State v. Vandebogart

• Decision Date: 20 November 1992
• Docket Number: No. 92-016,92-016
• Citation: State v. Vandebogart, 136 N.H. 365, 616 A.2d 483 (N.H. 1992)
• Parties: The STATE of New Hampshire v. Daniel VANDEBOGART (DNA).
• Court: New Hampshire Supreme Court

Page 483

616 A.2d 483

136 N.H. 365

The STATE of New Hampshire v.Daniel VANDEBOGART (DNA).

No. 92-016.

Supreme Court of New Hampshire.

Nov. 20, 1992.

John P. Arnold, Atty. Gen., and Nelson, Kinder, Mosseau & Gordon, P.C., Manchester (Peter G. Beeson on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, and Albert E. Scherr, Public Defender, Concord (James E. Duggan and Albert E. Scherr on the brief, and Albert E. Scherr orally), for the defendant.

THAYER, Justice.

The defendant, Daniel Vandebogart, appeals from his conviction for first degree murder, RSA 630:1-a, based on a jury verdict in the Superior Court(Mohl, J.).Upon motion by the State, we bifurcated the defendant's appeal in order to expedite our consideration of issues he raises relating solely to the admissibility of forensic DNA profiling.The defendant complains that the trial judge misapplied the legal standard for admitting novel scientific evidence under Frye v. United States, 293 F. 1013(D.C.Cir.1923), andState v. Coolidge, 109 N.H. 403, 260 A.2d 547(1969), rev'd on other grounds, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564(1971).We reverse and remand.

On September 12, 1989, Kimberly Goss was raped and murdered.In October, the New Hampshire State Police asked the FBI to perform forensic DNA analysis.Subsequently, the FBI's DNA laboratory received a package of forensic samples which included known blood samples from Kimberly Goss and the defendant together with two vaginal swabs taken from Kimberly Goss at her autopsy.On February 27, 1990, the FBI's DNA laboratory reported to the New Hampshire State Police that the genetic profile of the defendant's blood sample matched the genetic profile of semen found on the vaginal swabs at three genetic locations.The FBI further reported that the probability that an unrelated individual selected at random from the Caucasian population would have a genetic profile matching the defendant's at those three locations was 1 in 50,000.

Prior to trial, the defendant filed a motion in limine seeking to exclude the DNA evidence of a match and the probability calculation.In response to the defendant's motion, the trial court held a pretrial Frye hearing which lasted ten days.At the hearing, the court heard expert testimony from five witnesses for the prosecution and three for the defendant.The State's witnesses and their backgrounds were as follows: (1)Dr. Dwight Adams, a biologist, a member of the American Academy of Forensic Sciences, and the FBI special agent responsible for the DNA analysis in this case; (2)Dr. Steven Daiger, Professor of Medical Genetics at the University of Texas Health Science Center; (3)Dr. David Goldman, Chief of the Genetics Studies Section of the National Institutes of Alcohol Abuse and Alcoholism, National Institute of Health; (4)Dr. Michael Conneally, Distinguished Professor of Medical Genetics and Neurology at Indiana University Medical Center; and, as a rebuttal witness, (5)Dr. Bruce Budowle, a molecular biologist and human population geneticist in charge of the FBI's DNA research program.The following witnesses testified for the defendant: (1)Dr. William Shields, Professor at State University of Environmental Science Technology, Syracuse, New York; (2)Dr. Joseph Nadeau, a scientist working at Jackson Laboratory and recipient of a Ph.D. in population genetics from Boston University; and (3)Dr. Everett Mendelsohn, a Professor of History of Science at Harvard University with a Ph.D. in the History of Science.

Following the hearing, the court issued an order denying the defendant's motion.After a trial in which the evidence derived from the DNA testing was admitted, the jury convicted the defendant of first degree murder, and the court sentenced him to life in prison without parole.

In this portion of the defendant's bifurcated appeal, the sole issue for our consideration is whether the trial court properly applied the standard for admissibility of novel scientific evidence.The defendant argues here, as he did below, that the proper test for admissibility of novel scientific evidence requires a three-prong analysis under Frye and Coolidge, and that the trial court erred by not applying the second and third prongs.Specifically, he contends that the trial court only examined the general acceptance of the theory underlying DNA profiling, and that if it had properly applied the second prong, it would have found that the particular technology used by the FBI to perform the DNA profiling analysis was not generally accepted as reliable by the relevant scientific community.The State responds that the trial court properly applied the Frye standard and that in its order the court correctly found that both the theory and technology of DNA profiling were generally accepted.

