Donald Leroy Smith Jr. v. State of Iowa ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1856
Filed March 8, 2023
DONALD LEROY SMITH JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.
Defendant appeals the denial of his application for postconviction DNA
testing. AFFIRMED.
John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Greer and Badding, JJ.
2
GREER, Judge.
Following his jury convictions for possession of a controlled substance with
intent to deliver and failure to affix a drug tax stamp, Donald Smith applied for
postconviction DNA testing under Iowa Code section 81.10 (2021) on a variety of
evidence used to tie him to the drugs.
In 2016, Smith was arrested while digging through dumpsters. He was
patted down by Deputy Jason Tart and placed in the back of the police vehicle,
though Deputy Tart testified at trial that he did not look inside Smith’s boots. While
driving to the county jail, the deputy noted Smith was moving around in the
backseat, bending over, and kicking at the cage. When Smith was taken out of
the car, he was slow to exit and his pant leg was raised over his boot, which it had
not been when he entered the car. After taking Smith into the jail, Deputy Tart
searched his backseat and found a lipstick case in plain sight and a black leather
coin purse pushed underneath the cage. The lipstick case held two baggies of a
white crystalline substance and the coin purse held four baggies of the same
substance and $700 in cash; the substance was tested and found to be more than
twelve grams of methamphetamine.
At Smith’s criminal trial, as the facts developed, Deputy Tart testified he not
only visually searched the backseat before Smith’s transport but also ran his
fingers through the space between the floor and the cage to make sure there was
nothing there.1 Smith maintained the items were not his. Even so, a jury found
1Deputy Tart explained that about twelve hours earlier, he gave someone a ride
home after they were in an accident. This was the last person in his backseat
before Smith.
3
Smith guilty, and a panel of this court upheld the conviction on appeal. State v.
Smith, No. 18-2052, 2020 WL 376554, at *3 (Iowa Ct. App. Jan. 23, 2020).
In his application for postconviction DNA testing, Smith sought DNA testing
on the lipstick case, baggies, and coin purse to “dispositively exclude Smith as a
person who was ever in possession of the contraband, and/or definitely identify the
perpetrator, thereby creating a reasonable probability of a different outcome had
the DNA test results been presented at trial.” See Iowa Code § 81.10(1) (allowing
a convicted defendant to apply for DNA testing “on a forensic sample collected in
the case for which the person stands convicted”). In short, Smith believed the
testing would prove his innocence.
Iowa Code section 81.11(1) lays out the standard courts use to evaluate an
application for DNA profiling and requires the court to grant the application if all of
the following five factors apply:
a. The forensic sample subject to DNA profiling is available
and either DNA profiling has not been performed on the forensic
sample or DNA profiling has been previously performed on the
forensic sample and the defendant is requesting DNA profiling using
a new method or technology that is substantially more probative than
the DNA profiling previously performed.
b. A sufficient chain of custody has been established for the
forensic sample.
c. The identity of the person who committed the crime for
which the defendant was convicted was a significant issue in the
crime for which the defendant was convicted.
d. The forensic sample subject to DNA profiling is material to,
and not merely cumulative or impeaching of, evidence included in
the trial record or admitted to at a guilty plea proceeding.
e. The DNA profiling results would raise a reasonable
probability that the defendant would not have been convicted if such
results had been introduced at trial.
4
The district court denied the application because Smith failed to “show[] a
reasonable probability that any testing of the lipstick case or coin purse would
change the results of his criminal trial.”
On appeal, Smith contends that if the test showed his DNA was not on the
items, he could not be their owner and if someone else’s DNA was present, it could
point to an alternative suspect. We review the district court’s denial of Smith’s
application for errors at law. See Brodene v. State, No. 11-0837, 2012 WL
5356036, at *1 (Iowa Ct. App. Oct. 31, 2012).
Thus, our standard for whether the district court should have granted
Smith’s application for postconviction DNA testing under section 81.11 requires us
to consider if, were the results to come back as Smith hopes, there is a reasonable
probability they would have prevented his conviction. See Iowa Code
§ 81.11(1)(e). And if the answer is yes, then Smith should have been allowed to
move forward with the testing.
Considering the application through this lens, Smith cannot show how DNA
evidence would have changed the outcome of his trial. See Mark v. State,
No. 09-0800, 2013 WL 5498146, at *2 (Iowa Ct. App. Oct. 2, 2013) (discerning no
error in the ruling that the absence of defendant’s DNA would not prove he did not
commit the crime and presence of an unknown person’s DNA is not evidence
someone else had the contraband in the vehicle). A showing of someone else’s
DNA on the items without any evidence of their opportunity to deposit them in the
deputy’s car would not overcome the evidence against Smith, which a panel of this
5
court determined was sufficient to support his conviction.2 See Smith, 2020 WL
376554, at *2–3. Even a lack of DNA on the items in this instance would not rebut
the circumstantial evidence tying Smith to the items. See State v. Poyner, 306
N.W.2d 716, 718 (Iowa 1981) (“[C]ircumstantial evidence is just as probative as
direct.”). And, of course, a showing of Smith’s DNA would only confirm the
conviction. So, Smith is unable to show the results of DNA testing, regardless of
what they would be, would create a reasonable probability he would not have been
convicted. See State v. Enderle, No. 20-0308, 2021 WL 210763, at *3 (Iowa Ct.
App. Jan. 21, 2021) (affirming a district court’s denial of the application for DNA
profiling when the applicant did not show there was a reasonable probability testing
would have changed the case’s outcome). As such, we affirm the district court’s
denial of Smith’s application for postconviction DNA testing.
AFFIRMED.
2 Smith admits that he did not request DNA from, nor does he know the identity of,
the individual who was in Deputy Tart’s car earlier that day. And as the State points
out, it does not make sense that the person getting the lift home earlier would leave
contraband and $700 cash in the deputy’s vehicle.