Opinion
FSTCR180146497T
07-19-2019
STATE of Connecticut v. TERRANCE POLICE
UNPUBLISHED OPINION
OPINION
Blawie, J.
It was Sigmund Freud who allegedly wrote many years ago that "biology is destiny." This motion to dismiss certain criminal charges tests Dr. Freud’s proposition in light of twenty-first century advances in the biological science of DNA technology. More specifically, it requires this court to consider the legal sufficiency of the accurate identification of these biological markers that are unique to each human being, because DNA technology is an increasingly prevalent tool used by law enforcement in the conduct of criminal investigations. The state has long recognized this scientific reality and the probative value of DNA testing, having enacted a statutory framework for the maintenance of a searchable DNA database for the benefit of law enforcement. This database is a statewide repository of the DNA profiles of known convicted felons. This case presents an issue of first impression in the state of Connecticut, namely the interaction between the statute of limitations and an arrest warrant for an otherwise unnamed criminal suspect based upon his DNA profile. For a variety of public policy reasons, the Connecticut legislature has decreed that the police have a fixed and limited period of time following the commission of a crime (other than murder) within which to bring charges. Otherwise, any prosecution for such crimes must be forever time-barred. These legal time restrictions vary by the degree of the particular offense charged, and are referred to collectively as the "statute of limitations."
The defendant, Terrance Police, is charged with robbery in the first degree, in violation of General Statues § 53a-134, and assault in the first degree, in violation of General Statutes § 53-59. The applicable statute of limitations for both of these charges is five years from the date of offense, as provided in General Statutes § 54-193(b). The issue before this court involves an arrest warrant served upon the defendant, a warrant for a "John Doe" perpetrator that the Norwalk Police applied for and were granted within the five-year statute of limitations. More specifically, this initial John Doe identification of the defendant was based upon the presence of his consistent DNA profile allegedly obtained from the forensic DNA testing. This DNA testing was conducted on certain personal property belonging to the victim and taken by the perpetrator of the robbery and assault; items either touched or handled by the perpetrator; or property discarded by the perpetrator in his flight from the crime scene. For several reasons that are more fully set forth herein, while a DNA profile of a perpetrator was developed well within the statute of limitations, the Norwalk Police did not come to believe that this DNA profile belonged to the defendant himself until more than five years had passed since the commission of the crime. This discovery allowed the police to attach the defendant’s name to the previously signed John Doe warrant, and place him under arrest for these charges.
It is undisputed that the defendant was not identified by name when the arrest warrant was first signed. Nor was the defendant served with the warrant itself following the confirmatory matching of his name with his DNA profile until after the five-year statute of limitations had expired. The defendant has now filed a motion to dismiss, challenging his arrest on the grounds that such a John Doe warrant is legally insufficient, because the prosecution was not properly commenced within the statute of limitations. The defendant argues that the particularity requirements of the fourth amendment to the United States constitution, and article first, § 7 of the Connecticut constitution were not satisfied by the use of a DNA profile as a description in the John Doe arrest warrant. Alternatively, the defendant argues that the Norwalk Police failed to investigate the crime in a timely manner, and that the resulting delay was both unreasonable and caused him substantial prejudice. The state objects to the motion to dismiss, and argues that the signing of a John Doe arrest warrant within the statute of limitations for an unknown perpetrator based upon his/her DNA profile is legally sufficient. The state contends that the particularity requirement was satisfied by this warrant, which initially identified the defendant by his unique DNA profile. The state also argues that the Norwalk Police diligently pursued their investigation into this crime, and that their actions in the years following the commission of the crime, and the steps that detectives either took or did not take, were all based upon information that was later determined to be erroneous, but was reasonably believed to be reliable at the time. The state also maintains that the defendant has failed to demonstrate or to articulate any prejudice. Both parties submitted supporting memoranda of law, and were given the opportunity to argue their respective positions during two days of hearings on this motion. In addition, the court heard from two of the members of the Norwalk Police Department who at different times were the lead investigators in this case. It also heard testimony from an expert witness in DNA technology employed by the State Department of Emergency Services and Public Protection, Division of Scientific Services, Forensic Science Laboratory (the "Lab").
