City and County of Denver District Court No. 88CR1090 Honorable Martin F. Egelhoff, Judge
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Marc Sarmiento, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 In this proceeding involving DNA preservation and testing, defendant, Robert J. Young, appeals the postconviction court's order denying his motion for relief under sections 18-1-414(2)((b) and 18-1-1104, C.R.S. 2014. Those statutory provisions authorize a court to impose a remedy (1) for law enforcement officials' negligence in destroying, losing, or otherwise disposing of biological evidence that the court has ordered preserved; and (2) if a violation of a defendant's due process rights has occurred in that destruction. The postconviction court declined to provide defendant with a remedy for the destruction of evidence and determined that no due process violation had occurred. We affirm the court's determination.
I. Procedural History and Background
¶ 2 This appeal stems from defendant's 1988 conviction for kidnapping and sexual assault.
¶ 3 A telephone caller notified police that a woman was being beaten and dragged down the street by a large black male. An officer in the vicinity quickly responded to the location and heard a woman yelling for help. He followed the screams and observed defendant, a black male, lying on top of the victim. Defendant's pants and underwear were down around his ankles and the victim was naked from the waist down. The victim was screaming for help while defendant was lying on top of her.
¶ 4 The police officer ordered defendant to stand up and raise his hands. Defendant stood up, pulled up his underwear and pants, and then raised his hands. He stated, "I didn't rape her." The victim continued to scream and plead for help after defendant stood up.
¶ 5 The officer arrested defendant and the prosecution charged him with kidnapping and sexual assault. Before trial, the victim identified defendant as her assailant. The telephone caller who had observed the victim being dragged down the street could not positively identify defendant because he had observed the perpetrator from behind.
¶ 6 The victim's underwear was recovered as evidence, and semen was found on the crotch area of the fabric inside the underwear. The Denver Crime Laboratory (DCL) conducted serology testing that, in 1988, could produce results that would include or exclude large groups of individuals as donors. The test results showed that a group of people, including defendant, could have been the semen donor.
¶ 7 Before trial, defendant requested the trial court to order and provide payment for DNA testing of the semen stains on the underwear, arguing that the identity of the attacker was a significant issue in the case. The trial court denied the motion, concluding that the evidence was sufficiently strong on the issue of identification such that additional DNA testing was not warranted.
¶ 8 At trial, the fact that the victim was sexually assaulted was not in dispute. Both the responding officer and the victim made in-court identifications of defendant as the attacker. The victim testified that the person who beat her and dragged her down the street was the same person who had sexually assaulted her, and that defendant was the only person involved in the attack. Defendant asserted that the police officer and victim were mistaken in their identifications because he was at the scene only to aid the victim after the attack. He asserted that the real attacker had run away before he arrived. The jury convicted defendant on both counts.
¶ 9 On direct appeal, a division of this court affirmed, concluding, among other things, 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." People v. Young, slip op. at 9 (Colo.App. No. 90CA0034, Feb. 28, 1991) (not published pursuant to C.A.R. 35(f)).
¶ 10 Defendant filed two unsuccessful postconviction motions. Both denials were affirmed on appeal. People v. Young, (Colo.App. No. 98CA2026, Dec. 30, 1999) (not published pursuant to C.A.R. 35(f)); People v. Young, (Colo.App. No. 01CA0359, Jan. 24, 2002) (not published pursuant to C.A.R. 35(f)).
¶ 11 In January 2006, defendant filed a pro se Crim. P. 35(c) motion seeking postconviction relief under sections 18-1-411 to -417, C.R.S. 2014. The statutory provisions, adopted by the General Assembly in 2003, generally provide for postconviction testing of DNA if certain conditions are met.
¶ 12 First, an incarcerated person "may apply to the district court . . . where the conviction was secured for DNA testing concerning the conviction and sentence the person is currently serving." § 18-1-412(1), C.R.S. 2014. Second, the motion "shall include specific facts sufficient to support a prima facie showing that post-conviction relief is warranted under the criteria set forth in section 18-1-413." § 18-1-412(2). Third, under section 18-1-413(1), a court shall not order DNA testing unless the petitioner demonstrates by a preponderance of the evidence that
(a) Favorable results of the DNA testing will demonstrate the petitioner's actual innocence;
(b) A law enforcement agency collected biological evidence pertaining to the offense and retains actual or constructive possession of the evidence that allows for reliable DNA testing;
(c) (I) Conclusive DNA results were not available prior to the petitioner's conviction; and
(II) The Petitioner did not secure DNA testing prior to his or her conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel or excusable neglect; and
(d) The petitioner consents to provide a biological sample for DNA testing.
"Actual innocence" is defined as "clear and convincing evidence such that no reasonable juror would have convicted the defendant." § 18-1-411(1), C.R.S. 2014. A defendant may use the results of the DNA testing to file a postconviction motion although it may be untimely. § 18-1-416(1), C.R.S. 2014.
¶ 13 Defendant asserted in his motion that DNA testing had never before been conducted on the underwear and claimed that such testing would confirm his actual innocence. He contended, as he had at trial, that while he was found with the victim, he was only "bent over the woman" when the police arrived; that he did not kidnap or sexually assault her; and that he arrived after she had already been assaulted.
¶ 14 In March 2006, the postconviction court (first postconviction court) signed a preprinted form appointing counsel to assist defendant with his request. That court did not set forth any specific findings other than to note that counsel was appointed for a "post-conviction request for DNA test pursuant to C.R.S. 18-1-412."
¶ 15 The first postconviction court held a hearing in April 2006. The court directed the parties to investigate whether the underwear had been preserved. The court stated that it had reviewed the closing arguments from the 1988 trial and had concluded that "the issue of I.D. was a significant issue in the case . . . such that DNA results could be significant." The court instructed the parties that their "job at this point is to do some – do some looking" into the existence of evidence preserved for testing. The court stated that it had appointed counsel because it thought there might be evidence available to be tested and a "DNA test was probably called for." The court made no other findings.
¶ 16 At a subsequent hearing in June 2006, the first postconviction court determined that the victim's underwear had been preserved, but noted that its location was unknown. Defense counsel indicated that the parties had not reached an agreement regarding DNA testing and acknowledged that defendant would need another hearing to present evidence to prove the elements set forth in section 18-1-413. The prosecution asserted that testing should not be conducted because defendant could not demonstrate actual innocence. The court set the matter for another hearing where it would address whether the testing should be ordered. While the prosecution stated that a "hold" had already been placed on the evidence, the court made no explicit order at that time regarding preservation.
¶ 17 By September 2006, defense counsel had located the underwear in the property and evidence room in the Denver City and County building. At that time, counsel moved the court to preserve and protect the evidence by not allowing anyone to open the paper bag in which the underwear was stored. The court granted the motion, stating that "the evidence shall remain inside its present container until such time as it is to be tested. Defendant is responsible for notifying the proper parties not to disturb the container and the evidence held therein."
¶ 18 Because the underwear was stored in the City and County building and not in an evidence or property room maintained by a law enforcement agency, defense counsel also moved to release the evidence under the Colorado Criminal Justice Records Act (CJRA), sections 24-72-301 to -309, C.R.S. 2014. Defendant argued that the evidence was not under the actual or constructive control of a law enforcement agency (as is required under ...