People v. Lee

Decision Date20 February 2001
Docket NumberNo. 00SA258.,00SA258.
Citation18 P.3d 192
PartiesIn re the PEOPLE of the State of Colorado, Plaintiff, v. Johnny LEE, Defendant.
CourtColorado Supreme Court

Mary W. Keenan, District Attorney, Twentieth Judicial District, William F. Nagel, Chief Appellate, Deputy District Attorney, Boulder, CO, Attorneys for Petitioner.

Nancy Holton, Boulder, CO, Attorney for Respondent. Justice COATS delivered the Opinion of the Court.

The People petitioned for relief pursuant to C.A.R. 21 from an order of the district court excluding evidence in a felony prosecution as a sanction for a discovery violation. The district court barred the introduction of a DNA comparison intended to link the defendant to a hair recovered from the scene of the alleged crimes because the prosecution failed to provide data indicating the statistical significance of the DNA profile match at least thirty days before trial. This court issued its rule to show cause why the order should not be vacated, and the defendant responded. Under the circumstances of this case, exclusion of the evidence amounted to an abuse of discretion. Therefore the rule is made absolute, and the case is remanded to the district court for further proceedings consistent with this opinion.

I.

The defendant, Johnny Lee, was charged with second degree kidnapping, three counts of sexual assault, conspiracy, and committing a crime of violence in connection with the alleged abduction and repeated assaults on a woman by six assailants in Boulder on August 28 and 29, 1999. At the preliminary hearing, the victim testified that, among other things, she was grabbed while walking on a street, forced into a van, and raped repeatedly by six Asian males. Five suspects, including the defendant in this case, all of whom were from the Hmong community,1 were arrested in connection with the incident. Separate trials were ordered, with the defendant's trial originally scheduled to begin on April 17, 2000.

In the course of investigating the crimes, the police recovered semen from the victim and numerous pubic hairs from the van in which the rapes were allegedly committed. The semen sample was tested first, with results indicating contribution primarily by two of the other suspects and possibly in small part by the defendant. In January 2000, one of the co-defendants filed a motion entitled, "Motion for Exclusion of DNA, PCR Testing2 and Statistical Frequencies." The trial court heard the motion on April 12, 13, and 21, 2000. By the time of the hearing, the co-defendant who originally filed the motion had pled guilty, but the remaining four co-defendants, including Lee, participated, and subsequently Lee formally adopted the motion.

At the hearing, in addition to litigating the scientific acceptability of DNA comparisons by the PCR method, the defendants also challenged the relevance of the Colorado Bureau of Investigation's analysis of the significance of a "match" between the defendant's DNA profile and that extracted from the semen sample. The significance of a DNA match is typically expressed in terms of the likelihood that the matter recovered from the crime scene came from a third person rather than the defendant. This likelihood is calculated by determining the frequency with which the particular DNA profile is found in the target population, which is in turn determined by the suspect's race. Fishback v. People, 851 P.2d 884, 888 (Colo.1993). The prosecution apparently agreed that the databases used by the Colorado Bureau of Investigation for Caucasian, African-American, and Southwestern Hispanic populations were inappropriate, but defense and prosecution experts disagreed about an appropriate database. In contrast to the defense expert, an expert for the prosecution testified that the differences between the Hmong population and the Asian population generally were insignificant, and that a general Asian database would be appropriate for establishing the required frequencies. Near the conclusion of the hearing, the prosecution summarized the dispute and indicated that upon the court's ruling as to the appropriate database, it would be able to prepare its statistical analysis of the DNA evidence. The court took the matters under advisement.

On March 31, 2000, one of the pubic hairs recovered from the van was determined to be microscopically consistent with those of the defendant. The hair had not, however, been subjected to DNA testing at the time of the April hearing. DNA testing of the hair was delayed several times, for the benefit of the defense and due to scheduling conflicts with the experts. As the result of several unrelated motions by the defense, the defendant's speedy trial period was also waived and his trial continued, eventually being rescheduled for August 21, 2000. The pubic hair in question was ultimately tested in the presence of both prosecution and defense experts on June 27, 2000, and in a report dated July 5, 2000, the Colorado Bureau of Investigation concluded that the DNA profile of the hair matched that of the defendant. The prosecutor indicated that she first received the report on July 11 and immediately forwarded it to defense counsel. At that time it did not include an analysis of the results relative specifically to the Asian population.

