Opinion
No. 107,391.
2013-03-8
STATE of Kansas, Appellee, v. Rodney BOYD, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
ARNOLD–BURGER, J.
Rodney Boyd appeals the district court's denial of his request to have forensic DNA testing performed on biological material related to the investigation and prosecution that resulted in his 1997 conviction of rape and aggravated burglary. The court denied Boyd's motion because there was no biological material in the actual or constructive possession of the State. Boyd argues that was because the evidence had been destroyed in bad faith and, accordingly, he was denied his constitutional right to due process. Because the evidence was destroyed pursuant to a court order, the propriety of which Boyd does not challenge, and there is no evidence that the destruction was accomplished in bad faith, his claim fails. Affirmed.
Factual and Procedural History
Only a brief chronology is necessary to provide context for the parties' arguments.
In January 1997, a jury convicted Boyd of aggravated burglary and the rape of R.P. In doing so, the jury rejected Boyd's defense that his sexual intercourse with R.P. was consensual. This court affirmed his conviction on direct appeal, and our Supreme Court denied his petition for review of that decision on June 8, 1999. State v. Boyd, No. 78,875, unpublished opinion filed March 26, 1999, rev. denied June 8, 1999.
On September 16, 1999, the district court entered an order, which was approved by Boyd's trial counsel and counsel for the State, that authorized disposition of “all property seized and presently held by any law enforcement agency in the investigation of this case.” Consequently, on October 4, 1999, the Wichita Police Department destroyed a rape kit it had been holding in Boyd's case.
Eleven years later, Boyd filed a pro se motion under K.S.A. 21–2512 to have forensic DNA testing performed on biological material in the rape kit, alleging it would lend additional credence to his consent defense. The court gave the State time to determine if any evidence was left to be tested and appointed counsel to represent Boyd. At a later hearing, the court received an affidavit stipulated to by the parties that set forth the circumstances of the destruction of the evidence. After hearing the parties' arguments, the district court denied Boyd's motion because there was no evidence available to be tested. Additional details of the district court's decision will be discussed below in analyzing Boyd's appeal from that decision.
Analysis
In his sole issue on appeal, Boyd asks this court to order him “releas[ed] ... from any further obligation under the sentence in this case” because his due process rights were violated by the court's failure to ensure that the rape kit evidence was preserved for future testing. The State responds that the police department, acting under the authority of the court order approved by Boyd's trial counsel, did not destroy the evidence in bad faith.
Standard of review
This court has unlimited review over the question of whether Boyd's constitutional due process rights have been violated. See McComb v. State, 32 Kan.App.2d 1037, 1041, 94 P.3d 715,rev. denied 278 Kan. 846 (2004).
The district court denied Boyd's motion solely because the evidence was no longer available.
K.S.A. 21–2512(a) allows a defendant in custody on a rape conviction to petition the court for forensic DNA testing of biological material that “(1) [i]s related to the investigation or prosecution that resulted in the conviction; (2) is in the actual or constructive possession of the [S]tate; and (3) was not previously subjected to DNA testing.” It is undisputed here that the State was no longer in the actual or constructive possession of any biological evidence. The dispute involves the propriety of the means by which the biological evidence came to be destroyed.
As noted above, the police department destroyed the rape kit after the district court entered an order authorizing such disposition. In support of that order, the court noted that the mandate had been issued in Boyd's direct appeal and announced that “there is no further need to continue to hold the property seized pursuant to the investigation of, nor the evidence admitted in, the prosecution of [Boyd's] case.” Because neither party disputes that the rape kit evidence was within the scope of the court's order authorizing the property and evidence to be disposed, we need not review whether the police correctly interpreted the order.
