State v. Lyons

• Decision Date: 11 October 1996
• Parties: , 65 USLW 2335 STATE of Oregon, Respondent on Review, v. Robert Wallace LYONS, Petitioner on Review. CC 10-89-08273; CA A68348; SC S41261.
• Court: Oregon Supreme Court

Page 802

924 P.2d 802

324 Or. 256, 65 USLW 2335

STATE of Oregon, Respondent on Review, v. Robert Wallace LYONS, Petitioner on Review.

CC 10-89-08273; CA A68348; SC S41261.

Supreme Court of Oregon.

Argued and Submitted Jan. 10, 1995.

Reassigned July 8, 1996.

Decided Oct. 11, 1996.

Sally L. Avera, Public Defender, Salem, argued the cause on behalf of petitioner on review. With her on the petition was David K. Allen, Deputy Public Defender.

Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause on behalf of respondent on review. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before, CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^*

VAN HOOMISSEN, Justice.

Defendant appeals his convictions for aggravated murder, murder, and burglary in the first degree. ORS 163.095; ORS 163.115; ORS 164.225. He contends that the trial court erred by admitting the state's polymerase chain reaction (PCR)-based deoxyribonucleic acid (DNA) evidence and in failing to disclose to the defense nonexculpatory material contained in the mental health records of a person who, defendant claims, committed the crimes. The Court of Appeals affirmed. State v. Lyons, 124 Or.App. 598, 863 P.2d 1303 (1993). We allowed review to decide an important issue of first impression in this court, namely, the admissibility of PCR-based DNA evidence. For the reasons explained below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Because a jury convicted defendant, we state the facts in the light most favorable to the state. See State v. Langley, 314 Or. 247, 249, 839 P.2d 692 (1992) (stating principle).

In August 1989, defendant moved to the Stage Stop Inn motel in Eugene. The victim, Stabenow, also lived at the motel. Stabenow's mother, Jones, managed the motel and lived nearby. Stabenow's brother, Elliot, lived at the motel with Stemm, his girlfriend. On September 22, Stabenow joined Elliot and Stemm for dinner in Elliot's room. An hour after dinner, defendant arrived at Elliot's room with a bottle of whiskey. At Shortly before noon, defendant asked Stemm if she or Elliot had seen his wallet. He then told Jones that he had left his wallet in Stabenow's room. Jones telephoned Stabenow's room, but there was no answer. At about 3:00 p.m., Jones used her master key to gain entry to Stabenow's room. Stabenow's body was on the bed. Blood was coming from her mouth, and there were bite marks on her body. Jones asked Elliot to call 911 for help. A paramedic arrived, but he could not resuscitate Stabenow. The police found defendant's wallet under Stabenow's bed. Defendant admitted being in the victim's room on the night of the homicide and dropping his wallet there. However, he denied engaging in sexual activity, biting or killing the victim.

about 11:30 p.m., Elliot told Stabenow that she had had enough to drink. Stabenow became angry and left. Defendant and Elliot left the motel. At about 2:00 a.m., they returned, and defendant went to his room.

Bekkedahl, an Oregon State Police criminalist, found feces on the victim's legs, on her buttocks, and on the bed. Her clothing was stained with blood, and there were numerous bite marks on her body from her shoulder down to her leg. She had a black eye, and her body was bruised in many places. She had been strangled to death. Bekkedahl removed loose hairs from the victim's body, her clothing, and her bed. He also took saliva samples from the bite marks on the victim's body for testing. Later, while defendant was in custody, samples of his hair were obtained for comparison. Bekkedahl tested the hairs under a microscope. He concluded that the morphology (shape) of five of the hairs taken from the victim's body was consistent with that of defendant's pubic hairs. Bekkedahl tested the saliva sample taken from bite marks on the victim's body. He determined that a person with type-A blood, who secretes A antigen into body fluids other than blood, left the saliva residue in the bite marks. According to Bekkedahl, 32 percent of the population secrete the type-A antigen into body fluids other than blood. Bekkedahl tested a sample of defendant's blood and determined that he is a type-A secretor.

Levine, a forensic odontologist, examined the bite marks on the victim's body. He compared the marks with wax models that had been made from defendant's teeth. He testified that four of the marks on the victim's body could be compared. Levine had no doubt that the wax models were made from the same person whose teeth marks appeared on the victim's body.

Blake, a forensic evidence consultant, conducted PCR-based DNA tests on the hair and saliva samples that had been taken from the victim's body and from defendant, a Caucasian. Blake testified at trial, over defendant's objection, that defendant had the same gene type as the donor of two of the hairs removed from the victim's body and that that gene type occurs in about two to three percent of the Caucasian population. Blake further testified that the victim had a different gene type. Testing of the saliva samples was inconclusive.

