State v. Pennell
| Decision Date | 20 September 1989 |
| Citation | 584 A.2d 513 |
| Parties | STATE of Delaware v. Steven B. PENNELL, Defendant. . Submitted: |
| Court | Delaware Superior Court |
Upon defendant's motion in limine to exclude DNA identification evidence. GRANTED in part. DENIED in part. Upon defendant's motion for mistrial. DENIED.
Peter N. Letang, and Kathleen M. Jennings, Deputy Attys. Gen., Dept. of Justice, Wilmington, for State of Del.
Eugene J. Maurer, Jr., and Elizabeth Barnes, pro hac vice, Wilmington, for defendant.
This case arises from a series of murders of young females during 1987-88. In particular, the defendant is charged with 3 counts of First Degree Murder relating to the deaths of Catherine DiMauro, Shirley Ellis, and Michelle Gordon. Due to the "serial" nature of these murders this case achieved a high degree of publicity. Likewise, law enforcement agencies established a joint task force to investigate these crimes as well as other deaths and disappearances which occurred in the same area during the same general time frame.
During the course of these investigations the defendant was identified as a suspect. After extensive surveillance, the defendant was arrested and charged with three counts of First Degree Murder. Pursuant to a search warrant defendant's van was searched and a piece of carpet and carpet backing was seized from the rear floor area of the van. On those articles a stain was identified as that of blood. These two articles were submitted to Cellmark Diagnostics, a division of ICI Americas Inc., hereinafter "Cellmark", for comparison to known blood samples of the decedents through a DNA analysis.
On December 1, 1988, Cellmark reported that the stains "matched the DNA banding pattern" of the known blood of Catherine DiMauro. Subsequently, on March 27, 1989, Cellmark opined that the "frequency" of the DNA banding patterns of Catherine DiMauro is approximately "one in 180 billion" in the caucasian population. Defendant has filed a motion in limine to exclude this evidence from the trial in this case.
No court in this jurisdiction has determined the admissibility of this type of DNA analysis in a criminal case where such evidence has been challenged by the defense. The Court has conducted extensive pretrial hearings on this matter and has further had the record supplemented by extensive videotape depositions of defense experts and prosecution rebuttal expert testimony.
The parties have briefed the issues involved with regard to the admissibility of this type of evidence. This is the Court's opinion on defendant's motion in limine.
This Court heard testimony on behalf of the State from: Dr. David E. Housman, Professor at Massachusetts Institute of Technology, and staff member at the Center for Cancer Research, MIT, accepted as an expert in molecular biology, and molecular genetics; Dr. Robin Cotton, manager of research and development, Cellmark, accepted as an expert in molecular biology and biochemistry; Dr. Lisa Forman, Cellmark, accepted as an expert in population genetics; Karen Rubenstein, staff molecular biologist, Cellmark, (individual who performed the analysis in this case); Dr. David Goldman, Chief, Section on Genetic Studies at NIAAA, accepted as an expert in human genetics; and Dr. Edward Ratledge, Director, Center for Demography, University of Delaware, accepted as an expert in demographics. Testifying by deposition for the defense were: Dr. Laurence Mueller, Associate Professor, University of California, Irvine, accepted as an expert in ecology and population genetics; Dr. Simon Ford, Associate Professor, University of California, Irvine, accepted as an expert in genetics, biochemistry and molecular genetics; Dr. William Thompson, Associate Professor, University of California, Irvine, accepted as an expert in psychology, social science surveys, and social ecology.
All of those who testified have educational qualifications and employment experiences that qualify them as experts in their chosen aras of study. D.R.E. Rule 702.
Upon conclusion of the live testimony in this case and after reviewing the video taped deposition testimony and exhibits, the Court must rule on the admissibility of the results of this DNA analysis.
