Nelson v. State

• Decision Date: 20 April 1993
• Parties: James NELSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 69

628 A.2d 69

James NELSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: April 20, 1993.

Decided: July 29, 1993.

As Revised July 30, 1993.

Upon appeal from Superior Court. Affirmed.

Eugene J. Maurer, Jr. (argued), Wilmington, for appellant.

Richard E. Fairbanks, Jr., Chief of Appeals Div., Dept. of Justice (argued), Wilmington, William N. Nicholas, former Deputy Atty. Gen., and James A. Rambo, Deputy Atty. Gen., Dover, for appellee.

Before HORSEY, MOORE and WALSH, JJ.

HORSEY, Justice:

In this case we consider for the first time the admissibility of evidence arising from the scientific technique of deoxyribonucleic acid (DNA) typing in criminal prosecutions. The appellant, James Nelson ("Nelson"), appeals his Superior Court jury convictions of Robbery First Degree, Kidnapping First Degree and Unlawful Sexual Intercourse First Degree. Nelson contends that the Superior Court erred in admitting the State's evidence that a DNA sample obtained from Nelson's blood matched DNA samples taken from semen stains found on the victim. We find the trial court to have committed error by admitting evidence of the DNA match while excluding evidence of the reliability of the match. Nevertheless, we find the error to be harmless in light of the overwhelming evidence of record to support the convictions. Therefore, we affirm.

I. FACTS

About 6:00 a.m. on August 29, 1989, the victim, a Dover resident on her way to work by car, stopped to obtain cash at a Dover bank's automated teller machine. As she was placing her bank card in the machine, an unknown male came up from behind and grabbed victim around the neck. Victim could not see her assailant's face, and saw only a black arm coming around her head. When victim struggled, her assailant applied a choke hold, causing painful injury to her neck and vertebrae. In the struggle, victim's glasses were intentionally taken or knocked off, without which she could not see. Threatening to kill her if she screamed, her assailant forced victim back into her car with him and he drove off. When victim repeatedly asked her assailant what he was going to do, he said nothing, other than referring to her a "white rich bitch." He then told her to take her clothes off as he drove out of town. When assailant reached a desolate location, he stopped the car and vaginally raped victim. He then allowed victim to dress and drove her back to Dover, stopping the car in an alley. Before getting out, assailant wiped his fingerprints from the car and took all of victim's rings and money.

Disoriented, barefooted and nearly unable to see without her glasses, victim was able to drive back to the bank teller machine where she found her glasses. Victim then went to the Dover police station, arriving at about 7:00 a.m. She told the police of what had happened. When asked to identify her assailant, victim would only tell police officer Flicker that he was a black male.

Flicker was aware that the bank's automated teller was equipped with a surveillance camera and the bank permitted Flicker and a fellow officer to view the videotaping of that morning at 6:00 a.m. The taping had recorded victim's seizure and abduction and the features of her assailant. Officer Flicker realized he had seen victim's assailant before but could not recall his name. When Flicker later the same day showed the film to a federal marshall and former officer of the Dover Police Department, Reginald Capitan, Capitan immediately identified Nelson as victim's assailant. A warrant was then issued for Nelson's arrest; and he was taken into custody at his Dover residence later the same day.

When Nelson was arrested the police found a black onyx ring and wedding band in his pocket. Victim subsequently identified these rings as the ones taken from her by her assailant. In addition, a pubic hair discovered on Nelson's jeans was analyzed and determined to have characteristics consistent with victim's pubic hair. Finally, a DNA analysis conducted by the Federal Bureau of Investigation (FBI) revealed that the DNA sample obtained from Nelson's blood matched those samples taken from the semen stain on victim's panties and vaginal smears. Thereafter, Nelson was indicted for first degree robbery, kidnapping and unlawful sexual intercourse.

