People v. Morales

• Decision Date: 05 January 2012
• Docket Number: No. 09CA1634.,09CA1634.
• Citation: 298 P.3d 1000
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Daniel Gabriel MORALES, Defendant–Appellant.
• Court: Colorado Court of Appeals

298 P.3d 1000

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Daniel Gabriel MORALES, Defendant–Appellant.

No. 09CA1634.

Colorado Court of Appeals,

Div. VI.

Jan. 5, 2012.

John W. Suthers, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Samler & Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge LOEB.

¶ 1 Defendant, Daniel Gabriel Morales, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree burglary of a dwelling and theft. We affirm.

I. Background

¶ 2 In May 2006, Christopher Cheek purchased a house located on South Stuart Street in Denver (the Stuart home). Cheek and his business partner intended to renovate the house and sell it for a profit. During the renovation, nobody was living in the Stuart home, although testimony at trial showed the previous owner and her family had lived in the home for thirty-five years. Further, during the renovation process, the Stuart home was vacant at night and on weekends, and no lights were kept on at those times because there was no construction activity then.

¶ 3 On Friday, August 11, 2006, Cheek stopped work at the Stuart home after cleaning all the floors in the home, including the kitchen, and went home for the weekend. He did not return to the Stuart home until Monday, August 14, 2006 when he discovered that about $5,000 worth of construction tools were missing. There were no signs of forced entry. Cheek called the police a day later. During the initial investigation by police, no evidence was found, no potential witnesses were discovered, and police never recovered the stolen tools.

¶ 4 Two days after Cheek first called the police, he found a hand-rolled cigarette butt in the kitchen of the Stuart home. He called Detective Stanford, the detective assigned to the case, who collected the hand-rolled cigarette and had it tested for DNA evidence. Later DNA testing confirmed that the DNA taken from the cigarette butt matched that of defendant.

¶ 5 Testimony at trial established that on Saturday, August 26, 2006, a police officer received a call from dispatch of an alleged burglary in progress of a house located on West Cedar Avenue in Denver (the Cedar home). The officer also received information describing the make, model, and license plate number of the suspect's van. The officer responded to the call and, while making his way toward West Cedar Avenue, noticed the van described in the call driving in front of him. He followed the van and eventually pulled it over. The officer found about $8,000 worth of construction tools in the van, and he arrested the suspect, later identified as defendant, in connection with this incident.

¶ 6 After defendant had been arrested and taken to the police station for processing, Detective Stanford arrived at the scene of the stop, having been assigned to the Cedar home case as well. The detective and other officers inspected the inside of defendant's van and found a pouch of loose tobacco, cigarette rolling papers, and, in the ashtray, several hand-rolled cigarette butts. Defendant was charged with burglary and theft in connection with the Cedar incident. He was convicted of theft and acquitted of burglary, and his conviction in that case is not part of this appeal.

¶ 7 In connection with the Stuart home burglary, defendant was charged with second degree burglary of a dwelling, a class 3 felony, and theft. At trial, evidence of the Cedar home incident was admitted as evidence of other acts pursuant to CRE 404(b). The jury found defendant guilty of both second degree burglary of a dwelling and theft. This appeal followed.

II. Stipulation

¶ 8 Defendant contends that the trial court abused its discretion by not requiring the prosecution to stipulate to the fact that the DNA from the cigarette butt found in the Stuart home matched his DNA. We disagree.

¶ 9 The prosecution is generally entitled to prove the elements of its case against a defendant by evidence of its own choice, and a defendant “may not stipulate or admit his way out of the full evidentiary force of the case as the [prosecution] chooses to present it.” Old Chief v. United States, 519 U.S. 172, 186–87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); see Martin v. People, 738 P.2d 789, 794 (Colo.1987). However, if the defendant offers to stipulate to a fact and the prosecution's case is not thereby weakened, the prosecution may be required to accept the stipulation if the probative value of the offered evidence is substantially outweighed by the danger of unfair prejudice. See Martin, 738 P.2d at 794;People v. St. James, 75 P.3d 1122, 1125 (Colo.App.2002); see alsoCRE 401, 403.

