Summary
The Supreme Court of North Dakota affirmed an order requiring James Elwood Norman, who was incarcerated for a 1992 murder conviction, to provide a DNA sample under N.D.C.C. § 31-13-03. The court held that the statute applied to persons in Department of Corrections custody after July 31, 2001, based on convictions for specified offenses, and that the order was mandatory. The court rejected or declined to decide Norman’s challenges involving retroactivity, ex post facto principles, Fifth Amendment self-incrimination, and consequences for refusing to provide the sample.
Topics
Practice areas
Questions Presented
- Whether N.D.C.C. § 31-13-03 applies to a person convicted before July 31, 2001, who remained in Department of Corrections custody after that date for a qualifying felony conviction.
- Whether the statute's use of the word "shall" gives the sentencing court discretion to decline to order DNA sampling.
- Whether requiring Norman to provide a DNA sample violates the Fifth Amendment privilege against self-incrimination.
- Whether Norman demonstrated that refusal to provide a DNA sample would result in unlawful additional legal consequences.
Holdings
- N.D.C.C. § 31-13-03 applies to two separate categories: persons convicted after July 31, 2001, of specified offenses, and persons in Department of Corrections custody after July 31, 2001, as a result of a conviction for one of those offenses. Therefore, the statute applied to Norman despite his 1992 conviction.
- The word "shall" in N.D.C.C. § 31-13-03 imposes a mandatory duty, not a discretionary one, once the statute applies to the person.
- Obtaining a DNA sample by oral swab under N.D.C.C. § 31-13-03 does not violate the Fifth Amendment privilege against self-incrimination because the sample is physical, non-testimonial evidence.
- Norman failed to establish that refusal to provide a DNA sample would delay his release or otherwise impose unlawful new legal consequences; the district court therefore did not err in rejecting this claim.
Key quotations
“Therefore, the district court did not err in determining the statute was retroactive and applied to Norman because of his 1992 murder conviction and his current status as an inmate.” (660 N.W.2d at 555)
“We conclude obtaining a DNA sample by oral swab under N.D.C.C. § 31-13-03 does not violate the Fifth Amendment privilege against self-incrimination.” (660 N.W.2d at 556-57)
“We hold N.D.C.C. § 31-13-03 applies (1) to a 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 (2) to a person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses.” (660 N.W.2d at 558)
Factual background
In 1992, a jury convicted James Elwood Norman of class AA felony murder for killing his wife, Pamela Norman, and he received a life sentence. Norman remained in the custody of the North Dakota Department of Corrections and Rehabilitation when the Legislature expanded the DNA database statute in 2001 to cover specified felony offenses and inmates convicted of those offenses. The State then sought an order requiring Norman to provide a DNA sample, which in practice was collected by oral swab.
Procedural history
Norman was convicted of class AA felony murder in 1992 and sentenced to life imprisonment. In December 2001, the State obtained an order requiring him to provide a DNA sample without a hearing or prior notice. After a hearing, the district court denied Norman's motion to quash, appointed counsel, and concluded the statute applied retroactively and that the proceedings satisfied due process. The district court stayed collection pending appeal, and the North Dakota Supreme Court affirmed.