Fugate v. Com.

• Decision Date: 17 June 1999
• Docket Number: No. 98-SC-313-MR.,98-SC-313-MR.
• Citation: 993 S.W.2d 931
• Parties: Steve Ray FUGATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 931

993 S.W.2d 931

Steve Ray FUGATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 98-SC-313-MR.

Supreme Court of Kentucky.

June 17, 1999.

COPYRIGHT MATERIAL OMITTED

Susan Jackson Balliet, Assistant Public Advocate, Frankfort, KY, for appellant.

A.B. Chandler, III, Attorney General, Ian G. Sonego, Assistant Attorney General, Dennis W. Shepherd, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

WINTERSHEMER, Justice.

This appeal is from a judgment, based on a jury verdict which convicted Fugate of murder and first-degree burglary. He was sentenced to life in prison on the murder charge and ten years on the burglary charge with the sentences to run concurrently.

The principal issue in this case is whether the court should reconsider the method of admitting DNA evidence in trial courts. Specifically, the issue is whether the court should decide that DNA evidence is admissible per se and whether it should abandon the case-by-case approach established in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995). Fugate also presents four other questions as follows: Whether the trial judge permitted Fugate to voir dire the jury on the full range of penalties; whether certain jurors should have been struck for cause; whether Fugate should have been granted a change of venue and whether he was entitled to a directed verdict.

At trial, an eye witness testified that he and Fugate went to the victim's trailer to purchase a bag of marijuana and to see the new baby of a friend. Fugate sold the victim some Valium and an argument followed in which Fugate accused the victim of' shortchanging him. Fugate shot the victim in the leg and the victim cried "you had better kill me now." Fugate then shot the victim twice in the head, killing him. The gun was never found. Fugate has consistently denied being at the trailer on the night of the murder. The only physical evidence linking Fugate to the crime scene was blood found on his shoes which was identified, through DNA evidence, as coming from the victim.

Pursuant to KRE 104 and 702, the trial judge conducted a pretrial hearing on whether the prosecution expert, Warnecke, was qualified to testify as an expert and whether the results of the tests she conducted would be admissible at trial. At the hearing, Fugate objected to the qualifications of the witness as an expert who could testify as to whether DNA testing satisfies the foundation for the admissibility of such evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial judge overruled the defense objections and found that the DNA evidence was admissible.

Fugate argues that the trial judge abused his discretion in permitting Warnecke to testify as an expert who was able to demonstrate the general acceptance of DNA testing within the scientific community. Fugate contends that Warnecke does not have an adequate educational background to be qualified as an expert. He also relies on Commonwealth v. Petrey, Ky., 945 S.W.2d 417 (1997), in which this Court reversed the Court of Appeals on the qualification issue because Petrey had failed to object to the qualifications of the expert at a pretrial hearing. The Court of Appeals had held that Warnecke was not qualified to testify as an expert regarding the general acceptance and reliability of such evidence in the relevant scientific community. Consequently, Fugate claims that because the expert's credentials were objected to at the pretrial hearing, this Court should take judicial notice of the opinion of the Court of Appeals which disqualified the expert from testifying.

Fugate also contends that the expert improperly testified as to the error rate of this particular laboratory rather than as to the error rate of a particular type of DNA method.

The trial which is appealed from is the prosecution's fourth attempt to try Fugate for murder and burglary. A mistrial was declared in the first trial when the prosecution learned that a juror had improper contacts with the family of the victim. The second trial resulted in a hung jury. The third trial was ended when the jury panel fell below the statutory number.

The fourth trial took two days and resulted in conviction on the murder and burglary charges. This appeal followed.

In determining whether the trial judge properly admitted the evidence, we may consider not only the expert evidence of record, but also judicial opinions in other jurisdictions as well as pertinent legal and scientific commentaries. The factors are designed to ensure that the expert's testimony rests on a reliable foundation and is relevant. Wood v. State, Okla.Crim.App., 959 P.2d 1 (1998).

