State v. Donovan

DANA, J.

[¶ 1] Pursuant to 15 M.R.S.A. § 2138(6) (2003) and M.RApp. P. 19(a), we authorized Daniel Donovan’s appeal from an order issued by the Superior Court (Kenne-bec County, Atwood, J.) denying his post-conviction motion for DNA analysis and granting the State’s motion to dismiss.

[¶ 2] Donovan contends that the Superi- or Court erred in concluding that his identity as the perpetrator of the crime was not at issue during trial. 15 M.R.S.A. § 2138(4)(E) (2003). The State contends that the Superior Court erred in concluding that “[t]he evidence sought to be analyzed [was] material to the issue of [Donovan]’s identity as the perpetrator of ... the crime .Id. § 2138(4)(A). We conclude that Donovan met the requirements set forth in both sections and therefore vacate the court’s judgment.

I. BACKGROUND

[¶ 3] On the night of June 21, 1994, Donovan, his girlfriend Robyn Reed, and two others met at Donovan and Reed’s home to celebrate Reed’s recent divorce. After a series of disturbances and police involvement at the home, in the early morning hours of June 22, 1994, the police arrested Donovan. Reed told the police that Donovan had raped her.1

[¶ 4] Donovan was arrested and the sweatpants he was wearing were taken for evidentiary purposes. Reed was taken to the hospital where her underwear and the blanket she was wrapped in were taken to preserve any evidence on them. During *774this initial visit to the hospital, Reed did not consent to a physical examination, but on her return to the hospital hours later, she was examined and evidence from the examination was preserved. A used condom found in the kitchen trash on the evening of June 22 was also taken as evidence.

[¶ 5] Donovan argued at trial that he did not have sexual intercourse with Reed on the morning of June 22, 1994. Allison Gingrass, a forensic chemist at the Maine State Police Crime Laboratory, having analyzed several items of physical evidence, testified about possible identification of the individual who deposited semen found on Reed’s external genitalia during her second hospital visit and in the condom found in Donovan’s kitchen trash can.

[¶ 6] Gingrass concluded that at least some part of the mix of blood and semen on a swab containing fluid taken from Reed’s external genitalia belonged to an individual in Reed’s blood group. She testified that, in a mixture of fluids, a more prevalent fluid can mask other fluids making it difficult to determine if a different blood group is also present. Donovan is of a different blood group from Reed and no evidence of his blood group was identifiable on the swab.

[¶ 7] Gingrass also testified that the semen in the condom found by the police in Donovan’s kitchen trash can came from someone in Donovan’s blood group, and that a pubic hair found in the condom was similar to a sample taken from Donovan and dissimilar to a sample taken from Reed. She testified that it could not be determined when the condom was used.

[¶ 8] The State, in its closing, referred to the chemical analysis, reiterating that Donovan’s blood group was consistent with that of the semen in the condom, and also argued that Donovan attempted to conceal the condom in the trash.

[¶ 9] A jury found Donovan guilty of gross sexual assault (Class A)2 and three other crimes. Donovan appealed from the decisión and requested leave to appeal his sentence. We affirmed Donovan’s convictions, and denied him leave to appeal his sentence. The Superior Court granted Donovan’s motion to preserve the evidence. In 1999, the Superior Court also conducted a post-conviction review hearing on Donovan’s claim of ineffective assistance of counsel and found against him.3

[¶ 10] ■ In 2002, Donovan filed a post-conviction motion for DNA analysis. He sought to have several pieces of evidence analyzed.4 In his motion, in addition to again denying that he had sexual intercourse with Reed on the morning of June 22, 1994, Donovan contended that Reed had consensual sexual intercourse with another individual between her first and second visits to the hospital on June 22, and that that individual was responsible for the semen on the swab.

[¶ 11] In denying his motion and in granting the State’s motion to dismiss, the Superior Court concluded that, contrary to the State’s contention, Donovan had presented prima facie proof that the evidence he sought to analyze was, pursuant to section 2138(4)(A), material to his identity as the perpetrator of the gross sexual assault. The court further concluded, however, that *775Donovan failed to present prima facie proof that, pursuant to section 2138(4)(E), identity was at issue during the trial. This appeal followed.

II. DISCUSSION

[¶ 12] For the first time, we interpret the meaning of Maine’s post-conviction DNA analysis statute. 15 M.R.S.A. §§ 2136-2138 (2003). We review the Superior Court’s interpretation of the statute de novo. State v. Shepley, 2003 ME 70, ¶ 9, 822 A.2d 1147, 1150. “In interpreting a statute, [w]e look first to the plain meaning of the statutory language as a means of effecting the legislative intent. Unless the statute itself discloses a contrary intent, words in a statute must be given their plain, common, and ordinary meaning .... ”5 Id. ¶ 12, 822 A.2d at 1151 (internal citations omitted) (alteration in the original).

A.Title 15 M.R.S.A. § 2138(4)(A): The Evidence Sought to Be Analyzed Is Material to the Issue of Identity

[¶ 13] Maine’s post-conviction DNA analysis statute requires a court to order DNA analysis if the individual seeking analysis presents prima facie evidence that:

A. The evidence sought to be analyzed is material to the issue of the person’s identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction;
B. A sample of the evidence is available for DNA analysis;
C. The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced or altered in a material way;
D. The evidence was not previously subjected to DNA analysis or, if previously analyzed, will be subject to DNA analysis technology that was not available when the person was convicted; and
E. The identity of the person as the perpetrator of the crime that resulted in the conviction was at issue during the person’s trial.

