1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 124,844

STATE OF KANSAS,

Appellee,

v.

DARRICK S. HARRIS,

Appellant.

SYLLABUS BY THE COURT

1.

K.S.A. 21-2512 does not require a district court to order DNA testing a defendant 

does not ask for.

2.

K.S.A. 21-2512 does not impose a duty on the State to retain physical possession 

of nonbiological evidence it previously gathered in a case.

Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Submitted without 

oral argument February 3, 2023. Opinion filed June 21, 2024. Affirmed. 

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, was on the briefs for appellant. 

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, were on the 

brief for appellee.
2

The opinion of the court was delivered by

STEGALL, J.: Darrick S. Harris was convicted of first-degree murder of a guard 

and aggravated battery of another guard committed during a prison melee in 1993. He is 

serving a hard 40 life sentence for the murder and a 15-years-to-life sentence for the 

aggravated battery. This court affirmed Harris' convictions in State v. Harris, 259 Kan. 

689, 915 P.2d 758 (1996). The facts underlying the conviction are set out in that opinion. 

Under K.S.A. 21-2512, Harris recently petitioned the district court for forensic 

testing of objects—weights, billiard balls, and clothing—used in the murder. Harris 

hoped such testing would locate currently unknown biological material on those objects, 

and that this biological material could then be subject to DNA testing. In its response, the 

State claimed it no longer had possession of the items. An extensive search, including 

requests to the KBI, the Department of Corrections, the Leavenworth County Attorney's 

Office, and both the district and appellate court clerks' offices, failed to produce the items 

or provide any information about where the items were located. The State noted that a 

few biological swabs existed, including a swab of the steel weight. In responsive 

pleadings, however, Harris insisted he was not seeking retesting of the swabs.

At a hearing, the district court determined Harris' motions were moot because 

none of the items that he sought to have tested were still in the State's actual or 

constructive possession. Harris followed up on the mootness ruling by filing a motion 

requesting discharge from incarceration. He alleged that the State's inability to comply 

with his request for DNA testing created an adverse inference that his DNA was not 

present, which should be deemed sufficient to constitute exoneration.

At a subsequent hearing, various individuals who had or might have had custodial 

responsibilities for the missing weight testified about what might have happened to it. 
3

The gist of their testimony was that the Department of Corrections had policies and 

procedures for tracking evidence in its possession and for disposing of evidence no 

longer deemed necessary for cases, but those policies and procedures had inexplicably 

not been followed with the steel plate and other physical evidence. The witnesses testified 

they had searched extensively for the plate without success and had no idea what might 

have become of it.

Following the evidentiary hearing and argument, the district court denied the 

motion to release Harris from custody, holding there was no evidence the State acted in 

bad faith in failing to preserve the evidence. Harris took an appeal directly to this court 

under K.S.A. 22-3601(b)(3). As explained below, we affirm the district court as being 

right for the wrong reason.

DISCUSSION

On appeal, Harris' claim for relief arises squarely under the due process 

protections afforded by the Fourteenth Amendment to the United States Constitution.

Essentially, Harris argues that the State's failure to retain physical evidence—the steel 

weight in this instance—deprived him of a statutory remedy and thus violated his due 

process rights. Secondarily, Harris argues the district court erred by not sua sponte 

ordering the DNA testing of the biological material that was in the State's possession.

We can dispose of the second issue first, in summary fashion. Below, Harris not 

only did not argue for testing of the swabs, he explicitly informed the court it was not 

what he was seeking. In district court briefing, he announced: "Defendant is not seeking 

the retesting of the blood stains that were previously tested. Defendant is seeking testing 

of the objects (i.e., clothing, weight plates, and billiard balls) for the presence of 

biological material other than blood, such as skin cells, etc. This kind of testing was never 
4

done." K.S.A. 21-2512 does not require a district court to order testing a defendant does 

not ask for. There is therefore no basis for appellate relief with respect to the biological 

material in the State's possession.

