Opinion
No. 106,535.
2012-11-21
Fidelis THUKO, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Fidelis Thuko appeals from the district court's determination that he was not entitled to DNA testing under K.S.A. 21–2512. This was following a remand by this court, which found Thuko properly raised the request for DNA testing in his K.S.A. 60–1507 motion. Thuko v. State, No. 101,168, 2010 WL 1253623 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1104 (2010) ( Thuko II ). Now back before this court, Thuko argues (1) the district court did not follow the mandate in Thuko II by holding an evidentiary hearing; (2) the district court erred in denying DNA testing; and (3) appointed counsel provided ineffective assistance at the remand hearing. We affirm.
A jury convicted Fidelis Thuko of rape and attempted rape. He was sentenced to 202 months in prison. After Thuko's convictions were affirmed in State v. Thuko, No. 94,228, 2007 WL 92642 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 951 (2007) ( Thuko I ), he filed a K.S.A. 60–1507 motion raising various allegations including ineffective assistance of counsel and a request for DNA testing under K.S.A. 21–2512. The district court summarily denied the motion and further found a K.S.A. 60–1507 motion was not the proper vehicle to request DNA testing. On appeal, this court determined the district court wrongly found it could not address Thuko's request for DNA testing in his K.S.A. 60–1507 motion and, accordingly, remanded the case for appointment of counsel and an evidentiary hearing on the matter. This court affirmed the district court's dismissal of Thuko's K.S.A. 60–1507 motion in all other respects. Thuko II, 2010 WL 1253623, *3–6.
On remand, the district court appointed counsel and heard the parties' arguments. At the conclusion of the hearing, the district court denied DNA testing finding the requested DNA evidence would not have produced noncumulative, exculpatory evidence.
Thuko appeals.
The Mandate
Thuko first contends the district court did not follow the mandate of this court by holding an evidentiary hearing on his request for DNA testing. The State argues the district court clearly met the “letter and spirit of the mandate” by appointing counsel and holding a hearing to determine whether Thuko met the requirements of K.S.A. 21–2512. See State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998) (“ ‘A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.’ ”) (citing Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d at 856 (quoting Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 [3d Cir.1985] ).
Standard of Review
“When an appellate court has remanded a case for further proceedings consistent with its mandate, a district court is obliged to effectuate the mandate and may consider only those matters essential to the implementation of the ruling of the appellate court. A determination of the district court's compliance with an appellate court mandate constitutes a question of law over which this court possesses unlimited review. Edwards v. State, 31 Kan.App.2d 778, 780, 73 P.3d 772 (2003).” State v. Dumars, 37 Kan.App.2d 600, 603, 154 P.3d 1120 (2007).
Regarding Thuko's entitlement to a hearing on his request for DNA testing, Thuko II stated he was “entitled to the appointment of counsel and an evidentiary hearing on the matter,” and the case was remanded “to comply with Bruner ” (Bruner v. State, 277 Kan. 603, 88 P.3d 214 [2004] ).2010 WL 1253623, at *3. In Bruner, the district court summarily denied Bruner's K.S.A. 60–1507 motion which contained a request for DNA testing. The Kansas Supreme Court found the district court erred in applying K.S.A. 60–1507 standards to Bruner's request for DNA testing; the district court should have determined whether Bruner met the requirements of K.S.A. 21–2512. Bruner, 277 Kan. at 604–05. The State argued DNA testing was not warranted because the evidence against Bruner was overwhelming, and there was no indication his conviction was based on biological evidence. 277 Kan. at 605. The Supreme Court determined K.S.A. 21–2512 is not limited to cases where the evidence was not overwhelming and, further, there is no requirement for a specific allegation that DNA testing would produce noncumulative, exculpatory evidence. Rather, Bruner was merely required to allege (1) the evidence is related to the prosecution that resulted in his conviction; (2) the biological material is in the actual or constructive possession of the state; and (3) the material was not previously subjected to DNA testing or can be subjected to retesting with new techniques that likely would produce more accurate and probative results. See K.S.A. 21–2512(a). Bruner, 277 Kan. at 606. The Supreme Court concluded that while K.S.A. 21–2512 may allow a “ ‘fishing expedition,’ “ it was one the legislature has determined worth conducting. The Supreme Court remanded for appointment of counsel and an evidentiary hearing, stating the requirements of K.S.A. 21–2512(a) would limit the hearing's scope, and a request for DNA testing would be determined on a case-by-case basis. 277 Kan. at 606.
