 

	
	
	
	
	OSCN Found Document:STATE ex rel. SMITH v. NEUWIRTH

	
	
	

	
	
	
	
	
	
	
	

	


					
	
        


OSCN navigation




        Home

        Courts

        Court Dockets

        Legal Research

        Calendar

        Help







						Previous Case

						Top Of Index

						This Point in Index

						Citationize

						Next Case

						Print Only






STATE ex rel. SMITH v. NEUWIRTH2014 OK CR 16Case Number: PC-2014-0543Decided: 11/05/2014THE STATE OF OKLAHOMA ex rel. THE HONORABLE FRED C. SMITH, DISTRICT ATTORNEY, DISTRICT FIVE, STATE OF OKLAHOMA, Petitioner, v. THE HONORABLE GERALD F. NEUWIRTH, DISTRICT JUDGE, FIFTH JUDICIAL DISTRICT, Respondent.

Cite as: 2014 OK CR 16, __  __


ORDER VACATING DISTRICT COURT ORDER ANDREMANDING MATTER TO 
DISTRICT COURT
¶1 On June 23, 2014, Petitioner, by and through Mark R. Stoneman, Assistant 
District Attorney, filed an application for this Court to assume original 
jurisdiction for a petition for a writ of prohibition. Petitioner seeks an 
extraordinary writ prohibiting the Honorable Gerald F. Neuwirth, District Judge, 
the assigned District Judge in the case of David Payne v. State of 
Oklahoma, Comanche County Case No. CF-1993-107, from enforcing the order 
granting post-conviction DNA testing filed on May 27, 2014. The order requires 
the testing of DNA evidence and compels the post-conviction discovery of 
documents and physical evidence pursuant to Oklahoma's Postconviction DNA Act, 
22 O.S.Supp.2013, § 
1373 et seq.
¶2 Petitioner argues that Judge Neuwirth's order granting DNA testing 
pursuant to 22 O.S.Supp.2013, § 
1373 et seq., is contrary to and without authority of law because (1) 
the defendant in this case failed to sufficiently demonstrate that he would not 
have been convicted if favorable results had been obtained through DNA testing 
at the time of his original prosecution; (2) the defendant unreasonably delayed 
his request for testing until four witnesses had died and twenty years had 
passed; and (3) the trial judge acted contrary to the law in ordering 
post-conviction discovery where the defendant did not allege a Brady 
violation.
¶3 David Payne entered a blind plea of nolo contendere on June 17, 
1993, to murder in the second degree, was sentenced to life imprisonment, and 
did not timely file a motion to withdraw his plea or otherwise appeal his 
conviction. The victim, David Payne's mother, was found blindfolded with her 
hands and feet tied behind her back with cord and with a knife in her chest. She 
died from two stab wounds to the chest, had injuries consistent with having been 
punched in the face, and she also had injuries to her hands. Payne filed his 
first application for post-conviction relief in the District Court on March 5, 
2013, and a supplemental brief on November 15, 2013, requesting DNA testing of 
evidence from the murder scene and further discovery of documents, physical 
evidence, recordings and photographs. The Post-Conviction DNA Act was enacted 
into law effective November 1, 2013.
¶4 Following a hearing on May 22, 2014, Judge Neuwirth issued an order filed 
May 27, 2014, granting post-conviction DNA testing. Judge Neuwirth's order 
summarily finds that the defendant met all of the requirements/qualifications 
for post-conviction DNA testing and discovery pursuant to Section 1373. Judge 
Neuwirth ordered that the Office of the Comanche County District Attorney 
"cooperate in all aspects in turning over any documents/items of evidence to 
facilitate Petitioner in post-conviction DNA testing." At the May 22, 2014, 
hearing Judge Neuwirth found:


