ILNews

DNA swab of juvenile is not fundamental error

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

ADVERTISEMENT