MAINE SUPREME JUDICIAL COURT                                                      Reporter of Decisions
Decision: 2013 ME 10
Docket:   Sag-12-162
Argued:   October 26, 2012
Decided:  January 17, 2013

Panel:        SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
              JJ.


                                       STATE OF MAINE

                                                  v.

                                        OLLAND REESE

SAUFLEY, C.J.

         [¶1] In 2003, a jury found Olland Reese guilty of intentional or knowing

murder, 17-A M.R.S. § 201(1)(A) (2012), for killing a sixteen-year-old girl in May

2002. The girl had been struck in the head with a blunt object and buried, with her

wrists bound in duct tape, behind Reese’s mother’s home in Bowdoin.                                We

affirmed the court’s (Warren, J.) judgment of conviction and forty-seven-year

sentence entered after the jury returned its verdict. See State v. Reese, 2005 ME

87, 877 A.2d 1090. Five years after Reese’s conviction, he moved for additional

DNA analysis and for a new trial. See 15 M.R.S. §§ 2136-2138 (2011).1 The

newly available evidence upon which Reese sought a new trial included evidence

that a trace amount of male DNA, which had previously been found in a clipping



   1
     Title 15 M.R.S. § 2138 was recently amended, though not in any way that is relevant to this appeal.
See P.L. 2011, ch. 601, § 13 (effective Aug. 30, 2012) (codified at 15 M.R.S. § 2138(12) (2012)).
2

from the duct tape on which a latent palm print was discovered, had been further

analyzed, and that Reese was excluded as the source of that DNA.

        [¶2] Reese now appeals from the court’s (Warren, J.) denial of his motion

for a new trial. He argues that the court erred in reaching findings regarding the

possible contamination of the clipping of duct tape that was tested and subjected to

updated methods of DNA analysis. Reese contends that the court misapplied the

relevant statute, 15 M.R.S. § 2138(10), in assessing how the new DNA evidence

could affect the outcome of the trial.2 We affirm the denial of Reese’s motion for a

new trial.

                                        I. BACKGROUND

        [¶3] The facts supported by evidence presented at the original trial were

described in State v. Reese, 2005 ME 87, 877 A.2d 1090, and we provide some

further detail here. Olland Reese was living at his mother’s house in Bowdoin

during the Memorial Day weekend in 2002. See id. ¶ 2. In the summer of that

year, Reese was charged by indictment with the murder of a sixteen-year-old girl

who was last seen alive when she was dropped off at that house by a taxi. See id.

    2
      In addition to his brief filed through counsel, Reese has also filed his own “supplemental brief” in
which he asserts that the prosecutor knowingly introduced false testimony and withheld evidence in
violation of due process. He bases his argument primarily on (1) a discrepancy in the testimony about
who clipped the portion of the duct tape that was tested and (2) an assertion that the test result showing a
trace amount of male DNA on the tested clipping was not shared with Reese before his 2003 trial. The
record contains evidence, however, that the State’s DNA analyst—not the latent print analyst—clipped
the duct tape for DNA testing, and that the profile showing that a trace of male DNA could be present was
given to Reese’s DNA expert directly, at his attorneys’ request, before his 2003 trial. We do not discuss
Reese’s separately briefed issues further.
                                                                                                           3

¶¶ 2, 3. After Reese pleaded not guilty, a jury trial was held over the course of

thirteen days in 2003.

        [¶4] During that trial, the State offered voluminous evidence that implicated

Reese in the murder. That evidence showed that, on May 26, 2002, the last day

that the victim was seen alive, the victim was dropped off by taxi at Reese’s

mother’s residence while Reese’s mother was away for the weekend and Reese’s

girlfriend, who was the victim’s close friend, was at work. Reese was at the house

when the victim arrived.3 When the girlfriend returned to the house, she noticed

that Reese was agitated, that a hatchet that was normally kept indoors was outside

on the porch, that the interior of the house had been cleaned, that a striped sheet

that had been on the living-room futon was missing, and that Reese was anxious to

leave the house as soon as she arrived.

        [¶5] About one month later, the victim’s body was discovered buried in the

missing striped sheet about 125 yards behind Reese’s mother’s house.                                   The

victim’s blood was soaked into the living-room futon, more of her blood was found

on a wall in the hallway, and her DNA was present on swabs taken from the blunt

end of the hatchet found in Reese’s mother’s house. When Reese was interviewed

by law enforcement on multiple occasions after the victim’s disappearance and

   3
     Reese provided multiple conflicting statements to police about where he was and whether he saw the
victim when the victim arrived at his mother’s house by taxi. At trial, he testified that he was at the house
and saw the taxi outside, but he denied having seen the victim.
4

later after the discovery of the body, he gave three different accounts of what had

happened during the hours when his girlfriend was at work on May 26, 2002.

