                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             MAR 29 2001
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 ANTHONY STILLS,

           Petitioner-Appellant,
 v.                                                       No. 00-2475
 DONALD DORSEY, Warden,                         (D.C. No. CIV-98-664-BB/KBM)
 Torrance County Detention Facility;                       (D. N.M.)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

           Respondents-Appellees.




                             ORDER AND JUDGMENT           *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Anthony Stills, appearing pro se, seeks a certificate of


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254

petition. We deny a certificate of appealability and dismiss the appeal.

      Stills was convicted of felony murder, child abuse, criminal sexual

penetration, kidnapping, and tampering with evidence, and was sentenced to

consecutive terms of life imprisonment and thirty-nine years. His convictions

were affirmed on direct appeal.   State v. Stills , 957 P.2d 51 (N.M. 1998).

      Stills filed his § 2254 habeas petition on June 3, 1998, alleging (1) the trial

court abused its discretion in admitting the DNA analysis; (2) the court erred in

failing to give a jury instruction on voluntary manslaughter; (3) the court erred in

refusing to exclude carpet samples evidence; (4) prosecutorial misconduct; (5)

the court erred in precluding a portion of expert testimony; (6) cumulative

mistakes by the trial court required reversal; (7) ineffective assistance of counsel;

and (8) insufficient evidence to support the convictions. The district court

adopted the magistrate court’s findings and recommendation and dismissed the

petition.

      On appeal, Stills contends the trial court abused its discretion in admitting

the DNA analysis, in refusing to exclude carpet samples evidence, in excluding

expert testimony, and in failing to give a jury instruction on voluntary

manslaughter. Erroneous evidentiary rulings are not grounds for federal habeas

relief unless the rulings render the state proceedings so fundamentally unfair as


                                          2
to violate due process.   See Williamson v. Ward , 110 F.3d 1508, 1522-23 (10th

Cir. 1997). Since Stills’ habeas petition was filed after April 23, 1997, the

provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA)

apply. AEDPA requires federal courts entertaining federal constitutional claims

that were first adjudicated on the merits in state court to give deference to the

state court’s analysis of those claims and to grant relief only where the state

court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

                                     DNA Analysis

       Stills argues that the trial court abused its discretion in admitting the DNA

evidence because the polymerase chain reaction (PCR) method of DNA testing is

invalid. The trial court admitted the PCR results and expert testimony to explain

the results pursuant to New Mexico Rule of Evidence 11-702. On direct appeal,

the New Mexico Supreme Court addressed the admissibility of the PCR method

as a matter of first impression.   See Stills , 957 P.2d at 57-59. After a thorough

analysis, the court concluded the PCR method met the standard for expert

evidence set out in Daubert v. Merrell Dow Pharmaceuticals, Inc.     , 509 U.S. 579

(1993). This determination was not contrary to federal law, and we defer to it.

Cf. George Bundy Smith and Janet A. Gordon,       The Admission of DNA Evidence


                                            3
in State and Federal Courts , 65 Fordham L. Rev. 2465, 2470 (1997) (noting that

PCR analysis “has received overwhelming acceptance in the scientific community

and the courts”).

       Stills’ objections to the reliability of the PCR analysis go to the weight of

the evidence rather than its admissibility.       See State v. Anderson , 881 P.2d 29, 46

(N.M. 1994). The jury heard expert testimony from both sides regarding the

accuracy of the PCR method. It was for the jury to determine the weight to give

the DNA results in light of that testimony. The trial court did not abuse its

discretion in admitting this evidence.

                                Carpet Samples Evidence

       Pieces of carpet underneath the victim’s body were tested for semen. The

first test was negative and the carpet samples were frozen. Several months later,

the samples were removed from the freezer and placed in an evidence room. The

carpet samples were subsequently retested with a newly acquired, more powerful

microscope, and the tests revealed semen in very small quantities. The samples

were sent for PCR analysis, which was inconclusive. The samples were then

refrozen.

