PEOPLE v ADAMS
Docket No. 125921
Court of Appeals of Michigan
August 3, 1992
195 Mich App 267
Submitted February 5, 1992, at Lansing. Decided August 3, 1992, at 9:25 A.M. Leave to appeal sought.
The Court of Appeals held:
1. The trial court did not err in allowing the test results in evidence. The prosecution established that DNA identification testing is generally accepted as reliable in the scientific community. Trial courts may take judicial notice of such reliability and may admit test results into evidence where the prosecution establishes that generally accepted laboratory procedures were followed. The company that did the testing in this case followed such procedures.
2. The triаl court did not abuse its discretion in admitting into evidence the statistical analysis of the DNA identification testing. The record contains an adequate foundation and proof of independence of the analysis, and the evidence was relevant.
3. The trial court failed to articulate, either on the record or on the sentencing information report, sufficient reasons for departing from the sentencing guidelines range. The proper
Convictions affirmed, sentences vacated, and case remanded for resentencing.
GRIFFIN, J., dissenting in part, stated the trial court adequately articulated its reasons for departing from the sentencing guidelines, and that the sentences are valid and proportionate to the seriousness of the circumstances surrounding the offenses and the offender. A remand for completion of the sentencing information report guideline departure form is all that is necessary.
1. CRIMINAL LAW - EVIDENCE - DNA IDENTIFICATION TESTING - STATISTICAL ANALYSIS.
Deoxyribonucleic acid (DNA) identification testing is generally accepted in the scientific community as reliable; trial courts may take judicial notice of such reliability and may admit test results into evidence where the prosecution establishes that generally accepted laboratory procedures have been followed; statistical analysis of the DNA identification testing may be admitted where an adequate foundation and proof of its independence is shown.
2. CRIMINAL LAW - SENTENCES - SENTENCING GUIDELINES - DEPARTURE - ARTICULATION OF REASONS.
A court that imposes a sentence that exceeds the sentencing guidelines’ recommended minimum range must articulate, both on the record at sentencing and on the sentencing information report, its reasons for departure from the sentencing guidelines range; the proper remedy for failure to articulate where the sentence imposed exceeds by three times the minimum sentence recommended by the guidelines is to vacate the sentence and to remand for resentencing.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Faintuck, Shwedel & Wolfram (by William G. Wolfram), for the defendant on appeal.
HOLBROOK, JR., P.J. Defendant appeals as of right his jury conviction of one count of kidnapping,
The Davis-Frye rule, adopted from People v Davis, 343 Mich 348; 72 NW2d 269 (1955), and Frye v United States, 54 App DC 46, 47; 293 F 1013 (1923), allows the admission of expert testimony regarding novel scientific evidence only if that evidence has gained general acceptance among scientific experts in the field. The party offering the evidence carries the burden of demonstrating its acceptance in the scientific community. People v Young, 418 Mich 1, 21, n 7; 340 NW2d 805 (1983); People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991). The trial court‘s findings of fact regarding this issue will not be disturbed on appeal unless they are clearly erroneous.
Before reviewing the laboratory procedures, an understanding of the structure of the DNA molecule is necessary. The molecule is a double helix, shaped like a twisted ladder. Phosphate and deoxyribose sugar form the rails of the ladder. Four chemical bases—Adenine (A), Cytosine (c), Guanine (G), and Thymine (T)—lie next to each other on the sugar links along the sides of the ladder. Each A always bonds with a T on the other side of the ladder, and each c always bonds with a G on the othеr side of the ladder, so that the possible base pairs on the ladder are A-T, T-A, C-G, and G-c. The base pairs are connected by a hydrogen bond, such that the bonds form the rungs of the ladder. There are approximately three billion base pairs in one DNA molecule. Although no two human beings have the same sequence of base pairs (except for identical twins), we share many sequences that create common characteristics such as arms, legs, fingers, and toes. The sequences of variation from person to person are known as polymorphisms. They contain different alleles, which are alternate forms of a gene capable of occupying a single location on a chromosome. Polymorphisms are the key to DNA identification because they create the individual characteristics of everyone and are detectable in laboratory testing.
