Ct. Appeals 2/18/2010

No. 06CA1235. People v. Collins.Sexual Assault—DNA—Voluntary Consent—Challenge for Cause—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of second-degree kidnapping, first-degree sexual assault, and attempted aggravated robbery. He also appealed the sentence imposed. The judgment and sentence were affirmed.

On December 4, 1999, while walking home after working a late-night shift at a downtown Denver bar, the victim (K.D.) was confronted, kidnapped, robbed, and sexually assaulted by an unknown assailant. In 2000, police developed a DNA profile from semen collected from K.D.’s rape kit, but were unable to identify a suspect at that time. In 2003, Missouri police had defendant in custody, noticed that defendant had a Colorado arrest record, and forwarded defendant’s DNA profile to the Denver police. Colorado law enforcement officials were able to obtain a match of defendant’s DNA profile from the sample taken in Missouri to the sample retrieved as evidence from the December 4, 1999 sexual assault. Following the jury trial, the trial court sentenced defendant to forty-eight years on the kidnapping charge, thirty-two years-to-life on the sexual assault charge, and eight years on the attempted aggravated robbery charge, all to run consecutively.

On appeal, defendant contended the trial court erred in denying his motion to suppress all evidence obtained as a result of a warrantless search; namely, the collection of his saliva and DNA in Missouri in February 2003. The Court of Appeals disagreed. A defendant’s DNA sample may be used in other investigations, regardless of whether defendant is informed that his or her DNA sample might be used for this purpose, as long as defendant is not subject to any threat, coercion, or other undue police influence when giving consent. Here, defendant verbally consented to providing a DNA sample, his consent was voluntary, and he did not limit his consent in any way.

Defendant contended that the trial court abused its discretion when it denied his challenge for cause to a prospective juror. The Court disagreed. The record supports the trial court’s explicit factual finding that the prospective juror would express her convictions and opinions during deliberations.

The Court also rejected defendant’s contention that the prosecutor committed reversible misconduct when she improperly described defense counsel’s theory of reasonable doubt as "absurd." Taken in context, the record shows that the remark was not a personal attack on defense counsel. Rather, the prosecutor’s remark was merely a response to defense counsel’s theory of the case. Therefore, the prosecutor’s comment was not improper. The judgment and sentence were affirmed.

No. 07CA2136. People v. Chavez. Possession—Dangerous Weapon—Domestic Violence—Probable Cause—Fourth Amendment.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of possessing a dangerous weapon. The judgment was affirmed.

Defendant and a woman lived with the woman’s two children. One night, the women’s daughter fled to a neighbor’s home, where she called 911 to report domestic violence between defendant and the woman. Officers entered defendant’s home through a slightly opened back door after repeatedly knocking and not getting response from the occupants. After seeing the woman in the kitchen, the officer ordered any others inside the house to identify themselves. Defendant then came forward, unarmed.

The officer separately asked defendant and the woman whether any weapons were inside the home. Defendant said there were not but the woman told police where they could find weapons in the home. The officers took possession of two guns owned by defendant, including a sawed-off shotgun. No. 06CA1235. People v. Collins. Sexual Assault—DNA—Voluntary Consent—Challenge for Cause—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of second-degree kidnapping, first-degree sexual assault, and attempted aggravated robbery. He also appealed the sentence imposed. The judgment and sentence were affirmed.

On December 4, 1999, while walking home after working a late-night shift at a downtown Denver bar, the victim (K.D.) was confronted, kidnapped, robbed, and sexually assaulted by an unknown assailant. In 2000, police developed a DNA profile from semen collected from K.D.’s rape kit, but were unable to identify a suspect at that time. In 2003, Missouri police had defendant in custody, noticed that defendant had a Colorado arrest record, and forwarded defendant’s DNA profile to the Denver police. Colorado law enforcement officials were able to obtain a match of defendant’s DNA profile from the sample taken in Missouri to the sample retrieved as evidence from the December 4, 1999 sexual assault. Following the jury trial, the trial court sentenced defendant to forty-eight years on the kidnapping charge, thirty-two years-to-life on the sexual assault charge, and eight years on the attempted aggravated robbery charge, all to run consecutively.

On appeal, defendant contended the trial court erred in denying his motion to suppress all evidence obtained as a result of a warrantless search; namely, the collection of his saliva and DNA in Missouri in February 2003. The Court of Appeals disagreed. A defendant’s DNA sample may be used in other investigations, regardless of whether defendant is informed that his or her DNA sample might be used for this purpose, as long as defendant is not subject to any threat, coercion, or other undue police influence when giving consent. Here, defendant verbally consented to providing a DNA sample, his consent was voluntary, and he did not limit his consent in any way.

Defendant contended that the trial court abused its discretion when it denied his challenge for cause to a prospective juror. The Court disagreed. The record supports the trial court’s explicit factual finding that the prospective juror would express her convictions and opinions during deliberations.

The Court also rejected defendant’s contention that the prosecutor committed reversible misconduct when she improperly described defense counsel’s theory of reasonable doubt as "absurd." Taken in context, the record shows that the remark was not a personal attack on defense counsel. Rather, the prosecutor’s remark was merely a response to defense counsel’s theory of the case. Therefore, the prosecutor’s comment was not improper. The judgment and sentence were affirmed.

No. 07CA2136. People v. Chavez. Possession—Dangerous Weapon—Domestic Violence—Probable Cause—Fourth Amendment.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of possessing a dangerous weapon. The judgment was affirmed.

Defendant and a woman lived with the woman’s two children. One night, the women’s daughter fled to a neighbor’s home, where she called 911 to report domestic violence between defendant and the woman. Officers entered defendant’s home through a slightly opened back door after repeatedly knocking and not getting response from the occupants. After seeing the woman in the kitchen, the officer ordered any others inside the house to identify themselves. Defendant then came forward, unarmed.

The officer separately asked defendant and the woman whether any weapons were inside the home. Defendant said there were not but the woman told police where they could find weapons in the home. The officers took possession of two guns owned by defendant, including a sawed-off shotgun.

After being charged with possession of a dangerous weapon, defendant moved to suppress the sawed-off shotgun. The trial court held that the officers’ actions were reasonable and denied the motion to suppress.

On appeal, defendant contended that the police violated the Fourth Amendment by entering the home, thereby tainting the woman’s consent and requiring suppression of the shotgun. The Court of Appeals disagreed. The daughter’s report of a physical altercation involving her mother and defendant established probable cause that a domestic violence crime had occurred or was occurring in the home. Further, the daughter had reported that weapons were inside the home, and the occupants failed to answer after the officers repeatedly knocked on the door. Therefore, the officers reasonably entered defendant’s home. The judgment was affirmed. After being charged with possession of a dangerous weapon, defendant moved to suppress the sawed-off shotgun. The trial court held that the officers’ actions were reasonable and denied the motion to suppress.

On appeal, defendant contended that the police violated the Fourth Amendment by entering the home, thereby tainting the woman’s consent and requiring suppression of the shotgun. The Court of Appeals disagreed. The daughter’s report of a physical altercation involving her mother and defendant established probable cause that a domestic violence crime had occurred or was occurring in the home. Further, the daughter had reported that weapons were inside the home, and the occupants failed to answer after the officers repeatedly knocked on the door. Therefore, the officers reasonably entered defendant’s home. The judgment was affirmed.