The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Report and Recommendation ("R&R") (ECF No. 11) of Magistrate Judge William V. Gallo, filed on November 8, 2010, recommending that this Court dismiss the Petition for Writ of Habeas Corpus filed by Petitioner Parakkamannil Koshy Bilji Varghese. (ECF No. 1).
Petitioner was convicted by a jury of one count of first degree murder in violation of California Penal Code §187(a). The jury also found that Petitioner used a dangerous deadly weapon, a knife, in the commission of the murder, in violation of California Penal Code §12022(b)(1).
During the investigation of the crime scene, officers found a small blood stain near a light switch in the victim's house. The DNA testing of the blood stain by the prosecution established that the blood belonged to Petitioner. In a pretrial motion, the defense asked for his expert to be allowed to independently test the blood stain without being required to reveal the results of that testing to the prosecution although the testing may consume what remained of the blood stain. The prosecution opposed the motion and stated that it wished to conduct further testing on the stain but would be unable to do so if the blood stain were consumed.
At a hearing on the motion, the defense argued that there was no need for the prosecution to do additional testing. The defense argued that, based on Petitioner's constitutional right to counsel, the defense should be allowed to conduct an independent test of the remaining portion of the blood stain without an obligation to reveal the results. The prosecution argued that it wished to corroborate the DNA results obtained by its forensic scientist given the importance of the blood stain. The prosecution argued that additional testing would consume the remaining stain and a reasonable compromise would be to allow additional testing by either a neutral expert or the defense expert with the results being provided to both parties.
The trial court found there was a risk that additional testing would consume the blood stain and concluded that the prosecution was entitled to corroborate its findings on the important item of evidence. The trial court ruled that the defense could conduct additional tests on the blood stain, but required the result be provided to the prosecution.
The defense filed a motion seeking to have the trial court reconsider its ruling and submitted a declaration stating that after the ruling of the court, the prosecution had sent the blood stain to an independent laboratory for testing. The prosecution offered to have the testing done by the defense's expert on the condition that the results be provided to both parties, but the offer was declined. The trial court stated that it was willing to issue an order to allow the defense's expert or any independent laboratory agreeable to the defense to test the blood stain, but only if the results were made available to both parties. The defense declined the offer. The prosecution had a second DNA test performed on the remaining blood stain.
On April 10, 2006, Petitioner was convicted of one count of first degree murder and one count of use of a dangerous deadly weapon. Petitioner appealed his conviction to the California Court of Appeal. On May 8, 2008, the California Court of Appeal made the following ruling regarding the blood stain evidence:
Here, the evidence was divided into two samples, each of which can be tested only once. One sample was used up by the [prosecution]. The question is whether the trial court erred in ordering that the remaining sample could be tested by an independent expert or an expert of [Petitioner's] choice but requiring [Petitioner] to reveal the bottom line result of the test, that is, whether the testing identified [him] or not. We conclude on the facts here the trial court acted within its discretion.
No authority decides the precise question before us. However, as the examination of existing cases reflects, established factors guide the choices available to the trial court. Whatever choice it selects must ultimately support the orderly and accepted process of trial and support the integrity underlying the advocacy process. The opportunity for the prosecution to adequately meet a defendant's challenge to its expert and the expert's findings is an important component of the choice to be made. Indeed, that component appears to underly (sic) all of the [California cases cited in this opinion].
In light of these observations, the function of the second sample becomes important because it must protect and serve the needs of both the prosecution and defense, and at the same time its use must not subvert the truth-finding role of the criminal justice process. This is a weighty task. Viewed in this light, the second test should permit the defense to scrutinize the evidence to assure the prosecution test is proper and correct. At the same time, it cannot be given over to the defense, destroyed through its testing procedures, thereby leaving it unusable as corroboration if at trial the defense challenges the prosecution's testing.
Here, at the prosecutor's suggestion, the trial judge gave the defense the option of selecting a neutral expert or its own expert. It did not order the reports or observations of the expert be turned over to the prosecution. It ordered only the result of the test to be revealed. In doing so, the court granted the defendant the right to test the results and keep all of its work product and reports confidential. At the same time it foreclosed the possibility that a test result matching that of the prosecution's expert would be destroyed and [the prosecution] left without the ability to corroborate its findings if the defense were to challenge at trial the prosecution expert.
We note the trial court and parties might have reached other compromises that meet the principles established by case law. We conclude only that the option selected here protected the interests of both parties and advanced the interest of ...