STATE OF MISSOURI v. DARRELL BOLDEN (2026)

Introduction

Appellant Darrell Bolden appeals the motion court's judgment denying his motion for post-conviction DNA testing under Section 547.035.¹ In two points on appeal, Appellant argues that the motion court erred in denying his motion without an evidentiary hearing because the evidence was unavailable to him at the time of trial and the motion court entered an order to show cause, necessitating a hearing under Section 547.035. Because the motion court's findings of fact and conclusions of law are not clearly erroneous, we affirm the motion court's judgment denying post-conviction DNA testing without a hearing.

Factual and Procedural Background

Appellant committed a string of robberies at several businesses in St. Louis County in May and June of 2012. One of the attempted robberies occurred at a Mattress Firm. A Mattress Firm employee was in the store talking to a co-worker on his phone when he saw Appellant, who was wearing a ski mask at that time, standing in front of the glass doors. Appellant entered the store and put a gun to the employee's head. Appellant demanded that the employee hang up the phone. When the employee turned to put the phone down, he used that as an opportunity to knock the gun out of Appellant's hand.

During the struggle, Appellant and the employee went through the door into the parking lot. Appellant's ski mask fell off and the employee could see Appellant's face as he shoved Appellant against the wall. When the employee released Appellant, he turned and fled. After he left the scene, the ski mask Appellant was wearing and another ski mask were found in the parking lot.

Appellant was arrested a few months later and initially denied any participation in the robberies. Several days after his arrest, Appellant confessed to the Mattress Firm attempted robbery and robberies of two different Check ‘N Go stores. At a different time, Appellant also confessed to robbing a Missouri Payday Loans store. While Appellant was in jail awaiting trial, he made several phone calls to family members in which he made incriminating statements.

In October 2012, the State received a DNA report that stated that Appellant could not be excluded as a major contributor to the DNA profile found on the ski mask Appellant was alleged to have been wearing the night of the attempted robbery at the Mattress Firm store. Appellant's trial counsel filed a motion for continuance on January 15, 2014, requesting, among other things, more time to consult with an expert regarding the possibility of error in the DNA results. The circuit court denied the motion and the case proceeded to trial on February 3, 2014.

The jury found Appellant guilty of three counts of first-degree robbery, one count of attempted first-degree robbery, and three counts of armed criminal action. The circuit court sentenced Appellant as a prior and persistent offender to life in prison on the robbery counts, twenty-five years on the armed criminal action counts, and fifteen years on the attempted first-degree robbery count. Appellant's conviction and sentence was affirmed in State v. Bolden, 489 S.W.3d 821 (Mo. App. E.D. 2015).

Appellant timely filed a Rule 29.15 ² motion for post-conviction relief, which was denied after an evidentiary hearing. The denial of his Rule 29.15 motion was affirmed in Bolden v. State, 541 S.W.3d 715 (Mo. App. E.D. 2018).

Appellant filed his pro se motion for post-conviction DNA testing on February 23, 2024, and an amended motion on April 9, 2024. On March 15, 2024, the motion court entered an order directing the prosecutor to show cause as to whether a hearing should be provided under Section 547.035.5. On January 14, 2025, the State filed a response to Appellant's motion for DNA testing.

The motion court denied Appellant's motion for post-conviction DNA testing without an evidentiary hearing. This appeal follows.

Standard of Review

“Motions for post-conviction DNA testing pursuant to [Section] 547.035 are post-conviction motions governed by Rules 29.15 and 24.035 and therefore are governed by the standard of review set out in those rules.” State v. Harris, 627 S.W.3d 47, 51 (Mo. App. E.D. 2021) (citing Weeks v. State, 140 S.W.3d 39, 43-44 (Mo. banc 2004)). “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.” State v. Ruff, 256 S.W.3d 55, 56 (Mo. banc 2008). “The motion court's findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made.” Weeks, 140 S.W.3d at 44.

