State of Maine v. Donovan

STATE OF MAINE SUPERIOR COURT

CRIMINAL ACTION

KENNEBEC, ss. DOCKET NO. CR- 94-393

SR, A co bee | A) _ Uf

ONALD L. GARERS

STATE OF MAINE x LAN LIQRARY

v. oa DECISION AND ORDER

JAN

DANIEL DONOVAN,

Defendant

This matter is before the court on the petitioner's Post-Judgment Conviction

Motion for DNA Testing and the State's Motion to Dismiss the petitioner's motion. As

both motions address the same topic, namely whether the petitioner has the right to

have certain exhibits submitted for DNA analysis, they will be considered together.

I. Facts and Procedural History.

The petitioner, Daniel Donovan (Donovan), was convicted on February 5, 1996,

after a jury trial of the offenses of Gross Sexual Assault (GSA), Assault, Criminal

Mischief and Violation of Bail Conditions. It is the conviction for GSA, for which the

petitioner received a sentence of 20 years, all but 15 years suspended, and 6 years

probation, that he seeks to affect by this motion. In this regard he alleges, and the

record supports, that the evidence at trial included the following:

On June 24, 1994, Robyn Reed (Reed), the petitioner's live-in companion, fled

their home in Monmouth after she claimed to have been assaulted and her auto

damaged by the petitioner. She returned to the house, however, at about 4:00 a.m.

with a police escort. Upon arrival, the officer found the petitioner and Gary Marsella

sleeping. After Donovan was awakened, Reed elected to remain at their house.

At about 4:28 a.m., the police dispatch center received a 9-1-1 call from an "open

line" which the Monmouth Police believed to have come from the petitioner's residence,

although they had no confirmation of its origin. From their vantage point nearby, the

Monmouth police officers could hear an argument taking place inside the petitioner's

home. Once it was confirmed that the call had come from that residence, one officer

approached the house and asked to be let in. From the inside of the house he could

hear Donovan say several times, "You came here for this." T.T., p. 109. The officer

could also hear "what sounded like somebody being hilt (sic) against a wall or against

the floor." Id. He also heard a female crying and asking that the police be let in.

The petitioner let the officer in whereupon the latter was advised that Reed had

left by another door. The officer went to that door and found Reed outside on the

porch crying, "shaking out of control," wearing ripped panties and holding her bra top

up with one hand. T.T., pp. 111-112. She told the officer that, "he raped me" and that he

would not let her leave. T.T., pp. 111, 135.

The officer, now joined by his chief, wrapped a blanket around Reed, and took

her to their police cruiser. They then forcibly re-entered the house where they found

the petitioner lying on his bed. They placed him under arrest and advised him that he

was charged with rape to which the petitioner replied that he did not rape Ms. Reed. In

the meantime, Gary Marsella, also a resident in the house, had come downstairs and

joined the group. During this time, the defendant told the police they were stupid for

having left Reed at his residence, and that "she was his problem." T.T., p. 119.

The petitioner was transported to the Kennebec County Jail where the

sweatpants he had been wearing were taken from him.

In the meantime, Reed had been taken to the Kennebec Valley Medical Center

where she was interviewed by the investigating officer who found her to be "visibly

shaken" and unable to talk. T.T., p. 123. While there, however, at about 7:00 a.m.,

hospital staff took Reed's bra, panties and the blankets wrapped around her, but no

examination via "the rape collection kit" was performed because Reed "refused the

examination" although the attending nurse told her, "that the longer she waited to have

an examination the harder it would be to collect evidence, to find evidence to collect.”

T.T., pp. 150, 152, 155. The nurse did observe that Reed had recent abrasions and

scratches on her neck and chest. She also had blood stains on the inside of both her

legs, although the source of the blood was not determined. Reed left the hospital at

approximately 9:15 a.m.

At about 12:40 p.m., Reed returned to the emergency room where she was seen

by the same nurse. She was still upset and complained of abdominal pain. T.T., p. 157.

She was wearing a sweatsuit, apparently the same outfit the hospital had given her

when she left earlier that day. T.T., pp. 156-157. These clothes were collected from her

and turned over to a police officer. She was then given a "johnny" and participated in a

rape examination for the purposes of collecting evidence.1_ During this examination, in

addition to the bruises and scratches previously observed, a bruise was noted in the

middle of Reed's back.

