Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Osborne v. State (7/6/2007) ap-2109

Osborne v. State (7/6/2007) ap-2109

                             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 Nos. 3AN-97-00636 CI
Appellant, ) 3AN-93-02339 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) No. 2109 - July 6, 2007
)
Appellee. )
)
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, Sharon L. Gleason, Judge.
                    
          Appearances:      Randall    S.    Cavanaugh,
          Kalamarides  &  Lambert, Anchorage,  for  the
          Appellant. Nancy R. Simel, Assistant Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.
          MANNHEIMER,  Judge,  joined  by  Coats,  Chief   Judge,
concurring.
          More  than  a  decade ago, William G. Osborne  and  his
friend,  Dexter  Jackson, were convicted  of  kidnapping,  first-
degree assault, and first-degree sexual assault stemming from  an
attack on an Anchorage prostitute.  This Court affirmed both mens
convictions on direct appeal.1
          The  current appellate litigation arises from  Osbornes
post-conviction  request  for  further  DNA  testing  of  certain
          physical evidence in his case.
          In  our  previous decision in this matter,  Osborne  v.
State,2 we declined to decide whether defendants in Alaska have a
due  process  right  to  demand post-conviction  DNA  testing  of
physical  evidence.  However, we declared that, at a  minimum,  a
defendant  would  have to establish three things before  claiming
entitlement  to  post-conviction  DNA  testing:   (1)  that   the
defendants    conviction   rested   primarily    on    eyewitness
identification;   (2)  that  there  was  a   demonstrable   doubt
concerning  this identification; and (3) that scientific  testing
of  physical evidence would likely be conclusive on the issue  of
whether the defendant was the perpetrator of the crime.3
          Having  established this three-part test,  we  remanded
Osbornes  case  to the superior court so that the  parties  could
litigate whether, under the facts of Osbornes case, this test was
satisfied.4  After considering this matter, Superior Court  Judge
Sharon  L. Gleason concluded that Osborne had failed to establish
any   of  the  three  factors  that  we  set  forth  in  Osborne.
Accordingly,  she  entered  an  order  denying  Osbornes  further
request for DNA testing.
          Osborne  now  appeals that decision.  For  the  reasons
explained here, we affirm Judge Gleasons ruling.

          The  underlying  facts of  Osbornes  criminal
          case
          In  order  to explain why we agree with Judge  Gleasons
ruling, we must recount the evidence presented at Osbornes  trial
in  the underlying criminal case.  The following account is taken
from  our  decision  denying Osbornes direct  appeal,  with  some
additional details taken from Judge Gleasons written findings.
          On  the  night of March 22, 1993, Osborne  and  Jackson
invited K.G. into Jacksons car, promising her that they would pay
$100  for oral sex.  The two men took K.G. to a secluded spot  at
the  western end of Northern Lights Boulevard.  During  the  ride
along  Northern Lights Boulevard, Osborne and Jackson asked  K.G.
if  she was armed.  When she told them that she had a Swiss  army
knife, the men asked if they could look at the knife.  They  then
took the knife from her and placed it on the cars dashboard.
          Jackson  stopped the car at the end of Northern  Lights
Boulevard,  and  the men then asked K.G. to perform  fellatio  on
each  of them.  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.
          Osborne  and Jackson took what little money  K.G.  had,
made  K.G.  strip,  and then had sex with her against  her  will.
Osborne then ordered K.G. to get out of the car and lie face-down
in  the  snow.   When  K.G. refused to leave the  car  and  began
pleading for her life, Jackson hit her in the head with the  gun.
Osborne  then  began to choke her.        In fear for  her  life,
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.  K.G. fled from the car, but  the  two
men  took a piece of wood,  probably an axe handle, from the back
of  the car and began to strike K.G. on her head and ribs.   When
K.G.  tried  to run away, Osborne battered her knees  repeatedly,
          yelling Go down, bitch; go down.
          Osborne and Jackson hit and kicked K.G. until she  fell
down.  Jackson  continued to hit K.G. in her pubic  area  with  a
stick  even after she had fallen.  At one point, Osborne  allowed
K.G.  to  stand up, but he then hit her in the head with the  axe
handle.
          K.G.  decided to pretend that she was dead; she  curled
up  in  the  snow and stopped moving.  She heard a gun discharge,
and  she felt a bullet graze her head.  (K.G. believed, based  on
glimpses  of her assailants feet and of Osbornes sweatsuit,  that
it  was  Osborne who shot her.)  After firing this shot,  Osborne
and  Jackson  buried K.G. in the snow, apparently believing  that
she was either dead or dying.
          Even  after  K.G.  heard Jacksons car drive  away,  she
continued to lie under the snow for a time, to make sure that her
attackers  had really left.  Then she got up and started  walking
toward  town.  After walking for a short while, K.G. was able  to
flag  down  a passing automobile.  K.G. told the driver  and  the
passenger what had happened to her; she described the men who had
attacked her, and the car that they were driving.  K.G. asked  to
be  taken  home,  because she wished to avoid  the  police.   The
driver of the car complied with her request.
          At  about  the same time that K.G. was making  her  way
home,  witnesses saw Osborne and Jackson together.  Some of these
witnesses observed that there was blood on Osbornes clothing.
          The next day, a neighbor of one of the occupants of the
car  that  had taken K.G. home reported to the police what   K.G.
had  said  about this incident.  When the police contacted  K.G.,
she  was  initially  uncooperative, but she ultimately  described
what  had  happened to her, and she turned over the clothes  that
she  had  been  wearing.  These clothes were soiled  with  feces.
K.G.  also  underwent a physical examination,  and  most  of  her
injuries were photographed.
          Five  days  later, in the early morning  of  March  28,
1993,  the  military police on Fort Richardson  stopped  Jacksons
car.   The  military police initially stopped Jackson because  he
had been flashing his headlights at a pickup driving in front  of
him.    However,  the  police  observed  that  Jacksons   vehicle
resembled  composite  drawings that had been  circulated  by  the
Anchorage  Police Department, based on K.G.s description  of  her
attackers  car.   When  Jackson opened his glove  compartment  to
retrieve  his  vehicle registration, one of the  military  police
officers  saw  a  gun case.  This discovery led to  a  search  of
Jackson and his vehicle.
          The  gun  case  contained Jacksons .380  caliber  semi-
automatic  pistol.  And, during their search of Jacksons  person,
the  military police found K.G.s Swiss army knife.   (This  knife
was  uniquely  marked and dented, and K.G. was able  to  identify
it.)
          The  military police seized Jacksons car and turned  it
over  to  the Anchorage police, along with the items of  evidence
found during the searches of the car and Jacksons person.  During
their  subsequent  search of the vehicle,  the  Anchorage  police
found  a  bottle  of perfume that K.G. had been carrying  on  the
night of the assault.  The police also detected blood in the car.
When  this  blood was tested for DNA at the DQ alpha  locus,  the
testing showed that the DNA in the blood sample matched K.G.s DNA
at  that  same  site (i.e., the DQ alpha locus).  This  DNA  type
occurs  in  less than 5% of white females.          In  addition,
when  the  police tested the sweaters that K.G. had been  wearing
that  night, they found fibers matching the carpeting in Jacksons
vehicle, as well as a pubic hair that was later found to have the
same characteristics as Osbornes pubic hair.
          K.G.  later  identified  both Osborne  and  Jackson  in
separate photographic lineups.  She also identified Jacksons car.
          When the police conducted a search of the scene of  the
assault  on  March 23rd (following their initial  interview  with
K.G.),  they discovered an area of disturbed and bloody snow,  as
well  as  two pairs of K.G.s gray stretch pants, which were  also
bloody.   The officers observed tire tracks at the scene   tracks
which  were  later found to match the tires on Jacksons  vehicle.
In   addition,  the  police  found  an  expended  round  of  .380
ammunition;  forensic testing later showed that  this  round  had
been fired from Jacksons gun.
          The  police also discovered a used blue condom near the
scene.   A  pubic hair taken from this blue condom had  the  same
characteristics as Osbornes pubic hair.  In addition, sperm found
in the condom matched Osbornes DNA type at the DQ alpha locus   a
DNA  type  that is shared by about one-sixth (between  14.7%  and
16%) of the African-American population.

