IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 4, 2012 Session
STATE OF TENNESSEE v. ROBERT JASON BURDICK
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 2008B1350 Seth W. Norman, Judge
No. M2010-00144-SC-R11-CD - Filed December 18, 2012
In 2000, an affidavit of complaint was issued charging “John Doe” with an aggravated rape
that had occurred in 1994. The affidavit, which included a detailed DNA profile of “John
Doe,” led to the issuance of an arrest warrant. In 2008, police officers discovered that
fingerprints taken from the scene of the crime matched those of the defendant. Later, police
determined that the DNA profile was that of the defendant, and a superseding indictment was
issued in his name. The defendant was tried and convicted of attempted aggravated rape, and
the trial court imposed a ten-year sentence. The Court of Criminal Appeals affirmed, holding
that the “John Doe” warrant with the DNA profile was adequate to identify the defendant and
commence prosecution within the applicable statute of limitations. Because the issue is one
of first impression in this state, this Court granted an application for permission to appeal.
We hold that a criminal prosecution is commenced if, within the statute of limitations for a
particular offense, a warrant is issued identifying the defendant by gender and his or her
unique DNA profile. Furthermore, a superseding indictment in the defendant’s proper name
provides the requisite notice of the charge. The judgment of the trial court is affirmed.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed
G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
John E. Herbison, Clarksville, Tennessee, for the appellant, Robert Jason Burdick.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Rachel E. Willis, Senior Counsel; Mark A. Fulks, Senior Counsel; Victor S. Johnson, III,
District Attorney General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
On the evening of February 28, 1994, P. Y. (the “victim”),1 a female attorney in
Nashville, Tennessee, returned to her residence after work. At approximately 8:30 p.m., she
fell asleep. She was awakened by a telephone call at 10:00 p.m., but soon went back to sleep
while lying on her stomach. Before daylight on the next morning, she was awakened by
something touching her on her neck and shoulders. Initially believing it to be one of her cats,
she tried to shove it away, but when she turned her head, she saw the face of a man by the
light of a lamp in her room. Her assailant sprawled across her body, pinning her down onto
her stomach. She screamed, “No,” and, as she reached backward with her right hand, she
discovered that the assailant was wearing a stocking over his face. When her assailant
inflicted a staggering blow to the side of her head, the victim again reached backward and
felt her assailant’s naked thigh. She bit his hand as she resisted the attack. He struck her
again, ordered her to put her hands over the back of her head, and displayed a piece of nylon
cord. Fearing that he would try to tie her, the victim continued to struggle for several more
minutes. Each time her assailant attempted to reach underneath her, she bit his hand. He
retaliated by striking her in the head, as many as fifteen to twenty-five times during the
course of the assault.
At some point, the victim and her assailant fell to the floor. Afterward, when the
victim realized that she had bitten off a piece of skin from his finger, she pulled it from her
teeth and placed it under the bed. The assailant continued his attack, pressing his hand
toward her vaginal area. The victim continued to resist, begging him to stop. Eventually,
the assailant discontinued his attack, forced the victim into her bathroom, ordered her to stay
inside for five minutes, and left the residence. After several moments, the victim returned
to her bedroom, took her handgun from a bedside table, and called 911.
Upon arriving at the scene, officers with the Metropolitan Nashville and Davidson
County Police Department dispatched a K-9 unit but were unable to track the assailant. The
officers discovered an open window in the garage and a torn window screen in the yard. The
officers took possession of the piece of skin the victim had bitten off from the finger of her
assailant. A partial fingerprint was developed from the skin, and a palm print was lifted from
the garage window sill. Neither that fingerprint nor the palm print produced a match in the
databases available to police at that time. A deoxyribonucleic acid (“DNA”) profile also was
developed from the skin, but no match was found in the Combined DNA Index System
1
It is the policy of this Court to identify sexual assault victims by their initials.
