State v. Passino

• Decision Date: 18 March 1994
• Docket Number: No. 92-078,92-078
• Citation: 161 Vt. 515,640 A.2d 547
• Parties: STATE of Vermont v. Arthur PASSINO.
• Court: Vermont Supreme Court

Page 547

640 A.2d 547

161 Vt. 515

STATE of Vermont v.Arthur PASSINO.

No. 92-078.

Supreme Court of Vermont.

March 18, 1994.

Motion for Reargument Denied April 8, 1994.

James A. Hughes, Franklin County Deputy State's Atty., St. Albans, for plaintiff-appellee.

Robert Appel, Defender Gen. and Henry Hinton, Appellate Atty., Montpelier, for defendant-appellant.

Arthur Passino, pro se.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

DefendantArthur Passino appeals his conviction for involuntary manslaughter.He alleges that the trial court denied him his constitutional right to present evidence and confront witnesses against him.We agree and reverse.

On the evening of January 20, 1990, Shirley LeClerc was found dead in a vacant apartment, across the hall from the apartment she shared with her husband in Enosburg.She had been severely beaten and strangled, and evidence indicated that the victim had engaged in sex before her death.Soon after her husband, Urbain LeClerc, found the body, defendant was discovered in an adjacent apartment.After speaking with LeClerc, defendant went to his mother's nearby home where he showered and, uncharacteristically, put several articles of clothing through the washing machine, including a pair of blue pants he had been wearing that day.

Defendant was charged with felony murder, allegedly having killed the victim with malice aforethought during a sexual assault.The nature of the crime made it likely that the perpetrator's clothes would have come in contact with the victim's blood.Pursuant to warrant, police seized the pants to conduct tests on stains in the material.A state police chemist identified four distinct stains containing human blood, which were cut from the pants and individually marked.

These blood samples and other evidence were forwarded to the Federal Bureau of Investigation in Washington, D.C., along with hair, blood and other body fluid specimens taken from the victim, defendant, and the victim's husband.The FBI subjected the samples to DNA profiling analysis, to determine whether any of the evidence could be traced to the individuals tested.Tests on semen found on the victim showed defendant to be the source, and positively excluded the husband.The FBI tested two of the four blood stains taken from defendant's pants; one produced inconclusive results, but the victim was positively excluded as the source of the other.

As required by discovery rules, the State notified the defense of its intent to use the DNA evidence at trial to establish that defendant was the source of the semen found on the victim's body.In response, defendant filed a motion in limine to preclude counsel from informing the jury of the DNA results in opening statements, contending that it was "unlikely that the DNA evidence for inclusion [will] be admitted."The court heard testimony on the DNA evidence in four days of hearings held on May 6-9, 1991.

To support introduction of the DNA profiling evidence identifying defendant as the source of semen, the State offered testimony from three expert witnesses: Dr. Dwight Adams, an FBI biologist with expertise in DNA analysis of forensic samples and the application of the FBI's methods in population genetics; Dr. Eric Buel, a forensic chemist with the Vermont State Police also qualified as an expert in DNA analysis and its application to population genetics; and Dr. Charles Kilpatrick, a professor of zoology at the University of Vermont and expert in population genetics and DNA profiling.The witnesses offered detailed testimony about the technique of DNA profiling and the procedures employed and results obtained in this particular case.¹

In essence, DNA profiling seeks to determine whether genetic material unique to an unknown source, such as evidence from a crime scene, matches genetic material from a known source, thereby linking the known source to the crime.The process comprises two stages.In the first stage, an x-ray image, or "autorad," of the DNA from the known and unknown sources is produced.If the DNA from those sources does not match, then the test is either deemed inconclusive or the known source is positively excluded as the source of the unknown DNA.If the DNA matches, the profiling proceeds to the second stage, wherein a statistical analysis of population frequencies is performed to determine that the known and unknown DNA match because they came from the same person, not because two unrelated individuals happen to have some identical DNA.

