Hull v. State
| Decision Date | 19 December 1996 |
| Docket Number | No. 93-KA-00228-SCT,93-KA-00228-SCT |
| Citation | 687 So.2d 708 |
| Parties | Jackie Lee HULL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Rabun Jones, Dyer Dyer Jones & Daniels, Greenville, for Appellant.
Michael C. Moore, Attorney General, Jolene M. Lowry, Sp. Asst. Attorney General, Jackson, for Appellee.
Before PRATHER, P.J., and JAMES L. ROBERTS, Jr., and MILLS, JJ.
MILLS, Justice, for the Court:
On February 4, 1993, a jury in the Circuit Court of Sunflower County convicted Jackie Lee Hull of the forcible rape of his fourteen-year-old stepdaughter. The trial judge sentenced Hull to the custody of the Mississippi Department of Corrections for twenty years with the last ten years suspended. On appeal to this Court, Hull assigned as error the following issues:
I. Whether the Trial Court Erred in Allowing Agent Quill to Testify That Other Scientists Had Verified That His Work Was Properly Done and That the DNA Patterns Matched in Violation of Mississippi Rule of Evidence 802 and the Confrontation Clauses of the United States and Mississippi Constitutions.
II. Whether the Trial Court Erred in Allowing Agent Quill to Testify That a Former Defense Expert Agreed That a DNA Match Existed in Violation of Mississippi Rule of Evidence 403.
III. Whether the Trial Court Erred in Not Granting a Mistrial Based on a Judicial Comment During Voir Dire and Prosecutorial Misconduct During Closing Argument.
IV. Whether the Trial Court Erred in Granting Instruction S-2 and Denying Instruction D-14.
V. Whether the Trial Court Erred in Allowing Evidence of a DNA Match Without Statistical Evidence Where Such Evidence Is Irrelevant and Whether the Trial Court Erred in Allowing Testimony That Matches Were Extremely Rare Despite its Prior Ruling That Probability Evidence Was Inadmissible.
VI. Whether Hull's Rights to a Speedy Trial under Section 99-17-1 of the Mississippi Code, Federal and State Constitutions Were Violated.
Jackie Lee Hull married Gwendolyn Butler, who had a fourteen-year-old daughter by another man. Hull and Butler shared a bedroom in their home in Indianola. Butler's daughter stayed in a bedroom across the hallway. A distance of approximately seven feet separated the two bedroom doors.
On Saturday, May 5, 1990, Butler and her fourteen-year-old daughter were at home. Hull, who was employed as a truck driver, telephoned Butler at approximately 9:30 p.m to say he was out of state and would not return home until 1:30 a.m. Actually, Hull made this telephone call from Indianola after completing his route. Hull then went to a friend's home where he played cards until 12:15 or 12:30 p.m. Butler and her daughter went to bed after receiving Hull's phone call.
Sometime between midnight and 1:30 a.m., Butler's daughter awoke to find Hull beside her twin-sized brass bed. Hull told the young woman to be quiet or he would cut her throat. The young girl stated that Hull had an object in his hand, which she later described as a knife. Hull undressed himself and removed the victim's shorts and panties. Hull stated that if the victim could have sex with some other boy, she could also have sex with him. Hull then had sexual intercourse with the victim without her consent. The victim stated she submitted because Hull had told her he would cut her throat.
At approximately 1:30 a.m., Butler awoke to go to the restroom. She went out in the hallway and saw Hull's keys on a counter and his boots by the door. Hull, in the meantime, donned his clothes while the victim dressed herself. Butler then entered the victim's bedroom and turned on the light. She saw Hull behind the victim's door with a gun in his hand. Butler asked him why he had a pistol in his hand. Hull explained that he had heard a noise and was investigating. Butler testified nothing else seemed awry in the room and that she soon returned to bed.
The next morning the victim reported to her mother the events of the night before. Butler took her daughter to the police station where they filed a report with Officer Elvis Pernell. The victim was then taken to South Sunflower County Hospital where an examination was performed and rape kit samples were collected.
The next day, having been informed that the police were seeking him, Hull spoke to his brother-in-law, Roger Mitchell, a Baptist minister. Mitchell testified that Hull confessed that he had sexual relations with the victim.
