PATRICK MARQUISE NAPOLEON, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.
O P I N I O N
ROWLAND, JUDGE:
¶1 Appellant Patrick Marquise Napoleon appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2017-2208, for Assault and Battery with a Deadly Weapon, in violation of 21 O.S.2011, § 652(C). The Honorable William D. LaFortune, District Judge, presided over Napoleon's jury trial and sentenced him, according to the jury's verdict, to sixty-five years imprisonment with credit for time served. 1 Napoleon raises seven issues for review:
(1) whether the district court erred in denying his motion to exclude DNA evidence because the DNA was contaminated;
(2) whether the district court erred in denying his motion to exclude DNA evidence because the probabilistic genotyping testing that was conducted was not sufficiently reliable;
(3) whether the district court improperly limited his defense;
(4) whether the district court admitted prejudicial hearsay evidence;
(5) whether he was denied effective assistance of counsel;
(6) whether he was denied a fair trial because of the prosecution's failure to disclose exculpatory evidence; and
(7) whether an accumulation of error deprived him of a fair trial.
¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.
FACTS
¶3 This case involves the ruthless, near-fatal stabbing of Nancy Johnson Jones outside Hillcrest Medical Center in Tulsa on April 6, 2017. Jones had taken a quick break from visiting her stepmother to get a snack at a nearby QuikTrip before nightfall. As she approached the hospital's north entrance, her attacker came up behind her, plunged a serrated boning knife into her neck, and fled on foot towards the parking garage without taking anything from her. The disputed issue at trial was the identity of the perpetrator.
¶4 A hospital employee witnessed the attack from near the north hospital entrance. She identified Napoleon as Jones's attacker at trial. She described the attacker to police at the scene, explaining he was wearing camouflage pants and something white on his forearm. Another hospital employee, who was in her car in the parking garage, identified Napoleon as the person she saw wearing camouflage pants hurriedly putting objects in a parking garage trashcan and dashing up the stairs. Hospital security apprehended Napoleon on the street not far from the parking garage within fifteen minutes of the attack. Based on interviews with the employees, police found the bloody knife used in the stabbing in the parking garage trashcan along with the white sock the attacker wore over his hand. Police also found a pair of camouflage pants in a nearby stairwell. The employee in the parking garage testified she saw a man with the same build as the man she had seen in the camouflage pants running down the adjacent stairwell wearing black pants. She believed the man in the camouflage pants and black pants were the same person. When police arrested Napoleon, he was wearing black thermal pants.
¶5 DNA analysis using random match probability on the sock and camouflage pants performed by the Tulsa Police Department's forensic lab could neither exclude Napoleon nor include him because the DNA collected from both items was a mixture of two or more persons. After Napoleon's first trial ended in a mistrial, the State enlisted Sorenson Forensics to conduct probabilistic genotyping testing via the software program BulletProof. The software program analyzed the raw data from the previously indistinguishable DNA mixtures with Napoleon's known DNA profile to calculate a ratio of the likelihood his known profile would be included within the mixture and, if so, the approximate contribution proportion of his sample within the mixture. The results showed that it was far more likely that Napoleon's DNA was a major contributor to the mixture of DNA on both the sock and pants and that his DNA exceeded 50% of both mixtures. 2
¶6 Napoleon maintained his innocence and offered an alibi. 3 He also presented the testimony of a juror from his mistrial to show the DNA evidence was contaminated when jurors handled the sock and pants during deliberations of his first trial. He maintained the probabilistic genotyping test results were therefore unreliable.
1. DNA Contamination
¶7 Napoleon claims the district court erred in admitting, over his objection, some of the prosecution's DNA evidence. He challenges the probabilistic genotyping testing conducted by Sorenson Forensics, using the software program BulletProof, on the DNA mixture profiles collected from the attacker's sock and camouflage pants. He maintains the DNA evidence obtained from those items was too contaminated for the results of testing to be reliable and relevant. According to Napoleon, ample evidence suggested that the DNA obtained from the sock and camouflage pants had been contaminated "both by possible third-party contamination" or "cross-contamination of evidentiary items with Mr. Napoleon's DNA as a result of evidence mishandling at Mr. Napoleon's first trial." We review the district court's ruling admitting the evidence for an abuse of discretion. Jackson v. State, 2024 OK CR 11, ¶ 11, 548 P.3d 473, 479. "We will find an abuse of discretion only where the ruling is unreasonable or arbitrary and made without proper consideration of the facts and law pertaining to the matter at issue." Posey v. State, 2024 OK CR 10, ¶ 19, 548 P.3d 1245, 1259, cert. denied, 145 S. Ct. 1142 (2025).
