BY THE COURT
considering whether to grant a new trial based on favorable
postconviction DNA testing under K.S.A. 2017 Supp.
21-2512(f)(2)(B)(iv), the evidence must be of such
materiality that a reasonable probability exists it would
result in a different outcome at trial.
standard of appellate review of a trial court's order
under K.S.A. 2017 Supp. 21-2512(f)(2) is whether the trial
court abused its discretion. The decision whether to grant a
new trial will not be disturbed on appeal if a reasonable
person could agree with that decision.
Under K.S.A. 2017 Supp. 22-3602(b)(3), an appeal may be taken
by the prosecution as a matter of right after a final
judgment in the district court upon a question reserved by
the prosecution. Questions reserved in a criminal prosecution
may proceed only when they seek a ruling on questions of
statewide interest that are important to the correct and
uniform administration of the criminal law and the
interpretation of statutes.
K.S.A. 2017 Supp. 21-2512(a) permits postconviction DNA
testing under limited circumstances, which include when a
person is in state custody. For purposes of this statute, the
phrase "in state custody" applies to a person in
federal custody subject to a detainer for a Kansas conviction
when the motion to invoke the statute is filed.
court evaluates an equal protection challenge using a
three-step process. First, the court considers whether the
legislation creates a classification resulting in different
treatment of similarly situated individuals. Second, if the
statute does treat "arguably indistinguishable"
individuals differently, then the court examines the
classification or right at issue to determine the appropriate
level of scrutiny. Finally, the court applies the proper
level of scrutiny to the statute.
party challenging a statute's constitutionality under the
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution has the burden to prove an
individual is similarly situated to members of a class
receiving different treatment.
of the judgment of the Court of Appeals in an unpublished
opinion filed November 23, 2016.
from Johnson District Court; Kevin P. Moriarty, judge.
Judgment of the Court of Appeals affirming the district court
is affirmed on the issue subject to our review. Judgment of
the district court is affirmed. The cross-appeal is sustained
in part and denied in part on the questions reserved.
Richard Ney, of Ney, Adams & Miller, of Wichita, argued
the cause and was on the briefs for appellant/cross-appellee.
M. Gontesky, assistant district attorney, argued the cause,
and Steven J. Obermeier, senior deputy district attorney,
Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were with him on the briefs for
convicted Jack R. LaPointe of aggravated robbery and
aggravated assault. From the evidence, the jury knew hairs
found on clothing believed to be worn by the perpetrator
probably did not belong to LaPointe. Years later, LaPointe
requested DNA testing under K.S.A. 2017 Supp. 21-2512, which
authorizes postconviction analysis of biological material for
first-degree murder and rape cases. The district court
granted the motion over the State's vigorous objections.
The analysis confirmed one hair did not belong to LaPointe,
while the other was inconclusive but probably not his. He now
seeks a new trial, claiming these test results would have
changed the original trial's outcome. Lower courts denied
that relief. LaPointe appeals. The State cross-appeals over
the preliminary battles lost opposing testing.
unanimously affirm the decision denying LaPointe a new trial.
The district court did not abuse its discretion when it
determined there was no reasonable probability these results
would have changed the original trial's outcome. See
K.S.A. 2017 Supp. 21-2512(f)(2) (reciting test for granting
the State's cross-appeal, we unanimously hold LaPointe
was in state custody for purposes of K.S.A. 2017 Supp.
21-2512(a) (permitting DNA testing for a person "in
state custody" convicted of first-degree murder or
rape), even though he was in a federal prison when he applied
for testing. As to the State's objection that
LaPointe's crimes were not statutorily eligible for DNA
testing, a majority agrees. That portion of the State's
cross-appeal is sustained. In so deciding, we overrule
State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013)
(Cheeks I), which expanded postconviction DNA
testing to a second-degree murder defendant to avoid
perceived equal protection problems.
