Mitchell v. Com., 94-SC-86-MR

• Citation: 908 S.W.2d 100
• Decision Date: 24 August 1995
• Docket Number: No. 94-SC-86-MR,94-SC-86-MR
• Parties: Timothy Taylor MITCHELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 100

908 S.W.2d 100

Timothy Taylor MITCHELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-86-MR.

Supreme Court of Kentucky.

Aug. 24, 1995.

Rehearing Denied Nov. 22, 1995.

Thomas L. Conn, Fayette County Legal Aid, Inc., Lexington, KY, for appellant.

Chris Gorman, Attorney General, Laura Early, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

STUMBO, Justice.

Timothy Taylor Mitchell was convicted of two counts of first-degree rape, two counts of complicity to first-degree rape, three counts of first-degree sodomy, one count of complicity to first-degree sodomy, one count of first-degree sexual abuse, two counts of kidnapping, one count of second-degree burglary, one count of third-degree burglary, and two counts of theft by unlawful taking over $100.00. He received 225 years. Mitchell appeals to this Court as a matter of right. Appellant raises three issues on appeal.

First, Appellant contends that the trial court denied him due process of law by allowing the introduction of scientific evidence of forensic DNA, an analysis which is not accepted within the general scientific community.

According to Appellant, based on the expert testimony introduced during the DNA hearing, a substantial controversy existed within the relevant scientific community regarding the forensic application of FBI and Kentucky State Police Lab DNA analyses. The trial court, after listening to the evidence, ultimately ruled that the forensic DNA evidence in the case was admissible.

Appellant asserts that admissibility of DNA evidence should be prohibited per se. The Commonwealth argues that DNA evidence should be admissible per se. We decline to adopt either a complete acceptance or complete bar to the admissibility of DNA evidence. This Court shall continue to approach this issue on a case-by-case basis.

As a result, the question before this Court is whether the trial court abused its discretion in allowing the forensic DNA evidence to be admitted. We find that the trial court did not abuse its discretion. This Court in Harris v. Commonwealth, Ky., 846 S.W.2d 678 (1992), upheld the use of the Frye test. See, Frye v. United States, 293 F. 1013 (D.C.Cir.1923). This Court held that the party offering evidence of the scientific test has the burden of proving general acceptance in the particular field. In Harris, this Court reserved its views on DNA testing to a case-by-case basis. See also, Leslie Abramson, Kentucky Practice: Criminal Practice and Procedure § 27.83 (2d ed. 1987 & Supp.1994).

KRE 702, effective July 1, 1992, provides:

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.

In 1993, the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), analyzed Fed.R.Evid. 702 in relation to Frye v. United States, 293 F. 1013. Fed.R.Evid. 702 and KRE 702 contain the same language. The United States Supreme Court held that Fed.R.Evid. 702 supersedes the Frye standard. Accordingly, we adopt the standard of review set forth in Daubert. We overrule the portion of Harris v. Commonwealth, Ky., 846 S.W.2d 678 (1992), that conflicts with Daubert v. Merrell Dow Pharmaceuticals Inc. However, it must be emphasized that we retain as much of Harris v. Commonwealth that limits the determination of admissibility of DNA evidence to a case-by-case basis.

When "[f]aced with a proffer of expert scientific testimony," the trial judge must determine at [a preliminary hearing] "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, --- U.S. at ----, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. According to the United States Supreme Court, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue. Id. "[I]n order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation--i.e., 'good grounds,' based on what is known. In short, the requirement that an expert's testimony pertain to 'scientific knowledge' establishes a standard of evidentiary reliability." Id. at ----, 113 S.Ct. at 2795, 125 L.Ed.2d at 481. In addition, "Rule 702's 'helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at ----, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. In applying Rule 702, "lower courts should look at whether the scientific knowledge being presented has been tested, whether it has been subject to peer review and publication, what the evidence's known rate of error is, and whether the evidence has a particular degree of acceptance in the relevant community." Abramson at § 27.83 n. 2 (Supp.1994) (summarizing Daubert, --- U.S. at ----, 113 S.Ct. at 2796-99, 125 L.Ed.2d at 482-485).

In order to understand the factors better, it is important to examine Daubert in further detail. First, according to the United States Supreme Court, lower courts should examine whether the theory or technique can be tested. Daubert, --- U.S. at ----, 113 S.Ct. at 2796-97, 125 L.Ed.2d at 482-83. A second consideration is "whether the theory or technique has been subjected to peer review and publication." Id. at ----, 113 S.Ct. at 2797, 125 L.Ed.2d at 483. "[S]ubmission to the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that substantive flaws in methodology will be detected." Id. The United States Supreme Court noted that publication alone does not necessarily correlate with reliability.

An additional consideration, "in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, ... and the existence and maintenance of standards controlling the technique's operation." Id.

Finally, " 'general acceptance' can yet have a bearing on the inquiry." Id. "Widespread acceptance can be an important factor in ruling particular evidence admissible, and 'a known technique that has been able to attract only minimal support within the community[ ]' ... may properly be viewed with skepticism." Id. at ----, 113 S.Ct. at 2797, 125 L.Ed.2d at 483 (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir.1985)).

To summarize, pursuant to KRE 702 and Daubert, expert scientific testimony must be proffered to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards set forth in Daubert. On appeal, the standard of review is whether in deciding the admissibility of the evidence the trial judge abused his or her discretion.

Upon a review of the record in the case at bar, we believe the trial court did not abuse its discretion. The trial court, after a preliminary hearing, examined the evidence pursuant to Daubert. The hearing was properly conducted. As a result, Appellant's conviction is affirmed on this issue.

Second, Appellant claims that the trial court erred by allowing the introduction into evidence of his illegally obtained confession.

According to Appellant, he was poorly educated and could not read well. He did not have the intelligence or educational background necessary to make an informed or intelligent decision to submit to interrogation by Sergeant Dan Gibbons. In addition, Appellant claims that he was under the influence of alcohol, he was crying, and his speech was slurred.

According to the Commonwealth, on May 11, 1992, Appellant was at the police station giving samples for the DNA tests. Sergeant Gibbons advised Appellant of his Miranda rights and Appellant stated that he wanted to talk to an attorney.

On June 12, 1992, police executed an arrest warrant on Appellant. He was arrested and advised of his Miranda rights by Sergeant Gibbons. Appellant stated to Sergeant Gibbons that he wanted to talk to him.

At the suppression hearing, the Commonwealth stated that the issue was whether or not Appellant initiated the conversation with Sergeant Gibbons. Defense counsel agreed, and further stated that another issue was the voluntariness of the confession. The trial judge reviewed the tape of Appellant's initiating conversation with Sergeant Gibbons. In addition, the record indicates that both the Commonwealth and defense counsel submitted supplemental briefs concerning this issue. Upon review of the filed authorities, the trial judge overruled the motion to suppress the confession. The trial judge found that there was a legal basis for the introduction of the statement.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court held that one who had asserted his right to be represented by counsel could not be interrogated further "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 485, 101 S.Ct. at 1885. See also, Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987).

This Court will reverse the trial court's decision only upon a showing of clear abuse of...