*1 plain error did not commit trate Johnson sponte OSBORNE, Appellant, dismiss he failed to sum
when G. William Samples on this basis. charges against apply an in- Magistrate did not Johnson proof
correct burden of Alaska, Appellee. STATE of not af Samples argues that he was No. A-8399. and that presumption of innocence forded a Mu require not Magistrate Johnson did Appeals Alaska. Court of beyond offense a rea nicipality prove July6,2007. Supreme Alaska Court doubt. The sonable including procedures, that criminal has held beyond a reason requirement proof doubt, proceed apply quasi-criminal
able involving infracti trials traffic
ings such as
ons.22
Here, explicit- Magistrate Johnson did proof. But
ly applicable burden of state the imply that he was did not state or even
he Municipality to a lower burden
holding the proof beyond a reason-
than the burden of ques- simply stated that the
able doubt. He Samples speeding, was
tion was whether Samples guilty. We find no reason
he found Magistrate Johnson held believe proof
Municipality to an incorrect burden of presumption Samples to afford failed
of innocence. Magis- There was sufficient Samples guilty
trate Johnson to find
speeding argues
Finally, Samples that Officer testimony and un
Dykstra's was inconsistent and, therefore, should have
corroborated he acquitted speeding. Offi
been Dykstra Samples was driv
cer testified that hour, approximately per
ing at 85 miles speedmeter Samples indicated that
the laser hour, traveling per at 88 miles and that per applicable speed limit was 65 miles Mag testimony was sufficient for
hour. This Samples guilty of
istrate Johnson to find
speeding.
Conclusion
Samples's convictionis AFFIRMED.
745;
Seafoods,
Randall S. Kalamarides & Lambert, Anchorage, Appellant. for the Simel, Nancy Attorney R. Assistant Gener- al, Special Ap- Office of Prosecutions peals, Anchorage, Marquez, and David W. General, Juneau, Attorney Appellee. COATS, Judge, Before: Chief STEWART, Judges. MANNHEIMER and OPINION COATS, Judge. Chief ago, More than a decade William G. Os friend, Jackson, borne and his Dexter were assault, kidnapping, first-degree convicted of first-degree stemming sexual assault Anchorage prostitute. from an attack on an This Court affirmed both men's convictions appeal.1 on direct appellate litigation The current arises from post-conviction request for further physical of certain his case. matter, previous decision in this State,2
Osborne v.
we declined to decide
whether
defendants
Alaska have
due
process
right
post-conviction
to demand
evidence.
minimum,
we declared
at a
a defendant
things
would have to establish three
before
State,
(Alaska
App.
App.2005).
1. Jackson v.
Alaska
Memorandum
2.
knife, they could look at the the men asked walking walking toward town. After They knife. then took the knife from her while, flag down a short K.G. able placed it on the car's dashboard. passing told the driver and automobile. K.G. her; passenger happened stopped the car at the end of what
Jackson her, Boulevard, had attacked Lights men she described the men who Northern they driving. perform fellatio each and the car that were K.G. then asked K.G. to home, because she wished of them. When K.G. told Osborne and Jack- asked be taken 4. Id. Id. at 995. locus). (i.e., DQ alpha car same site police. avoid the The driver type occurs in less than 5% of complied request. This her addition, police females. In when the white that K.G. was At about the same time that K.G.had wear- tested the sweaters been home, way saw Os- making her witnesses night, they matching found fibers together. of these and Jackson Some borne vehicle, carpeting in Jackson's as well as blood observed that there was witnesses pubic hair that was later found to have clothing. pubic hair. characteristics as Osborne's same day, neighbor of one The next KG. later identified both Osborne occupants the car that had taken K.G. photographic lineups. separate Jackson police what K.G. had reported home to the also identified Jackson's car. She police incident. said about When K.G., initially uncoopera- contacted she was conducted a search of the When *4 (following the assault on March 23rd tive, scene of ultimately described what had but she her, K.G.), they turned over the happened to and she initial discov- their interview snow, bloody ered an area of disturbed wearing. These clothes that she had been pairs gray as well as two of K.G.'s stretch clothes were soiled with feees. KG. also bloody. pants, which were also The officers examination, and most underwent a tracks at the observed tire scene-tracks injuries photographed. of her were which were later found to match the tires later, days early morning Five the of addition, police vehicle. the Jackson's 28, 1998, military police March the on Fort ammunition; expended an found round of .380 stopped Jackson's car. The mili- Richardson round testing forensic later showed that this tary police initially stopped because Jackson gun. had been fired from Jackson's flashing headlights he had been his police discovered a used blue The also driving in him. the pickup front of pubic