In the Missouri Court of Appeals

Eastern District

DIVISION FOUR

STATE OF MISSOURI, ) ED103288

 )

Respondent, ) Appeal from the Circuit Court of 

 ) the City of St. Louis

v. ) 22951-02354-01

 )

ARDELL FIELDS, ) Honorable Steven R. Ohmer

 ) 

Appellant. ) Filed: July 19, 2016

Ardell Fields ("Movant") is incarcerated for a rape he claims he did not commit. In his 

quest to be exonerated, Movant pursues post-conviction DNA testing, pursuant to Section 

547.035.1 Movant appeals from the motion court's judgment, after an evidentiary hearing, 

denying his post-conviction motion for DNA testing. We affirm. 

BACKGROUND

In April 1996, Movant was convicted, after a jury trial in the Circuit Court of the City of 

St. Louis, of forcible rape, resisting arrest, and third degree assault. Movant was sentenced to a 

term of life imprisonment for the forcible rape conviction, a term of 10 years of imprisonment 

for the resisting arrest conviction, and a term of one year of imprisonment for the third degree 

assault conviction, all terms to run consecutively. Previously, this court affirmed Movant's 

 

1 All statutory references are to RSMo Cum. Sup. 2014, unless otherwise indicated.
2

convictions on direct appeal, State v. Fields, 948 S.W.2d 201 (Mo. App. E.D. 1997), as well as 

Movant's motion for post-conviction relief under Rule 29.15, Fields v. State, 991 S.W.2d 213 

(Mo. App. E.D. 1999).

In July 2012, Movant filed a pro se post-conviction motion for DNA testing, pursuant to 

Section 547.035, asserting his innocence. After appointed counsel filed an amended motion, the 

motion court denied Movant's prayer for relief without an evidentiary hearing. Thereafter, on 

appeal, this court reversed the motion court's holding and remanded the matter for an evidentiary 

hearing. See Fields v. State, 425 S.W.3d 215 (Mo. App. E.D. 2014). 

On remand, the motion court conducted an evidentiary hearing upon Movant's postconviction motion for forensic DNA testing. During the evidentiary hearing, the motion court 

was presented with evidence and the testimony of three witnesses; (1) Donna Becherer 

("Becherer"), a forty year veteran of the St. Louis Metropolitan Police Department's crime 

laboratory; (2) Terri Johnson, Movant's trial counsel ("Trial Counsel") and former employee of 

the Missouri State Public Defender; and (3) Movant. The litigants stipulated that there existed 

evidence secured in relation to the underlying crime which DNA testing could be conducted 

upon; specifically, Victim's jeans, Victim's underwear, Victim's shirt, Movant's shirt, Movant's 

pants, Movant's underwear, and swabs from Victim's rape kit procured during her examination at 

the hospital. 

Subsequently, the motion court issued its judgment, overruling Movant's post-conviction 

motion for forensic DNA testing, concluding, inter alia, that, at the time of Movant's trial, DNA 

testing technology was reasonably available to Movant and Trial Counsel, and the election to 

forgo DNA testing was a matter of trial strategy.

This appeal now follows. 
3

DISCUSSION

Movant submits two points on appeal. First, Movant asserts the trial court clearly erred 

in denying his motion for post-conviction DNA testing, in that the trial court administered an 

"objective" test regarding the availability of DNA testing technology rather than a "subjective" 

test, in violation of Section 547.035.2(3)(a). 

Second, Movant maintains the trial court clearly erred in denying his motion for postconviction DNA testing premised upon Movant's failure to satisfy 547.035.2(5). Movant claims 

the trial court's finding was against the weight of the evidence, in that there existed a reasonable

probability that exculpatory evidence secured by DNA testing would have exonerated Movant.

As discussed, infra, we find Point I dispositive and need not reach Point II. 

Standard of Review

A motion for DNA testing, pursuant to Section 547.035, is a post-conviction motion, 

governed by that standard set forth under Rules 24.035 and 29.15. Weeks v. State, 140 S.W.3d 

39, 43-44 (Mo. banc 2004). As such, appellate review of a post-conviction motion is limited to 

determining whether the motion court's findings of fact and conclusions of law are clearly 

erroneous. State v. Ruff, 256 S.W.3d 55, 56 (Mo. banc 2008) ("Denial of a post-conviction 

motion for DNA testing is reviewed to determine whether the motion court's findings of fact and 

conclusions of law were clearly erroneous."). Inasmuch as we presume the motion court's 

findings are correct, this court deems a motion court's findings of fact and conclusions of law 

clearly erroneous only if a full review of the record leaves us with a definite and firm impression 

that a mistake has been made. Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014).

