IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,500
KENNETH E. HADDOCK,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. Evidence not presented to the trial court will not be considered for the first time on appeal.
2. The provisions of K.S.A. 2005 Supp. 21-2512 are interpreted and applied.
3. Because of its scientific precision and reliability, DNA testing can in some cases conclusively establish guilt or innocence of a defendant. In other cases, DNA may not conclusively establish guilt or innocence but may have significant probative value to a finder of fact. K.S.A. 2005 Supp. 21-2512(f) provides for certain mandatory dispositions and procedural requirements depending upon whether the results of the additional DNA testing are (1) unfavorable; (2) favorable; or (3) inconclusive.
4. If the results of additional DNA testing are unfavorable to the defendant, the district court shall dismiss the petition and make an appropriate order for the assessment of testing costs.
5. DNA testing favorable to the defendant requires the court to hold a hearing notwithstanding any provision of Kansas law that would bar such a hearing, such as the time constraints imposed for motion for relief from judgment or a motion for new trial. K.S.A. 2005 Supp. 21-2512 contemplates a full due process hearing with notice and an opportunity to be heard in a meaningful manner. At the conclusion of the hearing, the court, based upon the evidence, exhibits or documents entered into evidence, and arguments of counsel, shall enter any order that serves the interests of justice, including, but not limited to, an order: Vacating and setting aside the judgment; discharging the petitioner if the petitioner is in custody; resentencing the petitioner; or granting a new trial.
6. When DNA testing establishes the innocence of a criminal defendant, the court should enter an order vacating and setting aside the judgment of conviction and enter an order discharging the petitioner if the petitioner is in custody. Before such orders are entered, the hearing judge must consider the favorable results with the evidence of the case which resulted in the underlying judgment. The court must then determine that guilt cannot be sustained because the new evidence completely exonerates the defendant or the new DNA testing results are so highly exculpatory so as to show a complete lack of evidence to establish that a rational juror, based upon all evidence, could not fairly find the defendant guilty beyond a reasonable doubt. Stated another way, in light of the favorable results, the evidence establishing the guilt of the defendant is doubtful in character and completely lacking in probative value with the result that a rational factfinder could not fairly find the defendant guilty beyond a reasonable doubt.
7. In almost all cases where the DNA testing evidence is favorable, except in those cases where the court after hearing has entered any other order to serve the interests of justice, the hearing judge is faced with a decision of whether to grant a new trial based upon the favorable results.
8. The standard to be applied by the district court in deciding whether to grant a new trial based on favorable DNA testing is for all practical purposes the same standard applied when a district court decides whether to grant a new trial based upon newly discovered evidence. The difference is that the defendant in a case such as this need not conform to any time requirements or establish that the evidence was newly discovered. Under the provisions of K.S.A. 22-3501 the court on motion of a defendant may grant a new trial to him or her if required in the interests of justice.
9. In considering whether to grant a new trial based on favorable evidence under K.S.A. 2005 Supp. 21-2512(f)(2)(iv), the evidence must be of such materiality that a reasonable probability exists that it would result in a different outcome at trial.
10. Where the DNA testing results are inconclusive, the district court is granted discretion whether to order a hearing. The purpose of such a hearing is to determine whether there is a substantial question of the defendant's innocence.
11. Under the facts of this case, the DNA testing results of the hair, fingernail, and eyeglasses, while not conclusively establishing Haddock's innocence, are favorable in part, in that they supplied a favorable inference that someone other than Haddock could have committed the murder.
12. Where the results of additional DNA testing are favorable, as in this case, the district court is required to conduct a hearing pursuant to K.S.A. 2005 Supp. 21-2512(f)(2) and enter an appropriate order.
13. The three components or essential elements of a Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), prosecutorial misconduct claim are: The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
14. A conviction obtained by the introduction of perjured testimony violates a defendant's due process rights if (1) the prosecution knowingly solicited the perjured testimony or (2) the prosecution failed to correct testimony it knew was perjured.
15. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, defendant must establish (1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived defendant of a fair trial. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. To show prejudice, the defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
16. The decision not to have the DNA evidence independently tested may be a tactical decision rather than a deficient one.
17. A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied him or her a fair trial, thereby requiring reversal. The second step is a particularized harmlessness inquiry for prosecutorial misconduct cases.
18. In the second step of the two-step analysis for alleged prosecutorial misconduct, the appellate court considers three factors to determine if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.
19. Calling the defendant a liar is outside the wide latitude allowed to prosecutors in closing arguments. The prosecutor's comments in this case, repeatedly characterizing the defendant as lying, were clearly improper, and defense counsel was thus deficient in failing to object to these improper comments at trial. However, neither the prosecutorial misconduct itself nor the deficient performance of counsel amounted to prejudicial error.
20. Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial. Some complained-of prosecutorial statements were not objected to at trial. If the claimed error has been determined to implicate a defendant's right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the right to due process under the Fourteenth Amendment to the United States Constitution, the issue will be addressed.
21. An appendix to an appellate brief is not a substitute for the record on appeal, and material so attached will not be considered by this court.
22. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
Appeal from Johnson district court, JAMES FRANKLIN DAVIS, judge. Opinion filed November 9, 2006. Affirmed in part, reversed in part, and remanded with directions.
Richard Ney, of Ney, Adams & Sylvester, of Wichita, argued the cause, and Jessica R. Kunen, of Lawrence, was with him on the briefs for appellant.
Richard G. Guinn, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, and Paul J. Morrison, district attorney, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Kenneth E. Haddock was convicted of first-degree murder, and his conviction was affirmed on direct appeal in State v. Haddock, 257 Kan. 964, 897 P.2d 152 (1995). In this case, he appeals the denial of his K.S.A. 60-1507 motion alleging ineffective assistance of counsel and prosecutorial misconduct and his motions for new trial based on postconviction DNA testing under K.S.A. 2005 Supp. 21-2512. This court transferred the case on its own motion pursuant to K.S.A. 20-3018. We affirm the denial of the K.S.A. 60-1507 motion and reverse and remand for further proceedings pursuant to K.S.A. 2005 Supp. 21-2512.
Evidence at Criminal Trial
In 1993, Haddock was convicted of the first-degree murder of his wife who was found beaten to death and lying under a pile of wood in the garage of their home. His conviction was affirmed on direct appeal, where this court set forth the following relevant facts concerning the trial in this case:
"The five-day trial included over 40 witnesses and 100 exhibits. Although Haddock does not challenge the sufficiency of the evidence, a background review is helpful in understanding the issues presented.
"Haddock has a college degree in agriculture education. He moved into banking and finance, eventually serving as president of two Kansas banks. In 1986, he started his own company, First Finance, Inc., which purchased loans from the FDIC and other institutions. He described First Finance as 'very profitable.'
"Although Haddock and his three teenage children testified that their family was loving and supportive, a dark cloud loomed overhead. For two years preceding the murder, Haddock and his family lived with uncertainty and anxiety caused by his indictment and conviction for federal bank fraud.
"The Federal Bank Fraud Case
"In September 1990, Haddock was indicted in federal court for bank fraud and related offenses arising from transactions in 1987. A jury convicted him on 10 counts. Haddock was sentenced to 42 months' imprisonment. He remained free on bond pending appeal. On appeal, the Tenth Circuit affirmed his conviction but remanded for resentencing. United States v. Haddock, 956 F.2d 1534, modified on reh'g 961 F.2d 933 (10th Cir.), cert. denied [506 U.S. 828] (1992); see also United States v. Haddock, 12 F.3d 950 (10th Cir. 1993) (collateral claim of ineffective counsel denied; remanded for resentencing); United States v. Haddock, 50 F.3d 835 (10th Cir. 1995) (error found in restitution order of $76,000; remanded for recalculation of restitution). Haddock's first resentencing in the federal case was scheduled for December 18, 1992.
