State v. BruceState v. Bruce
For Plaintiff-Appellee DAVID L. LANDEFELD JULIA B. DILLON Fairfield County Prosecutor 201 S. Broad St., Ste. 400 Lancaster, OH 43130
For Defendant-Appellant KENNETH R. SPIERT Assistant State Public Defender 8 E. Long St., 11th Floor Columbus, OH 43215
O P I N I O N
{¶1} Defendant-appellant David L. Bruce appeals from his convictions and sentences in the Fairfield County Court of Common Pleas on Aggravated Murder, in violation of
STATEMENT OF THE FACTS AND CASE
{¶2} When Troy Boyes arrived for work at 4640 Bridgeport Street, Lot #13, Baltimore, Ohio, on January 27, 2005, he discovered a partially clothed African-American female with multiple stab wounds and remnants of bindings on her body, deceased on the front porch of the home that was under construction. Mr. Boyes noticed blood on the windows in the formal eating room, the floor, the front door, the stairs and the tile kitchen. The blood, the body, and the trash were not on the front porch the evening before when Mr. Boyes left that home which he was helping to build.
{¶3} Troy Boyes tried calling the president of his company, Phil DiYanni. When Mr. DiYanni was reached, he immediately called 9-1-1. Mr. DiYanni drove to the house and saw the bloodstains up and down the stairwell, around the front door and the body on the front porch.
{¶4} The numerous puncture or stab wounds were obvious and the victim was lifeless according to Fairfield County Deputy Betsy Willey‘s observations when she arrived at the scene. Deputy Gerald Seipel described the victim as a female, partially clothed from the waist up lying on the porch with her feet over the edge, with obvious
{¶5} The coroner, Dr. Patrick Fardal testified that the victim, identified as Robin Brown, had at least fifteen (15) sharp instrument wounds. Some of the wounds were connected meaning they went all the way through her body. This made it impossible to know the exact number of times she had been stabbed. On the lateral side of her right thigh, there was a sharp instrument wound about one and a half inches long. There was a sharp instrument wound on the inside of her right thigh that was also one and a half inches long. The doctor concluded that these two wounds were connected and counted them as one because it was most likely that the sharp instrument went in one side and came out the other with a connector of about two and three-quarter inches. There was another sharp instrument wound approximately two and a half inches long on the outside of her body that connected up to a one and one half inch sharp instrument wound on her anterior right thigh, with the connected path of nearly five and one half inches. This sharp instrument went through a considerable portion of her right thigh. Therefore, while there were four injuries on her right thigh the doctor counted two sharp instrument wounds on the right thigh, meaning that she was stabbed in the right thigh at least twice.
{¶7} Separate wounds identified as two, three, four, and five on the back of her right hand were caused by a sharp instrument. These wounds measured three quarters of one inch, three quarters of one inch, one inch, and one quarter of one inch respectfully. The wounds on the back of her knuckles could have been one slice that caused all of the wounds on each of her fingers. Accordingly, the total number of cuts on her right hand ranged from two to five.
{¶8} The victim‘s right breast also had multiple stab wounds. There was a series of approximately three wounds in the upper outer quadrant of her right breast towards her axilla that measured one and one quarter inch, one and one half inch, and one inch. Due to the close proximity of the separate wounds, the doctor could not determine which of the three was fatal, but could conclude within a reasonable degree of medical certainty that one of the three wounds were fatal. One of the three wounds in the right side of her breast went into her right chest and caused an injury to her right lung and then extended through her pericardial sac and caused an injury to the area of the right
{¶9} Between the victim‘s breasts on her right chest was another sharp instrument wound measuring two and a half inches by one-sixteenth of an inch in width and three and a half inches deep that extended posteriorly, towards her back, but went into the fat of her abdomen. The victim‘s back had a sharp instrument wound on the left side measuring one and three-quarters inches long that extended three inches into her pleural cavity on the left side and injured her left lung. The wound entered through her back and injured both the upper and lower lobes of the left lung. The victim‘s neck had two abrasions that could be from the sharp instrument being dragged along the skin, or could have been from another source such as clothing. One measured four and a half inches in length and the other one measured about three-quarters of an inch in length.
{¶10} In addition to the injuries caused by the sharp instrument, the victim had injuries on her face. There was a pattern abrasion on her face below the left eye that
{¶11} The cause of Robin Brown‘s death was multiple sharp instrument wounds with injuries to the right heart, right lung, pulmonic veins, and the left lung.
