Miles v. State, 96-0323

• Decision Date: 04 June 1997
• Docket Number: No. 96-0323,96-0323
• Citation: 694 So.2d 151
• Parties: 22 Fla. L. Weekly D1382 Michael K. MILES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 151

694 So.2d 151

22 Fla. L. Weekly D1382

Michael K. MILES, Appellant, v. STATE of Florida, Appellee.

No. 96-0323.

District Court of Appeal of Florida,

Fourth District.

June 4, 1997.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant, Michael Miles, raises numerous challenges to his conviction for burglary of a dwelling. We find merit in his challenge to the statistical DNA evidence admitted at trial since the trial court did not make the necessary findings that the statistical methodology was generally accepted, or that the DNA expert was qualified to present the statistical results.

At trial, the State presented Mr. Earl Ritzline as an expert in forensic serology. Mr. Ritzline's testimony concerned DNA testing that he conducted on saliva taken from a cigarette butt found in the burglarized trailer. Mr. Ritzline testified that the extracted DNA matched appellant's, and that the

probability of such a match was one in 796. Among appellant's trial-level challenges to the DNA evidence was a claim that Mr. Ritzline was not adequately qualified to render an opinion on the DNA evidence. Appellant also objected to the general acceptance of the employed DNA testing methodology, and challenged the validity of Mr. Ritzline's statistical conclusion.

In a series of recent cases which were issued after the date of this trial, but during its pendency on appeal, the Florida Supreme Court revisited procedures for admitting DNA evidence at trial and pronounced several changes in the law which impact this case. In Brim v. State, 22 Fla. L. Weekly S45, S45, --- So.2d ----, ---- (Fla. Jan. 16, 1997), the court wrote to "clarify and emphasize that the DNA testing process consists of two distinct steps." Id. at S45, at ----. The first step, the "DNA testing process," is founded upon principles of molecular biology and chemistry. Id. The second step, which is implicated in the instant case, is the statistical step. It relies upon principles of statistics and population genetics; it is what gives "significance to a match." Id. The court, in Brim, held that the statistical analysis in a DNA comparison is independently subject to a Frye inquiry as a prerequisite to admissibility. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923)(holding that the scientific basis for an expert opinion must, as a prerequisite to admissibility, be shown to be generally accepted in the relevant scientific community).

In this case, the trial court did not determine that the statistical methodology employed by Mr. Ritzline was generally accepted. Nor does the record clearly reveal just what statistical technique was applied. While Mr. Ritzline briefly described how the statistical data was procured, ¹ this limited explanation, absent some speculation, does not identify the statistical methodology, nor does it address its general acceptance. Because the supreme court had not yet clarified that DNA testing involves two distinct steps, rather than just one, we find that appellant's objection to the general acceptance of the DNA test conducted in this case and his subsequent challenges at trial to the validity of the statistical conclusions were sufficient to preserve this issue for our review.

We are also unable to discern from the record whether Mr. Ritzline was properly qualified to report population frequency statistics. In Murray v. State, 692 So.2d 157, 162-64 (Fla.1997), the supreme court provided some guidance concerning the necessary credentials of the expert reporting the DNA statistical and population genetics analysis, noting that it is not required that the DNA expert personally participate in the compilation of the statistical database referenced in a particular case, but that he "must, at the very least, demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources."

Because the record does not reveal the statistical methodology employed in this case, or Mr. Ritzline's qualifications to present the statistical evidence, we remand for a limited evidentiary hearing similar to the one ordered in Brim. On remand, the trial court is to (1) assess Mr. Ritzline's competence to present the statistical evidence; and (2) clarify the exact methods used in calculating the DNA statistics and then conduct a Frye hearing to determine the general acceptance of the employed statistical techniques. If Mr. Ritzline is adequately qualified, and if the statistical methodology originally employed passes the Frye test, appellant's conviction is to stand. Otherwise, appellant must be afforded a new trial. ²

GROSS, J., concurs.

FARMER, J., dissents with opinion.

FARMER, Judge, dissenting.

I have a feeling that the trial judge will be understandably perplexed by this court's reversal--and especially for the reasons given by the majority. For the defense made no objection to the DNA statistical evidence at trial, and certainly did not argue the grounds used by the majority for its finding that the trial court erred in admitting the testimony. As I understand the objection at trial, it was that the DNA testing in this case was "novel" and that the state's expert was not qualified to perform this novel test. Thus, from my reading, the argument made to us was not preserved.

But even if it had been preserved, there is still the question of harmless error. The victim of this burglary arrived home at noon time to find defendant, a stranger, lurking around a...