Silent Witness - Volume 11, Number 1, 2007

DNA-Related Case Law Update

Preparing DNA-related cases provides a number of unique challenges to prosecutors as they navigate such issues as the impact of Crawford, arrestee DNA or the use of John Doe Warrants. The following recently decided cases provide insight into how some jurisdictions have ruled on these issues as well as provide the prosecutor with resource material to learn more about these subjects. As always, prosecutors should look to their own state law to determine how these topics have been construed locally.

Arrestee DNA and Crawford

Anderson v. Commonwealth of Virginia, 634 S.E.2d 372 (2006): Arrestee DNA and Crawford.

In 1991, a young woman walked through a wooded area near the school where she was employed. Before reaching the school, a man pulled her into a ravine where he raped, sodomized, and robbed her. She was examined by an emergency room physician who used a Physical Evidence Recovery Kit (PERK) to obtain biological evidence which was forwarded to the Virginia Department of Forensic Science (DFS) for analysis. DFS scientists isolated a sperm fraction on the vaginal swabs collected from the victim. Given the limits of DNA technology at that time, however, they were unable to identify the attacker's DNA from the evidence sperm fraction and the crime remained unsolved. 10 years later using newer technology, forensic scientists extracted the attacker's DNA from the sperm fraction and entered the results into the Virginia Forensic Laboratory's DNA databank. In 2003 Anderson was arrested on unrelated rape and sodomy charges. A DNA sample was obtained and entered into the DNA databank which linked Anderson to the 1991 incident. Law enforcement obtained a search warrant to secure additional saliva swabs from Anderson which confirmed Anderson as the man whose sperm had been found in 1991 attack. He was subsequently charged with multiple felonies relating to the 1991 crime. At trial Anderson was found guilty and subsequently appealed his conviction on several grounds including (1) that the statute allowing officers to obtain his DNA following his 2003 arrest violated his Fourth Amendment rights as it authorized a "suspicionless search" unrelated to any effort by law enforcement to obtain evidence for the specific charge justifying the 1991 incident arrest and (2) that the DNA test results should not have been admitted because his confrontation rights were violated under Crawford v. Washington.

In examining the DNA related challenges in Anderson’s appeal, the Virginia court held that Code § 19.2-310.2:1 authorizes law enforcement officers to obtain a sample of "saliva or tissue" for DNA testing from anyone arrested for certain violent felonies. The testing is intended to isolate genetic "identification characteristics specific to the person." After a magistrate or grand jury confirms that probable cause exists for the arrest, id., the sampling logistics are coordinated by the "law-enforcement agency responsible for arrest booking in the jurisdiction." Code § 19.2-310.3:1(A).

A search of an arrestee requires no independent legal justification apart from the arrest itself. "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." U.S. v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). Additionally, the search in this case was to identify the arrestee. The state's interest in the arrestee's identity "is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes." Thus the court held that the collection of a DNA sample from Anderson after his arrest for the 2003 rape under did not violate the Fourth Amendment's prohibition of unreasonable searches and seizures under Code § 19.2-310.2:1.

During oral argument, Anderson asserted that the Fourth Amendment applies to each computerized "search" of DNA records within the state's DNA databank. Under Johnson v. Quander, 440 F.3d 489 (D.C. Cir. 2006 holding that a search of the Combined DNA Index System does not implicate the Fourth Amendment), the court found this argument without merit.

Anderson also argued that the Commonwealth failed to prove the chain of custody for the PERK samples tested by DFS and that the lack of testimony from emergency room nurse and law enforcement personnel likewise rendered inadmissible the certificate of analysis and accompanying expert testimony. The court disagreed citing Code § 19.2-187.01, which "authorizes a trial court to receive a certificate of analysis as evidence of the chain of custody of the material tested." Harris v. Commonwealth, 261 Va. 185, 188, 541 S.E.2d 547, 548 (2001) and that an authenticated certificate of analysis creates a prima facie inference that DFS maintained a proper chain of custody at all times while the samples were "in the laboratory."

Anderson argued that under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), he was entitled to confront the DFS personnel associated with the DNA sample. The Virginia court stated that Code § 19.2-187.01's inference serves merely to verify the chain of custody of the samples while being tested by DFS scientists and that the chain of custody verification provides only foundation evidence that cannot be fairly characterized as accusatorial. See Commonwealth v. Walther, 189 S.W.3d 570 (Ky. 2006, holding that foundation evidence does not "accuse" the defendant or fall within the Crawford definition of testimonial evidence); and State v. Carter, 114 P.3d 1001 (Mont. 2005 holding that "certification reports are nontestimonial in nature as they are foundational, rather than substantive or accusatory"). Thus, the court held that the chain-of-custody inference supplied by Code § 19.2-187.01 was nontestimonial evidence outside the protective "perimeter" of the Confrontation Clause.

