Charles Wendell Snowden was convicted of burglary in the first degree and rape in the first degree. He was sentenced, upon a showing of three prior felonies, to concurrent terms of life imprisonment without parole under the Habitual Felony Offender Act. He raises two issues on this appeal from those convictions.
On July 26, 1988, a black male burglarized a residence in Montrose, Alabama, and raped N.M. The assailant fled on foot. The victim immediately reported the attack to the Fairhope police, who arrived within minutes. Soon thereafter, tracking dogs from the State prison at Atmore were brought to the scene. The dogs picked up a scent at a spot believed to be the intruder's point of exit, and they followed the scent through woods and fields for several hours, eventually leading the trackers to the residence of the defendant's mother. The defendant, who was inside taking a bath, was arrested.
The victim was taken to a physician in Fairhope who performed a "rape kit" examination, which included extracting blood, hair, and vaginal swabs from N.M. Pursuant to an order of the Baldwin Circuit Court, samples of blood, hair, and saliva were also taken from the defendant. Forensic serologists at Lifecodes Corporation in Valhalla, New York, performed a deoxyribonucleic acid (DNA) print analysis on the specimens. Their analysis revealed that the DNA present in known samples of the defendant's blood matched the DNA in semen stains found on the victim's shorts, panties, and vaginal swabs.
Dr. Michael Baird of Lifecodes testified that the specimens in this case were analyzed by probing five "regions" of the genetic material. He stated that there was a DNA "match" on each of these regions. Dr. Baird concluded that the "frequency of occurrence of the pattern seen with the five probes in this system simultaneously in the black population is approximately one in eleven billion," with a "minimum value" of one in 2.5 billion and a "maximum value" of one in 27 trillion.
The defendant claims that the DNA test results were inadmissible because the State failed to prove a proper chain of custody of the biological samples. He also contends that Dr. Baird's "mathematical probability" conclusions regarding the test results were inadmissible because the State did not establish (a) that Dr. Baird was an expert in mathematical probabilities, and (b) that the probability calculations were reliable and generally accepted in the scientific community. He further asserts that "the use of mathematical probabilities has no place in the criminal trial process." Brief of Appellant at 16.
Dr. Mitzi Childs, a physician specializing in obstetrics and gynecology, examined N.M. following the rape which occurred on July 26. She collected samples of blood and hair, as well as vaginal swabs and smears from the victim. The doctor handed each item to the attending nurse, Ty Baker. Ms. Baker labelled and sealed each item according to the instructions on the rape kit and then handed the rape kit to Officer Jean White of the Fairhope Police Department. Officer White placed the sealed rape kit in her refrigerator until July 28.
On July 27, Marcella Predmore, a registered nurse at Thomas Hospital in Fairhope, withdrew samples of blood, saliva, and hair from the defendant. Ms. Predmore labelled and sealed the samples, and gave them to Officer Jean White. Officer White also placed this sealed kit in her refrigerator until July 28, at which time she removed both the victim's rape kit and the samples collected from the defendant and took them to Elaine Scott, a criminalist specializing in forensic serology at the Department of Forensic Sciences laboratory in Mobile.
Elaine Scott received two sealed "packets" from Officer Jean White on July 28. Sometime later (the record does not indicate *962 when), Ms. Scott broke the seals, opened both packets, and performed several tests on the specimens. Ms. Scott detected the presence of semen on two vaginal swabs, on the panties, and on a pair of shorts collected from the victim. She made a cutting from the panties, stapled it to a card, and sealed it. She then resealed the packet containing the shorts, other items from the victim's rape kit, and samples that had been collected from the defendant. All these materials were packaged for shipment to Lifecodes Corporation in New York.
Ms. Scott did not remember whether she personally had packaged the materials for shipment after sealing them, or whether one of her assistants had done so at her direction. She testified that the package was "picked up at the laboratory by either Federal Express or United Parcel Service." There was no testimony regarding the date on which the package was shipped.
On August 11, Chris Aird, the evidence technician at Lifecodes Corporation, received a package shipped by United Parcel Service ("UPS") "next day air" service from Elaine Scott. He thought, but was not sure, that Don Lomeie, the shipping and receiving clerk, had handed him the package. Neither Don Lomeie nor any representative from UPS testified. The package was sealed when Aird received it. Mr. Aird broke the seal on the outer package and read the enclosed letter. He then broke the seal on each item inside the package, initialed and dated each item, and assigned each a Lifecodes identification number. The items he examined corresponded exactly to the items Elaine Scott had placed in the package. Aird then took all the items to the Lifecodes evidence room and locked the door as he left.