        [¶6] Relevant to the matters before us today, the State presented evidence

during the 2003 trial that a latent hand print had been discovered on the adhesive

side of the duct tape that was wrapped around the victim’s wrists. Examination

revealed that the print did not match Reese’s prints or any other known samples,

including prints taken from the man Reese offered as the primary alternative

suspect.4 Because the victim’s body had decomposed, the medical examiner was

unable to take prints of the victim’s hands for purposes of comparison.

        [¶7] The jury also heard testimony at trial indicating that DNA testing

revealed contamination of the duct tape clipping. The latent print analyst’s DNA

was found on that section of the duct tape. Although information regarding the

possible presence of male DNA was included in the documents that the State

shared with the defense expert, the jury did not receive any evidence suggesting

that any amount of male DNA may also have been present in the sample clipped

from the tape. The State argued in closing that the print on the duct tape was likely

from the victim.




    4
     Testimony was offered at trial to establish that this alternative suspect was, at the time the victim
disappeared, facing charges that he had raped the victim.
                                                                                  5

       [¶8] After hearing the testimony and considering the physical, photographic,

and documentary evidence, the jury found Reese guilty of murder. See Reese,

2005 ME 87, ¶ 1, 877 A.2d 1090. The resulting judgment was affirmed on appeal.

See id.

       [¶9] In August 2008, Reese filed a postjudgment motion for DNA analysis

and for a new trial pursuant to 15 M.R.S. §§ 2136-2138. Because some testing had

already been conducted by agreement, the court held an evidentiary hearing on

October 10, 2008, at which two witnesses from the State Police Crime Lab

testified.

       [¶10] First, the court heard testimony from the forensic scientist who had

originally identified and analyzed the latent print on the duct tape. She testified

that she had discovered the print on the fifth layer of tape away from the victim’s

skin and that the print did not match Reese’s prints or any known prints supplied

by the State for comparison. When she was analyzing the print in 2002 and 2003,

the protocols called for DNA swabbing to occur before print analysis, though no

swabbing of this evidence had been ordered or undertaken before the duct tape

came to the latent print analyst. Also when the print was analyzed, it was not

customary for new, fresh brushes to be used for taking prints. The brush used to

dust this print had been used in other exams and could have transported cells to the

sample.
6

      [¶11] The DNA analyst from the crime lab then testified that she received

the tape from the latent print analyst after the print had already been discovered

and analyzed. The DNA analyst used sterile scissors to cut out the area containing

the print and clip it into five pieces to fit it into a tube for testing. When tested in

2002 or 2003, the sample contained insufficient DNA to produce a unique profile.

Only five of the thirteen loci needed to identify a profile were present. Those five

loci were adequate, however, to confirm that the sample was contaminated with the

latent print analyst’s DNA. The chart showing the DNA profile, known as an

electropherogram, also contained a small Y blip, which indicated that a trace

amount of male DNA could be present.           These test results were shared with

Reese’s DNA expert before Reese’s 2003 trial. In 2008, that sample was subjected

to additional testing using a newer Y-STR analysis, which isolates the male DNA

profile from a mixed sample. The DNA analyst testified that this analysis provided

an additional four-loci profile that confirmed the presence of male DNA and

excluded Reese as the source of the DNA.

      [¶12] The court also heard testimony on November 6, 2008, from Reese’s

two trial attorneys concerning the effect this new evidence could have had on trial

strategy had it been available before trial.

      [¶13] Before the court entered its decision, Reese moved for additional

DNA testing. In July 2009, the court ordered testing of the duct tape clipping and
                                                                                    7

other identified items such as the victim’s fingernails and swabs that were taken

from the hatchet. In June 2011, the court ordered further swabbing and testing of

the entire remaining strip of duct tape that had bound the victim’s wrists. No new

DNA evidence was discovered on the swabbed duct tape or on the other tested

items.

         [¶14] To receive evidence of the test results and accept final testimony

regarding the motion for a new trial, the court held a hearing on October 21, 2011.

At that hearing, the crime lab’s DNA analyst testified about the test results, and a

professor of biology, offered as a witness by Reese, testified to his opinion that the

trace amount of male DNA on the duct tape was the DNA of the person who left

the print on that tape.

