IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,500
KENNETH E. HADDOCK,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. Evidence not presented to the trial court will not be considered for the first time on
appeal.
2. The provisions of K.S.A. 2005 Supp. 21-2512 are interpreted and applied.
3. Because of its scientific precision and reliability, DNA testing can in some cases
conclusively establish guilt or innocence of a defendant. In other cases, DNA may not
conclusively establish guilt or innocence but may have significant probative value to a
finder of fact. K.S.A. 2005 Supp. 21-2512(f) provides for certain mandatory dispositions
and procedural requirements depending upon whether the results of the additional DNA
testing are (1) unfavorable; (2) favorable; or (3) inconclusive.
4. If the results of additional DNA testing are unfavorable to the defendant, the district court
shall dismiss the petition and make an appropriate order for the assessment of testing
costs.
5. DNA testing favorable to the defendant requires the court to hold a hearing
notwithstanding any provision of Kansas law that would bar such a hearing, such as the
time constraints imposed for motion for relief from judgment or a motion for new trial.
K.S.A. 2005 Supp. 21-2512 contemplates a full due process hearing with notice and an
opportunity to be heard in a meaningful manner. At the conclusion of the hearing, the
court, based upon the evidence, exhibits or documents entered into evidence, and
arguments of counsel, shall enter any order that serves the interests of justice,
including,
but not limited to, an order: Vacating and setting aside the judgment; discharging the
petitioner if the petitioner is in custody; resentencing the petitioner; or granting a new
trial.
6. When DNA testing establishes the innocence of a criminal defendant, the court should
enter an order vacating and setting aside the judgment of conviction and enter an order
discharging the petitioner if the petitioner is in custody. Before such orders are entered,
the hearing judge must consider the favorable results with the evidence of the case which
resulted in the underlying judgment. The court must then determine that guilt cannot be
sustained because the new evidence completely exonerates the defendant or the new DNA
testing results are so highly exculpatory so as to show a complete lack of evidence to
establish that a rational juror, based upon all evidence, could not fairly find the defendant
guilty beyond a reasonable doubt. Stated another way, in light of the favorable results, the
evidence establishing the guilt of the defendant is doubtful in character and completely
lacking in probative value with the result that a rational factfinder could not fairly find the
defendant guilty beyond a reasonable doubt.
7. In almost all cases where the DNA testing evidence is favorable, except in those cases
where the court after hearing has entered any other order to serve the interests of justice,
the hearing judge is faced with a decision of whether to grant a new trial based upon the
favorable results.
8. The standard to be applied by the district court in deciding whether to grant a new trial
based on favorable DNA testing is for all practical purposes the same standard applied
when a district court decides whether to grant a new trial based upon newly discovered
evidence. The difference is that the defendant in a case such as this need not conform to
any time requirements or establish that the evidence was newly discovered. Under the
provisions of K.S.A. 22-3501 the court on motion of a defendant may grant a new trial to
him or her if required in the interests of justice.
9. In considering whether to grant a new trial based on favorable evidence under K.S.A.
2005 Supp. 21-2512(f)(2)(iv), the evidence must be of such materiality that a reasonable
probability exists that it would result in a different outcome at trial.
10. Where the DNA testing results are inconclusive, the district court is granted
discretion
whether to order a hearing. The purpose of such a hearing is to determine whether there is
a substantial question of the defendant's innocence.
11. Under the facts of this case, the DNA testing results of the hair, fingernail, and
eyeglasses, while not conclusively establishing Haddock's innocence, are favorable in
part, in that they supplied a favorable inference that someone other than Haddock could
have committed the murder.
12. Where the results of additional DNA testing are favorable, as in this case, the
district
court is required to conduct a hearing pursuant to K.S.A. 2005 Supp. 21-2512(f)(2) and
enter an appropriate order.
13. The three components or essential elements of a Brady v. Maryland,
373 U.S. 83, 87, 10
L. Ed. 2d 215, 83 S. Ct. 1194 (1963), prosecutorial misconduct claim are: The evidence at
issue must be favorable to the accused, either because it is exculpatory or because it is
impeaching; the evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.
14. A conviction obtained by the introduction of perjured testimony violates a
defendant's
due process rights if (1) the prosecution knowingly solicited the perjured testimony or (2)
the prosecution failed to correct testimony it knew was perjured.
15. Before counsel's assistance is determined to be so defective as to require reversal
of a
conviction, defendant must establish (1) counsel's performance was deficient, which
means counsel made errors so serious that counsel's performance was less than that
guaranteed by the Sixth Amendment to the United States Constitution, and (2) the
deficient performance prejudiced the defense, which requires showing counsel's errors
were so serious they deprived defendant of a fair trial. Judicial scrutiny of counsel's
performance in a claim of ineffective assistance of counsel must be highly deferential. To
show prejudice, the defendant must show a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
A court hearing an ineffectiveness claim must consider the totality of the evidence before
the judge or jury.
16. The decision not to have the DNA evidence independently tested may be a tactical
decision rather than a deficient one.
17. A two-step analysis is applied to allegations of prosecutorial misconduct. First,
the court
decides whether the prosecutor's comments were outside the wide latitude allowed in
discussing the evidence. Second, the court must decide whether the comments constitute
plain error; that is, whether the statements prejudiced the jury against the defendant and
denied him or her a fair trial, thereby requiring reversal. The second step is a
particularized harmlessness inquiry for prosecutorial misconduct cases.
18. In the second step of the two-step analysis for alleged prosecutorial misconduct,
the
appellate court considers three factors to determine if the prosecutorial misconduct so
prejudiced the jury against the defendant that a new trial should be granted: (1) whether
the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the
prosecutor's part; and (3) whether the evidence against the defendant is of such a direct
and overwhelming nature that the misconduct would likely have little weight in the minds
of the jurors. None of these three factors is individually controlling. Before the third
factor can ever override the first two factors, an appellate court must be able to say that
the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S.
18, 17
L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.
19. Calling the defendant a liar is outside the wide latitude allowed to prosecutors in
closing
arguments. The prosecutor's comments in this case, repeatedly characterizing the
defendant as lying, were clearly improper, and defense counsel was thus deficient in
failing to object to these improper comments at trial. However, neither the prosecutorial
misconduct itself nor the deficient performance of counsel amounted to prejudicial error.
20. Reversible error predicated on prosecutorial misconduct must be of such a
magnitude as
to deny a defendant's constitutional right to a fair trial. Some complained-of prosecutorial
statements were not objected to at trial. If the claimed error has been determined to
implicate a defendant's right to a fair trial, our standard of review is the same whether or
not an objection was made at trial. If the claimed error rises to the level of a denial of the
right to due process under the Fourteenth Amendment to the United States Constitution,
the issue will be addressed.
21. An appendix to an appellate brief is not a substitute for the record on appeal, and
material
so attached will not be considered by this court.
22. A court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
Appeal from Johnson district court, JAMES FRANKLIN DAVIS, judge. Opinion filed
November 9, 2006.
Affirmed in part, reversed in part, and remanded with directions.
Richard Ney, of Ney, Adams & Sylvester, of Wichita, argued the cause,
and Jessica R. Kunen, of
Lawrence, was with him on the briefs for appellant.
Richard G. Guinn, assistant district attorney, argued the cause, and
Steven J. Obermeier, assistant district
attorney, and Paul J. Morrison, district attorney, were with him on the brief for
appellee.
The opinion of the court was delivered by
DAVIS, J.: Kenneth E. Haddock was convicted of first-degree murder, and his conviction
was affirmed on direct appeal in State v. Haddock, 257 Kan. 964, 897 P.2d 152
(1995). In this
case, he appeals the denial of his K.S.A. 60-1507 motion alleging ineffective assistance of
counsel and prosecutorial misconduct and his motions for new trial based on postconviction
DNA testing under K.S.A. 2005 Supp. 21-2512. This court transferred the case on its own
motion pursuant to K.S.A. 20-3018. We affirm the denial of the K.S.A. 60-1507 motion and
reverse and remand for further proceedings pursuant to K.S.A. 2005 Supp. 21-2512.
Evidence at Criminal Trial
In 1993, Haddock was convicted of the first-degree murder of his wife who was found
beaten to death and lying under a pile of wood in the garage of their home. His conviction was
affirmed on direct appeal, where this court set forth the following relevant facts concerning the
trial in this case:
"The five-day trial included over 40 witnesses and 100 exhibits. Although
Haddock does
not challenge the sufficiency of the evidence, a background review is helpful in understanding
the
issues presented.
"Haddock has a college degree in agriculture education. He moved into banking
and
finance, eventually serving as president of two Kansas banks. In 1986, he started his own
company, First Finance, Inc., which purchased loans from the FDIC and other institutions. He
described First Finance as 'very profitable.'
"Although Haddock and his three teenage children testified that their family was
loving
and supportive, a dark cloud loomed overhead. For two years preceding the murder, Haddock and
his family lived with uncertainty and anxiety caused by his indictment and conviction for federal
bank fraud.
"The Federal Bank Fraud Case
"In September 1990, Haddock was indicted in federal court for bank fraud and
related
offenses arising from transactions in 1987. A jury convicted him on 10 counts. Haddock was
sentenced to 42 months' imprisonment. He remained free on bond pending appeal. On appeal, the
Tenth Circuit affirmed his conviction but remanded for resentencing. United States v.
Haddock,
956 F.2d 1534, modified on reh'g 961 F.2d 933 (10th Cir.), cert. denied
[506 U.S. 828] (1992);
see also United States v. Haddock, 12 F.3d 950 (10th Cir. 1993) (collateral claim of
ineffective
counsel denied; remanded for resentencing); United States v. Haddock, 50 F.3d 835
(10th Cir.
1995) (error found in restitution order of $76,000; remanded for recalculation of restitution).
Haddock's first resentencing in the federal case was scheduled for December 18, 1992.
"Thus, on November 20, 1992, the day of the tragedy, Haddock's conviction had
been
affirmed and he was awaiting resentencing. Haddock's attorney met with an Assistant United
States Attorney and a probation officer from 10:30 a.m. to noon that day to negotiate matters
relevant to the upcoming sentencing hearing. Haddock did not attend the meeting.
"Haddock and his children admitted that the federal bank fraud case was stressful
for
them. In May and June of 1991, Haddock's wife, Barbara, spoke with two social workers,
expressing 'anxiety' and 'anger' about the federal prosecution. However, neither social worker
recalled Barbara mentioning any fear of violence from her husband. Haddock spoke with a
marriage and family therapist in March 1992 about stress-related breathing problems experienced
by his oldest daughter. He told the therapist that Barbara brought up the federal case 'almost any
time he would get in her presence,' whereas he 'tended to shy away from talking about it' because
it was a 'real hard thing to talk about.'
"Barbara's best friend, Kathy Finkleston, testified that she and Barbara often
discussed
the federal case and that Barbara would get very upset and emotional, 'not knowing what was
going to happen or what she was going to do.' Finkleston said she believed Barbara was
'becoming
very frustrated' with the expense and duration of the federal case, and that 'she was getting angry
with Ken that it kept going on and on and on.' Barbara told Finkleston that the retainer alone for
Ken's Washington, D.C., lawyer was $40,000, and that whenever the lawyer asked for more
money he wanted at least $25,000.
"The Hours Preceding Barbara's Death
"Barbara's last day began early. She met Finkleston for breakfast at 6:30 a.m.,
something
the two of them did often. She and Finkleston talked about Barbara's upcoming surgery
[hysterectomy], about their children, about Christmas, and then about the federal case and the
meeting of attorneys scheduled for that day. Finkleston remembered that when Barbara brought
up
the federal case, she said, 'Oh, my stomach just took a flip.' Barbara then said that Haddock's
lawyer was wanting additional money and that Barbara was concerned that they might have to
dip
into a savings account they had set aside for their son's college education. Overall, however,
Finkleston believed that Barbara was in 'pretty good spirits.'
"Barbara worked until around noon at her job as a triage nurse. She ran a couple of
errands on her way home. Haddock went to work at First Finance from about 9:30 a.m. to 1:00
p.m., and then went home for lunch. Haddock and Barbara arrived home at the same time, around
1:20 p.m.
