IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CP-00858-SCT
BILLY DALE HILL a/k/a BILLY D. HILL
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/30/2012 TRIAL JUDGE: HON. ANDREW K. HOWORTH COURT FROM WHICH APPEALED: CALHOUN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BILLY DALE HILL (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS JOHN R. HENRY, JR. NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/29/2013 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. In this appeal from the denial of his post-conviction motion for DNA testing, Billy
Dale Hill claims that the circuit court had destroyed biological evidence without notifying
him as required by Mississippi Code Section 99-49-1(3)(f)(ii)(1) (Supp. 2012). The evidence
in question was a laboratory slide containing what was purported to be sperm cells collected
during a 1974 autopsy. The only relief sought by Hill is that we “order appropriate remedies
and impose sanctions” because of the failure to give proper notice. Miss. Code Ann. § 99-
49-1(5) (Supp. 2012) (“If the court finds that biological evidence was destroyed in violation
of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies.”) Given the uncontradicted proof that the circuit court did not have the evidence
in question, we find no basis for Hill’s claim, and we affirm the judgment of the trial court.
I.
¶2. On October 11, 1974, Billy Dale Hill was tried and convicted of capital murder while
engaged in the commission of the crime of rape and was sentenced to death. Hill v. State
(“Hill I”), 339 So. 2d 1382 (Miss. 1976). This Court reversed his conviction, and on
remand, Hill pled guilty to the separate crimes of murder and rape and was sentenced by the
trial judge to two consecutive terms of life imprisonment. Hill v. State (“Hill II”), 388 So.
2d 143, 144 (Miss. 1980).
¶3. In a 2011 order, this Court granted two post-conviction petitions filed by Hill. First,
the Court vacated his sentence of life in prison for the rape conviction and remanded the
matter to the circuit court for resentencing “to a definite term reasonably expected to be less
than life.” (Quoting Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991)). Second, Hill was
granted leave to proceed in the circuit court with a motion for DNA testing, and the trial
court was directed to order the testing of existing biological evidence.
¶4. Hill had requested DNA testing of all biological evidence, but the only evidence he
specifically identified in his petition was a laboratory slide. To demonstrate that this
evidence existed, Hill attached to his petition an excerpt from the 1974 trial transcript, in
which the pathologist who performed the autopsy, Dr. Van Philpot, testified that he had
collected fluid from the deceased’s vagina and had placed the sample on a laboratory slide.
2 Dr. Philpot said that, after viewing the sample under a microscope, he had determined that
it contained sperm cells.
¶5. After this Court granted his petitions, Hill timely filed his motion for DNA testing in
the Calhoun County Circuit Court. This motion was considered at an evidentiary hearing,
along with his resentencing. At the conclusion of the hearing, the court sentenced Hill to
forty-four years on the rape conviction, but found no available relief regarding his motion
for DNA testing. Based on the State’s witnesses’ testimony at the evidentiary hearing, and
the record from his capital murder trial, the court found that “no DNA evidence exists to be
tested that the Petitioner requests to be tested.” As with his petition to this Court, Hill
initially had requested that the circuit court order the testing of all biological evidence; but
the only item at issue during the evidentiary hearing was the laboratory slide referenced by
Dr. Philpot.1
II.
¶6. In the case before us, Hill does not challenge his sentence and has limited his appeal
to the trial court’s ruling regarding his motion for DNA testing. The issues raised present
questions of fact and questions of law. When reviewing a trial court’s judgment on a petition
for post-conviction relief, issues of law are reviewed de novo, but we will not reverse factual
findings unless the trial court’s assessment of the facts was “clearly erroneous.” Presley v.
1 The circuit clerk’s office had retained the murder weapon (a knife), but Hill declined the trial court’s offer to have it examined for testable biological evidence.
3 State, 48 So. 3d 526, 528-29 (Miss. 2010) (citing Brown v. State, 731 So. 2d 595, 598 (Miss.
1999)).