         [¶15] To summarize, the evidence available to Reese and the State and

presented to the jury at the 2003 trial showed that (1) a partial print appeared on

the adhesive side of the fifth layer of duct tape; (2) the print did not match Reese’s

prints or any known samples supplied for comparison, including the prints of the

primary alternative suspect identified by Reese at trial; (3) no prints were available

for comparison with the victim due to the decomposition of the body; and (4) the

DNA testing of the section of tape on which the print appeared was contaminated

with the latent print analyst’s DNA.      Further, although the evidence was not

presented to the jury, both the State’s expert and Reese’s expert had reviewed the
8

electropherogram, which showed the small Y blip indicating that there could be a

trace amount of male DNA in the sample.

       [¶16] The post-conviction Y-STR testing resulted in the discovery of the

following additional evidence: (1) there was, in fact, a trace amount of male DNA

present in the clipping; (2) that DNA was not Reese’s DNA because the four

identified loci of the DNA excluded him as a contributor; and (3) no other male

DNA was discovered in swabs taken from the rest of the duct tape. Neither Reese

nor the State sought or undertook further comparison of the four-loci DNA profile

against any alternative suspects, such as the primary alternative suspect identified

in the 2003 trial.

       [¶17]    Based on the reports of test results, the testimony offered in

connection with Reese’s motion, and the voluminous trial evidence, the court

denied the motion for a new trial. In analyzing the possibility of contamination,

the court observed generally that, “[i]f the other evidence strongly implicates

Olland Reese, the possibility that the YSTR profile resulted from contamination is

increased,” especially because the statute requires consideration of “all the other

evidence in the case,” 15 M.R.S. § 2138(10)(A), (B), (C)(1).

       [¶18] The court determined that the evidentiary record made it impossible to

know whether the DNA came from the person who wrapped the tape around the

victim’s wrists or from contamination of the tape before or after the commission of
                                                                                 9

the crime. The court found that there were multiple ways that the sample could

have been contaminated, including by the latent print analyst’s reuse of the

fingerprint dusting brush in the lab. The court found that contamination could also

have occurred because the smooth side of the fifth layer of tape had not been

covered by another layer of tape, creating a potential that cells were deposited on

the exterior of the tape that the DNA analyst eventually clipped. The photograph

upon which the court relied for its finding shows that the smooth side of the tape

was exposed. The court concluded that the motion for a new trial could not be

granted pursuant to 15 M.R.S. § 2138(10)(A) or (B) because Reese had failed to

produce “clear and convincing evidence” showing that “[o]nly the perpetrator of

the crime or crimes for which the person was convicted could be the source of the

evidence.”

      [¶19] Thus, the court went on to consider the final method for establishing a

right to a new trial based on newly discovered DNA evidence, which authorizes a

new trial if “[a]ll of the prerequisites for obtaining a new trial based on newly

discovered evidence are met.” Id. § 2138(10)(C). One of those prerequisites is

that “[t]he 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.” Id. § 2138(10)(C)(1) (emphasis added).
10

      [¶20] The court was not persuaded that the newly discovered DNA evidence

made a different verdict probable, largely due to the strong evidence of Reese’s

guilt and the limited nature of the additional DNA test results. The court cited the

critical pieces of trial evidence that demonstrated that Reese had committed the

crime. The court also noted that the jury was aware that a partial print had been

located on the duct tape that did not belong to Reese and that the DNA of the

forensic scientist who analyzed the print had been discovered on the tape. The

court concluded that Reese had failed to demonstrate, by “clear and convincing

evidence,” id. § 2138(10), that the test results revealing a trace amount of male

DNA that was not Reese’s “would make it probable that a different verdict would

result upon a new trial,” id. § 2138(10)(C)(1).

      [¶21] Reese timely appealed. See id. § 2138(11); M.R. App. P. 2.

                                 II. DISCUSSION

A.    Standards for Granting a New Trial

      [¶22] We review a court’s factual findings on a motion for a new trial for

clear error. State v. Cookson, 2003 ME 136, ¶ 28, 837 A.2d 101, cert. denied, 543

U.S. 852 (2004). We review the court’s interpretation of the post-conviction DNA

analysis statute de novo. State v. Donovan, 2004 ME 81, ¶ 12, 853 A.2d 772.

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
                                                                                               11

to grant a new trial is reviewed for an abuse of discretion. See Cookson, 2003 ME

136, ¶ 28, 837 A.2d 101.

