People v. Adams

489 N.W.2d 192, 195 Mich. App. 267

• Court: Michigan Court of Appeals
• Decided: August 3, 1992
• Docket: Docket 125921
• Status: Published

Opinions

Holbrook, Jr., P.J.

Defendant appeals as of right his jury conviction of one count of kidnapping, MCL 750.349; MSA 28.581, two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of armed robbery, MCL 750.529; MSA 28.797. He claims that the trial court erred in admitting into evidence the results of deoxyribonucleic acid (dna) identification testing completed on a sample of dried semen taken from the victim’s blue jeans. After carefully reviewing the evidence, we find that the trial court did not err in allowing the results in evidence. Defendant also claims that the trial court erred in failing to articulate sufficient reasons for imposing disproportionate sentences that departed from the sentencing guidelines range. We agree, and thus remand to the trial court for resentencing.

The Davis-Frye rule, adopted from People v Davis, 343 Mich 348; 72 NW2d 269 (1955), and Frye v United States, 54 App DC 46, 47; 293 F 1013 (1923), allows the admission of expert testimony regarding novel scientific evidence only if that evidence has gained general acceptance among scientific experts in the field. The party offering the evidence carries the burden of demonstrating its acceptance in the scientific community. People v Young, 418 Mich 1, 21, n 7; 340 NW2d 805 (1983); People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991). The trial court’s findings of fact regarding this issue will not be disturbed on appeal unless they are clearly erroneous. MCR 2.613(C); Gistover, p 46. A finding will be determined to be clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. Id.

Before reviewing the laboratory procedures, an understanding of the structure of the dna molecule is necessary. The molecule is a double helix, shaped like a twisted ladder. Phosphate and deoxyribose sugar form the rails of the ladder. Four chemical bases—Adenine (a), Cytosine (c), Guanine (g), and Thymine (t)—lie next to each other on the sugar links along the sides of the ladder. Each A always bonds with a t on the other side of the ladder, and each c always bonds with a G on the other side of the ladder, so that the possible base pairs on the ladder are a-t, t-a, c-g, and g-c. The base pairs are connected by a hydrogen bond, such that the bonds form the rungs of the ladder. There are approximately three billion base pairs in one dna molecule. Although no two human beings have the same sequence of base pairs (except for identical twins), we share many sequences that create common characteristics such as arms, legs, fingers, and toes. The sequences of variation from person to person are known as polymorphisms. They contain different alleles, which are alternate forms of a gene capable of occupying a single location on a chromosome. Polymorphisms are the key to dna identification because they create the individual characteristics of everyone and are detectable in laboratory testing.

As described in the lower court proceedings, testing for dna identification involves several procedures. Cellmark Diagnostics is the company that did the laboratory testing in this case. The preliminary procedure is extracting a dna molecule from a cell. This can be accomplished by a protein enzyme, proteinase, and a soap breaking the cell membrane. Organic solvents are used to separate the dna from protein, carbohydrates, and lipids.

Dna identification begins when the dna is cut into pieces creating restriction fragment length polymorphisms (rflp). In this phase, restriction enzymes from bacteria digest the dna into fragments that the enzymes recognize. The goal of the forensic application of dna identification is to isolate the few sequences of base pairs that are not identical in all humans.

The next step in the process is electrophoresis, which separates the different sizes of dna.¹ The dna is placed in a gel called agarose. The gel contains lanes. A dna sample from the victim, the suspect, and from the crime scene evidence is loaded into separate lanes. Because dna has a negative electrical charge, a positive current is run through the gel. The smaller, lighter fragments migrate toward the positive electrode faster than the bigger, heavier fragments. The dna is then filtered to another medium where the fragments can be better seen. The dna is stained with ethidium bromide so that it can be illuminated by ultraviolet light.

