People v. Lindsey
| Decision Date | 07 January 1993 |
| Docket Number | No. 90CA0556,90CA0556 |
| Citation | 868 P.2d 1085 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gregory LINDSEY, Defendant-Appellant. . V |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Deborah I. Pratt, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge MARQUEZ.
Defendant, Gregory E. Lindsey, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree sexual assault, robbery, burglary, habitual burglar, and habitual criminal. We affirm.
On February 16, 1988, during the early morning hours, a woman was sexually assaulted by a man wearing a mask who broke into her townhome in Colorado Springs.
In January 1988, another Colorado Springs woman had been sexually assaulted, and evidence in the form of vaginal swabs and stains on bedclothes were recovered during the investigation of that offense. On May 1, 1988, in the early morning hours, an intruder again broke into the same woman's house and attempted to sexually assault her. The intruder fled when a neighbor became aware of the attacker's presence and telephoned the victim. As a result of the May incident, defendant was arrested and the police obtained samples of his blood.
Blood samples from defendant and the two victims, together with vaginal swabs taken from the two victims shortly after the assaults, were sent to Cellmark Diagnostic Corporation. Cellmark subsequently reported that the DNA (deoxyribonucleic acid) from known blood of the defendant matched the DNA "fingerprint" of the samples obtained from the vaginal swabs of the two victims and a semen stain sample from the bedsheet recovered after the January incident.
The basic procedures used in the Cellmark test, which have been described extensively in Cobey v. State, 80 Md.App. 31, 559 A.2d 391 (1989), are known collectively as Restriction Fragment Length Polymorphism analysis (RFLP Analysis). This analysis involves separate scientific procedures or experiments including 1) extraction of DNA, 2) fragmentation with restriction enzymes, 3) electrophoresis, 4) Southern blotting, 5) hybridization, 6) autoradiography, and 7) interpretation.
Cellmark then calculates the frequency of DNA. See State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107 (Ohio 1992). The database used in this case ultimately comprised DNA samples from blood taken from approximately 330 black donors at a Detroit blood bank.
The defendant was originally charged in a single information with separate counts involving the two victims. Ultimately, the counts were severed and the defendant was tried separately on each count.
Prior to severance, the court conducted a pre-trial hearing on the admissibility of the DNA fingerprinting pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Under Frye, courts are to determine if the scientific basis of an expert opinion is founded on "a well-recognized scientific principle or discovery [which has] gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. at 1014.
At the Frye hearing, in September 1988, the prosecution initially presented two expert witnesses, each of whom generally testified to the scientific acceptance of the theory of DNA testing and of the DNA fingerprinting technique used by Cellmark. Defense counsel advised the court that he was unable to cross-examine the prosecution's expert witnesses or to present expert testimony.
In a continuance of the Frye hearing in January 1989, after severance and during the trial of the May incident, the prosecution presented a third expert, who testified that the database Cellmark used in arriving at its results is considered sufficient and accepted as reliable in the scientific community. He explained that the procedure by which Cellmark determines the frequency of banding patterns within the general population is generally accepted in the scientific community and that scientists have been using that principle for quite some time.
Defense counsel again informed the court that a decision had been made not to expend scarce resources challenging the DNA evidence in the trial of the May incident. The trial court then ruled that the DNA evidence was admissible.
In the trial of the May incident, defendant was convicted of second degree burglary, first degree attempted sexual assault, and habitual criminality. In that trial, the DNA evidence served only to link defendant to the similar transaction that had occurred in January 1988. That judgment of conviction was affirmed by this court in People v. Lindsey, (Colo.App. 89CA0340, Sept. 27, 1990) (not selected for official publication).
In the present case, involving the February victim, the prosecutor moved the court to rule that the Frye hearing held in September 1988 and January 1989 would be dispositive of the issue of the admissibility of the DNA evidence. Defense counsel moved for a further Frye hearing, arguing that, at the first trial, he was not provided with funds with which to challenge the DNA evidence and that developments in the interim raised doubts about the reliability of DNA in a forensic setting.
