State v. Futrell, 9210SC286

Citation112 N.C.App. 651, 436 S.E.2d 884
Case DateDecember 07, 1993
CourtCourt of Appeal of North Carolina (US)

Page 884

436 S.E.2d 884
112 N.C.App. 651
STATE of North Carolina,
Eric FUTRELL, Defendant.
No. 9210SC286.
Court of Appeals of North Carolina.
Dec. 7, 1993.

Page 885

[112 N.C.App. 654] Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Valerie B. Spalding, Raleigh, for the State.

John T. Hall, Raleigh, for defendant-appellant.

[112 N.C.App. 655] JOHN, Judge.

Defendant appeals his conviction and sentence on one count of second degree rape and one count of assault on a female. He asserts the trial court erred by: 1) admitting certain fingerprint and DNA evidence; 2) denying his motion to dismiss at the close of all the evidence; and 3) finding duplicitous aggravating factors. We agree in part and remand the charge of second degree rape for resentencing.

At trial, the State's evidence included the following: During the early morning hours of 16 June 1989, Elizabeth D. (the victim), a nineteen year old student sharing an apartment with two female roommates, was awakened by a kiss on her cheek from a male she did not recognize. She felt what she believed to be a knife at her neck, and was told: "[s]hut up, face the wall or I'll kill you." When she turned away from the assailant, he inserted his finger into her vagina and told her to take off her underwear, repeatedly threatening to kill her if she fought with him or failed to comply. After she removed her underwear, the man forced himself between her legs and, still holding the knife in his left hand, had intercourse with her against her will. To stifle her cries, the victim held blankets and a stuffed animal to her face. She estimated the encounter lasted five to ten minutes. Afterwards, the assailant asked if she had any money, but left without taking the $2.00 she offered. The victim looked at her bedside digital clock, which indicated it was 5:43 a.m. She awakened her roommates, telephoned her father, and thereafter contacted the police. An officer drove the victim to the hospital, where a rape kit procedure was performed and a blood sample taken.

A crime scene specialist processed for fingerprints the living room window of the victim's apartment as well as a screen which had been removed, the window having been determined to be the attacker's point of entry. No fingerprints were found on the window glass, but three latent fingerprints

Page 886

were discovered on the screen. Defendant was later fingerprinted, and, upon inquiry at that time, responded there was no reason his fingerprints should be anywhere in or around the victim's apartment. An expert in fingerprint identification, after comparing the latent fingerprints found on the screen with those of defendant, determined two matched.

Several witnesses placed defendant in close proximity to the victim's apartment at or about the time of the assault.

[112 N.C.App. 656] An expert in forensic serology testified blood samples revealed the victim and defendant each were "ABO Type A secretors" in blood classification. A slide of a stain taken from the victim's panties indicated the presence of spermatozoa.

Special Agent Dwight Adams, Ph.D. (Dr. Adams), assigned to the DNA Analysis Unit of the F.B.I. Laboratory in Washington, D.C., testified as an expert in forensic DNA analysis. He explained in detail the F.B.I. procedure in testing and analyzing DNA samples, as well as quality controls in place at the F.B.I. Laboratory. Using vaginal swabs from the victim, a cutting from her panties, and blood samples from both the victim and defendant, he examined four "autorads," each representing a different genetic locus. In all four, he concluded DNA from semen found on the victim's panties matched DNA from defendant's blood sample. Therefore, defendant could not be eliminated as a possible source of the semen. Dr. Adams then compared DNA from defendant's blood sample and the semen to the F.B.I.'s black population data base and concluded the probability of finding a random match of the DNA in the semen and in defendant's blood was approximately 1 in 2.7 million individuals.

Pertinent portions of defendant's evidence indicated the following: Dr. Moses Schanfield (Dr. Schanfield), an expert in DNA analysis, was critical of the F.B.I. statistical methodology, stating it was hard to derive and justify mathematically. According to Dr. Schanfield, weaknesses in the F.B.I. procedure lead to distortions in results, particularly because of the small size and unknown details of the data base it utilizes. He also explained the principle of Hardy-Weinberg equilibrium and the use of the product rule in calculating the probability of a coincidental match in DNA material.

