No Error in Denying Defense Continuance Request in Order to Obtain DNA Testing.

State v. Robert Larson, Minn.S.Ct., 9/2/2010.  The state charged Mr. Larson with first degree murder.  The state alleged that Robert utilized “zip strips” to choke Thomas John Cady to death because Mr. Cady had abused his sister, Jamie Larson, or so everyone believed.  You can read about Jamie’s predicament here.

Shortly before trial commenced officers obtained DNA exemplars from three potential suspects; they did so because there was an unknown male DNA profile on two cigarette butts in Mr. Cady’s vehicle ashtray and on a jacket found at the intersection near the murder scene.  Before DNA testing could be done, however, an officer concluded that the cigarette butts and the jacket belonged to one of these three potential suspects and so the DNA was “almost certainly” that person’s DNA. 

Mr. Larson, being the suspicious type, wanted to put science to the test and get the DNA testing anyway so he asked for a continuance.  The trial court denied the request and the appellate court upholds that denial.  Mr. Larson could not show that the explanation of the provenance of the cigs and jacket was unreasonable so he could not show that the DNA testing would have materially affected the trial.  (Of course, the only way to have shown that would have been to get the DNA testing.  Go figure.)

Mr. Larson, as did his sister, sought to set up a third party perpetrator defense.  On cross examination of one of three potential third party suspects defense counsel asked when the police had taken a DNA exemplar from him, to suggest, the appellate court surmises, that the police had not been thorough in their investigation.  In response, the state asked this potential suspect if he had voluntarily provided a DNA exemplar.  The appellate court said two things:  first, the defense “opened the door” to questions about obtaining DNA; and second, that the potential suspect volunteered his DNA was potentially exculpatory, something the state is allowed to present to rehab a potential third party perpetrator.  State v. Jones, 753 N.W.2d 677 (Minn. 2008).  Justices Page and Paul Anderson thought that telling the jury that the DNA exemplars were obtained voluntarily had been error, but harmless.

The appellate court did say, as it has previously, that the state can’t tell the jury that a defendant had refused to submit a DNA exemplar.  See Jones.

In a companion argument to Jamie’s complaint about authentication of transcripts of police interviews of witnesses, the appellate court ducks answering the question whether the trial court commits error by declining to order the police to authenticate the transcripts.