{¶12} The bindings around Robin‘s wrists and ankles as well as her clothes were sent from the coroner‘s office to BCI & I through the Sheriff‘s Office. The denim from the victim‘s right wrist was stained with blood. The t-shirt was so heavily stained with blood that there were not any isolated stains on the shirt.
{¶13} Detectives from the Fairfield County Sheriff‘s Office and the specialists from BCI & I collected evidence from the scene, 4640 Bridgeport Street, Lot #13 Baltimore Ohio. Detective Stephanie Russell located a cigarette butt on the floor of the garage between tire tracks and the door. Detective Scott Jones removed drywall from the west side of the wall in the bedroom. This drywall was covered in what was later determined to be blood. The bloody stain also contained a fingerprint. A single edged knife blade, butcher style, stamped stainless steel marked “Made in China” was recovered from the scene. There was dried blood on the blade and no handle for the knife. A piece of black plastic that could have been a portion of the handle was also recovered. A pair of glasses missing the left lens was located in a small bedroom. The t-shirt Robin Brown was wearing was observed by officers at the scene and then removed at the time of the autopsy at the Franklin County Morgue. In addition, photos were taken showing the victim with the bindings and the blood around her at the scene. Detectives never found pants, a skirt, a purse, a wallet or any money.
{¶15} Appellant further stated that his brother lives near Champion Avenue in Columbus, Ohio. While appellant was not certain, he stated it was possible that he and his brother picked up Robin in appellant‘s car. However, after seeing her picture he stated that he did not know the victim. Appellant did not have any explanation as to how his fingerprint could have ended up in the victim‘s blood inside of the house.
{¶16} Testimony was presented at trial that employees who worked outside were not permitted inside of the homes. The crew leader, Steven Smith, testified that in order to enter a house, a crewmember would need to ask his permission and appellant never asked his permission to enter the house. Similarly, Christopher Curtis testified that he was on the same crew as appellant and was never in the house, but was in the garage. The Office Manager for Buckholz Wall Systems testified that appellant was one of their employees from April 21, 2004 through January 21, 2005, and that appellant
{¶17} Records from the courtesy van company from West Virginia were inconsistent with the appellant‘s statement. The records established that appellant did not leave town on January 21, 2005 as he stated to the police. The records show that he left town the night Robin Brown was killed. The courtesy van driver, John L. Aylor, testified that he received a call on January 27, 2005 at 7:23 a.m. regarding a broken Explorer with the license plate DBY 5680. Mr. Aylor took the driver to the Go-Mart in Elkins, West Virginia. Appellant‘s co-worker Charles Okpara identified appellant‘s car as the same one photographed by law enforcement.
{¶18} Appellant‘s car was towed in West Virginia on February 19, 2005, when a private citizen called to report the vehicle on the roadway. The vehicle was a 1997 Ford Explorer with a license plate number of DBY 5680. The back window was already broken out when Jeffrey Fletcher of the West Virginia State Police first saw the vehicle. The State and Defense stipulated that if called to testify, Jimmy Tincher would testify that he is the owner of Tincher‘s Towing in Elkins, West Virginia and that he has a wooden fence surrounding the lot. He towed a white Ford Explorer license plate DBY 5680 to his lot and noticed that the back window had been broken out. He went through the car in order to locate some papers with a phone number and address in an attempt to reach the owner. On March 7, 2005, he towed the vehicle to the Sheriff‘s lot and saw law enforcement put crime scene tape around the vehicle. Investigators came some time between February 19, 2005, and March 7, 2005, to look at the vehicle, but they did
{¶19} Detective Mark Green of the Columbus Police Department processed the white Ford Explorer, DBY 5680, on March 18, 2005. He found a piece of denim on the driver‘s side rear floorboard with discoloration that appeared to be blood. The vehicle also contained work gloves, two knives, and tape.
{¶20} On January 26, 2005, Angelo Brown, the victim‘s husband, drove Robin Brown to Champion where Sherwood Brown lives. Robin was wearing a black coat, jeans and tennis shoes when he dropped her off. Jacqueline Meadows saw Robin Brown at 485 North Champion Avenue the night Robin was murdered. Jacqueline had often seen Robin there visiting her nieces and Robin appeared to be visiting her nieces that night. Jacqueline last saw Robin between 9:00 and 10:30 p.m. that night when Robin was leaving in a white SUV that looked like appellant‘s vehicle. When Jacqueline last saw Robin, Robin did not appear to be under the influence of drugs or alcohol and was wearing a jacket, a dark-colored shirt, and jeans.
