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Lambert v. State (11/16/2018) ap-2623

Lambert v. State (11/16/2018) ap-2623


          The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

          errors to the attention of the Clerk of the Appellate Courts:  

                                    303 K Street, Anchorage, Alaska  99501

                                               Fax:  (907) 264-0878

                                       E-mail:  corrections @



                                                                       Court of Appeals No. A-11699  

                                      Appellant,                       Trial Court No. 1JU-10-551 CI  


                                                                                   O P I N I O N  


                                      Appellee.                       No. 2623 - November 16, 2018  

                   Appeal from the Superior Court, First Judicial District, Juneau,  


                   William B. Carey, Judge.  


                   Appearances: Michael Schwaiger, Assistant Public Defender,  

                   and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  


                   Appellant.       Elizabeth  T.  Burke,  Assistant  Attorney  General,  


                   Office of Criminal Appeals, Anchorage, and Craig W. Richards,  


                   Attorney General, Juneau, for the Appellee.  

                   Before:      Allard,  Judge,  Coats,  Senior  Judge,*   and  Suddock,



                   Superior Court Judge.             

                   [Mannheimer, Chief Judge, not participating]

                   Judge   ALLARD,   writing   for   the   Court   and   concurring  



     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  



          Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------

                                    In 1982,               Ann Benolken and her husband,                                                         James Benolken,                               werediscovered   

brutally murdered in their Juneau apartment.                                                                              Both victims had been sexually assaulted.                                              

                                    The physical evidence at the murder scene indicated that there were at least                                                                                                               

two perpetrators.                               The State charged Emmanuel Telles and nineteen-year-old Newton                                                                                                       

Patric Lambert as principals and accomplices in the murders.  The two men were tried                                                          

separately.  At Lambert's trial, the jury convicted Lambert of Ann Benolken's murder            

but acquitted him of James Benolken's murder. Telles was acquitted of both murders at                                                                                                                                                 

his later trial.        

                                    In   2010,   almost   thirty  years   after   the   Benolken   murders,   the   Alaska  

                                                                                                                                                                                              1     These statutes  

legislature enacted a post-conviction DNA testing statutory scheme.                                                                                                                                                                           

created a procedural mechanism through which defendants who claimed to be factually  


innocent of the crimes for which they were convicted could seek DNA testing of material  


physical  evidence  that  could  support  their  claim  of  innocence.2                                                                                                                    Lambert  filed  an  


application under the new statutes, seeking DNA testing of the only physical evidence  


remaining in his case - forensic samples of the blood and semen stains found on Mr.  


Benolken's clothing. Lambert argued that DNA testing of the blood and semen samples  


could lead to the identification of the true perpetrators of this double murder, thereby  


raising  a  reasonable  probability  that  Lambert  was  wrongfully  convicted  of  Mrs.  


Benolken's murder.  


                                    The  State  opposed  the  proposed  DNA  testing  and  the  superior  court  


ultimately denied Lambert's application, concluding thatLamberthad failed to showthat  


the proposed testing of blood and semen on Mr.  Benolken's clothing could raise a  


reasonable probability that Lambert was not guilty of Mrs . Benolken's murder, given all  


of the State's evidence that directly linked Lambert to Mrs. Benolken's murder.  


          1       See AS  

         2        Id.  

                                                                                                               - 2 -                                                                                                         2623

----------------------- Page 3-----------------------

                                                                               For the reasons explained here, we affirm this ruling.                                                                                                                                                                                                                            

                                       Factual background and prior proceedings                                                                                                                                                

                                                                               On April 6, 1982, a Juneau building manager entered the apartment of                                                                                                                                                                                                                                                                                                                                                             

James and Ann Benolken due to a bad smell emanating from the apartment.                                                                                                                                                                                                                                                                                                                                                                                          Inside the   

 apartment, the manager found the Benolkens' bodies. Both the husband and the wife had                                                                                                                                                                                                                                                                                                                                                                                                                    

been sexually assaulted and violently killed.                                                                                                                                                                                  

                                                                               Mrs. Benolken's body was found naked and lying face up on a bloody                                                                                                                                                                                                                                                                                                                                   

mattress on the floor. The mattress was saturated with blood, and there was blood spray                                                                                                                                                                                                                                                                                                                                                                                                        

 extending six to seven feet up the wall at the head of the mattress.                                                                                                                                                                                                                                                                                                                                At trial, the medical                                                      

 examiner testified that Mrs. Benolken had been stabbed approximately sixty times.                                                                                                                                                                                                                                                                                                                                                                                                                              A  

broken piece of a knife was found beneath Mrs. Benolken's body, and strands of hair                                                                                                                                                                                                                                                                                                                                                                                                                    

were found between her legs. To the immediate left of Mrs. Benolken's body was a void                                                                                                                                                                                                                                                                                                                                                                                                         

in the blood spatter.                                                                                                  The State's expert later testified that this void was consistent with                                                                                                                                                                                                                                                                                                        

 a person kneeling next to the body during the murder.                                                                                                                                                                                                                                                                         A paper bag with a liquor bottle                                                                                                                              

was found within arm's reach of where that person would have been kneeling.                                                                                                                                                                                                                                                                                                                                                                                                A single   

latent fingerprint was found on the paper bag.                                                                                                                                                                                                                                        The fingerprint was later identified as                                                                                                                                                                                    

belonging to Lambert.                                                        

