State v. Tester, 07-097.

• Citation: 968 A.2d 895,2009 VT 3
• Decision Date: 30 January 2009
• Docket Number: No. 07-097.,07-097.
• Parties: STATE of Vermont v. Paul TESTER.
• Court: United States State Supreme Court of Vermont

968 A.2d 895

2009 VT 3

STATE of Vermont v. Paul TESTER.

No. 07-097.

Supreme Court of Vermont.

January 30, 2009.

Keith W. Flynn, Orleans County State's Attorney, and Alan C. Franklin, Deputy State's Attorney, Newport, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

The issue on appeal is whether the trial court erred in admitting certain DNA evidence under Vermont Rule of Evidence 702 and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant contends on various grounds that the DNA test results offered into evidence in this case should not be admissible. Although we agree in part, we conclude that the improper admission of the DNA evidence was harmless beyond a reasonable doubt and affirm.

¶ 2. On September 27, 2005, defendant was arraigned on charges of felony sexual assault of a victim less than sixteen years of age, 13 V.S.A. § 3252(a)(3),¹ felony lewd and lascivious conduct with a child, 13 V.S.A. § 2602, and two counts of providing an alcoholic beverage to a minor, 7 V.S.A. § 658(a). These charges arose out of events that took place at the Willow Wood Campground on August 5, 2005.

¶ 3. The evidence presented at trial disclosed the following. The police first became aware of the incident on the evening of August 5, 2005, when they received a telephone call from a woman staying at the campground. The woman explained that two fourteen-year-old girls, M.M. and S.G., told her that they had sexual contact with defendant.

¶ 4. The girls described the events that took place at the campground as follows. According to S.G., M.M.'s mother brought the two girls to the campground. Both girls consumed beer and vodka before meeting defendant. Defendant, a thirty-three-year-old man, encountered the girls while he was picking raspberries and invited them back to his campsite, where he offered them more beer. For several hours, the three of them sat at a picnic table, drinking and talking. During this period of time, defendant asked the girls how old they were, and they answered that they were fourteen years old.

¶ 5. According to M.M., defendant kissed both girls and put his hands under M.M.'s clothing. At one point, defendant pulled down his pants. M.M. recalled stroking defendant's penis while defendant pulled S.G.'s head into his lap so that she could perform oral sex. M.M. testified that defendant invited both girls into his tent, and that she observed defendant lying on top of S.G. Partly because she was standing only a few feet away, she was certain that the two were having sexual intercourse while defendant was on top of S.G. On cross-examination, however. M.M. admitted that she could not see what was occurring in the tent because it was dark inside. M.M. testified that she urged S.G. to leave defendant's tent afterwards and that the two girls then encountered the woman who had originally made the call to the police.

¶ 6. In some respects, S.G.'s testimony as to what had happened before the girls went inside the tent differed from M.M.'s. S.G. said that defendant attempted, but did not kiss her. She testified instead that she recalled seeing defendant kiss M.M. only when S.G. was returning from the bathroom. She denied that she performed oral sex on him. S.G. admitted to having been extremely intoxicated, so much so that at one point she lost her balance and fell off the picnic table. S.G. testified that defendant led both girls into his tent. Once inside, S.G. noticed that defendant was unclothed. She recalled defendant pulling off her pants and bathing suit bottom and then pulling her on top of him. While S.G. could not recall feeling defendant's penis enter her, S.G. testified that after a few minutes, defendant said he was going to "come." S.G. experienced pain in her vagina as defendant removed his penis.

¶ 7. The woman who came across the girls after their encounter with defendant also testified for the State. She saw the girls on their way back from defendant's campsite and noticed that S.G. had been crying. She asked the girls "if they were okay" and indicated the location of her campsite if they wanted to talk. After spending a short time at M.M.'s mother's campsite, the girls went to the bathroom and again encountered the woman. This time, the girls told her what had happened at defendant's campsite. The woman testified that the girls had seemed "shaken" and showed signs of intoxication.