Analysis
4

For individuals in the custody of Missouri's Department of Corrections seeking 

exoneration, Section 547.035 prescribes a statutory construct to file a post-conviction motion for 

forensic DNA testing. See Section 547.035.1; see also Hudson v. State, 190 S.W.3d 434, 438 

(Mo. App. W.D. 2006). Pursuant to Section 547.035.2, upon the filing of a post-conviction 

motion for forensic DNA testing, an evidentiary hearing shall be afforded to a movant if the 

motion incorporates specific enumerated information. State v. Kinder, 122 S.W.3d 624, 629 

(Mo. App. E.D. 2003). Particularly, the motion must allege facts demonstrating, by a 

preponderance of the evidence, the following:

(1) There is evidence upon which DNA testing can be conducted; and

(2) The evidence was secured in relation to the crime; and

(3) The evidence was not previously tested by the movant because:

(a) The technology for the testing was not reasonably available to the 

movant at the time of the trial;

(b) Neither the movant nor his or her trial counsel was aware of the 

existence of the evidence at the time of trial; or

(c) The evidence was otherwise unavailable to both the movant and 

movant's trial counsel at the time of trial; and

(4) Identity was an issue in the trial; and

(5) A reasonable probability exists that the movant would not have been convicted 

if exculpatory results had been obtained through the requested DNA testing.

Section 547.035.2. 

Thereafter, the prosecutor will be ordered to show cause as to why the motion shall be 

denied unless it appears from the motion that a movant is not entitled to relief or the court 

determines the file and records of the case conclusively show that a movant is not entitled to 

relief. See Section 547.035.4; Kinder, 122 S.W.3d at 630; see also Hudson, 190 S.W.3d at 438-

39 ("Even if a show cause order is issued, the motion court, after considering the prosecutor's 

response to the show cause order, does not have to conduct a hearing if it finds that the motion 

and the files and records of the case conclusively show that the movant is not entitled to relief.") 
5

(internal citations and quotation marks omitted). However, if an evidentiary hearing is granted 

and conducted, the motion court shall order the appropriate testing if the motion court concludes:

(1) A reasonable probability exists that the movant would not have been convicted 

if exculpatory results had been obtained through the requested DNA testing; and

(2) That movant is entitled to relief.

Section 547.035.7; see also Hudson, 190 S.W.3d at 439. Nevertheless, the movant still bears the 

burden of proving, by a preponderance of the evidence, the allegations of the motion, including 

each and every element of Section 547.035.2. See Matney v. State, 110 S.W.3d 872, 876 (Mo. 

App. S.D. 2003); State v. Waters, 221 S.W.3d 416, 418 (Mo. App. W.D. 2006) ("Each of 

subsections 1-5, on the other hand, is connected by 'and,' and, therefore, each must be 

satisfied."). 

In the instant matter, prior to the evidentiary hearing conducted upon Movant's motion, 

the parties stipulated and did not dispute Movant's motion satisfied elements (1), (2), and (4) of 

Section 547.035.2. As such, during Movant's evidentiary hearing, elements (3) and (5) of 

Section 547.035.2 were specifically at issue. Those same elements form the nucleus of Movant's 

dual points on appeal.

Insomuch as this court concludes the trial court did not err in adjudging Movant failed to 

satisfy element (3) of Section 547.035.2, Movant's Point I is dispositive, and we elect not to 

address Movant's Point II. See Waters, 221 S.W.3d at 418 ("Each of subsections 1-5, on the 

other hand, is connected by 'and,' and, therefore, each must be satisfied."). 

Point I: Element (3) of Section 547.035.2 

In his first point on appeal, Movant asserts the trial court clearly erred, inter alia, in 

adjudging Movant failed to satisfy prong (a) of element (3) of Section 547.035.2, in that the trial 

court administered an "objective" test regarding the availability of DNA testing technology 
6

rather than a "subjective" test. Specifically, Movant avers the trial court inappropriately 

determined Movant failed to meet Section 547.035.2(3)(a) because DNA testing technology was 

not reasonably available to Movant or Trial Counsel, even though DNA testing was available 

and had been utilized in the jurisdiction of the City of St. Louis since 1991. Moreover, Movant 

claims the election not to request and conduct DNA testing at the time of Movant's trial could not 

have been a matter of trial strategy because neither Movant nor Trial Counsel was aware of DNA 

testing technology at the time of Movant's trial and there is no evidence to support the trial 

court's finding that this was, indeed, trial strategy. 

