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Osborne v. State (02/11/2005) ap-1972
Osborne v. State (02/11/2005) ap-1972
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM G. OSBORNE, ) Court of
Appeals No. A-8399
) Trial Court No. 3AN-
97-0636 CI
Appellant, )
t/w No. 3AN-93-2339 CR
)
v. ) O P
I N I O N
)
STATE OF ALASKA, )
) [No. 1972 -
February 11, 2005]
Appellee. )
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Sharon Gleason,
Judge.
Appearances: Randall S. Cavanaugh,
Kalamarides & Lambert, Anchorage, for
Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A jury convicted William G. Osborne of kidnapping,
first-degree assault, and two counts of first-degree sexual
assault.1 Osborne appealed his convictions, and this court
affirmed.2 Osborne then filed an application for post-conviction
relief on the ground that his trial counsel provided him
ineffective assistance because she decided not to seek more
advanced DNA testing on some of the physical evidence that
connected Osborne to the crime. Superior Court Judge Sharon
Gleason denied Osbornes application on the ground that he failed
to establish a prima facie case that he received ineffective
assistance from his attorney. Osborne appeals. We affirm Judge
Gleasons decision that Osborne did not establish a prima facie
case of ineffective assistance. Osborne also argues that he has
a due process right to further DNA testing of the evidence. We
remand to allow Judge Gleason to reconsider her decision whether
to allow Osborne the opportunity to have further DNA tests
performed.
Factual and procedural background
The underlying factual and procedural history of
Osbornes case was previously explained in Osborne v. State.3
On March 22, 1993, Dexter C. Jackson and Osborne
invited K.G. into Jacksons car with the promise that they would
pay her $100 for oral sex. Jackson and Osborne took K.G. to a
secluded spot at the west end of Northern Lights Boulevard,
ignoring her request that they park along Spenard Road. During
the ride along Northern Lights Boulevard, Jackson and Osborne
asked K.G. if she was armed, and when she told them that she had
a Swiss army knife, they asked if they could look at the knife.
They took the knife and placed it on the cars dashboard when she
surrendered it.
When the three stopped at the end of the street, the
men asked K.G. to perform fellatio on each of them with the
understanding that she would be paid afterward. When K.G. told
Osborne and Jackson that she would not perform without first
being paid, Osborne pointed a gun at her and told her, I think
you will.
Jackson and Osborne took what little money K.G. had,
made K.G. strip, and then had sex with her. K.G. performed oral
sex on Jackson while Osborne penetrated K.G. vaginally with his
finger and his penis. Afterward, Osborne ordered K.G. to get out
of the car, bitch, and lay down in the snow, face down.
When K.G. stayed in the car and began pleading for her
life, Jackson hit K.G. in the head with the gun and Osborne
choked her after being urged to do so by Jackson. In her extreme
fear, K.G. defecated on the front passenger seat of Jacksons car.
Osborne scooped up some of the excrement and rubbed it in K.G.s
face, hair, and clothing. When she was able to do so, K.G.
grabbed some of her clothes and fled a short distance from the
car where she began to dress.
The two men took a piece of wood, probably an ax
handle, from the back of the car and began to strike K.G. in the
back of her head and in her ribs. When K.G. tried to run,
Osborne battered her knees repeatedly, telling her, go down,
bitch, go down. Jackson and Osborne hit and kicked K.G. until
she fell down. Jackson continued to pound K.G. in the area of
her pubic bone with the stick even after she had fallen. At one
point, Osborne allowed K.G. to stand up, but then hit her in the
head with the ax handle.
K.G. decided to pretend that she was dead, and curled
into a fetal position in the snow. At trial, K.G. recounted how
she had heard the gun discharge and felt the bullet graze her
head. K.G. believed, based on glimpses of her assailants feet
and of Osbornes sweatsuit, that it was Osborne who had shot her.
The State produced expert testimony at trial showing that one of
K.G.s head injuries was a shallow gouge injury consistent with a
close scrape with a bullet. Jackson and Osborne then buried K.G.
in the snow, believing that she was either dead or dying.
