State v. Norman

• Decision Date: 24 April 2003
• Docket Number: No. 20020172.,20020172.
• Citation: 2003 ND 66,660 N.W.2d 549
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James Elwood NORMAN, Defendant and Appellant.
• Court: North Dakota Supreme Court

660 N.W.2d 549

2003 ND 66

STATE of North Dakota, Plaintiff and Appellee, v. James Elwood NORMAN, Defendant and Appellant.

No. 20020172.

Supreme Court of North Dakota.

April 24, 2003.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for defendant and appellant.

Jonathan R. Byers, Assistant Attorney General, Attorney General's Office, Bismarck, ND, for amicus curiae North Dakota Attorney General. VANDE WALLE, Chief Justice.

[¶ 1] James Elwood Norman appealed from a district court order denying his motion to quash an earlier order which required him to provide a deoxyribonucleic acid ("DNA") sample under N.D.C.C. § 31-13-03. We affirm.

I

[¶ 2] In 1992, a jury found Norman guilty of class AA felony murder for killing his wife Pamela Norman. See State v. Norman, 507 N.W.2d 522, 523 (N.D.1993)

(affirming conviction). He received a sentence of life in prison and is currently in the custody of the Department of Corrections and Rehabilitation ("Department").

[¶ 3] The Legislature enacted N.D.C.C. ch. 31-13 in 1995 to provide for DNA testing and a DNA data base. See 1995 Sess. Laws ch. 325. As originally enacted, N.D.C.C. § 31-13-03 limited DNA testing to individuals convicted of certain sexual offenses or attempted sexual offenses. The Legislature amended § 31-13-03 in 2001 to expand DNA testing to include certain nonsexual felony offenses. See 2001 N.D. Sess. Laws ch. 302, § 1. The 2001 version of § 31-13-03 (emphasis added), states:

The court shall order any person convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of sections 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the person engaged in a nonconsensual sexual act or sexual contact with another person during, in the course of, or as a result of, the offense and any person who is in the custody of the department after July 31, 1995, as a result of a conviction of one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases. The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification data bases. Notwithstanding any other provision of law, if the sentencing court has not previously ordered a sample of blood or other body fluids to be taken, the court retains jurisdiction and authority to enter an order that the convicted person provide a sample of blood or other body fluids as required by this section. Any person convicted after July 31, 1995, who is not sentenced to a term of confinement shall provide a sample of blood or other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court. The sentencing court shall assess the cost of the procedure against the person being tested. The department shall collect the cost of the procedure from the person being tested and transfer the amount collected to the state department of health for deposit in the general fund.¹

Norman's conviction for class AA felony murder is a felony offense contained in N.D.C.C. ch. 12.1-16.

[¶ 4] In December 2001, the State moved the district court to order Norman provide a DNA sample under N.D.C.C. § 31-13-03. Without a hearing or providing him notice, the court ordered Norman to "provide a sample of blood and body fluids ... for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases in accordance with the provisions of N.D.C.C. ch. 31-13." In practice, DNA samples in North Dakota are obtained using an oral swab.

[¶ 5] Norman moved to quash the order and for an injunction to stay the collection of the DNA sample. Upon Norman's request, the district court appointed an attorney to represent him. The court postponed the testing until it ruled on his motion and ordered no sanctions be taken against him. Norman's present counsel is the fourth appointed attorney in this case; the other three attorneys were allowed to withdraw because of conflicts.

[¶ 6] Among his many arguments against providing a DNA sample, Norman challenged the constitutionality of § 31-13-03 on ex post facto grounds; therefore, the Attorney General responded by filing a brief defending the statute's constitutionality. Following a June 2002 hearing, the district court issued an order denying Norman's earlier motion to quash the order which required him to provide a DNA sample. The court determined § 31-13-03 was retroactive and Norman was subject to its requirements. Furthermore, the appointment of counsel and the hearing had satisfied his rights to due process. Norman moved to stay the collection of the DNA sample pending this appeal, and the district court granted his motion.

