Bevil v. State
| Decision Date | 10 June 2004 |
| Docket Number | No. 1D02-1495.,1D02-1495. |
| Citation | 875 So.2d 1265 |
| Parties | R.T. BEVIL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
In this direct criminal appeal, appellant seeks review of his convictions, following a jury trial, for sexual battery and trespass in a structure. Because the trial court permitted a Florida Department of Law Enforcement (FDLE) crime lab analyst to testify about DNA population frequencies over appellant's objection that the state had failed to demonstrate that the FDLE database used to compute the population frequencies satisfied the Frye test, we are constrained to reverse, and to remand for a new trial.
On February 2, 2001, appellant was charged with burglary of a dwelling with a battery and sexual battery. Prior to trial, appellant filed a motion seeking to suppress DNA evidence, and requesting a Frye hearing. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923). He contended, among other things, that the FDLE database used to compute population frequencies (upon which the state's expert witness intended to rely at trial) had recently been found to be "flawed," and was not being used by FDLE until the "problem" had been "corrected." As a result, according to appellant, the FDLE database could not satisfy the requirements of Frye and Ramirez v. State, 651 So.2d 1164 (Fla.1995), and any expert testimony based on that database must be prohibited.
On January 7, 2002, the trial court held a Frye hearing in response to appellant's motion. At the start of that hearing, the prosecutor represented that, at trial, the state's expert would rely exclusively on the FDLE population database for purposes of computing and testifying about DNA population frequencies. During the hearing, Suzanne Livingston, the forensic service director of FDLE, and Jo Ellen Brown, the crime lab analyst who performed the DNA testing on the specimens collected in the investigation of this case, testified. Regarding the FDLE database, Brown testified that the FDLE population database had been "validated" by an independent consultant in 1999, and FDLE had begun using it to compute population frequencies in 2000. However, both Livingston and Brown testified that the independent consultant had subsequently discovered errors in the database. According to Livingston, because of concerns regarding the accuracy of the FDLE database, she had directed that the entire database be reexamined for errors and that, pending the completion of that reexamination, the FBI database be used instead. As of the date of the hearing, the reexamination had not yet been completed. The state offered no scientific literature addressing the acceptance of the FDLE database, and Livingston testified that she was not aware of any.
Brown testified that, in February 2001, she performed an analysis on the specimens collected in the investigation of this case. According to her, the analysis reflected that there was a mixture of DNA from two or more individuals on the sperm fraction of the vaginal swabs. The DNA in the mixture was consistent with the DNA profiles of the victim and appellant. Using the FDLE database, she concluded that the frequency of appellant's DNA profile was one in 289 trillion for the Caucasian population, one in 1.83 trillion for the African-American population, and one in 129 trillion for the southeastern Hispanic population. At the conclusion of the hearing, appellant argued that the state had failed to carry its burden to demonstrate that the FDLE database met the requirements of Frye. The trial court denied appellant's motion, saying that "nothing [had come] in to show [it] that [the database] was not properly used and not accepted in the scientific community."
Appellant's trial commenced on the day following the Frye hearing. At trial, the state offered Brown as its expert on DNA analysis. She again testified that she performed the analysis on the specimens collected during the investigation; that there was a mixture of DNA from two or more people in the vaginal swabs; that the victim was a minor donor of that DNA; and that appellant was a major donor. Over appellant's renewed objection, Brown testified that she computed population frequencies based on the FDLE population database; that the frequency of the DNA profile for the major donor of the sperm fraction was one in 289 trillion for the Caucasian population, one in 1.83 trillion for the African-American population, and one in 129 trillion for the southeastern Hispanic population. The jury found appellant guilty of sexual battery, as charged, and of the lesser-included offense of trespass in a structure. Appellant was subsequently adjudicated guilty, and sentenced to ten years in prison for the sexual battery conviction and one year in county jail for the trespass conviction. This appeal follows.
"[N]ovel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923)," which requires that such evidence "`be sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Flanagan v. State, 625 So.2d 827, 828 (Fla.1993) (quoting Frye, 293 F. at 1014). Accord Hadden v. State, 690 So.2d 573, 577-78 (Fla.1997)
; Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (Ramirez II). When applying the Frye test, "the burden is on the proponent of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand." Id. at 1168. This requires more than "[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles." Ramirez v. State, 810 So.2d 836, 844 (Fla.2001) (Ramirez III). As our supreme court has emphasized, Id. at 851.
Our standard of review when considering a trial court's ruling on a Frye issue is de novo, rather than abuse of discretion. Murray v. State, 838 So.2d 1073, 1077-78 (Fla.2002); Ramirez III, 810 So.2d at 844; Brim v. State, 695 So.2d 268, 274 (Fla.1997). Moreover, we must address the matter of general acceptance as of the time of appeal, rather than the time of trial. Ramirez III, 810 So.2d at 844-45 (citing Hadden, 690 So.2d at 579). In reaching our decision regarding general acceptance, we "may examine expert testimony, scientific and legal writings, and judicial opinions." Hadden, 690 So.2d at 579 (citing Flanagan, 625 So.2d at 828). "Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction." Ramirez III, 810 So.2d at 853.
As our supreme court has noted, Butler v. State, 842 So.2d 817, 827 (Fla. 2003) (citing Brim, 695 So.2d 268). Here, appellant challenges the second step of the DNA testing process, contending that the trial court erroneously admitted population frequency statistics derived from the FDLE database because the state failed to establish that the FDLE database was generally accepted in the scientific community. We agree.
It is undisputed that, at trial, the state's...
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...“we must address the matter of general acceptance as of the time of appeal, rather than the time of trial.” Bevil v. State, 875 So.2d 1265, 1268 (Fla. 1st DCA 2004) Ramirez v. State, 810 So.2d 836, 844-45 (Fla.2001)). The expert testimony counsel described below in her spoken proffer would ......
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