In summarizing its position regarding admissibility of the DNA test results purportedly showing defendant as the source of semen, the State argued, and the record supports, that the only issue was the validity of the second stage of the DNA profiling, the FBI's statistical analysis.In its argument on the DNA admissibility, the defense asserted that "D.N.A. evidence for inclusion, as offered in this case, is not proper evidence and the population frequency analysis is not proper evidence."Defense counsel also argued, "It's our position that [V.R.E.] 401 and 403 are violated by receiving D.N.A. evidence for inclusion.Exclusion is a substantially different matter.Certainly when the exclusions are clear and unequivocal."

In the suppression hearing, Dr. Adams testified that "an exclusion is absolute," in that the known source could not be the source of a particular body fluid.He also reported that of two blood samples taken from defendant's pants, one produced no DNA results, and the other showed "no DNA profiles which resembled the victim's blood whatsoever."In corroboration of this testimony, Dr. Kilpatrick opined that the one bloodstain that gave a result matched defendant's DNA, effectively ruling out the victim as the source of the blood.

The court's order excluding the DNA evidence expressly acknowledged that defendant contested only the FBI's probability calculations, which purportedly ruled out a coincidence in the match between defendant and semen found on the victim's body.The discussion was confined to the composition of the comparison database and the assumptions made about defendant's ancestry, two critical components of an accurate probability assessment.The court found the FBI probability analysis flawed, and held that "[b]ecause the probability estimates are such an integral part of the FBI's DNA profiling, the test results in this case must be suppressed," and added that results showing a match are not admissible without reliable statistics.

On June 4, 1991, the eighth day of a sixteen-day trial, the defense moved for compensation and expenses for the testimony of Dr. Kilpatrick as an expert witness.This came the day after the court decided to admit defendant's pants into evidence.In argument on the motion held that same day, defense counsel explained that Dr. Kilpatrick's testimony was needed to introduce the test results that had excluded the victim as the source of blood taken from one of the stains on defendant's pants.The State vigorously protested presentation of any DNA evidence.The prosecution pointed to the court's ruling in limine, the lack of requisite advance notice, and the fact that the defense counsel had made every effort to cull from the venire anyone with knowledge of DNA testing.

The defense countered that the motion in limine and hearings on the DNA evidence dealt only with the propriety of DNA evidence purportedly including defendant as the source of semen; the court's order did not preclude tests excluding the victim as the source of blood.The defense noted that, despite the lack of formal notice, Dr. Kilpatrick was listed as a State's witness, and had testified at length in the in limine hearing on the DNA evidence.The defense contended that a fair trial hinged on the ability to present this exculpatory evidence.The motion was denied, and defendant was precluded from presenting the exculpatory DNA evidence.

Later in the trial, the State introduced the results of traditional blood serology tests conducted on one of the blood stains not subjected to DNA analysis.The spot tested as type "A," the victim's blood type.Defendant attempted to cast doubt on the results by suggesting that the bloodstain could in fact have been "AB,"defendant's blood type.He was precluded from introducing the DNA evidence that excluded the victim as the source of the blood in the other stain.

The defense contended that defendant and the victim had engaged in consensual intercourse, and that the victim's husband had killed his wife in a jealous rage after discovering her affair with defendant.After three days of deliberation, the jury delivered a verdict of guilty on the lesser-included offense of involuntary manslaughter.On appeal, defendant contends he deserves a new trial because the trial court denied him his constitutional right to present the exculpatory DNA evidence.

The trial court excluded the DNA evidence as a sanction for failure to notify the State of the intended use of the scientific evidence and expert witnesses, Drs. Kilpatrick and Buel.Rule 16.1 of the Rules of Criminal Procedure empowers the trial court to require the defendant to disclose proposed scientific or expert evidence.V.R.Cr.P. 16.1(b).The rule also provides that, "[o]n request of the prosecuting attorney, the defendant's attorney shall disclose the names and addresses of persons whom he intends to call as witnesses at the trial."V.R.Cr.P. 16.1(c).In this context, Rule 16.1 strives to ensure the prosecution ample opportunity for pretrial preparation to respond to evidence involving medical or scientific expertise.SeeReporter's Notes, V.R.Cr.P. 16.1(b).

The trial court may order appropriate sanctions for violations of discovery rules.SeeV.R.Cr.P. 16.2(g).Our review of the sanctions imposed, including exclusion of expert testimony, is limited to an abuse of discretion.State v. Meyers, 153 Vt. 219, 223, 569...