Monday, October 29, 2007
Prosecution Held Timely Where ‘Doe’ Was Charged, Based on DNA Profile, Within Limitations Period
By KENNETH OFGANG, Staff Writer
A rape charge filed just prior to the expiration of the six-year limitations period was timely, even though the defendant could only be identified at the time by his DNA profile, the Third District Court of Appeal ruled Friday.
The justices affirmed Paul Eugene Robinson’s conviction on charges of forcible oral copulation, two counts of penetration with a foreign object, and two counts of rape in connection with the August 1994 attack on a Sacramento woman.
The case was prosecuted on the basis of a felony complaint filed in August 2000, four days shy of six years from the date of the attack, charging “John Doe,” an “unknown male” with a specified 13-locus DNA profile developed from semen taken from the victim.
About three weeks after the complaint was filed, the state Department of Justice lab reported a “cold hit,” matching a DNA profile taken from Robinson in 1999 while he was serving time for spousal battery in a county facility. An amended warrant, inserting Robinson’s name in place of the John Doe identification and DNA profile, was issued and he was arrested within days.
The criminal complaint was similarly amended to name Robinson as the defendant, and to add multiple felony charges involving another victim. After failing to obtain a dismissal on statute of limitations grounds, the defense argued at trial that the DNA evidence was insufficiently reliable to establish guilt.
Prosecutors presented expert testimony that the probability of a 13-loci was one in 650 quadrillion in the African American population, one in six sextillion in the Caucasian population, and one in 33 sextillion in the Hispanic population—The victim testified that her attacker could have been Hispanic or a light-skinned African American—and that there were no reported cases of two people matching at all 13 loci other than identical twins.
Jurors convicted Robinson on the five counts arising from the 1994 attack and found that he used a knife during the commission of the offenses. The other charges were dismissed after jurors deadlocked.
Judge Peter Mering sentenced Robinson to 65 years in prison, the maximum on each count and each enhancement allegation, describing the defendant—who had been allegedly convicted of 15 felonies that could not be used for enhancement purposes because they occurred after the 1994 incident—as a sophisticated serial rapist.
On appeal, Justice Coleman Blease said the prosecution was timely under Penal Code Sec. 804(d), which stops the limitations clock when an arrest warrant is issued “provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.”
Sec. 815, the justice noted, specifically permits the use of warrants designating the suspect by a fictitious name as long as the person is described with the required particularity.
A DNA profile qualifies as a sufficient description, Blease said.
“[W]e find an arrest warrant, which describes the person to be arrested by his or her DNA profile, more than satisfies the reasonable certainty standard because DNA is the most accurate and reliable means of identifying an individual presently available to law enforcement,” the justice summarized.
DNA matching is not infallible, the justice acknowledged. “But infallibility is not required for issuance of a warrant...or a charging document,” he wrote, noting that the Court of Appeal has held that minor descriptive errors in an indictment do not deprive the trial court of jurisdiction.
“Nevertheless, in light of the astronomical rarity of an individual’s DNA profile in the general population...and of defendant’s particular 13-locus profile, it cannot be disputed that DNA analysis is as close to an infallible measure of identity as science can presently obtain,” Blease wrote. “Given the mobility of our society, the availability of plastic surgery and other medical procedures and devices that may alter physical characteristics, and the growing problem of identity theft, unlike a person’s DNA profile, all other identifying criteria are subject to theft, change, or alteration.”
Blease rejected the defense argument that a DNA profile does not qualify as a description, since it does not provide information that an officer can use to visually identify the suspect.
“Defendant confuses the requirements for issuance of a warrant with those necessary to execute one,” the jurist wrote. “Extrinsic evidence is always necessary to locate the suspect and confirm his identity in order to execute an arrest warrant.”
In an unpublished portion of the opinion, Blease said the defendant was not entitled to a jury trial on sentencing issues because the trial judge implicitly found that his record of prior convictions, together with the facts of the present offense, was a sufficient justification for imposing the maximum sentence.
Copyright 2007, Metropolitan News Company