People v. Smith

• Decision Date: 31 January 1996
• Docket Number: No. G013492,G013492
• Citation: 49 Cal.Rptr.2d 608,42 Cal.App.4th 204
• Parties: Previously published at 42 Cal.App.4th 204, 46 Cal.App.4th 1412 42 Cal.App.4th 204, 46 Cal.App.4th 1412, 64 USLW 2543, 96 Cal. Daily Op. Serv. 733, 96 Daily Journal D.A.R. 1090 The PEOPLE, Plaintiff and Respondent, v. Frank SMITH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 608

49 Cal.Rptr.2d 608

Previously published at 42 Cal.App.4th 204, 46 Cal.App.4th 1412

42 Cal.App.4th 204, 46 Cal.App.4th 1412, 64 USLW 2543,

96 Cal. Daily Op. Serv. 733,

96 Daily Journal D.A.R. 1090

The PEOPLE, Plaintiff and Respondent, v. Frank SMITH, Defendant and Appellant.

No. G013492.

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

Jan. 31, 1996.

Certified for Partial Publication ^*.

Review Granted April 25, 1996.

Berley & DeVito and Diane E. Berley, Woodland Hills, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gray W. Schons, Senior Assistant Attorney General, Frederick R. Millar, Jr., and Rhonda L. Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SILLS, Presiding Justice.

Frank Smith appeals his conviction for multiple offenses against two women on two separate occasions ¹ which resulted in sending him to prison for 52 years. He contends the court committed prejudicial error when it admitted the deoxyribonucleic acid (DNA) analysis of his blood and its comparison to the semen swabs obtained from the rape victims. Smith also argues the court erred when it denied his motion to sever the two sets of offenses, and when it denied his motion for mistrial for prosecutorial misconduct. Neither of these arguments has merit. We affirm. ²

FACTS

I

In May 1989, Robbin E. drove home after socializing with some friends. She parked in front of her house and began reading her mail in the car by the light of nearby street lamps. Suddenly, she saw a man approach her, brandishing a knife. He forced his way into her car and drove her to an uninhabited area. He then committed a series of sex offenses against her, threatening her with the knife. After raping her, he drove her back to her home and ran off. Robbin was taken to a hospital where she underwent a rape examination which included seminal swabs. Robbin had perfect vision, was completely sober and able to give a very clear description of her attacker. She identified Smith as her attacker from a photographic lineup and expressed no doubt that Smith was her attacker at trial.

About five months after the attack on Robbin, Orba S. was curled up in her robe, watching a movie on television alone in her living room. Her children were asleep in their bedrooms when suddenly, Orba saw a figure run down the side of her house. She immediately ran to the phone to call 911, but the electric power had been cut and she could not see the buttons on the phone to call for help. A second later the rear sliding glass door opened, and a man rushed towards her, waving a knife at her. The man met the general description that Robbin had given earlier, except that Robbin's suspect had a beard while Orba's attacker sported only a mustache.

After grabbing Orba, the man held a knife to her and committed a series of sex offenses against her. After subjecting her to his cruelties, he turned the power back on and left. Only then was Orba able to call for help.

When the police arrived she described the man who assaulted her. Orba told them that because the house was dark and the man had warned her not to look at him, she could not give a more detailed description. She gave the police her robe and was then taken to the hospital where she underwent a rape examination from which the doctor obtained vaginal swabs.

Sixteen days after the assault, the police showed Orba over 100 photographs, none of which she identified as her assailant. However, two months later, Orba chose one photograph out of a lineup, stating that the man in the photo looked like the man who raped her. At Smith's trial, Orba testified that although she was not "a hundred percent positive" that Smith was her assailant, he looked very similar and had all the same physical features.

Robert Keister, senior criminalist at the Orange County (OC) Sheriff's DNA crime laboratory (lab), compared the vaginal swab and aspirate taken from Orba's rape kit with the same specimens from Robbin's rape examination using the restriction fragment length polymorphism (RFLP) technique and concluded the bands were numerically indistinguishable: Both women were raped by the same man. These results were also compared with samples taken from Smith. Keister found visual and numerical matches. Moreover, Keister calculated the probability of a random match to be one out of 1.3 million unrelated individuals, even though he used only three sites for his comparison and frequency calculation. ³ He used the so-called product rule in this probability calculation, but by eliminating the one probe, it resulted in a frequency calculation more advantageous to Smith than if the fourth point was included. The product rule was described as a formula used to determine the statistical probability of an event by multiplying together the frequency with which each of its component events occur.

