State v. Peters

• Decision Date: 21 March 1995
• Docket Number: No. 94-1094-CR,94-1094-CR
• Citation: 192 Wis.2d 674,534 N.W.2d 867
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Sherideane P. PETERS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 867

534 N.W.2d 867

192 Wis.2d 674

STATE of Wisconsin, Plaintiff-Respondent, v. Sherideane P. PETERS, Defendant-Appellant. ^d No. 94-1094-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 23, 1995.

Opinion Released March 21, 1995.

Opinion Filed March 21, 1995.

[192 Wis.2d 680] For the defendant-appellant the cause was submitted on the brief of Daniel E. Ensley, Menasha.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and James M. Freimuth, Asst. Atty. Gen.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Sherideane Peters appeals a judgment of conviction for six crimes, including: one count of kidnapping, contrary to § 940.31(1)(b), STATS.; two counts of first-degree sexual assault, contrary to § 940.225(1)(b), STATS.; one count of armed robbery, contrary to § 943.32(1)(b) and (2), STATS.; one count of attempted first-degree intentional homicide while using a dangerous weapon, contrary to §§ 940.01(1), 939.32(1)(a) and 939.63, STATS.; and one count of mayhem, contrary to § 940.21, STATS. Peters contends that his conviction should be reversed and the cause remanded because: (1) the evidence of the statistical probability that his DNA (deoxyribonucleic acid) matched the DNA of the perpetrator was unreliable; (2) the DNA evidence violated his right to equal protection under the Fourteenth Amendment to the United States Constitution; (3) the trial court erred by admitting other crimes evidence; and (4) the trial court erroneously exercised its discretion by imposing an unduly excessive sentence. We reject Peters' arguments and affirm the judgment.

FACTS

On April 20, 1992, Peters abducted fifteen-year-old Sarah B. at gunpoint from a DePere parking lot, placed her in the trunk of a vehicle and drove to a Brown County Park. Once at the park, Peters led Sarah to a wooded area, where he forced her to participate in acts of fellatio and penis-vagina intercourse. Peters then robbed Sarah of her jewelry, cut her eyelids with a knife and attempted to kill her by stabbing her repeatedly in the neck, chest and abdomen.

Peters was eventually apprehended and charged in a six-count information. Prior to trial, Peters filed a motion opposing the admission of DNA evidence. A hearing was subsequently held on the matter. At the hearing, Peters did not dispute that his DNA matched the DNA taken from Sarah's clothes and person. ¹ However, as a Native-American, Peters argued that the DNA evidence was not sufficiently reliable because the probability statistics were based on comparisons to population databases that did not include Native-Americans. Accordingly, Peters argued that the evidence should not be admissible at trial because the population databases may not adequately account for variances among his ethnic heritage. ²

The State conceded that there was no population database for Native-Americans. However, it argued that precautions were taken to increase the reliability of the probability calculation. Specifically, the State argued that the "ceiling method" of probability calculation, which was used by the private laboratory that conducted the DNA testing for the State, was sufficiently reliable to be admissible at trial. Under the ceiling method, each matching probe ³ of the defendant's DNA is compared to the three population databases to determine the frequency with which the probes occur in each database. The laboratory then uses the highest frequency for each probe in performing the probability calculation, thereby making the calculation more favorable to the defendant. ⁴ Additionally, the laboratory uses a 95% upper confidence level of statistical variance, which is designed to provide further compensation for the lack of a Native-American database. At the conclusion of the hearing, the trial court determined that the laboratory's probability calculations regarding Peters' DNA were sufficiently reliable and denied Peters' motion. The case then proceeded to trial.

At trial, the jury was presented with the results of the DNA testing. Doctor Lisa Forman, an expert in population genetics, testified that Peters' DNA was compared to the DNA taken from Sarah's cervical swabs, vaginal swabs and shorts. Based on this comparison, and using the ceiling method of probability calculation, Forman testified that the likelihood that Peters' DNA would match the DNA of the perpetrator by chance was one in 7.6 million. Additionally, Forman testified that she compared Peters' DNA to each of the three population databases using a basic probability calculation to determine the likelihood of a chance match. Based on these calculations, Forman testified that the likelihood of a chance match between Peters' DNA and that which was taken from Sarah's person and clothes was one in 340 million for the Caucasian population, one in 26 billion for the African-American population and one in 260 million for the Hispanic population.