During the hearing before the district court on Boyd's motion for DNA testing, Boyd's appointed counsel suggested the destruction of the evidence violated Boyd's due process rights because there was still a chance that he could obtain a new trial at which the evidence could have been used, whether through a writ of certiorari or habeas corpus proceedings. The district court rejected that argument, finding there was no “statutory requirement to preserve or maintain the evidence for any length of time” in Kansas, so there was no remedy available “for evidence that is no longer available.”
To establish a violation of the due process right to the retention of potentially exculpatory evidence, a defendant must show evidence was destroyed in bad faith.
The district court was at least partially correct about a lack of statutory law providing Boyd any remedy based on the alleged bad-faith destruction of the rape kit. Kansas does have a statute that requires the retention of “[p]roperty seized under a search warrant or validly seized without a warrant ... as long as necessary for the purpose of being produced as evidence on any trial,” K.S.A. 22–2512(1), and allows for the disposal of seized property, K.S.A. 22–2512(3). But that statute arguably does not apply to the rape kit Boyd sought to have tested. Cf. State v. Winter, 238 Kan. 530, 532–33, 712 P.2d 1228 (1986) (discussing purpose of K.S.A. 22–2512 is the return of property seized or taken from accused ).
There was, however, a nonstatutory remedy available to Boyd, i.e., he had a constitutional due process right to the good-faith retention of “potentially useful evidence.” See State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000) (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 [1988] );cf. California v. Trombetta, 467 U.S. 479, 488–90, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (discussing constitutional standard of materiality of evidence to be preserved). Under the holding in LaMae, to be entitled to any relief, Boyd had the burden of establishing bad faith on the part of the police department in destroying the rape kit. See 268 Kan. at 550.
As the Kansas Supreme Court has explained, “[t]he presence or absence of bad faith by law enforcement officers for purposes of the Due Process Clause necessarily turns on the officers' knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. [Youngblood,] 488 U.S. at 57, n.” LaMae, 268 Kan. at 551. Accordingly, the presence or absence of bad faith is a question of fact. 268 Kan. at 551;cf. State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002) (reviewing for substantial competent evidence district court's factual finding that State has not acted in bad faith in destroying evidence).
The police department did not act in bad faith in destroying the rape kit.
Although the district court made no factual findings concerning bad faith in this case, remand for such findings is unnecessary because we hold, as a matter of law, that Boyd cannot establish that the police department acted in bad faith in destroying the rape kit evidence under the circumstances of this case. Importantly, this case is distinguishable from Youngblood, LaMae, Finley, and other cases that have considered the issue of bad faith in the destruction of evidence in one important aspect: those cases all involved destruction of evidence prior to the defendants' trials. Here, the rape kit evidence was not destroyed until more than 3 years after a jury convicted Boyd of the rape to which the evidence was tied and almost 4 months after the mandate issued on this court's decision denying Boyd's direct appeal from that conviction. Probably most important is the fact that the Wichita Police Department destroyed the rape kit only after it received a court order that stated there was “no further need to continue to hold” property seized or evidence admitted in the case. Simply put, the police department cannot be said to have acted in bad faith because it had effectively been told by a court that the evidence had no apparent exculpatory value at the time it was destroyed. Cf. State v. Norton, 283 Kan. 44, 61–62, 151 P.3d 9 (2007) (finding hair evidence would be admissible if defendant retried on remand despite destruction of other hair evidence because defendant failed to establish on appeal that the FBI acted in bad faith in destroying other hair evidence in 1985 since law enforcement could not predict that DNA testing would become available or that defendant would be brought to trial in 2004).
The court did not act in bad faith in failing to ensure that the rape kit evidence was preserved for future testing.
It seems that Boyd's argument on appeal is that the court had a duty to see that the evidence was not destroyed until his case was considered “closed.” The sole authority he cites in support of this argument is Supreme Court Rule 108(c)(1)(A)(ii) (2012 Kan. Ct. R. Annot. 212) which defines a case closed, upon conviction, when the sentence has been satisfied. That rule, however, governs when court records can be destroyed and has no effect on when evidence being held by law enforcement can be destroyed. Moreover, the propriety of the court order allowing the destruction of the evidence is not an issue currently before this court, and it is undisputed that Boyd's attorney approved the court order. As such we find that Boyd cannot, as a matter of law, establish bad faith on the part of the court under these circumstances.
