Andrews v. State

• Decision Date: 20 October 1988
• Docket Number: No. 87-2166,87-2166
• Citation: 533 So.2d 841,13 Fla. L. Weekly 2364
• Parties: , 13 Fla. L. Weekly 2364 Tommie Lee ANDREWS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 841

533 So.2d 841

57 USLW 2295, 13 Fla. L. Weekly 2364

Tommie Lee ANDREWS, Appellant, v. STATE of Florida, Appellee.

No. 87-2166.

District Court of Appeal of Florida Fifth District.

Oct. 20, 1988.

Rehearing Denied Nov. 22, 1988.

James B. Gibson, Public Defender and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

Andre A. Moenssens, Kilmarnock, Va., for amicus curiae, Lifecodes Corp.

ORFINGER, Judge.

The issue in this case concerns the admissibility of "genetic fingerprint" evidence, by which strands of coding found in the genetic molecule of deoxyribonucleic acid (DNA) are compared for the purpose of identifying the perpetrator of a crime. The trial court admitted the evidence, and the jury convicted defendant of aggravated battery, sexual battery and armed burglary of a dwelling. Defendant also contends that his motion for mistrial should have been granted because of an improper comment by the prosecutor, and that he could not be convicted for both aggravated battery and sexual battery arising from the same incident. We conclude that the evidence was properly admitted and that defendant's other issues are without merit, and we affirm.

In the early morning hours of February 21, 1987, the victim was awakened when someone jumped on top of her and held what felt like a straight edge razor to her neck. The intruder, who the victim could only identify at trial as a strong, black male, held his hand over her mouth, told her to keep quiet and threatened to kill her if she saw his face. The victim struggled with the intruder and for her efforts was cut on her face, neck, legs and feet.

The intruder then forced vaginal intercourse with the victim, following which he stole her purse containing about $40, and then left the house. A physical examination made after the attack was reported to the police revealed the presence of semen in the victim's vagina. A crime lab analyst testified that both the victim and appellant were blood type O but that appellant like a majority of the population is a secretor (secretes his blood type in his saliva and other body fluids) while the victim was not. Blood type O was found in the vaginal swabs taken from the victim though the analyst conceded that while this result could have come from the semen found in the victim's vagina, it also could have come from the victim's blood picked up by the swab. The analyst concluded that appellant was included in the population (which he stated constituted 65% of the male population) that could be the source of the semen.

A crime scene technician testified that on the morning following the crime one of the windows of the victim's house was open, and the screen was missing. The victim had testified that this window had been broken previously and was held together with wire from a coat hanger. A screen was found on the ground and fingerprints were lifted from it. A fingerprint expert testified that two of the prints lifted from the screen matched appellant's right index and middle finger.

Over objection, the state presented DNA print identification evidence linking appellant to the crime. The DNA test compared the appellant's DNA structure as found in his blood with the DNA structure of the victim's blood and the DNA found in the vaginal swab, taken from the victim shortly after the attack. The test was conducted by Lifecodes Corp., a corporation specializing in DNA identity testing. Dr. Baird of Lifecodes testified to a match between the DNA in appellant's blood and the DNA from the vaginal swab, stating that the percentage of the population which would have the DNA bands indicated by the samples would be 0.0000012%. In other words, the chance that the DNA strands found in appellant's blood would be duplicated in some other person's cells was 1 in 839,914,540.

We have found no other appellate decision addressing the admissibility of DNA identification evidence in criminal cases. Although appellant primarily attacks the methods used by Lifecodes as opposed to the admissibility of DNA evidence in general, the novelty of the question requires, in our opinion, that we address both issues.

(A) ADMISSIBILITY OF A NEW SCIENTIFIC TECHNIQUE--STANDARD

We begin by confessing some uncertainty as to the standard applicable in this state governing admissibility into evidence of a new scientific technique. In the seminal case of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which involved the question of admissibility of lie detector test results, the court, in holding that expert testimony relating to novel scientific evidence must satisfy a special foundational requirement not applicable to other types of expert testimony, declared:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in the twilight zone the evidential force of the principle must be recognized, and while the 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 to which it belongs. [Emphasis in original].