The adequacy of a motion for post-conviction DNA testing “must be considered in light of the purpose of section 547.035: to provide inmates an opportunity to have potentially exculpatory DNA tests performed on evidence.” State v. Caudill, 676 S.W.3d 64, 68 (Mo. App. E.D. 2023) (quoting Ruff, 256 S.W.3d at 58). Section 547.035 provides that a movant is entitled to a hearing unless “the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief.” Section 547.035.6. “This Court reviews the lower court's determination that no hearing was required for clear error.” Weeks, 140 S.W.3d at 44.

Analysis

In his two points on appeal, Appellant argues that he was entitled to relief under Section 547.035, which provides that following a conviction, a person may file a postconviction motion seeking DNA testing if they allege that forensic DNA testing will demonstrate the person's innocence of the crime for which they were convicted. The statute requires that the motion

must allege facts under oath demonstrating that:

(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. The statute further provides that,

4. The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:

(1) It appears from the motion that the movant is not entitled to relief; or

(2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.

5. Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.

6. If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.

7. The court shall order appropriate testing if the court finds:

(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.

Such testing shall be conducted by a facility mutually agreed upon by the movant and by the state and approved by the court. If the parties are unable to agree, the court shall designate the testing facility. The court shall impose reasonable conditions on the testing to protect the state's interests in the integrity of the evidence and the testing process.

8. The court shall issue findings of fact and conclusions of law whether or not a hearing is held.

Section 547.035.4-8.

Point One: Failure to Show the Evidence was Unavailable

In his first point on appeal, Appellant argues that the motion court erred in denying Appellant's motion for post-conviction DNA testing without an evidentiary hearing because Appellant alleged facts entitling him to have two ski masks found outside the Mattress Firm left by the suspected robber re-tested for DNA evidence. Appellant alleges that there was evidence from the scene of the crime upon which DNA testing could be conducted, that the evidence was secured in relation to the crime for which Appellant was convicted, that the evidence was not previously tested by Appellant because it was unavailable at the time of trial, that identity was an issue in the trial because many of the witnesses at trial were unable to identify Appellant as the suspect, and that a reasonable probability existed that Appellant would not have been convicted if Appellant's counsel had been able to send the items for DNA testing before trial.

The ski masks for which Appellant now seeks DNA testing were tested by the State prior to trial, but were never submitted for testing by Appellant's counsel. Appellant argues that the evidence was unavailable to him because the trial court denied Appellant's motion for continuance a few weeks before trial, which sought time to consult with an expert about possible error in testing or interpretation of the DNA results obtained by the State.

The motion court found that Appellant failed to meet the requirements of Section 547.035.2(3) because he could not show that the evidence was not previously tested because either the technology for the testing was not reasonably available to Appellant, or the evidence was otherwise unavailable to Appellant and Appellant's counsel at the time of trial. The State performed DNA testing on the ski masks in 2012. Appellant concedes that trial counsel had access to the DNA evidence for at least six months prior to trial. However, trial counsel only sought a continuance to investigate the DNA testing results a few weeks before trial. Appellant has not made any argument or presented any evidence to show that he could not access the evidence during the months prior to the motion for continuance. The fact that trial counsel never re-tested the evidence was not the direct result of the trial court's denial of the motion for continuance. While Appellant argues that the difference between a few weeks and six months is not “unreasonable” delay, such an argument disregards at least five months in which the evidence was available and trial counsel simply did not act. Furthermore, Appellant has not addressed trial counsel's failure to submit the evidence for re-testing in the five months preceding trial when the evidence was available for such testing. Trial counsel's inaction is not evidence of unavailability. Because Appellant failed to show the evidence was unavailable, the motion court's findings were not clearly erroneous. Weeks, 140 S.W.3d at 44.

