VICTOR DEWAYNE TAYLOR V. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 25, 2009
TO BE PUBLISHED
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2008-SC-000273-MR
VICTOR DEWAYNE TAYLOR
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APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE BARRY WILLETT, SPECIAL JUDGE
NO . 85-CR-00334
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
At a jury trial, Appellant Victor Dewayne Taylor was convicted of two
counts of murder, kidnapping, first-degree robbery, and one count of firstdegree sodomy . He was sentenced to death on each of the murder charges and
twenty years' imprisonment on each of the other charges . On this matter of
right appeal, Ky. Const. ยง 110(2) (b), Appellant argues that the trial court
should not have dismissed his KRS 422.285 proceeding without submitting an
anal swab for DNA testing or holding an evidentiary hearing to determine why
the Commonwealth did not make the swab at issue available . Finding
Appellant's argument unpersuasive, the trial court is affirmed.
I. Background
When the bodies of the two murder victims in this case were discovered
in 1984, they were missing their pants and the medical examiner collected anal
swabs from them . The anal swab collected from one of the victims yielded a
sample of human spermatozoa, but serological testing done on the anal swab
to determine ABO blood grouping for trial purposes failed to produce any
result . The trial in this matter pre-dated modern DNA testing .
Subsequently, Taylor filed a federal habeas corpus petition in the United
States District Court for the Eastern District of Kentucky, and moved for funds
to conduct DNA testing on the anal swab . The District Court determined
Taylor had a state court remedy because he had never requested DNA testing
pursuant to KRS 422 .285, and ordered Taylor to first exhaust his state options
for DNA testing .
Taylor then filed a motion (petition) in Fayette Circuit Court, requesting
DNA testing pursuant to KRS 422 .285, the statute permitting persons
sentenced for capital crimes to request DNA testing, and review of the evidence
to be tested began. Sometime later, the Commonwealth informed Taylor and
the trial court that it had conducted its own DNA testing on one of the two
slides remaining from the anal swab, Exhibit 38-1, 1 contrary to a previously
entered preservation of evidence order by the Circuit Court . The
Commonwealth sent one of the slides to Orchid Cellmark Laboratory, and the
report indicated it was unsuccessful in obtaining results from its testing .
Therefore, one slide remained, and Taylor wished to have it tested under a new
1
In preparation for trial, the anal swab at issue, "Exhibit 38" from the lab report
prepared by William Morris Durbin, a forensic serologist at the Jefferson Regional
Crime Lab, was used by Durbin to create two slides for his testing ("Exhibits 38-1
and 38-2"), and he noted in his report that the swab was consumed as part of his
testing .
form of DNA testing known as mini-Short Term Repeat ("mini-STR") by Bode
Technology Group . 2
The Commonwealth produced an inventory of evidence as required by
KRS 422 .285(6) . 3 In reference to "Lab Report Number 84-2-3096," one of the
original lab reports prepared by Durbin before the original trial in this case, the
Commonwealth's inventory of items located at the Jefferson Regional Crime
Lab erroneously included "Exhibit 38 : Anal swab from [one of the victims in
this case] ."
The trial court subsequently entered an order modifying its previous
preservation order and directing the Kentucky State Police Jefferson Regional
Laboratory to
send all evidence related to the anal swabs collected from [one of
the victims in this case] (KSP exhibit 38) ; including, if they exist,
the anal swabs, all slides developed from the anal swabs, any
sticks that were originally part of the anal swabs, any packaging
that has been used to hold the anal swabs or slides, and any
containers that have been used to process the anal swabs; to Bode
Technology Group . . . where it shall be subjected to mini-STR DNA
testing and analysis .
Bode Technology Group was unable to develop a DNA profile from the two
slides submitted by the Commonwealth (one of which had already been
subjected to testing by the Commonwealth), and Taylor filed a motion in the
Fayette Circuit Court, Special Division, requesting an evidentiary hearing be
held to determine why the Commonwealth had not also sent the anal swab
2 The Commonwealth describes the testing performed on Exhibit 38-1 by Orchid
Cellmark Laboratory as merely "standard STR" testing.
3 KRS 422.285(6) provides in part: "The state shall prepare an inventory of the
evidence and shall submit a copy of the inventory to the defense and the court."
3
listed in its inventory of evidence to Bode Technology Group, and arguing that
a hearing was needed regarding the Commonwealth's preemptive testing of one
of the slides . Taylor's motion for an evidentiary hearing was denied and his
KRS 422 .285 proceeding was dismissed .
II. Analysis
Despite the fact that the Commonwealth's inventory of evidence copied a
portion of the lab report prepared for the original trial in this case, a review of
the record demonstrates that the parties understood that the anal swab had
been consumed and only the slides derived from the anal swab remained for
DNA testing. The initial petition acknowledged "that the swabs were consumed
in analysis . . . However, some sort of a slide must have been made in order for
the contents of the swab to have been examined under a microscope so that
the determination could be made that human spermatozoa were present . . . ."
The trial judge's order specifically directed the Jefferson Regional Laboratory to
"send all evidence related to the anal swabs collected from [one of the victims in
this case] (KSP exhibit 38) ; including, if they exist, the anal swabs, all slides
developed from the anal swabs . . . ." (Emphasis added .) It is clear from the
record that neither the trial judge nor counsel for either party presumed any
actual anal swabs were still in existence. The parties specifically referred to
and discussed the slides.
Taylor cites Arey v . State , 929 A.2d 510 (Md. 2007), in support of his
position . In Arey, Maryland's highest court agreed that the trial court erred in
dismissing the appellant's petition for testing based on a police officer's
representation that because he had checked the Evidence Control Unit and the
4
forms on file, it was reasonable to conclude the evidence no longer existed . The
Court concluded that "[s]earching the ECU alone was insufficient," and that
"[beecause the State was the custodian of evidence, the State needs to check
any place the evidence could reasonably be found, unless there is a written
record that the evidence had been destroyed in accordance with then existing
protocol ." Id . at 503-04 . In sum, the Court held "a court should not conclude
that evidence no longer exists until the State performs a reasonable search for
the requested evidence." Id . at 504 .
Arey is distinguishable because the record in this case demonstrates that
the parties understood there were only two slides remaining. Additionally,
because the lab report prepared by Durbin said the anal swab was consumed
in testing, it fits within the exception in Arey for "written evidence that the
evidence had been destroyed . . . ." Id. at 504 .
Taylor's initial petition shows that from the beginning he was well aware
of the fact that there was no longer a swab, but that he thought there were
slides containing spermatozoa. Obviously, the Commonwealth merely made a
mistake in incorrectly transcribing the list of remaining evidence. Thus there is
no valid argument that there was improper destruction of evidence regarding
the swab.
However, the larger question goes to the Commonwealth's preemptive
test of one of the slides. Though the Commonwealth technically disobeyed the
court's preservation of evidence order by testing one of the slides, the testing it
did was not an improper form of testing, and the Commonwealth's mistake in
testing one of the slides does not rise to the level of misconduct that would
5
require us to reverse for a new trial in this case . Taylor cannot establish under
the statute that even if he had both slides available for DNA testing under his
preferred method, that he would have been able to establish anything more
than a mere possibility-as opposed to the "reasonable probability" required
under the statute-of exculpatory evidence . Consequently, there being no
evidence favorable to him, the trial court was not required to hold a hearing
and properly dismissed the KRS 422 .285 petition .
III. Conclusion
Under KRS 422 .285(1), a defendant may request DNA testing and
analysis of any evidence that is in the possession or control of the court or
Commonwealth . Following the testing, the court is required to hold a hearing
only "if the results of the DNA testing and analysis are favorable to the
petitioner ." KRS 422 .285(9) . However, "[i]f the results of the DNA testing and
analysis are not favorable to the petitioner, the court shall dismiss the
petition ." KRS 422 .285(8) . Here, the laboratories were unable to get a DNA
profile from any of the samples submitted . Therefore, the test results were not
favorable to the petitioner, and the trial court correctly dismissed his petition .
For the foregoing reasons, the judgment of the Fayette Circuit Court
dismissing Taylor's KRS 422 .285 proceeding is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane - Suite 302
Frankfort, Kentucky 40601
Dennis James Burke
Assistant Public Advocate
Department of Public Advocacy
207 Parker Drive, Suite One
LaGrange, Kentucky 40031
Heather Christina McGregor
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Matthew Robert Krygiel
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
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