Anderson also suggested that the expert testimony of Karen Ambrozy, a DFS scientist, relied in part on preparatory work performed by a lab assistant, Kari Yoshida and that his right to confront a witness were violated when the State did not call Yoshida at trial. The court found that Crawford applies to testimonial hearsay statements by declarants who do not later appear at trial to expose their prior statements to the crucible of cross-examination and that Crawford has no applicability to out-of-court conduct observed by, relied upon, or noted by a witness who does appear at trial and subject his or her testimony to cross-examination.

Arrestee DNA sampling found unconstitutional

In the Matter of the Welfare of: C.T.L., Juvenile, 722 N.W. 2d 484 (Minn. Ct. App. 2006)

A juvenile was suspected of involvement in aiding and abetting a first degree aggravated robbery and committing a fifth degree assault. Prosecutors requested an order requiring the juvenile provide a biological sample for DNA analysis pursuant to Minn. Stat. § 299C.105 (Supp. 2005). The juvenile challenged the constitutionality of the statute on the basis that the statute's "compulsory DNA profiling of criminal defendants prior to conviction" in that it required charged defendants to provide a DNA sample upon a judicial finding of probable cause, but before any conviction on the charged offense.

Following a hearing, the district court held that because Minn. Stat. § 299C.105, subd. 1(a)(1) and (3) (Supp. 2005) directs law-enforcement personnel to conduct searches without (1) obtaining a search warrant based on a neutral and detached magistrate's determination that there is a fair probability a search will produce contraband or evidence of a crime, and (2) because the privacy interest of a person who has only been charged but not convicted is not outweighed by the state's interest in taking a biological specimen for DNA analysis, portions of Minn. Stat. § 299C.105, subd. 1(a)(1) and (3) violate the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution.

Editor’s Note: This ruling seems to be an isolated opinion and has not been challenged through the MN court system.

Convicted Offender DNA Samples

Washington, Respondent, v. Antoine Robert Surge, aka "Little Nut"; Christopher T. Yarbrough; Shabray Traysunday McMurray; James McClinton; Ricardo Guzman-Gil; and Allen Lee Bowman, aka Alan Bowman, Petitioners, 2007 Wash. LEXIS 293 (2007)

Six individuals were separately convicted of felonies and ordered to submit to compulsory DNA sampling. They appealed collectively. The Court of Appeals affirmed the trial court's sentencing requirement that they provide biological samples and held that collection of their biological samples constituted a special need for which a warrant was not required. The Washington State Supreme Court found that RCW 43.43.754, a statute authorizing the collection of biological samples for DNA (deoxyribonucleic acid) identification purposes from individuals convicted of certain crimes did not invade a recognized privacy right under the state constitution nor was this collection prohibited under the Fourth Amendment of the U.S. Constitution.

Non-Human DNA and Crawford Challenge to Mitochondrial Evidence

Illinois v. Sutherland, 860 N.E. 2d 178 (2006)

Cecil Sutherland was convicted of aggravated kidnapping, aggravated criminal sexual assault and first degree murder. On appeal, the court reversed his convictions and sentences and remanded. On remand in May 2004 the State offered evidence that canine animal hairs found on the victim’s clothing could have originated from the defendant’s dog. Additional hair and fiber evidence linked the defendant to the crime.

State Expert Witnesses Kenneth Knight testified regarding the three types of hair generally found on animals and Joy Halverson of QuestGen Forensics testified that the same mtDNA process used on human hairs is used on animal hair but by comparing a higher number of base pairs. Like human mtDNA, canine mtDNA does not distinguish among maternal relatives and is less discriminating than human mtDNA. Halverson’s report was reviewed by an additional expert in statistical analysis who provided a confidence interval to the report results and obtained a likelihood ratio of 21 indicating that it was at least 21 times more likely the defendant’s dog or a littermate was the source of the canine hair found on the victim than a random dog.