293 F. at 1014.

One leading commentator has summarized Frye as requiring courts to determine: (1) the status, in the appropriate scientific community, of the scientific principle underlying the proffered novel evidence; (2) the technique applying the scientific principle; and (3) the application of the technique on the particular occasion. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States A Half Century Later, 80 Columbia Law Rev. 1197, 1201 (1980). Frye is still applied in a number of jurisdictions, compare Cobey v. State, 73 Md.App. 233, 533 A.2d 944 (1987) (state failed to establish that chromosome variant analysis was generally accepted as reliable in relevant scientific community) with People v. Reilly, 196 Cal.App.3d 1127, 242 Cal.Rptr. 496 (1987) (sufficient showing made that electrophoretic typing of dried bloodstains had found general acceptance or consensus in scientific community to warrant its introduction), though it has of late come in for criticism by a number of judges and commentators as being too inflexible ¹ as well as inconsistent with modern evidence codes. See, e.g., United States v. Downing, 753 F.2d 1224 (3d Cir.1985); Brown v. State, 426 So.2d 76, 87-89 (Fla. 1st DCA 1983); Giannelli, supra. One judge has suggested that the Frye standard should be rejected as a precondition to the admissibility of evidence relating to novel scientific techniques. Hawthorne v. State, 470 So.2d 770, 783 (Fla. 1st DCA 1985) (Ervin, C.J., concurring and dissenting in part).

In Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983) Judge Ervin exhaustively reviewed the law in Florida on the applicability of the Frye test, concluding that it was unclear whether that test had been accepted by the Florida courts. His review of Kaminski v. State, 63 So.2d 339 (Fla.1952), Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970), and Jent v. State, 408 So.2d 1024 (Fla.1981) led him to conclude that the Frye test had not been adopted. He added, however that

More recently the Florida Supreme Court cited Coppolino as supporting its view that "[a] court should admit evidence of scientific tests and experiments only if the reliability of the results are widely recognized and accepted among scientists." Stevens v. State, 419 So.2d 1058, 1063 (Fla.1982). Superficially, it would seem that the above statement embraces the Frye rule, yet the court's reliance upon Coppolino undercuts that interpretation. Additionally, the statement made in the same paragraph that "[t]he admissibility of a test or experiment lies within the discretion of the trial judge ..." is contrary to Frye since a strict adherence to Frye would severely curtail trial court discretion. The latter quoted statement is, moreover, consistent with the court's earlier opinion in Jent.

426 So.2d at 87.

In Jent v. State, 408 So.2d 1024 (Fla.1981), the question raised was the admissibility of hair analysis testimony. In rejecting the defense claim that evidence regarding hair analysis was not sufficiently reliable or exact to be allowed into evidence, the court stated:

As a general rule, the problem presented to a trial court is whether scientific tests are so unreliable and scientifically unacceptable that admission of those test results constitutes error. Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970).... A trial court has wide discretion concerning the admissibility of evidence, and, in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed.

408 So.2d at 1029. The evidence was held to be admissible despite the testimony that, although the unknown hair found at the scene of the crime was microscopically the same as the defendant's it could not be positively identified as having come from the defendant. The court noted that "[d]etermining what weight to accord this testimony was within the jury's province...."

In Bundy v. State, 455 So.2d 330 (Fla.1984) [Bundy I ] the court extensively reviewed case law pertaining to the admissibility of hypnotically aided testimony, but declined to decide which test was applicable, finding that the specific testimony involved was admissible because "... this is simply not a case of hynotically refreshed recall testimony." Id. at 341. The court then addressed the admissibility of expert testimony on bite mark comparison evidence. Without specifically referencing Frye, the court held such testimony to be admissible and...