In the Missouri Court of Appeals Eastern District DIVISION ONE
STATE OF MISSOURI, ) No. ED108750 ) Respondent, ) Appeal from the Circuit Court of ) Cape Girardeau County vs. ) ) Honorable Benjamin F. Lewis FRED L. HARRIS, ) ) Appellant. ) Filed: March 23, 2021
I. Introduction
Fred Harris, Sr., (“Movant”) appeals the motion court’s denial of his motion for post-
conviction DNA testing, pursuant to § 547.035. 1 Movant raises two points on appeal. First,
Movant argues that the motion court clearly erred in denying his motion following a hearing
because the DNA testing methods that he seeks were not reasonably available to him at trial. He
also alleges that the motion court applied the incorrect test in making its determination. In his
second point on appeal, Movant asserts that the motion court clearly erred in denying his motion
because it incorrectly concluded that he chose not to pursue independent DNA testing as a matter
of trial strategy.
We affirm.2
1 All statutory references are to Mo. Rev. Stat. Cum. Supp. 2019 unless otherwise indicated. 2 Although nothing in the record indicates the existence of evidence upon which DNA testing can be conducted, we need not remand for further factual findings because Movant has otherwise failed to meet his burden of proof. II. Factual and Procedural Background
On June 16, 2005, a jury convicted Movant of forcible rape. He received a fifty-year
sentence from the trial court on August 8, 2005. The State had conducted scientific and DNA
testing on evidence prior to his trial. This Court affirmed Movant’s conviction in State v. Harris,
193 S.W.3d 795 (Mo. App. E.D. 2006). He later sought post-conviction relief through
proceedings pursuant to Rule 29.15.3 This Court affirmed the denial of that motion in Harris v.
State, 282 S.W.3d 387 (Mo. App. E.D. 2009).
On March 4, 2019, Movant filed this motion for post-conviction DNA testing pursuant to
§ 547.035. The motion court denied the motion following a hearing on December 19, 2019. The
motion court heard expert testimony from Diane Higgins, a forensic DNA analyst with the
Missouri State Highway Patrol Troop E Crime Laboratory (“Highway Patrol Lab”). Higgins
conducted DNA testing for the State prior to Movant’s trial while working as a forensic
criminalist with the Southeast Missouri Regional Crime Lab (“SEMO Lab”), which later merged
with the Highway Patrol Lab. Movant also testified.
This appeal follows.
III. Standard of Review
Motions for post-conviction DNA testing pursuant to § 547.035 are post-conviction
motions governed by Rules 29.15 and 24.035 and therefore are governed by the standard of
review set out in those rules. Weeks v. State, 140 S.W.3d 39, 43-44 (Mo. banc 2004). The
appellate court reviews solely to determine whether the motion court commits clear error in its
findings of fact and conclusions of law. State v. Ruff, 256 S.W.3d 55, 56 (Mo. banc 2008) (citing
Weeks, 140 S.W.3d at 44). The motion court commits clear error when the appellate court, after
3 All rule references are to the Missouri Supreme Court Rules (2019), unless otherwise indicated.
2 reviewing the record, “is left with the definite and firm impression that a mistake has been
made.” Id. at 56 (internal citation omitted).
IV. Discussion
The Missouri General Assembly enacted § 547.035 to provide inmates with “an
opportunity to have potentially exculpatory DNA tests performed on evidence.” Id. at 58. To
receive a hearing, a movant must first file a motion alleging the following under oath:
(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 through the requested DNA testing.
§ 547.035.2.4 The court will then order the prosecutor to show cause as to why it should not
grant the motion, unless “it appears from the motion that the movant is not entitled to relief” or
“the files and records of the case conclusively show that the movant is not entitled to relief.”
§ 547.035.4. “If the court finds that the motion and the files and records of the case conclusively
4 The parties did not dispute that Movant satisfied subsections (2) and (4) of § 547.035. Because Movant has not met his burden under subsection (3), we need not reach whether he satisfied his burden under subsection (5).
3 show that the movant is not entitled to relief, a hearing shall not be held.” § 547.035.6. “The
court shall order appropriate testing” if it finds the following, after a hearing:
(1) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and
(2) That movant is entitled to relief.
§ 547.035.7. “To show that he is entitled to relief, under § 547.035, the movant has the ‘burden
of proving the allegations of the motion, which must be as outlined in § 547.035.2.’” Hudson v.