Deborah Haller, a forensic scientist at the Mississippi Crime Lab, testified that seminal stains on the victim's shorts came from a B-type secretor. Hull is a B-type secretor. 1 Haller further testified that seminal stains on the victim's shirt and panties could not have been left by Hull. Haller was unable to determine any ABO grouping (i.e. grouping of blood types A, B, AB, or O) from vaginal and rectal swabs.
The evidence was then forwarded to the FBI Crime Laboratory for deoxyribonucleic acid (DNA) analysis. Agent Jack Quill testified that using Restriction Fragment Length Polymorphism (RFLP) analysis, the DNA in Hull's known blood sample matched the DNA pattern found in the vaginal swab taken from the victim.
Whether the Trial Court Erred in Allowing Agent Quill to Testify That Other Scientists Had Verified That His Work Was Properly Done and That the DNA Patterns Matched in Violation of Mississippi Rule of Evidence 802 and the Confrontation Clauses of the United States and Mississippi Constitutions.
Hull argues three separate sub-issues dealing with hearsay and the right to confrontation. The first issue deals with the cross-examination of Dr. Lavette, a defense expert, about the writings of a Dr. Sensabaugh, who was not present at trial. The second two sub-issues concern the direct testimony of FBI Agent Jack Quill, who testified his work was reviewed by other FBI agents and a former defense expert who agreed with his results. Each sub-issue is discussed separately below.
A.
Dr. Lavette was a defense expert who testified to the effect that the FBI improperly found a match in the DNA evidence, even using their own protocol. During the State's expert voir dire of Dr. Lavette, the following exchange occurred.
Q. Then, you and a number of other people have published something on Herpes Simple[x] Virus?
A. That's correct.
Q. Is that an article?
A. Yes.
Q. "The Misuse of Genetic Analysis in Forensic Science," published in The Journal of Forensic Sciences.
A. Yes.
Q. Was that an article?
A. It was submitted as an article, however, it was published as a letter to the Editor.
Q. And, so it was not peer reviewed, was it?
A. It was very definitely peer reviewed and in fact, a peer review appeared immediately after and in the text of my article. So, not only was it peer reviewed, the peer review was published.
Q. There was a response to your letter to the editor is what it was?
A. No, it wasn't a response. It was a solicited response that is not published one or two issues later. It was published immediately in the text bound. Which is a highly unusual situation I might add in academic publishing.
Q. That was by Dr. Sensabaugh?
A. I believe it was.
Q. He was highly critical of your letter, is that correct?
A. That is correct. I am highly critical of Dr. Sensabaugh also.
Your Honor, she is quoting hearsay material into the record at this point and this is going far beyond a voir dire of an expert's qualifications as an expert witness and we object on those grounds.
I believe, Counsel, with the curriculum vitae list these as her qualifications and I think Ms. Bridges is questioning what is in the curriculum vitae, is that not correct?
BY MS. BRIDGES:
Yes, sir.
I am going to overrule that objection.
Q. Tell me if this is a correct quotation.
BY MR. JONES:
Your Honor, I hate to interrupt but what she is quoting is a letter written by somebody else. The letter is not listed on this lady's CV. It is bringing an article out of the air, a letter written about something that she has published. I don't think it is even proper cross-examination, much less proper voir dire of an expert witness and we continue to object
Let me ask Dr. Lavette, is this--I don't have your CV in front of me. I am just assuming that this is something that was listed in your curriculum vitae, right?
A. No, I do not list Dr. Sensabaugh's publications in my CV. Furthermore, this does not even deal with DNA.
I now have what is marked as D-12, the curriculum vitae and listed as Academic Journal Publications # 11, list Juricek, D.K. "The Misuse of Genetic Analysis in Forensic Science," The Journal of Forensic Sciences 29: 8-12 (1984). Is this the article that she is now asking you about?
A. She is quoting from an article by Dr. Sensabaugh that is written in response to that particular article.
What is listed here as an Academic Journal Publication. So as I understand the voir dire is a question as to whether, in fact, this was an Academic Journal Publication or whether it was published as a letter to the Editor and criticized by--
A. That is correct and I would like to reiterate that it doesn't even deal with DNA.
I think the point has been made that that is not a publication but a letter to the editor as published and that the publisher of the journal took issue with what was contained in the article.
A. That is correct. He also published it.
Q. (Ms. Bridges continuing) Who is Dr. Sensabaugh?
A. Dr. Sensabaugh holds a position at the...
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