{1} Anthony Stills was convicted, following a jury trial, of felony murder under NMSA 1978, § 30-2-1 (A) (1994), child abuse under NMSA 1978, § 30-6-1(0) (1989), criminal sexual penetration in the first degree under NMSA 1978, § 30-9-ll(A) (1993), kidnapping under NMSA 1978, § 30-A-l (1973), and two counts of tampering with evidence under NMSA 1978, § 30-22-5 (1963), in the death of his stepdaughter Hollie Karr. He appeals his conviction on the bases that: DNA test results admitted at trial were inadmissible, the trial court improperly refused to instruct the jury on voluntary manslaughter, he was deprived of a proper defense by the trial court’s limitations on expert testimony, physical evidence was improperly introduced, prosecutorial misconduct, cumulative error, insufficient substantive evidence to suggest conviction beyond a reasonable doubt, and ineffective assistance of counsel. We affirm.
Facts.
{2} Hollie Karr lived in an apartment with her mother, Melanie Kulick, and her stepfather, the Defendant. On April 19, 1993, at approximately 4:00 P.M. paramedics were called to the apartment where they found the Defendant attempting to give mouth-to-mouth resuscitation to his teenage step-daughter, Hollie. Hollie was dead. It was later determined that death was caused by a severe beating to the head. Hollie was found with her clothing in disarray; her shirt around her neck exposing her chest, her shorts around her ankles, and her underpants pulled up and wedged between her legs.
{3} On the day of the murder, Hollie was driven home from school by her friend Kevin. They arrived at the apartment between 2:55 P.M. and 3:00 P.M. When they reached the apartment building Kevin recognized Stills’ car in the parking lot. Kevin left immediately for golf practice.
{4} Chris, a close friend of Hollie, called her between 3:10 P.M. and 3:15 P.M. He testified that she was sobbing and very upset when she answered the telephone. She asked him if he could come over. Chris testified at trial that he knew that Hollie’s mother was at work and that he was not allowed to go to a girl’s home if her parents were not home. Chris asked his mother if he could visit Hollie but she said no when he told her that Hollie’s mother was at work. He called Hollie a second time, approximately ten minutes later, and the answering machine answered. Chris testified that Hollie
{5} Hollie’s mother, and the Defendant had married just eight months before Hollie’s death, however, they had known each other since Hollie was two-years old and lived together during some of those years. The Defendant testified that he had once shoved Hollie while the three of them were living together in California.
{6} Hollie’s mother came home from work at about 3:30 P.M. to pick up some headache medicine. The Defendant’s car was not there. In the bathroom she noticed blood on the light switch and the door, and thought the Defendant had cut himself. She did not hear or see any sign of Hollie, and believed that her daughter was late coming home from school. She returned to work after spending approximately five minutes in the apartment. At approximately 3:50 P.M. she received a call at work from the Defendant, who told her he believed Hollie was dead. She arrived back at the apartment around 4:00 P.M. The Defendant’s car was in the parking lot by the apartment door. This was a different parking spot than the car was in when it was observed by Kevin a little before 3:00 P.M.
{7} The Defendant told police, and later testified, that he had found Hollie and unsuccessfully tried to give her mouth-to-mouth resuscitation. His clothes had become stained with blood as the result of his efforts to revive her, he had changed, and then called her mother to tell her what had happened. The Defendant did not call 911. Hollie’s mother asked a co-worker to call 911 as she rushed from work to return to the apartment.
{8} As police began their investigation, they received information that there were bloody gloves at a nearby intersection. Officers looked for the gloves unsuccessfully that day. However, the following day, another officer found one glove in the gutter and another in a sewer. Missing fingertips from the gloves matched a bloody piece of vinyl glove found under the dust ruffle of Hollie’s bed next to her body.
{9} A portion of a vinyl glove, found at the intersection, by a sewer grate, was subjected to DNA typing analysis, using the RFLP technique. It was determined that the blood on the glove was consistent with Hollie’s blood. The testimony at trial was that the probability that a randomly-chosen individual would have the same DNA profile as the blood found on the glove samples analyzed by the RFLP technique is 1 in greater than 5.5 billion.
