Deloney v. State, 22A01-0906-CR-273.

• Decision Date: 15 February 2011
• Docket Number: No. 22A01-0906-CR-273.,22A01-0906-CR-273.
• Citation: 938 N.E.2d 724
• Court: Indiana Appellate Court
• Parties: Quintez DELONEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

938 N.E.2d 724 Quintez DELONEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 22A01-0906-CR-273. Court of Appeals of Indiana. Dec. 17, 2010. Rehearing Denied Feb. 15, 2011.

Bruce A. Brightwell, New Albany, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Quintez Deloney appeals his convictions of and sentences for Class A felony attempted robbery resulting in serious bodily injury ¹ and Class A felony burglary resulting in bodily injury.² He presents the following issues:

1. Whether the trial court erred in admitting DNA evidence from a hat found at the crime scene;

2. Whether Deloney's sentence subjected him to double jeopardy; and

3. Whether the aggravating and mitigating circumstances used to determine his sentence were an abuse of discretion.

We find the trial court erred in admitting DNA evidence, but affirm Deloney's conviction of and sentence for Class A felony burglary resulting in bodily injury, and remand to the trial court to reduce his conviction of and sentence for attempted robbery from a Class A felony to a Class C felony.

FACTS AND PROCEDURAL HISTORY³

On January 22, 2007, Lewis James was shot and killed. The evidence at the crime scene included a cell phone and a red hat. Deloney and Lance Douglas were arrested three weeks later after it was discovered the cell phone at the scene belonged to Douglas and Deloney allegedly had bragged about his involvement in the crime. The State charged Deloney with Class A felony attempted robbery resulting in serious bodily injury, Class A felony burglary resulting in bodily injury, and murder.⁴

At trial, the State presented evidence and expert testimony, over Deloney's objection, from DNA technician Amy Winters regarding DNA collected from the red hat found at the scene. She testified the sample contained DNA from two or three people, which made it impossible for her tocalculate the probability that Deloney contributed to the DNA found on the red hat. Winters could not exclude Deloney or Douglas from the DNA profiles, but neither could she include them. The State also presented evidence that Deloney was seen with Douglas on the night of the crime near the crime scene, he ceased calling Douglas's cell phone after the incident,⁵ and he told multiple people of his involvement with the crime.

Following a jury trial, Deloney was acquitted of murder, but convicted of Class A felony attempted robbery resulting in serious bodily injury and Class A felony burglary resulting in bodily injury. The court sentenced him to fifty years for Class A felony attempted robbery resulting in bodily injury, and thirty years for Class A felony burglary resulting in bodily injury, with his sentences to be served consecutively for an aggregate sentence of eighty years.

DISCUSSION AND DECISION

1. Admission of DNA Evidence

A trial court has broad discretion in ruling on the admissibility of evidence, and on review, we will disturb its ruling only on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). When reviewing a decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the decision. Id. A claim of error in the admission or exclusion of evidence will not prevail on appeal unless a substantial right of the party is affected. Ind. Evidence Rule 103(a). In determining whether error in the introduction of evidence affected a defendant's substantial rights, we assess the probable impact of the evidence on the jury. Sparkman, 722 N.E.2d at 1262.

To be admissible at trial, evidence must be relevant, that is, it must have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid. R. 401. Evidence which is not relevant must be excluded. Evid. R. 402. The admission of expert testimony about DNA evidence is governed by Evid. R. 702:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

DNA expert Amy Winters ⁶ testified at length regarding the process by which DNA is tested. When an analyst receives a sample for testing, any available DNA is extracted and the amount is quantified. Next, the analyst copies the DNA for testing. Winters used the Short Tandem Report (STR) analysis for the DNA found on the red hat. In STR, the analyst examines thirteen different areas, or loci, on a DNA molecule and identifies and records the allele, or genetic designation, at each of those locations. The list of alleles at those locations is called a DNA profile. Theprofile from the crime scene then can be compared to DNA profiles of suspects to determine whether the profiles contain sufficient similarities to be a "match." (Tr. at 615.) Once a "match" is identified, the analyst calculates the probability the two profiles came from the same person.

