People v. Axell

• Decision Date: 29 October 1991
• Docket Number: No. B046327,B046327
• Citation: 235 Cal.App.3d 836,1 Cal.Rptr.2d 411
• Parties: , 60 USLW 2331 The PEOPLE, Plaintiff and Respondent, v. Lynda Patricia AXELL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 411

1 Cal.Rptr.2d 411

235 Cal.App.3d 836, 60 USLW 2331

The PEOPLE, Plaintiff and Respondent, v. Lynda Patricia AXELL, Defendant and Appellant.

No. B046327.

Court of Appeal, Second District, Division 6, California.

Oct. 29, 1991.

Review Denied Jan. 30, 1992.

[235 Cal.App.3d 841] Sharon M. Jones, Ventura, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Frederick R. Millar, Jr., Supervising Deputy Atty. Gen., Robert M. Snider and Elaine F. Tumonis, Deputy Attys. Gen., for plaintiff and respondent.

STEVEN J. STONE, Presiding Justice.

The issue presented is one of first impression in this state: does DNA typing evidence meet the legal requirements for admissibility of novel scientific evidence and, if so, whether the basis for the calculation of statistical probability employed by the testing laboratory, Cellmark in this case, satisfied the foundation requirements Lynda Axell appeals from a judgment of conviction of first degree murder (Pen.Code, § 187, subd. (a)) and attempted robbery (Pen.Code, §§ 664/211) after court trial. She challenges the court's ruling on admissibility of DNA testing results, alleges she was deprived of due process by admission of this evidence, and attacks her conviction as lacking substantial evidentiary support.

                of People v. Collins.   We answer both questions in the affirmative
                

Following a preliminary hearing at which appellant was held to answer, the Ventura County Superior Court held lengthy hearings between March and August of 1989, to determine the admissibility of DNA testing results. The court ruled that the results of the DNA testing procedures, as well as statistics of probability concerning those results, were admissible.

The parties stipulated to a court trial on the basis of the preliminary hearing transcript, a tape recording of an interview between appellant's father and Ventura Police Department officers, the transcript of all the proceedings in the superior court, and all exhibits introduced and stipulations entered into during those proceedings. The court found appellant not guilty of burglary, but guilty of first degree murder and attempted robbery.

FACTS

The Offense

February 24, 1988, at approximately 8 a.m., Christine Kiloh, a cook at Top Hat Burger in Ventura, saw a person with dark hair three or four inches below the shoulder walk away from the Top Hat with head down, wearing a wide brimmed hat and carrying an object under the arm. Upon entering the restaurant, she saw the body of George White, who customarily opened the restaurant in the morning, lying among boxes in a pool of blood. Blood was smeared and spattered in virtually every area of the building. Long hair was found throughout the premises including in the blood on the wall near the victim's head. More unknown hairs were found on the victim's trousers and on his body during autopsy.

Several days later, the owner of the Top Hat, Charlotte Bell, discovered a few items missing from the restaurant. Although White usually carried a wallet, no wallet was found in his pockets at the murder scene, at his home, or in his truck.

Appellant, who had waist-length dark hair, worked in a business, The Party Place, near the Top Hat and was seen driving away from that area early on the morning of the murder. When interviewed by the police, she said she had gone to work at The Party Place about 4 a.m., worked until about 8 a.m., drove to her mother's house, showered, went home, changed clothes, took a nap, awoke late, and finally returned to work around 9:30 a.m. She gave contradictory statements about whether her roommate Rhonda accompanied her back to work and whether she had ever been in the Top Hat. She denied involvement in the crime.

Douglas McCormick, nine-years-old, caught the bus to school in front of the Top Hat each day at approximately 7:40 a.m. and would talk to George White. On the morning of February 24, 1988, Douglas looked through the window of the Top Hat to see if George was inside and saw a person with grey hair and brownish skin, wearing a blue and white hat with "L.A." on it, bending down, away from him. The person shooed Douglas away with a white rag. Several minutes later, Douglas looked in again but the person was gone.

Although he never saw the full face of the individual, Douglas thought the person he saw was a man in his forties. During cross-examination, he was shown a photograph of appellant but did not identify her as the person inside. He had previously picked another person's photograph from a photographic lineup.

