People v. Adams, Docket No. 125921

Decision Date03 August 1992
Docket NumberDocket No. 125921
Citation489 N.W.2d 192,195 Mich.App. 267
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. George ADAMS, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Richard H. Browne, Asst. Pros. Atty., for the People.

Faintuck, Shwedel & Wolfram (by William G. Wolfram), Franklin, for defendant on appeal.

Before HOLBROOK, P.J., and GRIFFIN and MARILYN J. KELLY, JJ.

HOLBROOK, Presiding Judge.

Defendant appeals as of right his jury conviction of one count of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. He claims that the trial court erred in admitting into evidence the results of deoxyribonucleic acid (DNA) identification testing completed on a sample of dried semen taken from the victim's blue jeans. After carefully reviewing the evidence, we find that the trial court did not err in allowing the results in evidence. Defendant also claims that the trial court erred in failing to articulate sufficient reasons for imposing disproportionate sentences that departed from the sentencing guidelines range. We agree, and thus remand to the trial court for resentencing.

The Davis- Frye rule, adopted from People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), and Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013 (1923), allows the admission of expert testimony regarding novel scientific evidence only if that evidence has gained general acceptance among scientific experts in the field. The party offering the evidence carries the burden of demonstrating its acceptance in the scientific community. People v. Young, 418 Mich. 1, 21, n. 7, 340 N.W.2d 805 (1983); People v. Gistover, 189 Mich.App. 44, 46, 472 N.W.2d 27 (1991). The trial court's findings of fact regarding this issue will not be disturbed on appeal unless they are clearly erroneous. MCR 2.613(C); Gistover at p. 46, 472 N.W.2d 27. A finding will be determined to be clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. Id.

Before reviewing the laboratory procedures, an understanding of the structure of the DNA molecule is necessary. The molecule is a double helix, shaped like a twisted ladder. Phosphate and deoxyribose sugar form the rails of the ladder. Four chemical bases--Adenine (A), Cytosine (C), Guanine (G), and Thymine (T)--lie next to each other on the sugar links along the sides of the ladder. Each A always bonds with a T on the other side of the ladder, and each C always bonds with a G on the other side of the ladder, so that the possible base pairs on the ladder are A-T, T-A, C-G, and G-C. The base pairs are connected by a hydrogen bond, such that the bonds form the rungs of the ladder. There are approximately three billion base pairs in one DNA molecule. Although no two human beings have the same sequence of base pairs (except for identical twins), we share many sequences that create common characteristics such as arms, legs, fingers, and toes. The sequences of variation from person to person are known as polymorphisms. They contain different alleles, which are alternate forms of a gene capable of occupying a single location on a chromosome. Polymorphisms are the key to DNA identification because they create the individual characteristics of everyone and are detectable in laboratory testing.

As described in the lower court proceedings, testing for DNA identification involves several procedures. Cellmark Diagnostics is the company that did the laboratory testing in this case. The preliminary procedure is extracting a DNA molecule from a cell. This can be accomplished by a protein enzyme, proteinase, and a soap breaking the cell membrane. Organic solvents are used to separate the DNA from protein, carbohydrates, and lipids.

DNA identification begins when the DNA is cut into pieces creating restriction fragment length polymorphisms (RFLP). In this phase, restriction enzymes from bacteria digest the DNA into fragments that the enzymes recognize. The goal of the forensic application of DNA identification is to isolate the few sequences of base pairs that are not identical in all humans.

The next step in the process is electrophoresis, which separates the different sizes of DNA. 1 The DNA is placed in a gel called agarose. The gel contains lanes. A DNA sample from the victim, the suspect, and from the crime scene evidence is loaded into separate lanes. Because DNA has a negative electrical charge, a positive current is run through the gel. The smaller, lighter fragments migrate toward the positive electrode faster than the bigger, heavier fragments. The DNA is then filtered to another medium where the fragments can be better seen. The DNA is stained with ethidium bromide so that it can be illuminated by ultraviolet light.

