State v. Lackey (Supreme Court)

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,890

STATE OF KANSAS,
Appellee,

v.

ROBERT HENRY LACKEY II,
Appellant.


SYLLABUS BY THE COURT

The plain language of K.S.A. 21-2512 directs that a district court, upon receiving a
request from a qualified inmate for DNA testing pursuant to that statute, should initially
follow a three-step process: (1) notify the prosecuting attorney that a petition has been
made under K.S.A. 21-2512(a); (2) determine whether the biological material sought to
be tested qualifies for testing under K.S.A. 21-2512(a)(1)-(3); and (3) determine whether
testing may produce noncumulative, exculpatory evidence relevant to the petitioner's
claim of wrongful conviction or sentencing. In performing the second and third steps, the
district court must assess whether to appoint counsel for an indigent applicant, as
provided by K.S.A. 21-2512(e), and whether an evidentiary hearing is required.

Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 89, 208 P.3d 793 (2009).
Appeal from Saline District Court; DAN D. BOYER, judge. Opinion filed October 19, 2012. Judgment of
the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and
the case is remanded with directions.

Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.

2



Ellen H. Mitchell, county attorney, argued the cause, and Nicole Romine, assistant county
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Robert Henry Lackey II appeals from the trial court's summary
denial of his petition for DNA testing pursuant to K.S.A. 21-2512. Because we hold that
Lackey's petition satisfied the criteria of K.S.A. 21-2512(a) and (c), we reverse and
remand for an evidentiary hearing with appointed counsel.

FACTUAL AND PROCEDURAL OVERVIEW

A more complete factual recitation can be found in State v. Lackey, 280 Kan. 190,
120 P.3d 332 (2005), cert. denied 547 U.S. 1056, overruled in part by State v. Davis, 283
Kan. 569, 158 P.3d 137 (2006). Here, we will provide a brief overview.

In 2002, a jury convicted Lackey of premeditated first-degree murder and rape for
acts committed two decades earlier, in December 1982. The victim was a 22-year-old
college student who volunteered at the Gospel Mission in Salina where Lackey—then
known as Bob Moore—was a transient resident who also worked as a cook.

Lackey was last seen at the mission around 10 or 11 p.m. on December 11, 1982.
The following day, Lackey and his personal belongings were gone, except for a pair of
men's underwear left under the bed Lackey had been using.

In the same time frame, the victim was last seen by her boyfriend, Jay
Czarnowski, on December 9, and last spoken to by her mother and sister on December
10. On December 18, Czarnowski found the victim dead in a closet in the back bedroom
3



of her mobile home. Evidence collected during the investigation of the victim's death
included the underwear found under Lackey's bed; swabs from the victim's anal, oral, and
vaginal cavities; and scrapings from underneath the victim's fingernails. Lackey also
alleges that short hairs were found on the victim's body.

The case remained unsolved until the Kansas Bureau of Investigation (KBI)
received information from Canadian authorities in 1996 that a man named Bob Moore
had been involved in a homicide in Salina in 1982. The KBI discovered that Bob Moore
was an alias for Lackey, and in January 2002 the KBI located Lackey in Alabama.
Ultimately, Lackey was extradited to Kansas in March 2002 and put on trial later that
year.

At trial, the State proffered the testimony of Lisa Marie Burdett, a forensic
scientist with the KBI. Burdett testified that she conducted DNA testing on vaginal, anal,
and oral swabs taken from the victim; scrapings from underneath the victim's fingernails;
and biological material on the underwear found under Lackey's bed in the Salina mission.
Burdett then compared the DNA from these items to known DNA samples of the victim,
Lackey, and Czarnowski.

Burdett's testimony established that sperm cells found in the victim's vagina were
consistent with Lackey's DNA. The probability of selecting an unrelated Caucasian
individual at random with that specific profile is 1 in 194 billion. Additionally, Burdett's
testimony established that Lackey could not be excluded as a partial contributor to the
DNA profile from the victim's fingernail scrapings, while Czarnowski could be
eliminated as a contributor to that sample.

Burdett also testified that she did not compare Czarnowski's DNA to the cutting
from the underwear because it was a match with Lackey's DNA. Burdett indicated that
4



under usual circumstances, once there is a match she does not further compare DNA
against anyone else, but on occasion she will make further comparisons when there are
requests by agents of law enforcement. Burdett did compare Czarnowski's blood to the
DNA found on the vaginal swabs from the victim. The results eliminated or excluded
Czarnowski as a possible contributor.