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state." (Citation omitted; internal quotation marks omitted.) State v. Howell, 98 Conn.App. 369, 377-78, 908 A.2d 1145 (2006). Practice Book § 41-8(3) expressly provides that a defendant may file a pre-trial motion to dismiss an information based upon the statute of limitations, if the issue is capable of determination without a trial of the general issue. This court finds that the record developed by the parties provides an adequate factual basis upon which to rule, and accordingly makes the following findings of fact and conclusions of law.
Discussion
On the afternoon of October 10, 2012, Norwalk Police responded to the Stop & Shop located at 385 Connecticut Avenue on a report of a robbery and a woman suffering from a gunshot wound. The victim, who had in fact been shot, was found by police in the store’s parking lot. She reported that she was standing outside her car looking at her iPhone when she was approached by an unknown black male between the ages of eighteen and thirty years old with a medium build and light beard, wearing jeans and a dark hooded sweatshirt. The suspect suddenly opened the victim’s driver’s side door and attacked, pushing her into her car. He then shot her in the abdomen with a small silver handgun as she screamed and struggled with him inside the car. After she was shot, the seriously injured victim surrendered various items of jewelry, including her wedding and engagement rings, and also gave the suspect her iPhone with a pink Kate Spade cover. The suspect then fled the scene on foot and with the victim’s property, running across Connecticut Avenue and behind the Best Buy shopping center located across the street from the Stop & Shop. The victim was rushed to Norwalk hospital, where she successfully underwent emergency surgery to treat her gunshot wound. During surgery, doctors were able to remove a lead bullet lodged near the victim’s pelvis, a bullet that had also damaged her uterus and small intestines. That projectile was taken into evidence by the Norwalk Police.
The Norwalk Police interviewed several eyewitnesses who corroborated much of the information provided by the victim. One of those witnesses worked nearby as a waitress at the Rio Restaurant, which was located along the perpetrator’s path of escape from the Stop & Shop parking lot. The waitress reported seeing the perpetrator running away, appearing to be scared and looking around him as he ran. Police also learned that the Stop & Shop, Rio Restaurant and the Best Buy all maintained outdoor security surveillance systems that had captured relevant footage on separate cameras, including the time frame immediately following the shooting and robbery. At one point, the perpetrator may be seen running from the area of Connecticut Avenue with his right hand inside his pocket, wearing a dark colored zip-up hooded sweatshirt. At another point, the perpetrator is seen using his left hand to pull the hood up over his head. A description was broadcast to all units, but the perpetrator was not located at that time. Based upon the video evidence, Norwalk Police later searched the area of a stockade fence behind the Best Buy. There they recovered a sweater and a dark blue zip-up sweatshirt with a pink Kate Spade cell phone cover located in the pocket. The victim later confirmed ownership of her iPhone case. In the same location as the discarded clothing, police also recovered a small silver .22 caliber magnum five shot pistol, a firearm containing two spent shell casings and three live rounds. That pistol, as well as the slug removed from the victim’s person during surgery were tested by the firearms section of the Lab. The slug was confirmed to be a .22 caliber projectile that had been fired from the handgun recovered. Among other evidence, the articles of discarded clothing were also transported to the Lab for various forensic testing. The Lab issued a forensic biology report stating that it had located saliva on a portion of the sweatshirt, and also took DNA samples from the inside sleeve cuffs and neck hem of the sweatshirt, and the outside of the victim’s cell phone cover. These samples were sent to the DNA Unit of the Lab for further analysis, which thereafter issued reports containing the results of the amplified items with identifier plus alleles detected. Those detailed and specific identifiers plus alleles constituted a DNA profile, one that would later be recited at length in the body of the arrest warrant affidavit for John Doe.
In an effort to apprehend the perpetrator, the Norwalk Police released some of the footage from surveillance videos to enlist the help of the general public. On December 29, 2012, an anonymous caller contacted the police and stated that the man seen on the video looked like his cousin, the defendant. This individual also stated that the defendant denied committing the crime when asked by his mother, but had admitted his involvement to other family members. Before the court can address what steps the police took upon receipt of this anonymous tip, some additional facts and circumstances about DNA evidence, as well as the state’s DNA database, are necessary to provide the proper context for the events that followed.
