State v. Johnson

• Decision Date: 02 June 1995
• Docket Number: CA-CR,No. 2,2
• Citation: 905 P.2d 1002,183 Ariz. 623
• Parties: The STATE of Arizona, Appellee, v. Robert Wayne JOHNSON, Appellant. 92-1007.
• Court: Arizona Court of Appeals

Page 1002

905 P.2d 1002

183 Ariz. 623

The STATE of Arizona, Appellee, v. Robert Wayne JOHNSON, Appellant.

No. 2 CA-CR 92-1007.

Court of Appeals of Arizona Division 2, Department B.

June 2, 1995.

As Corrected June 7, 1995.

Review Granted on issue A and

Denied on other issues Nov. 21, 1995.

[183 Ariz. 625] Grant Woods, Atty. Gen. by Paul J. McMurdie and Galen H. Wilkes, Phoenix, for appellee.

Robert Arentz, Sierra Vista, for appellant.

OPINION

ESPINOSA, Presiding Judge.

Appellant Robert Wayne Johnson was convicted by a jury of one count of sexual assault, a class two felony, for which the trial court imposed an aggravated term of fourteen years' imprisonment. Johnson raises a number of issues on appeal, the most significant being whether the trial court erred in admitting expert testimony about the probability of a random match between Johnson's deoxyribonucleic acid (DNA) and DNA extracted from semen stains on the victim's clothing following the assault. Johnson also challenges the peremptory strike of a juror, the admission of hearsay testimony of the victim's statements, the trial court's recalling of a prosecution witness, a limitation on defense argument during summation, and the court's allegedly bolstering the credibility of a witness. Johnson lastly contests the court's consideration of an unrelated arrest as an aggravating factor at his sentencing. For the reasons discussed below, we affirm.

Factual Background

We relate the facts in the light most favorable to upholding the jury's verdict. State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). On July 9, 1991, between 8:20 and 8:30 a.m., M.K. arrived at the restaurant she owned in Sierra Vista. After opening the front door, she went to the back door and unlocked it. As she did so, she heard someone enter behind her. She turned around and saw a black man wearing a gray T-shirt with the word "Army" in black letters on the front. The man grabbed her by the hair and threw her to the floor. M.K. landed on her back with the man on top of her. The man choked her, covered her mouth with one hand, and told her to "shut up." He then forcibly removed M.K.'s pants and had intercourse with her.

The attacker then threatened to kill M.K. if she told anyone and ran out the back door. M.K. pulled up her pants and ran to the front of the restaurant. She saw a small red car drive off, but was unable to see the driver. Using paper towels, M.K., who was menstruating at the time, cleaned herself and wiped up blood that was on the floor. Her boyfriend arrived shortly thereafter and called the police. Sierra Vista police officers responded, interviewed M.K. and took her to the hospital to be examined. At the emergency room, the officers obtained M.K.'s clothing and a police investigator interviewed her again. They later returned to the restaurant and retrieved the paper towels from the trash.

A woman who worked at a check-cashing service frequented by Johnson and located next door to M.K.'s restaurant was friends with Johnson and knew him well. At approximately 7:30 on the morning of the rape, Johnson had visited the woman at her apartment and stayed for about one-half hour. He was wearing a gray T-shirt with the word "Army" across the front. She did not see a vehicle but Johnson had previously given her rides in a red compact car. Later that day, the woman heard a radio broadcast describing a black man who had "assaulted a local business woman." Realizing that the description matched that of Johnson, she called the police. Another witness advised police that around 8:05 that morning, as she drove to work in an area near M.K.'s restaurant, she was followed by a black man wearing a gray shirt that said "Army" who was driving a small red car. The following day, M.K. identified Johnson in a photographic line-up.

The paper towels and M.K.'s shirt were examined and found to contain human blood and semen. Testing performed by Terry Hogan, a criminalist at the Arizona Department of Public Safety (DPS) crime laboratory, showed that DNA extracted from these stains "matched" Johnson's DNA at five different chromosome locations or "alleles." ¹ Hogan calculated the possibility of a random match--two unrelated individuals having the same DNA pattern across five alleles--to be one in 312 million. At trial, Johnson testified he had never owned a gray Army T-shirt and was home at the time of the rape. He also introduced corroborating testimony from members of his wife's family.