{¶21} Robin‘s husband testified that she was wearing a black coat, jeans, and tennis shoes with a shirt. The jacket, jeans, and tennis shoes were never recovered.
{¶22} The evidence that had been stained with blood was tested by BCI & I to confirm that it was actually blood and to determine the source of the blood. Abby Schwaderer of BCI & I did the presumptive testing and was stipulated as an expert in presumptive testing by the State and Defense. Ms. Schwaderer testified that BCI & I is accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, ASCLD/LAB for forensic DNA and DNA laboratories. The
{¶23} Amoreena Clarkson, Criminalist II for the Columbus Police Crime Laboratory, routinely reviews evidence submitted to the lab for biological fluids and performs DNA analysis. She testified that she is not an expert in statistics; however, she is able to use the software program provided by the manufacturer to type the samples. The procedures used in the lab are the standard operating procedures accepted in the scientific community. Those procedures include using a database generated by the FBI that is accepted across the community and used in the normal protocol for the lab. Ms. Clarkson was able to match the DNA types from the stains on the blue jean material with the blood standard from the victim Robin Brown.
{¶24} Bobbie Jo Kennedy, forensic scientist for BCI & I, testified that she had been performing DNA analysis for approximately five years. She testified that she had specialized training in DNA at BCI & I and through other workshops. Ms. Kennedy testified to the accreditation standards met at BCI & I regarding how evidence is handled, security of the building, techniques used and documentation all of which are subject to audit. The trial court found that she was an expert witness under
{¶26} Robin Roggenbeck, a latent print examiner and forensic scientist with BCI & I, analyzed the piece of that drywall that had been covered with blood. Ms. Roggenbeck took a digital image of the surface as it was and then used an enhydrant to further enhance the image and preserve the print. The digital image was stored in the computer. Ms. Roggenbeck was able to identify one sufficient latent palm print area, the interdigital area of the left palm. The latent print was then compared by Ms. Roggenbeck to known prints from appellant and Robin Brown. There were more than ten points that she was able to identify in the print as well as the proper ridge flow and the clarity and quantity of the point resulting in a positive identification. Furthermore, Ms. Roggenbeck was able to determine that appellant‘s hand was in the victim‘s blood
{¶27} On March 11, 2005, appellant was indicted by the Grand Jury of Fairfield County, Ohio, for one count of Aggravated Murder, in violation of
{¶28} A verdict of guilty was returned by the jury as to Count One, Aggravated Murder, in violation of
{¶29} On July 5, 2006, the appellant‘s sentencing hearing was held. The Court found that Count One, Aggravated Murder, Count Two, Aggravated Murder, and Count Three, Murder merged for purposes of sentencing. The State of Ohio elected to have
{¶30} The Court ordered that the sentences imposed on Count Four and merged Counts Six and Seven be served concurrently to each other, but consecutively to the sentence imposed on Count Two. The Court further ordered that appellant pay the costs of prosecution. Thus, appellant‘s aggregate sentence is a life sentence with parole eligibility after 20 years to be served consecutively to a 10-year prison sentence.