At trial, Winters testified she could not exclude Deloney or Douglas as one of the people who deposited DNA on the red hat, but neither could she include them: "there just was not enough information for me to say that they [Deloney and Douglas] are contributors." ( Id. at 650.) She further testified she could not calculate the statistical significance of any matches between Deloney's profile and the DNA profiles found on the hat because the mixed sample did not allow for statistical analysis; thus, she could not calculate the probability the sample on the hat from the crime scene had or had not come from Deloney.

DNA evidence is admissible in Indiana when the DNA analysis indicates a defendant's profile is consistent with DNA found at the crime scene because such evidence has high probative value. See, e.g., Smith v. State, 702 N.E.2d 668 (Ind.1998). However, we have not addressed the admissibility of DNA evidence when—as in this case—a defendant could not be excluded from a possibly infinite number of people matching the crime-scene DNA and the DNA expert cannot offer a statistical probability whether the crime scene DNA came from the defendant. We therefore look to decisions from our sister states for guidance regarding the admissibility of DNA evidence in this circumstance.

The reliability of techniques to procure and analyze DNA evidence is evolving, and states have responded differently to the admissibility of less-than-exact results. There seem to be three approaches, which we summarize as: (1) admissibility without statistical data if no match is found,⁷ (2) admissibility without statistical data, if the jury is given some guidance regarding the significance of the DNA results,⁸ and (3) admissibility only when statistical data is given.

The third approach, which requires accompanying statistical data for DNA evidence to be admissible, comports best with our existing law regarding admissibility of evidence. For example, in Commonwealth v. Mattei, 455 Mass. 840, 920 N.E.2d 845 (2010), the Massachusetts Supreme Court held it was reversible error to admit expert testimony that the defendant could not be excluded as a potential source ofDNA found at the crime scene unless there was accompanying testimony explaining the statistical significance of those non-exclusion results. Without statistical data, evidence of a non-match is meaningless, and does not assist the trier of fact in determining the guilt or innocence of the defendant, as required for admissibility of the DNA evidence under Evid. R. 401 and expert testimony thereon under Evid. R. 702. See State v. Tester, 185 Vt. 241, 968 A.2d 895, 907 (2009) ("[t]o say that two patterns match, without providing any scientifically valid estimate (or at least, an upper bound) of the frequency with which such matches might occur by chance, is meaningless.") (citation omitted). Therefore DNA evidence that does not constitute a match or is not accompanied by statistical data regarding the probability of a defendant's contribution to a mixed sample is not relevant, Evid. R. 402, and should not be admitted. See, e.g., Nelson v. State, 628 A.2d 69, 75 (Del.1993).

In the instant case, Winters was unable to exclude Deloney as a contributor to the DNA profile on the hat, and she was unable to give any statistical analysis of the probability of a match. Therefore, her testimony could not assist the jury in understanding the evidence or make the existence of some fact more probable or less probable. See Tester, 968 A.2d at 907. Thus, the DNA evidence and Winters' testimony lacked relevancy and should not have been admitted by the trial court.⁹

Even though the trial court abused its discretion by admitting the DNA evidence and corresponding testimony, we need not reverse Deloney's conviction if the error was harmless. An error in the admission of evidence is harmless if the conviction is supported by such substantial independent evidence of guilt that there is no substantial likelihood that the impermissible evidence contributed to the conviction. Gonzalez v. State, 929 N.E.2d 699, 702 (Ind.2010). The State presented evidence Deloney had bragged on multiple occasions about his involvement in the crime, was seen near the scene of the crime on the night of the crime, and had stopped calling the cell phone Douglas dropped at the crime scene. Those pieces of evidence provide substantial independent evidence of guilt that leaves us without doubt that the jury would have convicted Deloney without the impermissible DNA evidence. There existed substantial independent evidence of Deloney's...