The results of any rape kit testing would be of minimal value to Boyd's defense.
Even if this court were to find the evidence was destroyed in bad faith, Boyd's entitlement to relief fails because the materiality of the rape kit evidence is minimal. To direct DNA testing, the court must determine “that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.” K.S.A. 21–2512(c). This is consistent with rulings by the United States Supreme Court that the constitutional duty to preserve evidence is limited to evidence “that might be expected to play a significant role in the suspect's defense.” Trombetta, 467 U.S. at 488. Such a finding would not be possible under these facts.
This was more than just a he-said/she-said case that came down to the jury deciding between the victim's and the defendant's version of events, as Boyd suggests in his motion for DNA testing. The victim's young daughters also witnessed the events, and one testified at Boyd's trial that she saw him hitting her mother with a hammer and strangling her with a curling iron. Because Boyd did not dispute that he had sexual intercourse with R.P., the results of the rape kit were not admitted at the trial. But Boyd now contends that the saliva evidence he sought to have tested from the rape kit might support his testimony concerning their consensual foreplay and dispute the victim's denial or inability to remember whether Boyd kissed her or touched her anywhere else. In other words, he contends that if his DNA was present on other parts of the victim's body, it would prove he did not rape her. Whether Boyd kissed or touched the victim other places on her body does not diminish the other evidence in the case, therefore the possibility that the testing would uncover noncumulative, exculpatory evidence is virtually nil.
For all of these reasons, we affirm the denial of Boyd's motion for DNA testing.
* * *
ATCHESON, J., concurring:
I concur in affirming the denial of Defendant Rodney Boyd's motion for DNA testing because, even under his theory for wanting that testing, it would not provide exculpatory evidence calling into question his conviction for rape. Based on the record, however, I cannot determine if the Wichita Police Department acted in good faith in destroying the rape kit and its biological contents, so I would not make that call one way or the other. How the rape kit came to be destroyed has no direct bearing on Boyd's motion, since the Sedgwick County District Court would have properly denied the request for DNA testing were the evidence still available.
In 1997, a Sedgwick County jury convicted Boyd of rape, rejecting his testimony that the sexual encounter was consensual. The State's evidence showed that Boyd attacked the female victim with a hammer and strangled her with the cord to a curling iron before she submitted to his sexual assault. The woman's young daughter testified at trial that she witnessed the attack and pointed out Boyd as the person who hit her mother.
Eleven years after the conviction, Boyd filed a motion for DNA testing of biological material in the rape kit Wichita police officers requested and received from medical personnel at the hospital where the victim was examined immediately after the incident. The biological material had neither been introduced at Boyd's trial nor DNA tested. Under K.S.A. 21–2512(a), a statute passed in 2001, persons convicted of murder or rape may request DNA testing of biological material “in the actual or constructive possession of the state” if the material had not already been tested.
Boyd's theory justifying the testing was that the rape kit contained samples of his saliva collected from various parts of the victim's body, where he claimed he had kissed her during their consensual sexual relations. Thus, the saliva, DNA tested to be Boyd's, would support his defense. Even assuming there had been such evidence at one time, Boyd's assessment of its legal worth betrays faulty reasoning. That Boyd may have kissed the victim, even repeatedly, has little if any legal relevance in proving his claim of consent to be any more or less likely true. While that evidence would be consistent with Boyd's defense, it would be equally consistent with the State's case. That is, the State showed that Boyd physically threatened and harmed the victim with what amounted to deadly weapons—an electrical cord used as a garrote and a hammer. Facing possibly fatal injuries and an unknown fate for her young children, the victim did not then resist Boyd's sexual assault that could have included kissing and other contact before the rape itself. Boyd's hypothecated use of the DNA evidence fails to make one scenario more likely or plausible than the other and, therefore, could not be characterized as even marginally exculpatory.
