                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 120,600

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          JEROME EDWARDS,
                                              Appellant.


                                   SYLLABUS BY THE COURT

        Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-2512
leads to results favorable to the defense, a district judge does not necessarily abuse his or
her discretion by denying a motion for new trial. The judge must evaluate whether the
results are "of such materiality that a reasonable probability exists" a new trial would lead
to a different outcome. If a reasonable person could agree with the district judge's
decision on whether a reasonable probability exists, there is no abuse of discretion.


        Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed July 17, 2020.
Affirmed.


        Kristen B. Patty, of Wichita, was on the brief for appellant.


        Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, was with
him on the brief for appellee.


The opinion of the court was delivered by


        BEIER, J.: In 1996, a jury convicted Jerome Edwards of first-degree murder,
conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery.


                                                     1
Seventeen years later, a district court judge granted Edwards' request for DNA testing on
some items found at the crime scene. Edwards filed a motion for a new trial on the basis
of the DNA testing results. The district judge denied the motion. Edwards appeals.


        We hold that Edwards is not entitled to a new trial on the basis of the DNA test
results.


                                  FACTUAL AND PROCEDURAL HISTORY


        This court laid out the facts underlying Edwards' convictions in its 1998 decision
rejecting his arguments, with one exception concerning a nunc pro tunc order to correct a
journal entry. Given the intervening 22 years, we repeat the fact section of the decision
here:


                "The events in this case concern the February 19, 1996, murder and robbery of
        Donnie Smart, a small-time dealer of marijuana, in Topeka. The defendant was charged
        with felony murder; conspiracy to possess with intent to sell, deliver, or distribute, offer
        for sale, or sell a hallucinogenic drug; and aggravated robbery in connection with the
        incident. Prior to trial, the defendant moved to suppress a photographic lineup
        identification. After a full hearing, the trial court denied his motion.


                "The State called 19-year-old Larry Huggins, Jr., who testified that he was
        walking down the street on the day of the killing when he was approached by two
        individuals, one of whom he identified as the defendant. Huggins had met the defendant
        previously. Huggins identified the other person with the defendant only as Shawn.


                "According to Huggins, the defendant and Shawn wanted to purchase two
        quarter-pound bags of marijuana. Huggins mentioned that he had previously purchased
        marijuana from Smart. Huggins stated that Smart was not a 'big-time' dealer but was
        known to sell marijuana occasionally. Huggins was to receive a half-ounce of marijuana
        for arranging the deal.


                                                       2
        "Huggins testified that the group drove in his cousin's blue Ford Escort to Smart's
house because Smart would know the car. They parked in front of what he thought was
Smart's house and saw Smart walking down the steps of an apartment building nearby.
Smart and his family were in the process of moving from the house to the apartment
building on that day. Huggins told Smart about the group's desire to purchase the
marijuana, and Smart told them to come back in a couple of hours. They left, and while
driving around, the defendant and Shawn asked Huggins if Smart was 'somebody we
could lick.' Huggins felt that they were asking whether Smart would be a good person to
rob.


        "The group returned to Smart's apartment 2 hours later. When they arrived, the
defendant and Shawn went to the door. Huggins testified that both the defendant and
Shawn were armed. Huggins saw Smart's wife, Heather, open the door. The defendant
and Shawn then returned to the car and told Huggins that Heather had told them to come
back later.


        "Huggins testified that when the group came back for the third time, both the
defendant and Shawn were again carrying guns. According to Huggins, the defendant
was carrying a blue steel .38 caliber pistol while Shawn was armed with a chrome 9 mm.
pistol. Huggins testified that the defendant was wearing a starter jacket and black pants
while Shawn was wearing a hooded sweatshirt. Huggins watched them walk up, knock
on the door, and then go in the apartment. After approximately 5 minutes, he heard two
gunshots. Huggins started the car and was going to leave when he saw the defendant and
Shawn running out of the apartment. They jumped into the car and Huggins drove off.