After separating the dna by size, the two strands of the double-helix dna are denatured. A solution of alkali separates the dna, like opening a zipper or splitting the rungs of the ladder. The single strands of dna are then transferred onto a nylon membrane. The process of transferring the dna from the gel to the nylon membrane is known as "Southern blotting,” named for the person who originated the technique, E.M. Southern. In fact, the first six steps in the process, from the cutting of the dna by the enzyme to the making of the autoradiogram (discussed below), are sometimes referred to as Southern blotting.

The next step is hybridization. Radioactively labeled dna probes mark the rflp for identification. The probes seek and attach, or hybridize, to the dna on the nylon membrane. The residual probes that do not find complimentary dna are then washed off the nylon filter. The filter is then placed underneath an x-ray film and developed into an autoradiogram. Dark bands appear on the autoradiogram where the probes hybridized to dna. A single probe produces two bands on the autoradiogram. Cellmark uses four single locus probes at the same time, thus producing eight bands. Single locus means the probe attaches to dna from one pair of chromosomes.

The results of the autoradiogram are then interpreted by examining the bands to determine if they match. This process, as well as the statistical analysis, was explained in People v Axell, 235 Cal App 3d 836, 847; 1 Cal Rptr 2d 411 (1991):

Essentially the bands on the autorad from the victim’s, suspect’s, and crime scene evidence samples are "eyeballed” to see if they match within a certain measurement. If a match is declared, the likelihood that a match is unique must be determined. A match is said to occur if the sizes and number of the detected dna fragments in various lanes are indistinguishable within a permissible degree of error. To calculate the permissible degree of error, Cellmark uses "resolution limits” as a unit of measurement to ascertain the "bin” or frequency at which an allele occurs in the population data base.

To make a statistical evaluation of the data obtained from a dna typing, it is necessary to know how frequently in the population a band of a certain size will be found, a question answered according to the principles of population genetics. Each probe recognizes a pair of bands—one from each parent. The probability of the combination of two particular bands recognized by one of the probes is calculated by multiplying the product of the frequencies of the two bands by two. The probability of the band patterns from all four loci is determined by multiplying the products from all four loci. This is known as the "product” or multiplication rule.

The validity of this procedure presupposes that each fact observed, and entering into the calculation, is random and independent of the others, or adjustments are made for deviations from conditions known as "Hardy-Weinberg equilibrium” and "linkage equilibrium.” The Hardy-Weinberg principle is an algebraic equation that describes the genetic equilibrium within a population, assuming random mating. A homozygote is an individual who has inherited the same allele (or same length allele) from both parents. If the incidence of homozygosity far exceeds the expected frequency of that condition, then the data base population is not in Hardy-Weinberg equilibrium. [Citations omitted.]

For a further, more detailed explanation of the dna identification process and statistical analysis, see People v Castro, 144 Misc 2d 956, 964-970; 545 NYS2d 985 (1989).

At the pretrial hearing in this case, the preliminary examination testimony of Doctor David Houseman was incorporated into the record. Dr. Houseman is a professor of molecular biology at the Massachusetts Institute of Technology. He reviewed Cellmark’s procedures at their laboratory. He testified that Southern blotting was applied worldwide in the diagnosis of genetic conditions such as cystic fibrosis, muscular dystrophy, and Huntington’s disease. He stated that the test was generally accepted in the scientific community as reliable.

The prosecution first presented at the hearing Doctor Bonnie Blomberg, an associate professor of molecular biology and immunology at the University of Miami School of Medicine. For the past ten years she has utilized the Southern blotting technique in researching ailments such as Graves’ disease. She visited Cellmark’s laboratory and is familiar with their procedures. The only difference between her research and Cellmark’s testing was the use of different probes. She testified that Cell-mark’s technique was generally accepted in the scientific community as reliable.

The prosecution next called Doctor Michael Imperiale as an expert witness. Dr. Imperiale is an assistant professor of microbiology and immunology at the University of Michigan. He uses the Southern blotting technique in studying cancer-causing viruses. After reviewing Cellmark’s protocols and visiting their laboratory, Dr. Imperiale stated that Cellmark’s procedures conformed to his laboratory’s standards regarding Southern blotting.

