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04-03-2009, 02:45 AM
Kayle Barrington Bates, Petitioner, vs. Walter A. McNeil, etc., Respondent (2009)
Supreme Court of Florida
_____________
No. SC07-611
_____________
KAYLE BARRINGTON BATES,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC08-66
____________
KAYLE BARRINGTON BATES,
Petitioner,
vs.
WALTER A. MCNEIL, etc.,
Respondent.
[January 30, 2009]
PER CURIAM.
Kayle Barrington Bates appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed
- 1 -
under Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
STATEMENT OF THE FACTS
In 1983, Bates was convicted for the 1982 murder of Janet Renee White.
We described the unfortunate facts of the murder previously, stating, "Bates abducted a woman from her office, took her into some woods behind [a State Farm Insurance office] building [where she worked], attempted to rape her, stabbed her to death, and tore a diamond ring from one of her fingers." Bates v. State, 465 So. 2d 490, 491 (Fla. 1985) (Bates I).
We have previously described Bates' procedural history in detail. See id.
However, we briefly summarize it again here. Bates was convicted in 1983 of first-degree murder, kidnapping, attempted ***ual battery, and armed robbery. Id.
He was sentenced to death, two terms of life imprisonment, and fifteen years of imprisonment. Id. After two direct appeals1 and a rule 3.850 motion,2 Bates was ultimately again sentenced to death. Bates v. State, 750 So. 2d 6, 8-9 (Fla. 1999) (Bates IV).3 In Bates' most recent resentencing,
1.
See id. (Bates I); Bates v. State, 506 So. 2d 1033 (Fla. 1987) (Bates II).
2.
See Bates v. Dugger, 604 So. 2d 457 (Fla. 1992) (Bates III).
3. In Bates' most recent direct appeal, Bates IV, he raised the following claims:
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the jury recommended death by a vote of nine to three. The court found three aggravating circumstances: capital murder committed during an enumerated felony (kidnapping and attempted ***ual battery); capital murder committed for pecuniary gain; and HAC. The court found two statutory mitigating circumstances: no significant history of prior criminal history (significant weight); and appellant's age of twenty-four at the time he committed the murder (little weight). The court found eight nonstatutory mitigating circumstances: appellant was under some emotional distress at the time of the murder (significant weight); appellant's ability to conform his conduct to the requirements of the law was impaired to some degree (significant weight); appellant's family background (some weight); appellant's national guard service (little weight); appellant was a dedicated soldier and patriot (little weight); appellant's low-average IQ (little weight); appellant's love for his wife and children and being a supportive father (some weight); and appellant was a good employee (little weight).
After weighing the relevant factors, the court determined that the aggravators outweighed the mitigators and imposed the death penalty.
(1) whether the trial court's refusal to instruct the sentencing jury that life without the possibility of parole was a sentencing alternative to death denied [Bates] due process and a fundamentally fair capital sentencing proceeding; (2) whether the sentencing jury rendered a death verdict contrary to Florida statutory law and the trial court's jury instructions; (3) whether the trial court erred by excluding certain mitigation evidence; (4) whether the death sentence is disproportionate; (5) whether the trial court erred by failing to consider or evaluate relevant nonstatutory mitigation; (6) whether the trial court improperly qualified the jury pool in appellant's absence;
(7) whether the trial court erred by not appointing additional medical experts to assist the defense in developing mitigation; (8) whether the trial court erred in finding each of the three aggravating circumstances; (9) whether the trial court erred by failing to allow appellant to introduce evidence of his innocence.
Bates IV, 750 So. 2d at 9 n.1.
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Id. at 9.
At Bates' 1995 resentencing, the State advanced essentially the same theory of the case that it put forth in the 1983 trial. It called witnesses to testify that Bates was found at the scene of the crime; that he had the victim's blood on his clothing; that he had the victim's ring in his pocket when arrested; that Bates had given various inconsistent confessions that implicated him in the crime; and that other physical evidence implicated him. That physical evidence included a watch pin found at the scene of the crime that was consistent with Bates' watch; Bates' buck knife case and hat found near the victim; two green fibers found on the victim's clothing that were consistent with Bates' pants; and chemically indicated semen found both on the victim's underwear and Bates' underwear.
