*1
No. 24932. Supreme Carolina. Court South
Heard Oct. 1998. April 1999. Decided May Rehearing 1999. Denied *5 Dudek, Appellate Assistant Defender Robert M. of the Defense, Columbia, South Carolina Office of of Appellate for appellant. Condon,
Attorney General Charles M. Deputy Chief Attor- McIntosh, ney General John W. Assistant Deputy Attorney Zelenka, Attorney General Donald J. Assistant General Lauri Soles, Attorney S. and Assistant General E. Bogan, Robert all Columbia; Aiken, and Solicitor Barbara R. Morgan, for respondent.
BURNETT, Justice: murder, Appellant was for kidnapping, indicted administer- vehicle, ing poison, grand larceny burglary, larceny, of a and two counts of criminal degree. sexual conduct the first The jury appellant guilty found on all the charges. Appellant murder;1 sentenced to death for thirty years concurrent kidnapping;2 for a consecutive life burglary; sentence for the twenty years consecutive for administering poison; thirty years conduct; for charge consecutive each of criminal sexual years vehicle; five concurrent grand larceny for of a and thirty days concurrent for petty larceny. We affirm. (1) jury following statutory aggravating 1. The found the circumstances: murder was committed while in the commission of criminal sexual conduct; (2) murder was committed while in the commission of kid- (3) napping; burgla- murder was committed while in the commission of (4) ry; murder larceny was committed while in the commission of a (5) deadly weapon; with the use of a murder was committed while in (6) killing by poison; the commission of murder was committed physical § while in the commission of torture. S.C.Code Ann. 16-3-25 (1985). light appellant's 2. This sentence is ineffective in sentence under (1985). § S.C.Code Ann. 16-3-20 S.C.Code Ann. 16-3-910
FACTS afternoon, 8, 1992, Thursday Evelyn Late October Helmin- *6 Gatti, iak with a neighbor seventy-two visited her Elizabeth year Mrs. was when Mrs. preparing old -widow. Gatti dinner another day, neighbor, Hehniniak arrived. The next Charles Fields, Mrs. became concerned about Gatti because her morn- was still in the and car was ing newspaper driveway gone. her Mr. Fields testified Mrs. Gatti was a creature of habit who a.m., at newspaper every morning retrieved her 4:30 read the paper, driveway by and threw it over to Mr. Fields’ 8:00 a.m. so he could read it. When the was still in newspaper driveway gone Friday and the car was still on Mr. evening, emergency Fields called services. house,
When the authorities entered Mrs. perishable Gatti’s food items were found on the kitchen counter. Several of the rooms in Mrs. house had been Mrs. Gatti’s ransacked. Gatti’s a in body bedspread was discovered underneath her basement. hogtied layers She had been with a white cord and of duct her entire tape wrapped were around head. Her clothes had ripped, been and the crotch her underwear had been cut body out. her were various bottles of Surrounding cleaning sexually fluids. Mrs. Gatti had been assaulted. Nichols, on pathologist performed autopsy
Dr. who Gatti, body Mrs. her was covered with numerous testified bruises, attempted lacerations and and someone had to manu- Further, extending a laceration ally strangle gaping her. vagina penetration by from her into the rectal area indicated a very foreign object. stiff Dr. Nichols testified the cause of asphyxiation death was due to mechanical suffocation as tape, contributory result of the duct and to the cause of death was the fluids and the ingestion aspiration cleaning binding on the wrists. Dr. Nichols testified the ligatures aspiration indicated Mrs. Gatti forced drink the clean- Nichols, to Dr. 2-4 ing According fluids. Mrs. Gatti lived vaginal/rectal injury hours after the occurred. 11, 1992, October the authorities found Mrs. Gatti’s car
On appellant near an apartment complex where sometimes for on stayed. Appellant was arrested the crimes October statements, In separate appellant 1992. two admitted killed; night in on being Mrs. Gatti’s house she however, he had to her house with a man gone he asserted any Appellant wrongdoing; identified as “Frankie J.”3 denied instead, companion. Appellant he blamed the crimes on his admitted, however, agent Wayne to SLED Mitchell that he Further, appellant with Mrs. had sexual intercourse Gatti. Huff, an agent Danny Captain Wayne told SLED Choate and investigator County Department, for the Aiken Sheriffs that had sex with Mrs. Gatti. he
