State v. Thompson

250 N.J. 556

275 A.3d 412

STATE of New Jersey, Plaintiff-Respondent,

v.Bradley C. THOMPSON, a/k/a Brad Thompson and Barton C. Thompson, Defendant-Appellant.

A-41 September Term 2020

085260

Supreme Court of New Jersey.

Argued November 9, 2021

Decided June 2, 2022

Stephen W. Kirsch, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephen W. Kirsch, on the briefs).

Lauren Bonfiglio, Deputy Attorney General, argued the cause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Lauren Bonfiglio, of counsel and on the briefs).

Michael J. Zoller argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Michael J. Zoller, Hackensack, and CJ Griffin, on the brief).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.

In the twenty-first century, the use of DNA (deoxyribonucleic acid) to identify perpetrators of crime has become commonplace. Indeed, many laypersons are familiar with the fact that traces of genetic material retrieved from crime scenes can lead law enforcement to the offender if that person's DNA matches the DNA found at the scene.

N.J.S.A. 2C:1-6(c) states that in cases involving DNA evidence, the time for prosecuting an offense under a statute of limitations "does not start to run until the State is in possession of both the physical evidence and the DNA ... evidence necessary to establish the identification of the actor by means of comparison to the physical evidence." (emphasis added). The question before the Court in this matter of statutory interpretation is whether the limitation period begins to run when the State is in physical possession of the two items noted, or when the State obtains a match between the DNA evidence from the crime and the defendant's DNA sample.

In July 2001, victim C.S. was sexually assaulted in her home by an unknown assailant. Traces of the suspect's DNA were retrieved from C.S.’s body and sent to the New Jersey State Police Lab (the Lab or the State Lab). There, scientists created a DNA profile for the sample, Specimen 12A, and in 2002 entered it into CODIS, the Combined DNA Index System, which is a national DNA database maintained by the Federal Bureau of Investigation (FBI). The DNA profile created by the Lab and entered into CODIS did not include certain exclusionary data -- data the Lab believed was inconclusive based on its interpretation of The FBI's DNA database polices. Without that data, however, it would have been impossible for Specimen 12A to generate a match with another DNA profile entered into CODIS. In January 2004, defendant's DNA was entered into CODIS on an unrelated matter. As a result of the manner in which the DNA profile for Specimen 12A was entered into CODIS, no match resulted.

In 2010, the FBI updated its guidance to explicitly allow the exclusionary data withheld from Specimen 12A to be entered for DNA profiles. The Lab did not update its policy to reflect this change in guidance until 2016. In 2016, an internal Lab audit revealed that Specimen 12A was entered without the subject exclusionary data. Upon entering the data for Specimen 12A, a match occurred, alerting the Lab that Specimen 12A matched defendant's DNA sample that had been entered into CODIS years earlier. Based on that match, defendant was indicted in May 2017 for several offenses related to the July 2001 sexual assault.

Prior to trial, defendant filed a motion to dismiss several counts on statute of limitations grounds. He argued that, pursuant to N.J.S.A. 2C:1-6(c), the five-year statute of limitations for the criminal offenses began to run in 2004, when the State possessed both the physical evidence from the crime and defendant's DNA sample. The trial court denied his motion and the case proceeded to trial. At trial, defendant was convicted of fourth-degree criminal sexual contact and fourth-degree criminal trespass. Defendant appealed and the Appellate Division affirmed his conviction and sentence finding that the statute of limitations began to run not in 2004, but in 2016 when the State received a DNA match between the DNA sample collected from the victim and defendant's DNA sample.

We hold that a plain reading of N.J.S.A. 2C:1-6(c) reveals that the Legislature intended the statute of limitations to begin to run once the State was in possession of both the physical evidence from the crime and the suspect's DNA. To hold otherwise would contradict the language of the statute which directs the statute of limitations to begin when the State is in possession of both items needed to generate a match. To find that the statute of limitations begins when a match is confirmed would render the second half of the provision superfluous.

In this case, although the State was in possession of both the physical evidence from the crime and defendant's DNA by 2004, the science regarding the utility or ability to enter certain exclusionary data in the FBI database was unclear. Clarity was achieved, however, in 2010 when the FBI updated its guidance to note that such data could be included on a DNA profile. At that time, the State was in possession of all it needed to generate a match and the scientific guidance on the treatment of DNA profiles and exclusionary data had been updated.

