MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	5	
Docket:	   Cum-16-544	
Argued:	   October	12,	2017	
Decided:	  January	23,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                         	
                                        v.	
                                         	
                                   FOSTER	BATES	
	
	
MEAD,	J.	

	     [¶1]	 	 Foster	 Bates	 appeals	 from	 a	 judgment	 entered	 by	 the	 trial	 court	

(Cumberland	 County,	 Cole,	 C.J.)	 denying	 his	 motion	 for	 a	 new	 trial,	 which	 he	

brought	 pursuant	 to	 the	 post-conviction	 DNA	 analysis	 statute,	 15	 M.R.S.	

§§	 2136-2138	 (2017).	 	 Bates	 contends	 that	 the	 court	 erred	 or	 abused	 its	

discretion	by	(1)	finding	that	he	failed	to	show	by	clear	and	convincing	evidence	

that	new	DNA	evidence	admitted	at	the	hearing	on	his	motion	made	it	probable	

that	a	different	verdict	would	result	from	a	new	trial;	(2)	declining	to	consider	

evidence	 pointing	 to	 an	 alternative	 suspect	 upon	 finding	 that	 the	 proffered	

evidence	did	not	concern	the	new	DNA	evidence;	and	(3)	failing	to	consider	“all	
2	

the	other	evidence	in	the	case”	as	required	by	15	M.R.S.	§	2138(10)(C)(1).1		We	

discern	no	error	and	affirm	the	judgment.	

                                             I.		BACKGROUND	

	        [¶2]		In	2002,	after	a	jury	trial,	Bates	was	convicted	of	the	1994	sexual	

assault	and	murder	of	Tammy	Dickson;	the	facts	are	reported	in	our	decision	

affirming	 the	 judgment.	 	 State	 v.	 Bates,	 2003	 ME	 67,	 ¶¶	 2-8,	 822	 A.2d	 1129.		

Bates’s	petition	for	post-conviction	review	was	denied	by	the	Superior	Court	in	



     1		The	statute	provides:	

     	
         10.	 	 Standard	 for	 granting	 new	 trial;	 court's	 findings;	 new	 trial	 granted	 or	
         denied.		If	the	results	of	the	DNA	testing	under	this	section	show	that	the	person	is	
         not	the	source	of	the	evidence,	the	[defendant]	must	show	by	clear	and	convincing	
         evidence	that:	
     	
                .	.	.	.	
                      	
                C.		All	of	the	prerequisites	for	obtaining	a	new	trial	based	on	newly	discovered	
                evidence	are	met	as	follows:	
	
                    (1)		The	DNA	test	results,	when	considered	with	all	the	other	evidence	in	the	
                    case,	old	and	new,	admitted	in	the	hearing	conducted	under	this	section	on	
                    behalf	of	the	person	would	make	it	probable	that	a	different	verdict	would	
                    result	upon	a	new	trial.	
                	
                    .	.	.	.	
     	
         For	 purposes	 of	 this	 subsection,	 “all	 the	 other	 evidence	 in	 the	 case,	 old	 and	 new,”	
         means	the	evidence	admitted	at	trial;	evidence	admitted	in	any	hearing	on	a	motion	
         for	new	trial	pursuant	to	Rule	33	of	the	Maine	Rules	of	Unified	Criminal	Procedure;	
         evidence	admitted	at	any	collateral	proceeding,	state	or	federal;	evidence	admitted	at	
         the	 hearing	 conducted	 under	 this	 section	 relevant	 to	 the	 DNA	 testing	 and	 analysis	
         conducted	on	the	sample;	and	evidence	relevant	to	the	identity	of	the	source	of	the	
         DNA	sample.	
   	
15	M.R.S.	§	2138(10)	(2017).	
   	
                                                                                                           3	

2007,	and	we	denied	his	request	for	a	certificate	of	probable	cause	to	appeal	

from	that	judgment.	

