State v. Kinder

• Decision Date: 21 October 2003
• Docket Number: No. ED 82688.,ED 82688.
• Citation: 122 S.W.3d 624
• Parties: STATE of Missouri, Respondent, v. Brian J. KINDER, Movant/Appellant.
• Court: Missouri Court of Appeals

122 S.W.3d 624

STATE of Missouri, Respondent, v. Brian J. KINDER, Movant/Appellant.

No. ED 82688.

Missouri Court of Appeals, Eastern District, Division Three.

October 21, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 24, 2003.

Application for Transfer Denied January 27, 2004.

Frederick A. Duchardt, Jr., Kearney, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John Munson Morris, III, Michael J. Spillane, Asst. Attys. Gen., Jefferson City, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

Brian Kinder, the movant, appeals from the motion court's judgment denying, without an evidentiary hearing, his post-conviction motion for DNA¹ testing. The movant was previously tried, convicted, and sentenced to death for a 1990 murder. DNA evidence was introduced at trial, however, the movant did not have his own independent testing performed. He now seeks testing, specifically Polymerase Chain Reaction (PCR) DNA testing. The movant contends that contrary to the motion court's findings, he has satisfied all the statutory requirements entitling him to a hearing and testing. Specifically, the movant alleges he demonstrated he had not previously tested the evidence because (1) PCR testing technology was not available at the time of his trial; and (2) the evidence was "otherwise unavailable" to him and his counsel at the time of trial because, when an altered exhibit was revealed at trial, it was too late for him to obtain his own testing. Additionally, the movant contends he demonstrated a reasonable probability existed that he would not have been convicted had exculpatory results been obtained through the requested testing. However, we find no clear error in the motion court's conclusions that the movant did not demonstrate why he had not previously tested the evidence. Accordingly, the movant was not entitled to a hearing or DNA testing. We affirm.

Factual and Procedural Background

A jury found the movant guilty of first-degree murder, rape, and armed criminal action, for which he was sentenced to death and two consecutive life terms.² The movant pursued a direct appeal, as well as post-conviction relief under Rule 29.15. On consolidated appeal, the Missouri Supreme Court affirmed the conviction, sentence, and the denial of post-conviction relief. State v. Kinder, 942 S.W.2d 313 (Mo. banc 1996). Thereafter, the movant sought, but was denied, federal habeas-corpus relief. Kinder v. Bowersox, 272 F.3d 532 (8th Cir.2001). The movant then filed his post-conviction motion for DNA testing.

DNA evidence was introduced by the State during the movant's original trial. Blood samples from the movant, the victim, and the victim's estranged husband, as well as vaginal swabs obtained from the victim's body were tested in order to determine the genetic profile for each sample. In performing the tests, the State's DNA expert, Dr. Allen, employed the Restriction Fragment Length Polymorphism (RFLP) method of DNA analysis.³ Testing revealed that two DNA profiles were represented on the vaginal swab, one of which matched the victim's profile. Dr. Allen testified that the second DNA profile found in the vaginal swab, likely from semen, matched the movant's DNA profile. The movant retained two DNA experts prior to trial, one of whom testified at trial and with whom defense counsel conferred prior to his cross-examination of Dr. Allen. The movant, however, did not have his own independent DNA testing performed.

The movant challenged Dr. Allen's testimony and the DNA evidence throughout his appellate and post-conviction proceedings. Among the movant's various complaints was his allegation that one of the five autoradiographs⁴ introduced at trial had been altered to mask an exculpatory result. Specifically, the movant alleged there had been an alteration of Exhibit 46—the autoradiograph for chromosome 10, using the TBQ7 radioactive probe. According to the movant, a duplicate copy of the autoradiograph, which was made for the defense at the time of pretrial hearings, contained markings (stylus pinpoints) made by Dr. Allen indicating three DNA bands, two of which matched the movant's profile, but one of which did not match his profile. When the original autoradiograph was introduced at trial, however, the autoradiograph contained only two such markings—those indicating the DNA bands that matched the movant's profile. The movant alleged the marking made by Dr. Allen to denote the third non-matching DNA band had been removed from the autoradiograph. See State v. Kinder, 942 S.W.2d at 328. In addressing the admissibility of the DNA evidence and the movant's allegation of the altered autoradiograph, the Missouri Supreme Court found that the movant's trial objection to the allegedly altered evidence was untimely, and that furthermore, the claim of alteration was for the jury to decide. State v. Kinder, 942 S.W.2d at 328.⁵

