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People v. Valdez

Court of Appeals of Colorado, Third Division

April 6, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Anton Jose Valdez, Defendant-Appellant.

         Adams County District Court No. 13CR27 Honorable Thomas R. Ensor, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          WEBB JUDGE

         ¶ 1 A jury convicted Anton Jose Valdez of first degree murder after deliberation and several other charges arising from the robbery of a jewelry store during which one of the two hooded robbers shot and killed the owner. Valdez did not testify but defended based on misidentification. On the first degree murder count, the trial court sentenced him to life imprisonment without the possibility of parole. On the aggravated robbery count, the court imposed a consecutive sentence of thirty-two years in the custody of the Department of Corrections. It imposed concurrent sentences on the other counts.

         ¶ 2 Valdez seeks a new trial based on rulings admitting DNA evidence from the crime scene and surveillance camera videos of the robbery in progress.

● As to the DNA evidence, he asserts that the match was derived from a sample unconstitutionally collected when he was arrested on an unrelated charge.
● As to one of the videos, he asserts that depiction of the owner's dying moments was unfairly prejudicial, and as to all of the videos that the court should have restricted the jury's replaying them during deliberations.

         Alternatively, he challenges the trial court's conclusion that the crime of violence statute required consecutive sentencing on the aggravated robbery count. The Attorney General concedes preservation of all issues.

         ¶ 3 Discerning no evidentiary errors, we affirm the judgment of conviction. Then addressing a novel question in Colorado, we further conclude that because affirmance means Valdez was lawfully sentenced to a life term without parole, his challenge to the consecutive sentence is moot.

         I. The Trial Court Did Not Err in Allowing the Prosecution to Present Evidence Linking DNA From the Crime Scene to a DNA Sample Previously Taken from Valdez in Connection with His Arrest on a Felony Traffic Offense

         ¶ 4 In his suppression motion, Valdez argued that taking the DNA sample during his arrest for aggravated driving under restraint - habitual offender, § 42-2-206(1)(b)(II), C.R.S. 2016, constituted an unreasonable search and seizure under both the United States and Colorado Constitutions. According to Valdez, a constitutional violation occurred because aggravated driving under restraint "is not a serious offense" under Maryland v. King, 569 U.S.,, 133 S.Ct. 1958, 1980 (2013). However, the motion conceded that because Valdez had entered into a plea agreement and pleaded guilty to only misdemeanors, he was eligible for - but had failed to pursue - the DNA expungement procedures under section 16-23-105, C.R.S. 2016. This section is part of Katie's Law, §§ 16-23-101 to -105, C.R.S. 2016. In response, the prosecutor primarily asserted that the DNA collection was constitutional because Valdez had been arrested for a felony, as provided in Katie's Law.

         ¶ 5 After hearing argument from counsel, the trial court denied the motion from the bench. The court found that Valdez's motion was an improper "collateral attack on evidence obtained in another case . . . where that evidence was never sought to be suppressed" and "where [Valdez] had the opportunity to remove that DNA from the database, since he was not convicted of a felony." Alternatively, it concluded that collection of Valdez's DNA was constitutional because he "was, in fact, arrested for a serious matter . . . and it would, in fact, pass muster pursuant to [the] . . . King decision."

         A. Collateral Estoppel

         ¶ 6 Although Valdez's opening brief argues that the trial court erred in denying his motion as an improper "collateral attack, " the Attorney General does not defend the court's ruling on this basis. Still, under the doctrine of constitutional avoidance, we address constitutional issues only if necessary. See Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008) (stating that judicial restraint requires courts to avoid reaching constitutional questions in advance of the necessity of deciding them); People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) ("Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless and until such issue is actually raised by a party to the controversy and the necessity for such decision is clear and inescapable."). And were we to agree with the trial court that Valdez was estopped from challenging collection of his DNA, we would never reach the constitutional question. So, we start with that aspect of the court's ruling, but reject it as a misapplication of the law.

         ¶ 7 To begin, one may wonder if the doctrine of collateral estoppel (also called issue preclusion) applies in criminal cases. It does. See generally People v. Smith, 938 P.2d 111, 113 (Colo. 1997).