Our review of the DNA evidence is limited to the methods of DNA analysis used in this case which are the PCR and the RFLP analysis. Scientific evidence requires expert testimony because it is based on theories and techniques that are not within the general knowledge of either the courts or the juries. It 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 in the form of an opinion. See FRE 702, which Kentucky has adopted in KRE 702 based on the decision of the United States Supreme Court in Daubert, supra.

In Daubert, the United States Supreme Court held that Frye v. United States, 293 F. 1013 (D.C.Cir.1923), commonly known as the "general acceptance" rule, has been replaced in federal courts by FRE 702 with regard to the admissibility of all expert opinion testimony. Daubert established an analytical methodology for trial courts to determine whether proposed scientific expert opinion is based on scientific knowledge and is therefore sufficiently reliable to be admitted into evidence for consideration by the finder of fact. Among the many factors that will bear on the inquiry is whether the proposed scientific opinion is scientific knowledge.

This Court adopted the Daubert formula for admitting scientific evidence in Mitchell supra, in which this Court refused to hold that DNA evidence was per si:? admissible. Instead, we held that the admissibility was to be determined on a case-by-case basis. Whenever a party wishes to introduce DNA evidence, the trial judge must conduct a preliminary hearing pursuant to KRE 104, using the standard set out in Daubert to determine the admissibility of the evidence.

The trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but also reliable. In determining the reliability of novel scientific evidence, the trial court should consider whether the theory or technique can be and has been tested; whether the technique has been subject to peer review and publication; the known or potential rate of error and whether the technique is generally accepted. Mitchell; Daubert. Any alleged deficiencies in testing must go to the weight rather than to its admissibility. United States v. Beasley, 102 F.3d 1440 (8th Cir.1996).

Petrey, supra, reversed an opinion of a panel of the Court of Appeals that held that the same expert used in this case was not qualified. This Court reversed on grounds that the issue was not preserved and did not rise to the level of palpable error. Fugate now argues that Petrey is distinguishable because the issue of qualifications of an expert has been properly preserved.

In the case now under appeal, Warnecke testified that she had a Bachelor of Science degree from Western Kentucky University, with a major in biology and a minor in chemistry; that she had graduate level course credits from the University of Virginia in a course in DNA analysis methods and had studied DNA analysis at the F.B.I. Academy in Quantico, Virginia; that she had received graduate credit in biochemistry from the University of Kentucky, and that she had attended numerous symposiums, seminars and workshops regarding DNA analysis. She indicated that she was a member of the American Academy of Forensic Scientists and a member of the Midwestern Association of Forensic Scientists. She also stated that She was a member of the Technical Working Group on DNA Analysis Methods (TWGDAM) established by the F.B.I. to advise it and state forensic laboratories regarding DNA testing procedures. Warnecke also indicated that she had lectured on DNA technology at the college level and that she had submitted papers to be published in the Journal of Forensic Sciences regarding DNA analysis using the PCR method. She indicated that she had been performing DNA analysis for the Kentucky State Police Laboratory since 1990 and had testified in court on DNA analysis in approximately 40 cases.

The trial judge found Warnecke quailfied as an expert because of her seven years of personal experience in conducting DNA analysis with the Kentucky State Police Laboratory, the graduate level courses she had taken and her knowledge, experience, training and education.

The decision as to the qualifications of an expert rests in the sound discretion of the trial court and we will not disturb such ruling absent an abuse of discretion. Kentucky Power Co. v. Kilbourn, Ky., 307 S.W.2d 9 (1957); Ford v. Commonwealth, Ky., 665 S.W.2d 304 (1983). This Court in pre-KRE opinions and the KRE 702 section recognized that an individual can be qualified as an expert without possessing a particular academic degree. Kilbourn supra; Ford, supra.

Sholler v. Commonwealth, Ky., 969 S.W.2d 706 (1998), upheld a determination by the trial judge that Warnecke was qualified as an expert regarding DNA testing and comparison procedures. In Sholler, supra, this Court stated that there was evidence in the record that the same particular expert was qualified to conduct DNA tests and to report the results. It is not clear whether an objection to the...