A hair taken police observed that Jackson's vehicle resem- condom near the seene. had same charac- from this blue condom the composite drawings that circu- bled had been pubic teristics as hair. In addi- Osborne's by Anchorage Department, Police lated the tion, sperm found the condom matched description based on of her attackers' K.G.'s DQ alpha locus- type Osborne's DNA at the opened glove car. Jackson his com- When type one-sixth a DNA that is shared about registration, partment to retrieve his vehicle (between 16%) of the African- 14.7% military police gun one of the officers saw population. American discovery case. This led to a search of Jack- son and his vehicle. request testing Osborne's additional for petition part the blue condom as of gun The contained .380 cali- case Jackson's post-conviction for relief And, pistol. during ber semi-automatic their person, military po- search con- After this Court affirmed Osborne's (This army lice found Swiss knife. appeal, K.G's filed a victions on direct dented, uniquely knife was marked and petition post-conviction relief. In this it.) identify K.G. was able to petition, asserted that he had re- ineffective assistance of counsel from ceived military police seized Jackson's car attorney, Sidney Billingslea his trial Anchorage police, turned over primary allegation Billing- was that along with the items of evidence found dur- incompetently acted when she decided slea ing the searches of the car and Jackson's testing not to seek further DNA of the blue subsequent person. During their search of condom. vehicle, Anchorage police found a just perfume carry- explained, testing forensic of the bottle of K.G. had been As night sperm on the of the assault. The found this condom revealed also detected blood the car. When this DQ alpha DNA at the locus matched strand DQ alpha type blood for DNA at the DNA at the same locus. This was tested Osborne's crime, locus, finding DNA in tended to link Osborne to the showed approxi- sample the blood matched K.G.'s DNA at but it was not conclusive-because (Gleason Billingslea's African-American concluded that mately one-sixth of the type. DNA population range competence shares this same decision was within the expected attorneys, of criminal defense sperm DNA of this was con ruling appeal.8 we affirmed that "polymer known as using ducted method (PCR)5 At the time of chain reaction" ase However, Osborne raised an alternative discriminating more methods argument petition in his testing were available. These meth of DNA Billing- that even if relief. Osborne asserted as the might ods have excluded Osborne competently when slea acted she chose not conversely, they sperm-or, of the source DNA seek further of the ma him might have identified more condom, terial found on the blue Billingslea sperm. of the chose as the source right, nevertheless had the as a matter of pursue further not to process, pursue discriminating due more allegation that Responding to Osborne's condom, see incompetence, demonstrated decision testing might him exelude as the source of actively Billingslea explained that she sperm.9 possibility having physi explored the decision, prior In our we remanded Os discerning using cal evidence tested a more borne's case to the court for further Billingslea spoke method. with the State's (an issue-directing consideration of this expert employee of the State Crime *5 Lab) why employ had used the court to that we and asked State sophisticated testing re less method. She paragraph opin described the third of this regarding is, viewed various materials ion. That we directed the court testing. attorney an And she consulted who to assess: (1) whether Osborne's conviction involving litigating a case the scientific identification; primarily rested on testing.6 basis of DNA (2) and, so, if whether there was demon identification; concerning strable doubt end, Billingslea In the decided that it was and, so, if further DNA whether not to further Osborne's better seek genetic on the condom would of the material that defense was alibi-the contention likely be conclusive on the issue whether accompanied second man who Dexter Jack perpetrator of the crime.10 Osborne was the night son that was someone other than Os Billingslea perceived borne. that a more
discerning double-edged DNA test was a proceedings findings and on remand sword: the test results could either bolster proceedings primarily in The remand it. Osborne's defense or undermine And she pre a re-examination of the evidence volved DNA evi relied the fact that the State's However, Judge at trial. sented Osborne's dence left substantial room for doubt-be Gleason also considered the fact Os pop the African-American cause one-sixth of discretionary parole in applied borne had type. ulation shared this same DNA Given civreumstances, application 2004 and in his to the Parole Billingslea concluded admitted, Board, writing both in strategically that "Osborne was better testing." orally, participation and in the attack on position specific without more his K.G.11 7 Offense"), I was out with Osborne wrote: "While Osborne,
5.
