40 Mass. App. Ct. 236 | Mass. App. Ct. | 1996
During the night of August 1, 1990, a masked intruder broke into a home in Acushnet and raped the victim, who lived there with her two small children. Through fingerprint comparison, blood serology analysis, and DNA
The history in Massachusetts of, first, critical appraisal and, ultimately, acceptance of DNA match evidence is written in Commonwealth v. Curnin, 409 Mass. 218 (1991); Commonwealth v. Lanigan, 413 Mass. 154 (1992); Commonwealth v. Daggett, 416 Mass. 347 (1993); and Commonwealth v. Lanigan, 419 Mass. 15 (1994) (Lanigan II). See also Commonwealth v. Vega, 36 Mass. App. Ct. 635, 637-638 (1994). We do not repeat the description of technology recounted in those opinions.
Here, presentation of the DNA match evidence accorded with the standards summarized in Lanigan II. There was testimony from a physical science technician, John Lawrence Quill, who was the supervisory special agent at the DNA unit of the FBI Laboratory. Quill described the methodology of DNA matching, including: how DNA is extracted from a specimen and then purified; the use of biological scissors to cut up the DNA; making the strands of DNA radioactive and producing an image through contact on X-ray film. From the images on the film, the technician makes an interpretation. The task of interpretation is done visually and also by computer assisted analysis of a digitalized form of the X-ray image.
In the course of making his analysis, Quill examined a control lane containing DNA from a known individual against which he compared each step of preparing the suspect’s DNA sample for interpretation. That acted as a check against laboratory errors as the examination proceeded. There was also a
By application of the methodology he had described, Quill determined that the DNA profile of the defendant matched DNA taken from a vaginal swab, as well as that from semen extracted from a leotard worn by the victim.
The next question was the probability that the match might be a random one. As to that, the prosecution presented Bernard Devlin, a biostatistician from Yale University. In assessing the probability that the DNA might match with someone other than the defendant, Devlin applied the approach recommended by a committee of the National Research Council of the National Academy of Sciences in an April, 1992, report entitled “DNA Technology in Forensic Science” (the NRC Report). The NRC recommends calculating the odds of a random match against various population subgroups which might have a greater frequency of distinct genetic alleles. In the instant case, Devlin used data bases for Caucasians, for African-Americans, for southeastern Hispanics, and for southwestern Hispanics. He applied what has been described as the “ceiling principle,” described by Devlin as calculating the upper bound of a range of probabilities, a method which reduces the odds — and, therefore, increases the probability — of a random match. On the basis of the NRC recommended technique, Devlin arrived at a determination that the probability of occurrence of the defendant’s pattern of DNA was one in 266,000 for an unrelated individual (i.e., other than a blood relative) in the population. Devlin later altered the odds to 1:262,000.
The NRC Report considered as an additional significant variable the chance that a laboratory made a mistake in preparation and analysis. NRC Report at 88-89. Thwarted by
Infallibility would be remarkable in any laboratory, and the FBI’s claim of it hung at trial as a ripe target for cross-examination or rebuttal. Critics of the FBI’s posture of perfection point to the subjective factors that perforce are involved in DNA band matching, even in connection with the “objective” computer assisted analysis phase. Laboratory error leading to false matching may also occur as a result of confusion of DNA samples. See, e.g., Thompson, “Subjective interpretation, laboratory error and the value of forensic DNA evidence: three case studies,” Genética (January 1994).
During neither the hearing on the motion to suppress nor the trial, however, did the defense raise the laboratory proficiency issue. With five relatively rare exceptions, an appellate court does not consider an issue that was not raised at trial. Commonwealth v. Young, 401 Mass. 390, 404 (1987). Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 14 (1986). Commonwealth v. Almeida, 34 Mass. App. Ct. 901, 903 (1993). Two of those exceptions,
As to clairvoyance about laboratory proficiency testing, that issue, as indicated, had been discussed in the NRC Report. The prosecution delved into proficiency questions, however lightly, and we think that thereafter it fell to the defense to explore weaknesses in how scientists and technicians at the FBI laboratory went about their work and arrived at their conclusions. It was not the burden of the prosecution to disprove all categories of uncertainty in the FBI laboratory’s DNA methodology. Weaknesses in the laboratory’s proficiency testing went to the weight to be ascribed to the evidence of match, not to its admissibility. See United States v. Bonds, 12 F.3d 540, 560 (6th Cir. 1993). State v. Anderson, 118 N.M. 284, 297-298 (1994).
Finally, the defense argues that agent Quill’s assertion that he knew of no false positives was tantamount to scientific fraud and fatally infected the prosecution. There was no motion to strike that testimony. The defendant shies away from claiming ineffective assistance of counsel, and well he should, as his trial counsel mounted a vigorous and informed assault on the three categories of scientific evidence adduced by the prosecution. The judge was not bound, on his own, to strike or comment upon Quill’s testimony as to error rate. It may
Judgments affirmed.
Deoxyribonucleic acid (DNA).
The defendant received a sentence of from nineteen to twenty years at M.C.I., Cedar Junction, for the rape. For the breaking and entering in the nighttime, the judge imposed a sentence of from ten to fifteen years to be served from and after the previous sentence, suspended for ten years. The remaining convictions were placed on file.
Decided in November, 1994, well after Teixeira’s trial, which occurred in April, 1993.
Although the Thompson article was written after the Teixeira trial, the issue of laboratory error was discussed in the NRC Report. That report was not only available but referred to during the trial proceedings, including the suppression motion.
For a discussion of the five exceptions to the traditional rule that a point not raised at trial is barred on appeal, see Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 15-18 (1986).