People v. Barney

• Decision Date: 05 August 1992
• Docket Number: Nos. A048789,A050201,s. A048789
• Citation: 10 Cal.Rptr.2d 731,8 Cal.App.4th 798
• Court: California Court of Appeals Court of Appeals
• Parties: , 61 USLW 2158 The PEOPLE, Plaintiff and Respondent, v. Ralph Edwards BARNEY, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Kevin O'Neal HOWARD, Defendant and Appellant.

Page 731

10 Cal.Rptr.2d 731

8 Cal.App.4th 798, 61 USLW 2158

The PEOPLE, Plaintiff and Respondent, v. Ralph Edwards BARNEY, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Kevin O'Neal HOWARD, Defendant and Appellant.

Nos. A048789, A050201.

Court of Appeal, First District, Division 3, California.

Aug. 5, 1992.

Certified for Partial Publication ^*

Review Denied Nov. 25, 1992.

Victor Blumenkrantz, Berkeley, Linda F. Robertson, Burlingame, under appointments by the Court of Appeal, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson and John H. Sugiyama, Asst. Attys. Gen., Frederick R. Milar, Jr., Gerald A. Engler, and Enid A. Camps, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

John J. Meehan, Dist. Atty., (Alameda), Rockne P. Harmon, Deputy Dist. Atty., Oakland, for amicus curiae on behalf of respondent.

CHIN, Associate Justice.

I. INTRODUCTION

These two appeals challenge the admissibility of deoxyribonucleic acid (DNA) analysis evidence. The primary claim is that DNA analysis is a new scientific technique which does not meet the test of general acceptance prescribed by People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 and Frye v. United States (D.C.Cir.1923) 293 Fed. 1013. We conclude that one element of current DNA analysis--the determination of the statistical significance of a match between a defendant's DNA and the DNA in bodily material found at the crime scene--does not satisfy the Kelly-Frye test, but that in both appeals the error in admitting the DNA evidence was harmless.

The two cases are factually unrelated. They were tried separately by two different judges in Alameda County and have been briefed separately. However, we have consolidated them for decision because there is substantial identity of issues presented and underlying scientific principles.

II. FACTS AND PROCEDURE

A. People v. Howard

The victim in Howard, Octavia Matthews, was found on the floor of her home with a rope wrapped around her neck, bleeding from multiple head wounds. She later died of "[b]lunt trauma to the head associated with asphixia due to blunt trauma to the neck."

Kevin O'Neal Howard was Matthews's tenant in another building. He was behind in his rent payments and was living from paycheck to paycheck, and had previously been served with an eviction notice. Howard's wallet was found at the crime scene under some newspaper on a bloodstained couch. His fingerprint was found on a postcard in an upstairs bedroom. At the time of his arrest he had a fresh cut on one of his fingers. Conventional blood group analysis indicated that Howard's blood and some of the crime scene bloodstains--located on a tile floor, a paper napkin found in a cosmetics case, and a tissue found in a purse--shared an unusual blood type found in approximately 1.2 persons out of 1,000 in the Black population (and not at all in the White population). DNA analysis by the Federal Bureau of Investigation (FBI) indicated that Howard's DNA pattern matched the DNA pattern in those bloodstains, and the frequency of such a pattern is 1 in 200 million in the Black population.

The trial court held a Kelly-Frye hearing on the admissibility of the DNA evidence. The court heard expert testimony from both sides, and also admitted transcripts of the previous Kelly-Frye hearings in People v. Barney and a Ventura County case, People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411. The court ruled that Kelly-Frye was satisfied and that the evidence was admissible.

At trial, Howard testified in his own behalf as follows. He had gone to Matthews's home to discuss his rent and get a receipt for a prior payment. In the course of searching for a receipt already in his possession, he emptied the contents of a pouch filled with his personal items, including his wallet, which he accidentally left at the scene. He never attacked Matthews, and she was alive when he left. He often cuts himself with wire on his job, but his finger was not bleeding on the night of the killing. Howard also presented a defense suggesting that another of Matthews's tenants may have committed the homicide.

A jury convicted Howard of second degree murder (Pen.Code, § 187) with great bodily injury (Pen.Code, § 1203.075). The court imposed a prison sentence of 15 years to life.

