Simmons v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: FRY.
• Citation: 797 So.2d 1134
• Decision Date: 17 September 1999
• Parties: Clarence Leland SIMMONS v. STATE.

797 So.2d 1134

Clarence Leland SIMMONS
v.
STATE

CR-97-0768.

Court of Criminal Appeals of Alabama.

September 17, 1999.

Opinion on Return to Remand April 28, 2000.

Opinion on Return to Second Remand June 30, 2000.

Rehearing Denied September 25, 2000.

797 So.2d 1143

J.T. Simonetti, Jr., Birmingham, for appellant

Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.

FRY, Judge.¹

On August 2, 1996, a Jefferson County grand jury returned an indictment charging the appellant, Clarence Leland Simmons, with three counts of capital murder. Count I of the indictment charged Simmons with the capital offense of murder committed during the course of a burglary, § 13A-5-40(a)(4), Ala.Code 1975. Count II of the indictment charged Simmons with the capital offense of murder committed during the course of a robbery, § 13A-5-40(a)(2), Ala.Code 1975. Count III of the indictment charged Simmons with the capital offense of murder committed during the course of a sexual abuse, § 13A-5-40(a)(8), Ala.Code 1975. Simmons was tried on the charges. At the close of the State's case, the trial court dismissed, at the State's request, Count I of the indictment. The jury returned verdicts finding Simmons guilty of intentional murder, a lesser included offense of the capital murder charge in Count II of the indictment, and guilty of capital murder as charged in Count III of the indictment. The trial court entered judgments of convictions of both verdicts.

The jury, with regard to Simmons's conviction for capital murder under Count III of the indictment, by a vote of 11 to 1, recommended that Simmons be sentenced to death. The trial court, following the jury's recommendation, sentenced Simmons to death by electrocution. The record

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does not contain a sentence imposed by the trial court with regard to Simmons's conviction for the lesser included offense of intentional murder under Count II of the indictment. Because we must remand this cause for a hearing on the admissibility of the deoxyribonucleic acid (DNA) population frequency statistical analysis evidence, an extensive statement of the facts of this case is not necessary at this time

Simmons contends that the trial court erred by admitting into evidence testimony concerning the results of DNA testing because, he says, the State failed to establish that the polymerase chain reaction (PCR) method of DNA-typing evidence and that the DNA population frequency statistical analysis evidence was reliable, as required by Ex parte Perry, 586 So.2d 242 (Ala. 1991). He further argues that the testimony of the State's expert witness failed to satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as to key questions concerning the evaluation of techniques and methodologies underlying the expert's conclusions. Simmons did not challenge the admissibility of the DNA evidence at trial; therefore, we conduct our review for plain error. Rule 45A, Ala.R.App.P.

Evidence was presented at trial that the DNA in a bloodstain found on clothing found located in Simmons's apartment "matched" seven characteristics of the DNA in the blood of the victim. According to testimony, the probability of finding similar DNA was 1 in 800,000 individuals in the Caucasian race and 1 in 9,000,000 individuals in the black race.

Initially, we note that § 36-18-30, Ala. Code 1975—not Perry—provided the standard by which the courts of Alabama determined the admissibility of DNA evidence at the time of Simmons's trial. Section 36-18-30 states:

"Expert testimony or evidence relating to the use of genetic markers contained in or derived from DNA for identification purposes shall be admissible and accepted as evidence in all cases arising in all courts of this state, provided, however, the trial court shall be satisfied that the expert testimony or evidence meets the criteria for admissibility as set forth by the United States Supreme Court in Daubert, et ux., et al. v. Merrell Dow Pharmaceuticals, Inc., decided on June 28, 1993."

Guidance as to the interpretation § 36-18-30 was provided by the Alabama Supreme Court in Turner v. State, 746 So.2d 355 (Ala.1998). Although Simmons was tried before the Supreme Court released its opinion in Turner, we find the Supreme Court's interpretation of § 36-18-30, Ala. Code 1975, and its requirements in that case pertinent.

In Turner, the Alabama Supreme Court held:

"[I]f the admissibility of DNA evidence is contested, the trial court must hold a hearing, outside the presence of the jury, and, pursuant to § 36-18-30, determine whether the proponent of the evidence sufficiently establishes affirmative answers to these two questions:

"I. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA forensic evidence is based `reliable'?

