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Ineffective Assistance of Counsel: Failure to Challenge Invalid DNA Search Warrant – Lack of Prejudice; Right to Present Defense: DNA Evidence

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here, a DNA sample may only be collected by a search warrant supported by probable cause.  See State v. Banks, 2010 WI App 107, ¶18, 328 Wis. 2d 766, 778–779, 790 N.W.2d 526, 532.[3]  Ward refused to give his consent, and the State does not argue that exigent circumstances excused the warrant requirement.  As Ward argues, however, and as the State concedes, a search warrant must be supported by “oath or affirmation”; if not, the warrant is void.  See State v. Tye, 2001 WI 124, ¶13, 248 Wis. 2d 530, 538, 636 N.W.2d 473, 477.  The court commissioner here merely acceded to the State’s request, and directed Ward to give a DNA sample without first requiring supporting evidence be under oath.  Thus, the court commissioner’s July, 2005, order was invalid, and Ward’s DNA sample taken under that order could have been suppressed.  See Segura v. United States, 468 U.S. 796, 804 (1984) (“Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion.”).

But not so fast. Trial counsel failed to move for suppression, so Ward must show both deficient performance and prejudice as part of an IAC claim – had counsel sought suppression, the State simply would have produced an affidavit establishing probable cause for the warrant. (Ward’s fingerprints were found in the victim’s house, thus linking him to the crime.) “Accordingly, Ward has not shown prejudice under Strickland or that his trial lawyer was constitutionally deficient because a lawyer need not do things that accomplish nothing,” ¶11. No harm, no foul.

The court reserves for another day whether recent legislation abrogates the requirement for a warrant, fn 3: “Effective May 22, 2010, a formal search warrant may not be necessary, an issue we need not decide, if the person from whom a DNA sample is taken meets certain criteria.  See Wis. Stat. § 165.76 (2009–2010); 2009 Wis. Act 261.”

Right to Present Defense 

Ward wasn’t denied his right to present a defense to the charge he sexually assaulted Enesha D. A DNA profile, kept by the State Crime Lab under Ward’s name, didn’t match DNA left by the assailant. However, evidence at a pretrial hearing indicated that the non-match was caused by the Crime Lab having misfiled Ward’s sample. Further testing resulted in a match. Ward wasn’t entitled to have the jury hear about the non-match, because it wasn’t material to whether he assaulted Enesha D. Nor, due to lack of materiality, was he entitled to have the jury hear about a different sexual assault victim (Dorothy S.) who said he wasn’t her assailant. In that case, similarly, the Lab initially ruled out Ward as the donor of DNA found at the scene, but later determined his profile to be a match.

¶16      Every defendant in a criminal case has the right under the Sixth Amendment to present his or her defense. Washington v. Texas, 388 U.S. 14, 18–19 (1967).  The evidence the defendant seeks to introduce, however, must be “both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). This is where Ward’s contention breaks down:  simply put, Dorothy S.’s inability to identify Ward as her attacker despite the presence of his DNA is not “material” to the issue before Ward’s jury—whether Ward assaulted Enesha D.  Stated another way, Dorothy S.’s inability to identify Ward does not make it less likely that Ward assaulted Ms. D. because it has no bearing on whether Ward left his DNA on Ms. D.’s leg.[6] See Wis. Stat. Rule 904.01 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”). By the same token, the initial non-match of the DNA recovered from Ms. D.’s leg with the DNA profile that the convicted-felon data bank mistakenly listed for Ward also does not make more or less probable that the ultimate match, which, significantly, Ward does not challenge, was correct.  The trial court did not err in preventing Ward from confusing the jury with evidence that was simply not material to whether he was guilty or not guilty of raping Ms. D.  See Wis. Stat. Rule 904.03 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).  Here, of course, as noted, the evidence excluded by the trial court was not relevant as that term is used by Wis. Stat. Rule 904.01, so, technically, the balancing required by Rule 904.03 does not even apply.

Of possible note: the pre-trial evidentiary hearing established that the Lab’s DNA data-bank doesn’t treat samples obtained from convicted felons with the same case as samples recovered from crime scenes. That is, the former aren’t considered “evidence samples,” and therefore less attention is devoted to chain of custody, ¶5. Inferentially, one supposes, this casualness also explains how Ward’s sample came to be misfiled. In any event, “when we get a hit, a match between an offender’s profile and evidence sample, we then ask for a standard sample that was taken from that person [the suspect whose DNA matched the DNA in the data bank] and treated as evidence and submitted to us to make sure there was no glitch in the data bank,” id.

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