Brim v. State

• Citation: 654 So.2d 184
• Decision Date: 12 April 1995
• Docket Number: 93-00863 and 93-00864,Nos. 93-00860,s. 93-00860
• Parties: 20 Fla. L. Weekly D932 Robert James BRIM, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 184

654 So.2d 184

20 Fla. L. Weekly D932

Robert James BRIM, Appellant, v. STATE of Florida, Appellee.

Nos. 93-00860, 93-00863 and 93-00864.

District Court of Appeal of Florida,

Second District.

April 12, 1995.

James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.

CAMPBELL, Judge.

The primary issue presented for our consideration in this appeal is whether, in considering a request for admission of the statistical consequences of the analysis of matching DNA samples, a court must exclude all or part of that analysis if the court is presented with evidence of two differing but generally accepted views within the scientific community concerning the proper population frequency statistics to be applied. These population frequency statistics are critical because the statistics, when applied to the DNA test results, are the genesis of the extremely persuasive probability estimates (one in a million, for example) that are commonly associated with DNA testing. Our extensive review of the emerging law in this area leads us to conclude that the existence of two differing views on a statistical frequency approach neither renders the DNA analysis itself inadmissible, nor renders those differing views inadmissible so long as each view or approach is shown to be generally accepted by a typical cross-section of the relevant scientific community. That having been the case here, we affirm.

Appellant Brim challenges his convictions and sentences for various offenses arising out of three separate occasions in which he broke into women's homes. In two of the three cases, appellant was convicted of sexually battering the women whose homes he entered (Case Nos. 93-00860 and 93-00863). In one of those two cases, he was also charged with armed burglary of a dwelling and robbery (Case No. 93-00860). In the other of those two cases, he was also charged with burglary of a dwelling with assault or battery and with robbery (Case No. 93-00863). In 93-00860, appellant pled nolo, reserving the right to appeal the denial of his motion in limine and motion to suppress. In the third case, appellant pled no contest to misdemeanor battery and to burglary of a dwelling with an assault. Appellant's sentencing issues will be considered later in this opinion.

The evidence against appellant in the first two cases consisted primarily of DNA analysis and blood and saliva samples. He challenges the admission of both. It is appellant's position that the DNA population frequency statistics did not meet the test for admission of novel scientific evidence established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which requires that novel scientific evidence be generally accepted in the relevant scientific community in order to be admissible. As the Frye court stated, "the evidential force of the principle must be recognized." Appellant maintains that because there is currently a debate concerning the proper statistical population base to use in any given case, the statistical frequency figures are not "generally accepted" in the relevant scientific community and, accordingly, were not properly admitted.

In analyzing this problem, a rudimentary understanding of the DNA testing process is necessary. DNA testing first begins with the actual chemical process which separates out polymorphisms (genetic areas of difference among individuals) and readies them for analysis. The second step is that in which the sample DNA molecule is compared or matched to the defendant's DNA sample.

It is the third segment of the process, or the application of a statistical population frequency analysis, that is at issue here. This is where the statistical significance of the match is determined. For example, the probability of the match occurring randomly might be determined to be one in a million or one in 300 million. Since it is the application of the population frequency statistics that makes the DNA test results so persuasive, admission of these statistics must be carefully scrutinized to avoid undue prejudice to the defendant. It is in this area that the applicability of the Frye test has become most confused.

In arriving at the statistical significance of the match, the field of human population genetics is consulted. The statistical significance is measured by the frequency with which a particular DNA pattern would be observed in a sample population. The DNA testing here was performed by the Florida Department of Law Enforcement, based on Federal Bureau of Investigation (FBI) procedures. The FBI has sample populations for Caucasians, Blacks, Asians and Hispanics. There is currently a dispute in applying these probabilities to the DNA test results because it is thought that certain population groups may not intermarry with the same frequency as other population groups, or may intermarry with differing frequencies in different locales, thus producing skewed results. This concern led the National Research Council's Committee on DNA Technology to recommend that the "modified ceiling principle" be used in forensic cases. The modified ceiling principle is thought to produce more conservative results than the FBI procedure. In the instant case, the FBI procedure generated a probability that only one out of 1.4 billion whites and one out of 2.5 million blacks would share the DNA code with the perpetrator of the offense. The modified ceiling principle indicated that only one in just over 9,000 individuals would share the perpetrator's genetic DNA code.

The state argues that the DNA probability statistics are generally accepted despite the existence of the dispute because the theories presented are both generally accepted, were both presented to the jury, and the jury was allowed to assess their weight.

We begin our analysis with the observation that the rule in Frye was established as a reliability test, on the theory that once a scientific supposition is generally accepted among the relevant scientists, it is more likely to be reliable. The Frye court emphasized that it is the scientific principle or discovery from which deductions are made that must be generally accepted. The existence of one reliable theory or deduction from underlying reliable scientific evidence does not necessarily exclude the existence of another reliable deduction or theory. The Frye court, in its brief opinion, stated:

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 (emphasis supplied). Given the very nature of scientific and technological advances, it is quite possible that there will be, at any one time, more than one deduction that can be made from a generally accepted theory.

Inherent in the scientific method is "testing and confirmation of [ ] hypotheses ..." a never-ending process. As Albert Einstein said, "One reason why mathematics enjoys special esteem, above all other sciences, is that its laws are absolutely certain and indisputable, while those of all other sciences are to some extent debatable...." (citations omitted). If the Kelly requirements [the California version of Frye ) ] were met only if there were no debate on a subject, even Copernicus's theory of a sun-centered solar system could not be mentioned in a court of law. The flat earth society would carry the day. Indeed, no scientific advance has yet been developed that cannot be questioned or debated. For this reason, evidentiary rules do not require absolute certainty or unanimity.

People v. Soto, 30 Cal.App.4th 340, 357, 35 Cal.Rptr.2d 846, 856 (Cal.App.4th Dist.1994), modified on rehearing (Cal.App.4th Dist. Dec. 22, 1994) (citations omitted).

Accordingly, we do not read Frye as limiting the admissible deductions that can be made from reliable scientific evidence to a single "generally accepted" deduction or theory. There is nothing in Frye to suggest that. In fact the opposite is true as reflected in the Frye quote above. In this regard, we are influenced by Judge Orfinger's analysis in Andrews v. State, 533 So.2d 841 (Fla. 5th DCA 1988), rev. denied, 542 So.2d 1332 (Fla.1989). Although the issue in Andrews was not the precise issue before this court, we agree with Judge Orfinger that the "relevancy approach" is the preferred approach when faced with the admissibility of the comparison techniques or deductions based upon the generally accepted scientific DNA analysis. The issue presented to us (as it is in most cases where admissibility of DNA evidence is contested) is exactly the same as our supreme court considered in Bundy v. State, 455 So.2d 330 (Fla.1984), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986) [Bundy I ], in considering the admissibility of testimony of dental experts who compared "bite marks" on a victim with models of the defendant Bundy's teeth. There, the supreme court stated:

Bundy also challenges the trial court's ruling that permitted the state to present the testimony of dental experts who analyzed the bite inflicted on murder victim Lisa Levy and compared it to the models of appellant's teeth. Before trial the defense moved to exclude such evidence on the ground that the comparison techniques were not reliable. Dental experts for the state and the defense testified at the motion hearing....

The trial court found that the science of odontology, which is based on the discovery that the characteristics of individual human...