{¶31} Appellant has timely appealed raising three assignments of error:
{¶32} “I. CRAWFORD BARS TESTIMONIAL STATEMENTS OF A NON-TESTIFYING WITNESS, UNLESS THE WITNESS IS UNAVAILABLE AND THE ACCUSED HAD AN OPPORTUNITY FOR CROSS-EXAMINATION. ALTHOUGH FBI PERSONNEL GENERATED THE STATISTICAL DNA EVIDENCE, NO FBI STATISTICAL EXPERT TESTIFIED; RATHER, THE STATE PRESENTED THE FBI‘S EVIDENCE THROUGH THE BIOLOGICAL DNA ANALYSTS, WHO DID NOT PERSONALLY KNOW HOW THE FBI GENERATED THE EVIDENCE. OVERRULING MR. BRUCE‘S CRAWFORD OBJECTION VIOLATED HIS RIGHTS UNDER THE OHIO
{¶33} “II. BY ALLOWING THE STATE TO PRESENT THE FBI‘S STATISTICAL DNA EVIDENCE THROUGH ITS BIOLOGICAL EXPERTS, WHERE THE ABSENCE OF A QUALIFIED EXPERT DEPRIVED THE DEFENSE OF THE OPPORTUNITY TO TEST THE RELIABILITY OF THE SCIENTIFIC BASIS FOR THE TESTIMONY THROUGH CROSS-EXAMINATION, THE TRIAL COURT VIOLATED MR. BRUCE‘S RIGHTS UNDER
{¶34} “III. THE TRIAL COURT ERRED BY SENTENCING MR. BRUCE TO MAXIMUM SENTENCES FOR KIDNAPPING AND AGGRAVATED ROBBERY COUNTS AND ORDERING THEM TO BE SERVED CONSECUTIVELY TO THE AGGRAVATED MURDER COUNT, BECAUSE SENTENCING UNDER STATE V. FOSTER, 109 OHIO ST.3D 1, 2006-OHIO-856, 845 N.E.2D 470, RETROACTIVELY SUBJECTS A DEFENDANT TO A “STATUTORY MAXIMUM SENTENCE” THAT GREATLY EXCEEDS THE MAXIMUM SENTENCE THE DEFENDANT WAS SUBJECT TO WHEN THE ALLEGED OFFENSES WERE COMMITTED. THIS VIOLATES THE DUE PROCESS CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS.”
I.
{¶35} In his first assignment of error, appellant maintains that the statistical DNA evidence the State presented in an effort to identify him as a accomplice in the killing is “testimonial” under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354. We disagree.
{¶37} An appellate court should apply an abuse of discretion standard in reviewing a court‘s decision to admit or exclude expert testimony. Gen. Elec. Co. v. Joiner (1997), 522 U.S. 136, 144-146, 118 S.Ct. 512, 139 L.Ed. 2d 508; State v. Williams (1983), 4 Ohio St.3d 53, 58, 446 N.E.2d 444. “To the extent that doing so is necessary to avoid making an unreasonable, arbitrary, or unconscionable decision, a trial court is obliged to apprise itself of the details of proffered evidence.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683 at ¶20.
{¶38} In the case at bar, appellant argues that the FBI database used to calculate the statistical conclusion based upon the input gathered from BCI & I is
{¶39} As one court explained the biological analysis, “involves determining the specific genetic variations, or ‘alleles,’ in the DNA samples at specific sites (‘loci‘) along the DNA thread. The particular variations examined in this case are called short tandem repeats, or ‘STRs.’ They were examined at thirteen loci which have been adopted as a national standard for use in the Combined DNA Identification System (CODIS) established by Congress in 1994. The PCR-based analysis using the thirteen STR loci has been explained by the Supreme Court of New Hampshire as follows:
{¶40} “‘At each locus, an individual‘s genetic code contains a combination of chemical markers organized into a pattern. These chemical patterns repeat themselves and these repeats can be chemically cut apart from one another. At any particular chromosomal locus, an individual will have a characteristic inherited from each of his or her parents, known as an allele. Further, at any given locus, a person will have DNA with a specific number of repeats of these alleles from each parent. Thus, for example, a person‘s PCR-based STR DNA profile for a particular DNA locus could contain a ten-repeat allele from his or her mother and a twelve-repeat allele from his or her father. STR testing involves the examination of short repeats and distinguishes between individuals by comparing the number of repeats at certain loci.‘” Roberts v. United States (D.C. Cir. 2007), 916 A.2d 922, 926-927). (Quoting State v. Whittey (2003), 149 N.H. 463, 821 A.2d 1086, 1093.
{¶41} “The relevance of the DNA analysis, in criminal law generally, and in the context of this case, is to establish the identity of the source of a DNA sample
{¶42} “Thus, in terms of the inferential conclusion to be drawn from DNA evidence in a criminal trial-the accused as source of the DNA sample found at the crime scene- DNA analysis generally can provide only statistical probability; e.g., there is one chance in four hundred or one chance in four million that the DNA sample came from someone else. Conversely, a DNA mismatch constitutes conclusive and certain scientific proof that the DNA samples come from different sources. For proving identity, however, as opposed to disproving identity, DNA can never provide absolute, conclusive proof, even though extremely low probabilities of a coincidental match provide a basis for very strong inferences of identity.” Commonwealth v. Crews (1994), 536 Pa. 508, 519, 640 A. 2d 395, 400.
