Perdomo v. State, 3D00-899.

• Citation: 829 So.2d 280
• Decision Date: 09 October 2002
• Docket Number: No. 3D00-899.,3D00-899.
• Parties: Rigoberto PERDOMO, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

829 So.2d 280

Rigoberto PERDOMO, Appellant, v. The STATE of Florida, Appellee.

No. 3D00-899.

District Court of Appeal of Florida, Third District.

October 9, 2002.

Rehearing Denied November 8, 2002.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and John D. Barker, Assistant Attorney General, for appellee.

Before GREEN, SHEVIN and RAMIREZ, JJ.

SHEVIN, Judge.

Rigoberto Perdomo appeals judgments of convictions for attempted first degree murder, sexual battery, armed robbery and armed burglary with an assault. We remand for a limited evidentiary hearing on the qualifications of the state's expert to testify as to the population frequency statistics of the DNA match.¹

The crimes occurred when a man entered the victim's home through a window at approximately 5:00 a.m.: he sexually battered, robbed and attempted to kill her. The victim was unable to see the perpetrator when he was in her home. Perdomo was arrested and charged with the crimes based on DNA test results which showed that his DNA sample matched the DNA obtained from the victim's semen-stained nightgown. The state presented the testimony of Victor Alpisar, a Miami-Dade Police Department Crime Laboratory supervisor, as an expert on DNA analysis.

In describing his qualifications, the witness stated that he has a Bachelor of Science in Biochemistry; he received training at the Miami-Dade Police Department; he took masters level courses in forensic DNA analysis at Florida International University and at the FBI Academy; he is an FIU Adjunct Professor of forensic serology and DNA analysis; he attends and lectures at scientific meetings involving forensic analysis; he reviews journals in his field; and that he is a member of the International Society for Forensic Genetics and the Southern Association of Forensic Scientists. He stated that he has conducted DNA analyses hundreds of times and that he has always been accepted as an expert in court proceedings. At the time of trial, he was the supervisor of fifteen scientists in the analytical section of the Miami-Dade Police Department Crime Laboratory. After Alpisar testified as to the biochemical DNA testing results, Perdomo objected to Alpisar's qualifications to testify as to the statistical analysis of the DNA match stating that Alpisar was not a statistician or a mathematician.² The court sustained the objection pending the state's showing of a predicate for the admission of the testimony. The state questioned the witness as to how he established the significance of the match in his experience and training. Alpisar stated that he used the Miami-Dade Police Department database in which DNA profiles, obtained from the known blood samples of 1200 individuals, were entered into a computer database. The database, which has been favorably reviewed by outside specialists, enabled him to estimate the DNA's frequency in the Dade County population. He described the frequency as "an estimate I give you so you can assess what is the likelihood that there might be someone else who also has this same profile." Alpisar stated that the statistical significance was determined by looking at the genetic information, determining the percentages of population that have that DNA and "tally[ing] up all the percentage for all the genetic elements that we examine." This method results in a "composite number that says [that] the profile .... can be found in only one out of so many people in the population." As to his qualifications to testify about population frequency statistics, Alpisar stated that he ordinarily computes the statistical significance of the match in the course of performing DNA analysis; that he is trained to do so; and that such training was included in the previously described education and experience. The court made no further inquiry into Alpisar's qualifications and summarily overruled Perdomo's renewed objection that Alpisar was not a statistician or mathematician.

Alpisar then testified that he used a database representative of Miami-Dade County, and created by the Miami-Dade Police Department. The database, which has been reviewed by outside experts, consists of 1200 samples, and is divided into three racial and ethnic groups: African-American, Caucasian and Hispanic. Alpisar determined that defendant's DNA profile can be expected to be found in the Dade County population in a frequency that ranges between 1 in 11 million and 1 in 90 million.

The jury found Perdomo guilty of the charged offenses. On appeal, Perdomo contends that Alpisar was not properly qualified to testify as to the statistical analysis of the DNA match; he argues that Alpisar was not a mathematician or statistician; was not involved in the formation of the database, and did not know the statistics as to the male and female population of Dade County. We agree to the extent that the record fails to show that Alpisar was properly qualified to testify as to the statistical significance of the match.

