Rubin WEEKS, Appellant, v. STATE of Missouri, Respondent. and State of Missouri, Respondent, v. Rubin Weeks, Appellant.
Nos. SC 85448, SC 85552
Supreme Court of Missouri, En Banc.
Aug. 3, 2004.
140 S.W.3d 39
For the foregoing reasons, the writ of mandamus should issue. Because the OSPD represents Francis, this Court need not address the related issue of whether the filing fee requirements of the PLRA must be met in habeas actions brought pro se or with private counsel.
ALL CONCUR.
Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, for Respondent.
Steven A. Drizin, Chicago, IL, Sean D. O‘Brien, Kansas City, Vanessa Potkin, New York, NY, for amicus curiae.
LAURA DENVIR STITH, Judge.
Rubin Weeks pleaded guilty to kidnapping and forcible rape in 1992. In 2001, he filed a motion with the sentencing court under what is now
This Court reverses. The plain language of
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 13, 1991, as J.B. began to drive home after working a late shift as a front desk clerk at a motel in Cape Girardeau County, she noticed that the car behind her was flashing its headlights. She pulled over and partially rolled down her window as the man driving the other car got out and came toward her car. The man, described as approximately 5’ 10” tall and weighing about 235 pounds, reached in through the window with a knife. She struggled with him, cutting her hands and chin. The man then dragged her out of her car, forced her into his vehicle, and drove away. He touched her body inside her shirt while they were driving, ordered her to take off her pants, and touched her vaginal area. As they drove, he asked J.B. when she had last had sex. J.B., who was married, told him she had sex the day before.
As the man drove he crossed into Bollinger County and parked near a barn, where he laid J.B. on the ground, performed oral sex, and had intercourse with her. Twice during this ordeal the man stopped as he heard sounds, and then he told her to put on her clothes. She did not put on any undergarments but did put on her pants. The man then duct taped her hands, ankles, and knees and drove off. Once she was able to work free of the tape she ran down the road in her pants, leaving her pantyhose at the scene, and sought help at a nearby farmhouse.
J.B. was taken to a hospital. Using a rape kit, samples of semen were collected from her pants and with a vaginal swab.
Police suspected that the rapist might have been the man who had occupied Room 11 at the motel where J.B. worked the night of the rape. They obtained various fingerprints and cigarette butts from the room and checked on the address given when the occupant had registered. That address was for a trucking business in Mississippi. The police traveled to this business and showed a composite drawing of the suspect to one of the employees. One employee thought that it resembled Mr. Weeks, so the police focused on him. Mr. Weeks was arrested in Mississippi on November 2, 1991, and was delivered to Cape Girardeau three days later. In December 1991, Mr. Weeks was charged with kidnapping in Cape Girardeau County and was charged with armed criminal action, forcible rape, and forcible sodomy in Bollinger County.
Two months previously, when the police were searching for the rapist, the rape kit and dozens of other items retrieved from Room 11 were sent to Southeast Missouri Regional Crime Laboratory (SEMO) for
Based on this report, the State obtained a search warrant and collected Mr. Weeks’ blood, hair, and saliva for testing. These samples were also sent to SEMO for testing in late November 1991. While these samples were being tested, Mr. Weeks was charged with the crimes mentioned above and was provided a copy of SEMO‘s November reports. On January 7, 1992, Mr. Weeks filed a request for production in Cape Girardeau County, requesting the results of any tests, experiments, or comparisons. Mr. Weeks filed an identical motion in Bollinger County before his February 13, 1992 plea.
SEMO completed its updated report on February 12, the day before Mr. Weeks’ guilty plea hearing was scheduled. Although encompassed by the defense‘s requests for production, this report was not2 disclosed to Mr. Weeks or the trial court before the plea. This report contained both exculpatory and inconclusive information. It was exculpatory in that the report noted that someone other than Mr. Weeks smoked the cigarettes found in Room 11. Moreover, none of the hairs tested belonged to him nor was a print match found. The report was also inconclusive in two noteworthy respects. First, the report noted Mr. Weeks could not be eliminated from the population that could have deposited the seminal fluid in the victim‘s pants, but that “it would appear that another individual‘s seminal fluid is also present.” Second, the report‘s finding indicates this inability may have been because SEMO was unable to determine Mr. Weeks’ blood type from the saliva sample he provided in accordance with the search warrant. Thus, Mr. Weeks is a “non-secretor.” This further suggested he could not have been the source of the semen samples. A DNA test would determine whether he was the source of these samples.