        "The defendant told Huggins that Smart was drunk and had come after them so
they had to shoot him. The defendant said that when they weighed the marijuana, the
defendant had tried to grab it. Smart charged him, and the defendant shot into the floor
once and then shot Smart in the shoulder. Huggins testified that he dropped the defendant
off at his car and then went home.


        "Huggins admitted that he had not identified the defendant in a photographic
lineup. He stated that he recognized the picture of the defendant but lied to the police and

                                             3
only told them the truth after he was threatened with a murder charge. Huggins stated that
he was charged with conspiracy and aggravated robbery and that in return for his
testimony, he would avoid being charged with murder.


        "Heather testified that on the day of the murder, she had been moving things in
the apartment when she heard her husband whistle. He then came into the house and told
her that some persons had wanted to buy a half-pound of marijuana. Heather testified that
her husband used marijuana and sometimes sold small amounts. However, she was scared
when she heard that someone wanted a half-pound because Smart had never sold that
large an amount before. She stated that Smart reassured her by telling her that 'Big Larry'
(Huggins) was involved and that he had known him for awhile.


        "Heather testified that Smart and two friends, Raymond Slater and Jeremy
Brown, left to purchase the marijuana. Heather stated that she was sick to her stomach
because she was nervous, and she went to lie down with the couple's baby. She then
heard a knock on the door. When she answered the door, a black male she identified as
the defendant was there, asking for Smart. She told the defendant that Smart was not
home but that he would be back within the hour. The defendant told her that he and his
companions would return at 7:15 p.m.


        "Smart, Slater, and Brown came back to the apartment. Smart began weighing
the marijuana. Just after 7:15, the group decided that the defendant and his companions
were not coming back and began dividing the marijuana among themselves. They rolled
one joint and took turns smoking it. Heather testified that she went into the kitchen and
when she came back out, the front door was partially open. The defendant and another
person were standing just outside. Smart told her to let them in and she did.


        "According to Heather, Smart approached the defendant and the other person and
said, 'What's up?' She believed that Smart seemed to recognize the defendant. Smart, the
defendant, and the other person then went into the back of the apartment. She sat in the
living room. After awhile, she heard Smart raise his voice, and Slater went back to check
on the situation. Shortly thereafter, the defendant came around the corner with a silver
gun in his hand shouting, 'Nobody move, or I'll shoot.' The defendant then turned back,
and the other person came into the living room followed closely by Smart and Slater.

                                             4
There was pushing and shoving. Heather testified that as they came past her, Smart tossed
a bag of marijuana to her, which she threw over her shoulder into the kitchen.


        "A struggle ensued at the door of the apartment. Smart had his arms around the
defendant's waist and was ramming his shoulder into the defendant when the defendant
fired his gun. There was more scuffling, and the defendant fired again. Smart slumped to
his knees. Heather ran to the telephone, dialed 911, and then ran back and unsuccessfully
tried to resuscitate Smart.


        "When first questioned by the police, Heather did not mention the marijuana.
However, when she found out that Smart had died, she told the police everything that had
happened.


        "Heather told the police that the person with the gun was about 5'9", with
cornrows in his hair, and wearing a light-colored tan or white starter jacket. She described
the other person to police as wearing a gray fleece sweatshirt. However, Heather testified
that when she saw the defendant's picture in the photographic lineup, she realized that she
had made a mistake and that the person in the gray fleece sweatshirt, not the person with
cornrows, had been the shooter. Heather stated that she looked at between 600 and 1,000
pictures in an effort to identify the shooter. However, she testified that at the moment she
saw the defendant's face in the photograph, she realized he was the shooter. Heather said
that '[w]hen you see your husband shot and killed in front of you and you see a face, you
remember that face for the rest of your life.' At trial, Heather also identified the defendant
as the person who shot Smart.


        "Raymond Slater, a friend of Smart's who was present during the shooting, also
testified. In court, he identified the defendant as the person who shot Smart. Slater stated
that when the defendant and the other person arrived to purchase the marijuana, Smart
motioned them into the bathroom to take care of the deal. Slater testified that the other
person went into the bathroom while the defendant stayed just outside the bathroom door.
Later, Slater heard Smart raise his voice and knew something was wrong. Slater went
back to the bathroom to check on the situation, and he and the defendant glared at each
other for approximately 5 to 10 minutes. Slater testified that while he and the defendant



                                              5
were staring at each other, Smart and the other person were arguing over the weight of
the marijuana.


