Precedents Cited and Their Influence

• State v. Angelo, 316 Kan. 438, 518 P.3d 27 (2022):

  Angelo is the cornerstone for K.S.A. 21-2512 procedure. It sets out the three-step framework: (1) the petition must allege biological material that meets statutory thresholds; (2) the State must preserve any remaining biological material previously secured and respond; and (3) the court determines whether testing may produce noncumulative, exculpatory evidence—after resolving any disputed factual issues about whether qualifying biological material exists. Importantly, Angelo states that when existence is disputed, the petitioner bears the burden to prove it. Johnson faithfully applies and extends Angelo in practice: the Court scrutinizes pleading sufficiency item-by-item and enforces the petitioner’s proof obligation at an evidentiary hearing when the State disputes possession/existence.

• State v. Dailey, 314 Kan. 276, 497 P.3d 1153 (2021):

  Cited for the standard of review. Johnson accepted the district court’s factual findings; therefore, the Supreme Court reviewed only legal conclusions de novo (unlimited review).

• State v. Ochoa-Lara, 312 Kan. 446, 476 P.3d 791 (2020), and State v. Thach, 305 Kan. 72, 378 P.3d 522 (2016):

  These decisions reinforce Kansas’s preservation rule: arguments not raised below generally will not be considered on appeal. Johnson’s attempt to fault the State’s step-two response failed for lack of preservation; similarly, his due process theory was unpreserved.

• State v. Harris, 318 Kan. 926, 550 P.3d 311 (2024):

  Harris confirms that K.S.A. 21-2512 is not a vehicle to litigate constitutional spoliation or due process claims about lost or destroyed evidence; such claims must be brought via K.S.A. 60-1507. Johnson relies on this to dispose of the appellant’s late-raised due process argument, even if it had been preserved.

• State v. Johnson, 284 Kan. 18, 159 P.3d 161 (2007):

  The Court references the prior direct appeal affirming Johnson’s conviction and hard 50 sentence to situate the case, though it does not materially bear on the postconviction DNA-testing analysis.

Legal Reasoning and Application

The Court structures its analysis around the three-step process under K.S.A. 21-2512(a)-(c), as synthesized in Angelo.

Step 1: Pleading Sufficiency—A Petition Must Allege Biological Material

The statute authorizes testing of “biological material” and requires the petition to allege that such material:

• is related to the investigation or prosecution;
• is in the actual or constructive possession of the State; and
• was not previously tested or can be retested with new techniques offering a reasonable likelihood of more accurate and probative results.

While the pleading standard is “not rigorous,” even pro se petitions must identify biological material—not merely physical items—to be tested. The Court emphasized this distinction repeatedly:

• Washing machine hose: Adequately pleaded. The petition alleged it contained blood during the original investigation but DNA could not be profiled then. A claim that “updated technology” could produce more probative results is enough at the pleading stage.
• Car parts (driver’s seat, panels, steering wheel, seats, doors) and front passenger seat: Insufficient. The petition alleged prior testing found no blood where Johnson allegedly sat. K.S.A. 21-2512 does not authorize testing of physical evidence to see if biological material might be present; petitioners must allege biological material is present. Alleging the absence of any biological material does not meet the threshold, even though alleging the absence of the petitioner’s DNA on known biological material can suffice.
• Adidas jacket: Insufficient. Johnson sought to test for "transfer evidence" to impeach a witness’s narrative about a knife and an inside pocket. Without an allegation that biological material exists on the jacket, the request falls outside the statute.
• Washing machine and clothing inside it; other clothing at a witness’s home: Insufficient. Johnson’s own allegations indicated that only the hose tested positive for blood originally. The statute does not require the State to re-examine physical items to determine whether biological material exists.

Step 2: State’s Response and Preservation Duty

The prosecutor must be notified and must preserve any remaining biological material previously secured in connection with the case. The State here disputed possessing the physical items Johnson sought and listed items remaining in police custody. Johnson’s appellate argument that the State failed to “identify the biological material it previously secured” was unpreserved and therefore not considered. The Court’s approach signals that a step-two dispute about possession/existence sets up a factual contest for step three—rather than imposing a proof burden on the State to establish non-possession.

Step 3: When Existence/Possession Is Disputed, the Petitioner Must Prove It

Angelo assigns the burden of proof to the petitioner to establish that qualifying biological material exists when the State disputes it. The district court held a hearing; Johnson testified but did not produce evidence demonstrating that the State possessed the washing machine hose or any related evidence. The Supreme Court affirmed the legal conclusion that Johnson failed to carry his burden. The Court also rejected Johnson’s argument that the State had to procure corroboration (e.g., from the KBI) to prove non-possession; Angelo requires only that the State dispute possession to trigger the petitioner’s burden to prove existence/possession.

Due Process/Spoliation Theory Foreclosed Under K.S.A. 21-2512

Johnson’s due process argument (that non-possession violates his rights) was both unpreserved and, per Harris, mischanneled. The Court reiterated that the DNA-testing statute is not the proper vehicle for constitutional spoliation claims. If pursued, they belong in a 60-1507 motion.

Impact and Forward-Looking Implications

Johnson is most significant for its practical tightening of pleading and proof in Kansas postconviction DNA practice. Key implications include:

• Sharper Pleading Requirements: Petitioners must identify specific biological material on specific items. Requests to “test” physical objects to discover whether biological material might exist are outside K.S.A. 21-2512. This curtails broad, exploratory petitions (“test everything”) that do not allege extant biological material.
• Burden Allocation at Evidentiary Stage: Once the State disputes possession/existence, petitioners must marshal evidence (chain-of-custody records, law enforcement or laboratory witnesses, property room logs, KBI records) to prove the State has qualifying biological material.
• Possession vs. Preservation: The State’s step-two obligation to preserve “remaining biological material previously secured” does not morph into an obligation to locate or reconstruct evidence not in its custody. Petitioners cannot shift the burden to the State to prove non-possession.
• Framing “Absence” Claims: Alleging the absence of the petitioner’s DNA on known biological material can suffice (as in Angelo). Alleging that an item contains no biological material at all cannot support a petition under the statute.
• Technological Advances: References to “updated technology” will not save an otherwise deficient pleading. Petitioners should connect advances to specific, known biological material and explain why newer methods offer a reasonable likelihood of more accurate and probative results.
• Appellate Preservation: Johnson underscores that procedural arguments about the State’s step-two obligations and constitutional theories must be raised below. Failure to do so forfeits them on appeal.
• Alternative Remedies: Claims about lost or destroyed evidence fall outside the DNA-testing statute and must be brought, if at all, via K.S.A. 60-1507. This channeling may reshape litigation strategies when biological evidence no longer exists.

Practitioners can expect district courts to apply Johnson to screen petitions rigorously at step one and to hold focused evidentiary hearings at step three when possession/existence is contested. Prosecutors are likely to respond with precise inventories of items in custody, while petitioners will need to prepare proof of existence and custody beyond mere inference.