Although the report was completed on February 12, 1992, the day before the scheduled plea hearing, the prosecution did not produce it to defendant or his counsel, or to the court, nor did the prosecutor change the deadline by which Mr. Weeks had to agree to plead guilty. Accordingly, unaware of these findings in the report, the plea hearing proceeded as scheduled on February 13, 1992. Mr. Weeks pleaded guilty to kidnapping in Cape Girardeau County and to forcible rape in Bollinger County and was sentenced to concurrent terms of thirty years and life imprisonment.3 During his plea
On October 3, 2001, Mr. Weeks filed a post-conviction motion for forensic DNA testing under
Mr. Weeks appealed the court‘s ruling in regard to the Cape Girardeau County conviction for kidnapping to the Missouri Court of Appeals, Eastern District. Because Mr. Weeks was also convicted of rape in Bollinger County, he appealed the denial of relief as to that crime to the Missouri Court of Appeals, Southern District. After opinion by the eastern district, and prior to opinion by the southern district, this Court ordered transfer and consolidation of the two cases in this Court.
II. ANALYSIS
A. Standard of Review.
Although
This Court‘s review of denial of a post-conviction motion under Rules
B. Section 547.035 Permits DNA Testing of Individuals Who Have Pleaded Guilty.
The State does not contest that Mr. Weeks is in the department of corrections or that he filed a motion in the sentencing court seeking such testing. Neither does it contest that he met the first two requirements of
(3) The evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the movant at the time of trial;
(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
(c) The evidence was otherwise unavailable to both the movant and movant‘s trial counsel at the time of trial; and
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.
Specifically, the State argues that because the phrase “at the time of trial” is used in certain clauses of the statute, only persons who were convicted after trial can seek DNA testing under the statute. It asserts that the statute, therefore, cannot apply to persons who have pleaded guilty.
This Court disagrees. The State‘s interpretation results from an unduly narrow reading of the statute, which in turn results from its failure to read the statute as a whole. Subsection 1 of the statute governs who can bring a motion under it. That subsection does not limit movants to those who were convicted after trial, nor does it state that persons who have pleaded guilty cannot bring a motion under the statute. To the contrary, subsection 1 states that a motion may be brought by a “person in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person‘s innocence.”
The State‘s argument also ignores
5. Upon issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant‘s guilty plea and sentencing hearing if the transcript has not been prepared or filed.
Given the statute‘s broad language, it is curious that subsections 3 and 4 of
Only this interpretation gives meaning to the fact that the statute on its face applies to those who have had guilty plea hearings. The State‘s interpretation would render the reference to persons incarcerated in the department of corrections, and to guilty plea hearing transcripts, superfluous, and this Court presumes that the General Assembly does not enact meaningless provisions. Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799, 805 (Mo. banc 2003).
Finally, this Court rejects the State‘s suggestion that to make DNA testing available to those who pleaded guilty is inconsistent with the purposes behind the statute. Its argument is necessarily premised on the assumption that all those who plead guilty are in fact guilty, for it cannot be saying that it would keep an innocent person in prison if DNA testing showed the person to be innocent, even if the person pleaded guilty.
But, once a person is convicted, the presumption of innocence disappears regardless whether the person pleaded guilty or was found guilty by a judge or jury. A person who pleaded guilty is not somehow “more” guilty, or less deserving of a chance to show actual innocence, than one who went to trial. The question addressed by the statute is simply whether a person who has been convicted and sent to the department of corrections should nonetheless have the benefit of DNA testing when the person shows a reasonable probability that, if the results are exculpatory, the person would not have been convicted.