The physician who performed the examination on Reed used gauze pads or

swabs from the rape kit to take samples from Reed's external genitalia. The doctor

1 From the report of the forensic chemist, which was not admitted at trial, her testimony, and

that of the nurse, it is apparent that no sanitary napkin was taken during Reed's first hospital visit but

was taken, instead, during this second visit. Item L94-320-18 in the report, also marked as State's

exhibit 28, is the black and white torn underpants taken from Reed on her first trip to the hospital. See

Motion for DNA Testing, Attachment 4; T.T., pp. 111-112, 146-149, 170, 264, 268-269, 359, 372-373, 439.

No sanitary napkin is described in the report or anywhere in the trial testimony as having been seized

with these torn underpants, bra or blankets when Reed was taken to the hospital from the site of the

alleged rape. Item L94-320-23D, however, describes a second pair of underpants containing a sanitary

napkin which, from the context of the report, apparently were seized during the second hospital visit.

Nothing in the testimony or the exhibits would contradict this conclusion.

3

observed blood during the pelvic examination which he believed to be menstrual

blood, noting no traumatic injuries to that part of her body.

Reed advised the doctor during the examination that her assailant had used a

condom and had ejaculated during the sexual assault. The doctor also took "collections"

from inside Reed's vagina which he examined microscopically on a slide and found no

sperm, opining that he would not have expected to find any if a condom was used.

T.T., pp. 203-204. He also offered the opinion that it would be a little unusual, “but

plausible as a possibility” for there to be spillage of semen on the external genitalia

under some circumstances when a condom is used. T.T., p. 205.

After the police had delivered the petitioner to jail, and Reed to the hospital, they

returned to their residence and found in the top of the kitchen trash can the shirt, now

ripped, which they had seen Reed wear on their first encounter with her that morning.

The Monmouth police chief returned another time to the same house later that

morning with Reed after her second visit to the hospital. The purpose of this visit was

to search for other physical evidence, including a condom. The chief reexamined the

kitchen garbage bag where he had found Reed's ripped shirt. There he found an

opened plastic condom package and a white plastic flip top cap, such as one might find

on a catchup bottle, inside of which was a used condom. In this regard, Reed had told

the chief that the condom used in the assault might be in one of the trash cans in the

house.

Reed testified that the petitioner had used a condom during the sexual assault,

that he always used a condom during intercourse and always threw them in the toilet

after they had been used.

Thereafter the physical exhibits seized were shipped to the Maine State Police

Crime Laboratory where they were examined by Allison Gingrass, a forensic chemist.

She testified about these exhibits as follows:

- The petitioner's gray sweatpants had "thin red brown stains on the inside

of the waistband," but they could not be confirmed as human blood. T.T.,

p. 437. No semen was found on this item.

- The torn underpants, State's exhibit 28, "had a very thin red brown stain,

which would indicate there was blood in the crotch.” T.T., p. 439. No

semen was detected in the crotch of this garment.

- The swab of Reed's external genitalia also had thin red brown stains.

Semen was detected on this item. However, the swabbing contained a

mixture of fluids from Reed and whoever deposited the semen. As a

result, there was a dilution factor so that it could not be determined what

part of the mixture belonged to Reed and what part belonged to the other

person.

- This mixed fluid stain contained the H antigen which meant that substance

in the stain came from a group O person, the group Reed belongs to.

- It could not be said that some of the H antigen in the substance did not

come from someone else because the stain tested was a mixture of bodily

fluids. However, if the semen did come from a person with a different

blood grouping, one would not necessarily find that evidence because the

fluids were mixed and diluted, thereby masking any results.

- Donovan's blood grouping is a B secretor, a B and H blood group.

- The condom contained semen with both the B and H blood group,

indicating that the semen came from a group B person who was a

secretor.

- It is impossible to determine when the examined stains were deposited.

Although she did not testify as to these conclusions, the chemist's report shows

that she found no semen on the vaginal swabs taken from Reed during her second

hospital visit, found blood, but no semen, in the crotch area of the blue sweatpants she

wore on this visit, and no semen on a heavily blood-stained sanitary napkin also taken

on this occasion. Motion for DNA Testing, Attachment 4, p. 6.

