State v. Cauthron

• Decision Date: 25 February 1993
• Docket Number: No. 58282-3,58282-3
• Citation: 120 Wn.2d 879,846 P.2d 502
• Court: Washington Supreme Court
• Parties: , 61 USLW 2596 The STATE of Washington, Respondent, v. Richard C. CAUTHRON, Appellant.

Page 879

120 Wn.2d 879

846 P.2d 502, 61 USLW 2596

The STATE of Washington, Respondent, v. Richard C. CAUTHRON, Appellant.

No. 58282-3.

Supreme Court of Washington,

En Banc.

Feb. 25, 1993.

Peter T. Connick, Seattle, for appellant.

Seth R. Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Paul Stern, Deputies, Everett, for respondent.

Jon E. Ostlund, Whatcom County Public Defender, Bellingham, amicus curiae for appellant.

Christine O. Gregoire, Atty. Gen., S. Kim O'Neal, Asst., Olympia, amicus curiae for respondent.

Philip A. Talmadge, Robert G. Nylander, Seattle, amicus curiae for respondent on behalf of Cellmark Diagnostics.

DURHAM, Justice.

Richard Cauthron appeals his conviction on seven counts of first degree rape. He argues that evidence of DNA typing was improperly admitted at trial. We affirm the trial court's decision that the scientific principle and the restricted fragment length polymorphism (RFLP) method of DNA typing are universally accepted, and therefore admissible. However, we reverse the conviction because testimony that Cauthron's DNA "matched" the perpetrator was admitted in error, in that it was unsupported by valid probability statistics. We remand for further consideration of the statistical evidence in accordance with our opinion.

In 1986 and 1987, a series of 20 to 25 rapes were committed in Everett under similar circumstances. In some of the cases, the perpetrator would come up to his victim's car while she was at a stop and force her to move over at gunpoint. In others, the perpetrator would come up behind the victim and lead her to his own car. In each instance, the rapist wore a mask and cloth gloves, and carried a small black handgun.

Generally, the victim would be forced to undress totally. She would then be directed to use her own clothing to blindfold herself. The rapist would often touch his victim's breasts and genitals, and then force her to perform oral sex on him at gunpoint (except in one case, where he vaginally raped his victim). The perpetrator would then order his victim to pose while he took pictures of her, and would threaten to show the pictures all around town if she told anyone about the crime.

In the early morning hours on October 14, 1988, Everett police received a call that a man was seen in the bushes at a fast food restaurant wearing a ski mask and masturbating. When an officer reached the scene, he discovered Cauthron in the bushes. His pants were undone, except for the top button, and the officer could see the defendant's pubic hair and part of his penis. A search of the bushes turned up a ski mask, a pair of green wool gloves, and a black gun that turned out to be a plastic replica. Cauthron's car was found about two blocks away with the keys in the ignition and the door partially open. The officers on the scene believed that Cauthron was the serial rapist they were looking for. Cauthron was handcuffed and taken to the police station for further questioning. At the station, he consented to give a blood sample which was used for conventional and DNA blood testing. He also allowed police to search his car. He was fingerprinted and released that same day. After further investigation, Cauthron was charged with seven counts of rape.

Prior to trial, in late February and early March 1989, the court held a lengthy hearing to decide the admissibility of DNA typing evidence. Under the Frye standard for novel evidence, scientific evidence will be admitted only if it is generally accepted in the relevant scientific community. See Frye v. United States, 293 F. 1013, 1014, 34 A.L.R. 145 (D.C.Cir.1923). The State offered four witnesses to prove the acceptability of DNA testing: Robin Cotton, Ph.D. Molecular Biology and Biochemistry, manager of Research and Development at Cellmark, the forensic DNA laboratory used to test Cauthron's blood; Pat Concannon, Ph.D. Biology, Virginia Mason Research Center; Gerard Schellenberg, Ph.D. Biochemistry, University of Washington School of Medicine; and Ellen Wijsman, Ph.D. Theoretical Genetics, University of Washington. ¹ The defense offered five witnesses to show that DNA evidence should not be admitted: Simon Ford, Ph.D. Biochemistry, University of California at Irvine; Randy Libby, Ph.D. Genetics, University of Washington; William Thompson, Ph.D. Psychology, J.D., University of California, Irvine; Laurence Mueller, Ph.D. Ecology, Population Geneticist, University of California, Irvine; and Seymour Geisser, Ph.D. Mathematical Statistics, University of Minnesota.