K.G. heard Jacksons car drive away. She continued to
lie under the snow for some time to make sure that her attackers
had left the area, then got up. After walking toward town for a
short while, K.G. was able to flag down a passing automobile.
K.G. told the cars driver and passenger what had happened to her;
she also described the men who had attacked her and the car that
they had driven. K.G. asked to be taken home because she wished
to avoid the police. The driver and passenger of the car
complied with her request.
The next day, the incident was reported to the police
by a neighbor of one of the occupants of the car that had taken
K.G. home. When she was contacted by the police, K.G. was
initially uncooperative, but was persuaded to describe what had
happened to her and to turn over the clothes that she had been
wearing. The clothes were soiled with feces. A presumptive
test indicated that semen was present on one piece of clothing,
but no semen was recovered. K.G. also underwent a physical
examination and most of her injuries were photographed.
On March 28, 1993, at about 12:30 a.m., military police
stopped Jacksons car on Fort Richardson. The military police
were aware that the Anchorage Police Department had circulated
composite drawings of a car and two black males, and further
noted that Jackson, his passenger (who was not Osborne), and the
car resembled the drawings. The police testified at trial that
they had initially stopped Jackson because he had been flashing
his headlights at a pickup driving in front of him. When Jackson
opened his glove compartment in order to retrieve the title to
his car, an officer saw a gun case. The case contained Jacksons
.380 caliber automatic pistol.
When the military police searched the car, they found a
box of ammunition for the gun under the passenger seat. During
a search of Jackson, the military police found K.G.s Swiss army
knife in his pocket. (The knife was uniquely marked and dented
and K.G. was able to readily identify it.) The officers
arrested Jackson and the passenger and took them to the military
police station.
The military police turned over the car and items
seized to the Anchorage Police Department. Anchorage police
officers found additional ammunition in a subsequent search of
the car. The municipal police also detected blood in the car.
Subsequent DNA testing of this blood, using a PCR (polymerase
chain reaction) analysis of the DQ-alpha locus (a particular
region of the DNA molecule), showed that the genetic makeup of
the blood matched K.G.s genetic makeup a match that could be
expected in 4.4 to 4.8% of white females. Fibers matching the
carpeting were found on one of the sweaters K.G. had been wearing
that night.
K.G. later identified both Jackson and Osborne in
photographic lineups. She also identified Jacksons car.
An investigation of the scene of the assault, conducted
on the evening of March 23, revealed an area of disturbed and
bloody snow. The police also discovered two pairs of K.G.s
bloody gray stretch pants, a used blue condom, and an expended
round of .380 ammunition that was later determined to have come
from Jacksons gun. Tire tracks on the scene matched those made
by Jacksons car.
A pubic hair taken from the blue condom and another
found on the sweater K.G. had worn on the night of the assault
had the same characteristics as Osbornes pubic hair. Another
Negroid hair found on K.G.s sweater did not match any of the
suspects investigated by police. Sperm in the condom matched
Osbornes DNA (based on PCR testing of his DQ-alpha locus).
Osbornes DNA type is shared by between 14.7% and 16% of the
African-American population.
An ax handle was later found 114 feet from the crime
scene. Osborne used similar ax handles in his work and one was
found during a search of his room. Jackson was also known to
keep a similar kind of stick in the back seat of his car.
Jackson and Osborne were tried jointly before a jury.
Superior Court Judge Milton M. Souter presided over the trial.
Jackson was convicted of kidnapping,4 first-degree sexual
assault,5 first-degree assault,6 and third-degree assault.7
Osborne was convicted of kidnapping, first-degree assault, and
two counts of first-degree sexual assault. Judge Souter
sentenced Jackson to a composite sentence of 27 years with 5
years suspended. He sentenced Osborne to 26 years with 5 years
suspended. Osborne appealed his convictions and this court
affirmed.8
Osborne then filed an application for post-conviction
relief on the ground that his trial counsel, Sidney K.