"Thus, on November 20, 1992, the day of the tragedy, Haddock's conviction had been affirmed and he was awaiting resentencing. Haddock's attorney met with an Assistant United States Attorney and a probation officer from 10:30 a.m. to noon that day to negotiate matters relevant to the upcoming sentencing hearing. Haddock did not attend the meeting.
"Haddock and his children admitted that the federal bank fraud case was stressful for them. In May and June of 1991, Haddock's wife, Barbara, spoke with two social workers, expressing 'anxiety' and 'anger' about the federal prosecution. However, neither social worker recalled Barbara mentioning any fear of violence from her husband. Haddock spoke with a marriage and family therapist in March 1992 about stress-related breathing problems experienced by his oldest daughter. He told the therapist that Barbara brought up the federal case 'almost any time he would get in her presence,' whereas he 'tended to shy away from talking about it' because it was a 'real hard thing to talk about.'
"Barbara's best friend, Kathy Finkleston, testified that she and Barbara often discussed the federal case and that Barbara would get very upset and emotional, 'not knowing what was going to happen or what she was going to do.' Finkleston said she believed Barbara was 'becoming very frustrated' with the expense and duration of the federal case, and that 'she was getting angry with Ken that it kept going on and on and on.' Barbara told Finkleston that the retainer alone for Ken's Washington, D.C., lawyer was $40,000, and that whenever the lawyer asked for more money he wanted at least $25,000.
"The Hours Preceding Barbara's Death
"Barbara's last day began early. She met Finkleston for breakfast at 6:30 a.m., something the two of them did often. She and Finkleston talked about Barbara's upcoming surgery [hysterectomy], about their children, about Christmas, and then about the federal case and the meeting of attorneys scheduled for that day. Finkleston remembered that when Barbara brought up the federal case, she said, 'Oh, my stomach just took a flip.' Barbara then said that Haddock's lawyer was wanting additional money and that Barbara was concerned that they might have to dip into a savings account they had set aside for their son's college education. Overall, however, Finkleston believed that Barbara was in 'pretty good spirits.'
"Barbara worked until around noon at her job as a triage nurse. She ran a couple of errands on her way home. Haddock went to work at First Finance from about 9:30 a.m. to 1:00 p.m., and then went home for lunch. Haddock and Barbara arrived home at the same time, around 1:20 p.m.
"According to Haddock, when he first arrived home he and Barbara brought in groceries from her car. She told him the garage door had a problem, so he worked on it for a few minutes. He then ate a light lunch as Barbara made chili for the weekend. They discussed Barbara's upcoming surgery and their younger daughter's plans to have friends over that night. Haddock said he brought in the mail at about 1:45 p.m., then started a fire in the fireplace. The last thing he said he did before leaving was to throw two articles of clothing in the hallway by the washing machine. One was a white shirt he had been wearing; the other was a pair of slacks from his bedroom. Haddock testified that the shirt was missing a button and the slacks needed to be let out in the waist, and that Barbara said she would mend them. Haddock said he left home at approximately 2:00 p.m.
"Discovery
"At around 3:20 p.m., the youngest daughter arrived home from junior high school. Barbara's car was in the driveway and the garage door was closed. She entered through the front door, noticed some chili cooking, saw the television on, and called out for her mother. She was not concerned when she heard no reply, as nothing appeared out of the ordinary. Within minutes, the older daughter arrived home from high school.
"The daughters eventually found Barbara in the garage buried under a pile of wood. They called 911. The older daughter summoned the neighbors, the Hartleys, who were registered nurses. When the Hartleys arrived, they cleared the remaining logs off of Barbara and checked for a pulse or respiration, but found neither.