As described in the lower court proceedings, testing for DNA identification involves several procedures. Cellmark Diagnostics is the company that did the laboratory testing in this case. The preliminary procedure is extracting a DNA molecule from a cell. This can be accomplished by a protein enzyme, proteinase, and a soap breaking the cell membrane. Organic solvents are used to separate the DNA from protein, carbohydrates, and lipids.
The next step in the process is electrophoresis, which separates the different sizes of DNA.1 The DNA is placed in a gel called agarose. The gel contains lanes. A DNA sample from the victim, the suspect, and from the crime scene evidence is loaded into separate lanes. Because DNA has a negative electrical charge, a positive current is run through the gel. The smaller, lighter fragments migrate toward the positive electrode faster than the bigger, heavier fragments. The DNA is then filtered to another medium where the fragments can be better seen. The DNA is stained with ethidium bromide so that it can be illuminated by ultraviolet light.
After separating the DNA by size, the two strands of the double-helix DNA are denаtured. A solution of alkali separates the DNA, like opening a zipper or splitting the rungs of the ladder. The single strands of DNA are then transferred onto a nylon membrane. The process of transferring the DNA from the gel to the nylon membrane is known as “Southern blotting,” named for the person who originated the technique, E.M. Southern. In fact, the first six steps in the process, from the cutting of the DNA by the enzyme to the making of the autoradiogram (discussed below), are sometimes referred to as Southern blotting.
The results of the autoradiogram are then interpreted by examining the bands to determine if thеy match. This process, as well as the statistical analysis, was explained in People v Axell, 235 Cal App 3d 836, 847; 1 Cal Rptr 2d 411 (1991):
Essentially the bands on the autorad from the victim‘s, suspect‘s, and crime scene evidence samples are “eyeballed” to see if they match within a certain measurement. If a match is declared, the likelihood that a match is unique must be determined. A match is said to occur if the sizes and number of the detected DNA fragments in various lanes are indistinguishable within a permissible degree of error. To calculate the permissible degree of error, Cellmark uses “resolution limits” as a unit of measurement to ascertain the “bin” or frequency at which an allele occurs in the population data base.
* * *
To make a statistical evaluation of the data obtained from a DNA typing, it is necessary to know how frequently in the population a band of a certain size will be found, a question answered according to the principles of population genetics. Each probe recognizes a pair of bands—one from
each parent. The probability of the combination of two particular bands recognized by one of the probes is calculated by multiplying the product of the frequencies of the two bands by two. The probability of the band patterns from all four loci is determined by multiplying the products from all four loci. This is known as the “product” or multiplication rule. The validity of this procedure presupposes that each fact observed, and entering into the calculation, is random and independent of the others, or adjustments are made for deviations from conditions known as “Hardy-Weinberg equilibrium” and “linkage equilibrium.” The Hardy-Weinberg principle is an algebraic equation that describes the genetic equilibrium within a population, assuming random mating. A homozygote is an individual who has inherited the same allele (or same length allele) from bоth parents. If the incidence of homozygosity far exceeds the expected frequency of that condition, then the data base population is not in Hardy-Weinberg equilibrium. [Citations omitted.]
For a further, more detailed explanation of the DNA identification process and statistical analysis, see People v Castro, 144 Misc 2d 956, 964-970; 545 NYS2d 985 (1989).
At the pretrial hearing in this case, the preliminary examination testimony of Doctor David Houseman was incorporated into the record. Dr. Houseman is a professor of molecular biology at the Massachusetts Institute of Technology. He reviewed Cellmark‘s procedures at their laboratоry. He testified that Southern blotting was applied worldwide in the diagnosis of genetic conditions such as cystic fibrosis, muscular dystrophy, and Huntington‘s disease. He stated that the test was generally accepted in the scientific community as reliable.
