STATE OF IOWA, Plaintiff - Appellee, vs. MARTIN SINCLAIR DUFFY , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-822 / 07-1942
Filed February 4, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARTIN SINCLAIR DUFFY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Dale B. Hagen,
Judge.
Martin Duffy appeals his judgment and sentence for first-degree murder,
contending (1) the taking of a DNA sample violated his constitutional rights, (2)
there was insufficient evidence to support the jury‟s finding of guilt, and (3) a
$150,000 restitution order violated the ex post facto clause of the United States
Constitution.
JUDGMENT AFFIRMED, SENTENCE PARTIALLY VACATED
AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney
General, Steve Johnson, County Attorney, and Michael K. Jacobsen and Scott
W. Nicholson, Assistant County Attorneys, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.
Martin Duffy appeals his judgment and sentence for first-degree murder.
He contends (1) the taking of a DNA sample violated his constitutional rights, (2)
there was insufficient evidence to support the jury‟s finding of guilt, and (3) a
$150,000 restitution order violated the ex post facto clause of the United States
Constitution.
I.
Background Facts and Proceedings
In 1986, Karen Weber‟s partially clothed body was found on the side of a
gravel road. She had three stab wounds to the neck and one defensive wound to
the arm. Weber‟s murder went unsolved for over twenty years.
In 2006, Martin Duffy was on probation for operating a motor vehicle while
intoxicated. His probation officer determined that, pursuant to a 2005 law, Duffy
would have to provide a saliva sample for DNA testing prior to being released
from probation.
A sample was taken, sent to the Department of Criminal
Investigations crime lab, analyzed, and entered into the Combined DNA Index
System (CODIS). Duffy‟s DNA profile matched the DNA found on cigarette butts
present at the Weber crime scene.
Duffy was taken into police custody and questioned about the death of
Karen Weber. He eventually confessed to killing Weber with a knife.
The State charged Duffy with first-degree murder. Duffy filed a motion to
suppress his confession, the fruits of that confession, the DNA sample taken by
his probation officer, and the fruits of that sample. He asserted that he was
under the influence of controlled substances at the time of his confession, he did
not fall within the purview of the 2005 law authorizing the submission of DNA
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samples, and the evidence was obtained in violation of the United States and
Iowa Constitutions. The district court denied the motion and the case proceeded
to trial.
A jury found Duffy guilty as charged and the district court imposed
sentence, which included an order to pay restitution of $150,000.
II.
Constitutionality of DNA Extraction
The DNA statute, passed in 2005, provides as follows:
A person convicted, adjudicated a delinquent, civilly
committed as a sexually violent predator, or found not guilty by
reason of insanity, prior to the effective date of this Act, [June 14,
2005,] who would otherwise be required to submit a DNA sample
under this Act, and who is under the custody, control, or jurisdiction
of a supervising agency, shall submit a DNA sample prior to being
released from the supervising agency‟s custody, control, or
jurisdiction.
2005 Iowa Acts ch. 158, § 18.
Duffy first contends the probation officer‟s extraction of a saliva sample for
DNA testing pursuant to that statute violated the United States and Iowa
constitutions‟ provisions on unreasonable searches and seizures. U.S. Const.
amend. IV (“The right of the people to be secure in their persons . . . against
unreasonable searches and seizures . . . shall not be violated . . . .”); Iowa Const.
art. I, § 8. As Duffy raised this constitutional challenge in his motion to suppress,
we conclude he preserved error. See State v. Breuer, 577 N.W.2d 41, 44 (Iowa
1998). Our review is de novo. State v. Seering, 701 N.W.2d 655, 661 (Iowa
2005).
As a preliminary matter, the State concedes that the probation officer‟s
collection of the sample constituted a search. Therefore, the only question is
whether the search was reasonable.
See Bousman v. Iowa Dist. Ct., 630
4
N.W.2d 789, 797 (Iowa 2001).1
“Reasonableness „depends on a balance
between the public interest and the individual‟s right to personal security free
from arbitrary interference by law officers.‟”
Id. (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2579, 45 L. Ed. 2d 607, 614–
15 (1975)). In Bousman, the court characterized the process of swabbing a
citizen‟s mouth for a saliva sample as a “short” procedure that did not “invade the
person‟s private life or thoughts,” did not involve “a significant intrusion into a
person‟s bodily security,” and was “a valid and useful crime-solving tool.” Id. at
798.
The probation officer who extracted the DNA sample from Duffy used the
identical procedure used in Bousman.
An employee of the Iowa Division of
Criminal Investigation testified the procedure “is a very powerful tool and very
applicable to investigations that are old as long as there is biological evidence
available.” We conclude that the probation officer‟s collection of Duffy‟s saliva
sample for DNA testing pursuant to the authority of the DNA statute cited above
did not amount to an unreasonable search and seizure in violation of the Fourth
Amendment to the United States Constitution or article 1, section 8 of the Iowa
Constitution.
