Appeal from Sedgwick District Court; WILLIAM F. LYLE, JR., judge.
In this direct appeal of convictions by a jury of aggravated kidnapping, rape, and aggravated criminal sodomy, we hold: (1) The district court correctly denied the defendant's motion to suppress the usage of his DNA profile lawfully obtained by a valid search warrant in a separate case because (a) the defendant's interrogation and statements in the separate case do not directly involve the motion to suppress in this case; (b) the DNA evidence obtained in the separate case was not the fruit of a poisonous tree; (c) the scope of the search warrant in the separate case was not impermissibly exceeded or unreasonably obtained; and (d) once law enforcement has lawfully obtained a material sample and the DNA profile therefrom, a defendant has no additional constitutional protected privacy in that evidence and it may be used in the investigation of other crimes for identification purposes in the same manner as fingerprint evidence may be used without the requirement of obtaining an additional search warrant in the case under investigation.
We further hold: (2) The district court did not abuse its discretion in denying the defendant's motion for a change of venue, (3) the charges in this case were not multiplicitous, and (4) the three convictions in this case were all based on substantial competent evidence sufficient that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
The opinion of the court was delivered by: Larson, J.
Before RULON, C.J., GREENE, J., and LARSON, S.J.
This direct appeal of Rico L. Glynn's jury convictions of aggravated kidnapping, rape, and aggravated criminal sodomy raises a first impression issue in Kansas of whether deoxyribonucleic acid (DNA) testing evidence lawfully obtained in a different case may be utilized in this or a separate case to establish necessary elements of a criminal prosecution.
We hold there is no constitutional violation or infringement of any rights of privacy when the police use a DNA profile lawfully obtained in one case to investigate and charge the DNA donor in a subsequent and different case or cases.
Glynn raises the above issue by contending the district court erred in denying his motion to suppress in this case. He also claims the trial court abused its discretion in denying his motion for a change of venue, the charges for which he was convicted were multiplicitous, and there was insufficient evidence to support his conviction, which requires we set forth the sordid details of the alleged criminal conduct in considerable detail.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of January 30, 2003, while driving home from her chemistry class at Wichita State University, K.F. stopped at a convenience store to buy a few things, leaving her extended cab pickup unlocked when she went inside. After K.F. returned to her truck and started to drive to her nearby home, a man grabbed her from the back seat, held a knife to her throat, and warned her not to move or she would be killed. Continuing his threats, the man directed K.F. to make a U-turn. K.F. complied; she then asked the man if he wanted money and if he was going to hurt her. The man responded that he thought she was somebody else.
The man then directed K.F. to turn into a dark alley and turn off the truck. When K.F. turned off her truck, the man became irritated because the dome light came on automatically. He yelled at her to turn it off, ordered her not to look at him, and told her to get in the back seat. When K.F. unsuccessfully attempted to escape, the man grabbed her and pulled her into the back seat.
Once K.F. was in the back seat, the man pulled K.F.'s pants and underwear down to her knees. The man then inserted his finger into her vagina, asking her if it felt good. K.F. repeatedly said "no" and begged the man to stop. After he removed his finger from her vagina, the man masturbated. He then pulled K.F.'s pants to her ankles and performed oral sex on K.F. as she continued begging him to stop.
Recognizing that she could not escape with her pants and underwear around her ankles, K.F. removed these items as the man performed oral sex on her. The man then sat up, looked around, and reached through the seats to make sure the doors were locked, becoming frustrated when he could not figure out the locks. K.F. took that opportunity to crawl between the seats to the front, telling the man that she was trying to help him. Once in the front seat, K.F. escaped through the passenger door and ran down the street screaming for help. Tuan Tran heard the screaming, opened his door, and offered K.F. help. Tran then took K.F. into his home, gave her a blanket and clothing, and called 911 and K.F.'s husband on her behalf because she was too scared to talk.
When the police questioned K.F., she was visibly shaken but explained in detail what had happened. K.F. did not think she could positively identify her attacker because it was dark and he shielded her attempts to see his face, but she described him as a black male with an unkept mustache and braided hair, wearing light blue sagging blue jeans and a white stocking cap. She had noticed the man near the convenience store and the surveillance tape of the parking lot revealed a man with that description near K.F.'s truck, but the man could not be identified.
