State v. Skipper

• Decision Date: 22 February 1994
• Docket Number: No. 14744,14744
• Citation: 637 A.2d 1101,228 Conn. 610
• Court: Connecticut Supreme Court
• Parties: , 62 USLW 2623 STATE of Connecticut v. Roy E. SKIPPER.

Page 1101

637 A.2d 1101

228 Conn. 610, 62 USLW 2623

STATE of Connecticut v. Roy E. SKIPPER.

No. 14744.

Supreme Court of Connecticut.

Argued Sept. 23, 1993.

Decided Feb. 22, 1994.

David H. Dworski, Bridgeport, with whom were John C. Dillman, Winsted, and, on the brief, Susan E. Guthrie, Raymond W. Ganim, Bridgeport, and Michael R. Brandt, certified legal intern, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Steven J. Sedensky III, assistant state's attorney, for the appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

The dispositive issue in this appeal is the admissibility of the probability of paternity statistic calculated from DNA ¹ evidence. The defendant was charged in a substitute information with eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), ² eight counts of risk of injury to a child in violation of General Statutes § 53-21, ³ and one count of assault in the third degree in violation of General Statutes § 53a-61(a)(1). ⁴ He was found guilty by a jury on all counts of sexual assault in the second degree and risk of injury to a child. He was acquitted of the assault charge. The trial court sentenced the defendant to a term of imprisonment of twenty-four years, execution suspended after twelve years, followed by five years probation. Thereafter, the defendant appealed to the Appellate Court. We transferred his appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant began to make sexual overtures to the victim, who was the daughter of a neighbor and a friend of his own daughter, sometime in 1982, when the victim was approximately eight years old and in the third grade. In response to the victim's protests, the defendant told her that he would leave her alone if she allowed him to take topless photographs of her. When the victim complied, however, the defendant persisted in his contact with her, threatening to show the photographs to her friends if she refused to see him. By the time the victim was in the fourth grade, the defendant had begun to molest her physically. At some point, while she was still in the fourth or fifth grade, the defendant began to have sexual intercourse with the victim. Even after she moved out of his neighborhood, the defendant continued on a regular basis to have sexual relations with the victim in his van at various locations.

When the victim was in the tenth grade, she told the defendant that she wanted him to leave her alone and that she no longer cared what he did with photographs he had taken. At that time, the victim's parents were in the process of attempting to adopt a little girl. When the victim persisted in her refusal to see him, the defendant intimated to her that the adoption would not go through if the authorities were notified of their relationship.

The sexual relationship between the defendant and the victim continued until March, 1989. At that time, the defendant, in an attempt to end a platonic friendship between the victim and a classmate named Marvin, told her to advise Marvin that she was pregnant and provided her with a falsified home pregnancy test that ostensibly displayed a positive result. Marvin promptly informed the victim's parents. When confronted by her mother, the victim broke down and told her of the nature of her relationship with the defendant.

On March 9, 1989, the victim gave a statement to the police. The next day, the victim's mother took her for a medical examination that revealed that the victim was in fact pregnant. On March 22, 1989, the victim had an abortion.

I

The defendant claims that the trial court improperly admitted testimony of the probability of paternity percentage based on DNA testing. We agree and, on this basis, reverse the judgment of the trial court and remand the case for a new trial. ⁵

Kevin McElfresh, the state's expert witness and the director of Identity Testing Laboratories of Lifecodes Corporation (Lifecodes), testified at trial regarding the defendant's paternity index. The paternity index is an odds ratio, based on DNA tests, ⁶ measuring the likelihood that the defendant would produce a child with the same phenotypes ⁷ as the fetus in question as compared to an unrelated random male. 1 C. McCormick, Evidence (4th Ed. 1992) § 211, pp. 963-64. The paternity index in this case was 3496, ⁸ indicating that only one out of 3497 randomly selected males would have the phenotypes compatible with the fetus in question. ⁹ See R. Peterson, "A Few Things You Should Know About Paternity Tests (But Were Afraid to Ask)," 22 Santa Clara L.Rev. 667, 684 (1982).