¶8 Any contamination from the handling of the sock and pants at Napoleon's first trial did not render the probabilistic genotyping results unreliable. Before trial, Napoleon unsuccessfully sought to exclude the probabilistic genotyping test results, arguing, among other things, that contamination of the sock and pants rendered the results unreliable. The district court considered Napoleon's motion in conjunction with a Daubert4 hearing. The State presented the testimony of Kent Harman, who was recognized as an expert in probabilistic genotyping without objection. He explained that probabilistic genotyping accounts for multiple contributors and explained how it does so and how "contamination" from others does not render its results unreliable. Napoleon offered nothing to contradict the expert's conclusions and methodology.
¶9 Based on this record, the district court did not abuse its discretion in admitting the probabilistic genotyping results to assist the jury in assessing the otherwise ambiguous DNA evidence. The challenged testing supported a finding that Napoleon was a contributor of the DNA on the sock and pants. Any possible contamination was factored into the results and affected only the weight of the evidence rather than its admissibility. See State v. Hovet, 2016 OK CR 26, ¶ 9, 387 P.3d 951, 954 ("Claims of error in testing affect the weight, but not the admissibility, of scientific or technical evidence."); Fixico v. State, 1987 OK CR 64, ¶ 4, 735 P.2d 580, 582 ("[I]t is not necessary that all possibility of alteration be negated, and . . . any doubt as to the circumstances surrounding the exhibit's preservation goes to the weight of such evidence rather than its admissibility."). For these reasons, this claim is denied.
2. Reliability of Probabilistic Genotyping
¶10 Napoleon claims the district court erred by overruling his motion to exclude the probabilistic genotyping software program (PGSP) results from BulletProof used to analyze the DNA mixtures collected from the attacker's sock and pants. He contends that BulletProof and the methodology it employs are insufficiently reliable to pass muster under Daubert and Taylor v. State, 1995 OK CR 10, 889 P.2d 319(adopting Daubert analysis for novel scientific evidence in Oklahoma criminal cases). 5 We review a district court's ruling admitting novel scientific evidence de novo. Bosse v. State, 2017 OK CR 10, ¶ 19, 400 P.3d 834, 844. The record shows the district court's decision to admit the test results was supported by the evidence and met the factors enunciated in Daubert.
¶11 The Oklahoma Evidence Code governs the admissibility of expert testimony and sets forth certain criteria for admissibility. 12 O.S.2021, §§ 2702, 2703. 6 In evaluating the admissibility of novel scientific evidence, we have instructed district courts to consider: (1) whether the scientific method has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the technique's known or potential rate of error; (4) whether the theory has gained general acceptance in the relevant scientific community; and (5) whether the proposed testimony has a valid scientific connection to a pertinent inquiry such that it assists the trier of fact. Day v. State, 2013 OK CR 8, ¶ 4, 303 P.3d 291, 295. See also Taylor, 1995 OK CR 10, ¶¶ 18--20, 889 P.2d at 330. Analysis under Daubert is flexible and designed to accommodate many factors without setting forth a definitive checklist or test. Day, 2013 OK CR 8, ¶ 4, 303 P.3d at 295; Taylor, 1995 OK CR 10, ¶ 21, 889 P.2d at 330.
¶12 Contrary to Napoleon's claim, the district court held an extensive Daubert hearing on February 5, 2021. 7 Kent Harman, the CEO and managing partner at Sorenson Forensics d/b/a Genetic Technologies, was the sole witness. He presented his qualifications and was recognized as an expert in probabilistic genotyping without defense objection. 8 He described the mechanics of probabilistic genotyping via the software program BulletProof, explaining it is a mathematical tool with analytical and statistical functions that assigns weights of evidence to various propositions as it relates to complex mixtures of DNA. Based on his largely unchallenged testimony, the district court concluded that the Daubert factors weighed in favor of admission of the probabilistic genotyping results.
