Duane Lee v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
KATHERINE MODESITT COOPER
ANN L. GOODWIN
Deputy Attorney General
FILED
Indianapolis, Indiana
May 17 2012, 9:16 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DUANE LEE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1105-CR-225
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt Eisgruber, Judge
Cause No. 49G01-0911-FA-94526
May 17, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Following a home invasion, robbery, rape, and police chase, Duane Lee, who was then
seventeen years old, was arrested. While in custody, authorities acted on Lee’s mother’s
consent to swab his hands, fingers, and penis for DNA evidence. DNA test results of such
swabs were entered into evidence and a jury found Lee guilty of thirteen offenses, upon
which the trial court entered a judgment of conviction: burglary as a Class B felony, rape as a
Class A felony, six counts of criminal deviate conduct as Class A felonies, robbery as a Class
B felony, resisting law enforcement as a Class A misdemeanor, criminal confinement as a
Class B felony, intimidation as a Class C felony, and pointing a firearm as a Class D felony.
On appeal, Lee raises a single issue, which we restate as whether the trial court committed
fundamental error in allowing the State to introduce into evidence the DNA test results
obtained pursuant to Lee’s mother’s consent without her meaningful consultation with Lee
and without Lee knowingly and voluntarily waiving his rights. We conclude that the police
acted improperly in swabbing Lee’s penis and the trial court erred in allowing results of that
DNA test into evidence. We also conclude that other evidence presented renders the error
harmless; therefore, we affirm Lee’s convictions.
Facts and Procedural History1
During the evening of November 11, 2009, three men, wielding at least one gun
among them, broke down the door to K.P.’s boyfriend’s apartment and entered the home.
1
On April 18, 2012, we held oral argument at the Walden Inn and Conference Center, DePauw
University, in Greencastle, Indiana. We thank counsel for their advocacy and Walden Inn and DePauw
2
One wore a black shirt and a ski mask, the second wore a blue shirt, and the third wore a red
shirt. They ordered K.P. to lie on the floor while they ransacked the home for valuables and
then left. Moments later, before K.P. could leave the apartment to report what had happened,
the three men returned.
Ordered at gunpoint, K.P. walked to the bathroom and removed all of her clothes but
her socks. K.P. was five months pregnant and told them so. At least one fondled her breasts
and then two left the bathroom and closed the door leaving K.P. alone with the man in the
black shirt and ski mask and his gun. The man in the black shirt forced his fingers into
K.P.’s vagina, unzipped his pants, and ordered her to place his penis in her mouth. She did
so until he ejaculated in her mouth. He left the bathroom for a moment and upon returning
he ordered she place his penis in her mouth again. The man in the blue shirt also entered the
bathroom, placed a gun to K.P.’s head, and demanded she perform oral sex upon him, too.
K.P. threw up and the man in the blue shirt forced his penis in her mouth again before exiting
the bathroom. When the man in the blue shirt left the bathroom, the man in the black shirt
forced his penis into K.P.’s mouth yet again. At some point when the man in the black shirt
was speaking to K.P., she recognized his eyes and mouth as those of Lee. She had met Lee
before and knew him to be her boyfriend’s sister’s children’s father. Transcript at 102-03.
The man in the blue shirt returned to the bathroom where K.P. was and partially inserted his
penis into K.P.’s anus, but K.P. removed it and the man in the blue shirt began violent
vaginal intercourse with K.P. One of the other two men told the man in the blue shirt that
University for their hospitality.
3
they were leaving, and the three males then left the apartment.2 K.P. sought help and her
neighbor called police.
Officer Aaron Hamer, responding to the emergency call, spotted a male crouched in
dark clothes near K.P.’s apartment and asked the figure to show his hands because Officer
Hamer thought he saw a gun in the figure’s pocket. The figure began running and Officer
Hamer chased him through the neighborhood, running across yards and vaulting fences.
Officer Hamer ordered the figure to stop several times and tased the figure, but the figure
ignored the orders to stop, broke away from the taser, and continued running. Officer Hamer
finally caught up to and grabbed the figure, who punched and kicked Officer Hamer. Officer
Hamer handcuffed the figure, who then identified himself as Lee.3 Another officer soon
brought K.P. nearby in a police vehicle and shone a bright light on Lee, who was handcuffed
and standing next to a police vehicle for K.P. to see. K.P. told officers that he was one of the
perpetrators. A black ski mask, a gun, and a cellular phone were recovered along the route
that Officer Hamer chased Lee.