¶7. Hill argues that he was denied due process of law, claiming that the circuit court had
destroyed the laboratory slide without giving him notice as required by Mississippi Code
Section 99-49-1. See Miss. Code Ann. § 99-49-1(3)(f)(ii)(1) (requiring that, prior to the
destruction of biological evidence collected during the investigation or prosecution of a
criminal matter, the State must give notice to the person(s) convicted of that crime). While
it is undisputed that the court destroyed some of the exhibits from his capital murder trial
without giving the required notification, the trial judge found that the slide was not in the
court’s possession. In his brief, Hill does not give any explanation for his assertion to the
contrary, and he did not dispute this finding of fact in the proceedings below.
¶8. The lower court examined the record from the 1974 trial, and the only exhibit from
the trial related to Dr. Philpot’s collecting “sperm cells” was a summary of his autopsy
report. The laboratory slide was never received into evidence or marked for identification;
and nothing in the transcript indicates whether the slide still was in existence at the time of
trial.
¶9. Calhoun County Circuit Clerk Deborah Dunn testified at the evidentiary hearing that
she had never seen the laboratory slide referenced by Dr. Philpot during the various times she
personally had handled the court file and the exhibits. She also testified at length about the
steps she took to document the contents of the court file. According to Dunn, before any of
the exhibits from Hill’s capital murder trial were destroyed, she had taken a photograph of
4 everything. She testified that there were some empty envelopes marked with exhibit
numbers, and that she either had kept the empty envelopes or had made photocopies of the
outside.
¶10. Ample evidence established that the laboratory slide was not stored with the circuit
court. Indeed, it would be unusual for a forensic pathologist to have deposited with the trial
court any biological evidence collected during an autopsy. Because the laboratory slide was
not in the court’s custody, it could not have been destroyed along with the exhibits in 2010.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CP-00858-SCT
BILLY DALE HILL a/k/a BILLY D. HILL
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/30/2012 TRIAL JUDGE: HON. ANDREW K. HOWORTH COURT FROM WHICH APPEALED: CALHOUN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BILLY DALE HILL (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS JOHN R. HENRY, JR. NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/29/2013 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. In this appeal from the denial of his post-conviction motion for DNA testing, Billy
Dale Hill claims that the circuit court had destroyed biological evidence without notifying
him as required by Mississippi Code Section 99-49-1(3)(f)(ii)(1) (Supp. 2012). The evidence
in question was a laboratory slide containing what was purported to be sperm cells collected
during a 1974 autopsy. The only relief sought by Hill is that we “order appropriate remedies
and impose sanctions” because of the failure to give proper notice. Miss. Code Ann. § 99-
49-1(5) (Supp. 2012) (“If the court finds that biological evidence was destroyed in violation
of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies.”) Given the uncontradicted proof that the circuit court did not have the evidence
in question, we find no basis for Hill’s claim, and we affirm the judgment of the trial court.
I.
¶2. On October 11, 1974, Billy Dale Hill was tried and convicted of capital murder while
engaged in the commission of the crime of rape and was sentenced to death. Hill v. State
(“Hill I”), 339 So. 2d 1382 (Miss. 1976). This Court reversed his conviction, and on
remand, Hill pled guilty to the separate crimes of murder and rape and was sentenced by the
trial judge to two consecutive terms of life imprisonment. Hill v. State (“Hill II”), 388 So.
2d 143, 144 (Miss. 1980).
¶3. In a 2011 order, this Court granted two post-conviction petitions filed by Hill. First,
the Court vacated his sentence of life in prison for the rape conviction and remanded the
matter to the circuit court for resentencing “to a definite term reasonably expected to be less
than life.” (Quoting Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991)). Second, Hill was
granted leave to proceed in the circuit court with a motion for DNA testing, and the trial
court was directed to order the testing of existing biological evidence.
¶4. Hill had requested DNA testing of all biological evidence, but the only evidence he
specifically identified in his petition was a laboratory slide. To demonstrate that this
evidence existed, Hill attached to his petition an excerpt from the 1974 trial transcript, in
which the pathologist who performed the autopsy, Dr. Van Philpot, testified that he had
collected fluid from the deceased’s vagina and had placed the sample on a laboratory slide.
2 Dr. Philpot said that, after viewing the sample under a microscope, he had determined that
it contained sperm cells.