A shoeprint taken from a chair Mrs. Gatti’s house was matching as shoes taken from Residue appellant. identified positively appel- found on the chair matched debris found on Fingerprints lant’s shoes. taken from Mrs. Gatti’s car and belonging from items in her car were identified as to appel- lant. Hair taken from were samples consistent with hairs found Mrs. Gatti’s home. Semen taken from a tissue Mrs. Gatti’s house was consistent with semen. *7 belonging Several items identified as to Mrs. Gatti were found in appellant’s girlfriend’s apartment. cousin,
Appellant’s girlfriend’s Danley, Earthlene testified in appellant day she was Mrs. Gatti’s car with after Mrs. appellant Gatti’s murder and had been with when he went to a in Augusta bank drive-thru North and cashed a check he took Further, glove compartment from the of Mrs. Gatti’s car. testimony employees of bank and handwriting experts estab- appellant forged lished had three of Mrs. Gatti’s checks and cashed them at various banks. newspaper
Mrs. Gatti’s carrier identified positively appel- lant as the man in leaving early she saw Mrs. Gatti’s house 9,1992. morning Friday, hours of October ISSUES in judge I. Did the trial err T? qualifying Juror II. in judge refusing grant appellant’s Did the trial err to motion for a mistrial where a State’s witness referred to appellant’s prior during criminal record direct examination? Douglas. 3. "Frankie J” was later identified as Frank None of the physical evidence found Mrs. Gatti's house or her car matched Douglas. judge admitting III. trial err in incul- Did the by finding appellant statements had waived his Sixth patory right prior making to counsel these state- Amendment ments? in admitting trial err mitochondrial judge
IV. Did the DNA evidence? judge refusing
V. Did the trial err in to allow appellant during penalty introduce evidence polygraph phase the trial?
DISCUSSION I. claims T
Appellant judge finding erred Juror qualified during because her voir dire she was unable to definitely presume appellant state she could was innocent until proved guilt beyond the State his a reasonable doubt. We disagree.
Initially, judge questioned during when the trial her voir dire, T expressed uncertainty Juror as to whether she could However, presume appellant was innocent. after the trial law, T judge explained the Juror stated several times she presume could innocent until the appellant proved guilt beyond a reasonable doubt. Juror T continued Although as to equivocate questions on some whether she could innocent, clearly each time ex- presume appellant her, plained presume the law to she affirmed she could solicitor, During innocent. examination Juror T indicated she would follow the instructions and determine Fur- during the facts from the evidence introduced the trial. *8 counsel, ther, T again on cross-examination defense Juror However, presume appellant stated she could innocent. Juror T final responded uncertainty ques- with to defense counsel’s tion.4 T disqualify to Juror for cause
Defense counsel moved juror disregard preconceived unable to her arguing the presume appellant beliefs and was innocent. Over posed following question 4. Defense Counsel the to Juror T: you’re coming thing Q. Okay. you Can tell me that in to this with a completely page feelings way or blank and no one another? 10 T. T was on
objection, judge qualified placed Juror Juror peremptory exhausted his chal- jury appellant after had lenges. requires constitutional standard of fairness that a
The jurors. indifferent U.S. panel impartial, defendant have a Bell, 18, 14; 364, Const. Amend. State v. 302 S.C. 393 S.E.2d denied, 227, 881, 111 112 cert. 498 U.S. S.Ct. L.Ed.2d 182 (1990). reviewing qualification juror,
In
an error as to the
of a
First,
analysis.
in
engages
step
appellant
this Court
a three
peremptory challenges.
must show that he exhausted all of his
Second,
used,
if
peremptory challenges
all
were
this Court
Third,
juror
if
erroneously qualified.
must determine
must
this
him of a fair
appellant
deprived
demonstrate
error
Green,
347,
157,
trial. State v.
301 S.C.
392 S.E.2d
cert.
(1990).
denied,
881,
229, 112
111 S.Ct.
L.Ed.2d 183
case,
In
in
capital
proper
determining
a
standard
qualification
juror
juror’s
of a
is whether
prospective
substantially impair
views would
or
prevent
performance
juror
of his duties as a
with his instructions
accordance
Green,
Witt,
supra (citing Wainwright
his oath. State v.
v.
412, 424,
844, 853,
(1985));
469
105
83
841
U.S.
S.Ct.
L.Ed.2d
496,
(1996),
George,
State v.