Lee was transported directly to the office of Detective Derek Cress, and Lee’s mother
also arrived there in response to a call from police. Lee’s mother was summoned because
Lee was under the age of eighteen. Id. at 309. Lee was either intoxicated or physically
exhausted, and Detective Cress had a difficult time waking Lee. Id. at 312. Lee requested
2
It appears from the record that during K.P.’s sexual assault, whomever of the three who was not with
K.P. was either vandalizing or continuing to plunder the home. The record also indicates the three targeted this
home because they sought drugs or cash from K.P.’s boyfriend, who lived there.
3
The record also indicates that, by this time, Officer Hamer answered in the affirmative when asked if
the figure wore black colored clothing. See Tr. at 226, 231.
4
use of the restroom and Detective Cress later testified he “helped him assisted [sic] him by
his arm and walked him down the hallway to the bathroom and in this kind of situation
[officers] leave the door open and usually a detective stands in the doorway and it was me
this time that did that and noticed Mr. Lee had to prop himself against the wall in order to
stand up and urinate.”4 Id. at 312-13. Lee was not permitted to wash his hands.
Detective Cress also presented Lee’s mother with a form by which to provide consent
to a search, informed her of her rights as Lee’s parent, and, at 3:35 a.m., requested she sign
the form so officers could obtain DNA swabs of Lee’s person. The typed form reads in
pertinent part: “I hereby CONSENT TO A SEARCH WITHOUT A WARRANT by officers .
. . of the following described residence and/or motor vehicle[.]” Ex. at 49 (State’s Exhibit
27). “[R]esidence and/or motor vehicle” were crossed out, and in its place was handwritten:
“Person – Duane T. Lee, B/M, . . . (17) DNA swabs taken from Lee’s hands, fingers, & penis
for the purpose of DNA comparison.” Id. Lee’s mother signed the form. Lee was then
transported to a hospital and a forensic examining nurse swabbed Lee’s hands, fingers, and
penis in a private room while an officer stood by for security purposes.5 While at Detective
Cress’s office, Lee’s mother also called Lee’s cellular phone and the phone, found along the
route Officer Hamer chased Lee, then rang.
4
During a sidebar, counsel for the State and Lee discussed with the trial court the potential relevance
of Lee appearing to the detective too tired or intoxicated to make a statement and whether to raise the issues of
1) Lee’s potential waiver of his Fifth Amendment right against self-incrimination, and 2) whether officers
sought a statement from him at all. See Tr. at 304-08.
5
Detective Cress testified that Lee was “more alert at this time and . . . easily accessible as far as
conversation.” Tr. at 314. Detective Cress also testified that he “briefly . . . explain[ed] to him why [the two
went to the hospital] and it’s to obtain some evidence from his person and a greater explanation is given once
5
The State charged Lee with fourteen counts: burglary as a Class B felony, rape as a
Class A felony, seven counts of criminal deviate conduct as Class A felonies, robbery as a
Class B felony, resisting law enforcement as a Class A misdemeanor, criminal confinement
as a Class B felony, intimidation as a Class C felony, and pointing a firearm as a Class D
felony.
At trial, the consent to search form which Lee’s mother signed was entered into
evidence and a laboratory technician testified as to the results of DNA testing on the swabs of
Lee’s hands, fingers, and penis. Specifically, DNA test results showed that K.P.’s DNA was
found on Lee’s penis. Id. at 907-08. K.P. could not be excluded as a contributor to DNA
traces on Lee’s left hand, and her DNA was positively identified in samples of Lee’s right
hand. Id. at 910-11. Lee did not object to any testimony or exhibit regarding his DNA
swabbing or the testing thereof. In addition, test results of DNA swabs of K.P.’s person
revealed that Lee cannot be excluded as a contributor to DNA from semen found in an
external lip swab of K.P., id. at 901, and of a dental floss sample of K.P., id. at 905.
According to DNA testing of the ski mask found along the route Office Hamer chased Lee,
Lee cannot be excluded as a contributor – his information was present in thirteen areas and at
a low level in the remaining two areas tested. Id. at 906-07. Lee’s fingerprints were also
found on the counter of the bathroom sink/vanity of K.P.’s home. Id. at 926-27. At trial K.P.
testified she finished cleaning the bathroom sink/vanity with Clorox or Lysol wipes just prior
to the intruders’ first entrance. Id. at 41.
the nurse gets there.” Id.
