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Peters v. State (3/9/01) ap-1727
Peters v. State (3/9/01) ap-1727
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts.
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEVEN F. PETERS, )
) Court of Appeals No. A-7239
Appellant, ) Trial Court No. 3PA-97-2296 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1727 - March 9, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: Chet Randall, Assistant Public
Advocate, and Brant McGee, Public Advocate, Anchorage, 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: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
A grand jury indicted Steven F. Peters on a charge of
sexual abuse of a minor in the first degree for assaulting J.H., age
three. At trial, the state introduced evidence that skin cells
found under Peters's fingernails had a DNA profile consistent with
J.H.'s DNA profile. But the state did not introduce any evidence
about how likely it would be for a randomly chosen person to match
the DNA profile. Peters argues on appeal that admitting the DNA
evidence without any statistical information about how likely a DNA
match would be was error. We agree with Peters that admission of
the DNA evidence without statistical information was error, but we
also conclude that the error was harmless.
Facts and Proceedings
Steven F. Peters went to visit his sister, Denise Peters,
who was staying with the Carney family. Several people were present
when Peters arrived at the Carney house: Denise Peters; Jaqueline
Carney; A.C., Carney's fourteen-year-old younger sister; Chris
Steele, Carney's boyfriend; Shanna Hibpshman, Carney's friend; and,
J.H., Hibpshman's three-year-old daughter.
Shortly after Peters arrived, J.H. fell asleep. A.C. took
J.H. downstairs and put her in A.C.'s bed. J.H. was wearing a long
T-shirt and panties.
Peters and Steele drove to Steele's apartment. Steele
invited three friends Levi Gustafson, Larry Wood, and Jason Pappel
to join them at the Carney house. Peters and Steele returned to
the Carney house; Gustafson, Wood, and Pappel arrived shortly
thereafter.
At the Carney house, everyone but A.C. and Gustafson was
drinking alcohol. Peters drank more than the others and became very
intoxicated and annoying. Because Peters was too drunk to drive,
Steele had Peters go downstairs and lie down on a couch. Gustafson
left at about that time.
Later on, A.C. went downstairs to check on J.H. As A.C.
came down the stairs, she saw Peters sitting on the bed, and J.H.
standing naked between Peters's legs. Peters was kissing J.H.'s
neck and was moving his hand in her vagina. J.H. was crying.
A.C. ran upstairs and told Hibpshman to come downstairs
immediately. When Hibpshman came downstairs, J.H. was standing
naked next to the bed, and Peters was lying face down on the bed.
At Hibpshman's request, A.C. took J.H. upstairs. J.H. said, "that
man's not going to touch my pee-pee again, is he?" Carney got a T-
shirt for J.H. and questioned J.H. J.H. said that the man
downstairs in the bed with her had touched her. When Carney asked
J.H. where the man had touched her, J.H. pointed between her legs.
When Carney asked how, J.H. took her index finger and moved it up
and down.
Meanwhile, Hibpshman was yelling at Peters to get out and
hitting him. Steele, Wood, and Pappel began hitting Peters as well
and chased him out of the house. Peters ran to his truck and got
in. Steele, Wood, and Pappel disabled the truck and broke out the
headlights and windows. They then unlocked the truck door, pulled
Peters out, and continued beating him. After an undetermined amount
of time, they stopped and Peters fled without his shoes.
At about this time, the police arrived; they had been
alerted by neighbors. Wood and Pappel asked the others not to tell
the police they had been there and left. No one told the police
that Wood, Pappel, or Gustafson had been there.
J.H. was taken to the hospital and examined. The
examination revealed three areas of injury to internal genital
structures. The examining nurse, Margaret Volz, concluded that J.H.
was a victim of sexual abuse and that digital penetration was
consistent with the examination findings.
Alaska State Trooper Kyle Young found Peters walking
alongside the Old Glenn Highway. Trooper Young detained Peters.
Peters was taken to the hospital. There, samples were collected
from under Peters's fingernails and swabs were taken of Peters's
left index finger and right palm. These samples were tested for
DNA.
Hayne Hamilton, a forensic serologist/DNA analyst working
for the Alaska State Crime Laboratory, determined that the samples
represented a mixture of DNA profiles. The DNA analysts working at
the State Crime Laboratory do not routinely attempt to calculate
population frequency statistics for mixed samples and Hamilton did
not in this case. [Fn. 1] Hamilton determined that the sample DNA
had a profile that was consistent with J.H. being the source of the
DNA.
At a jury trial before Superior Court Judge Eric Smith,
the state introduced the DNA profile match to show that the results
were "consistent" with J.H. being the source of the DNA found on
Peters. No population frequency statistics were introduced. The
number of possible genotypes that the DNA test could distinguish was
introduced, as was the number of possible genotypes that could not
be excluded as sources of the DNA found on Peters.