The prosecution first presented at the hearing
The prosecution next called Doctor Michael Imperiale as an expert witness. Dr. Imperiale is an assistant professor of microbiology and immunology at the University of Michigan. He uses the Southern blotting technique in studying cancer-causing viruses. After reviewing Cellmark‘s protocols and visiting their laboratory, Dr. Imperiale stated that Cellmark‘s procedures conformed to his laboratory‘s standards regarding Southern blotting.
The next expert presented by the prosecution was Doctor George Herrin, Jr. His entire hearing testimony is not included in the lower court record provided to this Court. Nevertheless, Dr. Herrin, the DNA unit supervisor at the Georgia Forensic Laboratory and former staff scientist at Cellmark, testified at trial that the RFLP test was generally accepted in the scientific community.
The final expert called by the prosecution to testify at the hearing was Doctor David Ginsburg, who is employed at the University of Michigan medical school as a molecular biologist focusing on the genetics of bleeding disorders. He routinely uses the Southern blotting technique in the laboratоry. Dr. Ginsburg also observed Cellmark‘s method of operations and reviewed their protocols. He concluded that the Southern blotting technique
Defense counsel then called an expert witness, Doctor Robert Bever. Dr. Bever is an associate director at Genetic Design, Incorporated, a paternity testing laboratory. He is familiar with and has performed the Southern blotting technique. He also stated that the DNA identification as performed by Cellmark is generally acceрted within the scientific community as reliable.
All the expert witnesses testified that DNA identification is generally accepted in the scientific community. These witnesses were unquestionably disinterested and impartial experts in this particular field. People v Young (After Remand), 425 Mich 470, 479-480; 391 NW2d 270 (1986). Further, the Congressional Office of Technology Assessment has found that DNA identification testing is valid and reliable in forensics when properly performed and analyzed by skilled personnel. Axell, pp 858-859. Indeed, all other jurisdictions that have addressed the admissibility of the results of DNA identification testing, under either a Davis-Frye standard or a reliability test under rules of evidence, have concluded that DNA identifiсation testing is reliable. Axell, p 856; Castro, p 973 (although the procedure is reliable, the evidence was inadmissible because the testing laboratory failed to use generally accepted scientific techniques); United States v Jakobetz, 955 F2d 786 (CA 2, 1992); Prater v State, 307 Ark 180; 820 SW2d 429, 436 (1991); Commonwealth v Curnin, 409 Mass 218; 565 NE2d 440 (1991); People v Lipscomb, 215 Ill App 3d 413; 574 NE2d 1345, 1357 (1991); Hopkins v State, 579 NE2d 1297, 1302 (Ind, 1991); State v Brown, 470 NW2d 30, 32-33 (Iowa, 1991); Smith v Deppish, 248 Kan 217, 238; 807 P2d 144 (1991);
Defendant in this case acknowledges that gel electrophoresis is a generally accepted scientific mеthod, but protests that the forensic application of the method is invalid. He raises the problem of crime-scene contamination. He also mentions the scarcity of DNA samples from the crime scene that limits the availability of repeated testing.