                                                                               Mr. Benolken's body was lying next to the bloody mattress, with his body                                                                                                                                                                                                                                                                                                                                          

bent over and his face lying on the mattress. Mr. Benolken's body was still clothed, and                                                                                                                                                                                                                                                                                                                                                                                                                 

there   was   a   bloodstain   on   his   shirt   and   a   semen   stain   on   his   pants.     The   medical  

 examination indicated that both Mr. and Mrs. Benolken had been sexually assaulted.                                                                                                                                                                                                                                                                                                                                                                       

                                                                               Thepoliceinvestigated                                                                                                                   multiplesuspects, but their investigationultimately                                                                                                                                                                                          

                                                                                                                        3  In addition to Lambert's fingerprint on the paper bag, Lambert had  

 focused on Lambert.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

                    3                   As part of his request for DNA testing, Lambert provided the police reports from the                                                                                                                                                                                                                                                                                                                                                                                  

 case.   The police reports indicate that the police investigated a number of other suspects                                                                                                                                                                                                                                                                                                                                                                                  


                                                                                                                                                                                                                                                  -  3 -                                                                                                                                                                                                                                         2623

----------------------- Page 4-----------------------

also been seen by a Juneau police officer near the Benolkens' apartment on the morning                                                                                                                                                                                                                                                                              

after the murders occurred.                                                                                                       Witnesses had also seen two dark-haired men with Mr.                                                                                                                                                                                                   

Benolken in the apartment building the night before the murders.                                                                                                                                                                                                                                                  (Lambert has dark                                                  


                                                             However, when Lambert was questioned by the police, Lambert denied                                                                                                                                                                                                 

having been near the building that morning.                                                                                                                                                                  Lambert told the police that he had been                                                                                                                                

drinking heavily the night before and had woken up in a cave under Gastineau Avenue.                                                                                                                                                                                                                                                                                                                            

He claimed to have no idea how his fingerprint could have ended up on the paper bag                                                                                                                                                                                              

found next to Mrs. Benolken's murdered body.                                                                                                                                                 

                                                              Shortly after his interview with the police, Lambert went to a friend, Gary                                                                                                                                                                                                                                           

Moses, and asked him to lie to the police on his behalf. Moses reported this conversation                                                                                                                                                                                                                                                        

to the police, and Moses later testified to this conversation at trial.                                                                                                                                                                                                                                         Moses's girlfriend,   

who was present during the conversation, corroborated Moses's account.                                                                                                                                                                                                                                 

                                                             During the course of their investigation, the police also discovered that                                                                                                                                                                                                                                                  

Lambert had gone to a local emergency room the day after the murder with a wound on                                                                                                                                                                                                                                                                                                            

his arm.  At trial, the State introduced evidence that the wound could have either been                                                                                                                                                                                                                                        

caused by                                        broken glass                                                    or   by   the broken knife found                                                                                                                 under   Mrs.   Benolken.     (The  

Benolken   apartment  had  a   window with                                                                                                                                                         broken   glass.)     The   State   also   introduced  

evidence that Lambert had bought a new knife a few days after the murder occurred.                                                                                                                                                                                                                                                                     

                                                             The State introduced additional evidence from two jailhouse informants                                                                                                                                                                                                                     

who testified that Lambert had confessed to them while he was in jail following his arrest                                                                                                                                                                                                                                                                                        

on the murder charges.                                                                                      The first jailhouse informant, Robert Ewers, was housed with                                                                                                                                                                                                              

               3               (...continued)  

including two men who allegedly confessed to murdering and raping the Benolkens, a man  


who  allegedly  confessed  to  "two  homicides  last  night"  the  day  after  the  bodies  were  


discovered, various local drug dealers, and a Vietnam veteran who was implicated in the  


murders by an FBI informant.  

                                                                                                                                                                                           - 4 -                                                                                                                                                                                   2623

----------------------- Page 5-----------------------

Lambert at Ketchikan Correctional Center.                                                                                                                                                                          Ewers testified that Lambert confessed to                                                                                                                                                             

 stabbing Mrs. Benolken while his co-defendant, Emannuel Telles, killed Mr. Benolken.                                                                                                                                                                                                                                                                                                                                                   

Ewers also testified that Lambert said that he had thrown the knife he used to kill Mrs.                                                                                                                                                                                                                                                                                                                    

Benolken in the water.                                                         

                                                                 The second jailhouse informant, Jeff Bowen, was housed with Lambert at                                                                                                                                                                                                                                                                                    

Lemon Creek Correctional Center.                                                                                                                                         Bowen testified that Lambert confessed to stabbing                                                                                                                                                              

and raping Mrs. Benolken while Telles raped and killed Mr. Benolken.                                                                                                                                                                                                                                                                                           According to   

Bowen, Lambert said that he stabbed Mrs. Benolken to make her stop screaming while                                                                                                                                                                                                                                                                                                                      

he raped her.                                                    Bowen also testified that Lambert told him that he threw the knife in the                                                                                                                                                                                                                                                                          

channel   after   the   murders.     (The   Juneau   police   officer   who   saw   Lambert   near   the  