         [¶23] To obtain a new trial based on newly discovered DNA evidence

obtained through a postjudgment motion for DNA analysis, a defendant must

establish by clear and convincing evidence one of three statutorily identified

reasons for the granting of a new trial. See 15 M.R.S. § 2138(10). Two of these

grounds for granting a motion for a new trial require as a prerequisite a showing

that only the perpetrator of the crime could be the source of the DNA evidence:

         If the results of the DNA testing under this section show that the
         person5 is not the source of the evidence, the person authorized in
         section 2137 must show by clear and convincing evidence that:

                 A. Only the perpetrator of the crime or crimes for which the
                 person was convicted could be the source of the evidence, and
                 that 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 show that
                 the person is actually innocent. If the court finds that the
                 person authorized in section 2137 has met the evidentiary
                 burden of this paragraph, the court shall grant a new trial;

                 B. Only the perpetrator of the crime or crimes for which the
                 person was convicted could be the source of the evidence, and
                 that 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; or


  5
      In this case, Reese is the individual referred to as “the person” within this section.
12

              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;

                    (2) The proffered DNA test results have been discovered
                    by the person since the trial;

                    (3) The proffered DNA test results could not have been
                    obtained by the person prior to trial by the exercise of
                    due diligence;

                    (4) The DNA test results and other evidence admitted at
                    the hearing conducted under this section on behalf of the
                    person are material to the issue as to who is responsible
                    for the crime for which the person was convicted; and

                    (5) The DNA test results and other evidence admitted at
                    the hearing conducted under this section on behalf of the
                    person are not merely cumulative or impeaching, unless
                    it is clear that such impeachment would have resulted in
                    a different verdict.

15 M.R.S. § 2138(10) (emphasis added).

      [¶24]    Because the court in the matter before us determined that the

perpetrator was not the only possible source of the DNA, we address two issues:

(1) whether the court erred in determining that the DNA could have come from a

source other than the perpetrator of the crime, see id. § 2138(10)(A), (B); and (2) if

the court’s finding that the DNA could have come from another source is
                                                                                 13

supported by competent evidence in the record, whether the court erred or abused

its discretion in denying the motion for a new trial pursuant to 15 M.R.S.

§ 2138(10)(C).

B.    Possible Sources of the DNA for Purposes of 15 M.R.S. § 2138(10)(A) and
      (B)

      [¶25] Reese contends that there is only a remote possibility that the DNA on

the tape came from someone other than the perpetrator of the crime because the

print was embedded between layers of the duct tape; the other sources of

contamination would have resulted in DNA being present on other portions of the

tape, which were swabbed but returned negative results; and all of the other

scenarios were purely speculative. Reese also argues that the court improperly

considered the trial evidence of his guilt in determining whether contamination—

rather than contribution from the perpetrator—could have caused the male DNA to

be present.

      [¶26] The court found that the duct tape could have been contaminated after

the commission of the crime because the smooth side of the fifth layer of tape was

not covered by an additional layer of tape. The court acknowledged the latent print

analyst’s trial testimony that the print was found on the adhesive side of the fifth

layer on a portion of the tape, which was not exposed until the analyst peeled the

layers apart, but found that contamination from the smooth side of the fifth layer
14

was possible. Although the DNA contamination of the smooth side would have

had to correspond to the location of the print on the adhesive side of the tape, the

court’s finding that this contamination was possible is not clearly erroneous. Such

a small, trace amount of DNA would not necessarily be present throughout the

tape, and there was some risk of such minor contamination in the field given that

numerous investigators were present at the burial site when the body was

discovered, photographed, and removed.

         [¶27] The court’s ultimate finding has its strongest support, however, in the

alternative possibility of contamination in the laboratory. The sample taken from

the tape is the only piece of evidence that was already known to have been

contaminated with the latent print analyst’s DNA, and additional contamination

could have resulted from the print analyst’s admitted reuse of a fingerprint brush

that had been used to dust prints in other cases or from other contaminants in the

lab at that time. This type of contamination would be consistent with the absence

of DNA evidence on all other portions of the tape because the portion with the

print was the only area that was thoroughly examined, dusted, clipped, and

analyzed.6



     6
      This case demonstrates the conundrum that may be faced by lab analysts, judges, attorneys, and
juries when evidence that was collected and stored pursuant to now-outdated protocols is subjected to
more advanced modes of DNA testing. Although the advances in DNA testing may provide more
information about the DNA present in old samples, the new DNA evidence will not necessarily be
                                                                                                 15

       [¶28]     The prospect of an alternative suspect does not preclude the

possibility that the male DNA resulted from lab contamination given that some

contamination of this particular piece of evidence had already been discovered.