	       [¶3]		In	April	2008,	the	trial	court	(Crowley,	J.)	granted	Bates’s	motion,	

made	pursuant	to	15	M.R.S.	§	2137,	to	conduct	post-conviction	mitochondrial	

DNA	(mtDNA)	testing2	on	several	items,	including	a	green	sock	that	had	been	

found	in	the	victim’s	mouth.3		See	Bates,	2003	ME	67,	¶	3,	822	A.2d	1129.		The	

court	 noted	 that	 the	 Maine	 State	 Police	 Crime	 Laboratory	 did	 not	 conduct	

mtDNA	 testing	 itself,	 but	 the	 laboratory	 had	 an	 arrangement	 with	 the	 FBI	 to	

perform	the	test.		In	April	2010,	the	Crime	Laboratory	submitted	a	report	to	the	

court.		The	report	stated	that	the	green	sock	was	“not	tested	at	this	time.		The	

FBI	 laboratory	 will	 not	 perform	 Mitochondrial	 DNA	 analysis	 on	 potential	

epithelial	 or	 ‘touch’	 DNA	 extractions.”	 	 The	 report	 noted	 that	 the	 sock	

“remain[ed]	 at	 the	 Crime	 Laboratory	 and	 [was]	 available	 for	 possible	 future	

testing.”	




    2		The	court	noted	that	mtDNA	testing	“is	not	as	compelling	as	nuclear	DNA	testing	but	.	.	.	can	be	

used	to	conduct	analysis	of	evidence	that	is	damaged,	degraded	or	very	small	in	amount.”	
   	
   3	 	 A	 summary	 of	 DNA	 testing	 conducted	 in	 the	 case	 that	 was	 prepared	 by	 the	 State	 in	 2005	

indicated	that	the	sock	had	been	tested	by	the	Maine	State	Police	Crime	Laboratory	in	September	
2001	and	again	in	July	2002.		The	first	test	resulted	in	“[n]o	sperm/DNA	found,”	and	the	second	test	
resulted	in	“[n]o	DNA	profile	obtained.”		A	forensic	DNA	analyst	testified	at	Bates’s	trial	that	the	Crime	
Laboratory	had	been	using	an	advanced	form	of	DNA	testing	known	as	polymerized	chain	reaction	
(PCR)	testing	since	1998.	
4	

	        [¶4]	 	 In	 2011,	 by	 agreement,	 Bates	 retained	 Bode	 Technology,	 an	

independent	 laboratory	 in	 Virginia,	 to	 conduct	 additional	 DNA	 testing	 on	

certain	 items,	 including	 the	 green	 sock.	 	 Bode	 reported	 that	 a	 Y-STR	 profile4	

obtained	 from	 the	 sock’s	 exterior	 was	 consistent	 with	 a	 mixture	 of	 three	 or	

more	individuals,	including	a	major	contributor	who	could	not	have	been	Bates	

or	 William	 Quinn,	 a	 man	 discussed	 at	 trial	 who	 had	 an	 “on	 again/off	 again”	

relationship	with	the	victim	and	who	found	her	body.		Id.	¶	2.		Bode	reported	

that	the	victim’s	ex-husband	“cannot	be	excluded”	as	the	major	contributor,	but	

its	report	did	not	calculate	the	probability	that	he	was	the	contributor.		As	to	

the	 minor	 contributors,	 the	 report	 drew	 no	 conclusion	 as	 to	 whether	 any	

person	was	included	or	excluded	“[d]ue	to	the	limited	data	obtained.”	

	        [¶5]		Bode	reported	that	a	partial	Y-STR	profile	taken	from	the	interior	

toe	region	of	the	sock	was	consistent	with	a	mixture	of	at	least	two	individuals	

from	which	Bates	could	be	excluded,	and	from	which	the	victim’s	ex-husband	

and	Quinn,	among	others,	“cannot	be	included	or	excluded.”		Once	again,	the	

report	did	not	include	any	probabilities	that	a	particular	male	was	a	contributor	

to	the	mixture.	



