Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Johnson County, Missouri The
Honorable R. Michael Wagner, Judge
Before: Karen King Mitchell, Chief Judge, Anthony Rex
Gabbert, Judge, and Timothy J. Flook, Special Judge.
King Mitchell, Chief Judge.
Dixon appeals, following an evidentiary hearing, the denial
of his motion for release based on post-conviction DNA
testing. Dixon claims that the motion court erred in (1)
admitting testimony regarding similar criminal charges filed
against him in another case; (2) discounting expert testimony
regarding the reliability of witness identification; (3)
failing to apply any standard of "innocence" under
§ 547.037; and (4) denying his motion because the DNA
evidence proved, by a preponderance of the evidence, that he
would not have been convicted had that evidence been admitted
at his criminal trial. Finding no error, we affirm the motion
court's denial of Dixon's motion for release.
found Dixon guilty of forcible rape, forcible sodomy, and two
counts each of first-degree robbery and armed criminal
action, for which he was sentenced to a total of life plus
sixty years in the Department of Corrections. This court
affirmed his convictions and sentences on direct appeal and
denied his request for post-conviction relief. State v.
Dixon, 969 S.W.2d 252 (Mo. App. W.D. 1998). We
summarized the facts of Dixon's case as follows.
On August 4, 1993, [S.N.] was working the 11:00 p.m. to 7:00 a.m.
shift for the night clerk at the Super 8 Motel in
Harrisonville[, Missouri, ] where she was employed as the
manager. At approximately midnight, she was standing near the
door of her apartment in the hotel, which was located down
the hall from the front desk, when she noticed a man standing
in the doorway with a gun. The man was wearing dark clothing,
including a dark-hooded sweatshirt with the hood up, and he
had a sock-type hat pulled down over his face. From the eye
and mouth cut-outs in the hat, she could tell that the
individual was a black man with a short-cropped moustache.
The man aimed a gun at her and told her to get down on the
carpet. He told her that he wanted to know where the money
was. She responded that the motel did not have a
safe. The gunman then went to the office. After
seeking her assistance, the man found the cash drawer and
used the key to take out the money. He demanded more money,
and [S.N.] finally told him that there was money in a
different drawer. After retrieving the money, he returned and
demanded more money.
He then obtained a piece of clothesline rope from the bag he
was carrying and tied [S.N.'s] hands behind her
back. He pressed his knees into her back, put
the gun to her head and again demanded more money. He also
went through the motel cards that indicated which rooms in
the motel were occupied and asked [S.N.] about a master key.
He ordered her to get up, but she told him that her
rheumatoid arthritis prevented her from doing so, unless he
untied her hands. The assailant then ordered her to put her
head and chest in the chair. He pulled down her pants and
proceeded to rape her vaginally and rectally.
At this point, [J.S.], a guest at the hotel, entered the
office. He encountered a man dressed in dark clothing and
asked for change. Instead, the gunman pointed his gun between
[J.S.'s] eyes, told [J.S.] to give him his money, and
threatened to kill him. [J.S.] gave him the two dollars he
had, and then the gunman told [J.S.] to lie on the office
floor and again threatened to kill him. As [J.S.] crawled
around behind the front desk, he saw a woman, whose hands
were tied together, lying on the floor. The gunman then tied
[J.S.'s] hands together. Within a few minutes, [J.N.], a
man staying with [J.S.] at the hotel, was also brought into
the room by the gunman and was told to lie on the
floor. The gunman tied up [J.N.] and then left,
after announcing his intention to check some of the hotel
rooms. [S.N.] and [J.N.] managed to get loose after 10 or 15
minutes and called the police.
[J.S.], who initially saw the gunman behind the front desk
with his sock cap rolled up above his eyes, was interviewed
by the police in an effort to obtain a composite drawing of
the suspect. Approximately three weeks after the
incident, the police showed [J.S.] a photographic line-up.
[J.S.] immediately identified the defendant as the gunman
from a photo array. [J.S.] also identified the
defendant's voice from an audiotape that contained the
voices of five or six individuals. Subsequently, [S.N.]
listened to the same audiotape and when she heard the third
voice, she began to shake, cry and perspire. She listened to
the remaining voices, and then identified the third voice on
the tape as the voice of her attacker.