Deborah Vining, a senior forensic scientist at Lifecodes, retrieved these items of evidence from the Lifecodes evidence room where Chris Aird had placed them. She performed a DNA print test on each piece of evidence. Dr. Baird later reviewed the results of her tests.
The defendant raised at trial and argues as error on appeal the failure of the State to account for the evidence between the time it left Elaine Scott and the time it reached Chris Aird.
In Suttle v. State,
"The principles governing this issue were set forth in Ex parte Williams,
, 548 So.2d 518 520 (Ala. 1989):" 'The purpose of the establishment of the chain of custody is announced in Ex parte Williams,
(Ala. 1987): 505 So.2d 1254 " ' "The purpose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence. Williams v. State,
(Ala.Cr.App.), cert. denied, 375 So.2d 1257 (Ala. 1979); Tate v. State, 375 So.2d 1271 (Ala.Cr.App. 1983); Smith v. State, 435 So.2d 190 (Ala.Cr.App. 1983). 'The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain.' Slaughter v. State, 446 So.2d 68 , 411 So.2d 819 822 (Ala.Cr.App. 1981) (emphasis supplied)."
" '
Suttle," 'A showing that there was no break in the chain of custody is required to establish a sufficient predicate for admission into evidence. Ex parte Yarber,
(Ala. 1979), reversed on other grounds, 375 So.2d 1231 (Ala. 1983). The identification of the evidence and continuity of possession must be sufficiently established in order to assure the authenticity of the item, Ex parte Yarber, supra. *963 " 'This state employs two separate standards for testing the chain of custody — the weak link test announced in Sommer v. State, 437 So.2d 1330 (Ala.Crim.App. 1986), and the missing link test announced in Mauldin v. State, 489 So.2d 643 (Ala.Crim.App. 1981). 402 So.2d 1106 " 'Where a weak link in the chain of custody is found, the weight and credit afforded the evidence, rather than its admissibility, is questioned. Sommer, supra. Where a break in the chain of custody, or a "missing link" in the chain of custody is shown, the admissibility is questioned, Mauldin, supra.'
"With regard to specimens taken from the human body, it is also incumbent upon the prosecution to show that the specimen analyzed was in fact the specimen taken from the defendant. In such cases, '[t]he "chain of custody" involves the "necessity of proving where and by whom the specimen was kept and through whose hands it passed." J. Richardson, Modern Scientific Evidence, Section 13.14a (2d ed. 1974).' Gothard v. State,
, 452 So.2d 889 890 (Ala.Cr.App.), cert. stricken,(Ala. 1984). See generally, A. Moenssens, F. Inbau and J. Starrs, Scientific Evidence in Criminal Cases § 1.18(2)(c) (3d ed. 1986). '[W]here the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis.' Rodgers v. Commonwealth, 450 So.2d 479 , 197 Va. 527 , 90 S.E.2d 257 260 (1955) (emphasis added)."
In Moorman v. State,
Id. at 956. The totality of the circumstances here also establishes a reasonable probability of the identity of all the specimens and their integrity throughout the testing procedure."[W]e find no 'break' in the chain of custody of the blood sample. The evidence and the totality of the circumstances in this case establish a reasonable probability of the identity of the blood sample and the integrity of the continuity of possession."
The failure of either Elaine Scott or "one of her assistants" to testify that she actually handed the packages to a UPS employee for shipping does not constitute a break in the chain of custody affecting the admissibility of the evidence. SeeBlanco v. State,
The lack of testimony by any UPS employee regarding receipt of the package in Mobile, shipment by air, or eventual delivery in New York, while admittedly a bigger gap in the chain of custody, also does not undermine the identity and integrity of the evidence in this case. Requiring each UPS employee who handled the package to testify as to his part in the chain would be not only "not practical," see Blanco v.State,
Chris Aird's testimony that he received a sealed package containing the very items that Elaine Scott had placed in the package "was sufficient to establish the authenticity of the evidence." Id. See also McCray v. State,
In Miller v. State,
"[a]ppellate courts have 'consistently' rejected the argument that the 'failure of the evidence to follow a specimen through the mails every step of the way to the chemist's laboratory should be the basis for rejection of chemical test evidence' when the proof shows the specimen was placed in the proper type of sealed container so that the possibility of contamination during transit was eliminated."1
While such an extension would not be unreasonable, it is unnecessary in this case. If the authenticity of the evidence could be presumed here, it was not because of the shipper's identity, but because the proof simply did not "suggest any real basis for concluding that [the packages] or their contents were different from those in the . . . package originally sent by [Elaine Scott] from [Mobile]." United States v.Rans,
In United States v. Rans, supra, an illegal shipment of cocaine was sent via Federal Express from Colorado to South Dakota. After several attempts to deliver the package to the named addressee proved unsuccessful, Federal Express employees followed company policy and opened the package "to seek further information regarding delivery."