{10} Blood on the gloves was further analyzed using PCR amplification. This technique makes copies of a small region of DNA permitting DNA analysis of very small samples when larger samples cannot be obtained. The analysis determined that samples of blood found on the gloves were consistent with Hollie’s blood and with the Defendant’s blood. A box of the same type of gloves was found under the kitchen sink in the apartment, one pair was missing.
{11} The Defendant explained that he had brought the box of gloves home from work, and, on the afternoon Hollie died, he laid a pair out on a counter planning to change the oil in his car. Instead he went for a drive to think about problems he was having in school, leaving the gloves behind.
{12} James Galvan is a former police officer who was incarcerated at the Bernalillo County Jail when the Defendant was taken into custody. He testified for the prosecution. He admitted on the stand that he took bribes while a police officer, and has numerous felony convictions for crimes involving fraud, dishonesty and worthless checks. He testified that he did not receive any consideration in exchange for his testimony concerning a conversation he had with the Defendant shortly after the Defendant was taken to jail. Galvan testified that the Defendant came to his cell, asked him for a Bible, and said if he did not talk to someone he would go crazy. He observed that the Defendant repeatedly rubbed his hands together, and that his hands were cut and bruised. The Defendant told Galvan that he had a fight with his stepdaughter, that he was upset with her and that she had said she was not going to let him “use her” anymore. The Defendant said he got into a heated argument with her, and
{13} Hollie was severely beaten around the face, head and neck, and she was strangled by hand and with a bathrobe sash. A forensic pathologist who performed an autopsy on Hollie, described the injuries to her jaw and eye as “consistent with a blow from a fist.” The knuckles on the Defendant’s right hand were swollen and there was a fresh cut on the knuckles. Photographs of the Defendant’s hands were taken on the morning after the murder and admitted into evidence. There was expert testimony that the swelling and abrasions visible in the photographs of Defendant’s right hand were the kind of injuries one would expect to see on the fist of the person who beat Hollie. Photographs of the Defendant’s neck and face showed scratches which were red and appeared fresh.
{14} Defendant explained the bruises saying that after he discovered Hollie’s body, he became upset and hit a wall outside the apartment. However, several officers and a paramedic described the Defendant’s reaction to Hollie’s murder as calm, cool, and not visibly upset. He indicated to one officer that he wanted to make a 5:00 P.M. appointment.
{15} After paramedics had arrived, but before police had a chance to examine the apartment for evidence, Defendant washed away bloodstains, around a lightswitch and around the door in the master bathroom. The lightswitch, sink and counter in the master bathroom were sprayed with the chemical Luminal and tested positive for the presence of blood. Further Luminal tests confirmed the presence of blood on the floor of the apartment’s other bathroom, which connected to Hollie’s bedroom. None of the blood spots were visible to the naked eye, indicating that someone had attempted to clean them up. Hollie’s mother testified that she later noticed towels missing from the bathroom.
The Experts
{16} A hearing on Defendant’s motion to exclude DNA testing evidence was conducted on October 31, 1994, to November 3, 1994.
{17} Richard Guerrieri, the assistant director for the Forensic Identity Laboratory at Roche Biomedical Laboratories, was called by the prosecution. Roche is one of three “major commercial laboratories in the United States currently performfing] the majority of all forensic DNA typing.” Lisa L. Dahm, Using DNA Profile as the Unique Patient Identifier In the Community Health Information Network: Legal Implications, 15 J. Marshall J. Computer & Info. L. 227, 275 n. 23 (1997). The PCR analysis in this case was conducted by Roche. Guerrieri testified as an expert and as the person who had performed the PCR testing on various samples collected by the Albuquerque Police Department. His findings included a determination that blood consistent with that of Hollie, and blood consistent with that of the Defendant were found on the vinyl gloves.
{18} Dr. Martin Tracey was called by the prosecution and found to be an expert in molecular biology, and population genetics. At the pre-trial hearing, the court withheld determination of whether he was an expert in PCR testing. However, at trial, in response to Defense Counsel’s objection that Dr. Tracey had not been qualified as an expert in PCR testing, the court said Dr. Tracey was qualified to analyze PCR results. Dr. Tracey agreed with PCR results Roche reported.