The State also argued that the crime occurred in the course of a very short window. At 1 p.m., the victim was seen arriving at the State Farm Insurance Office. The victim answered the phone at State Farm upon arriving and immediately screamed. At 1:07 p.m., the State Farm Insurance agent arrived. At 1:08 p.m., law enforcement officers began to arrive. At approximately 1:20 p.m., Bates was apprehended as he emerged from the woods at the scene of the crime.
The State also emphasized the dozens of bruises, abrasions, and lacerations that the victim suffered, as well as the two stab wounds and the indications that she had been strangled. The State noted that the stab wounds were consistent with the
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exact type of knife that Bates carried, the same type of knife that matched Bates' knife case found at the scene of the crime.
Bates then filed the postconviction motion at issue in this case, raising eighteen claims with several subclaims. The postconviction court held a Huff4 hearing, granted an evidentiary hearing on two of the claims, and summarily denied the remaining claims. State v. Bates, No. 82-661 (Fla. 14th Cir. Ct. order denying relief in part and order granting evidentiary hearing filed July 29, 2005) (Huff Order). The postconviction court also denied Bates' motion for postconviction DNA testing. See State v. Bates, No. 82-661B (Fla. 14th Cir. Ct. order denying defendant's motion for postconviction DNA testing filed Mar. 18, 2004) (DNA Order). Finally, the postconviction court denied Bates' remaining two claims after conducting an evidentiary hearing. See State v. Bates, No. 82- 661C (Fla. 14th Cir. Ct. order denying defendant's motion for postconviction relief following evidentiary hearing filed Mar. 1, 2007) (Postconviction Order).
Bates has now appealed to this Court the denial of four of those claims, containing numerous subclaims, and has also filed a petition for a writ of habeas corpus. We affirm the postconviction court's denial of relief and deny the petition for writ of habeas corpus on both issues raised.
ANALYSIS
4.
Huff v. State, 622 So. 2d 982 (Fla. 1993).
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Motion for DNA Testing
In Bates' first claim, he argues that the postconviction court improperly denied his motion for DNA testing of several items under Florida Rule of Criminal Procedure 3.853. He claims that he did not commit the murder and that DNA testing of hairs, blood, semen, and other evidence would prove his innocence.
In order to be entitled to postconviction DNA testing, a defendant's motion must include "a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained." Fla. R. Crim. P. 3.853(b)(1). The motion must also allege that the evidence was not previously tested or that the results of such testing were inconclusive. Fla. R. Crim. P. 3.853(b)(2).
Additionally, a defendant's motion must explain how the DNA testing requested will exonerate the defendant or mitigate the defendant's sentence. Fla.
R. Crim. P. 3.853(b)(3)-(4). A defendant's motion "is facially sufficient with regard to the exoneration issue if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial." Knighten v. State, 829 So. 2d 249, 252 (Fla. 2d DCA 2002). "The clear requirement of [the] provisions [of rule 3.853] is that a movant . . . must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a
- 6 -
lesser sentence." Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). Further, "the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case." Id.
Bates' motion requested testing of biological material and identified it as being in the possession of the Bay County Clerk of Court and the Bay County Sheriff's Office. These items include blood found on the defendant's blue shirt and the defendant's pants, semen found on the victim's underwear, vaginal swabs and washing, semen found on Bates' white briefs, cotton fibers that were linked to Bates' green pants, and head and pubic hairs. The motion alleged:
11. Mr. Bates maintains that he did not kill Ms. White. By showing that Mr. Bates was not the source of the hairs, semen or blood found on the body of Ms. White, Mr. Bates can establish that someone else committed the murder. Knighten v. State, 829 So. 2d 249 (Fla. 2d DCA 2002). Likewise, testing of the rape kit, the victim's clothing, the blue cord and Mr. Bates' clothing can establish the presence at the crime scene of DNA profiles that are not Mr. Bates.
