State v. Streich

• Citation: 163 Vt. 331,658 A.2d 38
• Decision Date: 17 February 1995
• Docket Number: No. 91-335,91-335
• Parties: STATE of Vermont v. Todd STREICH.
• Court: United States State Supreme Court of Vermont

Page 38

658 A.2d 38

163 Vt. 331

STATE of Vermont v. Todd STREICH.

No. 91-335.

Supreme Court of Vermont.

Feb. 17, 1995.

Scot Kline, Chittenden County State's Atty., and Pamela Hall Johnson, Deputy State's Atty., Burlington, and Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Robert Andres and Michael Johnson, Burlington, and Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant.

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

Defendant Todd Streich was convicted of sexual assault in violation of 13 V.S.A. § 3252(a)(1)(A). On appeal, he raises eleven allegations of error which can be consolidated into five main issues: (1) whether the court improperly admitted DNA evidence which linked defendant to the crime scene; (2) whether the court improperly admitted blood-type evidence of another individual which excluded that individual as a possible perpetrator; (3) whether comments made by the judge during jury selection warranted a mistrial; (4) whether the court's instructions to the jury were wrong; and (5) whether the court exhibited open bias and prejudice against defendant in its rulings. Although we disagree with the trial court's rationale regarding the admissibility of DNA statistical evidence, we affirm.

I.

On June 22, 1989, a young woman was sexually assaulted in her home. Immediately after the assault, the victim was taken to the hospital where she underwent an extensive internal examination. A variety of evidence was collected including vaginal swabs, and blood and pubic hair samples. The victim's underwear, which was stained with the assailant's semen, was also taken.

During the investigation, a detective spoke with a man named Mark Rouelle, who gave the detective specific details of the crime, and told the detective that defendant had related these details to him. The investigation then focused on defendant, and the Vermont State Police forwarded to the FBI criminal lab the evidence collected at the hospital and blood samples from the victim and defendant for DNA and blood-typing analysis. The FBI compared the DNA from defendant's blood sample to the semen found on the victim's underwear and reported that defendant's genetic profile matched the genetic profile of the semen at three genetic locations. The FBI concluded that the probability of another person chosen at random having the same DNA profile was 1 in 50,000.

Prior to the July 1991 trial, defendant filed a motion to exclude the DNA evidence. He argued that DNA profiling is not sufficiently reliable to be admitted in Vermont criminal trials, and in the alternative, the FBI used faulty procedures that undermined the probative value of the evidence. The trial court held a four day hearing, and heard extensive expert testimony on behalf of both the State and defendant. Following the hearing, the court issued a bifurcated order rejecting defendant's arguments.

Shortly after the court issued its DNA order, defendant began pursuing the theory that Mark Rouelle, the individual who had initially led investigators to defendant, actually committed the crime. When the State became aware of this theory, it requested blood samples from Rouelle to compare to the evidence taken from the victim and from the crime scene. Rouelle was uncooperative, and the State's efforts to obtain these samples was further delayed by his frequent change of counsel and separate hearings to determine his competency.

One week before trial, the trial court issued a nontestimonial identification order (NTO) requiring Rouelle to provide the requested samples. The State never exercised this NTO because Rouelle voluntarily offered the blood samples. The trial court's issuance of the NTO is relevant, however, because defendant sought to introduce the statutory standards under V.R.Cr.P. 41.1(c) for obtaining NTOs to support his theory that Rouelle had committed the crime. The trial court held that the statutory standards were not evidence, and therefore, were not relevant.

Rouelle's blood samples were analyzed the week before trial. Because DNA profiling can take up to six weeks, the laboratory was able to determine only Rouelle's blood-type and secretor status. The laboratory report indicated that Rouelle's blood did not match the evidence found at the crime scene, and these results were forwarded to the State on July 8, 1991. The next day, which was the day before trial, the State provided defendant with a copy of the report.

