant's evidentiary hearing, Higgins testified to the veracity of these presumptive tests at the time of Movant's trial and today, as well as to the methods and protocols used in obtaining the results. The only difference she noted is the use of a different reagent. However, Movant has not cast doubt on the reagent's reliability. Regarding the p30 testing, Higgins testified that the Highway Patrol Lab currently uses less sensitive p30 testing kits now than the SEMO Lab used prior to Movant's trial, but she otherwise did not testify that the scientific community considers the old p30 testing kit unreliable. These slight differences do not undermine the reliability of the...