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DNA swab of juvenile is not fundamental error

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The Indiana Court of Appeals found police acted improperly in swabbing a teen’s penis to obtain DNA evidence and that the trial court erred in admitting this test into evidence, but that the error was harmless.

The appellate judges affirmed Duane Lee’s 13 convictions, which included Class B felony rape and six counts of criminal deviate conduct as Class A felonies. Lee and two other men committed a home invasion, robbery and rape of the resident, and Lee fled from police. He was 17 years old.

Police called Lee’s mother to consent to a DNA swab of Lee’s mouth, hands and penis. She signed the juvenile waiver without meaningfully consulting Lee. Lee only challenges on appeal the admittance of the evidence from the penile swab, which he did not object to at trial.

Lee argued that the trial court fundamentally erred in allowing the DNA test into evidence because the state didn’t prove it had the legal authority to swab his penis. Since he didn’t object at trial, the state didn’t have to explain its decision then. The state now argues that the juvenile waiver statute doesn’t apply because exigent circumstances required an attempt to collect the victim’s DNA from Lee before any evidence was destroyed. But the only support for the argument that the state was concerned about Lee destroying evidence was that the police detective interrogating Lee would not let Lee wash his hands after going to the bathroom.

In addition, if the detective actually believed the evidence was about to be destroyed and exigent circumstances existed, there wasn’t any reason to get Lee’s mother’s consent, noted Chief Judge Margret Robb in Duane Lee v. State of Indiana, No. 49A04-1105-CR-225.

But this error in obtaining and admitting the evidence at trial does not rise to the level of fundamental error. There was other significant evidence to support Lee’s convictions, including the victim’s testimony and Lee’s DNA found on a ski mask and the victim’s mouth.

 

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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