          Osbornes  request for additional  testing  of
          the  blue condom as part of his petition  for
          post-conviction relief

          After  this  Court  affirmed  Osbornes  convictions  on
direct  appeal,  Osborne  filed  a petition  for  post-conviction
relief.   In this petition, Osborne asserted that he had received
ineffective assistance of counsel from his trial attorney, Sidney
Billingslea.   Osbornes primary allegation was  that  Billingslea
acted  incompetently  when she decided not to  seek  further  DNA
testing of the blue condom.
          As  just explained, forensic testing of the sperm found
in this condom revealed that the DNA strand at the DQ alpha locus
matched Osbornes DNA type at the same locus.  This finding tended
to  link Osborne to the crime, but it was not conclusive  because
approximately one-sixth of the African-American population shares
this same DNA type.
          The  DNA  testing of this sperm was conducted  using  a
method known as polymerase chain reaction (PCR).5  At the time of
Osbornes  trial, more discriminating methods of DNA testing  were
available.   These  methods might have excluded  Osborne  as  the
source  of  the sperm  or, conversely, they might have identified
him  more  conclusively as the source of the sperm.   Billingslea
chose not to pursue further testing.
          Responding  to  Osbornes allegation that this  decision
demonstrated  incompetence, Billingslea explained  that  she  had
actively explored the possibility of having the physical evidence
tested  using a more discerning method.  Billingslea  spoke  with
the  States DNA expert (an employee of the State Crime  Lab)  and
          asked why the State had used the less sophisticated testing
method.   She  reviewed various materials regarding DNA  testing.
And she consulted an attorney who was litigating a case involving
the scientific basis of DNA testing.6
          In  the end, Billingslea decided that it was better not
to   seek  further  testing.  Osbornes  defense  was  alibi   the
contention  that  the second man who accompanied  Dexter  Jackson
that night was someone other than Osborne.  Billingslea perceived
that  a  more discerning DNA test was a double-edged sword:   the
test  results could either bolster Osbornes defense or  undermine
it.  And she relied on the fact that the States DNA evidence left
substantial  room for doubt  because one-sixth  of  the  African-
American  population  shared this same  DNA  type.   Given  these
circumstances,  Billingslea  concluded  that  Osborne  was  in  a
strategically better position without more specific DNA testing.7
          Judge Gleason concluded that Billingsleas decision  was
within  the  range  of  competence expected of  criminal  defense
attorneys, and we affirmed that ruling on appeal.8
          However, Osborne raised an alternative argument in  his
petition for post-conviction relief.  Osborne asserted that  even
if  Billingslea  acted competently when she  chose  not  to  seek
further  DNA  testing of the genetic material found on  the  blue
condom,  Osborne nevertheless had the right, as a matter  of  due
process, to pursue more discriminating DNA testing of the condom,
to  see if further testing might exclude him as the source of the
sperm.9
          In our prior decision, we remanded Osbornes case to the
superior court for further consideration of this issue  directing
the  court to employ the three-part test that we described in the
third  paragraph  of  this opinion.  That  is,  we  directed  the
superior court to assess:  (1) whether Osbornes conviction rested
primarily  on eyewitness identification; and, if so, (2)  whether
there  was  a  demonstrable doubt concerning this identification;
and,  if  so,  (3)  whether further DNA testing  of  the  genetic
material on the condom would likely be conclusive on the issue of
whether Osborne was the perpetrator of the crime.10

