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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. I need an experienced attorney to handle a breach of contract matter. Kindly respond for more details. Graham Young

  2. I thought the slurs were the least grave aspects of her misconduct, since they had nothing to do with her being on the bench. Why then do I suspect they were the focus? I find this a troubling trend. At least she was allowed to keep her law license.

  3. Section 6 of Article I of the Indiana Constitution is pretty clear and unequivocal: "Section 6. No money shall be drawn from the treasury for the benefit of any religious or theological institution."

  4. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  5. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

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