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State v. Bates

Supreme Court of Maine

January 23, 2018


          Argued: October 12, 2017

         Cumberland County Superior Court docket number CR-2001-1160

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Foster Bates

          Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

          MEAD, J.

         [¶1] Foster Bates appeals from a judgment entered by the trial court (Cumberland County, Cole, C.J.) denying his motion for a new trial, which he brought pursuant to the post-conviction DNA analysis statute, 15 M.R.S. §§ 2136-2138 (2017). Bates contends that the court erred or abused its discretion by (1) finding that he failed to show by clear and convincing evidence that new DNA evidence admitted at the hearing on his motion made it probable that a different verdict would result from a new trial; (2) declining to consider evidence pointing to an alternative suspect upon finding that the proffered evidence did not concern the new DNA evidence; and (3) failing to consider "all the other evidence in the case" as required by 15 M.R.S. § 2l38(lO)(C)(1).[1] We discern no error and affirm the judgment.

         I. BACKGROUND

         [¶2] In 2002, after a jury trial, Bates was convicted of the 1994 sexual assault and murder of Tammy Dickson; the facts are reported in our decision affirming the judgment. State v. Bates, 2003 ME 67, ¶¶ 2-8, 822 A.2d 1129. Bates's petition for post-conviction review was denied by the Superior Court in 2007, and we denied his request for a certificate of probable cause to appeal from that judgment.

         [¶3] In April 2008, the trial court [Crowley, J.) granted Bates's motion, made pursuant to 15 M.R.S. § 2137, to conduct post-conviction mitochondrial DNA (mtDNA) testing[2] on several items, including a green sock that had been found in the victim's mouth.[3] See Bates, 2003 ME 67, ¶ 3, 822 A.2d 1129. The court noted that the Maine State Police Crime Laboratory did not conduct mtDNA testing itself, but the laboratory had an arrangement with the FBI to perform the test. In April 2010, the Crime Laboratory submitted a report to the court. The report stated that the green sock was "not tested at this time. The FBI laboratory will not perform Mitochondrial DNA analysis on potential epithelial or 'touch' DNA extractions." The report noted that the sock "remain[ed] at the Crime Laboratory and [was] available for possible future testing."

          [¶4] In 2011, by agreement, Bates retained Bode Technology, an independent laboratory in Virginia, to conduct additional DNA testing on certain items, including the green sock. Bode reported that a Y-STR profile[4]obtained from the sock's exterior was consistent with a mixture of three or more individuals, including a major contributor who could not have been Bates or William Quinn, a man discussed at trial who had an "on again/off again" relationship with the victim and who found her body. W. ¶ 2. Bode reported that the victim's ex-husband "cannot be excluded" as the major contributor, but its report did not calculate the probability that he was the contributor. As to the minor contributors, the report drew no conclusion as to whether any person was included or excluded "[d]ue to the limited data obtained."

         [¶5] Bode reported that a partial Y-STR profile taken from the interior toe region of the sock was consistent with a mixture of at least two individuals from which Bates could be excluded, and from which the victim's ex-husband and Quinn, among others, "cannot be included or excluded." Once again, the report did not include any probabilities that a particular male was a contributor to the mixture.

          [¶6] In February 2014, Bates moved for a new trial pursuant to 15 M.R.S. § 2138(10), asserting that the DNA found on the sock, when considered with all of the other evidence in the case, made it probable that a retrial would result in a different verdict. In December 2014, the hearing on the motion was continued at Bates's request while he investigated a new alternate suspect who allegedly made incriminating statements near the time of the murder. A report from Bode released in April 2015 stated that the new alternate suspect was excluded as a major contributor to the Y-STR profile on the exterior of the sock, and could not be included or excluded as a contributor to the partial mixture on the interior toe region.

         [¶7] The court held an evidentiary hearing on June 13, 2016, and took the matter under advisement. It subsequently denied the motion by written order, concluding that Bates "has not presented such clear and convincing evidence that the new evidence, in light of all of the evidence already in the record, would create a different result in a new trial." Bates appealed.

         [¶8] Four months after filing his notice of appeal, Bates moved for further findings of fact and conclusions of law in the trial court and moved this Court to allow the trial court to act on the motion while his appeal was pending. We denied the request.

          II. DISCUSSION

          A. New ...

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