The next expert presented by the prosecution was Doctor George Herrin, Jr. His entire hearing testimony is not included in the lower court record provided to this Court. Nevertheless, Dr. Herrin, the dna unit supervisor at the Georgia Forensic Laboratory and former staff scientist at Cellmark, testified at trial that the kflp test was generally accepted in the scientific community.

The final expert called by the prosecution to testify at the hearing was Doctor David Ginsburg, who is employed at the University of Michigan medical school as a molecular biologist focusing on the genetics of bleeding disorders. He routinely uses the Southern blotting technique in the laboratory. Dr. Ginsburg also observed Cellmark’s method of operations and reviewed their protocols. He concluded that the Southern blotting technique performed by Cellmark was generally accepted within the scientific community as accurate and reliable.

Defense counsel then called an expert witness, Doctor Robert Sever. Dr. Bever is an associate director at Genetic Design, Incorporated, a paternity testing laboratory. He is familiar with and has performed the Southern blotting technique. He also stated that the dna identification as performed by Cellmark is generally accepted within the scientific community as reliable.

All the expert witnesses testified that dna identification is generally accepted in the scientific community. These witnesses were unquestionably disinterested and impartial experts in this particular field. People v Young (After Remand), 425 Mich 470, 479-480; 391 NW2d 270 (1986). Further, the Congressional Office of Technology Assessment has found that dna identification testing is valid and reliable in forensics when properly performed and analyzed by skilled personnel. Axell, pp 858-859. Indeed, all other jurisdictions that have addressed the admissibility of the results of dna identification testing, under either a Davis-Frye standard or a reliability test under rules of evidence, have concluded that dna identification testing is reliable. Axell, p 856; Castro, p 973 (although the procedure is reliable, the evidence was inadmissible because the testing laboratory failed to use generally accepted scientific techniques); United States v Jakobetz, 955 F2d 786 (CA 2, 1992); Prater v State, 307 Ark 180; 820 SW2d 429, 436 (1991); Commonwealth v Curnin, 409 Mass 218; 565 NE2d 440 (1991); People v Lipscomb, 215 Ill App 3d 413; 574 NE2d 1345, 1357 (1991); Hopkins v State, 579 NE2d 1297, 1302 (Ind, 1991); State v Brown, 470 NW2d 30, 32-33 (Iowa, 1991); Smith v Deppish, 248 Kan 217, 238; 807 P2d 144 (1991); State v Davis, 814 SW2d 593 (Mo, 1991); State v Wimberly, 467 NW2d 499, 505-506 (SD, 1991); Caldwell v State, 260 Ga 278, 285-287; 393 SE2d 436 (1990); State v Pennington, 327 NC 89, 101; 393 SE2d 847 (1990); Kelly v State, 792 SW2d 579, 585 (Tex App, 1990); Glover v State, 787 SW2d 544, 548 (Tex App, 1990); State v Ford, 301 SC 485, 490; 392 SE2d 781 (1990); State v Schwartz, 447 NW2d 422 (Minn, 1989) (dna test results are admissible if performed with appropriate laboratory standards, but the results were found inadmissible there because the laboratory did not comport with quality guidelines); State v Woodall, 182 W Va 15; 385 SE2d 253 (1989) (testing procedures are reliable, but the results were inadmissible because they were inconclusive); Andrews v State, 533 So 2d 841 (Fla App, 1988); Cobey v State, 80 Md App 31; 559 A2d 391 (1989).

Defendant in this case acknowledges that gel electrophoresis is a generally accepted scientific method, but protests that the forensic application of the method is invalid. He raises the problem of crime-scene contamination. He also mentions the scarcity of dna samples from the crime scene that limits the availability of repeated testing.

