Sartain v. State , 388 Mont. 421 ( 2017 )

09/05/2017
DA 16-0430
Case Number: DA 16-0430
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 216DANNY SARTAIN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 08-86B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Danny Sartain, Self-Represented, Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: May 31, 2017
Decided: September 5, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Danny Sartain (Sartain) appeals from an Order entered in the Montana Eighteenth
Judicial District Court, Gallatin County, denying his petition for touch DNA testing. We
affirm.
¶2 Sartain presents the following issue for review:
Whether the District Court properly denied Sartain’s petition for touch DNA
testing.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 2009, Sartain was found guilty of burglary, designated a persistent felony
offender, and sentenced to forty years in the Montana State Prison. He appealed that
conviction to this Court, challenging the district court’s denial of his speedy trial claim
and also raising ineffective assistance of counsel (IAC) claims. This Court summarized
the facts relevant to Sartain’s direct appeal as follows:
On March 25, 2008, in Bozeman, Timothy Hop returned from snow skiing
and found a male intruder in his house. He chased the man out of his house
and called 911. Police were dispatched. A responding officer observed a
man matching Hop’s description of the intruder jogging down a sidewalk in
the area. Another resident of the area, Jason Schutz, was watching the
jogging man when the officer stopped and asked Schutz what he was
watching. He responded that the jogging man had just jumped the fence in
his backyard, cut through a neighbor’s yard, and then started running down
the street. The officer arrested the jogging man, defendant Sartain, on
suspicion of burglary. A short time later, the officer took Sartain back to
the scene of the burglary, had him step out of the police vehicle and
conducted a “show-up” identification of Sartain first with Hop and then
Kristi Helsper, another neighbor who had observed a man jogging down the
street after hearing a loud noise. Both stated that Sartain matched the
description of the person, but that they were not able to positively identify
him. Later at trial, Hop testified that he was positive that Sartain was the
intruder.
State v. Sartain, 2010 MT 213, ¶ 4, 357 Mont. 483, 241 P.3d 1032 (Sartain I).
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¶4 Relevant to the instant proceeding, our review of the trial transcript filed in the
direct appeal indicates there was testimony that fresh footprints were found around
Timothy Hop’s (Hop) backyard fence, which were consistent with the tread pattern and
size of boot Sartain was wearing when he was apprehended. Hop also discovered fresh
“jimmy” marks on the back and front doors to his apartment, which were consistent with
use of a pry bar that was found by law enforcement in an alley approximately one block
from Hop’s apartment. Officers also found a footprint near the pry bar—similar to the
other footprints found in the alley, in Hop’s backyard, and in Jason Schutz’ (Schutz)
backyard—which was consistent with the tread pattern and size of boot Sartain wore.
¶5 We affirmed the denial of Sartain’s speedy trial claim and dismissed the IAC
claims without prejudice to Sartain raising them in a postconviction proceeding. The
United States Supreme Court denied Sartain’s petition for writ of certiorari. Sartain v.
Montana, 562 U.S. 1237, 131 S. Ct. 1514 (2011). Next, Sartain filed a petition for
postconviction relief in district court raising primarily his IAC claims. The district court
dismissed Sartain’s petition and we affirmed. Sartain v. State, 2012 MT 164, 365 Mont.
483, 285 P.3d 407 (Sartain II). On March 29, 2013, Sartain filed a Petition for
Performance of Fingerprint Analysis and Testing, which the district court denied with
prejudice. Sartain appealed and we affirmed. We concluded that Sartain’s claims could
have been raised on direct appeal and that Sartain did not meet the exception to the time
limitations governing direct appeal and postconviction relief set forth in § 46-21-102(2),
MCA, because there was no basis to assume a reasonable jury would not have convicted
Sartain with the additional fingerprint analysis evidence. State v. Sartain, 2013 MT 372N
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(Sartain III). Finally, on May 22, 2014, Sartain filed a Motion for Credit for Time
Served in the district court seeking 384 days credit toward his sentence for burglary. The
district court concluded that Sartain was incarcerated on unrelated offenses and denied
his motion. We affirmed. State v. Sartain, 2015 MT 306N (Sartain IV).