II. PROCEEDINGS BELOW

Before trial in December 1990, defendant, by motion in limine, sought to exclude at trial the State's evidence of DNA match and the reliability of the match, i.e., the statistical probability of finding such a match (of defendant's semen sample taken from victim's underpants) from an unrelated member of the black population. The State offered evidence: that the DNA extracted from Nelson's blood matched the DNA extracted from the semen stain on the victim's panties and vaginal smears; and that the probability of another member of the Afro-American population having DNA test results which matched Nelson's was one in six million. The State's witness was Dr. Bruce Budowle, an FBI research scientist responsible for the development of the agency's DNA testing program. The defense did not present any expert witnesses; and the record discloses no application by defendant for the employment of a DNA expert at State expense.

Following the hearing, the Superior Court ruled that it would admit at trial the State's evidence of a DNA match but would exclude the State's evidence as to the probability of such a match occurring in a random population. ¹ The court reasoned:

This Court has weighed carefully the probative value of this evidence (high) and the potential prejudice to the defendant (high) as well as the danger of confusion to the jury (high). This Court concludes that based upon the evidence heard, the FBI must be allowed to testify as to its opinion of a match. The Court is also convinced that under the specific facts of this case, the statistical probabilities of a random unrelated match should be excluded. This Court is especially concerned in this case that the jury could easily be confused by statistics that are as testified "an estimate" of the occurrence of certain DNA characteristics in the black population. This is especially true where because of indigency, the defendant has been unable to engage scientific expertise to challenge this testimony. The reliability of these calculations should be left to a trial where in the Court has scientific evidence presented on both sides of the issue. See State v. Pennell, supra; and People v. Castro 545 N.Y.S. [2d] 985 (1989).

At trial the only issue was the identity of victim's assailant. There was no dispute that she had been kidnapped, raped and robbed. The question was whether defendant was her assailant. Before trial, victim had been unable to identify her assailant other than to say that he was a black male; and she had also been unable to identify the defendant in a show-up conducted by the police following defendant's arrest.

At trial the State offered the following evidence to establish that Nelson was victim's assailant: (1) the videotape of the bank surveillance camera which recorded the initial assault and her assailant's face, which several police witnesses identified from the videotape as being Nelson; (2) the two rings which victim had been wearing at the time of the assault and which were found on Nelson's person at the time of his arrest; (3) Nelson's jeans seized at his arrest and the finding of an FBI hair expert of pubic hair on Nelson's jeans, which was microscopically consistent with victim's; and (4) expert analysis of the assailant's semen, obtained from vaginal smears and from victim's panties, finding both to match a sample of DNA obtained from Nelson's blood.

The State's first three evidentiary offerings were admitted without objection by defendant. Defendant objected only to the State's proffer of the its DNA evidence. Confirming its pretrial ruling, the court admitted the State's evidence of DNA match but excluded the State's evidence of statistical probability. Defendant offered no evidence at trial. The jury found Nelson guilty of all charges and following sentence Nelson appealed.

III. ISSUES ON APPEAL

On appeal, Nelson contests only the court's admission of the DNA match evidence, asserting two arguments. Nelson first argues that, since the FBI's scientific procedures of DNA typing are "still emerging" and have several asserted deficiencies, the DNA matching evidence should have been barred as inadmissible under Frye v. United States, D.C.Cir., 293 F. 1013 (1923). Secondly, Nelson contends that the trial court erred in admitting the determined match between the DNA of Nelson and victim's assailant after declining to admit the State's corresponding statistical probability that the found match may have occurred by chance--one in six million. Notably, Nelson neither attacks the admissibility of the State's other evidence nor contests the sufficiency of that evidence, standing alone, to sustain his convictions.

The State denies that the trial court committed legal error in declining to apply the Frye "general acceptance" test. The State argues that DNA identification evidence is "plainly admissible" under both the Delaware Rules of Evidence and Delaware case precedent holding that Frye is no longer the standard under which the admissibility of scientific evidence is analyzed in Delaware.

In seeking to sustain the trial court's admission of the State's matching evidence but exclusion of its statistical evidence, the State makes three arguments. First the State contends that, defendant having failed at trial to challenge the court's admission of the match evidence on the grounds now asserted, the argument is barred on appeal under Supreme Court Rule 8; ² and plain error is not a basis for reversal because defendant made a tactical decision not to engage a counter-expert. The State also argues that the trial court's exclusion of the...