As for Harris' spoliation claim, the parties and the district court agreed below 

that a due process analysis under Arizona v. Youngblood was appropriate. 488 U.S. 51, 

57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). That case addressed a pretrial loss of 

potentially exculpatory evidence. In Youngblood, the Supreme Court held that a 

defendant's due process right to have access to potentially exculpatory evidence before 

trial is implicated only when state actors lose such evidence by exercising bad faith. 488 

U.S. at 57-58. And Kansas caselaw has followed the Youngblood rule. Unless a defendant 

shows bad faith on the part of the police, the failure to preserve potentially useful 

evidence before trial does not constitute a denial of due process. State v. Johnson, 297 

Kan. 210, 218, 301 P.3d 287 (2013). 

Thus, the district court elected to submit the facts to a due process analysis. It 

conducted a hearing and ultimately concluded the State's various custodial agencies did 

not act in bad faith. But a recent decision from this court makes it clear that Harris has no 

statutory spoliation claim under K.S.A. 21-2512 with respect to nonbiological material 

that may have been in the State's possession at one time. See State v. Angelo, 316 Kan. 

438, 518 P.3d 27 (2022). Without any statutory basis for his spoliation claim, Harris

cannot hitch his broader due process caboose to the engine of our state postconviction 

DNA-testing statute. 

K.S.A. 21-2512 permits defendants convicted of first-degree murder or rape to 

petition for DNA testing of biological material related to the investigation or prosecution 

that resulted in the conviction. Before such testing can be ordered, the biological material 
5

to be tested must be in the State's possession. As we held in Angelo, "the scope of K.S.A. 

2021 Supp. 21-2512 is not unlimited." 316 Kan. at 451. One of the statute's boundaries is 

that it 

"limits the scope of testing to 'any biological material' that is related to the case, in the 

actual or constructive possession of the State, and which was not previously tested or can 

be retested with new DNA techniques that are more accurate and probative. . . . Eligible 

petitioners may request DNA testing of biological material only. The plain language of 

subsection (a) does not contemplate or provide for testing of other physical evidence to 

determine whether biological material is present." 316 Kan. at 452.

With this in mind, we went on to explain:

"As for the State's preservation duty, once the prosecution has notice of the 

petition, it must take necessary steps to ensure that 'biological material that was secured

in connection with the case is preserved.' K.S.A. 2021 Supp. 21-2512(b)(2). This 

statutory language is important in two respects. First, like subsection (a), it focuses on 

'biological material' specifically, rather than items of evidence generally. Second, the 

plain language requires the State to preserve only biological material that 'was secured in 

connection with the case.' K.S.A. 2021 Supp. 21-2512(b). The Legislature's use of the 

past-tense phrase, 'was secured,' makes clear the Legislature intended the State only 

preserve the 'biological material' it previously secured in its investigation or prosecution 

of the defendant. The plain language cannot be read to impose a duty on the State to call 

its crime scene investigators back in to examine or re-examine the physical evidence and 

determine whether any of those items contain biological material that the prosecution had 

not previously 'secured.' [Citations omitted.]" 316 Kan. at 453-54.

The statutory framework as explained in Angelo makes clear that the State's duty 

to preserve evidence begins after a petitioner files an allegation that biological material 

exists which would satisfy the statutory threshold requirements. The State has no duty 

under the statute to re-examine the nonbiological physical evidence in its possession, let 
6

alone to examine physical items that are not in its possession to determine whether 

biological material is or is not present. See 316 Kan. at 452. But that is exactly what 

Harris now claims.

Here, the objects on which Harris alleges there is biological material are no longer 

in the custody of the State, leaving Harris with no remedy under K.S.A. 21-2512. The 

State already tested the objects and secured the biological material it obtained. There is 

thus no relief available to Harris under our postconviction DNA-testing regime. The 

statute does not contemplate, and certainly does not provide, a spoliation remedy for 

nonbiological evidence. 

Accordingly, on these facts Harris has no claim under K.S.A. 21-2512. If he did, 

we would be creating an obligation on the State—arising not out of the Constitution, but 

out of K.S.A. 21-2512—to keep all physical evidence it ever gathers in any case on the 

off chance it might hold untested biological material. This directly contradicts the plain 

language of the statute and our holding in Angelo. 

