State v. Anderson, 21069

Citation118 N.M. 284, 1994 NMSC 89, 881 P.2d 29
Case DateAugust 25, 1994
CourtSupreme Court of New Mexico

BACA, Justice.

In this opinion, we address the subject of the admissibility of deoxyribonucleic acid ("DNA") evidence in New Mexico to inculpate the accused and, more specifically, the admissibility of this evidence obtained through the methods utilized by the Federal Bureau of Investigation ("FBI"). We granted the State's petition for writ of certiorari pursuant to SCRA 1986, 12-102(A)(6) (Repl.Pamp.1992) to review the Court of Appeals' decision holding the State's DNA evidence inadmissible at trial. The Court of Appeals held that the DNA evidence linking Defendant to the crime was inadmissible because the State failed to prove that the FBI's current database and statistical methodology were generally accepted in the scientific community as required by the rule set out in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). State v. Anderson, 115 N.M. 433, 853 P.2d 135 (Ct.App.), cert. granted, 115 N.M. 145, 848 P.2d 531 (1993). On appeal, the State argues that (1) the Frye standard is the appropriate standard to determine the admissibility of scientific evidence such as DNA typing and (2) that the procedures and calculations used in the scientific community to determine the probability of a coincidental match meets the Frye standard. Because this Court recently abandoned the use of the Frye test in New Mexico to determine the admissibility of scientific evidence, State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), we address only one issue: Whether the procedures and calculations used in determining the probability of a coincidental DNA match meet the standard provided by our rules of evidence in SCRA 1986, 11-702 (Repl.Pamp.1994) (testimony by experts), SCRA 1986, 11-703 (Repl.Pamp.1994) (bases of expert opinion testimony), SCRA 1986, 11-403 (Repl.Pamp.1994) (exclusion of relevant prejudicial evidence) and explained in detail by this Court in Alberico.1 We reverse the Court of Appeals and affirm the trial court's ruling.


Defendant Jay Allen Anderson was indicted and charged with twenty-eight counts including kidnapping, criminal sexual penetration, attempted first-degree murder, and aggravated battery. The charges stemmed from the kidnapping and assault of Joni Hertz in 1988.

In September of 1988, Hertz was driving from Oklahoma to California alone. Although she started out following a friend's vehicle, she became separated from her group. Hertz stopped at a convenience store in Albuquerque after discovering that her wallet had either been stolen or was lost. While she was talking with the clerk, Defendant entered the store and proceeded to join in the conversation. After Hertz told Defendant that she was alone and without any money, Defendant offered to give Hertz a $10 loan in exchange for a ride home. She accepted his offer and they drove to a field outside a trailer park.

At the field, Defendant and Hertz engaged in conversation and then, abruptly, Defendant forced Hertz to perform oral sex. After ejaculating and forcing Hertz to swallow his semen, Defendant told Hertz that he was "going to have to kill [her]" because he did not want to get caught for his crime. Hertz pleaded with him not to kill her. Defendant severely beat her and left her unconscious. The plea and disposition agreement states that Defendant beat Hertz with "a block of wood and/or a steel barbell rendering her unconscious and causing injuries to her head requiring over 200 stitches."

After Hertz identified Defendant as the perpetrator, he was arrested. The State recovered a sample of semen from Hertz's vomit and the FBI performed serological tests to compare it with Defendant's DNA profile. DNA testing also showed that blood found on Defendant's jacket was consistent with Hertz's DNA profile. The State moved for a Frye hearing and was ordered to disclose everything relating to the DNA typing. Defendant filed a motion in limine requesting that unreliable scientific opinion evidence be ruled inadmissible. After the Frye hearing was held, the trial court ruled the DNA typing evidence admissible, stating:

Testimony by the State's experts and the pertinent scientific literature convinces this Court by a preponderance of the evidence that the FBI's method for computing the statistical frequency of DNA pairings is a valid procedure and is generally accepted in the relevant scientific community.

In summary, the protocol used by the FBI for DNA testing, including their method of computing the statistical frequency of DNA prints meets the standard for acceptance as required by Frye. The court also finds and concludes that the procedures are valid and reliable.