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(“CODIS”) database.2
On February 2, 2000, almost six years after the attack,3 Police Officer Rita Brockmann
Baker filed an affidavit of complaint in the Davidson County General Sessions Court. The
affidavit contained allegations that a “John Doe” had committed aggravated rape in violation
of Tennessee Code Annotated section 39-13-502 (1991) and included the following
assertions:
On March 1, 1994, [the victim] was in her residence . . . . At approximately
0350 to 0400 hours, she was awakened in her bed by John Doe defendant on
top of her. Defendant repeatedly beat her. [The victim] struggled against his
attack. Defendant tried unsuccessfully to tie her hands. Defendant put his
hand against her vaginal area, but did not make penetration. [The victim]
fought him until she was exhausted. She thought she was going to die. [The
victim] begged for him to stop. Defendant stopped his attack, had her wait
inside her bathroom, and left her residence.
During this attack, [the victim] was able to bite the defendant on the hand.
This bite produced a piece of skin that was submitted to the Tennessee Bureau
of Investigation, Forensic Services Crime Laboratory for DNA analysis. This
analysis produced a profile on John Doe that can exclude any other possible
suspect. (See attached DNA profile identifying John Doe.)
The affidavit of complaint contained a detailed STR DNA profile of the John Doe.4 Based
on the information provided by Officer Baker, the Davidson County Clerk issued an arrest
warrant, bearing the number GS122, for “John Doe.” Later, in April of 2006, over twelve
years after the offense, a grand jury issued a multi-count indictment charging the John Doe
with several crimes, including counts for aggravated rape as to the victim and aggravated
2
DNA has been described as “a molecule that encodes the genetic information in all living
organisms.” 4 David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert
Testimony § 31:1, at 114-15 (Forensics ed. 2011–2012). “The technology for DNA profiling and the
methods for estimating frequencies and related statistics have progressed to the point where the reliability
and validity of properly collected and analyzed DNA data should not be in doubt.” Comm. on DNA Forensic
Sci., Nat’l Research Council, The Evaluation of Forensic DNA Evidence 2 (1996) [hereinafter NRC].
3
The statute of limitations for aggravated rape, a Class A felony, is fifteen years; the statute of
limitations for attempted aggravated rape, a Class B felony, is eight years. See Tenn. Code Ann. § 40-2-
101(b)(1)–(2) (2012).
4
Short tandem repeats (STR) is a method of DNA-typing that “can yield unambiguous identification
of individual [DNA loci].” NRC at 70, 73.
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burglary of her residence.5 Two months later, as a result of the indictment, the Davidson
County Criminal Court issued a capias, “replac[ing] unserved warrant GS122,” for “John
Doe,” also known as the “Wooded Rapist.”
In 2008, the police discovered that the partial fingerprint developed from the skin
recovered at the scene matched a print provided by Robert Jason Burdick (the “Defendant”),
which was taken in 1999 when he applied for work at the Department of Correction. Further,
the palm print lifted from the garage window sill was found to match the Defendant’s right
hand. After obtaining a warrant, the police administered a cheek swab of the Defendant and
subsequently determined that his DNA matched the profile developed from the piece of skin
that was recovered after the 1994 attack. In May of 2008, a superseding indictment was
returned against the Defendant, replacing the “John Doe” indictment. Following a two-day
trial, the jury found the Defendant guilty of attempted aggravated rape, a lesser-included
offense of the original charge. See Tenn. Code Ann. §§ 39-13-502 (aggravated rape), 39-12-
101 (1991) (criminal attempt), 39-12-107 (1991) (classifications of attempt). The trial court
imposed a Range I sentence of ten years in the Department of Correction. The Court of
Criminal Appeals affirmed the conviction, holding that the “John Doe” warrant with the
DNA profile was adequate identification so as to commence prosecution against the
Defendant within the applicable statute of limitations.
In his application for permission to appeal to this Court, the Defendant contended,
first, that the filing of a “John Doe” warrant was insufficient to commence prosecution within
the eight-year statute of limitations for attempted aggravated rape, and second, that the
issuance of the warrant did not provide him with sufficient notice of the charge. We granted
review to determine (1) whether a criminal prosecution is properly and timely commenced
by an arrest warrant that identifies an accused only by gender and DNA profile, and (2)
whether such a warrant provides a defendant with sufficient notice of the charges against him
or her. The issue of commencing prosecution through DNA identification of an accused in
an arrest warrant is one of first impression in this Court.