McElfresh further testified that the paternity index could be converted into a statistic indicating the percentage of the defendant's probability of paternity. In the present case, he testified that he had made that conversion and that the percentage of probability that it was the defendant who had fathered the fetus was 99.97 percent. The usual method for calculating the probability of paternity, and the method that McElfresh used in the present case, is Bayes' Theorem. ¹⁰ 1 C. McCormick, supra, pp. 962-63. Bayes' Theorem, a mathematical formula in common use by statisticians, is used for the purpose of "showing the effect of ... new [statistical] evidence on a previously [predicted] probability." Id.; I. Ellman & D. Kaye, "Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?" 54 N.Y.U.L.Rev. 1131, 1148 (1979). In the context of determining paternity, Bayes' Theorem postulates the multiplication of the paternity index, i.e., the new statistical evidence, by an assumed prior percentage of probability of paternity in order to obtain a new percentage of probability of paternity. ¹¹ In order to assume a prior probability of paternity, however, it is also necessary to assume a prior probability of intercourse.

In Bayes' Theorem, the prior probability of paternity is not cast as any particular figure. Generally, experts who testify in paternity proceedings choose a number to represent the prior probability. See I. Ellman & D. Kaye, 54 N.Y.U.L.Rev., supra, p. 1149. Most experts, as did McElfresh here, set the prior probability at 50 percent, expressed as odds of one, i.e., fifty-fifty, reasoning that 50 percent is a neutral starting point because it assumes that it is just as likely that the defendant is not the father as it is that he is the father. ¹² See, e.g., State v. Spann, 130 N.J. 484, 493, 617 A.2d 247 (1993); 1 C. McCormick, supra, p. 963; E. Reisner & T. Bolk, "A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing," 20 J.Fam.L. 657, 674 (1981-82). By adopting a prior probability of paternity of 50 percent, the formula operates on the assumption that the defendant and a random male had intercourse with the mother, "making them both equally likely to have fathered the child." R. Peterson, 22 Santa Clara L.Rev., supra, p. 685.

Our criminal justice system is built upon the premise that the prosecution must prove " 'every fact necessary to constitute the crime with which [the defendant] is charged' beyond a reasonable doubt." State v. Salz, 226 Conn. 20, 28, 627 A.2d 862 (1993), quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed. 2d 368 (1970). The right to have one's guilt proven beyond a reasonable doubt is of constitutional dimension. State v. Johnson, 214 Conn. 161, 179, 571 A.2d 79 (1990), citing In re Winship, supra, 397 U.S. at 362, 90 S.Ct. at 1071. In a sexual assault prosecution, sexual intercourse is an element that must be proven by the state beyond a reasonable doubt. ¹³ The utilization of Bayes' Theorem by the prosecution, however, permitted the introduction of evidence predicated on an assumption that there was a fifty-fifty chance that sexual intercourse had occurred in order to prove that sexual intercourse had in fact occurred. See State v. Hartman, 145 Wis.2d 1, 426 N.W.2d 320 (1988) (probability of paternity statistic inadmissible in a sexual assault case). The fifty-fifty assumption that sexual intercourse had occurred was not predicated on the evidence in the case but was simply an assumption made by the expert. In dicta in a civil paternity suit, we have said that "[b]ecause this probability calculation [is] based upon an assumption of sexual intercourse during the period of conception, its use in proving intercourse would be incorrect." Moore v. McNamara, 201 Conn. 16, 32-33, 513 A.2d 660 (1986); see also State v. Hartman, supra, 145 Wis.2d at 16, 426 N.W.2d 320.

In State v. Spann, supra, in a somewhat complex opinion, the Supreme Court of New Jersey held that it was reversible error to admit expert testimony of the probability of paternity based on an assumption of a 50 percent prior probability of paternity in a sexual assault case without revealing this assumption to the jury. Because the defendant only objected to the implication that the adoption of a 50 percent prior probability was "neutral," ¹⁴ the court concluded that a probability of paternity opinion, if admissible at all, is only admissible if the expert states that the calculations leading to that statistic assume a prior probability of paternity of 50 percent. ¹⁵ Id., 130 N.J. at 499, 617 A.2d 247. The court noted that it was not confronted with the issue with which we are confronted: the admissibility of the probability of paternity statistic in a criminal case in which the defendant has not conceded the propriety of any prior probability of paternity. Id., at 500, 617 A.2d 247.

Although the New Jersey intermediate appellate court had concluded that "the State cannot prove intercourse through a formula that assumes intercourse";...