On cross-examination, Dr. Schanfield acknowledged he recalculated the frequency statistics on the matches demonstrated by the four F.B.I. "autorads," ultimately determining nothing excluded defendant as a possible donor of the semen found on the victim's underwear. However, his calculation determined the chance of finding another black male in the population with the same four profiles to be 1 in 237,000.

Dr. Ted Emigh (Dr. Emigh), associate faculty member in the Department of Genetics at North Carolina State University, testified as an expert in statistics and population genetics on defendant's behalf. Based on the statistical theory involved in quantifying the [112 N.C.App. 657] product rule used by the F.B.I. once its laboratory has declared a "match" of DNA fragments, the data base used by the F.B.I. in defendant's case was not, in Dr. Emigh's opinion, random but rather "haphazard" because the sample size was too small. To calculate accurate probability when an individual is from a particular location, he stated, it is necessary to collect blood samples representative of that community for the data base--as opposed to samples from the "whole population." With a 300-person data base, for example, he contended it was impermissible to use the product rule in statistical calculations, and that a sample size of several thousand would be needed for valid computations. He further alleged the F.B.I. had neither demonstrated the lack of substructuring nor satisfactorily and scientifically established the existence of Hardy-Weinberg equilibrium in their data base.

Defendant testified on his own behalf and, in detailing his activities on the morning in question, denied raping the victim and stated he did not touch the living room window or its screen on 16 June 1989. Through his testimony and that of other witnesses, defendant presented evidence tending to show alibi and an earlier occasion

Page 887

on which he might have handled the window screen.

In rebuttal by the prosecution, Dr. Bruce Weir (Dr. Weir), professor of statistics and genetics at North Carolina State University, testified as an expert in statistics and population genetics. Having previously done consulting work with the F.B.I. and with access to its data base, he estimated the frequency of defendant's DNA profile in the U.S. black population to be 1 in 2.8 million. While acknowledging the F.B.I. data base is small, Dr. Weir explained he included in his calculation a statistical mechanism to accommodate that fact. He stated the method by which the F.B.I. gathered and applied its data base to defendant's case "is certainly accepted by the people who have had opportunity to examine the data."


Defendant first contends the trial court erred by denying his motion to suppress and overruling his objections to fingerprint evidence. He argues the State failed to present substantial evidence of circumstances from which a jury could find defendant's fingerprints were impressed on the window screen at the time the crime was committed. See State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975) (emphasis added). However, whether fingerprints [112 N.C.App. 658] could have been impressed only at the time of a particular crime is ordinarily a question of fact to be determined by the jury, "not a question of law to be determined by the court prior to admission of the fingerprint evidence." State v. Bost, 33 N.C.App. 673, 677, 236 S.E.2d 296, 298, disc. review denied, 293 N.C. 254, 237 S.E.2d 537 (1977). As our Supreme Court stated in State v. Irick:

The only limitation this Court has imposed on the admissibility of fingerprint comparisons to prove the identity of the perpetrator of a crime is a requirement that the testimony be given by an expert in fingerprint identification. We have repeatedly said that the testimony of a fingerprint expert is "competent as evidence tending to show that defendant was present when the crime was committed and that he at least participated in its commission."

The probative force, not the admissibility, of a correspondence of fingerprints found at the crime scene with those of the accused, depends on whether the fingerprints could have been impressed only at the time the crime was perpetrated. Ordinarily, the question of whether the fingerprints could have been impressed only at the time the crime was committed is a question of fact for the jury. It is not a question of law to be determined by the court prior to the admission of fingerprint evidence.

State v. Irick, 291 N.C. 480, 488-89, 231 S.E.2d 833, 839-40 (1977) (citations omitted) (quoting State v. Tew, 234 N.C. 612, 617, 68 S.E.2d 291, 295 (1951)).

Therefore, when a properly qualified fingerprint expert offers evidence prints found at a crime scene are those of the individual charged with the offense, the expert's testimony is relevant to show the accused was present at the scene on some occasion. Bost, 33 N.C.App. at 676, 236 S.E.2d at 298. However, the probative value of such evidence upon the question of the accused's guilt "depends upon the strength of evidence of circumstances from which the jury might find that the fingerprints could have been impressed only at the time the crime was committed." Id. The question of the "substantiality" of the fingerprint evidence may be considered later by the...

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