980 that, whole, there taking the evidence as a description consistent with Os-
cuts"-a
concerning
no demonstrable doubt
physical characteristics.
borne's
reliability of
identification of Osborne.
K.G.'s
acknowledgedthat the
also
Judge Gleason
Judge
finding
problems with
Why
uphold
jury heard some evidence of
we
Gleason's
of Osborne.
her writ-
K.G.'s identification
testing
be
would not
further
Judge
noted that
guilt
findings,
Gleason
conclusive on the issue Osborne's
ten
un-
established that K.G.'s
[tlhe evidence
or innocence
between
corrected vision was somewhere
prong
of the three-
Under
third
20/400, and that she was not
20/300
Osborne, Judge
part
we set forth in
glasses
evening of the
wearing
on the
fur
Gleason was
to assess whether
passenger
[described]
K.G. had
crime.
ther DNA
hair,
having] any facial
while Mr.
as [not
likely
be conclusive on the
this case
had a mustache. And K.G. had
Osborne
guilt
Judge
or innocence.
issue of Osborne's
weighing
passenger
as
180
[described]
concluded that further DNA
Gleason
pounds
being] between 25 to
[as
to 190
yield
would not
a conclusive answer.
old,
20
years
while Mr. Osborne was
weighed
pounds.
Mr.
years old and
above,
Judge
per-
As
Gleason
argues
also
iden-
yield
ceived that further DNA
could
generally suspect, especially
tifications are
First,
possible outcomes.
the laborato-
three
person
of one race is asked to
when
longer possible
ry might find that it was no
identify
person
from another race.
genetic
the condom
to test
material on
(or,
least,
longer possible
to run the
facts,
no
Judge
on these
CHeason con-
Based
discriminating
pro-
cluded that K.G.'s identification Osborne
more
tests
Second,
might
isolation,
posed).
further DNA
"were to be considered
without
genetic
establish that the
mate-
of all of the other evidence that
consideration
...,
from
would be de-
rial found
the condom came
Osborne.
the state
there
third,
concerning
testing might
Mr.
show that
monstrable doubt
Osborne's And
perpetrator."
identification as the
there was little or no chanee that the
weighed
when
Gleason
K.G.'s identifi-
came from
material
Osborne.
conjunction
"in
cation of
with all of
question confronting Judge
other evidence submitted
the State at
assuming that
third alternative
was this:
trial,"
judge
concluded that
[Osborne's]
pass-4ie.,
assuming
came to
that a more
concerning
was no demonstrable doubt
there
discriminating DNA test
showed
one of K.G.'s as-
Osborne's identification as
genetic material did not come from Os-
sailants.
this test result be conclusive
borne-would
(Geason
during
noted
evidence of Osborne's innocence? Based on
jury,
prosecutor
to the
State's summation
her examination of all the evidence
specifically
jury
invited the
to factor out
case, Judge
Gleason concluded
K.G.'s identification of Osborne and to evalu-
"no."
the answer was
independently.
ate the other evidence
*8
First, Judge Gleason noted that
the con-
prosecutor
jury
engage
in "an
asked the
firmly
dom was not
linked to the assault on
[by assuming
of caution
K.G.
that]
exercise
until over
K.G. The condom was not found
here,
in
...
never came
never
testified."
twenty-four hours after the assault. Accord-
that,
prosecutor
The
maintained
even without
coincidentally
in
ingly, might
have been
left
testimony,
identification
"the evidence
K.G.'s
vicinity by
person before the
the
another
in
a
warrant[ed]
this case
conviction of Os-
police arrived.
borne."