We do not require scientific tests to be infallible, but only that reasonable certainty follow from them. People v Barbara, 400 Mich 352, 365; 255 NW2d 171 (1977). Dr. Imperiale testified that if contamination were to occur, the testing would yield no result because of the total degradation of the dna molecule. Alternatively, contamination would result in extra bands appearing on the autoradiogram. Compare Young (After Remand), p 500 (the effects of contamination on electrophoresis was not clear.) Unlike Castro, there was no indication of extra bands in this case. Dr. Blomberg stated that Cellmark’s probes do not bind to either viral or bacterial dna. Moreover, the dna identification testing cannot result in a "false positive,” i.e., a false match of the suspect’s dna and the sample from the crime scene. If the laboratory fails to take the proper steps in the procedure, no readable result is visible on the autoradiogram.

We conclude that the trial court did not clearly err in finding that the prosecution established that dna identification testing is generally accepted in the scientific community as reliable. Given the overall acceptance of the technique in other jurisdictions, we hold that trial courts may take judicial notice of the reliability of dna identification testing. Woodall; Jakobetz. Nevertheless, before a trial court admits the test results into evidence, the prosecutor must establish in each particular case that the generally accepted laboratory procedures were followed. See Barbara, p 415; People v Lucas, 188 Mich App 554, 580; 470 NW2d 460 (1991); Cf. Jakobetz. We are satisfied that Cell-mark followed the generally accepted procedures in this case.²

Defendant argues that the statistical analysis of the dna identification testing is inadmissible at trial. He questions the notion of the Hardy-Weinberg equilibrium, contending that populations fail to randomly mate because identifiable subpopulations tend to mate within their own ethnic community because of economic forces and lack of social mobility.³ Defendant claims that the danger with dna identification evidence is that "trial by mathematics” will evolve. At trial, Dr. Herrin testified that the statistical possibility of matching the seven bands on the crime scene autoradiogram was one in four hundred million.

Defendant’s contentions are inconsistent with the testimony presented in the lower court. Dr. Ginsburg testified that he was familiar with the gene and allele frequency computations of Cell-mark and thought they were valid. He stated that their calculations tended to be conservative. The markers Cellmark uses are highly polymorphic, meaning that the results of the testing include numerous possibilities of alleles. Consequently, the possibility of an independent match of bands can be calculated to a high degree of probability. Defendant’s expert witness, Dr. Bever, did not question the validity of Cellmark’s computations, but only stated that he would be more confident of the results if Cellmark used a larger database. Notwithstanding this concern, one expert testified that a statistical analysis can be recomputed using the latest available database without repeating the Southern blotting procedures.

The defendant fails to persuade us that the admission of dna identification evidence will lead to an improper trial by mathematics. In People v Collins, 68 Cal 2d 319; 438 P2d 33 (1968), the Supreme Court of California held that the trial court erred in admitting without an adequate evidentiary foundation and proof of statistical independence evidence regarding the mathematical probability of persons with the defendant’s characteristics having committed the robbery. Unlike Collins, the lower court record in this case contains an adequate foundation and proof of independence of the statistical analysis. The results of dna identification testing would be a matter of speculation without the statistical analysis, and it does not remove the issue of identity from the jury, which is free to disregard or discredit the evidence. Brown, p 33. Like the statistical evidence concerning serological testing, the statistical evidence is relevant in this case, and any question concerning the size of the database or the Hardy-Weinberg equilibrium goes to the weight of the evidence and is properly left to the jury. People v Proveaux, 157 Mich App 357, 365-366; 403 NW2d 135 (1987).