B. People v. Barney

The victim in Barney was accosted in the South Hayward Bay Area Rapid Transit (BART) parking lot as she entered her car. Ralph Edwards Barney forced his way into the car and demanded money, displayed a knife, and forced the victim to drive and park several blocks away, where he penetrated her vagina with his fingers, attempted unsuccessfully to rape her and force her to perform oral copulation, and ejaculated on her clothing. When he left he took her small change in the approximate sum of $2, her BART ticket with $3.80 remaining on it, and her car keys.

The victim found Barney's wallet on the floor of her car. She called the police from a telephone booth. When officers arrived, she identified Barney from a photograph on an identification card in the wallet. Officers were dispatched to the address on the identification card, where Barney was arrested. The police seized a knife, a BART ticket with $2.20 remaining on it, and $1.82 in small change found in Barney's possession and on his front porch. The BART ticket had last been used to enter the transit system at the South Hayward BART station. BART fare between that station and stations near Barney's address was $1.60, the same amount by which the victim's BART ticket was reduced after the assault.

The police took Barney to BART police headquarters, where the victim identified him as her assailant. She subsequently identified him at a lineup, at the preliminary examination, and at trial. At a pretrial display of knives, she identified two knives, one of which was the seized knife. She identified the seized BART ticket at trial. DNA analysis by a commercial entity, Cellmark Diagnostics (Cellmark), indicated that Barney's DNA pattern matched the DNA pattern in semen found on the victim's clothing, and the frequency of such a pattern is 1 in 7.8 million in the Black population.

The trial court held a Kelly-Frye hearing on the admissibility of the DNA evidence, at which it heard expert testimony from both sides and also admitted transcripts of the previous Kelly-Frye hearing in People v. Axell, supra, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411. The court ruled that Kelly-Frye was satisfied and that the evidence was admissible. The court excluded the victim's BART police station identification of Barney on the ground the one-person showup was impermissibly suggestive, but concluded the other identifications were untainted and were therefore admissible.

After a nonjury trial, the court convicted Barney of kidnapping to commit robbery (Pen.Code, § 209, subd. (b)), robbery (Pen.Code, § 211), vaginal penetration with a foreign object (Pen.Code, § 289), attempted rape (Pen. Code, §§ 261, 664) and attempted forcible oral copulation (Pen.Code, §§ 288a, 664). The court imposed a prison sentence of life with possibility of parole for kidnapping to commit robbery, plus a total of 18 years for the other offenses and enhancements, with the life sentence to be served after completion of the 18-year term (Pen.Code, § 669).

III. OVERVIEW OF DNA ANALYSIS

Before addressing the DNA issues presented in these appeals, an explanation of DNA analysis is essential. ¹

DNA analysis (also called DNA fingerprinting or typing) is a process by which characteristics of a suspect's genetic structure are identified, are compared with samples taken from a crime scene, and, if there is a match, are subjected to statistical analysis to determine the frequency with which they occur in the general population.

Every human cell that has a nucleus contains two sets of chromosomes--one set inherited from each parent. Each chromosome contains thousands of genes, each of which comprises a particular site on the chromosome. The molecular component of the chromosome and its genes is DNA.

The DNA molecule resembles a spiral staircase. It consists of two parallel spiral sides (i.e., a double helix) composed of repeated sequences of phosphate and sugar. The two sides are connected by a series of rungs, which constitute the steps in the staircase. Each rung consists of a pair of chemical components called bases. There are four types of bases--adenine (A), cytosine (C), guanine (G), and thymine (T). A will pair only with T, and C will pair only with G.

Thus, the DNA molecule consists of two parallel spiral sides connected by a series of A-T, T-A, C-G, and G-C rungs called base pairs. There are about three billion base pairs in a single DNA molecule.

A person's individual genetic traits are determined by the sequence of base pairs in his or her DNA molecules. That sequence is the same in each molecule regardless of its source (e.g., hair, skin, blood, or semen) and is unique to the individual. Except for identical twins, no two human beings have identical sequences of all base pairs.

In most portions of DNA, the sequence of base pairs is the same for everyone. Those portions are responsible for shared traits such as arms and legs. In certain regions, however, the sequence of base pairs varies from person to person, resulting in individual traits. A region--or locus--that is variable is said to be polymorphic. In some polymorphic loci, at fragments called alleles, short sequences of base pairs repeat for varying numbers of times. These are called variable number of tandem repeat (VNTR) sequences. As a result of VNTR sequencing, the length of a given allele, measured in numbers of base pairs, will vary from person to person.

This variance is what makes DNA analysis possible. In effect, the lengths of sets of multiple (usually eight) polymorphic fragments (or VNTR alleles) obtained from a suspect's DNA and...