State v. Hearns
| Decision Date | 15 July 2004 |
| Docket Number | No. 2003–314.,2003–314. |
| Citation | 151 N.H. 226,855 A.2d 549 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Dwayne HEARNS. |
Peter W. Heed, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
Dawnangela Minton, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Dwayne Hearns, by brief, pro se.
The defendant, Dwayne Hearns, appeals his conviction on four counts of aggravated felonious sexual assault, RSA 632–A:2, I(j)(1) (Supp.2003), and two counts of simple assault, RSA 631:2–a (1996). We affirm.
The jury could have found the following relevant facts. In the summer of 2001, F.B., a fourteen-year-old girl, was living with her mother in Maine. F.B. considered living with her mother difficult. Wanting to "get out of [her] mom's house," F.B. began working at the Circle Restaurant in Epsom in June or July. The defendant, who had previously been married to F.B.'s mother, also worked at the restaurant and drove F.B. back and forth to work. Some nights after work, F.B. slept at the defendant's apartment in Pittsfield rather than returning home. On one such occasion, she alleged that the defendant committed two counts of simple assault against her.
On August 10, 2001, F.B. attempted suicide while at the defendant's house because she "didn't think [she] could handle another four years in [her] mom's house." F.B. then started to panic and hyperventilate, saying she did not want to return to her mother's house. The defendant encouraged her to talk to her mother about moving in with him, and he then took her to speak with her mother. Although F.B.'s mother initially refused to allow her to move in with the defendant, she ultimately told F.B. to collect her things and leave. F.B. then returned to Pittsfield with the defendant. She alleges that after she moved in with the defendant, he committed four counts of aggravated felonious sexual assault against her.
On appeal, the defendant argues that the trial court erred in: (1) granting the State's motion to compel him to provide blood and saliva samples for DNA analysis in violation of his privilege against self-incrimination; (2) denying his motion for a mistrial following improper comments made by the prosecutor during closing arguments; (3) improperly instructing the jury on the definition of "household member" utilized in RSA 632–A:2, I(j)(1); and (4) ruling that he could present alternative source evidence at trial only if he agreed to a continuance. We examine each of the defendant's arguments in turn.
The victim alleged that the last incident of aggravated felonious sexual assault occurred in the defendant's apartment, on a particular fitted bed sheet. Following the defendant's arrest, a search warrant was executed and the fitted bed sheet was recovered. An immunological test performed on that sheet revealed the presence of seminal material. Prior to trial, the State filed a motion to compel the defendant to provide blood and saliva samples for DNA analysis. The State sought DNA testing to determine whether the defendant was the source of that seminal material.
The defendant objected, arguing, among other things, that compelling him to furnish that evidence violated his privilege against self-incrimination guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, as well as Part I, Article 15 of the New Hampshire Constitution. Following a hearing, the Superior Court (McGuire , J.) granted the State's motion.
On appeal, the defendant argues that the trial court erred in granting the State's motion to compel blood and saliva samples. The State argues, among other things, that this issue has not been preserved for appeal.
Assuming without deciding that the defendant's claim has been preserved, we first address the defendant's argument under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only. Id. at 232–33, 471 A.2d 347.
Part I, Article 15 of the New Hampshire State Constitution provides: "No subject shall ... be compelled to accuse or furnish evidence against himself." We have previously recognized that "this privilege originated as a reaction to the practice in early English courts of compelling a witness to be sworn and give testimony concerning his guilt." State v. Arsenault, 115 N.H. 109, 112, 336 A.2d 244 (1975). Given this history, both "textwriters and the overwhelming majority of the courts have limited the scope of the privilege to ... testimonial compulsion." Id. (quotations omitted). Like other jurisdictions, we have long said that the privilege against self-incrimination "applies only to evidence provided by a defendant that is of testimonial character." State v. Cormier, 127 N.H. 253, 255, 499 A.2d 986 (1985). The privilege, then, does not protect the accused "from compulsion which makes him the source of real or physical evidence." Arsenault, 115 N.H. at 112, 336 A.2d 244. For example, the privilege does not protect against "compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Cormier, 127 N.H. at 256, 499 A.2d 986 (quotation omitted). "The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications' or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it." Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
Other jurisdictions have held that like the examples provided above, DNA samples are non-testimonial in nature. Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) ; Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1996) ; Padgett v. Ferrero, 294 F.Supp.2d 1338, 1345 (N.D.Ga.2003) ; see also Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769, 779 (2000) ; In the Matter of D.L.C., 124 S.W.3d 354, 374 (Tx.App.2003) ; Cooper v. Gammon, 943 S.W.2d 699, 705 (Mo.Ct.App.1997) ; see also State v. Norman, 660 N.W.2d 549, 557 (N.D.2003). Because we too share that view, we conclude that compelling an accused to provide a DNA sample does not violate Part I, Article 15 of our State Constitution.
The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. United States v. Hubbell,
530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) ; Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.
The defendant contends that "the privilege against self-incrimination extends beyond evidence that is testimonial in nature." He first argues that the plain language of Part I, Article 15 protecting a subject from "furnish [ing] evidence against himself," unlike the language in the Federal Constitution, prohibits the compulsion of both testimonial and real evidence. He argues that because "furnish" means the physical relinquishment of something real or tangible, we should broaden the scope of our State's privilege to prohibit blood, urine and breath samples. We disagree.
"It is commonly held that the variety of constitutional or statutory phrasing neither enlarges nor narrows the scope of the privilege as developed in the common law." Arsenault, 115 N.H. at 112, 336 A.2d 244 (quotation omitted). As the United States Supreme Court has recognized:
The defendant next argues that the historical roots of the privilege require that both the State and Federal privilege be interpreted to prohibit compelled DNA testing. In particular, relying upon Justice Thomas' concurring opinion in Hubbell, 530 U.S. at 49, 120 S.Ct. 2037 (Thomas, J. concurring), the defendant argues that the protection afforded by the federal self-incrimination clause may be broader than the United States Supreme Court asserts.
Contrary to the defendant's assertion, this Court has examined and utilized the historical roots of the privilege in defining its scope. See Cormier, 127 N.H. at 255, 499 A.2d 986; see also Arsenault, 115 N.H. at 112, 336 A.2d 244. Moreover, the historical analysis set forth in Hubbell is not as conclusive as the defendant suggests. Hubbell, 530 U.S. at 49–54, 120 S.Ct. 2037 (Thomas, J. concurring). Justice Thomas concludes only that, "in light of the historical evidence that the Self–Incrimination Clause may have a broader reach than Fisher holds, I remain open to a reconsideration of that decision and its progeny in a proper case." Id. at 56, 120 S.Ct. 2037 (Thomas, J. concurring) (emphasis added). Justice Thomas, then, did not conclude that history mandates an expansion of the privilege beyond its present scope.
Finally, the defendant argues that United States Supreme Court precedent, particularly Schmerber, 384 U.S. at 757, 86 S.Ct. 1826, is not controlling because the Supreme Court has not yet considered whether compulsory DNA testing violates the federal privilege against self-incrimination. Specifically, the defendant argues that Schmerber stood only for the...
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