July 17, 2019

Colorado Court of Appeals: No Time Limit Exists for Prosecuting Sexual Assaults Where DNA Proves Defendant’s Identity

The Colorado Court of Appeals issued its opinion in People v. Shores on Thursday, September 8, 2016.

Sexual Assault—Statute of Limitations—CRE 404(b) Evidence.

In 1994, an elderly woman was found badly beaten and sexually assaulted. No suspect was initially identified. The victim died in 2000 from cancer. In 2010, the DNA evidence from the victim’s case was matched to Shores’s DNA, but the district attorney’s office chose not to file charges against Shores at that time. Several years later, the Denver Police Department learned that Shores had been tied, through DNA, to a 2013 sexual assault of a woman, D.B., in Texas. This information led to the 2014 charges against Shores for first degree sexual assault and a crime of violence enhancer. Shores was convicted as charged.

On appeal, Shores argued that the trial court erred in denying his motion to dismiss for failure to file charges within the 10-year statute of limitations in effect in September 1994. The change in the statute, however, provides that there is no time limit for prosecuting certain sexual assaults committed after July 1, 1991, if (1) the defendant’s identity is determined in whole or in part by DNA and (2) the offense is reported to a law enforcement agency within 10 years after its commission. Shores conceded that his identity was determined by DNA but argued that the second prong was not met because the victim herself did not report the crime to law enforcement. The statute does not require that the victim be the person who reported the offense, only that the offense was reported. Here, the police had known about the physical assault on the victim from their response to the initial call, and they received further information from the hospital about her condition, including the results of the sexual assault examination kit.  Accordingly, there was no statutory time limit in which to file charges against Shores, and the trial court correctly denied his motion to dismiss.

Shores next argued that the trial court abused its discretion in admitting CRE 404(b) evidence of the 2013 sexual assault in Texas. The evidence relating to D.B. was probative of the ultimate fact of whether Shores committed the offense charged and was logically relevant independent of bad character evidence because it had a tendency to make it more probable that the victim did not consent than it would be without the evidence. The court acted within its discretion in determining that the danger of unfair prejudice did not outweigh the probative value of this evidence.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Harmless Error to Include Inconclusive DNA Test Results as Evidence

The Colorado Court of Appeals issued its opinion in People v. Marks on Thursday, December 3, 2015.

Robbery—Murder—DNA Evidence—Expert Testimony—Jury Instruction—Theory of Defense.

On January 25, 2011, two armed men forced their way into the home of S.W., a marijuana dealer, in search of money and marijuana. The robbery was interrupted by the arrival of S.W.’s husband and son. As S.W.’s husband struggled with the robber who was carrying a shotgun, the other robber fired his handgun. One of the bullets struck S.W. and killed her. Marks was charged with the crime.

On appeal, Marks contended that the trial court erred in admitting evidence of “inconclusive” and “no conclusion” DNA results without evidence of their statistical significance. The “inconclusive” DNA results were harmless because they were irrelevant and didn’t prove anything. However, the “no conclusion” testing result meant that it could be determine that a person was included as a possible contributor, but the “statistical weight” could not be provided for the result and, therefore, it did not reveal a conclusion. That left the jury with only half the necessary information: that Marks was included, or could not be excluded, as a possible contributor to the DNA on various items of evidence. Without the probability assessment, the probative value of the “no conclusion” results were substantially outweighed by the risk of unfair prejudice and misleading the jury. The district court therefore abused its discretion in admitting that evidence. Given the remaining evidence admitted at trial, however, the error was harmless.

Marks also contended that the trial court erred in refusing to give his tendered jury instruction regarding evidence that an alternate suspect, Rocha-Lovatos, committed the crime. Marks was only entitled to a theory of defense instruction, which he declined to submit. Therefore, the trial court did not err in refusing to give the tendered alternate suspect instruction.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Suppression of DNA Evidence Not Necessary Despite Warrantless DNA Collections

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, July 16, 2015.

Sexual Assault—Motion to Suppress—DNA Evidence—Rape Shield Statute—Prior False Reports.

Lancaster was convicted of numerous counts of kidnapping, sexual assault, menacing, and third-degree assault. He was sentenced to an indeterminate prison term of twenty-five years to life on the sexual assault counts.

On appeal, Lancaster contended that the trial court erred in denying his motion to suppress DNA evidence that he asserted was developed as a result of violations of his federal and state constitutional rights. After Lancaster was arrested on other charges, the police took a buccal swab of Lancaster’s mouth, which resulted in a match with the DNA profile of the man who had sexually assaulted the victim in this case. Based on this initial match, the police obtained an order to collect another DNA sample from Lancaster, which was also a match with the DNA profile of the man who had sexually assaulted the victim in this case. Because neither of the subsequent crimes for which Lancaster was arrested were felonies, the police were not authorized to take the samples. However, the police’s violation of the law was not willful, and the government’s interest in the DNA sample was not outweighed by Lancaster’s privacy interests. Therefore, the trial court did not err in denying Lancaster’s motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him.

