State v. Moore

• Decision Date: 01 September 1994
• Docket Number: No. 93-369,93-369
• Citation: 268 Mont. 20,885 P.2d 457
• Parties: , 63 USLW 2399 STATE of Montana, Plaintiff and Respondent, v. Larry T. MOORE, Defendant/Appellant. . Heard
• Court: Montana Supreme Court

Page 457

885 P.2d 457

268 Mont. 20, 63 USLW 2399

STATE of Montana, Plaintiff and Respondent, v. Larry T. MOORE, Defendant/Appellant.

No. 93-369.

Supreme Court of Montana.

Heard Sept. 1, 1994.

Submitted Sept. 13, 1994.

Decided Nov. 22, 1994.

Larry Jent, Williams, Jent & Dockins, Herman A. Watson, III, Bozeman, for appellant.

Joseph P. Mazurek, Atty. Gen., Mark Murphy and Cregg W. Coughlin, Asst. Attys. Gen., Helena, Mike Salvagni, Gallatin County Atty., Robert W. Brown, Sp. Deputy County Atty., Bozeman, for respondent.

NELSON, Justice.

Defendant Larry Moore was charged with deliberate homicide in violation of § 45-5-102(1)(a), MCA, and two counts of tampering with or fabricating physical evidence, in violation of § 45-7-207(1)(a) and (b), MCA. The District Court severed the tampering charges, and Moore was tried before a jury on the deliberate homicide charge in the Eighteenth Judicial District Court, Gallatin County, on October 22, 1992 through November 17, 1992. The jury returned a guilty verdict on November 19, 1992. At sentencing, the District Court dismissed sua sponte the two counts of tampering with or fabricating evidence. Moore appeals his conviction of deliberate homicide. We affirm.

ISSUES

We state the issues on appeal as follows:

1. Whether the District Court erred in allowing the introduction of the DNA analysis evidence after it had excluded the statistical evidence relating to the DNA testing?

2. Whether the District Court erred in admitting the results of DNA tests performed on the muscle tissue found in Moore's camper?

3. Whether the District Court erred in admitting the PCR results performed on brain tissue discovered inside Moore's camper?

4. Whether the District Court erred in denying Moore's motion to suppress a statement he made to Sgt. Burns while being transported in a patrol car?

5. Whether the District Court erred in denying Moore's motions for a change of venue and motion for individual voir dire on the issue of pretrial publicity?

6. Whether the District Court erred when it denied Moore's motion for a new trial on claims of juror misconduct?

7. Whether the District Court erred when it prohibited Moore from impeaching the verdict with juror testimony?

8. Whether the District Court erred when it denied Moore's motion for a judgment of acquittal alleging there was insufficient evidence to convict him of deliberate homicide?

9. Whether Moore was denied his right to a speedy trial?

FACTUAL BACKGROUND

Larry Moore was charged with deliberate homicide, following the disappearance of Brad Brisbin. Brisbin, a West Yellowstone restaurant owner, was last seen November 9, 1990. Rene Brisbin, Brisbin's wife, testified that her husband told her that Moore had called him on the morning of November 9th, and asked Brisbin to meet him at Bair's truckstop because he had sold his pickup and camper and needed a ride back to West Yellowstone.

Brisbin went to the high school where he was employed as a part-time teacher. He told the principal that he needed the day off to deal with a screwed up friend. Two people testified that they saw Brisbin driving up Gallatin Canyon the morning of November 9th. Both testified they saw nothing unusual with Brisbin's driving. Brisbin has not been seen since the morning of November 9, 1990.

That afternoon, Moore drove his pickup with his camper back to West Yellowstone. Shortly before 1:00 p.m. on November 9, 1990, Moore called his construction shop and asked Jerry Hillier, one of Moore's employees, to warm up the backhoe. Moore arrived at the shop at approximately 1:00 p.m., and left the shop with the backhoe at approximately 1:30 p.m. Mr. Hillier testified that he saw the backhoe parked in the construction yard at 3:00 p.m. Mr. Moore, however, did not return to the shop until 5:00 p.m.

That evening Moore began to tell people that Brisbin had climbed into a car on Interstate 90, with a woman driver. Moore's story concerning that morning's events changed considerably over the course of time.

Moore became a suspect in the case, and police obtained a search warrant for his pickup and camper. Investigators found three bullet holes under the interior step. They also found a piece of tissue on a curtain in the camper, a bullet with blood on it, and blood stains, which Moore had attempted to obliterate, throughout the camper.

