People v. Glasser

Citation293 P.3d 68
Decision Date19 May 2011
Docket NumberNo. 09CA0514.,09CA0514.
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Wayne Douglas GLASSER, Jr., Defendant–Appellant.
CourtCourt of Appeals of Colorado

293 P.3d 68

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Wayne Douglas GLASSER, Jr., Defendant–Appellant.

No. 09CA0514.

Colorado Court of Appeals,
Div.
IV.

March 31, 2011.
Rehearing Denied May 19, 2011.


[293 P.3d 71]


John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

MS & M Law Office, Nicole M. Mooney, Denver, Colorado, for Defendant–Appellant.

[293 P.3d 72]


Opinion by Judge MILLER.

Defendant, Wayne Douglas Glasser, Jr., appeals the trial court's judgment of conviction and sentence on first degree sexual assault and second degree kidnapping charges. We affirm in part, reverse in part, and remand for resentencing.

I. Background

According to the trial evidence, on the evening of November 27, 1996, defendant abducted the victim while she was walking home from work in Denver, pulling her by the neck into his van. Keeping a gun trained on her head, defendant removed the victim's clothing and raped her. After the assault, defendant drove the van behind a building, where he abandoned the victim next to a dumpster.

The next day, the victim called her sister, who called the police. The victim was taken to Denver Medical Center for a rape kit examination. A semen sample was recovered.

The initial investigation yielded no suspects, and the case was filed as inactive. Eight years later, the case was reopened, and eventually a DNA database search resulted in a DNA sample match to defendant.

Under the version of the statutes in effect in 1996, defendant was charged with aggravated first degree sexual assault, physical force and violence, § 18–3–402(1)(a), (3); aggravated first degree sexual assault, present threats, § 18–3–402(1)(b), (3); and second degree kidnapping, victim of sexual assault, § 18–3–302(1), (3). § 18–3–302(1), C.R.S.2010; Ch. 171, sec. 1, § 18–3–402(1)(a)–(b), 1975 Colo. Sess. Laws 628; Ch. 151, sec. 2, § 18–3–402(3), 1985 Colo. Sess. Laws 666; Ch. 214, sec. 1, § 18–3–302(3), 1981 Colo. Sess. Laws 983. A Denver jury found him guilty on all counts. In response to an interrogatory, the jury found that defendant had used a deadly weapon during the sexual assault.

At sentencing, the trial court merged the two sexual assault convictions and, relying on the jury's deadly weapon finding, sentenced defendant in the aggravated range to thirty years in the Department of Corrections (DOC). Based on the same finding, the trial court also sentenced defendant in the aggravated range on the kidnapping count, imposing another thirty-year DOC sentence. The court ordered the sentences to run consecutively, followed by five years of parole.

II. Analysis

Defendant challenges the trial court's (1) denial of his motion to suppress the DNA evidence collected in Arapahoe County, (2) admission of other acts evidence, (3) denial of his motion to dismiss based on a violation of the Uniform Mandatory Disposition of Detainers Act, §§ 16–14–101 to –108, C.R.S.2010 (UMDDA), (4) admission of certain expert testimony, and (5) sentencing. We turn first to the suppression motion.

A. Motion to Suppress DNA Evidence

Defendant claims that the trial court erred by denying his motion to suppress, among other things, the DNA evidence. Defendant contends that the trial court should have suppressed the DNA evidence used to identify him because it was obtained as the result of an illegal plea bargain. We are not persuaded.

Review in suppression cases is a mixed question of law and fact. People v. Bonilla–Barraza, 209 P.3d 1090, 1094 (Colo.2009). We review the trial court's conclusions of law de novo, and we defer to the trial court's findings of fact if competent evidence in the record supports them. Id.

In 1998, in separate cases filed in Arapahoe County, defendant pled guilty to sexual assault on a child and to sexual assault on an at-risk adult. The plea agreement provided for probation and suspended sentences. However, a statute then in effect required that “[a]ny person convicted of a crime of violence shall be sentenced ... to a term of incarceration ... without suspension. § 18–1.3–406(1)(a), C.R.S.2010 (formerly codified at § 16–11–309(1)(a)) (emphasis added). Nonetheless, in accordance with the plea agreement, the Arapahoe County District Court sentenced defendant to concurrent terms of intensive supervised probation for twenty-five years, as well as consecutive

[293 P.3d 73]

suspended sentences of eighteen months and sixteen years of incarceration in the DOC. (There is no indication in the record that the court or counsel recognized that the suspended sentences violated the statute.) As a condition of his probation, defendant provided a DNA sample. That sample led to his conviction in the present case.