In addition to the DNA testimony, the State offered the testimony of three young women who testified that they had encounters with Peters on the same day that Sarah was abducted. Beth L. and Kimberly M., ages sixteen and fifteen respectively, testified that they were at a Green Bay mall on April 20, 1992, when a man with long black hair, a black leather jacket, white shirt and jeans followed them from store to store. The girls contacted the police the following day, and each girl separately identified Peters in a photo line-up as the man who they saw in the mall.

Nancy Herwald, age eighteen, testified that she was walking on a sidewalk approximately two miles from the park where Sarah was attacked when she noticed a car following her at a slow pace. She stated that the driver of the vehicle leaned out of the car and asked "[w]here are you going little girl?" She further stated that the driver drove off when a dog barked. Herwald testified that the man had long, dark, wavy hair, wore a white shirt and had a tattoo on his upper left arm. She identified Peters at trial as the man in the vehicle.

The jury ultimately found Peters guilty on all six counts of the information. The trial court determined that Peters was a repeat offender under § 939.62, STATS., and sentenced him to thirty-five years on the attempted homicide conviction and to consecutive thirty-year prison terms on the remaining five convictions. Peters appeals.

ADMISSIBILITY OF SCIENTIFIC EVIDENCE

The first issue is whether the trial court properly admitted the DNA evidence. We review a challenge to the admissibility of evidence deferentially under the erroneous exercise of discretion standard. Badger Produce Co. v. Prelude Foods Int'l, 130 Wis.2d 230, 235, 387 N.W.2d 98, 101 (Ct.App.1986). We will uphold the trial court's discretionary decision if it "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Appleton Post-Crescent v. Janssen, 149 Wis.2d 294, 302-03, 441 N.W.2d 255, 258 (Ct.App.1989).

Peters contends that the statistical probability evidence, which was derived from the DNA tests, was unreliable because his DNA was compared to population databases that did not include Native-Americans. Accordingly, Peters argues that the trial court erred by admitting this evidence. We are not persuaded.

Traditionally, state courts have used one of two approaches to determine whether scientific evidence is admissible: the Frye test or the relevancy test. The Frye test, which was first articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), conditions the admission of scientific evidence upon whether the underlying scientific principle has gained "general acceptance in the particular field to which it belongs." Id. at 1014. If the trial court determines that the scientific principle is generally accepted in the scientific community, the evidence is deemed to be sufficiently reliable to be admitted at trial. United States v. Jakobetz, 955 F.2d 786, 794 (2d Cir.1992).

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, ----, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993), however, the United States Supreme Court held that the Frye test was superseded by FED.R.EVID. 702. FEDERAL R.EVID. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

When faced with a question regarding the admissibility of scientific evidence under RULE 702, the trial court must determine whether the evidence will assist the trier of fact. ⁵ While Daubert represents a shift away from Frye 's general acceptance test, the court noted that the reliability of the particular scientific evidence was still a prerequisite to admissibility. Daubert, 509 U.S. at ----, 113 S.Ct. at 2795. Specifically, the Court stated: "[U]nder the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. If the trial court does not conclude that the scientific evidence is both relevant and reliable, the evidence may not be admitted. Thus, under Frye and Daubert, reliability is a necessary condition to the admission of scientific evidence.

In Wisconsin, however, our supreme court expressly rejected the Frye test in favor of the relevancy test. Watson v. State, 64 Wis.2d 264, 273, 219 N.W.2d 398, 403 (1974). Because Wisconsin rejected the Frye test and adopted a test unrelated to that used by the federal courts and many state courts, our standard for the admission of scientific evidence was unaffected by Daubert. Thus, the rule remains in Wisconsin that the admissibility of scientific evidence is not conditioned upon its reliability. Rather, scientific evidence is admissible if: ...