Benolkens' apartment building on the morning of the murder testified that Lambert was                                                                                                                                                                                                                                                                                                                           

in the general area where Lambert told Bower he threw the knife into the channel.)                                                                                                                                                                                                                                                                                   

                                                                 Lastly,theStateintroducedthetestimonyofMichaelMalone, an                                                                                                                                                                                                                                                       FBI expert   

on microscopic comparative hair analysis.                                                                                                                                                                     Malone testified that, in his expert opinion,                                                                                                                                

the strands of hair found between Mrs. Benolken's legs came from an Alaska Native and                                                                                                                                                                                                                                                                                                                             

the hair visually "matched" sample hairs taken from Lambert, who is Alaska Native.                                                                                                                                                                                                                                                                                                                                                      

According to Malone, the visual match meant that there was only a one-in-five thousand                                                                                                                                                                                                                                                                                                 

chance that the strands of hair did not belong to Lambert.                                                                                                                                                                                

                                                                 (We note that the reliability of this expert testimony is seriously in dispute.                                                                                                                                                                                                                                                                                        

 Since the advent of DNA testing, microscopic comparative hair analysis has come under                                                                                                                                                                                                                                                                                                                  


increased scrutiny, and there is now significant doubt as to its scientific reliability.                                                                                                                                                                                                                                                                                                                                                

                4               See    Spencer  S.  Hsu,  FBI  admits  flaws  in  hair  analysis  over  decades,    THE  

WASHINGTON   POST,  (April  18,  2015), 

overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18 ("The  


Justice Department and FBI have formally acknowledged that nearly every examiner in an  


elite FBI forensic unit gave flawed testimony in almost all trials in which they offered  


evidence against criminal defendants over more than a two-decade period before 2000.");  


                                                                                                                                                                                                       -  5 -                                                                                                                                                                                              2623

----------------------- Page 6-----------------------

Agent Malone's expert testimony has been discredited in other cases, and there has been                                                                      

at least one case in which a defendant who was convicted based on Agent Malone's                                                                   

                                                                                                   5  According to the record, Lambert  

testimony has since been exonerated by DNA testing.                                                                                                  

is litigating the reliability of Agent Malone's testimony separately and that issue is not  


currently before us in this appeal.)  


                         Lambert testified in his own defense at trial. In his trial testimony, Lambert  


admitted that he lied to the police about his whereabouts on the night of the murder, and  


headmitted that he was at the Benolkens' apartment when the Benolkensweremurdered.  


Lambert testified that he had ingested cocaine, marijuana, amphetamines, LSD, and  


alcohol that night, and that he had a very limited memory of what had occurred. Lambert  


recalled having a seizure, seeing "red flashes," waking up in the Benolkens' bathtub, and  


discovering their murdered bodies in the living room. Lambert denied any involvement  


in the murders, although he testified that "[a]t one point [he] thought [he] might have  


done it."  


      4      (...continued)  


see, e.g., Pitts v.  State, 501 S.W.3d 803, 804-06 (Ark. 2016) (permitting defendant to seek  


relief via a writ of error coram nobis after determining that the tainted testimony of Malone  


was material to the defendant's conviction); Horstman v. State, 530 So.2d 368, 370 (Fla.  


App. Dist. 1988) (holding that the court does "not share Mr. Malone's conviction in the  


infallibility of hair comparison evidence.  Thus, we cannot uphold a conviction dependent  

on such evidence.").  



             See, e.g., Pitts, 501 S.W.3d at 804-06; Horstman, 530 So.2d at 370; see also Geoff  


Earle, Discredited ex-FBI agent hired back as a private contractor years later, New York  


Post, (July21, 2014), 


a-private-contractor-years-later/ ("Malone's criminal forensics work has come under heavy  


scrutiny by investigators - including his involvement in a case that sent former DC resident  

Donald Gates to prison for 28 years for a murder he didn't commit.").   

                                                                              -  6 -                                                                       2623

----------------------- Page 7-----------------------

                                                 During   closing   arguments,   the   State   argued   it   had   proven,  beyond   a  

reasonable doubt, that Lambert had killed Mrs. Benolken and had aided and abetted                                                                                                                                                                                                               

another person - either Telles or someone else - in killing Mr.                                                                                                                                                                            Benolken.   Lambert's  

attorney argued that the State had                                                                                    failed                 to prove beyond a reasonable doubt that Lambert                                                                                                 

was anything other than an innocent bystander to a brutal double murder committed by                                                                                                                                                                                                                              

any number of other people.                                                 

                                                 After deliberating for two days, the jury convicted Lambert of first-degree                                                                                                                                                     

murder   for   the   intentional   killing   of   Mrs.   Benolken.     However,   the   jury   acquitted  

Lambert of killing Mr. Benolken.                                                                                            Lambert was sentenced to 99 years to serve.                                                                                                   

                                                 Lambert's co-defendant, Emmanuel Telles, was later tried for the murders                                                                                                                                                                    

of Mr. and Mrs. Benolken at a separate trial.                                                                                                                    The jury acquitted Telles of both murders.                                                                                                                    

A few years after these acquittals, Telles died.                                                                                                      

                                                 Lambert appealed his conviction for Mrs. Benolken's murder to this Court.                                                                                                                                                                                                     

We affirmed Lambert's conviction and his sentence in an unpublished memorandum                                                                                                                                                                                         


                         The enactment of Alaska's post-conviction DNA testing statutory scheme  


                                                 In  2010,  almost  thirty  years  after  the  Benolken  murders,  the  Alaska  


legislature enacted AS 12.73, Alaska's post-conviction DNA testing statutory scheme.  