Admission of Random Match Evidence

Generally, the decision whether to admit expert testimony is addressed to the sound discretion of the trial court. State v. Neal, 143 Ariz. 93, 692 P.2d 272 (1984). Before the results of a new scientific theory will be admitted into evidence, however, there must be a showing that the theory is generally accepted in the relevant scientific community under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which remains the test in Arizona for the admission of new scientific evidence. State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); State v. Hummert, 183 Ariz. 484, 905 P.2d 493 (App.1994). Johnson contends that the trial court could properly admit expert DNA testimony under Bible only as to the existence of a DNA match, and only to indicate that he could be the source of the suspect sample. He challenges the admission of the random match probability testimony, arguing that 1) it was expressly precluded by Bible, 2) the probability calculation method DPS used in this case lacks general acceptance in the scientific community, and 3) the procedure and underlying genetic database DPS utilized were inadequate to support the expert's probability conclusion.

a. Background

Although, except for identical twins, the overall genetic code of each individual is unique, over 99% of the DNA sequence in any two people is identical. Consequently, because present technology permits only the testing of very limited DNA segments rather than the entire sequence, confirmation of a DNA match is in and of itself meaningless without a scientifically valid estimate (or, at least, an upper bound) of the frequency with which such matches might occur by chance. See Bible, 175 Ariz. at 576-77, 858 P.2d at 1170-71, citing D.H. Kaye, The Admissibility of DNA Testing, 23 Cardozo L.Rev. 353, 354 (1991). "Without the probability assessment, the jury does not know what to make of the fact that the patterns match: the jury does not know whether the [matching] patterns are as common as pictures with two eyes, or as unique as the Mona Lisa." Bible, 175 Ariz. at 587, 858 P.2d at 1190, quoting United States v. Yee, 134 F.R.D. 161, 181 (N.D. Ohio 1991). Thus, the final and crucial step for purposes of forensic DNA comparison is calculating the probability of just how rare, or common, such a match may be.

Several methods are available to scientists to make the calculation, including the "counting method," the "product" or "multiplication rule," and two newer formulas which have been recommended by the National Academy of Sciences' National Research Counsel (NRC), ² called the "ceiling method" and the "modified ceiling method." National Research Council, Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (1992) (hereafter NRC Report). ³ The latter two methods are best understood when compared to the product rule that was examined in Bible.

Under the product rule, each DNA matching band (allele) is presumed to provide statistically independent evidence, and the frequencies of the individual alleles are multiplied together to obtain a frequency of the complete DNA pattern. The process is described in Bible as follows:

Suppose, for example, that a pair of DNA [samples] match on two bands, and that one band reflects an allele found in ten percent of the population and the other an allele found in fifty percent of the population. Applying the product rule, an analyst would conclude that the probability of a coincidental match on both alleles is 0.10 X 0.50 = 0.05, or a five percent probability.

175 Ariz. at 582-83, 858 P.2d at 1185-86, quoting William C. Thompson & Simon Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev. 45, 81-82 (1989).

The product rule was generally unchallenged until 1991 when some members of the scientific community began questioning the calculations derived from this formula. See Bible, 175 Ariz. at 584, 858 P.2d at 1187. Their concern focused primarily on the product rule's failure to account for the possibility of "population substructures," that is, "genetic subgroups which would 'most likely occur along racial and ethnic lines and present significant pockets of genetic variation within the larger population group.' " State v. Sivri, 231 Conn. 115, 157, 646 A.2d 169, 190 (1994), quoting Commonwealth v. Lanigan, 413 Mass. 154, 160-61, 596 N.E.2d 311, 315 (1992) (Lanigan I ). See Richard C. Lewontin & Daniel L. Hartl, Population Genetics in Forensic DNA Typing, 254 Science 1745 (Dec. 20, 1991). This possibility cast doubt on two of the rule's central assumptions: 1) "linkage equilibrium," the theory that particular DNA bands identified by DNA processing "behave independently," and 2) "Hardy- Weinberg equilibrium," which presumes that the members of the racial groups represented in the databases randomly mate within their groups, i.e., without regard to religion, ethnicity, or geography. ⁴ People v. Barney, 8 Cal.App.4th 798, 814, 10 Cal.Rptr.2d 731, 741 (1992). Because the likelihood of correlation between alleles is greater in a substructured population, critics contended that the product rule could produce a frequency estimation much lower than the actual genotype frequency. The following example illustrates their point:

If a population survey of Europe showed that 1...