State v. LaPointe
| Decision Date | 17 July 2015 |
| Docket Number | 112,019. |
| Citation | 51 Kan.App.2d 742,355 P.3d 694 |
| Parties | STATE of Kansas, Appellant, v. Jack R. LaPOINTE, Appellee. |
| Court | Kansas Court of Appeals |
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.
Richard Ney, of Ney & Adams, of Wichita, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
In 2004, Jack R. LaPointe was convicted of aggravated robbery and aggravated assault based on a robbery of a Payless shoe store. Because he had prior convictions, he received a lengthy sentence—245 months.
In 2014, LaPointe filed a motion requesting postconviction DNA testing of evidence found near the scene of the crime. He cited K.S.A. 2014 Supp. 21–2512(a), (c), which provides for DNA testing when a defendant has been convicted of first-degree murder or rape and the court determines that testing may produce evidence showing that the defendant was wrongfully convicted. The district court granted LaPointe's motion under State v. Cheeks, 298 Kan. 1, 6–14, 310 P.3d 346 (2013), a case in which our Supreme Court held that the Equal Protection Clause of the United States Constitution requires that DNA testing be allowed for defendants who are similarly situated to those convicted of murder or rape. The State has appealed to this court upon a question reserved, arguing that the district court erred in ordering the testing.
But we lack jurisdiction to consider the State's appeal. The State's right to appeal on a question reserved applies only to a final judgment. See State v. Grimes, 229 Kan. 143, 146–47, 622 P.2d 143 (1981) ; State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 (1980). At the time the State filed its appeal, the DNA-testing aspects of this case were still pending, and the district court had not entered final judgment. The court had ordered DNA testing, and the statute under which that testing had been ordered provided that the court consider whether a new trial should be ordered if the testing proved favorable to the defendant. See K.S.A. 2014 Supp. 21–2512(f)(2). We therefore dismiss the State's appeal.
In March 2004, a jury found LaPointe guilty of aggravated robbery and aggravated assault based on the robbery of a Payless shoe store in October 2000. State v. LaPointe (LaPointe I), No. 93,709, 2006 WL 2936496, at *1 (Kan.App.2006) (unpublished opinion), rev. denied 283 Kan. 932 (2007). On October 30, 2000, the police were informed that a white male in a plaid shirt, jacket, and bandana had robbed the Payless store. The police used a dog to search for evidence of the crime, and the dog led them to a plaid shirt, hat, and blue bandana at various locations around an apartment complex behind the strip mall where the Payless store was located. The police also found a pair of cloth gloves at the apartment complex.
At LaPointe's trial, Brandy Loveall testified that she had seen a man walking quickly down the sidewalk at the strip mall carrying a gun and wearing a bandana and that she had later identified LaPointe as that man in a police lineup. Michael Norton told the jury that he and LaPointe had intended to commit a robbery and that he had driven the getaway car while LaPointe robbed the Payless store.
A chemist who had conducted DNA testing on evidence in the case also testified. She said she had found hairs on the bandana, shirt, cap, and gloves but that she had not recovered enough DNA to develop a profile. Robert Booth, a criminalist at the Kansas City, Missouri, Police Department Crime Laboratory, testified that he had done a hair analysis comparing the hairs found on the bandana, shirt, cap, and gloves to LaPointe's hair and found that they did not match. He said that he could not say with certainty that they were not LaPointe's but that “the probability [was that it was] not his hair.” Booth explained that his comparison testing did not definitively establish that the head hairs did not come from LaPointe because he had only a sample of LaPointe's hair and because LaPointe could have changed something about his hair since the hairs were deposited. Nevertheless, Booth testified that those two scenarios were rare and that the “the most likely outcome” was that the hairs were not LaPointe's. During closing argument, defense counsel emphasized that no physical evidence linked LaPointe to the crime.
The jury nevertheless convicted LaPointe, and he was sentenced to 245 months in prison, which would run consecutively to sentences in three other cases. LaPointe appealed his convictions to this court, which affirmed them in 2006. LaPointe I, 2006 WL 2936496, at *3.
Since then, LaPointe has sought postconviction relief on multiple occasions. We will skip the earlier filings and discuss only the motion that led to this appeal, which was filed in February 2014.
This motion sought postconviction DNA testing in LaPointe's criminal case. Specifically, he asked for mitochondrial DNA testing pursuant to K.S.A. 2014 Supp. 21–2512. That statute provides for postconviction DNA testing if it might produce relevant evidence showing that the petitioner was wrongfully convicted or sentenced:
The same statute provides for the possibility of further proceedings after the DNA testing is completed. Indeed, if the results of the testing are favorable to the defendant and there is a reasonable probability that the results would change the outcome of the case, the court must provide the defendant with relief, such as a new trial:
In May 2014, the district court granted LaPointe's motion for DNA testing. In support of its order, the district court cited State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013), a case in which the Kansas Supreme Court determined that the Equal Protection Clause of the United States Constitution dictates that DNA testing should be allowed for defendants who are “similarly situated” to those convicted of murder or rape (the convictions for which the statute authorizes postconviction DNA testing). The district court found that LaPointe was similarly situated to people convicted of first-degree murder or rape because he was sentenced to more than 20 years in prison, which was comparable to or greater than potential sentences for those crimes. Before the DNA testing was done, the State then filed this appeal of the district court's decision.
The DNA testing was completed while this appeal has been pending. The results confirmed that LaPointe was not the source of one hair. The results from a second hair were inconclusive, but the report stated that it was more likely that LaPointe was not the source of the DNA than that the result was inconclusive.
In February 2015, LaPointe filed a motion for hearing with the district court based on the test results. LaPointe asked that he either be discharged from custody or granted a new trial. At the time LaPointe filed his appellate brief in this case, his motion for a hearing was pending before the district court. Since he filed that brief, the district court has determined that the postconviction DNA evidence was not so important to the case that there was a reasonable probability that the new evidence would result in a different outcome at a trial or sentencing. On that basis, the district court refused to grant a new trial or other relief to LaPointe.
LaPointe filed a notice of appeal of the district court's decision to deny him relief based on the test results. That appeal has been separately docketed in our court as case No. 113,580 and is not pending before this panel.
The State has appealed the district court's order for DNA testing under K.S.A. 2014 Supp. 21–2512. LaPointe argues that we lack jurisdiction to reach the merits of the State's arguments because the State does not have authority to appeal the district court's decision to order DNA testing. The State counters that it has authority to file this appeal as a question reserved—a type of appeal that allows the State to obtain review of a trial court's adverse ruling on a legal issue if the issue is of statewide interest, is important to the correct and uniform administration of criminal justice, and otherwise would not be subject to appellate review. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005) ; State v. Ruff, 252 Kan. 625, 629, 847 P.2d 1258 (1993) ; State v. Pearce, 51 Kan.App.2d 116, 121–22, 342 P.3d 963 (2015).
We have jurisdiction to consider appeals only in the manner prescribed by statute. State v....
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State v. LaPointe
...to meet the requirements for a question-reserved appeal meant the Court of Appeals lacked jurisdiction. See State v. LaPointe , 51 Kan.App.2d 742, 355 P.3d 694 (2015).On petition for review, the State asks us to reverse the Court of Appeals and determine that it may take an appeal from an o......
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State v. Lapointe
...the order granting testing. But a Court of Appeals panel dismissed that effort for lack of jurisdiction. State v. LaPointe , 51 Kan. App. 2d 742, 750, 355 P.3d 694 (2015) ( LaPointe I ). Our court affirmed, holding the State's chosen procedural path was premature. State v. LaPointe , 305 Ka......
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