       Stills argues that by allowing the semen to degrade and by not sending the

samples immediately for PCR analysis, the state prevented him from having

potentially exculpatory evidence.      Arizona v. Youngblood , 488 U.S. 51, 58


                                              4
(1988), and California v. Trombetta , 467 U.S. 479 (1984), “govern cases in

which the government no longer possesses the disputed evidence.”       United States

v. Gomez , 191 F.3d 1214, 1218 (10th Cir. 1999). To establish a due process

violation under Trombetta , the defendant must show that the evidence had

exculpatory significance that would have been apparent before its destruction and

that it was of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.       Gomez , 191 F.3d at

1218. Additionally, “unless a criminal defendant can show bad faith on the part

of the police, failure to preserve potentially useful evidence does not constitute a

denial of due process of law.”   Youngblood , 488 U.S. at 58.

      Stills has failed to provide any evidence of bad faith on the part of the

police. The initial testing revealed no semen so there was no reason to send the

samples for DNA testing. The semen was found when the new microscope was

used, and the samples were then promptly sent for testing. There is no showing

that the police knew the samples contained evidence and deliberately allowed that

evidence to deteriorate. The trial court did not abuse its discretion in admitting

the carpet samples as evidence.

                                  Expert Testimony

      Stills argues he should have been permitted to present an expert witness on

rebuttal to testify that if Stills had hit the victim, his hand would have been


                                           5
injured more than it was. The trial court disallowed the testimony because Stills

did not timely disclose the fact that the expert would testify on that issue.    See

N.M. Rules Ann. § 5-502(A)(2).

       The trial court has discretion to exclude testimony if the court determines

the defense has withheld information for a tactical advantage.         See McCarty v.

State , 763 P.2d 360, 362 (N.M. 1988). The trial court stated that defense counsel

was engaged in delaying tactics and that preclusion of testimony about Stills’

hand was necessary to protect the integrity of the judicial system and efficient

administration of justice. The trial court did not abuse its discretion in

precluding this testimony.

                         Instruction on Voluntary Manslaughter

       Stills argues he was entitled to have the jury instructed on the lesser-

included offense of voluntary manslaughter. Voluntary manslaughter is

“manslaughter committed upon a sudden quarrel or in the heat of passion.” N.M.

Stat. Ann. § 30-2-3(A) (1978). A defendant is entitled to an instruction on

voluntary manslaughter where there is evidence to support this theory of the case.

See State v. Chamberlain , 819 P.2d 673, 678 (N.M. 1991). A defendant must

demonstrate legally sufficient provocation, which is “sufficient evidence that the

provocation was such as to cause a temporary loss of self control in an ordinary

person of average disposition.”      State v. Taylor , 8 P.3d 863, 870 (N.M. Ct. App.


                                              6
2000).

      According to Stills, he and the victim argued, the victim pushed Stills, the

victim swore at Stills, and the victim told Stills that her father would come from

California and kill him. The trial court found that these facts were insufficient to

show the necessary provocation for a voluntary manslaughter instruction.

      It is well established that “no mere words, however opprobrious or

indecent, are deemed sufficient to arouse ungovernable passion, so as to reduce a

homicide from murder to manslaughter.”          State v. Trujillo , 203 P. 846, 847 (N.M.

1921); see also Sells v. State , 653 P.2d 162, 163-64 (N.M. 1982) (“words alone,

however scurrilous or insulting, will not furnish adequate provocation to require

submission of a voluntary manslaughter instruction”). The victim’s curses and

comments about her father were insufficient provocation. Further, there is no

indication that anything the victim said would qualify as informational words

under Sells . The victim’s push was also insufficient provocation.       See State v.

Farris , 619 P.2d 541, 542 (N.M. 1980) (harsh words and poking in the chest not

sufficient provocation for voluntary manslaughter instruction),       overruled on other

grounds , Sells , 653 P.2d at 164. The evidence presented was insufficient to

suggest that an ordinary person of average disposition would be provoked.        1




      1
        Stills suggests that a motorcycle injury and coma thirteen years prior to
the murder mean he was not of average disposition. This argument was not
                                                                     (continued...)

                                            7
Therefore, the trial court did not abuse its discretion in declining to instruct the

jury on voluntary manslaughter.

      The request for a certificate of appealability is DENIED and the appeal is

DISMISSED. The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




      1
       (...continued)
exhausted at the state court level. In addition, because the standard is an
objective one, whether Stills is a person of average disposition is irrelevant. The
question remains whether such a person would be provoked.       See State v. Parish ,
878 P.2d 988, 995 (N.M. 1994).

                                           8
