State v. Browne
Docket No. A-0371-17T1
Issue:
The issue in this case is whether the trial court erred in granting the State’s pretrial application to obtain a buccal swab from the defendant to extract a sample of his DNA.
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
Facts:
At approximately 1:00 a.m. on April 19, 2015, Trenton Police were dispatched to the intersection of Phillips Avenue and Dexter Street in Trenton in response to a report of a “light-skinned male, with blue jeans, black hooded sweatshirt, [and] with a gun in his waist.” One detective testified that he saw a group of five men on the sidewalk at the specified location and once the officers illuminated the group with a spotlight on their marked patrol vehicle, the group started to disperse. According to the officer, the defendant’s clothing matched the clothing description provided by dispatch.
According to the same officer, when the defendant saw the police car, he turned his body away from the vehicle and grabbed his waistband as if he were trying to conceal something. Once the officers rounded up the group, they ordered them to show their hands, and everybody but the defendant complied. At this point, the defendant began to flee from the officers. On pursuit, an officer noticed that the defendant was holding a silver handgun while he ran. During the pursuit, the defendant flung the handgun “across his body” and into the “side of a house,” and continued running away from the officers. One of the officers in pursuit recovered the handgun and also testified he saw the defendant throw a “shiny silver item.” The defendant was later caught after hopping a fence, tackled to the ground, and subsequently arrested and charged by a grand jury in a four-count indictment with various offenses, including the certain-persons offense. The State eventually dismissed all charges except for the certain person’s offense. He was found guilty of the second-degree offense that prohibits “certain persons” from possessing a firearm, N.J.S.A. 2C:39-7(b).
In June 2016, the State applied to the court to obtain a buccal swab from the defendant, and in support of that application, the State submitted a certification by an acting assistant prosecutor explaining that the handgun the police observed the defendant discarding had been submitted to the State Police laboratory for analysis and testing for the presence of DNA. The certification asserted that it was “necessary to obtain a buccal swab reference from the defendant to determine if his DNA was recovered from the handgun.”
The Defendant’s trial council advised the court that she was “not consenting” to the buccal swab and specifically expressed concerns about the trial date being delayed to enable DNA testing. However, counsel did not raise any specific objection to the sufficiency of the State’s certification.
The trial court granted the State’s application for the buccal swab because they noted that the presence or absence of the defendant’s DNA on the discarded handgun was likely to have “great relevance for both sides in this case.” The buccal swab was thereafter obtained from the defendant, and the DNA extracted from it was compared to the DNA found on the handgun. A forensic scientist from the State Police who performed the comparison testified at trial that the defendant was the source of the DNA profile that had been obtained from the gun.
Although the defendant presented no competing DNA expert testimony at trial, his attorney did argue to the jury that the DNA taken from the gun was suspect because the gun had been handled by multiple persons. His attorney also questioned the reliability of the testing methods used by the State’s expert as well. The attorney maintained the State had failed to prove beyond a reasonable doubt that the defendant had possessed the handgun, and thus was not guilty of the certain-persons offense.
In his appeal, the defendant argued that the trial court erred in granting the State’s pretrial application to obtain a buccal swab from the defendant to extract a sample of his DNA because the incriminating DNA proof should have been excluded because the buccal swab was obtained without a sufficient foundation, as prescribed by State v. Gathers, 234 N.J. 2018 (2018). He further argued that the jury charge on the certain persons offense was flawed, and he is thereby entitled to a new trial.
The appellate court affirmed the defendant’s conviction because they believed he waived the right to appeal the trial court’s admission of the DNA evidence by failing to move to suppress the buccal swab sample he claimed was illegally obtained. In addition, the appellate court found no flaw in the jury charge requiring appellate relief.
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