"Section 547.035.2(3) requires Movant to allege facts that demonstrate that the evidence 

was not previously tested by him because: (a) the technology for the testing was not reasonably 

available to the movant at the time of the trial; (b) neither the movant nor his or her trial counsel 

was aware of the existence of the evidence at the time of trial; or (c) the evidence was otherwise 

unavailable to both the movant and movant's trial counsel at the time of trial." Snowdell v. State, 

90 S.W.3d 512, 515 (Mo. App. E.D. 2002); see also Section 547.035.2(3). Hence, "[t]o be 

entitled to post-conviction DNA testing, a movant must allege facts demonstrating one of the 

three alternative justifications set out in the statute as to why he or she did not previously test the 

evidence." Kinder, 122 S.W.3d at 630 (citing Section 547.035.2(3)).

On appeal, prongs (b) and (c) of element (3) of Section 547.035.2 are not specifically

contested by Movant. Nevertheless, for purposes of comprehension and analysis this court elects 

to analyze all three prongs of element (3) of Section 547.035.2, beginning first with prongs (b) 

and (c) before returning to prong (a). 

Prong (b): Both Movant and Trial Counsel were aware of the existence of the evidence 

at the time of Appellant's trial
7

During the evidentiary hearing, Movant and Trial Counsel both admitted they had 

received the Lab Report listing the items seized as evidence. Said Lab Report delineated that 

evidence which Movant now seeks to have tested for DNA. Specifically, said evidence, which 

Movant seeks to have tested for DNA and which was demarcated in the Lab Report, includes 

Victim's jeans, Victim's underwear, Victim's shirt, Movant's shirt, Movant's pants, Movant's

underwear, and swabs from Victim's rape kit procured during her examination at the hospital. 

Consequently, both Movant and Trial Counsel were aware, at the time of Movant's trial, of the 

existence of the evidence Movant now seeks DNA testing upon.

Movant, therefore, cannot satisfy prong (b) of element (3) of Section 547.035.2. 

Prong (c): The evidence was available to both Movant and Trial Counsel at the time of

Movant's trial.

It is undisputed the clothing evidence—Victim's jeans, Victim's underwear, Victim's 

shirt, Movant's shirt, Movant's pants, and Movant's underwear—sought to be tested for DNA by 

Movant, were admitted as exhibits during Movant's trial. Accordingly, there exists no rational 

argument to refute the availability of this evidence as to both Movant and Trial Counsel at the 

time of Movant's trial.

Further, the swabs from Victim's rape kit were, likewise, available to both Movant and 

Trial Counsel at the time of Movant's Trial. As noted, supra, the Lab Report expressly indicated 

that a rape kit had been acquired and the Lab Report was available to both Movant and Trial 

Counsel. Thus, evidence collected in connection with Victim's rape kit was available, at the time 

of Movant's trial, as to both Movant and Trial Counsel.

Movant, therefore, cannot satisfy prong (c) of element (3) of Section 547.035.2. 

Prong (a): The technology for the DNA testing was reasonably available to the Movant 

at the time of Movant's trial.
8

Under prong (a) of Section 547.035.2(3), a movant must demonstrate "the technology for 

the testing was not reasonably available to the movant" at the time of trial. Weeks, 140 S.W.3d 

at 47 (quoting Section 547.035.2(3)(a)) (emphasis in original). According to the Supreme Court 

of Missouri, "the test is a subjective one, subject to a reasonable availability standard, not a 

question of objective scientific feasibility." Weeks, 140 S.W.3d at 47 (emphasis in original). 

Appropriately, upon a motion for post-conviction forensic DNA testing, our courts are instructed 

to examine that which was "reasonably available" to the movant at the time of movant's trial, 

subject to a reasonable availability standard. Id. at 48 ("The legislature did not choose to so

severely restrict the impact of the statute, or to set a specific limiting date."). 