The prosecution also called a world-renowned expert in human population genetics, Dr. Bruce Kovacs, who testified as to the concept and technique of DNA RFLP comparison, ⁴ and then testified as to the specific procedure and analysis in this case. He concluded the elimination of the D2S44 probe was unnecessary--as the particular binning method used by the lab obviated any undue affect caused by the excess--and resulted in an analysis unduly weighted in favor of the suspect: He opined that the actual chance of a random match at the four loci was much, much greater than the one in 1.3 million Keister calculated. He also testified at length concerning the discussion about the application of the product rule in probability calculations, noting there was no empirical evidence that population substructuring has any genetic affect on the VNTR ⁵ markers any theoretical impact was well covered by the binning process by which the OC databank of DNA samples was categorized. He testified that he had read and considered the National Research Council's (NRC) report and the article in Science by Hartl and Lewontin which proposed that intermarriage might alter gene frequencies in subpopulations, affecting proper application of the product rule. However, he disagreed with their conclusions because they were premised on 20-year-old protein data from esterase genes. By basing their conclusions on blood groups and protein markers rather than VNTR markers, extension of their conclusions to DNA forensic analysis was mere theoretical speculation in his view. His considered opinion was that population substructuring was "irrelevant.... it's not a very pragmatic issue. It's more of a theoretical issue.... [W]e may want to study the frequency of genes in fruit flies, .. or in yeasts. [p] Now we all know that yeasts don't make their offspring the same way that people make their offspring, so there are certain other principles that are applied in determining what has significance in a yeast population, that is to say the number of yeasts that would occur in their little world in this cup versus human.... [p] Human population genetics would have to do specifically with[:] we don't care what the yeasts are doing today, we only care what people are doing.... [p] As I said, flies don't care. They will have offspring with their sisters or their mothers. They don't care. People don't do that."

He then criticized the formula proposed by the NRC report. Actually, there were two formulas it recommended: One called the ceiling principle (to be used only after a series of studies had been completed) and another called the modified ceiling principle. ⁶ Dr. Kovacs labeled it as nonscience: "[T]he ceiling principle says, well, I don't care, we're still going to stay with one in ten. You can't say here is science and now we're going to throw that in the trash can and use witchcraft. [p] So the ceiling principle as enunciated in the NRC Report is something which is probably the most absolutely conservative that could be short of saying that none of it works at all and it's all just baloney [sic ]. But, in fact, it goes in the face of evidence which we have to suggest that use of the ceiling principle will push numbers down into ranges which are less than what they really should be. So we will actually be lying." (Italics added.) His expert opinion was that the product rule was the only appropriate formula to use in human genetic probability calculations, and the only one which had ever been used by human population geneticists.

Mary Hong, senior criminalist in the serology section of the OC lab, analyzed the blood samples from Smith and the crime scenes for their electrophoretic blood similarities. The results of the ABO bloodtyping and PGM tests could not eliminate Smith as a suspect in either of the rapes. Robbin was an ABO type A secreter with a PGM type of two-plus, one-plus. Her attacker was either a B secreter or an AB secreter. Smith was an ABO type B secreter also with a PGM type of two-plus, one-plus. Orba S. was an ABO type O secreter with a PGM type of one-plus, and her assailant was either an ABO type B or AB with a PGM two-plus or two-plus, one-plus. Again, because Smith was a B secreter with a PGM of two-plus, one-plus he remained a viable suspect in this case as well.

The defense presented Dr. Laurence Mueller to respond to the prosecution's DNA evidence. His testimony concentrated on the use of the product rule as improper in the probability calculations for DNA RFLP. He testified that his "feeling is that the prevailing view among the scientific community who have seriously considered this issue now is, in fact, not to use the product rule and I take as primary evidence of that view point the NRC report which is itself an attempt to get the pulse of the field, of the scientific community and reflect that in their recommendations." (Emphasis added.) He then testified the appropriate method with which to calculate frequencies is a...