          The proceedings and findings on remand
          The   remand  proceedings  primarily  involved  a   re-
examination   of  the  evidence  presented  at  Osbornes   trial.
However, Judge Gleason also considered the fact that  Osborne had
applied  for  discretionary parole  in  2004  and  that,  in  his
application  to  the  Parole  Board, Osborne  admitted,  both  in
writing and orally, his participation in the attack on K.G.11
          At  the  conclusion  of the remand  proceedings,  Judge
Gleason  issued  written findings.   She concluded  that  Osborne
failed  to satisfy any prong of the three-part test set forth  in
Osborne.
          Judge  Gleason  found  that  K.G.s  identification   of
Osborne  was supported both by the physical evidence in the  case
and  by  the  other evidence placing Osborne in  Dexter  Jacksons
company  on  the  night of the kidnaping and rape.   Thus,  Judge
Gleason  concluded,  Osbornes  identification  as  one  of  K.G.s
assailants  did not rest primarily on K.G.s testimony  and  K.G.s
identification of Osborne was not subject to serious doubt.           Judge Gleason
          then considered the third part of the test  whether further DNA testing would likely
be conclusive on the question of whether Osborne was one of the two assailants.
          Judge  Gleason  noted  that if she  ordered  retesting,
there  were three possible outcomes.  The laboratory might report
that  it  was no longer possible to test the genetic material  on
the  condom  (or, at least, no longer possible to  run  the  more
discriminating  tests  that  Osborne  proposed).   Alternatively,
further  testing  might conclusively establish that  the  genetic
material  found  in the condom came from Osborne.   And  finally,
further  testing might show that there was little  or  no  chance
that the genetic material came from Osborne.
          With  respect to this third possibility, Judge  Gleason
concluded that even if the testing excluded Osborne as the source
of  the  genetic  material  on the  condom,  this  would  not  be
conclusive evidence of his innocence.  The judge noted  that  the
condom  was  not  found until over twenty-four  hours  after  the
assault.   That is, it might have been coincidentally left in the
vicinity  by other people, before the police arrived.   Moreover,
Judge  Gleason noted that the State had presented extensive other
evidence which linked Mr. Osborne to these crimes.
          Finally, Judge Gleason noted that Osborne had confessed
to these crimes when he applied for discretionary parole in 2004.
The judge pointed out that Osborne had signed a written statement
acknowledging  his  participation in the  kidnapping  and  sexual
assault  on K.G., and that Osbornes signature appeared underneath
an  explicit warning that he was required to state the exact  and
complete truth in his parole application.
          Given all of this, Judge Gleason concluded that even if
further  DNA testing showed that Osborne could not have been  the
source  of  the  genetic  material, this would  not  conclusively
establish Osbornes innocence.

          Judge  Gleason  properly considered  Osbornes
          confessions to the Parole Board

          Before  we reach the merits of Judge Gleasons  findings
on  the  three prongs of the test, we must first address Osbornes
argument  that  Judge  Gleason should  not  have  considered  his
confession  to  the  Parole Board that  he  participated  in  the
kidnapping and rape of K.G.
          Osborne  contends  that, as a  matter  of  law,   Judge
Gleason  could only consider the evidence that was  presented  at
his  trial,  and  not anything that happened  or  came  to  light
afterwards.  We disagree.
          The  essence  of Osbornes claim in this  litigation  is
that he is factually innocent of the crimes for which he has been
convicted   and  that  he has a due process right  to  a  renewed
examination  of  the physical evidence if there is  a  reasonable
chance   that  this  will  demonstrate  his  factual   innocence.
Certainly, Osborne would argue (and we would agree) that  if  new
evidence had been uncovered after his trial which tended to  show
that Osborne was factually innocent of these crimes, it would  be
proper  for  Judge  Gleason and this Court to consider  this  new
evidence when deciding whether to order further DNA testing.
          For instance, if Dexter Jackson had later stated (under
credible circumstances) that someone other than Osborne  was  his
accomplice  in  the kidnapping and rape of K.G.,  that  would  be
important evidence for a court to consider when deciding  whether
to grant Osbornes request for further DNA testing.  Similarly, if
some  third  person had confessed (under credible  circumstances)
that  he,  and  not  Osborne, was Jacksons  accomplice  in  these
crimes,  this  also  would  seem to be important  evidence  which
Osborne  would be entitled to present in support of  his  request
for further DNA testing.
          Conversely, it seems clear to us that the State  should
be able to avail itself of new evidence which undermines Osbornes
claim of factual innocence.
          Here,    during    Osbornes   2004   application    for
discretionary  parole, he confessed  twice (once in  his  written
application,  and again during his appearance  in  front  of  the
Parole  Board)  that  he was guilty of the  crimes  against  K.G.
These  confessions are obviously relevant to Osbornes claim  that
the physical evidence should be retested because the testing will
show that he is factually innocent.  Judge Gleason could properly
consider Osbornes confessions when she evaluated whether to grant
Osbornes request for further DNA testing.
          Osborne argues that his confessions to the Parole Board
should  not be believed  that he lied about his participation  in
these  crimes so that the Parole Board would look more  favorably
on his request for parole.  But this assertion goes to the weight
of  the  evidence,  and not to the propriety  of  Judge  Gleasons
consideration of it.
          (Osborne   also   argues  that  the  State   improperly
introduced  statements  made  by  Osbornes  co-defendant,  Dexter
Jackson,  after the trial  statements in which Jackson apparently
identified  Osborne as his accomplice.  Osborne  argues  that  he
never  had  the opportunity to cross-examine Jackson about  these
statements.   But we have examined the record on remand,  and  we
have  not  found  anything  to suggest that  Jacksons  challenged
statements were in fact introduced during the remand proceedings.
Judge Gleason does not mention any such statements in her written
findings.)