6
The jury found Lee guilty of all counts except for one count of criminal deviate
conduct. The trial court entered a judgment of conviction and, following a sentencing
hearing, sentenced Lee to fifty-two years, of which five were suspended. Lee now appeals
his convictions. Additional facts will be supplied as appropriate.
Discussion and Decision
I. Standard of Review
Lee argues the trial court committed fundamental error in allowing the State to
introduce into evidence DNA test results of the swabs it took of Lee’s hands, fingers, and
penis. Generally, the admission of evidence is within the trial court’s discretion and we
review decisions to allow items into evidence for an abuse of discretion. Ziebell v. State, 788
N.E.2d 902, 908 (Ind. Ct. App. 2003). However, where a party fails to object at the time an
item is introduced into evidence, any error in allowing the item into evidence must be
fundamental error to warrant reversal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).
Fundamental error is an exception to the general rule requiring contemporaneous objection
that is “extremely narrow, and applies only when the error constitutes a blatant violation of
basic principles, the harm or potential for harm is substantial, and the resulting error denies
the defendant fundamental due process.” Id. This exception applies only to “egregious
circumstances,” and must either “make a fair trial impossible” or constitute “clearly blatant
violations of basic and elementary principles of due process.” Id. (citations omitted).
II. Lee’s Rights
A. The Juvenile Waiver Statute and Exigent Circumstances
7
Lee’s argument that the trial court fundamentally erred in allowing DNA test results
into evidence is based on his underlying argument that the State failed to prove that it had
legal authority to swab his penis for DNA.6 In McLain v. State, 274 Ind. 250, 410 N.E.2d
1297 (1980), our supreme court concluded that swabbing a criminal defendant’s penis for
biological evidence requires constitutional justification under the Fourth Amendment to the
United States Constitution. Id. at 254, 410 N.E.2d at 1301; see Brent v. White, 398 F.2d 503,
505 (5th Cir. 1968) (concluding that scraping a defendant’s penis to obtain menstrual blood
of the victim’s type invoked Fourth Amendment protections).
These constitutional protections7 implicate Indiana’s juvenile waiver statute, Indiana
Code section 31-32-5-1, which provides:
Any rights guaranteed to a child under the Constitution of the United States,
the Constitution of the State of Indiana, or any other law may be waived only:
(1) by counsel retained or appointed to represent the child if the child
knowingly and voluntarily joins with the waiver;
(2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the
child; and
(D) the child knowingly and voluntarily joins with the waiver; or
6
Lee conceded at oral argument that he no longer challenges the State’s authority to swab his hands
and fingers for DNA evidence. We therefore need not determine their propriety.
7
In Lee’s appellate brief, he discusses this issue in the context of protections under the Fifth
Amendment to the United States Constitution; the Due Process Clause of the Fourteenth Amendment to the
United States Constitution; and Article 1, Section 14 of the Indiana Constitution, specifically the privilege
against self-incrimination. Lee refers us to D.M. v. State, 949 N.E.2d 327 (Ind. 2011), in which the Indiana
Supreme Court described procedural safeguards which it previously established “as a precondition to using a
juvenile’s statements from a custodial interrogation . . . in court,” all in addition to constitutional protections.
Id. at 332-33 (discussing Lewis v. State, 259 Ind. 431, 439-40, 288 N.E.2d 138, 142 (1972)). Following
Lewis, the General Assembly codified the additional protections described in Lewis in what is now Indiana
Code section 31-32-5-1. Id.
8
(3) by the child, without the presence of a custodial parent, guardian, or
guardian ad litem, if:
(A) the child knowingly and voluntarily consents to the waiver; and
(B) the child has been emancipated under IC 31-34-20-6 or IC 31-37-19-
27, by virtue of having married, or in accordance with the laws of another
state or jurisdiction.
The State argues this statute does not apply to Lee because exigent circumstances
necessitated an attempt to collect K.P.’s DNA from Lee’s person before any such evidence
was destroyed.8 “[S]earches and seizures conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment
– subject only to a few specifically established and well delineated exceptions. One such
exception is when exigent circumstances exist.” Ware v. State, 782 N.E.2d 478, 481 (Ind. Ct.
