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Dayton v. State (04/23/2004) ap-1927
Dayton v. State (04/23/2004) ap-1927
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
ANDREW DAYTON, )
) Court of Appeals No. A-
7724
Appellant, ) Trial Court
No. 4FA-S98-2438 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1927 April 23, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: John M. Rice, Juneau, 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.
STEWART, Judge.
This is the second opinion we have issued in this case.
In Dayton v. State, 54 P.3d 817 (Alaska App. 2002), we upheld the
superior courts decision on all but one of the claims that Dayton
brought on appeal. We remanded this case to the superior court
for additional findings on whether a database used for
statistical analysis of DNA profile frequencies was the type of
data that experts in the field would reasonably rely on. After
taking additional evidence, the superior court found that the
database met the requirements of Alaska Evidence Rule 703. This
finding is supported by substantial evidence. Because the
database met the requirements of Rule 703, the superior court did
not abuse its discretion by allowing testimony on DNA profile
frequencies using that database. Therefore, we affirm Daytons
conviction.
We discussed the facts of Daytons crimes in our
previous opinion and we need not repeat that discussion here.
Dayton was charged with first-degree sexual assault and first-
degree burglary for breaking into S.S.s house in Huslia and
sexually assaulting her.1 Daytons first trial ended with a hung
jury, but he was convicted at his retrial.
Hayne Hamilton, a forensic serologist at the Alaska
Scientific Crime Detection Laboratory (hereafter the crime lab),
conducted DQ alpha and polymarker DNA analysis on various samples
seized during the investigation. The testing showed that Daytons
DNA was a potential source for the DNA found in sperm collected
from S.S.s vagina. Based on databases that the State had
previously developed, Hamilton projected that the frequency of
the DNA profile found in the sperm fraction was 1 in 3,500 for
North Slope Inupiat Eskimos and 1 in 2,000 for Bethel/Wade
Hampton Yupik Eskimos. As we noted in our earlier opinion,
Hamilton could not calculate a DNA profile frequency for
Athabascan Indians because she did not have an Athabascan
database. (Dayton is an Athabascan Indian.)
During the first trial, as part of his defense, Dayton
argued that the DNA evidence was meaningless without an
Athabascan database. Dayton himself testified that he saw
someone else having intercourse with S.S. and implied that his
brother may have assaulted S.S. The first trial resulted with a
hung jury.
After the first trial, the crime lab adopted the short
tandem repeat (STR) system of DNA analysis. STR examines
thirteen genetic loci and is more discriminating than DQ alpha
and polymarker analysis, which checks six genetic loci. The
crime lab created a database with genetic samples from Athabascan
Indians. We discussed that process in our earlier opinion.
At Daytons retrial before Superior Court Judge pro tem
Jane F. Kauvar, the State again offered evidence that, based on
Daytons DNA profile and the DNA profile of the sperm collected
from S.S., Dayton could not be excluded as the source of the
sperm. The statistical analysis of the likelihood that this DNA
profile would be repeated randomly in certain groups with
existing databases was 1 in 22 billion for North American
Caucasians, 1 in 6 billion for African-Americans, and 1 in 413
million for Hispanics. Dayton did not challenge this evidence.
In addition, the State offered evidence that STR
analysis indicated that Dayton exhibited the DNA profile of the
sperm taken from S.S. and the population frequency statistics
based on the Athabascan database. Dayton objected to this
evidence, arguing that the State had to establish the reliability
of the Athabascan database in a hearing outside the presence of
the jury before the expert witness could use the database as a
basis for providing scientific evidence. Dayton relied on
Daubert v. Merrell Dow Pharmaceuticals, Inc.2 In State v. Coon,3
the Alaska Supreme Court adopted a test for the admissibility of
challenged scientific evidence, which was derived from Daubert.4
The court indicated that Daubert factors provided a useful
approach to analyzing the admissibility of such evidence.5 Those
factors are:
(1) whether the proffered scientific theory
or technique can be (and has been)
empirically tested (i.e., whether the
scientific method is falsifiable and
refutable); (2) whether the theory or
technique has been subject to peer review and
publication; (3) whether the known or
potential error rate of the theory or
technique is acceptable, and whether the
existence and maintenance of standards
controls the techniques operation; and (4)
whether the theory or technique has attained
general acceptance.[6]
However, Judge Kauvar overruled Daytons objection.