     4		The	Bode	report	described	the	Y-STR	test	as	analyzing	“loci	specific	to	the	male	Y	chromosome,”	

and	 noted	 that	 “[t]he	 Y	 chromosome	 is	 inherited	 paternally.	 	 A	 Y-STR	 match	 cannot	 exclude	 any	
paternal	relatives.”	
                                                                                           5	

	      [¶6]		In	February	2014,	Bates	moved	for	a	new	trial	pursuant	to	15	M.R.S.	

§	2138(10),	asserting	that	the	DNA	found	on	the	sock,	when	considered	with	all	

of	the	other	evidence	in	the	case,	made	it	probable	that	a	retrial	would	result	in	

a	different	verdict.		In	December	2014,	the	hearing	on	the	motion	was	continued	

at	Bates’s	request	while	he	investigated	a	new	alternate	suspect	who	allegedly	

made	 incriminating	 statements	 near	 the	 time	 of	 the	 murder.	 	 A	 report	 from	

Bode	released	in	April	2015	stated	that	the	new	alternate	suspect	was	excluded	

as	a	major	contributor	to	the	Y-STR	profile	on	the	exterior	of	the	sock,	and	could	

not	 be	 included	 or	 excluded	 as	 a	 contributor	 to	 the	 partial	 mixture	 on	 the	

interior	toe	region.	

	      [¶7]		The	court	held	an	evidentiary	hearing	on	June	13,	2016,	and	took	

the	matter	under	advisement.		It	subsequently	denied	the	motion	by	written	

order,	 concluding	 that	 Bates	 “has	 not	 presented	 such	 clear	 and	 convincing	

evidence	 that	 the	 new	 evidence,	 in	 light	 of	 all	 of	 the	 evidence	 already	 in	 the	

record,	would	create	a	different	result	in	a	new	trial.”		Bates	appealed.	

	      [¶8]		Four	months	after	filing	his	notice	of	appeal,	Bates	moved	for	further	

findings	of	fact	and	conclusions	of	law	in	the	trial	court	and	moved	this	Court	to	

allow	the	trial	court	to	act	on	the	motion	while	his	appeal	was	pending.		We	

denied	the	request.	
6	

                                          II.		DISCUSSION	

A.	      New	DNA	Evidence	

	        [¶9]		Bates	and	the	State	agree	that	because	Bates	was	not	the	source	of	

the	DNA	found	on	the	sock,	his	motion	for	a	new	trial	turned	on	whether	he	

proved	 by	 clear	 and	 convincing	 evidence	 that	 “[t]he	 DNA	 test	 results,	 when	

considered	with	all	the	other	evidence	in	the	case,	old	and	new,	admitted	in	the	

hearing	.	.	.	would	make	it	probable	that	a	different	verdict	would	result	upon	a	

new	trial.”		15	M.R.S.	§	2138(10)(C)(1).5	

	        [¶10]		We	recently	stated	the	standard	of	review:	

       We	review	a	court’s	factual	findings	on	a	motion	for	a	new	trial	for	
       clear	 error.	 	 We	 review	 the	 court’s	 interpretation	 of	 the	
       post-conviction	DNA	analysis	statute	de	novo.		When	a	court	has	
       reached	 findings	 that	 are	 supported	 by	 the	 record	 and	 has	
       interpreted	and	applied	the	statute	properly,	the	court’s	ultimate	
       decision	whether	to	grant	a	new	trial	is	reviewed	for	an	abuse	of	
       discretion.		Additionally,	when	reviewing	on	appeal	findings	of	fact	
       that	 must	 be	 proved	 by	 clear	 and	 convincing	 evidence,	 we	
       determine	 whether	 the	 factfinder	 could	 reasonably	 have	 been	
       persuaded	that	the	required	factual	finding	was	or	was	not	proved	
       to	be	highly	probable.	
       	
State	 v.	 Dechaine,	 2015	 ME	 88,	 ¶	 13,	 121	 A.3d	 76	 (alteration,	 citation,	 and	

quotation	marks	omitted).	




