Notice: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
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THE COURT OF APPEALS OF THE STATE OF ALASKA
STEPHEN J. HARMON, )
) Court of Appeals No. A-5139
Appellant, ) Trial Court No. 4FA-S92-2481CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1450 - December 22, 1995]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Robert S. Noreen,
Fairbanks, for Appellant. Nancy R. Simel,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
Either late in the evening of May 15 or early May 16,
1992, B.K. was sexually assaulted and murdered. The state
charged Stephen J. Harmon with sexual assault in the first degree
and murder in the first degree after the results of DNA testing
connected him with the crime. Following a trial, a jury
convicted Harmon of the sexual assault and murder. Superior
Court Judge Niesje J. Steinkruger sentenced Harmon to maximum
consecutive sentences of thirty years for the sexual assault and
ninety-nine years for the murder. Judge Steinkruger also ordered
that Harmon would not be eligible for parole for ninety-nine
years. Harmon appeals his conviction and sentence. We affirm.
II. ANALYSIS
A. SPEEDY TRIAL
Harmon first contends that Judge Steinkruger erred in
refusing to dismiss the charges against him under Alaska Criminal
Rule 45, the speedy trial rule. In 1992, Criminal Rule 45
provided that the state was required to try a defendant within
120 days, less certain excluded periods, from either the date the
defendant was arrested or initially arraigned, or the date the
charge (complaint, indictment, or information) was served on the
defendant, whichever event occurred first. Harmon argues that
the speedy trial period began on June 12, 1992, when he was taken
into custody by federal authorities for a federal firearms
violation. The state argues that the speedy trial rule did not
start until September 8, 1992, when Harmon was arraigned on the
indictment for sexual assault and murder.
The parties generally agree on the factual background
of this issue. On June 5, 1992, Alaska State Troopers executed a
search warrant on Harmon's residence to look for evidence which
would connect Harmon with B.K.'s murder. During the search, the
troopers found and seized a rifle. Following the search, the
troopers notified federal authorities of Harmon's possession of
the firearm. Harmon had prior felony convictions. On June 12,
1992, FBI Agent James Kelley served Harmon with a federal arrest
warrant for being a felon in possession of a firearm. Harmon
remained in federal custody until he was arraigned on the state
indictment for sexual assault and murder. The federal
authorities dismissed the federal firearms charges shortly after
the state indicted Harmon. Harmon claims that the state
troopers acted in collusion with federal authorities to hold him
in custody on the federal firearms charge until the state could
indict him for sexual assault and murder. According to Harmon,
the facts of his case should have prompted the trial court to
hold the state responsible for detaining him on the sexual
assault and murder charges on June 12, 1992, when the federal
authorities arrested him.
In Demientieff v. State, 814 P.2d 745 (Alaska App.
1991), we rejected an argument similar to the one Harmon
proposes. Demientieff was the prime suspect in a murder case.
During the investigation of the murder case, state troopers
learned that Demientieff, who was on probation, had possessed a
handgun and had been drinking on the night of the murder. The
troopers informed Demientieff's probation officer that
Demientieff had consumed alcohol and possessed a firearm in
violation of his probation. The probation officer then arrested
Demientieff. Demientieff was in jail for the probation violation
when the state formally charged him with the murder. Demientieff
argued that the 120-day speedy trial period for the murder charge
commenced when his probation officer arrested him for violating
the conditions of his probation. We affirmed the trial court's
ruling that Criminal Rule 45 did not begin until Demientieff was
arraigned on the murder charge. We concluded:
Since Demientieff, when arrested
for violating the conditions of his
probation, was not held to answer for the
murder . . . or even for criminal charges
relating to his consumption of alcohol or
possession of a concealable firearm, the Rule
45 speedy trial period did not begin to run
[when Demientieff was arrested for the
probation violations]. Rather it began to
run . . . when Demientieff was arraigned on
the murder charge.
Demientieff, 814 P.2d at 747.
Similarly, Harmon was arrested by federal authorities
on federal charges. He was not arrested on the sexual assault
and murder charges. Therefore, Criminal Rule 45 did not begin to
run until Harmon was arraigned on the indictment. Harmon
concedes that if Criminal Rule 45 began at his arraignment, he
was tried within the 120-day period mandated by Criminal Rule 45.
We accordingly conclude that Judge Steinkruger did not err in
rejecting Harmon's Rule 45 claim.
B. INDICTMENT
Harmon argues that the indictment against him should
have been dismissed because the state improperly introduced DNA
evidence during the grand jury proceedings and implied that DNA
evidence was routinely admissible in Alaska. The state points
out that Harmon never raised this claim in the trial court.
Because Harmon did not raise this argument prior to trial, he has
waived it. Alaska R. Crim. P. 12(e); Gaona v. State, 630 P.2d
534, 537 (Alaska 1981).
C. PRIOR CRIMES
Harmon also claims that Judge Steinkruger erred in
allowing the state to introduce at trial evidence of his two
prior convictions for sexual assault and the circumstances
surrounding those convictions. Harmon was convicted of two
sexual assaults in the State of Arizona in 1980. The Arizona
court sentenced him to ten years of incarceration on these
convictions. The prosecution in the present case contended that
the circumstances of Harmon's prior sexual assault convictions
were sufficiently similar to the facts of the present case to be
relevant to establish Harmon's identity as the person who
murdered B.K. Following extensive argument by the parties, Judge
Steinkruger concluded that the circumstances of the prior
convictions were relevant as identification evidence. Harmon,
however, argues that evidence of his prior convictions for sexual
assault was inadmissible under Alaska Evidence Rules 404(b) and
403.1
We conclude that Judge Steinkruger could properly
determine that evidence of the prior crimes was admissible to
show that Harmon murdered B.K. by a distinctive modus operandi
which he had employed in the prior sexual assaults.2 This modus
operandi was extremely similar to the modus operandi that the
killer of B.K. used. Coleman v. State, 621 P.2d 869 (Alaska
1980), discusses when the state may introduce evidence of a
distinctive modus operandi in prior crimes to prove a defendant's
identity as the perpetrator of a crime. In Coleman, the court
stated:
[T]he evidence in question showed that
the prior rape and the rape of B.E. were
sufficiently similar and unusual in their
common pattern to constitute a modus operandi
probative of Coleman being the assailant in
both instances. The testimony showed the two
crimes shared common elements in the race and
age of the victims, the situs chosen for the
attack, the manner of subduing the victim,
the type of intercourse which occurred, and
behavior of the assailant following the
attack. Both victims were relatively young
caucasian women, and were on foot near a
wooded area when attacked. Each indicated
that the first awareness of the assailant's
presence was the sound of running footsteps
behind her, and that the first realization
that she was being assaulted was when the
attacker placed his arm around her throat,
choking her. In both instances, the attacker
rapidly propelled the victim from behind,
with his arm still around her throat, into
the woods. In both instances oral
intercourse was performed as well as an
effort at vaginal intercourse (the prior rape
also involved anal intercourse). Following
both attacks the assailant discussed whether
the victim would report him to the police,
and allowed the victim to walk away. These
characteristics are not so unique as to
constitute a "signature crime," as one
commentator suggests should be required to
prove like identity, nor is each of the above
common features material standing alone. But
a review of cases in this and other
jurisdictions indicate that the similarities
in the attacks, taken together, compare
favorably with other instances where evidence
of prior rapes has been held properly
admitted for the purpose of proving identity.
Coleman, 621 P.2d at 875 (footnotes omitted).
In deciding that Harmon's prior crimes were admissible,
Judge Steinkruger carefully analyzed Coleman and the present
case. She pointed out the remarkable similarities between the
facts of Harmon's prior sexual assaults and the circumstances
surrounding the murder of B.K. Like the victims of Harmon's
prior sexual assaults, B.K. was a white single female who had
previously met Harmon in a social setting and subsequently
rejected his offers of a romantic relationship. Harmon's prior
victims had let him into their homes where he assaulted them in
their rooms shortly after midnight. Similarly, evidence showed
that B.K. let her assailant into her home where she was murdered
in her living room about midnight. Harmon had been drinking on
the nights of his prior assaults, and, on the night B.K. was
murdered, evidence showed that Harmon had been drinking to the
point that his speech was slurred.
In addition, Judge Steinkruger found that there were
similarities in the nature and manner of the attacks. For
instance, Harmon's two prior convictions were for sexual assault.