{¶44} In this case, the experts relied upon a database compiled by the Federal Bureau of Investigation through its “Popstat” computer software program. Appellant claims that he was denied any opportunity to cross-examine the FBI‘s random match probability estimates because the witnesses presented at appellant‘s trial did not prepare the database and had no personal knowledge of the methods and procedures the FBI used to compute the statistical estimates or the dataset upon which the calculations were based. [Appellant‘s Brief at 14].
{¶45} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, the United States Supreme Court held that testimonial statements of a witness who does not appear at trial may not be admitted or used against a criminal defendant unless the declarant is unavailable to testify, and the defendant has had a prior opportunity for cross-examination. Crawford thus involved the admissibility under the Confrontation Clause of recorded testimonial statements of a person who did not testify at the trial. The holding in Crawford was that such statements, regardless of their reliability, are not admissible unless the defendant was able to cross-examine their maker.
{¶46} The Ohio Supreme Court recently addressed Crawford in examining whether the admission of DNA reports without the testimony of the analyst who prepared the report violated the Confrontation Clause. State v. Crager, 116 Ohio St .3d 369, 2007-Ohio-6840. The Court found the key inquiry under Crawford was whether a particular statement was testimonial or non-testimonial. Id. at ¶ 41. It then determined
{¶47} In Crawford the Supreme Court stated that business records, which are analogous to public records are “by their nature * * *not testimonial” and not subject to the requirements of the Confrontation Clause. Id. at 56; “[t]o its credit, the Court‘s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business records and official records. See ante, at 1367. To hold otherwise would require numerous additional witnesses without any apparent gain in the truth-seeking process.” Id. at 76, 124 S.Ct. at 1378. (Rehnquist, C.J., concurring).
{¶48} DNA samples have been held to be non-testimonial evidence with respect to the Fifth Amendment privilege against self-incrimination. A DNA sample obtained from a state prisoner, pursuant to Ohio statute requiring the collection of DNA specimens from convicted felons, was physical, rather than testimonial evidence, and thus did not implicate the prisoner‘s Fifth Amendment privilege against self-incrimination. Wilson v. Collins (CA 6, 2008), 517 F. 3d 421, 431. The Court reasoned that a DNA sample was analogous to a photograph or fingerprint identifying an individual. Id. (Citing United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007) (citing Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (holding that “blood test evidence, although an incriminating product of compulsion, [is] neither [ ] testimony nor evidence relating to some communicative act or writing” and is therefore not protected by the Fifth Amendment)).
{¶50} Owens involved an adult victim of a severe beating, who suffered memory loss stemming from his head injuries and testified at trial. While hospitalized, he had identified Owens as his assailant, which identification was admitted into evidence. During the victim‘s cross-examination, he was unable to recall details of the attack and the identification. Id. at 556, 108 S.Ct. 838. The Ninth Circuit held that, under the circumstances, the introduction of the victim‘s testimony violated the Confrontation Clause. The Supreme Court reversed, ruling, “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ”Id. at 559, 108 S.Ct. 838 (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) and Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)) (emphasis in original). In Fensterer, the Court held that the Confrontation Clause was not violated where an expert witness who testified as to his opinion could not recollect the basis upon which he had formed that opinion. In Fensterer, the Court explained that:
{¶51} “The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and
{¶52} It is true that in Owens the witness at least recalled having identified the defendant. 484 U.S. at 556, 108 S.Ct. at 840. However, the Court did not restrict its reasoning to such situations. Instead, the Court “agree[d] with the answer suggested” in “Justice Harlan‘s scholarly concurrence” in California v. Green (1970), 399 U.S. 149, 188, 90 S.Ct. 1930, 1950, 26 L.Ed.2d 489 that “a witness’ inability to ‘recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have
{¶53} The experts in the case at bar did not perform the statistical calculation; rather the computer perform this task. Appellant can, and did, attack the witnesses’ lack
{¶54} In State v. Adams, the Ohio Supreme Court observed:
{¶55} “To support his claims, Adams cites a variety of studies suggesting limitations on DNA evidence. For example, Adams argues that the court should have excluded DNA evidence because of controversy over (1) ‘the statistical estimates being offered for Polymerase Chain Reaction (PCR) tests’; (2) ‘the reliability of the methods used * * * for collecting, handling, processing, and testing crime scene samples’; and (3) ‘coincidental match probabilities and false error rates.’
{¶56} “However, the issues that Adams now raises ‘go to the weight of the evidence rather than its admissibility.’ Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107, paragraph two of the syllabus…” 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29 at ¶81-82.