Based upon Colorado precedent, the court's consideration of the evidence presented at the Frye hearing previously, and decisions in New York, Florida, and Maryland, the court found that the scientific basis upon which both the DNA testing occurs and the scientific basis for analyzing the probability of a particular characteristic through the use of statistics are commonly accepted within the scientific community and thus, the Frye standard had been met. Accordingly, it denied a further Frye hearing. However, the court specifically held that it was not ruling that the application or the use of the techniques in the individual cases of Cellmark was or was not admissible. Instead, it ruled that such issue required a motion in limine.
Defendant then filed a motion in limine to exclude the DNA evidence, and a hearing was held on that motion. Defendant also moved to reconsider the court's ruling regarding the applicability of the Frye case. However, the trial court denied the latter motion.
Defendant presented a number of witnesses who testified both at the motion in limine hearing and at trial. These experts raised a number of criticisms concerning Cellmark, including that the database upon which it premised its statistical comparisons was too small to be reliable, that its procedures were flawed and had not been reviewed by panels of independent scientists, that standards for the use of DNA fingerprinting for forensic purposes should be more strict than those Cellmark required, and that there are critical differences between forensic and research laboratory settings.
A prosecution expert testified at the in limine hearing that the DNA patterns in the Lindsey and unknown sample were indistinguishable and that he had used Cellmark's data to make his own computations. He stated that he was absolutely confident that the frequency of this pattern in the population could be no more common than one in twenty-one million.
At the conclusion of the in limine hearing, the court first noted that the techniques and theories used by Cellmark in this case are commonly accepted in the scientific community. The court weighed the testimony at the Frye hearing and the in limine hearing and then applied CRE 702. It found that the witnesses produced by both the prosecution and the defendant were qualified experts, that the testimony would assist the trier of fact in determining a fact in issue, and that the existence of significant disagreement among experts was not a reason to exclude the testimony from the trier of fact. There was no reason, in the trial court's view, for the court to usurp the role of resolving conflicts of fact and opinion. The court then applied CRE 403 and denied the defendant's motion in limine.
At trial, the technician who actually performed the RFLP testing technique on the samples in this case testified as an expert for the prosecution. She stated that she had performed tests on nearly 500 forensic samples and testified concerning Cellmark's laboratory protocols and procedures when testing forensic samples.
A genetic epidemiologist also testified for the prosecution at the trial. She testified that she had reviewed the calculations by which Cellmark arrived at the figure that the odds of someone besides the defendant having the banding pattern appearing in the known sample and in the forensic sample was one in three hundred forty billion. She felt that Cellmark's data base was sufficient to calculate this frequency in the general black population.
A third expert testified as a prosecution rebuttal witness concerning the various procedures Cellmark uses in doing its RFLP analysis and discussed the reliability of those procedures.
With the exception of the DNA fingerprints, the evidence against the defendant in this case was largely circumstantial. The victim was unable to identify the intruder, but reported that he was tall, of large build, with very broad shoulders, and that he identified himself as a "black man." The defendant, who lived next door to the victim, was a tall black man. The victim testified that the intruder wore a dark snowsuit. The defendant owned a pair of black ski pants.
On appeal, defendant asserts that the forensic DNA identification test performed by Cellmark in this case is not generally accepted as reliable in the scientific community. We conclude that the court did not err in admitting this evidence.
A.
Defendant argues that the issue in this case is not whether the theory of DNA matching is correct or whether DNA testing might someday become reliable,...
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Lindsey v. People
...Section, Denver, for respondent. Chief Justice ROVIRA delivered the Opinion of the Court. We granted certiorari in People v. Lindsey, 868 P.2d 1085 (Colo.App.1993), to consider whether, in view of this court's decision in Fishback v. People, 851 P.2d 884 (Colo.1993), the court of appeals er......