323 S.C.
II. Appellant argues trial judge in refusing erred grant a mistrial when agent SLED Charles Counts testified he appellant’s retrieved fingerprint card from SLED records for comparison. Appellant claims this testimony highly prej udicial it because was a clear appellant’s reference to prior activity. criminal Counts,
Charles processor SLED, crime scene for testified 11, 1992, he met on October processing while he was Mrs. Gatti’s car for evidence. At this initial meeting, appel- lant, Counts,” who identified himself as “James provided authorities with fingerprints. Counts testified fingerprints were found on Mrs. Gatti’s car and on items found car. her The solicitor asked Counts to “tell the members of jury many how different sets of fingerprints you had at to compare, looked and the names of the individuals submit- you ted to to compare.” responded: Counts At the time of the initial I comparison, supplied or had in my possession, fingerprints, one an fingerprint, inked palm impression I bearing name of James Counts which had taken on October the 11th apartment complex. at the later, A few days day later or a I was contacted be, “No, response 5. The correct would I am for the defendant.” said, subject actually Mr. department sheriffs “that records, buildings two I went over to the SLED Council.” *10 over, the and a card with name Council on it retrieved fact, impressions they and were compared produced those by the same individual. added).
(emphasis for a testi- arguing Defense counsel moved mistrial Counts’ mony prior to the a implied jury appellant “had criminal record, printed had before.” Defense counsel that he been deciding appellant testify stated in would much whether thought appellant by to would be harmed given was whether having his criminal record admitted into evidence. Fur- prior ther, great counsel out to the court that pointed defense to any prior efforts had been made to exclude references the made by appellant. record from statements Defense counsel a state’s argued because witness had informed SLED, jury fingerprint jury a at appellant that had card record, prior Mr. has a and now “knows that Council criminal that, I way think a upon any give based don’t there’s to jury to to that.” get forget curative instruction trial judge agreed The that a curative instruction However, only would make situation worse. the trial judge grant a mistrial he found refused because Counts’ ways, could be construed several including statement Counts jury appellant. judge probably re-inked The trial found the further, implication, appellant missed the and because had already put credibility his own at issue to the lying identity his when he them his provided authorities about with fingerprints, attacking in testimony appellant’s credibility, record, cluding his criminal was prior admissible.6 grant deny The decision to or a motion for a discretion, mistrial is a matter within a trial court’s sound and such a will be appeal decision not disturbed on absent an amounting abuse to an of law. v. of discretion error State judge finding put appellant 6. The trial was incorrect had charac- his by lying ter in authorities. must issue An accused introduce prosecution evidence of his character at trial before the it. can attack Here, 404(a), See Rule SCRE. because never testified or character, good evidence his character never offered other was an issue.
13
denied,
57,
U.S.
520
37,
cert.
479 S.E.2d
325 S.C.
Simpson,
Wasson,
(1997);
v.
217
State
1277, 117
L.Ed.2d
S.Ct.
not
A
should
be
mistrial
386 S.E.2d
Wasson, 299 S.C.
necessary. State v.
absolutely
unless
granted
(1989). Instead,
trial
should
386 S.E.2d
before abort
possible prejudice
cure
other methods to
exhaust
mistrial,
the defendant
In
to receive
trial.
Id.
order
ing a
resulting prejudice.
Id.
and
show error
must
jury
even
case,
whether
questionable
it
In this
This Court
statement.
Count’s
implication
understood
conduct
past
to a defendant’s
references
that similar
has held
Singleton,
v.
See
to be
State
vague
prejudicial.
too
were
denied,
1111, 105 S.Ct.
cert.
U.S.
III. in admitting erred judge the trial claims Appellant made to statements inculpatory appellant’s into evidence and to Danny Choate Mitchell and Wayne agents SLED 19, they were 1992, because Wayne Huff on October Captain 104, Tate, State v. from distinguished can be 7. case This prejudicial. (1986), was In found the where the Court error S.E.2d Tate, date evidence. The on into appellant’s mug was introduced shot inferring to the prior thus year to trial mug was almost one shot case, In this prior criminal appellant had a record. that jury evidence, therefore the and into was introduced fingerprint card never Therefore, there the card. SLED obtained aware of when jury was not purpose the when for what jury of or before the no evidence was card was made. fingerprint obtained violation of his Sixth Amendment8 right to coun- sel. disagree. We Jackson Denno9 hearing to deter-
The trial held a mine the admissibility of four by statements made appellant to various authorities about his involvement Mrs. Gatti’s mur- der. The first 12, 1992, statement was made on October day appellant’s statement, arrest. In this appellant admit- present house, ted he was at Mrs. Gatti’s but blamed Frank Douglas for the crimes.