        "The defendant then moved into the bathroom, so Slater also went in. Slater
testified that the defendant stepped around the corner, then stepped back holding a gun.
According to Slater, the defendant stated, 'Give us the fucking dope or else I'm going to
shoot you!' Smart and the other person both grabbed for the marijuana. Slater moved in to
join the scuffle, but the defendant said, 'You make one more move and I'll blow your
head off.' The other person ran out of the bathroom followed by the defendant, Smart,
and Slater. Slater testified that Smart grabbed the defendant and tried to drag him to the
ground. Smart grabbed the defendant by the waist and slammed him against the door.
Slater testified that he heard two shots. He swung a beer bottle at the defendant and saw
Smart slump to the ground. The defendant ran out the door.


        "Slater stated that he ran out the door after the assailants, but someone pointed a
gun at him and he backed away. He testified that the assailants got into a tan or cream-
colored compact car like a Volkswagen Rabbit and drove away. He followed them to a
nearby grocery store parking lot and called police from there.


        "Slater testified that he told police that the person he later identified as the
defendant was 5'7" tall and that the other person was 6'2" or so with cornrows in his hair.
Slater stated that he looked at hundreds of pictures of suspects on three occasions and
when he saw the defendant's picture, he was sure the defendant was the shooter.


        "On cross-examination, Slater admitted that on the day of the murder he had been
drinking all day but stated that he was not affected by it. Slater testified that he had been
with Smart when the defendant and others drove up the first time to talk about purchasing
marijuana. He stated that the defendant and the others had been in a four-door Mercury
with tinted windows. When shown a picture of a car belonging to the defendant's
girlfriend, he stated that it was not the car he had seen at that time. On redirect, he stated
that although he wanted to see Smart's killer brought to justice, he would not want to
falsely accuse anyone of a crime because he himself had been falsely accused and he
knew how it felt.



                                               6
        "Jeremy Brown, another person present at the shooting, also testified. Brown's
testimony was generally consistent with that of Slater and Heather. He testified that one
of the assailants was 5'7" and about 160-65 pounds and dressed in a hooded sweatshirt.
The other assailant was 6'1" and heavyset, possibly 250 pounds. Contrary to the
testimony of Slater, Brown testified that the assailants escaped in a blue Ford Escort.
Brown testified that this was the same Escort he had seen Huggins exit from earlier in the
day.


        "Jeremy stated that when questioned by police, he told them that he did not know
who the shooter was but if he could talk to Slater or Heather, they might be able to come
up with a name. He stated that he was unable to identify the defendant as the shooter in a
photographic lineup.


        "Kevin Igercic, another friend of Smart's who was present that evening, also
testified. Igercic stated that he had been sitting in Smart's apartment waiting for his
mother to pick him up when one of the people talking to Smart in the back of the
apartment pulled a gun. Igercic stated that Smart and the shooter were in the living room
headed for the door when the first gunshot went off. Smart tried to grab the shooter and
another shot went off. After the second shot Smart said, 'Kevin, dial 911' and fell over.
Igercic described the shooter as being 6'1" tall and the other person as 6'4", based on his
estimation of Smart's height at 5'9." Smart was actually slightly over 5'6" in height.


        "Igercic testified that he could not identify anyone in the lineup shown to him. He
stated that at one point, he might have told police that the shooter had on an Oakland
Raiders starter jacket.


        "According to Shawnee County Coroner Dr. George E. Thomas, Smart died as
the result of a gunshot wound which entered into his left arm on a downward angle as if
the arm was held above the body. The bullet then continued through the arm and into the
body, fracturing a rib and penetrating the left lung, pulmonary artery, aorta, right lung,
diaphragm, liver, and right kidney. Stippling on the wound indicated that the shot was
fired from close range. A second gunshot wound on the left shoulder was not a factor in
Smart's death.