Furthermore, Appellant was required to plead facts showing a reasonable probability that he would not have been convicted if exculpatory results had been obtained through DNA testing. Section 547.035.2(5). It is highly unlikely that further DNA testing would have proven Appellant's innocence because excluding Appellant as a contributor to DNA found in the ski masks would not refute the evidence against him, including Appellant's own confession to committing the crime; the Mattress Firm's employee's positive identification of Appellant, whose face could be seen after the ski mask fell off during the attempted robbery; and Appellant's incriminating statements made during phone calls to his family. This evidence was enough to support a finding that the files and records of the case do not conclusively show that Appellant was entitled to relief, and as such, denying the motion without a hearing was appropriate. Section 547.035.6. Thus, this Point is denied.

Point Two: Order to Show Cause Does Not Require A Hearing

In his second point on appeal, Appellant argues that the motion court erred in denying Appellant's motion for post-conviction DNA testing without an evidentiary hearing because the motion court ordered the prosecutor to show cause why the motion should not be granted. Appellant asserts that entering an order to show cause necessitates a hearing because Section 547.035 “requires and directs” such a hearing must be held.

Appellant's argument requires this Court to engage in statutory interpretation. “When construing a criminal statute, we give effect to the legislature's intent by examining the plain language of the statute.” Philyow v. State, 554 S.W.3d 567, 570 (Mo. App. E.D. 2018) (internal quotation omitted). Although this Court construes statutes in favor of a defendant if any ambiguity exists, that rule “does not require a reviewing court to dispense with common sense or to ignore an evident statutory purpose.” Id. (quoting State v. Stewart, 113 S.W.3d 245, 249 (Mo. App. E.D. 2003)). “Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto.” State v. Slavens, 375 S.W.3d 915, 917 (Mo. App. S.D. 2012) (quoting State v. Brushwood, 171 S.W.3d 143, 147 (Mo. App. W.D. 2005)). “A statute's provisions must be construed and considered together and, if possible, all provisions must be harmonized and every clause given some meaning.” Philyow, 554 S.W.3d at 570 (quoting State v. Gilmore, 508 S.W.3d 132, 135 (Mo. App. S.D. 2016)).

Here, we consider the provisions of Section 547.035 relating to the grant or denial of a hearing. The statute requires a court to

issue to the prosecutor an order to show cause why the motion should not be granted unless:

(1) It appears from the motion that the movant is not entitled to relief; or

(2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.

Section 547.035.4. Further, “[i]f the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held.” Section 547.035.6. Appellant argues that these two provisions, when read together, require a court to hold a hearing every time an order to show cause is entered.

We begin by examining the plain language of the statute. Philyow, 554 S.W.3d at 570. Giving the language of the statute its plain and ordinary meaning, there is no language in the statute that supports Appellant's argument that a hearing is mandatory once an order to show cause has been entered. See Caudill, 676 S.W.3d at 67 (denying an evidentiary hearing even though an order to show cause was issued). The statute is not ambiguous. One provision clearly states the circumstances under which an order to show cause must be granted. Section 547.035.4. A later provision directs that a hearing shall not be held if the court finds that the motion, files, and records in the case “conclusively show that the movant is not entitled to relief.” Section 547.035.6. Nowhere in that provision, or anywhere else in the statute, is there language that would indicate that a hearing is necessary once a show cause order has been issued. Rather, Appellant is attempting to impermissibly link two separate provisions within the statute to create a condition precedent on the latter provision that simply does not exist under the plain language of the statute. Providing no support for his argument, we are unpersuaded by Appellant's interpretation of an unambiguous statute. Thus, the motion court did not clearly err by denying Appellant an evidentiary hearing, and this point is denied.

Conclusion

For the foregoing reasons, we affirm the judgment of the motion court.

FOOTNOTES

1.   Statutory references are to RSMo. (2012).

2.   All rule references are to the Missouri Supreme Court Rules (2025).

Renée D. Hardin-Tammons, Presiding Judge

Angela T. Quigless, J., and Thomas C. Clark II, J., concur.