After separating the DNA by size, the two strands of the double-helix DNA are denatured. A solution of alkali separates the DNA, like opening a zipper or splitting the rungs of the ladder. The single strands of DNA are then transferred onto a nylon membrane. The process of transferring the DNA from the gel to the nylon membrane is known as "Southern blotting," named for the person who originated the technique, E.M. Southern. In fact, the first six steps in the process, from the cutting of the DNA by the enzyme to the making of the autoradiogram (discussed below), are sometimes referred to as Southern blotting.

The next step is hybridization. Radioactively labeled DNA probes mark the RFLP for identification. The probes seek and attach, or hybridize, to the DNA on the nylon membrane. The residual probes that do not find complimentary DNA are then washed off the nylon filter. The filter is then placed underneath an x-ray film and developed into an autoradiogram. Dark bands appear on the autoradiogram where the probes hybridized to DNA. A single probe produces two bands on the autoradiogram. Cellmark uses four single locus probes at the same time, thus producing eight bands. Single locus means the probe attaches to DNA from one pair of chromosomes.

The results of the autoradiogram are then interpreted by examining the bands to determine if they match. This process, as well as the statistical analysis, was explained in People v. Axell, 235 Cal.App.3d 836, 847, 1 Cal.Rptr.2d 411 (1991):

Essentially the bands on the autorad from the victim's, suspect's, and crime scene evidence samples are "eyeballed" to see if they match within a certain measurement. If a match is declared, the likelihood that a match is unique must be determined. A match is said to occur if the sizes and number of the detected DNA fragments in various lanes are indistinguishable within a permissible degree of error. To calculate the permissible degree of error, Cellmark uses "resolution limits" as a unit of measurement to ascertain the "bin" or frequency at which an allele occurs in the population data base.

* * * * * *

To make a statistical evaluation of the data obtained from a DNA typing, it is necessary to know how frequently in the population a band of a certain size will be found, a question answered according to the principles of population genetics. Each probe recognizes a pair of bands--one from each parent. The probability of the combination of two particular bands recognized by one of the probes is calculated by multiplying the product of the frequencies of the two bands by two. The probability of the band patterns from all four loci is determined by multiplying the products from all four loci. This is known as the "product" or multiplication rule.

The validity of this procedure presupposes that each fact observed, and entering into the calculation, is random and independent of the others, or adjustments are made for deviations from conditions known as "Hardy-Weinberg equilibrium" and "linkage equilibrium." The Hardy-Weinberg principle is an algebraic equation that describes the genetic equilibrium within a population, assuming random mating. A homozygote is an individual who has inherited the same allele (or same length allele) from both parents. If the incidence of homozygosity far exceeds the expected frequency of that condition, then the data base population is not in Hardy-Weinberg equilibrium. [Citations omitted.]

For a further, more detailed explanation of the DNA identification process and statistical analysis, see People v. Castro, 144 Misc.2d 956, 964-970, 545 N.Y.S.2d 985 (1989).

At the pretrial hearing in this case, the preliminary examination testimony of Doctor David Houseman was incorporated into the record. Dr. Houseman is a professor of molecular biology at the Massachusetts Institute of Technology. He reviewed Cellmark's procedures at their laboratory. He testified that Southern blotting was applied worldwide in the diagnosis of genetic conditions such as cystic fibrosis, muscular dystrophy, and Huntington's disease. He stated that the test was generally accepted in the scientific community as reliable.

The prosecution first presented at the hearing Doctor Bonnie Blomberg, an associate professor of molecular biology and immunology at the University of Miami School of Medicine. For the past ten years she has utilized the Southern blotting technique in researching ailments such as Graves' disease. She visited Cellmark's laboratory and is familiar with their procedures. The only difference between her research and Cellmark's testing was the use of different probes. She testified that Cellmark's technique was generally accepted in the scientific community as reliable.

The prosecution...

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