Appellant arraigned on October 1992. In response request at the arraignment, an attorney was appointed to him represent on October 1992. At the Jackson v. Denno hearing, appellant testified he was not aware an attorney appointed had been represent him. Appellant spoken had not attorney with an prior to October 19, 1992. According to appellant, only he agreed to take a polygraph exam on October 1992. agree He did not to the questioning.
Investigator Norwood Bodie appellant “got testified word to us that he wanted talk to us” on October 1992. Bodie obtained a request written from appellant, “I, which stated: Council, Donney S. do wish to speak with investigators of the County Aiken Sheriffs Office and SLED.” It signed by appellant and witnessed by Bodie and Officer Stuart. Appel- lant was then taken to the Sheriffs Office Captain where Huff appellant informed of his Miranda10 rights rights. waived his Appellant Huff, was then interviewed Bodie, and SLED agent Choate. In the October 19th state- ment, appellant again stated he had accompanied Frank Doug- *12 house, las to Mrs. Gatti’s but claimed he had not participated in the crimes.
Appellant then wrote and signed a statement requesting that he be given a polygraph exam. Huff and Choate trans- ported appellant to Columbia to be examined at SLED. After 8. U.S. Const. 6th Amend. 368, 1774, (1964).
9. 378 U.S.
84 S.Ct.
15 waive having appellant rights to his explaining appellant After the the exam. them, Mitchell administered agent SLED deception. answers showed exam, appellant his Mitchell told he had sexual intercourse to Mitchell then admitted Appellant admission appellant’s Mitchell related with Mrs. Gatti. Huff and Choate. Aiken, told Huff and Choate appellant trip the return
On
appel-
me.” Huff told
got
“Y’all ain’t
shit on
times:
several
you-
we have on
know what
“Donney, you
lant:
don’t
thing
the best
to do
you
more than
think and
got
Well we’ve
“Well, you don’t
responded:
it.” Appellant
let’s not talk about
I
that
something
I
like
Had
done
any fingerprints....
have
socks.” Huff and Choate
wearing gloves or
would have been
Appellant
ignore appellant.
other and
to talk to each
began
quiet.
to be
appellant
talk and Choate told
began to
again
‘Well, I
fuck her. The bitch
out:
did
then blurted
Appellant
job.”
me a blow
give
I made her
good pussy,
have
so
didn’t
made these state-
laughed when he
Huff testified
Huff made some notes
the car over and
pulled
Choate
ments.
making the
denied
Appellant
statement.
about
Mitchell, Huff and Choate.
statements to
inculpatory
was denied his Sixth
argued appellant
Defense counsel
inculpatory
these
to counsel when he made
right
Amendment
19,
counsel claimed
1992. Defense
on October
statements
an
to talk with
right
fully
not
understand
appellant did
not
therefore,
rights
Miranda
the waiver of his
attorney;
all four statements.
trial
admitted
voluntary. The
attaches
to counsel
right
Amendment
The Sixth
initiated and
have been
judicial proceedings
adversarial
when
625,
Jackson, 475
106
v.
U.S.
Michigan
stages.
at all critical
(1986);
Register,
v.
1404,
631
State
89 L.Ed.2d
S.Ct.
1129,
denied,
117
(1996),
cert.
476 S.E.2d
(1997);
Kennedy, 325 S.C.
State v.
S.Ct.
Amendment
The Sixth
(Ct.App.1996).
S.E.2d
question
in the
at least
only “post-indictment,”
attaches
right
344, 110
Harvey,
v.
U.S.
setting. Michigan
ing/statement
(1990);
supra.
Register,
108 L.Ed.2d
S.Ct.
attached, if
has
to counsel
right
Amendment
the Sixth
When
assertion, at an
after a defendant’s
interrogation
initiate
police
right
of his
proceedings,
other similar
arraignment or
*13
counsel, any waiver of
right
the defendant’s
to counsel for that
police initiated interrogation is invalid unless the defendant
initiates
Jackson,
the contact himself. Michigan v.
supra;
Howard,
State v.
