People v. Lehmkuhl, Court of Appeals No. 02CA0149 (CO 12/30/2004)
| Decision Date | 30 December 2004 |
| Docket Number | Court of Appeals No. 02CA0149. |
| Parties | The People of the State of Colorado, Plaintiff-Appellee, v. Jordan Lehmkuhl, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Defendant, Jordan Lehmkuhl, appeals the judgment of conviction and sentence imposed following a jury trial. He was convicted of two counts of first degree burglary, two counts of sexual assault, second degree kidnapping, first degree aggravated motor vehicle theft, and three counts of menacing. We affirm.
JUDGMENT AND SENTENCE AFFIRMED.
Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE ROY
One evening, three high school girls (D.K., H.M., and T.N.) were alone at the home of D.K.'s grandmother. Defendant, then seventeen years old, appeared with a gun and wearing a mask. He told the girls to keep their heads down, duct-taped their hands behind their backs, put a blanket over their heads, and rummaged around the house.
When asked whether there were any valuables, H.M. indicated that she had a car. Defendant then led H.M. out of the house and placed her in the trunk of her car. After driving for some distance, defendant stopped, let H.M. out of the trunk, disrobed her, and sexually assaulted her in the backseat of her car. After the assault, defendant drove H.M. a short distance, removed her from the car, partially cut the duct tape on her wrists, left her clothes in a pile on the ground, and drove off. H.M. dressed and walked to a nearby house from which the authorities were notified.
One week later, sheriff deputies went to defendant's home to follow up on a shoe print found outside the grandmother's house. Deputies spoke to defendant's mother, and she consented to a search of her home. The deputies obtained from defendant the keys to a locked shed on the premises which they searched and from which they seized shoes, a coat, a role of duct tape, a ski mask, and a pistol. Defendant was taken into custody, advised of his rights, and transported to the sheriff's office.
At the sheriff's office, defendant and his parents were advised of and waived his rights. Defendant was then interrogated in the presence of both his parents. After the interrogation, the deputies discussed with defendant and his parents the possibility that blood, saliva, and hair samples might eliminate defendant as a suspect. Defendant and both parents agreed to the testing. Shortly thereafter, defendant was transported to the hospital by a deputy sheriff for the collection of the samples. The parents did not go to the hospital.
Defendant was charged as an adult. Following a jury trial, defendant was convicted of nine felony counts and was sentenced to two concurrent fifteen-year prison terms plus five years of mandatory parole for the burglary convictions, consecutive terms of thirty years to life plus twenty years to life mandatory parole for sexual assault (merged convictions), twenty-four years plus five years mandatory parole for second degree kidnapping, two years plus three years mandatory parole for motor vehicle theft, five years plus two years mandatory parole for one count of menacing, and two three-year terms plus two years mandatory parole each for the other two menacing convictions, for a cumulative sentence of 103 years to life. This appeal followed.
Defendant contends that because his consent was invalid, the trial court erred in failing to grant his motion to suppress the results of blood, saliva and hair samples taken from him.
We disagree.
In ruling on a motion to suppress evidence, the trial court must make findings of fact, and those findings will not be disturbed if adequately supported by competent evidence in the record. We review de novo the application of legal standards to those facts. People v. Howard, 92 P.3d 445 (Colo. 2004).
The United States and Colorado Constitutions protect individuals from unreasonable search and seizure of their homes or property. See U.S. Const. amend. IV; Colo. Const. art. II, § 7. This constitutional protection extends to nontestimonial identification evidence such as blood, hair, and saliva samples taken from a defendant for forensic testing. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); People v. Diaz, 53 P.3d 1171 (Colo. 2002).
A warrantless search and seizure is presumptively invalid unless justified by one of the established exceptions to the warrant requirement. People v. Allison, 86 P.3d 421 (Colo. 2004). A voluntary consent to the search is one of those exceptions. Petersen v. People, 939 P.2d 824 (Colo. 1997).
Voluntariness requires a free and unconstrained choice and consent that is not the result of duress, coercion, or any other form of undue influence. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness is a question of fact for the trial court to be established by clear and convincing evidence, and the trial court's findings are reviewed under a clear error standard. People v. Drake, 785 P.2d 1257 (Colo. 1990). In determining the validity of a consent, the trial court must look at the totality of the surrounding circumstances, including the age, education, state of mind, and intelligence of the person consenting to the search, as well as the duration and location of the search. People v. Cleburn, 782 P.2d 784 (Colo. 1989).
The Colorado Children's Code provides additional protections for a juvenile. A custodial interrogation requires the presence of a parent, guardian, or other legal or physical custodian unless the juvenile and the responsible adult have both expressly waived the requirement. Section 19-2-511, C.R.S. 2004; People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). The statute thus provides a juvenile with parental guidance during a custodial interrogation to ensure that any waiver of a juvenile's constitutional rights will be made knowingly and intelligently. People v. Blankenship, 30 P.3d 698 (Colo. App. 2000). Furthermore, under § 19-2-511(5), C.R.S. 2004, a juvenile may speak freely with authorities in the absence of his parents or a responsible adult as long as a statutory written waiver is in place prior to any interrogation. See Grant v. People, 48 P.3d 543 (Colo. 2002). This statute codified Miranda warnings in the juvenile context. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Blankenship, supra.
Although the statute expressly covers a juvenile's statements while in custody, the supreme court has also applied the parental presence requirement when a juvenile in custody waives his Fourth Amendment rights. Specifically, a parent or responsible adult must be present to consent freely and intelligently to a valid search. People in Interest of S.J., 778 P.2d 1384 (Colo. 1989); People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971).
Here, while the defendant was in custody, he and his mother twice consented to the search and seizure of his blood, saliva, and hair samples. While still at defendant's home, the deputies discussed with defendant's mother, in his presence, the possibility of doing some forensic testing. Defendant spontaneously interjected that he did not commit the crimes and wanted to take a blood test to prove it. Thereafter, defendant was transported to the sheriff's office.
Defendant was subsequently advised of his rights in the presence of both his mother and father, and both defendant and his parents waived those rights at the sheriff's office. After the waiver, the interrogation consisted solely of defendant stating that he did not commit the crime and that he wanted to take a blood test. After the interrogation, the deputies again raised the possibility of forensic testing to eliminate defendant as a suspect. The deputies explained to defendant's parents the four types of biological samples they wished to take from defendant: blood, saliva, hair from the head, and pubic hair. Both defendant and his parents agreed to the testing. Shortly thereafter, defendant was transported to the hospital for the tests without his parents.
Defendant's parents provided their guidance and advice before, during, and after the interrogation. Their position that they wanted the forensic testing done on their son was consistent throughout. Therefore, there is record support for the trial court's findings that the consent to the search by defendant and his parents was voluntary and not the result of any coercion.
Defendant asks that we extend the protections enumerated in § 19-2-511 to require that a parent or responsible adult be present during the collection of the samples. We decline defendant's request because we cannot see any useful purpose in so extending the statute.
Consequently, the trial court did not err when it denied defendant's motion to suppress.
Defendant contends that the trial court erred in qualifying the prosecution's deoxyribonucleic acid (DNA) expert and that this error violated his right to a fair trial. We disagree.
CRE 702, which governs the admissibility of expert testimony, states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Trial courts are vested with broad discretion in matters of admissibility of expert testimony, and that determination will not be overturned absent an abuse of discretion. Masters v. People, 58 P.3d 979 (Colo. 2002).
A trial court's inquiry should focus on the reliability and relevance of the proffered testimony....
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