Blackert v. State ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MATTHEW C. BLACKERT, )
)
Appellant, )
)
v. ) Case No. 2D13-3325
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed July 9, 2014.
Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.
Melissa Montle and Seth E. Miller of the
Innocence Project of Florida, Inc.,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa, for
Appellee.
SLEET, Judge.
Matthew Blackert appeals the partial denial of his motion for
postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853.
Because the postconviction court's denial of the motion as to the victim's clothing is not
supported by competent, substantial evidence, we reverse that portion of the order.
However, we affirm without comment the postconviction court's holding that the testing
should be conducted by the Florida Department of Law Enforcement (FDLE).
After a jury convicted Blackert of five counts of capital sexual battery, the
trial court sentenced him to five concurrent life sentences. At trial, both parties
stipulated that the DNA results from the presumptive testing initially conducted on the
victim's clothing and the assault kit were negative for DNA foreign to the victim. The
State's only evidence implicating Blackert in the sexual battery was the six-year-old
victim's identification of "Uncle Matt" as her assailant.
In his rule 3.853 motion, Blackert sought DNA testing of the sexual assault
kit and the clothing collected from the victim. He argued that additional DNA testing of
the victim's clothing was necessary because semen may still exist on the victim's
clothing despite the pretrial negative presumptive tests and that testing of that semen
would produce a DNA profile indicating the genetic identity of the perpetrator. The
postconviction court granted the motion as to the sexual assault kit, but denied the
motion as to the victim's clothing. The court found that the clothing was not likely to
yield evidence that would exonerate Blackert because "the record reflected that there
may have been innocent reasons for the presence of other male biological material on
the clothing," and that there may be a chain of custody issue as to the clothing.
Under rule 3.853, "DNA testing procedures should be allowed if the results
would create a 'reasonable probability that the defendant would have been acquitted if
the DNA evidence had been admitted at trial.' " Dubose v. State, 113 So. 3d 863, 864
(Fla. 2d DCA 2012) (quoting Knighten v. State, 829 So. 2d 249, 252 (Fla. 2d DCA
2002)). We agree with the circuit court's finding that the presence of foreign DNA alone
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on the victim's clothes would shed no light on Blackert's guilt or innocence; both parties
agree that the victim had innocent contact with the other male occupants of Blackert's
home and that her clothing could contain their DNA. However, we agree with Blackert
that the presence of semen on the victim's clothing could only belong to her attacker.
See Cardona v. State, 109 So. 3d 241, 247 (Fla. 4th DCA 2013) (explaining that DNA
testing of physical evidence that could reasonably belong to the perpetrator and that
was linked to the alleged crimes was required).
The record indicates that the victim wore the clothing before, during, and
after the sexual battery. Blackert's expert testified that the negative results of the
presumptive tests conducted by FDLE at the time of Blackert's trial are not conclusive
and that STR and mini STR DNA testing could pinpoint DNA not identified by the
presumptive tests. The expert also testified that there was a likelihood that semen
would be found on the clothing given the facts of this case. Therefore, the circuit court's
finding that testing of the victim's clothing was not likely to produce evidence that would
result in acquittal was erroneous.
At the evidentiary hearing on Blackert's motion, the parties noted that the
evidence bag containing the victim's clothing was slightly torn. However, neither side
raised a chain of custody issue and Blackert's expert testified that contamination was
unlikely to affect testing of the clothing. Therefore, the postconviction court's finding that
there was a potential chain of custody issue as to the victim's clothing was not
supported by competent, substantial evidence. See id. at 245.
Accordingly, we reverse and remand for DNA testing of the victim's
clothing.
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Affirmed in part, reversed in part, and remanded with instructions.
ALTENBERND and WALLACE, JJ., Concur.
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