Lancaster also contended that the trial court abused its discretion and violated his constitutional right to present a defense when it denied without an evidentiary hearing his motion to allow him to introduce evidence that the victim had a history of making false allegations of sexual assault. The rape shield statute requires a defendant to make an offer of proofthat the alleged victim made multiple reports of prior or subsequent sexual assaults that were false. Here, although the victim made two prior allegations of sexual assault against other individuals, Lancaster’s offer of proof that the second charge was dismissed was insufficient to demonstrate the falsity of the victim’s second report. Accordingly, Lancaster’s offer of proof demonstrated, at most, only one prior false report of sexual assault. The offer was thus insufficient to warrant a hearing under the rape shield statute. Further, because Lancaster denied that he knew the victim, he was not denied the right to present a complete defense because this evidence was contrary to his theory of the case.

Finally, Lancaster contended that the trial court misapprehended the sentencing range for sexual assault and erroneously sentenced him outside the presumptive range. Because the record was not sufficiently developed for the Court of Appeals to determine this issue, the sentences on the sexual assault counts were vacated and the case was remanded for resentencing on those counts.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: DNA Swab Evidence from Juvenile Offender Need Not Be Suppressed

The Colorado Court of Appeals issued its opinion in People v. Casillus on Thursday, February 26, 2015.

Deferred Adjudication—Juvenile—Probation—DNA Collection—Suppression of Evidence—Fourth Amendment.

A juvenile court placed defendant Ismael Casillas on a deferred adjudication. The terms of the deferred adjudication required him to be under the supervision of the juvenile probation department with standard terms and conditions. Defendant’s juvenile probation officer later swabbed his cheek for a DNA sample. This DNA sample led to defendant—now an adult—being first linked to a carjacking and, ultimately, being convicted of criminal mischief, which he now appeals.

Defendant contended that evidence of his DNA should be suppressed because its collection violated the juvenile DNA collection statute and the Fourth Amendment. Because defendant stipulated to a one-year deferred adjudication and sentence on his juvenile charge and successfully completed his deferred adjudication, he was not required to submit to a cheek swab. Therefore, the cheek swab violated the juvenile DNA collection statute and the Fourth Amendment. However, because defendant has not established that any violation of the juvenile DNA collection statute was willful and recurrent, the trial court did not err by denying his motion to suppress based on a statutory violation. Furthermore, the suppression of the DNA evidence obtained from the juvenile probation officer’s cheek swab was only a supervisory function under the direction of the juvenile court and would have no deterrent value. As a result, suppression of the DNA evidence was neither a necessary nor appropriate remedy for violation of defendant’s Fourth Amendment rights. The trial court’s denial of defendant’s motion to suppress the DNA sample was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: DNA Test Unlikely to Prove Defendant’s Factual Innocence

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DNA Evidence—Testing—Due Process—Destruction of Evidence.

This appeal stemmed from defendant’s 1988 conviction for kidnapping and sexual assault. On direct appeal, it was determined that the trial court had not abused its discretion in denying defendant’s request for DNA testing because “defendant was seen committing the offense by a police officer and was identified by the victim,” making “the utility of DNA testing . . . speculative at best.” Defendant thereafter filed a Crim.P. 35(c) motion requesting post-conviction testing of DNA. The prosecution conducted DNA testing on the victim’s underwear and did not find any traces of semen and saliva. Defendant then requested his own DNA testing, but the evidence had been destroyed.

On appeal, defendant requested a remedy for the negligent destruction of the underwear. However, defendant was not entitled to testing of the underwear under CRS § 18-1-413 in the first instance because he failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. Therefore, the trial court did not err and defendant was not entitled to relief under CRS § 18-1-414(2)(b). The trial court’s determination that the destruction of the evidence did not violate defendant’s due process rights was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Court’s Determination that Y-STR Method of DNA Testing Reliable Affirmed

The Colorado Court of Appeals issued its opinion in People v. Tunis on Thursday, December 5, 2013.

Sexual Assault—Burglary—Reliability of DNA Evidence—First Impression—Expert Testimony—Jury—Sexually Violent Predator.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual assault and second-degree burglary. The judgment was affirmed and the sentence was vacated in part.

Defendant challenged, as an issue of first impression in Colorado, the reliability of certain DNA evidence—specifically, the Y Chromosome-Short Tandem Repeat(Y-STR) analysis—and argued that the trial court erred by admitting it. The court acted within its discretion by determining that the scientific principles underlying the use of the Y-STR analysis, which only examines DNA types on the Y chromosome, were reliable. The statistical methods generally have been accepted by other laboratories, similar statistical methods have been used in other fields, and other jurisdictions have admitted similar evidence as reliable. In addition, the evidence was properly admitted through expert testimony.

Defendant also contended that the court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to prove bias in the replacement, so the trial court was well within its discretion to dismiss the sleeping juror and to replace him with the alternate juror.

The Supreme Court granted certiorari and remanded this case to the Court of Appeals to determine whether defendant is a sexually violent predator based on the criterion that he “promoted a relationship primarily for the purpose of sexual victimization.” Defendant’s actions of delivering a baby blanket to the victim a couple months before the assault at the request of his grandmother and asking the bartender the night of the assault if victim’s husband was home did not constitute “promoting a relationship primarily for the purpose of sexual victimization.” Therefore, the sexually violent predator portion of defendant’s sentence was vacated.

Summary and full case available here.