     5		The	statute	imposes	four	additional	requirements.		See	15	M.R.S.	§	2138(10)(C)(2)-(5)	(2017).		

At	the	hearing	on	Bates’s	motion,	the	State	conceded	that	those	requirements	had	been	met.	
                                                                                          7	

	      [¶11]		The	trial	court	did	not	err	by	concluding	that	Bates	failed	to	meet	

his	high	burden	of	proof	with	regard	to	the	new	DNA	evidence	recovered	from	

the	sock.		In	sum,	it	does	little	more	than	demonstrate	that	Bates	was	not	the	

man	who	left	that	DNA	there.		Bates	argues	that	that	finding	alone	contributes	

significantly	toward	meeting	his	burden	to	prove	that	a	new	trial	would	result	

in	a	different	verdict	because	if	he	had	touched	the	sock	then	his	DNA	would	

almost	 certainly	 have	 been	 found	 on	 it.	 	 There	 is	 no	 evidence	 in	 this	 record,	

however,	that	would	allow	a	fact-finder	to	find	that	possibility—that	Bates	did	

not	touch	the	sock—more	likely	than	others,	i.e.,	that	Bates	touched	but	did	not	

leave	(“shed”)	his	DNA	on	the	sock,	that	he	wore	gloves,	or	that	he	touched	the	

sock	in	a	location	that	was	not	sampled.	

	      [¶12]		More	to	the	point,	the	sock	DNA	has	no	definitive	connection	to	the	

crime,	 in	 that	 it	 could	 have	 been	 left	 by	 someone	 at	 a	 time	 and	 in	 a	 manner	

unrelated	to	the	victim’s	murder,	see	id.	¶	34,	and	it	does	not	identify	the	male	

who	left	it	on	the	sock;	rather,	the	Bode	report	only	states	that	 three	men—

Quinn,	the	victim’s	ex-husband,	and	the	new	alternate	suspect—could	neither	

be	included	nor	excluded	as	contributors	to	the	DNA	mixtures	found	on	and	in	

the	sock,	although	Quinn	and	the	new	alternate	suspect	were	excluded	as	the	

major	contributor	of	the	DNA	found	on	the	sock’s	exterior.	
8	

	        [¶13]		Absent	any	calculation	of	the	statistical	probability	that	one	of	the	

three	men	Bates	points	to	actually	left	his	DNA	on	the	sock,	the	Bode	report’s	

finding	that	they	cannot	be	excluded	as	contributors,	given	the	facts	of	this	case,	

would	do	little	to	cause	a	new	jury	to	return	a	different	verdict.		In	contrast	to	

the	 Bode	 result	 affirmatively	 excluding	 Bates	 as	 a	 contributor,	 which	 might	

persuade	a	jury	that	Bates	did	not	touch	the	sock,	a	result	that	someone	“cannot	

be	included	or	excluded”	does	nothing	to	tell	the	jury	who,	among	the	universe	

of	males	who	could	potentially	leave	a	Y-STR	sample,	did	touch	it,	or	when	he	

touched	it.6	

	        [¶14]	 	 In	 attempting	 to	 portray	 the	 DNA	 found	 on	 the	 sock	 as	 more	

compelling	 than	 it	 is,	 Bates	 incorrectly	 asserts	 that	 our	 decision	 in	 Dechaine	

stands	 for	 a	 general	 rule	 that	 “‘cannot	 exclude’	 evidence	 is	 ‘inculpatory’	

evidence.”	 	 In	 that	 case,	 Dechaine	 had	 several	 pieces	 of	 evidence	 that	 were	

closely	connected	to	the	victim	tested	for	DNA	by	an	independent	laboratory.		

