U.S. v. Davis, s. 94-5037

• Decision Date: 15 November 1994
• Docket Number: Nos. 94-5037,94-5053,s. 94-5037
• Citation: 40 F.3d 1069
• Parties: 40 Fed. R. Evid. Serv. 1036 UNITED STATES of America, Plaintiff/Appellee, v. Demareo Lamont DAVIS, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Dwayne Buford REED, Defendant/Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1069

40 F.3d 1069

40 Fed. R. Evid. Serv. 1036

UNITED STATES of America, Plaintiff/Appellee, v. Demareo Lamont DAVIS, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Dwayne Buford REED, Defendant/Appellant.

Nos. 94-5037, 94-5053.

United States Court of Appeals Tenth Circuit.

Nov. 15, 1994.

Jackson M. Zanerhaft, Tulsa, OK, for defendant-appellant Mr. Davis.

Richard Couch, Broken Arrow, OK, for defendant-appellant Mr. Reed.

Thomas Scott Woodward, Asst. U.S. Atty. (Steven C. Lewis, U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, HOLLOWAY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendants Demareo Davis and Dwayne Reed appeal their convictions resulting from an attempted armed robbery. The two men were convicted by a jury of: conspiracy to commit armed robbery of a credit union, in violation of 18 U.S.C. Secs. 371, 2113(a) & (d); entering a federally insured credit union with the intent to commit armed robbery, and aiding and abetting in this offense, in violation of 18 U.S.C. Secs. 2, 2113(a) & (d); and use of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. Sec. 924(c)(1). ¹ Although Mr. Davis and Mr. Reed file separate appeals, we decide both in this opinion. ² We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm both convictions.

BACKGROUND

On May 13, 1993, two men entered the McDonnell-Douglas Federal Credit Union in Tulsa, Oklahoma, wearing hoods over their heads. One of the men was armed, and fired a handgun at the security guard. The bullet entered the guard's desk, puncturing the desk blotter, but leaving the guard uninjured. The assailants were not so fortunate. When the security guard returned the fire, he wounded one man in the chest, and the other man in the buttocks. The two men fled the scene of the robbery in a stolen automobile, throwing items of clothing out the window as they drove away. The Tulsa police later recovered the bloodstained clothing, the stolen car, and a bloody bone fragment from inside the car. Among the clothing the police recovered was one pair of sweat pants with a bullet hole in the seat.

Shortly after the exchange, the authorities were summoned to a local hospital, where Mr. Davis had sought treatment for a gunshot wound to the chest. Several months later, the police pursued an unrelated suspect to a home in East Tulsa. An occupant gave the police permission to enter the home, wherein the police recognized Mr. Reed as one of the suspects in the credit union robbery. What occurred next is disputed. At a suppression hearing, Mr. Reed testified that the police handcuffed him, took him into a bedroom, and then pulled down his pants to examine his buttocks for a scar from a bullet wound. Two arresting police officers, on the other hand, testified that they asked Mr. Reed to remove his pants so they could examine his buttocks for a bullet wound and that Mr. Reed consented.

Mr. Reed then voluntarily accompanied the police to the police station. At the station, the police placed Mr. Reed under arrest and took him to a room where three police officers were present. One of the police officers made a telephone call in Mr. Reed's presence, and in his conversation made reference to the scar on Mr. Reed's buttocks. Mr. Reed overheard the conversation and interjected that he had injured himself by sitting on a nail.

Thereafter, the case proceeded to trial. During voir dire, the government exercised a peremptory challenge to strike a female African-American schoolteacher. The government stated that it had a practice of striking all schoolteachers from juries and also cited the prospective juror's inattentiveness during voir dire. Rec. vol. V, at 59.

At trial, the government introduced DNA evidence. All parties stipulated that Restriction Fragment Length Polymorphism (RFLP) DNA testing ³ is a generally accepted scientific technique. ⁴ Rec. vol. VII, at 351-54. The government then produced Special Agent Audrey Lynch to testify as an expert witness regarding DNA evidence. Agent Lynch testified about the protocol ⁵ for DNA testing, the actual physical procedures laboratory technicians use to conduct the tests, and the quality control techniques the Federal Bureau of Investigation (FBI) uses to insure accurate results. Specifically, she explained how the FBI analyzed blood samples recovered from blood on the bone chip and the clothing, and the test samples taken from Mr. Davis and Mr. Reed. She testified that the DNA sample recovered from the bone chip found in the abandoned car matched Mr. Davis's DNA, and that the blood on the recovered clothing matched Mr. Reed's DNA. Upon cross-examination, Agent Lynch stated that FBI technicians under her supervision conducted some of the actual laboratory tasks. Agent Lynch acknowledged that she was not present when the technicians conducted all the tests, but she testified that relying upon technicians was the usual procedure in her field.