Appellant’s Sixth Amendment to right counsel at 14, 1992, tached on Further, October when he arraigned. appellant asserted his right 14, 1992, counsel on October when he requested appointment of counsel. Counsel was appointed represent 16,1992. appellant on October
However, appellant initiated the contact with the 19, 1992; authorities on October therefore, appellant’s subse quent waiver of right his to counsel was knowingly and made, intelligently and all his statements made on this day Howard, were admissible.11 See State v. supra (assuming defendant’s right attached, to counsel had defendant had waived that right because he initiated the contact with the police); Jackson, (defen Compare Michigan with v. supra dant’s waiver of his Sixth right Amendment to counsel was contact). invalid police where initiated the Under the Sixth Amendment, a defendant who has asserted right to counsel always is free to initiate contact with the authorities and waive right. this A defendant is not required to consult with an attorney prior to initiating contact order for the waiver to be valid.
Appellant argues only he contacted the authorities order to let them know he was ready to take a polygraph exam that previously he agreed to take at some time during the October 12, 1992 However, questioning. his note does not indicate such a purpose. limited
Further, although appellant clearly in custody when he admitted to Huff and Gatti, Choate he had sex with Mrs. appellant’s statement was not the result of interrogation. Appellant 11. argues he could not knowingly have right waived his counsel Further, since he appointed. was unaware counsel had been appellant knowledge claims that appointed counsel had been for him should imputed have been from the department. court to the sheriffs appellant authorities, Because we find initiated the contact with the it does not matter whether was unaware counsel had been appointed nor knowledge does it matter whether appointment of that imputed from one state actor to another. Rhode Island Instead, was volunteered. See his statement *14 (1980); Innis, 64 L.Ed.2d 100 S.Ct. (1982). Koon, 298 S.E.2d IV. trial, Ortu John phase
During guilt the SLED, the charac at testified no, trace evidence examiner a consis at the crime scene were hairs found pubic teristics of further determined hair. Ortuno pubic with appellant’s tent of the hair. not have been the donor could Douglas Frank to introduce sought findings, the State To confirm Ortuno’s laboratory re- Dizinno the F.B.I. testimony Joseph from (mtDNA) analysis DNA of mitochondrial the results garding camera trial held an in the hairs.12 The performed on of this evidence. admissibility hearing to determine in both hair and training Dizinno testified he had extensive Dizinno testified his analysis. analysis and mtDNA fiber in Dizinno chose began 1992. analysis mtDNA research con- research of the mtDNA because regions two sequence very to be these two areas in 1983 found Europe ducted analy- mtDNA Dizinno testified individuals. variable between and over since 1981 purposes for research sis has been used He mtDNA research. have been written about papers methodology that recognized analysis mtDNA is testified identify bodies including to many purposes, for has been used Dizinno stated the Gulf War. Vietnam War and from the commu- in the scientific has reaffirmed analysis mtDNA been laboratory start- Dizinno testified as reliable science. nity mitochondria, organelles are which DNA is found 12. Mitochondrial the cell’s and which serve as cytoplasm of a cell within the contained genetic material nucleus DNA that contains energy Unlike factories. father, only contains mtDNA mother and the from both the inherited advantages of mtDNA the mother. Two genetic inherited from material there copies in the cell than many of mtDNA are more are that there many mitochondria cell contains copies DNA since each are of nuclear than nuclear is much more stable only nucleus and mtDNA but one therefore, DNA; degraded extracting from a mtDNA the chances Further, only which is nuclear DNA sample unlike is increased. hair, present pulled mtDNA is living the roots of a present in the cells at State, Huseman, and the Taylor v. Rule of hair. Brian in the shafts Evidence, City 22 Oklahoma in DNA Future Directions DNA Database: University L.Rev. ed to use this technology analyze forensic evidence Further, summer of 1996. this was the second occasion someone from his lab had regarding testified the results obtained from a analysis.13 mtDNA Dizinno stated that analysis confirms, mtDNA based on a objective scientific standard, subjective microscopical comparison performed on the hairs. explained
Dizinno that mtDNA analysis is performed by extracting the DNA from mitochondria. This DNA is then amplified and examined to As, Gs, determine its sequences of Ts, and Cs. sequence This compared then to a sequence aby donated known person. different, If the sequence is person donating the known sample can be eliminated as the donor of the unknown sample. If sequence same, is the compares examiner sequence to the database of *15 mtDNA sequences available to him to determine if he has ever seen that sequence. same Validation studies showed that about 62% of analyzed the hairs sequenced were on the first try. The other 38% could not be sequenced because the DNA could not be extracted. Of the 62% that sequenced, could be the reliability getting of a correct sequence was 100%.