{19} Dr. Gregg Orloff was called by the defense. He was qualified as an expert in molecular biology with a special expertise in PCR technique. He found several deviations from scientific operating procedures and found problems with the control aspect of the Roche protocol. Dr. Orloff stated one could not trust the results of the PCR amplification, and that the PCR testing results were unacceptable and inconclusive.
{21} Dr. Diane Lavett testified at the pre-trial hearing in support of the defense motion to exclude semen stains on the carpet because the samples had been mistreated by the prosecution. The trial court denied the motion.
The trial court did not abuse its discretion in admitting PCR analysis.
{22} DNA testing determines the probability that “a sample of blood, tissue, hair, or sperm came from a particular person.” State v. Anderson,
{23} In State v. Anderson, we held that DNA evidence is admissible in New Mexico and that questions concerning the test results or statistical probabilities go to the weight of the evidence and are the concern of the fact finder. Anderson,
{24} The PCR technique, a form of DNA analysis, “is extremely valuable. It permits DNA profiling of samples containing much smaller quantities than is required for RFLP.” Commonwealth v. Sok,
{25} Defendant argues that the court committed reversible error when it ruled that results obtained using the PCR technique were admissible at trial. He argues that the PCR test results did not meet the threshold admissibility standards set forth in Anderson,
{26} In determining whether scientific evidence is admissible, New Mexico courts look to the New Mexico Rules of Evidence which provide:
If scientific, technical or other special knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience or education may testify thereto in the form of an opinion or otherwise.
Rule 11-702 NMRA 1997.
{27} Rule 11-702 requires the trial court to apply a three-part test to determine whether scientific evidence is admissible. First, the expert must be qualified; second, the testimony must assist the trier of fact, it must be relevant; and third, the evidence
(1) whether a theory or technique “can be (and has been) tested;” (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known potential rate of error” in using a particular scientific technique “and the existence and maintenance of standards controlling the technique’s operation;” and (4) whether the theory or technique has been generally accepted in the particular scientific field.
Anderson,
{28} Defendant agrees that the experts in this case were all qualified in their respective fields with the exception of Dr. Tracey. At the pre-trial hearing, Dr. Tracey was found to be an expert in molecular biology and population genetics, but the trial court withheld determination of whether he was an expert in PCR testing. At trial, however, the court found that Dr. Tracey was qualified to review results obtained using the PCR technique. In addition, there was sufficient testimony from experts qualified in PCR analysis concerning peer review and acceptance in the scientific community to allow the jury to properly weigh this evidence.
{29} Defendant also challenges the reliability of the PCR method with respect to the first factor, testability. “Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert,
{30} Defendant concedes that the second factor, peer review and technology, is satisfied in this case.
{31} With respect to the third factor, known potential rate of error, Defendant challenges the manner in which Roche conducts its tests and the manner in which this specific test was conducted by Roche. Defendant argues that Anderson improperly held that deficiencies in calculating a rate of error and lack of blind external proficiency tests concerns the weight of the evidence and not admissibility. Anderson,
{32} Lastly, Defendant argues that PCR testing has not been accepted by the scientific community and therefore this factor should weigh against admissibility. He points to a National Research Council report which states PCR has “enormous promise” in the future, and that “further experience should be gained with respect to PCR in identity testing.” Committee on DNA Technology in Forensic Science, National Research Council DNA Technology in Forensic Science (1992). However, Dr. Tracey testified that since this report was released in 1992, there had been “a lot of peer reviewed public validation of PCR technology.” Both Mr. Guerrieri and Dr. Orloff agreed that the PCR method had been subjected to peer review and publication in the scientific community. “In the years since its invention, the PCR technique has been substantially improved.” Smith & Gordon, supra, at 2472. We disagree with the Defendant and hold that there was sufficient evidence to support the trial court’s conclusion that PCR has been accepted in the scientific community.
{33} An appellate court will reverse a trial court’s decision to admit scientific evidence only when there has been an abuse of discretion. State v. Alberico,
{34} Defendant argues that Dr. Tracey should not have been allowed to testify as an expert in PCR profiling because of his limited experience in PCR testing. Dr. Tracey was qualified as an expert in molecular biology as a population geneticist and in DNA profiling at the pretrial hearing. At that time the court withheld a determination as to his expertise in the area of PCR until after cross-examination. The court noted that Dr. Tracey had “some expertise” in PCR analysis and that this could be a question of weight rather than admissibility. There was nothing improper about the court withholding its determination of Dr. Tracey’s expertise. The proper time to determine an expert’s competency is at trial. Griego v. Grieco,
In the absence of sufficient provocation Defendant was not entitled to a jury instruction on voluntary manslaughter.
