2012 VT 76


In re Wiley (2011-206)
 
2012 VT 76
 
[Filed 12-Oct-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 76 

 

No. 2011-206

 

In re Timothy D. Wiley


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Windham Unit,


 


Civil Division


 


 


 


May Term, 2012


 


 


 


 


Thomas
  A. Zonay, J.


 

Matthew Valerio, Defender General, Seth Lipschutz,
Prisoners’ Rights Office, and 
  Nicholas Wanger, Legal Intern, Montpelier, for
Petitioner-Appellant.
 
William H. Sorrell, Attorney General, and John Treadwell,
Assistant Attorney General,
  Montpelier, for
Respondent-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.   Petitioner Timothy Wiley appeals the
Windham Civil Division’s denial of his request for DNA testing pursuant to
Vermont’s Innocence Protection Act.  13 V.S.A. § 5561 et
seq.  Following an unsuccessful appeal of convictions for
aggravated sexual assault and lewd and lascivious conduct stemming from charges
that he raped his girlfriend’s daughter, and for obstruction of justice in
connection with threatening and encouraging the mother to commit perjury, State
v. Wiley, 2007 VT 13, 181 Vt. 300, 917 A.2d 501, petitioner claimed
innocence and filed for relief under the Innocence Protection Act. 
Subject to certain statutory conditions, the Act provides a right to
post-conviction DNA testing to demonstrate innocence in support of a bid to
vacate judgment, or to secure a new trial, resentencing, or discharge from
custody.  Id. § 5569(b)-(c). 
Petitioner claims error in the trial court’s conclusion that his anticipated
test results would not have created a reasonable probability of a different
result had they been available at trial.  We affirm the denial of
petitioner’s request on the ground that the testing he seeks is not of any evidence
“obtained during the investigation or prosecution of the crime” for which
innocence is claimed, as required by the Act, rendering his request outside of
the Act’s relief.  Id. § 5561(a). 