Defendant immediately complained that the notice was untimely, and moved for a continuance so that his expert could review the report. Although the trial court agreed that the Rouelle report was untimely, it denied the motion. Instead, the court ruled that the State was prohibited from mentioning any information contained in the report during its opening statement or case-in-chief, and that the report might be barred altogether depending on what evidence defendant presented at trial. The court reasoned that this postponement would provide defendant's expert with an opportunity to review the evidence. During cross-examination of one of the State's key witnesses, defendant advanced his theory that Rouelle had committed the crime. The trial court ruled that because defendant initiated the theory, the State was entitled to rebut it. Consequently, the court permitted the State to admit into evidence the Rouelle report, which indicated that Rouelle's blood-type was inconsistent with evidence from the crime scene and the victim.

A major network filmed the trial for a television documentary. On July 8, 1991, prior to jury selection, the court discussed with counsel how the presence of cameras and bright lighting should be explained to the jury. Both parties agreed that the potential jurors should be told that the court was conducting a media experiment, and they were so informed. Before resuming the jury draw on July 9th, the State expressed its discomfort with the fabrication, especially since some of the jurors already knew that the filming was for television. The court agreed to examine the remaining jurors on whether they had read or heard anything in the media regarding the trial. Only one juror responded affirmatively, and he was excused from the panel. The judge then informed the jurors of the true reason for the cameras and lighting, and inquired whether the filming would interfere with their responsibilities as jurors. No one indicated that it would.

On the fourth day of trial, defendant moved for a mistrial on the ground that the court's misrepresentation concerning media coverage had poisoned the jury selection process. In support of his motion, defendant noted that members of the July 8th jury array who were not selected were upset that the court had not been candid with them about the television coverage. Defendant argued that because of the court's misrepresentation, jurors lacked confidence in the overall integrity of the trial. The court denied the mistrial motion, stating that any potential problem with the jury was effectively addressed on July 9th. The rest of the trial proceeded without incident, and the jury found defendant guilty of sexual assault; this appeal followed.

II.

A.

The most significant issue in this case concerns the admissibility of DNA profiling in a criminal case to prove the perpetrator's identity. ¹ Before we can adequately address this issue, it is necessary to outline the procedures involved in DNA profiling.

Deoxyribonucleic acid (DNA) is the codified genetic blueprint of humans, and with the exception of identical twins, no two people share the same pattern of DNA. DNA is found in almost every cell of the body, including hair follicles, blood, and semen. The DNA molecule is composed of 3 billion "base pairs" of four different chemicals, and the particular order or pattern of these base pairs dictates genetic characteristics. Because 99% of the DNA molecule is the same for all humans, DNA profiling focuses on those areas of the DNA molecule where there is significant differentiation of the base pair pattern. These areas of significant differentiation are called "polymorphic," and base pair patterns in polymorphic areas are called "alleles."

The basic profiling procedure is to compare DNA from the defendant with DNA from the assailant. The matching process involves the use of two distinct disciplines: molecular biology and population genetics. ² The biological component of the test utilizes a process called Restriction Fragment Length Polymorphism (RFLP), where the specific alleles in polymorphic areas of the molecule are isolated, photographed, and measured. If the RFLP process concludes that a match exists, scientists then use population genetics to determine the probability that the match occurred merely by coincidence.

The first step of RFLP entails extracting DNA from both the evidence obtained from the victim and found at the crime scene and from samples provided by the defendant. It is then "cut" with chemical scissors at all places along the molecule where polymorphic chemical base pair sequences occur. The cut fragments are placed in a gel to which an electrical current is applied. The process, known as gel electrophoresis, causes the larger pieces to remain at one end of the gel and the smaller fragments to move to the other. Because gel consistency may vary and thus cause a difference in the speed with which the fragments move through the gel, the defendant's sample and the comparison sample are run on the same gel but in different tracks or lanes.

After the DNA fragments are sorted by size, they are transferred to a nylon membrane, which is easier to handle than the gel. During this stage, the DNA fragments are split lengthwise along each base pair so that the base pairs are separated into two strands. Next, radioactive probe markers designed to match or complement the single-stranded...