Three Connecticut Appellate Court judges heard arguments over whether Kevin Benefield’s consent to provide a saliva sample in 1986 covered a more sophisticated DNA test in 2009 that helped get him convicted.
“In 1986, no objective reasonable person could have known they could get a DNA profile from a saliva test,” said Benefield’s appointed lawyer, Daniel Krisch. “The development of DNA testing was a quantum leap in police work.”
In 2012, Benefield was convicted of murder in the killing of Barbara Pelkey, a mother of four children who worked the overnight shift in a Wallingford industrial park. Benefield was one of dozens of park workers who agreed to provide saliva samples in the early days of the murder investigation. Another man, Kenneth Ireland, was ultimately charged and convicted of the crime and spent 21 years in prison. But a DNA test sought by Ireland’s lawyers at the Connecticut Innocence Project cleared Ireland and brought a fresh round of testing that eventually implicated Benefield.
Senior Assistant State’s Attorney Ronald Weller argued that Judge David Gold made the right decision when admitting the DNA evidence at the trial.
“Once the defendant gave that sample, he relinquished all expectations of privacy in that sample,” Weller said. “He can’t put it back in his mouth. A defendant who doesn’t place a scope of limitation on consent cannot place a limitation on appeal.”
Judges Douglas Lavine, Michael Sheldon and Raheem L. Mullins questioned the attorneys on cases in the Connecticut Supreme Court and U.S. Supreme Court regarding law enforcement and ever-evolving technology.
Lavine asked Weller if a person gives consent to search his home and a year later new technology develops does that mean that police have unlimited power to return to the home? Weller responded that a new warrant would be needed, but that another test of a saliva sample is not the same as another search of a home.
Sheldon asked Krisch that if the saliva sample was taken in September 1986 but a new saliva test was introduced in October 1986, would Benefield’s sample be exempt from undergoing that test. Where is the time cutoff?
Weller argued that Benefield had ample time to restrict his consent on the saliva sample when it was taken and after Ireland was incarcerated and released. He also had the option not to consent to a sample.
“If you want to limit the search, you have to do it,” Weller said outside of court.
But Krisch countered it’s unreasonable to expect a defendant to say you can do test A but not test B.
A written decision is expected in two to five months, Krisch said.
Mary Ellen Godin Record-Record Journal
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