State v. Anderson

• Decision Date: 28 January 1993
• Docket Number: No. 12899,12899
• Citation: 115 N.M. 433,1993 NMCA 14,853 P.2d 135
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jay Allen ANDERSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 135

853 P.2d 135

115 N.M. 433

STATE of New Mexico, Plaintiff-Appellee, v. Jay Allen ANDERSON, Defendant-Appellant.

No. 12899.

Court of Appeals of New Mexico.

Jan. 28, 1993.

Certiorari Granted March 11, 1993.

[115 N.M. 434] Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Roth, Asst. Appellate Defender, Dan Cron, Rothstein, Walther, Donatelli, Hughes, Dahlstrom & Cron, Santa Fe, William C. Thompson, University of California, Irvine, CA, for defendant-appellant.

OPINION

CHAVEZ, Judge.

The opinion filed on December 14, 1992 is hereby withdrawn and this opinion is filed in its place. In this case we review the trial court's decision regarding the admissibility of some of the State's evidence that Defendant was the perpetrator of particular crimes. Specifically, that evidence was the result of forensic deoxyribonucleic acid analysis, known as DNA fingerprinting, matching, profiling, or evidence. It stated that Defendant's DNA matched DNA from samples taken from the victim and that there was an extremely high probability that the match was not a coincidence. After the trial court admitted the evidence, Defendant pled no contest to one count each of kidnapping, second degree criminal sexual penetration, aggravated battery, and extortion, and two counts of first degree criminal sexual penetration. He reserved his right to appeal. In his docketing statement, he raised seven separate issues. He did not brief the sentencing issue, and thus has abandoned it. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). Because we do not find general scientific acceptance of the FBI database, we reverse the trial court's order admitting the DNA evidence and remand for further proceedings.

JURISDICTION

Preliminarily, we dispose of the State's argument that we have no jurisdiction to consider Defendant's appeal because a jury never had the chance to consider the DNA evidence. The State posits that since a jury has never considered the evidence, there is no way we can tell whether any error would be harmless. The difficulty with the State's argument is that it does not recognize that the State made a bargain with Defendant. He pled nolo contendere to fewer charges than those in the indictment. If he were to lose this appeal, he would have no further right to trial. The State could have prosecuted on all charges, and did not have to agree to the plea. The State saves prosecutorial resources and avoids the possibility, no matter how slight the State thinks it is in retrospect, that a jury could acquit Defendant. This court considers a vast number of appeals in which a defendant pleads guilty or nolo contendere with reservation of a right to appeal an evidentiary ruling. We can discern no difference between such cases and this one. In agreeing to have Defendant plead nolo contendere, the State has waived its chance to argue harmless error. We have jurisdiction to consider this appeal.

THE THRESHOLD FOR ADMISSION OF SCIENTIFIC EVIDENCE

There are many thoughtful opinions explaining what DNA is and how laboratories process it for forensic use. See generally United States v. Yee, 134 F.R.D. 161 (N.D.Ohio 1991); People v. Axell, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411 (1991); Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991); People v. Mohit, 153 Misc.2d 22, 579 N.Y.S.2d 990 (Westchester County Ct.1992); State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107 (Ohio 1992). Rather than repeat these explanations, we refer the reader to these cases. The question is whether such evidence is generally accepted in the scientific community, and thus admissible in New Mexico.

New Mexico is a "Frye " state, which is to say that we determine whether scientific evidence is admissible according to the standard announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See State v. Lindemuth, 56 N.M. 257, 243 P.2d 325 (1952). According to that standard, we admit scientific evidence if the principles behind it are "accorded general scientific recognition." Id. at 274, 243 P.2d at 336. This approach is the subject of some criticism. See generally 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence, p 702 (1991). However, the Frye standard is still good law in New Mexico. Fuyat v. Los Alamos Nat'l Lab., 112 N.M. 102, 811 P.2d 1313 (Ct.App.1991); State ex rel. Human Servs. Dep't v. Coleman, 104 N.M. 500, 723 P.2d 971 (Ct.App.1986); State v. Blea, 101 N.M. 323, 681 P.2d 1100 (1984). But see State v. Dorsey, 87 N.M. 323, 532 P.2d 912 (Ct.App.), aff'd, 88 N.M. 184, 539 P.2d 204 (1975); Leo M. Romero, The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence, 6 N.M.L.Rev. 187 (1976) (arguing that by adopting the federal rules of evidence New Mexico had abandoned the Frye test in favor of a more liberal relevancy test). Until our Supreme Court sees fit to change the standard, and finding no quarrel with it, we are bound by Frye. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