App. 2003) (quotations and citations omitted). Exigent circumstances have been found when
a suspect is fleeing or is likely to take flight to avoid arrest and where incriminating evidence
is in jeopardy of being destroyed or removed. State v. Straub, 749 N.E.2d 593, 597 (Ind. Ct.
App. 2001).
Exigent circumstances justifying a warrantless search exist where the police
have an objective and reasonable fear that the evidence is about to be
destroyed; the arresting officers must have a reasonable belief that there are
people . . . who are destroying or about to destroy the evidence. In such a case,
the evidence’s nature must be evanescent and the officers must fear its
imminent destruction.
Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991) (citations omitted). Police
officers cannot simply act and then later claim their actions were justified by exigent
circumstances. Hawkins v. State, 626 N.E.2d 436, 439 (Ind. 1993) (concluding exigent
8
At oral argument the State conceded that it would no longer rely upon the jurisdiction argument it
9
circumstances did not exist where officers claimed exigent circumstances justified their
warrantless search of a home to find the cash used in a controlled drug-buy by stating that the
home was as “busy as a drive-in restaurant” and they might lose their buy money in
subsequent transactions, even though only fifteen transactions were executed in the house
during the preceding two weeks). In addition, the seriousness of the offenses being
investigated does not render circumstances exigent. Mincey v. Arizona, 437 U.S. 385, 393-
94 (1978). Similarly, officers cannot forgo seeking a search warrant because to do so is not
as “simplified” as conducting a search without and later claiming exigent circumstances
existed. See id. Courts review the evidence presented to determine whether police “had an
objective and reasonable fear that the evidence was about to be destroyed.” Esquerdo v.
State, 640 N.E.2d 1023, 1027 (Ind. 1994). “The burden is on the prosecution to demonstrate
exigent circumstances to overcome the presumption of unreasonableness . . . .” Straub, 749
N.E.2d at 598.
Accordingly, we review the record to determine whether evidence was presented that
exigent circumstances existed. In doing so, we acknowledge that Lee’s failure to indicate in
any way that the exigency of the circumstances regarding obtaining his penile swab was in
question might have skewed the record. This is because without an objection by Lee, the
State was not pressed to present evidence regarding the exigency of the circumstances.
Nevertheless, we proceed with this review to determine whether evidence of exigent
circumstances was presented for the following reasons.
articulated, in the alternative, in its appellate brief.
10
First, the law is clear that there is a presumption of unreasonableness when officers
conduct a search in reliance upon purportedly exigent circumstances, and the prosecution has
the burden to present evidence sufficient to overcome that presumption. Straub, 749 N.E.2d
at 598. It is imperative that courts hold the prosecution accountable to meet its burden
regardless of what a criminal defendant does or does not argue at trial.
Second – which is more of a practical reason than an application of law – if officers
reasonably believed exigent circumstances existed, that belief is usually reflected in the
evidence regardless of whether a defendant challenges the purported exigency of the
circumstances. Here, the State presented substantial evidence regarding the circumstances
leading up to the swabbing, including testimony by Lee’s mother and Detective Cress. We
deem it appropriate to determine whether the evidence regarding these circumstances
sufficiently demonstrates officers held an objective, reasonable belief that evidence was
about to be destroyed.
Third, we narrowly tailor our conclusion here to a ruling on whether evidence
presented was sufficient to demonstrate exigent circumstances, and do not conclude as a
matter of law whether exigent circumstances could have been demonstrated to exist in this
case (or that exigent circumstances cannot exist in similar cases).
With all that said, based on the factual record before us, we do not agree with the State
that officers actually held an objective, reasonable belief that DNA evidence was about to be
destroyed. Substantial evidence was presented regarding the hectic scene prior to officers
obtaining the swabs. Detective Cress testified that upon first hearing about what happened,
11
he “quickly realized that [he] needed to be at the scene because it was something that was
fresh and something that recently just happened . . . .” Tr. at 289. He continued by
explaining the chaotic scene that spanned the neighborhood where Lee was apprehended by
Officer Hamer, and noting various officers, friends, and family members milling about. Id. at
289-90. He specifically mentioned that he was trying to “check and secure” “multiple people
and multiple locations.” Id. at 290. After beginning parts of the investigation and delegating
other portions to his colleagues, Detective Cress left the scene and returned to his office
because Lee was also, separately, transported to an interview room in the same building as
Detective Cress’s office. Either Detective Cress or another officer contacted Lee’s mother
and transported her there as well because Lee was under the age of eighteen.