State, 190 S.W.3d 434, 439 (Mo. App. W.D. 2006) (quoting Matney v. State, 110 S.W.3d 872,
876 (Mo. App. S.D. 2003)); accord State v. Fields, 517 S.W.3d 549, 553 (Mo. App. E.D. 2016).
“Whether or not a hearing is held, the court shall issue findings of fact and conclusions of law.”
State v. Cox, 563 S.W.3d 801, 811 (Mo. App. W.D. 2018) (citing § 547.035.8).
In both points on appeal, Movant contends the motion court clearly erred in finding that
he failed to satisfy the requirements of § 547.035.2(3)(a). Movant makes no allegations that he
has satisfied subsections (b) or (c) of § 547.035.2(3).
To satisfy § 547.035.2(3)(a), a movant must show that “the technology for the testing was
not reasonably available to the movant” at trial. Weeks, 140 S.W.3d at 48 (quoting
§ 547.035.2(3)(a)) (emphasis in original). “The test is a subjective one, subject to a reasonable
availability standard, not a question of objective scientific feasibility.” Id. (emphases in original).
Therefore, Missouri courts must consider the movant’s particular circumstances in determining
the reasonable availability of testing prior to trial. State v. Fields, 517 S.W.3d at 554-55 (citing
Weeks, 140 S.W.3d at 48).
4 Point I
In his first point on appeal, Movant makes two arguments. 5 First, he argues that the
motion court clearly erred in finding that, because the State conducted DNA testing for his trial,
he cannot obtain further DNA testing because the testing he seeks was not reasonably available
to him at trial. Specifically, he seeks testing with methods and techniques unavailable prior to his
trial, and he seeks testing on objects that went untested prior to his trial. Second, he argues that
the motion court erred by incorrectly applying an objective test in reaching its conclusions, rather
than the proper subjective test.
Advancements in DNA Technology
Movant first argues that evolutions in DNA testing technology have made the prior-used
testing technologies unreliable. The Supreme Court of Missouri has noted that § 547.035.2(3)(a)
“specifically contemplates technological developments that will permit later testing; where new
testing techniques become available that shed doubt on previous findings, subsequent motions
are permitted.” Belcher v. State, 299 S.W.3d 294, 297 (Mo. banc 2009). However, there is “no
legislative intent [behind § 547.035] to allow serial retesting of evidence due to a change in DNA
technology.” State v. Kinder, 122 S.W.3d 624, 632 (Mo. App. E.D. 2003) (denying a motion
requesting the newly developed PCR DNA testing method prior to the movant’s trial because the
State conducted RFLP DNA testing, which was still considered reliable); see also Fields v. State,
425 S.W.3d 215, 217 (Mo. App. E.D. 2014) (noting that Kinder is still “good law” for the
principle that “there is no second bite of the apple” when it comes to DNA testing). This Court
has “decline[d] to read the language in this subsection as referring to the availability of a specific
5 We encourage mindfulness of Rule 84.04(d). “Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing for review. State v. Prewitt, 575 S.W.3d 701, 702 n.2 (Mo. App. W.D. 2019) (quoting Griffitts v. Old Republic Ins. Co., 550 S.W.3d 474, 478 n.6 (Mo. banc 2018)). Nevertheless, we prefer to decide cases on the merits and exercise our discretion to review the merits of this case ex gratia. Id.
5 method of DNA testing, potentially opening the door to retesting each time a new and improved
method of DNA testing may be developed.” Kinder, 122 S.W.3d at 633.
According to the motion court, DNA testing has made some advancements since the time
of Movant’s trial, but these advancements are insubstantial and therefore not enough to afford
Movant any relief. The motion court also “[did] not find any support for Movant’s allegation that
DNA testing was not done on evidentiary items prior to trial or that DNA testing has developed
substantially beyond what was reasonably available to Movant at the time of the pre-trial
litigation of his case.” It reached this conclusion following an evidentiary hearing where it heard
testimony from Higgins and Movant.
Movant has not demonstrated that the motion court clearly erred in reaching this
conclusion. He has not shown that he “did not test the evidence because scientifically reliable
DNA testing technology was unavailable, not merely because a specific method of testing was
unavailable.” Id. at 632. He first attempts to do this by calling into question the reliability of the
acid phosphatase and p30 testing used prior to his trial.6 Laboratories use these tests to detect the
presence of genetic material that might lead to the creation of a DNA profile. At Movant’s
evidentiary hearing, Higgins testified to the veracity of these presumptive tests at the time of
Movant’s trial and today, as well as to the methods and protocols used in obtaining the results.