{¶57} Our review of the record reveals that Ms. Kennedy was sufficiently familiar with the underlying formula used by the computer program to generate statistical conclusions. (24T. at 5048-5049; 5096-5097). Appellant’s attorney was acutely aware of the mathematics used by the computer program. (24T. at 5161-5162; 5163). The experts testified that they used the FBI database as part of their standard operating procedure. BCI & I is accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, ASCLD/LAB for forensic DNA and DNA
{¶58} Ms. Kennedy testified that she began doing DNA analysis in graduate school. (24T. at 5034). She has received specialized training and attended specialized training programs in statistics. (24T. at 5035). She has been qualified as an expert and has testified on five previous occasions. (Id. at 5038).
{¶59} We find Ms. Clarkson and Ms. Kennedy to be properly qualified. See, Crager, 116 Ohio St.3d 369, 2007-Ohio-6840, 879 N.E.2d 745 at ¶12.
{¶60} We further note that there was no question in the Crager case that the DNA expert was able to testify to the statistical conclusions generated in his report. Crager at ¶23. The DNA expert in the Crager case testified that the frequency of occurrence of appellant’s DNA profile was 1 in 1.028 quintillion people. Id. There was no question from the DNA expert concerning the database that was used to generate that number. Id.
{¶61} Appellant argues that the Ohio Supreme Court incorrectly decided Crager. However, this Court cannot declare a decision by a superior court to be unconstitutional.
{¶62} We find the statistical DNA evidence the State presented in an effort to identify appellant as a accomplice in the killing is not “testimonial” under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354.
{¶63} Accordingly, appellant’s first assignment of error is denied.
II.
{¶64} In his second assignment of error appellant argues that the reliability of the FBI’s statistical DNA evidence was not established and further, that the State’s witnesses were not properly qualified to testify as probability and statistics experts. We disagree with each contention.
{¶65} In State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29 the Ohio Supreme Court held that DNA evidence meets
{¶67} “DNA evidence expressed in terms of population frequency is admissible if it is relevant. Questions regarding the reliability of DNA evidence in a given case, including DNA statistics on population frequency, go to the weight of the evidence rather than its admissibility. See State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107, paragraph two of the syllabus. Moreover, expert witnesses are allowed to testify to statistical conclusions about DNA evidence without being experts in statistical analysis. See State v. Rowe (Dec. 26, 2001), Hamilton App. No. C-000727, 2001 WL 1887770; State v. Martin (Aug. 14, 2000), Brown App. No. CA99-09-026, 2000 WL 1145465. “Id. at ¶85.
{¶68} Many Ohio jurisdictions have allowed expert opinion testimony under
{¶69} Accordingly, appellant’s argument that the trial court abused its discretion by allowing expert witnesses to testify to statistical conclusions about DNA evidence without being experts in statistical analysis is without merit.
{¶70} Questions concerning the reliability of DNA evidence introduced under
{¶71} Therefore, appellant’s argument that contends that the trial court abused its discretion by admitting “unreliable” evidence is likewise without merit. The Supreme Court of Ohio has clearly stated that questions regarding the reliability of DNA go to the weight of the evidence rather than its admissibility. Id. In Adams, the Supreme Court of Ohio explained that a preliminary hearing under
{¶72} “A court resolving a reliability question should consider the ‘principles and methods’ the expert used ‘in reaching his or her conclusions, rather than trying to determine whether the conclusions themselves are correct or credible.’ Nemeth, 82 Ohio St.3d at 210, 694 N.E.2d 1332; see, also, Miller, 80 Ohio St.3d 607, 687 N.E.2d 735, paragraph one of the syllabus. As the Daubert court stated, in assessing reliability, ‘[t]he focus * * * must [generally] be * * * on principles and methodology, not on the conclusions that they generate.’ Daubert, 509 U.S. at 595, 113 S.Ct. 2786, 125 L.Ed.2d 469.
