State v. Pierce

• Decision Date: 02 September 1992
• Docket Number: No. 90-1898,90-1898
• Citation: 597 N.E.2d 107,64 Ohio St.3d 490
• Parties: , 61 USLW 2175 The STATE of Ohio, Appellee, v. PIERCE, Appellant.
• Court: Ohio Supreme Court

Page 490

64 Ohio St.3d 490

597 N.E.2d 107, 61 USLW 2175

The STATE of Ohio, Appellee, v. PIERCE, Appellant.

No. 90-1898.

Supreme Court of Ohio.

Submitted June 2, 1992.

Decided Sept. 2, 1992.

SYLLABUS BY THE COURT

1. DNA evidence may be relevant evidence which will assist the trier of fact in determining a fact in issue, and may be admissible. (State v. Williams [1983], 4 Ohio St.3d 53, 4 OBR 144, 446 N.E.2d 444, syllabus, applied.)

2. Questions regarding the reliability of DNA evidence in a given case go to the weight of the evidence rather than to its admissibility.

On January 4, 1988, a vocational high school student in Delaware, Ohio, was raped at knife point while on her way to school. A rape sex crime kit was performed, which included samples of evidence taken from the victim at the hospital. The victim described her assailant as an individual who was half-black and half-white. However, she did not get a good look at his face and, because he was wearing a hat, she was unable to estimate the length of his hair. The victim did not identify the appellant, Louis Pierce, Jr., from two photo arrays--one shown in January 1988 shortly after she was raped and the other shown in May 1988. However, she did identify Pierce as the man who raped her when she later saw him in the hallway of the courthouse at a pretrial hearing the day before the trial began and again at trial.

On May 2, 1988, a high school student was raped at knife point by a masked man while she was sunbathing at Delaware State Park. The second victim identified Pierce from a photo array, and specifically from his eyes, nose, and freckles. A rape kit was completed at the hospital, which included samples of evidence obtained from the victim. The victim's friend, who was with her and whose money was taken by the man, described the assailant as being light-complected, and that he had freckles. The friend also identified Pierce from a photo array.

On June 6, 1988, a third victim was accosted by a man on a street in Delaware, whom she later identified at the trial as Pierce. The victim testified that Pierce ordered her to walk a certain way because "I have got a gun," and ordered her to shut up, stating, "I have a gun." When the victim resisted the offender, he continued to pull on her saying, "I have got a gun." The victim struck Pierce with her keys and was able to break away from Pierce when his girlfriend and another woman drove up.

Thereafter, Pierce was indicted on one count of rape and one count of aggravated robbery for the crimes committed on May 2, 1988 at Delaware State Park; on one count of kidnapping for the incident on June 6, 1988; and on one count of rape for the crime committed on January 4, 1988. The charges were thereafter consolidated into one case. Blood was drawn from Pierce for purposes of DNA testing while he was in jail. Pierce's blood samples and the samples from the victim's rape kits were sent to Cellmark Diagnostics ("Cellmark") of Germantown, Maryland.

Pierce's trial counsel filed a motion to suppress any DNA evidence that the prosecution sought to present at trial. The motion stated that Pierce had requested discovery of all documents the prosecution intended to be "produced." The motion further stated that Pierce did not have a copy of any document showing the manner in which the DNA testing was conducted, which would prevent Pierce from being able to properly cross-examine the state's expert witnesses on DNA testing. The state filed supplemental discovery providing Pierce with copies of charts describing the DNA testing procedure used and copies of the autoradiograms, the graphic record obtained by exposing DNA samples to X-ray film and then developing it.

At a hearing on the motion to suppress, counsel argued the issue of whether the standard of admissibility with respect to DNA evidence was that found in Frye v. United States (C.A.D.C.1923), 293 F. 1013, or that of relevancy, under which objections to such evidence go to weight rather than admissibility. Pierce's trial counsel argued that DNA forensic evidence has not been accepted by the scientific community and that because no standards or guidelines have been promulgated regarding the usage of DNA evidence, such evidence is unreliable. The court overruled the motion, concluding the evidence should be admitted, with the jury to determine its weight and reliability. Trial began the same day. Pierce was convicted on the two counts of rape and one count of kidnapping. He was found not guilty of aggravated robbery. The court of appeals affirmed Pierce's conviction.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

W. Duncan Whitney, Pros. Atty., and George E. Lord, Delaware, for appellee.

Randall M. Dana, Ohio Public Defender, Richard E. Graham, Gloria Eyerly and Timi J. Townsend, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., Simon B. Karas, Jeffery W. Clark and Barbara J. Petrella, Columbus, urging affirmance for amicus curiae, Ohio Atty. Gen.

MOYER, Chief Justice.