The only difference she noted is the use of a different reagent. However, Movant has not cast
doubt on the reagent’s reliability. Regarding the p30 testing, Higgins testified that the Highway
Patrol Lab currently uses less sensitive p30 testing kits now than the SEMO Lab used prior to
Movant’s trial, but she otherwise did not testify that the scientific community considers the old
6 Acid phosphatase and p30 testing are used in the serological step, the first step of the DNA testing process. See State v. Dixon, 586 S.W.3d 304, 308 (Mo. App. W.D. 2019).
6 p30 testing kit unreliable. These slight differences do not undermine the reliability of the
presumptive testing used on evidence in Movant’s trial.
Movant has also not established that the motion court erred in determining that further
testing is not warranted due to the development of Y-STR DNA testing in the time following his
trial. Y-STR testing came into existence following Movant’s trial, according to Higgins’s
testimony. Again, Movant must show that Y-STR development of new technology undermines
the reliability of the old technologies used prior to trial. See Kinder, 122 S.W.3d at 632. In this
case, the State used STR DNA testing prior to trial. However, Movant has not shown that the
development of Y-STR testing casts any doubt on the reliability of STR testing. In fact, Higgins
testified as follows at the hearing:
Q [Prosecutor]: And the gold standard in DNA testing back in 2004-2005[,] was that STR testing?
A [Higgins]: Yes.
Q: Is that still STR testing?
A: Yes.
The record leaves us with no doubt as to the continued reliability of STR testing.7
Items Untested or Inadequately Tested
Movant additionally requests testing on hairs collected from the clothing of the victim
and Movant, on pubic hairs collected from hinge lifts and dollar bills taken from the abandoned
car where the rape occurred, and on the victim’s clothes. First, regarding the hairs from the
clothes, the motion court concluded that “it cannot be said that DNA testing on any of those hairs
would have evidentiary value” due to their consistency with hairs taken from the victim. Movant
7 We note that the swab testing weakly positive for acid phosphatase may have been “consumed” during STR testing, thus leaving no evidence available for Y-STR testing were we to afford Movant relief. Again, we need not remand for further factual findings because Movant has otherwise not satisfied his burden under § 547.035.
7 maintains that the lab performed inadequate testing on the hairs and should have conducted
mitochondrial DNA testing. Second, Movant disputes the motion court’s finding that the hairs
found on hinge lifts and dollar bills similarly provide no evidentiary value. The motion court
wrote:
The presence of foreign DNA on hinge lifts taken from inside the abandoned car would merely establish that at some unknown point in time, some human being was present inside the car. This would prove nothing relevant to Movant’s defense. On the other hand, if those items [had] been tested and if they were found to contain Movant’s DNA, that evidence would have proved his presence at the scene of the crime and would have worked against him.
Third, Movant seeks touch DNA testing of victim’s clothes, highlighting the increased sensitivity
of current touch DNA testing kits. Importantly, the motion court determined that all of these
items were available to Movant and his trial counsel prior to trial, and that they could have
requested independent testing, but they elected not to do so.
Movant has not established that the motion court clearly erred in making any of these
determinations. The motion court does not commit clear error when:
From the trial transcript and movant's own motion, DNA analysis was available to the movant and his trial counsel prior to the time of his trial. The SEMO Crime lab did not conduct DNA analysis on the hairs[,] but there is nothing in the record that prevented trial counsel or movant from having an independent DNA examination of the hair samples as they existed at that time prior to trial. Because DNA analysis was available to the movant and the samples were made available to a different defense expert prior to trial, movant fails to meet § 547.035.2(3)(a), (b) and (c) to require a hearing to obtain DNA testing.
Hudson v. State, 270 S.W.3d 464, 468-69 (Mo. App. S.D. 2008). Movant finds himself in a
nearly analogous situation. He seeks testing on items that went untested prior to trial, having
declined the opportunity to have independent testing done. Higgins testified that the Highway
Patrol Lab does not routinely conduct touch DNA testing on money or clothing, nor does it
conduct mitochondrial DNA testing at all. However, she stated that, as a matter of standard
8 procedure, the lab would send items off for private DNA testing upon the request of a party.
