People v. Luna-Solis

• Decision Date: 08 April 2013
• Docket Number: Supreme Court Case No. 12SA75
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant v. Jesus LUNA–SOLIS, Defendant–appellee
• Court: Colorado Supreme Court

298 P.3d 927

The PEOPLE of the State of Colorado, Plaintiff–Appellant

v.Jesus LUNA–SOLIS, Defendant–appellee

Supreme Court Case No. 12SA75

Supreme Court of Colorado.

April 8, 2013

Interlocutory Appeal from the District Court and Original Proceeding Pursuant to

C.A.R. 21, Arapahoe County District Court Case No. 09CR1836 Honorable John L. Wheeler, Judge

Attorneys for Plaintiff–Appellant: Carol Chambers, District Attorney, Eighteenth Judicial District, Susan J. Trout, Senior Deputy District Attorney, Centennial, CO.

Attorneys for Defendant–Appellee: Douglas K. Wilson, Colorado State Public Defender, Natalie Girard, Deputy State Public Defender, Centennial, CO.

En Banc

JUSTICE COATS delivered the Opinion of the Court.

¶ 1 The People filed an interlocutory appeal pursuant to section 16–12–102(2), C.R.S. (2012), and C.A.R. 4.1, as well as a petition pursuant to C.A.R. 21, seeking relief from an order of the district court both suppressing statements of the defendant and excluding DNA evidence. Although the district court found that the statements in question were voluntary and were made after an effective waiver of Miranda rights, it nevertheless suppressed them on grounds that the Sixth Amendment barred the Denver police from questioning the defendant about an ongoing prosecution unless his counsel in that case were present. The district court similarly excluded DNA evidence collected by the Denver police in the execution of a Crim. P. 41.1 order of the Denver County Court, on grounds that they sought the order, at least in part, for the benefit of the prosecution in this case, and that after filing a motion to admit evidence of an uncharged Denver assault in this case, the prosecution was permitted to acquire non-testimonial identification evidence from the defendant, even to verify his identity as a perpetrator in the Denver assault, only according to Crim. P. 16 II(a)(2), governing discovery in this case.

¶ 2 Because the defendant's Miranda waiver effectively waived his right to counsel as guaranteed by not only the Fifth but also the Sixth Amendment, the district court erred in suppressing statements as a violation of the defendant's Sixth Amendment right to counsel. Because Crim. P. 16 II imposes disclosure obligations on criminal defendants without simultaneously barring the use of evidence acquired through otherwise lawful investigation, the district court erred in finding a discovery violation and excluding DNA evidence. The district court's suppression order is therefore reversed, our rule is made absolute, and the case is remanded for further proceedings consistent with this opinion.

I.

¶ 3 In 2011, Jesus Luna–Solis was charged in Arapahoe County with various counts of kidnapping, sexual assault, and conspiracy, arising from a sexual assault committed by multiple assailants in April 2003. Following a hearing and arguments of counsel, the district court issued a 23–page order, resolving a number of motions concerning the admissibility of evidence from the investigation of a 2002 sexual assault in Denver. The court found evidence of this as-yet-uncharged Denver assault generally admissible pursuant to section 16–10–301, C.R.S. (2011), and CRE 404(b), but it excluded certain evidence as having been obtained without notice to and outside the presence of defense counsel in this case. Specifically, the court excluded evidence of a match between samples obtained from the defendant and DNA discovered on the victim of the Denver assault as the sanction for a discovery violation, and in the same order it suppressed an incriminating statement concerning the Arapahoe County assault, made to the Denver police, as a violation of the defendant's Sixth Amendment right to counsel.

¶ 4 With regard to the similarity of the two assaults, the district court found that “the facts of the 2002 Denver sexual assault closely parallel those alleged in [this case], including an abduction of a female pedestrian late at night in the Denver metropolitan area by multiple males in an automobile, transport to a secluded area, oral and vaginal sexual assault, and subsequent abandonment.” From the documents submitted to and relied on by the court in ruling on this group of motions, it appeared that the prosecution's theory of admissibility was premised on the proposition that if the defendant and another man were accomplices in committing a very similar sexual assault, relatively close in time and location to the one for which the defendant is charged in this case, and it could be shown that the other man was one of those involved in the commission of this assault, it would be reasonable to infer that the defendant was also the other man's accomplice in this assault as well. The prosecution's interest in supporting this theory by demonstrating that the defendant was the second assailant in the Denver assault led to the court's evidentiary rulings now challenged on review.

