State v. Lyons

• Decision Date: 17 November 1993
• Citation: 124 Or.App. 598,863 P.2d 1303
• Parties: , 62 USLW 2419 STATE of Oregon, Respondent, v. Robert Wallace LYONS, Appellant. 10-89-08273; CA A68348.
• Court: Oregon Court of Appeals

Page 1303

863 P.2d 1303

124 Or.App. 598, 62 USLW 2419

STATE of Oregon, Respondent, v. Robert Wallace LYONS, Appellant.

10-89-08273; CA A68348.

Court of Appeals of Oregon.

Argued and Submitted Nov. 30, 1992.

Decided Nov. 17, 1993.

Sally L. Avera, Public Defender, argued the cause and filed the brief for appellant.

Janet A. Klapstein, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before ROSSMAN, P.J., and DE MUNIZ and LEESON, ^* JJ.

De MUNIZ, Judge.

A jury found defendant guilty of aggravated murder, murder, sexual abuse in the first degree and burglary in the first degree. ORS 163.095; ORS 163.115; ORS 163.427; ORS 164.225. The court merged the murder convictions for sentencing purposes and sentenced defendant to life in prison without the possibility of parole on the aggravated murder charge. On the burglary charge, the court entered a conviction and sentenced defendant to a term of 20 years, to be served concurrently.

Defendant makes three assignments of error. First, he contends that the court erred by admitting the DNA ¹ evidence that linked him to the murder scene. Second, he contends that the court erred by failing to disclose nonexculpatory material contained in the mental health records of a person who defendant claims committed the crimes. Third, defendant contends that the court erred by merging the murder charges for sentencing purposes only and by refusing to merge the burglary charge with the aggravated murder conviction.

Because a jury convicted defendant, we state the facts in the light most favorable to the state. State v. Langley, 314 Or. 247, 249, 839 P.2d 692 (1992); State v. Cervantes, 118 Or.App. 429, 431, 848 P.2d 118, rev. allowed, 317 Or. 485, 858 P.2d 875 (1993).

In August, 1989, defendant moved into Room 27 at the Stage Stop Inn in Eugene. The victim, Lori Stabenow, and her five-year-old daughter lived in Room 5. Stabenow's mother, Sharon Jones, managed the motel and lived in an apartment next to it. Stabenow's brother, Leon Elliot, lived in Room 34 with his girlfriend, Sandra Stemm, and his daughter.

On September 22, Stabenow and her daughter joined Elliot and Stemm for a pizza dinner in Elliot's room. After dinner, Stemm left to relieve Jones at the motel office. An hour later, defendant arrived at Elliot's room with a half gallon bottle of whiskey. He asked Elliot and Stabenow if they wanted to have a few drinks. They drank and talked for several hours. Stemm returned shortly after 10:00 p.m. Around 11:30 p.m., Elliot told Stabenow that she had had enough to drink and that he thought she should not have any more. Stabenow became angry and left with her daughter.

Stabenow's daughter went to Jones' room and asked if she could spend the night, because her mother had been drinking. Jones took the girl in, but Stemm retrieved the girl and took her back to Elliot's room. Defendant and Elliot left the motel, went elsewhere and drank some more. They returned around 2:00 a.m., and Elliot watched as defendant departed in the direction of his room.

Shortly before noon, defendant went to Elliot's room. He asked Stemm if she or Elliot had seen his wallet. Then, he approached Jones, who was working in her yard. He told her that he had left his wallet in Stabenow's room and asked Jones if she knew whether Stabenow was awake. She did not know. Jones telephoned Stabenow's room, but there was no answer. Around 3:00 p.m., she went to Elliot's room and asked Stemm to go with her to Stabenow's room. They went to Stabenow's room and knocked on the door, but no one answered. They noticed that the molding was separated about a quarter of an inch from the door frame. Jones used her master key and opened the door.

Stabenow was lying on the bed with only a "wrap" around her neck. Blood was coming from her mouth and there were bite marks on her body. Jones closed the door and ran screaming to Elliot's room. Elliot went to Stabenow's room and broke the door open. He covered her body with the bedspread and called 911 to summon help. A paramedic arrived and examined the victim. She was not breathing, had no pulse and her body was cold. The paramedic concluded that he could not resuscitate her.