[¶ 7] On appeal, Norman challenges N.D.C.C. § 31-13-03 on multiple grounds: the district court erred in finding § 31-13-03 is retroactive and in finding Norman's 1992 murder conviction and status as an inmate require he provide a DNA sample; section 31-13-03 is an impermissible ex post facto law; the statute violates his Fifth Amendment right against self-incrimination; and the court erred in finding Norman would not suffer new legal consequences by refusing to provide a DNA sample.

II

[¶ 8] All fifty states have statutes establishing DNA testing and DNA data bases.²Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 1087 (1999). The federal government also has a national index, or data base, of DNA samples which includes samples taken from persons convicted of crimes, recovered from crime scenes or unidentified human remains, and contributed from the relatives of missing persons. See 42 U.S.C. § 14132.

[¶ 9] Challengers to DNA data base statutes have raised issues such as cruel and unusual punishment, equal protection, prohibition against ex post facto laws, free exercise of religion, procedural and substantive due process, right to privacy, the Fifth Amendment right against self-incrimination, separation of powers, and the Fourth Amendment right against unreasonable search and seizure. See generally Robin Cheryl Miller, Annotation, Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R. 5th 239 (2003). These cases demonstrate challengers often raise several of these issues on appeal, and generally, these arguments have been unsuccessful. Id.

[¶ 10] We recently upheld N.D.C.C. § 31-13-03, as amended in 2001, against an equal protection challenge. State v. Leppert, 2003 ND 15, ¶ 1, 656 N.W.2d 718. As stated in Leppert, "[c]ourts have generally upheld DNA testing of convicted persons against various constitutional challenges." Id. at ¶ 10 (citing multiple cases in which DNA testing was upheld on appeal). But see id. at ¶ 22 (Maring, J., concurring in the result) (comparing two courts' holdings in Fourth Amendment challenges to DNA sampling). This opinion is limited to the issues raised by Norman on appeal.

III

A

[¶ 11] Norman argues the district court erred in finding N.D.C.C. § 31-13-03 is retroactive. He asserts a plain reading of this portion of the statute demonstrates § 31-13-03 is clearly not retroactive:

The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses....

Thus, Norman asserts § 31-13-03 applies only to a person who was both convicted after July 31, 2001, and in departmental custody after July 31, 2001. Because he was not convicted after July 31, 2001, the statute should not apply to him. If the statute was intended to specify two separate categories of people, punctuation, such as a comma, would have been inserted before the conjunction "and."

[¶ 12] The State asserts N.D.C.C. § 31-13-03, by its clear and unambiguous language, is retroactive. As the Attorney General noted in its amicus curiae brief and the State asserted at oral argument, the use of the subject "any person" twice lends to an interpretation that two separate categories of people were intended by the statute: (1) individuals convicted after July 31, 2001, of the enumerated offenses, and (2) individuals in the Department's custody after July 31, 2001, because of a conviction for those offenses. If only one category of people was intended, repetition of the subject "any person" would be unnecessary.

[¶ 13] Under N.D.C.C. § 1-02-10, "[n]o part of this code is retroactive unless it is expressly declared to be so." A statute need not explicitly use the term "retroactive" for it to be applied to facts occurring before the effective date of the statute. Overboe v. Farm Credit Servs., 2001 ND 58, ¶ 8, 623 N.W.2d 372. Section 1-02-10 is a rule of statutory construction, and as a rule of construction, it "is subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent." State v. Davenport, 536 N.W.2d 686, 688 (N.D.1995) (quoting State v. Cummings, 386 N.W.2d 468, 471-72 (N.D. 1986)). If we can rationally infer from other sources that the Legislature intended retroactive application of a statute, we do not need to resort to § 1-02-10 to determine legislative intent. Id. at 689 (citing Cummings, 386...