Id.	¶	22.		At	a	hearing	on	Dechaine’s	motion	for	a	new	trial,	his	expert	testified	

that	as	between	Dechaine	and	an	alternate	suspect	whom	Dechaine	identified,	


     6		The	situation	presented	by	the	sock	DNA	evidence	here	is	much	like	one	that	is	often	presented	

in	blood-type	testing,	which	was	routinely	used	in	criminal	investigations	before	DNA	testing	became	
commonplace.		Using	blood-typing,	if,	hypothetically,	the	perpetrator	of	a	crime	left	a	type	A-positive	
blood	 stain	 at	 the	 scene	 and	 a	 suspect	 had	 type	 A-negative	 blood,	 then	 the	 suspect	 could	 be	
conclusively	ruled	out	as	the	contributor	of	that	stain,	but	no	one	who	had	type	A-positive	blood	could	
be	identified	as	the	person	who	did	leave	it.		Likewise,	the	sock	DNA	can	exclude	Bates,	but	it	can	
identify	no	one.	
                                                                                      9	

only	 Dechaine	 could	 not	 be	 excluded	 from	 any	 of	 the	 items	 tested	 as	 the	

contributor	of	the	DNA;	the	alternate	suspect	was	excluded	as	the	contributor	

to	one	of	them.		Id.	¶	23-24.	

	     [¶15]	 	 We	 said	 that	 in	 that	 context	 the	 DNA	 testing	 did	 “not	 help	

Dechaine’s	cause,	in	that	it	was,	to	the	limited	extent	that	.	.	.	[it	was]	useful,	

inculpatory	and	not	exculpatory.		The	experts	all	testified	that	only	Dechaine,	

of	the	identified	males	compared,	could	not	be	excluded	as	a	sole	contributor	of	

the	male	DNA	found.”		Id.	¶	33.		Dechaine	did	not	hold	that	a	“cannot	exclude”	

result	on	a	DNA	test	is	inculpatory	per	se.		We	concluded	that	on	the	particular	

facts	 of	 that	 case,	 where	 Dechaine	 offered	 evidence	 that	 he	 could	 not	 be	

excluded	 as	 the	 contributor	 of	 the	 DNA	 at	 issue	 and	 the	 alternative	 suspect	

whom	he	identified	could	be	excluded,	the	result	was	“to	[a]	limited	extent	.	.	.	

inculpatory.”		Id.	

	     [¶16]	 	 In	 this	 case	 there	 are	 three	 men	 who	 cannot	 be	 excluded	 as	

contributors	 to	 the	 sock	 DNA,	 but,	 absent	 any	 calculation	 of	 statistical	

probabilities,	 there	 is	 an	 unknown—potentially	 countless—number	 of	 other	

males	who	fall	in	the	same	category.		No	member	of	a	limited	group	is	identified	

as	the	sole	person	who,	by	process	of	elimination,	could	have	left	the	DNA	on	

the	sock.		The	factual	situation	we	discussed	in	Dechaine	is	not	presented	here,	
10	

and	the	conclusion	we	reached	in	the	context	of	that	case	is	inapposite	to	these	

facts.	

	         [¶17]		Bates’s	burden	at	the	hearing	was	to	show	by	clear	and	convincing	

evidence	that	the	limited	usefulness	of	the	new	DNA	evidence	found	on	the	sock	

made	it	“probable”	that	a	different	verdict	would	result	from	a	new	trial	“when	

considered	 with	 all	 the	 other	 evidence	 in	 the	 case,”	 including	 “the	 evidence	

admitted	at	trial.”		15	M.R.S.	§	2138(10)(C)(1).		That	evidence	included	(1)	that	

for	years	after	the	murder	Bates	denied	having	had	any	sexual	relationship	with	

the	victim,	and	only	after	more	technologically-advanced	DNA	testing	matched	

him	to	sperm	cells	taken	from	the	victim’s	vagina	did	Bates	change	his	account	

and	testify	that	in	the	course	of	a	sexual	affair	with	the	victim	he	had	consensual	

sexual	 intercourse	 with	 her	 the	 night	 before	 the	 murder;	 (2)	 Bates’s	 ex-wife	

testified	 that	 on	 the	 night	 of	 the	 murder	 he	 left	 their	 apartment	 at	

approximately	 10:00	 p.m.	 and	 did	 not	 come	 home	 until	 3:00	 a.m.	 the	 next	

morning;	 (3)	 Bates’s	 coworker	 testified	 that	 Bates	 said	 he	 had	 been	 to	 the	

victim’s	 apartment	 on	 the	 night	 of	 the	 murder;	 and	 (4)	 twice	 in	 the	 month	

preceding	 her	 murder,	 the	 victim	 had	 expressed	 fear	 of	 Bates	 to	 a	 neighbor,	

including	one	incident	where	she	told	the	neighbor	that	she	had	awoken	in	the	
                                                                                        11	

middle	of	the	night	to	find	Bates	sitting	on	her	bed	and	stroking	her	hair.		Bates,	