Eugene Jacobs, a crime scene investigator, processed K.F.'s truck in the dimly lit alley that same night but did not find any fingerprints that could be used to identify a suspect, nor did his attempts to find bodily fluids by the use of an ultraviolet light prove successful, so the truck was released. But, the next day, Jacobs met K.F.'s husband in the city parking garage and at that time, Jacobs was able to see a small amount of bodily fluid on the back seat. After field testing showed it was semen, Jacobs removed the fabric on which it was located for additional laboratory testing.
Shelly Steadman, the biology and DNA laboratory manager at the Sedgwick County Regional Forensic Science Center, obtained a genetic profile of the suspect through DNA testing on the bodily fluid found on the seat. That DNA profile did not match any of the profiles the police had given Steadman for comparison to identify a suspect. Steadman's lab retained and preserved the fabric and the DNA file.
The investigation continued for several months without success. About 3 months after the crimes against K.F. occurred, police began investigating Glynn's possible involvement in a Wichita home invasion during which a man cut a woman's throat in front of her son and daughter and then stabbed the son. The daughter positively identified Glynn as the assailant, and a cell phone call confirmed Glynn's involvement.
Detective Phil Jacob located Glynn at Lansing Correctional Facility and went there with another officer to attempt to question him. At this point, it was suspected that Glynn might be involved in the crimes against K.F. Glynn would not consent to providing a DNA sample, but Jacob had prepared an affidavit based on all of the facts in the home invasion case for a court-ordered search warrant for two saliva samples by swabbing the inside of each of Glynn's cheeks.
A comparison of Glynn's DNA profile to the DNA profile derived from the bodily fluid found on K.F.'s truck seat revealed the profiles were consistent, meaning Glynn could not be excluded as its possible source. In terms of statistical probability, chances that a randomly selected, unrelated person (other than Glynn) contributed to the DNA found on the truck seat were 1 in 3.94 septillion for the African-American population, 1 in 30.8 septillion for the Hispanic population, and 1 in 1.28 septillion for the Caucasian population.
Glynn was charged with attempted first-degree murder, two counts of aggravated battery, and attempted aggravated battery, in No. 03 CR 1254, the home invasion case. He was later charged with aggravated kidnapping, rape, and aggravated sodomy in No. 03 CR 1459, the case involving the attack on K.F. and the subject of the appeal before us.
Senior Judge William F. Lyle, Jr., presided over both cases and kept them together for control purposes only because of the interrelation of motions filed in the cases. The home invasion case was tried first and the jury convicted Glynn of all charges. Glynn appealed those convictions, and a panel of this court affirmed all of the convictions but remanded for consideration of Glynn's ability to pay the Board of Indigents' Defense Services attorney fees. State v. Glynn, No. 93,124, unpublished opinion filed April 6, 2007 (Glynn I). Glynn's petition for review is currently pending before our Supreme Court.
On June 10, 2003, the State charged Glynn in our case with aggravated kidnapping, rape, and aggravated sodomy. Prior to trial, Glynn moved for a change of venue, which was denied and renewed, and argued a pro se motion to suppress similar to one that had been denied by the court in the home invasion case, which was likewise denied in our case.
After the State presented to a jury the factual and DNA evidence earlier described, the trial court denied Glynn's motion for acquittal and submitted the case. The next morning the jury returned a guilty verdict on all three counts.
The trial court subsequently sentenced Glynn to concurrent terms of 620 months' imprisonment for aggravated kidnapping, 155 months for rape, and 117 months for aggravated sodomy, with postrelease supervision. The trial court further ordered the sentences to run consecutive to Glynn's sentences in the home invasion case and any other sentences Glynn was serving at the time.
Glynn has timely appealed.
DENIAL OF THE SUPPRESSION MOTION
We first consider Glynn's claim that the district court erred in denying his motion to suppress DNA evidence obtained by a search warrant in a separate case.
Our standard of review is well known as we review the factual underpinnings of the decision on a suppression motion by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. Appellate courts do not reweigh evidence, pass on the credibility of witnesses, or ...