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State v. Dixon

Court of Appeals of Missouri, Western District, Fourth Division

August 20, 2019

STATE OF MISSOURI, Respondent,
v.
ANTHONY DIXON, Appellant.

          Appeal 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.

          Karen King Mitchell, Chief Judge.

         Anthony 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.

         Background

         A jury 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.][1] 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.[2] 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.[3] 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.[4]
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.[5] 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.[6] 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.[7]

Id. at 254.

         By agreement of the parties, the sentencing court ordered post-conviction DNA testing pursuant to § 547.035.[8] 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.[9] 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.[10]

         Deanna 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.[11] 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, [12] but by swabbing the ropes and visually examining parts of the resulting liquid samples, Lankford saw one sperm head[13] 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.

         A 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.

         Through 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.

         Next, 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.[14] 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.

         Lankford 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.

         Both 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."

         Dr. 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 criminal trial.[15]

         Dr. 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 misidentified Dixon.

         The remaining witnesses testified about a similar motel robbery that had occurred in Sedalia, Missouri, approximately one month after the Harrisonville crimes.[16] 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.[17] 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.

         The 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.

         At 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.

         When 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.

         That 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 ...


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