{¶73} “A trial court may not, therefore, exclude expert testimony simply because it disagrees with the expert‘s conclusions. Instead, if the expert followed methods and principles deemed valid by the discipline to reach his opinion, the court should allow the testimony. See Paoli, 35 F.3d at 742 (‘an expert‘s testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable’). The traditional adversary process is then capable of weeding out those shaky opinions. See
{¶74} The United States Court of Appeals for the Sixth Circuit explained Daubert’s requirements in the context of DNA test results as follows:
{¶75} “Because the DNA results were based on scientifically valid principles and derived from scientifically valid procedures, it is not dispositive that there are scientists who vigorously argue that the probability estimates are not accurate or reliable because of the possibility of ethnic substructure. The potential of ethnic substructure does not mean that the theory and procedures used by the FBI are not generally accepted; it means only that there is a dispute over whether the results are as accurate as they might be and what, if any, weight the jury should give those results.
{¶76} “ * * *
{¶77} “When reviewed in light of the four Daubert factors (testing, peer review, rate of error, and general acceptance), we find that the underlying principles and methodology used by the FBI to declare matches and make statistical probabilities are scientifically valid. The methodology was valid in that it “result[ed] from sound and cogent reasoning,” Bert Black, A Unified Theory of Scientific Evidence, 56 Ford.L.Rev. 595, 599 (1988), and was “‘well grounded or justifiable [and] applicable to the matter at hand,’ ” id. at 599 n. 9 (quoting Webster‘s Unabridged 2529-30). Thus, the methodology clearly had “a grounding in the methods and procedures of science” and was based on “more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at ----, 113 S.Ct. at 2795.” United State v. Bonds (6th Cir. 1993), 12 F.3d 540, 564-565.
{¶79} In the case at bar, the only evidence presented to the trial court was that the database and method of calculating the statistical conclusions are accepted across the community. (21T. at 4533; 4534; 4541-4542; 4555; 4557; 24T. at 5154). In overruling appellant’s objection the trial court noted, “the Court has heard the testimony that the procedure that was followed in this case is one that has been used widely throughout at least the law enforcement forensic scientific community; that the results have been audited and the procedure has been audited by outside agencies. I’ve not heard any testimony that as a result of those audits, that it appeared the [sic.] that procedure was not reliable. I’m going to allow the admission of this testimony and find that the objections go to the weight of the evidence…” (21T. at 4561).
{¶80} An appellate court should apply an abuse of discretion standard in reviewing a court‘s decision to admit or exclude expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Gen. Elec. Co. v. Joiner (1997), 522 U.S. 136, 144-146, 118 S.Ct. 512, 139 L.Ed.2d 508. We apply this standard and conclude that the trial court in this case did not abuse its discretion when it permitted the State’s expert’s to testify concerning the statistical DNA evidence. We further find the trial court did not abuse its discretion when it found the statistical DNA evidence to be reliable under Daubert.
{¶81} Accordingly, appellant’s second assignment of error is denied.
{¶82} In his third assignment of error appellant argues that the retroactivity principles of the
{¶83}
{¶84} In State v. Paytner, Muskingum App. No. CT2006-0034, 2006-Ohio-5542, we rejected appellant’s argument stating, “We conclude that retroactive application of the remedy in this case does not run afoul of the state or federal prohibitions against ex post facto laws. Id. Additionally, we would note that under the federal sentencing guidelines as applied in light of the Booker decision “defendant‘s due process [and ex
{¶85} Furthermore, every Ohio appellate court that has addressed this issue has concluded that the Foster remedy does not pose an ex post facto problem. See, e.g., State v. Gibson, 10th Dist. No. 06AP-509, 2006-Ohio-6899; State v. Grimes, 4th Dist. No. 06CA17, 2006-Ohio-6360; State v. Durbin, 2d Dist. No.2005-CA-134, 2006-Ohio-5125; State v. McGhee, 3d Dist. No. 17-06-05, 2006-Ohio-5162; State v. Paynter, 5th Dist. No. CT2006-0034, 2006-Ohio -5542; State v. Ross, 9th Dist. No. 23375, 2007-Ohio-1265.
{¶86} Based upon this Court‘s holding in Paynter, we find the sentence imposed in this case did not violate the due process or the ex post facto clauses of the United States or Ohio Constitutions.
{¶87} Appellant’s third assignment of error is denied.
By Gwin, P.J.,
Farmer, J., and
Edwards, J., concur
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HON. W. SCOTT GWIN
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HON. SHEILA G. FARMER
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HON. JULIE A. EDWARDS
WSG:clw 1008
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Fairfield County Court of Common Pleas, Ohio, is affirmed. Costs to appellant.
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HON. W. SCOTT GWIN
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HON. SHEILA G. FARMER
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HON. JULIE A. EDWARDS