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Mercer v. State

Court of Appeals of Missouri, Southern District, First Division

March 16, 2018

RICHARD S. MERCER, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Kelly W. Parker

          MARY W. SHEFFIELD, P.J.

         Richard S. Mercer ("Movant") brings one point on appeal charging clear error in the motion court's denial, without a hearing, of his amended motion for DNA testing pursuant to § 547.035.[1] Finding no merit in this contention, we affirm.

         Governing Law and Standard of Review

         Since 2001, Missouri has provided a statutory post-conviction remedy to permit an inmate to obtain DNA testing. "In order for a person in custody of the department of corrections to receive DNA testing, he or she must file a motion alleging circumstances that, if substantiated, would demonstrate the person's innocence." Hudson v. State, 270 S.W.3d 464, 467 (Mo. App. S.D. 2008).

         The motion must allege facts under oath demonstrating that:

(1) There is evidence upon which DNA testing can be conducted; and
(2) The evidence was secured in relation to the crime; and
(3) The evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the movant at the time of the trial;
(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
(c) The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained ...

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