Edwin Jones, a Ventura County crime laboratory criminalist, compared hair samples of different persons, including appellant, with various hair samples from the crime scene. He eliminated the victim and other possible suspects as the source of the hairs found at the scene. Most of the hairs Many of the hairs found varied similarly in both diameter and cross-section, from nearly circular to oval, like that of appellant. Other similarities were shapes, pigment size, pigment distribution, lack of curl, and changes along the lengths. Jones opined that the majority of the population would not have the same range of hair characteristics as appellant.

found ranged between 13 and 17 inches in length as did most of the hair samples known to have come from appellant. Appellant's hair showed extreme variation in color apparent even without a microscope. The unknown hairs shared with appellant's a dearth of follicular material adhering to the roots.

July 28, 1988, Cellmark Diagnostics, a testing laboratory in Germantown, Maryland, received from the district attorney's investigator, whole bloodstains on cotton from the victim and appellant, and roots from 15 hairs recovered from the crime scene. The DNA was extracted from these materials, and Cellmark reported that the banding patterns obtained from the appellant's whole bloodstain matched the DNA banding pattern obtained from the 15 hair roots found at the scene of the murder. Subsequently, Cellmark reported that the frequency of that DNA banding pattern in the Hispanic population is approximately 1 in 6 billion. Appellant is part Hispanic. Simply put, Cellmark's analysis meant that the chance that anyone else but appellant left the unknown hairs at the scene of the crime is 6 billion to 1.

Appellant's sister, Julie Burkette, in response to an untrue statement by Officer McKendry that appellant had confessed to the murder, said that she had overheard appellant tell someone at a family party on February 25, 1988, that she had hit someone and taken their money. At the preliminary hearing she testified that appellant had never said that she had hit George, burglarized the Top Hat, or killed George White.

When officers told appellant's father, Vernon Porcho, that they had taken her into custody for the killing and that she had confessed, Mr. Porcho told them that after the killing appellant told him that she went to the Top Hat to obtain money, that White entered and caught her, and she killed him. He said that his family disbelieved her admissions because of her chronic cocaine use. Her family had refused her request for money several days before the killing. At one point in the interview, he began to cry. Later, at the preliminary hearing, he changed his statement and testified that he had lied to the officers because he was mad at his daughter and at the police. He said appellant never told him that she killed George White.

John Adams, Julie Burkette's then housemate and longtime friend of appellant, told police that appellant discussed the murder with appellant's parents and that he overheard her say that she stabbed George White. He also said that Julie Burkette told him that appellant told her that she had hit and stabbed White.

Evidence Code Section 402 Hearing

A. The Nature of DNA

The scientific theory underlying DNA typing was explained at the Kelly/ Frye hearing. DNA, deoxyribonucleic acid, is a fundamental material which determines the genetic properties of all living things. All nucleated cells of every human being contain DNA. In 1952, scientists James Watson and Francis Crick won the Nobel Prize for their discovery of the structure of DNA. The molecule is composed of two parallel chain-like structures, a double helix, which has been described as a spiral staircase. The handrail and balustrade of the staircase is made up of repeated sequences of phosphate and deoxyribose sugar. Attached to the sugar links are four types of chemical bases--Adenine (A), Cytosine (C), Guanine (G), and Thymine (T). Pairs of these bases or "base pairs" form the steps of the spiral staircase. (See People v. Castro 144 Misc.2d 956, 545 N.Y.S.2d 985, 988 (Sup.1989); State v. Pennell Del.Super., 584 A.2d 513, 516-517 (1989).) Each A on a chain-like structure always pairs with each T on the other strand and each C on one strand always pairs with each G on the other. (See App. A, taken In a single molecule of DNA, there are approximately 3 billion of these base pairs. Within an individual, the DNA from the nucleus of every cell is identical. Thus, the sequence of base pairs in a cell from a strand of hair will be identical to the sequence of base pairs found in a skin cell from the same individual. ¹

                from People v. Wesley 140 Misc.2d 306, 533 N.Y.S.2d 643 (Co.Ct.1988).)   It is the order or sequence of the base pairs (the steps) that determines genetic traits of an individual life form and each human.  No two human beings have identical sequences in all of its base pairs in its DNA except for identical twins
                

Most of the DNA does not vary from person to person, thus creating such shared features as arms and legs. Other regions of DNA, however, vary distinctly from one person to another and it is these regions of the DNA molecule where the base pairs are arranged differently which make...