BY THE COURT
district court appoints counsel and conducts a nonevidentiary
hearing, its denial of a K.S.A. 2015 Supp. 21-2512 petition
for DNA testing presents a question of law over which an
appellate court exercises unlimited review.
evaluating a petition for DNA testing pursuant to K.S.A. 2015
Supp. 21-2512, the district court is charged with the
responsibility of assessing the exculpatory and cumulative
nature of each item proposed to be tested.
evidence need not be exonerating but only needs to tend to
disprove a fact at issue material to guilt.
evidence is the converse of cumulative evidence, i.e., not of
the same kind and character or not tending to prove the same
of the judgment of the Court of Appeals in an unpublished
decision filed October 30, 2015.
from Leavenworth District Court; Gunnar A. Sundby, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, was
on the brief for appellant.
G. Thompson, county attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
Mark George, Jr. appeals the denial of his petition for
post-conviction DNA testing filed under K.S.A. 2015 Supp.
21-2512. The majority of a panel of the Court of Appeals
affirmed the district court's denial.
argues both lower courts erred because the testing of hair
from the crime scene may have indeed produced exculpatory
evidence that was "noncumulative" as required by
the statute. We agree with George. So we reverse and remand
to the district court for further proceedings.
and Procedural History
was convicted by a jury of kidnapping, rape, aggravated
robbery, and aggravated intimidation of a witness or victim.
The basic facts as established in the direct appeal of his
"R.L., a clerk at a Lansing convenience store, testified
that on December 21, 2004, George entered the store, told
R.L. he 'wanted the money, ' and showed her a gun.
R.L. handed George cash from the register, which he stuffed
in his pockets. Then, holding the gun at the back of her
head, George pushed R.L. into the storeroom at the back of
the store and raped her.
"George left after he heard a bell, signaling that a
customer had entered the front of the store. Before leaving,
however, George told R.L. that he would kill her and her
children if she told police about the incident. R.L. remained
in the storeroom until she was found by customers, who
contacted police. After police arrived, R.L. was briefly
interviewed, then taken to the hospital and examined.
"A few days later, R.L. identified George in a photo
identification lineup. She also viewed the video from the
store's recording system and recognized George robbing
her and forcing her to the storeroom.
"Lansing police officer Anthony Waterman later linked
George to a complaint from Amanda Yoho, a clerk at another
local convenience store. Officer Waterman asked Yoho to
contact him when George next appeared at the store, which she
did. Officer Waterman spotted George driving near the store,
followed him for a short distance, and then pulled him over
and arrested him." State v. George, No. 97,
679, 2008 WL 4471431, at *1 (Kan. App. 2008) (unpublished
record reflects the rape occurred in front of the
storeroom's sink near a hot water heater. From the floor
near that heater a Lansing police officer collected 10 pieces
of hair and fiber evidence which were eventually turned over
to the department's evidence custodian. The hair was
never tested by the Kansas Bureau of Investigation (KBI).
Through use of a rape kit, an examination was performed on
R.L. and fluid was collected. This was later identified as
seminal fluid, which was also found on R.L.'s pants and
first trial ended in a mistrial. There, the State called the
nurse who had administered R.L.'s rape kit, the forensic
scientist who processed the evidence once the KBI received
it, and the forensic scientist who conducted the DNA testing
on the fluids. Per testimony, George's DNA was not found
in any of the samples tested from the rape kit or R.L.'s
clothing. But testing results of the fluid samples were
consistent with R.L.'s boyfriend's DNA.
retrial, however, none of these witnesses testified about the
DNA evidence. Accordingly, there was no testimony regarding
the rape kit or the subsequent DNA testing other than an
officer's testimony that he was present in the hospital
when the rape kit contents were collected. And the DNA
testing results showing consistency with R.L.'s boyfriend
were not admitted into evidence. Apparently, this evidence
was meant to be replaced by a stipulation that was presented
to the jury. But the stipulation is not included in the
record on appeal, whether by the document itself or by a
transcript reciting its specific contents.
majority of the evidence on retrial concerned R.L.'s
testimony combined with surveillance video and photo lineups.
It was upon this evidence that the jury convicted George of
kidnapping, rape, aggravated robbery, and aggravated
intimidation of a witness or victim. He was sentenced to 722
months' imprisonment, which was later reduced to 663
months. See State v. George, No. 97, 679, 2010 WL
2502869, at *1 (Kan. App. 2010) (unpublished opinion)
(reversing the conviction of kidnapping and remanding the
case for resentencing).
August 26, 2013, George filed a pro se petition for
postconviction DNA testing under K.S.A. 2013 Supp. 21-2512.
George asked that the collected, but previously untested,
hairs be tested against the DNA profile of R.L.'s
boyfriend. His petition also requested an evidentiary hearing
and the appointment of counsel. In effect, George maintained
that he was not the perpetrator.
district court appointed counsel and a preliminary hearing
was held to discuss, in part, the petition. During that
hearing, George's counsel clarified that they also wanted
the hair DNA testing results to be "cross referenced and
checked against" an FBI database like CODIS. In their
view, this could connect a third party with a criminal record
to the scene and further support the claim that R.L.
mistakenly identified George as the perpetrator.
denying George's petition, the district court relied on
the legal standard from State v. Lackey, 42
Kan.App.2d 89, 208 P.3d 793 (2009) (Lackey I), which
had been overruled by State v. Lackey, 295 Kan. 816,
286 P.3d 859 (2012) (Lackey II), before the district
court ruling. Based upon Lackey I, the district
court concluded that "additional testing would not point
to Mr. George's innocence or that he was wrongfully
appealed and the Court of Appeals panel split. The majority
ruled that while the district court erred in relying on
Lackey I, the decision to deny still should be
affirmed. The majority cited Lackey II to conclude
that while the hairs could produce exculpatory results, they
nevertheless would be cumulative to other record evidence. So
testing was not required by K.S.A. 2015 Supp. 21-2512. In
deciding the hair testing results would be cumulative
evidence, the majority relied on the stipulation after
acknowledging that "[d]ue to the parties' failure to
cite to the actual stipulation and/or request the addition of