Under AS 12.73.010, a person convicted of  a felony crime against a person under  


AS 11.41 may apply to the superior court for an order for DNA testing of physical  


evidence in their case.7                                                                      The application must be filed in the court that entered the  


            6           See  Lambert  v.  State,   1985  WL  1078006,   at   *7  (Alaska  App.  Dec.  26,  1985)  


            7           AS 12.73.010(a).  

                                                                                                                                                     -  7 -                                                                                                                                             2623

----------------------- Page 8-----------------------

judgment of conviction, and a copy must be sent to the prosecuting authority responsible                                                                      

 for obtaining the conviction.                              8  

                            An application filed under AS 12.73.010 must specifically identify the  


                                                            9  and it must include facts from which the court can make  

 evidence sought to be tested,                                                                                                                                            


the findings required under AS  The application must include, inter alia, an  


 affidavit in which the defendant swears under oath that he or she is factually innocent of  


the crime for which they were convicted - i.e., the person must swear under oath that  


they did not commit the crime for which they were convicted, nor did they commit any  


 lesser included offense, solicit another person to commit the crime, or aid or abet another  


person in planning or committing the crime.11  


                            Alaska Statute 12.73.020(7) requires that the defendant "identify a theory  


                                                                                                                                       12     Unlike  its  federal  

 of  defense  that  would  establish  the  [defendant's]  innocence."                                                                                                


 counterpart, Alaska's post-conviction DNA testing statute does not require this theory  


 of defense to be consistent with the defense that was raised at trial.13  


        8     Id.  

       9      AS 12.73.010(b).  

        10    AS 12.73.020(1)-(11).  

        11    AS 12.73.010(b)(1)(A)-(B).  

        12    AS 12.73.020(7).  

        13    See Minutes of House Finance Comm., Senate Bill 110, at 2:16-2:21 (April 12, 2010)   

 (amending the proposed bill to eliminate this consistency requirement on the ground that a  

 factually innocent defendant should not be precluded as a matter of law from seeking DNA                                                                 


testing that could establish his innocence based on the strategic decisions that his defense  


 attorney may have made at trial - decisions over which the defendant did not exercise direct  


                                                                                      -  8 -                                                                              2623

----------------------- Page 9-----------------------

                              Alaska Statute 12.73.020(9) also requires the defendant to show, by a                                                                                    

preponderance of the evidence, that:                                    

                              [t]he proposed DNA testing of the specific evidence may                                                                     

                              produce new material evidence that would                                         

                                             (A)    support    the    theory    of    defense    described    in  

                              [AS 12.73.020(7)]; and                       

                                             (B)  raise a reasonable probability that the applicant did                                                      

                              not commit the offense.                              14  


                              Alaska Statute 12.73.020(7) and AS 12.73.020(9) work in concert and  


essentially require the defendant to explain two things:   (1) how the proposed DNA  


testing could produce evidence that would be materially relevant to the defendant's guilt  


or innocence; and (2) why the DNA results, if favorable to the claim of innocence, would  


raise "a reasonable probability" that the jury would find reasonable doubt in this case  


where previously it had found none.  


               Lambert's application  


                              Prior to the enactment of AS 12.73, Lambert filed an application for post- 


conviction relief alleging "newly discovered evidence" regarding the unreliability of  


Agent Malone's comparative hair analysis and seeking DNA testing of the hairs used in  


that analysis, as well as DNA testing of any other physical evidence still remaining from  


the case.  After the new statutory scheme went into effect, Lambert's request for DNA  


testing was converted into an application for post-conviction relief under AS 12.73.  In  


support of his application, Lambert submitted an affidavit attesting that he was factually  


innocent ofMrs. Benolken's murder. Lambert also requested discoveryonwhether there  

        14     AS 12.73.020(9).  

                                                                                           -  9 -                                                                                     2623

----------------------- Page 10-----------------------


was any physical evidence still remaining in his case that could be tested.  In response,  


the State provided documentation establishing that the evidence no longer existed.  


                    Lambert's attorney continued to investigate what had happened to the  


evidence that had been sent to outside agencies for testing.   Although most of this  


evidence had also been destroyed, Lambert's attorney discovered that a private crime  


laboratory in California still had physical evidence from the murders.  This evidence  


consisted of blood and semen samples taken from stains on Mr. Benolken's clothing.  


These samples had been sent to the California laboratory at the request of Telles's  


attorney who had apparently considered having them tested.  Although this testing had  


not occurred, the laboratory had still preserved the samples and they were therefore  


available for DNA testing.  


                    Lambert filed a theory of defense, requesting DNA testing of the blood and  


semen samples.  Lambert argued that the blood and semen samples should be tested to  

determine if the DNA belonged to James Benolken, Ann Benolken, Newton Lambert,  


or Emmanuel Telles. Lambert asserted that if the DNA results excluded Lambert, Telles,  


and the victims, then the results would support his theory of innocence - i.e., the results  


would be consistent with his claim that two other persons (who were not Lambert or  


Telles) had killed the Benolkens.  Conversely, if the blood and semen were determined  


to belong to the victims, Lambert, and/or Telles, then these results would be consistent  


with the State's theory of prosecution and could potentially confirm Lambert and/or  


Telles's guilt.  