Id. at 254.
agreement of the parties, the sentencing court ordered
post-conviction DNA testing pursuant to §
547.035. Based on the testing performed and results
generated by Bode Cellmark Forensics (Cellmark), an
accredited laboratory, Dixon filed the present motion for
release under § 547.037. The State filed an objection, and
the motion court held an evidentiary hearing, at which the
court took judicial notice of the underlying criminal case
and heard testimony from nine witnesses.
Lankford, Director of Forensic Casework at Cellmark, was
recognized by the motion court as an expert in DNA testing
and analysis. She testified that Cellmark tested thirteen
items, eight of which were pieces of rope. Due to the
nature of the crimes, all of the items were tested for the
presence of semen. The initial stage in the DNA testing
process is the serological step, where the nature of the DNA
material present is determined. Two presumptive tests for
semen, the acid phosphatase test and the p30 test, were
negative on all items,  but by swabbing the ropes and
visually examining parts of the resulting liquid samples,
Lankford saw one sperm head in the sample produced from
the rope piece labeled 07.02 and two sperm heads in the
sample produced from the rope piece labeled 07.04. Because
the initial screening for sperm was negative, the remaining
six pieces of rope, the vaginal and anal swabs, and the three
pieces of S.N.'s clothing were not tested further.
portion of the liquid sample created by swabbing ropes 07.02
and 07.04 was examined in the initial screening. DNA testing
was conducted using the remaining portions of the samples.
Although Lankford acknowledged that the initial microscopic
screening revealed only a small quantity of sperm, she
assumed that the remaining portion of the mixture used for
DNA testing would have had a similar number of sperm present.
Although she could not testify with 100 percent certainty,
she stated that, if there are one or two sperm in a
microliter of liquid, for every microliter there should be
one or two sperm present.
a process called differential extraction, the liquid samples
created from ropes 07.02 and 07.04 were separated into an
epithelial fraction, made up of skin cells, and a sperm
fraction. Because the differential extraction on rope 07.02
revealed an insufficient quantity of DNA for further testing,
Cellmark performed additional testing on rope 07.04 only.
Using autosomal testing, which identifies chromosomes that
are not sex chromosomes, a DNA profile was obtained from the
epithelial fraction of the sample from rope 07.04; that
profile included a mixture of at least three individuals,
including at least one unknown male. Using methods employed
by Cellmark at the time the testing was performed, Dixon was
excluded as a possible contributor to the epithelial
fraction. However, Lankford testified that laboratory
protocols for interpreting results from DNA mixtures had
changed and that under the protocols in place at the time of
the hearing she would no longer be able to draw any
conclusions as to whether Dixon was a contributor to the DNA
profile obtained from the epithelial fraction of the sample
from rope 07.04. There was insufficient DNA on the sperm
fraction to build a DNA profile during autosomal testing.
Cellmark performed Y-STR testing on the epithelial and sperm
fractions derived from rope 07.04; Y-STR testing isolates
male DNA by targeting the Y-chromosome. Cellmark developed a
partial single source profile from the sperm fraction and
concluded that Dixon was excluded as the source of the DNA
from that sample. J.S. and J.N. were also excluded as
contributors. With respect to the epithelial fraction,
Cellmark was able to identify a partial DNA profile that was
a mixture of at least two males, but Dixon was excluded.
Again, Lankford testified that under protocols in place at
the time of the hearing, she would not be able to reach any
conclusions about contributors to the epithelial fraction.
Lankford acknowledged that, based upon the epithelial
fraction, the DNA of at least two and possibly three men was
present on the rope.
also acknowledged that she could not tell how any of the DNA
ended up on the rope, because anyone who touched the rope
could have transferred DNA onto it and she did not know how
the rope had been handled or collected.
the autosomal and the Y-STR tests were performed on samples
created by the process of differential extraction.
Differential extraction attempts to separate sperm cells,
which are heavier and denser, from lighter epithelial cells.
However, Lankford acknowledged that, during differential
extraction, "You can have spillover from your sperm
fraction into your epithelial fraction or spillover from
epithelial fraction into your sperm fraction. It is never a
100 percent efficient process . . . I can't say for sure
what is in each fraction." During cross-examination by
the State, Lankford was asked, "we don't know for
certain that that . . . profile came from sperm,
correct?" To which Lankford responded, "Right . . .
I can't say that it worked at 100 percent efficiency, so
I can't say for sure."
Nancy Franklin, associate professor of Psychology at Stony
Brook University, also testified and was recognized by the
court as an expert on memory and identification. The State
moved to exclude Dr. Franklin's testimony as beyond the
scope of § 547.037 and otherwise impermissible under
Missouri law, but the motion court rejected the State's
arguments because, as the fact finder, the court determined
that it would be able to distinguish admissible from
inadmissible evidence. Although the motion court allowed Dr.