"II. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA evidence is based `relevant' to understanding the evidence or to determining a fact in issue?

"Trial courts should use the flexible Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,

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125 L.Ed.2d 469 (1993)], analysis in making the `reliability' (scientific validity) assessment. In making that assessment, the courts should employ the following factors: (1) testing; (2) peer review; (3) rate of error; and (4) general acceptance

"Trial courts should make the `relevance' assessment by addressing the `fit' between what the scientific theory and technique are supposed to show and what must be shown to resolve the factual dispute at trial. Whether otherwise reliable testing procedures were performed without error in a particular case goes to the weight of the evidence, not its admissibility. Only if a party challenges the performance of a reliable and relevant technique and shows that the performance was so particularly and critically deficient that it undermined the reliability of the technique, will evidence that is otherwise reliable and relevant be deemed inadmissible.

"Of course, once a particular theory or technique has satisfied § 36-18-30, a court may take judicial notice of that theory or technique's reliability. See Perry, 586 So.2d at 251; [United States v.] Beasley, 102 F.3d [1440] at 1448 [(8th Cir.1996), cert. denied, 520 U.S. 1246, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997)] (holding that reliability of the polymerase chain reaction (`PCR') method of DNA typing would be subject to judicial notice in future cases); [United States v.] Martinez, 3 F.3d [1191] at 1197 [(8th Cir.1993), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994)] (holding that the reliability of the restriction fragment length polymorphism (`RFLP') procedure was subject to judicial notice). We recognize that the state of scientific theories and the techniques for producing DNA evidence is not static, and that the scientific community undoubtedly will produce new theories and techniques regarding DNA. Each new theory and technique will be subject to the test set out above until its reliability warrants judicial notice."

746 So.2d at 362 (footnotes omitted).

In the present case, because the admission of the DNA evidence was not contested or challenged before or during trial, the trial court did not hold a hearing outside the presence of the jury. In Payne v. State, 683 So.2d 440, 455 (Ala.Cr. App.1995), aff'd, 683 So.2d 458 (Ala.1996), cert. denied, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997), we held that a trial court did not commit reversible error by not holding a hearing outside the presence of the jury to determine the admissibility of the DNA evidence. In Payne, we concluded that if a defendant wanted to allege that the trial court erred in not conducting a hearing outside the jury's presence to determine the admissibility of the DNA evidence, it was incumbent upon the defendant to have first requested that such a hearing be conducted. Accordingly, because Simmons did not request a hearing, no reversible error occurred in this regard in the trial court's admission of the DNA evidence.

At trial, the state offered PCR-matching DNA evidence and DNA population frequency statistical analysis evidence to establish Simmons's presence during and his participation in, the offense. The record reflects that Larry Huys, a forensic serologist for the Birmingham laboratory of the Alabama Department of Forensic Sciences, testified that he performed the PCR analysis on blood samples from the victim and from Simmons. According to Huys, the PCR technique is used by the Alabama Department of Forensic Sciences to determine whether two DNA samples match. He testified that the theory and

797 So.2d 1146

technique of the PCR method used by the Alabama Department of Forensic Sciences's Birmingham laboratory are generally accepted and considered reliable by the Federal Bureau of Investigation and the scientific community; he further testified that the theory and technique have been extensively "written about" in scientific journals and subjected to peer review. He further elaborated on the controls built into the testing process to further ensure the test's reliability; he testified that his test results in this case indicated no error or contamination. Based on Huys's testimony, the State established the reliability of the theory and technique of the PCR method of DNA analysis so as to satisfy § 36-18-30, Ala.Code 1975. See United States v. Beasley, 102 F.3d 1440 (8th Cir. 1996), cert. denied, 520 U.S. 1246, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997)(listing several cases recognizing the PCR method as valid and scientifically reliable).

This court has acknowledged the reliability of the theory and techniques used in the PCR method of DNA analysis. Maples v. State, 758 So.2d 1 (Ala.Cr.App. 1999). Therefore, as the Alabama Supreme Court took judicial notice of the...