2003	ME	67,	¶¶	4-8,	822	A.2d	1129.	

	      [¶18]	 	 Considering	 the	 entire	 record,	 as	 15	 M.R.S.	 §	 2138(10)(C)(1)	

directs,	 we	 discern	 no	 abuse	 of	 discretion	 in	 the	 trial	 court’s	 conclusion	 that	

Bates	 failed	 to	 meet	 his	 high	 burden	 to	 show	 that	 the	 new	 DNA	 evidence	

recovered	from	the	sock	would	result	in	a	different	verdict	at	a	new	trial.		See	

Dechaine,	2015	ME	88,	¶	13,	121	A.3d	76.	

B.	    Alternate	Suspect	

	      [¶19]	 	 Bates	 contends	 that	 the	 court	 erroneously	 construed	 section	

2138(10)(C)(1)	 when	 it	 declined	 to	 consider	 evidence	 concerning	 the	 new	

alternate	suspect	who	could	not	be	included	or	excluded	as	a	contributor	to	the	

sock	 DNA.	 	 That	 evidence	 included	 (1)	 a	 2014	 statement	 given	 to	 Bates’s	

attorney	by	a	woman	who	reported	that	her	sister	called	her	the	morning	after	

the	1994	murder	saying	that	the	sister’s	then-boyfriend	(Bates’s	new	alternate	

suspect)	“had	just	come	home	drunk	and	in	a	rage”	“screaming	.	.	.	that	he	killed	

a	girl	and	there	was	a	baby	in	the	playpen”;	and	(2)	the	testimony	of	a	woman	

at	the	hearing	on	Bates’s	motion	that	she	had	seen	the	victim	alive	on	the	night	

of	the	murder	after	first	seeing	Bates	leave	the	victim’s	apartment	following	an	

apparent	 sexual	 encounter.	 	 Bates	 argues	 that	 if	 admitted	 by	 the	 court,	 this	
12	

evidence,	coupled	with	the	DNA	results	discussed	supra,	would	have	satisfied	

his	burden	to	show	that	he	would	probably	obtain	a	different	verdict	at	a	new	

trial.	

	         [¶20]		The	court	found	that	the	statement	made	by	the	potential	alternate	

suspect	was	new	evidence	based	on	an	affidavit	executed	by	Bates’s	attorney,	

in	which	the	attorney	averred	that	after	working	on	the	case	for	over	ten	years,	

he	 had	 never	 heard	 the	 alternate	 suspect’s	 name	 mentioned.	 	 We	 said	 in	

Dechaine	that	

     [t]he	hearing	conducted	under	section	2138	.	.	.	allows	the	court	to	
     consider	 only	 two	 kinds	 of	 new	 evidence—that	 “relevant	 to	 the	
     DNA	 testing	 and	 analysis	 conducted	 on	 the	 sample,”	 and	 that	
     “relevant	to	the	identity	of	the	source	of	the	DNA	sample.”		15	M.R.S.	
     §	 2138(10)(C).	 	 The	 statute	 says	 nothing	 about	 reopening	 or	
     supplementing	 the	 evidence	 introduced	 in	 prior	 proceedings;	
     rather,	it	allows	the	admission	of	DNA-related	evidence	that	could	
     not	have	been	known	at	those	prior	proceedings,	namely	the	new	
     DNA	results	and	their	impact	on	identifying	the	perpetrator.	
     	