Billingslea, provided him ineffective assistance because she
decided not to seek more discriminating DNA tests. Osborne
alleged that Billingslea was ineffective because, among other
things, she did not seek more specific genetic testing of the
physical evidence (i.e., the condom with semen, a pubic hair, and
hair on the sweater). At the time of Osbornes trial, RFLP
(restrictive fragment length polymorphism) DNA testing was
available, and an RFLP DNA test is a substantially more
discriminating genetic test than the DQ-alpha PCR DNA test that
was done by the State. In support of his application, Osborne
requested the court order the physical evidence against him
retested using the more discriminating DNA test to determine if
Osborne was prejudiced by his trial counsels failure to seek the
more precise testing. Osborne argued that he is innocent, that
he sought more discriminating DNA testing at the time of his
trial, and that more specific DNA testing of the physical
evidence in the case would prove Billingsleas decision was
incorrect as well as prove his innocence.
In support of his application for post-conviction
relief, Osborne submitted an affidavit from Billingslea. In her
affidavit, Billingslea stated that she had consulted with the
States DNA crime lab expert and reviewed various materials
regarding DNA testing. She also spoke with another attorney who
had litigated the scientific basis of DNA testing. Billingslea
concluded:
I consulted with the DNA expert from the
state crime lab about the process used here,
and the reasons for using the less
sophisticated method. I reviewed DNA
research articles, some of which may be in
the file, and some not. I spoke with and
reviewed the material submitted by Geoff
Wildredge, a Fairbanks public defender who
was litigating the scientific basis of DNA at
the time under the Frye standard. [because
the State was relying on the less precise PCR
test] The statistics were heavily in our
favor, especially when compared with the
census population statistics at the time.
If I correctly recall, Osbornes DNA turned up
in roughly 1:8 or 1:16 [sic, actually greater
than one in seven] of the population.
Billingslea explained that she chose not to seek additional and
more specific DNA testing, not because of the possible cost, but
rather because the statistics were in Osbornes favor, due to a
relatively high frequency in the population of the profile of the
case DNA. Consequently, Billingslea concluded that Osborne was
in a strategically better position without RFLP DNA testing.
Billingslea reasoned:
The State was using the local crime labs PCR
DNA testing, which included Osborne as a
possible donor of the semen found in a condom
at the crime scene. However, the ratio of
possible donors to the general population was
[small, in the neighborhood of 1:16]. I felt
these were very good numbers in a mistaken
identity, cross-racial identification case,
where the victim was in the dark and had bad
eyesight. Given the codefendants confession
which included Osborne as a perpetrator, and
the absence of an air-tight alibi, I believed
then, and now, that insisting on a more
advanced RFLP DNA test would have served to
prove that Osborne committed the alleged
crimes.
Billingslea further stated that [w]hile I do not have a present
memory of Osbornes desire to have an RFLP test of his DNA done, I
am willing to accept that he does, and that I would have
disagreed with him, as I preferred the lower odds given in PCR
testing.
Judge Gleason denied Osbornes application for post-
conviction relief on the ground that Osborne had failed to make a
prima facie case of ineffective assistance of counsel. Judge
Gleason concluded that Billingslea investigated and considered
the possibility of engaging in the more discriminating RFLP DNA
test, but because she disbelieved Osbornes statement that he did
not commit the crime, she elected to avoid the possibility of
obtaining DNA test results that might have confirmed Osbornes
culpability. Judge Gleason found that Billingslea made a
tactical decision and that there was no basis to conclude that
Billingsleas decision was incompetent. Judge Gleason also denied
Osbornes related request to have the physical evidence tested by
more discriminating DNA tests because Osborne did not allege
facts demonstrating that his trial attorneys representation was
deficient.
Osborne sought reconsideration of the courts order
which was denied. He argued that he was entitled to have
further DNA testing done as a matter of due process to establish
his innocence. Judge Gleason reiterated:
that under the specific facts of this case,
including the tactical decisions made by ...