II. Standard of Review
As indicated by the Court of Criminal Appeals, the underlying facts of this case are
not in dispute, and the issues presented involve construction and interpretation of various
statutes and rules of criminal procedure. The applicable standard of review for statutory
construction is de novo. State v. Edmondson, 231 S.W.3d 925, 927 (Tenn. 2007). The same
standard applies to the Tennessee Rules of Criminal Procedure. State v. Ferrante, 269
S.W.3d 908, 911 (Tenn. 2008).
5
The multi-count indictment included other charges unrelated to the victim. The burglary charge
is not a part of this appeal.
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III. Analysis
A prosecution for a felony offense must, of course, be commenced within the statutory
limitations period or else the prosecution is barred. See Tenn. Code Ann. § 40-2-101; Hickey
v. State, 174 S.W. 269 (Tenn. 1915). It is well established that the purpose of a limitations
period is “to protect a defendant against delay and the use of stale evidence and to provide
an incentive for efficient prosecutorial action in criminal cases.” State v. Nielsen, 44 S.W.3d
496, 499 (Tenn. 2001). “So long as the prosecution begins within the prescribed limitations
period, a subsequent indictment may issue despite any delay.” State v. Lawson, 291 S.W.3d
864, 871 (Tenn. 2009). A prosecution is initiated by several triggering events, one being the
issuance of an arrest warrant. Tenn. Code Ann. § 40-2-104 (2012) (“A prosecution is
commenced . . . by . . . the issuing of a warrant . . . .”). At the time the warrant in this case
was issued, Tennessee Code Annotated section 40-6-208 (1997), which governed the
substantive requirements for an arrest warrant, provided as follows:
(a) The warrant should specify the name of the defendant, but if it is unknown
to the magistrate, the defendant may be designated therein by any name.
(b) It should also state the offense either by name, or so that it can be clearly
inferred.
(c) It should also show, in some part, the county in which issued, the name and
initials of office of the magistrate.
Rule 4(a) of the Tennessee Rules of Criminal Procedure authorizes the issuance of an
arrest warrant if the affidavit of complaint “establish[es] that there is probable cause to
believe that an offense has been committed and that the defendant has committed it.” Rule
4 further provides that an arrest warrant shall “be signed by the magistrate or clerk [and]
contain the name of the defendant or, if this name is unknown, any name or description by
which the defendant can be identified with reasonable certainty.” Tenn. R. Crim. P.
4(c)(1)(A)–(B) (emphasis added). This rule is practically identical to its federal counterpart.
Fed. R. Crim. P. 4(b)(1)(A) (“A warrant must . . . contain the defendant’s name or, if it is
unknown, a name or description by which the defendant can be identified with reasonable
certainty[.]”).
Attempted aggravated rape is a Class B felony, for which the applicable statute of
limitations for commencement of prosecution is eight years. See Tenn. Code Ann. §§ 39-13-
502, 39-12-107(a), 40-2-101(b)(2). The offense occurred on March 1, 1994. As a result, the
limitations period for commencement of the prosecution for the convicted offense of
attempted aggravated rape expired on March 1, 2002, absent any tolling of the statute. Arrest
warrant GS122 and the affidavit of complaint against “John Doe,” with the accompanying
DNA profile, were filed on February 2, 2000, which was well within the eight-year
limitations period.
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The Defendant does not dispute that the affidavit of complaint established probable
cause for the issuance of an arrest warrant. The affidavit included allegations of the essential
facts constituting the offense of attempted aggravated rape and provided by attachment a
detailed STR DNA profile developed from the skin sample. As required, the affidavit was
signed by Officer Baker and by a commissioner for the General Sessions Court. See Tenn.
R. Crim. P. 3 (requiring that the affidavit be made in writing and upon oath before a
magistrate or court clerk, and contain the essential facts of an offense). Arrest warrant
GS122 noted that the affidavit of complaint was attached thereto, and the affidavit referenced
the “attached DNA profile identifying John Doe.”
The first issue is whether the warrant sufficiently identified the Defendant by the
references to “John Doe” and the inclusion of his DNA profile, so as to commence
prosecution within the statutory limitations period. The Defendant asserts that an arrest
warrant must place the accused on notice that he has been charged with an offense, or else
the prosecution did not commence; he insists that the DNA identification in the “John Doe”
warrant failed to meet that requirement.6 See Tenn. Code Ann. § 40-6-208(a); Tenn. R.