Evidence established that B.K. had been sexually assaulted by her
assailant. Harmon had also physically assaulted his two prior
victims, and evidence showed that B.K. had been beaten. Harmon
had used a knife in his prior assaults; evidence showed that
B.K.'s assailant had cut her with a knife. Furthermore, Harmon
had used an electrical cord to tie the hands of his victims in
the prior sexual assaults. B.K.'s assailant cut an electrical
cord from her sewing machine and apparently wrapped the cord
around her neck.
We believe that the similarities between Harmon's prior
sexual assaults and the murder of B.K. are, if anything, more
distinctive than the evidence which the supreme court concluded
was sufficiently similar to permit introduction of the prior
crimes evidence in Coleman. Accordingly, we conclude that Judge
Steinkruger did not err in admitting this evidence.
One further point which Harmon raises on this issue
deserves comment. Harmon points out that over twelve years
passed between the events that led to his previous convictions
and the murder of B.K. He contends that these prior convictions
were therefore too remote to be sufficiently probative for
admission against him. In analyzing this contention, Judge
Steinkruger pointed out that Harmon had been incarcerated for
eight years, and therefore, for most of the period of time since
his prior convictions, had not had an opportunity to commit a
similar offense. She concluded that under these circumstances,
given the strength of the evidence that Harmon had committed the
prior assaults (which were proven by convictions), and the
similarity of the two prior assaults and the circumstances of
B.K.'s murder, the evidence was not too remote in time to be
admissible. We conclude that Judge Steinkruger's analysis is
sound. See United States v. Hadley, 918 F.2d 848 (9th Cir.
1990); Coleman, 621 P.2d at 875-76 n.8; State v. Breazeale, 714
P.2d 1356, 1363 (Kan. 1986).
D. DNA TESTING
Harmon next contends that the trial court erred in
admitting results of deoxyribonucleic acid (DNA) testing as
evidence against him at trial. At issue are two kinds of DNA
testing: restriction fragment length polymorphism typing (RFLP)
and polymerase chain reaction typing (PCR). The state introduced
the results of RFLP testing on anal swabs taken from B.K. and on
a semen stain from her underpants. The state also introduced the
results of PCR testing on two hairs that were found on and near
the victim, the semen sample from her underwear, bloodstains on
the electrical cord found at the scene, and bloodstains on
Harmon's watch. In all of the DNA testing, the scientists
compared the DNA recovered from the crime scene with DNA from
known specimens from the victim and from Harmon. Blood samples
from two other suspects were analyzed and eliminated as sources
of the DNA samples found at the scene. The results of both the
RFLP and the PCR testing were highly incriminating of Harmon.
Prior to trial, Harmon filed a motion to suppress the
test results. He contended that DNA testing had not achieved
sufficient acceptance in the relevant scientific community to be
admissible. Judge Steinkruger held an extensive hearing before
trial to determine the admissibility of the DNA evidence. At the
hearing, the prosecution and defense presented several witnesses
who testified about the general scientific acceptance of the DNA
testing and the procedures which were followed in analyzing the
DNA evidence in this case.3 In addition, the trial court
considered several scientific articles on DNA testing. Following
the hearing, in extensive written findings, Judge Steinkruger
concluded that both RFLP and PCR were generally accepted in the
scientific community and that the results of the DNA testing were
admissible in this case.4
1. Frye Test
As Judge Steinkruger recognized, the admission of novel
scientific evidence is governed in this state by the Frye test.5
In Frye, the court commented:
Just when a scientific principle or
discovery crosses the line between the
experimental and demonstrable stages is
difficult to define. Somewhere in this
twilight zone the evidential force of the
principle must be recognized, and while
courts will go a long way in admitting expert
testimony deduced from a well-recognized
scientific principle or discovery, the thing
from which the deduction is made must be
sufficiently established to have gained
general acceptance in the particular field in
which it belongs.
293 F. at 1014. The Alaska Supreme Court, in Contreras v. State,
718 P.2d 129, 135 (Alaska 1986), outlined the manner in which
trial courts may permit the admission of novel scientific
evidence:
Applying Frye is a two-step process:
first, the relevant scientific community must
be defined, and second, the testimony and
publications of the relevant experts in the
field must be evaluated to determine if there
is general consensus that [the scientific
analysis] is reliable.
This is the test that the trial court applied.
2. Testing Techniques and Procedures
Harmon contends that in order to admit the DNA
evidence, the trial court was required, in addition to the Frye
test, to show that the laboratories that analyzed the DNA
evidence used accepted scientific techniques in analyzing the
forensic samples. Harmon relies on People v. Castro, 545
N.Y.S.2d 985 (N.Y.Sup. 1989). As Harmon points out, in Mattox v.
State, Dept. of Revenue, 875 P.2d 763, 765 (Alaska 1994), the
supreme court stated: "In DNA tests, as in other scientific
tests, assuming general scientific acceptance, set procedures
must be followed to insure the validity of the tests. Compliance
with these procedures must be shown."
In Harmon's case, the state presented extensive
testimony concerning the procedures that were followed in
conducting the DNA tests. The state also presented extensive
testimony that these procedures were valid and had general
scientific acceptance. Although Judge Steinkruger rejected the
analysis in People v. Castro, she concluded in her findings that
the laboratories that tested the DNA evidence in Harmon's case
followed standard, generally accepted procedures. This finding
is supported by the record and makes it unnecessary for us to
decide whether Castro applies to this case.
The following background information about DNA is from
State v. Cauthron, 846 P.2d 502, 508 (Wash. 1993)(footnote
omitted):
DNA (deoxyribonucleic acid) is the
chemical material contained within an
organism's cells which determine that
organism's physical composition. Human cells
each contain 46 chromosomes, which are
arranged in 23 pairs. One chromosome in each
pair is inherited from each parent.
Approximately 100,000 genes are located on
the chromosomes. Genes, which consist of
DNA, determine eye, hair, and skin color, the
organization of body parts, and virtually
everything else about our physical state.
Each individual, with the exception of
identical twins, has a unique DNA structure
which is contained in every nucleated cell.
That structure remains constant throughout a
human lifetime. It can be found in blood,
semen, hair, bone marrow, and other tissues.
DNA typing is a process by which genetic variation
between individuals is recognized and catalogued. In criminal
investigations, DNA is extracted from human fluid and tissue
samples recovered from a crime scene. In RFLP typing, the
extracted DNA is enzymatically cut into fragments, which are
separated according to their size. Once they have been
separated, the fragments are radioactively marked and an x-ray
photograph of the DNA is taken. The DNA of suspects is similarly
processed and photographed. The image derived from each
suspect's DNA is then compared to the photograph based on the
genetic evidence obtained from the crime scene to determine
whether they match. RFLP typing is used for larger (dime-size)
blood and semen stains. For smaller, older, and weathered
evidence, PCR may be used.
In PCR typing, a specific region of the genetic
material recovered from the crime scene is copied using enzymes.
The copying continues over several repetitions so that the number
of specific DNA segments increases exponentially. The amplified
DNA, copied millions of times, is then tested against known
genetic sequences to determine its character. Once the character
of the DNA recovered from the crime scene is ascertained, it can
be compared to the genetic makeup of the suspects. PCR testing
is less precise than RFLP, and the PCR DNA is more easily
contaminated. National Research Council, DNA Technology in
Forensic Science 36-44 (1992); U.S. Congress, Office of
Technology Assessment, Genetic Witness: Forensic Uses of DNA
Tests 43-50 (1990).
There seems to be little question concerning the
scientific acceptance of the theory underlying both RFLP and PCR
DNA typing. See, e.g., Commonwealth v. Curnin, 565 N.E.2d 440,
441 (Mass. 1991); State v. Schwartz, 447 N.W.2d 422, 426 (Minn.
1989); State v. Woodall, 385 S.E.2d 253, 260 (W.Va. 1989). See
also William C. Thompson & Simon Ford, DNA Typing: Acceptance and
Weight of the New Genetic Identification Tests, 75 Va. L. Rev.
45, 60 (1989).
Judge Steinkruger found that the techniques and
procedures relied upon to test the evidence in this case were
generally accepted in the scientific community as capable of
producing reliable results. She found that the tests performed
in this case are "routinely performed and are generally accepted
in the relevant scientific community of molecular biologists, DNA
forensic scientists, biochemists and population geneticists."
She found that the witnesses who testified "explained the
controls that were used to insure reliable results generally and
in these tests specifically." She also found that "recent cross
validation studies between RFLP and PCR provide the most recent
evidence of [DNA testing's] scientific reliability for forensic
purposes." Judge Steinkruger's findings are fully supported by
the record.
