County District Court No. 13CR27 Honorable Thomas R. Ensor,
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Stephen
Arvin, Deputy State Public Defender, Denver, Colorado, for
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
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.
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.
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."
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
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.
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
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
18 Valdez cites no contrary Colorado authority, nor are we
aware of any. We consider Lancaster well ...