                    Lambert also asserted that testing the blood and semen could yield two  


different DNA profiles.  Lambert posited that the semen could have come from the first  


man who raped and killed Mr. Benolken, while the blood could have come from the  


second man who killed Mrs. Benolken - the theory being that the second man injured  

                                                             -  10 -                                                        2623

----------------------- Page 11-----------------------

himself while stabbing Mrs. Benolken and then transferred his own blood onto Mr.                                                                                                    

Benolken's clothing when he assisted the first man in subduing Mr. Benolken.                                                                         

                             Lambert also argued that if the DNA results excluded Lambert, Telles, and                                                                               

the victims as possible sources of the blood and semen, the results could be run through                                                                                    

                                                                              15), which could lead to the identification and future  

the national DNA database (CODIS                                                                                                                                                

prosecution of the true perpetrators of this double homicide.  


                             The State opposed any DNA testing of the blood and semen samples.  The  


 State's initial concern was that the evidence had been contaminated.16  The court held an  


 evidentiary hearing on these concerns and ultimately concluded that it would not deny  


the proposed testing on these grounds alone.  


                             The  State  also  argued  that  Lambert  had  failed  to  meet  the  statutory  


requirements under AS 12.73.020(7).  The State argued, in particular, that Lambert had  


 failed to show how the proposed DNA testing would actually establish his innocence for  


                                                                17  The State also argued that Lambert was required to meet  

purposes of AS 12.73.020(7).                                                                                                                                                       


the three-part test articulated by this Court in Osborne v. State, and to show that the DNA  


testing would be conclusive on the issue of perpetrator identity.18  


        15     CODIS is the generic term used to describe the FBI's program of support for criminal                                                 

justice  DNA  databases  as  well  as  the  software  used  to  run  these  databases.   See   (last  

visited Nov. 7, 2018).  

        16     See AS 12.73.020(5) (requiring court to find that "the evidence to be tested has been  

 subject to a chain of custody and retained under conditions that ensure that the evidence has  


not been substituted, contaminated, or altered in any manner material to the proposed DNA  



        17     See AS 12.73.020(7).  

        18     Osborne v. State, 110 P.3d 986 (Alaska App. 2005).  

                                                                                        -  11 -                                                                                  2623

----------------------- Page 12-----------------------

                            In addition, the State argued that Lambert had failed to show how the                                                                           

identification of two previously unidentified perpetrators based on evidence from                                                                                         Mr.  

Benolken's clothing would materially undermine the State's evidence linking Lambert                                                                               

to  Mrs.  Benolken's murder given the strength of that evidence.                                               

                            The superior court agreed with the State that Lambert had failed to make   

an adequate showing under AS 12.73.020(7).                                                      Applying  Osborne, the court found that                                    

Lambert   failed   to   show   that   the   DNA   testing   could   conclusively   establish  his  

                       19     The court also separately ruled that Lambert had failed to satisfy the  


statutory requirements under AS 12.73.020(9).   The court concluded that, given the  


weight of the evidence against Lambert, the DNA results, even if favorable, would not  


raise a reasonable probability that Lambert was not guilty of killing Mrs. Benolken. The  


court therefore denied Lambert's application on these two grounds.  


                            This appeal now follows.  



              The superior court erred in applying Osborne to Lambert's application  


                            On   appeal,   Lambert   argues   that   the   superior   court   misconstrued  


AS 12.73.020(7) and the court held Lambert to a higher standard than the statutory  


provision requires.  Lambert also argues that the superior court erred when it structured  



its analysis around Osborne v. State. 

                            We agree with Lambert that the superior court's analysis of AS 12.73.- 


020(7) is flawed.  We also agree that the superior court's reliance on the three-pronged  


test in Osborne was error.  


       19     See id. at 995.

       20     Osborne v. State, 110 P.3d 986, 995 (Alaska App. 2005).

                                                                                   -  12 -                                                                              2623

----------------------- Page 13-----------------------

                             In the first part of its order, the superior court interpreted AS 12.73.020(7)                                                      

as   requiring   Lambert   to   prove   that   the   proposed   DNA   testing   would   conclusively  

establish his innocence.  But Lambert's burden in relation to AS 12.73.020(7) was far  

more modest. Alaska Statute 12.73.020(7) requires the defendant to "                                                                                 identif[y]  a theory   

of defense that will establish the defendant's innocence," but it does not require the                                                                                                

defendant to prove that this theory is true or that the DNA testing will prove the theory                                                                                      


                             As the State acknowledges on appeal, the defendant bears only a burden of  


pleading with regard to AS 12.73.020(7) - that is, the defendant is only required to  


identify his or her theory of innocence. Alaska Statute 12.73.020(9)(A) also requires the  


defendant to show how the proposed DNA testing could produce new material evidence  


that would "support" - i.e., be consistent with - that theory of innocence.  But neither  


statutory provision requires the defendant to prove that the DNA testing, if favorable,  


will "establish" his or her innocence or that the DNA testing will "conclusively" exclude  


the defendant as a possible perpetrator.  