Crim. P. 4(c)(1)(B). Other jurisdictions, however, have considered the issue presented here
and have concluded, under constitutional, statutory, and procedural rules similar to those in
Tennessee, that “John Doe” warrants may be sufficient to commence a prosecution or at least
toll the applicable statute of limitations.
Initially, the Fourth Amendment to the United States Constitution guarantees that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV (emphasis added). The corresponding provision in the Tennessee
Constitution is worded differently, providing that “general warrants, whereby an officer may
be commanded to . . . seize any person or persons not named, whose offences are not
particularly described and supported by evidence, are dangerous to liberty and ought not to
be granted.” Tenn. Const. art. I, § 7 (emphasis added). In the context of the Fourth
Amendment, the particularity requirement guarantees that a search or seizure “will not take
on the character of the wide-ranging exploratory searches [or seizures] the Framers intended
to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). As reflected by our state
6
As a threshold issue, the Defendant contends that the State failed to produce a warrant indicating
that the prosecution commenced within the limitations period; however, the record on appeal was
supplemented by the trial court to include a February 2, 2000 document entitled “State Warrant, State of
Tennessee, County of Davidson” with the number GS122 affixed. The warrant identifies “John Doe” as the
suspect and contains allegations of attempted aggravated rape causing bodily injury. The warrant includes
the affidavit of complaint as an attachment, and is further signed by the deputy clerk. We conclude,
therefore, that a warrant was issued within the limitations period. See Tenn. Code Ann. § 40-6-208.
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constitution, “[t]he framers . . . included the particular description requirement to prevent the
issuance of general warrants, a practice which was prevalent during the colonial era of this
country.” W. Mark Ward, Tennessee Criminal Trial Practice § 4:12 (2012–2013 ed.); see
also State v. Vanderford, 980 S.W.2d 390, 403-04 (Tenn. Crim. App. 1997).
Over one hundred years ago, in West v. Cabell, 153 U.S. 78 (1894), the United States
Supreme Court addressed the issue of the validity of an arrest warrant that incorrectly named
the arrestee. The original oath of complaint and subsequent arrest warrant named the suspect
as “James West” when the defendant, “Vandy M. West,” had never been known by any other
name. Id. at 85. Both the complainant and the magistrate who issued the warrant testified
that the warrant was intended for the defendant, despite the error in the name. Id.
Recognizing the common law principle that “a warrant for the arrest of a person charged with
crime must truly name him, or describe him sufficiently to identify him,” id., the Court
concluded that “the private intention of the magistrate was [not] a sufficient substitute for the
constitutional requirement of a particular description in the warrant.” Id. at 88. In
consequence, the Court held that the warrant for the arrest of “James West,” without any
further description, was invalid to arrest a person named “Vandy M. West.” Id.
As stated, other jurisdictions have often addressed the constitutional requirements of
particularity for the issuance of arrest warrants. See James Herbie DiFonzo, In Praise of
Statutes of Limitations in Sex Offense Cases, 41 Hous. L. Rev. 1205, 1221-31 (2004);
Meredith A. Bieber, Comment, Meeting the Statute or Beating It: Using “John Doe”
Indictments Based on DNA to Meet the Statute of Limitations, 150 U. Pa. L. Rev. 1079,
1081-86 (2002) [hereinafter Bieber, 150 U. Pa. L. Rev.]. Generally, arrest warrants either
describing the suspect only as “John Doe” or inaccurately naming an individual without some
other identifying description have been ruled insufficient under the naming requirement of
the Fourth Amendment. See, e.g., United States v. Doe, 703 F.2d 745, 747-48 (3d Cir. 1983)
(holding that an arrest warrant describing the suspect only as “John Doe a/k/a Ed” was
constitutionally insufficient and that an officer’s personal knowledge of that suspect did not
cure the insufficiency); United States v. Swanner, 237 F. Supp. 69, 71 (E.D. Tenn. 1964)
(holding that the use of a “John Doe” warrant may be permissible only with some additional
description of the person designated by the warrant); People v. Montoya, 63 Cal. Rptr. 73,
77-78 (Ct. App. 1967) (holding that “John Doe” warrant, which described suspect as “white
male adult, 30 to 35 years, 5 [feet] 10 [inches,] 175 lbs.[,] dark hair, medium build” lacked
adequate specificity). But see United States v. Ferrone, 438 F.2d 381, 389 (3d Cir. 1971)
(“We hold that the physical description of [the defendant], coupled with the precise location
at which he could be found, was sufficient and the John Doe warrant was, therefore, valid.”);
Blocker v. Clark, 54 S.E. 1022, 1023 (Ga. 1906) (noting that a “John Doe” warrant may be
valid if it includes other identifying information such as occupation, personal appearance, or
place of residence).
