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In Re Timothy D. Wiley

October 12, 2012


On Appeal from Superior Court, Windham Unit, Civil Division May Term, 2012 Thomas A. Zonay, J.

The opinion of the court was delivered by: Burgess, J.

In re Wiley (2011-206)

2012 VT 76

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. BURGESS, J. Petitioner Timothy Wiley appeals the Windham Civil Division's denial of his request for DNA testing pursuant to Vermont's Innocence Protection Act. 13 V.S.A. § 5561 et seq. Following an unsuccessful appeal of convictions for aggravated sexual assault and lewd and lascivious conduct stemming from charges that he raped his girlfriend's daughter, and for obstruction of justice in connection with threatening and encouraging the mother to commit perjury, State v. Wiley, 2007 VT 13, 181 Vt. 300, 917 A.2d 501, petitioner claimed innocence and filed for relief under the Innocence Protection Act. Subject to certain statutory conditions, the Act provides a right to post-conviction DNA testing to demonstrate innocence in support of a bid to vacate judgment, or to secure a new trial, resentencing, or discharge from custody. Id. § 5569(b)-(c). Petitioner claims error in the trial court's conclusion that his anticipated test results would not have created a reasonable probability of a different result had they been available at trial. We affirm the denial of petitioner's request on the ground that the testing he seeks is not of any evidence "obtained during the investigation or prosecution of the crime" for which innocence is claimed, as required by the Act, rendering his request outside of the Act's relief. Id. § 5561(a).

¶ 2. The facts may be summarized as follows. At trial, the victim testified that petitioner repeatedly raped her when she was a minor living in the household of petitioner and her mother. The State bolstered the victim's testimony with expert analysis of DNA evidence taken from a stain on her bed sheet showing that petitioner was most likely the source of semen found in the stain.*fn1 The analysis also found a partial DNA profile for female epithelial, or skin, cells in the stain that could neither confirm nor exclude the victim as the source. The State also presented the testimony of the victim's father, her social worker, and other witnesses, as well as physical evidence found in the victim's bedroom, including a sanitary pad used by the victim that the State argued corroborated her allegation of a sexual encounter with petitioner during menstruation.

¶ 3. Petitioner's defense at trial was that the allegations were false, and that the stain on the victim's bed sheet was from a sexual encounter between him and the victim's mother. The mother testified that she and petitioner engaged in intercourse once on her daughter's bed, although mother could not say if it happened before her daughter left the house after accusing petitioner of assault. Mother neither supplied nor was asked for a DNA sample, however. Thus her DNA was never obtained or compared against DNA on the sheet. Taped prison conversations between mother and petitioner also revealed that petitioner encouraged the mother to lie under oath about having sex with him on her daughter's bed when mother repeatedly told him she remembered no such thing. Wiley, 2006 VT 13, ¶16.

¶ 4. Explaining its guilty verdict, the criminal trial court emphasized that it found the victim's testimony "strongly credible" and "abundantly supported" by the DNA evidence. The court further explained that it did not believe mother's testimony about her sexual encounter with petitioner on the victim's bed. The court considered this claim a product of an "elaborate fiction" concocted by petitioner.

¶ 5. Professing his innocence in the instant proceeding, petitioner argued that, even in the face of the victim's testimony, a DNA test result showing that victim's mother was either "conclusively identified," or not excluded, as the source of the female skin cells inthe stain would strongly support petitioner's defense theory. Petitioner further asserted that this evidence was "obtained in connection with the offense that is the basis of the challenged conviction" as required by § 5566(a)(3), becausethe female epithelial cells were found on the bed sheet stain seized as evidence. Finally, he contended that while § 5566(a) is silent on whether a court may order DNA testing of a third party, such as the mother in this case, petitioner had a "constitutional need" for this evidence to prove his innocence which outweighed the limited privacy interest of victim's mother.

¶ 6. The civil court reviewing this action for post-conviction relief denied this request, concluding that petitioner failed to show that the result of the requested test would have created a reasonable probability of acquittal. The court reasoned that, at most, the result would show that petitioner had intercourse with the mother at some point in time, and could not disprove the victim's allegations or otherwise serve to exonerate petitioner. The court did not address whether the Act allows a court to order the taking and testing of new DNA evidence not in the case, or from a nonparty, to support a claim of innocence.

¶ 7. We note, preliminarily, that this Court has yet to review a trial court decision on a request for DNA testing under the Innocence Protection Act and, therefore, has not addressed the proper standard for such review. Nor will the standard be resolved here because we need not analyze the court's rationale to determine that petitioner was not entitled to the DNA test requested. Rather, the trial court's decision may be affirmed on an alternative legal ground found in the record. See In re Handy, 171 Vt. 336, 343, 764 A.2d 1226, 1234 (2000) ("We will not reverse a lower court's decision if the record before us discloses any legal ground which would justify the result" (quotation omitted)).

¶ 8. In this particular case, the language of the statute cannot escape notice and unambiguously limits the trial court's authority to the ordering of DNA analysis of evidence previously obtained and preserved.*fn2 The Innocence Protection Act consistently refers to the testing of evidence already extant from the underlying case. Persons convicted of certain crimes, including aggravated sexual assault and lewd and lascivious conduct with a child, may request "forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime." 13 V.S.A. § 5561(a), (b)(2)(11), (14) (emphasis added). The Act further provides that a trial court shall grant such a request if it finds that: (1) the test result would have created a reasonable probability of acquittal at trial; (2) the evidence to be tested is still in existence; (3) the evidence to be tested was obtained in connection with the offense that is the basis of the challenged conviction and: (A) was not previously subjected to DNA testing; or (B) although previously tested, remains available for additional probative testing; and (4) the chain of custody of the evidence has been protected. See id. § 5566(a).

¶ 9. Absent ambiguity and a compelling reason to read it otherwise, the Act's plain language contemplates DNA analysis only of "biological evidence" contained within evidence already in hand, rather than testing material not in evidence and yet to be collected. Id. §§ 5561(a)(1), 5566(a)(3); see also State v. Fletcher, 2010 VT 27, ¶ 10, 187 Vt. 632, 996 A.2d 213 (mem.) (explaining that, absent ambiguity, a statute's plain language controls its interpretation). Section 5561(a) specifically requires that the requested testing be of evidence collected during the original investigation of the crime. The general criterion that the evidence be "obtained in connection with the offense that is the basis of the challenged conviction," id. § 5566(a)(2), must be read in light of the more specific requirement of § 5561(a). See Pearson v. Pearson, 169 Vt. 28, 36, 726 A.2d 71, 76 (1999) (citing the canon of statutory construction that a more specific provision controls a more general one). Reading § 5561(a) with § 5566(a)(3), the Act ...

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