Second,
independently
Judge Gleason noted that
the
We have
reviewed the ree-
agree
ord of Osborne's
and we
with State
extensive other evidence
(Gleason's
(1)
kidnapping
linking
to the
conclusions:
Os-
primarily
rape-primarily,
the
borne's conviction did not rest
evidence;
crimes,
phys-
firmly
tied Jackson to these
the
identification
Q81
emerged
immediately
from this stolen car
in
placed
ical evidence that
Jack-
assaulting
before
the viectim.14
(the
tickets),
Space
son's vehicle
Station
testimony
the
of several witnesses who saw
convicted,
After Riofta was
he commenced
company both
Osborne in Jackson's
before
litigation
authority
Washing
under
of a
and after the assault.
provides
post-conviction
which
ton statute
testing
DNA
in criminal cases. Riofta asked
Finally, Judge
noted that Osborne
testing
the court to order DNA
of the hat-
ap-
crimes when he
had confessed to these
arguing
up
that if his DNA did
show
not
discretionary parole in
plied for
2004. The
hat,
this would establish his innocence.15
judge pointed out that Osborne had submit-
court, however,
Washington
The
appeals
con
ted a written statement
to the Parole Board
testing [might]
cluded that "DNA
only
show
acknowledged
participation
in
which he
his
who wore
hat after
the car was stolen.
kidnapping
and sexual assault on K.G.
DNA
not
[would]
resolve who wore
statement,
this written
Osborne described
16
during
shooting."
the hat
Moreover,
these crimes
some detail.
signature
appears
bringing
on this statement
In addition to
suit under
statute,
explicit warning
underneath an
that he
Washington
argued
Riofta also
complete
to "state the exact and
process right
he had a due
to have the hat
In making
argument,
tested for DNA.17
application,
parole
truth"
his
and that
subject
him
explicitly
lies
his statement would
to Riofta
relied on this Court's deci
sion Osborne.
prosecution for unsworn falsification under
AS 11.56.2110.
Washington
court noted that
adopted
courts of that state "have not
this, Judge
Given all of
Gleason concluded
three-part
version of the
Osborne test."
that even if further DNA
showed that
But the court also observed that
the Wash
Osborne could not have been the source of
ington Supreme Court
in In re Personal
material,
this would not conclu-
Gentry19
favorably
Restraint
referred
sively establish Osborne's innocence. We
ato similar
test.20
agree.
Nevertheless,
court concluded
Riofte
Washington
We note that
Court of
under the facts of the
Riofta could
State,12
Appeals
recently
con
Riofta
satisfy
requirement
not
"the critical
of dem
fronted a similar case and reached the same
onstrating
of the white hat
conclusion-that
the defendant was not enti
conclusively,
likely, prove
or even
tled
physi
explained:
innocence." The court
cal evidence.
The absence of Riofta's DNA on the white
The defendant in
was convicted of
necessarily
hat
[would]
indicate that
Riofte
first-degree assault with a firearm. The vie-
shooter|,]
Riofta was not the
because Riof-
tim of the
may
assault described the shooter as
ta
not have transferred his DNA to
wearing
during
white hat
the assault.13
example,
the hat. For
evidence indicates
later identified the owner of this
the shooter could have worn the hat
hat,
they
white
only
relatively
but
discovered that
the hat
short
of time
period
stolen,
car,
along
had been
with the owner's
because the car in which the hat was locat-
prior to
apparently
the assault. Riofta had
within
ed was stolen
twelve hours of the
669,
(2006).