The trial court conducted a pre-trial hearing on the admissibility of the state's proffered PCR-based DNA evidence. See State v. Brown, 297 Or. 404, 687 P.2d 751 (1984) (adopting standard for admissibility of scientific evidence). ¹ The court stated the question as follows "May the results of a scientific procedure known as 'PCR-based DQ Alpha typing' be admitted to show that the Defendant falls within a limited population which cannot be excluded as the potential donor of certain hair samples found at the scene of the crime."

Six experts testified for the state and one testified for the defense. The court concluded that the state's PCR-based DNA evidence was relevant under OEC 401, ² helpful to the trier of fact under OEC 702, ³ and not excludable under OEC 403. ⁴ Accordingly, the court ruled that the evidence was admissible. The Court of Appeals affirmed. Notwithstanding the usual deference to trial court discretion, State v. O'Key, 321 Or. 285, 320, 899 P.2d 663 (1995), we review that ruling on the admissibility of scientific evidence de novo. ⁵ Id.; Plemel v. Walter, 303 Or. 262, 277-78, 735 P.2d 1209 (1987); Brown, 297 Or. at 422, 687 P.2d 751.

I. ADMISSIBILITY OF PCR-BASED DNA EVIDENCE

Defendant contends that the trial court erred by admitting PCR-based DNA evidence. He argues that PCR-based DNA evidence is scientific ⁶ evidence that does not meet the Brown standard of admissibility. Defendant does not challenge the general acceptance of DNA testing. ⁷ He concedes "The theoretical science behind the identification of DNA by Alpha Gene and PCR method is not challenged. The theory is fine. It's the forensic application that [is] the problem." (Emphasis added.)

                that generally forensic DNA evidence is admissible, if it [324 Or. 262] is supported by an adequate evidential base. 8  Defendant also concedes that the PCR method is generally accepted among scientists.  Rather, he argues only that the reliability of the PCR method has not been established for forensic purposes.  During oral argument in this court, defendant's counsel stated
                

Defendant asserts that there is a lack of available "specialized literature" about the PCR method and that PCR replication is so complicated that it would be very difficult, if not impossible, for a jury to understand and apply. He also foresees a potential "battle of the experts" that would not be helpful to the jury. Defendant also argues that the probative value of PCR-based DNA evidence is substantially outweighed by the danger of unfair prejudice and, therefore, it should be excluded under OEC 403. Last, defendant argues that (with perhaps one exception) the state's experts all come from the company (Cetus) that developed the PCR method and the particular test used in this case, suggesting that their testimony should be discounted because of their possible interest in promoting their present or former employer's interests.

Before assessing defendant's arguments, a brief overview of basic genetic principles and of the PCR replication method that was used in this case is warranted. The material that follows is taken from the quoted sources and also from the authorities cited below. ⁹

PRINCIPLES OF DNA

DNA is the "basic material of heredity" that determines the biological characteristics of the individual. JoAnn M. Longobardi, DNA Fingerprinting and the Need for a National Data Base, 17 Fordham Urb.L.J. 323, 325-26 (1989). "DNA is a long double-stranded molecule found in the chromosomes carried in nuclei of all cells." Jonathan J. Koehler, DNA Matches and Statistics: Important Questions, Surprising Answers, 76 Judicature 222, 223 (1993). Each of the 46 human chromosomes contains the DNA for thousands of individual genes, the units of heredity. Inside the nucleus, six feet of DNA are packaged into 23 pairs of chromosomes (one chromosome in each pair coming from each parent). Each cell in the human body (except red blood cells) contains the entire human genome--all the genetic information necessary to build a human being. For forensic purposes, DNA identification is based on the accepted fact that, except for identical twins, no two persons share the same genetic configurations, i.e., each person's DNA is unique. See United States v. Jakobetz, 955 F.2d 786, 791-800 (2d Cir.1992), cert. den., 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992) (explaining DNA; affirming admissibility of DNA evidence under FRE "relevancy" standard); United States v. Chischilly, 30 F.3d 1144, 1152-58 (9th Cir.1994), cert. den., --- U.S. ----, 115 S.Ct. 946, 130 L.Ed.2d 890 (1995) (affirming admissibility of RFLP DNA evidence under Daubert and FRE 702).

"Approximately 99.5% of the DNA code is the same for all people. That is what makes us human beings rather than turnips or porcupines. It is only the other 0.5% that is...