The database used Dizinno contained 742 known se- quences of which 319 sequences were obtained from African- Americans.14 Dizinno testified that while he had a found match between Caucasians, unrelated he had never found a match between unrelated African-Americans. According to Dizinno, the two regions analyzed are most variable Afri- can-Americans.
The results of this analysis excluded Frank Douglas as the deposited one who the hair found at the crime scene. Fur- ther, Dizinno could not exclude as the one who deposited the hair found at the crime scene. Based on the database, available Dizinno testified that probably most hair that was recovered from the crime scene belonged to court, 13. The first occasion was at a trial in a Tennessee state six weeks prior appellant's to trial. Tennessee has a statute which allows DNA tests to be used as evidence in criminal cases under certain circum- Curriden, stances. Mark A New Evidence Tool: First Use Mitochon- Trial, (1996). drial DNA Test in a U.S. Criminal 82-Nov. A.B.A. J. 18 Appellant 14. is an African-American.
19 that the However, possible it was Dizinno admitted appellant. individual. belonged hair to another under Rules admissible found the evidence judge The trial caution, the trial 703, In an abundance 702 and SCRE. under State admissible found the evidence judge further (1979), under Daubert Jones, and 259 S.E.2d S.C. Pharmaceuticals, Inc., S.Ct. Dow v. Merrell noted the judge The trial 125 L.Ed.2d a peer publication; review and subjected been process had existed; controlled standards rate of error potential known laboratory F.B.I. validated operations; and techniques has been underlying science technology this process; appli- while forensic community; and in the scientific accepted tech- development, the was a recent technology of this cation purposes. for other been used nology had admitting trial erred Appellant argues applica- the forensic in this case because results mtDNA test general yet gained had not was novel and process tion of this disagree. We community. in the scientific acceptance out standard set apply attempting Appellant (D.C.Cir.1923). In States, Frye, F. 1013 Frye v. United reliable, and only became evidence the court held scientific accep- admissible, general attained the when it had therefore However, this community as whole. scientific tance of the Instead, prior that standard. adopted has never Court in South evidence admitting for scientific the standard must trier of fact to which the degree “the Carolina was proof or capable not faith, hypotheses on scientific accept, *16 the outside generally accepted and not even court disproof 120, 723, 731, Jones, 259 S.E.2d 273 S.C. v. State courtroom.” Frye than the (1979). more liberal standard is This standard. evidence admissibility of scientific considering
In the factors, standard, looks at several the Court the Jones under (1) of the tech review peer and publications the including: type to the (2) method of the application nique; prior (3) case; proce control quality the in the involved evidence (4) consistency reliability; and used ensure dures procedures. laws and scientific recognized with method (1990). This type Ford, 485, 392 S.E.2d evidence is subject also to attack for relevancy and prejudice. Ford, supra. 1990,
In 24, South Carolina adopted SCRCrimP, Rule which is identical to Rule 702 of the Federal Rules of Evidence (FRE). 1995, In South Carolina replaced Rule 24 with Rule 702, SCRE.15 This rule is identical predecessor, to its Rule 24, SCRCrimP, 702, and Rule FRE. 1993,
In Supreme United States Court Frye found the test had been superseded by the FRE adopted and new parameters for admissibility under Rules 702 and 703. Dau- bert Pharmaceuticals, v. Merrell Inc., Dow supra. Before admitted, scientific evidence is the trial judge must determine relevant, the evidence is reliable helpful jury. The suggested Court four factors to consider in deciding reliability (1) in scientific (2) evidence cases: scientific methodology; (3) peer review; (4) consideration of general acceptance; and the rate of error of a particular technique. Id. The Court stated if the relevant, evidence reliable and judge should determine if probative value of the is outweighed evidence by prejudicial its effect. Id. The recently Court held the standard of review of a lower court’s decision to admit or exclude evidence under Daubert is an abuse of discretion. Joiner, Elec. General Co. v. 118 S.Ct. L.Ed.2d While this Court Daubert, does not adopt we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE. When admitting scientific 702, SCRE, evidence under Rule the trial judge must find the evidence will fact, assist the trier of expert witness is qualified, and the underlying science is rehable. The trial apply should the Jones factors to determine reliability. Further, if the evidence is admissible SCRE, under Rule the trial judge should determine if its probative value is outweighed by prejudicial its effect. Rule SCRE. Once 702, SCRE, 15. Rule states: scientific, technical, If the specialized or other knowledge will assist