¶ 8. All the remaining evidence presented by the State involved the rape test kit taken as part of the investigation. On October 5, 2006, defendant filed a motion in limine, seeking to exclude DNA evidence collected by the State from the rape test kit. In support of this motion, defendant presented the affidavit of Dr. Donald Riley, a biochemist and molecular biologist. In the motion, defendant argued that the State's methodology in testing the evidence was not "scientifically valid" and could not be "properly ... applied to the facts in issue." In particular, defendant challenged: (1) a so-called 05-2-1 sample, taken from S.G.'s vagina; and (2) a 05-4-1 sample, taken from her "external genital area." In the motion, defendant argued that the DNA evidence should be excluded as unreliable because: (1) the 05-2-1 sample was a mixture; (2) the 05-2-1 sample, which was only .64 nanograms and a mixture of at least two people's DNA, was smaller than the one-nanogram minimum recommended by the manufacturer of the DNA testing equipment; (3) defendant's samples were improperly stored in porous cardboard boxes and were thus subject to cross-contamination (4) defendant's "known" sample was tested in close proximity to the "unknown" samples, which created another opportunity for contamination or false matches; and (5) the lab offered no estimate of its error rate. Defendant also argued that the 05-2-1 sample DNA results were incomplete, because "two of the 13 DNA locations or loci were missing," which, in defendant's view, indicated that the amount of DNA was insufficient and that the analysis was not reproducible, itself an important signal of scientific unreliability. Finally, defendant mentioned several misidentifications of samples by lab technicians. In defendant's view, these errors demonstrated a "loss of concentration by the analyst during a critical phase of testing." Defendant contended that "[t]he method of correcting these mistakes was retrospective guesswork, generally not accepted as valid scientific procedure." Defendant requested an evidentiary hearing on the admissibility of the evidence.

¶ 9. The State filed a response on November 8, 2006, arguing that: (1) the defendant's expert's minimum sample size argument was contradicted by statements of the State's forensic examiner and has been rejected in other jurisdictions under similar circumstances, see State v. Hicks, 116 Wash.App. 1003, 2003 WL 734232, at *4; and (2) defendant's remaining contentions went to the weight, rather than the admissibility, of the evidence. The State also attached a supporting expert affidavit. On November 14, 2006, the court issued an order stating that defendant's motion in limine would be considered at trial. At trial, defendant also objected because there was no statistical match probability for the 05-2-1 sample and therefore the State "was not attaching any particular value of [the 05-2-1 sample] in relation to [defendant] or anyone else."

¶ 10. In ruling on the motion, the court began with whether the challenged methodology was unreliable insofar as it used a sample that was smaller than the minimum size recommended by the manufacturer. The court found as follows:

Now, for the Court to accept the defendant's argument, we'd have to be convinced that the literature and the generally accepted protocols within the scientific community categorically prohibit testing on genetic amounts of less than a nanogram. And we can't find that based on the competing affidavits of the chemists. We do note, and the State concedes, that the manufacturer of the particular test that the Vermont Forensic Lab used recommends amounts of one nanogram or above. But we have a proffer from the State's chemist that it can obtain accurate test results with samples as small as .3 nanogram[s] and there is a contention that there is no fixed recognition within the scientific community as to a required minimum sample size. The State will contend that the one nanogram recommendation of the manufacturer is a target value, it's an ideal, perhaps, to be strived towards, but a sample smaller than that is not categorically prohibited from effective or reliable testing.

As I say, that's an issue that the jury deserves to consider and decide based on the testimony presented.

The court turned next to defendant's remaining contentions. The court explained that most of defendant's arguments went to weight rather than admissibility. As for the misidentification errors recognized by defendant, the court described those mistakes as mere "transcription error[s]," that were not "so grave and fundamental [so as to] categorically preclude admissibility of the test results themselves." The court was not convinced by defendant's argument that the 05-2-1 sample should be excluded if not accompanied by statistical analysis. The court also addressed the possible jury confusion regarding the significance of the 05-2-1 sample, in light of the high statistical probability match of the 05-4-1 sample, stating:

I understand that the defense's concern is that with the potential for competing expert testimony, jurors being lay persons, might become confused and attach undue significance to the smaller [05-2-1] sample, which was not put into the statistical calculation, but we understand that the two experts who are expected to testify are both...