Wash.App.
12. 134
14. Id. Riofta, (quoting Gentry, 20. at 142 P.3d 203-04 15. Id. at 198. 1258); Osborne, 972 P.2d at see also 110 P.3d at ). (citing Gentry 995 n. 27 16. Id. at 201. Riofta, at204. 21. 142P.3d 17. Id. rules, justi- utes, society has a court Moreover, and our presence of
shooting. prohibiting the defendant (other fiable interest than the hat's DNA else's someone re-open litigation. Rioftal,] seeking to ...) from not exonerate [would] owner persons could and other Riofta because tri- procedural protections-at All of these them without all of worn the have hat relief al, and in appeal, ... transferring hat.] [EJven DNA [to ensure, designed to the ex- litigation-are [someone the white hat matched if DNA on truly only humanly possible, tent else], establish [would] sure, To be it is seldom punished. guilty are innocencel{,] given the number of Riofta's certainty when we possible to attain absolute who in the car persons victim] saw [the analyze affairs. human try to reconstruct hat.[22] may haveworn the the bene- has received But after a defendant procedural protections, facts so- similar to the facts of are fit of all Riofta defen- ciety justifiably reach a insist and we can Osborne's found, subjected to further Judge Gleason conviction not be conclusion. As dant's similar shown that further simply has not attack. innocence, testing would establish State, explained Grinols As this Court of this exeluded even if the results interest Society has a substantial material. him the source of as litigation criminal even- making sure that in- persons an All tually reaches end. Conclusion vic- litigation-defendants, in the volved here, agree reasons For the friends, tims, investigative families and failed to that Osborne large- public as the agencies, as well test that satisfy portion of the right expect that criminal cases have a previous decision. We we set out point. If finally resolved at some will be failed accordingly that Osborne has conclude long claims prisoners are allowed to assert to further DNA that he is entitled to show trials, society runs the risk after their physical evidence this case. testing of the years after the may be ordered re-trials only event, longer left unresolved may was the issue no be This when witnesses post-conviec- application perti- from Osborne's their memories of available or Accordingly, judgment tion relief. have been lost or dimin- nent occurrences (denying applica- addition, litigation court piecemeal ished. tion) is AFFIRMED. post-convic- fruitless and often successive significant cost to the poses tion claims Coats, MANNHEIMER, joined by Judge, components of the courts and the other concurring. Judge, Chief justice system. criminal (Alaska Grinols, question of whether an App. This case raises the 605-06 authority, in the ab- Alaska court has the 2000). Moreover, supreme court rec as our statute, post- pertinent to order sence of a State, ognized in Merrill v. physical evi- conviction finality may [in the] a crucial element be so, cireumstances a under what dence-and pro-A law]. the criminal [of effectiveness authority. court should exercise system permits an endless cedural which requires question us resolution of this law in repetition inquiry into facts and competing principles of the crim- two balance im- certitude a vain search for ultimate hard be- justice system. task is inal Our possi- of confidence about the plies a lack crucially important principles are cause both justice [administering] that can- bilities justice. of criminal to the fair administration the effectiveness of the not but war with underlying substantive commands. principle [law's] is after we are The first Furthermore, reopening of ... an endless a trial that a defendant has received assured convictions, continuing underlying with its procedural with the in accordance conducted can constitution, perhaps the defendant implication that our stat- requirements of our Id. *10 988 tified the man as her attacker. But after all, escape sanctions from corrective after potentially with the aim of being [is inconsistent] confronted with evidence and rehabilitating offenders. other cireumstantial evidence indicating that (Alaska 1969). wrong identified, Merrill, man had been 281, the vic 457 P.2d 236 tim acknowledged that she longer was no present In the William Osborne was certain of her identification.3 Because of this tried and convicted of sexual assault and his punished innocent, risk that we have by conviction was affirmed this Court on even when a defendant guilty has been found appeal.1 litigated He then and lost a claim of after fair the law must make some in superi- ineffectiveassistance of counsel provision re-examining for a criminal convic court, superi- or and this Court affirmed the appears if tion that the verdict is mistaken. or court's resolution of the ineffective assistance currently Alaska law provi contains two such point, society cla im.2 At has a sions. weighty insulating jury's interest ver dict from further attack. 33(c), Under Alaska Criminal Rule a defen
Nevertheless,
may
justice
dant
file a motion
system
our criminal
new trial based
principle:
is also founded on a second
newly
discovered
days
evidence within 180
judgement.
