Olvera v. State, 5D03-3803.

• Decision Date: 23 April 2004
• Docket Number: No. 5D03-3803.,5D03-3803.
• Citation: 870 So.2d 927
• Parties: Mark Vincent OLVERA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

870 So.2d 927

Mark Vincent OLVERA, Appellant, v. STATE of Florida, Appellee.

No. 5D03-3803.

District Court of Appeal of Florida, Fifth District.

April 23, 2004.

Jerri A. Blair and Jerry T. Lockett, of Lockett & Blair, P.A., and Michael A. Graves, of Graves & Spivey, P.A., Tavares, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

Mark Vincent Olvera ["Olvera"] appeals the summary denial of his second rule 3.853 "Motion for DNA Evidence Examination." We affirm. In June 1989, an eighteen year old girl named Tina Hendricks was sexually battered and then murdered by strangulation, and her body was thrown into a canal in a Lake County park. Evidence accumulated by law enforcement authorities revealed that, on the night of the murder, the victim was in a bar dancing and drinking into the early hours of the morning. Olvera was also in the bar and witnesses testified that he attempted to dance and talk with the victim. Certain eyewitness testimony also indicated that the victim left the bar with Olvera. Forensic evidence indicated that the semen retrieved from the victim's vagina matched the DNA provided by Olvera's blood samples, and hairs found in the car he was driving that night were indistinguishable from the victim's. The hair was not DNA tested, however.

Olvera was charged in the death of Tina Hendricks and the jury found him guilty of first-degree murder¹ and sexual battery.² The trial court sentenced him to a term of life imprisonment, with a mandatory term of twenty-five years on the murder conviction and a consecutive life sentence on the sexual battery conviction.

Before trial, DNA testing was done on at least four individuals: Olvera (who is Hispanic); Tom Hopwood, the victim's boyfriend; "Johnny" Lockerd, an individual who was also at the bar that night and who some witnesses identified as being the individual who left with the victim; and a fourth individual, Ken Bowles, a friend of Olvera's.

At trial, the State introduced evidence concerning the DNA testing performed in this case through the expert testimony of FBI DNA analyst, Audrey Lynch ["Lynch"]. The State properly qualified Lynch as an expert in the field of forensic DNA profiling without objection. Lynch testified that in every case she is involved with, she will have four autoradiographs prepared, each corresponding to a different location on the sample's DNA and each isolated by a different probe. The four probes used on each of the K1 through K4 samples and on the Q1/Q2 sample are known as D2S44, D17S79, D157 and D4S139. Lynch testified that the D4S139 probe introduced a defective autoradiograph, and that it was not used in her statistical calculations in this case. S he also testified that the Q1/Q2 sample, as is usual in the circumstances, included DNA from both the victim's vaginal cells and from the semen in her vagina; Lynch testified that the mixed Q1/Q2 sample in this case was successfully separated into two DNA strands, one of which she could identify as matching the victim's known blood sample.

Lynch testified that the FBI's DNA tests showed a match between the male DNA found in the victim's vagina and Olvera's, meaning that Olvera had sexual relations with the victim before she was murdered. Lynch testified that the K2 sample, taken from Olvera, appeared from a visual examination of each of the three usable autoradiographs to match the male strand of the Q1/Q2 sample. She testified that she confirmed those preliminary visual matches with a computer program that converts the visible bands on the autoradiographs to a digital measurement. According to Lynch, the DNA testing indicated the probability that an Hispanic person other than Olvera had sexually assaulted the victim on the night of the murder was 1:290,000.

Lynch explained how the FBI determined the probability that another Hispanic person has the same DNA profile as that of the male contributor to Q1/Q2. Each of the three probes used illustrated two measurable DNA fragments. The FBI consulted its database of Hispanic blood donors and determined from that database the rarity of each of the six visible fragments. According to Lynch's testimony, the two bands on the D2S44 probe appear respectively in 12.3% and 5.4% of the Hispanic population; the two bands on the D17S79 probe appear respectively in 4.4% and 17.5% of the Hispanic population; and the two bands on the D1S7 probe appear respectively in 6.5% and 9.8% of the Hispanic population. The six probabilities multiplied together by the "product rule" produced the 1:290,000 figure.

Lynch also testified that she concluded absolutely, based on each of the three successful autoradiographs, that Kenneth Bowles' and Tom Hopwood's samples did not match the male strand of the Q1/Q2 sample. Finally, Lynch testified that she was subsequently sent John Lockard's blood sample and through additional testing, excluded Mr. Lockard.

The State called Dr. Arthur Eisenberg ["Dr. Eisenberg"] as an additional expert witness. He testified that he had been asked to test the Olvera K1 through K4 samples, solely in order to determine whether the samples could have been...