The police soon arrived to investigate. They found defendant's wallet under the foot of Stabenow's bed. Bekkedahl, a criminalist for the Oregon State Police, found feces on the victim's legs, on her buttocks and on the bed beneath her body. Her clothing was stained with blood, and there were numerous bite marks from her shoulder down to her leg. She had a black eye and her body was bruised in many places. Her anus and rectum were torn, apparently by an object the size of a fist. She had been strangled to death.

Bekkedahl removed loose hairs from the victim's body, her clothing, and her bed. He also took samples of saliva from the bite marks for testing. While defendant was in custody, samples of his hair were taken 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 samples 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. ² Bekkedahl tested a sample of defendant's blood and determined that he is a type-A secretor.

Forensic odontologist Levine 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 some of the marks on the victim's body were not suitable for comparison, but four 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, performed DNA tests on the hair and saliva samples that had been removed from the victim's body. He used a method known as polymerase chain reaction (PCR) to perform the tests. He also tested samples of the victim's hair and defendant's hair using the PCR method. Blake determined that defendant had the same gene type as the donor of two of the hairs removed from the victim's body. He testified that that gene type occurs in approximately 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.

In his first assignment, defendant contends that forensic DNA evidence developed by the PCR method is inadmissible, because it is not sufficiently reliable and is too complex and confusing to be probative and helpful to the trier of fact. In State v. Futch, 123 Or.App. 176, 186, 860 P.2d 264 (1993), we analyzed forensic DNA evidence under OEC 401, OEC 702 and OEC 403 by applying factors utilized by the Supreme Court in State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and concluded that forensic DNA evidence in general was admissible. We also concluded that the particular DNA evidence in that case was admissible. 123 Or.App. at 190, 860 P.2d 264. Here we determine the admissibility of forensic DNA evidence produced by the PCR method.

We begin with a very basic discussion of DNA. ³ DNA carries the hereditary information in all living things. In most organisms, including humans, DNA is located in structures called chromosomes, which are found in the nuclei of cells. ⁴ DNA is composed of building blocks called nucleotides. Each nucleotide has three components: a sugar molecule (deoxyribose), a molecule of phosphoric acid, and a nitrogenous base. The phosphoric acid and sugar component of each nucleotide is the same, but the nitrogenous base may be one of four different kinds: adenine, cytosine, guanine and thymine, which are usually abbreviated A, C, G and T.

A DNA molecule is composed of two strands of nucleotides, and the strands are held together by hydrogen bonds and structural proteins. A DNA molecule is extraordinarily long, and is folded upon itself to form a chromosome. If the DNA strands in a chromosome are unfolded, the two strands appear parallel to each other and are twisted into a double helix. The double helix is similar to a spiral staircase or ladder. At the side of each step is a single nucleotide. On the opposite side of the step is another nucleotide. Thus, the nucleotides in a DNA molecule occur in pairs.

The nitrogenous bases of a nucleotide pair are complementary: cytosine is always paired with guanine, and adenine is always paired with thymine. Consequently, if the sequence of bases on one strand is known, then the sequence of bases on the complementary strand may be deduced. ⁵ The complementarity of base pairs along the two DNA strands provides the mechanism by which DNA is replicated during cell division. It also provides the mechanism for translating the DNA code into a series of amino acids, the building blocks of protein, which are, in turn, the chemical manifestations of heredity. ⁶

A series of nucleotides that codes a particular protein is called a gene. Each chromosome may contain several thousand genes. Not all of the DNA in a chromosome codes for proteins; some nucleotide sequences between genes on a chromosome are non-coding. Because an organism has a tremendous number of genes, and each gene contains a tremendous number of nucleotides, the potential for genetic variation between individuals is so great that, except for identical twins, each individual is genetically distinct. DNA typing, regardless of the method, depends on this great variation.

Next, we briefly describe the PCR replication method. ⁷ The complementary strands of DNA in a chromosome are joined by hydrogen bonds. Hydrogen bonds are relatively weak and can be broken by heating. The two complementary strands can thus be separated or "denatured" by...