Because K.S.A. 21-2512 does not provide a vehicle for a claim on the facts 

presented here, Harris' constitutional due process spoliation allegations must stand on 

their own if they are to be properly considered on their merits. Viewed through this lens, 

Harris' suit can, at best, be construed as a claim for postconviction relief under K.S.A. 60-

1507. But the murder and initial conviction in this case occurred nearly 30 years ago and 

this court affirmed his conviction in 1996. Harris, 259 Kan. at 691. Harris waited 23 

years to bring his spoliation due process claim. As such, even construed in the light most 

favorable to Harris as a motion under K.S.A. 60-1507, the claim is procedurally barred by 

the one-year time limitation of K.S.A. 2023 Supp. 60-1507(f)—and Harris has presented 

no argument for an exception. 
7

Thus, to the extent Harris asserts a claim under our postconviction DNA-testing 

statute, he has not stated a proper claim for relief. To the extent we were to consider 

Harris' true constitutional claim, it is procedurally barred. The district court's denial of 

Harris' motion was thus correct, though for the wrong reason. See State v. McCroy, 313 

Kan. 531, 539, 486 P.3d 618 (2021) (affirming lower court as right for the wrong reason).

Affirmed.

* * *

ROSEN, J., concurring: I agree with the majority's ultimate conclusion that Harris 

is not entitled to the relief he seeks. I am troubled, however, by certain analytic 

determinations that the majority makes along the way to reach its conclusion. I voice my 

concerns not because the facts of this case suggest either bad faith on the State's part or a 

likelihood of finding exonerating evidence on Harris' part. I see no evidence of bad faith, 

and I see essentially no indication that Harris would obtain any relief even if the weight 

had been located. But I am concerned about absolute statements in the majority's opinion 

that may preclude remedies in future cases if the State does act in bad faith, either 

intentionally or through gross negligence. And I can foresee situations in which convicted 

individuals might be exonerated if physical objects were available for testing under 

K.S.A. 21-2512.

The majority misconstrues what Harris is seeking. He does not seek testing of 

nonbiological materials; he seeks testing of biological materials retrieved from a 

nonbiological item. DNA rarely exists in a pure state detached from nonbiological things. 

It exists on swabs, on bed linen, on plastic cups, and on countless other objects. 

Potentially, it also exists on weights that are used as murder weapons. To hold that 

K.S.A. 21-2512 does not apply to testing such items for DNA evidence renders the 

statute nearly meaningless.
8

The majority misleadingly avers that the "State already tested the objects and 

secured the biological material it obtained." Slip op. at 6. Yes, the State tested blood 

residue on the weight to determine whether it was the blood of a victim or of a 

perpetrator. But the State did not swab other parts of the weight to determine whether 

Harris' DNA was on the weight, which is the testing that Harris requests. Harris 

contended the plate could plausibly contain traces of DNA from the contact with all the 

various people who handled it. There is no indication that the State carried out this kind 

of comprehensive testing, and the State does not assert that this testing took place.

From this point on, State actors will not only have little incentive to retain 

evidence used to obtain convictions; they will have great incentive to dispose of such 

evidence. I posit a hypothetical scenario: a victim testifies that her assailant used her

hairbrush to comb his beard. After an individual is tried and convicted, the accused 

requests DNA testing of hairs from the brush. Concerned that such testing might 

exonerate the accused, law enforcement tosses the brush into a lake. Under the majority 

opinion, this is not a problem. After all, it is a nonbiological item that the State disposed 

of, which is not subject to the terms of K.S.A. 21-2512. Furthermore, even a deliberate 

sabotage of the statute's purpose has no remedy. While the majority vaguely hints at some 

kind of due process claim, it envisions no realistic way of bringing such a claim.

As a consequence, I am concerned that the majority's construction of rights under 

K.S.A. 21-2512 encourages loss of exculpatory evidence and potentially denies innocent 

people the relief the statute seeks to promote. The district court examined the 

circumstances under well-established due process analysis, and the State agreed with that 

analysis. I think the district court and the State were right. Under that analysis, Harris did 

not prevail, and I therefore agree with the majority in denying him the relief he seeks on 

appeal.