and Procedural Background
October 2000, a man robbed a Roeland Park Payless store at
gunpoint, taking about $1, 000 stuffed into a shopping bag. A
store clerk, customers, and others in a nearby parking lot
provided general descriptions, but only one witness later
identified LaPointe. Police found a plaid shirt and baseball
hat at a breezeway in a nearby apartment complex. They
discovered a pair of gloves in a different breezeway. A
tracking dog led officers to a blue bandana under a car in
the complex parking lot. Head hairs were found on the
clothing. LaPointe was eventually charged.
trial, Robert Booth, chief criminologist for the Kansas City,
Missouri, crime lab, testified the hairs most likely did not
belong to LaPointe, although he allowed there was a possible
"remote explanation" that LaPointe could still be
the source. This could happen, he said, if LaPointe changed
the way he maintained his hair after the officers found the
clothing and before a known sample was obtained from LaPointe
for comparison. Booth characterized this possibility as rare.
Booth testified that "just because [the hairs] may not
be his or doesn't match does not mean he never wore the
garb itself. He could have worn them and not shed any hair or
we didn't find the hair he shed." On
cross-examination, Booth would not agree the person who shed
the hairs was "most likely the person most recently to
have worn the items." But when asked if it would
"be more likely than not," Booth responded
"probably so." Booth ultimately concluded the hairs
probably were not LaPointe's.
DNA expert testified the lab could not extract sufficient
material from the bandana, shirt, cap and gloves to make a
DNA comparison. There were three usable latent fingerprints
from the crime scene, but none matched LaPointe's.
State's strongest evidence came from Michael Norton, who
said he committed the crime with LaPointe. Norton testified
in exchange for immunity. He said the two planned to commit a
robbery in a "low-key" area. The pair would split
the proceeds, and LaPointe would pay Norton to satisfy a
debt. Norton said the plan was to park in a residential area,
hopefully an apartment complex where the vehicle would be
inconspicuous. LaPointe chose the Payless. Norton parked the
car in the adjacent apartment complex to wait while LaPointe
robbed the store. Norton testified LaPointe wore blue jeans
and a sweater and was holding a baseball cap and a
handkerchief when he got out of the car. LaPointe used a
sawed-off shotgun he got from Norton. About 10-15 minutes
passed before Norton saw LaPointe standing outside a store
next to the Payless. About five minutes later, LaPointe came
running back with the money, the handkerchief, and the
in his own defense, LaPointe confirmed he had known Norton
since 1998. He also confirmed he lost a pistol belonging to
Norton, who demanded money for it. LaPointe testified he got
a sawed-off shotgun and gave it to Norton. He denied seeing
Norton the day of the robbery and denied committing the
crimes. Additional evidence we will detail later conflicted
with or corroborated these accounts.
jury convicted LaPointe. The district court sentenced him to
the middle grid-block sentence of 233 months for aggravated
robbery and to the middle grid-block sentence of 12 months
for the aggravated assault. The court ordered LaPointe's
sentences to run consecutive to each other and to existing
West Virginia, Kansas, and federal sentences. LaPointe's
criminal history score was an A.
battles over DNA testing
2014, LaPointe tried to invoke K.S.A. 2014 Supp. 21-2512 for
postconviction DNA testing of the biological material found
on the clothing thought to have been worn by the robber. An
obvious question was whether his crimes qualified for this
because the statute allows only persons convicted of
first-degree murder or rape to request testing under specific
noted our court's caselaw had expanded the statute's
scope based on the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. See Cheeks
I, 298 Kan. at 11 (statute violates equal protection as
applied to individuals convicted of second-degree murder and
sentenced to 15 years to life imprisonment). LaPointe
contended he was similarly situated to those persons listed
in the statute because of his prison term. The State
objected, arguing LaPointe's crimes differed from
first-degree murder and rape, and the Legislature had
authority to distinguish between crimes when deciding DNA
testing eligibility. The district court agreed with LaPointe
and ordered testing.
that point, the litigation split into separate tracks. First,
the State immediately appealed the order granting testing.