         ¶ 8 Even so, the scope of this doctrine may be narrower in criminal cases. Deciding that a defendant is estopped from relitigating an issue in a second criminal proceeding depends on whether "the question was 'distinctly put in issue and directly determined' in the [prior] criminal prosecution." Metros v. U.S. Dist. Court, 441 F.2d 313, 316 (10th Cir. 1970) (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir. 1970)). Because in the traffic case Valdez failed to either move to suppress the DNA sample before pleading guilty or seek expungement based on his misdemeanor plea, the constitutional issue raised in this appeal was not determined. Compare Commonwealth v. Lunden, 35 N.E.3d 412, 416 (Mass. App. Ct. 2015) ("In the [prior] case, the defendant did not move to suppress the blood evidence match, and therefore despite the defendant's conviction the [prior] proceeding did not result in a final judgment on the merits . . . ."), with Sharp v. State, 835 N.E.2d 1079, 1085 (Ind.Ct.App. 2005) ("[The defendant] litigated the constitutionality of the taking of his DNA that was placed in the database in the prior case, and he presented that issue in the prior appeal. Hence, we can only conclude that [he] had the full and fair opportunity to litigate the issue he raises here, and the doctrine of collateral estoppel precludes him from relitigating the issue now.").

         ¶ 9 Thus, because Valdez's constitutional challenge cannot be avoided, we turn to it. B. Constitutionality of the DNA Collection in the Traffic Case

         1. Standard of Review and Law

         ¶ 10 Suppression rulings normally present a mixed question of fact and law. See People v. Cisneros, 2014 COA 49, ¶ 56. But Valdez's contention only raises an issue of law - he challenges the constitutionality of section 16-23-103, C.R.S. 2016, as applied to him. And "[w]e review the constitutionality of a statute, both facially and as applied, de novo." People v. Lovato, 2014 COA 113, ¶ 12.

         ¶ 11 When reviewing a statute, we presume that it satisfies constitutional standards. People v. Baer, 973 P.2d 1225, 1230 (Colo. 1999). The party challenging a statute on constitutional grounds - whether as applied or facial - bears the burden of establishing the statute's unconstitutionality beyond a reasonable doubt. Id.[1]

         ¶ 12 In King, 569 U.S. at___, 133 S.Ct. at 1970, 1980, the Supreme Court upheld a Maryland DNA collection statute that required "all arrestees charged with serious crimes" to submit a buccal swab for DNA testing solely as a police booking procedure. The Court concluded:

DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Id. at___, 133 S.Ct. at 1980 (emphasis added).

         ¶ 13 Like the Maryland statute, section 16-23-103(1)(a) requires that for "[e]very adult arrested on or after September 30, 2010, for a felony offense or for the investigation of a felony offense . . . [t]he arresting law enforcement agency shall collect the biological substance sample from the arrested person as part of the booking process." (Emphasis added.) These samples are tested by the Colorado Bureau of Investigation (the CBI) and are filed in the state index system. § 16-23-104(2), C.R.S. 2016.

         ¶ 14 But unlike the Maryland statute, Katie's Law does not impose an express seriousness requirement. The Attorney General seeks to fill this gap by arguing that every felony is serious.

         ¶ 15 The Colorado Supreme Court has not spoken to the constitutionality of Katie's Law. In People v. Lancaster, 2015 COA 93, ¶ 23, however, the division concluded that a DNA sample taken in violation of section 16-23-103(1)(a) - because the defendant had been arrested for only misdemeanor traffic offenses - did not violate the defendant's constitutional privacy interests.

         ¶ 16 Of course, the division acknowledged that "[a] cheek swab to obtain a DNA sample is a search, and a search without a warrant supported by probable cause is presumptively unreasonable unless it falls within one of the established exceptions to the warrant requirement." Id. at ¶ 14. Then the division turned to one such exception - that for "special needs" - which "balance[s] the government's special need against the individual's asserted privacy interests." Id. at ¶ 15 (quoting People v. Rossman, 140 P.3d 172, 174 (Colo.App. 2006)).

         ¶ 17 In applying this exception, the division held that "the government's interest in the DNA sample was not outweighed by [the defendant's] privacy interests." Id. at ¶ 23. It explained that after an arrest, "the intrusion into [the arrestee's] privacy resulting from the buccal swabs was minimal and akin to booking procedures like the fingerprinting and photographing of a suspect." Id. On this basis, the division concluded that "the trial court did not err in denying [the defendant's] motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him." Id. at ¶ 25.

         ¶ 18 Valdez cites no contrary Colorado authority, nor are we aware of any. We consider Lancaster well ...

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