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State v. Nefstad

Court of Appeals of Oregon

December 11, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
STEPHEN LEROY NEFSTAD, Defendant-Appellant.

          Argued and submitted October 19, 2017

          Multnomah County Circuit Court 870331733 Julie E. Frantz, Judge.

          Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Lindsey Burrows and O'Connor Weber LLC fled the reply brief.

          Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge. [*]

         [301 Or.App. 186] Case Summary:

         Defendant appeals an order denying his motion for a new trial. Defendant was found guilty of aggravated murder in 1987. Following his conviction, defendant obtained a court order directing police to conduct DNA testing of the jacket and boots that were used as circumstantial evidence to convict him. According to defendant, the DNA testing results were "exculpatory" in the sense that they were "favorable" to his case, and he was therefore entitled to file a motion for a new trial under ORS 138.696 (2013). The state disagrees, arguing that defendant misinterprets the term "exculpatory" and that, even under defendant's definition, the results did not entitle him to a new trial. Held: The trial court did not err in denying defendant's motion for a new trial. Even assuming that "exculpatory" means that the results are merely "favorable," the results in this case did not meet that threshold.

         [301 Or.App. 187] ORTEGA, P. J.

         Defendant was found guilty of aggravated murder in 1987. At his trial, a criminalist for the state testified, based on chemical tests, that human blood was found on defendant's jacket and boots. The jacket was believed to be the jacket that defendant was wearing when he left a tavern with the victim. Defendant eventually sought and obtained a court order directing police to conduct DNA testing of the jacket and boots with methods that were not used at the time of the trial. This appeal concerns the results of that testing. According to defendant, the results were "exculpatory" in the sense that they were "favorable" to his case, and he was therefore entitled to file a motion for a new trial under ORS 138.696 (2013).[1] The state disagrees, arguing that defendant misinterprets the term "exculpatory" but that, even under defendant's definition, the results did not entitle him to a new trial. For the reasons explained below, we agree with the state's latter argument: Even assuming that "exculpatory" means that the results are merely "favorable," the results in this case did not meet that threshold. We therefore affirm the trial court's order denying defendant's motion for a new trial.

         I. UNDERLYING TRIAL

         We begin by providing the historical facts from the criminal trial, which are taken from State v. Nefstad, 309 Or. 523, 789 P.2d 1326 (1990), and supplemented with undisputed facts from the record.

"Shortly after midnight on Friday, March 13, 1987, defendant Stephen Leroy Nefstad and co-defendant Reyes Miranda drove to the Acropolis Tavern in Portland. There defendant struck up a conversation with the victim, Steven A. Jackson. At about 1:45 a.m., Jackson told his companions 'that he would be right back' and then stepped outside the tavern with defendant and Miranda. Jackson was never seen alive again.
[301 Or.App. 188] "A few miles away from the tavern at 2:37 a.m., [co-defendant] Miranda used Jackson's automatic teller bank card to withdraw $200 from Jackson's account. Sometime during this period, Jackson was brutally murdered by repeated stab wounds to his chest, and his body was left off of a dead-end street. The front passenger area of Miranda's vehicle was covered with blood; Miranda's clothes were soaked with blood, and defendant also had blood on his clothes.
"Defendant stated to his friends that 'something heavy had gone down. That they [defendant and Miranda] had to take this guy out. That he was history' Miranda admitted that after the stabbing, his car looked like 'Psycho III.' When the police took defendant in for questioning, defendant identified himself as Johnson' and gave a false date-of-birth. He told the police that 'he didn't know anything about the homicide.' Defendant told the officers an exculpatory story. The jury, however, found that he and Miranda had killed Jackson."

Nefstad, 309 Or at 525 (second brackets in original).

         During the trial, there was no forensic evidence connecting defendant to the car or murder. Some weeks after the murder, the state seized, among other evidence, defendant's jean jacket and a pair of boots. A witness testified that defendant was wearing a jean jacket when he was seen leaving the Acropolis Tavern with Jackson. Nefstad, 309 Or. 555 n 20. At trial, criminalist Beth Carpenter testified that she had identified a "small amount" of what testing confirmed was human blood on the boots. Carpenter also testified that there were several areas of what testing confirmed was human blood on the jacket. As relevant to this appeal, Carpenter testified that one of those locations was the "outside of the left arm, elbow area." Carpenter testified that she was unable to determine through chemical testing whose blood was on defendant's jacket or boots. Nefstad, 309 Or at 544.

         Carpenter also testified that she was unable to determine, "[f]rom a scientific point of view," whether the jacket was in the car at the time of the murder, but she opined that,

[301 Or.App. 189] "Assuming that this jacket was in the car when * * * Jackson was killed, I believe it was worn by an individual who had his arm, his left arm, around the neck of*** Jackson, possibly and probably in the back seat."

Id. at 544-45 (brackets in original).

         Defendant was convicted of aggravated murder and sentenced to death. Id. at 525. The Supreme Court affirmed the conviction, but it reversed and remanded the case for resentencing. Id.

         II. MOTION FOR DNA TESTING AND MOTION FOR NEW TRIAL

         To provide context to the parties' arguments, we begin by discussing the applicable law. A person who is incarcerated after a conviction for aggravated murder may file a motion in the original criminal case requesting DNA testing of certain evidence obtained at the time of the original prosecution that resulted in the conviction. ORS 138.690; ORS 138.692. The person filing a motion under ORS 138.690 must also submit an affidavit that includes, among other information, a statement that the person is "innocent of the offense for which the person was convicted." ORS 138.692 (A)(ii). The person requesting the testing "must present a prima facie showing that the DNA testing of the specified evidence would, assuming exculpatory results, establish the actual innocence of the person[.]" ORS l38.692(1)(b). If the court orders the specified evidence to be tested, ORS 138.696 allows the person to file a motion requesting a new trial if the court concludes that the DNA results are "exculpatory." Specifically, ORS 138.696 provides:

"(1) If DNA (deoxyribonucleic acid) testing ordered under ORS 138.692 produces inconclusive evidence or evidence that is unfavorable to the person requesting the testing:
"(a) The court shall forward the results to the State Board of Parole and Post-Prison Supervision; and
"(b) The Department of State Police shall compare the evidence to DNA evidence from unsolved crimes in the Combined DNA Index System.
[301 Or.App. 190] "(2) If DNA testing ordered under ORS 138.692 produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence."

         Turning back to the facts of this case, on December 11, 2001, the same year that the Oregon legislature passed the state's first DNA-post-conviction statute, defendant filed a motion requesting that certain evidence seized at the time of his prosecution be tested for DNA. For reasons not related to this appeal, the hearing on defendant's motion was not held until July 2014.[2]

         At the hearing, defendant requested, as relevant to this appeal, that the jean jacket and boots that Carpenter tested at the time of his trial be tested for DNA. In determining whether to grant defendant's motion and order the DNA testing, one of the contested issues before the trial court was the probative value of testing the jacket due to the risk that the jacket had been contaminated. After defendant's trial, his jacket had been stored for over 20 years together with Miranda's and Jackson's bloody clothing. Both parties ...


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