12. The identity of Ms. White's assailant was litigated at trial and has been disputed during the post-conviction litigation process. The DNA testing of all the biological evidence could establish that Mr. Bates commit [sic] the crime for which he is now serving a death sentence. The DNA testing will bear "directly on [Mr. Bates'] guilt or innocence." Zollman v. State, 820 So. 2d at 1063.
In a detailed order, the postconviction court denied the motion after determining based upon the record that "there [was] no reasonable probability that DNA evidence would either exonerate the defendant or mitigate his sentence."
DNA Order at 6. The postconviction court concluded:
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This was not solely a circumstantial evidence type of case. In People
v. Travis, 329 Ill. App. 3d 280, 264 Ill. Dec. 785, 771 N.E.2d 489 (2002)[,] DNA testing was disallowed because the defendant had admitted to committing the crimes with a co-defendant and the presence or absence of the defendant's DNA would not conclusively establish that the defendant did not participate in the crimes. Here, the defendant, in his second statement, never mentioned the presence of a third party at the time the scissors were stabbed into the victim's chest. The defendant never mentioned a third party being present when he carried the victim to the wood line. The defendant never mentioned a third party throwing away the scissors after removing them from the victim's chest. Nor did the defendant mention a third party when he found the victim's ring on the sidewalk. The defendant's second taped statement was consistent with the evidence found at the crime scene. The defendant has failed to explain, with reference to the specific facts of this crime and the items he wishes test[ed], how the DNA testing will exonerate him or will mitigate his sentence in light of his various statements to police. See Jackson v. State, 29 Fla. L. Weekly 5-13 January 16, 2004; Galloway v. State, 802 So. 2d 1173 (Fla. 1st DCA 2001).
DNA Order at 6-7.
We find that it was reasonable for the postconviction court to conclude that the results of the testing that Bates seeks in his motion would not produce "a reasonable probability" of Bates' exoneration. See Hitchcock, 866 So. 2d at 27.
Bates was arrested at the scene of the crime just minutes after the victim's death.
He had the victim's diamond ring in his pocket, and he tried to conceal it from law enforcement officers. A watch pin consistent with Bates' watch was found inside the victim's office, and Bates' watch was missing a watch pin. Footprints consistent with Bates' shoes were found behind the State Farm office building.
Bates' hat was found near the victim's body. Two green fibers were found on the
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victim's clothing--one on her blouse and one on her skirt--that were consistent with the material that Bates' pants were made of. A knife case was found near the victim's body, and that case was identified by various witnesses as being the exact type that Bates wore. The victim's two fatal stab wounds were consistent with the type of buck knife that Bates carried in that case. The consistency between the stab wounds and Bates' knife was striking; the wounds were four inches deep, and Bates' knife was four inches long; the width of the wounds was consistent with the width of Bates' knife; and as was testified to at the resentencing, there were abrasions at the bottom of the wound that were consistent with marks that Bates' knife would have made. Bates' statements to investigators and at his trial also placed him either at the scene of the crime or directly involved in the victim's murder. Bates stated during a telephone call to his wife after his arrest that he killed a woman. This evidence was introduced at his original trial. Given this accumulation of evidence, we find no error in the postconviction court's conclusion that DNA testing would not "give rise to a reasonable probability of acquittal." Id.; see also Sireci v. State, 908 So. 2d 321, 325 (Fla. 2005) ("[I]n light of the other evidence of guilt, there is no reasonable probability that Sireci would have been acquitted . . . .").
We recognize that the prosecutor argued at trial that Bates raped the victim, and we also recognize that the DNA testing could show that Bates' semen was not
- 9 -
found in the victim's vagina. However, the jury did not find Bates guilty of ***ual assault but, rather, found Bates guilty of attempted ***ual assault. Again, in view of the defendant's statements as to what he did during the brief time period in which the victim's murder occurred, which statements were consistent with attempted ***ual battery, and also in view of the physical evidence in the record, we agree with the trial court that the DNA of the semen in the victim's vagina "was not a critical link in the proof against the defendant at trial." DNA Order at
Supreme Court of Florida
_____________
No. SC07-611
_____________
KAYLE BARRINGTON BATES,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC08-66
____________
KAYLE BARRINGTON BATES,
Petitioner,
vs.