"According to Haddock, when he first arrived home he and Barbara brought in
groceries
from her car. She told him the garage door had a problem, so he worked on it for a few minutes.
He then ate a light lunch as Barbara made chili for the weekend. They discussed Barbara's
upcoming surgery and their younger daughter's plans to have friends over that night. Haddock
said
he brought in the mail at about 1:45 p.m., then started a fire in the fireplace. The last thing he
said
he did before leaving was to throw two articles of clothing in the hallway by the washing
machine.
One was a white shirt he had been wearing; the other was a pair of slacks from his bedroom.
Haddock testified that the shirt was missing a button and the slacks needed to be let out in the
waist, and that Barbara said she would mend them. Haddock said he left home at approximately
2:00 p.m.
"Discovery
"At around 3:20 p.m., the youngest daughter arrived home from junior high
school.
Barbara's car was in the driveway and the garage door was closed. She entered through the front
door, noticed some chili cooking, saw the television on, and called out for her mother. She was
not concerned when she heard no reply, as nothing appeared out of the ordinary. Within minutes,
the older daughter arrived home from high school.
"The daughters eventually found Barbara in the garage buried under a pile of
wood. They
called 911. The older daughter summoned the neighbors, the Hartleys, who were registered
nurses. When the Hartleys arrived, they cleared the remaining logs off of Barbara and checked
for
a pulse or respiration, but found neither.
"The police arrived at 4:08 p.m. Haddock did not arrive home until 4:20 p.m. A
daughter
had called her father's office and left a message that he needed to come home right away. A
neighbor and a police officer met Haddock at his car and escorted him inside through the front
door to the living room. He embraced his daughters, who were crying. Haddock later tried to
walk
into the garage, but he was quickly stopped and told to stay inside the house. The police told
Haddock that because his wife's death was 'unattended,' a police term meaning unattended by a
physician, standard procedure required that the death be handled like a homicide until homicide
could be ruled out.
"Investigation
"Detectives at the scene quickly suspected foul play. Barbara's injuries were
unlike those
that might be expected from falling wood. In an autopsy, Dr. Bonita Peterson found bruises and
abrasions on Barbara's hands and arms, consistent with defensive wounds. She also observed
bruises and lacerations on the face, and massive trauma to the back of the head, which she thinks
resulted from 6 to 12 blows with a blunt object.
"Other evidence revealed an orchestrated crime scene. Detectives found a separate
pool
of blood a substantial distance from Barbara's body. Blood spatters and smears suggested that
Barbara had been moved from this separate pool to the location under the wood pile. Blood was
also found on Barbara's car, which was parked outside the garage. Drip patterns on the car
suggested that the car had been moved after the blood was deposited. The location and nature of
the blood spatter evidence on the car, when considered together with other blood spatter evidence
inside the garage, suggested that the beating occurred while the car was in the garage. Tomatoes
were also splattered in various places on the garage floor. Nothing was missing from the home.
"At approximately 6:00 p.m., as detectives continued searching for clues at the
home,
Haddock and his son accompanied Detective Larue to the Olathe Public Safety Center for
questioning. In the interview, the detective observed and photographed two scratches on
Haddock's right wrist that appeared fresh. Police also obtained Haddock's shoes from him at the
center.
"During the evening, the detectives at the center received updated information
from the
crime scene suggesting that the death was not accidental. The questioning of Haddock gradually
grew more pointed and accusatory until Haddock finally broke it off and was taken home.
Haddock never confessed. He was arrested five days later.
"Physical evidence obtained from Haddock and from the scene played a key role
in his
identification as the killer. A small amount of blood was found on a shirt and pair of pants
belonging to Haddock located on the floor inside the house. The shoes Haddock wore to the
police center also had traces of blood on them. The blood on the clothing and shoes had DNA
markings that matched Barbara's blood and excluded Haddock's blood. Blood spatter patterns
were consistent with the pants and shoes being worn at the time the blood was deposited.
Detectives also discovered two hairs clutched in Barbara's right hand. One hair showed DNA
markings consistent with Haddock and inconsistent with Barbara, the other produced no
marking.
"The State's Theory
"The State's theory was that Haddock and Barbara were experiencing marital
discord
because of the federal bank fraud case, which led to a fight and then to the killing. The State
argued that the 6 to 12 blows to the back of Barbara's head, some of them delivered after she was
lying on the floor (according to blood spatter patterns), provided evidence of premeditation. The
State asked the jury to infer that Haddock went from 'acting on impulse' to realizing that he had
gone too far to turn back and thus knew 'exactly what he was doing' in administering the
multiple,
lethal blows. Haddock then orchestrated the garage scene in an attempt to make the death appear
accidental, hoping there would not be a rigorous investigation.
"Under the State's theory, the attack probably occurred around 2:00 p.m. because a
neighbor testified that she heard a strange, muffled, sound from outside, like wood falling on
concrete, shortly after 2:00 p.m. that afternoon. Although no murder weapon was conclusively
established, the State introduced evidence that the fireplace poker appeared to have been wiped
clean, unlike the other fireplace tools in the set and unlike how the Haddock children
remembered
the condition of the poker.
"Haddock's Defense
"Haddock denied killing his wife, advancing an alibi defense. A Wendy's
restaurant sack
found in his van had a receipt showing a purchase at 3:18 p.m. the day of the killing. The
wristwatch that Barbara was wearing, which appeared to have been broken during the attack,
showed a time of 3:16 p.m. Wendy's was more than 10 minutes away from the Haddock
home.
Haddock testified that he left home at approximately 2:00 p.m., went to the Olathe Public Library
to do research for his federal case, then to Wendy's for a burger and milkshake, then out to look
at
some property for a possible investment purchase by his company, and then back to the office,
where he was immediately told by his secretary to go home.
"As for the DNA evidence obtained from his shoes and the clothes found inside
the
house, Haddock argued that Barbara's blood could have been transferred to his shoes when he
embraced his daughters, who carried their mother's blood from their attempts to help her. He
advanced a similar theory (the daughters rushing back and forth from garage to the 911 call) to
explain Barbara's blood on his clothes found lying on the floor near the laundry room.
"The State attacked his alibi. The two front desk clerks at the Olathe Public
Library who
worked that Friday afternoon testified that it was a 'slow afternoon' and that they did not
remember seeing Haddock or anyone resembling Haddock in the library. The State introduced
evidence of a watchmaker who examined and tested Barbara's watch. He determined that the
hands could have been manipulated to show any time after it had been broken. The State argued
that the watch was part of the orchestrated crime scene." Haddock, 257 Kan. at
965-71.
Haddock's Relevant Posttrial Motions
On April 23, 1997, Haddock filed a K.S.A. 60-1507 motion alleging ineffective
assistance of trial and appellate counsel, prosecutorial misconduct, and judicial abuse of
discretion. On November 6, 1997, Haddock filed a pro se motion to dismiss judgment of
conviction alleging among many other claims that the prosecutor failed to disclose exculpatory
evidence that pointed to a third-party killer and offered false DNA testimony through its DNA
expert, the Laboratory Director of GeneScreen, Dr. Robert C. Giles. On November 20, 2000,
Haddock filed a motion for production of evidence for DNA testing requesting that the two hairs
found in the victim's right hand, eyeglasses found at the scene, and fingernail scrapings from the
victim be submitted for further DNA testing.
A hearing on the motion for production of evidence for DNA testing was held on January
19, 2001. Dr. Dean Stetler reviewed a partial trial transcript of Dr. Giles' testimony and the
August 13, 1993, GeneScreen lab report concerning the DNA analysis that had been performed
in the case. The 1993 GeneScreen report identified the existence of three DQ Alpha types (also
referred to as alleles or genotypes) in the hair of the right hand of the victim (faint 1.1, 1.2, 4).
However, the report also provided in relevant part:
"In addition, specimen FOR1519-3639 (hair) typed as a 1.1/4. Due to the presence
of the 1.1/4
DQ alpha type and the nature of the testing procedure, it is not possible to determine if a 1.2 type
may also be present. The 1.1/4 type matches specimen FOR1519-3351 (blood - K.
Haddock)
which also typed as 1.1/4.
"The frequency of the DQ 1.1/4 alpha type in three North American populations is as
follows:
"Blacks 9.1%
"Caucasians 7.4%
"Hispanics 5.9%
. . . .
"Every individual has two copies of DNA, and therefore has two genotypes. The
genotypes determined for each specimen are shown above. If a specimen has
only one genotype detected, then that specimen is presumed to be homozygous,
meaning both copies of DNA have the same genotype.
"A specimen with more than two indicated genotypes is a mixed specimen coming from
more than
one person." (Emphasis added.)
At trial, Dr. Giles testified that the typing they achieved on the hair was 1.1/4, which was
"consistent with the blood of Mr. Haddock and is inconsistent with the blood of Mrs. Haddock."
On cross-examination, Dr. Giles admitted that is was not possible to determine if a 1.2 DQ Alpha
type, such as from the victim, was also present in the hair sample.
After reviewing this report and transcript, with regard to the hair found in the victim's
hand, Dr. Stetler testified that the DQ alpha analysis report showed the presence of a weak 1.1
allele, a possible 1.2 allele, and a 4 allele. Each individual has at least one allele but no more than
two alleles; the victim was a type 1.1, 1.2, and Haddock was a 1.1/4. Dr. Stetler opined that it
was significant the 1.1 allele was weak because if both alleles came from the same person, they
would be expected to be the same. Dr. Stetler testified that it was unlikely, based on the report,
that the hair came solely from Haddock or from a mixture of Haddock and the victim's hair, but it
was possible that the hair had come from a mixture of the victim's hair with a third party or a
mixture of the hair of Haddock, the victim, and a third party.
Dr. Stetler opined that Dr. Giles' testimony at trial that the hair was inconsistent with the
victim and consistent with Haddock was inaccurate or misleading. It was just as likely that the
hair came from the victim as it was from Haddock, and only part of the contribution could have
been made by Haddock as demonstrated by the presence of the 1.2 allele. Based on the DNA
testing used at trial (polymerase chain reaction - PCR), the percentage of the population having
Haddock's Alpha type (1.1/4) was 6% to 7%. Dr. Stetler suggested that the more advanced and
discriminating Short Tandem Repeat (STR) DNA testing be performed which could pinpoint the
DNA to one in several quadrillion.
State's witness Johnson County Criminalistics Laboratory Director and forensic scientist
Gary Dirks testified that he was involved in requesting GeneScreen to conduct the DNA testing
in 1992 and 1993. Dirks opined that GeneScreen was and remained a representable DNA
laboratory. Dirks reviewed the 1993 GeneScreen report generated by Dr. Giles. He acknowledged
on cross-examination that the hair would be consistent with the victim's genotype (1.1, 1.2) or a
third party with a genotype (1.2, 4) and that further testing could answer some of the questions
raised by Dr. Stetler.
In a March 30, 2001, memorandum and order, the district court denied Haddock's K.S.A.
60-1507 motion and his motion for additional DNA testing. The district court relied primarily
upon Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494, rev. denied
258 Kan. 859 (1995), in
concluding that Haddock had "failed to demonstrate that he would be exonerated of the murder
conviction should the DNA evidence be tested as requested." The court found that trial counsel
was not ineffective for failing to obtain independent DNA testing because the reasons may have
been tactical as in Sanders v. State, 26 Kan. App. 2d 826, 995 P.2d 397 (1999),
rev. denied 269
Kan. 934 (2000). Additionally, the court concluded that it need not reach the issues of
prosecutorial misconduct or abuse of discretion, as those issues were found to be without merit
on direct appeal.
On April 9, 2001, Haddock filed a "Motion, Pursuant to K.S.A. 60-252(b), to Amend
Findings and to Make Additional Findings; Objection to Court's Findings and Conclusions."
Haddock argued in part that the district court had failed to consider all of the ineffective
assistance of counsel and prosecutorial misconduct issues raised in the K.S.A. 60-1507 motion
and motion for DNA testing and asked the court for another hearing and to reconsider its
previous rulings.