"DNA testing requires a two-step process, one biochemical and the other statistical. The first step uses principles of molecular biology and chemistry to determine that two DNA samples look alike. The second step uses statistics to estimate the frequency of the profile in the population." Butler v. State, 27 Fla. L. Weekly S461, S464, ___ So.2d ___, ___, 2002 WL 926283 (Fla. May 9, 2002). It is well-settled law that a properly qualified expert must testify as to "the qualitative or quantitative estimates demonstrating the significance of the [DNA] match." Brim v. State, 695 So.2d 268, 270 (Fla. 1997). See Butler, 27 Fla. L. Weekly at S461, ___ So.2d at ___; Darling v. State, 808 So.2d 145 (Fla.2002); Murray v. State, 692 So.2d 157 (Fla.1997); Hayes v. State, 660 So.2d 257 (Fla.1995). It is not mandated that the witness be a statistician or a mathematician to be qualified to testify as an expert on the statistical significance of a match. See Butler; Darling, 808 So.2d at 158

. See also Fay v. Mincey, 454 So.2d 587, 595 (Fla. 2d DCA 1984) (observing that it is "well-established that an expert does not need a special degree or certificate in order to be qualified as an expert witness in a specialized area," but "can be qualified by his `experience, skill and independent study of a particular field'")(quoting Salas v. State, 246 So.2d 621, 623 (Fla. 3d DCA 1971)). In addition, a witness may testify as an expert absent participation in the formation of the database, if the witness demonstrates "a sufficient knowledge of the authorities pertinent to the database." Murray, 692 So.2d at 164; Butler.

In Darling, the defense contended that the expert was unqualified as he was not a mathematician or statistician. The Court disagreed and held that the expert was properly qualified to testify as to population frequency statistics where "the expert testified regarding the general acceptance in the scientific community of the methodology used, and demonstrated his knowledge and experience regarding both the methodology and the databases employed." Darling, 808 So.2d at 158. In Butler, the Court rejected defendant's argument that Dr. Eberhardt, an expert who was not involved in the creation of the database or trained in statistics, was unqualified to testify as to the population frequencies. The Court held that the expert was qualified where "she was familiar with the samples from which the database was created[; the FDLE conducted validation studies of its own on the database she used; and] her training consisted of conducting `revalidations' of those databases." 27 Fla. L. Weekly at S464, ___ So.2d at ___.

In this case, we recognize that Alpisar explained the significance of the DNA match; his testimony "demonstrate[d] to the jury what segment of the population the profile was more likely to match." Id. However, we are unable to discern from Alpisar's testimony concerning his education and experience, the database and the methodology used to compute the frequency statistics whether he demonstrated the requisite knowledge, comparable to the expert witnesses in Darling or Butler.

As to his education and practical experience in DNA frequency computation, Alpisar merely stated that he ordinarily calculates the frequency statistics in the DNA analysis and his statistics training was included in the DNA analysis education he had previously described. He did not delineate the portion of his education or practical experience that was dedicated to this segment of DNA analysis. Therefore, the court is required to speculate as to the extent of his experience in statistical analysis. See Hudson v. State, 820 So.2d 1070 (Fla. 5th DCA 2002)

.

Although it is "not absolutely necessary for an expert witness to demonstrate practical experience in the field in which he will testify," his testimony as to the database employed "must, at the very least, demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources." Murray, 692 So.2d at 164. Alpisar's testimony does provide some basis for concluding that his education included a study of the database, and he did testify as to the makeup of the database but the testimony is too limited to demonstrate knowledge of the database sufficient to show that he is a qualified expert. See Hudson, 820 So.2d at 1072-74

; Miles, 694 So.2d at 151. Cf. Butler, (expert's training involved "revalidations" of database); Darling, (expert demonstrated knowledge and experience regarding database employed).

As to Alpisar's knowledge of the methodology, the state contends that the witness used the product rule, which is generally accepted by the scientific community, to establish the frequency of defendant's DNA pattern. See Butler, 27 Fla. L. Weekly at S464, S466 n. 6, ___ So.2d at ___, ___ n. 6 (holding that the product rule is generally accepted and describing how that method works). Although Alpisar...