{35} Voluntary manslaughter is “manslaughter committed upon a sudden quarrel or in the heat of passion.” NMSA 1978, § 30-2-3(A) (1994). Defendant contends that James Galvan’s testimony raises an inference that Defendant was provoked and that any actions were taken in the heat of passion and therefore Defendant was entitled to a voluntary manslaughter jury instruction. See State v. Chamberlain,
{36} It is well established that words alone are not enough to arouse the passions such that murder is reduced to manslaughter. State v. Trujillo,
{37} The trial court, in refusing to submit a charge of manslaughter to the jury said:
I thought significantly in advance of even discussing instructions yesterday about voluntary manslaughter, and I think as a matter of law, that it’s not required to be given in this situation. And I think it would set terrible social policy to even suggest that for some reason a parent, somehow in a household with a child, because the child said something angry or maybe even pushed the parent, that would present a factual question about reducing the crime of murder to voluntary manslaughter. I think it is clear as a matter of law and undisputed that that’s not the type of extreme ... emotions, and its clearly undisputed.
The trial court judge looked to the test of the ordinary person of average disposition when he spoke of social policy concerns and correctly determined that an ordinary person in this situation would not have been provoked.
{38} This ease is distinguishable from State v. Benavidez,
{39} This case is like State v. Farris,
{40} In Sells we adopted a less restrictive approach, holding that under certain limited circumstances the content of words could amount to provocation. Sells,
The trial court did not abuse its discretion in precluding a portion of expert testimony where defense counsel failed to comply with procedural rules, the court weighed the prejudice to the defense, and the court viewed preclusion as necessary to protect the effective administration of justice and integrity of the system.
{41} Defendant argues that the limitations placed on the testimony of an expert witness, Dr. Kris Sperry, deprived him of a fair trial. Dr. Sperry is a forensic pathologist, who was precluded by the court from testifying concerning hand injuries because the defense had not timely disclosed that he would testify on this issue. Rule 5-502(A)(2) NMRA 1997.
{42} When interviewed by the prosecution pre-trial, Dr. Sperry said he would testify about vaginal injuries only and would not testify about anything else. After the trial had commenced, and after other experts had testified, Dr. Sperry reviewed the evidence and the defense informed the court that Dr. Sperry’s testimony would be expanded to include blood spatter testimony, testimony concerning sperm found at the scene, and injuries to the victim and to Defendant’s hand. The court permitted Dr. Sperry to testify about blood spatter on the basis that certain expert testimony may have come as a surprise and that Dr. Sperry’s testimony would overcome any surprise. The court, however, would not permit him to testify concerning injuries to the Defendant’s hand and the facial injuries to Hollie. Apparently, Dr. Sperry would have testified that he was surprised at the prosecution’s expert Dr. Ward’s opinion that the injuries to Defendant’s hand were consistent with the beating to Hollie. The court found that the Defendant was required to give information concerning Dr. Sperry’s testimony to the State pre-trial and that there had been no surprise warranting Dr. Sperry’s additional testimony. The court, in coming to this determination, considered that the trial had commenced, and expert witnesses had been called.
{43} Although preclusion of a defense witness’s testimony as a sanction for violation of a discovery rule “is only appropriate in limited circumstances,” if the court determines that the defense has withheld information for a tactical advantage then the court is within its discretion to preclude. McCarty v. State,
{44} The trial court’s decision to exclude evidence is reviewed for abuse of discretion. State v. Apodaca,
The trial court did not err when it refused to exclude evidence of the carpet samples containing semen stains.
{45} Carpet samples were obtained from the area under and near Hollie’s body. Pre-trial Defendant requested that all evidence concerning carpet samples be suppressed. These samples were tested for semen by APD forensic scientist Cathy Pfefferle. The test was negative and the samples were frozen. Some months later the samples were removed from the freezer and placed in a locked dark evidence room. The samples were reexamined with a newly acquired,
{46} In the absence of evidence that the State acted in bad faith, failure to preserve potentially exculpatory evidence for future testing is not grounds for excluding relevant, probative testimony regarding that evidence. State v. Ware,
Defendant was not denied a fair trial by prosecutorial misconduct.