          Why  we  uphold Judge Gleasons  findings  (1)
          that   Osbornes  conviction  did   not   rest
          primarily  on eyewitness identification,  and
          (2)  that  there  was  no demonstrable  doubt
          concerning    the    accuracy    of     K.G.s
          identification of Osborne

          Under  the first two prongs of the three-part  test  we
set  forth  in  Osborne,  Judge Gleason was  required  to  assess
whether   Osbornes  conviction  rested  primarily  on  eyewitness
identification   evidence,  and,  if  so,   whether   there   was
demonstrable  doubt  as to the accuracy of  that  identification.
Judge Gleason answered these questions in the negative.
          Judge  Gleason  acknowledged that some  of  the  States
evidence against Osborne consisted of K.G.s eyewitness testimony.
The  jury  heard  that  K.G. identified Osborne  as  one  of  the
perpetrators of the crimes by picking him out of a lineup  before
trial, and K.G. also testified at trial that she was certain that
Osborne  was  the  passenger in Jacksons  car.    However,  Judge
Gleason   noted   that  the  State  also  presented   substantial
circumstantial  evidence  (including  many  pieces  of   physical
evidence)  tending  to  prove  that  Jackson  was  one  of  K.G.s
assailants,  as  well  as strong evidence  that  Osborne  was  in
Jacksons company at the time of these crimes.
          Judge Gleason acknowledged that, compared to the States
case  against  Jackson,  there was less  evidence  to  place  Mr.
Osborne  at  the scene of the crime.  However, the  judge  listed
several items of evidence that linked Osborne to the crime scene:
(1)  Osborne had telephoned Jackson twice from the Space  Station
arcade  prior  to  the crime; (2) Osborne was  observed  entering
Jacksons  vehicle shortly before the crime occurred; (3)  tickets
from  the Space Station were found in Jacksons car; (4) witnesses
saw   Osborne  and  Jackson  together  shortly  after  the  crime
occurred, and some of these witnesses observed blood on  Osbornes
clothing;  and  (5)   K.G.  told the driver  who  picked  her  up
immediately after the assault that her attackers were  two  black
guys  with  military ... haircuts  a description consistent  with
Osbornes physical characteristics.
          Judge  Gleason  also acknowledged that the  jury  heard
some  evidence of problems with K.G.s identification of  Osborne.
In her written findings, Judge Gleason noted that
          
          [t]he   evidence   established   that   K.G.s
          uncorrected  vision  was  somewhere   between
          20/300  and  20/400, and  that  she  was  not
          wearing glasses on the evening of the  crime.
          K.G.  had [described] the passenger  as  [not
          having]  any  facial hair, while Mr.  Osborne
          had a mustache.  And K.G. had [described] the
          passenger  as weighing 180 to 190 pounds  and
          [as  being] between 25 to 30 years old, while
          Mr.  Osborne was 20 years old and weighed 155
          pounds.   Mr.   Osborne  also   argues   that
          eyewitness   identifications  are   generally
          suspect, especially when a person of one race
          is  asked  to identify a person from  another
          race.
          
                    Based on these facts, Judge Gleason
          concluded  that  if  K.G.s identification  of
          Osborne  were to be considered in  isolation,
          without  consideration of all  of  the  other
          evidence  that  the state  presented   ...  ,
          there  would be demonstrable doubt concerning
          Mr.    Osbornes   identification    as    the
          perpetrator.    However, when  Judge  Gleason
          weighed  K.G.s identification of  Osborne  in
          conjunction  with all of the  other  evidence
          submitted  by the State at [Osbornes]  trial,
          the   judge  concluded  that  there  was   no
          demonstrable   doubt   concerning    Osbornes
          identification as one of K.G.s assailants.
                    Judge  Gleason noted  that,  during
          the   States  summation  to  the  jury,   the
          prosecutor specifically invited the  jury  to
          factor  out  K.G.s identification of  Osborne
          and    to   evaluate   the   other   evidence
          independently.  The prosecutor asked the jury
          to  engage  in  an exercise  of  caution  [by
          assuming  that] K.G. never came in here,  ...
          never  testified.  The prosecutor  maintained
          that,   even   without  K.G.s  identification
          testimony,   the  evidence   in   this   case
          warrant[ed] a conviction of Osborne.
          We  have independently reviewed the
record  of Osbornes trial, and we agree  with
Judge   Gleasons  conclusions:     (1)   that
Osbornes conviction did not rest primarily on
eyewitness identification evidence;  and  (2)
that,  taking the evidence as a whole,  there
was  no  demonstrable  doubt  concerning  the
reliability   of   K.G.s  identification   of
Osborne.