In overruling Movant's motion and concluding DNA testing was available to Movant and 

Trial Counsel at the time of Movant's trial in April 1996, the motion court found, in operable 

part, as follows:

At Movant's Evidentiary Hearing on March 27, 2015, Criminalist Becherer from 

the St. Louis Metropolitan Police Department Crime Laboratory, testified that 

DNA testing in criminal cases has been available as part of criminal investigations 

in the City of St. Louis since around 1991. Ms. Becherer was a primary party in 

setting up the DNA lab for St. Louis Police Department. Ms. Becherer testified 

that DNA testing of evidence in criminal cases was utilized in criminal 

investigations throughout 1995 and 1996 in the City of St. Louis court cases 

investigated by the St. Louis Metropolitan Police Department. Ms. Becherer 

stated that during the mid-1990's, the St. Louis Metropolitan Police Department 

Crime Laboratory's primarily conducted DNA analysis at the request of the 

detectives investigating criminal offenses. Ms. Becherer further stated, however, 

that during the mid-1990's, the St. Louis Police Crime Laboratory would conduct 

DNA analysis of evidence seized as part of criminal investigations for crimes 

which occurred in the City of St. Louis at the request of prosecutors and defense 

attorneys as well. Ms. Becherer stated that no court order was required to 

accompany a request to conduct such DNA analysis. 

Ms. Becherer testified further that DNA testing was not requested by any party in 

the case against Movant. DNA testing would have been tested on items seized as 

part of the criminal investigation in Movant's case if requested the police, by the 

Circuit Attorney's Office, or by the defense attorney. 
9

Ms. Becherer further testified that her laboratory was not accredited in DNA 

examination until 1997, although they were doing DNA analysis prior to 

accreditation. She testified presumptive testing in Movant's case did not test 

positive for seminal fluid. Her microscopic examination of slides made from the 

swabs in the sexual assault kit did not reveal sperm cells. She did detect blood on 

clothing from Movant and the victim but did not [perform] DNA testing of that 

blood. She also agreed modern STR testing is much more sensitive than the 

technology then used. 

Terri Johnson, Movant's trial counsel, testified on March 27, 2015, that she was 

employed by the Missouri State Public Defender's Office in the 1990's. Ms. 

Johnson testified that she was familiar with DNA analysis at the time of Movant's 

trial. Ms. Johnson testified she tried numerous cases, both before and after 

Movant's case, in which DNA evidence was utilized. Ms. Johnson acknowledged 

that she had received the lab report in Movant's case and that she would have 

provided a copy of the lab report to Movant prior to trial. Although Ms. Johnson 

did not have an independent recollection of the meetings with Movant in 1995 

and 1996, she did testify that it was her practice to review items such as lab 

reports and police reports with her client prior to proceeding with a criminal trial. 

Ms. Johnson testified that the defense at Movant's trial focused on an argument of 

misidentification. Ms. Johnson testified that during the time of Movant's trial, the 

Public Defender's Office's main strategy in cases involving incriminating DNA 

evidence was to attack the reliability of the DNA testing. As a result, the Public 

Defender's Office did not commonly make their own request for DNA testing in 

cases.

***

Ms. Becherer clearly established that DNA testing had been in use by the St. 

Louis Metropolitan Police Department for a number of years prior to the incident 

for which Movant was arrested. While the precise tests have evolved since 1996, 

Ms. Becherer's testimony clearly established that DNA testing technology was 

available and in common use in the City of St. Louis at the time of Movant's trial. 

Movant fails to meet option (a) [of Section 547.035.2]. Furthermore, the St. Louis 

Police Department Crime Lab would have conducted DNA analysis on the items 

seized in connection to the investigation of the crime for which Movant was 

arrested and charged had any party, including Movant, simply made the request. 

Movant's attorney did not request said testing for reasons of trial strategy. Her 

defense was misidentification and any positive DNA results would negate that 

defense and leave her with a defense of attacking the testing itself. This Court has 

high respect for trial counsel and her professional judgment and finds her 

credible.
10

On appeal, Movant contends the trial court's findings regarding (1) the reasonable 

availability of DNA testing technology as to Movant and Trial Counsel and (2) the decision to 

forgo DNA testing as matter of trial strategy were erroneous and without evidentiary support. 

This court finds the aforementioned findings and conclusions by the trial court to be accurate and 

not clearly erroneous. 

First, at the time of Movant's trial, Becherer testified that she had testified as a witness in 

eighteen (18) separate criminal cases, commenced in the jurisdiction of the City of St. Louis,

regarding DNA testing and analysis she performed in the course and scope of her employment in 

the crime laboratory of the St. Louis Police Department. Beyond those eighteen separate 

criminal cases wherein Becherer was called as a witness, Becherer also testified that at the time 

of Movant's trial she had conducted DNA on a "lot more" than those eighteen cases. 

Indisputably, DNA testing technology was reasonably available in the jurisdiction of the City of 

St. Louis at the time of Movant's trial. 