¶5. After this Court granted his petitions, Hill timely filed his motion for DNA testing in
the Calhoun County Circuit Court. This motion was considered at an evidentiary hearing,
along with his resentencing. At the conclusion of the hearing, the court sentenced Hill to
forty-four years on the rape conviction, but found no available relief regarding his motion
for DNA testing. Based on the State’s witnesses’ testimony at the evidentiary hearing, and
the record from his capital murder trial, the court found that “no DNA evidence exists to be
tested that the Petitioner requests to be tested.” As with his petition to this Court, Hill
initially had requested that the circuit court order the testing of all biological evidence; but
the only item at issue during the evidentiary hearing was the laboratory slide referenced by
Dr. Philpot.1
II.
¶6. In the case before us, Hill does not challenge his sentence and has limited his appeal
to the trial court’s ruling regarding his motion for DNA testing. The issues raised present
questions of fact and questions of law. When reviewing a trial court’s judgment on a petition
for post-conviction relief, issues of law are reviewed de novo, but we will not reverse factual
findings unless the trial court’s assessment of the facts was “clearly erroneous.” Presley v.
1 The circuit clerk’s office had retained the murder weapon (a knife), but Hill declined the trial court’s offer to have it examined for testable biological evidence.
3 State, 48 So. 3d 526, 528-29 (Miss. 2010) (citing Brown v. State, 731 So. 2d 595, 598 (Miss.
1999)).
¶7. Hill argues that he was denied due process of law, claiming that the circuit court had
destroyed the laboratory slide without giving him notice as required by Mississippi Code
Section 99-49-1. See Miss. Code Ann. § 99-49-1(3)(f)(ii)(1) (requiring that, prior to the
destruction of biological evidence collected during the investigation or prosecution of a
criminal matter, the State must give notice to the person(s) convicted of that crime). While
it is undisputed that the court destroyed some of the exhibits from his capital murder trial
without giving the required notification, the trial judge found that the slide was not in the
court’s possession. In his brief, Hill does not give any explanation for his assertion to the
contrary, and he did not dispute this finding of fact in the proceedings below.
¶8. The lower court examined the record from the 1974 trial, and the only exhibit from
the trial related to Dr. Philpot’s collecting “sperm cells” was a summary of his autopsy
report. The laboratory slide was never received into evidence or marked for identification;
and nothing in the transcript indicates whether the slide still was in existence at the time of
trial.
¶9. Calhoun County Circuit Clerk Deborah Dunn testified at the evidentiary hearing that
she had never seen the laboratory slide referenced by Dr. Philpot during the various times she
personally had handled the court file and the exhibits. She also testified at length about the
steps she took to document the contents of the court file. According to Dunn, before any of
the exhibits from Hill’s capital murder trial were destroyed, she had taken a photograph of
4 everything. She testified that there were some empty envelopes marked with exhibit
numbers, and that she either had kept the empty envelopes or had made photocopies of the
outside.
¶10. Ample evidence established that the laboratory slide was not stored with the circuit
court. Indeed, it would be unusual for a forensic pathologist to have deposited with the trial
court any biological evidence collected during an autopsy. Because the laboratory slide was
not in the court’s custody, it could not have been destroyed along with the exhibits in 2010.
We find no error in the trial court’s reaching this conclusion, and Hill’s bare assertion that
the circuit clerk destroyed the slide simply cannot establish that this factual finding by the
circuit court was “clearly erroneous.” Presley, 48 So. 3d at 528-29.
III.
¶11. While we find that Hill is not entitled to any relief on appeal, we do call attention to
the DNA Preservation Act and the duties thereunder. 2009 Miss. Laws, Ch. 339 (effective
March 16, 2009) (creating Miss Code Ann. § 99-49-1 (Supp. 2012) and amending Miss.
Code Ann. §§ 99-39-5 to 99-39-11, 99-39-23 (Supp. 2012)). No published decision from
this Court applies or interprets the provisions of Mississippi Code Section 99-49-1, but this
statute mandates detailed procedures for the preservation, destruction, and accessibility of
biological evidence connected with a crime.