¶6 The subject of the instant appeal is Sartain’s request that touch DNA analysis be
conducted on fingerprint evidence collected from the medicine cabinet mirror and rear
door of Hop’s apartment, areas which Hop believed Sartain had touched. The evidence
technician investigating the crime scene, Thomas Weightman, obtained a partial print
from these areas, but the prints collected were insufficient to conduct a traditional DNA
analysis. Sartain contends that if touch DNA testing of the partial fingerprints revealed
DNA that did not match his, there is a strong possibility he would have been exonerated.
Sartain, referring to the Innocence Protection Act (IPA), 18 U.S.C. § 3600, and federal
precedent holding that touch DNA evidence can constitute new evidence, argues that his
request for DNA testing is therefore timely and must be allowed.
¶7 The District Court requested briefing from the parties and considered the merits of
Sartain’s request pursuant to both the IPA and Montana’s statute allowing for petitions to
perform DNA testing, § 46-21-110, MCA. The District Court concluded that even if the
IPA applied to Sartain’s request, Sartain failed to set forth a plausible theory under which
the DNA evidence would establish his innocence. The District Court noted that failure to
establish a plausible theory of innocence was fatal to Sartain’s petition under the IPA.
The District Court addressed application of § 46-21-110, MCA, and similarly concluded
that Sartain had not shown, in light of the evidence produced at trial, there was a
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reasonable probability that Sartain would not have been convicted if favorable results had
been obtained through DNA testing.
¶8 We consider the application of the IPA to these proceedings, and resolve Sartain’s
request by applying the provisions of § 46-21-110, MCA.
STANDARD OF REVIEW
¶9 A district court’s decision regarding a petition for DNA testing under § 46-21-110,
MCA, constitutes a mixed question of law and fact, which we review de novo. Golden v.
State, 2014 MT 141, ¶ 14, 375 Mont. 222, 326 P.3d 430. Questions of statutory
interpretation are reviewed de novo. State v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont.
346, 286 P.3d 1174; United States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015).
DISCUSSION
¶10 Improvements in the accuracies in building DNA profiles have opened the door to
new sources of DNA evidence. Touch DNA is
the genetic information recovered from epithelial (skin) cells left behind
when a person makes contact with an object. During the commission of a
crime, an assailant can leave touch DNA samples behind . . . on a victim’s
clothing or other items implicated in the crime. Touch DNA testing uses
the same . . . technology used to test more traditional sources of DNA--
blood, semen, saliva, and other bodily fluids--to test recovered epithelial
cells. The difference between “traditional” DNA testing--the testing of
bodily fluids--and touch DNA testing is that material from which the DNA
is collected, not the method by which the DNA sample is analyzed.
Victoria Kawecki, Comment, Can’t Touch This? Making a Place for Touch DNA in
Post-Conviction DNA Testing Statutes, 62 Cath. U. L. Rev. 821, 828-29 (2013). See also
Watson, 792 F.3d at 1177; Bean v. State, 373 P.3d 372, 377-78 (Wyo. 2016). Touch DNA
testing “is possible even if the sample contains only seven or eight cells from the
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outermost layer of [] skin.” Davis Phillips, State v. Carver: A Cautionary Tale about the
Use of Touch DNA as Inculpatory Evidence in North Carolina, 49 Wake Forest L. Rev.
1545, 1558 (2014) (internal citations and quotations omitted). Although not specifically
addressed, we assume for purposes of this appeal that touch DNA testing was not
available at the time of Sartain’s prosecution.
¶11 Sartain argues that the District Court erred in holding that his petition for touch
DNA testing was untimely. The State contends that timeliness was not the basis for the
court’s ruling. Also, the State argues that, even assuming favorable DNA results, Sartain
has failed to show the evidence would be material to the question of whether he was the
perpetrator of the burglary.
¶12 In 2004, Congress passed the IPA, 18 U.S.C. § 3600, which opened the door to
revisiting convictions when DNA left at the crime scene could potentially exonerate the
wrongly convicted. The IPA provides that the court “shall order DNA testing” upon “a
written motion by an individual sentenced to imprisonment or death pursuant to a
conviction for a Federal offense . . .” if ten criteria are satisfied. 18 U.S.C. § 3600(a).