The court heard testimony from Patricia Johannes, who is employed by the Lab as a DNA analyst. However, equally important in terms of the issues raised by the defendant’s motion to dismiss are Johannes’ other professional responsibilities involving DNA at the Lab. Johannes serves as Connecticut’s state administrator of the CODIS program. CODIS is an acronym for the Combined DNA Index System. By the terms of General Statutes § 54-102g, persons convicted of felonies in the state of Connecticut are required to submit to the taking of a DNA sample. The statutory scheme for the CODIS database in place today traces its origins back to 1994, at which time it was limited to sex offenders. The law has since been amended several times over the last quarter century, most notably in 2003 (P.A. 03-242), when the legislature expanded the statute’s scope to require that all felons, not simply sex offenders, submit a DNA sample to be profiled for inclusion in CODIS. The CODIS database is a searchable statewide index of the DNA profiles of convicted felons, and Johannes estimated that it currently contains approximately 116, 000 DNA profiles. Law enforcement agencies, including the Norwalk Police Department, have the ability to request CODIS searches against the results of DNA profiles obtained from the forensic DNA testing of evidence collected at crime scenes. This would include the DNA deposited onto evidence by a suspect, all in an effort to find a match or a "hit" with a known individual already in the CODIS database. "[A]ll fifty states have enacted statutes similar to Connecticut’s that require convicted felons to submit a DNA sample in order to aid in criminal investigations ... In challenges to those statutory schemes, our sister courts have regularly held that the collection of DNA in this context is regulatory and not punitive." (Citation omitted.) State v. Banks, 321 Conn. 821, 834, 146 A.3d 1 (2016).
Given the high risk of recidivism among the population of convicted felony offenders, the process of providing DNA samples is mandatory. If it were otherwise, the CODIS databank could not be considered a comprehensive and useful tool in criminal investigations. As the Supreme Court noted in Banks, "the statute necessarily included the option of enforcing compliance through reasonable force, because allowing incarcerated felons to simply refuse to provide DNA samples would substantially frustrate the legislature’s goal of creating a comprehensive DNA data bank to aid in criminal investigations." Id., 827. However, it is axiomatic that the CODIS database- or any database for that matter, especially one containing such critical data implicating the welfare and safety of the public- is only as useful as it is a) accurate and b) complete. "The purpose of collecting DNA samples is ... to bolster the usefulness of the DNA data bank in criminal investigations." Id., 837. However, the facts of this case demonstrate that for whatever reason, the system failed in this instance. As far as this investigation was concerned, the CODIS data bank was not only not useful, it actually worked against the investigating officers and the prompt arrest of the defendant, because it was tragically and inexplicably incomplete. The evidence shows that the defendant was in fact previously convicted of a felony in 2008. Therefore, while the defendant’s DNA profile should definitely have been included in the searchable CODIS database as of October 10, 2012, the date of this Norwalk shooting and robbery, his DNA profile was not. This error was perpetuated during the ensuing weeks and months as the five-year statute of limitations in this case ticked away. This was a major omission, one that was compounded by the error in the official record that was relied upon by the investigating Norwalk detectives when they first focused on the defendant as a potential suspect, based upon the report from the anonymous tipster. That record erroneously indicated that a DNA sample was taken from the defendant on May 8, 2008, and that it was part of the CODIS database.
Johannes testified that individuals with a qualifying felony conviction have their DNA samples collected by one of several state agencies. One of the primary agencies tasked with this important responsibility, and the source of the initial error that permeated this investigation and delayed the defendant’s apprehension, is the Connecticut Department of Corrections (Corrections). Johannes explained that Corrections completes a "face sheet" for each individual inmate, a form officially known as an RT50. These completed RT50 forms are all accessible and searchable by agencies such as the Norwalk Police Department through a shared law enforcement computer network. One field on the face sheet asks whether the inmate is qualified to have a DNA sample taken. If so, the second field on the face sheet contains the date that the sample was collected. In this particular case, the RT50 form for the defendant correctly stated in one field that he qualified to provide a sample. However, the second field on the defendant’s face sheet erroneously stated that a DNA sample was collected from him on May 8, 2008. Therefore, in terms of the defendant’s DNA being part of the CODIS database, his inaccurate RT50 form may be considered a "false positive." As previously noted, "[Correction’s] ability to use reasonable force to obtain a DNA sample is implicit in the statute as its fundamental purpose would be subverted otherwise." (Emphasis added.) Id., 839. This false positive meant that for all practical purposes in terms of this investigation, the fundamental purpose of CODIS was tragically subverted. However, the court finds that regardless of the reason for the defendant’s non-inclusion in CODIS, such an error cannot inure to his benefit under the facts of this case, such that a dismissal is warranted.