After defendant violated the terms of his probation in the Arapahoe County cases and was incarcerated, he moved to correct the illegal sentence under Crim. P. 35(a). The Arapahoe County court granted the motion, vacated defendant's sentences, and ordered withdrawal of his guilty pleas in both cases.

Defendant then moved the Denver court to suppress all evidence derivative of his illegal sentence, including the DNA. The court denied the motion, holding that the basis for the Arapahoe County court's order was a statutory violation resulting in an illegal sentence rather than a constitutional violation and declining to extend the exclusionary rule beyond police misconduct.

We agree that suppression of evidence is generally available as a remedy only for a constitutional violation but not for a statutory violation. People v. Shreck, 107 P.3d 1048, 1054 (Colo.App.2004); see also People v. Shinaut, 940 P.2d 380, 383 (Colo.1997); People v. McKinstry, 843 P.2d 18, 20 (Colo.1993); People v. Bowers, 716 P.2d 471, 473 (Colo.1986).

Here, however, the constitutional violation defendant alleges is not the taking of the DNA sample or the imposition of an illegal sentence. Rather, he claims that the prosecution violated his constitutional due process rights when it promised a suspended sentence in consideration for his guilty plea in the Arapahoe County cases, a promise that could not be fulfilled because of its illegality.

Due process requires that a guilty plea be voluntary, knowing, intelligent, and free from misrepresentation and the making of unfulfilled or unfulfillable promises. Santobello v. New York, 404 U.S. 257, 261–62, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Craig v. People, 986 P.2d 951, 961 (Colo.1999) (a plea agreement must be attended by constitutional safeguards to ensure that a defendant receives the performance that he or she is due); St. James v. People, 948 P.2d 1028, 1032 (Colo.1997) (“When a defendant reasonably and detrimentally relies on the prosecution's promises in a plea agreement, due process requires the enforcement of the plea agreement.”); People v. Fisher, 657 P.2d 922, 927 (Colo.1983) (the Due Process Clause of the Fourteenth Amendment requires enforcement of the prosecution's promise to a defendant during a criminal prosecution).

Here, as part of defendant's plea agreement in Arapahoe County, the prosecutor promised a suspended sentence and the trial court entered that sentence without objection by defense counsel. That sentence was illegal under the predecessor to section 18–1.3–406(1)(a), which precluded the giving of a suspended sentence for the offenses to which defendant pled guilty. The suspended sentence component was obviously a material term of the plea agreement. Thus, the guilty plea was obtained in violation of defendant's constitutional rights to due process. However, because the agreement violated the law, it was not subject to specific performance. Craig, 986 P.2d at 959. Instead, the Arapahoe County District Court held the guilty plea invalid, vacated the sentences, and ordered the pleas withdrawn. See id.;Chae v. People, 780 P.2d 481, 486 (Colo.1989).

Defendant provided the DNA sample draw as a condition of the probation component of his sentence. The DNA sample would not have been taken but for defendant's agreement to submit to it as a condition of probation. We therefore agree with defendant that this sample, which matched the DNA found in the semen sample collected during the rape kit examination of the victim, derived from the unconstitutionally obtained plea and conviction that violated his due process rights under the Fourteenth Amendment. The question remains, however, whether the DNA sample taken from defendant is subject to the exclusionary rule. We, like the trial court, conclude it is not.

The exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights through its deterrent effect.

[293 P.3d 74]

United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); People v. Blehm, 983 P.2d 779, 794 (Colo.1999). Importantly, the rule is not a personal constitutional right of the party aggrieved; its use is not warranted where it would not result in appreciable deterrence. Herring v. United States, 555 U.S. 135, 140–41, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009); Blehm, 983 P.2d at 794 (citing United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)).

“The exclusionary rule was crafted to curb police misconduct rather than judicial misconduct....” Herring, 555 U.S. at 142, 129 S.Ct. at 701 (citing Arizona v. Evans, 514 U.S. 1, 15, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (declining to apply exclusionary rule when evidence was seized in violation of Fourth Amendment because of computer errors by court employees)); see also United States v. McCane, 573 F.3d 1037, 1045 (10th Cir.2009) (“the reach of the exclusionary rule does not extend beyond police conduct to punish the mistakes of others”); Blehm, 983 P.2d at 795 (declining to apply rule when police acted objectively reasonably on computer mistakes committed by courts). The United States Supreme Court has declined to extend the exclusionary rule to searches based on good faith compliance...

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