Thus, by its terms, the IPA is applicable only to imprisonment pursuant to a federal
offense. The IPA addresses “state offense[s]” when evidence of the state offense was
“admitted during a Federal sentencing hearing and exoneration of such offense would
entitle the applicant to a reduced sentence” and “no adequate remedy under State law to
permit DNA testing of the specified evidence relating to the State offense . . .” exists. 18
U.S.C. § 3600(a)(1)(B)(i)-(ii). Sartain is not imprisoned as a result of a federal offense.
Sartain also does not allege he wants DNA testing in his state burglary conviction
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because his state conviction was used to enhance a federal sentence. These reasons, each
standing alone, are sufficient to deny Sartain’s request for DNA testing pursuant to the
IPA. Further, Montana provides an adequate remedy for DNA testing through § 46-21-
110, MCA.
¶13 The dispositive provision of § 46-21-110, MCA, for this appeal is set forth in
subsection (5), which provides:
The court shall grant the petition if it determines that the petition is not
made for the purpose of delay and that:
(a) the evidence sought to be tested is available and has been subject
to a chain of custody sufficient to establish that it has not been
substituted, tampered with, degraded, contaminated, altered, or
replaced in any material aspect;
(b) the identity of the perpetrator of the felony was or should have
been a significant issue in the case;
(c) the petitioner has made a showing that the evidence sought to be
tested has a reasonable probability, assuming favorable results, of
being material to the question of whether the petitioner was the
perpetrator of the felony that resulted in the conviction;
(d) in light of all the evidence, there is a reasonable probability that
the petitioner would not have been convicted if favorable results had
been obtained through DNA testing at the time of the original
prosecution; and
(e) the evidence sought to be tested was not previously tested or was
tested previously but another test would provide results that are
reasonably more discriminating and probative on the question of
whether the petitioner was the perpetrator of the felony that resulted
in the conviction or would have a reasonable probability of
contradicting the prior test results.
Section 46-21-110(5), MCA. In denying Sartain’s petition for DNA testing pursuant to
§ 46-21-110, MCA, the district court “conclude[d] that Sartain has not shown under
§ 46-21-110(5)(d), MCA, that in light of all the evidence presented at the trial, there is
reasonable probability that Sartain would not have been convicted if favorable results had
been obtained through DNA testing at the time of the trial.” We agree.
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¶14 Assuming touch DNA testing of the fingerprint lifts from the mirror and door
would not have Sartain’s DNA, the absence of Sartain’s DNA does not exculpate Sartain.
While certainly the presence of Sartain’s DNA on the objects would be inculpatory, an
assumption of exoneration does not follow from the absence of Sartain’s DNA on those
objects. In light of the evidence and the circumstances surrounding the burglary, the
absence of Sartain’s fingerprints on the mirror and door does not establish “a reasonable
probability that the petitioner would not have been convicted.” Section 46-21-110(5)(d),
MCA. In making this conclusion, we consider all of the evidence produced at trial.
¶15 To begin, the crime occurred in the middle of the day when visibility was good.
Hop identified Sartain at trial as the intruder he saw in his apartment and yard when he
arrived home after skiing. The responding officer observed Sartain, who matched Hop’s
description, running away from the area of Hop’s apartment immediately following a
report from dispatch of the burglary. A neighbor, Schutz, also observed Sartain running
down the sidewalk after Sartain jumped his fence and cut across another yard. Schutz
had a brief conversation with and subsequently identified Sartain. Footprints in the yards
of Hop and Schutz were consistent in size and tread pattern with boots worn by Sartain.
A pry bar was found nearby in an alley which had marks similar to the pry marks found
on Hop’s doorjambs. A footprint next to the pry bar matched the size and tread pattern of
Sartain’s boots.
¶16 We conclude, in light of the evidence produced at trial, there is not a reasonable
probability Sartain would have been exonerated by touch DNA evidence showing his
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DNA was not on a mirror or door in Hop’s apartment. Sartain has failed to establish he
was entitled to touch DNA testing and the District Court correctly denied his petition.
CONCLUSION
¶17 Sartain is not entitled to touch DNA testing pursuant to the IPA. We affirm the
District Court’s conclusion that there was no reasonable probability Sartain would have
been exonerated if favorable DNA results had been obtained. The District Court
correctly applied the provisions of § 46-21-110, MCA.
/S/ LAURIE McKINNON
We Concur:
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
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