Movant and his trial counsel had this evidence available to them, and they could have requested
independent testing. But they elected not to pursue this path.8
Court’s Application of the Subjective Test
Movant further argues in his first point on appeal that the motion court clearly erred by
applying an objective test in concluding that he had DNA testing reasonably available to him
prior to trial, in violation of the purpose of § 547.035. The General Assembly enacted § 547.035
to provide inmates with “an opportunity to have potentially exculpatory DNA tests performed on
evidence.” Ruff, 256 S.W.3d at 58.
The record in this case shows that the motion court applied the proper, subjective test
after thorough consideration of Movant’s circumstances at the time of his trial. See Weeks, 140
S.W.3d at 48 (“the Court looks at what was reasonably available to [the movant] in his
circumstances…”). At the hearing, the motion court listened to “extensive” expert testimony
from Higgins on “the DNA testing conducted in the pre-trial stages of this underlying criminal
matter, the current availability and limitations of DNA testing, and the existence of that testing at
the time of the litigation of the underlying offense.” In issuing its factual findings and legal
conclusions, the motion court highlighted the fact that the State conducted DNA testing prior to
Movant’s trial and pointed out that he could have made a request for independent DNA testing.
The motion court unmistakably based its decision on the circumstances surrounding Movant at
the time of his trial. We find no merit in Movant’s argument that the motion court violated the
purpose of § 547.035 by applying an objective test.
Point I is denied.
8 For more on the decision to not pursue independent DNA testing, see the subsection entitled Point II, infra.
9 Point II
In his second point on appeal, Movant contends that the motion court clearly erred in
concluding that his trial counsel declined to pursue DNA testing as a matter of trial strategy.
Rather, Movant argues that misidentification and DNA defenses are capable of advancement
together, and that his trial counsel could not strategically avoid the DNA testing methods that he
argues were not reasonably available prior to his trial.
In this case, the motion court found that “trial counsel previously testified his trial
strategy revolved around misidentification, rather than DNA issues[,] and that he made the
strategic decision to not split his theories of defense between the two.” On this basis, the motion
court concluded, “It therefore cannot be said that Movant or trial counsel were deprived of the
ability to request independent testing, but rather the decision was made not to pursue a DNA
defense.” Movant alleges that the motion court misread the testimony from Movant’s first post-
conviction hearing.
After reviewing the record, we find that the motion court did not clearly err in concluding
that Movant and his trial counsel strategically declined to request independent DNA testing at
trial. “[T]he decision not to request DNA testing [is] a matter of reasonable trial strategy.”
Matney, 110 S.W.3d at 875. Here, Movant and his trial counsel knew they could have requested
reliable, independent DNA testing and simply elected not to pursue it further. They also knew
the results of the prior DNA testing conducted in this case, with Movant’s trial counsel
specifically acknowledging in Movant’s previous post-conviction relief motion that the DNA
testing results neither incriminated nor exculpated Movant. Movant’s trial counsel testified as
follows at his first post-conviction proceeding:
Q [Prosecutor]: So [the DNA] did not incriminate him[,] but it did not exculpate him either?
10 A [Trial Counsel]: Yeah, that’s right. I mean I don’t think it was our strongest theory to go with trying to play around with, well, it could have been, it couldn’t have been, but we had a definite theory of [eyewitness] ID. Certainly the DNA did not hurt us which was good. It did not help us though[,] certainly not as much as many of the problems with the identification by the girl[,] which is what our theory was all along.
This testimony shows that Movant and his trial counsel felt that they had better strategic options
than pursuing independent DNA testing. This does not entitle Movant to relief. See State v.
Fields, 517 S.W.3d at 556 (“assuming, arguendo, DNA testing technology was not reasonably
available to Movant at the time of Movant's trial, Movant still fails to satisfy prong (a) of
element (3) of Section 547.035.2, in that the abstention of DNA testing was a matter of trial
strategy”). While we agree with Movant that misidentification and DNA defenses do not
necessarily contradict, nothing requires a defendant to pursue them in tandem. Here, the fact
remains that, despite its availability, Movant and his trial counsel chose not to pursue
independent DNA testing, electing instead to pursue a misidentification defense by other means.
Point II is denied.
V. Conclusion
For the reasons stated above, we affirm the judgment of the motion court.
_______________________________ Kelly C. Broniec, Judge
Colleen Dolan, P.J. and Robert M. Clayton III, J. concur.