Ex parte Perry

• Decision Date: 19 April 1991
• Citation: 586 So.2d 242
• Parties: Ex parte Waylon Dwight PERRY. (Re Waylon Dwight Perry v. State). 89-1534.
• Court: Alabama Supreme Court

Page 242

586 So.2d 242

59 USLW 2693

Ex parte Waylon Dwight PERRY (Re Waylon Dwight Perry v. State).

89-1534.

Supreme Court of Alabama.

April 19, 1991.

Rehearing Denied June 7, 1991.

Richard M. Payne and Pamela Wilkinson Tucker, Scottsboro, for Waylon Dwight Perry.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for the State.

KENNEDY, Justice.

Waylon Dwight Perry was convicted of capital murder, and the trial court, accepting the jury's recommendation, sentenced Perry to life imprisonment without parole. The Court of Criminal Appeals affirmed the judgment of the trial court. Perry v. State, 586 So.2d 236 (Ala.Cr.App.1990). We granted certiorari review to address one issue: Whether DNA evidence, which was used to identify Perry as the perpetrator of the crime, is admissible in Alabama. The Court of Criminal Appeals held it admissible. ("DNA" stands for deoxyribonucleic acid. DNA exists in the nucleus of most cells of the body; it is unique to the individual, except in the case of identical twins.)

In July 1988 Bryce Wallace was strangled to death in his house. When law enforcement officers investigated, they found bloodstains on Wallace's clothing and on the front doorknob of Wallace's house. Those bloodstains were later analyzed with a procedure called "DNA print analysis" by Lifecodes Corporation ("Lifecodes"), a New York corporation that performs DNA tests in relation to criminal and paternity lawsuits.

In October 1988 Perry was indicted for Wallace's murder, and in December 1988 he was tried for that offense. The record does not indicate when Perry discovered that Lifecodes had performed the DNA print analysis. By the time the case went to trial, however, Perry's lawyers apparently knew that the State might attempt to introduce that DNA evidence, because, when the State, at the beginning of its case, requested that two Lifecodes scientists be allowed to testify out of order, Perry's lawyers knew who they were and had a cross-examination prepared. Perry's trial lawyers never asked for a hearing outside the presence of the jury to challenge the admissibility of the DNA evidence.

At trial the State called as its first two witnesses Joanne Squeglia and Dr. Kevin McElfresh. Squeglia testified at some length concerning how she performed the DNA testing procedures comparing the DNA of the individual whose blood was on Wallace and on Wallace's front doorknob to Perry's DNA. Dr. McElfresh, the assistant manager of Lifecodes' forensics laboratory, testified that he interpreted the results of the tests Squeglia performed. Dr. McElfresh explained the procedures that Lifecodes normally performs in DNA analysis; when the State asked Dr. McElfresh to state the conclusions that he drew from that analysis, Perry's attorney objected, with this statement:

"For the record, we object to Dr. McElfresh's opinion--his rendering an opinion as to the identity on the blood type in relationship to Waylon Perry because the Lifecodes test has not been proven trustworthy in Alabama. We maintain that it is not trustworthy. There are several things that can cause variations in this type testing; and that his testimony with regard to a conclusion of identity should be excluded."

Dr. McElfresh testified that Perry's DNA "matched" the DNA of the blood found on Wallace and on Wallace's front doorknob. We refer to this testimony as testimony concerning DNA "matching" evidence. Dr. McElfresh also testified that based on a certain chromosome pattern, the probability of finding similar DNA was 1 in 209,100,000. We refer to this testimony as evidence of "DNA population frequency statistics."

Perry argues that the trial court erred by submitting the DNA evidence to the jury without first holding a hearing outside the presence of the jury as to its admissibility. Such a hearing is necessary, Perry argues, because, the trial court otherwise is presuming that the evidence is admissible although DNA evidence is novel scientific evidence that this Court has never held to be admissible. Such a holding, Perry contends, turns the only contention about the DNA evidence to an argument over its proper weight without ever addressing the threshold issue of admissibility.

