State v. Brown

949 S.W.2d 639, 1997 Mo. App. LEXIS 1378, 1997 WL 420226
Missouri Court of Appeals·Decided July 29, 1997·No. 71057·Published·Cited by 17 cases

Opinion

CRANDALL, Judge.

Defendant appeals from the judgment entered on his convictions by jury of three counts of forcible sodomy, one count of forcible rape and one count of first degree burglary. We affirm.

*640 Defendant does not challenge the sufficiency of the evidence. We view the evidence in a light most favorable to the verdict. State v. Kezer, 918 S.W.2d 874, 875 (Mo.App. E.D. 1996).

The victim lived in an apartment and the crimes were committed in the early morning hours shortly after she had gone to bed. According to the victim, her attacker “smelled of alcohol.” The police found shoe impressions outside the patio of the victim’s apartment and near the parking lot. There were also muddy footprints in front of the patio door and through the living room towards the hallway. The police began speaking to neighbors. While speaking to a person at an apartment that was “catty-corner” and in the same building as the victim’s apartment, police noticed mud tracks in the living room and beer cans in a wastebasket. Defendant and another person then walked into the apartment. Defendant had been visiting a friend at this apartment, and arrived the evening prior to the attack and had stayed until the following morning. One of the occupants testified that the occupants left defendant alone in the apartment at about 11:00 or 11:30 p.m. when they went to clean an office building, which usually took an hour and a half to two hours. This witness also testified that her carpet was clean when she left to go clean the offices but when she returned there was mud “all over.”

Defendant consented to a police interview and was told the shoes he was wearing were similar to the shoe impressions found at the crime scene. Defendant then told the detective that the impressions were there because upon returning to the apartments after buying beer at a local store he had jumped down an embankment and took a shortcut. A fifty dollar bill, five twenty dollar bills, a ten dollar bill, three five dollar bills and two one dollar bills for a total of $177, were found in defendant’s wallet. The victim’s roommate had left a fifty dollar bill, two twenty dollar bills and four five dollar bills for a total of $110, on the kitchen table. A store clerk would later testify she cashed defendant’s check for $66.50, and gave him three twenty dollar bills, a five dollar bill, a dollar bill and some change. At a bond hearing and at trial, the victim recognized defendant’s voice as that of the person who attacked her. At trial, the State presented evidence of DNA testing.

The jury found defendant guilty of three counts of forcible sodomy, one count of forcible rape and one count of first degree burglary. Defendant was sentenced to consecutive terms of imprisonment of twenty years each for two of the forcible sodomy counts, thirty years for the remaining forcible sodomy count, life for the forcible rape count and ten years for the first degree burglary count.

Defendant first argues that the trial court erred in overruling his motion for a hearing under Frye v. United, States, 293 F. 1013 (D.C.Cir.1923), and in admitting the DNA probability results. Defendant contends by these rulings he was denied his right to challenge “the scientific foundation and reliability and thus admissibility of the DNA test employed by the State, and said tests have not gained general acceptance within the relevant scientific community and were unreliable and should have been excluded.”

A criminalist for the Missouri Highway Patrol testified that he was unable to extract sufficient “high molecular weight DNA” to perform the restriction fragment length polymorphism (“RFLP”) method of DNA analysis. The samples were then sent to a private laboratory, Roche Biomedical, for polymerase chain reaction (“PCR”) testing. The criminalist testified that the PCR technique is more sensitive and therefore results could be obtained with a smaller sample than it takes for the RFLP method of testing. While at Roche Biomedical, Dr. Richard Gu-errieri performed eight PCR based tests, using defendant’s and the victim’s blood samples and a stain from the victim’s underwear. Dr. Guerrieri testified that “through each of the eight different genetic systems that I looked at, DNA information present in the sperm fraction of the underwear stain matched the DNA profile from [defendant’s] blood sample at each of those sites.” Dr. Guerrieri also testified that finding another unrelated individual at random that would have the same DNA characteristics as defen *641 dant and the stain on the underwear would be “roughly” one in 5,500,000 in Caucasians, one in 1,500,000 in African-Americans and one in approximately 300,000 in Hispanics. 1

The Missouri Supreme Court first addressed admissibility of DNA evidence in State v. Davis, 814 S.W.2d 593 (Mo. banc 1991)(applying the Frye standard). In that case, the Court held that the RFLP method of DNA analysis is generally accepted in the scientific community. Davis, 814 S.W.2d at 602-03. The Court concluded that the trial court did not abuse its discretion in admitting the DNA evidence at issue. Id. at 603.

Defendant correctly contends that the Court in Da,vis did not address the PCR method of testing or the methodology for determining statistical probabilities of finding in the population at large any given DNA profile. However, cases decided after Davis have found the methods challenged by defendant are generally accepted in the scientific community and the results from these tests are admissible. State v. Kinder, 942 S.W.2d 313, 326-28 (Mo. banc 1996); State v. Huchting, 927 S.W.2d 411, 420 & n. 3 (Mo.App. E.D.1996); State v. Hoff, 904 S.W.2d 56, 59 (Mo.App. S.D.1995).

The Court in Hoff considered the defendant’s argument that the State failed to establish that PCR testing has achieved general acceptance in the scientific community. Hoff, 904 S.W.2d at 59. The court stated that numerous cases in various jurisdictions have found the PCR method of testing to be generally accepted and the test results admissible. Id. The court held that the trial court did not err in admitting the result of the tests. Id. In addition, Dr. Guerrieri testified in this case that the scientific community generally accepted as reliable the PCR method of testing.

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State v. Brown, 949 S.W.2d 639, 1997 Mo. App. LEXIS 1378, 1997 WL 420226 (Mo. Ct. App. 1997).

949 S.W.2d 639 (State v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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