Between the time that the police received the report from the Lab as to the DNA results from the evidence it submitted, and the date that the John Doe warrant was signed, a period of almost five years, Norwalk detectives requested weekly searches of both the Connecticut and national DNA databases. However, no matches were ever found during those hundreds of attempts at connecting a name to the John Doe DNA profile. At a hearing on the defendant’s motion, the lead detective on this case, Norwalk Police sergeant David Orr testified that after receiving the December 29, 2012 tip from the defendant’s cousin, he did follow up, but that the defendant was eliminated as a suspect at the time. Based on the defendant’s RT50 that he had viewed and relied upon, Orr believed that the defendant’s DNA profile was already in the CODIS database for comparison purposes. Orr testified that the defendant "was checked in the database with no hits. It effectively vetted [the defendant] in our opinion, as a suspect at that time." Orr went one step further, contacting the Lab to ensure and confirm that all DNA profiles had been entered into CODIS, and that the database was therefore current. Sergeant Orr testified that, "if the DOC face sheet did not indicate that a DNA swab had been obtained from [the defendant], I would have pursued him vigorously as a suspect."
On April 6, 2017, approximately five months before the expiration of the five-year statute of limitations in October 2017, Norwalk Police drafted an arrest warrant affidavit for a John Doe, in which they claimed that there was probable cause for the statute of limitations to be tolled pending the arrest of an unknown male for this 2012 assault and robbery, a perpetrator identifiable only by his DNA profile obtained from the evidence. The arrest warrant was signed by the court (White, J.) on May 1, 2017. Approximately eleven months later, on April 2, 2018, a woman called the Norwalk Police to report that she had also seen the video released to the public, and immediately recognized the suspect as her child’s father, the defendant, who had admitted that he committed the assault and robbery of the woman at the Stop & Shop in 2012. Armed with this new identification evidence, sergeant Paul Podgorski contacted the Lab and spoke with forensic science examiner Jessica Best about this latest development. She advised that even though the defendant’s DNA was in CODIS (at this time the error on the RT50 was still unknown), it was possible that no match was ever made to the DNA found on the items because of the low quality of his previous sample, and the fact that the DNA profiles from the evidence were found to be mixtures. Best recommended a direct comparison with a new sample of the defendant’s DNA via a buccal swabbing, which led to a search warrant signed by the court (Comerford, J.) on April 6, 2018. On April 13, 2018, the Lab was finally able to test the defendant’s DNA profile against the DNA evidence recovered from the crime scene. The Lab concluded that: (1) the results from the sleeve cuffs and neck hem of the sweatshirt are consistent with the DNA profile being a mixture of four contributors, with it being at least 100 billion times more likely to occur if it originated from the defendant and three unknown individuals, than if it originated from four unknown individuals; (2) the results from the victim’s cell phone cover are consistent with the DNA profile being a mixture of three contributors, with it being at least 1.2 billion times more likely to occur if it originated from the defendant and two unknown individuals, than if it originated from three unknown individuals; (3) the results from the .22 caliber handgun are consistent with the DNA profile being a mixture of three contributors, with it being at least 100 billion times more likely to occur if it originated from the defendant and two unknown individuals, than if it originated from three unknown individuals; and (4) the results from the inside sleeve cuffs and neck hem of sweatshirt are consistent with the DNA profile being a mixture of four contributors, with it being at least 100 billion times more likely to occur if it originated from the defendant and three unknown individuals, rather than if it originated from four unknown individuals.
Johannes also testified as to the steps she took after being notified that the defendant was identified by name and arrested, and that there was an error as to his omission from the CODIS database. She explained that as part of the chain of custody, the Lab keeps paper transmittal sheets of every DNA sample that it receives. Johannes personally examined every transmittal sheet from March to December of 2008, but did not find the defendant listed anywhere. She also checked the CODIS computer system by using the defendant’s personal identifying numbers, including his State Police Bureau of Identification (SPBI) number, inmate number, social security number, and FBI number without success. Johannes concluded that if the defendant’s DNA sample had been taken, it was not sent to the Lab to be entered into the CODIS database. Johannes further reached out to Elizabeth Tugie, her point of contact at Corrections, to inquire as to whether that agency could locate any documentation on their end to support the assertion on the defendant’s RT50 form that a DNA sample was taken from him. Finding none after searching the defendant’s master files within Corrections, Tugie concluded that the face sheet for the defendant was incorrect. Tugie could not otherwise explain how the mistake may have happened, or who within Corrections might have been responsible for it.