Since trial, the movant has made numerous attempts to have the evidence retested. First, at the state level, the movant's post-conviction counsel requested, but was denied, funding to retain a DNA expert and to conduct retesting. The Missouri Supreme Court found the movant's request for additional funds lacked merit, reasoning that the movant had the benefit of the services of several DNA experts at trial, as well as a full investigation conducted by the Public Defender's office before trial. State v. Kinder, 942 S.W.2d at 334. The movant also sought funding for DNA testing as part of his petition for federal habeas-corpus relief. This request was also denied, as the federal courts concluded the movant's claim did not "raise a constitutional issue cognizable in a federal habeas petition." Kinder v. Bowersox, 272 F.3d at 545. The movant now seeks DNA testing pursuant to the relatively new state statute allowing for the filing of post-conviction motions for DNA testing, section 547.035 RSMo.2001.⁶ The motion court, without holding an evidentiary hearing, denied the movant's request. The court found the movant was not entitled to relief because he had not satisfied certain statutory requirements. The movant now appeals.

Jurisdiction

Before we address the merits of the movant's claims, we first note that we have jurisdiction over this appeal. Though neither party challenges this court's jurisdiction, we have an affirmative duty to determine our jurisdiction sua sponte. Rosenfeld v. Thoele, 28 S.W.3d 446, 449 (Mo.App. E.D.2000). The Missouri Constitution provides that the Court of Appeals has general appellate jurisdiction in all cases except those within the exclusive appellate jurisdiction of the Supreme Court. Mo. Const. art. V, sec. 3. Included among those cases within the Supreme Court's exclusive appellate jurisdiction are those in which the punishment imposed is death, and those involving the validity of a state statute. The present case, however, does not fall within these categories of cases. While the Supreme Court has exclusive appellate jurisdiction in all cases where the punishment imposed is death, this is a post-conviction proceeding for DNA testing, and like other post-conviction proceedings, an independent action. See Conley v. State, 774 S.W.2d 863, 864 (Mo.App. E.D.1989)(proceeding for post-conviction relief is an independent civil proceeding). Punishment of death will not be imposed in this case. The death penalty has already been imposed in a prior case, and affirmed by the Missouri Supreme Court. State v. Kinder, 942 S.W.2d 313 (Mo. banc 1996). Further, while the Supreme Court also has exclusive appellate jurisdiction in all cases involving the validity of a state statute, here, the movant does not contest the validity of section 547.035, but rather only alleges the appeal involves the construction of that statute. Under Missouri's constitutional scheme, this court has jurisdiction to initially consider the construction of a statute.

The movant's case does not involve the imposition of the death penalty, does not involve the validity of a state statute, nor does the movant's case fall within any of the other specified categories of cases for which the Supreme Court has exclusive appellate jurisdiction. Accordingly, this case falls within the general appellate jurisdiction of the Court of Appeals. Mo. Const. art. V, sec. 3. We note the movant sought transfer of this appeal to the Missouri Supreme Court, prior to opinion, on grounds that the case was of particular interest and importance because the case involved the interpretation of a relatively new statute in a case of a man who has been sentenced to death. The Supreme Court denied the movant's application for transfer. Further, the movant timely appeals from a final judgment denying his post-conviction motion for DNA testing. Authority to take an appeal from the court's findings of fact and conclusions of law is provided by section 547.037.6. This court has jurisdiction.

Standard of Review

Having determined our jurisdiction to entertain this appeal, we turn to the applicable standard of review for the issues raised in this appeal. The movant brought his post-conviction motion for DNA testing pursuant to section 547.035. As provided in the statute, the rules of civil procedure govern the proceedings insofar as applicable. Section 547.035.1. Therefore, the same civil standards that apply in other post-conviction proceedings apply to this appeal as well. Snowdell v. State, 90 S.W.3d 512, 514 (Mo.App. E.D.2002). Appellate review in post-conviction proceedings is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000); Snowdell, 90 S.W.3d at 514. The motion court's findings and conclusions are clearly erroneous if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Id. Further, this case involves the construction of section 547.035. Statutory...