The police confronted Moore with this evidence, and he began to change his story. Moore eventually told the police that Brisbin had been drinking the morning of November 9th, and was waving a gun around in the back of Moore's camper. Moore struggled to get the gun away from Brisbin and when the gun accidentally discharged, the shot grazed Brisbin's head. Brisbin was bleeding, and Moore went into the truckstop to get some water to clean up the blood. When he returned, Brisbin was not in the camper, but Moore believed he saw Brisbin on the on-ramp of the interstate getting into a red car.

Law enforcement sent the tissue found on the curtain in the camper to the Montana AGTC tested the muscle tissue using GM/KM analysis. GM/KM markers are an inherited variation of antibody molecules found in blood serum, human tissue and body fluids, which have a significant variation between populations so that, for instance, some combinations of markers are only found in the Caucasian population, and some in the Afro-American population. GM and KM markers have been used since the 1960's to identify and individualize human blood for forensic applications. The results of the GM/KM analysis confirmed that the muscle tissue was human and the tissue was consistent with having come from the biological father of Brisbin's children.

                State Crime Lab, which determined that the tissue was of human origin.   The State Crime Lab divided the tissue into three pieces:  one portion was sent to Cellmark Diagnostics (Cellmark), one to Analytic Genetic Testing Center (AGTC), and the State Crime Lab retained one portion.   Cellmark, a laboratory which performs deoxyribonucleic acid (DNA) analysis, conducted restriction fragment length polymorphism analysis (RFLP) typing on DNA extracted from the muscle tissue
                

While examining blood stains located on the underside of the interior step board, which had been removed from Moore's camper, a forensic scientist at the Montana State Crime Lab found a small piece of tissue. The tissue was determined to be cerebellum tissue, which is located at the base of the brain, under the skull bone. The State Crime Lab embedded the brain tissue in a paraffin block and sent it to Dr. Cosette Wheeler, at the University of New Mexico Cancer Center, who extracted DNA from the tissue. Dr. Wheeler then sent the processed tissue to AGTC which conducted polymerase chain reaction (PCR) analysis on the sample tissue. AGTC also conducted PCR analysis on members of the Brisbin family and concluded that the tissue could not be excluded as having come from the biological father of the Brisbin children.

Moore was charged by information on December 17, 1990 with two counts of tampering with or fabricating physical evidence and one count of deliberate homicide. Upon Moore's motion, the District Court severed the tampering with or fabricating physical evidence charges. A jury trial was held October 22 through November 17, 1992, and Moore was found guilty of deliberate homicide. Moore appeals this conviction. Additional facts will be presented as is necessary for the discussion of the issues.

DNA PROFILING ISSUES

The first three issues we consider on appeal raise questions concerning DNA profiling. This case presents the first instance in Montana that forensic DNA analysis evidence has been introduced in a criminal trial which has reached this Court on appeal. Therefore, before we begin analysis of the legal principles involved in those issues, it is necessary to set out a brief introduction to the basic theory of DNA analysis. The discussion of DNA and RFLP analysis is derived from the following sources: testimony at the admissibility hearing and trial, United States v. Jakobetz (2nd Cir.1992), 955 F.2d 786, cert. denied --- U.S. ----, 113 S.Ct. 104, 121 L.Ed.2d 63; Commonwealth v. Curnin (1991), 409 Mass. 218, 565 N.E.2d 440; People v. Axell (2 Dist.1991), 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411; United States v. Yee, 134 F.R.D. 161 (Ohio 1991).

Introduction

DNA is a fundamental material which determines the genetic properties of all living things. All nucleated cells of every human being contain DNA, and every cell of a particular individual contains the same configuration of DNA. The significance of DNA for forensic purposes is that, with the exception of identical twins, no two individuals have identical DNA. Another important fundamental aspect of human genetics is that, except for unusual but recognized occurrences of mutation, offspring inherit genes from their parents, receiving one-half from the mother and one-half from the father.

The DNA molecule is composed of a long double helix, which looks like a twisted ladder. The sides of the ladder are made up of alternating units of phosphate and sugar. Attached to the sides of the ladder are the rungs, which are made up of four types of organic bases: adenine, guanine, cytosine, and thymine. Due to their chemical compositions, adenine will only bond with thymine, and cytosine will only bond with guanine. Thus, the bases on one side of the rung will determine the order on the other side. For the purpose of DNA profiling, these base pairs are the critical components of the ladder. It is the order or sequence of the base pairs (the rungs) that determines the genetic traits of an individual life form and each human being. A specific sequence of base pairs that is responsible for a particular trait is called a gene.

Genetically, humans are more alike than dissimilar. Approximately 99 percent of human DNA molecules, i.e., base pair sequences, are the same, creating such shared features as arms...