On May 18, 2001, Haddock filed a "Supplemental Briefing in Support of Post-Trial
Motions and Request for DNA Testing," citing Harvey v. Horan, 2001 WL 419142
(E.D. Va.,
unpublished opinion filed April 16, 2001), rev'd 278 F.3d 370 (4th Cir.), reh.
denied 285 F.3d
298 (4th Cir. 2002). On July 19, 2001, Haddock filed a "Second Supplement to Post-Trial
Motions and DNA Testing Request; Petition for DNA Testing Pursuant to House Bill 2176."
This motion referred to K.S.A. 2005 Supp. 21-2512, which became effective on July 1, 2001.
Haddock argued he would be entitled to a new trial if the hair in the victim's hand, the glasses
found at the crime scene, or the fingernail scrapings contained a third party's DNA or was
different from the trial testimony.
On July 31, 2001, the parties filed a joint agreement to allow DNA testing of the hair, the
victim's fingernail scrapings, and the glasses. The parties agreed that the testing would be
accomplished by Dr. Brian Wraxall, Chief Forensic Serologist of the Serological Research
Institute of Richmond, California, who was selected by Haddock. On August 27, 2001, the court
ordered DNA testing on these items and the taking of a blood sample from Haddock for
comparison purposes.
On April 10, 2002, Haddock filed a "Motion to Dismiss" arguing the DNA testing
showed that the hair in the victim's hand came from a third party contrary to the State's expert's
testimony at trial. Additionally, Haddock argued that a reanalysis of a typing strip obtained from
GeneScreen revealed that blood on Haddock's shoe was consistent with his own blood rather than
that of the victim, contrary to the expert testimony at trial. He reasserted that trial counsel was
ineffective for failing to conduct a serious investigation into the State's DNA evidence.
On July 31, 2002, the State filed a response to the motion to dismiss in which it argued in
part that the defense had failed to comply with the parties' agreement regarding which three items
were to be tested and improperly obtained the PCR typing strips generated from earlier testings
by GeneScreen concerning the blood on Haddock's shoes.
On August 7, 2002, an evidentiary hearing was held on Haddock's request for further
DNA testing, the 60-1507 motion, and the motion to dismiss. Dr. Wraxall testified that the hair
had been subjected to STR analysis, which was much more discriminatory than the HLADQ
alpha system initially reported by GeneScreen; STR analysis determined that the hair was from a
female that was not consistent with the victim. The hair also had a fair amount of cellular debris
which was consistent with the hair being pulled out of the head. Dr. Wraxall concluded that the
DNA of the fingernail scrapings was that of the victim and there was no indication of any other
source of the DNA. The DNA on the eyeglasses was also consistent with that of the victim;
however, there was extraneous DNA on the glasses, possibly from a male source, but not
consistent with Haddock.
The district court would not let Haddock elicit testimony regarding Dr. Wraxall's analysis
of the GeneScreen DQ Alpha typing strips regarding the blood on Haddock's shoes because it
was outside the scope of the court's jurisdiction as it was not one of the three items agreed to be
tested in the motion for additional testing. Additionally, the court found that its relation to the
ineffective assistance of counsel claims was not a basis to retry all of the issues and facts of the
case. The defense did proffer that Dr. Wraxall would testify that the DNA profile on one spot of
Haddock's shoe was from a person with the same profile as Haddock and that the DNA on the
pants did not match the DNA found on the shoes, although the State produced evidence at trial
that the DNA on both the pants and the shoes belonged to the victim. Dr. Wraxall recommended
that further, more discriminatory PCR DNA testing be performed on the bloodstains on the shoes
and other pieces of evidence at the crime scene.
At the conclusion of the hearing, the district court found that overwhelming evidence of
Haddock's guilt was presented at trial and Haddock had not "met his burden of showing there is a
substantial question of innocence in this case." The court found the Kansas Supreme Court had
addressed the issues of prosecutorial misconduct on direct appeal, but the court clarified that it
did not find any evidence of prosecutorial misconduct in this case.
Although defense counsel suggested that the court had not addressed all of the ineffective
assistance of counsel claims and it had moved for reconsideration, the court found that it had
previously addressed the issue of ineffective assistance of counsel in detail in the 60-1507
motion. Defense counsel could not specify to the court which issues it was referring to at the
hearing. The court ruled that it was denying the 60-1507 motion in its entirety, reasoning that the
remaining issues concerning the competency of Dr. Bonita J. Peterson, chain of custody of
evidence, and Haddock's alibi defenses were all matters that should have been addressed on
direct appeal and that movant was attempting to retry the case under the guise of a 60-1507
motion. However, the court also granted defense counsel's request to file a motion seeking
further testing on the shoes and clothing.
On August 19, 2002, the defense filed a "Motion for DNA Testing of Shoes, Pants, and
Shirt." On October 31, 2002, Haddock filed a pro se "Motion for Partial Summary Judgement on
the 'Motion for DNA Testing of Shoes, Pants, and Shirt' Portion of the Discovery
Request/Motion filed August 19, 2002 under K.S.A. 21-2512." Haddock argued he was forced to
file the motion pro se because his out-of-state attorney was not responding to his letters or calls.
Attached to the motion was an affidavit from Judith Floyd, forensic manager of GeneScreen,
providing that the DNA in question on the shoe was most likely a mixture of two types of DNA
(rather than just the victim's DNA as was presented at trial) and recommended that additional
STR DNA analysis be performed to resolve the ambiguity presented by the typing strip.
On November 22, 2002, defense counsel withdrew from the case, and Haddock was
permitted to proceed pro se. On December 3, 2002, the district court filed an "Order Denying
Petitioner's Motion to Dismiss" journalizing its rulings from the August 7, 2002 hearing. On
January 8, 2003, Haddock filed a motion to dismiss the December 3, 2002 order. On January 30,
2003, a hearing was held on Haddock's motion for additional testing of the shoes, shirt, and pants
and on his motion to dismiss (which was construed by the court as a motion for reconsideration).
The State stipulated that it was willing to submit the items for further testing to the Laboratory
Corporation of America (Lab Corp.). However, Haddock wanted the testing performed by Dr.
Wraxall. Nevertheless, the district court directed that the Johnson County Criminalistics Lab
direct Lab Corp. to do the testing and report the results to the court.
On February 18, 2003, the district court issued an order denying Haddock's motion for
reconsideration; granting Haddock's motion for additional DNA testing on Haddock's shoes,
shirt, and pants; denying the motion to subpoena the prosecutor as a witness for the defense; and
denying his motion for an accident reconstructionist. The March 21, 2003, Lab Corp. report
found that the testing of the cuff area of the shirt failed to reveal the presence of blood, that an
attempt to develop a DNA profile from the cuff area of the shirt and the extracted DNA from the
shoe failed to yield results due to insufficient quantities of DNA, and the DNA extract from the
slacks was consistent with coming from a female source.
On June 25, 2003, Haddock filed a pro se request for admissions "for purposes of the
pending K.S.A. 60-1507, which is awaiting a final hearing on Lab Corp's DNA test results
(which now incorporates K.S.A. 21-2512) for the truth of any matters within the scope of K.S.A.
60-226." On July 25, 2003, the State filed a response to this request suggesting in part that Lab
Corp. perform an additional process where the remaining shoe extract could be concentrated
which would enhance the chances of obtaining a DNA profile. However, Haddock objected to
this process because it would require the complete consumption of the remaining extract.
On August 29, 2003, Haddock filed a petition for mandamus and immediate restraining
order with the Kansas Supreme Court requesting that the court take over jurisdiction of the case
and provide immediate relief. The petition and motion for rehearing were denied by this court on
September 23, 2003, and November 12, 2003.
On July 23, 2004, Haddock, through current counsel, filed a "Motion for Final Decision
Pursuant to K.S.A. § 60-254" requesting that a final order resolving all issues presented to
the
district court be filed so that he could file an appeal with the Court of Appeals. The motion
argued that the Lab Corp. report and the results contained therein must be considered by the
district court in the context of the entire proceeding or controversy in combination with all of the
claims previously raised by Haddock.
On October 25, 2004, the district court issued an order denying Haddock's motion. The
court found that it had issued orders ruling upon or otherwise addressing the issues raised in each
motion between April 1997 and November 2003. The court found that
arguably the only
remaining issue before the court was the motion for additional DNA testing on the shoes, shirt,
and pants; however, Haddock's refusal to agree to further testing/consumption by Lab Corp.
results in the fact that the lab cannot proceed and thus there were no substantive issues regarding
the most recent DNA testing before the court. The court found that "K.S.A. 60-254 is both
inapplicable to Mr. Haddock's request, and ineffective to resurrect jurisdiction over the Court's
previous rulings."
On November 4, 2004, Haddock filed a notice of appeal from all adverse rulings prior to
and including the final ruling by the district court on October 25, 2004. The case was
subsequently transferred to this court by its own motion pursuant to K.S.A. 20-3018(c).
On February 25, 2005, the parties stipulated that a January 19, 2005, letter from Assistant
Attorney General Jane E. Nohr to the prosecution and a 3-page response, generated by the
Kansas Bureau of Investigation (KBI) Biology Supervisor Sindey Schueler, to questions
presented by Haddock in a December 12, 2003, letter regarding the DNA evidence should be
added to the record. The parties stipulated that the KBI response was generated while the case
was pending and was not presented to Haddock until after his appeal was docketed. The letter
provided:
"We are in receipt of Richard Ney's letter dated January 10, 2005 requesting the
KBI's
opinion on DNA testing. We received [Haddock's] letter dated December 12, 2003, with limited
information provided. Our Biology Supervisor Sindey Schueler was reluctant to respond since
she
had not been provided all of the DNA files, notes and other relevant laboratory information. We
were only being provided what [Haddock] thought was important or relevant in his letter. As a
matter of practice, our laboratory does not provide expert opinions on evidence it has not
examined. If the court wants us to review the evidence, that is entirely a different matter.
"Ms. Schueler did generate a response as to the questions asked by [Haddock].
This
response was generated for internal purposes and was not intended to be distributed to [Haddock]
or others outside of the KBI. The response was written only based upon the written information
provided by the defendant as we are not aware of all the facts involved with this particular case.
These responses might change if provided with the complete laboratory file.
"Please provide this information to the defense should you feel the information is
exculpatory."
The KBI report included answers to questions asked by Haddock but did not include the
questions themselves. The report did include an opinion on the relevant items which will be
discussed in our analysis below.
POSTCONVICTION DNA TESTING
Haddock argues that his conviction should be vacated and he should be granted a new
trial because postconviction DNA testing proved that false DNA evidence was introduced at his
trial. Under the umbrella of this issue, Haddock argues he is entitled to a new trial because: (1)
favorable exculpatory DNA evidence was established under K.S.A. 2005 Supp. 21-2512,
requiring a new trial; (2) his conviction was based upon false evidence put on by the State
through its DNA expert at trial, Dr. Giles; and (3) exculpatory DNA evidence was withheld by
Dr. Giles at the same time the false evidence was introduced into evidence.
As a preliminary matter, we first consider whether some of the DNA evidence relied upon
by Haddock in support of this issue was presented to the district court and should be considered
by this court on appeal. See Volt Delta Resources, Inc. v. Devine, 241 Kan. 775,
782, 740 P.2d
1089 (1987) ("Evidence not presented to the trial court will not be considered for the first time on
appeal."). The State takes issue specifically with three items: (1) April 15, 2002, affidavit of
GeneScreen Analyst Judith Floyd; (2) March 25, 2002, affidavit of Dr. Brian Wraxall regarding
DNA typing of blood on shoes and corresponding proffer of this evidence; and (3) 2004 Report
of KBI Biology Supervisor Sindey Schueler.
The State first urges the court not to consider the Floyd affidavit because it was not
admitted into evidence. While this is true, it was attached to Haddock's October 31, 2002, motion
regarding DNA testing of the shoes, pants, and shirt; the defense referred to it at the January 30,
2003, oral argument; and it was seemingly considered by the district court in denying Haddock's
motion to reconsider. As such, we will consider it on appeal.