A. John Doe DNA Arrest Warrant and the Statute of Limitations
The defendant has moved to dismiss the complaint by arguing that the state failed to bring charges against him within the five-year statute of limitations. The defendant first argues that it is the role of the legislature and not the courts to determine statutes of limitations and any exceptions thereto. The defendant also asserts that the state’s use of a John Doe DNA arrest warrant to satisfy the statute of limitations thwarts the intent and purpose of the statute, and does not meet the particularity requirements of the fourth amendment to the United States constitution as well as the reasonable certainty requirement under Connecticut law. The defendant further argues that the court should not be guided by cases from other jurisdictions that have allowed John Doe DNA warrants to toll the statute of limitations, because those cases concerned charges of serious sexual assaults, while the charges in the present case are for robbery and assault.
In its objection to the defendant’s motion to dismiss, the state does not address the defendant’s separation of powers argument. The court need not reach it either, because it finds that the John Doe arrest warrant satisfies the particularity and reasonable certainty requirements.
The state counters that a John Doe DNA arrest warrant may toll the statute of limitations where it meets the particularity requirements of the fourth amendment to the United States constitution, as well as the reasonable certainty requirement under Connecticut law. The state contends that the arrest warrant requirements were met in the present case by the combination of the DNA evidence with (1) a detailed and consistent physical description of the accused; (2) the description of the suspect’s attire; (3) the fact that the affidavit states that the suspect was wearing a dark colored sweatshirt and had touched the victim’s cell phone cover; and (4) DNA evidence belonging to the suspect was found on each of these items of evidence. The state also urges the court to be guided by the majority of jurisdictions that have previously considered this specific issue.
Pursuant to General Statutes § 54-193(b), violations of General Statutes § 53a-134, robbery in the first degree, and General Statutes § 53a-59, assault in the first degree, are each subject to a five-year statute of limitations. Our Supreme Court has provided that "[i]n this state, the initial step to commence a prosecution, when an arrest is to be made by virtue of a warrant, is the presentation of an application for a warrant, which is accompanied by an affidavit, by a prosecutorial official to a judicial authority. If the judicial authority finds that the accompanying affidavit shows probable cause to believe that an offense has been committed, and that the person complained against committed it, the judicial authority may issue an arrest warrant." State v. Crawford, 202 Conn. 443, 449, 521 A.2d 1034 (1987). Practice Book § 36-3 provides, in relevant part, that an arrest warrant "shall contain the name of the accused person, or if such name is unknown, any name or description by which the accused can be identified with reasonable certainty ..." The issuance of an arrest warrant within the time limitations set forth in § 54-193(b) "toll[s] the statute of limitations ..." (Emphasis added.) Crawford, supra, 202 Conn. 447.
The fourth amendment to the United States constitution provides that "no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Pursuant to Rule 4(b)(1) of the Federal Rules of Criminal Procedure, a warrant shall "contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty." Additionally, article first, § 7 of the Connecticut constitution provides that "no warrant ... to seize any person ... shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."
The defendant argues that an arrest warrant that identifies an unnamed defendant by his DNA profile does not satisfy the particularity requirement and therefore, cannot toll the statute of limitations as a matter of law. However, decades before DNA was ever known, the United States Supreme Court held that an arrest warrant need not necessarily provide a suspect’s name, as long as it describes the suspect "sufficiently to identify him." West v. Cabell, 153 U.S. 78, 85, 14 S.Ct. 752, 38 L.Ed. 643 (1894). "Generally, arrest warrants either describing the suspect only as ‘John Doe’ or inaccurately naming an individual without some other identifying description have been ruled insufficient under the naming requirement of the Fourth Amendment." State v. Burdick, 395 S.W.3d 120, 126 (2012); see, e.g., United States v. Doe, 703 F.2d 745, 747-48 (3d Cir. 1983); United States v. Jarvis, 560 F.2d 494, 497 (2d Cir. 1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1511, 55 L.Ed.2d 532 (1978). Furthermore, "[n]o matter how detailed the written description on a warrant is, extrinsic information will be necessary to execute it ... The written description cannot conceivably eliminate all possibilities of erroneous execution, nor does the fourth amendment so require." United States v. Doe, supra, 703 F.2d 748. Without any DNA evidence, or a John Doe warrant based solely upon eyewitness identification, such reasoning would be persuasive. However, when an accurate DNA profile may be established, as in this case, it can "eliminate all possibilities of erroneous execution," despite the initial use of a John Doe pseudonym. Id.
