Billy Dale HILL a/k/a Billy D. Hill
STATE of Mississippi.
Billy Dale Hill, appellant, pro se.
Office of the Attorney General by Jeffrey A. Klingfuss, John R. Henry, Jr., attorneys for appellee.
Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
¶ 1. In this appeal from the denial of his post-conviction motion for DNA testing, Billy Dale Hill claims that the circuit court had destroyed biological evidence without notifying him as required by Mississippi Code Section 99-49-1(3)(f)(ii)(1) (Supp.2012). The evidence in question was a laboratory slide containing what was purported to be sperm cells collected during a 1974 autopsy. The only relief sought by Hill is that we " order appropriate remedies and impose sanctions" because of the failure to give proper notice. Miss.Code Ann. § 99-49-1(5) (Supp.2012) (" If the court finds that biological evidence was destroyed in violation of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies." ) Given the uncontradicted proof that the circuit court did not have the evidence in question, we find no basis for Hill's claim, and we affirm the judgment of the trial court.
¶ 2. On October 11, 1974, Billy Dale Hill was tried and convicted of capital murder while engaged in the commission of the crime of rape and was sentenced to death. Hill v. State (" Hill I" ), 339 So.2d 1382 (Miss.1976). This Court reversed his conviction, and on remand, Hill pled guilty to the separate crimes of murder and rape and was sentenced by the trial judge to two consecutive terms of life imprisonment. Hill v. State (" Hill II" ), 388 So.2d 143, 144 (Miss.1980).
¶ 3. In a 2011 order, this Court granted two post-conviction petitions filed by Hill. First, the Court vacated his sentence of life in prison for the rape conviction and remanded the matter to the circuit court for resentencing " to a definite term reasonably expected to be less than life." (Quoting Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). Second, Hill was granted leave to proceed in the circuit court with a motion for DNA testing, and the trial court was directed to order the testing of existing biological evidence.
¶ 4. Hill had requested DNA testing of all biological evidence, but the only evidence he specifically identified in his petition was a laboratory slide. To demonstrate that this evidence existed, Hill attached to his petition an excerpt from the 1974 trial transcript, in which the pathologist who performed the autopsy, Dr. Van Philpot, testified that he had collected fluid from the deceased's vagina and had placed the sample on a laboratory slide. Dr. Philpot said that, after viewing the sample under a microscope, he had determined that it contained sperm cells.
¶ 5. After this Court granted his petitions, Hill timely filed his motion for DNA testing in the Calhoun County Circuit Court. This motion was considered at an
evidentiary hearing, along with his resentencing. At the conclusion of the hearing, the court sentenced Hill to forty-four years on the rape conviction, but found no available relief regarding his motion for DNA testing. Based on the State's witnesses' testimony at the evidentiary hearing, and the record from his capital murder trial, the court found that " no DNA evidence exists to be tested that the Petitioner requests to be tested." As with his petition to this Court, Hill initially had requested that the circuit court order the testing of all biological evidence; but the only item at issue during the evidentiary hearing was the laboratory slide referenced by Dr. Philpot.
¶ 6. In the case before us, Hill does not challenge his sentence and has limited his appeal to the trial court's ruling regarding his motion for DNA testing. The issues raised present questions of fact and questions of law. When reviewing a trial court's judgment on a petition for post-conviction relief, issues of law are reviewed de novo, but we will not reverse factual findings unless the trial court's assessment of the facts was " clearly ...