Second, the State points out that the district court refused to consider Dr. Wraxall's
affidavit and corresponding testimony concerning his review of the GeneScreen typing strips
regarding the blood on the shoes at the August 7, 2002, hearing because it constituted unfair
surprise and, at the time, the parties had only agreed to additional testing on the hair, glasses, and
fingernail scrapings. Haddock responds that it would be unconstitutional for this court to turn a
blind eye to this exculpatory evidence which demonstrates that his conviction rests on false
evidence.
It is important to note that although numerous motions have been filed in this case over
the years, and many of them are interrelated, the key proceedings to this case are the initial
60-1507 proceeding (and corresponding motion for DNA testing pre-K.S.A. 2005
Supp. 21-2512);
the motion for additional DNA testing of the hair, glasses, and fingernails under K.S.A. 2005
Supp. 21-2512; and the subsequent motion for DNA testing of the shoes, pants, and shirt under
K.S.A. 2005 Supp. 21-2512. The district court refused to consider Dr. Wraxall's review of the
shoe evidence in the context of first motion under K.S.A. 2005 Supp. 21-2512 because such a
review was not authorized by the court. However, in the context of the subsequent motion for
additional DNA testing of the shoes, this evidence was relevant, and it was referred to in the
October 31, 2002, motion concerning this additional DNA testing under K.S.A. 2005 Supp.
21-2512. As such, we will consider this affidavit on appeal.
Finally, the State argues that the 2004 KBI report was neither presented to nor considered
by the district court. Haddock argues that the stipulation by the parties provides that the report
was generated while the case was pending and had he been informed of the exculpatory report
pursuant to Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194
(1963), it
would have been presented to the district court. It is undisputed that this evidence was not
considered by the district court in this case, nor was Haddock given an opportunity to request a
motion to reconsider because the district court no longer had jurisdiction once the appeal was
docketed. See ARY Jewelers v. Krigel, 277 Kan. 464, 473, 85 P.3d 1151 (2004) ("'A
trial court
does not have jurisdiction to modify a judgment after it has been
appealed and the appeal
docketed at the appellate level.'"
However, Haddock bears some responsibility for never receiving this report. The January
19, 2005, letter from the KBI indicates that although Haddock sent the KBI a list of questions
concerning his DNA testing in December 2003, defense counsel did not request the response to
this letter until January 10, 2005, nearly 2 years later and 2 months after the notice of appeal was
filed in this case. Moreover, it is especially important that this report be considered by a
factfinder because the report was prepared for internal use only, answers questions posed by
Haddock which are not included in the report, utilizes only the information provided by
Haddock, and clearly states that the KBI's opinions might change if it was privy to all of the facts
and evidence of the case. As this report was never considered by the district court, we will not
consider it on appeal. See Volt Delta Resources, 241 Kan. at 782 ("Evidence not
presented to the
trial court will not be considered for the first time on appeal.").
K.S.A. 2005 Supp. 21-2512
The issues raised in Haddock's first motion for additional DNA testing under 21-2512 and
also under his second motion for additional DNA testing under 21-2512 are issues of first
impression in this state. As such, we must analyze the provisions of K.S.A. 2005 Supp. 21-2512.
Our legislature passed House Bill 2176 in 2001, which became effective on July 1, 2001, and is
codified to as K.S.A. 2005 Supp. 21-2512. It is important to note that Haddock had filed a
motion for additional DNA testing prior to the effective date of K.S.A. 2005 Supp. 21-2512,
which motion was denied by the trial court under the standard which existed prior to the
existence of the above statute. See Mebane, 21 Kan. App. 2d 533.
The provisions of K.S.A. 2005 Supp. 21-2512 are quite different in substance and
procedure from our former standard. K.S.A. 2005 Supp. 21-2512 provides:
"(a) Notwithstanding any other provision of law, a person in state custody, at any
time
after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as
defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the
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.
"(b)(1) The court shall notify the prosecuting attorney of a petition made under
subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the prosecuting
attorney shall take such steps as are necessary to ensure that any remaining biological material
that
was secured in connection with the case is preserved pending the completion of proceedings
under
this section.
"(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.
"(d) The cost of DNA testing ordered under subsection (c) shall be borne by the
state or
the petitioner, as the court may order in the interests of justice, if it is shown that the petitioner is
not indigent and possesses the means to pay.
"(e) The court may at any time appoint counsel for an indigent applicant under this
section.
"(f)(1) If the results of DNA testing conducted under this section are unfavorable
to the
petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess the petitioner for the
cost
of such testing.
(2) If the results of DNA testing conducted under this section are favorable to the
petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a
hearing;
and
(B) enter any order that serves the interests of justice, including, but not limited to,
an
order:
(I) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
(3) If the results of DNA testing conducted under this section are inconclusive, the
court
may order a hearing to determine whether there is a substantial question of innocence. If the
petitioner proves by a preponderance of the evidence that there is a substantial question of
innocence, the court shall proceed as provided in subsection (f)(2).
"(g) Nothing in this section shall be construed to limit the circumstances under
which a
person may obtain DNA testing or other postconviction relief under any other provision of law."
Before applying the provisions of the statute to the case we now consider, some comment
on its substantive and procedural aspects are warranted. Because of its scientific precision and
reliability, DNA testing can in some cases conclusively establish guilt or innocence of a
defendant. In other cases, DNA may not conclusively establish guilt or innocence but may have
significant probative value to a finder of fact. See State v. Buckman, 267 Neb. 505,
515-16, 675
N.W.2d 372 (2004). K.S.A. 2005 Supp. 21-2512 provides for certain mandatory dispositions and
procedural requirements depending upon the results of the additional DNA testing. There are
three possible results: (1) unfavorable, (2) favorable, and (3) inconclusive.
1. Unfavorable Results
If the additional DNA testing is unfavorable to the defendant, the court shall
dismiss the
petition and make an appropriate order for the assessment of cost for such testing. See K.S.A.
2005 Supp. 21-2512(f)(1)(A) and (B).
2. Favorable Results
DNA testing favorable to the defendant requires the court to ("the court shall") hold a
hearing notwithstanding any provisions of the law that would bar a hearing. Any time
requirements barring consideration of this motion, including the time requirements for a motion
for relief from judgment or motion for new trial, have no application. The provisions of the
statute contemplate a full due process hearing with notice to all parties and with an opportunity to
be heard in a meaningful manner. See K.S.A. 2005 Supp. 21-2512(b)(1), (e), and (f)(2)
(governing notice to and response of prosecutor, appointment of counsel for an indigent
defendant, and order for hearing). After the hearing, the court shall enter any
order that serves
the interests of justice, including, but not limited to, an order: vacating and setting aside
the
judgment; discharging the petitioner if the petitioner is in custody; resentencing the petitioner; or
granting a new trial. See K.S.A. 2005 Supp. 21-2512(f)(2)(B)(I), (ii), (iii), and (iv).
Any order entered should be accompanied by the court's findings of fact and its
conclusions of law on all relevant, contested issues addressed at the hearing so that appropriate
appellate review may be had should an appeal from such order be perfected. The legislature has
provided for any order to be entered that serves the interests of justice, including orders which
may dispose of the pending case before the court. The law does not provide detailed guidelines as
to when dispositive orders are required to be issued in particular cases, nor is detailed guidance
given as to what orders may be entered that would serve the interests of justice. However, the law
in this state provides ample guidance for district courts as to what orders may be appropriate in
the particular circumstances of the case before it. Since this is a new law, we provide some
comment on possible or probable dispositions available. However, we note that in the final
analysis, each decision must be based upon its peculiar facts and the trial court's sound discretion
granted in K.S.A. 2005 Supp. 21-2512.
a) Any Order that Serves the Interests of Justice
We make no comment concerning the provision of the law which provides that the
district court shall enter any order that serves the interests of justice.
Under this provision the
legislature has truly granted the district court wide discretion in the orders it may enter in its
decision to serve the interests of justice. Since the grant is almost limitless consistent with the
interests of justice and dependent upon the peculiar facts of the case being heard, it becomes
difficult to posit either orders that may be entered or under what circumstances such orders are
entered. We leave this matter to the sound discretion of the trial court and, upon review, would
only reverse if the court's exercise of such discretion constitutes an abuse of that discretion.
b) Vacating and Setting Aside the Judgment/Discharging the Petitioner
As indicated above, because of its scientific precision and reliability, DNA testing in
some instances may conclusively establish the guilt or innocence of a criminal defendant. When
such testing, based upon hearing, establishes the innocence of a criminal defendant, the court
should enter an order vacating and setting aside the judgment of conviction and enter an order
discharging the petitioner if the petitioner is in custody. Before such orders are entered, the
hearing judge must consider the favorable results with the evidence of the case which resulted in
the underlying judgment. The court must then determine that guilt cannot be sustained because
the new evidence completely exonerates the defendant or upon consideration of all the evidence,
the evidence of the new DNA results is so highly exculpatory so as to show a complete lack of
evidence to establish that a rational juror based upon all evidence could not fairly find the
defendant guilty beyond a reasonable doubt. Stated another way, in light of the favorable results,
the evidence establishing the guilt of the defendant is doubtful in character and completely
lacking in probative value with the result that a rational factfinder could not fairly find the
defendant guilty beyond a reasonable doubt.
We note that if the district court rules against the
defendant on this issue, the defendant
may appeal this order under K.S.A. 2005 Supp. 22-3602(a) ("an appeal to the appellate court
having jurisdiction of the appeal may be taken by the defendant as a matter of right from any
judgment against the defendant in the district court"). However, in contrast, if the district court
rules in favor of the defendant and vacates and sets aside the conviction, the State may not appeal
this order. See K.S.A. 2005 Supp. 22-3602(b) (prosecution may appeal as a matter of right from
"order dismissing a complaint, information or indictment"; "from an order arresting judgment";
"upon a question reserved by the prosecution"; or "upon an order granting a new trial in any case
involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case
involving an off-grid crime," and no others).
c) Resentencing the Petitioner
This order calls for vacating defendant's sentence and remanding for resentencing. What
has been said above with reference to vacating and setting aside the judgment would also apply
to this order. It assumes that an order vacating and setting aside the judgment has been entered
based upon the new DNA testing but that defendant had also been charged and convicted with
other crimes which have not been affected by the new DNA evidence. In such situations, the case
would have to be remanded for imposition of another sentence without the convictions vacated
by the new DNA evidence.
d) Granting a New Trial
In almost all cases where the new DNA evidence is favorable, except in those cases
where the court after hearing has entered any other order to serve the interests of justice, the
hearing judge is faced with a decision of whether to grant a new trial based upon the favorable
results from the new DNA testing.
The standard for whether to grant a new trial under such circumstances is similar to our
standard for granting a new trial based upon newly discovered evidence, except that no time limit
exists for such a motion and a defendant need not establish that the new evidence was newly
discovered. In all other respects it is treated as a motion for new trial governed by the provisions
of K.S.A. 22-3501: "The court on motion of a defendant may grant a new trial to him if required
in the interest of justice."
Just as the court "shall enter any order that serves the
interests of justice" under the
provisions of K.S.A. 2005 Supp. 21-2512, one such order "in the interest of justice" is an order
for a new trial. In order to grant such an order, the "evidence must be of such materiality that a
reasonable probability exists that it would result in a different outcome at trial. [Citation
omitted.]" State v. Henry, 263 Kan. 118, 132-33, 947 P.2d 1020 (1997). We
additionally note
that just as an order granting a new trial under K.S.A. 22-3501(1) is subject to an abuse of
discretion, the standard of appellate review of a trial court's order under K.S.A. 2005 Supp.
21-2512 is whether the trial court abused its discretion. See State v. Adams, 280
Kan. 494, 501, 124
P.3d 19 (2005).
3. Inconclusive Results
The first point that must be noticed about this provision of the statute is that unlike the
mandatory hearing required upon favorable results, the district court is granted discretion in
ordering a hearing when the DNA results are inconclusive. If the court orders a hearing, its
purpose is for the court to determine whether there is a substantial question of innocence. In such
a hearing, the defendant has the burden to prove by a preponderance of the evidence "that there is
a substantial question of innocence." See K.S.A. 2005 Supp. 21-2512(f)(3).
