LIHUE — A bank robbery suspect cannot be compelled to provide DNA samples without first showing the evidence that it would be used for comparison, a 5th Circuit Court judge ruled. Chief Judge Randal Valenciano denied on Thursday the prosecution’s
LIHUE — A bank robbery suspect cannot be compelled to provide DNA samples without first showing the evidence that it would be used for comparison, a 5th Circuit Court judge ruled.
Chief Judge Randal Valenciano denied on Thursday the prosecution’s request to compel defendant Joshua Carlsen, 36, of Kapaa, to provide DNA samples prior to producing DNA evidence with which the prosecution plans to compare the sample at trial.
Police arrested Carlsen along Kuhio Highway near the Hauaala Road intersection the night following a Bank of Hawaii-Kapaa branch robbery sometime between 12:50 and 1 p.m. Jan. 28. He matched the description of a suspect who handed a bank teller a note demanding cash and threatened use of a gun that was not shown.
Police discovered about $5,000 in cash rolled up in a shirt in his bathroom cabinet. The denominations were in the ranges reported missing from the bank.
The motion to compel the defendant to provide deoxyribonucleic acid (DNA) samples was filed by County Deputy Prosecuting Attorney Shauna Lee Cahill.
The DNA samples would be used for analysis and comparison with any DNA that is recovered from the swabbings that investigators took from the bank, the defendant’s home and items within.
The results of the testing have not yet returned from the lab, Cahill said.
State Deputy Public Defender Samuel Jajich objected to the motion. Without evidence to test a match, then the means to compel DNA from the defendant must satisfy probable cause and require a grand jury investigation or other court order.
Cahill said the probable cause argument was satisfied with the initial police investigation and the preliminary hearing that found sufficient evidence existed for second-degree robbery.
Federal case law is more consistent than the state’s in this hybrid issue of probable cause issue, Jajich said, but the objection is in the interest of providing the best possible defense for his client.
Valenciano’s denial to the motion was without prejudice in order to allow the prosecutors the opportunity to make a new request should investigators present DNA evidence that was produced at the scene. This is a “chicken and the egg” issue and until there is evidence to test then the request to compel is a waste of time and resources, Valenciano said.
Cahill said the state would be requesting to continue the trial date past May 5. The court set a hearing on the motion for Tuesday.
Carlsen remains in custody at Kauai Community Correction Center on $250,000 bail.