the trier of fact to understand the evidence or to determine a fact issue, qualified skill, expert witness an knowledge, experience, education, training, may or testify opinion thereto form of an or otherwise. *17 standards, may jury the under these is admitted the evidence appropriate. as it deems give weight it such in within discretion well judge the trial conclude We under analysis admissible of the mtDNA the results finding Dohlen, v. State Von Rule SCRE. factors and the Jones denied, 972, 117 234, 471 S.E.2d cert. 322 S.C. (the (1996) expert of admission 136 L.Ed.2d S.Ct. court); of the trial the discretion testimony within (the (1981) of admissibility 274 S.E.2d Bailey, discretion). evidence This trial court’s the is within evidence committed determining whether jury assists of the confirmation objective it an provides because the crimes the hairs. on performed comparison subjective microscopical re peer subjected been analysis has Mitochondrial DNA this tech about published been articles have many and view and process validated laboratory The F.B.I. nology. has been science underlying error. Its its of rate determined Further, community. in the scientific generally accepted new, the fairly analysis is mtDNA of application forensic while years. for contexts several used other has been technology judge erred the trial argues further Appellant a sufficient given was not because he admitting this evidence disagree. evidence.16 We rebut opportunity have that the State requested counsel When defense test, assured counsel was mtDNA using a analyzed hair How- trial. months before available several would be results counsel was defense and delayed, ever, the analysis night before analysis mtDNA of the of the results advised have time Therefore, counsel did not defense trial. testimo- admitted to contradict witness expert to locate an to Dizinno to talk was able However, counsel defense ny. vigorously was able to and hearing camera to an in prior hearing in camera during the Dizinno cross-examine jury. before the Dizinno when testified examination, cross “vigorous noted that has This Court on instructions and careful evidence contrary presentation means appropriate are traditional of proof the burden continuance; instead, he expressly for ask Appellant not 16. did the admissibil- a determination not make could argued the trial rebuttal evidence. analysis without sufficient ity of the mtDNA *18 Dinkins, attacking shaky but admissible evidence.” 415, 418, Daubert, S.C. S.E.2d 60 (quoting 596, 113 2798). at at S.Ct.
In our appellant opinion, sufficiently rebutted this evidence. Dizinno on admitted cross-examination that it possible the hair belonged to someone appellant. Further, other than the size of the mtDNA database and the fact that Dizinno had previously found matches between unrelated Caucasians were exposed during his testimony. Because defense counsel effec- tively demonstrated in the flaws mtDNA analysis, further preparation was not necessary. Moreover, although defense counsel he indicated would like to retain his own expert witness to evidence, counter this in opinion, our defense counsel’s cross-examination of Dizinno effectively encom- passed the his own points expert probably would discuss. We note that appellant does not in suggest any his brief other facts that should have been but were not brought out Dizinno in his testimony concerning mtDNA analysis. Thus, the trial judge had sufficient information on which evaluate his decision on the admissibility of this evidence and the jury had sufficient testimony on which to decide whether to rely on this evidence.
V Appellant argues the trial judge in erred excluding testimony during the penalty phase about the results of a polygraph examination administered to Frank Douglas. Spe cifically, appellant claims the trial judge erred in finding the results of a polygraph per test are se inadmissible.
During investigation of Mrs. murder, Gatti’s SLED conducted polygraph a exam on Frank Douglas to determine whether he had any knowledge of or involvement in Mrs. Gatti’s death. The test deception.17 indicated trial,
Prior to appellant’s defense counsel a motion to made admit the polygraph results of the test to Doug- administered las. He moved to admit in results guilt phase for 17. SLED also polygraph administered a exam appellant. Appel- on lant’s exam deception. also indicated penal- if testified18 and Douglas impeachment purposes the polygraph in mitigation evidence because ty phase as under acting were whether probative results in the more crimes.19 culpable participant of a the influence motion, expert, an appointed the trial Pursuant Rackliff, test and results and polygraph Richard to review the hearing, camera During lengthy a prepare report. a examiner, Mitchell, Rackliff testi- agent SLED polygraph University devel- Hopkins testified John had fied. Mitchell scoring pro- exam. This program a for oped computer it objective more because made the results the exam gram scoring a subjectiveness single examiner eliminated the However, only from exam still exam. the results an deception questions. if on certain person indicate showed Rackliff, while *19 Thus, to both the scor- according Mitchell if a exam still is unable to tell improved, polygraph had ing lying. person actually court found the on the trial
Relying
precedents,
this Court’s
trial
of
were inadmissible. The
polygraph
results
the
exam
not
science of
had
judge
underlying
polygraph
the
found
by
unreliable
this Court.