{47} Defendant claims he was denied a fair trial due to prosecutorial misconduct. The conduct Defendant objects to concerns the State’s allegedly eliciting testimony that had been ruled inadmissible, and comments made during closing arguments.
{48} Defendant’s first claim is based on a ruling by the court which precluded discussion on a prior altercation between the Defendant and Hollie. The Prosecutor asked the Defendant whether, at a previous time, the Defendant had been asked to leave Hollie’s and her mother’s home. Defendant in his answer included the fact that he had pushed and hit Hollie during that altercation which had been ruled inadmissible by the court. Defense counsel did not object or request a mistrial at that time, but did request a mistrial on this basis several hours later. The court heard argument on the record, and ruled that no prosecutorial misconduct requiring a mistrial had occurred. We agree.
{49} The Standard of Review for claims of prosecutorial misconduct is abuse of discretion. Abeyta,
court’s determination that a mistrial was not warranted under these circumstances.
{50} Defendant next claims that during closing argument the State: (1) improperly shifted the burden by saying the defense could not “prove” the evidence was mishandled or disprove certain other facts in evidence; (2) argued facts not in evidence: on the day of Hollie’s death Defendant had no tears, that the carpet stains might have been wet, that Defendant stated blood was coughed onto him; (3) improperly expressed personal opinion, vouched for his witness, and appealed to the prejudices of the jury by saying Dr. Sperry was another one of those folks coming in from Georgia; and (4) that Judge Brennan improperly directed Defense Counsel to stand up when making an objection. We have said that where it is alleged that the prosecutor made improper prosecutorial comments in closing the question is whether those comments deprive the Defendant of a fair trial. State v. Brown, 1997 NMSC 029, ¶ 23,
{51} Defendant argues that cumulative error requires a reversal in this case. “In New Mexico the doctrine of cumulative error is strictly applied.” State v. Martin,
{52} Defendant also argues that he was denied due process and a fair trial. He claims first that it was improper for the trial court to order the defense to turn over transcripts of pre-trial interviews with witnesses for the prosecution. Defendant does not cite authority for his argument that “[t]his order is not contemplated under the criminal rules of discovery and was unfair.” Rule 5-502(A) NMRA 1997 concerns information “the defendant shall disclose or make available to the state.” Rule 5-502(A)(3) provides that defendant shall disclose “a list of names and addresses of the witnesses the defendant intends to call at the
{53} The Defendant makes several other allegations of error on the part of the trial court which lack specificity, citation to the record, or both, and those allegations we hold to be without merit. In re Adoption of Doe,
{54} Defendant next claims that “the three attorneys who defended him at trial provided ineffective assistance of counsel,” in that they did not properly prepare and investigate the case. We see nothing in Defendant’s argument or the record that suggests that defense counsel’s representation was deficient such that defendant was prejudiced and deprived of a fair trial. Strickland v. Washington,
{55} Defendant’s final argument is that the evidence was insufficient to support his conviction. The Defendant questions whether circumstantial evidence that does not preclude a rational theory of the Defendant’s innocence should sustain a conviction. “In determining whether substantial evidence was presented to support charges, an appellate court must view the evidence in the light most favorable to the State and indulge all reasonable inferences which support the conviction.” State v. Garcia,
Conclusion.
{56} We hold that the trial court did not abuse its discretion in admitting DNA typing evidence under the PCR technique. It is the role of the jury to weigh evidence concerning the manner in which the evidence was collected and stored, and evidence concerning the results of the test and statistical calculations, and resolve any controversy with respect to this evidence. Further, the trial court, in the absence of adequate provocation, properly refused to submit an instruction to the jury on voluntary manslaughter. Defendant was not deprived of a proper defense by the trial court’s limitation on expert testimony; physical evidence was not improperly introduced; neither questions posed by the Prosecutor nor comments made by him during closing argument deprived Defendant of a fair trial. There was substantial evidence to suggest conviction beyond a reasonable doubt. Defendant’s claim of ineffective assistance of counsel is also without merit. We affirm.
{57} IT IS SO ORDERED.