In this appeal, we are presented with important issues relating to the admissibility of DNA evidence in a criminal prosecution. ¹ For the following reasons, we hold that such evidence may be admissible and that questions regarding the reliability of such evidence go to its weight rather than its admissibility.

I The Scientific Background of DNA Evidence

DNA is the common abbreviation for deoxyribonucleic acid. DNA is the "fundamental natural material which determines the genetic characteristics of all life forms." People v. Castro (Sup.Ct.1989), 144 Misc.2d 956, 961, 545 N.Y.S.2d 985, 988. It is responsible for determining individual human characteristics, such as hair color and eye color which differentiate humans. Except for identical twins, no two individuals have the same DNA. Id. at 962, 545 N.Y.S.2d at 988.

The Missouri Supreme Court in State v. Davis (Mo.1991), 814 S.W.2d 593, 598, certiorari denied (1992), 502 U.S. 1047, 112 S.Ct. 911, 116 L.Ed.2d 812, gave the following explanation of DNA:

"Most human cells contain a nucleus which in turn contains 46 chromosomes that arrange themselves into pairs. Tightly coiled and packaged within these chromosomes are DNA strands consisting of two strands of nucleotides running in opposite directions. The double helix strands of DNA are connected by hydrogen bonds between bases. There are only four varieties of bases (Adenine, Thymine, Guanine, and Cytosine, which are more commonly referred to as A, T, G, C) and these form only two varieties of pairs (A and T, G and C).

"A gene is a segment of DNA that determines physical characteristics such as hair and eye color as well as genetic defects such as Huntington's disease. There is also a certain quantity of DNA which apparently provides no code for characteristics and this is referred to as 'space' or 'junk' DNA. A DNA molecule contains more than 3 billion units and although a human receives half of his DNA composition from his mother and half from his father, the final links of DNA are unique to each individual."

The DNA testing procedure used by Cellmark in this case, the Restriction Fragment Length Polymorphism procedure, is a six-step procedure. The court in Davis, supra, gave the following explanation of the procedure:

"1) Extraction. The DNA is chemically extracted from the blood sample and purified to obtain a high molecular DNA.

"2) Fragmentation. The DNA molecule, too large to deal with as a single unit, is then cut into fragments by a restricting enzyme which, depending upon the enzyme selected, cuts the DNA fragment precisely at a designated point.

"3) Electrophoresis. The DNA fragments are then placed in an agarose gel between two electrically charged poles which assist in separating the fragments by size, the smaller fragments more readily through the gel than the large. The end result is an orderly pattern of the fragments in parallel lines.

"4) Southern Blotting. Named for Dr. Ed Southern who pioneered the process in the mid-1970s, the DNA band pattern in the agarose gel is then transferred to a nylon membrane which resembles a sheet of heavy blotting paper. During this process, the DNA strands are 'unzipped' from one another at their base pairings.

"5) Hybridization. Radioactive tagged probes, which are small DNA fragments developed in the laboratory, are then introduced onto the nylon membrane. The probes locate and attach themselves to recognized complementary base sequences, in essence 'zipping' back parts of the DNA fragments.

"6) Autoradiograph. The excess probes are washed away and the nylon membrane is then placed next to a sheet of x-ray film and exposed for several days. The end product is a series of dark parallel bands resembling the Universal Bar Codes on labels commonly found in retail stores to identify stacks of merchandise. The result is known as an autoradiograph or commonly an autorad. This then is the DNA fingerprint." Id. at 598-599.

II Legal Standard for the Admissibility of DNA Evidence

A number of federal and state courts have considered the admissibility of DNA evidence. A majority of those courts have held that such evidence is admissible. United States v. Jakobetz (C.A.2, 1992), 955 F.2d 786, petition for certiorari filed (Apr. 8, 1992), U.S.Sup.Ct. case No. 91-7921; Martinez v. State (Fla.App.1989), 549 So.2d 694; Andrews v. State (Fla.App.1988), 533 So.2d 841, review denied (Fla.1989), 542 So.2d 1332; Caldwell v. State (1990), 260 Ga. 278, 393 S.E.2d 436; People v. Thomas (1990), 137 Ill.2d 500, 148 Ill.Dec. 751, 561 N.E.2d 57, certiorari denied (1991), 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196; Smith v. Deppish (1991), 248 Kan. 217, 807 P.2d 144; Cobey v. State (1989), 80 Md.App. 31, 559 A.2d 391, certiorari denied (1989), 317 Md. 542, 565 A.2d 670; People v. Shi Fu Huang (Cty.Ct.1989), 145 Misc.2d 513, 546 N.Y.S.2d 920; State v. Pennington (1990), 327 N.C. 89, 393 S.E.2d 847; State...