and had been found
improved
of polygraph
held the results
consistently
This Court has
admissible because the reliabil-
generally
are
not
examinations
S.C.
Wright,
State v.
322
ity
questionable.20
of the tests is
572,
(1996);
v.
278
253,
Copeland,
471
700
S.C.
S.E.2d
(1982). Further,
this
has declined
Court
In our opinion, the trial did not abuse discretion in Dohlen, refusing to the polygraph admit evidence. State v. Von (admission pra of expert testimony is within discre su However, tion of judge). light the trial the adoption SCRE, admissibility this type of scientific evidence analyzed should be under Rules 702 and SCRE and the Jones factors. analysis standards,
After an under poly- these we find the graph evidence inadmissible in this case.22 The evidence is not probative on the issue of whether was acting under of Douglas. influence Unless jury is allowed to speculate, the fact that exam Douglas’ deception showed does not prove Douglas that or lying Douglas that committed against crimes Mrs. Douglas’ deception Gatti. on the polygraph test fails to support that Doug- assertion Therefore, las committed the crimes. this evidence does not Further, assist jury. See SCRE. Rule because it' *20 would only confuse and the jury, any probative mislead value of this outweighed by evidence would be its prejudicial effect. 403, Rule SCRE.
PROPORTIONALITY REVIEW record, After entire reviewing the we conclude the death passion, sentence was not the of prejudice, any result or jurisdictions 22. Other polygraph have continued to find evidence inad- Porter, 800, Conn.App. missible after Daubert. See State v. 39 668 A.2d Daubert, (1995) (even light polygraph 725 in is evidence inadmissible Beard, 740, questionable due accuracy); State v. 194 W.Va. 461 (1995) (despite S.E.2d 486 fact previously that had court Daubert, inadmissible). adopted polygraph the court found evidence
25 statutory factor, jury’s finding arbitrary and the other See by the evidence. supported circumstances aggravating (1985). Further, penalty § the death Ann. 16-3-25 S.C.Code imposed in that disproportionate nor is neither excessive 43, 476 S.E.2d 324 S.C. Whipple, See v. similar cases. State denied, 1045, 117 618, 136 683, L.Ed.2d 541 S.Ct. cert. 519 U.S. (1995), Holmes, 259, 334 (1996); 464 S.E.2d v. 320 S.C. State 2507, denied, 1248, L.Ed.2d 197 116 135 cert. 517 U.S. S.Ct. (1995), (1996); Tucker, 425, 462 263 319 S.E.2d v. S.C. State 789, denied, 1080, L.Ed.2d 739 516 116 S.Ct. 133 cert. U.S. 153, (1996); cert. v. S.C. S.E.2d Singleton, State denied, 105 S.Ct. L.Ed.2d AFFIRMED. WALLER, JJ.,
TOAL, concur. MOORE and C.J., opinion. in FINNEY, dissenting separate FINNEY, Chief Justice: a new test majority
I
The
announces
dissent.
respectfully
of scientific
determining
admissibility
to be
applied
test, first
an
requiring
inquiry
This is
two part
evidence.
a
702, SCRE,
an
under Rule
by
analysis
followed
under Rule
have the benefit
this
The trial
did not
SCRE.
apply
not
it
rule,
could not and did
new
and therefore
admissibility of
mtDNA evidence.
Justice
determining the
appellant’s conviction
and remand
requires that we reverse
this novel scientific
for
new trial
which
and sentence
test.
subjected
newly
to the
formulated
evidence is
admission of
deeply
I
concerned
am also
at
attached
right
His
amendment
counsel
statements.
sixth
State,
102, 135
244 S.C.
S.E.2d
Moorer v.
arraignment,
examina
(1964),
polygraph
of his
then
at
time
again
(1987). In
Grizzle,
19,
For the reasons for a new trial.