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The advent of DNA analysis introduced a new layer of consideration, not only as to
the particularity requirements of the Fourth Amendment, but also as to statutory provisions
and procedural rules requiring that a suspect be described with “reasonable certainty.” DNA
evidence has become “‘a powerful law-enforcement weapon, especially in cases of rape,
because it has the potential to exonerate a suspect or to place him at the scene of a crime.’”
Veronica Valdivieso, DNA Warrants: A Panacea for Old, Cold Rape Cases?, 90 Geo. L.J.
1009, 1018 (2002) (quoting George J. Annas, Setting Standards for the Use of DNA-Typing
Results in the Courtroom—The State of the Art, 326 New Eng. J. Med. 1641, 1641 (1992)).
As one court has observed, “[a] properly generated DNA profile is a string of code that
exclusively identifies a person’s hereditary composition with near infallibility.”
Commonwealth v. Dixon, 938 N.E.2d 878, 884 (Mass. 2010) (citing NRC at 2 (technology
for DNA profiling has “progressed to the point where the reliability and validity of properly
collected and analyzed DNA data should not be in doubt”)).
The Wisconsin Court of Appeals appears to have been the first to address the question
of whether a “John Doe” warrant identifying a suspect by a DNA profile serves to commence
a prosecution within the applicable statute of limitations. In State v. Dabney, 663 N.W.2d
366 (Wis. Ct. App. 2003), under circumstances almost identical to those in the case before
us, the complaint and arrest warrant initially identified the suspect as “John Doe,” charged
him with certain sexual assault offenses, and set forth a unique DNA profile obtained from
evidence recovered from the victim. Id. at 369. Similar to the statutory requirements in
Tennessee, Wisconsin law required an arrest warrant to “[s]tate the name of the person to be
arrested, if known, or if not known, designate the person to be arrested by any description by
which the person to be arrested can be identified with reasonable certainty.” Id. at 371
(citing Wis. Stat. § 968.04(3)(a)(4)). Because “the particularity or reasonable certainty
requirements [of the statute did] not absolutely require that a person’s name appear in the
complaint or warrant,” id. at 371, the Wisconsin court concluded “that for purposes of
identifying ‘a particular person’ . . . , a DNA profile is arguably the most discrete, exclusive
means of personal identification” and, therefore, satisfied the “reasonable certainty”
requirements of an arrest warrant, id. at 372 (citing Bieber, 150 U. Pa. L. Rev. at 1085 (“A
genetic code describes a person with far greater precision than a physical description or a
name.”)).
Several jurisdictions have addressed the issue since Dabney and most have concluded
that inclusion or reference to a unique DNA profile in a “John Doe” arrest warrant or
indictment sufficiently describes a person to satisfy statutory requirements. In State v.
Danley, the Ohio Court of Common Pleas cited Dabney with approval and held that an
affidavit of complaint and arrest warrant against “John Doe,” which identified the suspect
by gender and a DNA profile, was sufficient to commence the criminal action, thereby tolling
the statute of limitations. 853 N.E.2d 1224, 1226-28 (Ohio Ct. Com. Pl. 2006). More
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recently, in People v. Robinson, the California Supreme Court ruled that an arrest warrant
that described the suspect only as “John Doe, unknown male” with a unique 13-loci DNA
profile adequately identified the defendant under both the Fourth Amendment and
California’s statutory scheme, thus timely commencing the prosecution. 224 P.3d 55, 75-76
(Cal. 2010).7 Finally, in Dixon, the Massachusetts Supreme Court observed that a DNA
profile is more than a description; “it is, metaphorically, an indelible ‘bar code’ that labels
an individual’s identity with nearly irrefutable precision.” 938 N.E.2d at 885 (citing NRC
at 2, 7, 9). Consequently, that court held that a “John Doe” indictment incorporating the
suspect’s unique DNA profile and additional physical description “unassailably fulfil[led]
the constitutional requirement that an indictment provide ‘words of description which have
particular reference to the person whom the Commonwealth seeks to convict,’” sufficiently
identified the defendant, and tolled the statute of limitations.8 Id. at 885-86.