Osbornes trial counsel, state and federal due
process and fairness do not mandate a right
to post-conviction DNA testing in this
particular case. Further, the court finds
that ... Billingsleas investigation of the
case, including her investigation of the
different types of DNA testing available, was
not outside the wide range of professionally
competent assistance.
Osborne appeals the superior courts denial of his application for
post-conviction relief.
Osborne did not establish a prima facie case
of ineffective assistance of counsel
Alaska uses a two-pronged standard for evaluating
ineffective assistance of counsel claims.9 The first prong
requires the accused to prove that the performance of trial
counsel fell below an objective standard: Defense counsel must
perform at least as well as a lawyer with ordinary training and
skill in the criminal law and must conscientiously protect his
clients interest, undeflected by conflicting considerations.10
The second prong requires a showing of prejudice: [T]here must
be a showing that the lack of competency contributed to the
conviction. If the first burden [the burden of proving deficient
performance] has been met, all that is required additionally is
to create a reasonable doubt that the incompetence contributed to
the outcome.11 The law presumes that an attorney has acted
competently, and that the attorneys decisions were prompted by
sound tactical considerations. To prevail in a post-conviction
relief action based on [an] ineffective assistance of counsel
claim, the defendant must rebut this presumption.12
Our review of the record convinces us that Judge
Gleason did not err in concluding that Osborne did not establish
a prima facie case that Billingslea provided him with ineffective
assistance of counsel. Billingsleas affidavit establishes that
she researched and considered the possibility of having more
conclusive DNA tests performed on the evidence in the case, but
made a tactical decision not to seek further testing because she
concluded that further testing had a substantial chance of
harming Osbornes case. Osborne did not present any evidence to
rebut the presumption that Billingsleas decision was sound.
Billingslea concluded that, if she obtained more advanced
testing, her actions might result in the State obtaining
additional evidence that would incriminate Osborne. She
concluded that Osborne was better off with the DNA test which the
State performed. This test allowed her to argue that a
substantial portion better than one in seven of the African-
American population would have matched the genetic material
obtained in the sperm from the condom. Billingsleas affidavit
established that her decision was a tactical one.
Osborne contends that Billingslea told him that the
Office of Public Advocacy would not pay for independent DNA
testing. Billingslea denied saying this. But even assuming that
Osbornes statement is true, Billingslea gave a separate tactical
reason for not wanting additional testing; therefore, Osborne has
failed to show incompetence.
Osborne argues that he consistently asserted his
innocence and asked Billingslea to obtain a more discriminating
DNA test. But, as Osborne recognizes in his reply brief, the
decision about whether to request additional testing was a
decision for his counsel. In Simeon v. State,13 this court
pointed out that Alaska Rule of Professional Conduct 1.2(a)
instructs that in a criminal case the client has the final
authority to decide what plea to enter, whether to waive jury
trial, whether to testify, and whether to take an appeal. We
stated:
The rule specifies clearly those decisions
over which the client has the ultimate
authority. Since the rule limits the clients
authority to those decisions, it follows that
the lawyer had the ultimate authority to make
other decisions governing trial tactics ...
The evidence before Judge Gleason was that Osbornes
attorney made a tactical decision not to request further DNA
testing. Osborne has not presented any evidence that this was an
unreasonable tactic a tactic that no competent counsel would
adopt. We conclude that Judge Gleason did not err in determining
that Osborne had not established a prima facie case of
ineffective assistance of counsel.
Osbornes potential due process right to have more DNA
tests performed
In the superior court, Osbornes primary contention
was that his trial attorney was incompetent for failing to
pursue the more discriminating DNA testing that was
available at the time of Osbornes trial. As part of his
requested relief, Osborne asked the superior court to order
RFLP DNA tests performed on the physical evidence in his
case. As we have previously explained, Osborne did not
establish that his trial attorneys decision was incompetent.