3. Statistical Analysis
Theoretically, each person's DNA is unique; that is,
with the exception of "identical twins," no two persons share
exactly the same complement of genes.6 At the same time,
however, it is rare for a specific gene to be unique to a single
individual. Some genes -- for instance, the genes that direct
our bodies to form two arms and two legs -- are found in
virtually every human being. Other genes, such as those that
determine skin, hair, and eye color, are shared by substantial
numbers of people. Still other genes are so rare that they are
shared by only small percentages of the general population.
Tests for these rare genes are used in paternity cases. See
Smith v. Smith, 845 P.2d 1090 (Alaska 1993).
That genes are shared by groups of people is of crucial
significance when DNA testing is employed to identify the
perpetrator of a crime. Even though DNA testing can accurately
identify a person's genes, the fact that a person carries a
particular gene means little unless scientists can also tell us
the likelihood that other people share that same gene. The fact
that a defendant carries the same gene as was found in a tissue
sample taken at the scene of the crime is not particularly
probative if a high percentage of the population also carry that
same gene; conversely, if the gene is quite rare, then the DNA
match becomes correspondingly more probative.
Harmon's main attack on the admissibility of DNA
evidence concerns the problem of "population substructures." A
population substructure is a cohesive group of people who
generally do not mate with people outside of their group (because
of physical isolation, or because of cultural, racial, or
religious factors, or a combination of these).
As explained above, the usefulness of DNA testing in
criminal litigation depends on being able to identify what
percentage of the population carries the particular gene whose
presence was tested for. Certain critics of DNA testing have
suggested that the existence of population substructures greatly
complicates this problem, to the point where DNA testing has only
marginal usefulness.
These critics argue that, even though scientists may be
able to ascertain the frequencies of particular genes in the
general population, this knowledge must be tempered by the fact
that members of the general population do not mate and reproduce
at random. Rather, the general population is comprised of
numerous population substructures, distinct groups of people who
tend to mate and reproduce within their groups. If the people in
a population substructure have distinctive genes, then, because
members of the group generally do not mate with outsiders, the
group's distinctive genes would tend to stay within the group and
not be freely shared with the general population. This fact
would make it harder to calculate the probability that a
particular individual carried a specific gene; probability
analyses that ignored the presence of population substructures
would tend to overstate the significance of a DNA match. See
William C. Thompson, Evaluating the Admissibility of New Genetic
Identification Tests: Lessons from the "DNA War", 84 J. Crim. L.
& Criminology 22, 61-65 (1993). Harmon raises the statistical
problem of population substructures to attack the admissibility
of DNA evidence in general.
In the recently enacted AS 12.45.035 (see ch. 7 ' 2 SLA
1995), the Alaska Legislature apparently declared that DNA
evidence is admissible despite this potential problem.7
Harmon's case was tried before the effective date of
AS 12.45.035, however; the Frye test therefore governed Judge
Steinkruger's decision regarding this aspect of the admissibility
of the DNA evidence at Harmon's trial.8 Judge Steinkruger found
that the statistical analysis of the DNA test results satisfied
the Frye test and was therefore admissible. Having reviewed the
record, we agree.
Judge Steinkruger recognized that a statistical
analysis which overstated the significance of a match between
Harmon's DNA and the DNA found at the crime scene could be unduly
prejudicial. The trial court heard extensive testimony
concerning statistical analysis of the matching results.
Basically, the testimony showed that the methods that were used
to determine the probability of a match incorporated conservative
assumptions that, if anything, were designed to overstate the
probability of a match. Dr. Jenifer Lindsey, a forensic
serologist at the FBI, testified that she calculated and reported
the results using a conservative method recommended by the
National Research Council. She felt that the method employed
accounted for population substructures. Dr. Randjit Chakraborty,
a prominent expert in human population genetics, reviewed Dr.
Lindsey's findings and approved of the method employed by the
FBI. He found the statistical results reported by Dr. Lindsey
conservative, accurate, and reliable.
Judge Steinkruger concluded, after hearing the
evidence, that the statistical analysis was sufficiently
conservative to be admissible. We agree that the extensive
testimony presented in this case established that the statistical
analysis allowed for the possibility of population substructures
and conservatively estimated the probability of a match.
Under Frye and Contreras, we must first determine the
relevant scientific community and then decide whether statistical
analysis used in this case is generally accepted within that
community. We find the relevant scientific community to be human
population geneticists and agree with the trial court that the
population statistical analyses of the PCR typing and the RFLP
matching are generally accepted within the scientific community.
We conclude that there was no error in admitting the evidence of
DNA typing and the statistical interpretation of this evidence.
4. Consumption of Evidence
Harmon also contended in his motion to suppress that,
in the process of testing the DNA taken from the crime scene, the
state consumed the evidence of the blood stains on his watch and
on the electrical cord, anal swabs from the victim, and hairs
from the victim's underpants. Harmon argues that the state
violated his right to due process of law by failing to give him
the opportunity to have a defense expert observe the state's
testing process and by destroying the evidence so that he was
unable to conduct independent testing.
In ruling against Harmon's motion, Judge Steinkruger
pointed out that the state tested the evidence during the
investigative stage of the case before the grand jury indicted
Harmon. At that time, the state was comparing the DNA evidence
found at the crime scene not only with samples obtained from
Harmon but also with DNA obtained from two other suspects. Judge
Steinkruger found that the state experts had tested the DNA
evidence using sound laboratory procedures, that they had used
only as much of the evidence as was necessary for testing, and
that they had preserved as much of the evidence as possible for
retesting. She observed that even the leading defense expert,
Robert Thompson, had testified that the scientists who tested the
evidence for the state appeared to have consumed no more evidence
than was necessary. Judge Steinkruger noted that the state had
taken photographs of the hair, the watch, and the electrical
cord, including microscopic photographs, prior to testing so that
Harmon's experts could observe the evidence in the condition in
which the police found it at the crime scene. She also
determined that the state experts had sufficiently documented
their actions and turned over their laboratory notes and diagrams
to defense experts so that they could review the state's testing
procedures.
Judge Steinkruger found that the state had made
available to the defense DNA and amplified DNA from the blood
stains on the severed electrical cord and Harmon's wristwatch as
well as the hair found at the crime scene. The defense experts,
however, made no attempt to independently retest the DNA
extracts. As for the anal swabs, Judge Steinkruger found that
the defense had the autorads from the RFLP procedure available
for review of the RFLP typing. (Autorads were used during RFLP
testing to type and compare the DNA found on the anal swabs with
Harmon's DNA.) Furthermore, defense expert Thompson testified
that it might have been possible to subject what remained of the
anal swabs to PCR testing. With regard to the possibility of the
defense conducting different tests, Judge Steinkruger found that
the defense had the stained clipping from B.K.'s underpants
available to conduct semen testing by any method which Harmon's
experts desired. She also found that Harmon had the ability to
independently examine and challenge the state's testing
procedures. Judge Steinkruger concluded that the state had not
violated Harmon's rights under Alaska Rule of Criminal Procedure
16 or under due process.
In ruling on Harmon's motion, Judge Steinkruger relied
on Lee v. State, 511 P.2d 1076 (Alaska 1973). Lee was found in
possession of four balloons, three of which contained white
powder. The state analyzed one of the balloons and discovered
that it contained heroin. The state charged Lee with possession
of heroin. Lee contended that he was denied due process of law
because the state consumed all of the white powder in the balloon
which was tested. Lee argued he was denied the opportunity to
conduct an independent test of that balloon. The supreme court
rejected Lee's argument:
In those cases where expert analysis
exhausts the substance there is clearly no
error in the admission of evidence regarding
the analysis in the absence of the
allegations and proof of deliberate
destruction, or deliberate attempts to avoid
discovery of evidence beneficial to the
defense.
Lee, 511 P.2d at 1077 (footnotes omitted). In reaching this
decision, the supreme court also stated:
It is apparent that the alleged problem
might have been further minimized if
appellant had secured expert examination of
the contents of two of the remaining balloons
which still contained a residue of powder
even at the time they were introduced in
evidence at the trial of this case.
Id. at 1078.
Harmon relies on Lauderdale v. State, 548 P.2d 376, 382
(Alaska 1976), and Thorne v. Department of Public Safety, 774
P.2d 1326 (Alaska 1989), in arguing that the state failed to
preserve material evidence. In Lauderdale, the supreme court
quoted with approval language in Lee: "[W]here expert analysis
exhausts the substance there is clearly no error in the admission
of [the] evidence." Lauderdale, 548 P.2d at 382 (internal quotes
omitted). However, in Lauderdale, the supreme court held that
the state erred when it destroyed breathalyzer ampoules, because
the ampoules might have led to exculpatory evidence. The supreme
court pointed out that the state had destroyed the ampoules; they
had not been used up in testing. Id. More recently, in Thorne,
the court held that the state violated Thorne's right to due
process by failing to preserve a videotape that the police took
while Thorne was arrested for driving while intoxicated. The
court held that the state was required, under the due process
clause, to preserve the videotape since it might have been
favorable to Thorne's defense.