                                              7
        "David A. Smith, an officer with the Topeka Police Department, testified that he
was called to the shooting scene, where he recovered drug paraphernalia and marijuana
from the bathroom. He also recovered two .38 caliber shell casings from the living room
area.


        "Robert Cilwa, a [Kansas Bureau of Investigation] firearms expert, testified
concerning the shell casings. Cilwa testified that the cartridges found on the scene were
.38 caliber. He noted that while it was possible for .38 caliber shells to be fired from a 9
mm pistol, he did not think, based on the condition of the cartridges, that these cartridges
had been fired from a 9 mm pistol.


        "The State also called a witness who testified that she was a prostitute who
habitually worked in the neighborhood where the shooting took place. She stated that on
the night of the shooting, she saw a blue Ford Escort heading down the street near Smart's
apartment and saw two men exit the vehicle and go up the stairs to the apartment.
However, at trial, she stated that the defendant was not one of those persons.


        "Detective Mike McAtee of the Lawrence Police Department stated that he went
to the restaurant where Tina Ostrander, the defendant's girlfriend worked to see if the
defendant was there. McAtee testified that he saw a red Toyota which belonged to
Ostrander, but she was not at work. He learned that the defendant and Ostrander were at
her apartment, and he and several other officers went to that apartment. McAtee stated
that there was a smell of marijuana coming from the apartment. McAtee testified that he
and several officers entered the apartment and placed the defendant in custody. A search
of the apartment revealed drug paraphernalia and marijuana as well as a gray hooded
sweatshirt.


        "Prior to the State's calling of witnesses to testify regarding the arrest of the
defendant, the defendant renewed his objection to any discussion regarding the fact that
marijuana was found at the place where the defendant was residing. The district court
overruled the objection.


        "Cindy Patterson, a KBI forensic chemist, testified concerning both the
marijuana found in the defendant's apartment and the marijuana found at the scene of the

                                              8
shooting. She confirmed that both substances found were marijuana but stated that it was
impossible to tell whether they came from the same batch of marijuana.


        "Detective McAtee also testified concerning certain field notes he had taken
during an interview he conducted with Ostrander. Ostrander stated that the defendant and
a man named William Burton Clay often talked to her about 'ripping people off for weed.'
She also told him that on the night of the murder, the defendant was out of town late into
the night and when he returned he told her that he had 'jacked' some people.


        "The State called Ostrander to the stand. She testified that on the day of the
shooting the defendant was fixing her car. She stated that she saw him in Lawrence
between 8 and 8:30 p.m. on the evening of the shooting.


        "Thomas Young, a detective with the Topeka Police Department, also testified on
behalf of the State. Young stated that he worked on the investigation of the shooting and
that he went to Lawrence with several other officers to apprehend the defendant. Young
questioned the defendant after his arrest. Young testified that the defendant answered
biographical questions but, when read his rights, stated that he did not want to talk further
and wanted an attorney. At this point, the defendant objected on the grounds that it was
impermissible to comment on his post-Miranda silence. The court asked whether the
defendant would like a cautionary instruction, and the defendant declined.


        "Young testified that as he was preparing to leave the room, the defendant stated
that he wanted to talk again. As Young was informing the defendant about the crime, the
defendant asked, 'Who says I killed whitey?' Young felt that this utterance was significant
because he had not yet told the defendant that the victim was Caucasian. Young testified
that the defendant first stated that he could not remember where he had been on the night
of the murder. Later, the defendant told Young that he had been with his girlfriend all day
and night. Finally, he told Young that he had been mistaken and that he had worked on
the day in question.


        "The State also called Sergeant Ron Brown of the Topeka Police Department.
Brown testified that he assisted the Lawrence police in apprehending the defendant.



                                             9
      Brown stated that when the defendant was first arrested, the defendant stated, 'What do
      you guys got me for? What? Did I rob someone? What? Did I kill someone?'