. . . . .

The Court finds and concludes that those scientists most qualified to assess the general validity of the FBI's protocol have spoken on this subject and are the determinative voice as contemplated by the Court in Frye v. United States. Motion to Exclude DNA Evidence is denied.

Following this ruling, the State and Defendant entered into a plea and disposition agreement. The agreement set forth the facts surrounding the Defendant's criminal sexual acts. It also contained the results of serological evidence and the DNA typing. It stated:

DNA typing analyses done by the Federal Bureau of Investigation show that the DNA profile obtained from sperm in the vomit matches the Defendant's DNA profile and the probability of selecting an unrelated individual from the population with that profile is approximately 1 in 6.2 million. DNA typing of the blood on Defendant's jacket produced a DNA profile matching that of Joni Hertz and the probability of selecting an unrelated individual at random with that same profile is approximately 1 in 30.5 million.

Defendant appealed his conviction, arguing that the trial court committed reversible error by admitting the DNA typing evidence. The Court of Appeals reversed the trial court, holding that the FBI's method of computing population frequency statistics lacks general scientific acceptance because the binning procedure utilized by the FBI was controversial in the scientific community and therefore did not meet the standards of the Frye test. Anderson, 115 N.M. at 437, 444, 853 P.2d at 139, 146.


A basic understanding of the scientific principles and techniques underlying DNA typing2 is essential in order to understand the legal issues relating to its admissibility. Unless otherwise stated, we derive our scientific explanation of DNA and DNA profiling from testimony given at the Frye hearing, from a report entitled "DNA Technology in Forensic Science," which the National Research Council published in April 1992, and from Government of Virgin Islands v. Penn, 838 F.Supp. 1054, 1057-73 (D.V.I.1993) and State v. Vandebogart, 136 N.H. 365, 616 A.2d 483, 486 (1992).

A. DNA Theory

DNA forensic testing is used to determine the likelihood that a sample of blood, tissue, hair, or sperm came from a given person. DNA is a molecule found in all cells that have a nucleus, including white blood cells, sperm cells, cells surrounding hair roots, and the cells in saliva. DNA provides the genetic blueprint that determines the physical structures and individual characteristics of every living organism. The significant feature of DNA for forensic purposes is that, with the exception of identical twins, no two individuals have identical DNA. Furthermore, because DNA does not vary within a particular individual, a DNA molecule found in one cell will be identical to the DNA found in every other cell of that person's body.

The DNA molecule is shaped like a double helix that resembles a twisted ladder. The "sides" of the ladder are composed of a chain of deoxyribose sugars and phosphates, while the "rungs" consist of a pair of nucleotide bases. The bases are made up of adenine (A), cytosine (C), guanine (G), and thymine (T). According to the "base pair rule," A can only bond with T and G can only bond with C. Thus, the order of the bases on one side of the rung will determine the order on the other side. That is, if one half of the "ladder" had a sequence of bases on its "side" that read "A-G-A-C-T-G," then the complementary strand from the other half of the "ladder" would read "T-C-T-G-A-C." The order in which these base pairs appear on the DNA ladder constitutes the genetic code for the cell. A sequence of base pairs responsible for producing a particular protein is called a "gene." A gene, the basic unit of heredity, consists of a sequence of between 1000 and 2,000,000 nucleotides.

Inheritable characteristics are controlled by pairs of genes, or alleles, that occupy the same sites, or loci, on paired chromosomes. Over 99% of these genes are identical among all human beings. These genes define us as humans, rather than animals, plants, or other forms of life. They account for the many shared characteristics of all human beings. The remaining genes--known as "polymorphic" genes because they vary in form from person to person--account for our unique characteristics as individuals. Many polymorphic genes are known to have definite functions. Some are responsible for the color of our hair or eyes, some for the shape of our body or the type of our blood. Other polymorphic genes, however, appear to have no function whatsoever. These "junk DNA" segments are called "variable number tandem repeats" ("VNTRs") and they typically consist of varying lengths of repeating sequences of base pairs. The site where a particular...

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