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IN THE COURT OF APPEALS OF IOWA No. 8-822 / 07-1942 Filed February 4, 2009 STATE OF IOWA, Plaintiff-Appellee, vs. MARTIN SINCLAIR DUFFY, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Jasper County, Dale B. Hagen, Judge.

Martin Duffy appeals his judgment and sentence for first-degree murder, contending (1) the taking of a DNA sample violated his constitutional rights, (2) there was insufficient evidence to support the jurys finding of guilt, and (3) a $150,000 restitution order violated the ex post facto clause of the United States Constitution. JUDGMENT AFFIRMED, SENTENCE PARTIALLY VACATED

AND REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Steve Johnson, County Attorney, and Michael K. Jacobsen and Scott W. Nicholson, Assistant County Attorneys, for appellee.

Heard by Sackett, C.J., and Vaitheswaran and Potterfield, JJ.

2 VAITHESWARAN, J. Martin Duffy appeals his judgment and sentence for first-degree murder. He contends (1) the taking of a DNA sample violated his constitutional rights, (2) there was insufficient evidence to support the jurys finding of guilt, and (3) a $150,000 restitution order violated the ex post facto clause of the United States Constitution. I. Background Facts and Proceedings In 1986, Karen Webers partially clothed body was found on the side of a gravel road. She had three stab wounds to the neck and one defensive wound to the arm. Webers murder went unsolved for over twenty years. In 2006, Martin Duffy was on probation for operating a motor vehicle while intoxicated. His probation officer determined that, pursuant to a 2005 law, Duffy would have to provide a saliva sample for DNA testing prior to being released from probation. A sample was taken, sent to the Department of Criminal

Investigations crime lab, analyzed, and entered into the Combined DNA Index System (CODIS). Duffys DNA profile matched the DNA found on cigarette butts present at the Weber crime scene. Duffy was taken into police custody and questioned about the death of Karen Weber. He eventually confessed to killing Weber with a knife. The State charged Duffy with first-degree murder. Duffy filed a motion to suppress his confession, the fruits of that confession, the DNA sample taken by his probation officer, and the fruits of that sample. He asserted that he was under the influence of controlled substances at the time of his confession, he did not fall within the purview of the 2005 law authorizing the submission of DNA

3 samples, and the evidence was obtained in violation of the United States and Iowa Constitutions. The district court denied the motion and the case proceeded to trial. A jury found Duffy guilty as charged and the district court imposed

sentence, which included an order to pay restitution of $150,000. II. Constitutionality of DNA Extraction The DNA statute, passed in 2005, provides as follows: A person convicted, adjudicated a delinquent, civilly committed as a sexually violent predator, or found not guilty by reason of insanity, prior to the effective date of this Act, [June 14, 2005,] who would otherwise be required to submit a DNA sample under this Act, and who is under the custody, control, or jurisdiction of a supervising agency, shall submit a DNA sample prior to being released from the supervising agencys custody, control, or jurisdiction. 2005 Iowa Acts ch. 158,

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