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State v. Blea

Court of Appeals of New Mexico

June 21, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOSEPH BLEA, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Judith K. Nakamura, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          MICHAEL VIGIL, JUDGE.

         {¶1} Defendant Joseph Blea was convicted of multiple counts of first degree criminal sexual penetration and first degree kidnapping involving four separate victims in two separate district court cases, and appeals. In both appeals, cause no. A-1-CA-34986 and A-1-CA-35085, Defendant contends that New Mexico's DNA Identification Act (the Act) NMSA 1978, §§ 29-16-1 to -13 (1997, as amended through 2013) is unconstitutional on its face, and on our own motion we consolidated the appeals. We hold that the Act is not unconstitutional on its face, and summarily reject Defendant's remaining contentions. We therefore affirm the judgment and sentence in both cases.

         I. BACKGROUND

         A. Cause No. A-1-CA-34986

         {¶2} On November 2, 1988, A.W. (Victim 1), who was 13 years old, went to her home after school where an unknown man wearing a ski mask was lying in wait, armed with a knife. The man vaginally penetrated Victim 1, and then forced her into the bathroom. After securing the bathroom door so Victim 1 could not escape, the unknown man fled. Victim 1 was taken to the hospital, where a rape kit was obtained and evidence was collected from her. The rape kit and evidence were subsequently analyzed by the Albuquerque, New Mexico Police Department (APD) crime lab, and a DNA profile was obtained which was not Victim 1 's. The foreign DNA profile was entered into the Combined DNA Index System (CODIS) database, but no matches were found. After this initial investigation, the case was closed pending further leads because no person was identified as the perpetrator.

         {¶3}Almost twenty years later, on August 13, 2008, Bernalillo County Sheriffs Department (BCSD) deputies were dispatched to Defendant's home to investigate a violent domestic dispute, and arrested Defendant for aggravated assault against a household member and aggravated battery against a household member. Pursuant to the Act, a buccal cell swab was administered to Defendant at the Bernalillo County Metropolitan Detention Center to obtain a DNA sample. The resulting DNA profile was then entered into the CODIS computer database system. Prosecutors subsequently dismissed the domestic violence charges.

         {¶4} On January 13, 2009, APD Detective Sally Dyer was informed of a CODIS database match involving Victim l's 1988 criminal sexual penetration and foreign DNA collected from a known prostitute who was murdered in Albuquerque in 1985. Defendant was identified as the individual whose DNA matched the foreign DNA in the two cases. However, no arrest was made because APD detectives continued investigating Defendant for almost another year, as a suspect in the disappearance and death of eleven women and a fetus between 2003 and 2006-crimes colloquially referred to as the "West Mesa" killings.

         {¶5} On December 4, 2010, Detective Dyer obtained a search warrant for a buccal cell swab from Defendant to be analyzed and compared to the foreign DNA profile collected in Victim l's criminal sexual penetration case as well as other evidence APD detectives had obtained in connection with the West Mesa killings. Based on the DNA profile obtained as a result of the search warrant, APD forensic scientist, Donna Manogue, determined that Defendant could not be excluded as the source of the foreign DNA taken from Victim 1 in 1988. Defendant was charged with one count of criminal sexual penetration in the first degree, contrary to NMSA 1978, Section 30-9-11(D) (2009), and one count of kidnapping, contrary to NMSA 1978, Section 30-4-1 (2003).

         {¶6} On the day of jury selection, Defendant said that he wanted to waive his appearance at trial because he felt he had no defense, other than those raised by pretrial motions which had already been denied. There was discussion about possible alternatives on how to proceed, and ultimately, it was agreed that the case would be tried to the jury on stipulated facts in Defendant's absence. Defendant signed a waiver of appearance, waiving his right to appear at "all proceedings in this case" and "trial" which the district court approved. A jury was selected, and opening instructions were given to the jury.

         {¶7} The following morning, the district court was advised that the parties had agreed to a set of stipulations, and that Defendant still did not want to be present at trial. It was agreed that the court would read the stipulation of facts to the jury, and by doing so, Defendant would not waive his right to appeal. The stipulation of facts was formally agreed upon, and signed by counsel. Defendant also signed the stipulation of facts stating that:

I have read and understand the above [stipulation of facts]. I have discussed this case and my constitutional rights with my lawyers. I understand that by agreeing to these stipulated facts above, I am agreeing [that] these facts will be presented to the jury as if they came in through the testimony of the state's witnesses. I voluntarily, knowingly and intelligently agree to this stipulation of facts without waiving any prior legal objections I have made in this case. I understand that a stipulation is an agreement that a certain fact is true.

         The parties gave opening statements; the stipulation of facts was read to the jury; exhibits were admitted into evidence by stipulation; the court gave instructions to the jury; the parties gave closing statements; the jury retired to deliberate; and the jury then returned its guilty verdicts in open court. Defendant appeals.