We do not require scientific tests to be infallible, but only that reasonable certainty follow from them. People v Barbara, 400 Mich 352, 365; 255 NW2d 171 (1977). Dr. Imperiale testified that if contamination were to occur, the testing would yield no result because of the total degradation of the DNA molecule. Alternatively, contamination would result in extra bands appearing on the autoradiogram. Cоmpare Young (After Remand), p 500 (the effects of contamination on electrophoresis was not clear.) Unlike Castro, there was no indication of extra bands in this case. Dr. Blom-
We conclude that the trial court did not clearly err in finding that the prosecution established that DNA identification testing is generally accepted in the scientific community as reliable. Given the overall acceptance of the technique in other jurisdictions, we hold that trial courts may take judicial notice of the reliability of DNA identification testing. Woodall; Jakobetz. Nevertheless, before a trial court admits the test results into evidence, the prosecutor must establish in each particular case that the generally accepted laboratory procedures were followed. See Barbara, p 415; People v Lucas, 188 Mich App 554, 580; 470 NW2d 460 (1991); Cf. Jakobetz. We are satisfied that Cellmark followed the generally accepted procedures in this cаse.2
Defendant argues that the statistical analysis of the DNA identification testing is inadmissible at trial. He questions the notion of the Hardy-Weinberg equilibrium, contending that populations fail to randomly mate because identifiable subpopulations tend to mate within their own ethnic community because of economic forces and lack of
Defendant‘s contentions are inconsistent with the testimony presented in the lower court. Dr. Ginsburg testified that he was familiar with the gene and allele frequency computations of Cellmark and thought they were valid. He stated that their calculations tended to be conservative. The markers Cellmark uses are highly polymorphic, meaning that the results of the testing include numerous possibilities of alleles. Consequently, the possibility of an independent match of bands can be calculated to a high degree of probability. Defendant‘s expert witness, Dr. Bever, did not question the validity of Cellmark‘s computations, but only stated that he would be more confident of the results if Cellmаrk used a larger database. Notwithstanding this concern, one expert testified that a statistical analysis can be recomputed using the latest available database without repeating the Southern blotting procedures.
The defendant fails to persuade us that the admission of DNA identification evidence will lead to an improper trial by mathematics. In People v Collins, 68 Cal 2d 319; 438 P2d 33 (1968), the Supreme Court of California held that the trial court erred in admitting without an adequate evidentiary foundation and proof of statistical independence evidence regarding the mathematical probability of persons with the defendant‘s characteristics having committed the robbery. Unlike
Some courts of other jurisdictions have ruled that DNA identification evidence is admissible at trial, but have then refused to allow into evidence the statistical analysis of the testing because the databases were shown to have not been in Hardy-Weinberg equilibrium. Curnin, pp 225-227; Caldwell, pp 289-290; State v Pennell, 584 A2d 513, 517-520 (Del Super, 1989). However, other courts have recognized that conservative or reduced calculations such as those used by Cellmark may correct any Hardy-Weinberg deviation problems. Axell, p 868; Caldwell, p 289; Castro, p 969. The statistical analysis of DNA testing is inadmissible in some jurisdictions because of its prejudicial effect. Schwartz, pp 428-429; Pennell, pp 519-520. On the other hand, sоme courts have held that such evidence is a matter of weight for the jury. Axell, p 868; Hopkins, p 1303; United States v Yee, 134 FRD 161 (ND Ohio, 1991). In this case, Dr. Blomberg stated at the pretrial hearing that Cellmark properly calculated the allele frequency. She testified that the standard deviation from repeatedly running the sample molecules through one gel was so small that it was inconsequential. More-
Turning to the issue concerning the defendant‘s sentences, we agree with the defendant that the trial court failed to articulate sufficient reasons for departing from the sentencing guidelines range. Under the principle of proportionality, we review the defendant‘s sentences to determine whether they are proportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990); People v Witcher, 192 Mich App 307, 308; 480 NW2d 636 (1991). The sentencing court is required to state on the record the criteria considered and the facts supporting the sentence imposed in order to aid the appellate review of sentences imposed. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987); People v Poppa, 193 Mich App 184, 189-190; 483 NW2d 667 (1992). Where the sentence imposed is within thе recommended guidelines range, reference to the guidelines alone constitutes sufficient explanation. People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). However, where the sentence imposed exceeds the recommended minimum range, the trial court must articulate both on the record at sentencing and on the sentencing information report its reasons for departing from the guidelines. Fleming; People v Johnson, 187 Mich App 621, 630; 468 NW2d 307 (1991).
In this case, the sentencing guidelines recommended a minimum range of six to fifteen years for the kidnapping conviction, and the trial court sentenced the defendant to life imprisonment for
Convictions affirmed, sentences vacated, and case remanded for resentencing in accordance with the principle of proportionality.
