RENDERED: DECEMBER 22, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1204-MR
HOPE WHITE APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
v. HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 09-CR-00079
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON,
JUDGES.
JONES, JUDGE: Hope White appeals from the Wayne Circuit Court’s order
denying her motion to release evidence for forensic testing pursuant to KRS1
422.285. After our review of the facts and applicable law, we affirm.
I. BACKGROUND
At approximately midnight on July 19, 2008, police discovered Julie
Burchett’s lifeless body in the passenger seat of her vehicle at an abandoned pallet
1
Kentucky Revised Statutes.
mill in Monticello, Kentucky. Burchett had been stabbed to death. From the
position of the body, investigators concluded Burchett had been killed elsewhere
and then moved to the pallet mill.
Police learned that on the day Burchett was stabbed, White had been
told that her boyfriend, Bobby Buster, had been having an affair with Burchett.
That evening, witnesses placed White, Buster, Burchett, and several others at a
party being held at White’s mother’s house. One witness, Jason Miller, described
seeing White confront Burchett about the affair after which Burchett retreated to
the bathroom. Miller testified that after Burchett emerged from the bathroom
White stabbed her with a knife.
White was indicted for murder on August 18, 2009. At her trial, the
jury convicted White of murder and fixed her sentence at thirty years’
imprisonment. White appealed to the Kentucky Supreme Court as a matter of
right.2 After its review, the Supreme Court reversed and remanded for a new trial
because the trial court had erroneously “denied [White’s] request for an instruction
on first-degree manslaughter[.]” White v. Commonwealth, No. 2010-SC-000626-
MR, 2011 WL 6826230, at *1 (Ky. Dec. 22, 2011). In her second trial, a jury once
more convicted White of murder, this time sentencing her to twenty-five years.
2
“Appeals from a judgment of the Circuit Court imposing a sentence of death or life
imprisonment or imprisonment for twenty years or more shall be taken directly to the Supreme
Court.” KY. CONST. § 110(2)(b).
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The Kentucky Supreme Court affirmed this conviction and sentence on appeal.
White v. Commonwealth, No. 2013-SC-000321-MR, 2014 WL 7284295 (Ky. Dec.
18, 2014).
On February 5, 2021, through Kentucky Innocence Project counsel,
White moved the trial court to grant the release of physical evidence held by the
Commonwealth for forensic testing as authorized by KRS 422.285. White
specifically requested DNA testing for the following items: (1) the victim’s
fingernail scrapings; (2) a cigarette lighter discovered on the ground outside the
victim’s vehicle at the pallet mill; (3) a cut hair which was found in a stab wound
in the victim’s right breast; (4) a hair which was found on the tank top worn by the
victim; (5) a grey sweatshirt, found at the pallet mill, which had bloodstains on it;
and (6) a hair found on the same grey sweatshirt. Among other things, White
argued that forensic testing had advanced to the point at which the hair evidence
could now be tested for DNA, which was not available at the time of her trial.
White also argued the earlier results from a test of the fingernail scrapings,
presented to the jury as having no foreign DNA, were actually inconclusive and
warranted a second test. Finally, White contended that the results of the DNA
testing, if exculpatory, would indicate a reasonable probability that she would not
have been prosecuted or convicted at trial.
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In its response to the motion, the Commonwealth disagreed, arguing
that the results from the hair evidence could not be exculpatory and that the
fingernail scrapings had already been tested. Furthermore, the Commonwealth
argued the grey sweatshirt and lighter were unlikely to be related to the case
because they were discovered at a public location.