Our research yielded only one instance in which a court has dismissed a prosecution
that involved an effort at DNA identification in an arrest warrant. In State v. Belt, 179 P.3d
443 (Kan. 2008), the Kansas Supreme Court invalidated six separate warrants charging “John
Doe” in sexual assault and rape cases. While the high court in Kansas agreed with the
reasoning of Dabney and Robinson, those cases were distinguishable on their facts because
neither the arrest warrants nor the affidavits of complaint in the Kansas cases set forth the
unique DNA profiles of the suspects. Id. at 450. Instead, some of the warrants identified the
suspects by only two DNA loci, which are shared by all humans, and in another warrant the
suspect was identified only as “John Doe” without any accompanying DNA loci. Id. at 449-
50. The court held that the State should have included the entire DNA loci in order to
identify the unique DNA profile of the suspects, and without such information, the “John
Doe” warrants did not meet the “reasonable certainty” requirements of the Kansas statute.
Id. at 450-51; see also Kan. Stat. Ann. § 22-2304(a) (West 2011).
We are persuaded that a DNA profile exclusively identifies an accused with nearly
irrefutable precision and, as a general rule, satisfies the particularity requirements of the
Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee
Constitution. In our view, the “John Doe” designation in the warrant at issue, coupled with
the detailed DNA profile of the assailant, identified the Defendant with “reasonable
certainty,” as is required by both constitution and statute. See U.S. Const. amend. IV; Tenn.
7
See Cal. Penal Code § 815 (“A warrant of arrest shall specify the name of the defendant or, if it is
unknown to the . . . issuing authority, the defendant may be designated therein by any name.”).
8
The court endorsed the practice of incorporating a DNA profile into a “John Doe” indictment that
also includes physically descriptive information; however, the court left unanswered “the question whether
an indictment naming only a DNA profile, without more, comports with the particularity requirement
of . . . the Massachusetts Constitution.” Id. at 884 n.16 (emphasis added).
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Const. art. I, § 7; Tenn. Code Ann. § 40-6-208; Tenn. R. Crim. P. 4(c)(1)(B). As a result, the
prosecution was properly and timely commenced within the eight-year statute of limitations
by the filing of the “John Doe” arrest warrant on February 2, 2000.9
As a second issue, the Defendant generally cites to the Sixth Amendment to the
United States Constitution in support of his argument that his DNA profile was insufficient
to provide him with notice that he had been charged with an offense. Because most people
do not know their DNA profile, the Defendant argues that identification by that means is
constitutionally insufficient. We disagree.
The Sixth Amendment provides, in part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.”
U.S. Const. amend. VI. The related provision of the Tennessee Constitution states “[t]hat
in all criminal prosecutions, the accused hath the right . . . to demand the nature and cause
of the accusation against him.” Tenn. Const. art. I, § 9. Generally, the protections of the
Sixth Amendment attach at arraignment or when a defendant first appears before a judicial
officer and is informed of the charge in the complaint and of various rights in further
proceedings. See 1 Wayne R. LaFave et al., Criminal Procedure § 1.4(g), at 135 (3d ed.