Detective Cress then had Lee’s mother call Lee’s cellular phone to confirm that the
phone found along the route Officer Hamer chased Lee was in fact Lee’s. Detective Cress
also presented Lee’s mother with a consent to search form, which included a request to
consent to swab Lee’s penis. At some point, Detective Cress allowed Lee to use the restroom
and assisted him in doing so, although he did not allow Lee to wash his hands. Detective
Cress then accompanied Lee to the hospital for a forensic examining nurse to administer the
DNA swabs of Lee’s hands, fingers, and penis.
As relates to a concern that DNA evidence was about to be destroyed, the sole
evidence presented is that Detective Cress would not allow Lee be alone in the restroom or
to wash his hands after he urinated. Detective Cress did not state why or otherwise elaborate.
Nor did Detective Cress make any other statement to suggest his concern about destruction
12
of DNA evidence or whether he took any precautions to ensure that Lee did not wipe his
hands or penis on his clothing or any other surfaces.
A crime lab technician later testified as to the fragility of DNA evidence, but a lab
technician’s testimony does not reflect the beliefs of arresting or investigating officers. We
will not impute a lab technician’s knowledge of the fragility of DNA evidence to that of a
field detective. It would not be reasonable to do so, especially when other evidence in the
record suggests that if Detective Cress knew what the lab technician knew, Detective Cress
might have attempted to obtain a DNA swab prior to allowing Lee to urinate at all; the
technician testified that urination can destroy DNA evidence. Tr. at 916. Further, the
evidence presented suggests Detective Cress was more concerned with obtaining Mother’s
consent to swab Lee’s penis than he was with Lee destroying evidence. If Detective Cress
actually believed the evidence was about to be destroyed and exigent circumstances existed,
there was no reason to obtain Lee’s mother’s consent (or perhaps even Lee’s, for that matter).
The absence of evidence that officers actually believed DNA was about to be
destroyed might be due to a lack of evidence that would sufficiently support the State’s
appellate claim that the officers did so believe, or it might be due to Lee’s failure to object
and thereby press the State to present evidence thereof. In any event, our narrowly tailored
holding is that sufficient evidence of exigent circumstances was not presented at trial.
Because it is the State’s burden to present such evidence to overcome a presumption of
unreasonableness, its failure to overcome that burden renders the admission of such evidence
erroneous without another valid justification.
13
On appeal, the State compares this case to two cases from other jurisdictions in which
officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained
penile swabs of the suspects in a manner such that appellate courts later held the swabs
justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C. Cir. 2010);
Ontiveros v. Texas, 240 S.W.3d 369 (Tex. App. 2007), petition stricken. We agree that the
offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the
officers faced a similar situation in those cases as the officers did here. We conclude
differently from Kaliku and Ontiveros because the evidence presented at Lee’s trial regarding
officers’ thoughts and actions do not demonstrate they actually believed Lee might destroy
any DNA evidence on his penis.
To further explain, we note the evidence presented in Kaliku and Ontiveros. In
Kaliku, the officer who instructed the two defendants about how to obtain the penile swab
samples “testified that he did not seek a court order or transport the appellants to a hospital
where the sample could have been taken because “[e]vidence could have been wiped away . .
. [or] contaminated . . . [or] rubbed away at any time.” 994 A.2d at 780 (ellipses and
alterations in original). In Ontiveros, a detective investigating a sex assault ordered officers
holding the suspect to obtain a penile swab for DNA, either voluntarily or pursuant to exigent
circumstances. The detective later testified regarding the urgency:
The foreign DNA on a human body, in my training and experience, is very
fragile. It can be removed and destroyed very readily. Three hours had
already elapsed and there was still a possibility that that DNA could be present.
It has also been my experience that suspects we have had in the interview
rooms, hearing of a penile swab, had attempted to destroy the evidence on
videotape during their interrogations.
14
240 S.W.3d at 370.
The Texas Court of Appeals added:
[The detective] testified that he did not know if a magistrate was available at
the jail that morning to issue a search warrant. He added that because it was a
Sunday morning, “the judges have an extremely large docket from a Saturday
night,” and he estimated that it “could have been four or five hours before I
could have received a search warrant. In that time frame, I believed, after
three hours had expired, that DNA could have been damaged.” [The detective]
testified that a suspect had been known to spit on his hands and try to wipe
DNA material off of his penis. He also testified that urine can destroy DNA
evidence.