Osborne was therefore not entitled to any relief under this
theory even if we assume that further DNA testing would be
favorable to him.
But after Judge Gleason rejected Osbornes
ineffective assistance of counsel claim, Osborne then
raised a new theory of post-conviction relief: He
contended that he had a due process right to have the
physical evidence retested so that he could show that
he was factually innocent of the crimes for which he
was convicted. Judge Gleason rejected Osbornes due
process claim, and Osborne now appeals this ruling.
Osborne points out that there are cases where
defendants convicted of crimes have been exonerated by
later DNA testing. He argues that, under the due
process clause of the constitution, he has the right to
perform further tests on the physical evidence.
(As an alternative legal basis for his claim
that he is entitled to new DNA testing, Osborne relies
on AS 12.55.015(h) and AS 44.41.035(a).14 But these
statutes merely set up a system for collecting the DNA
of people who are convicted of certain offenses. These
statutes do not provide a procedure for defendants
seeking post-conviction relief to obtain physical
evidence and subject it to DNA testing.)
As we explain here, there are several
problems with Osbornes due process contention.
A provision of Alaskas post-conviction relief
statute, AS 12.72.020(b)(2), declares that a defendant
is entitled to post-conviction relief if the defendant
presents newly discovered evidence that establishes by
clear and convincing evidence that the defendant is
innocent.15 But this same provision declares that a
claim based on newly discovered evidence will be heard
only if the defendant establishes due diligence in
presenting the claim and further shows that the
evidence supporting the claim was not known within . .
. two years after entry of the judgment of
conviction.16
The State points out that Osbornes due
process claim is apparently barred by this statute
because the physical evidence in this case is not newly
discovered, because the RFLP DNA testing that Osborne
proposes to perform on this evidence existed at the
time of Osbornes trial, and because Osbornes trial
attorney was aware of this and consciously chose not to
seek this RFLP testing.
In Grinols v. State,17 we suggested (without
resolving the issue) that the due process clause of the
Alaska Constitution would require some avenue of relief
where a constitutional violation has probably resulted
in the conviction of one who is actually innocent.18
Even though Osbornes claim of innocence is apparently
barred by AS 12.72.020(b)(2) because of the statutes
twin requirements of (1) evidence that is truly new or
newly discovered and (2) due diligence in pursuing the
claim it might still be argued that the due process
clause requires us to ignore the wording of the statute
and allow Osborne to pursue his claim, as long as there
is some chance that he could prove himself innocent by
clear and convincing evidence.
But Grinols speaks of a due process right to
rectify a constitutional violation that has resulted in
the conviction of someone who is factually innocent.
It is not clear that there has been any constitutional
violation in Osbornes case. We have already rejected
Osbornes contention that his trial attorney was
incompetent for failing to seek more discriminating DNA
testing. And, at least under federal law, a defendant
who has received a fair trial apparently has no due
process right to present new post-conviction evidence,
even when that evidence would demonstrate the
defendants innocence.
This issue was presented to the United States
Supreme Court in Herrera v. Collins.19 The issue in
Herrera was the constitutionality of Texass 30-day time
limit on motions for a new trial based on newly
discovered evidence. The Court ruled that it is
constitutional for a state to enforce such a time limit
even when there is no other statutory remedy available
for bringing a claim of actual innocence. The Court in
Herrera further held that the existence of newly
discovered evidence relevant to the guilt of a prisoner
is not a ground for relief under the federal Habeas
Corpus Act: [F]ederal habeas courts sit to ensure that
individuals are not imprisoned in violation of the
Constitution not to correct errors of fact.20
Concurring in Herrera, Justices Scalia and
Thomas expressed their belief that [t]here is no basis
in text, tradition, or even in contemporary practice
... for finding ... a [constitutional] right to demand
judicial consideration of newly discovered evidence of
innocence brought forward after conviction.21
Our research has disclosed several cases in
which courts granted defendants requests for post-
conviction DNA testing, relying (or apparently relying)
on the rationale that due process demanded such
testing.22 But many of these cases were decided before
Herrera. This means that, to the extent these cases
relied on a federal due process analysis, their
reasoning and conclusions are now suspect. After
Herrera, the tide is definitely against any purported
federal due process right to post-conviction DNA
testing.23
Several courts have flatly interpreted the
Herrera decision to mean that defendants have no
federal due process right to present post-conviction
evidence of their innocence that if defendants are to
have such a right, it must be granted by the
legislature.24
The strongest rejection of a federal due
process right to post-conviction DNA testing is found
in Harvey v. Horan:25
Harvey would have this court fashion a
substantive right to post-conviction DNA
testing out of whole cloth or the vague
contours of the Due Process Clause. We are
asked to declare a general constitutional
right for every inmate to continually
challenge a valid conviction based on
whatever technological advances may have
occurred since his conviction became final.