15 M.R.S.A. § 2138(4)(A)-(E).

[¶ 14] Athough we agree with the Superior Court that Donovan met the requirement set forth in section 2138(4)(A), we discuss “materiality” so as to eliminate any confusion regarding this statutory provision.

[¶ 15] The State contends that because Donovan was the only person present with Reed at the time of the alleged rape and that because a finding that the semen was not Donovan’s would not “exonerate him of committing the Gross Sexual Assault,” the semen could not be material to the issue of Donovan’s identity as the perpetrator of the crime. We disagree.

*776[¶ 16] This requirement may be met not only when the results of DNA testing could exonerate the defendant, but also when the testing has the “potential to produce new ... evidence” that “tends to significantly advance” the defendant’s claim of innocence. People v. Savory, 197 Ill.2d 203, 258 Ill.Dec. 530, 756 N.E.2d 804, 810, 811 (2001). Donovan contends that the DNA evidence will establish that someone other than he had sexual intercourse with Reed. This potential evidence, “tendfing] to significantly advance” Donovan’s claim that he did not rape the alleged victim and that Reed instead attempted to frame him by having consensual sex with someone else, meets the requirement of materiality set forth in section 2138(4)(A). See id. at 811; accord Anderson v. State, 831 A.2d 858, 867 (Del.2003) (adopting Illinois’s definition of “materially relevant” and applying it to a situation where favorable DNA analysis would not necessarily completely vindicate the defendant).

B. Title 15 M.R.S.A. § 2138(4)(E): Identity Was at Issue During Trial

[¶ 17] The Superior Court, in denying Donovan’s petition for post-conviction DNA analysis, stated that

identity must be an issue that was actually contested, litigated or placed in question at trial. That is simply not the case here. Reed specifically accused [Donovan], and no one else, of rape. His response then, and now, is that no intercourse occurred between them during the specific time she says she was assaulted ....

[¶ 18] The State argues that it used the evidence of the semen at trial to show merely that sexual activity had occurred and to corroborate Reed’s allegation that she had been assaulted, and not to show that she had been assaulted by Donovan. We conclude that Donovan’s identity as the person who sexually assaulted Reed was specifically placed in question during trial when the State called Gingrass to testify about the semen found on Reed’s external genitalia and on the condom found in Donovan’s trash.

[¶ 19] We conclude further that identity may be at issue during a trial even when the alleged victim identifies only the defendant as the perpetrator of a crime but the defendant claims no crime was committed. See, e.g., Anderson, 831 A.2d at 869 (stating that identity was at issue where a father accused of sexually assaulting his daughter denied that any crime occurred); State v. Hockenberry, 316 Ill. App.3d 752, 250 Ill.Dec. 111, 737 N.E.2d 1088, 1092 (2000) (stating that, in spite of the fact that the victim knew and identified the defendant, because the defendant denied engaging in a sexual act with the victim, identity was at issue).

[¶ 20] For the purposes of meeting the requirements set forth in Maine’s post-conviction DNA statute, “[identity is always an issue in a criminal trial unless the defendant admits having engaged in the alleged criminal conduct and relies on a defense such as consent or justification.” Anderson, 831 A.2d at 865.

The entry is:

Judgment vacated. Remanded to the Superior Court for further proceedings consistent with this opinion.

Dissent: CLIFFORD, and RUDMAN, JJ.

. For a more detailed account of the night's events, see State v. Donovan, 1997 ME 181, ¶ 2, 698 A.2d 1045, 1046-47.

. Donovan was convicted of gross sexual assault pursuant to 17-A M.R.S.A. § 253(1)(A) (Supp.1996) (current version at 17-A M.R.S.A. § 253(1)(A) (Supp.2003)).

. This post-conviction review was recorded under a separate docket number: Donovan v. State, CR-98-71 (Me. Super Ct., Ken. Cty., Sept. 10, 1999) (Studstrup, /.).

.He sought analysis of some evidence that ■ was inappropriate. For example, he sought analysis of a sanitary pad, which had no evidence of semen on it at all.

. In interpreting a statutory provision, we must also look to the entire statutory scheme in order to ensure that we achieve a harmonious result. Botting v. Dep’t of Behavioral and Developmental Servs., 2003 ME 152, ¶ 10, 838 A.2d 1168, 1171. Relying on section 2138(8)(B)(1), the State argues that because Donovan denies a rape occurred, he will not be entitled to a new trial even if the DNA analysis excludes him as the source of the semen. See 15 M.R.S.A. § 2138(8)(B)(1) (2003) (arguably providing that a precondition for granting a new trial is when "[o]nly the perpetrator of the crime ... for which [he] was convicted could be the source of the evidence”). In this appeal Donovan argues that there was no perpetrator of a crime. We decline to hypothesize whether Donovan may be denied a new trial pursuant to section 2138(8)(B)(1), but clarify that this section plainly mandates that, should a defendant first succeed in obtaining favorable DNA evidence, he must then meet the requirements of section 2138(8)(B) before being granted a new trial.