¶12. The legislature made its purpose clear in subsection (1), declaring that “simple but
crucial enhancements to protocols for properly preserving biological evidence can solve old
crimes, enhance public safety, and settle claims of innocence.” Miss. Code Ann. § 99-49-
5 1(1)(f). Thus, biological evidence in possession of the State must be preserved if it was
secured “in relation to an investigation or prosecution of a crime.” Miss. Code Ann. § 99-49-
1(3)(a)(i)-(ii).2 Such evidence must be retained “for the period of time that the crime remains
unsolved” or “for the period of time that the person convicted of that crime remains in
custody.” Id. The evidence may be destroyed prior to the expiration of these time periods
if no other law requires preservation of the evidence, if proper notification is given to all
listed individuals and entities, and if there is no written request for retention or testing made
within sixty days of receiving notice. Miss. Code Ann. § 99-49-1(3)(f)-(g).3
2 In cases involving murder, manslaughter or felony sexual assault, all evidence must be preserved if it was within the State’s possession on July 1, 2009. Miss. Code Ann. § 99- 49-1(4) (Supp. 2012). 3 Prior notification must be given to:
1. All persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to evidence in question;
2. The attorney of record for each person in custody;
3. The Mississippi Office of Indigent Appeals;
4. The district attorney in the county of conviction; and
5. The Mississippi Attorney General.
Miss. Code Ann. § 99-49-1(3)(f)(ii) (Supp. 2012). In Hill’s case, the order authorizing the destruction of all exhibits tracked the language of Mississippi Code Section 13-1-155 (Rev. 2002), which governs the destruction of exhibits in civil cases. Section 13-1-155 requires that prior notice be given to “the attorneys for all parties to the action and the owner or person having custody of the property prior to the court action.” At the evidentiary hearing, the circuit clerk testified that no one, including Hill, was notified that the exhibits would be destroyed.
6 ¶13. In addition to preserving evidence, the statute requires that “[u]pon written request
by the defendant, the state shall prepare an inventory of biological evidence that has been
preserved in connection with the defendant’s criminal case.” Miss. Code Ann. § 99-49-
1(3)(e) (Supp. 2012). As a related duty, if the State is asked to produce evidence which
cannot be located, “the chief evidence custodian assigned to the entity charged with the
preservation of said evidence shall provide an affidavit in which the custodian stipulates,
under penalty of perjury, an accurate description of the efforts taken to locate that evidence
and that the evidence could not be located.” Miss. Code Ann. § 99-49-1(3)(i).
¶14. Notably, this statute imposes various obligations on a wide range of State agencies,
officials, and others. The term State is defined as:
any governmental or public entity within Mississippi, including all private entities that perform such functions, and its officials or employees, including, but not limited to, law enforcement agencies, prosecutors’ offices, courts, public hospitals, crime laboratories, and any other entity or individual charged with the collection, storage or retrieval of biological evidence.
Miss. Code Ann. § 99-49-1(2)(e) (Supp. 2012). It behooves all persons and entities falling
under this listing to familiarize themselves with the DNA Preservation Act, paying close
attention to their respective obligations. For example, safeguards and preventive measures
designed to ensure compliance with this statute should be implemented, if they are not
currently in place. Vigilance is essential, given that the consequences for noncompliance are
in the hands of the courts, to which the legislature has given broad authority. As noted in the
first paragraph of this opinion, subsection (5) provides, “[i]f the court finds that biological
evidence was destroyed in violation of the provisions of this section, it may impose
7 appropriate sanctions and order appropriate remedies,” and what may be “appropriate” in
each case is left to the court’s discretion. Miss. Code Ann. § 99-49-1(5) (Supp. 2012).
Conclusion
¶15. Hill’s appeal is based on an unsupported assertion that a specific item containing
potentially testable biological evidence was destroyed by the circuit court without proper
notice. The exhibits and testimony from the evidentiary hearing, which included the record
from his 1974 capital murder trial, support the trial court’s finding that the circuit clerk did
not have possession of this evidence when the circuit court ordered the disposal of the
exhibits. Moreover, there is no evidence that the circuit court ever had possession of the item
in question. Accordingly, we find no available relief and affirm the judgment of the trial
court.
¶16. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.