Scientific advancements in the use and reliability of DNA evidence are increasingly requiring courts to evaluate whether a suspect’s DNA profile is sufficient to meet the fourth amendment particularity requirement, as well as the reasonable certainty requirement. The United States Supreme Court has not yet specifically addressed the use of John Doe arrest warrants based on a DNA profile. However, the Court recently explained that "[t]he advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986 ... the courts have acknowledged DNA testing’s unparalleled ability ... to identify the guilty . It has the potential to significantly improve both the criminal justice system and police investigative practices." (Emphasis added; citation omitted; internal quotation marks omitted.) Maryland v. King, 569 U.S. 435, 442, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013); District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52, 55, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009).
As previously stated, the use of a John Doe DNA arrest warrant is one of first impression in Connecticut. This same issue, however, has been considered by several other jurisdictions. The Wisconsin Court of Appeals first considered whether a DNA profile satisfies the constitutional and statutory requirements to arrest an otherwise unknown defendant. In State v. Dabney, 2003 WI.App. 108, 264 Wis.2d 843, 663 N.W.2d 366 (2003), the state charged ‘John Doe’ with kidnapping and four counts of first degree sexual assault. Id., 369. The state initially identified the defendant Bobby Dabney by his DNA profile after testing evidence recovered from a 15-year-old victim that Dabney was convicted of abducting and repeatedly raping. Id. Wisconsin law provided that an arrest warrant "[s]tate the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty." Id., 371 (citing Wis.Stat. § 968.04(3)(a)(4)). The court, in finding that an unknown defendant’s DNA profile satisfied the particularity and reasonable certainty requirements, explained that DNA is "arguably the most discrete, exclusive means of personal identification possible" and that "a genetic code describes a person with far greater precision than a physical description or a name." Id., 372.
Since Dabney, several other jurisdictions have also addressed the use of John Doe DNA warrants, including New York, California, Ohio and Tennessee. All of them have concluded that an individual’s unique DNA profile sufficiently describes a person in a manner that satisfies both constitutional and statutory requirements. See, e.g., State v. Danley, 138 Ohio Misc.2d 1, 853 N.E.2d 1224, 1226-28 (Com.Pl. 2006) (statute of limitations tolled when defendant was served with a John Doe warrant based on DNA evidence); People v. Martinez, 52 App.Div.3d 68, 70-71, 855 N.Y.S.2d 522 (2008) (rejecting argument that a John Doe DNA indictment did not sufficiently describe the defendant); People v. Robinson, 47 Cal.4th 1104, 1135, 224 P.3d 55, 104 Cal.Rptr.3d 727 (2010) (holding that a John Doe DNA warrant identified the defendant with "sufficient particularity"); State v. Burdick, 395 S.W.3d 120, 128 (Tenn. 2012) (holding that "a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements"); State v. Younge, 321 P.3d 1127, 1131-33 (Utah 2013) (upholding validity of charging a John Doe defendant based on a DNA profile); State v. Carlson, 845 N.W.2d 827, 831 (Minn.Ct.App. 2014) (holding that a DNA profile meets the particularity requirements and the reasonable certainty statutory requirements "because of its ability to describe a person with much greater accuracy than a person’s name or physical description"); State v. Neese, 239 Ariz. 84, 87, 366 P.3d 561 (Ariz.Ct.App. 2016) (holding that where the suspect’s name is unknown, a DNA profile is sufficient to describe the suspect with reasonable certainty). Notably, there do not appear to be any jurisdictions that have disallowed the use of a John Doe DNA warrant in cases where the DNA profile results from the crime scene evidence are found to be extraordinarily likely to match with the defendant’s DNA profile.