But a Court of Appeals panel dismissed that effort for lack
of jurisdiction. State v. LaPointe, 51 Kan.App.2d
742, 750, 355 P.3d 694 (2015) (LaPointe I). Our
court affirmed, holding the State's chosen procedural
path was premature. State v. LaPointe, 305 Kan. 938,
947, 390 P.3d 7 (2017) (LaPointe II). On the second
track, the testing was completed while the interlocutory
appeal proceeded. The State produced two hairs. One,
described as a "[h]air shaft from cap/gloves,"
yielded test results that were inconclusive but more likely
than not excluded LaPointe as the contributor. The other,
described as a "[h]air shaft from bandana,"
produced test results conclusively excluding LaPointe as the
on those results, LaPointe asked the district court to vacate
his convictions or, alternatively, grant him a new trial. The
State argued the results would not have affected the
jury's verdict because they merely confirmed the hairs
did not belong to LaPointe, which the jury already knew.
district court agreed LaPointe was not entitled to a new
trial. The court found the results were favorable but
insufficient to support a reasonable probability they would
result in a different trial outcome. The court reasoned the
jury convicted LaPointe when it was clear no physical
evidence linked him to the robbery and that most likely he
did not contribute the hairs. The court noted defense counsel
emphasized both these points at trial. It also concluded the
DNA results would have had little to no impact on the
testimony from Norton and the eyewitnesses.
appealed, and the State cross-appealed on its two statutory
eligibility arguments: (1) LaPointe was not in state custody
when he requested DNA testing; and (2) LaPointe's crimes
were not those the Legislature specified. A Court of Appeals
panel affirmed the decision denying LaPointe a new trial. It
dismissed the State's cross-appeal without reaching the
merits. State v. LaPointe, No. 113, 580, 2016 WL
6910200, at *6 (Kan. App. 2016) (unpublished opinion)
Haddock v. State, 295 Kan. 738, Syl. ¶ 4, 286
P.3d 837 (2012) (Haddock II), the panel acknowledged
the test results were favorable to LaPointe but concluded the
district court was within its discretion to deny a new trial.
2016 WL 6910200, at *3, 5. After summarizing the witness
testimony, the panel reasoned:
"[A] careful review of the record reveals that
LaPointe's jury heard evidence that one eyewitness
identified LaPointe, Norton testified he conspired with
LaPointe to commit this robbery, and the experts did not
believe that it was LaPointe's hair found in the
recovered clothing. In addition, no fingerprints were
recovered matching LaPointe's fingerprints. In light of
the fact that there was no forensic evidence connecting
LaPointe to the crime during the first trial, the district
court did not err in holding that the DNA test results were
not of such materiality that there was a reasonable
probability a jury would have reached a different outcome had
it considered the test results." 2016 WL 6910200, *5.
parties timely petitioned for review. Jurisdiction is proper.
See K.S.A. 20-3018(b) (providing for petitions for review of
Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court
has jurisdiction to review Court of Appeals decisions upon
petition for review).
Favorable DNA Testing Does Not Warrant a New Trial
consider first LaPointe's argument that the district
court erred in denying him a new trial when the DNA outcomes
showed a hair from the perpetrator's clothing did not
belong to him and that a second hair was probably not his. We
hold the court did not abuse its discretion.
2017 Supp. 21-2512 specifies mandatory dispositions and
procedural requirements depending on how DNA testing results
are characterized: (1) unfavorable, (2) favorable, and (3)
inconclusive. See Haddock v. State, 282 Kan. 475,
495, 146 P.3d 187 (2006) (Haddock I). The analysis
turns on the category. K.S.A. 2017 Supp. 21-2512(f); see
Goldsmith v. State, 292 Kan. 398, 402, 255 P.3d 14
(2011). "To be 'favorable,' the test result need
not completely exonerate the petitioner."
Goldsmith, 292 Kan. at 402. In LaPointe's case,
it is undisputed the results are favorable, so the statute
"(2) If the results of DNA testing conducted under this
section are favorable to the petitioner and are of such
materiality that a reasonable probability exists that the new
evidence would result in a different ...