                             Instead ofrecognizing thelimited showing required under AS12.73.020(7)  


and AS 12.73.020(9)(A), the superior court appears to have conflated the statutory  


requirements  with  the  three-pronged  constitutionally  based  test  we  articulated  in  


Osborne.22  As Lambert correctly points out, Osborne was decided prior to the enactment  


of  AS  12.73,  and  our  decision  in  that  case  has  been  largely  superseded  by  that  


subsequent legislation.  


                             The question we faced in  Osborne was whether, in the absence of any  


statutory right to post-conviction DNA testing, there was a free-standing constitutional  


       21      AS 12.73.020(7) (emphasis added).  

       22      Osborne, 110 P.3d at 995.  

                                                                                        -  13 -                                                                                  2623

----------------------- Page 14-----------------------


right to post-conviction DNA testing in casesinvolving                                                                    claims ofactual                    innocence.                   We  

concluded that a defendant might have such a due process right if the defendant could                                                                 

meet the following three-part test:                                             (1) his conviction rested primarily on eyewitness                                         

identification evidence; (2) there was a demonstrabledoubt concerning the identification                                                                             

of the defendant as the perpetrator; and (3) scientific testing of the available evidence                                                                                     

would likely be conclusive on this issue.                                                  24  

                              When the Alaska legislature enacted AS 12.73, it did not adopt this three- 


part test.  Instead, the legislature modeled Alaska's post-conviction statutory scheme  


after the federal Innocence Protection Act.25   Osborne is therefore of marginal relevance  


to applications for post-conviction DNA testing and likely to simply muddy the analysis  


of claims brought under AS 12.73, as it did here.  


               The superior court did not err when it concluded that the DNA testing, even  


               if favorable, would not raise a reasonable probability that the outcome of  


               Lambert's trial would be different  


                              To fulfill the statutory requirement under AS 12.73.020(9)(B), a defendant  


must show that the proposed DNA testing may produce new material evidence that  


would "raise a reasonable probability that the applicant did not commit the offense."  


Importantly, the defendant need not show any likelihood that the DNA results will  


actually  be  favorable  to  his  claim of innocence.                                                                Instead,  he  need  only  show  that,  


assuming the results are as favorable as the defendant has shown they could be, these  


        23     Id.   



               Id. ; see Osborne v. State, 163 P.3d 973, 982 (Alaska App. 2007) (holding Osborne  

was unable to meet this three-part test).  

        25     Compare 18 U.S.C.  3600 (2004) et seq. with AS 12.73.010-090.  

                                                                                           -  14 -                                                                                     2623  

----------------------- Page 15-----------------------

 favorable   results   would   raise   "a   reasonable   probability"   that   the   outcome   of   the  

 defendant's trial would be different.                                      26  


                             The reasonable probability analysis requires the trial court to look at the  


trial record as a whole and to assess the potential evidentiary significance of these  



                                                                                                                                                                 This fact- 

 favorable DNA results in light of all the known evidence in the case. 


 intensive inquiry is probably best made by the trial judge who presided over the original  



trial.          In Lambert's case, however, the original trial judge is no longer available.  



                             The  term  "reasonable  probability"  has  a  specialized  legal  meaning. 


Reasonable probability means "a probability sufficient to undermine confidence in the  

       26     See State v. Armour                      , 141 A.3d 381, 391 (N.J. App. 2016) ("Given the difficulty of   

 anticipating the outcome of a DNA (or fingerprint) test, 'the trial court should postulate   

whatever realistically possible test results would be most favorable to [the] defendant'");     

State v. Peterson, 836 A.2d 821, 827 (N.J. App. 2003) (emphasizing that a court may not                                                                                          

 deny a motion for DNA testing because the court finds it unlikely that DNA testing would                                              

produce favorable results; instead the court has to consider the evidential significance of                                        

whatever "favorable" DNA test results could be obtained).   

       27     See State v. Marra, 988 A.2d 865, 874 (Conn. 2010) (reasonable probability analysis  


requires court to take into account totality of evidence adduced at original trial in order to  


 determine whether absence of exculpatoryDNA evidence undermines confidence in verdict).  


       28     See United States v. Jordan, 594 F.3d 1265, 1269 (10th Cir. 2010) (noting that trial  

judge considering a motion for post-conviction DNA testing "is most often the judge who  


presided over the defendant's trial," and that this judge is "in a unique position to assess the  

 evidence against the defendant and to evaluate whether new DNA testing may produce  


 evidence which would raise a reasonable probability that [the defendant] did not commit the  



       29     See AS 01.10.040 (declaring that words and phrases "that have acquired a peculiar  


 and appropriate meaning, whether by legislative definition or [judicial construction] shall be  


 construed according to the peculiar and appropriate meaning").  

                                                                                     -  15 -                                                                                2623

----------------------- Page 16-----------------------


defendant's conviction."                      A"reasonable probability" is "a reasonable chance and not                                      


merely an abstract possibility."                                                                                                             

                                                        Notably, the reasonable probability standard does not  



require a showing of more likely than not.                                  Thus, a defendant need not show that the  


favorable DNA test results would  likely  result in  an  acquittal.                                              Instead, he  is  only  


required to show a "reasonable chance, not an abstract possibility" that the DNA test  


results, if favorable, would create a reasonable doubt where none had previously been  



found to exist. 