After briefing on the issue, the trial court entered an order on
September 20, 2021, which denied the motion for DNA testing. Applying KRS
422.285, the trial court determined that the hair evidence “would not, with a
reasonable probability, either exonerate [White], lead to a more favorable verdict
or sentence, or otherwise be exculpatory.” (Record (R.) at 954.) The trial court
explained that, even assuming the hair belonged to someone other than White or
Burchett, it would not exonerate White because there was no way to tell when the
hair was deposited – the presence of the hair merely indicated that Burchett “was
around other people in the course of the day, which was already clear from the trial
testimony.” (R. at 956.) With regard to the grey sweatshirt and the lighter, the
trial court determined their value to the case was speculative at best due to being
discovered at the pallet mill, a public location with significant foot traffic. Finally,
the trial court found that the fingernail scrapings had already been tested and,
contrary to White’s assertions, the results were not inconclusive. Ultimately, the
trial court denied the motion, ruling as follows:
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[N]one of the DNA testing requested would change
anything. Nothing sought by the defendant can exclude
her from the crime scene or have any bearing on the
jury’s verdict. In each of the 6 instances, simply because
someone else’s DNA may be present does not exclude
the defendant from the crime, especially when the
defendant was not convicted based on scientific
evidence.
(R. at 960.) This appeal followed.
II. ANALYSIS
Kentucky’s postconviction DNA testing statute, KRS 422.285, applies
to those who have been convicted of capital offenses, Class A and B felonies, and
violent offenses as designated in KRS 439.3401. KRS 422.285(1). The statute
contains both mandatory and permissive provisions under KRS 422.285(5) and (6),
respectively. Under KRS 422.285(5)(a), “the court shall order DNA testing and
analysis if the court finds . . . reasonable probability exists that the petitioner would
not have been prosecuted or convicted if exculpatory results had been obtained
through DNA testing and analysis[.]” (Emphasis added.) In contrast, the
permissive provision of the statute reads as follows:
After due consideration of the request and any
supplements and responses thereto, the court may order
DNA testing and analysis if the court finds that all of the
following apply:
(a) A reasonable probability exists that either:
1. The petitioner’s verdict or sentence would have
been more favorable if the results of DNA
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testing and analysis had been available at the
trial leading to the judgment of conviction; or
2. DNA testing and analysis will produce
exculpatory evidence[.]
KRS 422.285(6)(a)1.-2. (Emphasis added.)
Aside from provision (a), KRS 422.285(5) and (6) contain nearly
identical language3 on the additional requirements for a court to grant a motion for
DNA testing:
(b) The evidence is still in existence and is in a condition
that allows DNA testing and analysis to be conducted;
(c) The evidence was not previously subjected to DNA
testing and analysis or was not subjected to the testing
and analysis that is now requested and may resolve an
issue not previously resolved by the previous testing
and analysis;
(d) Except for a petitioner sentenced to death, the
petitioner was convicted of the offense after a trial or
after entering an Alford[4] plea;
(e) Except for a petitioner sentenced to death, the testing
is not sought for touch DNA, meaning casual or
limited contact DNA; and
(f) The petitioner is still incarcerated or on probation,
parole, or other form of correctional supervision,
3
We note here that the sole distinction between KRS 422.285(5)(b)-(f) and KRS 422.285(6)(b)-
(f) appears to be an extra “that” found in KRS 422.285(6)(c). This extraneous word is not
material for our analysis herein.
4
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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monitoring, or registration for the offense to which
the DNA relates.
KRS 422.285(5).
In a previous opinion, this Court held that relief under KRS 422.285
requires the trial court to confirm whether “(1) the petition (and supplements and
response), (2) the petitioner, and (3) the evidence . . . each meets the requirements
of the statute.” Owens v. Commonwealth, 512 S.W.3d 1, 7 (Ky. App. 2017). It is
only after addressing these steps that the trial court may reach the final step, “the
more substantive and ultimate question – is there a reasonable probability that the
DNA evidence the petitioner seeks would have made a difference had it been
available at or before trial?” Id.
This “ultimate question,” as evaluated by our Supreme Court, is
whether “the evidence sought would either exonerate the defendant, lead to a more
favorable verdict or sentence, or otherwise be exculpatory.” Bowling v.