In State v. Belt, 285 Kan. 949, 960, 179 P.3d 443 (2008), the Kansas court held that a John Doe DNA warrant that "mentioned only DNA loci common to all humans" was invalid, because it contained insufficiently specific identifying information. However, this court finds that Belt is readily distinguishable from the other jurisdictions that have previously addressed this issue, because in each of those cases, as well as the instant case that is the subject of this motion to dismiss, the DNA profiles identified particular unknown defendants with extraordinary precision.
This court is persuaded that this arrest warrant based on a DNA profile does in fact identify the defendant with "nearly irrefutable precision," despite the initial use of the John Doe pseudonym. It thereby satisfies the particularity requirements of both the fourth amendment to the United States constitution and article first, § 7 of the Connecticut constitution. Furthermore, a DNA profile also satisfies the reasonable certainty requirement of Practice Book § 36-3, because it adequately describes a defendant whose name may be unknown at the time that the warrant is signed. In the present case, the arrest warrant identified the defendant with nearly irrefutable proof, such that there was essentially no possibility that the DNA profile of the perpetrator originated from another human being. In accordance with the holdings from a majority of jurisdictions that have previously considered this issue, the court finds that the extraordinarily detailed DNA profile is sufficient to meet the particularity and reasonable certainty requirements under Connecticut law.
The DNA report in the John Doe arrest warrant indicated that for both the discarded sweatshirt and handgun, a mixture of four persons was detected. The Lab opined that it was at least 100 billion times more likely that the DNA profile came from the defendant and three other unknown individuals, rather than from four unknown individuals. The DNA report also indicated that for the victim’s cell phone cover that was tested, a mixture of three persons was detected. The Lab opined that it was at least 1.2 billion times more likely that the DNA profile came from the defendant and two other unknown individuals, instead of three unknown individuals.
Moreover, the warrant affidavit itself further supports this conclusion, demonstrating the degree of contact the defendant had with the items tested for DNA evidence. The affidavit includes details from sworn statements given by witnesses, much of which is corroborated by surveillance footage. Additionally, the victim confirmed ownership of the Kate Spade cell phone cover found inside the abandoned sweatshirt containing the defendant’s DNA, a phone cover that contained a mixture of her DNA and the defendant’s. The nearly irrefutable DNA profile matching the defendant, coupled with the sworn statements from witnesses and the victim, further support the court’s determination that the particularity and reasonable certainty requirements were satisfied.
The defendant also argues that the court should not be guided by case law from other jurisdictions that have allowed John Doe DNA warrants, because each of those cases involved prosecutions for serious sexual assaults, rather than the robbery and assault charges at issue in this case. The court is not persuaded. In fact, this exact argument that the degree of offense charged should somehow have special relevance was also raised in a 2014 Minnesota case, where prosecutors obtained an unknown defendant’s DNA profile, and later used it as a basis to bring charges against him for burglary. See State v. Carlson, supra, 845 N.W.2d 832. In Carlson, all of the cases relied upon by the parties involved serious sexual assault offenses. Id., 830-31. In rejecting the defendant’s argument, the court explained that the applicable state statute codified the federal and state standards for arrest warrants, and "applies uniformly to all complaints for probable cause, irrespective of the nature of the crime." Id., 832. The provisions of Connecticut Practice Book § 36-3 requiring that an arrest warrant identify an accused with reasonable certainty are nearly identical to the Minnesota statute relied upon by the Carlson court. The Practice Book rule applies to all arrest warrants, regardless of the crime charged. Accordingly, the court will be guided by the growing consensus of case law from other jurisdictions in allowing the use of a defendant’s DNA profile to meet the particularity and reasonable certainty requirements.