2007); see also Garland v. Washington, 232 U.S. 642, 644 (1914) (stating that the purpose
of the arraignment is to “inform the accused of the charge against him and obtain an answer
from him”); State v. Sutton, 761 S.W.2d 763, 769 (Tenn. 1988) (“Arraignment in this state
is a proceeding to inform an accused of the charges instituted by the grand jury, to provide
him with a copy, and to ‘call him to plead.’”).10 Accordingly, the fact that an arrest warrant
does not refer to a defendant by name does not implicate the notice provisions of the Sixth
9
Related to this argument, the Defendant contends that only the General Assembly can statutorily
create a tolling provision for the statute of limitations, and because the General Assembly has not acted, this
Court is without authority to judicially create a tolling provision. See Matthews v. State, No. W2005-02939-
CCA-R3-PC, 2006 WL 2843291, at *4 (Tenn. Crim. App. Oct. 5, 2006) (declining to adopt a judicially
created rule that would toll the statute of limitations pending identification of the assailant). Our analysis,
however, does nothing more than interpret existing statutes and rules governing the filing of arrest warrants
and applicable statutes of limitations, which is our responsibility. “It is the duty of the court to enforce [the]
law as it is found upon the statute book[.]” Scheibler v. Mundinger, 9 S.W. 33, 39 (Tenn. 1888); see also
Jackson v. Jackson, 210 S.W.2d 332, 334 (Tenn. 1948) (“As a Court we take the [law] as it was written by
the Legislature, not as we would write it.”).
10
Tennessee Rule of Criminal Procedure 10(b)(3) provides that “[t]he arraignment shall consist
of . . . reading the indictment, presentment, or information to the defendant or stating to the defendant the
substance of the charge.”
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Amendment or article I, section 9 of the Tennessee Constitution.11
Moreover, defendants in other cases in which “John Doe” warrants have been issued
have made similar arguments that have ultimately proven unsuccessful. In Dabney, the
defendant argued deprivation of due process, complaining of the insufficient notice of the
nature of the charges because the original arrest warrant identified him only by his DNA
profile. 663 N.W.2d at 374. The Wisconsin court concluded that “[a] defendant is not
entitled to specific notice that the state is issuing a complaint and seeking an arrest warrant.
. . . [A] warrant is issued without any involvement from the defendant and the defendant is
not provided with any notice of the underlying charge until the warrant is executed.” Id. In
that case, the warrant was not executed until Dabney’s name was substituted for “John Doe,”
and the fact that Dabney did not know his specific DNA profile or have any specific training
or ability to analyze his DNA profile was deemed inconsequential. Id. Practically speaking,
no suspect, whether identified by proper name or not, is involved in the issuance of an arrest
warrant. In fact, a suspect will often be unaware that a warrant for his or her arrest exists
until it is executed. As in Dabney, the arrest warrant in the case before us was not executed
until the Defendant had been identified through DNA analysis and comparison. The
indictment was likewise amended to reflect the Defendant’s proper name after the DNA
match was secured. The minutes of the trial court reflect that the Defendant was arraigned
upon the amended indictment, which included his proper name.
Similarly, in People v. Martinez, 855 N.Y.S.2d 522, 523-24 (N.Y. App. Div. 2008),
the New York Supreme Court rejected the defendant’s claim that the “John Doe” indictment
issued in that case, which identified the defendant only by his DNA profile, deprived him of
his constitutional right to fair notice of the accusations made against him. The court held that
[t]o satisfy th[e] notice requirement [of the Sixth Amendment], the indictment
must allege all the legally material elements of the charged crime and state that
[the] defendant in fact committed the acts which comprise the elements. The
“basic essential function of an indictment . . . is simply to notify the defendant
of the crime of which he stands indicted[.]”
Id. at 525 (quoting People v. Iannone, 384 N.E.2d 656, 662-63 (N.Y. 1978)). The court
11
The California Supreme Court rejected the defendant’s allegation in Robinson that he was
provided insufficient notice of the charges against him under the particularity requirement of the Fourth
Amendment. As that court noted, the particularity requirement relates to the validity of the instrument and
“has nothing to do with notice to the subject that a warrant has issued or charges have been filed. The subject
receives notice when a warrant is executed, or an accusatory pleading is served, and no other notice is
necessarily required.” Robinson, 224 P.3d at 75 n.29.
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further explained that the defendant’s right to notice of the charges attached at his
arraignment, when he was informed of the charges against him and given a copy of the
indictment, and not before that time.
IV. Conclusion
A criminal prosecution is commenced if, within the statute of limitations for a
particular offense, a warrant is issued identifying the defendant by gender and his or her
unique DNA profile. Furthermore, a superseding indictment in the defendant’s proper name
provides the requisite notice of the charge. The judgment of conviction is, therefore,
affirmed. Costs are taxed to Robert Jason Burdick, and his surety, for which execution may
issue if necessary.
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GARY R. WADE, CHIEF JUSTICE
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