¶ 5 The record on appeal indicates that although both sexual assaults remained unsolved for a number of years, DNA left in both assaults was matched to the same unknown assailant. Unlike the Arapahoe assault, in which DNA from only one of the assailants was recovered, in the Denver assault DNA was also recovered from a second assailant. As the result of an otherwise unrelated conviction in another jurisdiction, a 2009 tentative DNA computer (CODIS) match pointed to the defendant in this case as the second assailant in the Denver assault. After additional investigation, including a photographic line-up at which the Arapahoe assault victim picked the defendant as one of her assailants, the current charges were brought in Arapahoe County.

¶ 6 In addition to moving to admit evidence of the Denver assault as uncharged criminal misconduct, the Arapahoe prosecutors moved pursuant to Crim. P. 16 II(a)(2) for non-testimonial identification, in order to confirm the tentative match in the Denver assault, and a DNA sample was therefore obtained from the defendant by the Aurora police. Because the Denver Crime Lab, however, declined to rely on samples not obtained by its own department, and because Denver had by then reopened its own investigation of the 2002 assault, Denver detectives obtained a Crim. P. 41.1 order for non-testimonial identification from the Denver County Court and executed it without notifying the defendant's counsel in this ongoing prosecution. When the sample obtained pursuant to that order was subsequently analyzed by the Denver Crime Lab, it was determined to match the DNA profile for the second assailant on file in the 2002 Denver assault case. If the DNA evidence were credited by the trier of fact, it therefore would provide powerful evidence that the defendant and another unnamed man committed the Denver assault together and that this other man, along with at least one accomplice, committed the similar Arapahoe assault.

¶ 7 Prior to executing the non-testimonial identification order, the Denver detectives interviewed the defendant at the Arapahoe County jail, where he was already in custody. The district court below found that the defendant was brought to an interview room and told that the detectives wanted to discuss a 2002 Denver sexual assault. Although the defendant initially responded that he should probably have an attorney, and the detectives therefore turned to pack up their recording device and simply collect the DNA sample, the defendant then “voluntarily and without solicitation or encouragement engaged Detective Garcia about the 2002 sexual assault case.” The court found that following a full advisement and waiver of his Miranda rights, the ensuing interview neither violated the defendant's rights under Miranda nor resulted in any involuntary statements.

¶ 8 Notwithstanding compliance by the Denver police with the Denver court's Crim. P. 41.1 order and the dictates of Miranda, the district court below excluded from this prosecution evidence derived from the DNA sample obtained by the Denver police and suppressed one particular sequence of questions and answers from the defendant's interview with them.

¶ 9 With regard to the DNA sample, the court reasoned that once the prosecutor in this case filed a motion to admit evidence of the Denver assault, any facts supporting the defendant's guilt of that assault would also be evidence of his guilt of the Arapahoe County assault, and therefore in developing evidence concerning the Denver assault, the prosecution was obliged to comply with the discovery rules governing this prosecution. Finding that the Denver detectives were aware that evidence developed for the Denver case would also be offered in this case, the court concluded that any non-testimonial identification testing concerning the Denver assault required advance notice to defense counsel in this case, as would have been the case had the prosecution sought an order pursuant to Crim. P. 16 II(a)(2). Alternatively, the court found simply that the Denver police were acting as agents of the Arapahoe prosecutor in developing evidence for this case, and therefore the discovery rules governing this case controlled over the procedural requirements of any other vehicle for acquiring non-testimonial identification.

¶ 10 With regard to the interview by the Denver police, the court found that they violated the defendant's Sixth Amendment right to counsel by questioning him about a case in which he was already charged and represented by counsel. In the particular exchange at issue, the detectives asked the defendant whether he ever owned a car. When he responded that although he never owned a car, he had at some point been lent one, they pursued him concerning its make and model, and the defendant indicated the car was a yellow Lincoln. Because the victim in the Denver assault had been unable to identify her assailants' vehicle, but the victim in the Arapahoe assault had identified it as a yellow Lincoln, the district court found that, in...