We agree with Judge Steinkruger that Lee is controlling
under the facts of this case. In Lee, the state consumed the
heroin in one balloon during testing. Lauderdale and Thorne are
distinguishable as cases where the state did not use up the
evidence in testing, but negligently failed to preserve the
evidence. In the present case, the testing was done during the
investigative stage. The state showed that it was necessary for
its experts to use up some of the evidence in order to test it.
The state experts made substantial efforts to preserve evidence
of their testing so that the defense experts would be able to
review the state's results. Furthermore, there was still
substantial evidence left over after the state tests so that the
defense could perform its own tests. We conclude that Judge
Steinkruger did not err in denying Harmon's motion to suppress.
See Lee, 511 P.2d at 1078; John P. Ludington, Annotation,
Consumption or Destruction of Physical Evidence Due to Testing or
Analysis by Prosecution's Expert as Warranting Suppression of
Evidence or Dismissal of Case Against Accused in State Court, 40
A.L.R.4th 594 '' 4-5 at 607-16 (1985 & Supp. 1995).
E. SENTENCE
Harmon next raises several issues concerning his
sentence. Judge Steinkruger sentenced Harmon to ninety-nine
years of imprisonment for murder in the first degree and to
thirty years of imprisonment for sexual assault in the first
degree. Both of these sentences are maximum sentences. AS
12.55.125(a), (i). Judge Steinkruger imposed these sentences
consecutively and, in addition, ruled that Harmon would be
ineligible for parole for ninety-nine years. Judge Steinkruger
made extensive findings in support of this sentence. She
emphasized the fact that Harmon had two prior convictions for
sexual assaults that were similar to the sexual assault that
ended with Harmon's murder of B.K. Harmon had received a lengthy
sentence for these convictions and had actually served eight
years of imprisonment. Judge Steinkruger found the aggravating
factor that "the conduct constituting the offense was among the
most serious conduct included in the definition of the offense."
AS 12.55.155(c)(10). She also found the aggravating factor that
Harmon's "conduct during the commission of the offense manifested
deliberate cruelty to another person." AS 12.55.155(c)(2). She
concluded from the evidence that Harmon had premeditated the
offense and had used his friendship with B.K. to gain entry to
her home. He then tortured B.K. by poking and cutting her with a
knife and strangling her with a piece of electrical cord. Judge
Steinkruger found that Harmon had not only sexually assaulted and
murdered B.K., but that he had tortured her for his own sexual
gratification. She concluded that Harmon was extremely dangerous
to women and, based on his past history of sexual violence and
his present offense, would reoffend unless he was incarcerated
for the remainder of his life. She found that he had no
prospects for rehabilitation and that it was necessary to
restrict his parole so that he would never have the opportunity
to commit a similar crime.
Harmon first contends that Judge Steinkruger erred in
finding the aggravating factor that Harmon's "conduct during the
commission of the offense manifested deliberate cruelty to
another person." In Juneby v. State, 641 P.2d 823 (Alaska App.
1982), we stated:
The word "cruelty" thus denotes the
infliction of pain or suffering for its own
sake, or for the gratification derived
therefrom. We think that, in accordance with
this common defini-tion, the term "deliberate
cruelty," as used in AS 12.55.155(c)(2) must
be restricted to instances in which pain --
whether physical, psychological, or emotional
-- is inflicted gratuitously or as an end in
itself. Conversely, when the infliction of
pain or injury is merely a direct means to
accomplish the crime charged, the test for
establishing the aggravating factor of
deliberate cruelty will not be met.
Juneby, 641 P.2d at 840 (first set of quotation marks added).
Judge Steinkruger's findings clearly support the aggravating
factor. She found that Harmon had tortured B.K. for his sexual
gratification and had gratuitously inflicted pain upon B.K. when
he had sexually assaulted and murdered her.
Harmon next argues that Judge Steinkruger erred in
restricting his parole eligibility for ninety-nine years. In
Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992)(citations
omitted), we stated:
When a sentencing judge restricts
parole eligibility, the judge must
specifically address the issue of parole
restriction, setting out with particularity
his or her reasons for concluding that the
parole eligibility prescribed by AS 33.16.090
and AS 33.16.100(c)-(d) is insufficient to
protect the public and insure the defendant's
reformation. When the defendant's sentence
is lengthy . . . Alaska law presumes that
questions of discretionary release are better
left to the Parole Board, since the Board
evaluates the advisability of parole release
in light of the defendant's tested response
to Department of Corrections rehabilitative
measures. However, because the Alaska
legislature has affirmatively given
sentencing judges the power to restrict or
deny parole eligibility, this presumption
(that parole release of long-term prisoners
should normally be evaluated after the
defendant has established an institutional
history) must remain rebuttable.
Later in Stern, we noted that "a finding that the defendant
cannot be rehabilitated within the prescribed parole eligibility
period will justify parole restriction." Id. at 453. Judge
Steinkruger directly addressed the parole restriction in her
sentencing remarks. She concluded that Harmon's prior criminal
history of sexual assault, the seriousness of his present
offense, and his poor rehabilitation potential established that
Harmon was an extremely dangerous offender who would reoffend if
not confined for the remainder of his life. Her findings are
supported by the record and justify the parole restriction in
this case.
Harmon argues that his composite sentence is excessive.
We believe that Judge Steinkruger's findings are supported by the
record and justify the sentence that she imposed.
III. CONCLUSION
The conviction and sentence are AFFIRMED.
APPENDIX A
THE SUPERIOR COURT FOR THE STATE OF ALASKA
FOURTH JUDICIAL DISTRICT
STATE OF ALASKA, )
) Case No. 4FA-S92-2481 CR
Plaintiff, )
)
vs. )
)
STEPHEN J. HARMON, )
)
Defendant, )
______________________________)
DECISION AND ORDER ON DEFENDANT'S MOTION TO
SUPPRESS DNA/RFLP IDENTIFICATION EVIDENCE*
The defendant has moved to suppress evidence the state
intends to offer at trial that results from DNA/RFLP laboratory
testing. This court held an evidentiary hearing pursuant to Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923), and State v.
Contreras, 674 P.2d 792 (Alaska App. 1983), rev'd on other
grounds, 718 P.2d 129 (Alaska 1986). The court heard the
testimony of Detective Lantz Dahlke, Detective Timothy Hunyor,
Dr. Jenifer Lindsey, Dr. Randjit Chakraborty, Dr. Cecelia Von
Beroldingen, Joe Ronald Urbanovsky, Leanne Strickland, Robert
Thompson, John Murdock, and Brian Wraxall. In addition, this
court has considered the numerous scientific articles,
affidavits, transcripts and other exhibits submitted by the
parties, as well as the case law cited and the arguments of
counsel. Based upon all of the above, the court makes the
following findings of fact and conclusions of law:
1. The state seeks to admit evidence at trial which
results from deoxyribonucleic acid (DNA) analysis using the
process called "restrictive fragment length polymorphism"
analysis (RFLP). The defendant alleges that the RFLP analysis
does not meet the evidentiary standards for admissibility at
trial.
2. In Alaska, the Frye-Contreras test requires that a
pretrial hearing be held to determine the admissibility of new
scientific evidence. Haakanson v. State, 760 P.2d 1030 (Alaska
App. 1988). The test allows new scientific evidence to be
admitted if there is general acceptance in the scientific
community. The application of this test is a two step process.
First, the court must determine the relevant scientific
community, and second, the court must consider the testimony and
publications of the relevant experts in the field to determine if
there is general acceptance. Contreras v. State, 718 P.2d 129
(Alaska 1986). The state argues that the Frye-Contreras analysis
is no longer valid and the admissibility of such expert testimony
should be evaluated pursuant to Alaska Rule of Evidence 702,
adopted from the Federal Evidence Rules. Alaska has declined to
replace the Frye-Contreras evaluation with the evidence rule
regarding expert testimony and therefore this court has applied
the Frye-Contreras analysis. Contreras, 718 P.2d at 136.
3. Pursuant to Frye, in order for scientific data to
be admissible, "the thing from which the deduction is made must
be sufficiently established to have gained general acceptance in
the particular field in which it belongs." Frye, 293 F. at 1014.