"Defendant points out that the . . . packages left South Dakota in one blue bag and a box, but arrived in Memphis in two separate blue bags. Additionally, defendant notes the . . . package contained two white envelopes with two baggies each inside one larger manila envelope in [South Dakota], but contained four white envelopes with one baggie each and no manila envelope in Memphis.
". . . He claims . . . that there is clear evidence of tampering with the outer packages in which the baggies were placed, . . . which the government has not adequately explained. Conceding that government officials are entitled to a presumption of integrity, defendant emphasizes the alleged tampering occurred while the package was in the hands of Federal Express employees, not law enforcement or other government personnel."
United States v. Rans,
"Tangible evidence of crime is admissible when shown to be 'in substantially the same condition as when the crime was committed.' United States v. Roberts,, 844 F.2d 537 549 (8th Cir. 1988); United States v. Gatewood,, 786 F.2d 821 825 (8th Cir. 1986); United States v. Anderson,, 654 F.2d 1264 1267 (8th Cir.), cert. denied,, 454 U.S. 1127 , 102 S.Ct. 978 (1981) (quoting United States v. Lane, 71 L.Ed.2d 115 , 591 F.2d 961 962 (D.C. Cir. 1979)). If the accused makes a minimal showing of ill will, bad faith, evil motivation, or some evidence of tampering, the government must establish that 'precautions were taken to maintain the evidence in its original state.' Roberts,; Gatewood, 844 F.2d at 549786 F.2d at 825 .
"The undertaking on that score need not rule out every conceivable chance that somehow the identity or character of the evidence underwent change. " '[T]he possibility of misidentification and adulteration must be eliminated,' we have said, 'not absolutely, but as a matter of reasonable probability.' So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in the light of surrounding circumstances. Anderson,
United States v. Rans,"We are troubled by the evidence presented in this case. Nonetheless, the issue is whether the district court was properly satisfied that 'in reasonable probability the article has not been changed in any important respect.' While the evidence may raise questions about the handling of the outer packaging in which the four baggies were placed, it does not suggest any real basis for establishing that either the baggies themselves or their contents were different from those in the . . . package originally sent . . . from Denver. In fact, [a co-defendant] identified [the evidence] as the cocaine he sent in the . . . package. Under these circumstances, we cannot say the district court abused its discretion in admitting the cocaine."
In the present case, the defendant made no showing of "ill will, bad faith, evil motivation or . . . tampering" on the part of UPS. Unlike the situation in Rans, no
alteration of the packaging was shown or was attributed to the shipper. Under the circumstances, the trial court could be "satisfied that in reasonable probability the article has not been changed in any important respect [and] it [could] permit its introduction into evidence." Moorman v. State,
The failure of Don Lomeie, the Lifecodes shipping and receiving clerk, to testify that he gave the package at issue to Chris Aird, the Lifecodes evidence technician, also does not affect the admissibility of the evidence:
Blanco v. State,"A minor break in the chain of custody goes only to weight and not admissibility. United States v. Clark,
(11th Cir. 1984) (failure of evidence custodian to testify that he received package in mail goes to weight and not admissibility); Sims v. State, 732 F.2d 1536 (Ala.Cr.App. 1982) (failure of lab employee to testify that he accepted pistol allegedly used in crime and that he later gave the gun to lab analyst held not to warrant reversal)." 428 So.2d 162
We acknowledge that there is a diversity of opinion on this subject. Compare, e.g., State v. Schwartz,
We need not resolve the issue of whether population frequency statistics are per se inadmissible in Alabama criminal trials because *967 this question was never presented to the trial court. The defendant did not direct the trial court's attention to the claimed inadmissibility of all probability evidence per se; instead he made the following specific objections to Dr. Baird's probability testimony: (a) Dr. Baird was not shown to be an expert in "probabilities"; (b) the population frequency calculations to which Dr. Baird testified were not shown to be scientifically reliable or generally accepted in the scientific community; and (c) the data base from which Dr. Baird derived his population frequency statistics had changed since the time of the defendant's DNA print analysis and was constantly changing.