Under those circumstances, a district court properly may deny DNA testing. See K.S.A. 21–2512(c) (“The court shall order DNA testing ... upon a determination that testing may produce noncumulative, exculpatory evidence....”); Bradley v. King, 556 F.3d 1225, 1229–30 (11th Cir.2009) (recognizing no due process right to postconviction DNA testing where the resulting evidence would not exculpate the defendant); State v. Lingenfelter, No. 105,551, 2012 WL 687836, at *4–5 (Kan.App.2012) (unpublished opinion) (district court properly denied DNA testing because it would not have produced exculpatory evidence on rape conviction given the theory of defense). I do not suggest particular boundaries on postconviction DNA testing but only that, whatever those boundaries, Boyd's claim falls outside what the Kansas Legislature and the courts have permitted. On that basis, the district court properly denied the motion for DNA testing.
On the limited record in this case, I would not address the good or bad faith of the Wichita Police Department in disposing of the rape kit. Boyd did not raise the issue in his motion, since he did not appear to know that the rape kit had been destroyed in 1999. At the hearing on the motion, held sometime after the State disclosed the rape kit no longer existed, Boyd's appointed counsel briefly mentioned possible bad faith but never really developed an argument or evidence on the point.
The majority places too much weight on the 1999 court order in resolving that issue. The district court order filed on September 16, 1999, mentions neither the rape kit nor biological evidence and does not appear to allow for destruction of them. The order calls for the return of property to “its rightful owner” and permits the destruction of “contraband” and “firearms, ammunition, explosives, bombs, and like devices.” The order contains no language that could be construed to direct or permit the destruction of other items. The order generally relies on and cites K.S.A. 22–2512, which does not specifically address biological evidence and, as the majority points out, could be read to deal only with items taken from the defendant in a criminal case.
At the hearing on Boyd's motion for DNA testing, the State presented and the district court received an affidavit from the supervisor of the Wichita Police Department's property and evidence section to the effect that departmental records show the rape kit and a swab were destroyed on October 4, 1999; a hammer and curling iron belonging to the victim were destroyed on November 5, 1999; and “no further evidence remains in the possession of the Wichita Police Department” related to the case. No other evidence was offered at the hearing. We might infer the Wichita Police Department destroyed the evidence based on the 1999 court order, since it was issued shortly beforehand. But the affidavit does not say that or otherwise explain why the evidence was destroyed.
The destruction of the victim's property was plainly contrary to the express terms of the order and, thus, plainly a violation of the order. Whether that amounts to a prima facie showing of bad faith—requiring the State to offer contrary evidence demonstrating good faith—is less clear, particularly in relationship to the rape kit. There are at least several logical explanations that would undercut bad faith. The police department may have been unable to find the victim. Or the victim understandably might not have wanted the hammer and the curling iron back, since those were the objects Boyd used to attack her.
At the same time, however, the 1999 order generally sought to restore property to its owner, save for contraband and firearms or explosive devices that could be destroyed. There is a fair argument that the rape kit and the related biological material belonged to the investigating law enforcement agency, here the Wichita Police Department, or, perhaps, the State as the overarching governmental entity. Forensically collected evidence of that sort appears to be property of the collecting agency. Lifts of fingerprints taken from a crime scene and casts of footprints or tire tracks would fall in the same category. I think it likely the State would claim ownership of such evidence. From that perspective, the 1999 order does not require or permit anything other than retention of the rape kit.
On the record here, all of that seems remarkably abstract and, thus, insufficiently detailed or definite to consider the question of the how or why the rape kit and the related biological material ended up gone. I certainly wouldn't conclude the Wichita Police Department acted in bad faith, but I can't say definitively that the department acted in good faith either.