Opinion
A-13770
05-24-2023
KRISTOPHER M. MARCY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
This is a summary disposition issued under Alaska Appellate Rule 214(a). Summary dispositions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d).
Appeal from the Superior Court, Fourth Judicial District Trial Court No. 4FA-15-02086 CI, Fairbanks, Earl A. Peterson, Judge.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Kristopher M. Marcy was convicted, following a jury trial, of first-degree murder, first-degree sexual assault, and first-degree burglary for sexually assaulting and killing a fifty-nine-year-old woman on her property in 1988. Marcy's convictions were affirmed on direct appeal.
See AS 11.41.100, former AS 11.41.410(a)(1) (1988), and AS 11.46.300(a)(1), respectively.
See Marcy v. State, 823 P.2d 660 (Alaska App. 1991).
Marcy was convicted in part based on testimony from an FBI hair comparison and hair analysis expert who testified that the hair found clutched in the victim's hand was forcibly removed hair that was "consistent" with Marcy's hair. In 2015, the FBI sent a letter to Marcy and the State explaining that a nationwide review of cases involving microscopic hair comparisons had determined that the FBI expert who testified at Marcy's trial had provided testimony that "exceeded the limits of science." After receiving this letter, Marcy filed an application for post-conviction relief in the superior court, arguing that he was entitled to a reversal of his convictions based on the tainted FBI expert testimony. The application was filed twenty-six years after the judgment in his case was issued.
The superior court dismissed the application as untimely, ruling that Marcy had failed to show that the new information about the tainted expert testimony qualified as "newly discovered evidence" for purposes of AS 12.72.020(b)(2). Alaska Statute 12.72.020(b)(2) exempts post-conviction relief claims based on newly discovered evidence from the statutory deadlines that would otherwise apply to such claims. This provision requires an applicant to show, inter alia, that the newly discovered evidence "establishes by clear and convincing evidence that the applicant is innocent." The superior court ruled that Marcy had not met this standard, given the overwhelming amount of evidence that supported his conviction separate from the tainted FBI expert testimony.
AS 12.72.020(b)(2)(D).
Marcy also argued, however, that he was only required to prove that exclusion of the tainted testimony at trial "would probably produce an acquittal" when considered with the totality of the evidence at a new trial. (This is the standard that applies to a timely motion for a new trial based on newly discovered evidence.) The court ruled that this standard did not apply and determined that Marcy failed to prove his innocence under any evidentiary standard in light of the other evidence supporting his guilt. Lastly, the superior court rejected Marcy's due process claim that the tainted FBI testimony had rendered his trial "fundamentally unfair."
See Salinas v. State, 373 P.2d 512, 514-15 (Alaska 1962); James v. State, 84 P.3d 404, 406 (Alaska 2004).
See Mesarosh v. United States, 352 U.S. 1, 4, 14 (1956) (granting petitioners a new trial because of the unreliability of the witness's testimony where the Government indicated it had "serious reason to doubt the truthfulness" of its own witness); United States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010) (determining that the "FBI's discontinued use of [compositional analysis of bullet lead] evidence w[as] no more than impeaching evidence of the [compositional analysis of bullet lead] testimony introduced" at the trial and therefore finding that the new evidence would not "probably" result in an acquittal if a new trial were granted).
Marcy now appeals the superior court's dismissal of his application for post-conviction relief. On appeal, the parties dispute precisely what Marcy was required to show under AS 12.72.020(b)(2). We conclude that we need not resolve that question here because we agree with the superior court that the evidence of Marcy's guilt was overwhelming, even absent the tainted FBI expert testimony.
The other evidence on which the State relied included, inter alia, (1) Marcy's confession to his friend, Frank Heffle, in which Marcy detailed precisely how he committed the murder; (2) Marcy's detailed confession to a police detective; (3) testimony from a forensic expert matching shoeprints found at the scene to sneakers that Marcy was photographed wearing; (4) evidence that Marcy had defensive wounds on his body that were consistent with the victim trying to fight off her assailant; and (5) testimony from a forensic expert that Marcy is a non-secretor, a relatively rare blood characteristic shared by only twenty percent of the population, and that semen found on the victim's body was also from a non-secretor.
In addition to the evidence presented at trial, two post-conviction DNA tests later established to a reasonable degree of forensic certainty that Marcy's DNA matched the DNA found on the victim.
Marcy has therefore failed to show that he is entitled to any relief even under the standard that he espouses. We also agree with the superior court that, given the overwhelming evidence incriminating Marcy, the tainted FBI testimony did not render Marcy's trial "fundamentally unfair," and Marcy's due process claims were therefore appropriately rejected.
The judgment of the superior court is AFFIRMED.