"The police arrived at 4:08 p.m. Haddock did not arrive home until 4:20 p.m. A daughter had called her father's office and left a message that he needed to come home right away. A neighbor and a police officer met Haddock at his car and escorted him inside through the front door to the living room. He embraced his daughters, who were crying. Haddock later tried to walk into the garage, but he was quickly stopped and told to stay inside the house. The police told Haddock that because his wife's death was 'unattended,' a police term meaning unattended by a physician, standard procedure required that the death be handled like a homicide until homicide could be ruled out.
"Investigation
"Detectives at the scene quickly suspected foul play. Barbara's injuries were unlike those that might be expected from falling wood. In an autopsy, Dr. Bonita Peterson found bruises and abrasions on Barbara's hands and arms, consistent with defensive wounds. She also observed bruises and lacerations on the face, and massive trauma to the back of the head, which she thinks resulted from 6 to 12 blows with a blunt object.
"Other evidence revealed an orchestrated crime scene. Detectives found a separate pool of blood a substantial distance from Barbara's body. Blood spatters and smears suggested that Barbara had been moved from this separate pool to the location under the wood pile. Blood was also found on Barbara's car, which was parked outside the garage. Drip patterns on the car suggested that the car had been moved after the blood was deposited. The location and nature of the blood spatter evidence on the car, when considered together with other blood spatter evidence inside the garage, suggested that the beating occurred while the car was in the garage. Tomatoes were also splattered in various places on the garage floor. Nothing was missing from the home.
"At approximately 6:00 p.m., as detectives continued searching for clues at the home, Haddock and his son accompanied Detective Larue to the Olathe Public Safety Center for questioning. In the interview, the detective observed and photographed two scratches on Haddock's right wrist that appeared fresh. Police also obtained Haddock's shoes from him at the center.
"During the evening, the detectives at the center received updated information from the crime scene suggesting that the death was not accidental. The questioning of Haddock gradually grew more pointed and accusatory until Haddock finally broke it off and was taken home. Haddock never confessed. He was arrested five days later.
"Physical evidence obtained from Haddock and from the scene played a key role in his identification as the killer. A small amount of blood was found on a shirt and pair of pants belonging to Haddock located on the floor inside the house. The shoes Haddock wore to the police center also had traces of blood on them. The blood on the clothing and shoes had DNA markings that matched Barbara's blood and excluded Haddock's blood. Blood spatter patterns were consistent with the pants and shoes being worn at the time the blood was deposited. Detectives also discovered two hairs clutched in Barbara's right hand. One hair showed DNA markings consistent with Haddock and inconsistent with Barbara, the other produced no marking.
"The State's Theory
"The State's theory was that Haddock and Barbara were experiencing marital discord because of the federal bank fraud case, which led to a fight and then to the killing. The State argued that the 6 to 12 blows to the back of Barbara's head, some of them delivered after she was lying on the floor (according to blood spatter patterns), provided evidence of premeditation. The State asked the jury to infer that Haddock went from 'acting on impulse' to realizing that he had gone too far to turn back and thus knew 'exactly what he was doing' in administering the multiple, lethal blows. Haddock then orchestrated the garage scene in an attempt to make the death appear accidental, hoping there would not be a rigorous investigation.
"Under the State's theory, the attack probably occurred around 2:00 p.m. because a neighbor testified that she heard a strange, muffled, sound from outside, like wood falling on concrete, shortly after 2:00 p.m. that afternoon. Although no murder weapon was conclusively established, the State introduced evidence that the fireplace poker appeared to have been wiped clean, unlike the other fireplace tools in the set and unlike how the Haddock children remembered the condition of the poker.
"Haddock's Defense
"Haddock denied killing his wife, advancing an alibi defense. A Wendy's restaurant sack found in his van had a receipt showing a purchase at 3:18 p.m. the day of the killing. The wristwatch that Barbara was wearing, which appeared to have been broken during the attack, showed a time of 3:16 p.m. Wendy's was more than 10 minutes away from the Haddock home. Haddock testified that he left home at approximately 2:00 p.m., went to the Olathe Public Library to do research for his federal case, then to Wendy's for a burger and milkshake, then out to look at some property for a possible investment purchase by his company, and then back to the office, where he was immediately told by his secretary to go home.