WALTER A. MCNEIL, etc.,
Respondent.
[January 30, 2009]
PER CURIAM.
Kayle Barrington Bates appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed
- 1 -
under Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
STATEMENT OF THE FACTS
In 1983, Bates was convicted for the 1982 murder of Janet Renee White.
We described the unfortunate facts of the murder previously, stating, "Bates abducted a woman from her office, took her into some woods behind [a State Farm Insurance office] building [where she worked], attempted to rape her, stabbed her to death, and tore a diamond ring from one of her fingers." Bates v. State, 465 So. 2d 490, 491 (Fla. 1985) (Bates I).
We have previously described Bates' procedural history in detail. See id.
However, we briefly summarize it again here. Bates was convicted in 1983 of first-degree murder, kidnapping, attempted ***ual battery, and armed robbery. Id.
He was sentenced to death, two terms of life imprisonment, and fifteen years of imprisonment. Id. After two direct appeals1 and a rule 3.850 motion,2 Bates was ultimately again sentenced to death. Bates v. State, 750 So. 2d 6, 8-9 (Fla. 1999) (Bates IV).3 In Bates' most recent resentencing,
1.
See id. (Bates I); Bates v. State, 506 So. 2d 1033 (Fla. 1987) (Bates II).
2.
See Bates v. Dugger, 604 So. 2d 457 (Fla. 1992) (Bates III).
3. In Bates' most recent direct appeal, Bates IV, he raised the following claims:
- 2 -
the jury recommended death by a vote of nine to three. The court found three aggravating circumstances: capital murder committed during an enumerated felony (kidnapping and attempted ***ual battery); capital murder committed for pecuniary gain; and HAC. The court found two statutory mitigating circumstances: no significant history of prior criminal history (significant weight); and appellant's age of twenty-four at the time he committed the murder (little weight). The court found eight nonstatutory mitigating circumstances: appellant was under some emotional distress at the time of the murder (significant weight); appellant's ability to conform his conduct to the requirements of the law was impaired to some degree (significant weight); appellant's family background (some weight); appellant's national guard service (little weight); appellant was a dedicated soldier and patriot (little weight); appellant's low-average IQ (little weight); appellant's love for his wife and children and being a supportive father (some weight); and appellant was a good employee (little weight).
After weighing the relevant factors, the court determined that the aggravators outweighed the mitigators and imposed the death penalty.
(1) whether the trial court's refusal to instruct the sentencing jury that life without the possibility of parole was a sentencing alternative to death denied [Bates] due process and a fundamentally fair capital sentencing proceeding; (2) whether the sentencing jury rendered a death verdict contrary to Florida statutory law and the trial court's jury instructions; (3) whether the trial court erred by excluding certain mitigation evidence; (4) whether the death sentence is disproportionate; (5) whether the trial court erred by failing to consider or evaluate relevant nonstatutory mitigation; (6) whether the trial court improperly qualified the jury pool in appellant's absence;
(7) whether the trial court erred by not appointing additional medical experts to assist the defense in developing mitigation; (8) whether the trial court erred in finding each of the three aggravating circumstances; (9) whether the trial court erred by failing to allow appellant to introduce evidence of his innocence.
Bates IV, 750 So. 2d at 9 n.1.
- 3 -
Id. at 9.
At Bates' 1995 resentencing, the State advanced essentially the same theory of the case that it put forth in the 1983 trial. It called witnesses to testify that Bates was found at the scene of the crime; that he had the victim's blood on his clothing; that he had the victim's ring in his pocket when arrested; that Bates had given various inconsistent confessions that implicated him in the crime; and that other physical evidence implicated him. That physical evidence included a watch pin found at the scene of the crime that was consistent with Bates' watch; Bates' buck knife case and hat found near the victim; two green fibers found on the victim's clothing that were consistent with Bates' pants; and chemically indicated semen found both on the victim's underwear and Bates' underwear.