Certainly, as a practical matter, it can be anticipated that fewer persons who have pleaded guilty will be able to meet the requirement of the statute that they show that a reasonable probability exists that they would not have been convicted if exculpatory results had been obtained through DNA testing. But, if they can make this showing, the statute requires such testing.6
The State also argues that Mr. Weeks cannot meet the statutory requirement of alleging facts demonstrating that identity was in issue at the trial, since he admitted his guilt at the plea hearing.7 To the extent this argument is merely a restatement of the argument that a guilty plea movant can never show that identity was at issue in the trial, it is rejected for the reasons noted above. It would be absurd to say that the legislature intended to let a person who pleaded guilty file a motion that the person was certain not to win because in pleading guilty the person necessarily admitted his identity as the perpetrator. This Court presumes that the legislature did not intend an absurd result. In re Beyersdorfer, 59 S.W.3d 523, 526 (Mo. banc 2001). If the facts placed the perpetrator‘s identity at issue, then the mere existence of the guilty plea does not preclude the movant from seeking relief. The statute‘s requirements are met if the movant demonstrates that up to the time of the plea—as that is as far in the trial process as the case proceeded—identity was at issue.8
Mr. Weeks met this standard. Before February 13, 1992, Mr. Weeks declined to plead guilty. On February 12, 1992, the prosecution received the laboratory report from SEMO showing that none of the tested items conclusively identified Mr. Weeks as the rapist. Among dozens of items tested, SEMO also tested the cigarette butts located in Room 11. The report stated that Mr. Weeks may be eliminated from the population that smoked those cigarettes. Moreover, the report stated that a comparison of the fingerprints taken from the automobile and the motel room did not match Mr. Weeks’ prints. Mr. Weeks has adequately shown that then, as now, identity was at issue.9
D. Mr. Weeks Sufficiently Alleged Facts Showing that DNA Testing was Not Reasonably Available to Him at the Time He Pleaded Guilty.
The State also claims that Mr. Weeks did not allege sufficient facts to support his claim that DNA testing was not reasonably available to him at the time of his plea. The State argues that to meet the statutory standard, Mr. Weeks had to show that DNA testing was not technologically feasible when Mr. Weeks pleaded guilty in 1992. And, noting that this Court
The State misconstrues the statutory requirement. It does not state that the movant must prove that DNA testing was not technologically possible or was unavailable anywhere at the time of trial. If that were the relevant issue, then the legislature could merely have consulted with scientists, determined the date on which the first DNA testing laboratory opened in the United States, and said that only persons convicted prior to that date were eligible for relief under the statute. That is, in effect, what the State argues for in stating that because two United States laboratories could do DNA testing in 1992, this requirement could never be satisfied by Mr. Weeks or others convicted after at least 1991.
The legislature did not choose to so severely restrict the impact of the statute, or to set a specific limiting date. Rather, the statute states only that the movant must show that “the technology for the testing was not reasonably available to the movant ....”
Mr. Weeks alleged, and has provided sufficient supporting evidence to show, that DNA testing was not reasonably available to him at the time of his plea. The supplemental legal file contains an affidavit from Dr. Robert Briner, former executive director of SEMO. Dr. Briner stated that SEMO did not conduct any DNA testing in 1992, and it had no equipment with which to do so. Moreover, he said, SEMO did not have sufficient funds to conduct DNA testing until 1994 and did not issue its first DNA report until September 1995.
Mr. Weeks also provided an affidavit from his plea counsel, former public defender Gary L. Robbins. Mr. Robbins stated that he did not know of any local laboratories that performed DNA testing in 1992. He also said that he did not believe that any of his clients had received a DNA test during that time period.10 There is no evidence that Mr. Weeks was personally more knowledgeable about DNA testing, and in fact the record shows that Mr. Weeks possessed only a grade-school education and, according to his plea counsel, was placed on numerous drugs at the time of his plea including Prozac, Mevacor, Diphenhydramine, insulin, and possibly Phenergan, among other drugs.
For all of these reasons, this Court determines that the motion court clearly erred in holding that Mr. Weeks failed to demonstrate that DNA testing was not reasonably available to him in 1992.
E. Proof of a Reasonable Probability that Defendant Would Not Have Been Convicted if Exculpatory DNA Results were Obtained.