"As for the DNA evidence obtained from his shoes and the clothes found inside the house, Haddock argued that Barbara's blood could have been transferred to his shoes when he embraced his daughters, who carried their mother's blood from their attempts to help her. He advanced a similar theory (the daughters rushing back and forth from garage to the 911 call) to explain Barbara's blood on his clothes found lying on the floor near the laundry room.
"The State attacked his alibi. The two front desk clerks at the Olathe Public Library who worked that Friday afternoon testified that it was a 'slow afternoon' and that they did not remember seeing Haddock or anyone resembling Haddock in the library. The State introduced evidence of a watchmaker who examined and tested Barbara's watch. He determined that the hands could have been manipulated to show any time after it had been broken. The State argued that the watch was part of the orchestrated crime scene." Haddock, 257 Kan. at 965-71.
Haddock's Relevant Posttrial Motions
On April 23, 1997, Haddock filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and judicial abuse of discretion. On November 6, 1997, Haddock filed a pro se motion to dismiss judgment of conviction alleging among many other claims that the prosecutor failed to disclose exculpatory evidence that pointed to a third-party killer and offered false DNA testimony through its DNA expert, the Laboratory Director of GeneScreen, Dr. Robert C. Giles. On November 20, 2000, Haddock filed a motion for production of evidence for DNA testing requesting that the two hairs found in the victim's right hand, eyeglasses found at the scene, and fingernail scrapings from the victim be submitted for further DNA testing.
A hearing on the motion for production of evidence for DNA testing was held on January 19, 2001. Dr. Dean Stetler reviewed a partial trial transcript of Dr. Giles' testimony and the August 13, 1993, GeneScreen lab report concerning the DNA analysis that had been performed in the case. The 1993 GeneScreen report identified the existence of three DQ Alpha types (also referred to as alleles or genotypes) in the hair of the right hand of the victim (faint 1.1, 1.2, 4). However, the report also provided in relevant part:
"In addition, specimen FOR1519-3639 (hair) typed as a 1.1/4. Due to the presence of the 1.1/4 DQ alpha type and the nature of the testing procedure, it is not possible to determine if a 1.2 type may also be present. The 1.1/4 type matches specimen FOR1519-3351 (blood - K. Haddock) which also typed as 1.1/4.
"The frequency of the DQ 1.1/4 alpha type in three North American populations is as follows:
"Blacks 9.1%
"Caucasians 7.4%
"Hispanics 5.9%
. . . .
"Every individual has two copies of DNA, and therefore has two genotypes. The genotypes determined for each specimen are shown above. If a specimen has only one genotype detected, then that specimen is presumed to be homozygous, meaning both copies of DNA have the same genotype.
"A specimen with more than two indicated genotypes is a mixed specimen coming from more than one person." (Emphasis added.)
At trial, Dr. Giles testified that the typing they achieved on the hair was 1.1/4, which was "consistent with the blood of Mr. Haddock and is inconsistent with the blood of Mrs. Haddock." On cross-examination, Dr. Giles admitted that is was not possible to determine if a 1.2 DQ Alpha type, such as from the victim, was also present in the hair sample.
After reviewing this report and transcript, with regard to the hair found in the victim's hand, Dr. Stetler testified that the DQ alpha analysis report showed the presence of a weak 1.1 allele, a possible 1.2 allele, and a 4 allele. Each individual has at least one allele but no more than two alleles; the victim was a type 1.1, 1.2, and Haddock was a 1.1/4. Dr. Stetler opined that it was significant the 1.1 allele was weak because if both alleles came from the same person, they would be expected to be the same. Dr. Stetler testified that it was unlikely, based on the report, that the hair came solely from Haddock or from a mixture of Haddock and the victim's hair, but it was possible that the hair had come from a mixture of the victim's hair with a third party or a mixture of the hair of Haddock, the victim, and a third party.