I. DNA Background

A basic understanding of the theories and procedures involved in DNA profiling is necessary to understand the legal issues surrounding its use as evidence in court.Therefore, before we discuss the issues surrounding the admissibility of novel scientific evidence, we shall first consider the general nature of the particular evidence the State sought to have admitted.We derive our scientific exposition of DNA and DNA profiling from testimony given at the Frye hearing and from a report entitled "DNA Technology in Forensic Science," which the National Research Council published in April 1992.For more comprehensive descriptions of these topics, seeUnited States v. Jakobetz, 747 F.Supp. 250, 250-54(D.Vt.1990), aff'd, 955 F.2d 786(2d Cir.1992), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63(1992);People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643, 645-50(County Ct.1988);E. Imwinkelried, The Debate in the DNA Cases over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis, 69 Wash.U.L.Q. 19(1991);W. Thompson & S. Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev. 45(1989).

A. DNA Theory

Deoxyribonucleic acid (DNA) is an organic substance found in the chromosomes contained in the nucleus of a cell.It provides the genetic blueprint that determines the physical structures and individual characteristics of every living organism--humans, animals, plants, and even bacteria.In humans, DNA exists in all cells that have a nucleus, including white blood cells, sperm, cells surrounding hair roots, and the cells in saliva.These are the cells most often discovered at crime scenes and are the most useful in forensic DNA analysis.

With exceptions not relevant here, DNA does not vary within an individual, i.e., the DNA contained in one cell in an individual will be identical to the DNA contained in every other cell of that individual.For forensic purposes, the important characteristic of DNA is that, excepting identical twins, no two persons have the same DNA structure.

The DNA molecule is shaped like a double helix which resembles a twisted ladder.Each component strand of the helix, similar to the rungs on a ladder, consists of a sequence of nucleotides.The nucleotides are sometimes referred to as bases.There are four types of nucleotides in the DNA molecule, and they are designated as adenine (A), guanine (G), cystonine (C), and thymine (T).The nucleotides bond in predictable patterns, A to T and C to G.A pair of complementary bases--A-T, T-A, C-G, or G-C--is designated as a base pair.The order in which these base pairs appear on the DNA ladder constitutes the genetic code for the cell.This code carries the necessary information to produce the many proteins which comprise the human body.A sequence of base pairs responsible for producing a particular protein is called a "gene."A gene, the basic unit of heredity, consists of a sequence of between 1,000 and 2 million nucleotides.Scientists estimate that the human genome, the complete genetic makeup of a person, contains 50,000 to 100,000 genes and that in a human set of 23 chromosomes there are about 3 billion nucleotides.

Inheritable characteristics are controlled by pairs of genes, or alleles, which occupy the same sites, or loci, on paired chromosomes.One of each pair of alleles is inherited from the father, and one is from the mother.When the alleles that comprise a pair differ, the individual is said to be "heterozygous" for that allele.When the maternal and paternal alleles in a pair are the same, the individual is "homozygous."A particular combination of alleles is referred to as a genotype.

DNA technology allows scientists to detect genetic variations.A characteristic that differs among individuals is termed a polymorphism.In DNA profiling, the terms polymorphism and variation are used interchangeably.Some regions of DNA contain repetitive strings of nucleotides that are highly polymorphic.These are called "variable number tandem repeats"(VNTRs).At VNTRs, the number of repetitions of a nucleotide sequence can vary among individuals.For this reason, VNTRs are commonly used as genetic markers to detect variations.

A variation of even one nucleotide in the sequence of DNA is detectable.Such a variation can be detected by applying a biological catalyst, called a "restriction enzyme," to the DNA.The restriction enzyme will cut the DNA into fragments of different lengths depending on the cutting sites recognized by the enzyme.These fragments of varying lengths are called "restriction fragment length polymorphisms"(RFLPs).Differences among individuals can be detected by the differences in the lengths of restriction fragments.Because of its extensive variability, the VNTR class of RFLPs is the most useful in distinguishing among individuals.

B. DNA Profiling Techniques

DNA profiling can inculpate a criminal suspect by comparing the suspect's genetic material with genetic material obtained from human tissue left at the crime...