Accordingly, the court did not err in reaching its ultimate finding that the evidence

failed to establish, by clear and convincing evidence, that “[o]nly the perpetrator of

the crime or crimes for which the person was convicted could be the source of the

evidence.” 15 M.R.S. § 2138(10)(A), (B) (emphasis added).

       [¶29] Nor did the court misapply the statute when analyzing paragraphs

(A) and (B) by considering the trial evidence to determine whether the DNA could

only have come from the perpetrator of the crime. See id. The lab workers’ earlier

testimony was highly relevant to the court’s determinations about potential

contamination, and the court did not act outside the confines of the statute in

observing that the other circumstantial evidence of Reese’s involvement in the

crime buttresses the hypothesis that contamination, rather than an alternative

perpetrator, could explain the contribution of a trace amount of male DNA to the

sample. See id. (requiring the court to consider the DNA test results “with all the

other evidence in the case, old and new”).                   Even without considering the

circumstantial trial evidence implicating Reese, however, the finding that the



illuminating on issues related to defendants’ guilt or innocence if the samples were not handled and
preserved using the more rigorous lab practices that are in place today.
16

perpetrator was not the only potential source of the DNA detected in the sample

has ample evidentiary support because the sample was known to have been

contaminated in the lab.

C.    Probability of a Different Result Upon a New Trial for Purposes of
      15 M.R.S. § 2138(10)(C)

      [¶30] Having found that the trace amount of male DNA in the tested sample

could have come from someone other than the perpetrator of the crime, the court

properly proceeded to address the motion for a new trial under the standard set

forth in section 2138(10)(C), which calls for a new trial if, among other

requirements, the newly discovered evidence “would make it probable that a

different verdict would result upon a new trial.” 15 M.R.S. § 2138(10)(C)(1).

      [¶31] Reese argues that the court misapplied the statute by placing undue

emphasis on the evidence presented in the original trial and failing to analyze how

the newly discovered evidence would have changed that trial. Particularly, Reese

contends that (1) the new evidence would have enhanced the credibility of his

alternative-suspect theory in combination with the existing evidence that a

footprint near the body measured size seven-and-a-half to ten—much smaller than

Reese’s size-twelve shoes; (2) the State would not be able to argue, as it did in

2003, that the print on the tape could only have been left by the victim; and (3) if

the State argued that random epithelial cells contaminated the evidence, the
                                                                                    17

reliability of all of the State’s evidence would be viewed as questionable, and the

discovery of the victim’s DNA in the house would become less significant to the

finder of fact.

       [¶32] Although Reese has pointed to several arguments that he would have

made if he had known of the additional DNA evidence, the court did not misapply

the statute, err in its findings, or abuse its discretion in determining that Reese had

failed to demonstrate by clear and convincing evidence that the DNA 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.”          15 M.R.S.

§ 2138(10)(C)(1). The record shows that the trial testimony about the size of the

footprints was unscientific, that the victim remains a possible source of the print on

the tape, and that the crime lab’s contamination of the sample was known to the

jury that convicted Reese. Given the presence of the striped sheet from Reese’s

futon wrapped around the victim’s body; the burial of the body behind Reese’s

mother’s residence; the presence of the victim’s blood on the futon and elsewhere

in the residence; the presence of the victim’s DNA on the blunt end of the hatchet

in the residence; Reese’s agitated behavior when his girlfriend returned from work

on May 26, 2002, to find the house cleaned; and Reese’s eagerness to leave the

residence immediately upon her return, the court acted within the discretion
18

conferred by the statute in determining that a different verdict was not probable.

See id. The court did not err in its findings of fact, misapply the statute, or abuse

its discretion in denying the motion for a new trial.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Christopher K. MacLean, Esq., Elliott & MacLean, LLP, Camden, and
        Olland Reese pro se, for appellant Olland Reese

        William J. Schneider, Attorney General, and Donald W. Macomber, Asst.
        Atty. Gen., Augusta, for appellee State of Maine


At oral argument:

        Christopher K. MacLean, Esq., for appellant Olland Reese

        Donald W. Macomber, Asst. Atty. Gen., for appellee State of Maine



Sagadahoc County Superior Court docket number CR-2002-73
FOR CLERK REFERENCE ONLY