MARILYN KELLY, J., concurred.
GRIFFIN, J. (concurring in part and dissenting in part). I concur in that portion of the majority‘s opinion recognizing the scientific acceptability of DNA identification testing. Further, I join my colleagues in affirming the admissibility of the DNA identification testing in this case and in affirming defendant‘s convictions. I dissent, however, with regard to the remand for resentencing.
The majority has acted beyond its authority in
The majority opinion contains no finding that the sentences at issue are invalid. Rather, the majority vacates the sentences and orders resentencing “[b]ecause the dеfendant‘s sentences were more than three times as long as the recommended minimum term of years and because the court failed to state specifically its reasons for departing from the guidelines.” Ante, p 281.
First, I respectfully disagree with the majority‘s conclusion that the sentencing judge did not adequately articulate his reasons for departing from the sentencing guidelines. In sentencing defendant, the Honorable Fred M. Mester acknowledged that the sentences imposed exceeded the guidelines. However, Judge Mester stated that he was departing from the guidelines because of defendant‘s extremely violent propensities, the serious danger defendant posed to the community, the heinous nature of the multiple crimes committed, and the extreme suffering inflicted upon the victim. Such reasons are sufficient to justify a departure from the guidelines and for the imposition of the maximum penalty allowed by law. See People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and People v Redman, 188 Mich App 516; 470 NW2d 676 (1991). I find the articulation more than adequate.
I further note that the relief ordered by my
The second reason my colleagues give for vacating the sentences is that the sentencing guidelines have been exceeded. However, departure from the guidelines is not itself a reason to vacate a valid sentence. Recently, in People v Redman, supra, we affirmed sixty- to ninety-year sentences, sentences out of the guidelines range, for first-degree criminal sexual conduct and kidnapping convictions, holding that the sentences recommended by the guidelines were disproportionate to the heinous nature of the offense. Similarly, I find the sentences recommended by the guidelines in the present case disproportionate to both the seriousness of the offense and the background оf the offender.
As noted by the sentencing judge, defendant is an exceptionally dangerous individual who has no respect for authority and no sense of morality. At sentencing, defendant remained defiant and unrepentant, turning his back to the judge while his sentences were pronounced. At the conclusion of the hearing, defendant made the following rebellious vow:
The defendant: I‘ll be back.
Approximately a month before the present criminal episode, defendant committed substantially similar acts of first-degree criminal sexual conduct, kidnapping, and armed robbery in Macomb County. According to the presentence report, thеse prior offenses “involve[d] several identical elements to our instant case.” Specifically, defendant, while armed with a knife, abducted a woman,
The facts in the present case are equally as horrendous and have been aptly described by the prosecutor as follows:
This case presented a situation embodying a woman‘s worst fear: abduction and brutal rape by an armed stranger—the fear of violent death and the violation of one‘s most intimate and private being. A knife was held to the victim‘s throat. She was forced to endure the pain and humiliation of forced sexual penеtration—both oral and vaginal. The horror she was forced to endure will last as long as she lives.
Additionally, I note that the abduction occurred in a Kmart parking lot shortly before the victim was to pick up her husband at the airport. During the kidnapping, defendant used his knife to cut the victim‘s face and both of her hands. Defendant repeatedly held the knife at the victim‘s throat and before the rape threatened to slash her between the legs. The victim was thoroughly terrorized and convinced that she was going to die.
Defendant was convicted of three high-severity felonies: first-degree criminal sexual conduct, armed robbery, and kidnapping. Each offense is separately punishable by a sentence of up to life in prison. After thoroughly reviewing the record, I find defendant‘s sentence of life imprisonment for his kidnapping conviction and sentences of 70 to 150 years for his convictions of first-degree criminal sexual conduct and armed robbery proportionate to the seriousness of the circumstances surrounding the offenses and the offender. Accordingly, I would affirm.1