II. Discussion.

The petitioner's argument is founded on the contention that Reed had no sexual

intercourse before her first hospital visit on June 24, 1994, as evidenced by the absence

of semen on the sanitary napkin she was wearing at that time. According to his

argument, "The sanitary napkin goes to the heart of the Petitioner's claim that Robyn

was not raped." Motion for DNA Testing, p. 4. As noted at footnote 1, infra, however,

it is apparent that the sanitary napkin was not taken during this hospital visit, but was

seized on Reed's second trip to the emergency room. Nevertheless, while not

mentioned by the petitioner, it is true that the torn underwear Reed had when she first

visited the hospital after the alleged rape contained blood, but no semen.

The petitioner further argues that Reed, on leaving the hospital, knew that the

medical staff there was looking for semen. With that knowledge, the petitioner claims,

she went home and had sexual intercourse with Gary Marsella, or another person, so

that "the nurse in the exam room could discover semen on her vagina." Memorandum

in Opposition to State's Motion to Dismiss, p. 4. Marsella then drove her back to the

6

hospital so that she could then submit to the sexual assault examination. As noted, it

was during that examination that a swab was taken of Reed's external genitalia which

ultimately showed blood consistent with her type mixed with semen, and the presence

of the H antigen.

The petitioner argues that this test of the mixed fluids taken from this swab

shows that no B blood group substances were present on this swab.” Accordingly, he

contends that someone else is responsible for the semen found on Reed's genitalia and

that DNA testing of this specimen would establish that the semen was not his, thereby

establishing his innocence.

With respect to the condom, although the chemist testified that it contained

semen with the B and H blood group which would permit the conclusion that it came

from a type B secretor such as Donovan, the petitioner argues that this semen, too,

came from another man. As such, he asks that this exhibit be submitted for DNA

testing, contending that it will show the semen originated from someone else.

Pursuant to the statute relied on by the petitioner, the court is to order DNA

analysis if the movant "presents prima facie evidence that .. . [t]he identity of the

person as the perpetrator of the crime that resulted in the conviction was at issue

during the person's trial." 15 M.R.S.A. § 2138(4)(E).?

2 Actually, the chemist never testified that no B blood group substances were present in the

fluid on the swab.

3 It appears that the petitioner meets all the statutory prerequisites to file this motion and

that he has presented prima facie evidence as to the other elements necessary to obtain the order

sought via this section. In this regard, the court concludes that the State's argument that the petitioner

has failed to establish that the “evidence sought to be analyzed is material to the issue of the person's

identity as the perpetrator of ... the crime ...", 15 M.R.S.A. § 2138(4)(A) is without merit, so that this

contention will not be addressed here. This is because the evidentiary exhibits at issue here plainly

bear on the issue of the perpetrator's identity; were it otherwise the State would never have offered

them, and the court would not have admitted them, as exhibits at trial.

Relying on the case law submitted by the parties which comes from other

jurisdictions, but interprets statutes similar to ours, it appears that the petitioner cannot

meet his burden of persuasion.

From these precedents, it appears that the statutory remedy which allows DNA

testing is confined to trials where identity was a legitimately contested issue, although

not necessarily the only issue tried. People v. Urioste, 316 Ill. App.3d, 307, 736 N.E.2d 706,

713, 249 Ill. Dec. 512, 519 (Ill. App. 2000). In the case at bar, identity of Reed's alleged

assailant was never at issue; instead, the attack on the State's case was that Reed was

untruthful and that there was no sexual intercourse, forced or otherwise.* T.T., pp. 584-

586, 589-590, 592, 596-599, 602. Indeed, the petitioner's arguments in support of this

motion are consistent with that approach -- Reed was never sexually assaulted; Reed

engaged in consensual intercourse with a man, not petitioner, to create evidence of

intercourse; and Reed's intention was to use that evidence to bolster her accusations

against the petitioner.

In this regard, if the petitioner's theory is correct that Reed had sexual

intercourse with another man between hospital visits in order to produce evidence of

semen, DNA testing of exhibits taken during the second hospital visit would only

demonstrate whether some other man had had consensual intercourse with Reed

sometime between 9:15 a.m. and 12:40 p.m. on June 24. While such evidence, if

produced, would impeach Reed's credibility, it does not address the identity of the

person who she says raped her at approximately 4:30 a.m. that morning.