          Why   we   uphold   Judge
          Gleasons   finding   that
          further DNA testing would
          not  be conclusive on the
          issue  of Osbornes  guilt
          or innocence

          Under the third prong of the three-
part  test  we  set forth in  Osborne,  Judge
Gleason   was  required  to  assess   whether
further  DNA testing of the physical evidence
in  this  case would likely be conclusive  on
the  issue  of  Osbornes guilt or  innocence.
Judge  Gleason  concluded  that  further  DNA
testing would not yield a conclusive answer.
          As   we   explained  above,   Judge
Gleason  perceived that further  DNA  testing
could  yield three possible outcomes.  First,
the  laboratory  might find that  it  was  no
longer  possible to test the genetic material
on  the  condom  (or,  at  least,  no  longer
possible to run the more discriminating tests
that Osborne proposed).  Second, further  DNA
testing might conclusively establish that the
genetic  material found in  the  condom  came
from  Osborne.   And third,  further  testing
might show that there was little or no chance
that the genetic material came from Osborne.
          The   question  confronting   Judge
Gleason  was this:  assuming that this  third
alternative came to pass  i.e., assuming that
a  more  discriminating DNA test showed  that
the   genetic  material  did  not  come  from
Osborne  would this test result be conclusive
evidence of Osbornes innocence?  Based on her
examination  of all the evidence in  Osbornes
case, Judge Gleason concluded that the answer
was no.
          First, Judge Gleason noted that the
condom  was not firmly linked to the  assault
on  K.G.  The condom was not found until over
twenty-four   hours   after   the    assault.
Accordingly,     it    might    have     been
coincidentally left in the vicinity by anther
person before the police arrived.
          Second,  Judge Gleason  noted  that
the  State presented extensive other evidence
linking  Osborne to the kidnapping  and  rape
primarily, the physical evidence that  firmly
tied  Jackson  to these crimes, the  physical
evidence  that  placed  Osborne  in  Jacksons
vehicle (the Space Station tickets), and  the
testimony  of  several  witnesses   who   saw
Osborne  in Jacksons company both before  and
after the assault.
          Finally,  Judge Gleason noted  that
Osborne had confessed to these crimes when he
applied  for  discretionary parole  in  2004.
The   judge  pointed  out  that  Osborne  had
submitted  a written statement to the  Parole
Board   in   which   he   acknowledged    his
participation  in the kidnapping  and  sexual
assault  on  K.G.  In this written statement,
Osborne   described  these  crimes  in   some
detail.  Moreover, Osbornes signature on this
statement  appears  underneath  an   explicit
warning  that  he was required to  state  the
exact   and  complete  truth  in  his  parole
application,  and  that  any  lies   in   his
statement  would subject him  to  prosecution
for unsworn falsification under AS 11.56.210.
          Given  all  of this, Judge  Gleason
concluded  that even if further  DNA  testing
showed  that Osborne could not have been  the
source  of  the genetic material, this  would
not     conclusively    establish    Osbornes
innocence.  We agree.
          We  note that the Washington  Court
of  Appeals  in Riofta v. State,12   recently
confronted  a  similar case and  reached  the
same  conclusion  that the defendant was  not
entitled  to post-conviction DNA  testing  of
physical evidence.
          The   defendant   in   Riofta   was
convicted  of  first-degree  assault  with  a
firearm.  The victim of the assault described
the shooter as wearing a white hat during the
assault.13   The police later identified  the
          owner of this white hat, but they discovered
that the hat had been stolen, along with  the
owners car, prior to the assault.  Riofta had
apparently  emerged  from  this  stolen   car
immediately before assaulting the victim.14
          After  Riofta  was  convicted,   he
commenced litigation under the authority of a
Washington statute which provides  for  post-
conviction  DNA  testing in  criminal  cases.
Riofta  asked the court to order DNA  testing
of  the hat  arguing that if his DNA did  not
show up on the hat, this would establish  his
innocence.15   The Washington appeals  court,
however,  concluded that DNA testing  [might]
show only who wore the hat after the car  was
stolen.  DNA testing [would] not resolve  who
wore the hat during the shooting.16
          In  addition to bringing suit under
the  Washington statute, Riofta  also  argued
that  he had a due process right to have  the
hat   tested  for  DNA.17    In  making  this
argument,  Riofta explicitly relied  on  this
Courts decision in Osborne.
          The Washington court noted that the
courts  of  that  state have  not  adopted  a
version  of  the  three-part Osborne  test.18
But   the   court  also  observed  that   the
Washington  Supreme Court in In  re  Personal
Restraint of Gentry19 had favorably  referred
to a similar three-part test.20
          Nevertheless,  the   Riofta   court
concluded that, under the facts of the  case,
Riofta   could   not  satisfy  the   critical
requirement of demonstrating that DNA testing
of  the white hat would conclusively, or even
likely,  prove  his  innocence.21  The  court
explained:

The  absence of Rioftas DNA on the white  hat
[would] not necessarily indicate that  Riofta
was not the shooter[,] because Riofta may not
have  transferred his DNA to  the  hat.   For
example, evidence indicates that the  shooter
could have worn the hat for only a relatively
short period of time because the car in which
the  hat was located was stolen within twelve
hours   of   the  shooting.   Moreover,   the
presence of someone elses DNA (other than the
hats   owner   ...)  [would]  not   exonerate
Riofta[,]  because Riofta and  other  persons
could  have worn the hat without all of  them
transferring DNA [to the hat.] ...  [E]ven if
DNA  on the white hat matched [someone else],
it [would] not conclusively establish Rioftas
innocence[,] given the number of persons [the
victim] saw in the car who may have worn  the
hat.[22]

          The facts of Riofta are similar  to
the facts presented in Osbornes case, and  we
reach a similar conclusion.  As Judge Gleason
found,  Osborne  simply has  not  shown  that
further  DNA  testing  would  establish   his
innocence,  even  if  the  results  of   this
testing  excluded him as the  source  of  the
genetic material.