In late June, before any ruling on the PCR and relevant population issues, a different judge took over the case from the judge who had conducted the April hearing. The successor judge scheduled a hearing on remaining motions for July 25, 2000. On the morning of the hearing the court distributed a written order dated July 18, finding that the PCR method of DNA comparison met the standards of acceptability of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), but it excluded any evidence of DNA found in the tested semen mixture on the grounds that the Colorado Bureau of Investigation had not been able to connect it to the defendant in any statistically significant manner. Having found the DNA comparison from the recovered semen inadmissible against the defendant, the court's order did not address the question of relevant databases.

Late in the July 25 hearing, the court entertained argument on the issues surrounding the DNA testing of the recovered pubic hair. Emphasizing the meaninglessness of a match of DNA profiles without an analysis of its statistical significance, the court found the production of such a statistical analysis to be the obligation of a party seeking to introduce DNA evidence, and it questioned why such an analysis had not previously been ordered and provided to the defendant. The prosecution responded with an explanation, detailing the proceedings before the original trial judge and indicating its understanding that the court would resolve the disputed questions raised at the first DNA hearing involving the acceptability of the PCR method and the appropriate database in this case—Hmong or Asian—before further expensive, and possibly unnecessary, analyses would be required. Without resolving questions of fact and credibility or assessing the reasonableness of this interpretation of the earlier proceedings, the trial court ruled that it was the prosecution's burden to present a report of the statistical significance of the DNA results, and having failed to do so twenty-six days before the scheduled trial date, the prosecution had violated the thirty-day requirement of Crim. P. 16(I)(b)(3). It therefore concluded that evidence of the DNA testing of the recovered pubic hair would not be admitted at trial.3

The People filed a motion to reconsider the next morning, indicating that they already had the completed statistical analysis based on a general Asian database in hand. That motion was denied without hearing.

II.

Exercise of the supreme court's original jurisdiction is entirely within its discretion. People v. District Court, 869 P.2d 1281, 1285 (Colo.1994). Relief pursuant to C.A.R. 21 is appropriate to correct an abuse of discretion by a lower court where no other remedy would be adequate. Id.; People v. District Court, 664 P.2d 247, 251 (Colo.1983). Although challenges to discovery rulings are typically the subject of an appeal, People v. District Court, 894 P.2d 739, 742 (Colo.1995), it can be appropriate to review discovery orders interlocutorily, by way of original proceeding, where the impact of the ruling would be substantial and incurable at a later time. See People v. District Court, 664 P.2d at 251

; see also People v. District Court, 898 P.2d 1058, 1060 (Colo.1995); People v. District Court, 869 P.2d at 1285. It is likely that the exclusion of DNA evidence in this case would significantly hinder the prosecution's ability to litigate the merits of the case, and constitutional jeopardy considerations would bar retrial after an acquittal, even if exclusion of the evidence were later determined to be erroneous. People v. District Court, 898 P.2d at 1060; People v. District Court, 664 P.2d at 251.

Colorado's rules governing discovery in criminal cases require the prosecution to provide the defendant with various materials in its possession, including the results of "scientific tests, experiments, or comparisons." Crim. P. 16(I)(a)(1)(III). Such disclosure must be made "as soon as practicable but not later than thirty days before trial." Crim. P. 16(I)(b)(3). Related to this deadline is the prosecutor's duty to "ensure that a flow of information is maintained between the various investigative personnel and his office sufficient to place within his possession or control all material and information relevant to the accused and the offense charged." Crim. P. 16(I)(b)(4); see also People v. District Court, 793 P.2d 163, 167 (Colo.1990)

; Chambers v. People, 682 P.2d 1173, 1180 (Colo. 1984). The duty to disclose additional materials or information discovered subsequent to compliance with the discovery standards continues through the trial, Crim. P. 16(III)(b), and for good cause, a court...

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