              "During jury deliberations, the jury sent a note to the court asking for a read back
      of the testimony of 'Detective Young . . . or, ?' regarding the presentation of the
      photographic lineup to Slater. During an earlier question from the jury, the defendant was
      not present when the reply was being discussed. However, the defendant's attorney
      agreed that the defendant's presence was not necessary. Likewise, the defendant was not
      present when the answer to this jury question was discussed. The court called the jury in,
      and Young's testimony was read to the jury. The court then asked the jury if there was
      any other testimony that it wished to have read back. The jury indicated that it did not
      wish a further read back.


              "The defendant was found guilty of felony first-degree murder, conspiracy to
      possess with intent to sell hallucinogenic drugs, and aggravated robbery. He was
      sentenced to a controlling term of life plus 58 months in prison." State v. Edwards, 264
      Kan. 177, 180-88, 955 P.2d 1276 (1998).


      In 2011, Edwards filed a motion for DNA testing. The district court granted
Edwards' motion in 2013 and ordered the KBI to conduct DNA tests on a blood sample
taken from the crime scene, the shirts and sweatpants Smart wore during the attack, a
sexual assault kit conducted on Smart, a silver tray with marijuana roaches found at the
crime scene, a jewelry box with marijuana roaches found at the crime scene, and a broken
watch found at the crime scene.


      The KBI concluded that DNA on one roach was "a mixture of DNA from at least
two people" and "not consistent" with Edwards. The DNA from Smart's fingernail
scrapings was also "not consistent" with Edwards. With respect to the tray, box, watch,
remaining roaches, swabs from the left leg of Smart's pants, and swabs from the back and
sleeve of Smart's shirt, the KBI found the samples contained "mixed DNA profiles [that]
contain insufficient genetic information for comparison. Therefore, no conclusions can be


                                                   10
made regarding these items." Swabs from the right leg of Smart's pants, as well as swabs
from the front and other sleeve of Smart's shirt contained


       "a mixture of DNA from at least three people and can be separated into a partial major
       profile and partial minor profiles. The partial major DNA profile . . . is not consistent
       with . . . [Edwards]. The partial minor DNA profiles . . . contain insufficient genetic
       information for comparison; therefore, no conclusions can be made regarding the partial
       minor DNA profiles."


       Edwards then moved for additional, independent DNA analysis of the evidence,
which was granted. Genetic Technologies, Incorporated, used the KBI's data to reach its
own conclusions about the presence of Edwards' DNA in the samples.


       In 2017, the district court held an evidentiary hearing on the results of the DNA
testing. Jami Harmon, the director of Genetic Technologies, testified that her company
used "probabilistic genotyping" to interpret the KBI's raw data and draw conclusions
about whether Edwards' DNA was present in the given samples.


       Harmon explained that forensic laboratories, including the KBI, establish
concentration thresholds that samples must meet in order to be considered testable. The
KBI uses a threshold of "60 relative florescent units." Scientists count the number of
alleles at separate locations, called "loci," in the DNA to ascertain the number of
individuals represented in a sample. Then, scientists determine the "combined probability
of inclusion" ("CPI") or "combined probability of exclusion" ("CPE"). Harmon testified
that the use of CPI or CPE "doesn't take into consideration the potential for what we call
allelic dropout or dropin during the entire testing process." She said that the use of a high
threshold and the CPE and CPI methods "resulted in . . . [scientists] losing the ability to
make statements about very useful DNA." Instead, she said, her lab uses "probabilistic
genotyping." Probabilistic genotyping


                                                    11
         "looks at what we call the baseline voids and then goes two standard deviations above
         that. And then draws a line so that we can incorporate much more of the data than has
         been previously incorporated. And we can do that one for above the limited detection,
         and because we are, in fact, addressing mathematically allelic dropout and allelic dropin
         issues."


         Probabilistic genotyping "is used to include individuals to sample that have
otherwise been rendered uninterpretable or insufficient for comparison. And likewise,
this may exclude individuals from samples that have been otherwise rendered for
uninterpreting or not used for comparison purposes," she said.


         Using probabilistic genotyping, Genetic Technologies concluded that Edwards
was "effectively excluded" as a DNA contributor to the tray, roaches, pants, and shirt.
However, the box and the watch were "unsuitable even for probabilistic genotyping"
because of allelic dropouts; Genetic Technologies thus drew no conclusions about those
items.