4 At petitioner's post-conviction review proceeding, he made the same point -- no sexual

intercourse with Reed, forced or otherwise, occurred between the two police visits to his home early in

the morning of June 24, 1994. PCRT, pp. 170-171.

The same observations can be made about the semen in the condom found in

the trash. If this was used by Marsella or another man to have intercourse with Reed

between her hospital visits and "planted" for the police to find, DNA analysis of that

semen would only show that Reed appears to be manipulative -- a point already

promoted thoroughly at trial by the petitioner.° It would also show that some male

other than the petitioner had intercourse with Reed mid-morning on June 24 -- well

after she had reported being raped. Moreover, at the hearing on the petitioner's post-

conviction petition, he testified that he normally wore a condom when having sexual

intercourse with Reed after which it would be thrown into the toilet or the trash.

PCRT, p. 166. He also testified that he had had sexual intercourse with Reed the day

before this event, and the night before that. PCRT, p. 171.6 If this account is accurate,

then the condom in the trash seized by the police on June 24th was as likely one used

several days earlier as it was by another man earlier on June 24, or by the petitioner |

himself when it is alleged he raped Reed at about 4:00 a.m. on that day. This is so,

because, in part, there is no way of knowing how long a fluid sample existed before it

was tested, according to the testimony of the forensic chemist. T.T., p. 456. In other

words, DNA analysis of the condom would simply yield no persuasive evidence as to

the identity of Reed's assailant. Thus, from the evidence described, it appears that the

DNA in this semen was either Donovan's or the man with whom Reed allegedly had

5 It appears to be inconsistent.with the petitioner's theory of this case that Reed would have

intercourse between hospital visits with a willing co-conspirator in order to have semen later found in

her vagina by hospital staff and then have that intercourse conducted with a condom which is

designed to prevent semen from entering the vagina.

6 Contrary to this testimony, the petitioner has filed an affidavit with this court in which he

denies having sexual intercourse with Robyn Reed in June of 1994. Affidavit of Daniel J. Donovan in

Support of Post-Judgment of Conviction Motion for DNA Testing, June 25, 2002.

intercourse mid-morning on June 24. Either way, such DNA analysis does not establish

that some other man raped Reed earlier that day under any factual theory advanced in

_ this case.

With respect to the torn underwear, the absence of semen on this garment

supports the petitioner's strained contention that Reed had had no intercourse before

her first hospital visit, but did before her second. It does not, however, assist in

identifying a perpetrator of a rape earlier that morning, because no semen at all was

found on this item. Thus, it simply supports the petitioner's contentions that there was

no intercourse and that Reed is untruthful. Also, because there was no semen on this

underwear, it is pointless to submit the exhibit for DNA testing when no semen exists

there to be tested.

The petitioner's legal argument to counter the State's objection to his motion

rests on two legal propositions, both of which are inapplicable here. The first is that an

inmate in a federal section 1983 action has a right to DNA testing of exhibits offered

against him at his trial for two rapes, even though evidence of his guilt was quite

strong. Godschalk v. Montgomery County Dist. Attorney's Office, 177 F.Supp.2d 366,

(E.D.Pa. 2001) (Relying on principles of due process and the obligation to provide the

accused with exculpatory evidence as articulated in Brady v. Maryland, 373 US. 83

(1963)). This federal trial court, then, was not attempting to interpret a statute that

permits post-trial DNA testing of exhibits when identity was an issue at trial. Rather,

that court determined there is a right of constitutional proportions to such testing,

whether or not identity was contested at trial, in the context of a federal civil rights

claim.

10

In the other precedents cited by the petitioner, it was decided that the failure of

trial counsel to pursue DNA testing of exhibits may amount to ineffective assistance of

counsel. Dorsey v. Kelly, 117 F.3d 50 (2d. Cir. 1997); Baylor v. Estelle, 94 F.2d 1321 (9th Cir.

1996).

While this court appreciates the reference to such cases where, as here, there is a

dearth of case law nationally on the right to post-conviction DNA analysis, the narrow

question presented in the case at bar is whether or not the petitioner is entitled, on

these facts and under Maine's statute, to DNA analysis of the exhibits he has listed. This

is not a federal civil rights case nor a second visit to the issue of whether or not

Donovan had effective assistance of counsel at trial.