Id.Detective Cress’s short statement that he would not allow Lee to wash his hands,
without further elaboration, pales in comparison to the evidence presented in Kaliku and
Ontiveros, and is insufficient to overcome the State’s burden to demonstrate officers actually
held an objective, reasonable belief that evidence was about to be destroyed.9
B. Waiver of Lee’s Rights
Above, we concluded that evidence of exigent circumstances was not presented.
Moreover, at oral argument the State abandoned any argument (which was already implicitly
conceded in its appellate brief) that police abided by the juvenile waiver statute.
Accordingly, we deem DNA evidence collected from Lee’s penis to have been improperly
admitted into evidence. The dispositive issue, however, is whether this error rises to the level
of fundamental error.
9
Further, it should be noted that if officers wanted Lee’s DNA, exigent circumstances certainly did not
exist because Lee’s DNA would not change and officers could have obtained a warrant and obtained his DNA
15
III. Fundamental or Harmless Error
If the erroneously admitted evidence is merely cumulative of other evidence in the
record, it is harmless error and not grounds for reversal. Bryant v. State, 802 N.E.2d 486,
494 (Ind. Ct. App. 2004), trans. denied. If a conviction is supported by substantial
independent evidence of guilt which satisfies the reviewing court that there is no substantial
likelihood the challenged evidence contributed to the conviction, the error is harmless.
Morales v. State, 749 N.E.2d 1260, 1267 (Ind. Ct. App. 2001). Fundamental error “applies
only when the error constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, . . . the resulting error denies the defendant fundamental due process,”
or the “egregious circumstances” either “make a fair trial impossible” or constitute “clearly
blatant violations of basic and elementary principles of due process.” Brown, 929 N.E.2d at
207 (citations omitted).
We conclude that the improperly obtained penile swab and the DNA test results
thereof are not essential to sustain any of Lee’s convictions. Other significant evidence
supporting Lee’s convictions include: (1) Lee’s fingerprints in K.P.’s bathroom, indicating
his presence after she washed it before the incident; (2) K.P.’s testimony, Lee’s girlfriend’s
testimony, and Lee’s co-defendant’s testimony which implicated Lee in the burglary and
robbery; (3) Lee’s DNA on the ski mask, which indicates he wore the ski mask which was
worn by the man in the black shirt and implicates him in the sex assault and other offenses by
the man in the black shirt; (4) Lee’s DNA was found in K.P.’s mouth as a result of testing
later.
16
K.P. and Lee’s hands; and (5) K.P.’s testimony that she identified Lee as the man in the black
shirt during the incident because she met and knew Lee prior to this incident. K.P. positively
identified Lee’s eyes and mouth. She remembered him not only as the man in the black shirt,
but as Lee whom she knew prior to these events.
Further, because Lee concedes that the swabs of his hands and fingers were not
improper, the State had valid and properly obtained evidence of K.P.’s DNA on Lee’s right
hand. In addition, the State had a valid sample of Lee’s DNA such that it could not exclude
Lee as the contributor to DNA from semen found in an external lip swab of K.P. and of a
dental floss sample of K.P. We agree with Lee’s statement at oral argument that the fact that
one cannot be excluded as a contributor does not alone satisfy the State’s burden to prove
guilt beyond a reasonable doubt. But we conclude that all of this DNA evidence – especially
that of K.P.’s DNA on Lee’s right hand – and the other evidence of Lee’s guilt, numbered
one through five above, constitutes substantial independent evidence of guilt. Although the
State failed to present sufficient evidence that exigent circumstances existed and the trial
court erred in allowing into evidence test results of Lee’s penile swab, this error does not rise
to the level of fundamental error.
Conclusion
Lee argues the State improperly swabbed his person without satisfying the
requirements of the juvenile waiver statute, which the State argues does not apply because
exigent circumstances existed. We conclude that the exigent circumstances exception does
not apply in this case, but that the error of allowing the test results into evidence does not rise
17
to the level of fundamental error. Even without the improper admission into evidence of
DNA test results of Lee’s penile swabs, none of his convictions would fail. Additional
substantial independent evidence of guilt was presented and there is no substantial likelihood
the challenged evidence contributed to the convictions. Therefore, we affirm.
Affirmed.
RILEY, J., and CRONE, J., concur.
18