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State v. Wright

Court of Appeals of Missouri, Western District, Second Division

September 13, 2016

STATE OF MISSOURI, Respondent,
v.
PETE WRIGHT, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable David M. Byrn, Judge

          Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

          Cynthia L. Martin, Judge

         Pete Wright ("Wright") appeals from an order denying a Rule 74.06(b)(3) motion that sought to set aside an earlier order denying Wright's section 547.037 motion for release from prison following DNA testing.[1] Wright's Rule 74.06(b)(3) motion claimed the order denying his motion for release was irregular because the trial court did not follow procedures specified by section 547.037. Because Wright's appeal is not taken from a writing that is denominated as a "judgment, " his appeal is dismissed.

         Factual and Procedural Background

         On November 22, 1988, the trial court entered a judgment convicting Wright of forcible sodomy and felonious restraint. He was sentenced to 25 years and 5 years of incarceration, respectively, with the terms to run consecutively.

         On April 25, 2011, Wright was granted post-conviction DNA testing pursuant section 547.035.[2] Wright's counsel[3] and the State reached an agreement regarding the DNA testing, which was accepted by the court pursuant to an order issued on August 3, 2011. The agreement required testing of Caucasian hairs recovered from Wright's clothing; Negroid hairs recovered from the victim's clothing and underwear; cuttings of material from the victim's clothing; the victim's pubic hair combings and pubic hair standards; and the victim's blood standard. The agreement also indicated that Wright would provide a buccal swab reference sample. The parties agreed that the testing would be performed in an agreed upon sequence, and that results would be reported by the testing company before testing of subsequent items would begin.

         Wright received a letter from his attorney's office dated January 19, 2012, indicating that hairs were going to be subjected to DNA testing before the victim's clothing. That same letter indicated that "[s]o far, testing has been completed on one of the hairs collected from your shirt, " and "[t]he testing shows that the hair did not come from the victim." At Wright's trial, an expert had testified that the hair recovered from Wright's shirt "matched the victim's head hair standard." [Tr. 157]

         The next information in the record regarding the DNA testing is a report from the testing laboratory dated May 22, 2012.[4] The report noted: (i) that one hair found on Wright's shirt could not be excluded as belonging to Wright, and that another hair found on Wright's shirt could be excluded as belonging to Wright; (ii) that a hair found on Wright's shorts could be excluded as belonging to Wright; and (iii) that a hair found on the victim's skirt could be excluded as belonging to both Wright and the victim. Summarized, one hair found on Wright might belong to Wright, two hairs found on Wright did not belong to Wright, and a hair found on the victim did not belong to either the victim or Wright. The same report noted that a hair found on the victim's panties had not yet been processed.

         On April 9, 2013, the testing laboratory issued another report regarding testing on the hair that was found on the victim's panties, and on DNA extract from the hair.[5] The report found that no mitochondrial DNA results could be obtained from the extract; that the hair itself was consistent with the DNA profile of the victim; and that Wright was excluded as the contributor of the hair. In summary, testing on the hair found on the victim's panties showed that the hair possibly belonged to the victim, but did not belong to Wright. At Wright's trial, the same expert who testified about the hair on Wright's shirt also testified that the hair found on the victim's panties "matched [Wright's] head hair." [Tr. 161]

         In summary, DNA testing on the hairs produced results that did not connect Wright with the victim, and that were inconsistent with the expert witness testimony at trial regarding one hair found on Wright's shirt and regarding the hair found on the victim's panties.[6]

         There are no other reports from the DNA testing laboratory in the record. However, it appears that after concluding the DNA testing on hair samples, DNA testing proceeded to the victim's clothing.[7]

         On December 19, 2013, Wright's counsel filed a motion to close the case. The motion stated:

Today's sophisticated state-of-the-art DNA technology makes it possible to test clothing for potential contact or "touch" DNA. Therefore, among other items, [the testing laboratory] tested several cuttings from the victim's underwear and skirt.
On November 18, 2013, the parties received verbal results that [the testing laboratory] was able to generate a consistent male genetic profile from Y-STR DNA testing of the clothing cuttings. [Wright] could not be excluded from the samples tested.[8] . . . A copy of the letter sent to the Court after receiving these results is attached hereto as Exhibit A.

         Because these results were not consistent with innocence, Wright's counsel sought to close the section 547.035 DNA testing case. On December 19, 2013, the trial court sustained Wright's ...


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