Some courts of other jurisdictions have ruled that dna identification evidence is admissible at trial, but have then refused to allow into evidence the statistical analysis of the testing because the databases were shown to have not been in Hardy-Weinberg equilibrium. Cumin, pp 225-227; Caldwell, pp 289-290; State v Pennell, 584 A2d 513, 517-520 (Del Super, 1989). However, other courts have recognized that conservative or reduced calculations such as those used by Cellmark may correct any Hardy-Weinberg deviation problems. Axell, p 868; Caldwell, p 289; Castro, p 969. The statistical analysis of dna testing is inadmissible in some jurisdictions because of its prejudicial effect. Schwartz, pp 428-429; Pennell, pp 519-520. On the other hand, some courts have held that such evidence is a matter of weight for the jury. Axell, p 868; Hopkins, p 1303; United States v Yee, 134 FRD 161 (ND Ohio, 1991). In this case, Dr. Blomberg stated at the pretrial hearing that Cell-mark properly calculated the allele frequency. She testified that the standard deviation from repeatedly running the sample molecules through one gel was so small that it was inconsequential. Moreover, Dr. Ginsburg further stated that statistical analysis, based on a database of between 125 and 250 subjects, was valid. Thus, we find that the trial court did not abuse its discretion by admitting the statistical analysis into evidence. Jakobetz; Axell.

Turning to the issue concerning the defendant’s sentences, we agree with the defendant that the trial court failed to articulate sufficient reasons for departing from the sentencing guidelines range. Under the principle of proportionality, we review the defendant’s sentences to determine whether they are proportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990); People v Witcher, 192 Mich App 307, 308; 480 NW2d 636 (1991). The sentencing court is required to state on the record the criteria considered and the facts supporting the sentence imposed in order to aid the appellate review of sentences imposed. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987); People v Poppa, 193 Mich App 184, 189-190; 483 NW2d 667 (1992). Where the sentence imposed is within the recommended guidelines range, reference to the guidelines alone constitutes sufficient explanation. People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). However, where the sentence imposed exceeds the recommended minimum range, the trial court must articulate both on the record at sentencing and on the sentencing information report its reasons for departing from the guidelines. Fleming; People v Johnson, 187 Mich App 621, 630; 468 NW2d 307 (1991).

In this case, the sentencing guidelines recommended a minimum range of six to fifteen years for the kidnapping conviction, and the trial court sentenced the defendant to life imprisonment for that conviction. The minimum range for the first-degree criminal sexual conduct convictions was eight to twenty years, and the minimum range for the armed robbery conviction was five to fifteen years. The court sentenced the defendant for each of these remaining three counts to 70 to 150 years’ imprisonment. The trial court stated at sentencing that the defendant repudiated all moral authority, was a danger to the community, and that he denied a civilized society to the victim and her family. The court failed to state on the sentencing information report its reasons for departing from the guidelines. Because the defendant’s sentences were more than three times as long as the recommended minimum term of years and because the court failed to state specifically its reasons for departing from the guidelines, we vacate the defendant’s sentences and remand for resentencing. Applying the factors listed by this Court in People v Fisher (After Second Remand), 190 Mich App 598, 608; 476 NW2d 762 (1991), lv gtd 439 Mich 995 (1992), we deny the defendant’s request that he should be resentenced before a different judge.

Convictions affirmed, sentences vacated, and case remanded for resentencing in accordance with the principle of proportionality.

Marilyn Kelly, J., concurred.

1 Electrophoretic typing of dried bloodstains has gained general scientific acceptance for reliability and is admissible in criminal trials where adequate safeguards have been implemented. Gistover, pp 53-54.

2 In Schwartz, pp 426-428, the Minnesota Supreme Court held that the dna identification test results were inadmissible because the laboratory, Cellmark, did not comply with the quality control standards published by the FBI’s Technical Working Group on dna Analysis Methods and the California Association of Crime Laboratory Directors. In this case, however, Dr. Herrin testified that while these guidelines provided good suggestions, they do not have any relevance to the reliability of the testing.

3 See Hoeffel, The dark side of dna profiling: Unreliable scientiñe evidence meets the criminal defendant, 42 Stan L R 465, 490 (January, 1990).