If the defendant meets such a burden, the court shall proceed as provided in K.S.A. 2005
Supp. 21-2512(f)(2); that is, the court shall:
"enter any order that serves the interests of justice, including, but not limited to, an order:
(I) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial."
Haddock argues that the district court's conclusion that the postconviction DNA test
results were inconclusive was wrong. He contends the evidence clearly and conclusively
excluded him as the source of the hair found in the victim's hand and proved that the DNA on his
shoes did not match the victim's DNA, that the DNA on Haddock's pants did not match the DNA
on his shoes, that there was no evidence of the presence of blood on his shirt, and that there was
no male DNA present in the victim's fingernail scrapings, contrary to the evidence presented at
trial.
It is important to recall that this case involves two separate motions under K.S.A. 2005
Supp. 21-2512 concerning two different sets of evidence. The first motion concerned testing of
the hair, the glasses, and the fingernail scrapings. The second motion concerned testing of the
shoes, slacks, and shirt.
At the August 7, 2002, hearing on the first motion and Haddock's motion to dismiss based
on the testing, subsequent DNA testing revealed that the hair was from a female other than the
victim, that the fingernail scrapings contained the victim's DNA, and that the glasses contained
DNA consistent with the victim and additional DNA which gave some indication as being male,
but was inconsistent with Haddock. The district court at least implicitly concluded that the above
evidence was inconclusive and that defendant had not met his burden of showing by a
preponderance of evidence that "a substantial question of innocence" based upon overwhelming
evidence of his guilt at trial existed. Thus, the district court affirmed the above conclusion in
denying defendant's motion for reconsideration.
It is clear to this court that the district court in resolving defendant's first motion
implicitly reached the wrong conclusion that the DNA evidence subject to the first motion was
"inconclusive." The postconviction DNA testing clearly established that the hair in the victim's
hand was consistent with a third-party female rather than Haddock as suggested by Dr. Giles at
trial. The fingernail scrapings tested indicated a DNA consistent with the victim's DNA profile
rather than Haddock's, and the eyeglasses contained both the victim's DNA and extraneous DNA
from another source, possibly male, but inconsistent with Haddock. There can be no question that
these results under law are favorable, and the district court erred in its application of the
provisions of K.S.A. 2005 Supp. 21-2512(f)(3). Instead, the district court should have applied the
provisions of K.S.A. 2005 Supp. 21-2512(f)(2). In this respect, the district court erred and its
decision regarding the first motion filed by the defendant under K.S.A. 2005 Supp. 21-2512 must
be reversed and the case remanded for further consideration of the defendant's first motion.
The district court's finding that the results were "inconclusive" may have been based on a
theory that the results had to either conclusively exonerate the defendant or they were considered
inconclusive. However, as discussed above, DNA results need not be completely exonerating in
order to be considered favorable. See Buckman, 267 Neb. at 515-16 (DNA may not
conclusively
establish guilt or innocence but may have significant probative value to a finder of fact).
People v. Dodds, 344 Ill. App. 3d 513, 801 N.E.2d 63 (2003), provides
further guidance
on this issue. In that case, postconviction DNA testing showed that blood on the defendant's
clothing did not match the victim's DNA. The court described this as a negative or non-match
results which were favorable in part: "Negative or non-match results are those, as in the instant
case, where the results show that the victim was not the source of a certain sample (defendant's
clothing here), but which results do not necessarily exclude the defendant as the perpetrator." 344
Ill. App. 3d at 518 n.2. The court found that "once DNA testing is ordered and the results are
favorable, at least in part, to a defendant, such as where a non-match is revealed, an evidentiary
hearing is necessary to determine the legal significance of the results because such results would
make a substantial showing of a constitutional violation." 344 Ill. App. 3d at 522.
In this case, the results of the hair, fingernail, and eyeglasses testing, while not
conclusively establishing Haddock's innocence, were favorable in part in that they supplied a
favorable inference that someone other than Haddock could have committed the murder. See
Dodds, 344 Ill. App. 3d at 523 ("the non-match for DNA evidence of the bloodstains
on
defendant's clothing could have supplied a favorable inference of defendant's innocence"). As the
testing results under defendant's first motion were favorable, the district court was required to
conduct a hearing under K.S.A. 2005 Supp. 21-2512(f)(2).
Although a hearing on the results was held in this case, the hearing was conducted
pursuant to K.S.A. 2005 Supp. 21-2512(f)(3), where Haddock had the burden to establish a
substantial question of innocence before one of the remedies under subsection (f)(2) could be
applied. As the district court placed an unnecessary burden on Haddock, we must remand and
order that a new hearing be conducted regarding the favorable results pursuant to K.S.A. 2005
Supp. 21-2512(f)(2). As the favorable DNA results in this case are not conclusively exonerating,
the district court must determine whether to order a new trial, or, in its discretion, enter some
other order in the interests of justice. As discussed above, in considering whether to grant a new
trial based on this favorable evidence, the district court must consider whether the "evidence . . .
[is] of such materiality that a reasonable probability exists that it would result in a different
outcome at trial. [Citation omitted.]" Henry, 263 Kan. at 132-33.
With reference to defendant's second motion for DNA testing concerning the shoes, shirt,
and slacks, the court ordered additional testing to be performed by Lab Corp. in a February 18,
2003, order. The results of this testing indicated that the cuff area of the shirt failed to reveal the
presence of blood, that an attempt to develop a DNA profile from the cuff area of the shirt and
the extracted DNA from the shoe failed to yield results due to insufficient quantities of DNA, and
that the DNA extract from the slacks was consistent with coming from a female source.
Contrary to Haddock's assertion in his brief on appeal, the district court never made a
finding that this evidence from the second motion was inconclusive under K.S.A. 2005 Supp.
21-2512. Rather, in response to Haddock's motion for final decision pursuant to K.S.A. 60-254,
the
court found that as a result of Haddock's refusal to submit to further DNA testing by Lab Corp.,
no substantive issues regarding the most recent DNA testing were before the court. We conclude
that the district court's resolution of the second motion for DNA testing is also in error and must
be reversed and remanded for further consideration by the district court.
On remand with reference to the defendant's second motion for DNA testing, the district
court must enter a final order concerning the effect of the Lab Corp. results on the shoes, shirt,
and slacks. As the record now stands, the evidence regarding the slacks is unfavorable to
Haddock because the evidence at trial established the blood on the slacks belonged to the victim.
At the same time, when evidence of additional testing on the shoes and shirt are added to the
mix, the court will have to make a determination as to whether the mix is favorable, unfavorable,
or inconclusive.
In many respects, the end result may depend upon Haddock. If Haddock chooses to
proceed with further DNA testing on the shoes and shirt, then the courts would be in a position to
evaluate whether the results of such tests are favorable, unfavorable, or inconclusive. If the
results are favorable, then the district court must consider the results at the hearing with the
favorable results under the first motion and enter any order consistent with the interests of justice
as set forth in K.S.A. 2005 Supp. 21-2512(f)(2) and (3). However, if Haddock chooses not to go
forward with further DNA testing on the shoes and shirt, the court must determine on the basis of
the evidence before it whether such results are favorable, unfavorable or inconclusive and apply
the appropriate provisions of K.S.A. 2005 Supp. 21-2512(f)(2) or (3).
In conclusion, the DNA results under the first motion concerning the fingernails, hair, and
eyeglasses were favorable rather than inconclusive, and the district court must conduct a hearing
pursuant to K.S.A. 2005 Supp. 21-2512(f)(2) and enter the appropriate order. Under the second
motion concerning the shoes, shirt, and slacks, the district court must make findings of facts and
conclusions of law regarding the DNA results depending upon Haddock's decision to proceed
with further testing. Although we are reversing and remanding on both motions, we will proceed
to consider Haddock's remaining arguments in the interest of judicial economy.
False Evidence / Suppression of Favorable
Evidence
In Haddock's original K.S.A. 60-1507 motion, he alleged numerous claims of
prosecutorial misconduct, including: "Knowing Use of False Testimony/Subornation of Perjury"
by "Robert Giles/GeneScreen," the improper use of Dr. Giles' testimony and report, and the
failure to disclose lab test results of fingernail scrapings, eyeglasses, and the GeneScreen report.
In a November 6, 1997, pro se "Motion to Dismiss Judgement of Conviction," Haddock asked
the court to dismiss the judgment in the 60-1507 case which set forth violations of his due
process rights, including the prosecution's knowing use of false testimony and failure to disclose
evidence.
The district court declined to consider the allegations of prosecutorial misconduct in its
March 30, 2001, memorandum order, reasoning that those issues were found without merit on
direct appeal. At the August 7, 2002, hearing on the motion, the court found no evidence of
prosecutorial misconduct as there "was full and complete discovery given to Mr. Haddock and
his attorneys from the get-go in this case." Of particular note, the district court at this time
refused to consider any evidence regarding Dr. Wraxall's review of the GeneScreen test
concerning the shoes, shirt, or slacks because it was outside the scope of the proceedings. In the
December 3, 2002, order denying Haddock's motion to dismiss, the district court found "no
evidence of any prosecutorial misconduct" and "no evidence that the State was hiding evidence
or failed to disclose evidence."
It is significant the district court had denied Haddock's 60-1507 motion alleging this
particular "prosecutorial misconduct" after two separate hearings before Haddock attempted to
seek additional testing on the shoes, shirt, and slacks. As he continued to obtain affidavits from
experts and then obtain the additional DNA testing, Haddock tried to keep his K.S.A. 60-1507
proceedings alive by filing repeated motions to reconsider or to amend each court order as he
further developed his arguments and obtained more information regarding the testing of the
shoes, shirt, and slacks. The district court recognized this fact in an April 9, 2003, order
responding to Haddock's pro se "Supplemental Brief in support of motions that were properly
before the court on Jan. 30, 2003":
"Mr. Haddock is advised that this Court lacks jurisdiction to entertain his
arguments
regarding alleged trial errors as many of them were either raised in his previous habeas petitions,
or could have been raised in the previous petitions. However, if petitioner can show that any
issue,
which was not raised and could not have been previously raised, rises to the level of a
constitutional violation, he can raise such issue(s) in a motion, pursuant to K.S.A. 60-1507.
Arguments regarding the denial of his habeas petitions or motions construed as habeas petitions
are properly presented on appeal to the Kansas Court of Appeals."
Likewise, in its final October 25, 2004, order, the district court found that it had ruled on all
previous motions and refused to issue a final decision pursuant to K.S.A. 60-254 "to resurrect
jurisdiction over the Court's previous rulings."
The district court in this case never performed any significant analysis concerning
whether the defendant's due process rights were violated because he was convicted based on false
evidence or explaining the basis for its conclusion that the State failed to disclose evidence.
Moreover, it does not appear that the district court ever considered the evidence regarding the
shoes, shirt, and slacks in this regard because Haddock went outside the scope of the initial
K.S.A. 60-1507 and K.S.A. 2005 Supp. 21-2512 proceedings where the parties agreed to
additional testing on only the glasses, the fingernail scrapings, and the hair.
In this respect, this case is analogous to Wright v. State, 2004 WL 502906
(Tex. App.,
unpublished opinion filed March 16, 2004), where the defendant asserted the trial court erred in
denying relief under his postconviction DNA motion; however, the substance of his argument on
appeal were allegations that the prosecutor had withheld exculpatory evidence. The court found
these issues were outside the scope of an appeal from postconviction DNA proceedings and the
court did not have jurisdiction to consider these arguments which should have been brought in a
habeas corpus proceeding.
Thus, in this appeal, where the 60-1507 motion had been denied by the district court, the
defendant's arguments concerning the falsity and the suppression of evidence concerning the
shoes, shirt, and slacks were not within the scope of the further proceedings under the second
K.S.A. 2005 Supp. 21-2512 motion. As such, these issues are not properly before this court on
appeal.
As to the defendant's due process claims regarding the hair and fingernail scrapings,
Supreme Court Rule 183(j) (2005 Kan. Ct. R. Annot. 228) requires a district court reviewing a
K.S.A. 60-1507 motion to make explicit findings of fact and conclusions of law regarding each
of the movant's specific issues. When the lack of findings impedes appellate review, remand is
required. State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000). Although the district
court
provided minimal analysis on this issue, this court is able to resolve the issue based on the record
before us.
In Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959),
the United
States Supreme Court overturned a murder conviction because a witness for the prosecution
falsely testified he had received no promise of leniency in return for his testimony, and the
prosecuting attorney, knowing the testimony was false, did nothing to correct it. The court
reasoned: "[I]t is established that a conviction obtained through use of false evidence, known to
be such by representatives of the State, must fall under the Fourteenth Amendment [citations
omitted] . . . . The same result obtains when the State, although not soliciting false evidence,
allows it to go uncorrected when it appears. [Citations omitted.]" 360 U.S. at 269.
In Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194
(1963), the
United States Supreme Court subsequently found: "[T]he suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." (Emphasis added.)
"[T]he three components or essential elements of a Brady prosecutorial
misconduct
claim: 'The evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.'" Banks v. Dretke, 540 U.S. 668,
691, 157 L.
Ed. 2d 1166, 124 S. Ct. 1256 (2004) (quoting Strickler v. Greene, 527 U.S. 263,
281-82, 144 L.
Ed. 2d 286, 119 S. Ct. 1936 [1999]).
The failure to disclose such information under Brady warrants a reversal only
if it is
material, and evidence is material only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. "'A
reasonable probability is a probability sufficient to undermine the confidence of the outcome.'
[United States v. Bagley,] 473 U.S. [667] at 668." In re J.T.M., 22 Kan.
App. 2d 673, 680, 922
P.2d 1103, rev. denied 260 Kan. 993 (1996).
Haddock does not allege that the prosecutor knew the DNA evidence presented in this
case was false; however, he argues the State still bears the responsibility for the introduction of
false evidence under Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S.
Ct. 763
(1972). In Giglio, one assistant federal prosecutor promised a key government
witness immunity
if he testified at trial. Another prosecutor, with no knowledge of the promise, tried the case, and
the witness testified at trial that he was still subject to prosecution. Giglio appealed the denial of
his motion for new trial on the basis of newly discovered evidence.
On appeal, the Supreme Court discussed Napue and Brady and
found that nondisclosure
of evidence affecting the credibility of a key witness to the verdict falls within the general rule of
Brady that suppression of material evidence justifies a new trial "'irrespective of the
good faith or
bad faith of the prosecution.'" 405 U.S. at 153. The Court found that a new trial is not necessary
unless a finding of materiality of the false evidence is made under Brady and the
false testimony
could in any reasonable likelihood have affected the judgment of the jury under
Napue. The
Court found that whether the nondisclosure was a result of negligence or design, it was the
responsibility of the prosecutor, and a promise made by one attorney must be attributed to the
prosecutor's office as an entity and as the spokesman of the government. As the government's
case rested almost entirely on the witness' testimony, due process required that the conviction be
reversed and remanded for a new trial. 406 U.S. at 154-55.
Haddock also cites Matter of W. Va. State Police Crime Lab, 190 W. Va.
321, 438 S.E.2d
501 (1993), where the prosecutor had no knowledge that its expert serologist witness willfully
offered false testimony. Relying on Napue, Giglio, and
Brady, the court concluded: "[I]t matters
not whether a prosecutor using Trooper Zain as his expert ever knew that Trooper Zain was
falsifying the State's evidence. The State must bear the responsibility for the false evidence. The
law forbids the State from obtaining a conviction based on false evidence." 190 W. Va. at 325.
Contrary to Haddock's assertion, Giglio does not stand for the proposition
that the State
does not have to have any knowledge of the false testimony. Rather, the Giglio Court
viewed the
evidence under both the Napue and Brady lenses after seemingly
concluding that the State's
actions were not only a presentation of false evidence but a failure to disclose exculpatory
evidence. See State v. McCarty, 271 Kan. 510, 514, 23 P.3d 829 (2001). Moreover,
unlike this
case, at least one of the prosecutors in the district attorney's office had knowledge that the
testimony was false in Giglio.
In this case, Haddock breaks his arguments under Napue/Giglio and
Brady into two
separate issues. While it clearly does not matter whether the State had knowledge of its actions to
establish a Brady violation, this court has subsequently interpreted
Napue by stating: "A
conviction obtained by the introduction of perjured testimony violates a defendant's due process
rights if (1) the prosecution knowingly solicited the perjured testimony, or (2) the
prosecution
failed to correct testimony it knew was perjured." (Emphasis added.)
State v. McKinney, 272 Kan.
331, 339, 33 P.3d 234 (2001) (citing Napue, 360 U.S. at 269). As Haddock concedes
that the
State had no knowledge that it was presenting false evidence through the testimony of its DNA
expert in this case, our analysis under the Napue issue technically ends here.
Nevertheless, as these two issues are obviously interrelated, we consider whether the
State presented false evidence or suppressed exculpatory or impeaching favorable evidence in
violation of Napue, Brady, and Giglio. Before considering
whether the presentation or
suppression of evidence under either Napue/Giglio or Brady had a
reasonable probability or
likelihood of affecting the jury's verdict, we must first determine whether the evidence was in
fact false under Napue or was favorable and suppressed by the State under the first
two steps of
the Brady analysis. Although Haddock points to five key pieces of evidence, we
address only the
two pieces of evidence which were properly brought before the district court under the K.S.A.
60-1507 proceedings:
1. Hair Found in the Victim's Hand Came from Haddock
Haddock argues Dr. Giles' testimony that the hair found in the victim's hand was from a
person with the DNA type 1.1/4, which was consistent with Haddock's profile and inconsistent
with the victim, was false because it was inconsistent with his own GeneScreen report which
found weak 1.1, 1.2, and 4 alleles in the hair, indicating a mixed specimen, and accordingly
excluding Haddock as a donor. Haddock points to defense expert Dr. Dean Stetler's opinion that
Dr. Giles' testimony was somewhat inaccurate and misleading in that the hair may contain a
contribution from Haddock, but could not be all from him. Moreover, Dr. Giles did not disclose
the "well known" fact the PCR test would sometimes show a weak 1.1 when none was present
and that one could assume that if the 1.1 and 4 came from the same person, they would be the
same intensity.
However, the State responds that Dr. Giles admitted on cross-examination that it was not
possible to determine if a 1.2 DQ Alpha type, such as from the victim, was also present in the
hair sample. Further, he testified that 9% of the Afro-American population, 5.9% of the Hispanic
population, and 7.4% of the Caucasion population had the same DNA type as Haddock,
presumably suggesting that Haddock was not necessarily the donor. It further points out that Dr.
Giles disclosed the presence of a third party in his report by stating that a specimen with more
than two indicated genotypes is a mixed specimen coming from more than one person. Finally,
the State argues that the faint 1.1 designation in the report would not necessarily preclude Dr.
Giles from concluding that it existed based on the testimony by the State's expert Dirks that
control tests are used on every PCR typing strip to assure the accuracy of the findings.
In this case, the subsequent more discriminating STR DNA testing showed that the hair
was from a third-party female and not from the victim or Haddock. However, we must emphasize
at the outset that this subsequent testing has no bearing on our analysis of whether the DNA
evidence admitted at trial was false. Rather, we are evaluating whether Dr. Giles' testimony
based on the PCR testing method used at the time of trial was false.
While it is easy to see from the trial transcript that Dr. Giles could have left the
impression with the jury that the hair was consistent that Haddock was the sole contributor,
careful review of the testimony as pointed out by the State reveals that Dr. Giles did not exclude
the fact that an allele consistent with the victim (1.2) may have also been present in the sample
and Haddock shared a DNA profile with a significant number of the population.
As such, we
conclude that Dr. Giles did not present false testimony based upon the PCR testing which was
performed prior to the 1993 trial.
In this same vein, Haddock's argument that Dr. Giles failed to disclose exculpatory or
impeaching evidence to the jury regarding the presence of three alleles in the hair sample is
without merit. Both the GeneScreen report and Dr. Giles on cross-examination disclosed the
possibility that the DNA mixture contained a 1.2 in addition to the 1.1 and 4. Although Haddock
argues the GeneScreen report was exculpatory, defense expert Dr. Stetler agreed with Dr. Giles
that it was possible based on the report that Haddock contributed to the DNA mixture. Finally,
although Dr. Giles did not testify that the testing sometimes produces a nonexistent 1.1, this
information was apparently inconsequential to this case. As the State's expert Dirks explained,
the presence of a weak 1.1 is established by having its intensity compared with a control test
before it would have been recorded. As such, Haddock has not demonstrated that Dr. Giles or the
State failed to disclose exculpatory or impeaching evidence to the defense regarding the hair
sample.
As this evidence was neither false under Napue nor suppressed under
Brady, Haddock
has not established a due process violation with regard to the hair sample.
2. Victim Scratched Haddock When She Was Attacked
At trial, the State presented evidence that the bruises and abrasions on both the victim's
hands and arms were consistent with defensive wounds and that Haddock had fresh scratch
marks on his wrists on the day of her death. Haddock was cross-examined about this theory at
trial.
Haddock argues that Dr. Wraxall's posttrial DNA testing on the fingernail scrapings taken
from the victim established that the scrapings were consistent with the victim. Haddock argues
the absence of his DNA under the fingernails of the victim contradicted the State's evidence at
trial that the victim scratched Haddock when he was attacking her and that this evidence was
withheld from the jury.
Haddock's argument is without merit. The fact that the victim's own DNA evidence was
found under her nails was not inconsistent with the implication at trial that the victim scratched
Haddock. As the State correctly points out, the officer who observed the defendant's scratches
described them as having "flaps of skin at the edge of the scratches." The presence of these flaps
of skin still on Haddock's wrist is consistent with a finding that his DNA would not be found
under the victim's nails. Moreover, Haddock makes no allegation that the State had performed
similar DNA testing of the fingernails prior to trial and failed to turn it over to the defense. As
such, Haddock has not demonstrated that evidence at trial concerning the scratching or the
fingernail scrapings was false or withheld from the defense.
In conclusion, as the defendant has not established that this evidence was in fact false
under Napue or was favorable and suppressed under Brady, we need not
proceed to determine
whether it had a reasonable likelihood or probability of changing the result of the trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his original pro se K.S.A. 60-1507 motion, Haddock alleged nearly 90 individual
points of ineffective assistance of counsel. The district court's first memorandum order stated that
Haddock had failed to demonstrate that counsel's representation fell below the standard set forth
in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), and the quality of
representation
was well above that required in order to constitute effective assistance of counsel:
"'There are countless ways to provide effective assistance in any given case. Even
the
best criminal defense attorneys would not defend a particular client in the same way.' [Citation
omitted.] The Kansas Court of Appeals has determined that, in a situation where the State tests
DNA evidence and finds that the defendant is implicated by that DNA, defense counsel's failure
to submit the DNA sample for testing by an independent expert does not automatically render
counsel ineffective. Sanders v. State of Kansas, 26 Kan. App. 2d 826, 995 P.2d 397
(1999). 'The
fact is that independent testing might, as petitioner argues, have produced evidence in his favor;
however, it also might have verified that the State's evidence was accurate. . . . The decision not
to
have the DNA independently tested was a tactical decision and not a deficient one, and we hold
that it did not constitute ineffective assistance of counsel.' Sanders, 26 Kan. App. 2d
at 829 [].
The Court agrees with and applies the foregoing in denying petitioner's assertion of ineffective
assistance of counsel."
At the August 7, 2002, hearing regarding Haddock's motion to dismiss based on the
results of the first round of DNA testing under K.S.A. 2005 Supp. 21-2512, the court found that
it had previously addressed the issue of ineffective assistance of counsel in detail in the 60-1507
motion. When defense counsel suggested that the court had not considered all of the issues
(although he could not point to anything specific), the court ruled that it was denying the 60-1507
motion in its entirety, as the remaining issues were all matters that should have been addressed
on direct appeal and defendant was attempting to retry the case under the guise of a 60-1507
motion.