The State also argued that the crime occurred in the course of a very short window. At 1 p.m., the victim was seen arriving at the State Farm Insurance Office. The victim answered the phone at State Farm upon arriving and immediately screamed. At 1:07 p.m., the State Farm Insurance agent arrived. At 1:08 p.m., law enforcement officers began to arrive. At approximately 1:20 p.m., Bates was apprehended as he emerged from the woods at the scene of the crime.
The State also emphasized the dozens of bruises, abrasions, and lacerations that the victim suffered, as well as the two stab wounds and the indications that she had been strangled. The State noted that the stab wounds were consistent with the
- 4 -
exact type of knife that Bates carried, the same type of knife that matched Bates' knife case found at the scene of the crime.
Bates then filed the postconviction motion at issue in this case, raising eighteen claims with several subclaims. The postconviction court held a Huff4 hearing, granted an evidentiary hearing on two of the claims, and summarily denied the remaining claims. State v. Bates, No. 82-661 (Fla. 14th Cir. Ct. order denying relief in part and order granting evidentiary hearing filed July 29, 2005) (Huff Order). The postconviction court also denied Bates' motion for postconviction DNA testing. See State v. Bates, No. 82-661B (Fla. 14th Cir. Ct. order denying defendant's motion for postconviction DNA testing filed Mar. 18, 2004) (DNA Order). Finally, the postconviction court denied Bates' remaining two claims after conducting an evidentiary hearing. See State v. Bates, No. 82- 661C (Fla. 14th Cir. Ct. order denying defendant's motion for postconviction relief following evidentiary hearing filed Mar. 1, 2007) (Postconviction Order).
Bates has now appealed to this Court the denial of four of those claims, containing numerous subclaims, and has also filed a petition for a writ of habeas corpus. We affirm the postconviction court's denial of relief and deny the petition for writ of habeas corpus on both issues raised.
ANALYSIS
4.
Huff v. State, 622 So. 2d 982 (Fla. 1993).
- 5 -
Motion for DNA Testing
In Bates' first claim, he argues that the postconviction court improperly denied his motion for DNA testing of several items under Florida Rule of Criminal Procedure 3.853. He claims that he did not commit the murder and that DNA testing of hairs, blood, semen, and other evidence would prove his innocence.
In order to be entitled to postconviction DNA testing, a defendant's motion must include "a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained." Fla. R. Crim. P. 3.853(b)(1). The motion must also allege that the evidence was not previously tested or that the results of such testing were inconclusive. Fla. R. Crim. P. 3.853(b)(2).
Additionally, a defendant's motion must explain how the DNA testing requested will exonerate the defendant or mitigate the defendant's sentence. Fla.
R. Crim. P. 3.853(b)(3)-(4). A defendant's motion "is facially sufficient with regard to the exoneration issue if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial." Knighten v. State, 829 So. 2d 249, 252 (Fla. 2d DCA 2002). "The clear requirement of [the] provisions [of rule 3.853] is that a movant . . . must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a
- 6 -
lesser sentence." Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). Further, "the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case." Id.
Bates' motion requested testing of biological material and identified it as being in the possession of the Bay County Clerk of Court and the Bay County Sheriff's Office. These items include blood found on the defendant's blue shirt and the defendant's pants, semen found on the victim's underwear, vaginal swabs and washing, semen found on Bates' white briefs, cotton fibers that were linked to Bates' green pants, and head and pubic hairs. The motion alleged:
11. Mr. Bates maintains that he did not kill Ms. White. By showing that Mr. Bates was not the source of the hairs, semen or blood found on the body of Ms. White, Mr. Bates can establish that someone else committed the murder. Knighten v. State, 829 So. 2d 249 (Fla. 2d DCA 2002). Likewise, testing of the rape kit, the victim's clothing, the blue cord and Mr. Bates' clothing can establish the presence at the crime scene of DNA profiles that are not Mr. Bates.