      30   Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Hood v. United States                                                    ,  

28 A.3d 553, 564 (D.C. App. 2011) (applying Strickland "reasonable probability" standard  

to claim brought under federal Innocence Protection Act);                                  Richardson v. Superior Court, 183  

P.3d 1199, 1205 (Cal. 2008) (applying  Strickland  reasonable probability standard when   

construing comparable post-conviction DNA testing statute);                                         State v. Dupigney, 988 A.2d   

851, 859 (Conn. 2010) (same); In re Towne, 86 A.3d 429, 432 (Vt. 2013) (same).  

      31   Richardson, 183 P.3d at 1205.  

      32   See  Kyles  v.  Whitley,  514  U.S.  419,  434  (1995); Richardson,  183  P.3d  at  1205  


(emphasizing that that a "reasonable probability" for purposes of obtaining post-conviction  


DNA testing "does not mean more likely than not") (citations omitted); State v. Cote, 21  


A.3d 589, 593 (Conn. App. 2011) ("The question is not whether the defendant would more  

likely than not have received a different verdict with the evidence, but whether in its absence  


he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.").  


See generally Jed Handelsman Shugerman, Unreasonable Probability of Error, 111 Yale L.  


J. 435, 440 (2001) (explaining that courts have misinterpreted the "reasonable probability  


standard" to mean "more likely than not" when in fact the burden is less than that).   


      33   Strickland, 466 U.S. at 694; Richardson, 183 P.3d at 1205; In re Towne , 86 A.3d at  

432 ("A petitioner must demonstrate that the evidence 'creates a reasonable doubt that did  

not otherwise exist.'") (internal citations omitted).  

                                                                    -  16 -                                                              2623

----------------------- Page 17-----------------------

                        This is the same standard that is used to evaluate the prejudice prong of an                                                      


ineffective assistance of counsel claim in federal law under                                                Strickland v. Washington                      .     


However, it is a higher standard than is used to evaluate the prejudice prong of an  



                                                                                                                               Under Risher, a  

ineffective assistance claim in Alaska law under Risher v. State. 


defendant is required  to show only  that there is "a reasonable possibility" that the  


outcome  of  his  trial  would  have  been  different  but  for  his  attorney's  deficient  



                              This is a "less demanding" standard than the reasonable probability  



standard required here. 


                        The relative strength of the State's evidence and the importance of the  


evidence to be tested has clear import in analyzing whether the reasonable probability  



standard has been met in a given case.                                    Thus, in cases where the evidence to be tested  


could be dispositive on the question of the defendant's guilt or innocence, the strength  


of the State's evidence will be largely irrelevant.  However, in cases where the evidence  


to be tested is only tangentially relevant to the defendant's guilt or innocence, the relative  


strength  or  weaknesses in  the State's  evidence will become more determinative of  


whether the standard has been met.  

      34    Strickland, 466 U.S. at 694.  

      35     Risher v. State, 523 P.2d 421 (Alaska 1974).  

      36    Id. at 425.  

      37    State v. Jones, 759 P.2d 558, 572 (Alaska App. 1988) (comparing the "reasonable       

possibility"  standard  to  the  "harmless  beyond  a  reasonable  doubt"  standard   used   for  

constitutional errors under Chapman, with the critical distinction being that the defendant   

(not the State) bears the burden of showing the prejudice under this standard).  

      38    See In re Towne, 86 A.3d at 435-36; see also Strickland, 466 U.S. at 696 ("[A] verdict  


or conclusion only weakly supported by the record is more likely to have been affected by  


errors than one with overwhelming record support").  

                                                                          -  17 -                                                                    2623

----------------------- Page 18-----------------------

                     One of the problems that Lambert faces in the current case is that the  


 evidence he seeks to test is blood and semen found on Mr. Benolken's clothing, but  


 Lambert was not convicted of Mr. Benolken's murder. The jury convicted Lambert only  


 of Mrs. Benolken's murder, and the jury rejected the State's theory that Lambert had  


 assisted another person or persons in killing Mr. Benolken.  Thus, demonstrating that  


 Lambert's DNA was not on Mr. Benolken's clothing would not directly undermine  


 confidence in the jury's verdict.  


                     Demonstrating that the DNA belonged to two unknown men (i.e., not  


 Lambert, Telles, or either of the victims) could potentially undermine confidence in the  


jury's verdict, but the significance of such a finding depends on the weight of the  


 evidence directly linking Lambert to Mrs. Benolken's murder.   Although the State's  


primary  theory  of  prosecution  was  that  only  two  men  (Lambert  and  Telles)  were  


 involved in the murders, the forensic evidence suggested that more than two people may  


have been involved.  This was a particularly brutal and violent double homicide that  


 involved the murder and rape of two victims. In his arguments to the jury, the prosecutor  


 emphasized that the person who killed Mr. Benolken - whether Telles or someone else  


- could not have done it alone.  Lambert's defense attorney similarly argued that there  


 could have been any number of people involved in the murders.  