Dr. Stetler opined that Dr. Giles' testimony at trial that the hair was inconsistent with the victim and consistent with Haddock was inaccurate or misleading. It was just as likely that the hair came from the victim as it was from Haddock, and only part of the contribution could have been made by Haddock as demonstrated by the presence of the 1.2 allele. Based on the DNA testing used at trial (polymerase chain reaction - PCR), the percentage of the population having Haddock's Alpha type (1.1/4) was 6% to 7%. Dr. Stetler suggested that the more advanced and discriminating Short Tandem Repeat (STR) DNA testing be performed which could pinpoint the DNA to one in several quadrillion.
State's witness Johnson County Criminalistics Laboratory Director and forensic scientist Gary Dirks testified that he was involved in requesting GeneScreen to conduct the DNA testing in 1992 and 1993. Dirks opined that GeneScreen was and remained a representable DNA laboratory. Dirks reviewed the 1993 GeneScreen report generated by Dr. Giles. He acknowledged on cross-examination that the hair would be consistent with the victim's genotype (1.1, 1.2) or a third party with a genotype (1.2, 4) and that further testing could answer some of the questions raised by Dr. Stetler.
In a March 30, 2001, memorandum and order, the district court denied Haddock's K.S.A. 60-1507 motion and his motion for additional DNA testing. The district court relied primarily upon Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494, rev. denied 258 Kan. 859 (1995), in concluding that Haddock had "failed to demonstrate that he would be exonerated of the murder conviction should the DNA evidence be tested as requested." The court found that trial counsel was not ineffective for failing to obtain independent DNA testing because the reasons may have been tactical as in Sanders v. State, 26 Kan. App. 2d 826, 995 P.2d 397 (1999), rev. denied 269 Kan. 934 (2000). Additionally, the court concluded that it need not reach the issues of prosecutorial misconduct or abuse of discretion, as those issues were found to be without merit on direct appeal.
On April 9, 2001, Haddock filed a "Motion, Pursuant to K.S.A. 60-252(b), to Amend Findings and to Make Additional Findings; Objection to Court's Findings and Conclusions." Haddock argued in part that the district court had failed to consider all of the ineffective assistance of counsel and prosecutorial misconduct issues raised in the K.S.A. 60-1507 motion and motion for DNA testing and asked the court for another hearing and to reconsider its previous rulings.
On May 18, 2001, Haddock filed a "Supplemental Briefing in Support of Post-Trial Motions and Request for DNA Testing," citing Harvey v. Horan, 2001 WL 419142 (E.D. Va., unpublished opinion filed April 16, 2001), rev'd 278 F.3d 370 (4th Cir.), reh. denied 285 F.3d 298 (4th Cir. 2002). On July 19, 2001, Haddock filed a "Second Supplement to Post-Trial Motions and DNA Testing Request; Petition for DNA Testing Pursuant to House Bill 2176." This motion referred to K.S.A. 2005 Supp. 21-2512, which became effective on July 1, 2001. Haddock argued he would be entitled to a new trial if the hair in the victim's hand, the glasses found at the crime scene, or the fingernail scrapings contained a third party's DNA or was different from the trial testimony.
On July 31, 2001, the parties filed a joint agreement to allow DNA testing of the hair, the victim's fingernail scrapings, and the glasses. The parties agreed that the testing would be accomplished by Dr. Brian Wraxall, Chief Forensic Serologist of the Serological Research Institute of Richmond, California, who was selected by Haddock. On August 27, 2001, the court ordered DNA testing on these items and the taking of a blood sample from Haddock for comparison purposes.
On April 10, 2002, Haddock filed a "Motion to Dismiss" arguing the DNA testing showed that the hair in the victim's hand came from a third party contrary to the State's expert's testimony at trial. Additionally, Haddock argued that a reanalysis