B. Pre-Accusation Delay
The defendant also argues that the complaint should be dismissed based on an unreasonable pre-accusation delay, claiming that the police knew the defendant’s identity based upon the anonymous tip from December 29, 2012, but failed to use reasonable diligence to investigate further. "The role of due process protections with respect to pre-accusation delay has been characterized as a limited one ... [T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment ... This court need only determine whether the action complained of violates those fundamental conceptions of justice which lie at the base of our civil and political institutions ... and which define the community’s sense of fair play and decency ... The due process clause has not replaced the applicable statute of limitations ... [as] ... the primary guarantee against bringing overly stale criminal charges." (Citation omitted; internal quotation marks omitted.) State v. Crosby, 182 Conn.App. 373, 391-92, 190 A.3d 1, cert. denied, 330 Conn. 911, 193 A.3d 559 (2018). "[T]o establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant ... [P]roof of prejudice is generally a necessary but not sufficient element of a due process claim ... [Additionally] the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." (Emphasis in original; internal quotation marks omitted.) State v. Roger B., 297 Conn. 607, 614, 999 A.2d 752 (2010).
The court has already discussed some of the parameters of the CODIS database, infra . General Statutes § 54-102j(a) provides in relevant part that "[i]t shall be the duty of the [Lab] ... to receive ... biological samples and to analyze, classify and file the results of DNA identification characteristics profiles of ... biological samples submitted pursuant to § 54-102g and to make such information available ... The results of an analysis and comparison of the identification characteristics from two or more ... biological samples shall be made available directly to federal, state and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense. Only when a sample or DNA profile supplied by the person making the request satisfactorily matches a profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated, except that if the results of an analysis and comparison do not reveal a match between the sample ... supplied and a DNA profile contained in the data bank, the [Lab] may, upon request of the law enforcement officer, indicate whether the DNA profile of a named individual is contained in the data bank provided the law enforcement officer has a reasonable and articulable suspicion that such individual has committed the criminal offense being investigated."
The defendant argues that by December 29, 2012, he was a known suspect, and that despite having this information, Norwalk Police failed to reasonably conduct any further investigation of him. However, the evidence does not support this argument. The failure to apprehend the defendant in a timelier manner was due to the bad information on the defendant’s RT50, not on a lack of good faith investigative effort by the Norwalk Police. For over five years, the evidence shows that the police were laboring under the false, yet entirely reasonable, belief that the defendant’s DNA profile did not match the DNA profile obtained from the crime scene evidence. The defendant argues that the present case is analogous to State v. Gulley, 8th Dist. Cuyahoga No. 101527 (Ohio Ct.App. 2015), where the Ohio Court of Appeals dismissed a John Doe indictment for unreasonable pre-indictment delay. In Gulley, the victim alleged that she was sexually assaulted in 1993, and submitted to a rape kit where evidence of an assault was collected. She also identified the defendant as the perpetrator. Id., ¶3. The police then interviewed the defendant, who provided his address and social security number. However, the substance of that conversation was not memorialized by police, Id., ¶10. The police closed their investigation one month after the initial complaint was lodged after the victim failed to provide a formal statement. Id., ¶3. The case thereafter lay dormant for nineteen years. In 2012, to address a backlog of untested rape kits, the evidence collected from the victim back in 1993 was sent to the state lab for testing. The test generated a DNA profile. In 2013, the victim again identified the defendant, this time in a photo array. Despite these two prior identifications, charges were subsequently brought against an unknown John Doe. Id., ¶¶4-5. In 2014, there was a match between the DNA from the rape kit and the defendant’s DNA profile. The state thereafter attached the defendant’s name to the indictment. Id., ¶4-6. In dismissing the case, the court held that "where law enforcement had [the defendant’s] name but simply failed to investigate the matter further when the victim failed to appear for her interview, reasonable diligence does not support the use of a John Doe-DNA indictment." Id., ¶16.
The court finds the present case to be readily distinguishable from Gulley, and is therefore unpersuaded. The court in Gulley determined that the delay was unreasonable and the DNA match to the defendant was unnecessary to indict him, because the police already had the victim’s identification of the defendant, as well as his name, address, social security number. In the present case, however, any delay in identifying the defendant by name was clearly caused by human error that can be readily attributed here to the Department of Corrections, and not to any lack of reasonable diligence by the police, as in Gulley. Far from an inactive police investigation into this particular crime, there was mention at the hearing that "the case never really went cold," and reference was also made during cross examination of a Norwalk detective of a "book of six hundred reports" generated by this case alone. Accordingly, the court finds no substantial prejudice against the defendant, and that any pre-accusation delay was justifiable.
Conclusion
For the foregoing reasons, the defendant’s motion to dismiss is DENIED.
IT IS SO ORDERED