Robert Earl Carter v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-1592
Filed May 21, 2025

ROBERT EARL CARTER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Meghan Corbin,

Judge.

An applicant convicted of first-degree murder and first-degree burglary

appeals the denial of his application for new DNA profiling. AFFIRMED.

Shea M. Chapin of The Chapin Center, PLC, Dubuque, for appellant.

Brenna Bird, Attorney General, and Richard J. Bennett, Special Counsel,

for appellee State.

Considered without oral argument by Schumacher, P.J., Chicchelly, J., and

Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2025).
2

VOGEL, Senior Judge.

Six years after being convicted of first-degree murder and first-degree

robbery, Robert Carter applied for new DNA profiling of several pieces of evidence

under Iowa Code section 81.10 (2022). The district court denied the application,

and we affirm. Because all of Carter’s requested samples were tested during his

criminal proceeding and he conceded below that he is not seeking reprofiling using

a new method or technology, the district court correctly denied his application.

I. Factual Background and Proceedings.

In the summer of 2015, a man was stabbed in the abdomen in his apartment

and later died from the injury. During the investigation, law enforcement collected

various items from the crime scene and sent them to the Division of Criminal

Investigation lab for DNA testing and analysis. Relevant here, those items

included a knife, swabs from the exterior door handle, a sweatshirt, a wallet, and

nail clippings. The DNA testing revealed an unknown male DNA profile, “Male A,”

was present on the door handle, sweatshirt, wallet, and nail clippings. The knife

contained two profiles, including one that matched the victim’s profile from a buccal

swab, but no profile could be developed on the other contributor.

The Combined DNA Index System database matched Carter to the “Male

A” DNA profile. From there, law enforcement collected buccal swabs from Carter

and submitted them for further DNA testing, which confirmed he matched the “Male

A” DNA profile located on the tested evidence. Carter was charged with first-

degree murder and first-degree burglary, and a jury later found him guilty as

charged.
3

In August 2022, Carter applied for new DNA profiling of the knife, door

handle, sweatshirt, wallet, and nail clippings, as well as the prior buccal swabs

from himself and the victim. In July 2023, Carter also requested an independent

DNA expert at State expense to review the quality of the State’s initial DNA

profiling. The State moved to dismiss the application, arguing all items had already

been tested and attaching the original DNA reports of the items.

During a September 2023 hearing on the State’s motion, Carter clarified

that his application sought new testing by a private laboratory and that he believed

that sampling his blood, rather than cheek cells, would exclude him as the killer.

As for his desired expert, he admitted no expert would testify that a blood sample

would produce a different DNA profile than his original buccal swab. He also

conceded that his request was not based on any new technology or method of

DNA profiling. As a result, the district court denied Carter’s application and

requested expert, finding he failed to meet his burden for reprofiling. See Iowa

Code § 81.11(1)(a). Carter now appeals.

II. The Record on Appeal.

To begin, the parties dispute the scope of the record on appeal. In his

appellant brief, Carter cites various filings in his underlying criminal case, including

the minutes of testimony, as well as filings in his separately pending

postconviction-relief (PCR) action. The State moved to strike the brief, arguing

that neither the criminal nor PCR case was judicially noticed below, and thus Carter

improperly cites to matters outside the record. See Iowa R. App. P. 6.801. In

response, Carter reasoned that because applications for DNA profiling under

section 81.10 can prompt a later PCR application, see Iowa Code § 822.2(1)(h),
4

his DNA-profiling application should also be governed by PCR procedures,

including the requirement that the underlying criminal record be automatically

incorporated into the PCR record, see id. § 822.6A. He also stressed that his DNA-

profiling application was “closely related” to his PCR application. In a single-justice

order, our supreme court ordered the State’s motion be submitted with the appeal.

We think the State has the better argument. Carter filed his DNA-profiling

application as a new case, with a new case number, separate from his criminal

and PCR cases. He appeals a final ruling in that standalone DNA-profiling case.

To be included in the record on appeal, it is not enough that his pending PCR case

is “related” to this action. Instead, the record on appeal only includes “[d]ocuments

from related cases when judicial notice was taken of the specific document or file.”

Iowa R. App. P. 6.801(d) (emphasis added). We also see no merit in Carter’s

contention that his DNA-profiling application should automatically incorporate the

underlying criminal record under section 822.6A. See Iowa R. App. P. 6.801(e)

(including in the appellate record “[d]ocuments or filings from other cases when

required by law”). Carter supplies no authority to graft chapter 822’s PCR

procedures onto a standalone DNA-profiling application, brought under a separate

DNA-profiling chapter, just because that application could one day prompt a PCR

action. Thus, we will only consider the DNA-profiling record.1

1 This outcome does not prejudice Carter, as his application for DNA profiling
contained several pages of detailed factual allegations from his criminal
proceeding, and those allegations largely track his narrative on appeal.
5

III. Application for DNA Profiling.

A defendant convicted of a felony or aggravated misdemeanor may apply

to the district court “for an order to require that DNA profiling be performed on a

forensic sample collected in the case for which the person stands convicted.” Iowa

Code § 81.10(1). To prevail, the applicant must satisfy five elements, including

that the samples requested have either not been previously profiled, or if they

have, that the application requests “DNA profiling using a new method or

technology that is substantially more probative than the DNA profiling previously

performed.” Id. § 81.11(1)(a). We review the district court’s application of the

DNA-profiling statutes for correction of errors at law. State v. Tong, 805 N.W.2d

599, 601 (Iowa 2011).

On appeal, Carter reverses course from his position during the hearing and

now argues that his application is based on his chosen expert utilizing a new

method of DNA profiling. This he may not do. See McCracken v. Edward D. Jones

& Co., 445 N.W.2d 375, 378 (Iowa Ct. App. 1989) (“[A] litigant cannot complain of

error which he has invited or to which he has assented.”).2

Yet even if we were to indulge his appellate about-face, Carter runs into

another barrier: he never disclosed what this new method is, how it differed from

the original profiling performed at the Division of Criminal Investigation lab, or why

it is substantially more probative than the original method. Instead, Carter only

argues that his desired expert would have “provide[d] the foundation for the

2 See also In re D.C., No. 24-1792, 2025 WL 401965, at *4 (Iowa Ct. App. Feb. 4,

2025) (explaining an appellant “cannot concede an element below and then seek
to unwind his concession and litigate it on appeal”).
6

significance of using a new method of DNA analysis.” That is not enough to meet

his burden. See Iowa Code § 81.11(1)(a).3 Because Carter never supplied a new

profiling method or alleged its superior probative value, his application for

reprofiling and the corresponding request for an expert were properly denied.4

AFFIRMED.

3 See also Cue v. State, No. 22-1133, 2024 WL 702234, at *7 (Iowa Ct. App.

Feb. 21, 2024) (“Without any claimed new method, [the defendant]’s application
fails on the first element . . . .”); Tyson v. State, No. 22-0104, 2023 WL 4759453,
at *4 (Iowa Ct. App. July 26, 2023) (affirming denial of DNA-profiling application
when applicant conceded he did not request retesting using new technology or
methodology).
4 For the first time on appeal, Carter tacks on an additional request to test another

suspect’s DNA. However, Carter’s application did not request any new profiling of
another person and the district court did not rule on this request. Thus, it is not
preserved. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).