ICA Demands Post-Trial (and Perhaps Post-Conviction) Examination of DNA in "Unusual Circumstances"

State v. Pavich (ICA September 16, 2008)

Background. Dr. Bird was found dead in his Kihei, Maui apartment. Blood was smeared on the walls, soaked on a pillow near his head, and on a bunch of napkins. The cause of death was "manual strangulation." Pavich was Avilla in her Kihei apartment along with Estencion, Granados, and Abraham. Pavich was charged with burglary in the first degree, kidnapping, robbery in the first degree, murder in the second degree, and was separately charged with possession of methamphetamine and possession with the intent to use drug paraphernalia. All seven counts were tried together. The State sent to a private laboratory, Genetic Technologies, the bloody napkins for a DNA analysis. Pavich's hired another laboratory for an independent DNA analysis with Forensic Science. Genetic Technologies reported that the blood on the napkins could belong to Bird, Pavich, or Avilla. During jury selection, the State sent Pavich a supplemental report which concluded that Pavich "could not be excluded as a major contributor to" the blood on the napkins.

According to the testimonies of Avilla, Estencion, and Granados, and Abaraham, Pavich wanted to rob Bird's apartment that night because Bird called the police on their drug use in the past. Avilla drove Pavich to Bird's and waited in the parking lot. When she heard a scuffle, she ran inside and saw Bird and Pavich struggling on the floor. Pavich was hitting Bird several times with a lamp. Avilla gave him a blender cup and he hit him with that too. It appeared to Avilla that Pavich was choking Bird. When they came back to Avilla's apartment, they were hysterical. Pavich told Estencion that Bird bit him and had teeth marks on his hand. Two weeks after the incident, Pavich was spotted by the police carrying a black bag. He dropped the bag and fled. Pavich later turned himself in. The bag had drug paraphernalia in it.

The State also called a lab technician from Genetic Technologies to testify about the results of the supplemental report. The technician testified that Pavich could not be excluded as a "major contributor" to the body fluids found on the napkins and that Pavich's DNA profile occurs in approximately 1 in 66 million Caucasians, 1 in 1 billion African-Americans, and one in 160 million in the Hispanic population. After that, Pavich moved for a mistrial or, in the alternative, to strike the testimony about the findings in the supplemental report. The circuit court struck the State's testimony about the probability, but did not strike the testimony on the matched profile. The circuit court denied the motion, but allowed a one-week continuance so that Pavich's DNA expert at Forensic Science could perform a "peer review" of the supplemental report. When Forensic Science refused, and said it would take two months to complete, the circuit court refused a further continuance. Pavich was found guilty of murder, kidnapping, robbery, burglary, and possession of paraphernalia. He moved for a new trial and sought approval of funds for another DNA expert to perform the peer review. The motion was denied.

No Errors at Trial Mainly Because Pavich Failed to Object. The ICA found no error in admitting the DNA evidence and related testimony at trial. The ICA explained that it did not move to exclude the testimony and findings in a motion in limine and Pavich did not object to the testimony during trial. There being no objection, the ICA refused to find error. As for the refusal to continuance in order to find an expeditious expert, the ICA held that the circuit court did not abuse its discretion. State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279, 1281 (1993) ("motion for continuance is addressed to the sound discretion of the trial court."). The ICA explained that there was no assurance a peer review could be completed within a reasonable time and a lengthy continuance might have detrimentally effect the jury. Nor did the ICA find error in the refusal to strike all of the technician's testimony. According to the ICA, Pavich did not object to the testimony before it was admitted. There was no objection at the time and there was no motion in limine. Moreover, Pavich had sufficient notice of the testimony because the supplemental report was disclosed months before trial. Thus, the ICA concluded that "any disadvantage created by the admission of [the testimony] was the product of Pavich's own inaction."

But Unusual Circumstances Arose to Error at Post-Trial. The ICA, however, held that the circuit court should have granted Pavich's request funds for a post-trial peer review. Aside from the DNA evidence, the State had nothing other than the testimonies of Pavich's roommates. The DNA evidence itself failed to "establish that Pavich's DNA was, in fact, found in the napkin stains." These circumstances, "where a combination of factors resulted in the major-contributor and probability testimony being presented to the jury without the defense having conducted a peer review[,]" were "unusual." According to the ICA, the post-trial peer review is necessary to rebut the testimony from Genetic Technologies. Without the peer review, it is impossible to determine whether "the jury's exposure to this testimony deprived [Pavich] of a fair trial."

Try now, ask Later? The ICA did not expressly fashion a bright-line rule for post-trial DNA tests but it did leave clues for guidance. These circumstances were "unusual" because the evidence presented to the jury was not definitive as to whether the DNA matched Pavich. Moreover, this evidence was not subject to a peer review and it was simply impossible to determine if the evidence deprived Pavich of a fair trial. The ICA has created an unusual situation here. The circuit court did not abuse its discretion in refusing a continuance, but it erred in refusing to allow funds for a post-conviction DNA. This suggests that a trial may proceed with DNA evidence that was not subjected to a peer review and, once a guilty verdict comes down, the defendant may be allowed to examine that DNA evidence used against him or her. Is this a case of try now, ask later?