At trial, A.C. testified as to what she had seen. Peters
testified that he had heard J.H. crying and had attempted to comfort
her. He testified that J.H. was naked when he entered the room, and
that he had picked J.H. up and hugged her. Peters testified that
from the way he was holding J.H., someone might have thought he was
kissing her neck.
The jury convicted Peters of sexual assault of a minor in
the first degree, an unclassified felony. Judge Smith sentenced
Peters to ten years, with two years suspended. This appeal
followed.
The DNA Evidence
Hamilton, an expert witness for the state, testified that
debris (skin cells, essentially) found under Peters's fingernails
had a DNA profile that was consistent with the profile of J.H., the
victim in this case. This evidence was not accompanied by
population frequency statistics. Peters claims this was error.
The term "DNA evidence" refers to a test result that
describes the chemical make up of regions on a person's chromosomes.
This is often called a DNA profile. In this case, debris found
under the defendant's fingernails was compared with the profile of
the victim.
DNA evidence is usually accompanied by population
frequency statistics, which show the likelihood that a randomly
chosen person would have the same profile as the sample. In Harmon
v. State, [Fn. 2] we stated that DNA evidence had little probative
value without these statistics:
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 (sic) that same gene;
conversely, if the gene is quite rare, then the DNA match becomes
correspondently more probative. [Fn. 3]
Most other states that have considered the admissibility of DNA
evidence have held that evidence of a DNA profile should not be
admitted without statistical evidence to aid the jury in
interpreting that evidence. [Fn. 4] It is true that in Brodine v.
State, [Fn. 5] we concluded that the DNA evidence in that case "had
probative value even without the accompanying population frequency
estimates." [Fn. 6] But in Brodine, we concluded that admission
of the DNA evidence, under the limited facts of that case, was at
most harmless error. [Fn. 7] We did not endorse admission of DNA
profiles without statistical analysis.
We note that the legislature has passed a statute, AS
12.45.035, which provides that evidence of a "DNA profile" is
admissible in a criminal proceeding "to prove or disprove any
relevant fact, if the court finds that the technique underlying the
evidence is scientifically valid." [Fn. 8] We also note that for
the purpose of this statute, "DNA profile" is defined as "includ[ing]
statistical population frequency comparisons" of the DNA evidence.
[Fn. 9] The legislature has therefore approved the admission of DNA
evidence that is accompanied by statistical information. But, AS
12.45.035 does not address whether DNA evidence is admissible
without statistical information.
Admitting a DNA profile match without evidence that
properly interprets the significance of the DNA match could be very
misleading. It is generally well known that DNA testing often
allows scientists to identify a particular individual from among
millions. [Fn. 10] Because the potential precision of DNA testing
is so well known, a jury might assume that any DNA profile match is
extremely unlikely and therefore extremely probative. But as
explained above, this is not always true. A jury might therefore
give undue weight to a DNA profile match in a case where no evidence
has been presented showing the significance of the match.
Furthermore, admitting a DNA profile match with improper
interpretive evidence may be misleading. For instance, in Peters's
case, the expert witness testified that out of the 27,216 possible
genotypes that the DNA test could distinguish, only 162 genotypes
could not be excluded as sources of the DNA found on Peters. Yet
no evidence was introduced showing how common any of these genotypes
is. Without knowing how common any of the 27,216 genotypes is,
knowing how many genotypes there are provides no explanation of the
significance of the DNA profile match. For example, it could be
that 27,210 of the 27,216 possible genotypes are extremely rare, and
that the other 6 of the possible genotypes are extremely common.
Or it could be that each of the 27,216 possible genotypes is
represented by the same number of people. There are other
possibilities. In any case, the significance of a DNA profile match
varies with the frequency that the genotypes are represented in the
general population, not with the absolute number of genotypes.
The state argues that a DNA profile match, even without
proper interpretive evidence such as population frequency
statistics, is probative and should be admissible. The state argues
that evidence of physical characteristics such as eye color and hair
color are routinely admitted in courts without any evidence of their
frequency within the general population. But there is a fundamental
difference between these physical characteristics and evidence of
a DNA profile match. Because jurors can readily observe hair color
and eye color within the general population, the jury is presumed
to have a grasp of the frequency of these characteristics within the
general population. DNA evidence is different. Because a juror is
unable to observe a person's DNA, the juror has no idea of the
frequency of a particular DNA profile.
We conclude, therefore, that admission of the DNA evidence
in Peters's case was error. But we conclude that this error was
harmless for three reasons.