New or novel scientific evidence in Delaware must be determined to be admissible under the Delaware Uniform Rules of Evidence. The Supreme Court of Delaware has determined that the so-called "Frye" test, see Frye v. United States, D.C.Cir., 293 F. 1013 (1923), is no longer the sole test for admissibility of scientific evidence in Delaware. Santiago v. State, Del.Supr., 510 A.2d 488, 489 (1986); Fensterer v. State, Del.Supr., 493 A.2d 959, 962 n. 3 (1985) rev'd other grounds, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); Whalen v. State, Del.Supr., 434 A.2d 1346, 1354 (1981). In particular, the Court has held that a duly qualified expert may offer his opinion based upon tests or processes if those tests are those reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Santiago, supra at 489, D.R.E., Rule 703.
Basically then, this Court's analysis must determine first, that the expert being offered is qualified; second, that the evidence offered is otherwise admissible, relevant and reliable; third, that the bases for the opinion are those reasonably relied upon by experts in the field, fourth, that the specialized knowledge being offered will assist the trier-of-fact in understanding the evidence or to determine a fact in issue; and finally, whether such evidence would create unfair prejudice, confusion of the issues, or misleading of the jury. D.R.E., Rule 403.
Defendant argues that in this particular area of scientific evidence, the Frye test should be used, rather than the more relaxed standard under the Rules of Evidence. This Court cannot agree. The Supreme Court has determined that Frye alone does not govern the introduction of scientific evidence. Santiago, supra. It should be noted however, that the basic principles underlying Frye are protected by the current standard that opinions may be based on information, tests or processes which are reasonably relied upon by experts in the field. The Frye court had noted:
... while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, supra at 1014.
The basic difference, therefore, is that the State must establish only that the tests or processes used are "reasonably relied upon by experts in the field" rather than "generally accepted by experts in the field" as the third step of the Court's analysis.
In this case, it is clear, and the Court finds, that the experts offered by the State are qualified in the area of DNA analysis. Likewise, it is clear to the Court that the offered testimony would assist the trier-of-fact in determining a fact in issue, i.e. the presence of Catherine DiMauro's blood in the defendant's van. It is clear also that an opinion that the blood in the van matched that of one of the victims, if based upon reasonably accepted facts, tests or processes, would be relevant and admissible in this case. Thus, the focus of this Court's inquiry must be:
1.) Are the tests, processes, etc. followed by Cellmark in this case, those reasonably relied upon by experts in the fields of molecular biology and human genetics?
2.) Is the evidence offered by the State reliable?
3.) Will the evidence offered by the State create unfair prejudice, confusion of the issues, or mislead the trier-of-fact?
Before the Court can begin the analysis of the legal principles involved, it is necessary to set out a brief introduction to the basic theory underlying such analysis.
DNA, deoxyribonucleic acid, is the fundamental or basic material which determines the genetic properties of all living things. Different characteristics of different life forms are caused by differences in the molecular composition of their DNA.
Every human nucleated cell contains DNA. The DNA in each cell in a particular human being is identical. Thus, DNA from skin, blood, semen or other parts of the same human body will be identical. In an exceedingly appropriate visual analogy the New York Supreme Court described the DNA molecule as follows:
DNA is composed of a long double helix, which looks like a spiral staircase. The backbone of this molecule (i.e., the handrails and balustrade of the staircase) consists of repeated sequences of phosphate and deoxyribose sugar. Attached to the sugar links in the backbone are four types of organic bases: Adenine (A), Guanine (G), Cytosine (C) and Thymine (T). The steps of the staircase are formed by pairs of these bases, (hereinafter, "base pairs"). People v. Castro, N.Y.Supr., 545 N.Y.S.2d 985 (opinion of J.S.C. Sheindlin, August 14, 1989. p. 9).
As noted by the Castro Court, there are approximately three billion of these base pairs in each DNA molecule. The order or sequence of these base pairs is what determines genetic traits of an individual life form. Each human being with the exception of identical twins will have some difference in the sequence of these base pairs. Identical twins, because they originate from a single sperm cell's union with a single egg, will have an identical DNA molecule.
Within the human genetic molecule there are several million locations or sites where the base pairs may differ, i.e., be arranged in a different sequence. One of these areas where the base pairs are arranged differently is called a polymorphic sequence or segment. These polymorphic segments are the parts of the DNA chain that are used for analysis or...
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