                     The question therefore becomes, if the DNA testing showed that there were  


two additional perpetrators who were involved in killing Mr. Benolken (neither of whom  


was Lambert and Telles), would thesefavorabletest results raise a reasonable probability  


that Lambert was not involved in killing Mrs. Benolken?  As the superior court noted,  


the "biggest problem" that Lambert faced in making this showing was that Lambert  


himself had admitted to being present at the Benolken apartment when the murders  


 occurred.  Lambert also admitted that "at one point [he] thought [he] might have done  


                                                             -  18 -                                                        2623

----------------------- Page 19-----------------------

it." As the superior court also emphasized, the State's evidence linking Lambert to Mrs.  


Benolken's  murder  was  strong.                      This  evidence  included  not  only  Lambert's  own  


admissions at trial, but also Lambert's out-of-court confessions to two different inmates  


in two different correctional facilities. The State's evidence also included (1) Lambert's  


fingerprint on a paper bag next to Mrs. Benolken's body and within arm's reach of where  


the person stabbing Mrs. Benolken would have been situated given the blood splatter;  


(2) the broken knife found under Mrs. Benolken's body and Lambert's purchase of a  


new knife a few days after the murders; (3) Lambert's visit to the emergency room to  


treat a wound that could have been caused by broken glass or the broken knife; and (4)  


Lambert's various lies to the police and his efforts to get his friends to lie to the police  


on his behalf.  


                     On appeal, Lambert argues that the superior court erred in assuming that  


this  evidence  could  not  be  controverted  through  other  means.                                   Lambert  argues,  in  


particular, that the superior court erred when it assumed that Lambert's trial testimony  


was true.  According to Lambert, the superior court should have questioned the veracity  


of Lambert's trial testimony because his admissions bore all of the hallmarks of a false  


confession, in that they were admissions by a young defendant who was confronted with  


seemingly incontrovertible, but perhaps false, physical evidence - i.e., Agent Malone's  


hair comparison analysis.  


                     But  Lambert  never  argued  that  his  trial  testimony  was  false  in  his  


application for post-conviction DNA testing.  Nor did he ever claim that he was not  


present in the apartment at the time the murders occurred.  He also did not refute any of  


the other evidence against him (other than asserting Agent Malone's general lack of  


reliability as an expert).  Given all this, we conclude that the superior court did not err  


when it determined  that Lambert failed to show that the proposed DNA testing, if  


                                                              -  19 -                                                        2623

----------------------- Page 20-----------------------

favorable,  would  raise  a reasonable  probability  that  the  outcome  of  trial  would  be  


different - i.e., a reasonable chance, not an abstract possibility, that reasonable doubt  


regarding  Lambert's  guilt  would  be  found  where  none  had  previously  existed.  


Accordingly, we uphold the superior court's denial of Lambert's application for post- 


conviction DNA testing.  



                    The judgment of the superior court is AFFIRMED.  


                                                            - 20 -                                                       2623

----------------------- Page 21-----------------------

Judge ALLARD, concurring separately.                                 

                               I write separately to point out that there is nothing preventing the State from                                                                                

DNA testing the evidence in this case for its own reasons. As the United States Supreme                                                                                             

Court noted "DNA testing has an unparalleled ability both to exonerate the wrongly                                                                                                   

convicted and to identify the guilty. It has the potential to significantly improve both the                                                                                                      


criminal justice system and police investigative practices."                                                                                                                          

                                                                                                                                               Here, the jury's verdicts  


from the two defendants' trials have left the public with many unanswered questions  


about these brutal murders.  How many people were involved in these murders?  Was  


Telles  involved?                            Was  Lambert  involved  in  killing  Mr.  Benolken  as  well  as  Mrs.  


Benolken? Testing the blood and semen from Mr. Benolken's clothing has the potential  


to provide answers to at least some of these questions.   Moreover, if the results are  


matched  to  DNA  profiles  in  the  national  FBI  database  CODIS,  the  testing  could  


potentially lead to the identification and future prosecution of at least one (if not two)  


previously unknown perpetrator(s) from this thirty-year-old double homicide.  


                               It is also worth noting that DNA testing is relatively inexpensive, generally  


costing no more than a few thousand dollars.  In contrast, the costs of fully litigating the  


requirements under AS 12.73 can be quite high, consuming a significant amount of  


attorney, judge, and court time - most of which comes from public funds. Partially for  


this reason, the Alaska legislature has recognized the benefits of proceeding with the  


initial testing outside the formal requirements of AS 12.73 in certain circumstances.  


Alaska Statute 12.73.060 therefore provides:  


                               The provisions of this chapter do not prohibit an applicant  


                               and  the  prosecuting  authority  from  agreeing  to  conduct  


                               post-conviction DNA testing without the person's filing an  


                               application under this chapter. The parties may also stipulate  

        1      Dist. Attorney's Office for Third Dist. v. Osborne, 557 U.S. 52, 55 (2009).  

                                                                                             - 21 -                                                                                         2623

----------------------- Page 22-----------------------

                    to the payment of costs for the DNA testing and other costs  


                    associated with the terms of the agreement.  


One advantage of this approach is that the parties are not forced to speculate as to the  


universeofpotentially exculpatory results. Instead, they can streamlinethelitigation and  


focus on the actual known results.  Moreover, in cases where the specific evidence to be  


tested is particularly material to the question of guilt or innocence, there will likely be  

times when the DNA testing simply confirms the defendant's guilt, thereby obviating the  


need for costly litigation altogether.  


                                                             - 22 -                                                         2623

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