2015	ME	88,	¶	39,	121	A.3d	76	(alteration	and	quotation	marks	omitted).	

	         [¶21]		The	court	properly	excluded	the	2014	statement	given	to	Bates’s	

attorney	because,	although	the	new	sock	DNA	evidence	“could	not	have	been	

known	at	.	.	.	prior	proceedings,”	it	was	not,	as	we	have	discussed,	“relevant	to	

the	identity	of	the	source	of	the	DNA	sample”	in	that	it	did	not	identify	the	new	

alternate	suspect	as	the	contributor,	or	even	as	a	likely	contributor,	of	the	DNA	
                                                                                              13	

evidence.		Id.	(quotation	marks	omitted).		All	the	Bode	report	said	was	that	the	

new	alternate	suspect,	like	an	unknown	number	of	other	males,	could	not	be	

included	or	excluded	as	a	contributor	to	the	mixture	of	male	DNA	obtained	from	

the	 interior	 toe	 region	 of	 the	 sock.	 	 Given	 the	 facts	 of	 this	 case,	 that	 is	 an	

insufficient	 showing	 to	 establish	 the	 relevance	 of	 the	 2014	 statement	 and	

require	its	admission.		See	id.	

	      [¶22]		The	court	did	not	explicitly	discuss	the	testimony	of	the	witness	

called	by	Bates	who	claimed	that	she	saw	the	victim	alive	after	Bates	left	the	

victim’s	 apartment.	 	 That	 is	 likely	 because	 her	 testimony	 was	 clearly	

inadmissible	at	the	section	2138	hearing	in	that	it	did	not	concern	the	new	DNA	

evidence	 at	 all,	 but	 was	 simply	 an	 attempt	 to	 “reopen[]	 or	 supplement[]	 the	

evidence	 introduced	 in	 prior	 proceedings”	 by	 introducing	 a	 purported	

eyewitness	account	of	Bates’s	whereabouts	on	the	night	of	the	murder.		Id.	

C.	    Trial	Court’s	Consideration	of	“All	the	Other	Evidence	In	the	Case”	

	      [¶23]		Bates	finally	contends	that	the	court’s	decision	demonstrates	that	

it	 did	 not	 “consider[]	 .	 .	 .	 all	 the	 other	 evidence	 in	 the	 case,	 old	 and	 new”	 as	

mandated	 by	 the	 statute.	 	 15	 M.R.S.	 §	 2138(10)(C)(1);	 see	 Dechaine,	

2015	ME	88,	¶	38,	121	A.3d	76	(“[E]vidence	admitted	at	the	trial	or	in	any	prior	

collateral	proceeding	.	.	.	must	be	considered	by	the	court	in	deciding	a	motion	
14	

for	 a	 new	 trial	 based	 on	 new	 DNA	 analysis.”).	 	 He	 first	 points	 to	 the	 court’s	

finding	that	“[a]lthough	the	trial	transcript	is	not	in	the	record,	it	appears	that	

an	 alternative	 suspect	 theory	 regarding	 [the	 new	 alternate	 suspect]	 was	 not	

presented	at	trial.”	

	      [¶24]		Bates	asserts	that	the	court	was	required	to	read	the	entire	trial	

transcript	 in	 order	 to	 fulfill	 its	 statutory	 duty	 to	 consider	 all	 evidence	 in	 the	

case.		We	disagree.		The	statute	requires	that	the	evidence	admitted	at	trial	be	

“considered”	 sufficiently	 to	 place	 the	 new	 DNA	 evidence	 in	 context	 so	 as	 to	

determine	 whether	 a	 different	 verdict	 would	 likely	 result	 from	 a	 new	 trial.		