On appeal, the defendant raises several claims of ineffective assistance of counsel. The
following standard of review is applicable to each:
"Before counsel's assistance is determined to be so defective as to require reversal
of a
conviction, defendant must establish (1) counsel's performance was deficient, which means
counsel made errors so serious that counsel's performance was less than that guaranteed by the
Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires
showing counsel's errors were so serious they deprived defendant of a fair trial. Judicial scrutiny
of counsel's performance in a claim of ineffective assistance of counsel must be highly
deferential.
To show prejudice, the defendant must show a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. A court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation
omitted.]" State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000).
These performance and prejudice prongs are mixed questions of law and fact requiring de
novo review. Easterwood v. State, 273 Kan. 361, 370, 44 P.3d 1209, cert.
denied 537 U.S. 951
(2002).
Failure to Investigate Physical Evidence
1. Dr. Giles' DNA Findings / Independent DNA Expert
Haddock argues that trial counsel was ineffective in failing to investigate Dr. Giles' DNA
findings and employ an independent DNA expert. Haddock asserted in his K.S.A. 60-1507
motion that trial counsel admitted to appellate counsel that the "report seemed so conclusive on
page 1 that he never read any further." On appeal, he contends this failure to read and review the
report fell below an objective standard of reasonableness and constituted a deficient performance
because trial counsel was unable to cross-examine Dr. Giles about the exculpatory evidence that
the hair in the victim's hand had an unexplained third allele that could not have come from
Haddock.
Haddock presented no evidence at the hearings below or to this court on appeal that trial
counsel in fact failed to read the entire report other than his unsubstantiated hearsay allegation in
his petition, nor does he argue that the district court should have conducted an evidentiary
hearing on this particular ineffective assistance of counsel issue. In viewing the record, we find it
unlikely that trial counsel neglected to read the report, as he challenged the specific procedures
used by GeneScreen in conducting the PCR testing in a pretrial hearing and filed a pretrial
motion in limine seeking to exclude DNA evidence accordingly. See Haddock, 257
Kan. at 983-85.
Further, as discussed above, trial counsel did in fact point out on cross-examination that
Dr. Giles' testing could not exclude the fact that a 1.2 allele, consistent with the victim, might
also be present in the hair sample. Additionally, in closing argument, the defendant argued:
"DNA hair is interesting. The DNA hair, we know the procedure that was used,
the one
in twenty method, not the more reliable procedure, but we know that of the procedure that was
used, the exact quote from Doctor Giles was, 'It's not possible to determine if a one point two
type
may also be present,' and we know Barb had DX Alpha, one point one and one point two. We
know the hair was a body hair, not a head hair, not a toupee hair, while there is a follicle on it. Is
that so uncommon to have body hair in your own hands, and yet they say beyond a reasonable
doubt they've shown that it's Ken's body hair, and there's no explanation that it's Ken's or Barb's.
State hasn't shown beyond a reasonable doubt that it's Ken's hair."
If defense counsel had sought further DNA testing, it is entirely possible that this allele
could have been proven not to be present at all and thus an argument for attacking the results
would be lost. See Sanders v. State, 26 Kan. App. 2d 826, 829, 995 P.2d 397 (1999),
rev. denied
269 Kan. 932 (2000) ("Defense counsel had shown the State's evidence to have some exploitable
weaknesses which would disappear if another and independent test verified the original results.").
As such, despite Haddock's claims to the contrary, there is support for the district court's
conclusion that the decision not to seek further DNA testing was tactical rather than deficient.
Haddock also argues that defense counsel was deficient in failing to consult with an
independent DNA expert and learning that the particular test performed in this case sometimes
gives a spurious, weak 1.1 allele when none is present at all. In the absence of this 1.1 allele,
Haddock would have been excluded as the source of the hair. As previously discussed, the State's
expert Dirks testified that the 1.1 allele detected by GeneScreen would have been compared with
a control allele to determine whether it was in fact present. As such, it appears that this particular
information would have had little effect on this case.
Defense counsel was not ineffective in failing to investigate Dr. Giles' DNA findings and
employ an independent DNA expert or in failing to consult with an independent DNA expert.
2. Bloody Shoeprints
At trial, Johnson County Criminalistics Trace Analyst William Chapin testified that
bloody shoeprint evidence with a "pretty well-defined pattern" was found at the crime scene.
Frank Hartley, a neighbor who tried to resuscitate the victim, testified that he was wearing tennis
shoes that day. Hartley testified that he saw a picture of the shoe prints at the scene and identified
them as his own.
Michael Kelty, a shoe impression expert from the Johnson County Crime Lab, testified on
behalf of the State that his comparison of Hartley's shoes to the partial shoe impressions found on
the floor of the garage was inconclusive. He opined that the patterns of the sole were similar, but
there were not sufficient individual characteristics to make an identification. On
cross-examination, defense counsel elicited testimony that the impressions absolutely did not
match
Haddock's wingtip shoes.
At the February 20, 2001, hearing on Haddock's K.S.A. 60-1507 motion and first motion
for DNA testing, shoe print comparison expert John Cayton testified on behalf of Haddock over
the State's objection that this evidence had nothing to do with the motion for DNA testing.
Haddock explained in part that this issue was embraced in Haddock's lengthy 60-1507 motion
which initiated the case. Cayton reviewed pictures of prints from Hartley's shoes and pictures of
the bloody shoeprints and concluded that there was some difference between the two, but without
further examination, he could not make a determination of whether Hartley's shoes made the
impressions.
The defendant argues that trial counsel was obviously aware that there were bloody
shoeprints at the crime scene and the State's own expert could not conclusively match those
prints to Hartley's shoes. As such, he contends trial counsel was ineffective in not hiring its own
shoeprint expert to point out differences in the prints to raise the possibility that the print was left
by the victim's true killer.
The problem with the defendant's argument is that the State's expert at trial essentially
performed this task for the defense by being unable to positively identify the shoeprints as
belonging to Hartley and clearly ruling out the possibility that it was left by Haddock's shoes.
Moreover, Cayton's testimony on behalf of the defense in the posttrial hearing that he likewise
could not make a definitive determination certainly does not aid Haddock's argument that defense
counsel would have been able to obtain an expert to provide any new evidence that would have
affected the outcome of the trial. As such, the defendant's trial counsel was not deficient in
failing to obtain a shoeprint expert at trial.
3. Eyeglasses
Haddock argues that trial counsel made no investigation into a pair of broken eyeglasses
found at the crime scene and did not learn that they did not belong to Haddock or the victim prior
to trial. Haddock argues that if trial counsel would have investigated the glasses and submitted
them for DNA testing, the jury would have heard from a DNA expert such as Dr. Wraxall that
the glasses revealed the presence of DNA consistent with the victim, a female, and a mixture of
DNA profiles with some indication of male DNA which was not consistent with Haddock, which
would suggest that someone other than Haddock and the victim were present at the crime scene.
The State first responds that Haddock's argument is premised on the subsequent and far
more discriminating STR DNA analysis which was not available at the time of trial in this case.
This point has merit. Haddock offers no evidence that these same results would have been
achieved if the State or the defense had sought Alpha Q DNA testing at the time of trial.
The State also points out that there was no showing in any of the hearings that the
defendant was unaware of the glasses found in the garage. The evidence suggested that the
glasses belonged to the victim, as they were found next to the victim's body, the victim wore
glasses, she was struck on the head numerous times, she was dragged across the garage floor, and
the lenses to the glasses were no longer attached to the frames. Although the victim's son said in
a posttrial hearing that the victim's glasses were accounted for, he subsequently testified that the
victim may have owned more than one pair of glasses.
Further, it is significant that the only DNA identified on the glasses by Dr. Wraxall was
that of the victim. Although the defendant argues that evidence of extraneous DNA would help
prove the presence of a third person, his own expert testified that the presence of multiple
sources of DNA is "not too surprising if you think of a pair of glasses that is particularly if it's
utilized or handled by different people, you can certainly get small amounts of DNA." Moreover,
the glasses were found on a garage floor which also raises contamination issues. As such, the
defendant has not established that trial counsel was deficient in failing to investigate and obtain
further DNA testing on the glasses.
4. Fingernail Scrapings
Haddock argues that trial counsel's failure to submit the victim's fingernail scrapings for
DNA testing constituted ineffective assistance of counsel. Had counsel done so, counsel could
have submitted evidence similar to Dr. Wraxall's findings that the scrapings were consistent with
the victim's DNA and showed no presence of male DNA, contrary to the State's theory that the
scratches on Haddock's wrist were from the victim.
The problem with this argument is that, as discussed above, the evidence showed that the
scratches on Haddock's wrist were fresh and still had the flaps of skin hanging from them. This
would be consistent with further DNA testing that revealed only the victim's DNA in the
scrapings. Moreover, it is clear from closing argument that trial counsel's decision not to submit
the scrapings for further DNA testing was a tactical decision which enabled counsel to cast doubt
on the State's theory at trial:
"Where's the evidence of the fingernail scrapings with respect to that, if it's
consistent
with their theory? You got the body hair when you were scraping his hairy arms. Where's that
evidence? You don't see it, because it's not there, because the State hasn't proven the case beyond
a reasonable doubt."
Had the defendant proceeded with the testing, a possibility existed at that time that the DNA
might be consistent with Haddock, which would preclude this argument. As such, the district
court properly concluded that the decision not to have the DNA independently tested was a
tactical decision and not a deficient one. See Sanders, 26 Kan. App. 2d at 829.
5. Cumulative Error
Haddock argues he was prejudiced by trial counsel's failure to investigate the physical
evidence in this case and call an expert DNA witness because ultimately the postconviction DNA
testing showed that the DNA evidence used at trial was false. Haddock further contends trial
counsel's failure to investigate deprived him of the right to present his theory of defense that
another person committed the crime.
As discussed above, Haddock has not established that defense counsel was deficient in
failing to conduct further investigation and obtain further DNA testing in this case, nor has he
established that his conviction was based upon false evidence. As such, there is no need to
consider the prejudice prong of the test.
Failure to Object to Closing Argument
During closing argument of trial, the prosecutor made the following statements relevant
to this issue:
"[T]he mouthpiece in this case for the defendant, at least in part, is the defendant himself,
and if
he's telling lies in this case about material things such as the clothing that he's wearing, he has to
live with those lies . . . ."
"[Y]esterday I could have sworn I heard the defendant say under no uncertain terms when
. . . Mr.
Hobbs picked the shirt up and showed it to him, he said, 'I did not wear this shirt on November
the
20th,' but yet, he comes in here today, this morning, and says, 'No. I did wear that shirt on
November 20th, and I wore it and took it off over the noon hour because the seventh button was
missing.' The defendant also tells you that the spacing between the buttons is such that it was
obvious that the button was exposed to his wife, and he tells you the spacing is different than the
shirt that he has on right here. Why, ladies and gentlemen, why would you lie about that
sort of
thing? I would contend to you that we had one very bright, intelligent defendant, who has sat here
throughout the entirety of this case, listened to every witness that has come through the door, and
weighed and gauged, just so he could weave his story to fit the facts in this case, and he's had to
change his story in a way that he feels is going to be most palatable to you, as jurors. Some
of the
stuff he couldn't get around, like the sweater. It's just very clear from the tape that he contends to
you that the reason that the sweater was put on was so that he could meet with an attorney. That's
what he tells Detective Roger Larue, yet he's off to parts unknown that entire afternoon, never
once getting back with his office to see whether or not his attorney has checked in.
"Why are we lying about the sweater? Well, again, the clothes, ladies and
gentlemen, are
the key to this case. The clothes are the key to this case." (Emphasis added.)
"The reason that he's lying about the clothing and the reason he's trying to play a
confusion game with you, ladies and gentlemen, about the clothes is because he wants like heck
for you to buy the notion that he did not wear those pants on November the 20th."
"[W]hat is going to speak loudly and clearly for Barbara Haddock is that pair of pants and
those
shoes, and you can't alter the pair of pants and you can't alter the shoes. You can alter a
watch.
You can alter a pile of logs. You can pull a vehicle out, and you can do a lot of lying afterward to
try to cover your tracks, but you can't alter what's contained on the pair of pants and you cannot
alter what's contained on those shoes." (Emphasis added.)