¶13 On appeal, Napoleon primarily challenges the reliability of the DNA identification evidence generated by BulletProof. He contends that the State never provided him with BulletProof's source code information and that without it, there was "no way for the trial court to determine that such evidence was reliable or based on sufficient facts or data . . . ." This claim is not supported by the record because, according to the expert, BulletProof uses EuroForMix algorithms to perform its mathematical calculations and its code is "open source[,]" free, and downloadable for review of its accuracy, as well as being peer reviewed and generally accepted in the scientific community. 9
¶14 Our review of the expert's testimony shows BulletProof meets the Daubert factors. When the evidence presented is weighed against the relevant Daubert reliability factors, we, like the district court, find that BulletProof's DNA identification methodology and the match statistic reported in this case was sufficiently reliable to warrant admission. Accordingly, we find the district court did not err in admitting the PGSP evidence. This claim is denied.
3. Right to Present a Defense
¶15 Napoleon claims he was denied his right to present a defense because of the district court's limitations on former juror A.J.'s testimony about her knowledge of her fellow jurors handling of the clothing evidence during Napoleon's first trial. He maintains that he should have been able to ask questions about the handling and opening of specific clothing items to further refute the State's DNA evidence and support his claim that his DNA was transferred to the sock and pants from his first jury's cross contaminating those items with his other clothes. Because Napoleon failed to object to the district court's limitations on A.J.'s testimony, our review of this claim is for plain error only. See Posey, 2024 OK CR 10, ¶ 31 548 P.3d at 1263. In performing plain error review, we must determine whether Napoleon has shown the commission of an actual error, which is plain or obvious, that affected his substantial rights. Id. 2024 OK CR 10, ¶ 11, 548 P.3d at 1257. Even then, this Court will correct plain error only if the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or represented a miscarriage of justice. Id.
¶16 Napoleon fails to show that the district court committed plain error in its limitations on A.J.'s testimony. First, defense counsel agreed to the limitation, and Napoleon cannot now complain about it on appeal. See Tryon v. State, 2018 OK CR 20, ¶ 134, 423 P.3d 617, 653 ("An appellant will not be permitted to profit on appeal from alleged error he or his counsel invited."). Second, he cannot show the court's limitation excluded material evidence resulting in the denial of due process. Whether a defendant has been denied due process and a fundamentally fair trial turns on the materiality of the excluded evidence to the presentation of the defense. Id. 2018 OK CR 20, ¶ 53, 423 P.3d at 635. Evidence is material if it is exculpatory, and its suppression might have affected the verdict. Id. Stated another way, evidence is material when, had it been admitted, it would have created reasonable doubt that did not exist without the evidence. Id. Here the defense was able to defend against the State's DNA evidence through A.J. who testified that the clothing evidence was sent back with the first jury and handled by jurors without gloves. Based on her testimony, defense counsel was able to argue his contamination theory during closing argument to undermine the prosecution's DNA evidence. Because Napoleon has not shown that additional testimony from A.J. might have affected the outcome of his trial, we find no plain error from the agreed limitation. Accordingly, this claim is denied.
4. Hearsay
¶17 Napoleon claims he was denied a fair trial by the admission of testimonial hearsay without a showing the witness was unavailable. Review of this claim is for plain error only because Napoleon failed to object to the challenged testimony at trial.
¶18 There is no error, plain or otherwise. The prosecutor impeached Jasona Tibbetts, Napoleon's alibi witness, with the trial testimony of the alibi witness he presented in his first trial who had placed him at a different location than Tibbetts. The evidence was admitted to show Tibbetts's testimony was fabricated and unworthy of belief. Accordingly, the alibi testimony from his first trial was not offered for its truth making it not hearsay. See 12 O.S.2021, § 2801(A)(3) (defining hearsay). A statement not admitted for its truth does not implicate the Confrontation Clause's role in protecting the right of cross-examination. Smith v. Arizona, 602 U.S. 779, 785 (2024); Tryon, 2018 OK CR 20, ¶ 40, 423 P.3d at 632-33. Because there was no hearsay or Confrontation Clause violation, this claim is denied.
5. Ineffective Assistance of Counsel
¶19 Napoleon claims defense counsel was ineffective for failing to: (1) impeach the eyewitness to the stabbing; (2) retain a DNA expert; (3) object to the introduction of impermissible hearsay evidence; and (4) call additional defense witnesses. This claim requires no relief.
