State v. SalasState v. Salas
- Reporters:
- , ,
- Before:
- Luckert
Abel Salas raises a veiy narrow issue of whether
The issue reaches this court after Salas filed a motion for DNA testing under
In Salas’ motion, he requested DNA testing of several items of evidence collected from the scene of Simon’s murder, including gloves, a hat, burnt cigarettes, swabs from beer bottles, swabs from beer cans, and swabs from a smudge on a window. Salas alleged in his motion that the evidence had either not been subjected to DNA testing, or retesting with new DNA techniques would provide “a reasonable likelihood of morе accurate and probative results.”
At the hearing on the motion, Salas recognized that
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined byK.S.A. 21-3401, and amendments thereto, or for rape as defined byK.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensiс DNA testing (deoxyribonucleic acid testing) of any biological material . . . .”
Hence, under the statute, postconviction testing is allowed only if a defendant was convicted of premeditated first-degree murder undеr
Despite there not being any statutoiy authorization for DNA testing in Salas’ case, he argued the coverage of the statute must be expanded to avoid an unconstitutional result; he argued
In
Denney,
this court concluded that aggravated criminal sodomy, which was not
The district court found
Denney
distinguishable from the present case and rejected Salas’ equal protection argument, concluding that there is much more of a “difference between first-degree murder and second-degree murder than [between] the two sex offenses that were involved in the
Denney
case.” The court further expressed concern that if DNA testing for second-degree murder is permitted under current law, a door would open to requests for
DNA testing involving other offenses not specifically identified in
On appeal, Salas again concedes that
As we consider this argument, our standard of review is unlimited as it is anytime an appellate court examinеs whether a statute creates an unconstitutional classification. Hall v. Dillon Companies, Inc., 286 Kan. 777, Syl. ¶ 10, 189 P.3d 508 (2008); see State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) Although our review is unlimited, it is based on a presumption that a statute is constitutional. Hence, courts must resolve doubts regarding a statute’s constitutionality in favor of its validity. In fact, “[t]his court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if this can be done within the apparent intent of the legislature in passing the statute.” State v. Martinez, 268 Kan. 21, Syl. ¶ 2, 988 P.2d 735 (1999); see State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006); State v. Van Hoet, 277 Kan. 815, 829, 89 P.3d 606 (2004).
When the constitutionality of a statute is challenged on the basis of an equal protection violation, the first step of analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. Only if there is differing treatment of similarly situated individuals is the Equal Protection Clause implicated. See
Hodges v. Johnson,
288 Kan. 56, 72, 199 P.3d 1251 (2009);
Denney,
278 Kan. at 652; see also
Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (guiding principle of equal protection analysis is that similarly situated individuals should be treated alike). After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications.
The nature of the rights dictatеs the level of scrutiny to be applied — either strict scrutiny, intermediate scrutiny, or the deferential scrutiny of the rational basis test. The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny.
State v. Limon,
280 Kan. 275, 283-84, 122 P.3d 22 (2005); see
Denney,
278 Kan. at 651, 654 (applying rational basis test); see also
District Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 68-69, 174 L. Ed. 2d 38, 129 S. Ct. 2308 (2009) (considering due process attack on Alaska’s postconviction DNA testing statute; noting that “[a] criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man” and consequently a
In regard to the first step of the analysis, the United States Supreme Court has held that an individual complaining of an equal protection violation has the burden to demonstrate that he or she is “similarly situated” to other individuals who are being treated differently. Because the complaining party has this burden and also because a court presumes a statutе is constitutional, the parameters of a court’s consideration of whether individuals are similarly situated is set by the distinctions argued by the complaining party. See Heller v. Doe, 509 U.S. 312, 319-21, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993); Congregation Kol Ami v. Abington Township, 309 F.3d 120, 137 (3d Cir. 2002) (citing Cleburne, 473 U.S. at 447-501); Hodges, 228 Kan. at 72-73; Limon, 280 Kan. at 283-84.
Here, Salas has set narrow parameters, аrguing “that second degree murder and first degree murder were substantially similar offenses.” Building his argument, he further limits the comparison by stating that the two crimes are “substantially similar” because
“the only difference between the two offenses is premeditation. For Murder in the First Degree, the State must prove premeditation. Both offenses require the intentional killing of another human being. Therefore, the two crimes involved here are substantially similar as to the necessary elements, and are arguably indistinguishable on that basis.”
Salas again advances Denney, 278 Kan. 643, for support of this argument.
As previously noted, in Denney the classifications at issue were distinguished by whether the individual was convicted of rape or aggravated criminal sodomy. In concluding the classifications were “arguably indistinguishable” we stated:
“In short, rape can consist of something less than voluntary consent to penetration of the female sex organ by the male sex organ, while aggravated criminal sodomy can consist of something less than voluntary consent to penetration of another female bodily orifice by the male sex organ. Here, Denney clearly committed the latter: penetrating his victims’ anuses with his male sex organ. Accordingly, we hold that Denney, convicted of aggravated criminal sodomy under such circumstances, is arguably indistinguishable from those people who are convicted of rape [using] the male sex organ.” 278 Kan. at 653-54.
Simply put, both crimes in Denney involved something less than voluntary consent to penetration of a female bodily orifice by the male sex organ. Hence, the required elements were arguably indistinguishablе.
Salas argues that, in a similar fashion, premeditated first-degree murder and intentional second-degree murder are “substantially similar as to the necessary elements, and are arguably indistinguishable on that basis.” As the Statе notes, however, the identity of elements that existed in Denney does not exist in this case. Rather, the crimes of premeditated first-degree murder and intentional second-degree murder are distinguished by the premeditation еlement.
Recently, we stated: “Comparing premeditated first-degree murder and intentional second-degree murder leads to the conclusion these crimes are
clearly not identical. . . .
The difference between premeditаted first-degree murder and intentional second-degree murder is that premeditated first-degree murder includes the element of premeditation.
Hence, we reject Salas’ argument that premeditated first-degree murder and intentional second-degree murder are substantially similar as to the necessary elements and are arguably indistinguishable on that basis. Because Salas has made no other argument, he has failed to meet his burden of establishing that he is similarly situated to those who have a right to DNA testing under
Affirmed.