This was error. In fact, the victim‘s statement did not say that the perpetrator did not ejaculate. The motion judge‘s error in so stating perhaps occurred because the motion court‘s order denying the motion for DNA testing merely adopts verbatim the prosecution‘s response to Mr. Weeks’ motion for DNA testing. While this Court has held that it is not per se error for a trial judge to adopt without change the wording of a party‘s suggestions or of proposed findings of fact and conclusions of law, State v. Kenley, 952 S.W.2d 250, 261 (Mo. banc 1997), this Court has also warned against doing so because “advocates are prone to excesses of rhetoric and lengthy recitals of evidence favorable to their side but which ignore proper evidence or inferences from evidence favorable to the other party.” Massman Const. Co. v. Mo. Highway & Transp. Comm‘n, 914 S.W.2d 801, 804 (Mo. banc 1996). See also, State v. Griffin, 848 S.W.2d 464, 471 (Mo. banc 1993) (disfavoring this practice because it creates the appearance that the judiciary is a mere rubber stamp); E.L.S. v. F.M.S., 829 S.W.2d 19, 21 (Mo.App. E.D.1992) (“Even the most conscientious advocate cannot reasonably be expected to prepare a document which would reflect precisely the trial court‘s view of the evidence.... Here, the trial court‘s findings reflect husband‘s argumentative style, and several are not supported by the record.“).
This case illustrates the danger of adopting a party‘s suggestions. A simple review of the victim‘s statement would have shown that she did not state that the perpetrator did not ejaculate, she said only that the rapist was interrupted on two occasions while he raped and sodomized her. And, in any event, although married, she had been at work all day and said that she had not had sex since the day before the rape. She also said that she put her pants on as soon as the rape ended. Laboratory tests found semen stains on the pants and on a swab from her vagina. The semen in these samples contained intact sperm, meaning that sexual activity had been very recent. Mr. Weeks requests DNA testing that he believes will show the semen present was not his.
If the DNA does not match Mr. Weeks’ DNA, and if a jury were made aware of this fact, there is a reasonable probability that he would not be convicted because a jury could find that the perpetrator did ejaculate and that someone other than Mr. Weeks was the source of the intact sperm on the vaginal swab and on the victim‘s pants.
III. CONCLUSION
For the reasons set out above, this Court holds that one who pleads guilty may still obtain DNA testing under
The movant must also present evidence that the cause of the lack of testing was one of the three possible causes listed in
Mr. Weeks has thus met all of the requirements for an order for DNA testing. To be entitled to such testing, the movant need not conclusively prove his innocence.
WHITE, C.J., WOLFF and TEITELMAN, JJ., concur.
PRICE, J., dissents in separate opinion filed; HOWARD, Sp. J., concurs in opinion of PRICE, J. LIMBAUGH, J., not participating.
WILLIAM RAY PRICE, JR., Judge, dissenting.
First, I agree with the majority that establishing whether DNA testing was “not reasonably available to the movant” pursuant to
Second, this case should be remanded to the motion court for a hearing. In a post-conviction DNA-testing proceeding, the motion court may make findings of fact and conclusions of law with or without a hearing. See
However, the majority opinion goes beyond this, ordering outright the DNA testing based only on allegations and attached papers. The General Assembly intended that a motion court decide whether to have an evidentiary hearing, in order that credibility may be explored—and the movant prove his allegations by a preponderance of the evidence.
Notes
- A person in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person‘s innocence of the crime for which the person is in custody may file a postconviction motion in the sentencing court seeking such testing. The procedure to be followed for such motions is governed by the rules of civil procedure insofar as applicable.
- The motion must allege facts under oath demonstrating that:
- (1) There is evidence upon which DNA testing can be conducted; and
- (2) The evidence was secured in relation to the crime; and
- (3) The evidence was not previously tested by the movant because:
- (a) The technology for the testing was not reasonably available to the movant at the time of the trial;
- (b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
- (c) The evidence was otherwise unavailable to both the movant and movant‘s trial counsel at the time of trial; and
- (4) Identity was an issue in the trial; and
- (5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.
- Movant shall file the motion and two copies thereof with the clerk of the sentencing court. The clerk shall file the motion in the original criminal case and shall immediately deliver a copy of the motion to the prosecutor.
- The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:
- (1) It appears from the motion that the movant is not entitled to relief; or
- (2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.
- Upon the issuance of the order to show cause, the clerk shall notify the court re-
porter to prepare and file the transcript of the trial or the movant‘s guilty plea and sentencing hearing if the transcript has not been prepared or filed. - If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.
- The court shall order appropriate testing if the court finds:
- (1) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and
- (2) That movant is entitled to relief.
- The court shall issue findings of fact and conclusions of law whether or not a hearing is held.