15	M.R.S.	§	2138(10)(C)(1).		It	does	not	specify	any	particular	method	that	the	

court	must	employ	in	doing	so,	and	we	conclude	that	the	nature	of	the	required	

review	depends	upon	the	record	in	a	particular	case	and	the	challenge	raised	in	

the	motion	for	a	new	trial.		Here,	Bates’s	attorney’s	affidavit	supports	the	court’s	

finding	that	a	theory	regarding	the	new	alternate	suspect	was	not	presented	at	

trial,	and	the	court’s	order,	which	includes	an	extensive	review	of	the	facts	of	

the	 case	 as	 recited	 in	 our	 prior	 opinion,	 see	 Bates,	 2003	 ME	 67,	 ¶¶	 2-8,	

822	A.2d	1129,	establishes	that	the	court	did	sufficiently	consider	evidence	that	

was	admitted	at	the	trial.	
                                                                                        15	

	     [¶25]	 	 Bates	 lastly	 advances	 as	 error	 a	 seeming	 contradiction	 in	 the	

court’s	decision,	where	the	court	first	found	that	“post[-]trial	DNA	evidence	has	

been	found	that	could	not	have	been	contributed	by	the	defendant	.	.	.	on	a	sock	

found	in	the	victim’s	mouth,”	and	later	found	that	“[a]lthough	[Bates’s	attorney]	

claims	there	was	unknown	male	DNA	on	the	sock,	there	are	no	new	results	from	

the	sock	because	it	was	not	tested.”		Bates	asserts	that	the	court’s	exclusion	of	

evidence	 concerning	 the	 new	 alternate	 suspect	 was	 predicated	 on	 “its	

confusion	over	the	existence	of	any	new	DNA	results.”	

	     [¶26]		Read	in	context,	the	court’s	findings	are	not	contradictory	and	they	

reveal	no	error.		The	second	finding	was	that	

      [b]ecause	evidence	regarding	[the	new	alternate	suspect]	is	.	.	.	new	
      evidence,	it	must	be	relevant	to	the	DNA	testing	or	to	the	identity	
      of	the	source	of	the	DNA	sample.		As	discussed	above,	the	new	DNA	
      results	were	.	.	.	inconclusive	.	.	.	.	Although	[Bates’s	attorney]	claims	
      there	was	unknown	male	DNA	on	the	sock,	there	are	no	new	results	
      from	the	sock	because	it	was	not	tested.		Any	evidence	regarding	
      [the	new	alternate	suspect]	should	therefore	be	excluded	from	the	
      hearing	because	the	DNA	results	do	not	implicate	[him].	
      	
	     [¶27]	 	 It	 is	 apparent	 to	 us	 that	 the	 “inconclusive”	 results	 to	 which	 the	

court	referred	were	the	results	of	Bode’s	testing	excluding	the	new	alternate	

suspect	from	the	Y-STR	profile	found	on	the	exterior	of	the	sock	and	neither	

including	nor	excluding	him	from	the	Y-STR	profile	found	on	the	sock’s	interior	

toe	region.		As	we	have	discussed,	that	result	was	of	little	value	given	the	facts	
16	

of	this	case.		See	supra	¶¶	6,	12-13.		The	court	then	found,	correctly,	that	nothing	

in	the	Bode	results	identified	the	new	alternate	suspect	as	a	contributor	to	the	

sock	DNA	because	the	sock	was	“not	tested”	using	a	method	more	precise	than	

Y-STR,	 such	 as	 PCR	 testing.7	 	 For	 that	 reason,	 the	 court	 found	 that	 the	 “DNA	

results	 do	 not	 implicate	 [the	 new	 alternate	 suspect]”	 and	 properly	 excluded	

evidence	concerning	him	as	not	“relevant	to	the	identity	of	the	source	of	the	

DNA	sample,”	see	15	M.R.S.	§	2138(10).	

	        The	entry	is:	

                            Judgment	affirmed.	
	
	      	      	       	    	     	
	
Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	Foster	
Bates	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Cumberland	County	Superior	Court	docket	number	CR-2001-1160	
FOR	CLERK	REFERENCE	ONLY	




   7	 	 At	 oral	 argument,	 Bates	 and	 the	 State	 agreed	 that	 PCR	 testing	 is	 much	 more	 precise	 and	

definitive	 than	 Y-STR	 testing,	 which	 examines	 only	 the	 male	 chromosome	 and	 is,	 as	 we	 have	
discussed,	 useful	 for	 excluding	 potential	 contributors	 but	 much	 less	 useful	 for	 identifying	 them.		
See	supra	¶	13.	