Lackey was convicted and sentenced to life in prison on both counts. On appeal to
this court, his convictions were upheld, but his sentences under the Habitual Criminal Act
were vacated. Lackey, 280 Kan. at 235. Lackey's resentencing on remand is not in issue
here.

On May 16, 2007, Lackey filed a pro se petition for DNA testing pursuant to
K.S.A. 21-2512. In the petition, Lackey asserted that the prior DNA test results were
incompetent for a number of reasons, including the cross-contamination of male and
female samples. He complains that some of the results were not compared against the
DNA of the victim's boyfriend, Czarnowski. The motion asked that a DNA expert of
Lackey's choosing be allowed to examine the DNA test procedures utilized, as well as the
evidence samples and test results, in order to allow Lackey to make an informed and
intelligent request for further testing. Lackey specifically requested the following testing:

"1) Re-test DNA of fingernail scrapings;
"2) Test underwear for semen of defendant AND vaginal fluid of alleged victim;
"3) Test all evidentiary DNA samples against Czarnowski; and
"4) Test the short hairs found on the alleged victim's body."

On May 30, 2007, the district court summarily denied Lackey's petition,
determining that the DNA evidence was properly offered and admitted by the court; that
the DNA techniques used by the State were representative of the latest techniques
5



available; that Lackey failed to show that more accurate techniques were available; and
that Lackey's petition failed to state a cause of action upon which relief could be granted
pursuant to K.S.A. 21-2512. After the district court denied Lackey's motion for
reconsideration, he appealed to the Court of Appeals.

The Court of Appeals held that the defendant was "unable to establish that the
DNA samples collected in this case were capable of producing noncumulative,
exculpatory evidence relevant to his claim that he was wrongly convicted of the
premeditated murder and rape [of the victim.]" State v. Lackey, 42 Kan. App. 2d 89, 101,
208 P.3d 793 (2009). The panel relied on the fact that Lackey's DNA was consistent with
the DNA found in the victim's vagina and underneath the victim's fingernails to opine
"that testing of the biological evidence could not produce noncumulative, exculpatory
evidence." 42 Kan. App. 2d at 102. We granted Lackey's petition for review.

STATUTORY REQUIREMENT FOR DNA TESTING

Lackey argues on appeal that the district court ignored the plain meaning of
K.S.A. 21-2512 in ruling on his petition for DNA testing. Specifically, Lackey complains
that the district court failed to notify the prosecuting attorney of the petition, as required
by K.S.A. 21-2512(b)(1), and that both the trial and appellate courts ignored the clear
meaning of K.S.A. 21-2512(a)(3) with respect to the summary denial of his petition for
DNA testing of the short hair and bloodstain evidence. In response, the State argues that
Lackey's petition was inadequate under K.S.A. 21-2512 and that Lackey failed to
adequately brief his argument for DNA testing of the short brown hairs found on the
victim's body.


6



Standard of Review

The summary denial of a request for DNA testing under K.S.A. 21-2512 presents a
question of law over which this court has unlimited review. Wimbley v. State, 292 Kan.
796, 810, 257 P.3d 328 (2011). Additionally, the interpretation of a statute is a question
of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41,
47, 223 P.3d 780 (2010).

Analysis

As noted above, Lackey's petition specifically requested the following testing: (1)
retesting of fingernail scrapings; (2) testing of underwear for Lackey's semen and the
victim's vaginal fluid; (3) testing of all evidentiary DNA samples against Czarnowski's
DNA; and (4) testing of the short hairs found on the victim's body. We begin by
considering the initial, pretesting statutory procedure to be followed upon the filing of a
DNA testing request under K.S.A. 21-2512. The relevant provisions of K.S.A. 21-2512
are as follows:

"(a) Notwithstanding any other provision of law, a person in state custody, at any
time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto,
or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court
that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any
biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting
with new DNA techniques that provide a reasonable likelihood of more accurate and
probative results.

7



"(b)(1) The court shall notify the prosecuting attorney of a petition made under
subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the
prosecuting attorney shall take such steps as are necessary to ensure that any remaining
biological material that was secured in connection with the case is preserved pending the
completion of proceedings under this section.

