United States v. Youngberg

43 M.J. 379, 1995 CAAF LEXIS 141, 1995 WL 799719
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 29, 1995
DocketNo. 94-0237; CMR No. 9201589
StatusPublished
Cited by23 cases

This text of 43 M.J. 379 (United States v. Youngberg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Youngberg, 43 M.J. 379, 1995 CAAF LEXIS 141, 1995 WL 799719 (Ark. 1995).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

1. In June and July of 1992 appellant was tried by a general court-martial composed of officer members at Bad Kreuznach, Germany. Contrary to his pleas, he was found guilty of premeditated murder and committing an indecent act, in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC §§ 918 and 934, respectively. The members sentenced appellant to a dishonorable discharge, confinement for life, total forfeitures, and reduction to Private E-l. On September 15, 1992, the convening authority approved the sentence as adjudged. On November 5, 1993, the Court of Military Review1 affirmed the findings of guilty and the sentence. 38 MJ 635.

[381]*3812. On June 1, 1994, this Court granted review2 on the following issues raised by appellate defense counsel:

I

WHETHER THE MILITARY JUDGE ERRED WHEN HE ADMITTED EVIDENCE OF THE DNA [DEOXYRIBONUCLEIC ACID] TESTING.

II

WHETHER THE MILITARY JUDGE ERRED WHEN HE ADMITTED EVIDENCE OF DNA TESTING AND SEROLOGY AND FIBER [ANALYSIS] WITHOUT ADEQUATE FOUNDATION.

We hold that the military judge did not erroneously rely on Frye v. United States, 293 F. 1013 (D.C.Cir.1923), in admitting expert testimony of DNA testing or any other scientific evidence in this case. See Mil. R.Evid. 702, Manual for Courts-Martial, United States, 1984, and United States v. Gipson, 24 MJ 246 (CMA 1987). In addition, we hold that the judge did not abuse his discretion or otherwise err by admitting evidence of DNA, or of blood, fiber, and shoe-print analysis in this case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Nimmer, 43 MJ 252 (1995); see also United States v. Johnson, 35 MJ 17, 18 (CMA 1992).

3. This appeal arises out of the August 24, 1991, murder of a 30-year old German National woman (TW) in Bad Kreuznach, Germany. Ms. W’s naked body was found impaled on a 2-foot wooden stake which had been thrust into her vagina with sufficient force to travel through her abdomen, ultimately resting at the level of her liver. Her mouth and throat were filled with small rocks. Moreover, Ms. Ws head had been partially crushed because of repeated strikes from a 10-pound segment of concrete.

4. Evidence taken from the crime scene included a condom containing semen and a bloody shoe print found on Ms. W’s body. At trial the Government sought to link appellant to Ms. W by introducing bloody shoe-print and fiber-analysis evidence. The Government also presented DNA evidence to show that the semen found in the condom taken from the crime scene matched appellant’s DNA pattern.

5. Defense counsel made a motion in limine to suppress evidence of DNA testing. During a lengthy suppression hearing, the Government produced Doctor Reiner Wenzel, a German national employed by the State Crime Laboratory, Department of Biology. The military judge qualified Dr. Wenzel as an expert in the field of “forensic DNA testing or genetic fingerprinting.” Dr. Wenzel explained what DNA is and outlined the two different methods scientists employ when conducting DNA analysis.

6. These methods were described as RFLP (restriction fragment length polymorphism) analysis and PCR (polymerase chain reaction) technique. He further testified that DNA testing is “generally accepted in the scientific community” and that test re-[382]*382suits can be duplicated. Dr. Wenzel stated that his laboratory used RFLP analysis as did the FBI and “[a]lmost every major laboratory in the United States.”

7. Dr. Wenzel outlined the procedural steps typically employed by his laboratory to conduct RFLP analysis after blood samples have been taken:

The DNA will then be extracted from the white blood cells____ In a second step we then add an enzyme which is a restriction enzyme. This restriction enzyme might be compared to a pair of scissors, a pair of molecular scissors cutting the DNA into fragments at certain marked locations____ [T]his mixture of fragments will be sorted and classified according to the length of the individual fragments on agarose gel after electrophoresis____ In the next step the various fragments will be transferred to a membrane while maintaining their exact position. This transfer being known as the so called “Southern Transfer”— This membrane is then subjected to a certain treatment which we call hybridization. This is when the one particular fragment whose lengths varies from one person to the next is made visible____by taking a short piece of DNA which is commercially available and marking it radioactively____ [Then] all of the fragments which are not specifically banded, will be washed out. What we are then left with in the last step is this pattern, this set of tracks as we call them, where the one fragment, which we are interested in will be found in certain locations marked radioactively. An x-ray film is then superimposed on this membrane. It will be exposed for a certain time and wherever there is a radioactive piece the film will be blackened. This gives you what we then call the DNA profile____

8. Both trial and defense counsel questioned Dr. Wenzel regarding compliance with accepted procedures in this particular case. Dr. Wenzel testified that the samples matched appellant’s. He explained the probability of a match and was questioned by both trial and defense counsel on the methods used to generate his statistical calculations.

9. The military judge ruled on the defense suppression motion as follows:

Regarding the DNA issue, this motion, I believe, was styled as a motion in limine to prevent the Government from introducing the DNA genetic fingerprinting testimony, that motion is denied.
I make the following findings: I find that the underlying principles and techniques used for DNA genetic fingerprinting are sound and reliable. The test is not whether they are infallible. There is some room for error; no test is perfect, as acknowledged by Dr. Wenzel, but I find that the underlying principles and techniques are sufficiently reliable to warrant use in the courtroom. I find that they are generally accepted in the scientific community. I find that the techniques used by Dr. Wenzel comport with generally accepted protocol for DNA testing. The fact that different probes may have been used by Dr. Wenzel than are used in other labs, such as the FBI lab or, perhaps, the CID lab in that these probes look at different chromosomes, that the use of marker lanes may vary from lab to lab does not affect the reliability of the testing procedures.
I find that admitting the evidence will not overwhelm or confuse or mislead the jury. I find that there is a connection between the scientific result to be presented and a disputed factual issue in the case-that is: the source of the elements in the condom that was found at the scene. I find that the evidence is sufficiently reliable to warrant its use in the courtroom. It’s relevant to a fact in issue. Its probative value is not substantially outweighed by the danger of any unfair prejudice.

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Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 379, 1995 CAAF LEXIS 141, 1995 WL 799719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-youngberg-armfor-1995.