Duffy next contends the DNA statute does not afford him the equal
protection of the laws. See Wright v. Iowa Dep’t of Corrs., 747 N.W.2d 213, 216
(Iowa 2008) (“The Fourteenth Amendment to the United States Constitution and
article I, section 6 of the Iowa Constitution provide individuals equal protection
1
We find it unnecessary to decide whether the court should use a “special needs”
analytical approach adopted by some federal courts. See United States v. Kraklio, 451
F.3d 922, 924 (8th Cir. 2006).
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under the law.”). Specifically, he asserts that “[t]he statute treats probation[ers]
with prior felony convictions differently than felons who are not on probation.” In
his view, “[t]here is no rational reason to treat these classes of people differently.”
Our highest court addressed a virtually identical challenge in Wright.
Wright, who was a sex offender on probation, asserted that a statute treated him
differently than sex offenders who were not on probation. The Iowa Supreme
Court rejected this assertion. The court concluded:
[T]hese two groups are not similarly situated. The first group, which
includes Wright, is currently on probation and subject to state
monitoring, and the second group is not currently on probation and
not subject to monitoring. We agree with the district court that
Wright is not similarly situated to sex offenders not currently on
probation. Thus, an equal-protection challenge is not viable.
Id. at 217.
We reach the same conclusion here. Duffy, as a felon on probation, was
not similarly situated to felons who were not on probation. Therefore, his equal
protection challenge to the DNA statute fails.
III.
Sufficiency of the Evidence
Duffy next contends the record contains insufficient evidence to support
the jury‟s finding of guilt. Our review is for substantial evidence. State v. Bass,
349 N.W.2d 498, 500 (Iowa 1984).
The jury was instructed that the State would have to prove the following
elements:
1. On or about the 20th day of April, 1986, the defendant cut and
stabbed Karen Weber.
2. Karen Weber died as a result of being cut and stabbed about
the neck and head.
3. The defendant acted with malice aforethought.
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4. The defendant acted willfully, deliberately, premeditatedly and
with a specific intent to kill Karen Weber.
Duffy takes issue with the evidence supporting the malice aforethought,
deliberation, and premeditation elements.
The State preliminarily responds that Duffy did not preserve error on the
malice aforethought element.
See State v. Truesdell, 679 N.W.2d 611, 615
(Iowa 2004) (“To preserve error on a claim of insufficient evidence for appellate
review in a criminal case, the defendant must make a motion for judgment of
acquittal at trial that identifies the specific grounds raised on appeal.”). The State
also suggests that if Duffy is additionally challenging the specific intent element,
he did not raise that challenge before the district court. See State v. Crone, 545
N.W.2d 267, 270 (Iowa 1996) (concluding error not preserved where defense
counsel did not mention anything regarding specific elements of a criminal
charge).
We agree that Duffy‟s motion for judgment of acquittal did not specifically
mention malice aforethought. However, that element was sufficiently related to
the elements of premeditation and deliberation that we elect to address it. As for
the specific intent element, Duffy does not expressly challenge that requirement.
Therefore, we need not address it.2
2
We note, however, the following language in State v. Wilkens, 346 N.W.2d 16, 20–21
(Iowa 1984):
When a person intentionally uses a deadly weapon in killing a victim, the
jury may infer that he had formed the specific intent to kill. The effect of
defendant‟s heavy drinking on formation of the requisite specific intent to
kill was for the jury to determine.
(citations omitted).
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A. Premeditation and Deliberation
Premeditation was defined for the jury as “to think or ponder upon the
matter before acting.” Deliberation was defined as “to weigh in one‟s mind, to
consider, to contemplate, or to reflect.” When accompanied by an opportunity to
deliberate, the use of a deadly weapon supports an inference of deliberation and
premeditation. State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001).
A reasonable juror could have found that Duffy drove Weber to a secluded
spot on a gravel road, efficiently administered three deep stab wounds to her
neck, and left her there to die.
This amounted to substantial evidence of
premeditation and deliberation.
B. Malice Aforethought
“Malice aforethought is a fixed purpose or design to do some physical
harm to another that exists before the act is committed.” State v. Buenaventura,
660 N.W.2d 38, 49 (Iowa 2003) (quoting State v. Myers, 653 N.W.2d 574, 579
(Iowa 2002)). While deliberation and premeditation require an opportunity to
deliberate, malice requires no such opportunity and may be inferred by the use of
a deadly weapon. Reeves, 636 N.W.2d at 25.
As it is undisputed that Duffy used a knife to cut Weber‟s throat and an
expert testified to the absence of any indication that the cuts were accidental, a
reasonable juror could have found that this element was satisfied.
IV.
Restitution
Duffy contends that the $150,000 restitution award violates the ex post
facto clause of the United States Constitution. The State responds that Duffy did
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not preserve error but, if he did, the restitution order does indeed violate the ex
post facto clause. See State v. Corwin, 616 N.W.2d 600, 602 (Iowa 2000).
Finding no error preservation concern, we vacate the $150,000 restitution
order and remand for a determination of the restitution award pursuant to the
procedures in place in 1986. State v. Piper, 663 N.W.2d 894, 916–17 (Iowa
2003).
JUDGMENT AFFIRMED, SENTENCE PARTIALLY VACATED AND
REMANDED FOR RESENTENCING.
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