Commonwealth, 357 S.W.3d 462, 468 (Ky. 2010), as modified on denial of reh’g
(Mar. 24, 2011). The trial court’s “reasonable probability” analysis must operate
under the assumption that the evidence will be “favorable to the movant.” Id.
However, “[t]his assumption does not mean that the movant gets a free pass simply
because he can allege that the evidence will be helpful.” Id. The movant must
show how the evidence would result in exoneration, a more favorable sentence, or
exculpation. Id. “In the exercise of sound discretion, the trial court must then
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make the call whether such reasonable probability exists, looking to whether such
evidence would probably result in a different verdict or sentence.” Id. With these
principles in mind, we must examine the trial court’s decision as applied to each of
the pieces of evidence requested for DNA testing.
First, White requested DNA testing of the cigarette lighter found at
the pallet mill outside Burchett’s vehicle. The trial court declined to order testing
because the lighter’s connection to the case was tenuous at best. “There is nothing
showing when the lighter was placed at the pallet mill, how long it had been there
or anything about it.” (R. at 958.) We agree. “The trial court properly excluded
testing of DNA that at best could produce mere speculation.” Bowling, 357
S.W.3d at 469.
Second, White requested DNA testing of the victim’s fingernail
scrapings, despite the fact that those scrapings were tested previously. In the
Kentucky State Police forensic laboratory report dated June 10, 2010, the test of
the fingernail scrapings indicated “no DNA foreign to Julie Burchett” was found.
(R. at 224.) However, the report also noted an inconclusive result attributed to
“stutter” at one of the tested loci which was not reproducible.5 As support, White
5
‘Stutter’ is the name for the product of a ‘mistake’ in the [polymerase chain reaction]
PCR process: that is, when the DNA strand being copied during PCR slips and bulges,
and therefore appears to be a DNA peak on a printed electropherogram to be interpreted
by an analyst. Stutter is an artifact, not a real piece of DNA, although it looks like a piece
of DNA (a peak on an electropherogram). Stutter is a well-known phenomenon even in
conventional DNA testing and is usually recognized in routine testing because it is only a
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points to the laboratory technician’s notes, which posited “possible high stutter and
/ or additional DNA.” (R. at 761.) The trial court denied the motion to retest the
scrapings on grounds that only one of the fifteen tested loci indicated stutter, and
the final report was not inconclusive or exculpatory.
Despite White’s assertions to the contrary, the final laboratory report
conclusively determined no foreign DNA was found in the fingernail scrapings.
The statute specifically requires that “[t]he evidence was not previously subjected
to DNA testing and analysis or was not subjected to the testing and analysis that is
now requested and may resolve an issue not previously resolved by the previous
testing and analysis[.]” KRS 422.285(5)(c). The Supreme Court explained it in
this way:
Finally, this evidence must not have been
previously tested for DNA, or if it was tested, the movant
must show that the type of testing now being requested is
qualitatively different and “may resolve an issue not
previously resolved by the previous testing and analysis.”
KRS 422.285[(5)](c) & [(6)](c). By this language, the
legislature made clear its intent not to have successive,
redundant DNA testing requests, and placed a high
burden on a movant to establish that an entirely new
issue is involved. Otherwise, DNA testing, sometimes
certain percentage of height of the real piece of DNA next to it. Stutter phenomena,
however, are problematic with [low copy number] LCN testing because the height of
stutter increases proportionally to a true allele (real piece of DNA) and is therefore
difficult to identify as an artifact as opposed to a real allele.
United States v. Wilbern, 17-cr-6017 CJS, 2019 WL 5204829, at *11 (W.D.N.Y. Oct. 16, 2019),
aff’d, 20-3494-CR, 2022 WL 10225144 (2d Cir. Oct. 18, 2022).
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many years after trial, is limited to the “one bite of the
apple” rule.