First, the jury was given the information needed to
critically evaluate the DNA profile match i.e., that without
interpretive evidence, the probative value was marginal. The
state's expert witness, Hamilton, conceded that she did not know the
likelihood that a random person in the population would match the
DNA that was found under Peters's fingernails. The court instructed
the jury that:
it is not possible to determine whether the DNA
profile that was found by the . . . test is so common that it could
have come from any number of people or so uncommon that it could
have come from only a few individuals. You therefore have no
evidence to indicate how many other people share the same DNA
profile as the victim.
Although the state argued that the evidence was "powerful
corroborative evidence," the state conceded that it did not have any
evidence that would show the likelihood of a match in the DNA
evidence. Therefore, it appears to us that the DNA evidence was not
admitted in a particularly misleading fashion.
Second, the DNA evidence was not particularly probative
in this case. DNA evidence has its most powerful use in
establishing identity. Yet identity was undisputed in this case.
Peters conceded that he had picked up J.H. while she was naked.
Testimony presented at trial established that any skin, from either
inside or outside the body, would generate the kind of cells that
were found under Peters's fingernails. Therefore, since Peters
admitted picking up J.H. while she was naked, the fact that he had
some DNA under his fingernails which might have come from her does
not appear to be particularly probative. This should have been
apparent to the jury.
Finally, the state's evidence against Peters was strong.
The state had the eyewitness testimony of A.C., who observed the
abuse. Peters never disputed that he was holding a naked J.H. at
this time and that J.H. was crying. Immediately after this, J.H.
made statements to the effect that Peters had sexually abused her.
J.H.'s statements were corroborated by the physical examination that
revealed that she had three areas of injury to her internal genital
structure.
For these reasons, we conclude that although admission of
the DNA evidence without statistical explanation was erroneous
because this evidence was potentially misleading, the error was
harmless under these facts because the admission of this evidence
did not appreciably affect the jury's verdict. [Fn. 11]
The Grand Jury Indictment
Peters also argues that Judge Smith erred in refusing to
dismiss the indictment against him. Peters notes that the state did
not inform the grand jury that A.C. and Hibpshman purposefully did
not tell the police that three other men (Gustafson, Wood, and
Pappel) had also been present on the night in question. Peters
argues that this was exculpatory evidence that the state was
required to submit to the grand jury. Peters argues that this fact
tends to negate his guilt in two ways. First, Peters argues this
fact calls into question the identity of the person who abused J.H.
Second, Peters argues this fact impeaches the credibility of A.C.
and Hibpshman.
The state has a duty to present exculpatory evidence to
the grand jury. [Fn. 12] This duty to present exculpatory evidence
extends only to "the type of evidence that tends, in and of itself,
to negate the defendant's guilt." [Fn. 13] The state does not have
to "develop evidence for the defendant and present every lead
possibly favorable to the defendant." [Fn. 14]
The evidence that Peters argues the state was required to
present is exculpatory only "in the limited sense that it may be the
kind of evidence skilled counsel might develop and rely on to argue
reasonable doubt to the jury." [Fn. 15] Therefore, the state was
not required to present it and Judge Smith did not err in refusing
to dismiss the indictment.
The conviction is AFFIRMED.
FOOTNOTES
Footnote 1:
"Population frequency statistics" is a term for the statistical
analysis that shows the likelihood that a randomly chosen person
would match the DNA profile. See Harmon v. State, 908 P.2d 434,
441-42 (Alaska App. 1995).
Footnote 2:
908 P.2d 434.
Footnote 3:
Id. at 441.
Footnote 4:
See Nelson v. State, 628 A.2d 69, 76 (Del. 1993); People v.
Coy, 620 N.W.2d 888, 896-98 (Mich. App. 2000).
Footnote 5:
936 P.2d 545 (Alaska App. 1997).
Footnote 6:
Id. at 551.
Footnote 7:
See id.
Footnote 8:
AS 12.45.035 states:
Admissibility of DNA profiles. (a) In a
criminal action or proceeding, 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.
(b) In this section,
(1) "deoxyribonucleic acid" means the molecules
in all cellular forms that contain genetic information in a
patterned chemical structure for each individual;
(2) "DNA profile"
(A) means 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) includes statistical population frequency
comparisons of the patterned chemical structures described in (A)
of this paragraph.
Footnote 9:
AS 12.45.035(2)(B).
Footnote 10:
See National Research Council, The Evaluation of Forensic DNA Evidence 42-
45 (1996).
Footnote 11:
See Love v. State, 457 P.2d 622, 629-31 (Alaska 1969).
Footnote 12:
See Frink v. State, 597 P.2d 154, 164 (Alaska 1979).
Footnote 13:
State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
Footnote 14:
Frink, 597 P.2d at 166.
Footnote 15:
McDonald, 872 P.2d at 639.