Since the Bruner decision, however, this court has found K.S.A. 21–2512 does not require an evidentiary hearing where the files and record are sufficient to determine that DNA testing would not produce noncumulative, exculpatory evidence as required by K.S.A. 21–2512(c). See State v. Lackey, 42 Kan.App.2d 89, 101, 208 P.3d 793 (2009), rev'd on other grounds295 Kan. ––––, 286 P.3d 859 (2012) (remanding for an evidentiary hearing on the grounds DNA evidence might be capable of producing noncumulative, exculpatory evidence); and State v. Smith, 34 Kan.App.2d 368, 370, 373, 119 P.3d 679 (2005). Both of these opinions distinguished Bruner in light of the Supreme Court's statement that while Bruner was convicted based on circumstantial evidence and no biological evidence, there was “no reason to believe that testing of available biological evidence might not produce noncumulative, exculpatory evidence.” Bruner, 277 Kan. at 606;Lackey, 42 Kan.App.2d at 98;Smith, 34 Kan.App.2d at 373.Thuko II noted the Lackey and Smith opinions but pointed out that unlike those cases, the district court in Thuko's case failed to make the initial determination of whether he met the requirements of K.SA. 21–2512. 2010 WL 1253623, at *3.
In any event, Thuko's brief fails to suggest what more he would present at a full evidentiary hearing. Moreover, before the district court, Thuko's counsel merely maintained Thuko should be eligible for DNA testing because it would reveal exculpatory evidence. Thuko's counsel never argued the district court was required to do more under the mandate of Thuko II.
In Thuko's case, the district court followed the mandate from Thuko II by making the initial determination under K.S.A. 21–2512—additional DNA testing would not lead to noncumulative, exculpatory evidence. Because Thuko's request for DNA testing would not result in noncumulative, exculpatory evidence as addressed in the next issue, a remand for an evidentiary hearing would be a “futile exercise.” See Lackey, 42 Kan.App.2d at 102.
DNA Testing
Next, Thuko argues the district court erred in finding DNA testing would not yield exculpatory evidence.
The summary denial of a request for DNA testing under K.S.A. 21–2512 presents a question of law over which an appellate court has unlimited review. Wimbley v. State, 292 Kan. 796, 810, 275 P.3d 35 (2011).
K.S.A. 21–2512 allows a person in custody after a conviction for rape to petition the court for forensic DNA testing (deoxyribonucleic acid testing) of any biological material upon a threshold showing of three conditions: (1) the material is related to the prosecution that resulted in the conviction; (2) the material is in the actual or constructive possession of the State; and (3) the material was not previously subjected to DNA testing or can be subjected to retesting with new DNA techniques with a reasonable likelihood of more accurate and probative results. K.S.A. 21–2512(c) further qualifies that “[t]he 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.”
Some additional underlying facts are necessary to understand Thuko's request for DNA testing. Thuko was charged with two counts of rape and one count of attempted rape of M.A.S. The jury convicted Thuko of one count each of rape and attempted rape. He was also charged but not convicted of one count of rape of N.N.K. Thuko, 2007 WL 92642, at *1.
At trial, M.A.S. testified she and N.N.K. went to Thuko's apartment after meeting him at a bar. M.A.S. alleged Thuko forced his hand down her pants and put his finger in her vagina. According to Thuko, the allegation involving N.N.K. was similar. He states the allegation was that within minutes of digitally penetrating M.A.S., he did the same to N.N.K. Shortly after this, both M.A.S. and N.N.K. left the apartment. Thuko followed M.A.S. and N.N.K to their cars. After N.N.K. left, Thuko pulled M.A.S. out of her car. He kissed her and put his finger in her vagina again. According to M.A.S.'s trial testimony, Thuko then pushed her on the ground, straddled her, and pulled her shorts and underwear down. As M.A.S. was struggling, Thuko put his thumbs on her neck and started pushing. M.A.S. was able to break free and get away.