Bowling, 357 S.W.3d at 468. The laboratory report indicates that there was a
stutter in testing that could not be reproduced, and this is not enough to disturb the
report’s ultimate conclusion that the scrapings lacked foreign DNA. Furthermore,
KRS 422.285(5)(c) and (6)(c) do not permit successive testing. We discern no
abuse of discretion in the trial court’s denial of White’s request to retest the
fingernail scrapings.
The next three of the six items requested for testing involved hair: the
cut hair found in the victim’s stab wound, the hair found on the victim’s tank top,
and the hair found on the grey sweatshirt. Based on existing precedents, it is
immediately apparent that hair evidence rarely qualifies for DNA testing under the
statute because the result generally will not exclude a defendant. “[E]ven with an
alternate perpetrator theory, the presence of someone else’s DNA [will] not
necessarily be exculpatory.” 357 S.W.3d at 469. Because hair is easily and readily
shed in the course of day-to-day activities, and there is, as of yet, no way to
determine when a hair was deposited in any particular instance, it tends to have
minimal exclusionary value.
In Hodge v. Commonwealth, 610 S.W.3d 227 (Ky. 2020), the
Supreme Court, quoting the Sixth Circuit, pointed out that the hairs of a third party
found at a crime scene could not exonerate Hodge because “the results of the new
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DNA testing cannot exclude Hodge from the crime scene.” Id. at 230 (quoting
Hodge v. Haeberlin, 579 F.3d 627, 636 (6th Cir. 2009)). Similarly, in Wilson v.
Commonwealth, 381 S.W.3d 180 (Ky. 2012), the Supreme Court ruled that testing
hair found inside a vehicle would not be exculpatory because it could not exclude
the presence of the defendant from inside the vehicle; “[a]t most, it would only
show that other people had been inside the car[.]” Id. at 190.
One of the rare contrasting instances of valuable hair evidence may be
found in Hardin v. Commonwealth, 396 S.W.3d 909 (Ky. 2013). In that case, the
Kentucky Supreme Court considered the hair evidence potentially exculpatory
because the victim “was killed following a violent close-range struggle” and “the
unidentified hairs [were] found in the victim’s hand[.]” Id. at 915 (emphasis
added). Context is everything. In Hardin, there was a discernible link between the
hair evidence and an alternate perpetrator which could exclude the defendant. The
Hardin Court considered the evidence to be similar to Bedingfield v.
Commonwealth, 260 S.W.3d 805 (Ky. 2008), in which semen collected from the
victim in a rape case, when subjected to later testing, did not match the DNA of the
defendant. The Supreme Court found this newly discovered DNA evidence was
substantive and exculpatory and, even though not clearly an exoneration,
warranted a new trial. Id. at 814-15.
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Here, the trial court relied on Hodge and Bowling to determine that
DNA testing of the hair evidence in this case could not exclude White as the
perpetrator. Taking the most exculpatory outcome possible from testing, that the
hair belonged to a third party and not the victim or White, the trial court reasonably
determined that there was no indication of when the hair was deposited, and that
the cut hair found in the victim’s stab wound was likely on her shirt at the time she
was stabbed. Even if DNA testing found the hair in the stab wound and the hair on
her shirt belonged to third parties, the testimony in the case suggested that Burchett
was around multiple people on the day of her stabbing, including her attendance at
a party hosted at White’s mother’s home. While the hair could have come from
Burchett’s killer, it is equally likely she could have picked the hair up during a
benign encounter earlier that day. As such, White’s exclusion as the source of the
hair would not be exculpatory. The trial court’s analysis on this point was sound
and we do not appreciate any abuse of discretion with respect to its denial of DNA
testing as to these two pieces of hair evidence.