This court has applied the two prong Frye test for the admission
of scientific evidence, that is: (1) Is the scientific theory
generally accepted in the scientific community; and (2) Are
there techniques, experiments, and procedures that currently
exist that are capable of producing reliable results which are
generally accepted in the scientific community. United States v.
Downing, 753 F.2d 1224 (3rd Cir. 1985); State v. Vandebogart, 616
A.2d 483 (N.H. 1992). The defendant argues that the court should
apply a "Castro" analysis to require a pretrial evidentiary
hearing of a third prong, that is, whether correct scientific
procedures were used when the DNA analysis was performed in each
particular case. People v. Castro, 545 N.Y.S.2d 985 (Sup. 1989).
This court holds that the third prong is not required by the Frye
analysis of scientific evidence. Adoption of this third prong
would apply a new and special rule only for one kind of
scientific evidence, DNA. It would require that even if the
appellate courts determine that certain DNA analysis is
admissible, that at the trial level, a "Third Prong Frye Hearing"
would have to be held in each case, prior to trial, for the court
to determine if the testing laboratory performed according to
accepted scientific techniques in analyzing the forensic samples
in each particular case. This court finds that the issue, ". . .
as to whether the testing laboratory adhered to generally
accepted techniques, addresses matters that properly go to either
the admissibility or the weight to be given the evidence in a
particular case, not admissibility under Frye." Vandebogart, 616
A.2d 483, 490 (N.H. 1992). Therefore, this court has applied the
two prong test of Frye, that is: (1) Is the scientific theory
generally accepted in the relevant scientific community, and (2)
Are there techniques or experiments that currently exist that are
capable of producing reliable results which are generally
accepted in the scientific community.
4. The defendant has cross-examined the various
witnesses regarding the specific techniques used in testing the
specific pieces of evidence in this case. In some instances the
defendant has challenged whether the technique used in this
particular case was in conformity with the generally accepted
scientific techniques used for DNA testing. Unlike the lab in
State v. Schwartz, 447 N.W.2d 422 (Minn. 1989), the FBI and State
Crime Lab adequately followed the techniques set forth by TWGDAM
and the NRC. (See Finding 10). The procedures and techniques
used by the labs in this case were standardized and pursuant to
generally accepted standards, controls and practices. This court
finds that sufficient foundation has been established by the
state for the admissibility of the DNA analysis process and
results in this case.
5. DNA is an organic substance found in the
chromosomes in the nucleus of a cell. It provides the genetic
code which determines a person's characteristics. Research
laboratories have been conducting DNA analysis for years but the
forensic use is more recent. This court will not set out the
scientific explanation of DNA herein but adopts the "brief
genetic and biological primer" from People v. Wesley, 533
N.Y.S.2d 643 (Co. Ct. 1988), and Caldwell v. State, 393 S.E.2d
436, 437-39 (Ga. 1990), attached hereto as Appendix A. The
description therein is in conformity with the evidence provided
by the witnesses at the evidentiary hearing in this matter.
6. The scientific theory of DNA and its ability to
allow a distinction between one individual and another is
generally accepted in the relevant scientific community of
molecular biologists, human geneticists, biochemists, and DNA
forensic scientists. There has been no credible evidence
presented or case law cited which indicates to the contrary, and
in fact, the evidence is overwhelming that the scientific theory
is generally accepted. Therefore, the first prong of the Frye
test has been established. People v. Axell, 1 Cal. Rptr. 2d 411,
423 n.8 (Cal. App. 1991).
7. The second prong of Frye requires a determination
as to whether there are techniques, experiments and procedures
that currently exist that are capable of producing reliable
results that are generally accepted in the scientific community.
Generally in DNA analysis and in its application to this specific
case, there are three steps:
Step 1--Processing: Processing of the DNA is
performed from known and unknown samples to
produce films which indicate the lengths of
polymorphic fragments.
Step 2--Matching: Matching the DNA patterns
is done to see, for example, if a known and
unknown sample match that links a suspect to
a crime scene.
Step 3--Statistical Analysis: Statistical
Analysis is performed to determine the
significance of a match by determining the
likelihood of a random match.
8. Step 1--Processing: Processing has six substeps
which constitute the laboratory techniques developed from the
theory of DNA analysis. These substeps are as set forth in
People v. Barney, 10 Cal. Rptr. 2d 731, 734 (Cal. App. 1992), as
follows:
Substep 1--Extraction: Human bodily
materials such as hair roots, blood, semen,
and skin contain DNA. When chemical enzymes
are added to these materials they result in
an extraction or removal of the DNA from its
bodily source.
Substep 2--Restriction: The extracted DNA is
"cut" into thousands of fragments at specific
points by application of restriction enzymes.
The restriction enzymes act as "chemical
scissors" in that they sever the DNA at
target base-pair sites. This substep gives
its name to the overall DNA analytical
process: restrictive fragment length
polymorphism (RFLP) analysis.
Substep 3--Electrophoresis: The DNA
fragments are separated by size through a
process called electrophoresis. The various
sample fragments being tested are placed in
separate lanes on one end of a gel slab and
an electrical current is applied, causing the
fragments to move across the gel. Shorter
fragments move farther than longer fragments.
Thus, at the completion of electrophoresis,
the sample fragments are arrayed across the
gel according to size. In addition to the
sample fragments, other fragments called size
markers, which have known base-pair lengths,
are placed in separate lanes on the gel in
order to facilitate measurement of the sample
fragments. The array of size markers across
the gel provides points of comparison which
permit assessment of the base-pair lengths of
the sample fragments.
Substep 4--Southern Blotting or Southern
Transfer: (This substep was named for the
scientist who developed it.) To facilitate
the handling of the DNA fragments, a nylon
membrane is placed on the gel, and by wicking
action the fragments are transferred to the
membrane, becoming permanently fixed in their
respective positions. During this step each
DNA fragment is separated at its bases into
two parts--that is, it is "unzipped" from its
double strand to two single strands by a
process called denaturing.
Substep 5--Hybridization: This substep and
substep six, Autoradiography, allow the DNA
to be visualized. These two substeps enable
visualization of the DNA fragments by
producing x-ray films which show the distance
the fragments traveled as a result of the
electrophoresis. In the hybridization
substep, four types of radioactive single-
stranded DNA fragments called "probes", which
have known base-pair sequences that occur at
only one location on DNA, are applied to the
nylon membrane. The probes seek out sample
fragments that have complementary base-pair
sequences and attach to them. Each type of
probe will normally attach to two sample
fragments, one contributed by each parent.
Occasionally, however, where parents
contributed the same information (i.e.
identical fragments) for a particular trait,
the probe will attach only to one fragment.
In the former situation the polymorphic locus
is said to be heterozygous, in the latter
case it is said to be homozygous.
Substep 6--Autoradiography: The
hybridization process is repeated four times,
once for each of the four probe types. Each
time, an x-ray film called an
"autoradiograph" or "autorad" is made of the
nylon membrane, so that there are four x-ray
films. (See Exhibits 7, 8, 9, and 10.) An
attached probe's radioactivity will reveal
the location of the probe--and hence the
location of the sample fragment to which it
attached--on the nylon membrane. The
radioactivity shows up as a line or band on
the x-ray film. There will normally be two
bands of each of the four probes, producing a
total of eight bands arrayed across the four
films. Occasionally, where a locus is
homozygous, there will be only one band for
the probe. The location of a band on the x-
ray film indicates the distance a fragment
traveled as a result of electrophoresis, and
hence the length of the fragment. The size-
marker fragments also appear on the films,
enabling measurement of the base-pair lengths
of the sample fragments.
9. The end result of the processing substeps is a
picture of a person's DNA pattern. Each pattern consists of a
series of bands representing a few selected pieces of DNA. The
bands are arrayed in varying positions, which indicate the
distance the selected DNA fragments traveled during
electrophoresis and hence the various lengths of the fragments.
Barney, 10 Cal. Rptr. 2d at 736.
10. The court finds that the RFLP processing steps are
routinely performed and that the six processing substeps
described above are generally accepted techniques in the relevant
scientific community. The procedures and protocols are reliable
and substantially in compliance with the recommended procedures
of the Technical Working Group on DNA Analysis Methods ("TWGDAM")
and the recommendations of the National Research Council in DNA
Technology in Forensic Science (April 1992). The TWGDAM and NRC
guidelines are just that, guidelines and recommendations. The
defendant has questioned procedures used by the FBI and the State
Crime Lab in this case. However, the questions regarding
procedures, including but not limited to, proficiency testing,
bias, ethidium bromide, band shifting, contamination,
degradation, and others were answered by the witnesses, credibly
establishing that the procedures and techniques used by the
laboratories are generally accepted techniques.
