Brim v. State, Nos. 93-00860

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

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

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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

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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...