of the final
To obtain relief un
people
punished.
innocent
should not be
In
theory,
38,
principle
this second
should not nor-
der Criminal Rule
the defendant must
mally
principle
showing
conflict with the first
de- make a threshold
that the evidence
discovered,
police investigations
truly newly
scribed above. But
is
diligent
and that
jury
by
trials are
beings.
conducted
human
effort would not have revealed this evidence
Assuming
sooner.4
require
two
There are times when evidence of the de-
met,
ments are
the defendant must
then
fabricated,
guilt
fendant's
is
or evidence of
convince the court that
the evidence is not
willfully sup-
the defendant's innocence is
merely
impeaching,
cumulative or
and that
pressed. We trust
that these occasions are
significant
the evidence is so
it would
few.
serupulous
But even the most
and hon-
probably lead to a different verdict
if the
officers, witnesses,
est
and victims
defendant's case were re-tried.
sometimes
knowledge,
work from limited
or
notions,
hampered by preconceived
are
Even if a
180-day
defendant misses the
simply
jurors
are
mistaken. And
must make
specified
33(c),
time
limit
Criminal Rule
their
present-
decision based on the evidence
post-conviction
the defendant can seek
relief
short,
justice system
ed in court.
our
is
12.72.010(a)(4)
under
AS
the basis that
run
beings
ultimately
human
who
are
"requires
new evidence
vacation of the [de
fallible.
conviction ...
fendant's]
the interest of
efforts,
Despite
society's
justice".
best
Normally,
petition
post-con
de-
spite
compliance
total
procedural
with the
years
viction relief must be filed within two
law,
(or
protections specified by
people
judgement
year
innocent
of the final
within one
judgement
after that
appeal).5
is affirmed on
are
fact convicted.
This Court noted sev-
12.72.020(b)(@Q2)(D)
eral instances of this in
52
footnote
of our
AS
declares
(10
616).
opinion
limitation],
Grinols
P.3d at
"[n]otwithstanding
And earlier
time
[this
spring,
Anchorage Daily
may
News car-
a court
hear a claim [for
yet
ried an account of
another man who was
newly
relief] based on
discovered
serving years
freed after
prison
rape
applicant
for a
diligence
pre
establishes due
he did not
initially
commit. The victim
senting
iden-
the claim and [the new evidence]
State,
App.
1. Jackson and Osborne v.
Alaska
4. See Dorman
State,
448,
P.2d
455-56
(Alaska 1981),
State,
quoting
(February
Memorandum
No.
Salinas v.
Opinion
1996),
984 may [yield]. DNA testing] convincing [DNA evidence clear establishes at accuracy was available comparable innocent." applicant is that the not chose defendant] Because [the trial. present facing in the Osborne problem at trial does [physical evidence] to test proposes testing he that the DNA case is discover- that information not mean purposes for yield "new evidence" not would testing is now through post-conviction able 12.72.010(2). 33 or AS Rule of either Criminal a provisions, defendant of these Under both “neW-” avail- was not that the evidence must show uncov- sooner, diligent efforts to despite able if we consequence results strained [A] in our earlier explained it. But as er hyper-literal interpre- [adopt] the were to State, at 989- opinion, v. the defen- "new evidence" [of tation 990, analysis evidence a DNA interpretation would] urges[.] dant] [This laboratory by the crime State
was conducted take a "wait and a defendant to allow[ ]- trial, and the results of Osborne's advance testing by trying to DNA position see" available to Osborne testing were of this acquittal the DNA infor- gain without [an] now attorney. true that Osborne It is conviction, but, moving to following mation different, discriminating more proposes a the DNA. discriminating this more DNA test-but time of Os- at the DNA was also available per- ... attorney actively [i]f de- we hold trial. Osborne's Accordingly, this more discrimi- pursue testing of bated whether requests [post-trial] son comparable the same [and] evidence test, ultimately not she decided
nating
but
not
the State's DNA
any]
to-because
infor-
available
[was
testing might
[post-trial]
mation that the
(roughly
fifteen to six-
extremely probative
population had
percent of the
...