11. Step 2--Matching: Having processed the known and
unknown samples of DNA, the next step is to determine whether a
known sample, such as that of a suspect, matches the DNA pattern
of the unknown sample from the crime scene. This is done in two
substeps.
Substep 1--Visual: First the examiner looks
at the patterns on the autorad to determine
if a match exists. As described by Dr.
Lindsey in the hearing in this case and
demonstrated by the sample autorads she used,
the exclusions are usually obvious by viewing
the bands. There is a minimal amount of
subjective analysis as the interpretation of
bands on the autorads is straightforward. In
addition, the autorads continue to exist and
can be reviewed and interpreted by others to
verify accuracy. If there is a visual
exclusion then the DNA analysis ends. If
there is no visual exclusion the matching
analysis proceeds to the next step.
Substep 2--Sizing: The bands are evaluated
for length measured in base pairs. This is
done with the assistance of a computer.
Known base pair lengths exist and they are
compared with the bands of the sample
fragments. Because an exact measurement of
the base pairs of a sample fragment is not
always possible a margin of error is built
into the matching system. This is called the
"matching window". The FBI will declare a
match if the fragments differ by less than
2.5% plus or minus.
If a match is determined after the visual
match and sizing it means that a suspect is
not excluded. A "match" does not mean that a
suspect was definitely the source of the
genetic material found at the crime scene but
indicates the suspect cannot be eliminated or
excluded as a potential source.
12. The court finds that there is general acceptance
in the scientific community as to the techniques and processes to
be employed in declaring a match of DNA pattern by the RFLP
process. The defendant questioned the witnesses regarding the
size of the match window, band shifting, the possibility of false
positives, missing, light or indistinct bands or extra bands, and
other matters. The witnesses credibly explained how any of these
factors were accounted for in the procedures to provide the most
accurate reading and resolve any ambiguity that might exist in
favor of exclusion rather than inclusion. State v. Jobe, 486
N.W.2d 407, 419-20 (Minn. 1992).
13. Step 3--Statistical Frequency: The third and
final step in DNA analysis is an analysis of the statistical
frequency. The statistical frequency provides information as to
the probability a person, other than the suspect, that is, a
random person from the population, would have a DNA profile
matching the suspect's at the same locations. The suspect's
alleles are compared against allele frequencies from developed
population databases. It is this final step that has caused the
most recent analysis under Frye by the courts, that is, is there
general acceptance in the scientific community of the techniques
or methods for arriving at the statistical frequency.
14. The relevant scientific community for reference as
to whether there is general acceptance of the techniques and
methods used for arriving at statistical frequency of a DNA match
is that of human population geneticists.
15. The "Fixed Bin Analysis" is relied on by the FBI
to determine the likelihood of a random match. It assigns to
each band in a DNA profile a value or frequency that represents
how often a particular allele may occur at a specific VNTR locus
in a given population. To determine population frequencies for
particular alleles at particular VNTR loci the FBI uses four data
bases, Caucasian, Black, and two Hispanic groups. To do the
calculation, the "product rule" is applied to estimate the
probability of a random match. The product rule is based on the
assumption that each individual's alleles constitute
statistically independent evidence and its validity rests on the
absence of population substructure. State v. Vandebogart, 616
A.2d 483 (N.H. 1992).
16. This court has considered the testimony of Dr.
Chakraborty at the hearing in this matter, as well as the
numerous scientific articles, decisions, and testimony from other
jurisdictions. The history of the admission of DNA evidence
indexed solely on the statistical frequency issue seems to fall
into three general categories. With some exceptions, courts
initially admitted DNA evidence, including the statistical
frequencies offered by scientists from labs such as Cellmark,
Lifecodes, and the FBI. However, a debate began to brew as
scientists and courts began to evaluate the statistical
frequencies being given in the forensic arena. In the scientific
community, the matter reached a summit in December of 1991 when
two counter articles were published in a leading scientific
journal, Science. Richard C. Lewontin of Harvard University and
Daniel L. Hartl of Washington University questioned the
reliability of DNA statistical analysis in their article,
Population Genetics in Forensic DNA Typing. Randjit Chakraborty
of the University of Texas and Kenneth K. Kidd of Yale University
answered in their article, The Utility of DNA Typing in Forensic
Work. The debate centers around substructure and the
multiplication or product rule.
17. Lewontin and Hartl have asserted that multiplying
together the frequencies with which each band appears could be
based on incorrect assumptions that members of racial groups mate
at random and that the DNA fragments are in linkage equilibrium.
Chakraborty and Kidd assert that although there is substructuring
within the data bases, its effect does not impact the statistical
analysis. This court has heard testimony from Dr. Chakraborty
that is very convincing that, although Lewontin and Hartl raised
these concerns, sufficient time has passed and work done to
establish that the concerns are not valid and the Fixed Bin
method of statistical frequency analysis with the FBI data base
is now generally accepted by the scientific community.
18. The National Research Committee on DNA Technology
was composed of a cross section of scientists familiar with the
issues involved in forensic use of DNA evidence. The National
Research Council is an organization administered by the National
Academy of Sciences, the National Academy of Engineering and the
Institute of Medicine. In April of 1992, the group issued a
report entitled DNA Technology in Forensic Science. (The NRC
report is attached hereto as Exhibit B.) The group's
recommendations and conclusions are summarized at the beginning
of the report, with more detailed discussion following. With
regard to the underlying principles of DNA statistical frequency,
the NRC report states as follows:
Because any two human genomes differ at about
3 million sites, no two persons (barring
identical twins) have the same DNA sequence.
Unique identification with DNA typing is
therefore possible, in principle, provided
that enough sites of variation are examined.
However, the DNA typing systems used today
examine only a few sites of variation and
have only limited resolution for measuring
the variability at each site. There is a
chance that two persons have DNA patterns
(i.e., genetic types) that match at the small
number of sites examined. Nevertheless, even
with today's technology, which uses 3-5 loci,
a match between two DNA patterns can be
considered strong evidence that the two
samples came from the same source.
Interpreting a DNA typing analysis requires a
valid scientific method for estimating the
probability that a random person by chance
matches the forensic sample at the sites of
DNA variation examined. To say that two
patterns match, without providing any
scientifically valid estimate (or, at least,
an upper bound) of the frequency with which
such matches might occur by chance, is
meaningless. The committee recommends
approaches for making sound estimates that
are independent of the race or ethnic group
of the subject.
NCR Report at 9. The committee sets forth the differing
viewpoints regarding the basis of reliable statistical frequency
estimates in its consideration of what is appropriate for
forensic use at the time of the report. Id. at 14, 89. The
committee comments, and the testimony before this court, indicate
that the developing path points in the direction of the views of
Chakraborty and Kidd, in that recent work indicates that the
multiplication of gene frequencies across loci does not lead to
major inaccuracies when assigning statistical frequency. It is
likely that in the near future studies will result in general
acceptance in the scientific community of the FBI's statistical
frequency estimates with the Fixed Bin Method.
18. However, the NRC has recommended the conservative
approach for the present use in forensics. It assumes that
population substructure may exist in light of the scientific
discussion regarding the matter and developed a method of
estimating population frequencies that accounts for it. NCR
Report at 89-95. The "Ceiling Principle" provides a method of
calculating that is fair toward suspects because the estimated
probabilities are likely to be conservative in their
incriminating power. Id. at 85. Until further population
studies are completed, the NRC recommends that courts use a
conservative modification of the ceiling principle, also known as
the "Modified Ceiling Principle" or the "Interim Ceiling
Principle." Id. at 91-93. This method requires three steps
which eliminate the possibility that the resulting estimate will
be affected by population substructure: (1) use of a 95%
confidence limit to accommodate for any sampling error in the
database, (2) creation of a composite genotype of at least three
databases, using the highest frequency of any of the databases
for the particular genetic markers studied and (3) where any
frequency is less than 10%, substitution of a 10% floor for the
actual percentage in the database.
19. The FBI has provided this court with a statistical
frequency using the Modified Ceiling Principle. According to the
testimony the three steps set forth above were all utilized. It
used databases on at least three major races. The data base has
been examined for evaluation of Hardy-Weinberg equilibrium and
linkage disequilibrium. The 95% confidence limit, which is more
accurately a 97.5% confidence limit, was applied. The principle
of the 10% floor was utilized as well. Two methods exist for
obtaining the allele frequencies used to determine the
probability of a random match. These are the "Fixed Bin Method"
and the "Floating Bin Method". NCR Report at 85-96. The
testimony established, and the report indicates, that both
methods are generally accepted in the relevant scientific
community.