In this court's view, the petitioner has not presented a prima facie case, that is,

"evidence which if unrebutted or unexplained is sufficient to maintain the proposition,

and warrant the conclusion to support which it [has been] introduced ..." Hann v.

Merrill, 350 A.2d 545, 550 (Me. 1973) (citation omitted), that the identity of the person

who perpetrated a sexual assault was at issue during his trial. 15 M.R.S.A. § 2138(4)(E).

As the State has argued, identity is always an issue at trial. However, that does not

mean that an unsuccessful defendant is entitled to DNA analysis in every case. Instead,

in this court's view, identity must be an issue that was actually contested, litigated or

placed in question at trial. That is simply not the case here. Reed specifically accused

the petitioner, and no one else, of rape. His response then, and now, is that no

intercourse occurred between them during the specific time she says she was assaulted,

and that she is not worthy of belief. DNA evidence would not establish that someone

else raped Ms. Reed and it would not disprove that sexual intercourse occurred at some

time. Rather, DNA testing may, if successfully undertaken, add only to the

11

considerable array of evidence already used by the petitioner to discredit his accuser.

That is not the purpose of the statute, and the court cannot, therefore, extend its

benefits to the petitioner.

Accordingly, the entries will be:

Petitioner's Post-Judgment of Conviction Motion for DNA Testing

is DENIED; State's Motion to Dismiss Defendant's Motion for Post-

Judgment DNA Testing is GRANTED.

So ordered.

ohn R. Atwood

ustice, Superior Court

Dated: November_ZO©O ___, 2002

12

STATE OF MAINE SUPERIOR COURT

vs

DANIEL DONOVAN

KENNEBEC, SS.

BOLDUC CORRECTIONAL FACILITY 516 CUSHING RD UNIT 200

WARREN ME

04864 DOCKET RECORD

DOB: 08/29/1963

Attorney: ANDREWS CAMPBELL State's Attorney: DAVID CROOK

CAMPBELL LAW OFFICE

45 KALERS CORNER ROAD

WALDOBORO ME 04572

APPOINTED 03/20/2002

Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C)

Filing Date: 08/11/1994

Charge (s)

1 GROSS SEXUAL ASSAULT 06/22/1994 MONMOUTH

17-A 253(1) (A) Class A

2 ASSAULT 06/22/1994 MONMOUTH

17-A 207(1) Class D

3 CRIMINAL MISCHIEF 06/22/1994 MONMOUTH

17-A 806(1) (A) Class D

4 VIOLATING CONDITION OF RELEASE 06/22/1994 MONMOUTH

15 1092 Class E

Docket Events:

03/05/2002

03/05/2002

03/05/2002

03/20/2002

04/01/2002

FILING DOCUMENT - INDICTMENT FILED ON 08/11/1994

NOTE - PRIOR ENTRIES IN MANUAL DOCKET ENTERED ON 08/11/1994

TRANSFER - BAIL AND PLEADING GRANTED ON 08/11/1994

TRANSFER - BAIL AND PLEADING REQUESTED ON 08/11/1994

MOTION - OTHER MOTION FILED BY DEFENDANT ON 02/27/2002

MOTION FOR DNA TESTING.

MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 02/27/2002

ALONG WITH CERTIFICATE OF PRISONER'S ACCOUNT.

MOTION - MOTION TO DISMISS FILED BY STATE ON 03/19/2002

DA: ALAN KELLEY

HEARING - OTHER MOTION SCHEDULED FOR 04/18/2002 @ 8:15

Page 1 of 3 Printed on:

Docket No AUGSC-CR-1994-00393

11/21/2002

04/01/2002

04/01/2002

04/01/2002

04/01/2002

04/01/2002

04/01/2002

04/05/2002

04/17/2002

05/09/2002

06/07/2002

06/11/2002

06/18/2002

06/19/2002

06/19/2002

06/20/2002

08/02/2002

DANIEL DONOVAN

AUGSC-CR-1994-00393

DOCKET RECORD

NOTICE TO PARTIES/COUNSEL MOTION FOR DNA

TESTING AND STATE'S MOTION TO DISMISS

HEARING - OTHER MOTION NOTICE SENT ON 04/01/2002

WRIT - HABEAS CORPUS TO TESTIFY ISSUED ON 04/01/2002

CERTIFIED COPY TO SHERIFF DEPT.