teen
...
is not "new".
reveal
relevant
DNA),
results of a
matching
and because the
State,142P.3dat 200.
v.
Riofta
might have been
discriminating test
more
that,
appli-
appears
under the
It therefore
Id. at
incriminating to
much more
Osborne.
rules, Os-
and court
cable Alaska statutes
if
to relief even
would not be entitled
borne
(We
circum-
under
these
concluded
estab-
renewed
stances,
attorney
competent-
acted
his innocence.
lished
pursue
not to
the more
ly when she chose
992.)
committed to the
yet,
And
if we are indeed
discriminating test.
Id. at
people
punish
principle that we should
facts,
equi-
it would seem
Given
innocent,
demonstrably
it would
who are
Osborne's attor-
ty does not favor Osborne.
justice system should
that our criminal
seem
discrimi-
ney
have asked for the more
could
reviewing
have a fail-safe mechanism
test,
understood the risk
nating DNA
but she
like
even
situations
criminal convictions
test,
consciously
and she
performing
is,
a defendant
even when
Osborne's-that
this evidence.
go forward without
chose to
trial without
knowingly
go
has
chosen
Now,
later,
asserts that
years
seeking to uncover
the evidence
run,
must be
discriminating DNA test
more
their
will demonstrate
defendant now asserts
re-evaluated.
guilt
that his
must be
innocence.
Owens
supreme
As
court
(Alaska 1980),
State,
259,
in fact
P.2d
261
that he were
v.
613
If
could show
innocent,
pun-
allowed to "take
should not be
be unconscionable
defendant
it would
complain only
him,
the cards
osten-
gambler's
punishment
risk and
if that
ish
even
State,
wrong way".
procedural
comport
See
all of our law's
sibly
[fall]
Riofta
(2006),
669,
Wash.App.
suggested
tions for new Alaska, Appellant, STATE of *12 conviction relief would bar the defendant obtaining any from relief. PEASE, Appellee. Kevin W. Here, has genetic not offered No. A-8905. Rather, evidence. he asks this Court to or- re-testing der of the condom found at the Appeals Court of of Alaska. scene of the erime so he can obtain new July27,2007. genetic might conceivably evidence that favor his claim of innocence. case, prior opinion in Osborne's
assumed that this Court obliged would be proposed
order the DNA testing if Osborne
could that a show favorable test result would
conclusively establish his innocence. Os-
borne, 995. We then remanded court, superior
Osborne's case to the direct- superior whether, court to decide
under the facts of Osborne's he could requirement
meet this for renewed DNA Id.
As opinion, the lead
Gleason concludedthat even if renewed DNA yielded the result most favorable to is,
Osborne-that even if the renewed
showed that Osborne could not be the source material found on the con- conclusively
dom-this result
establish Osborne's innocence. (both
Given the evidence in Osborne's case at Osborne's trial and
the additional fact that Osborne has since guilt),
confessed his correctly
concluded no matter what results the
proposed testing might yield, this re-
newed could not estab- Thus,
lish Osborne's innocence. even process
due require clause would additional instances,
or renewed DNA in some
re-testing is not in Osborne's case. reasons,
For agree my I col-
leagues decision of the
court should be affirmed.