We therefore find that the statute of limitations began to run in 2010, when the scientific guidance rendered the Lab capable of generating a match based on the DNA samples in its possession. By the time defendant was indicted in 2017, the five-year statute of limitations had expired. We therefore reverse the Appellate Division's judgment and remand the matter for defendant's convictions to be vacated.

I.

A.

On the night of July 21, 2001, C.S.¹ was home with her four-month-old baby. An unknown male entered the home through an unlocked back door and sexually assaulted C.S. The intruder grabbed C.S. from behind, covered her eyes with his hand, gripped her throat, and pulled her hair as he dragged her down the hallway, eventually throwing her on the bathroom floor. In the bathroom, the man covered C.S.’s head with a towel and took off her clothes and bra. The assailant proceeded to touch C.S.’s breasts with his hands and mouth, and he touched her genital area with his fingers and his stomach. He then forced C.S. to perform oral sex on him. The assailant did not ejaculate during the encounter. Before leaving, he told C.S. to count to ten and instructed her not to call the police.

The next day, on July 22, 2001, C.S. reported the sexual assault to the police and underwent an examination by a Sexual Assault Nurse Examiner (SANE), who collected specimen swabs from C.S.’s body.

B.Federal Operational Guidelines and DNA

Before detailing the background of the procedures that eventually led to the DNA match in this case, we provide the following summary of the federal operational guidelines for DNA identification.

The Federal DNA Identification Act sets out detailed participation requirements for state and local forensic DNA laboratories to participate in CODIS. See DNA Identification Act of 1994, 34 U.S.C. § 12592. CODIS, the Combined DNA Index System, refers to a national identification index of criminal justice DNA databases and the software used to run these databases to compare a target DNA record against the DNA records in the database. FBI, CODIS and NDIS Fact Sheet CODIS, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet#CODIS (last visited May 11, 2022). CODIS enables the storage, exchange, and comparison of DNA records among forensic DNA laboratories in participating states. Ibid. The National DNA Index System (NDIS) is one part of CODIS and simply contains the DNA profiles contributed by participating federal, state, and local forensic laboratories. Ibid.

In 1997, a consortium of twenty-one laboratories determined the best thirteen short tandem repeats (STR) locations within a DNA sample/sequence to use in the CODIS databank; those thirteen markers are commonly referred to as the "CODIS core loci." Ming W. Chin et al., Forensic DNA Evidence: Science and the Law § 2.4 (2021).

Visually, loci appear as "peaks" within a studied DNA sample, with "the height of the peak" being "directly proportional to the amount of DNA amplified." See Chin, § 3.4.² Because the size of a peak correlates to the amount of DNA, a peak must meet an analytical threshold set by the laboratory to be included among the loci for a particular sample, and "[p]eaks that do not cross the analytical threshold are considered indistinguishable from background fluorescence and are not labeled by the software." Ibid. Thus, peaks below the analytical threshold are not labeled as loci and "are typically not used for data interpretation." Ibid. Simply put, peaks below the analytical threshold that each laboratory sets are considered exclusionary data; those peaks are omitted from the database's index as loci.³

Once a laboratory possesses a DNA sample, it must have a second DNA sample "composed of the same markers [or loci] with which to compare it" to make an identification. Ibid. A "match" occurs "when CODIS links two or more DNA profiles and a confirmation process is started by designated laboratory personnel from each affected laboratory." NDIS Operational Procedures Manual Glossary (eff. Jan. 1, 2015). In the process of comparing DNA samples, a "hit" is "[a] confirmed match that aids an investigation." Ibid. Significantly, a sample cannot yield a match or ensuing hit in the system if the DNA profile as a whole contains fewer than seven testable CODIS core loci.

According to Ayva Sammel, the New Jersey State Lab's CODIS administrator, once CODIS generates a hit, the laboratory must "do an administrative check of the case file to make sure that [the] specimen ID goes with that case." Sammel also testified that a laboratory will confirm a "hit" after "making sure ... that the offender sample...