New trial for man convicted of 2nd-degree murder where court allowed jury to hear testimony about defendant’s pre-arrest refusal to submit DNA

Allen v. State, 4D13-4459 (May 18, 2016)

The Fourth District reversed a second-degree murder conviction for a new trial based upon erroneous admission of the defendant’s pre-arrest refusal to submit to DNA testing.

The defendant was convicted of murdering his ex-girlfriend.  The police questioned the defendant, and wanted to compare his DNA to blood samples found in the victim’s home.  He was not told that he was required to submit to testing, and every indication was that it was his “right” to refuse.  Ultimately, he declined the testing pre-arrest, but was later compelled to provide a sample.  The defendant’s DNA did not match the samples found in the victim’s home.

Pre-trial defense counsel moved in limine to exclude the pre-arrest refusal; however, the Court permitted the evidence based, in part, upon the State’s argument that the evidence was relevant to show consciousness of guilt.

Despite the Fourth District’s statements indicating that the State presented significant evidence of guilt, the DCA concluded that there was a reasonable possibility that the pre-arrest refusal could have contributed to the verdict.  New trial ordered.





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