In looking at the statute itself, one, a reasonable probability the 
petitioner would not have been convicted if favorable results had been obtained 
through DNA testing at the time of the original prosecution. I don't understand 
how you could ever deny that, if you have favorable results, they are such that 
they show exculpatory evidence, if they are favorable. Two, it is not made to 
unduly delay the execution or sentence of administration. I agree with you. He 
is serving his time. I don't see how that delays it. You can make that argument, 
I suppose, once you get down the road, but at this point so far as testing is 
concerned, I don't believe under the statute I have any other decision other 
than to allow it because I think one, two, three, four and five are all met by 
the facts of this case.
Judge Neuwirth then ordered the District Attorney to cooperate in providing 
"those matters" and denied the District Attorney's request for written findings 
of fact and conclusions of law. Judge Neuwirth ordered the State to turn over 
any documents or any documentary evidence, reports or "things of that nature" 
that it has that would help in testing.
¶5 Petitioner argues that at no point during the hearing on May 22, 2014, nor 
in the written order granting DNA testing, did Judge Neuwirth "indicate the 
basis for finding that the hypothesized DNA results would create a reasonable 
probability that Payne would not have been convicted had those test results been 
available at the time of his original plea." Petitioner argues that the petition 
for DNA testing should have been denied because Payne did not meet his burden of 
showing a reasonable probability that he would not have been convicted if 
favorable DNA results had been obtained at the time of his original prosecution 
and that Payne also failed to prove that his petition was not made for the 
purpose of delaying the administration of justice. The State also argues that 
even if, as Payne speculates, a third person's DNA were to be found on the 
physical evidence, it would not be so inconsistent with the evidence of Payne's 
guilt that it would undermine confidence in his conviction. Other evidence of 
Payne's guilt is set out by the State as follows:


In this case, David Payne confessed. (Plea Tr. at 19-20, 22, 24) Payne knew 
details of the crime scene that he would not have known unless he had seen his 
murdered mother prior to his father discovering Mrs. Payne. (Id. at 16, 
19, 22) After the murder, Payne was found to be in possession of the victim's 
key ring, which his sister knew the victim never would have willingly given to 
Payne. (Id. at 19) Payne had a motive; his addiction to cocaine drove him 
into a rage when his mother refused to give him money to buy more cocaine. 
(Id. at 24) Payne even tried to get others to lie for him to create an 
alibi. (Id. at 17-18) Payne now claims that he is innocent yet offers no 
theory or evidence as to who the 'real' killer is. Nor has Payne offered any 
substantive argument or testimony as to why his confession should be 
disregarded.
¶6 The State also submits that Payne's twenty-year delay in attacking his 
conviction has caused actual prejudice to the State's ability to re-prosecute 
this case if it were to be remanded for a new trial because Payne did not file 
his request for DNA testing until after four State witnesses had passed away. 
Susan Duncan, Payne's sister, who claimed Payne was constantly trying to get 
money from their parents to fund his drug addiction, passed away in 2000; Hugh 
Payne, David Payne's father, who found his wife's body, passed away in 2007; 
George Battise, one of the jailers who heard Payne admit that he killed his 
mother, passed away in 2010; and Randy Maples, one of the lead investigators for 
this case and endorsed as a witness, passed away in 2012.
¶7 The State also argues that Judge Neuwirth should not have granted Payne's 
discovery request as Payne has not shown, nor even alleged, any pre-trial 
discovery violations and that Payne is therefore not entitled to any additional 
post-conviction discovery of the other physical evidence and documents 
requested. The State argues that 22 O.S.Supp.2013, § 1373.2(D), requires its response 
to include an inventory of all the evidence related to the case but other than a 
list of evidence, that no other discovery is compulsory under Section 1373.
¶8 In this Court's Order issued June 27, 2014, Respondent, or a designated 
representative, was directed to file a response to the State's application 
addressing the issues raised in the State's Brief and, additionally, addressing 
whether a sworn affidavit by the defendant containing statements of fact in 
support of the motion, as required by Section 1373.2(C), was filed with the 
post-conviction application. Respondent was also directed to address whether the 
written order filed May 27, 2014, is in compliance with the requirements of 
Sections 1373.4(B), (D), and (F). On July 7, 2014, Ken Sue Doerfel, designated 
representative for Respondent, filed a Motion to Associate Counsel requesting an 
order recognizing Karen Denise Thompson, licensed in the State of New York, to 
practice in the above styled appeal. The motion was granted by this Court in an 
Order issued July 22, 2014. The Designated Respondent's reply to the State's 
application was filed in this Court on July 24, 2014.
¶9 Respondent answers (1) that a writ of prohibition is an illegitimate 
remedy for an interlocutory, adverse finding in the action below; (2) that the 
District Court's grant of DNA testing was fully sanctioned by the Act and was 
thus wholly within its jurisdiction and authority to award; and (3) that Mr. 
Payne fully satisfies the requirements for DNA testing as demarcated in the 
Act.
¶10 Respondent asserts, without citing any controlling authority, that 
although an appellate remedy is, in fact, available to the State, such appeal 
would only lie upon the issuance of a "final order" by the District Court and 
that a "final order" under the Post-Conviction DNA Act could include, inter 
alia, the vacatur of Mr. Payne's conviction. In effect, Respondent's 
argument would not allow the State to seek relief in this Court by appealing a 
District Court order granting a request for DNA testing under the 
Post-Conviction DNA Act, but would allow the defendant to seek relief from the 
denial of a request for DNA testing as that denial would constitute a final 
order.
¶11 Section 1373.7 of Title 22 provides: "An appeal under the provisions of 
the Post-Conviction DNA Act may be taken in the same manner as any other 
appeal." We find that an order granting a DNA request under this Act is a final 
order from which the State may seek relief in this Court under the provisions of 
Section 1373.7. The procedure for any appeal by the State or the defendant under 
the Post-Conviction DNA Act would be the same procedure as set forth in 
22 O.S.2011, § 1087, an appeal to this Court 
under the Uniform Post-Conviction Procedure Act. Therefore, we will construe 
Petitioner's application to this Court as a post-conviction appeal pursuant to 
Section 1373.7.
¶12 We agree that the trial judge abused his discretion in granting 
post-conviction DNA testing in this case. The initial requirement by the trial 
court is set out in 22 O.S.Supp.2013, § 1373.4(A)(1), which 
provides:


A. . . . A court shall order DNA testing only if the court finds: 
1. 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; . . .
Therefore, it is not only that evidence subject to DNA testing is available, 
but there must be a showing as to how that evidence "if favorable" would have 
prevented the conviction in the first instance. In addition, if the court 
determines that DNA testing is warranted, then the court must ensure the 
integrity of the evidence is maintained. The chain of custody must be preserved 
and the evidence protected from spoliation.
¶13 In the present case the record reflects that the mandates of Sections 
1373.2(C), 1373.4(D) and (F), and 1373.5(A)(6) of Title 22 have not been 
followed. As a result, the order granting relief is vacated for the following 
reasons:
I.
22 O.S.Supp.2013, § 
1373.2(C) requires:


The motion requesting forensic DNA testing shall be accompanied by an 
affidavit sworn to by the convicted person containing statements of fact in 
support of the motion. (Emphasis added)
The record in this case contains no sworn affidavit. To make a finding that 
there is a reasonable probability the petitioner would not have been convicted 
if favorable results had been obtained through DNA testing at the time of the 
original prosecution as set forth in Section 1373.4(A)(1), without the sworn 
affidavit required by Section 1373.2(C), is premature. The statute does not 
allow the District Court to consider any request for DNA testing under this Act 
without this sworn affidavit.
II.