In Thuko's K.S.A. 60–1507 motion, he contends physical and biological material was collected from M.A.S. and is in the possession of the State. Of this material, he contends the State performed DNA testing on only the vaginal and neck swabs. In light of the allegation that he digitally penetrated both M.A.S. and N.N.K. within a very short time period, Thuko believes vaginal cells of each victim would be present on the other as well as on the additional material collected from M.A.S. but not tested. Thuko asks for DNA testing on the neck, leg, and arm swabs, a jacket, and a shirt. Thuko contends a lack of cross-contamination between the victims and a failure to detect vaginal cells on the clothing would constitute exculpatory evidence. In other words, if no vaginal DNA cells are detected on these items, it would prove he did not digitally penetrate M.A.S.
Thuko's argument on appeal is a little hard to follow. He points to this court's decision in Lackey where it distinguished Bruner and Goldsmith v. State, 34 Kan.App.2d 789, 124 P.3d 516 (2005), because biological material was collected but the material either did not connect the movants to the crime or they were convicted on circumstantial evidence. See Lackey, 42 Kan.App.2d at 99–100. Thuko contends his case is similar to Goldsmith, and presumably then distinguishable from Lackey because the DNA expert in his case testified there was no foreign DNA found in the vaginal swab taken from M.A.S. Thuko follows this by citing the statement in Haddock v. State, 282 Kan. 475, 501, 146 P.3d 187 (2006)—“DNA may not conclusively establish guilt or innocence but may have significant probative value to a finder of fact.” But in all these cases, there is the underlying presumption that the purpose of DNA testing would be to show someone else committed the crime. As a side note, K.S.A. 21–2512 does not differentiate eligibility for DNA testing between rape committed by a penis versus a finger or other object. Goldsmith is distinguishable from Thuko's case on that basis; the testing in Goldsmith was looking for seminal fluid. Goldsmith, 34 Kan.App.2d at 789.
According to the State, the files and records in Thuko's case conclusively show additional DNA testing could not lead to exculpatory evidence. The State bases this argument on two premises. First, Thuko's identity was not at issue; testing would not show someone else committed the rape. The State points out that M.A.S. identified Thuko as her attacker and described the incident at trial. Thuko testified and admitted to many of the events as described by M.A.S. Thuko admitted he followed M.A.S. out to her car; that he kissed her and touched her breasts; they stumbled on the ground; and he fell on top of M.A.S. A swab of M.A.S.'s neck was positive for saliva, and DNA testing could not exclude Thuko as the contributor of that sample. The State adds that Thuko admitted to law enforcement that he did not “think” he put his finger in M.A.S.'s vagina. But the record does not clearly support this. In response to the detective's question, “[d]id you stick your hand down her pants and play with her vagina?” Thuko answered, “[n]o, I did not. I don't think I did, no, I did not.”
Second, the State contends DNA testing would not produce exculpatory evidence because it could not show M.A.S. was not raped. Here, the State points to the DNA expert's testimony at trial that there was “no indication of the presence of DNA from a foreign source” in the swab from M.A.S.'s vagina. The expert further testified that digital penetration would not be expected to transfer cells from one victim to another. Furthermore, the expert testified that generally, DNA testing is not conducted in cases where the allegation involves solely digital penetration. The State concludes there is no scientific basis for Thuko's assertion that if he digitally penetrated M.A.S. then her DNA would be on the places he touched. That particular question, whether a digital penetration would transfer the victim's cells to other objects touched by the perpetrator, was not posed to the DNA expert however.
The district court denied Thuko's request for DNA testing by adopting the State's response. The district court noted that Thuko was not convicted of any crime involving N.N.K.; therefore, his request for DNA testing for exculpatory evidence involving her could not provide him with relief. At the hearing, the district court stated: “I just am at a loss to see how you can prove—how a negative can prove this, prove this negative. To me, I just don't see how that gets you anywhere.... The double negative doesn't get you there.”