The Supreme Court has made clear that the
finality of convictions cannot be brought
into question by every change in the law.
... Similarly, we believe that finality
cannot be sacrificed to every change in
technology. The possibility of
post-conviction developments, whether in law
or science, is simply too great to justify
judicially sanctioned constitutional attacks
upon final criminal judgments.
In so holding, we acknowledge that
finality is not a value that trumps all
others. In some circumstances newly
discovered evidence may warrant a new trial.
See, e.g., United States v. Christy, 3 F.3d
765, 768 (4th Cir. 1993). But there is no
newly discovered evidence in this case.
Instead, Harvey seeks to subject existing
biological evidence to new DNA testing. This
evidence was already subjected to DNA testing
using the best technology available at the
time Harveys conviction became final.
Establishing a constitutional due process
right under 1983 to retest evidence with
each forward step in forensic science would
leave perfectly valid judgments in a
perpetually unsettled state. This we cannot
do. In Teague [v. Lane], the [Supreme] Court
stressed that finality is essential to the
operation of our criminal justice system, and
that [w]ithout finality, the criminal law is
deprived of much of its deterrent effect.
489 U.S. [288,] 309, 109 S.Ct. 1060
(plurality opinion). See also McCleskey v.
Zant, 499 U.S. 467, 491-92, 111 S.Ct. 1454,
113 L.Ed.2d 517 (1991). While finality is
not the sole value in the criminal justice
system, neither is it subject to the kind of
blunt abrogation that would occur with the
recognition of a due process entitlement to
post-conviction access to DNA evidence.
. . . .
In [reaching this decision] . . . we do
not declare that criminal defendants should
not be allowed to avail themselves of
advances in technology. Rather, our decision
reflects the core democratic ideal that if
this entitlement is to be conferred, it
should be accomplished by legislative action
rather than by a federal court as a matter of
constitutional right. Permitting Harveys
1983 claim to proceed would improperly
short-circuit legislative activity by
allowing judges, rather than legislatures, to
determine the contours of the right.[26]
It appears, therefore, that Osborne
has no due process right under the federal
constitution to present new evidence to
establish his factual innocence.
As explained above, Alaska law AS
12.72.020(b)(2) does allow convicted
defendants to present new evidence to
establish their factual innocence, but only
if the evidence is newly discovered, and only
if the defendant exercises due diligence in
presenting his or her claim. Because of
these two statutory restrictions, Osborne
apparently does not qualify for post-
conviction relief. Thus, even if Osborne
could show that RFLP DNA testing would
yield results favorable to him, Osborne
seemingly could not obtain post-conviction
relief unless we were ready to declare, as a
matter of Alaska constitutional law, that
these two statutory restrictions are
unconstitutional (or, at least,
unconstitutional as applied to Osborne).
We acknowledge that several state
courts have held that defendants have a due
process right, under their respective state
constitutions, to obtain post-conviction DNA
testing of physical evidence, and to offer
the results of that testing to establish
their factual innocence. But even these
court decisions present a legal hurdle to
Osborne. The great majority of these
decisions strictly circumscribe the due
process right to post-conviction DNA testing.