Agent Lynch also testified about statistical probabilities of such "matches." She based her testimony on population genetics and stated that the frequency of such random matches among African-Americans to be 1 in 30,000 for Mr. Davis and 1 in 600,000 for Mr. Reed. The defendants objected to the admission of these statistics, arguing that their relevance was questionable because of the government's alleged failure to prove it had followed protocol. Rec. vol. VII, at 421-23. The district court overruled these objections, and allowed the jury to consider the testimony. Rec. vol. VII, at 432.

Also at trial, Mr. Reed objected to the admission of four photographs into evidence. Each photograph portrayed the damage to the security guard's desk from a different perspective. Mr. Reed argued that the trial court should have excluded these photographs as unfairly prejudicial under Rule 403 of the Federal Rules of Evidence.

Mr. Reed also attempted to introduce the testimony of an alibi witness on the first day of trial. The court excluded this testimony because Mr. Reed failed to disclose the witness earlier in the proceedings when the government made a Demand of Notice of Alibi under Fed.R.Crim.P. 12.1.

In closing arguments to the jury, Mr. Davis's attorney argued that the evidence against Mr. Davis was not as strong as the evidence against Mr. Reed and that the jury should not convict Mr. Davis because of the evidence against Mr. Reed. Rec. vol. VIII, at 559. Mr. Reed objected and moved the district court to declare a mistrial. The court denied Mr. Reed's motion. The district court instructed the jury that it should consider the evidence against each defendant separately, and that counsels' arguments were not evidence for them to consider.

DISCUSSION

Admission of Testimony Regarding DNA Evidence

Both Mr. Davis and Mr. Reed contend that the trial court erred by admitting DNA evidence at trial. They argue that the court failed to adequately investigate whether the government followed protocol, and therefore that the government failed to establish the reliability of the DNA testing in this case. Mr. Reed also argues that the government's expert relied upon hearsay in forming her opinion and was not qualified to testify regarding DNA evidence. Mr. Reed further argues that the district court erred in permitting the expert to testify to statistical probabilities. We review a trial court's admission of evidence, including scientific evidence, under an abuse of discretion standard. United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 175, 130 L.Ed.2d 110 (1994).

Although they did not cite the case at trial, Mr. Davis and Mr. Reed argue on appeal that the Supreme Court's recent opinion regarding scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S ----, ----, 113 S.Ct. 2786, 2798, 125 L.Ed.2d 469 (1993), requires a district court to find that the party offering DNA evidence followed protocol and that the district court erred by not investigating the testing process more fully. In Daubert, plaintiffs claimed that the drug Bendectin caused birth defects. The defendant drug manufacturer moved for summary judgment, arguing that no published study had found Bendectin to cause birth defects in human beings. The plaintiffs did not contest the drug company's characterization of the published research, but instead offered testimony of eight experts who concluded that, based upon animal research, laboratory tests, and reanalysis of published human studies, Bendectin could cause birth defects in children. The district court granted the drug company's motion for summary judgment. The district court reasoned that the plaintiffs' scientific evidence did not meet the Frye "general acceptance" standard because it was not "sufficiently established to have general acceptance in the field to which it belongs." Daubert, --- U.S. at ----, 113 S.Ct. at 2792 (quoting Daubert v. Merrell Dow Pharmaceuticals Inc., 727 F.Supp. 570, 572 (S.D.Cal.1989)); see also Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Ninth Circuit affirmed, basing its decision upon the district court's adoption of the Frye standard.

The Supreme Court reversed, however, holding that the adoption of Fed.R.Evid. 702 overruled the Frye general acceptance standard. Daubert, --- U.S. at ----, 113 S.Ct. at 2794. The Court held that the standard for the admission of scientific evidence under the Federal Rules is not the Frye general acceptance standard, but rather whether the evidence will " 'assist the trier of fact to understand the evidence or to determine a fact in issue.' " Id. at ----, 113 S.Ct. at 2795 (quoting Fed.R.Evid. 702). The Court reasoned that the "liberal thrust" of the Federal Rules of Evidence, id. at ----, 113 S.Ct. at 2794 requires a more "flexible" approach than Frye 's general acceptance threshold. Id. at ---- - ----, 113 S.Ct. at 2797-98. The...