Motion for DNA testing under MCL 770.16.

In People v Poole, Jr, __ Mich App __ (#315982, 7/7/2015) defendant was convicted of first-degree murder in 1989, notwithstanding blood found on the victim’s clothing matched neither the victim or the defendant.  The conviction was affirmed by the Court of Appeals.  People v Poole, unpub per curiam opinion (#120955, 1/21/1993), and the Michigan Supreme Court denied the application for leave to appeal. People v Poole, 442 Mich 933 (1993).

 

In 2005, defendant filed a motion for new trial in the circuit court, and a motion for DNA testing under MCL 770.16 which provides that a defendant convicted of a felony at trial who is serving a prison sentence for the felony conviction may petition the circuit court to order DNA testing of biological material identified during the investigation leading to his or her conviction.  The circuit court treated the motion as being brought under MCR 6.501 et seq. (post-appeal relief), holding in part that the DNA evidence was not material to the defendant’s identity as the perpetrator of the murder. Evidence presented during the defendant’s trial already established that the defendant’s blood [type] was not found on the victim. There is no other suspect to attempt to match with DNA testing. The defendant had not, therefore, satisfied the requirements of MCL 770.16(3).  The Michigan Supreme Court denied defendant’s application for leave to appeal, ruling that “defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).”  People v Poole, 480 Mich 1186 (2008). The Federal Court denied defendant’s petition for a writ of habeas corpus. Poole v Woods, unreported opinion of the United States District Court for the Eastern District of Michigan, (#08-12955, 9/28/2011). The case was then unsuccessfully appealed to the Sixth Circuit and the United States Supreme Court denied certiorari. Poole v Mackie, __ US __; 134 S Ct 945; 187 L Ed 2d 811 (2014).

 

While the federal effort was pending in the Sixth Circuit, defendant filed the instant petition in the circuit court, seeking an order, once again, to test for biological evidence pursuant to MCL 770.16.  The trial court denied the petition, concluding that simple blood-type evidence presented to the jury at defendant’s criminal trial in 1989 had already excluded defendant as the source of collected blood samples, yet defendant was still convicted by the jury. Therefore, according to the trial court, DNA testing would add nothing new for purposes of a retrial and simply confirm that defendant’s blood was not present at the crime scene. The Court of Appeals affirmed the trial court’s decision, not on the merits, but on the basis of the law of the case doctrine in light of the case’s procedural history in which prior comparable claims raised by defendant had been rejected in orders issued by this Court and the Michigan Supreme Court. The Michigan Supreme Court reversed ruling that the law of the case doctrine did not apply, given that the previous appellate orders did not constitute decisions on the merits. People v Poole, __ Mich __; 862 NW2d 652 (2015).

 

On remand to the Court of Appeals, given the Supreme Court’s directive that “no provision set forth in MCL 770.16 prohibits the issuance of an order granting DNA testing of previously tested biological material” and that the Court of Appeals was to address “the issues raised by the defendant,” id. at 652-653-------the Court of Appeals set aside sua sponte their concerns that, perhaps, MCL 770.16 does not allow for multiple petitions regarding the same evidence or that the court rules regarding motions under Subchapter 6.500 (post-appeal relief) might be applicable and bar relief. See MCL 770.16(8) (referencing MCR 6.505); MCR 6.501 (“Unless otherwise specified by these rules, a judgment of conviction and sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of this subchapter.”); MCR 6.502(G)(1) and (2) (only one motion for relief from judgment may be filed except for situations involving certain retroactive changes in the law or newly-discovered evidence); MCR 6.508(D)(2) (court generally cannot grant relief if the defendant’s motion alleges grounds that were previously rejected in an MCR 6.500 proceeding).

 

Turning to the substance or merits of defendant’s petition under MCL 770.16, the Court of Appeals concluded: (1) that, in satisfaction of § 16(1), defendant was convicted of a felony at trial before January 8, 2001, and is currently serving a prison sentence for the conviction; (2) that, in satisfaction of § 16(2), defendant’s petition was filed in the sentencing court before January 1, 2016; (3) that, in satisfaction of § 16(3), biological material was collected and identified during the police investigation of defendant’s case; (4) that, in satisfaction of § 16(4)(a), defendant presented prima facie proof that the biological evidence sought to be tested was material to the question of defendant’s identity as the perpetrator of the murder; (5) that, in satisfaction of § 16(4)(b)(i), there is clear and convincing evidence that a sample of biological material is indeed available for DNA testing; (6) that, in satisfaction of § 16(4)(b)(ii), there is clear and convincing evidence that the biological material was not previously subjected to DNA testing; and (7) that, in satisfaction of § 16(4)(b)(iii), there is clear and convincing evidence that defendant’s identity as the perpetrator was at issue during his trial.

 

When all of the factors recited above are satisfied-------the Court of Appeals concluded, “[t]he court shall order DNA testing[.]” MCL 770.16(4) (emphasis added).  DNA testing could be inconclusive, could point to defendant as being a donor, or could exclude defendant as the source of any blood samples, along with potentially identifying another specific individual as the donor, thereby clearly satisfying MCL 770.16(4)(a). Because DNA testing of a blood sample could possibly connect another person to the crime scene or exclude defendant, the sample would be of some consequence or have a logical relationship to the issue of identity and would be linked to both the crime and the criminal. In other words, the blood samples would necessarily be material to defendant’s identity as the perpetrator.  If a defendant satisfies the required factors with respect to the question whether DNA testing should be ordered, “[t]he court shall order DNA testing[.]” MCL 770.16(4) (emphasis added). Accordingly, it would be improper to deny DNA testing on the basis that a court concludes that it would deny a future motion for new trial regardless of the results of any DNA testing.

 

Although it is true that both blood-type results and prospective DNA results might equally exclude defendant as being the donor of the blood samples found at the crime scene, the fact is that DNA evidence and blood-type evidence are not typically of equal value. Reasonable doubt would more likely flow from the identification of a specific individual, especially if the person was present in the area at the time of the murder, as opposed to a wholly unknown figure.