"(c) The court shall order DNA testing pursuant to a petition made under
subsection (a) upon a determination that testing may produce noncumulative, exculpatory
evidence relevant to the claim of the petitioner that the petitioner was wrongfully
convicted or sentenced."

Following the plain language of the statute, we discern that a district court
receiving a request from a qualified inmate for DNA testing pursuant to K.S.A. 21-2512
should initially follow a three-step process: (1) notify the prosecuting attorney that a
petition has been made under K.S.A. 21-2512(a); (2) determine whether the biological
material sought to be tested qualifies for testing under K.S.A. 21-2512(a)(1)-(3); and (3)
determine whether testing may produce noncumulative, exculpatory evidence relevant to
the petitioner's claim of wrongful conviction or sentencing. In performing the second and
third steps, the district court must assess whether to appoint counsel for an indigent
applicant, as provided by K.S.A. 21-2512(e), and whether an evidentiary hearing is
required.

Lackey complains that the district court summarily denied his testing request
without notifying the prosecuting attorney. We agree that the district court erred in this
regard. The purpose of the notification requirement is at least two-fold: First, it gives the
State an opportunity to respond to the request; and, second, it provides a warning to the
State that the biological material in question must be preserved. The latter purpose
benefits the petitioner by preserving potentially exculpatory evidence. But the first
purpose actually benefits the State by giving the prosecutor an opportunity to obtain an
8



early disposition of the DNA testing request by showing the court that the biological
material does not qualify for testing under the three factors of K.S.A. 21-2512(a). But
given that neither party has shown any prejudicial effect from the court's failure to
properly notify the prosecuting attorney in this case, we discern no relief that may be
given for the notification error.

With respect to the second step, we have previously discussed the three
requirements for testing biological material pursuant to K.S.A. 21-2512(a). See Wimbley,
292 Kan. at 810-11. The first criterion—that the material be related to the investigation or
prosecution that resulted in the conviction—is to be read broadly to include any material
related to either the investigation or the prosecution; it is not limited to the evidence that
was actually introduced at trial. Wimbley, 292 Kan. at 810. The biological material at
issue here is clearly related to the investigation or prosecution of the murder and rape in
this case.

The second criterion, in K.S.A. 21-2512(a)(2), only requires that the prisoner
allege that the State has possession of the evidence to be tested, and we liberally construe
pro se pleadings. Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). Here, Lackey
alleged that all the material was in the State's possession.

The third criterion, set forth in K.S.A. 21-2512(a)(3), provides two distinct
alternatives: (1) The biological material has not been previously tested or (2) the material
could be retested with new and improved techniques. With respect to most of the
biological material identified in his motion, Lackey appears to stumble over the hurdle of
K.S.A. 21-2512(a)(3).

In requesting retesting of the fingernail scrapings, Lackey quibbles over the
technician's findings in the original testing but does not allege that there are new DNA
9



testing techniques which would yield more accurate results. Any complaint about the
procedures followed by the State's DNA technician or the ambivalence of the results she
obtained in the original testing was a proper subject for cross-examination and
impeachment at trial. K.S.A. 21-2512 is designed to obtain new testing, not to redo the
old tests for impeachment purposes.

Lackey's request that the underwear be tested for the presence of his semen or of
the victim's vaginal fluid likewise misses the point. The underwear was originally tested
and matched to Lackey's DNA to establish that the Bob Moore who was sleeping in the
bed where the underwear was found was the same person as the defendant. Lackey was
certainly free to argue to the jury that the State had failed to show that the underwear
contained his semen or the victim's vaginal fluid. Apparently, he seeks the retest, in part,
to corroborate the nonexistence of evidence that was not produced at trial. That is not the
purpose of K.S.A. 21-2512. Moreover, Lackey once again failed to argue that newer
techniques were available to improve on the original testing.

In making his request to have all evidentiary DNA samples tested against
Czarnowski's DNA, Lackey further reveals his misunderstanding of the purpose of
K.S.A. 21-2512. A profile of Czarnowski's DNA existed at the first trial, as evidenced by
the testimony excluding him as a contributor to the fingernail scrapings and vaginal swab.
What Lackey is really seeking is to have someone compare the existing DNA profile of
Czarnowski with the existing DNA profiles on all of the evidence. K.S.A. 21-2512
contemplates the necessity for new or different DNA testing, not the further analysis of
previous test results.