          Conclusion
          For the reasons explained here,  we
agree  with Judge Gleason that Osborne failed
to satisfy any portion of the three-part test
that we set out in our previous decision.  We
accordingly conclude that Osborne has  failed
to  show  that he is entitled to further  DNA
testing  of  the  physical evidence  in  this
case.
          This   was  the  only  issue   left
unresolved from Osbornes application for post-
conviction relief.  Accordingly, the judgment
of   the  superior  court  (denying  Osbornes
application) is AFFIRMED.




               


                              
MANNHEIMER,  Judge, joined  by  Coats,  Chief
Judge, concurring.

          This  case  raises the question  of
whether an Alaska court has the authority, in
the  absence of a pertinent statute, to order
post-conviction  DNA  testing   of   physical
evidence  and if so, under what circumstances
a  court should exercise that authority.  The
resolution  of this question requires  us  to
balance  two  competing  principles  of   the
criminal  justice system.  Our task  is  hard
because   both   principles   are   crucially
important  to  the  fair  administration   of
criminal justice.
          The  first principle is that, after
we  are assured that a defendant has received
a  trial  conducted  in accordance  with  the
procedural  requirements of our constitution,
our  statutes,  and our court rules,  society
has a justifiable interest in prohibiting the
defendant   from  seeking  to   re-open   the
litigation.
          All of these procedural protections
at  trial,  on appeal, and in post-conviction
relief litigation  are designed to ensure, to
the  extent humanly possible, that  only  the
truly guilty are punished.  To be sure, it is
seldom  possible to attain absolute certainty
when  we try to reconstruct and analyze human
affairs.   But after a defendant has received
the   benefit  of  all  required   procedural
protections,  society can justifiably  insist
that   the  defendants  conviction   not   be
subjected to further attack.
          As  this Court explained in Grinols
v. State,

     Society  has  a substantial interest  in
making    sure   that   criminal   litigation
eventually  reaches  an  end.   All   persons
involved   in   the  litigation   defendants,
victims,  families and friends, investigative
agencies,  as  well as the  public  at  large
have  a  right to expect that criminal  cases
will  be finally resolved at some point.   If
prisoners  are allowed to assert claims  long
after  their  trials, society runs  the  risk
that re-trials may be ordered years after the
event,  when  witnesses  may  no  longer   be
available  or their memories of the pertinent
occurrences have been lost or diminished.  In
addition,  piecemeal litigation of successive
and  often  fruitless post-conviction  claims
poses  a  significant cost to the courts  and
the  other components of the criminal justice
system.

Grinols,  10  P.3d 600, 605-06  (Alaska  App.
2000).    Moreover,  as  our  supreme   court
recognized in Merrill v. State,

finality  may be a crucial element  [in  the]
effectiveness  [of  the  criminal  law].    A
procedural  system which permits  an  endless
repetition of inquiry into facts and law in a
vain search for ultimate certitude implies  a
lack of confidence about the possibilities of
[administering] justice that cannot  but  war
with   the   effectiveness  of   the   [laws]
underlying       substantive        commands.
Furthermore,  ...  an  endless  reopening  of
convictions,  with its continuing  underlying
implication  that perhaps the  defendant  can
escape  from corrective sanctions after  all,
[is potentially inconsistent] with the aim of
rehabilitating offenders.