¶ 2.            
 The facts may be summarized as follows.  At trial, the victim
testified that petitioner repeatedly raped her when she was a minor living in
the household of petitioner and her mother.  The State bolstered the
victim’s testimony with expert analysis of DNA evidence taken from a stain on
her bed sheet showing that petitioner was most likely the source of semen found
in the stain.[1] 
The analysis also found a partial DNA profile for female epithelial, or skin,
cells in the stain that could neither confirm nor
exclude the victim as the source.  The State also presented the testimony
of the victim’s father, her social worker, and other witnesses, as well as
physical evidence found in the victim’s bedroom, including a sanitary pad used
by the victim that the State argued corroborated her allegation of a sexual
encounter with petitioner during menstruation.  
¶ 3.            
Petitioner’s defense at trial was that the allegations were false, and
that the stain on the victim’s bed sheet was from a sexual encounter between
him and the victim’s mother.  The mother testified that she and petitioner
engaged in intercourse once on her daughter’s bed, although mother could not
say if it happened before her daughter left the house after accusing petitioner
of assault.  Mother neither supplied nor was asked for a DNA sample,
however.  Thus her DNA was never obtained or compared against DNA on the
sheet.  Taped prison conversations between mother and petitioner also
revealed that petitioner encouraged the mother to lie under oath about having
sex with him on her daughter’s bed when mother repeatedly told him she
remembered no such thing.  Wiley, 2006 VT 13, ¶16.  
¶ 4.            
Explaining its guilty verdict, the criminal trial court emphasized that
it found the victim’s testimony “strongly credible” and “abundantly supported”
by the DNA evidence.  The court further explained that it did not believe
mother’s testimony about her sexual encounter with petitioner on the victim’s
bed.  The court considered this claim a product of an “elaborate fiction”
concocted by petitioner.
¶ 5.            
Professing his innocence in the instant proceeding, petitioner argued
that, even in the face of the victim’s testimony, a DNA test result showing
that victim’s mother was either  “conclusively
identified,” or not excluded, as the source of the female skin cells in the
stain would strongly support petitioner’s defense theory.  Petitioner
further asserted that this evidence was “obtained in connection with the
offense that is the basis of the challenged conviction” as required by § 5566(a)(3), because the female epithelial cells were found
on the bed sheet stain seized as evidence.  Finally, he contended that
while § 5566(a) is silent on whether a court may order DNA testing of a
third party, such as the mother in this case, petitioner had a “constitutional
need” for this evidence to prove his innocence which outweighed the limited
privacy interest of victim’s mother.  
¶ 6.            
The civil court reviewing this action for post-conviction relief denied
this request, concluding that petitioner failed to show that the result of the
requested test would have created a reasonable probability of acquittal. 
The court reasoned that, at most, the result would show that petitioner had
intercourse with the mother at some point in time, and could not disprove the
victim’s allegations or otherwise serve to exonerate petitioner.  The
court did not address whether the Act allows a court to order the taking and
testing of new DNA evidence not in the case, or from a nonparty, to support a
claim of innocence.  
¶ 7.            
We note, preliminarily, that this Court has yet to review a trial court
decision on a request for DNA testing under the Innocence Protection Act and,
therefore, has not addressed the proper standard for such review.  Nor
will the standard be resolved here because we need not analyze the court’s
rationale to determine that petitioner was not entitled to the DNA test
requested.  Rather, the trial court’s decision may be affirmed on an
alternative legal ground found in the record.  See In re Handy, 171
Vt. 336, 343, 764 A.2d 1226, 1234 (2000) (“We will
not reverse a lower court’s decision if the record before us discloses any
legal ground which would justify the result” (quotation omitted)).  
¶ 8.            
In this particular case, the language of the
statute cannot escape notice and unambiguously limits the trial court’s
authority to the ordering of DNA analysis of evidence previously obtained and
preserved.[2]  The Innocence Protection Act
consistently refers to the testing of evidence already extant from the
underlying case.  Persons convicted of certain crimes, including
aggravated sexual assault and lewd and lascivious conduct with a child, may
request “forensic DNA testing of any evidence which may contain biological
evidence that was obtained during the investigation or prosecution of the
crime.”  13 V.S.A. § 5561(a), (b)(2)(11),
(14) (emphasis added).  The Act further provides that a trial court shall
grant such a request if it finds that: (1) the test result would have created a
reasonable probability of acquittal at trial; (2) the evidence to be tested is
still in existence; (3) the evidence to be tested was obtained in
connection with the offense that is the basis of the challenged conviction and:
(A) was not previously subjected to DNA testing; or (B) although previously
tested, remains available for additional probative testing; and (4) the chain
of custody of the evidence has been protected.  See id.
§ 5566(a).
¶ 9.            
Absent ambiguity and a compelling reason to read it otherwise, the Act’s
plain language contemplates DNA analysis only of “biological evidence”
contained within evidence already in hand, rather than testing material not in
evidence and yet to be collected.  Id. §§ 5561(a)(1), 5566(a)(3); see also State v. Fletcher, 2010 VT 27,
¶ 10, 187 Vt. 632, 996 A.2d 213 (mem.) (explaining
that, absent ambiguity, a statute’s plain language controls its
interpretation).  Section 5561(a) specifically requires that the
requested testing be of evidence collected during the original investigation of
the crime.  The general criterion that the evidence be
“obtained in connection with the offense that is the basis of the challenged
conviction,” id. § 5566(a)(2), must
be read in light of the more specific requirement of § 5561(a).  See Pearson
v. Pearson, 169 Vt. 28, 36, 726 A.2d 71, 76 (1999) (citing the canon of
statutory construction that a more specific provision controls a more general
one). Reading § 5561(a) with § 5566(a)(3), the Act expresses no right
to a court ordered collection of new samples for DNA testing—material
neither in evidence nor obtained during the investigation or prosecution of the
crime for which a petitioner was convicted—for comparison with evidence already
collected in that case. 
¶ 10.         Petitioner
argues that what he seeks to analyze, the mother’s DNA, should be treated as
evidence obtained in connection with the initial criminal conviction because
she was “closely involved” in the case, having been interviewed during the
investigation and having testified at trial.[3]  In support of his
claim that this Court should apply the Act to authorize sampling of a
nonparty’s body for DNA testing, petitioner cites a decision from the
Massachusetts Supreme Judicial Court ordering DNA testing of a newly discovered
putative suspect to obtain exculpatory evidence in a then-pending
prosecution.  See In re Jansen, 826 N.E.2d 186, 190 (Mass. 2005) abrogated
on other grounds, Commonwealth v. Dwyer, 859 N.E.2d 400 (Mass.
2006).  That decision, as petitioner notes, was based in part on the right
of an accused to offer favorable evidence under the Declaration of Rights of
the Massachusetts Constitution.  This Court, he argues, should read
Article 10 of the Vermont Constitution, which protects a defendant’s right to
“call for evidence in [his or her] favor,” as likewise providing a right to
compel DNA testing of a nonparty.  See Vt. Const. ch. I, art. 10.
¶ 11.         Petitioner’s
argument is unavailing.  The Act does not say what he wants it to
say.  The Massachussetts case invokes state-specific constitutional rights
to criminal trial protections and is inapposite to petitioner’s
nonconstitutional claim for post-conviction relief governed by the express
terms of Vermont’s statute.  Similarly, Vermont’s constitutional guarantee
of petitioner’s right to call for favorable evidence more particularly applies,
in its full context, “in all prosecutions for criminal offenses.”  Id.
(emphasis added)  Nothwithstanding petitioner’s analogy to trial rights in
Massachussetts and his claim to trial rights under Article 10, his trial is
long done.  Petitioner asserted no constitional right to obtain and
compare mother’s DNA in the course of the original prosecution, and such a
constitutional claim at this point is inapplicable to this post-prosecution
claim for relief under the Innocence Protection Act.  
¶ 12.         By
its terms, the Act provides a right to DNA testing of evidentiary material
obtained in the underlying case upon showing of a reasonable probability of a
different trial outcome under two circumstances: where
a person was convicted at a time when DNA technology did not exist, or where
DNA testing was available, but was not done.  13 V.S.A. § 5566(a)(3)(A)-(B).  There may come a
case when it appears that the only way to vindicate innocence is through DNA
testing of newly discovered evidence, such as an alternative suspect unknown
before conviction.  See Jansen, 826 N.E.2d at 190 (explaining that
defendant sought order for putative suspect to provide DNA sample to show that
suspect committed crime for which defendant was charged).  This is not
such a case, but even if it were, the Act in its current form may offer no solution.