20. The court finds that this Modified Ceiling
Principle, computed in a manner consistent with the NRC Report,
is generally accepted in the relevant scientific community of
population geneticists and forensic DNA scientists as a highly
conservative estimate of random DNA pattern matches in which any
error favors the suspect. Commonwealth v. Lanigan, 596 N.E.2d
311, 316 (Mass. 1992). The primary criticism of the Modified
Ceiling Principle is that the statistical frequency that is
produced by the method does not produce the best estimate science
can provide to the courts, but the most conservative estimate.
This is the point at which Science and the Law have difficulty
finding common ground. The Law asks for the DNA random match
statistical frequency that results from theory and method that is
generally accepted in the scientific community. It does not ask
for the most accurate result or the best estimate of statistical
frequency. Therefore the law asks what theory and method produce
a DNA random match statistical frequency that scientists
generally agree on as accurate. In May of 1993, this court finds
that the Modified Ceiling Principle represents a method, although
conservative, that is generally accepted by the relevant
scientific community for providing a statistical frequency of a
random match. The law does not require that the method be
absolutely, universally accepted, but that it be generally
accepted. In the evidence presented to this court both in oral
and written form it is abundantly clear that the Modified Ceiling
Principle rests firmly on the acceptance side in the scientific
community.
22. The court finds that the Modified Ceiling Floating
Bin statistical frequency calculations for the RFLP matches in
this case, as provided by the FBI report, will be admissible.
The numbers reflect the NRC Modified Ceiling Principle using the
Floating Bin Method, which is a generally accepted technique, to
generate a population frequency for the RFLP results in this
case. The evidence that Q-3, the panty stain, under application
of RFLP technical analysis and application of the NRC Modified
Ceiling Principle with Floating Bin method, has a statistical
frequency of 1 in 20,000 is admissible. Testimony of Dr.
Lindsey. The evidence that a three probe match, as the RFLP
technical analysis produced for Q-3, the panty stain, has a
statistical frequency of 1 in 125,000 using the NRC Modified
Ceiling Principle is also admissible.
23. The state has indicated that it is its intention
to introduce evidence of a one probe match as to Q-1 and Q-2, the
anal swabs, but not provide the jury with a statistical frequency
of a random match as to this evidence. The literature and case
law firmly establish that evidence of a DNA match "will not be
admissible if it is not accompanied by a population frequency
estimate that has been produced from a generally accepted
method". State v. Vandebogart, 616 A.2d 483, 494 (N.H. 1992).
Those cases which have denied admissibility of DNA evidence,
prior to the use of the Modified Ceiling Principle, did so even
where there was a match on the basis that the statistical
frequency method had not gained general acceptance in the
scientific community. In other words, evidence obtained from
Step 1 and Step 2, as described in paragraphs 7 through 11 above,
is not admissible without Step 3, statistical frequency.
Evidence of a match without the statistical frequency is not
probative. In People v. Barney, 10 Cal. Rptr. 2d 731, 742 (Cal.
App. 1992)(quoting the NRC report at 74), the court stated,
The statistical calculation step is the
pivotal element of DNA analysis, for the
evidence means nothing without a
determination of the statistical significance
of a match of DNA patterns.
Evidence of exclusion or absence of a match is probative evidence
without any showing of the likelihood of a match occurring.
Evidence excluding other suspects is therefore admissible in this
case. Once a negative or no match is ascertained, the
scientific technique stops, there is no statistical frequency
analysis, and the evidence of exclusion is probative because the
suspect is excluded. However, the opposite side of the coin does
not follow, for if there is a match the scientific technique must
continue to Step 3, and the match only has probative meaning if
the statistical frequency analysis is provided. Therefore, any
evidence of a "match" must include the statistical frequency in
conformity with this opinion. Evidence of RFLP analysis of Q-1
and Q-2, a one-probe match, will only be admissible if a
statistical frequency computed by the NRC Modified Ceiling
Principle is provided to the jury. If the state intends to admit
evidence as to Q-1 and Q-2 from the RFLP analysis consistent with
this opinion, notice shall be given to the court and counsel no
later than May 10, 1993, including the statistical frequency.
Any evidence of exclusion or absence of a match, however, will be
admissible alone as probative. Commonwealth v. Lanigan, 596
N.E.2d 311 (Mass. 1992).
24. The defendant argues that even if the RFLP/DNA
evidence is eligible for admission under Frye, Alaska Evidence
Rule 403 prevents its admission in this case. This court has
considered the "probative v. unfair prejudice" balancing set
forth in Rule 403. The RFLP analysis evidence is admissible to
establish identity, the issue central to the state's case. The
court finds that the evidence is highly probative compared to the
danger of unfair prejudice. The jury may place little or no
weight on the scientific testimony or substantial weight, as is
their prerogative. This evidence may not alone prove identity,
but is part of the circumstances which the state may present for
the jury to consider.
DATED this 30th day of April, 1993, at Fairbanks,
Alaska.
/s/ Niesje J. Steinkruger
NIESJE J. STEINKRUGER
Superior Court Judge
APPENDIX B
THE SUPERIOR COURT FOR THE STATE OF ALASKA
FOURTH JUDICIAL DISTRICT
STATE OF ALASKA, )
) Case No. 4FA-S92-2481 CR
Petitioner, )
)
vs. )
)
STEPHEN J. HARMON, )
)
Appellee. )
)
DECISION AND ORDER ON DEFENDANT'S MOTION
TO SUPPRESS DNA/PCR IDENTIFICATION EVIDENCE
The defendant has moved to suppress evidence the state
intends to offer at trial that results from DNA/PCR DQ Alpha HLA
testing. This court held an evidentiary hearing pursuant to Frye
v. United States, 293 F. 1013, (D.C. Cir. 1923), and State v.
Contreras, 674 P.2d 792 (Alaska App. 1983), rev'd on other
grounds, 718 P.2d 129 (Alaska 1986). The court heard the
testimony of Detective Lantz Dahlke, Detective Timothy Hunyor,
Dr. Jenifer Lindsey, Dr. Randjit Chakroborty, Dr. Cecelia Von
Beroldingen, Joe Ronald Urbanovsky, Leanne Strickland, Robert
Thompson, John Murdock, and Brian Wraxall. In addition, this
court has considered the numerous scientific articles,
affidavits, transcripts, and other exhibits submitted by the
parties, as well as the case law cited and the arguments of
counsel. Based upon all of the above, the court makes the
following findings of fact and conclusions of law:
1. The state seeks to admit evidence at trial which
results from deoxyribonecleic acid (DNA) analysis using the
process called PCR (polymerase chain reaction) HLA DQ Alpha. The
defendant alleges that the PCR HLA DQ Alpha analysis does not
meet the evidentiary standards for admissibility.
2. The court incorporates Paragraphs 2, 3, 4, 5, and
6 from the Decision and Order regarding RFLP evidence as the
statements therein hold true for PCR HLA DQ Alpha analysis in
this case.
3. The RFLP process for DNA analysis attains the most
discriminating results although it is costly, complex, time
consuming, and requires large and nondegraded specimens. The
recently developed PCR HLA DQ Alpha analysis is useful because it
can be used with smaller biological samples, is less expensive,
and the results are easy to interpret. The process is summarized
in State v. Williams, 599 A.2d 960, 966 (N.J. Super. 1991), as
follows:
The PCR technique was developed in
1985 by Cetus Corporation, which developed an
inexpensive kit that has a simplified
procedure to amplify a specific region of DNA
in a sufficient quantity to allow for its
analysis. In a matter of hours a targeted
segment of DNA can be amplified in exact
replicas a millionfold which can then easily
be analyzed. A scientist can select any
section of interest from a DNA molecule,
typically a single set of genes, and amplify
only that part. The result is that fragments
of DNA formerly too small to analyze can now
be amplified and easily analyzed. Currently
there is only one PCR based genetic marker
system commercially available for forensic
analysis, which is the HLA DQ Alpha test
system produced by Cetus Corporation. . . .
The HLA DQ Alpha typing system works in that
a person's genotype is detected by what is
called a reverse dot blot method. The
significant advantage of this system is that
it is easy to standardize its results, which
removes the risk of typing errors. Indeed,
those using the PCR technique are constantly
subjected to "blind" testing to measure the
accuracy of the results and they have been
almost unanimously positive.