Merrill, 457 P.2d 231, 236 (Alaska 1969).
          In   the   present  case,   William
Osborne  was  tried and convicted  of  sexual
assault  and  his conviction was affirmed  by
this Court on appeal.1  He then litigated and
lost  a  claim  of ineffective assistance  of
counsel in the superior court, and this Court
affirmed  the  superior courts resolution  of
the  ineffective assistance claim.2  At  this
point,  society  has  a weighty  interest  in
insulating  the  jurys verdict  from  further
attack.
          Nevertheless, our criminal  justice
system is also founded on a second principle:
that  innocent people should not be punished.
In  theory, this second principle should  not
normally  conflict with the  first  principle
described  above.  But police  investigations
and   jury  trials  are  conducted  by  human
beings.
          There  are  times when evidence  of
the   defendants  guilt  is  fabricated,   or
evidence  of  the  defendants  innocence   is
willfully  suppressed.  We trust  that  these
occasions  are  few.   But  even   the   most
scrupulous   and   honest  police   officers,
witnesses,  and victims sometimes  work  from
limited   knowledge,  or  are   hampered   by
preconceived notions, or are simply mistaken.
And jurors must make their decision based  on
the  evidence presented in court.  In  short,
our justice system is run by human beings who
          ultimately are fallible.
          Despite  our societys best efforts,
and   despite  total  compliance   with   the
procedural  protections  specified  by   law,
innocent people are in fact convicted.   This
Court  noted  several instances  of  this  in
footnote  52 of our Grinols opinion (10  P.3d
at   616).   And  earlier  this  spring,  the
Anchorage  Daily News carried an  account  of
yet  another man who was freed after  serving
years in prison for a rape he did not commit.
The  victim initially identified the  man  as
her  attacker.   But after  being  confronted
with     genetic    evidence    and     other
circumstantial evidence indicating  that  the
wrong  man  had been identified,  the  victim
acknowledged  that she was no longer  certain
of her identification.3            Because of
this risk that we have punished the innocent,
even  when a defendant has been found  guilty
after  a  fair trial, the law must make  some
provision   for   re-examining   a   criminal
conviction if it appears that the verdict  is
mistaken.  Alaska law currently contains  two
such provisions.
          Under Alaska Criminal Rule 33(c), a
defendant  may file a motion for a new  trial
based on newly discovered evidence within 180
days  of  the  final  judgement.   To  obtain
relief  under Criminal Rule 33, the defendant
must  make  a  threshold  showing  that   the
evidence is truly newly discovered, and  that
diligent effort would not have revealed  this
evidence  any  sooner.4  Assuming  these  two
requirements are met, the defendant must then
convince the court that the evidence  is  not
merely cumulative or impeaching, and that the
evidence  is  so significant  that  it  would
probably lead to a different verdict  if  the
defendants case were re-tried.
          Even if a defendant misses the 180-
day  time  limit specified in  Criminal  Rule
33(c), the defendant can seek post-conviction
relief under AS 12.72.010(a)(4) on the  basis
that  new evidence requires vacation  of  the
[defendants]  conviction ... in the  interest
of  justice.  Normally, a petition for  post-
conviction  relief must be filed  within  two
years  of the final judgement (or within  one
year  after  that judgement  is  affirmed  on
appeal).5    However,  AS  12.72.020(b)(2)(D)
declares  that, [n]otwithstanding [this  time
limitation],  a court may hear a  claim  [for
post-conviction  relief]   based   on   newly
discovered   evidence   if   the    applicant
          establishes due diligence in presenting the
claim  and [the new evidence] establishes  by
clear   and  convincing  evidence  that   the
applicant is innocent.
          The  problem facing Osborne in  the
present  case  is  that the  DNA  testing  he
proposes  would  not yield new  evidence  for
purposes  of  either  Criminal  Rule  33   or
AS   12.72.010(a).   Under  both   of   these
provisions,  a defendant must show  that  the
evidence  was  not available sooner,  despite
diligent  efforts to uncover it.  But  as  we
explained in our earlier opinion, Osborne  v.
State, 110 P.3d at 989-990, a DNA analysis of
the  physical evidence was conducted  by  the
State crime laboratory in advance of Osbornes
trial,  and the results of this testing  were
available to Osborne and his attorney. It  is
true  that  Osborne now proposes a different,
more  discriminating DNA test  but this  more
discriminating DNA was also available at  the
time  of  Osbornes trial.  Osbornes  attorney
actively debated whether to pursue this  more
discriminating   test,  but  she   ultimately
decided  not  to   because  the  States   DNA
testing  was not extremely probative (roughly
fifteen  to  sixteen percent of the  relevant
population had matching DNA), and because the
results  of a more discriminating test  might
have been much more incriminating to Osborne.
Id. at 990.
          (We  concluded  that,  under  these
circumstances,   Osbornes   attorney    acted
competently when she chose not to pursue  the
more discriminating test.  Id. at 992.)
          Given  these facts, it  would  seem
that equity does not favor Osborne.  Osbornes
attorney  could  have  asked  for  the   more
discriminating  DNA test, but she  understood
the  risk  of performing this test,  and  she
consciously chose to go forward without  this
evidence.  Now, years later, Osborne  asserts
that the more discriminating DNA test must be
run, and that his guilt must be re-evaluated.
          As  our supreme court explained  in
Owens  v.  State, 613 P.2d 259,  261  (Alaska
1980),  a defendant should not be allowed  to
take a gamblers risk and complain only if the
cards  [fall] the wrong way.  See  Riofta  v.
State, 142 P.3d 193 (Wash. App. 2006),  where
the  Washington Court of Appeals discussed  a
similar case:

     [T]here   is  nothing  new   about   the
[physical  evidence] or any information  that
[DNA  testing] may [yield].  DNA  testing  of
comparable accuracy was available  at  trial.
Because [the defendant] chose not to test the
[physical  evidence] at trial does  not  mean
that  any  information  discoverable  through
post-conviction testing is now new.
     .  .  .

     [A]  strained consequence results if  we
were    to    [adopt]    the    hyper-literal
interpretation  [of  new  evidence  that  the
defendant]   urges[.]   [This  interpretation
would] allow[] a defendant to take a wait and
see position on DNA testing by trying to gain
[an]  acquittal  without the DNA  information
but, following conviction, moving to test the
DNA.
     .  .  .

     Accordingly,  we hold that  ...  [i]f  a
person  requests [post-trial] DNA testing  of
evidence [and] the same or comparable testing
[was  available  at trial,  any]  information
that  the  [post-trial] testing might  reveal
... is not new ... .