12. The identity of Ms. White's assailant was litigated at trial and has been disputed during the post-conviction litigation process. The DNA testing of all the biological evidence could establish that Mr. Bates commit [sic] the crime for which he is now serving a death sentence. The DNA testing will bear "directly on [Mr. Bates'] guilt or innocence." Zollman v. State, 820 So. 2d at 1063.
In a detailed order, the postconviction court denied the motion after determining based upon the record that "there [was] no reasonable probability that DNA evidence would either exonerate the defendant or mitigate his sentence."
DNA Order at 6. The postconviction court concluded:
- 7 -
This was not solely a circumstantial evidence type of case. In People
v. Travis, 329 Ill. App. 3d 280, 264 Ill. Dec. 785, 771 N.E.2d 489 (2002)[,] DNA testing was disallowed because the defendant had admitted to committing the crimes with a co-defendant and the presence or absence of the defendant's DNA would not conclusively establish that the defendant did not participate in the crimes. Here, the defendant, in his second statement, never mentioned the presence of a third party at the time the scissors were stabbed into the victim's chest. The defendant never mentioned a third party being present when he carried the victim to the wood line. The defendant never mentioned a third party throwing away the scissors after removing them from the victim's chest. Nor did the defendant mention a third party when he found the victim's ring on the sidewalk. The defendant's second taped statement was consistent with the evidence found at the crime scene. The defendant has failed to explain, with reference to the specific facts of this crime and the items he wishes test[ed], how the DNA testing will exonerate him or will mitigate his sentence in light of his various statements to police. See Jackson v. State, 29 Fla. L. Weekly 5-13 January 16, 2004; Galloway v. State, 802 So. 2d 1173 (Fla. 1st DCA 2001).
DNA Order at 6-7.
We find that it was reasonable for the postconviction court to conclude that the results of the testing that Bates seeks in his motion would not produce "a reasonable probability" of Bates' exoneration. See Hitchcock, 866 So. 2d at 27.
Bates was arrested at the scene of the crime just minutes after the victim's death.
He had the victim's diamond ring in his pocket, and he tried to conceal it from law enforcement officers. A watch pin consistent with Bates' watch was found inside the victim's office, and Bates' watch was missing a watch pin. Footprints consistent with Bates' shoes were found behind the State Farm office building.
Bates' hat was found near the victim's body. Two green fibers were found on the
- 8 -
victim's clothing--one on her blouse and one on her skirt--that were consistent with the material that Bates' pants were made of. A knife case was found near the victim's body, and that case was identified by various witnesses as being the exact type that Bates wore. The victim's two fatal stab wounds were consistent with the type of buck knife that Bates carried in that case. The consistency between the stab wounds and Bates' knife was striking; the wounds were four inches deep, and Bates' knife was four inches long; the width of the wounds was consistent with the width of Bates' knife; and as was testified to at the resentencing, there were abrasions at the bottom of the wound that were consistent with marks that Bates' knife would have made. Bates' statements to investigators and at his trial also placed him either at the scene of the crime or directly involved in the victim's murder. Bates stated during a telephone call to his wife after his arrest that he killed a woman. This evidence was introduced at his original trial. Given this accumulation of evidence, we find no error in the postconviction court's conclusion that DNA testing would not "give rise to a reasonable probability of acquittal." Id.; see also Sireci v. State, 908 So. 2d 321, 325 (Fla. 2005) ("[I]n light of the other evidence of guilt, there is no reasonable probability that Sireci would have been acquitted . . . .").
We recognize that the prosecutor argued at trial that Bates raped the victim, and we also recognize that the DNA testing could show that Bates' semen was not
- 9 -
found in the victim's vagina. However, the jury did not find Bates guilty of ***ual assault but, rather, found Bates guilty of attempted ***ual assault. Again, in view of the defendant's statements as to what he did during the brief time period in which the victim's murder occurred, which statements were consistent with attempted ***ual battery, and also in view of the physical evidence in the record, we agree with the trial court that the DNA of the semen in the victim's vagina "was not a critical link in the proof against the defendant at trial." DNA Order at