Our Supreme Court has stated that in order for a scientific principle to be accepted as reliable, it must be "well-recognized." Blea, 101 N.M. at 326, 681 P.2d at 1103. This is because "[a]t some point, a new scientific technique becomes reliable enough to be used in court." Simon Neustadt Family Ctr., Inc. v. Bludworth, 97 N.M. 500, 504, 641 P.2d 531, 535 (Ct.App.1982), overruled on other grounds, Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 749 P.2d 1105 (1988). Neither Frye nor its subsequent application by the courts of New Mexico provide much illumination on what this test means functionally. Romero, supra, at 190. "The percentage of those in the field who must accept the technique has never been clearly delineated." Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum.L.Rev. 1197, 1210-11 (1980) (footnote omitted). We turn therefore to the reason behind the Frye standard to determine just how much support there has to be for a scientific principle before evidence based on the principle is admissible.

Scientific evidence has an air of credibility to it that lay evidence does not enjoy. Ronald N. Boyce, Judicial Recognition of Scientific Evidence in Criminal Cases, 8 Utah L.Rev. 313, 322 (1963-64). This is particularly true when a computer is used to isolate complicated and "unique" human characteristics. See Jayne L. Jakubaitis, Note, 'Genetically' Altered Admissibility: Legislative Notice of DNA Typing, 39 Clev.St.L.Rev. 415, 418-19 (1991) ("DNA typing appears to be potent evidence as jurors have shown substantial reliance on it and defendants often plea bargain rather than face trial by DNA.") (footnotes omitted); Claudia Rayford-Williams & Andreas V. Smith, It's All in the Genes: The Application of DNA Fingerprinting in the Courtroom, 34 How.L.J. 139, 151 (1991). A lay jury can implicitly pass judgment on lay evidence, but must leave to faith much of what occurs in the "black box" of science because its processes are not susceptible to lay understanding. See generally William C. Thompson & Edward L. Schumann, Interpretation of Statistical Evidence in Criminal Trials, 11 Law & Hum. Behav. 167 (1987) (empirical data showing lay juror tendencies to misunderstand statistical evidence). Our Supreme Court noted this concept as a reason for the inadmissibility, under the Frye standard, of testimony given under the influence of sodium pentothal, a so-called truth serum. Lindemuth, 56 N.M. at 273-74, 243 P.2d at 335-36. Others have echoed the same concern with respect to DNA evidence. See, e.g., Curnin, 565 N.E.2d at 442-43 n. 7; Janet C. Hoeffel, Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 Stan.L.Rev. 465 (1990) (included among criticisms of many other aspects of DNA evidence). If a scientific principle has gained general acceptance in the scientific community, there is some assurance that the jury will not embroil itself in the question of the validity of the principle. Further, the jury's inclination to be awed by the principle will not be as problematic if scientists generally accept it.

In effect, then, the Frye process endorses the soundness of the scientific principle that is at the root of the evidence, and the jury is not required to pass on the scientific reliability of the process involved. Coleman, 104 N.M. at 503, 723 P.2d at 974. With this in mind, we consider options on what general acceptance in the scientific community ought to mean.

One option is that articulated in the magistrate's report and recommendation that the district court adopted as its own in Yee. Studying closely the mechanics of the decisions in the federal sixth circuit court of appeals, the magistrate determined that the scientific community need not unanimously accept the scientific principle. Defendant in this case does not contend that unanimity is necessary either. However, the magistrate in Yee stated that there is no general acceptance "only where the evidence has been manifestly unsupported outside the proponent's own laboratory." Yee, 134 F.R.D. at 199 (Magistrate's Report and Recommendation). This liberal view stands the general acceptance threshold on its head. In a given case, if there is little evidence of resistance to acceptance in the scientific community, then perhaps a lone voice outside the proponent's own laboratory could be compelling. In another case, however, there may be abundant evidence that scientists do not accept a particular principle. A lone voice of acceptance outside the proponent's own laboratory, in the face of overriding disapproval, should not compel a ruling that the principle is generally accepted.

The sixth circuit model appears to lower the generally accepted threshold. This lower threshold does not prevent a jury from considering scientific...