The State contends that Perry never requested a hearing outside the jury's presence concerning the DNA evidence and that Perry did not object to the introduction of the evidence until the State asked Dr. McElfresh to give his opinions and conclusions concerning the DNA print analysis. The record supports that contention. Perry objected to the admission of Dr. McElfresh's testimony based on the DNA print analysis that identified his blood as the blood on Wallace's body and on Wallace's front doorknob, however. Perry's objection may be viewed as ambiguous--it says in substance that Dr. McElfresh's testimony is inadmissible because Lifecodes' "test" has not been proved "trustworthy," but it does not explain specifically what Perry challenges about Lifecodes' DNA print analysis--but inasmuch as it challenges the admissibility of the DNA evidence because such evidence has not previously been held admissible by this Court and because there is the possibility that DNA testing can produce flawed results, it preserves those issues for review.

Theory and procedures involved in DNA print analysis.

Many courts have stated that the general scientific theory underlying DNA print analysis is almost universally accepted in the scientific community. See, e.g., Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (Sup.Ct.1989); State v. Schwartz, 447 N.W.2d 422 (Minn.1989); Andrews v. State, 533 So.2d 841 (Fla.Dist.Ct.App.1988). That underlying scientific theory was well explained in Castro, 144 Misc.2d at 961-63, 545 N.Y.S.2d at 988-89:

"DNA, deoxyribonucleic acid, is the fundamental natural material which determines the genetic characteristics of all life forms. Humans have human form and elephants have elephant form because of differences in the makeup of their respective DNA.

"Every cell that contains a nucleus contains DNA. There are approximately 10 trillion cells in the human body and most contain DNA. Red blood cells, which do not have nuclei, are a significant exception. Although the DNA is much too small to be seen by even the most powerful microscope, if it were stretched out to its full length, it would be about six feet long. Within humans, as a species, much of the DNA is identical. It is this identity of DNA that makes all humans look like humans, rather than dogs or trees. We humans create human offspring by transferring our DNA to our children. The science of genetics studies how and why this happens.

"DNA's fundamental structure, however, does not vary regardless of the type of genetic creature it creates. DNA is composed of a long double helix, which looks like a spiral staircase. The backbone of this molecule (i.e., the handrails and balustrade of the staircase) consists of repeated sequences of phosphate and deoxyribose sugar. Attached to the sugar links in the backbone are four types of organic bases: Adenine (A), Guanine (G), Cytosine (C) and Thymine (T). The steps of the staircase are formed by pairs of these bases (hereinafter, 'base pairs'). A single DNA molecule consists of approximately three billion base pairs. Because of the chemical nature of the bases, only A and T can bond together, and only C and G can bond together. A cannot bond with G, and C cannot bond with T. Thus, the only possible combinations which can form the steps of the staircase are A-T, T-A, C-G, and G-C.

"The sequence of the three billion base pairs along the handrails of the DNA is the key to the information represented by the DNA. This sequence is responsible for producing arms, legs, kidneys or brain cells.

"Of this sequence, approximately 3 million sites vary from person to person. There are enormous differences between individuals because of the manner in which the base pairs are arranged. These variations, called polymorphisms or anonymous sequence, occur in different regions of the DNA. Polymorphisms are the basis of DNA identification. They are readily detectable when their lengths are altered by the action of restriction enzymes, thereby giving rise to 'Restriction Fragment Length Polymorphisms' (hereinafter 'RFLP'). The length of the fragment (or molecular weight) is measured by the distance it moves through an electrophoresis gel.

"Each individual's DNA is apportioned into forty-six discrete sections within the nucleus of each cell. These sections are called chromosomes. Twenty-two of these chromosomes come from the mother and twenty-two come from the father. These are genetically arranged in pairs. Additionally, two sex-typing chromosomes, denominated 'X' and 'Y' are present.

"During reproduction the chromosome pairs of the mother and the father split apart and then recombine--one chromosome from the mother and one chromosome from the father--to create the 'new' twenty-two chromosome pairs of their child. Females have two 'X' chromosomes, and males have one 'X' and one 'Y' chromosome, thus giving each human a total of forty-six chromosomes.

"A portion of DNA which is responsible for certain traits is called a gene (e.g., each person has a gene for the production of eyes). All humans have thousands of genes located on the forty-six chromosomes. Each gene is located at a specific site, or locus, upon a specific chromosome. Alternate forms of genes are called alleles (e.g., blue eyed allele, green eyed allele). This total pool of genetic information is known as the human genome.

"In chemical terms, the difference in alleles is explained by the difference in the ways the nucleotides, i.e. base pairs, arrange themselves along the DNA molecule. For example, one very short strand of DNA might look like:

                      A T T C
                      * * * *
                      T A A G
                while another might look like
                      A T A C
                      * * * *

...