The files and record conclusively show that Thuko did not meet the requirements under K.S.A. 21–2512—DNA testing would not lead to noncumulative, exculpatory evidence. Even if DNA testing was performed on the swabs taken from M.A.S.'s neck, leg, and arm, the jacket and shirt, the absence of vaginal cells on these items—the best result Thuko could expect—would still not provide exculpatory evidence.
Ineffective Assistance of Counsel
For his third issue, Thuko contends his counsel at the K.S.A. 21–2512 hearing was ineffective because he (1) failed to request that the district court follow the mandate of Thuko II to hold an evidentiary hearing; and (2) failed to do an independent investigation of the DNA evidence. In response, the State argues the panel should not address this issue for the first time on appeal.
Generally, claims of ineffective assistance of counsel cannot be raised for the first time on appeal. In most cases, a district court must consider the evidence to determine the two-prong test for establishing ineffective assistance of counsel. Wimbley, 292 Kan. at 807. A constitutional challenge to an attorney's performance must be raised in the district court, either via a collateral attack or on remand for determination of the issue. Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2009). When considering an attorney's performance on a K.S.A. 60–1507 motion, the appellate courts can consider the issue for the first time on appeal when the record is sufficient to determine the issue. Robertson, 288 Kan. at 227–28.
Regardless, to prevail on an ineffective assistance of counsel claim, Thuko must show legal prejudice. Robinson, 288 Kan. at 232. Thuko cannot show prejudice. The district court complied with the mandate from Thuko II by determining whether Thuko met the requirements for DNA testing under K.S.A. 21–2512. There is no reason to believe the district court would have done more had Thuko's counsel requested an evidentiary hearing. Regarding Thuko's claim that his counsel should have independently investigated DNA evidence, he suggests counsel could have inquired whether the DNA evidence was still in the State's possession; had the DNA evidence reviewed by an expert; and contacted an expert to determine whether there might be differing opinions on the transfer of DNA between victims in digital penetration cases. But still, the best case scenario for Thuko if DNA testing was performed would be the absence of DNA from the other victim or on articles of clothing following an alleged digital penetration. This would not be exculpatory evidence.
Finally, the following discussion in State v. Denney, 283 Kan. 781, 156 P.3d 1275 (2007), suggests Thuko could not show prejudice from counsel's alleged ineffectiveness. In Denney, the district court dismissed the petition under K.S.A. 21–2512 when DNA test results came back unfavorable to the petitioner. 283 Kan. at 785. On appeal, Denney argued in part that the district court wrongly dismissed his petition without allowing him to confront the person who performed the DNA testing and to be present at the hearing. The Supreme Court analyzed Denney's arguments this way:
“Inherent in Denney's brief is a suggestion that the mere legislative creation of the right to, and process for, postconviction DNA testing carries attendant rights. We independently observe, for example, that in Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004), we acknowledged that there is no constitutional right to effective assistance of counsel on collateral attacks, e.g., 60–1507 motions, because they are civil, not criminal, actions. Nevertheless, we held that when counsel is appointed pursuant to certain circumstances under state statute, such counsel must demonstrate a modicum of competence. Among other things, Brown's counsel missed the deadline for filing an appeal of the denial of a 1507 motion, and we allowed the filing more than 2 years later under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). We also noted in passing that to hold otherwise would have left Brown with no remedy whatsoever: ‘[I]f Brown is not allowed to file his appeal out of time, it is impossible for him to obtain postconviction relief. In turn, without that relief, he cannot pursue an action for legal malpractice.’ 278 Kan. at 485.
“By contrast, in the instant case, although the legislature has created a right, it has carefully limited the right to the procedures established by the statute. And unlike the defendant in Brown, Denney still has remedies available, as the legislature acknowledged in subsection (g) of the statute: ‘Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.’ Indeed, the district court invited Denney to avail himself of further testing on his own, even going so far as to suggest the possible caption of a motion based upon different testing results.” 283 Kan. at 792.
Thuko cannot meet the prejudice prong of an ineffective assistance of counsel claim. Accordingly, this issue has no merit.
Affirmed.