Regardless of the reasonable availability of DNA testing technology within the 

jurisdiction of the City of St. Louis, Movant, nevertheless, maintains that DNA testing was not 

reasonably available to Movant or Trial Counsel, in that Trial Counsel could not recall the onset 

of her DNA testing technology knowledge.2 In support thereof, Movant directs this court's 

attention to Weeks.

In Weeks, our Supreme Court reversed the judgment of the trial court denying the 

movant's post-conviction motion for forensic DNA testing because the movant "provided 

sufficient supporting evidence to show[] that DNA testing was not reasonably available to him at 

 

2 With an acute appreciation and recognition of the swelling caseloads of this State's prosecutors and public 

defenders alike, this court notes that resolution of this matter could have been performed more swiftly had counsel 

composed "Notes to File" indicating discussions with one's client and internal strategy. Such a practice could assist 

in alleviating—or more quickly resolve—post-conviction motions in general.
11

the time of his plea." Weeks, 140 S.W.3d at 48. Such "sufficient supporting evidence" included: 

(1) an affidavit of the former executive director of the Southeast Missouri Regional Crime 

Laboratory ("SEMO") testifying that SEMO "did not conduct any DNA testing in 1992, . . .had 

no equipment with which to do so[,]" and that SEMO "did not issue its first DNA report until 

September 1995" – three years after the movant's guilty plea was procured in 1992; and (2) an 

affidavit of the movant's trial counsel stating he "did not know of any local laboratories that 

performed DNA testing in 1992." Id. Thus, as discussed, supra, in interpreting Section 

547.035.2(3)(a), our Supreme Court, held "the test is a subjective one, subject to a reasonable 

availability standard, not a question of objective scientific feasibility." Id. (emphasis in original).

Here, similar "sufficient supporting evidence" does not exist. To the contrary, there 

exists ample evidence DNA testing technology was available and, in fact, frequently utilized in 

the jurisdiction of the City of St. Louis at the time of Movant's trial. Trial Counsel's inability to 

unequivocally recollect her cognizance of DNA testing does not mechanically defeat the 

subjective but "subject to reasonable availability" standard set forth in Weeks. See, e.g., Hudson 

v. State, 270 S.W.3d 464, 468-69 (Mo. App. S.D. 2008) (affirming the trial court's denial of the 

movant's post-conviction motion for forensic DNA testing without an evidentiary hearing 

because "nothing in the record . . . prevented trial counsel or movant from having an independent 

DNA examination of the hair samples as they existed at the time prior to trial"). Additionally, 

Trial Counsel's indeterminate recollection of her knowledge of DNA testing is not the equivalent 

of a trial counsel unequivocally testifying as to his or her lack of knowledge of the availability of 

DNA testing technology as in Weeks. 
12

Second, assuming, arguendo, DNA testing technology was not reasonably available to 

Movant at the time of Movant's trial, Movant still fails to satisfy prong (a) of element (3) of 

Section 547.035.2, in that the abstention of DNA testing was a matter of trial strategy.

During the evidentiary hearing, Trial Counsel testified in following manner on direct 

examination:

Q [Attorney for Movant]: In this case, to the best of your recollection what was 

your trial strategy?

A [Trial Counsel]: I have no recollection. From what you have – from what I 

have been able to glean, I'm sure my strategy would have been some other dude 

did it, which was the [Public Defenders Office's] vernacular at the time.

Q: Mistaken identity by the complaining witness?

A: Mistake identity, yes.

Q: It was never consent?

A: No.

***

Q: Okay. Now, prior to this case, had you had any experience with DNA 

analysis in any of your criminal cases?

A: I had experience with DNA, which is why I was assigned this outside rapist 

case, but that would have been in 1999. I don't know when my first DNA case 

would have been.

Q: All right. And do you recall [Movant] ever saying anything to you like, hey, 

we've got to gen DNA testing or anything like that?

A: I don't recall.

Q: Okay. And –

A: I apologize. I just have no memory of this.

Q: Okay. So if you had known about the existence of DNA testing, would you 

have sought it in this case?

A: Part of my weakness as an attorney is I was a public defender for a very long 

time. I took more of a duck and cover approach in many cases. I might have 

been afraid to have sealed the caulk – or put the last nail in the coffin, but I don't 

know because I have no memory. Any I don't know at what point – I heard what 

Donna [Becherer] testified to earlier, but at that point I don't know what that we 

were seeking out DNA. I know that if we – if a case came into the office and had 

DNA, then we would have sought expert help in reading those results. I don't 

know at that point if we –

What I'm saying is, is I don't know that I would have called Donna Becherer and 

said, 'Hey, run DNA on my guy.' I might have tried to get private DNA run 

somewhere, but I don't know if it was available in 1995, 1996. I'm just fuzzy as –
13

you know, it was all starting to come to fruition around that time that it was, you 

know, becoming more used. 