These cases hold that a defendant is not
entitled to this testing unless the defendant
shows (1) that their conviction rested
primarily on eyewitness identification
evidence, (2) that there was a demonstrable
doubt concerning the defendants
identification as the perpetrator, and (3)
that scientific testing would likely be
conclusive on this issue.27 It is not
clear, from the record before us, that
Osborne could meet this three-part test. The
State, for its part, contends that the rest
of its case against Osborne was so strong
that, even if Osborne were allowed to conduct
the proposed DNA testing, and even if the
results of that testing were to favor
Osborne, Osborne still could not show that
these favorable results constituted clear and
convincing proof of his innocence. However,
the State concedes that Judge Gleason did not
reach this issue.
In spite of the substantial legal
hurdles that we have described here, we are
reluctant to hold that Alaska law offers no
remedy to defendants who could prove their
factual innocence. We are prepared to hold,
however, that a defendant who seeks post-
conviction DNA testing must, at a minimum,
meet the three-part test endorsed by the
state courts whose decisions we discussed
above. That is, the defendant must show
(1) that the conviction rested primarily on
eyewitness identification evidence, (2) that
there was a demonstrable doubt concerning the
defendants identification as the perpetrator,
and (3) that scientific testing would likely
be conclusive on this issue.
We therefore remand Osbornes case
to the superior court. The superior court
should consider whether Osborne can meet this
test. In addition, the superior court should
consider whether, even assuming that Osborne
meets this test, his claim is nevertheless
barred by the twin statutory limitations
codified in AS 12.72.020(b)(2) the
requirements that (1) the evidence be truly
new or newly discovered and that (2) Osborne
showed due diligence in pursuing the claim.
Finally, if the superior court
determines that Osborne satisfies the three
requirements for post-conviction DNA testing,
but also that his claim is barred by
AS 12.72.020(b)(2), the superior court should
then consider whether the due process clause
of the Alaska Constitution requires us to
disregard the statutory limitations and allow
Osborne to pursue his claim.
Judge Gleason may hold any further
proceedings that she believes would be
necessary or helpful in reaching these
decisions. The judge shall issue findings
and rulings on these issues within 90 days.
The parties shall then have 30 days to file
memoranda responding to Judge Gleasons
findings and rulings. When we have received
Judge Gleasons findings and rulings, as well
as any memoranda filed by the parties, we
shall resume our consideration of Osbornes
claim that he has a due process right to
obtain post-conviction DNA testing of the
physical evidence.
We retain jurisdiction of this
case.
_______________________________
1 Osborne v. State, Alaska App. Memorandum Opinion and
Judgment No. 5329 at 6 (Feb. 7, 1996).
2 Id. at 19.
3 Id. at 1-6.
4 AS 11.41.300(a)(l)(c).
5 AS 11.41.410(a)(1).
6 AS 11.41.200(a)(4).
7 AS 11.41.220.
8 Osborne, Alaska App. Memorandum Opinion and Judgment No.
5329 at 19.
9 Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
10 State v. Jones, 759 P.2d 558, 567 (Alaska App. 1988).
11 Id. at 567-68.
12 Newby v. State, 967 P.2d 1008, 1016 (Alaska App.
1998) (footnote omitted).
13 90 P.3d 181, 184 (Alaska App. 2004).
14 AS 44.41.035(a) declares that the Department of Public
Safety shall establish a deoxyribonucleic acid (DNA)
identification registration system. AS 12.55.015(h) directs
sentencing courts to order the collection of genetic samples
from persons convicted of specified crimes for inclusion in
the state DNA registry.
15 AS 12.72.020(b)(2)(D).
16 AS 12.72.020(b)(2)(A).
17 10 P.3d 600 (Alaska App. 2000).
18 Id. at 615 (quoting Murray v. Carrier, 477 U.S. 478,
496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)).