Haddock argues trial counsel was ineffective in failing to object to the State's closing
argument where the prosecutor repeatedly improperly argued that Haddock was lying to the jury,
citing State v. Pabst, 268 Kan. 501, 505-07, 996 P.2d 321 (2000), and State v.
Lockhart, 24 Kan.
App. 2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997). The State
responds that trial
counsel in 1993 would not be expected to divine the future of this appellate case law and refers
this court to case law in effect at the time of trial, in addition to more recent case law.
We recognize that Haddock is attempting to raise a trial error, i.e.,
prosecutorial
misconduct, under the guise of a K.S.A. 60-1507 motion claim of ineffective assistance of
counsel in order to overcome the fact that he did not raise the issue on direct appeal or claim
exceptional circumstances existed for his failure to do so. See Supreme Court Rule 183(c)(3)
(2005 Kan. Ct. R. Annot. 228). Regardless of whether we consider the issue, Haddock's
argument is without merit.
In order to determine if counsel was deficient for failing to object to these statements
under the first step of the ineffective assistance of counsel analysis, the court must determine
whether the statements constituted prosecutorial misconduct:
"A two-step analysis is applied to allegations of prosecutorial misconduct. First,
the court
decides whether the prosecutor's comments were outside the wide latitude allowed in discussing
the evidence. Second, the court must decide whether the comments constitute plain error, that is,
whether the statements prejudiced the jury against the defendant and denied him or her a fair
trial,
thereby requiring reversal. The second step is a particularized harmlessness inquiry for
prosecutorial misconduct cases."
"In the second step of the two-step analysis for alleged prosecutorial misconduct
the
appellate court considers three factors to determine if the prosecutorial misconduct so prejudiced
the jury against the defendant that a new trial should be granted: (1) whether the misconduct is
gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3)
whether the evidence against the defendant is of such a direct and overwhelming nature that the
misconduct would likely have little weight in the minds of the jurors. None of these three factors
is individually controlling. Before the third factor can ever override the first two factors, an
appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and
Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have
been met."
State v. Tosh, 278 Kan. 83, Syl. ¶¶ 1, 2, 91 P.3d 1204 (2004).
In this case, the State correctly points out that Haddock bases his argument on cases
which were decided several years after his 1993 trial. See Bryant v. State, 280 Kan.
2, 10, 118
P.3d 685 (2005) (attorney was not ineffective for failing to predict a judicial ruling that had not
been yet announced). In order to address the first prong of the prosecutorial misconduct issue, it
is first necessary to review the relevant case law.
In State v. McClain, 216 Kan. 602, 608, 533 P.2d 1277 (1975), the defendant
argued he
was denied a fair trial because the prosecutor in his closing argument injected his personal belief
or opinion as to appellant's credibility as a witness. This court rejected that argument reasoning:
"Here there was no contemporaneous objection to the argument now complained
of and
that might well end the matter [citation omitted]. However, in our opinion the argument
amounted
to no more than comment on the inherent improbability of the testimony given by appellant and
was not improper. Counsel may comment on the credibility of a witness where his remarks
are
based on the facts in evidence and a considerable latitude is allowed in that discussion
[citation
omitted]. Appellant was not prejudiced by the prosecution's closing argument." 216 Kan. at 608.
Prior to the defendant's trial in this case, this court later clarified that the failure of counsel to
object to improper comments by the prosecutor precluded appellate review. State v.
Crabtree,
248 Kan. 33, 37, 805 P.2d 1 (1991).
In State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (1994), the prosecutor
vouched for one
witness' credibility and repeatedly suggested the defendant was lying or called him a liar when
discussing the inconsistencies in his testimony during closing argument. The State argued
prosecutors had wide latitude and this was a response to an attack by the defense on the
credibility of its own witnesses. The court found that comments improperly characterized the
defendant as a liar but did not so prejudice the jury against him so as to deny him a fair trial
under the standard applicable at that time, i.e.: "Improper remarks made in closing
argument are
grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the
accused and deny him or her a fair trial." 255 Kan. at 134-35.
In contrast, the Pabst court found reversible error where the prosecutor
accused the
defendant of lying 11 times during closing argument despite repeated objections by the defense.
The court reasoned in part the assertion that the defendant was a liar was improper because it is
improper for a lawyer to comment on a witness' credibility. 268 Kan. at 506. In so finding, the
court disapproved of contrary language in McClain ("Counsel may comment on the
credibility of
a witness where his remarks are based on the facts in evidence and a considerable latitude is
allowed in that discussion."). Pabst, 268 Kan. at 507. Moreover, the court found that
the failure
to raise a contemporaneous objection did not necessarily preclude appellate review:
"Reversible error predicated on prosecutorial misconduct must be of such a magnitude as
to deny
a defendant's constitutional right to a fair trial. See State v. Sperry, 267 Kan. 287,
308, 978 P.2d
933 (1999). Some complained-of prosecutorial statements were not objected to at trial. If the
claimed error has been determined to implicate a defendant's right to a fair trial, our
standard of
review is the same whether or not an objection was made at trial. If the claimed error rises
to the
level of a denial of the Fourteenth Amendment right to due process, the issue will be addressed.
[Citation omitted.]" (Emphasis added.) Pabst, 268 Kan. at 504.
In this case, virtually all of the statements complained about on appeal were suggestions
that the defendant was lying about the clothing he was wearing when he came home for lunch
and why he changed clothing. Even under the more liberal standard set forth in
McClain
permitting counsel to comment on the credibility of the witnesses, we cannot say that the
prosecutor's repeated statements that Haddock was lying were nothing more than pointing out
inconsistencies based on the facts in evidence. Even in Whitaker, which found no
reversible
error, we found that similar repeated statements characterizing the witness as a liar were
improper.
Likewise, under Pabst and subsequent cases, it is clear that "calling the
defendant a
liar . . . [is] outside the wide latitude allowed to prosecutors in closing
arguments." State v.
Donaldson, 279 Kan. 694, 709, 112 P.3d 99 (2005). As such, we conclude the comments
in this
case repeatedly characterizing Haddock as lying were clearly improper, and counsel was thus
deficient in failing to object to these improper comments at trial.
This leads to the second prong of both the prosecutorial misconduct and ineffective
assistance of counsel analyses; both involve the resulting prejudice to a defendant. Haddock does
not suggest, and the record does not show, that the prosecutor's statements were gross and
flagrant or reflected ill will on the part on the prosecutor. Rather, Haddock cites a myriad of
cases from other jurisdictions and jumps straight to the prejudice prong of the analysis. He
contends that his credibility regarding what clothes he had on the day of his wife's murder was
significant and these "statements would likely have great weight in the minds of the jury in this
case." See Lockhart, 24 Kan. App. 2d at 492-93.
There is no doubt that the defendant's credibility regarding the clothes was important to
the case. However, even if the defendant's objections to this argument had been sustained, no
reasonable likelihood exists that the outcome of the trial would have been any different. These
comments reflected a minuscule part of a 5-day trial and were likely to have little weight in the
minds of the jury. The jury heard Haddock's testimony at trial and was able to judge for itself
whether his explanations were credible. Additionally, whether the jury believed the defendant's
reasons for changing clothes over the lunch hour or not, this did not change the overwhelming
circumstantial evidence of the defendant's guilt presented at trial, even if we exclude the DNA
evidence from our consideration. Thus, neither the prosecutorial misconduct itself nor the
deficient performance of counsel amounted to prejudicial error.
We additionally note that although Haddock is asserting that counsel's failure to object
violated his constitutional right to a fair trial, the standard of appellate review would have
remained the same if the prosecutorial misconduct issue had been raised on direct appeal in the
absence of an objection. Haddock failed to raise this particular prosecutorial misconduct on
direct appeal, and he asserts no exceptional circumstances for the failure to raise this issue on
direct appeal. See Supreme Court Rule 183(c)(3) (2005 Kan. Ct. R. Annot. 228). As such,
Haddock is unable to establish that he would have been prejudiced on appeal by counsel's failure
to object to the alleged prosecutorial misconduct.
Failure to Impeach Sherry Benn's Testimony
Haddock argues his trial counsel was ineffective in failing to impeach Sherry Benn's
testimony which contradicted her statement to Detective James Pyke.
At trial, Sherry Benn testified that she called the victim between approximately 1:30 and
2 p.m. the afternoon the victim was found. The victim said she was making some chili and
mentioned that Haddock had come home for lunch that day. Benn testified that based on this
response, she could not tell, nor did she ask, whether Haddock was there at the time of the phone
call. On cross-examination, Benn denied that the victim told her that Haddock had been home for
lunch and had just left before she called. She also denied saying that to Detective James Pyke as
well.
Haddock argues that trial counsel's failure to impeach Benn's testimony by introducing
Detective Pike's report as evidence or by calling Detective Pike to testify amounted to a deficient
performance under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.
Ct. 2052
(1974). The report provides in relevant part:
"Sherry advised she returned to work from her lunch break at approximately 1330 hours,
11-20-92. She did some work at the office and then called Barbara Haddock at home. Sherry
estimated
the time as being almost 1400 hours. She talked with Barbara on the phone for less than five
minutes. Sherry stated Barbara talked about her husband had been home for lunch and had just
left before Sherry called her."
Haddock contends this impeachment would have bolstered his assertion that he had already
left
the house before 2 p.m. that day which would have seriously undermined the State's theory that
Haddock was in the house at the time of the crime.
The State first points out that no evidence was presented on this issue before the trial
court and Haddock's recitation of what was said in the report was simply an assertion in his
K.S.A. 60-1507 motion. In his reply brief, Haddock blames this on the district court's failure to
conduct an evidentiary hearing on the ineffective assistance of counsel issues raised in his
60-1507 motion or to make findings of fact and conclusions of law as required by Supreme Court
Rule 183(j) (2005 Kan. Ct. R. Annot. 228). He seeks to remedy the fact that the police report was
not presented to the trial court below by attaching it as an appendix to his reply brief.
However, an appendix to an appellate brief is not a substitute for the record on appeal,
and material so attached will not be considered by this court. Supreme Court Rule 6.02(f) (2005
Kan. Ct. R. Annot. 36); In re Gershater, 270 Kan. 620, 633-34, 17 P.3d 929 (2001).
Moreover,
"[e]vidence not presented to the trial court will not be considered for the first time on appeal."
Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 782, 740 P.2d 1089 (1987).
Even if this court were to consider the issue, the testimony at issue was not as prejudicial
as suggested by the defense. See Strickland, 466 U.S. at 697 ("[A] court need not
determine
whether counsel's performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.").
The State's general theory at trial was that the murder happened around or shortly after 2
p.m. The Haddock's neighbor, Jackie Rowles, testified that she saw Haddock's van parked in the
driveway at 2 p.m. but it was gone at 3:20; the mail carrier saw someone matching Haddock's
description picking up mail from a community mail box at about 2 pm; and another
neighbor,
JoEllen VanDyke, testified that she heard a noise like something had fallen outside about 5 or 10
minutes after 2 p.m. Haddock himself testified at trial that he left the house to get the mail at
approximately 1:45 and that he left the house again at approximately 2 p.m. to go to the library.
Benn's testimony was in this same vein. She could not definitively remember what time
she called the victim, suggesting it was approximately 1:30 to 2 p.m. Even if the defense had
impeached her testimony with the report where she said the victim had stated the defendant just
left, there is not enough discrepancy in approximate times so as to have made a difference in the
trial. For example, the victim could have been referring to Haddock leaving to get the mail or he
could have just left shortly after 2 p.m., if the times are only approximate. Moreover, without
presenting the report, trial counsel did suggest on cross-examination that Benn's trial testimony in
this regard was inconsistent with her statement to the police. As such, it cannot be said that the
failure to impeach this brief exchange was so serious that it deprived Haddock of a fair trial.
CONCLUSION
(1) We reverse and remand the district court's order regarding Haddock's first motion
for
DNA testing under the provisions of K.S.A. 2005 Supp. 21-2512.
(2) We reverse and remand the district court's order regarding Haddock's second
motion for
DNA testing.
(3) We affirm the district court's denial of Haddock's K.S.A. 60-1507 motion.
Affirmed in part, reversed in part, and remanded for further proceedings under K.S.A.
2005 Supp. 21-2512.
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