from the Superior Court, First Judicial District, Trial Court
No. 1JU-10-551 CI, Juneau, William B. Carey, Judge.
Michael Schwaiger, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Before: Allard, Judge, Coats, Senior Judge, [*] and Suddock,
Superior Court Judge. [**] [Mannheimer, Chief Judge, not
1982, Ann Benolken and her husband, James Benolken, were
discovered brutally murdered in their Juneau apartment. Both
victims had been sexually assaulted.
physical evidence at the murder scene indicated that there
were at least two perpetrators. The State charged Emmanuel
Telles and nineteen-year-old Newton Patric Lambert as
principals and accomplices in the murders. The two men were
tried separately. At Lambert's trial, the jury convicted
Lambert of Ann Benolken's murder but acquitted him of
James Benolken's murder. Telles was acquitted of both
murders at his later trial.
2010, almost thirty years after the Benolken murders, the
Alaska legislature enacted a post-conviction DNA testing
statutory scheme. These statutes created a procedural
mechanism through which defendants who claimed to be
factually innocent of the crimes for which they were
convicted could seek DNA testing of material physical
evidence that could support their claim of
innocence. Lambert filed an application under the new
statutes, seeking DNA testing of the only physical evidence
remaining in his case - forensic samples of the blood and
semen stains found on Mr. Benolken's clothing. Lambert
argued that DNA testing of the blood and semen samples could
lead to the identification of the true perpetrators of this
double murder, thereby raising a reasonable probability that
Lambert was wrongfully convicted of Mrs. Benolken's
State opposed the proposed DNA testing and the superior court
ultimately denied Lambert's application, concluding that
Lambert had failed to show that the proposed testing of blood
and semen on Mr. Benolken's clothing could raise
a reasonable probability that Lambert was not guilty of
Mrs. Benolken's murder, given all of the State's
evidence that directly linked Lambert to Mrs. Benolken's
reasons explained here, we affirm this ruling.
background and prior proceedings
April 6, 1982, a Juneau building manager entered the
apartment of James and Ann Benolken due to a bad smell
emanating from the apartment. Inside the apartment, the
manager found the Benolkens' bodies. Both the husband and
the wife had been sexually assaulted and violently killed.
Benolken's body was found naked and lying face up on a
bloody mattress on the floor. The mattress was saturated with
blood, and there was blood spray extending six to seven feet
up the wall at the head of the mattress. At trial, the
medical examiner testified that Mrs. Benolken had been
stabbed approximately sixty times. A broken piece of a knife
was found beneath Mrs. Benolken's body, and strands of
hair were found between her legs. To the immediate left of
Mrs. Benolken's body was a void in the blood spatter. The
State's expert later testified that this void was
consistent with a person kneeling next to the body during the
murder. A paper bag with a liquor bottle was found within
arm's reach of where that person would have been
kneeling. A single latent fingerprint was found on the paper
bag. The fingerprint was later identified as belonging to
Benolken's body was lying next to the bloody mattress,
with his body bent over and his face lying on the mattress.
Mr. Benolken's body was still clothed, and there was a
bloodstain on his shirt and a semen stain on his pants. The
medical examination indicated that both Mr. and Mrs. Benolken
had been sexually assaulted.
police investigated multiple suspects, but their
investigation ultimately focused on Lambert. In addition to
Lambert's fingerprint on the paper bag, Lambert had also
been seen by a Juneau police officer near the Benolkens'
apartment on the morning after the murders occurred.
Witnesses had also seen two dark-haired men with Mr. Benolken
in the apartment building the night before the murders.
(Lambert has dark hair.)
when Lambert was questioned by the police, Lambert denied
having been near the building that morning. Lambert told the
police that he had been drinking heavily the night before and
had woken up in a cave under Gastineau Avenue. He claimed to
have no idea how his fingerprint could have ended up on the
paper bag found next to Mrs. Benolken's murdered body.
after his interview with the police, Lambert went to a
friend, Gary Moses, and asked him to lie to the police on his
behalf. Moses reported this conversation to the police, and
Moses later testified to this conversation at trial.
Moses's girlfriend, who was present during the
conversation, corroborated Moses's account.
the course of their investigation, the police also discovered
that Lambert had gone to a local emergency room the day after
the murder with a wound on his arm. At trial, the State
introduced evidence that the wound could have either been
caused by broken glass or by the broken knife found under
Mrs. Benolken. (The Benolken apartment had a window with
broken glass.) The State also introduced evidence that
Lambert had bought a new knife a few days after the murder
State introduced additional evidence from two jailhouse
informants who testified that Lambert had confessed to them
while he was in j ail following his arrest on the murder
charges. The first jailhouse informant, Robert Ewers, was
housed with Lambert at Ketchikan Correctional Center. Ewers
testified that Lambert confessed to stabbing Mrs. Benolken
while his co-defendant, Emannuel Telles, killed Mr. Benolken.