         On cross-examination, Harmon admitted that scientists are "not necessarily"
certain to find DNA on a cigarette for each person who has smoked that cigarette.
Whether an individual's DNA is present on a cigarette they smoked "depend[s] on how
long a person had that cigarette in their mouth. Whether they were shedding skin cells
effectively. How many times they handled that particular cigarette." In other words,
excluding Edwards as a DNA contributor to the cigarettes did not necessarily mean he
never touched the cigarettes.


         Edwards urged the district court to set aside his conviction or grant him a new trial
in light of the DNA test results. The district judge denied Edwards' motion. She
concluded that "the failure to find Defendant's DNA on the tested objects is more
favorable to the Defendant than a finding that proves his DNA was present at the scene of
the crime . . . . To that extent, it is favorable." Nevertheless, she concluded that the new
                                                     12
DNA evidence was "not reasonably probable to lead to a jury reaching a different result."
She reasoned that "the absence of evidence is not evidence of absence"; the DNA
evidence "does not . . . actually provide evidence of his absence when the homicide
occurred." She also noted that his trial defense explicitly pointed out the absence of
physical evidence connecting him to the crime scene; nevertheless, the jury chose to
convict.


       Edwards appealed this decision, arguing the district judge abused her discretion by
denying his motion for a new trial.


                                                DISCUSSION

       K.S.A. 2019 Supp. 21-2512 allows individuals serving a sentence for murder to
seek DNA testing of previously untested physical evidence. What happens after DNA
testing is performed depends on whether the test results are unfavorable or favorable to
the defense. In this case, the district judge concluded that the DNA results were favorable
to Edwards. This finding is not disputed on appeal.


       The statute provides that:


               "(f)(2) If the results of DNA testing conducted under this section are favorable to
       the petitioner and are of such materiality that a reasonable probability exists that the new
       evidence would result in a different outcome at a trial or sentencing, the court shall:


                        (A) Order a hearing, notwithstanding any provision of law that would bar
                        such a hearing; and


                        (B) enter any order that serves the interests of justice, including, but not
                        limited to, an order:


                                (i)      Vacating and setting aside the judgment;

                                                    13
                                (ii)     discharging the petitioner if the petitioner is in custody;


                                (iii)    resentencing the petitioner; or


                                (iv)     granting a new trial.


               (3) If the results of DNA testing conducted under this section are inconclusive,
          the court may order a hearing to determine whether there is a substantial question of
          innocence. If the petitioner proves by a preponderance of the evidence that there is a
          substantial question of innocence, the court shall proceed as provided in subsection
          (f)(2)."


       "[F]avorable testing alone does not mean the district court must grant a defendant
affirmative relief." State v. LaPointe, 309 Kan. 299, 305, 434 P.3d 850 (2019). When, as
here, a district judge concludes the DNA test results were favorable, he or she then
considers whether to grant a new trial.


               "The standard for whether to grant a new trial under such circumstances is
       similar to our standard for granting a new trial based upon newly discovered evidence,
       except that no time limit exists for such a motion and a defendant need not establish that
       the new evidence was newly discovered. In all other respects it is treated as a motion for
       new trial governed by the provisions of K.S.A. 22-3501: 'The court on motion of a
       defendant may grant a new trial to him if required in the interest of justice.'


               "Just as the court 'shall enter any order that serves the interests of justice' under
       the provisions of K.S.A. 2005 Supp. 21-2512, one such order 'in the interest of justice' is
       an order for a new trial. In order to grant such an order, the 'evidence must be of such
       materiality that a reasonable probability exists that it would result in a different outcome
       at trial. [Citation omitted.]'" Haddock v. State, 282 Kan. 475, 499, 146 P.3d 187 (2006).




                                                    14
       A "reasonable probability" is "a probability sufficient to undermine the confidence
of the outcome. [Citations omitted.]" State v. Rodriguez, 302 Kan. 85, 93, 350 P.3d 1083
(2015).