¶ 10 In making this determination, the trial court is afforded considerable discretion, and its ruling will not be disturbed on appeal absent an abuse of that discretion. People v. Clary, 950 P.2d 654, 658 (Colo.App.1997); People v. Brewer, 720 P.2d 583, 586–87 (Colo.App.1985).

¶ 11 As noted, a few days after the Stuart home incident, Cheek found a hand-rolled cigarette butt in the kitchen of the Stuart home. He called Detective Stanford, the detective assigned to the case, who, after learning from Cheek that he did not smoke, went to the Stuart home and retrieved the cigarette butt. Later, police were able to develop a DNA profile from saliva found on the cigarette butt.

¶ 12 After the DNA profile was developed, police compared it with DNA profiles listed in the Combined DNA Index System (CODIS). CODIS is a national DNA database that contains, most prominently, the DNA profiles of individuals who have been previously convicted of crimes. Because defendant had prior criminal convictions, his DNA profile was listed in CODIS.

¶ 13 Once it was determined that the DNA profile developed from the cigarette butt matched defendant's DNA profile listed in CODIS, the detective sought out defendant to obtain a “confirming swab”—a DNA sample of saliva and skin cells taken from the inside of defendant's cheek. As established through expert testimony at trial, the DNA profile developed from the “confirming swab” matched the DNA profile from the cigarette butt.

¶ 14 On the morning of trial, in an effort to “protect the defendant,” the prosecution offered to stipulate regarding the DNA evidencein the case and proposed the following stipulation:

The prosecution and the defense stipulate to the following: DNA profile was developed from the saliva found on the cigarette butt found in Christopher Cheek's kitchen at 840 South Stuart Street. As Detective Stanford continued investigating this matter he received information concerning [defendant] as a possible suspect. You are not to speculate or draw any conclusions as to what that information was. Based upon that information the defendant ... was contacted.

¶ 15 Defense counsel rejected the proposed stipulation out of concern that the language “Detective Stanford continued investigating the matter” would mislead jurors into thinking there was additional evidence that they were not hearing. On appeal, defendant further argues that, under the prosecution's proposed stipulation, the jury would necessarily question how, after the detective obtained the DNA profile from the cigarette butt, he was led to suspect defendant and obtain the confirming swab in the first instance. In that regard, defendant contends that the jury would have been able to infer that his DNA profile was listed in a DNA database and, in turn, that he had prior criminal convictions, because the public is generally aware the DNA databases typically contain the DNA profiles of individuals with prior criminal convictions.

¶ 16 Accordingly, as an alternative to the prosecution's proposed stipulation, defense counsel stated that her preference was simply to stipulate that “the DNA matches [defendant]” and asked the court to require the prosecution to accept such a stipulation.

¶ 17 In an oral ruling, the court refused to do so, in part because of the contested issues in the case and the probative value of the prosecution's DNA evidence:

The identification in this case is the heart of the District Attorney's case. There's no question that DNA testimony has impact and will certainly draw interest from the jury.

... But here, there is no other testimony relating to the defendant or tying the defendant in any way to the house or to the goods involved. In that case I believe that the Court would err if I forced the District Attorney to agree to the stipulation. Accordingly, I will allow the District Attorney to present [DNA] evidence....

¶ 18 The next day, defense counsel offered her own stipulation, as follows:

A DNA profile was developed from the saliva found on the cigarette butt found in Christopher Cheek's kitchen at 840 South Stuart Street. This DNA profile matched known samples of [defendant's] DNA. Based on this information Detective Stanford contacted [defendant] about this case.

The prosecution objected to defense counsel's proposal. Defense counsel then asked the court to require the prosecution to accept the stipulation that the “DNA evidence matches [defendant's] DNA.” Again, the court declined to do so.

¶ 19 Ultimately, at trial, the prosecution called two witnesses from the Denver Crime Lab to testify regarding the DNA evidence. Detective Stanford also testified about obtaining the “confirming swab” from defendant. However, none of the prosecution's witnesses mentioned CODIS or any DNA database in their testimony, nor did they even intimate that a DNA database was used to obtain defendant's initial DNA match.

¶ 20 Based on our review of the record, we conclude that the trial court did not abuse its discretion in refusing to require the prosecution to accept defense counsel's proposed stipulation. The prosecution was entitled to prove the elements of its case against defendant by relying on DNA evidence and testimony about that...