¶ 13.         As
currently written, the Innocence Protection Act affords petitioner no right to
test the DNA of mother in this case because the physical sample required was
not evidence obtained during the investigation and prosecution of the crimes
underlying petitioner’s challenged convictions.  Petitioner’s argument
that the stain is evidence “obtained in connection with the offense” as
required by § 5566(a)(3) ignores the context of that section which further
specifies that the necessary sample be previously subject to, or previously
available for, DNA testing for trial, § 5566(a)(3)(A)-(B), as well as the
companion requirement of § 5561(a) that the evidence to be tested under
the Act—here a physical sample from mother—also be “obtained during the
investigation or prosecution of the crime.”  The Legislature included
nothing in the Act to compel seizure of a new evidentiary sample from a
nonparty for DNA testing. On that ground, we affirm the court’s denial
of petitioner’s request for DNA testing in this case. 
¶ 14.         Having
decided petitioner’s appeal on this basis, we do not address his arguments that
the result of the requested testing would create a reasonable probability of a
different result or, that under that circumstance, the statute authorizes the
compelled seizure of an evidentiary sample from a nonparty.[4]
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
 





[1] 
This was expressed in terms of not being able to exclude petititoner as the
source, i.e., that there was a 1:543 trillion chance that the semen was not petitioner’s. 


[2] 
As explained above, petitioner argued below that the female skin cells found on
the bedsheet were obtained in connection with the offense that is the basis of
his challenged convictions, as required by § 5566(a)(3).  He did not,
however, address the statute’s more specific requirement that the evidence to
be tested need be obtained during the investigation or prosecution of such
offense.  Rather, petitioner pointed to § 5566(c)’s requirement of
confidentiality regarding DNA information obtained from “any person” pursuant
to a court order under the Innocence Protection Act as support for his argument
that there was a “constitutional need” to test the victim’s mother—an argument
he does not raise on appeal.  Although argued imperfectly below, both
parties presciently briefed the question of statutory construction on appeal. 


[3] 
Petitioner represented at oral argument, without dispute from the State, that
mother is currently unwilling to supply a sample of her DNA.  


[4] 
Although unnecessary to resolve his appeal, we note that that mother’s DNA is
of dubious relevance, let alone probative value.  The petition proffers no
foundation for the bald assertion that a test could “conclusively identify”
mother as the source of the skin cells found on the daughter’s bedsheet when
the daughter could be excluded.  Moreover, even if the presence on the
sheet of mother’s DNA could be confirmed, she was unable to say whether her
sexual encounter with petitioner on daughters’s bed occurred before her
daughter vacated the house.  
 
 
 
 