       This court reviews a district judge's decision to deny relief under K.S.A. 2019
Supp. 21-2512(f)(2) for an abuse of discretion. LaPointe, 309 Kan. 299, Syl. ¶ 2. "A
district court abuses its discretion when (1) no reasonable person would have taken the
view adopted by the district court; (2) the judicial action is based on an error of law; or
(3) the judicial action is based on an error of fact." State v. Thomas, 307 Kan. 733, 739,
415 P.3d 430 (2018). "The party asserting an abuse of discretion bears the burden of
establishing such abuse." State v. Darrah, 309 Kan. 1222, 1227, 442 P.3d 1049 (2019).


       In this particular case, we are concerned only with Edwards' allegation regarding
the first type of abuse of discretion. We cannot reverse the district judge's denial of
Edwards' motion for a new trial unless no reasonable person could agree with her
conclusion that no reasonable probability existed that the DNA results would have
resulted in a different outcome at the original trial. See LaPointe, 309 Kan. at 300.


       Edwards argues that because his DNA was not identified in any of the tested
samples, he "cannot be the shooter, and the district court erred when it did not, at a
minimum, grant him a new trial." The State argues that, much as in LaPointe, the jury in
Edwards' case already knew of the lack of physical evidence connecting him to the crime
scene, but it convicted him anyway on the basis of eyewitness and coconspirator
testimony.


       In LaPointe, a jury convicted Jack LaPointe of aggravated robbery and aggravated
assault arising from the armed robbery of a Payless shoe store. "A store clerk, customers,
and others in a nearby parking lot provided general descriptions, but only one witness
later identified LaPointe." 309 Kan. at 301. One eyewitness identified a person other than

                                             15
LaPointe when shown a photo lineup. "Police found a plaid shirt and baseball hat at a
breezeway in a nearby apartment complex. They discovered a pair of gloves in a different
breezeway." 309 Kan. at 301. Police also found a bandana under a car in the complex
parking lot. Head hairs were found on the clothing. At LaPointe's trial, a criminologist
testified that the hairs "most likely did not belong to LaPointe" but there was a "'remote
explanation' that LaPointe could still be the source." 309 Kan. at 301. Three fingerprints
at the scene also did not match LaPointe.


       A man named Michael Norton testified for the State, claiming he served as
LaPointe's accomplice in the robbery, which LaPointe agreed to commit in part to pay a
debt owed to Norton. Norton testified that LaPointe went into the Payless while Norton
waited in a car in the complex lot. LaPointe wore blue jeans and a sweater and carried a
baseball cap, bandana, and sawed-off shotgun. When LaPointe returned to the car, he
carried a bag of money, the bandana, and the gloves. Norton told officers that LaPointe
threw the gun on a roof; police later recovered the gun from the roof of a nearby store.


       LaPointe testified, confirming he knew Norton and lost Norton's pistol, but he
denied committing the robbery. LaPointe also claimed he gave a sawed-off shotgun to
Norton.


       LaPointe's wife provided him an alibi. She also confirmed that LaPointe lost a
pistol belonging to Norton and obtained a sawed-off shotgun around the time of the
robbery.


       During closing, the State called the "scientific evidence" a "wash" and emphasized
the eyewitness testimony. The defense "called the parking lot witness' testimony into
question by pointing out inconsistencies with her companion's testimony and her brief
opportunity to see the robber. Defense counsel also challenged Norton's credibility." 309
Kan. at 308. The defense also highlighted the contrary physical evidence: the

                                             16
fingerprints were not a match, and the hairs were "certainly not" LaPointe's. 309 Kan. at
308. The jury nevertheless convicted LaPointe.


       Years later, a district judge granted LaPointe's request for postconviction DNA
testing. Two hairs, one from the "cap/gloves" and the other from the bandana, were
tested. The former "yielded test results that were inconclusive but more likely than not
excluded LaPointe as the contributor." 309 Kan. at 303. The latter "produced test results
conclusively excluding LaPointe as the source" but the district court judge denied
LaPointe's request for a new trial.


