DB v. State

• Decision Date: 07 January 2003
• Citation: DB v. State, 861 So.2d 4 (Ala. Crim. App. 2003)
• Parties: D.B. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

861 So.2d 4

D.B. v.STATE of Alabama.

CR-01-0616.

Court of Criminal Appeals of Alabama.

January 7, 2003.

Rehearing Denied February 21, 2003.

Sandra Starne Hutchinson, Anniston; and Fred Lawton III, Anniston, for appellant.

William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

SHAW, Judge.

Pursuant to a plea agreement with the State, the appellant, D.B., pleaded guilty to one count of rape in the first degree, a violation of § 13A-6-61(a)(1),Ala.Code 1975; one count of sodomy in the first degree, a violation of § 13A-6-63(a)(1),Ala.Code 1975; and one count of burglary in the first degree, a violation of § 13A-7-5(a)(1),Ala.Code 1975.He was sentenced in accordance with the plea agreement to 25 years' imprisonment for each conviction, the sentences to run concurrently.Before pleading guilty, he expressly reserved the right to appeal the trial court's denial of three pretrial motions.

The record reflects that on April 7, 2000, delinquency petitions were filed against the appellant for rape, sodomy, and burglary.On May 10, 2000, upon motion of the State, the juvenile court transferred the cases to the circuit court for the appellant to be prosecuted as an adult.The appellant filed a notice of appeal from the transfer order.On July 27, 2000, while the appeal from the transfer order was pending in this Court, a Calhoun County grand jury returned three indictments against the appellant for the rape, sodomy, and burglary charges that were the subject of the transfer order.On August 17, 2000, the appellant orally moved to stay the proceedings in the circuit court pending the outcome of his appeal from the transfer order; the circuit court granted the motion.In an opinion issued on September 29, 2000, this Court affirmed the transfer order.SeeD.B. v. State,796 So.2d 1144(Ala.Crim.App.2000).The Alabama Supreme Court denied certiorari review, and a certificate of judgment was issued on April 27, 2001.On December 6, 2001, the appellant pleaded guilty to the charges in the indictments.

The rape, sodomy, and burglary arose out of one incident that occurred on May 3, 1997, at the residence of T.D. in Calhoun County.The appellant was T.D.'s next-door neighbor and was a suspect in the case from the beginning.However, the appellant was not initially arrested for the crimes, apparently because there was little or no evidence connecting him to the crimes.On July 7, 1999, the appellant pleaded guilty to two counts of reckless endangerment, violations of § 13A-6-24,Ala.Code 1975, for an incident that occurred on November 12, 1998, unrelated to the rape, sodomy, and burglary.The appellant was placed on two years of supervised probation for the reckless-endangerment convictions, and, on October 19, 1999, a DNA mouth swab was taken from the appellant.Subsequent testing revealed that the appellant's DNA matched semen found on a blanket at T.D.'s residence.The appellant was then charged with the rape, sodomy, and burglary.

I.

The appellant first contends that the trial court erred in denying his motion for funds to hire a DNA expert to independently test the blanket found at the scene of the crimes.He argues that, although his family provided funds for him to retain trial counsel, the circuit court should have considered him to be indigent and should have granted him funds to obtain a DNA expert because, he says, "there is a possibility that the blanket could contain DNA from another individual."(Appellant's briefat p. 22.)The appellant concedes in his brief to this Court that "he had a prior consensual sexual relationship with the victim" and that, therefore, his DNA may very well have been on the blanket, but he maintains that independent testing of the blanket by his own DNA expert may have revealed that the blanket also contained the "DNA of the actual perpetrator."(Appellant's briefat pp. 21-22.)

We agree with the appellant that "the fact that a friend or relative pays for an indigent defendant's counsel should not be considered in determining whether the defendant is entitled to funds for expert assistance,"Ex parte Sanders,612 So.2d 1199, 1201(Ala.1993), and that the record indicates that the appellant was, in fact, indigent.¹However, nothing in the record suggests that the trial court did not consider the appellant to be indigent when it denied his motion for funds.The mere fact that the appellant was indigent did not automatically entitle him to funds for expert assistance.

"[I]n order for an indigent defendant to be entitled to funds with which to hire an expert, the defendant must demonstrate a need for the funds."Smith v. State,639 So.2d 543, 550(Ala.Crim.App.1993).

