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State v. Lapointe

Supreme Court of Kansas

February 15, 2019

State of Kansas, Appellee/Cross-appellant,
Jack R. Lapointe, Appellant/Cross-appellee.


         1. In 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.

         2. The 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.

         3. 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.

         4. 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.

         5. A 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.

         6. The 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed November 23, 2016.

          Appeal 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.

          Jacob 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 appellee/cross-appellant.


          BILES, J.

         A jury 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.

         We 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 new trial).

         As to 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.

         Factual and Procedural Background

         In 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.

         At 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.

         A State 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.

         The 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 gloves.

         Testifying 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.

         The 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.

         The battles over DNA testing

         In 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 circumstances.

         LaPointe 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.

         From 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 source.

         Based 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.

         The 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.

         LaPointe 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) (LaPointe III).

         Citing 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.

         Both 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).

         The Favorable DNA Testing Does Not Warrant a New Trial

         We 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.

         Standard of review

         K.S.A. 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 provides:

"(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 ...

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