Riofta v. State, 142 P.3d at 200.
          It  therefore appears  that,  under
the  applicable  Alaska  statutes  and  court
rules,  Osborne  would  not  be  entitled  to
relief    even   if   renewed   DNA   testing
conclusively established his innocence.
          And yet, if we are indeed committed
to  the  principle that we should not  punish
people  who  are  demonstrably  innocent,  it
would  seem that our criminal justice  system
should   have   a  fail-safe  mechanism   for
reviewing   criminal  convictions   even   in
situations like Osbornes  that is, even  when
a  defendant has knowingly chosen  to  go  to
trial without seeking to uncover the evidence
that   the   defendant   now   asserts   will
demonstrate their innocence.
          If  Osborne could show that he were
in  fact innocent, it would be unconscionable
to  punish him, even if that punishment would
ostensibly  comport  with  all  of  our  laws
procedural   requirements.   As  this   Court
suggested in Grinols, 10 P.3d at 617, the due
process  clause  of  the Alaska  Constitution
might  require us to intervene in cases where
a  defendant presents clear genetic  evidence
of   their  innocence,  even  if  the   rules
governing motions for new trial and petitions
for  post-conviction  relief  would  bar  the
defendant from obtaining any relief.
          Here,  Osborne has not offered  any
genetic evidence.  Rather, he asks this Court
to  order  re-testing of the condom found  at
the  scene of the crime so that he can obtain
new  genetic  evidence that might conceivably
favor his claim of innocence.
          In  our  prior opinion in  Osbornes
case,  we  assumed that this Court  would  be
obliged to order the proposed DNA testing  if
Osborne  could  show that  a  favorable  test
result   would  conclusively  establish   his
innocence.   Osborne, 110 P.3d  at  995.   We
then  remanded Osbornes case to the  superior
court, directing the superior court to decide
whether, under the facts of Osbornes case, he
could  meet this requirement for renewed  DNA
testing.  Id.
          As  explained in the lead  opinion,
Judge  Gleason concluded that even if renewed
DNA testing yielded the result most favorable
to  Osborne   that is, even  if  the  renewed
testing showed that Osborne could not be  the
source  of the genetic material found on  the
condom    this   test   result   would    not
conclusively establish Osbornes innocence.
          Given the evidence in Osbornes case
(both  the  evidence  presented  at  Osbornes
trial  and  the additional fact that  Osborne
has since confessed his guilt), Judge Gleason
correctly  concluded  that,  no  matter  what
results the proposed DNA testing might yield,
this  renewed  testing could not conclusively
establish Osbornes innocence.  Thus, even  if
the   due   process  clause   would   require
additional  or  renewed DNA testing  in  some
instances,  re-testing  is  not  required  in
Osbornes case.
          For these reasons, I agree with  my
colleagues that the decision of the  superior
court should be affirmed.
_______________________________
     1  Jackson  v.  State,  Alaska App. Memorandum  Opinion  and
Judgment  No. 3330 (Feb. 7, 1996), 1996 WL 33686444 (Osborne  was
the co-appellant in this case.).

2 110 P.3d 986 (Alaska App. 2005).

     3 Id. at 995.

     4 Id.

5 Osborne, 110 P.3d at 989-90.

6 Id. at 990.

     7 Id.  (brackets omitted).

     8 Id. at 990-92.

     9 Id. at 992.

     10   Id. at 995-96.

     11   In Section 1 of Osbornes written application for parole
(labeled  State  Your  Version of the  Offense),  Osborne  wrote:
While  I  was  out with friends I made a call to  my  codefendant
[i.e., Dexter Jackson] to come pick me up from the Space Station.
After  he did[,] we went driving around.  When we saw [K.G.]  and
that she was soliciting, we decided to have sex with her and then
not pay her.  She got in the car with us, and we all went out  to
Earthquake  Park.  Once there[,] I pulled out a gun  and  ordered
[K.G.]  to  take  off  her clothes.  After she  did,  me  and  my
codefendant  took  turns  having sex with  her.   After  we  were
done[,]  I ordered [K.G.] to get out of the car.  She refused  to
do so[,] and kept refusing.  I attempted to physically remove her
from  the car, and eventually got her out.  My codefendant became
enraged when he discovered that [K.G.] had defecated in his  car,
and  [he]  began  to assault her with a stick.  I also  assaulted
[K.G.]  by  kicking and punching her.  After a few seconds[,]  we
both stopped, partially kicked snow on [K.G.], and then got in my
codefendant[]s car and drove off[,] leaving her at the park.

     Osborne  signed  this  statement  on  April  8,  2004.   His
signature appears underneath a printed acknowledgement that it is
a  class  A  misdemeanor under AS 11.56.210  to  submit  a  false
written or recorded statement regarding this parole application.

12142 P.3d 193 (Wash. App. 2006).

13Id. at 196.

14Id.

15Id. at 198.

16Id. at 201.

17Id.

18Id. at 203.

19972 P.2d 1250 (Wash. 1999).

20Riofta, 142 P.3d at 203-04 (quoting Gentry, 972 P.2d at
1258);  see also Osborne, 110 P.3d at 995 n.27  (citing
Gentry).

21Riofta, 142 P.3d at 204.

22Id.

1  Jackson and Osborne v. State, Alaska App. Memorandum
Opinion No. 3330 (February 7, 1996), 1996 WL 3368644.

2 Osborne v. State, 110 P.3d 986 (Alaska App. 2005).

3 Judge clears man in prison for 1982 rape, Anchorage Daily
News, April 10, 2007, page A-3.

4 See Dorman v. State, 622 P.2d 448, 455-56 (Alaska 1981),
quoting  Salinas  v. State, 373 P.2d 512,  514  (Alaska
1962).

5 AS 12.72.020(a)(3)(A).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC