Friday, June 22, 2018

Possibility of showing third party DNA is exculpatory and noncumulative

Christina M. Kerls won in State v. George, No. 112,224 (Kan. June 8, 2018), obtaining DNA testing in a Leavenworth County rape and kidnapping prosecution. After conviction and sentencing, Mr. George filed a motion for DNA testing of some collected, but untested hairs. The district court and a majority of the COA held that additional testing would not point to Mr. George's innocence, but would at most be cumulative to other record evidence. The KSC agreed with COA Judge Atcheson in dissent, holding that the district court applied to strict a standard for exculpatory evidence: 

We agree that even if the testing of the hairs found at the spot where the rape occurred only revealed that George's DNA was not present, the results would be exculpatory because they would "tend" to disprove his guilt. At a minimum, they would tend to show he had not been at that spot. 

That this potentially exculpatory evidence may be of very little evidentiary value does not matter at this stage. Once DNA results are obtained, the district court will then make "a 'probabilistic determination about what reasonable, properly instructed jurors would do' with the new evidence in light of the totality of the circumstances.

The KSC also held that the COA majority erred by finding that any exculpatory evidence would be cumulative:

In our analysis of the "noncumulative evidence" issue, we start with the majority's acceptance of the parties' characterization "that the jury had as evidence a stipulation that 'George's DNA was not found on the complaining witness.'" As mentioned, from there the majority ultimately concluded that "the jury was provided with evidence and argument that George's DNA was not found . . . at the crime scene."

But not finding George's DNA at the crime scene was essentially a jury argument made by defense counsel. It was based upon the apparent stipulation that was limited to R.L.'s body—which counsel expanded to argue "there is no DNA match at all to my client to this crime scene. Nothing whatsoever . . . . [T]here is no DNA." A mere lack of George's DNA in the fluids on R.L.'s body—the only items tested—does not mean, however, that all untested crime scene items likewise do not contain his DNA. Accordingly, that single agreed upon fact regarding R.L.'s body cannot automatically dispose of the general question that the district court must answer when reviewing a petition for DNA testing of the hair, e.g., if those results "may produce noncumulative" evidence.  

As for the next step in our analysis on the noncumulative evidence issue, we agree with the panel's dissent. If the testing results of the hairs found at the point where the rape happened were to indicate the presence of the boyfriend's DNA, then that evidence would be cumulative of the seminal fluids' evidence. (Conversely, if the hairs' testing results indicated the presence of George's DNA, then that evidence clearly would not be exculpatory.) But under the language of K.S.A. 2015 Supp. 21-2512(c), future testing of those hairs "may produce" results indicating the presence of other individuals' DNA. And because such evidence would be the first of that type from the crime scene—especially the rape scene—it necessarily would be noncumulative under the statute.

Such evidence in turn would support George's defense that some other person— significantly, perhaps someone now identified—committed the crimes. In short, for K.S.A. 2015 Supp. 21-2512(c) purposes, there is a difference between failing to find George's DNA, which only suggests he did not commit the crimes—and actually finding someone else's DNA, which suggests that person committed the crimes instead. 

As a result, the KSC reversed and remanded for further proceedings at the district court.

Monday, June 11, 2018

Officers cannot run wants and warrants during community caretaking stop

Rick Kittel won in State v. Messner, No. 117,559 (Kan. App. May 18, 2018), obtaining reversal of a Butler County drug conviction and remand with directions to grant Mr. Messner's motion to suppress. An officer had received a tip that Mr. Messner might have not been in "shape to drive," so he followed and stopped Mr. Messner's car. The officer did not observed any traffic infraction or other basis to stop, but only stopped him to "check his welfare." After stopping Mr. Messner observed some odd behavior and slow speech, but did not smell any alcohol. The officer proceeded to get Mr. Messner's driver's license and rand a "wants and warrants" check. The check revealed a warrant, officers arrested Mr. Messner and searched his car, resulting in the drug charges. Although the COA agreed with the state that the officer had a sufficient justification for the stop and the initial encounter was legal: 

Sergeant Farris had objective, specific, and articulable facts which supported making a public safety stop. While Sergeant Farris may not have seen Messner commit any traffic infractions, he was aware that Messner was behaving strangely and that Hermann, an identified witness—as opposed to an anonymous tipster—thought he was not fit to drive. Messner also argues that Sergeant Farris did not have any fear for public safety because after stopping Messner he did nothing, such as field sobriety testing, to determine if Messner was unfit to drive. However, given that safety stops should be "'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute'" this is unsurprising. Instead, Sergeant Farris stated unequivocally that he spoke with Messner to make sure he was alright. 

As to the second factor, when a valid safety stop is made, the officer can take appropriate action to render assistance if the individual is in need of aid. Here, the officer made some initial observations about Messner when he spoke with him. Sergeant Farris indicated that Messner's speech and movement were slow and that he seemed confused. According to Sergeant Farris this made him feel that Messner was not in a condition to drive. But because he could not smell alcohol, Sergeant Farris testified that he could not rule out that Messner's behavior may have been due to a medical condition. He also indicated that he did not know whether Messner's slow speech was out of character for Messner. He testified that he had no reason to believe at that point that any crime had been committed. Sergeant Farris continued to characterize the stop as solely a welfare check stop. He did not do any further testing of Messner's condition; instead, he asked for Messner's driver's license in order to run a warrant check.

The COA held that this last action exceeded the scope of a community caretaking stop:

Sergeant Farris exceeded the limitations of the safety stop when he did more than speak with Messner to determine whether he was alright to drive. Taking Messner's driver's license and returning to his vehicle to run a warrant check runs afoul of the rule that a safety check should be "'totally divorced from the detection, investigation, or acquisition of evidence relating to the 10 violation of a criminal statute.'" Obtaining Messner's license did not advance the safety stop. Running a check for warrants did not help Sergeant Farris determine whether Messner was in a condition to drive at that time. Sergeant Farris followed Messner for a mile and did not notice any problems with Messner's ability to drive and after speaking with Messner only noted that he had slow speech and movement and he seemed confused. Neither slow speech nor confusion are enough to overcome the fact that Messner appeared to be driving fine. Sergeant Farris gave no other reason for obtaining Messner's driver's license than to run it for wants and warrants. Even if it was reasonable to ask for identification to see who he was talking to, there was nothing related to viewing Messner's driver's license and obtaining his name that would cause suspicion. Instead, Sergeant Farris exceeded the scope of the safety stop by actually seizing Messner's driver's license and checking for warrants.

The COA concluded finding that the officer did not have reasonable suspicion to continue an investigative detention. The COA also held that the state had ever asserted attenuation and, this could not raise it on appeal for the first time. Therefore, the COA concluded that Mr. Messner's motion to suppress should have been granted.

[Update: the state did not file a PR and the mandate issued on June 25, 2018.