Franklin to testify to her beliefs based on her expertise,
the court precluded her from evaluating or criticizing the
credibility of the identifications made in Dixon's
Franklin testified about event-related risk factors that
affect the reliability of witness identifications, including
limited exposure, partial disguise, stress, weapon focus,
stranger identification, and cross-race identification. As to
post-event factors, she identified the delay in
identification, generation of the composite, filler quality,
expectation effects, police comments, and multiple exposures
as factors. She also testified about the accuracy of voice
identification. Based on her review of the identifications in
the present case, Dr. Franklin found "the existence of
risk factors associated with inaccurate identifications in
this case." On cross-examination, Dr. Franklin
acknowledged that she could not say that the witnesses
remaining witnesses testified about a similar motel robbery
that had occurred in Sedalia, Missouri, approximately one
month after the Harrisonville crimes. Dixon
objected to evidence of the Sedalia robbery as inadmissible
propensity evidence, but the motion court rejected
Dixon's argument because it was a bench hearing and the
court concluded it would be able to distinguish the probative
evidence from that which was prejudicial. The court
also noted that it would have heard the evidence anyway
because the State would have made an offer of proof. The
court indicated that had the proceeding involved a jury, the
court would have excluded the Sedalia evidence.
State presented the following evidence regarding the Sedalia
robbery. On the night of September 7-8, 1993, C.G. was
working as the night auditor at the Knight's Court motel
in Sedalia when a light-skinned black man dressed in black
and wearing a mask and fingerless gloves approached the back
office and pointed a gun at C.G., telling him to get down on
the floor. C.G. sat down on the floor, but the man became
angry and told him to lie down and put his face on the floor.
The man wanted to know how to get into the cash register, and
C.G. told him that the key was already in the drawer and that
he needed only to turn it. The man asked how to get into the
safe, but C.G. told him that he had already made the nightly
deposit and could not open the safe until the general manager
arrived in the morning. The man repeatedly accused C.G. of
lying and insisted that C.G. was the manager and that he
could access the safe. Eventually, the man asked C.G. if
there were any other sources of money at the motel. C.G.
explained how to get into their "back-up bank"
which was like a safe deposit box that guests could use to
store valuables. The man put a towel over C.G.'s head and
tied his hands high up behind his back using a clothesline
rope that the man had with him. When speaking to C.G., the
man would put the gun to the back of C.G.'s head. At some
point, the man left the motel for a period of time.
about the same time, Pettis County police officer Kevin Bond
was driving to Sedalia when he saw a vehicle, which he later
learned was registered to Dixon, traveling the wrong
direction on U.S. Highway 50, heading away from the
Knight's Court motel. When Bond initiated pursuit, the
driver stopped the car, jumped out, and ran; Bond was unable
to apprehend the driver, who Bond could see was a black male.
In Dixon's car, Bond found a billfold containing
Dixon's identification; a notebook belonging to Dixon; an
attaché case containing a personalized license plate
associated with Dixon; and maps of Sedalia, Pettis County,
and Jefferson City. There were two license plates on the back
of the vehicle; Dixon's personalized plate was covered by
a stolen plate from Arkansas, and a matching stolen plate was
on the front of the vehicle. In the vehicle, Bond also found
a duffle bag containing a stocking cap with cutouts like a
ski mask, surgical face masks, a single glove with the
fingers cut out, a pair of heavier weight gloves, a strip of
condoms, two screwdrivers, two license plate bolts, and some
.38 caliber rounds.
the gunman eventually returned to Knight's Court motel,
he was out of breath and very agitated. He demanded to know
how to get into the guest rooms, and C.G., who was still tied
up, explained that there was a master key, which the man
found. He asked C.G. how to tell which motel rooms were
occupied. The man also asked C.G. for his car keys, but C.G.
had accidentally locked them in his car that night. The next
morning, P.K., a motel guest, reported his vehicle stolen.
same morning, Dixon called Jefferson City, Missouri, police
to a gas station where they found Dixon dressed only in a
towel. Dixon told police that he had been changing clothes in
a parking lot when he was robbed and his car stolen, with
everything in it, including his wallet. P.K.'s car was
later recovered approximately two blocks from where police
found Dixon in Jefferson City. The Sedalia police prepared a
voice lineup, and ...