¶20 This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel's performance was constitutionally deficient; and (2) whether counsel's performance prejudiced the defense depriving the defendant of a fair trial with reliable results. Strickland v. Washington, 466 U.S. 668, 687 (1984); Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Prejudice in this context is "a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial would have been different." Fulgham v. State, 2016 OK CR 30, ¶ 16, 400 P.3d 775, 780. "The likelihood of a different result must be substantial not just conceivable." Malone, 2013 OK CR 1, ¶ 16, 293 P.3d at 207 (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). This Court need not determine whether counsel's performance was deficient if there is no showing of harm. See Malone, 2013 OK CR 1, ¶ 16, 293 P.3d at 207. Under this test, Napoleon cannot show the necessary prejudice to prevail in this case.
¶21 Napoleon first faults defense counsel for failing to impeach the trial testimony of an eyewitness with inconsistent statements she made in prior proceedings about her location and vantage point when she witnessed the stabbing as well as her statements concerning the path taken by the attacker after the stabbing. The record reveals defense counsel impeached the eyewitness's testimony concerning her on-scene identification of Napoleon. The other discrepancies cited by Napoleon on appeal concern matters ancillary to the core facts of her testimony and Napoleon has not shown a reasonable probability that counsel's failure to address any of these discrepancies affected the outcome of his trial.
¶22 Next, he faults defense counsel for failing to retain a DNA expert to refute the State's DNA evidence. The record shows after the Daubert hearing, defense counsel obtained a continuance to hire an expert to review the prosecution's DNA evidence. The record further shows that counsel made efforts to obtain an expert and anticipated presenting expert testimony. The record does not show that counsel either dropped the ball or incorrectly decided against presenting expert testimony. According to counsel's August 2022 motion for continuance, the defense expert was "unable to prepare a report without more information and more time." The motion itself is evidence that counsel was making efforts to obtain an expert for trial. This record supports a finding that counsel exercised due diligence in efforts to secure a DNA expert and made a strategic decision not to call an expert likely because the expert could not provide a favorable report. See Strickland, 466 U.S. at 690-91; Harris v. State, 2019 OK CR 22, ¶ 85, 450 P.3d 933, 964 (observing counsel's strategic decisions based on reasonably adequate investigation are "virtually unchallengeable" on appeal). It is also noteworthy that Napoleon has made no attempt to supplement the record with evidence that could have been presented to refute the State's DNA evidence. Hence, based on this record, Napoleon has not shown a reasonable probability of a different outcome had counsel presented a DNA expert.
¶23 We have rejected on the merits Napoleon's claim that he was denied a fair trial because of the admission of testimonial hearsay. See Proposition IV, supra. Accordingly, he cannot show the necessary prejudice to prevail on his ineffective assistance of counsel claim based on defense counsel's failure to object to the challenged testimony.
¶24 Lastly, he claims defense counsel was ineffective for failing to call additional defense witnesses. His claim is based on nothing but speculation and he has not shown the necessary prejudice to prevail. For the foregoing reasons, we reject Napoleon's ineffective assistance of counsel claim.
6. Brady Claim
¶25 Napoleon claims he was denied a fair trial because the State failed to provide him with exculpatory evidence, namely the source code behind Sorenson Forensics' PGSP, in violation of Brady v. Maryland, 373 U.S. 83 (1963) (holding due process requires the prosecution to disclose exculpatory and impeachment evidence favorable to the accused). Napoleon has not alleged any Brady violation until now, making our review for plain error only.
¶26 To establish a Brady violation, the defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the accused, and the evidence was material to the defense. Fuston v. State, 2020 OK CR 4, ¶ 58, 470 P.3d 306, 322. Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). The record shows that Napoleon knew for more than two years before trial that Sorenson's PGSP BulletProof used the EuroForMix source code which was open and available for anyone to download. He offers nothing to refute the expert's claim concerning the openness of BulletProof's source code. Hence, Napoleon's Brady claim fails on the first of the three Brady elements because the prosecution did not suppress the source code. See United States v. Wooten, 377 F.3d 1134, 1142 (10th Cir. 2004) ("Evidence is not suppressed within the meaning of Brady if it is made known and available to the defense prior to trial."). Accordingly, no relief is required.
¶27 Napoleon also fails to show he was deprived of a fair trial because of the police's failure to obtain and make available video surveillance footage from the QuikTrip near the crime scene. The lead detective testified that one of his officers went to the QuikTrip the night of the attack and watched the video surveillance footage. That officer reported the footage showed the victim purchasing a snack minutes before the attack. The officer did not observe Napoleon on the video and did not collect the video because it had no apparent evidentiary value.