Ewers also testified that Lambert said that he had thrown the
knife he used to kill Mrs. Benolken in the water.
second jailhouse informant, Jeff Bowen, was housed with
Lambert at Lemon Creek Correctional Center. Bowen testified
that Lambert confessed to stabbing and raping Mrs. Benolken
while Telles raped and killed Mr. Benolken. According to
Bowen, Lambert said that he stabbed Mrs. Benolken to make her
stop screaming while he raped her. Bowen also testified that
Lambert told him that he threw the knife in the channel after
the murders. (The Juneau police officer who saw Lambert near
the Benolkens' apartment building on the morning of the
murder testified that Lambert was in the general area where
Lambert told Bower he threw the knife into the channel.)
the State introduced the testimony of Michael Malone, an FBI
expert on microscopic comparative hair analysis. Malone
testified that, in his expert opinion, the strands of hair
found between Mrs. Benolken's legs came from an Alaska
Native and the hair visually "matched" sample hairs
taken from Lambert, who is Alaska Native. According to
Malone, the visual match meant that there was only a
one-in-five thousand chance that the strands of hair did not
belong to Lambert.
note that the reliability of this expert testimony is
seriously in dispute. Since the advent of DNA testing,
microscopic comparative hair analysis has come under
increased scrutiny, and there is now significant doubt as to
its scientific reliability. Agent Malone's expert
testimony has been discredited in other cases, and there has
been at least one case in which a defendant who was convicted
based on Agent Malone's testimony has since been
exonerated by DNA testing. According to the record, Lambert is
litigating the reliability of Agent Malone's testimony
separately and that issue is not currently before us in this
testified in his own defense at trial. In his trial
testimony, Lambert admitted that he lied to the police about
his whereabouts on the night of the murder, and he admitted
that he was at the Benolkens' apartment when the
Benolkens were murdered. Lambert testified that he had
ingested cocaine, marijuana, amphetamines, LSD, and alcohol
that night, and that he had a very limited memory of what had
occurred. Lambert recalled having a seizure, seeing "red
flashes," waking up in the Benolkens' bathtub, and
discovering their murdered bodies in the living room. Lambert
denied any involvement in the murders, although he testified
that "[a]t one point [he] thought [he] might have done
closing arguments, the State argued it had proven, beyond a
reasonable doubt, that Lambert had killed Mrs. Benolken and
had aided and abetted another person - either Telles or
someone else - in killing Mr. Benolken. Lambert's
attorney argued that the State had failed to prove
beyond a reasonable doubt that Lambert was anything other
than an innocent bystander to a brutal double murder
committed by any number of other people.
deliberating for two days, the jury convicted Lambert of
first-degree murder for the intentional killing of Mrs.
Benolken. However, the jury acquitted Lambert of killing Mr.
Benolken. Lambert was sentenced to 99 years to serve.
co-defendant, Emmanuel Telles, was later tried for the
murders of Mr. and Mrs. Benolken at a separate trial. The
jury acquitted Telles of both murders. A few years after
these acquittals, Telles died.
appealed his conviction for Mrs. Benolken's murder to
this Court. We affirmed Lambert's conviction and his
sentence in an unpublished memorandum decision.
enactment of Alaska's post-conviction DNA testing
2010, almost thirty years after the Benolken murders, the
Alaska legislature enacted AS 12.73, Alaska's
post-conviction DNA testing statutory scheme. Under AS
12.73.010, a person convicted of a felony crime against a
person under AS 11.41 may apply to the superior court for an
order for DNA testing of physical evidence in their
case. The application must be filed in the court
that entered the judgment of conviction, and a copy must be
sent to the prosecuting authority responsible for obtaining
application filed under AS 12.73.010 must specifically
identify the evidence sought to be tested,  and it must
include facts from which the court can make the findings
required under AS 12.73.020. The application must include,
inter alia, an affidavit in which the defendant
swears under oath that he or she is factually innocent of the
crime for which they were convicted - i.e., the
person must swear under oath that they did not commit the
crime for which they were convicted, nor did they commit any
lesser included offense, solicit another person to commit the
crime, or aid or abet another person in planning or
committing the crime.
Statute 12.73.020(7) requires that the defendant
"identify a theory of defense that would establish the
[defendant's] innocence." Unlike its federal
counterpart, Alaska's post-conviction DNA testing statute
does not require this theory of defense to be consistent with
the defense that was raised at trial.
Statute 12.73.020(9) also requires the defendant to show, by
a preponderance of the evidence, that:
[t]he proposed DNA testing of the specific evidence may
produce new material evidence that would
(A) support the theory of defense described in [AS
(B) raise a reasonable probability that the applicant did not