4. The second prong of Frye requires a determination
as to whether there are techniques, experiments, and procedures
that currently exist that are capable of producing reliable
results that are generally accepted in the scientific community.
There are three steps in the PCR process used in this case:
Step 1--Extraction: The DNA is
extracted from samples of blood, sperm, hair,
or other body tissues with solvents and
chemicals. A centrifuge is used to separate
the DNA material from the unnecessary
material for PCR testing.
Step 2--Amplification: The small
quantity of isolated DNA is added to the
buffer solution containing chemical primers
and an enzyme called "TAQ polymerase". This
solution is placed in a thermal cycler which
cycles the solution through successive
temperature levels. The process results in
reproducing the DNA fragment making millions
of copies of this region of DNA.
Step 3--Typing: Nine "allele-specific"
probes are attached to a nylon membrane, and
the amplified DNA is flooded over it. The
probes are designed to recognize each of the
variants of the "gene of interest" which, in
this case, was "DQ Alpha". The probes "light
up" in the presence of the variants for which
they are specific. This genetic marker
system has six "traits", designated,
respectively, as 1.1, 1.2, 2, 3, and 4.
These traits are combined in parts in each
individual, because one trait is received
from each parent. There are, according to
the expert testimony, 21 possible
combinations of these traits. These pairings
are called "genotypes". The purpose of the
typing is to identify the genotype present in
the DNA amplified in Step 2. Spencer v.
Commonwealth, 393 S.E. 2d 609, 620 (Va.),
cert. denied, 498 U.S. 908 (1990). Most labs
use a kit developed by Cetus Corporation.
The kit uses "reverse dot hybridization" as
its detection method.
4. The court finds that the PCR/HLA DQ Alpha analysis
steps set forth above are routinely performed and are generally
accepted in the relevant scientific community of molecular
biologists, DNA forensic scientists, biochemists, and population
geneticists. The procedures and protocols are reliable and
substantially in compliance with the recommendations of the
National Research Council and other DNA working groups. The
witnesses, Dr. Lindsey, Leanne Strickland, and Dr. Von
Beroldingen, and the scientific literature candidly acknowledge
the limitations of the HLA DQ Alpha analysis and openly point out
the need for strict laboratory procedures to produce reliable
results. The witnesses explained the controls that were used to
insure reliable results generally and in these tests
specifically. The questions on cross examination of the
witnesses at the hearing regarding procedures, controls,
proficiency testing, bias, contamination, degradation, allele
dropout, thermocycler reliability, and other matters were
answered and acknowledged or explained by the witnesses, credibly
establishing that the procedures and techniques used by the
laboratories are generally accepted techniques.
5. The court finds that there is general acceptance
in the relevant scientific community that the PCR HLA DQ Alpha
typing system has been shown to be a valid and reliable approach
for forensic analysis of biological evidence. The recent cross
validation studies between RFLP and PCR provide the most recent
evidence of its scientific reliability for forensic purposes.
6. The statistical frequency used for application of
the genotype identified by the HLA DQ Alpha analysis in this case
comes from the FBI database, which is combined with the Cetus
database. The question is "What is the likelihood that someone
other than the defendant could have left the crime scene sample?"
The method of determining the likelihood of a random genotype of
the same reading, as described by Dr. Chakraborty and Dr.
Lindsey, is generally accepted by the scientific community and
contains the foundational requirements for admissibility. The
state established by a preponderance of the evidence that the
database is statisti-cally valid and generally accepted as
reliable. See last page of Ex. 41.
7. The court considered the probative versus unfair
prejudice test set forth in Alaska Evidence Rule 403 and finds
that the probative value of the PCR HLA DQ Alpha evidence
outweighs any unfair prejudice which might occur from the
scientific evidence. This evidence is offered by the state as a
part of their case going to the identity of the perpetrator of
this crime. The jury may place little or no weight on the
scientific testimony or substantial weight, as is their
prerogative. This evidence may not alone prove identity, but is
part of the circumstances which the state may present for the
jury to consider.
DATED this 30th day of April, 1993, at Fairbanks,
Alaska.
/s/ Niesje J. Steinkruger
NIESJE J. STEINKRUGER
Superior Court Judge
_______________________________
1 Rule 404(b) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible if the sole
purpose for offering the evidence is to prove the character of a
person in order to show that the person acted in conformity
therewith. It is, however, admissible for other purposes,
including, but not limited to, proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by consideration of undue
delay, waste of time, or needless presentation of cumulative
evidence.
2 In Coleman v. State, 621 P.2d 869, 874 n.4 (Alaska 1980), the court, quoting
People v. Sam, 454 P.2d 700, 705 (Cal. 1969), explained modus operandi as
follows:
Modus operandi is generally a means of proving the identity of
the perpetrator of the crime charged, by demonstrating that the
defendant had committed in the past other crimes sharing with the
present offense features sufficiently unique to make it likely
that the same person committed these several crimes.
3 Testifying for the state were: Leanne Strickland, a forensic serologist from
the Alaska State Crime Laboratory; Dr. Jenifer Lindsey, a forensic
serologist from the FBI; Dr. Cecelia von Beroldingen, a molecular biologist
at the Oregon State Police Forensics Laboratory; Joe Urbanovsky, the
forensic supervisor of the Texas Department of Safety Crime Laboratory; and
Dr. Randjit Chakraborty, a professor of human population genetics at the
University of Texas Health Science Center in Houston.
Testifying for the defense were: Robert Thompson, a forensic supervisor
with the Genelex Corporation in Seattle; John Murdock, who recently retired
as Chief of the Sheriff's Department, Criminalistics Laboratory in Contra
Costa County, California; and Brian Wraxall, a forensic serologist from
California.
4 Judge Steinkruger's findings are attached as Appendices A and B.
5 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Alaska Supreme Court
adopted the Frye test in Pulakis v. State, 476 P.2d 474 (Alaska 1970).
The state questions whether the Frye test is still viable in Alaska. The
state points out that in Daubert v. Merrell Dow Pharmaceuticals, Inc.,_
__U.S.___, 113 S.Ct. 2786 (1993), the United States Supreme Court
unanimously held that the Frye test, the generally accepted standard for
the admission of expert scientific testimony, was no longer the test that
federal courts would apply. The Supreme Court held that Frye had been
superseded by Federal Evidence Rule 702, which provides a more liberal
standard for admitting relevant expert evidence. Id. at 2793-94. Alaska
Evidence Rule 702 was derived from, and is identical to, Federal Rule of
Evidence 702.
In Contreras v. State, 718 P.2d 129 (Alaska 1986), the Alaska Supreme Court
affirmed its adherence to the Frye standard, despite the state's argument
in that case that the Frye test was superseded by the enactment of the
Federal Rules of Evidence. Contreras, 718 P.2d at 136. Of course, it is
entirely possible that the supreme court would reevaluate its position in
light of the United States Supreme Court's decision in Daubert. However,
we believe that given the supreme court's adherence to the Frye standard in
Contreras, the proper course of action is for us to follow the existing
standard. See Mattox v. State, Dept. of Revenue, 875 P.2d 763 (Alaska
1994) (applying Frye but noting Daubert).
6 Genes are sections of the DNA molecule governing the produc-tion of proteins
which, in a broader sense, determine a person's hereditary character.
Alleles are the various forms or varieties of a particular gene.
Technically speaking, it is the frequency with which alleles occur in a
given population that is at issue in this case. We refer to genes for the
sake of simplicity, however.
7 Under AS 12.45.035(a), "evidence of a DNA profile is admissible to prove or
disprove any relevant fact, if the court finds that the technique
underlying the evidence is scientifically valid. The admission of the DNA
profile does not require a finding of general acceptance in the relevant
scientific community of DNA profile evidence."
In subsection (b)(2) of the statute, "DNA profile" evidence is defined as
(A) ... an analysis of blood, semen, tissue, or other cells bearing
deoxyribonucleic acid resulting in the identification of the
individual's patterned chemical structure of genetic information;
(B) [and] includes statistical population frequency comparisons of the
patterned chemical structures described in (A) of this paragraph.
8 The passage of the new law presents a potential conundrum: that the DNA
evidence could have been inadmissible at the time it was offered but would
be admissible at any new trial. We find, however, that the evidence was
properly admitted under the Frye test, so no problem is presented by the
change in the law.
* Judge Steinkruger's Decisions and Orders have been edited for publication in
conformance with Alaska Court of Appeals procedural standards. Appendices
and exhibits referred to have not been included for publication.