Using the Athabascan database developed by the crime
lab, the States expert testified that the likelihood was 1 in 2.5
million that the DNA profile from the sperm taken from S.S. would
be repeated randomly in the Athabascan population. Because
Dayton is an Athabascan, the Athabascan genetic frequency data
was particularly probative.
Under Rule 703, expert witnesses can rely on facts or
data outside their personal knowledge (indeed, facts or data that
would not necessarily be admissible themselves) if those facts or
data are of a type reasonably relied upon by experts in the
[applicable] field [when] forming opinions or inferences upon the
subject [at issue]. The Commentary to Rule 703 states that the
rule was designed to allow experts to rely on sources of
information that constitute the recognized tools of their
profession, that is, information that otherwise could not be
introduced without the expenditure of substantial time in
producing and examining various authenticating witnesses.
In Daytons case, the States expert testified, based on
the database developed for the Athabascan population, that the
likelihood that someone other than Dayton was the source of the
genetic material in the sperm recovered from S.S. was 1 in 2.5
million. In offering this opinion, an expert could rely on the
Athabascan DNA database if this database met the test put forth
in Rule 703. Because Judge Kauvar did not address this question
after overruling Daytons objection, we remanded the case to the
superior court and directed Judge Kauvar to decide whether that
database was the type of data that experts in the field would
reasonably rely on.
On remand, the State offered Dr. Bruce Budowle, a
senior scientist at the FBI laboratory in Quantico, Virginia, as
an expert in the creation of DNA databases. Judge Kauvar
qualified Dr. Budowle as an expert without objection from Dayton.
Dr. Budowle testified that the Athabascan database was
scientifically valid and constituted the type of data that
experts who analyze and use DNA databases rely on. He explained
that the thirteen STR loci that were examined in the Athabascan
DNA database are part of CODIS (Combined DNA Index System, the
national DNA data bank) and are the accepted set of genetic
markers used nationally and internationally. Dr. Budowle
testified that he was a co-author of an article that described
the Athabascan database and the Yupik and Inupiat databases. The
article was published in Forensic Science International, a peer-
reviewed publication, after Daytons retrial.
Dayton presented no witnesses at the hearing.
After hearing Dr. Budowles testimony, Judge Kauvar
found that the Athabascan database was the type of data that
experts would reasonably rely on. From our review of the record,
we conclude that this finding is supported by substantial
evidence.
Dayton argues that we should reverse his conviction
because he claims that the State would not have met the
requirements of Rule 703 if the court had addressed that question
during his retrial. Dayton points out that the peer-reviewed
article that discusses the Athabascan database was not published
until after Daytons retrial. But a trial court considering the
validity of scientific evidence is not required to find that the
proponent of evidence must show all four of the enumerated
Daubert/Coon factors. The supreme court noted in Coon that a
trial judge may be convinced by other factors that scientific
evidence is reliable.7 We cannot say at this point that the
State would not have been able to show that the database was
reliable had Judge Kauvar addressed that point at the retrial.
Furthermore, if we granted Dayton a new trial because
Judge Kauvar did not find during trial that experts would rely on
the database, Dayton would benefit from an error that was
harmless. The record now shows that the State established the
reliability of the database and, therefore, that the evidence
would be admissible at another trial.8
We conclude that it was not an abuse of discretion to
allow testimony that relied on the Athabascan database.9
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.410(a)(1) and AS 11.46.300(a)(1), respectively.
2 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
3 974 P.2d 386 (Alaska 1999).
4 Id. At 395, 396-97.
5 Id. At 395.
6 Id., citing Daubert, 509 U.S. at 593-94, 113 S.Ct. at
2796-2798.
7 Id.
8 Compare Depp v. State, 686 P.2d 712, 715-16 (Alaska App.
1984) (ruling that error in holding grand jury in a location not
permitted by court rule was harmless because venue for the grand
jury was proper under rule as amended in the interim).
9 See Coon, 974 P.2d at 398.