Anderson raised several challenges to the human mtDNA evidence introducted by the State at trial, including that the court erred in denying his motion to take the dispositions of Terry Melton, President of the Pennsylvania lab which conducted the human mtDNA sequencing in his case. The court found that since the State had made extensive disclosures to the defendant regarding the mtDNA evidence pursuant to state Supreme Court Rule 417(b) (188 Ill. 2d 417(b) that the trial court did not abuse its discretion in denying Anderson’s motion.

Additionally, Anderson claimed the trial court erred in allowing Ms. Melton’s testimony at trial after the State elected not to call the particular laboratory technicians who had performed the “bench work” on the evidence. Citing Wilson v. Clark, 417 N.E. 2d 1322 (1981), the court held that an expert may give expert testimony based on facts not in evidence provided they are of the type reasonably relied upon by experts in the particular field. Anderson made no argument that the facts relied upon by the State’s witness, primarily the raw data produced by the laboratory technicians and the SWGDAM database used to determine the statistical significance of the laboratory’s findings, were not of the type relied upon in the field of mtDNA analysis.

The court rejected each of Anderson’s claims of trial error and affirmed his convictions for aggravated kidnapping, aggravated criminal assault and first degree murder.

Warrantless Search

Montana v. Madplume, 150 P. 3d 956 (2007)

Madplume was arrested and detained on misdemeanor charges. While in custody, a minor female came forward and alleged Madplume had sexually assaulted her the previous evening. Officers woke Madplume and without a warrant, swabbed his hands and fingers for DNA evidence. The samples indicated the presence of the minor female’s DNA on Madplume’s finger and he was charged with sexual intercourse without consent. He moved to suppress the evidence on the grounds it was obtained without a warrant and thus was an unlawful search of his person. The State argued that the physical evidence of the minor female’s DNA on Madplume’s finger was transient, evanescent, and highly destructible. The lower court ruled in favor of Madplume’s motion and suppressed the evidence relying on State v. Hardaway, 36 P.3d 900 (2001).

On appeal, the court reversed, and distinguished the reasoning in Hardaway from the facts in Madplume’s case. The court found the evidence sought in Madplume’s case was not his own DNA which would always be available, but rather the DNA of his victim which might have been destroyed if Madplume had licked his fingers, rubbed them against a surface or simply by perspired. Thus the court reasoned exigent circumstances existed to justify a warrantless search of Madplume’s person. The lower court’s ruling was reversed and the case remanded.

JOHN DOE Warrants

Ohio, v. Danley, 853 N.E.2d 1224 (2006)

On October 25, 1998 an unknown individual committed an aggravated robbery, rape, kidnapping and several other criminal acts. At the time, the statute of limitations for those crimes was 6 years. In 1999 the statute amended the limitations timeframe for these crimes to 20 years. On May 9, 2003 a complaint was filed relative to the 1998 crime and a John Doe Warrant listing an unknown individual’s genetic profile and gender was issued for the charges of rape and aggravated robbery. The State argued that pursuant to R.C. 2901.13(E), a prosecution commences when the warrant, summons, citation or the process is issued and thus the statute of limitations was tolled May 9, 2003. The profile identified in the John Doe Warrant was later identified as that of Danley. In 2006, the defendant moved to dismiss the charges against him based on the expiration of the applicable statute of limitations.

In evaluating Danley’s motions, the court evaluated several constitutional issues surrounding John Doe charges and warrants generally, including the concern that the use of these warrants could abridge an individual’s right to a fair and speedy trial. The court noted, however, one safeguard against possible prejudice to a suspect was found in R.C. 2901.13(E) which provides that “a prosecution isn’t commenced upon issuance of a warrant, summons, citation or other process, unless reasonable diligence is exercised to execute the same.” Nothing in the court’s examination of the events leading up to the issuance of the warrant suggested lack of due diligence on the part of the State. Additionally, the court cited safeguards within the speedy-trial requirements of the 6th Amendment of the U.S. Constitution and Section 10, Article 1 of the Ohio Constitution as protecting a defendant against abuse which might arise in tolling the statute. The court applied the four factors enumerated in Barker v. Wingo, 407 U.S. 514 (1972) to Danley specifically: (1) the lapsed time between the arrest warrant and the indictment was approximately 32 months, (2) the delay arose because the only means of identifying the suspect was through the DNA evidence, (3) despite any assertions of speedy-trial rights, (4) Danley did not assert any specific prejudice the delay had caused him.

The court concluded the 2003 John Doe charges were within the statute of limitations as amended and the motion to dismiss was denied.