"The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parteFrith,
The observation we made in Perry v. State, approving the admission of the DNA test, is — under the circumstances presented to us here — applicable to theinterpretation of the test results:
Perry v. State, slip op. at 7 (quoting Williams,D.N.A. Fingerprinting: A Revolutionary Technique inForensic Science and its Probable Effects on CriminalEvidentiary Law, 37 Drake L.Rev. 1, 13-14 (1987))." '[C]ourts will consider whether other scientists have written or published articles supporting the test, and whether any trade organization has recognized the test, as factors probative of the degree of acceptance of the test. Courts also consider whether other courts have admitted the novel scientific evidence. Further, courts are often accused of conducting "scientific nose-counting" to determine acceptability. Courts will almost always look to the statistical reliability of the test, where possible, in determining reliability.' "
First, we find that because Dr. Baird was qualified by the State as an expert in "population genetics," he was qualified to testify about genetic "probabilities." The science of population genetics is, by definition, concerned with the study of the frequency with which certain genetic patterns are repeated in a given population. This discipline necessarily involves probability calculations. See generally People v.Wesley,
Next, we find that the trial court could reasonably conclude that Dr. Baird's population frequency calculations were scientifically reliable and accepted. In the present case, Dr. Baird testified, as he did in People v. Wesley, supra, that he was the co-author of a publication entitled "Human Population Genetic Studies of Five Hyper-variable DNA Loci." This publication documented the results of a two-year Lifecodes study "describ[ing] the population frequencies of some of the DNA probes that were used in this case." The court inPeople v. Wesley found this same publication and Dr. Baird's associated testimony, to be based upon reliable scientific principles which are generally accepted in the scientific community. That court observed:
*968"The Human Gene Mapping Conference is a prestigious international organization of scientists that has adopted the responsibility of mapping the human genome. It meets every two years for the purpose of registering newly-discovered gene (allele) loci and probes and assigning names or numerical designations to them. Listing with the Human Gene Mapping Conference of a locus or a probe is equivalent to general acceptance thereof by the scientific community.
"Dr. [Kenneth K.] Kidd, who has been extremely active in the Human Gene Mapping Conference, serving on many of its committees, Chairman of the DNA Committee for the next conference, and the scientist in charge of supervising the assignment of locus designation numbers, testified that all probes used by Lifecodes in its DNA Fingerprinting (i.e., all probes studied in [the above-named publication and used in the present case]) have been accepted, mapped and published by the Human Gene Mapping Conference."People v. Wesley,
Although Dr. Kidd did not testify in the present case and there was no evidence that Dr. Baird's methodology had gained acceptance by the Human Gene Mapping Conference, Dr. Baird testified that the methodology of and the calculations in the foregoing article, upon which his population frequency testimony was based, were reliable and generally accepted in the scientific community. The defendant made no specific challenge to this conclusion. Compare State v.Pennell,
Finally, the fact that the Lifecodes data base, from which that company drew the statistics necessary to make its probability determinations, had changed since the time of the defendant's DNA test or was "constantly changing" was not a basis for finding Dr. Baird's conclusions unreliable. Dr. Baird testified that "the numbers change slightly . . . [a]nd the times where we have changed the data base to this point, the overall effect in the number has been relatively minimal." He also stated that a data base containing 832 individuals was "fairly large . . . for this kind of study."
The defendant offered no evidence to refute either of these statements, and evidence presented in other DNA cases supports Dr. Baird's testimony. See, e.g., Cobey v. State,
We have examined the issues raised in the defendant's pro se brief. Those issues concern the alleged denial of the effective assistance of trial counsel and are totally without merit.
In our opinion, the defendant received a fair trial. The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
Notes
"[E]nvironmental effects, such as heat, humidity, and ultraviolet light do not appear to have an adverse effect on the integrity of DNA and a DNA print test. . . .
". . . [N]either the testing procedure itself, nor any known environmental factor, nor anything else, can alter the DNA to give a false result. . . . [T]he dichotomy is only between a correct answer or 'no result' — never a false positive. . . . [T]his view appears to have gained general acceptance in the scientific community."