HEARING - MOTION TO DISMISS SCHEDULED FOR 04/08/2002 @ 8:15

NOTICE TO PARTIES/COUNSEL

MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 03/20/2002

DONALD H MARDEN , JUSTICE

COPIES TO PARTIES/COUNSEL ANDREWS

CAMPBELL COURT APPOINTED.

ATTORNEY - APPOINTED ORDERED ON 03/20/2002

Attorney: ANDREWS CAMPBELL

HEARING - MOTION TO DISMISS NOTICE SENT ON 04/01/2002

OTHER FILING - OTHER DOCUMENT FILED ON 04/03/2002

REQUEST FOR SCHEDULING ORDER FILED.

OTHER FILING - OTHER DOCUMENT FILED ON 04/17/2002

OPPOSITION TO STATE'S MOTION TO DISMISS.

OTHER FILING - TRANSCRIPT ORDER FILED ON 05/07/2002

Attorney: ANDREWS CAMPBELL

COPY OF ORDER SENT TO PHIL GALUCKI ON 5/9/02.

MOTION - MOTION FOR ENLARGEMENT OF TIME FILED BY DEFENDANT ON 06/07/2002

Attorney: ANDREWS CAMPBELL

REQUEST FOR ENLARGEMENT OF TIME TO FILE MEMO. MAILED TO JUSTICE ATWOOD IN SAGADAHOC

COUNTY.

MOTION - MOTION FOR ENLARGEMENT OF TIME WITHDRAWN ON 06/10/2002

Attorney: ANDREWS CAMPBELL

OTHER FILING - MEMORANDUM OF LAW FILED ON 06/17/2002

MEMORANDUM IN SUPPORT OF STATE'S MOTION TO DISMISS. MAILED TO JUSTICE ATWOOD

MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 04/18/2002

JOHN R ATWOOD , JUSTICE

MOTION - OTHER MOTION UNDER ADVISEMENT ON 04/18/2002

JOHN R ATWOOD , JUSTICE

MOTION FOR DNA TESTING.

OTHER FILING - MEMORANDUM OF LAW FILED ON 06/20/2002

Attorney: ANDREWS CAMPBELL

PETITIONER'S MEMORANDUM ON IDENTITY

HEARING - OTHER MOTION HELD ON 04/18/2002

NOTICE TO PARTIES/COUNSEL MOTION FOR DNA

TESTING AND STATE'S MOTION TO DISMISS

Page 2 of 3 Printed on: 11/21/2002

08/02/2002

08/02/2002

11/21/2002

11/21/2002

11/21/2002

DANIEL DONOVAN

AUGSC-CR-1994-00393

DOCKET RECORD

MOTION - MOTION TO IMPOUND FILED BY DEFENDANT ON 06/28/2002

FILED BY ANDREW CAMPBELL, IT DOES NOT REQUIRE A HEARING.

OTHER FILING - OTHER DOCUMENT FILED ON 06/28/2002

DEFENDANT'S PRO SE SUPPLEMENTAL MEMORANDUM FILED BY DANIEL DONOVAN. DEFENDANT'S RESPONSE

TO STATE'S MEMORANDUM.

MOTION - MOTION TO DISMISS GRANTED ON 11/20/2002

JOHN R ATWOOD , JUSTICE

COPIES TO PARTIES/COUNSEL

MOTION - OTHER MOTION DENIED ON 11/20/2002

JOHN R ATWOOD , JUSTICE

MOTION FOR DNA TESTING.

ORDER - COURT ORDER ENTERED ON 11/20/2002

JOHN R ATWOOD , JUSTICE

PETITIONER'S POST-JUDGMENT OF CONVICTION MOTION FOR DNA TESTING IS DENIED; STATE'S MOTION

TO DISMISS DEFENDANT'S MOTION FOR POST JUDGMENT DNA TESTING IS GRANTED.

A TRUE COPY

ATTEST :

Clerk

Page 3 of 3 Printed on: 11/21/2002