But Lackey's request for testing of the short hairs on the victim's body fits the first
alternative of K.S.A. 21-2512(a)(3) because, as was apparently conceded in the Court of
Appeals opinion, "DNA testing had never been performed on [the] short hairs found on
10



[the victim's] body." Lackey, 42 Kan. App. 2d at 97. Accordingly, the record before us
indicates that the short hairs evidence facially passed muster under all three criteria of
K.S.A. 21-2512(a), i.e., the hairs were biological material that qualified for testing.

That moves us to the third step of the process—determining whether the "testing
may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner
that the petitioner was wrongfully convicted or sentenced." K.S.A. 21-2512(c). The Court
of Appeals found that

"DNA testing on the short hairs would not produce exculpatory evidence in this case
when Lackey's DNA was consistent with the DNA found in [the victim's] vagina and
underneath her fingernails[,] . . . especially . . . since Lackey had denied knowing [the
victim] and denied being in Kansas when the crimes against [the victim] were
committed." Lackey, 42 Kan. App. 2d at 97.

Apparently, the Court of Appeals was defining "exculpatory evidence" as evidence that
definitively exonerates the defendant when weighed against the other evidence in the case
and when viewed in light of the defendant's theory of defense. We disagree with that
premise.

As the panel noted and brushed aside, we previously, and rather explicitly,
rejected the notion of defining exculpatory evidence under K.S.A. 21-2512(c) as being a
function of weighing evidence. See Bruner, 277 Kan. at 606 (plain statutory language
does not limit DNA testing to cases where evidence not overwhelming). In the context of
a prosecutor's obligation to disclose exculpatory evidence, we have said that "'[e]vidence
is exculpatory if it tends to disprove a fact in issue which is material to guilt or
punishment.'" State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997) (quoting State v.
Carmichael, 240 Kan. 149, 153, 727 P.2d 918 [1986]). Additionally, Black's Law
Dictionary 637 (9th ed. 2009) defines exculpatory evidence as "[e]vidence tending to
11



establish a criminal defendant's innocence." (Emphasis added.) Finally, and most
compelling, Haddock v. State, 295 Kan. ___, ___ (slip op. at 26), ___ P.3d ___ (No.
101,508, filed October 5, 2012), specifically acknowledged that evidence may be
exculpatory without being exonerating. In other words, the argument that other
inculpatory evidence and the theory of defense rendered the hair evidence not
exculpatory was actually a non sequitur or fallacy of affirming the consequent, i.e., the
panel committed a fallacy of relevance.

The district court is charged with the responsibility of assessing the exculpatory
and cumulative nature of each item proposed to be tested. In Bruner, we clarified that the
statute does not require the prisoner to make specific allegations regarding how the
requested testing would produce noncumulative, exculpatory evidence. 277 Kan. at 606.
Instead, we opined that it was the legislature, through the language employed in K.S.A.
21-2512, that had concluded a "fishing expedition" for DNA evidence is worth
conducting in these cases. 277 Kan. at 606. Accordingly, in Bruner we concluded the
district court should have appointed counsel and conducted an evidentiary hearing to
make that determination. 277 Kan. at 608. We come to the same conclusion here,
reversing and remanding this case for an evidentiary hearing at which Lackey has the
assistance of counsel.

Before concluding, we pause to emphasize that our decision today only addresses
the procedure to be followed up to and including the order for DNA testing. After the test
results are obtained, the procedure to be followed is governed by K.S.A. 21-2512(f).
Under that subsection, the district court may well be called upon to weigh the evidence to
make a "probabilistic determination about what reasonable, properly instructed jurors
would do" with the new evidence in light of the totality of the circumstances. Haddock,
295 Kan. at ___ (slip op. at 37). But the statute does not contemplate that exercise of
discretion in determining whether to order the testing in the first instance. Accordingly,
12



we reverse and remand for the appointment of counsel and the conducting of a hearing to
determine whether DNA testing of the hair evidence is required under K.S.A. 21-2512.

Reversed and remanded with directions.

MORITZ, J., not participating.
CLARK V. OWENS II, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Owens was appointed to hear case No. 100,890
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.