¶14 22 O.S.Supp.2013, §§ 
1373.4(D) and (F) require:
D. The court may order DNA testing to be performed by the Oklahoma State 
Bureau of Investigation (OSBI), an accredited laboratory operating under 
contract with the OSBI or another accredited laboratory, as defined in Section 
150.37 of Title 74 of the Oklahoma Statutes. If the OSBI or an accredited 
laboratory under contract with the OSBI conducts the testing, the state shall 
bear the costs of the testing. If another laboratory conducts the testing 
because neither the OSBI nor an accredited laboratory under contract with the 
OSBI has the ability or the resources to conduct the type of DNA testing to be 
performed, or if an accredited laboratory that is neither the OSBI nor under 
contract with the OSBI is chosen for some other reason, then the court shall 
require the petitioner to pay for the testing.
F. If an accredited laboratory other than the OSBI or one under contract with 
the OSBI performs the DNA testing, the court shall impose reasonable conditions 
on the testing of the evidence to protect the interests of the parties in the 
integrity of the evidence and testing process and to preserve the evidence to 
the greatest extent possible.
The record does not reflect that the requirements of this section have been 
met. Judge Neuwirth asked defense counsel if she had a laboratory and defense 
counsel answered that the laboratory was in Dallas, Texas. Judge Neuwirth 
stated:


"I don't guess I need to make an order as to where it will be done. I will 
include in my order that the State is ordered to turn over any documents or any 
documentary evidence, reports, or things of that nature that it has that will 
help in testing."
¶15 When DNA testing is ordered by the District Court pursuant to this Act, 
written findings of fact and conclusions of law will be required and must 
include specific directions complying with Sections 1373.4(B), (D) and (F). The 
trial court must also ensure the integrity of the evidence and the testing 
process. A summary order directing the District Attorney to "cooperate in all 
aspects in turning over any documents/items of evidence to facilitate Petitioner 
in post-conviction DNA testing" does not comply with the requirements of the 
statute. The written order must specify the appropriate laboratory for testing, 
who bears the costs of the testing, and must impose reasonable conditions on the 
testing of the evidence if the laboratory selected is one other than OSBI or one 
not under contract with OSBI.
III.


¶16 22 O.S.Supp.2013, § 
1373.5(A)(6) requires:
A. If the results of the forensic DNA testing conducted under the provisions 
of this act are favorable to the petitioner, the court shall schedule a hearing 
to determine the appropriate relief to be granted. Based on the results of the 
testing and any other evidence presented at the hearing, the court shall 
thereafter enter any order that serves the interests of justice 
including, but not limited to, any of the following: . . .
6. An order granting the petitioner additional discovery on matters related 
to the DNA test results on the conviction or sentence under scrutiny including, 
but not limited to, documents pertaining to the original criminal investigation 
or the identities of other suspects; or . . . (Emphasis 
added)
¶17 Any order by the District Court for the State to effect the transfer of 
any items of evidence other than those "to be tested along with any documents, 
logs or reports relating to the items of evidence collected . . . to the 
designated laboratory or laboratories," (emphasis added) as set forth in 
22 O.S.Supp.2013, § 
1373.4(B), would be premature until favorable DNA results are found. Any 
additional discovery related to the DNA test under this Act would only be proper 
after a finding that the results of the forensic DNA testing are favorable to 
the petitioner. 22 O.S.Supp.2013, § 
1373.5(A)(6).
¶18 The District Court has abused its discretion in granting DNA testing in 
this case without complying with the mandates of the Post-Conviction DNA Act. 
Accordingly, the District Court order is VACATED and the matter is 
REMANDED to the District Court for further proceedings consistent with 
this Order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal 
Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED 
issued upon the delivery and filing of this decision.
¶19 IT IS SO ORDERED.
¶20 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 5th day of 
November, 2014.
/S/DAVID B. LEWIS, Presiding Judge
/S/CLANCY SMITH, Vice Presiding Judge
/S/GARY L. LUMPKIN, Judge
/S/ARLENE JOHNSON, Judge
ATTEST:/s/Michael S. RichieClerk

Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


None Found.