Thereafter, on cross-examination, Trial Counsel testified as follows:

Q [Attorney for State]: I want to take make sure – you mentioned a duck and 

cover approach. You didn't mean that you were afraid of exploring different 

types of evidence, did you?

A [Trial Counsel]: No. But, you know, when you put a client on the stand, you 

always wanted them on and off pretty quickly before something bad happened. 

But I – I would have been reluctant to –I certainly would have been reluctant to 

call somebody on your [the State's] side to have them examine evidence.

Q: So it was a strategy call on your part; would that be fair to say?

A: Yes. Except that I have no memory of any strategy in this case.

***

Q: Yes. As a defense attorney, you – would it be fair to say you would much 

rather go into a stranger on stranger rape case with no biological evidence 

connecting your client with the victim?

A: That's very fair to say. 

***

Q: Okay. Would it be fair to say that if you – if DNA testing were to be 

conducted and DNA would have linked your client to the victim in the case, that 

you would make the stranger on stranger rape case significantly more difficult for 

a defense attorney to defend?

A: Yes.

Although we agree with Movant that Trial Counsel appeared equivocal at times as to the 

trial strategy implemented in Movant's case, Trial Counsel's actual trial strategy was exposed 

during cross-examination. Said trial strategy was that which Trial Counsel testified—"I'm sure 

my strategy would have been some other dude did it" or "duck and cover." Securing DNA 

testing would have conceivably vanquished that trial strategy. See, e.g., Matney, 110 S.W.3d at 

876-77 (holding movant was not entitled to post-conviction DNA testing, in part, because the 

decision of trial counsel to forgo DNA testing was reasonable trial strategy in light of the fact 
14

said evidence was likely not exculpatory). After a review of the record, we harbor no belief the 

motion court erred in finding Trial Counsel's strategy was the "defense of misidentification[.]" 

Movant, therefore, cannot satisfy prong (a) of element (3) of Section 547.035.2. 

Consequently, in finding Movant cannot satisfy either prongs (a), (b), or (c) of element (3) of 

Section 547.035.2, we find the trial court did not clearly err in denying Movant's post-conviction 

motion for DNA testing. See Waters, 221 S.W.3d at 418 ("Each of subsections 1-5, on the other 

hand, is connected by 'and,' and, therefore, each must be satisfied."); Kinder, 122 S.W.3d at 630 

("To be entitled to post-conviction DNA testing, a movant must allege facts demonstrating one 

of the three alternative justifications set out in the statute as to why he or she did not previously 

test the evidence.").

Finally, Movant insists the denial of his post-conviction motion for forensic DNA 

"violates" the purpose of the Section 547.035. Particularly, Movant contends the "intransigence" 

of the motion court prohibits inmates from securing that which is bestowed through the 

enactment of Section 547.035—the opportunity to conduct DNA testing for potentially 

exculpatory evidence. Certainly, it cannot be denied Movant has received considerable due 

process, as this is the fourth appellate review by this court. However, this court is mindful of the 

proposition of one of our Country's forefathers, Benjamin Franklin: "That it is better a hundred 

guilty persons should escape than one innocent person should suffer." Nevertheless, the court's 

duty is to construe and apply the laws as written by the legislature, and any argument as to the 

alleged unfairness of construction of a statute as written, the difficulty in obtaining relief 

occasioned by the wording of a statute, or the policy ramifications thereof should be addressed to 

the legislative and executive branches of government. Kavanagh v. Dyer O'Hare Hauling Co., 

189 S.W.2d 157, 160 (Mo. App. 1945); see, e.g., Hudson, 190 S.W.3d at 441 (Mo. App. W.D. 
15

2006) (finding the plain language of Section 547.035 does not apply to "new evidence"); Kinder, 

122 S.W.3d at 632 ("The legislature has decided only three reasons might justify a defendant's 

failure to test the evidence at his original trial. . . . The legislature has not evidenced any intent to 

otherwise allow for testing. If a defendant chose not to test evidence for a reason other than 

those statutorily denominated, the statute affords no relief."). 

CONCLUSION

For the foregoing reasons, the judgment of the motion court is affirmed. 

___________________________________

Lisa P. Page, Judge

Sherri B. Sullivan, P.J. and

Kurt S. Odenwald, J., concur.