"[A]defendant, in order to be entitled to funds to pay for an expert, must show more than a mere possibility that he or she will receive useful assistance from the expert.Rather, the defendant must show a reasonable probability that the expert would aid in the defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial."

Dobyne v. State,672 So.2d 1354, 1357(Ala.1995)."To meet this standard, the indigent defendant must show, with reasonable specificity, that the expert is absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of the defense."Ex parte Moody,684 So.2d 114, 119(Ala.1996).The State does not have to pay for expert assistance if an indigent defendant offers "`little more than undeveloped assertions that the requested assistance would be beneficial.'"Ex parte Moody,684 So.2d at 119, quotingCaldwell v. Mississippi,472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231(1985).

In this case, the appellant failed to show a reasonable probability that a DNA expert would aid in his defense and that the denial of a DNA expert would have resulted in a fundamentally unfair trial.He offered nothing more than the mere possibility that independent testing of the blanket would reveal that the blanket contained the DNA of another person.Therefore, the trial court did not err in denying the appellant's motion for funds to hire a DNA expert.

II.

Second, the appellant contends that the trial court erred in denying his motion to suppress the DNA evidence because, he says, taking the DNA sample from him while he was on probation for the reckless-endangerment convictions was an unlawful search and seizure.Although not entirely clear, the appellant appears to argue that this Court's holding in Hammonds v. State,777 So.2d 750(Ala.Crim.App.1999), aff'd, 777 So.2d 777(Ala.2000), that DNA samples taken pursuant to §§ 36-18-24and36-18-25,Ala.Code 1975, did not violate the Fourth Amendment, is not applicable to his case because, he says, the holding in Hammonds was limited to the taking of DNA samples from those persons convicted of felonies and did "not address the issue whether the taking of DNA evidence from a probationer, on probation for a misdemeanor, is proper."(Appellant's reply brief at p. 7.)This argument is meritless.

Section 36-18-25,Ala.Code 1975, provides, in part:

"(a) All persons convicted of a criminal offense as set out in Section 36-18-24 shall, when requested by the director [of the Alabama Department of Forensic Sciences] submit to the taking of a DNA sample or samples as may be specified by the director, provided, however, the director shall promulgate such rules and regulations as may be necessary for the purposes of ensuring that DNA samples are collected in a medically approved manner.

"(b) As of May 6, 1994, all persons serving any sentence of probation for any of the offenses set out in Section 36-18-24 shall, when requested by the director, submit to the taking of a DNA sample or samples as specified by the director.Upon the refusal of any such person to so submit the sentencing court shall order such submission as a mandatory condition of probation.

"(c) As of May 6, 1994, all persons convicted of any of the offenses set out in Section 36-18-24 shall be ordered to submit to the taking of a DNA sample or samples as specified by the director as a mandatory condition of any term of probation or suspended sentence which may be imposed by the sentencing court.

"(d) As of May 6, 1994, all persons convicted for any offense set out in Section 36-18-24 and under any sentence of confinement to any incarceration facility, shall, when requested by the director, submit to the taking of a DNA sample or samples as specified by the director.Upon the refusal of any such person to so submit, the custodian of the incarceration facility shall require such submission as a mandatory condition of any temporary, partial or limited release, including, but not limited to, work release, furlough, or other incentive release.

"(e) As of May 6, 1994, all persons convicted of any of the offenses set out in Section 36-18-24, shall be ordered by the sentencing court to submit to the taking of a DNA sample or samples as may be specified by the director as part of the sentence to be imposed."

Section 36-18-24,Ala.Code 1975, provides, in pertinent part:

"The director is hereby authorized and empowered to create and establish a DNA database ...:

"....

"The DNA database shall contain DNA records which the director shall deem necessary for the implementation of this article, and also shall contain DNA records of:

"(a) Persons convicted after May 6, 1994 for a felony offense.

"(b) Persons confined as of May 6, 1994 under a sentence of imprisonment or involuntary incarceration or confinement in a prison, jail, or other incarceration facility as a result of any felony conviction.

"(c)Persons convicted after May 6, 1994 of any offense contained in Chapter 6,Title 13A, or as the same may be hereafter amended.

"(d) Persons convicted after May 6, 1994, of any attempt, solicitation, or conspiracy to commit any offense contained in Chapter 6,Title 13A, or as the same

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