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DNA profile sufficient for complaint, warrant

Wedemeyer

“For purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible.”

Judge Ted E. Wedemeyer
Wisconsin Court of Appeals

A criminal prosecution is properly and timely commenced by a “John Doe” complaint and arrest warrant which identify the defendant solely by a DNA profile, the Wisconsin Court of Appeals held on April 29.

On Dec. 7, 1994, an unknown male accosted, kidnapped and sexually assaulted 15-year-old Dawana F. Dawana was taken immediately to a sexual assault treatment center where oral swabs and saliva samples were obtained from her. The state crime lab found semen present in the saliva and developed a DNA profile for the unknown male suspect.

On Dec. 4, 2000, the State charged “John Doe #12” with kidnapping and four counts of first-degree sexual assault. The DNA profile was included in the caption of the complaint. On that same day, a trial court found probable cause in the complaint and issued an arrest warrant for “John Doe #12.”

On Feb. 27, 2001, a DNA match was found, and on March 14, 2001, the State filed an amended complaint substituting Bobby R. Dabney’s name for “John Doe #12.”

Dabney moved to dismiss the charges, alleging that the original complaint and arrest warrant, based solely on his DNA profile, were insufficient and should not toll the six-year statute of limitations, which otherwise would have expired on Dec. 7, 2000. He also argued that the State’s delay in commencing this prosecution violated his right to due process.

Milwaukee County Circuit Court Judge Jeffrey A. Wagner denied the motion, and both the court of appeals and Supreme Court denied interlocutory review.

Dabney was convicted, and sentenced to three consecutive 40-year prison terms. He appealed, but the court of appeals affirmed in a decision by Judge Ted E. Wedemeyer.

Jurisdiction

The court concluded that the complaint and warrant were timely and properly issued. Personal jurisdiction attaches when two requirements are satisfied: (1) a complaint or an indictment is filed stating probable cause to believe a crime has been committed and that the defendant probably committed it; and (2) there has been compliance with the applicable statute of limitations.

Section 968.04(3)(a)4 provides, in relevant part, that an arrest warrant must, “state 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.”

A criminal complaint, meanwhile, must only set forth, “a written statement of the essential facts constituting the offense charged,” pursuant to sec. 968.01(2). In State v. Adams, 152 Wis.2d 68, 73, 447 N.W.2d 90 (Ct.App. 1989), the court of appeals stated that a complaint, “must set forth facts within its four corners that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and the defendant is probably culpable…. To be sufficient, a complaint must only be minimally adequate. This is to be evaluated in a common sense rather than a hypertechnical manner, in setting forth the essential facts establishing probable cause.”

What the court held

Case: State of Wisconsin v. Bobby R. Dabney, No. 02-2445-CR.

Issue: Can a criminal prosecution be properly and timely commenced by a “John Doe” complaint and arrest warrant which identify the defendant solely by a DNA profile?

Holding: Yes. A warrant is sufficient if it describes the defendant with reasonable certainty, and a DNA profile is arguably the most certain description possible.

Counsel: FLynn E. Hackbarth, Milwaukee, for appellant; Robert D. Donohoo, Milwaukee; James M. Freimuth, Madison, for respondent.

The court concluded that the complaint and warrant were sufficient, citing an ancient case in which an unknown woman was accused of larceny, Scheer v. Keown, 29 Wis. 586, 588 (1872). In Scheer, the court stated: “[T]he fact that her name was unknown should have been stated in the complaint and warrant, and the best description of the person prosecuted, which the nature of the case would allow, should have been given therein[.]”

From this, the court concluded, “the particularity or reasonable certainty requirements do not absolutely require that a person’s name appear in the complaint or warrant. When the name is unknown, the person may be identified with ‘the best description’ available.

The court further cited the commentator Wayne R. LaFave for the proposition that a “John Doe” arrest warrant satisfies the particularity requirement if it describes the person’s “occupation, his personal appearance, peculiarities, place or residence or other means of identification.” 3 Wayne R. LaFave, Search and Seizure 5.1(g)(3d ed. 1996 & Supp. 2003).

Applying these principles, the court found the DNA profile adequate, stating, “for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible.”

Accordingly, the court held the complaint and warrant sufficient to identify Dabney and confer personal jurisdiction.

The court added, however, that, “although the DNA profile satisfies the particularity requirements in identifying a suspect whose name is not known, it would be helpful, for notice purposes, to also include any known physical appearance characteristics.”

Legislative History

The court then discussed the newly enacted sec. 939.74(2d)(b), which provides, “If before the time limitation under sub. (1) expired [the six-year period for felonies], the state collected biological material that is evidence of the identity of the person who committed a violation of sec. 940.225 (1) or (2), the state identified a [DNA] profile from the biological material, and comparisons of that [DNA] profile to [DNA] profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for violation of sec. 940.225 (1) or (2) within 12 months after comparison of the [DNA] profile relating to the violation results in a probable identification of the person.”

Links

Wisconsin Court of Appeals

Related Article

Case Analysis

The court acknowledged that the statute is inapplicable to Dabney’s case, but found it provides support for the State’s position, nevertheless. The court stated, “The newly enacted statute demonstrates the legislature’s recognition that DNA profiles do sufficiently identify sexual-assault offenders and that the competing interest in sexual-assault prosecutions weigh in favor of allowing such prosecutions to commence after six years when the state has obtained the offender’s DNA profile but has been unable to match it to a known DNA profile within that period.”

The court added, “The legislature essentially has created a ‘discovery rule’ extension of the statute of limitations in these limited circumstances. Thus, the statute of limitations is not extended forever; rather, the statute is tolled under certain circumstances until a match is discovered. Once a match is discovered, the statute places a twelve-month deadline upon the state in which the action must be commenced.”

Accordingly, after summarily rejecting Dabney’s due process arguments, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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