The trial court found that both the scientific principle of DNA and the RFLP process (discussed below) are universally accepted in the scientific community. As to the additional problems raised by defense witnesses with respect to the laboratory procedures used here and the validity of the statistical evidence, the trial court ruled that those issues went to the weight rather than the admissibility of the testimony. The court denied defendant's motion to suppress the DNA evidence.

At trial, DNA typing evidence was introduced through expert testimony by both the State and the defense. The testimony showed that there was a "match" in five of the seven cases between the semen recovered from the clothing of the victims or the crime scene and Cauthron's blood.

The State also introduced the testimony of the victims, although none was able to identify her assailant. In addition, more traditional blood tests were admitted, through expert testimony. Because of a rare enzyme present in several samples of the rapist's semen, the expert testified that less than 1 percent of the population could have deposited the semen. Cauthron's blood was found to contain this particular enzyme. Cauthron was convicted of all seven counts. He was sentenced to 68 months on five of the seven counts, and an exceptional sentence of 136 months was given in two of the counts, to be served consecutively under RCW 9.94A.400(1)(b).

Cauthron appealed and we accepted certification from the Court of Appeals. After oral argument, but before the court issued its opinion, we requested additional briefing on the applicability of a National Academy of Sciences document: Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (National Academy Press 1992) (hereinafter DNA Technology ). A committee of eminent scientists and jurists (hereinafter Committee) exhaustively researched and analyzed the current status of forensic DNA typing.

Because of the complexity of the subject matter, an outline of our analysis may be helpful. We begin our opinion with an explication of the Frye standard for admissibility of novel scientific evidence, and we renew our longstanding adherence to that test. We then determine that the proper standard of review of the trial court's decision in that regard is de novo. In addition, we recognize that once the Frye question is resolved, the admission of expert testimony is within the trial court's discretion. Under ER 702, expert testimony may be admitted if the witness qualifies as an expert and the expert testimony will be helpful to the jury.

We next review both the RFLP test for DNA typing, and the statistical evidence used to compute the significance of a "match" using the standards set forth above. First, we explain the RFLP procedure of DNA typing, and then determine that it is generally accepted in the scientific community, and therefore meets Frye. Second, we hold that the trial court acted within its discretion when it admitted the expert testimony pertaining to the RFLP test over defense objections that the evidence was unreliable.

We then turn to an examination of the statistical evidence. Upon review of the relevant sources, we find significant disagreement within the scientific community regarding the validity of the databases used to construct the probability estimates which ultimately determine identity. As a result we conclude that the expert testimony of a "match" was admitted in error, since it was not accompanied by statistical verification. We therefore reverse the conviction, but we remand for reconsideration of the statistical evidence in light of current scientific knowledge.

I. STANDARDS OF ADMISSIBILITY

In Washington, we have adopted the standard for determining if evidence based on novel scientific procedures is admissible set forth in Frye v. United States, 293 F. 1013, 1014, 34 A.L.R. 145 (D.C.Cir.1923). The rule is settled:

[E]vidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community.

State v. Martin, 101 Wash.2d 713, 719, 684 P.2d 651 (1984). Although we recognize that several jurisdictions have rejected the Frye test in favor of a more liberal test of admissibility based on the relevance standard of the Federal Rules of Evidence, we continue to employ it. ² The classic statement of the test is found within Frye itself:

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.

Frye, at 1014.

Under Frye, a court is to determine if the evidence in question has a valid, scientific basis. Because judges do not have the expertise required to decide whether a challenged scientific theory is correct, we defer this judgment to scientists. This inquiry turns on the level of recognition accorded to the scientific principle involved--we look for general acceptance in the appropriate scientific community. See Jones v. United States, 548 A.2d 35, 42 (D.C.1988)....