¶28 In a case like this where the favorability of the evidence to the defense is unclear, a criminal defendant must show bad faith on the part of the police otherwise the failure to preserve potentially useful evidence does not constitute a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); Martinez v. State, 2016 OK CR 3, ¶ 20, 371 P.3d 1100, 1108-09. Napoleon has not shown any proof of bad faith in the failure to preserve the video footage.
¶29 Nor can he show he was denied a fair trial from the State's alleged mishandling of the DNA evidence by the jury in his previous trial. His characterization of the DNA evidence as exculpatory is unsupported by, and inconsistent with, the record evidence. More importantly, he fails to show the State, or its agents, acted in bad faith. For these reasons, we find no error and deny this claim.
7. Cumulative Error
¶30 Napoleon claims that even if no individual error in his case merits relief, the cumulative effect of the errors committed requires dismissal or reversal and remand for a new trial. "The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal." Tafolla v. State, 2019 OK CR 15, ¶ 45, 446 P.3d 1248, 1263. The commission of several trial errors does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceeding. Id. And there can be no accumulation of error if there is no individual error. Lavorchek v. State, 2019 OK CR 13, ¶ 14, 443 P.3d 573, 578. There are no errors, considered individually or cumulatively, that merit relief in this case. This claim is denied.
DECISION
¶31 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2025), the MANDATE is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE WILLIAM D. LAFORTUNE
DISTRICT JUDGE
| APPEARANCES AT TRIAL OLIVER W. ARBOGAST ATTORNEY AT LAW P.O. BOX 8417 TULSA, OK 74101 COUNSEL FOR DEFENDANT |
APPEARANCES ON APPEAL AARON W. EASTON WIRTH LAW OFFICE 101 PARK AVE., SUITE 490 OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT |
| JOHN TJEERDSMA MATT KEHOE ASST. DISTRICT ATTORNEYS 500 S. DENVER, SUITE 900 TULSA, OK 74103 COUNSEL FOR STATE |
GENTNER F. DRUMMOND ATTY. GENERAL OF OKLAHOMA RANDALL YOUNG ASST. ATTORNEY GENERAL 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE |
OPINION BY: ROWLAND, J.
LUMPKIN, P.J.: Concur
MUSSEMAN, V.P.J.: Concur
LEWIS, J.: Concur
HUDSON, J.: Concur
FOOTNOTES
1 Under 21 O.S.Supp.2015, § 13.1, Napoleon must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.
2 The expert from Sorenson Forensics concluded from running the DNA profile from the sock through the probabilistic genotyping software that it was thirty-two trillion four hundred seventy billion times more likely to obtain the mixture results on the sock if Napoleon and three unknown, unrelated individuals were contributors than if four unknown, unrelated individuals were contributors. The ratio probability for the pants was one quadrillion one hundred eighty-one trillion.
3 The prosecutor's cross-examination of Napoleon's alibi witness showed he offered another, inconsistent alibi at his first trial.
4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (governing admissibility of scientific and other technical evidence).
5 It appears this type of testing has not been considered previously in Oklahoma courts.
6 Section 2702 states:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if:
1. The testimony is based upon sufficient facts or data;
2. The testimony is the product of reliable principles and methods; and
3. The witness has applied the principles and methods reliably to the facts of the case.
Section 2702 has been amended effective September 1, 2025.
7 Napoleon states in his brief, "The trial court, evidently, held an 'extensive Daubert hearing,' lasting 'about 20 minutes' on 2/5/2021." (emphasis added) Appellant's Brief at 21. He then claims that no transcript of the hearing exists and that the docket sheet contains no entry for that date. Id. This assertion is belied by the record. The appellate record contains the transcript of the Daubert hearing covering the admissibility of the genotyping evidence comprising 72 pages. The district court noted at a subsequent hearing that the Daubert hearing started in the afternoon with a ruling at 5:15 p.m.
8 Harman explained that he participates in the Federal Bureau of Investigation's (FBI) biannual proficiency testing consisting of him taking the forensic biology proficiency test administered by a third party and him interpreting complex DNA mixtures using BulletProof. His pass rate is 100%. His lab, Sorenson Forensics, is accredited by the American National Accreditation Board (ANAB), the American Society of Crime Laboratory Directors (ASCLD), and the New York City Department of Health, and it meets the FBI's Quality Assurance Standard (QAS).
9 It is worth noting that after the district court ruled the PGSP evidence admissible, the court granted Napoleon's continuance request so he could secure his own expert to contest the State's DNA evidence. He did not present any expert evidence at trial to refute the State's DNA evidence.