People v. Muhammad

• Decision Date: 02 October 2018
• Docket Number: No. 338300,338300
• Citation: 326 Mich.App. 40,931 N.W.2d 20
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elamin MUHAMMAD, also known as El Muhammad, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

326 Mich.App. 40

931 N.W.2d 20

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Elamin MUHAMMAD, also known as El Muhammad, Defendant-Appellant.

No. 338300

Court of Appeals of Michigan.

Submitted September 5, 2018, at Grand Rapids.

Decided October 2, 2018, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, D. J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

Susan K. Walsh for defendant.

Elamin Muhammad in propria persona.

Before: Murray, C.J., and Cameron and Letica, JJ.

Murray, C.J. Defendant, Elamin Muhammad, appeals by right his bench trial convictions of armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to five years' imprisonment for the felony-firearm conviction, and 25 to 38 years' imprisonment for the armed-robbery conviction. The principal issue to decide, which is one of first impression for our appellate courts, is whether the trial court abused its discretion in admitting expert testimony regarding results from probabilistic genotype testing that was conducted using software called "STRmix." We conclude that the trial court did not abuse its discretion in admitting the results from this testing, and because there are no other errors requiring reversal, we affirm.

I. ADMISSIBILITY OF EVIDENCE

Defendant argues that the trial court erred in admitting expert testimony on deoxyribonucleic acid (DNA) evidence and in denying his motion to suppress evidence of a shoe that was left at the crime scene. The DNA expert testified at a pretrial hearing regarding STRmix probabilistic genotype testing, a more recent form of DNA testing and a relatively new method of evaluating complex mixtures.

We review a trial court's decision to admit evidence for an abuse of discretion. People v. Bynum , 496 Mich. 610, 623, 852 N.W.2d 570 (2014). "Preliminary questions of law, such as whether a rule of evidence or statute precludes the admission of particular evidence, are reviewed de novo...." Id . Necessarily, a trial court abuses its discretion when it admits evidence that is inadmissible as a matter of law. Id .

A. DNA EVIDENCE

1. BACKGROUND FACTS

At trial, the victim of the robbery could not identify the perpetrator because the perpetrator wore a mask that covered his face. While fleeing the scene, a shoe came off the perpetrator's foot as the victim shot at him with a weapon. Police recovered the shoe and sent it to a Michigan State Police forensic laboratory. At the laboratory, police obtained a sample from the shoe but could not perform a reliable DNA analysis because the sample contained a mixture from four different donors. Police then sent the shoe to Mitotyping Technologies, a private forensic laboratory in Pennsylvania.

Charity Holland was a DNA analyst at Mitotyping, and she testified as an expert in DNA analysis. On November 25, 2014, Holland received a size 9 left shoe from the Norton Shores Police Department. The insole of the shoe was outside the shoe in a plastic bag. Holland took a sweat sample from the toe region of the insole of the shoe for testing. She described the sample as a "low level DNA profile," and it was mixed with DNA from another donor. She agreed that the entire DNA profile was "degraded" and that defendant could not be excluded from the sample.

Holland consulted with another expert, John Buckleton, Ph.D., about probabilistic genotyping of DNA samples that contain DNA from more than one donor. Specifically, after Holland obtained a sample with more than one donor, Dr. Buckleton took the sample that Holland developed from the shoe insole and performed statistical interpretation of the profiles using a software program called STRmix. Before trial, defendant objected to the results of Dr. Buckleton's use of probabilistic genotype software, and the trial court held a Daubert¹ hearing. At the hearing, the prosecution primarily relied on the expert testimony of Dr. Buckleton, and the defense presented the expert testimony of Karl Reich, Ph.D.

On December 17, 2015, the trial court entered an opinion and order ruling that the results of the STRmix probabilistic genotyping analysis were admissible under MRE 702. The trial court found that STRmix had received adequate validity testing, that there were multiple validation tests, and that the Erie County Forensic Laboratory, the San Diego Crime Laboratory, the United States Army, and the Federal Bureau of Investigation had all conducted independent validation studies on STRmix. The trial court also noted that Dr. Buckleton testified that mock samples mimicked field samples and that another expert conducted validation studies in compliance with applicable guidelines. Furthermore, Dr. Buckleton had submitted the validation studies for peer review, and the New York State Commission on Forensic Science (NYSCFS) considered its DNA Subcommittee recommendation and approved STRmix for casework. Although the prosecution filed a posthearing "clarification" of Dr. Buckleton's testimony in which it alerted the trial court to the miscalculation of some results in Queensland, Australia, the trial court noted that the miscoding involved a three-person mixture.

The trial court continued, explaining:

Following the NYSCFS approval, at least two cases in New York utilized opinions based on STRmix evaluations. The U.S. Army used the STRmix program for evidence submitted in court-martials following validation testing by laboratories that adhered to the SWGDAM standards.

Many of these validation tests were published for peer review. The only evidence submitted of any criticism of the validation testing's methodology came from Dr. Reich. He acknowledged that the only other critic he was aware of was a scientist employed in his laboratory who had been involved in the development of a software program similar to STRmix known as [TrueAllele] .... To the contrary, there is general acceptance of STRmix among very significant figures in the field of DNA analysis. It is also clear that STRmix validity testing comported with recognized standards in this discipline and was subjected to peer review publications along with the program's algorithm.

Another factor ripe for consideration is whether mathematical experts outside litigation rely upon the concepts forming the STRmix program. The concept that STRmix relies upon is probabilistic genotyping and the mathematical principle supporting probabilistic genotyping is Monte Carlo Markov Chain (MCMC). This technique is widely used in weather forecasting, computational biology and linguistics, genetics, engineering, physics, aeronautics, the stock market, and social sciences.

The trial court concluded by holding as follows:

1. Multiple entities have extensively tested STRmix for validity, 2. The testing process adhered to generally accepted standards, 3. Experts in the field analyzed STRmix through peer review publication, 4. Of the hundreds of tests done, the only errors discovered involved extremely low levels of DNA but no specific error rate has been developed, 5. The concept of probabilistic genotyping is accepted in the community of DNA analysts and is in the process of achieving preferred status over conventional approaches like [Cumulative Probability Inclusion], 6. The MCMC principles underlying probabilistic genotyping and the STRmix program are relied upon by experts in many fields outside the context of litigation, and 7. Courts in New York have admitted STRmix results, and courts in Pennsylvania, Virginia, New York and Ohio have admitted results from a program based upon similar principles. STRmix meets the reliability criteria for admission under [MRE] 702.

At trial, before Dr. Buckleton testified for the prosecution, the trial court admitted the testimony from the Daubert hearing as substantive evidence.² Dr. Buckleton then testified that he applied the STRmix statistical interpretation to the DNA sample that Holland developed at Mitotyping and that the results of the STRmix analysis showed that "[the] chance of someone [other than defendant] producing this profile is one in one hundred billion." Dr. Buckleton agreed that the DNA sample showed the presence of a minor donor and that it was possible that the minor donor wore the shoe during the robbery.

2. ANALYSIS

MRE 702 governs the admissibility of expert witness testimony, and it provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

MRE 702 incorporates the standards of reliability that the United States Supreme Court established in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in interpreting the equivalent federal rule of evidence. See Gilbert v. DaimlerChrysler Corp. , 470 Mich. 749, 781-782, 685 N.W.2d 391 (2004). Under Daubert , a trial court must "determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert , 509 U.S. at 592, 113 S.Ct. 2786. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id . at 592-593, 113 S.Ct. 2786. Some factors that bear on the trial court's inquiry include: (1)...