         B. Cause No. A-1-CA-35085

         {¶8} In 2010 and 2011APD Detectives asked APD forensic scientists to analyze and compare the DNA sample taken from Defendant pursuant to the December 4, 2010 search warrant to foreign DNA samples retrieved from three other victims of criminal sexual penetration which occurred in 1990 and 1993. The APD forensic scientists determined that Defendant could not be excluded as the source of the foreign DNA sample taken from the anal swab from K.H. (Victim 2), and vaginal swabs from A.M. (Victim 3) and L.O. (Victim 4). As a result, Defendant was charged in a subsequent indictment with six counts of criminal sexual penetration in the first degree, contrary to Section 30-9-11(D), and kidnapping of Victim 2, contrary to Section 30-4-1; three counts of criminal sexual penetration in the first degree, contrary to Section 30-9-11(D), and one count of kidnapping of Victim 3, contrary to Section 30-4-1; and two counts of criminal sexual penetration in the first degree, contrary to Section 30-9-11(D), and one count of kidnapping of Victim 4, contrary to Section 30-4-1.

         {¶9} Defendant then entered into a conditional plea and disposition agreement approved by the district court in which Defendant agreed to plead no contest to two counts of criminal sexual penetration in the first degree of Victim 2; two counts of criminal sexual penetration in the first degree of Victim 3; and one count of criminal sexual penetration in the first degree and one count of kidnapping of Victim 4. The plea was conditioned on Defendant reserving his right to appeal: (1) whether the Act is constitutional under the Fourth Amendment and the New Mexico Constitution; (2) whether the statute of limitations was improperly applied to his case; and (3) whether the December 4, 2010 search warrant was defective, as not being issued by an impartial magistrate. With regard to these issues, the parties also agreed that all pertinent pleadings, arguments and rulings made in cause no. D-202-CR-2010-04089 (cause no. 4089) were deemed to be incorporated and binding in cause no. D-2O2-CR- 2013-01243 (cause no. 1243), and the parties entered into a stipulation of facts (SOF) which Defendant agreed would constitute the uncontested facts on appeal. Defendant appeals.

         II. Constitutionality of the DNA Identification Act

         {¶10} In 1994, Congress enacted legislation authorizing the Federal Bureau of Investigation (FBI) to establish an index of DNA samples. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2065 (codified, as amended at 34 U.S.C. §§ 12101 to 12643 (2012)). Under this authority, the FBI created CODIS, which "allows State and local forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system." H.R. Rep. No. 106-900, pt. 1 at 8 (2000), reprinted in 2000 U.S.C.C.A.N. 2323, 2424.

         {¶11} New Mexico elected to participate in CODIS with the adoption of the Act in 1997. 1997 N.M. Laws, ch. 105. The Act provides for the "collection, storage, DNA testing, maintenance and comparison of samples and DNA records for forensic purposes" and it specifies that procedures "shall meet or exceed the provisions of the federal DNA Identification Act of 1994 regarding minimum standards for state participation in CODIS, including minimum standards for the acceptance, security and dissemination of DNA records[.]" 1997 N.M. Laws, ch. 105, § 4(B)(1).

         {¶12} The Act originally only required convicted felons to provide DNA samples for inclusion in the DNA identification system. 1997 N.M. Laws, ch. 105, § 2(A) (stating that a purpose of the Act is to "establish a DNA identification system for covered offenders"); 1997 N.M. Laws, ch. 105, § 3(D) (defining a "covered offender" to mean "any person convicted of a felony offense as an adult under the Criminal Code, the Motor Vehicle Code or the constitution of New Mexico or convicted as an adult pursuant to youthful offender or serious youthful offender proceedings under the Children's Code[.]"); 1997 N.M. Laws, ch. 105, § 6 (requiring "covered offenders" to provide DNA samples).

         {¶13} In 2006 the Act was expanded to require persons eighteen years of age or older who were arrested for the commission of specified felony offenses to provide a DNA sample to jail or detention facility personnel "upon booking." 2006 N.M. Laws, ch. 104, § 1 (A). The felonies specified were sex offenses defined as felonies and all other felonies involving death, great bodily harm, aggravated assault, kidnapping, burglary, larceny, robbery, aggravated stalking, use of a firearm or an explosive, or a violation of the Antiterrorism Act. 2006 N.M. Laws, ch. 104, 1(D)(3)(b). The DNA of these arrestees was included in the DNA identification system. See id. § 2(A) (stating that an additional purpose of the Act is to establish a DNA identification. system for individuals arrested for the specified felonies).

         {¶14} In 2011, the Legislature further expanded the Act to require any person eighteen years of age or older "who is arrested for the commission of a felony" to "provide a DNA sample to jail or detention facility personnel upon booking." 2011 N.M. Laws, ch. 84, § 1(A). However, the DNA sample may only be included in the DNA identification system if "the arrest was made upon an arrest warrant for a felony;" or the defendant had "appeared before a judge or magistrate who made a finding that there was probable cause for the arrest;" or "the defendant posted bond or was released prior to appearing before a judge or magistrate and then failed to appear for a scheduled hearing." 2011 N.M. Laws, ch. 84, § l(B)(1)-(3). In all other cases, the DNA sample collected from a person arrested "shall not be analyzed and shall be destroyed." 2011 N.M. Laws, ch. 84, § 1 (B).

         {¶15} This case concerns the Act as it existed following the 2006 legislation, and is codified as NMSA 1978, §§ 29-16-1 to -13 (2007). The current Act includes the changes made in 2011 and is codified as Section 29-16-1 to -13 (2013).

         A. Defendant's Motions To Suppress

         {¶16} Defendant filed motions to suppress the DNA evidence collected from him in connection with his arrest for domestic violence in 2008, arguing that the seizure of his DNA pursuant to the Act violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. After a hearing at ...


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