The trial court’s approach to the grey sweatshirt, as well as the hair
fiber found on that article of clothing, presents more difficult questions. The trial
court took the view that the sweatshirt was found in the pallet mill, a public area,
and so its connection to the case was speculative. We cannot be as sanguine as the
trial court because the grey sweatshirt tested positive for blood which was “too
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limited for further analysis” at the time. (R. at 452-53.) Furthermore, although we
agree that the grey sweatshirt was found in a public area, we cannot ignore the
reasonable inference that a bloodied article of clothing found near the body of a
stabbing victim may have something to do with the crime. Taking the most
favorable assumption to the movant of what DNA testing might uncover, it is
entirely plausible that testing would reveal the blood belonged to Burchett, and
additional DNA on the sweatshirt, or on the hair fiber found on the sweatshirt,
might indicate the involvement of a third party.
However, even though testing might reveal the DNA of a third person
on the grey sweatshirt, precedent requires us to conclude that this is not sufficient
to mandate testing under KRS 422.285. In Moore v. Commonwealth, 357 S.W.3d
470 (Ky. 2011), the Kentucky Supreme Court determined that it was not favorable
enough to the defendant to show that another person’s DNA was found on clothing
worn by the murderer. “Though the tests demonstrated the presence of another
person’s DNA, they did not exclude his DNA.” Id. at 487 (footnote omitted).
We must consider the DNA evidence in light of the evidence at trial,
during which numerous fact witnesses testified to White’s involvement. Jason
Miller testified that White stabbed Burchett multiple times at the party; a witness
who was housed at the jail with White testified that White made multiple
incriminating statements related to Burchett’s murder, allegedly confessing to
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burning a bloody shirt and moving the body with the help of family members; law
enforcement officers who encountered White on the night of the murder testified to
observing blood stains on her shirt and to finding blood stains under a newly laid
floor at White’s mother’s home where Miller testified he saw White stab Burchett;
and other witnesses testified to receiving phone calls from White where she
allegedly conveyed details regarding the discovery of Burchett’s body only known
to the responding officers or someone who had moved the body.
Applying Moore to the present case, even if the blood on the
sweatshirt was found to be Burchett’s, and even if the additional DNA found on
the sweatshirt or the hair fiber belonged to a third party, it “would not necessarily
be exculpatory.” Id. (quoting Bowling, 357 S.W.3d at 469). In fact, it would be
entirely consistent with the evidence at trial indicating that various family members
assisted White in disposing of Burchett’s body. Thus, while such evidence might
inculpate a third party – by moving the body, for example – it would not
necessarily exclude White’s involvement in the murder.
Finally, White urges us to view the trial court’s failure to review the
cumulative impact of the evidence she requested to be tested. Although she
correctly cites Moore for the proposition that a trial court may make separate
“findings as to specific items of evidence,” 357 S.W.3d at 496, she cites no
precedent which requires an analysis of the cumulative potential impact of the
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testing. Moore left the decision up to the “sound discretion of the trial court[,]” id.,
as do we. Additionally, even if the evidence is viewed cumulatively, we cannot
agree that it would be exculpatory. Given the fact witness testimony, we cannot
agree that even if the other DNA evidence uniformly implicated another person
that it would exculpate White. At best, the evidence would only assist in
identifying other individuals who may have been involved in helping White
dispose of the victim’s body.
III. CONCLUSION
For the foregoing reasons, we affirm the Wayne Circuit Court’s order
denying White’s motion for DNA testing pursuant to KRS 422.285.
ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE:
FOR APPELLANT:
Daniel Cameron
Miranda J. Hellman Attorney General of Kentucky
Whitney N. Wallace
Frankfort, Kentucky Harrison Gray Kilgore
Frankfort, Kentucky
BRIEF FOR AMICUS CURIAE, ORAL ARGUMENT FOR
THE INNOCENCE PROJECT: APPELLEE:
Susan Friedman Harrison Kilgore
Tara Thompson Matthew Kuhn
New York, New York Frankfort, Kentucky
Amy Robinson Staples
Shelbyville, Kentucky
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