       "The court found the results were favorable but insufficient to support a reasonable
       probability they would result in a different trial outcome. The court reasoned the jury
       convicted LaPointe when it was clear no physical evidence linked him to the robbery and
       that most likely he did not contribute the hairs. The court noted defense counsel
       emphasized both these points at trial. It also concluded the DNA results would have had
       little to no impact on the testimony from Norton and the eyewitnesses." 309 Kan. at 303.


       On appeal, we affirmed the district judge's denial of LaPointe's motion for a new
trial. We wrote:


               "The favorable test results affirmed the hair comparison expert's opinion that the
       hair was probably not LaPointe's. But they do not alter the expert's further testimony that
       the fact the hair did not belong to LaPointe did not mean he did not wear the clothing.
       The possibility raised by [the criminologist] remains that LaPointe might not have
       deposited hair on the clothing or that the State simply did not find any hairs he did shed.
       '[T]he presence of a reasonable explanation mitigates the potential impact of the evidence
       if there were a retrial, a consideration that can be made in making a probabilistic
       determination about what reasonable, properly instructed jurors would do.' [Citation
       omitted.]" LaPointe, 309 Kan. at 309.




                                                    17
In addition, we noted that the jury assessed Norton's credibility when reaching its verdict;
Norton's testimony was corroborated in part by recovery of the gun, the eyewitness
identification, and LaPointe's wife's confirmation of circumstantial details. 309 Kan. at
310.


          This case is much like LaPointe. The non-DNA evidence against Edwards is
strong.


          Huggins testified as a coconspirator, providing his account of serving as the
getaway driver. Both Heather and Slater, who were in the apartment, identified Edwards
as the shooter. Edwards attempts to cast doubt on Heather's and Slater's identifications by
pointing out that Slater admitted to drinking and smoking that day and that Heather's also
had smoked marijuana before the shooting. But Heather also testified she saw the
defendant earlier in the day when he came to the apartment before Smart returned with
the marijuana. And the jury heard the testimony about Slater's and Heather's potential
intoxication, apparently factored this into their credibility determination, and convicted
Edwards anyway.


          Moreover, Young's testimony that Edwards asked, "Who says I killed whitey?"
despite Young not disclosing the victim's race, is influential, as is Brown's testimony that,
upon arrest and without prompting, Edwards asked, "What? Did I rob someone? What?
Did I kill someone?"


          In a similar vein, the jury heard McAtee's testimony that Ostrander, Edwards'
girlfriend, said that Edwards and his friend Clay "talked a lot about ripping people off for
weed" and that on February 19, 1996, Edwards was out of town really late and claimed
he "[j]acked them, them mother fuckers" meaning that he "screw[ed] over" someone and
"st[ole] someone's weed."


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        Also as in LaPointe, during closing at Edwards' trial, the defense specifically
highlighted the lack of physical evidence connecting Edwards to the crime scene.
Defense counsel told the jury: "Let's go through the physical evidence they got that ties
Mr. Edwards to this crime. They got nothing. Absolutely nothing." The jury convicted
anyway—no doubt because of the abundance of other evidence, including the eyewitness
testimony, Edwards' own incriminating statements, and McAtee's testimony that
Ostrander said Edwards bragged on the day of the murder about ripping someone off for
weed.


        Finally, the defense may argue that there is a distinction between the jury hearing
of the lack of physical evidence at the original trial, and the test results presented here
which showed there was none of Edwards' DNA at the scene. We find this distinction
does not matter under the applicable standard of review because of the considerable
amount of nonphysical evidence placing Edwards at the scene.


        In light of all of the above, the district judge did not abuse her discretion by
concluding that there was no "reasonable probability" the DNA results would have
changed the original trial's outcome.


                                         CONCLUSION


        We affirm the district judge's denial of Edwards' motion for a new trial.




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WILSON, J., not participating.
MICHAEL E. WARD, Senior Judge, assigned.1
DAVID WILLIAM ROGERS, District Judge, assigned.2




1
 REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,600
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Chief Justice Lawton R. Nuss.
2
 REPORTER'S NOTE: District Judge Rogers was appointed to hear case No. 120,600
vice Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of
the Kansas Constitution.

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