Probably not. Pavich failed to file a motion in limine and he did not object to the evidence at the time of trial. Thus, the testimonial evidence was properly admitted. The ICA remanded Pavich's case to allow a post-trial peer review. And if the review is consistent with Genetic Technology's testimony, then the failure to conduct the peer review did not affect outcome after all, and a new trial would be unwarranted. Whatever the result, if the circuit court denies Pavich's motion for a new trial, he would be able to appeal that. Had Pavich objected to the admissibility of the evidence before or during trial, he would have been in a better position to argue for a new trial on appeal.

So What's the test? The ICA did not expressly fashion a bright-line rule for post-trial DNA tests. But it did leave clues for guidance in turning to case law outside the jurisdiction. Specifically, "a defendant is entitled to post-trial DNA testing" when the State's "proof's are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt or innocence once and for all." State v. Thomas, 586 A.2d 250, 254, (N.J. Super. Ct. App. Div. 1991); Commonwealth v. Brison, 618 A.2d 420, 425 (Pa. Super. Ct. 1992). The ICA appeared to have applied this standard by explaining that the State's evidence against Pavich "was not especially strong" and that the technician's testimony may have influenced the jury. The last condition from Thomas--a way to establish guilt or innocence once and for all--was not fully explored (it's unclear what that even means). Whether this last factor, or the Thomas standard at all, is crucial for later post-trial DNA questions remains to be seen.

The Footnote: Post-Trial v. Post-Conviction DNA Testing. In footnote 11, the ICA pointed out that HRS §§ 844D-121 to -133 sets out a procedure for post-conviction DNA testing. Those procedures allow a defendant who has been convicted and sentenced to move for DNA analysis of the evidence used against him or her at trial. HRS §§ 844-121 and -123. The statutes here did not apply because the motion for and denial of funds for DNA testing occurred before he was sentenced. Because neither party even mentioned these statutes, the ICA did not address them in deciding the case. And so another question emerges: whether the analysis in this case is limited to cases where a request for DNA funds or DNA testing is brought and decided after trial, but before sentencing.

The Motion to Sever. The ICA rejected Pavich's contention that the circuit court erred in failing to sever the incident with Bird from the drug charges. The ICA first pointed out that because Pavich failed to renew the motion to sever at the close of the State's case or at the close all of the evidence, the claim is waived. State v. Balanza, 93 Hawai'i 279, 288, 1 P.3d 281, 290 (2000). Nevertheless, the ICA considered the merits and still rejected Pavich's claim. Charges are properly joined when they are "based on the same conduct or on a series of acts connected together or constituting parts of a single plan." HRPP Rule 8(a). The circuit court may sever charges if it appears that joinder prejudices the defendant. HRPP Rule 14. In deciding whether severance is appropriate, the court must "weigh the possible prejudice to the defendant against the public interest in judicial economy." State v. Balanza, 93 Hawai'i at 289, 1 P.3d at 289. The ICA first concluded that the drug charges were properly joined because they were based on a series of acts connected together. According to the ICA, Pavich's motive to rob Bird, explained the ICA, was to get money for drugs. The ICA then concluded that Pavich was not prejudiced in trying the charges together. The ICA explained that even if they had been severed, the evidence of the drug possession would have been admissible in the case relating to Bird. There was also ample evidence of drug use among Pavich and his roommates. According to the ICA, there was no prejudice.

Non-Disclosure of Avilla's Plea Bargain. The ICA found no merit in Pavich's claim that the State should have disclosed certain parts of Avilla's plea agreement. The ICA agreed with the circuit court that nothing exculpatory or potentially exculpatory was withheld from Pavich.

No Instruction on EMED Necessary. The ICA also held that there was no error in refusing to instruct the jury on the defense of extreme mental or emotional disturbance. First and second degree murder is reduced to manslaughter when, "at the time [the defendant] caused the death of the other person," (1) the defendant was under the influence of an extreme mental or emotional disturbance (2) for which there is a reasonable explanation. HRS § 707-702(2). Pavich argued that the instruction should have been read because there was sufficient evidence showing that he was panicked and stressed after the death. The ICA rejected this argument. The EMED defense focuses on the defendant's state of mind "at the time" the crime was committed. State v. Moore, 82 Hawai'i 202, 210, 921 P.2d 122, 130 (1996). Evidence that Pavich was in a panic when he returned from Bird's apartment does not support the EMED defense. Nor would evidence that Pavich was highly agitated after Bird bit him. "[I]t is implicit that [EMED] will not reduce murder to manslaughter, if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as involving himself in a crime." State v. Dumlao, 6 Haw. App. 173, 182 n. 13, 715 P.2d 822, 829 n. 13 (1986), overruled on other grounds in State v. Seguritan, 70 Haw. 173, 766 P.2d 128 (1998). The ICA also concluded that even if there had been sufficient evidence supporting the EMED defense, the failure to instruct the jury was harmless beyond a reasonable doubt.


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