19 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
20 Id. at 400, 113 S.Ct. at 860.
21 Id. at 427-28, 113 S.Ct. at 874. (Scalia, J.,
concurring).
22 The following cases address, either directly or
indirectly, a due process or fundamental fairness right to
post-conviction DNA testing: Toney v. Gammon, 79 F.3d 693,
700 (8th Cir. 1996) (reversing the district courts refusal
to permit a habeas petitioner alleging ineffective
assistance of counsel to conduct DNA tests that were not
available at time of trial, where the petitioner
consistently maintained his innocence and claimed the test
results could exonerate him); Godschalk v. Montgomery County
Dist. Attorneys Office, 177 F.Supp.2d 366, 370 (E.D. Pa.
2001) (plaintiff has a due process right of access to the
genetic material for the limited purpose of DNA testing);
Sewell v. State, 592 N.E.2d 705, 707-08 (Ind. App. 1992)
(finding the analysis of fundamental fairness issues
relative to DNA testing persuasive, and explaining that
Brady v. Maryland, which requires the prosecution to
disclose exculpatory evidence, is implicated in
post-conviction requests for forensic tests ... where a
conviction rested largely upon identification evidence and
advanced technology could definitively establish the
accuseds innocence); State v. Thomas, 586 A.2d 250, 251-54
(N.J. Super. Ct. App. Div. 1991) (reversing the order
denying defendants motion for DNA testing of the rape kit
material and cell samples supplied by him because
considerations of fundamental fairness demand the testing);
Dabbs v. Vergari, 570 N.Y.S.2d 765, 767-69 (N.Y. App. 1990)
(relying in part on the due process clause, the court held
that the evidence should be subject to discovery and DNA
testing even after conviction when the evidence has been
preserved and has a high exculpatory potential);
Commonwealth v. Brison, 618 A.2d 420, 423-25 (Pa. Super.
1992) (principles of justice required remand to trial court
to allow defendant to engage in DNA testing). But see
Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S.Ct. 333,
337-38, 102 L.Ed.2d 281 (1988) (due process clause is not
violated when the police fail to use a particular
investigatory tool, such as a newer test, on semen samples).
23 See, e.g., Spencer v. Murray, 5 F.3d 758, 765 (4th Cir.
1993) (holding that actual innocence is not itself a
constitutional claim, and that the defendants assertion of
potential errors in prior DNA tests could not form the basis
for federal habeas relief, since the defendant was claiming
factual innocence rather than any error at his trial).
24 See State v. El-Tabech, 610 N.W.2d 737, 746-47 (Neb.
2000) (holding that there is no constitutional right to
demand judicial consideration of newly discovered evidence
after the statutory time limit has expired for seeking a
motion for new trial based on newly discovered evidence and
that this is true even if the new evidence establishes the
defendants factual innocence); see also Sewell v. State, 592
N.E.2d 705, 708 (Ind. App. 1992) (holding that a defendant
has no federal due process right to discovery of new
evidence).
25 278 F.3d 370 (4th Cir. 2002).
26Id. at 375-76.
27See People v. Washington, 665 N.E.2d 1330, 1336-37 (Ill.
1996); Sewell, 592 N.E.2d at 708; Williams v. State,
791 N.E.2d 193, 194 (Ind. 2003); Mebane v. State, 902
P.2d 494, 497 (Kan. App. 1995); State v. White, 617
A.2d 272, 276-77 (N.J. Super. Ct. App. Div. 1992);
Commonwealth v. Reese, 663 A.2d 206, 208-09 (Pa. Super.
1995); Jenner v. Dooley, 590 N.W.2d 463, 471-72 (S.D.
1999); Commonwealth v. Robinson, 682 A.2d 831, 837-38
(Pa. Super. 1996); In re Personal Restraint of Gentry,
972 P.2d 1250, 1258 (Wash. 1999); see also Barnabei v.
Angelone, 214 F.3d 463, 474 (4th Cir. 2000); Jones v.
Wood, 114 F.3d 1002, 1009 (9th Cir. 1997).
