State of Maine v. Olland Reese ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 10Docket: 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