Court of Appeals of Missouri, Eastern District, First Division
Laura O'Sullivan, Kansas City, MO, for Appellant.
Edmund Postawko, St. Louis, MO, for Respondent.
CLIFFORD H. AHRENS, Judge. Lawrence A. Mooney, P.J., concurs. Glenn A. Norton, J., concurs.
CLIFFORD H. AHRENS, Judge.
Rodney Lee Lincoln (" Movant" ) appeals from the judgment of the motion court that denied his Amended Motion for Release pursuant to section 547.037 RSMo (Cum. Supp. 2004). Movant contends that the motion court clearly erred denying his Amended Motion for Release because DNA testing proved that the expert hair comparison evidence was false, and that he is more likely than not to be innocent, such that no rational finder of fact could fairly find him guilty beyond a reasonable doubt of the crimes. Movant also argues that the State of Missouri should be estopped from pursuing a new theory of the crime that is factually inconsistent with the State's theory of the case. The State responds that the lack of a DNA hair match did not demonstrate Movant's innocence by a preponderance of the evidence, and that it was the eyewitness identification and testimony by one of the victims that was the crux of Movant's convictions. Finding no error, we affirm.
On April 27, 1982, Joanne Tate and her two daughters were at home in a first-floor apartment in a multi-family flat. At approximately 4:00 a.m., an upstairs neighbor heard a loud noise from Tate's apartment. Around 10:00 a.m., Tate's brother and her boyfriend entered the apartment and found her dead, lying face down in a pool of blood. Tate's two daughters, M.D. and R.T., were lying in a bed, covered in blood, both with multiple stab wounds.
M.D. and R.T. were interviewed by the police, and a composite drawing was made and released to the media. Movant was identified by two of Tate's relatives, and M.D., then age 7, identified a photograph of Movant in a photo display. She later identified Movant as her attacker in a four-person lineup at the police station. At trial she testified that on the night of the murder, she woke up when she heard a scream, and she saw her mother laying down on her stomach in a pool of blood near the door to her bedroom. She stated that she saw a naked man, who came over to her bed, picked her up, and carried her to Tate's bedroom, put her on the bed and removed her clothes. She said he tried to get her " to do a few things." He began to hurt her by stabbing her repeatedly, and she tried to play dead until he stopped.
She testified that he washed off the knife, and she hid under R.T.'s bed. She heard him hurt her sister. She stated that she got a good look at the killer when she was in Tate's bedroom. M.D. said that she did not recall his name at that time, but she remembered seeing him prior to that night, and a long time ago, Tate, M.D., and R.T. spent the night at Movant's house, which was across from a park with a playground. She said that Movant's mother and some pets lived at his house. She identified the playground at the park from photos.
M.D. examined photos of Tate's boyfriend and of R.T.'s father, and stated that neither was the man who hurt her. She examined other photos and stated that none of them were the killer. She identified a photo of Movant as the man who hurt her, R.T., and Tate. She recalled identifying Movant in a police lineup and verified that identification using a photo of the police lineup. She identified Movant in the courtroom as the man who hurt her, Tate, and R.T. She explained why she initially told people questioning her that " Bill did it[,]" which was that she was sick and hurt and everyone kept bothering her for a name, so she said " Bill." She stated several times that " Bill" and Movant were the same person, and that at the time of the attacks, she did not really know Movant's name.
Two criminalists employed by the City of St. Louis Police Department, Joseph Crow and Harold Messler, testified at Movant's trial about hair found at Tate's house. Crow testified that he examined a blanket found in Tate's bedroom for hairs, excluded a number of them, and found one sample of a pubic hair that did not belong to Tate. On cross-examination Crow stated that the information that can be gathered from a hair is limited; that he did not think that it was possible to determine the age of the person, that one could not identify the ethnicity of a hair from a Caucasian " with a great deal of certainty." He passed this hair sample, Exhibit 22a, to Messler for further examination. Messler testified that he compared Exhibit 22a to a sample from Movant, along with pubic hair samples from 37 other apparently Caucasian people. The thirty-seven other samples were not comparable to Exhibit 22a. Messler testified about the limits of hair comparison. He stated that he could generally tell Caucasian from Oriental or Negroid, but that he could not tell age, sex, " or just about anything else." On cross-examination, Messler stated that there was no way to determine how long a hair had been removed from the human body, i.e., the hair does not deteriorate with age.
Messler was recalled to testify further on redirect. He stated that he compared Exhibit 22a to pubic hairs from 39 people: Tate, Movant, and 37 others, and only Movant's " matched[,]" and that in two hundred cases that he has handled, he had never found one where a hair recovered from the crime scene matched to more than one person.
The State did not raise the hair sample in the initial part of its closing argument. It stressed M.D.'s testimony, noting that R.T. was too young to testify, and stating that M.D. " bore the responsibility for the three of them [Tate, R.T., and herself] to tell you what happened that night." The State recapped M.D.'s testimony, and how the physical evidence corroborated what she said. Regarding her identification of the killer at first as " Bill," the State reiterated her statement that she was hurt and gave a name to stop the questioning. It pointed out how M.D. excluded suspects based on their photos, and described ...