ILNews

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. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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