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LARUE, JOE EDWARD

PD-1544-14 04/13/2016

"The Court of Appeals erred in failing to properly review the evidence and determine whether there was at least a 51% chance that appellant would not have been convicted if exculpatory results had been available during trial."

LaRue was convicted of the capital murder of one of his female co-workers. At trial, LaRue testified he had consensual sex with her and that she was still alive when he left her house. However, a witness testified that LaRue told another inmate he hit the victim on the head with a brick after having sex with her. DNA evidence at trial showed that: (1) LaRue's semen was in the victim's mouth; (2) LaRue could not be excluded as a contributor to the victim's fingernail sample scrapings; and (3) LaRue and the victim were excluded as contributors to a nearby cigarette butt. Forensic evidence also showed that a bloody fingerprint on the door did not belong to LaRue. Police had discovered another suspect, who LaRue testified committed the offense, wearing a bloody T-shirt. However, they were unable to obtain a usable sample for DNA testing.

LaRue moved for Chapter 64 DNA testing, requesting that the items be re-tested. He argued that the integrity of the previous results are in question due to a labeling error and new testing would provide more accurate results. Further, the presence of another person's DNA in the profile from the mixture of his and the victim's DNA on the fingernail scrapings would place another person at the scene. Likewise, if the victim's blood was found on the other suspect's T-shirt, it would place him at the scene. The trial court denied the motion.

The Court of Appeals affirmed. It held that, given the inculpatory evidence, LaRue failed to show a greater than 50% chance that he would not have been convicted if exculpatory results were obtained. The presence of another person does not exonerate LaRue; it would just show another party to the crime. Re-testing of the fingernail scrapings would not be more probative because LaRue admitted to having sex with the victim. Thus, exculpatory results are not needed to place someone else at the scene. And even if the blood on the other suspect's T-shirt is proven to be the victim's, it is not probative because LaRue testified at trial that the other suspect confessed to him that he killed the victim.

LaRue contends that a reviewing court must assume that testing would yield exculpatory results, and the court of appeals failed to do so here. If someone else's DNA was present, it would suggest the victim was with another person after he had consensual sex with her and left. If the victim's blood is found on the other suspect's T-shirt, it would be probative because the State had argued that his statements accusing the other suspect were untrue.

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