The defendant, Joseph Whittey, was convicted following a jury trial of first-degree murder in the course of rape. See RSA 630:l-a (1974) (amended 1986 & 1990). On appeal, he argues that the Superior Court (McGuire, J.) erred by: 1) failing to recuse herself from the case; 2) denying the defendant’s motion to dismiss; and 3) finding that the results of polymerase chain reaction based short tandem repeat DNA testing were admissible scientific evidence. We affirm.
The relevant facts are as follows. On September 7, 1981, Yvonne Fine was found dead in her home. Following an autopsy, the examiner concluded that Fine’s death was caused by strangulation, and that she had bruises on her body that could have been caused by sexual assault and penetration. Shortly thereafter, the defendant was interviewed by the Concord Police Department and denied having murdered Fine.
In 1993, a serologist confirmed that there was still a usable semen sample in the victim’s pajama pants and stored them in a freezer. In 1999, the State sent the pajama pants, a slipper, and the defendant’s underwear, as well as fingernail scrapings, to Cellmark Diagnostics (Cellmark) for DNA analysis. Cellmark used a form of DNA testing known as polymerase chain reaction (PCR) based short tandem repeat (STR) DNA profiling and concluded that DNA in the semen sample on the pajama pants matched the defendant’s DNA profile. The examiner also concluded that the DNA in a semen stain on the slipper matched the defendant’s DNA profile.
Prior to trial, the defendant moved to disqualify the trial judge from the case because she was formerly employed as a prosecutor with the attorney general’s office during the investigation of Fine’s murder. The trial judge denied' the motion. In addition, the defendant unsuccessfully moved to dismiss the indictment charging him with committing murder in the course of rape on the ground that the legislature repealed RSA chapter 632,
Finally, the defendant moved to exclude the use of DNA evidence at trial because the PCR-based STR analysis was not admissible under the standard set forth in Frye v. United States,
I. Motion to Recuse
The defendant first argues that the trial judge erred by failing to recuse herself from the case. He argues that the judge’s former employment with the attorney general’s office from 1985-1989, which coincided with the investigation of this case, but preceded the defendant’s arrest by over ten years, calls into question her impartiality. While acknowledging that the judge did not have any direct involvement in this case, the defendant contends that the trial judge’s involvement with the attorney general’s office created an appearance of impropriety.
“The Code of Judicial Conduct requires disqualification of a judge in a proceeding in which the judge’s impartiality might reasonably be questioned and to avoid even the appearance of impropriety.” State v. Bader,
Whether an appearance of impropriety exists is determined under an objective standard, i.e., would a reasonable person, not the judge herself, question the impartiality of the court. The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case.
Blevens v. Town of Bow,
The trial judge requested that the State review all of its files relating to the Fine murder to determine whether she had any contact with the investigation. There is no question in this case that the trial judge did not serve as a lawyer in the matter in question as described under Canon 3E(l)(b). The only evidence that established any involvement on the part of the trial judge was a memorandum dated March 13,1986, which stated that the judge received a telephone call from a defense attorney who requested that law enforcement not communicate with his client, a potential witness in the defendant’s case, without his approval. Such innocuous and isolated contact does not form the basis upon which a reasonable person would question the impartiality of the judge in this instance. As the trial judge explained in her order, her action amounted to nothing more than a perfunctory act in her former capacity as a prosecutor and did not amount to participation in the preparation and investigation of the case sufficient to require disqualification. Cf. Gamez v. State,
The only other reason asserted for seeking disqualification of the trial judge is that she was previously employed with the attorney general’s office. The majority rule, however, is that “judges are not disqualified solely on the basis that they were formerly employed by the prosecutor’s office.” People v. Julien,
Where the judge did not actually participate in the investigation, preparation, or presentation of the case against the person who later appears before him as a defendant, the mere fact that he happened to be employed by the office that did prosecute the defendant has generally been held not to provide a legally sufficient ground for judicial disqualification.
Id. at 1198 (quotation and brackets omitted). In construing Canon 3(C)(1) of the Colorado Code of Judicial Conduct, which is substantially similar to
The trial judge did not begin working for the attorney general’s office until 1985, approximately four years after Fine was murdered, and left that employment more than a decade before the defendant was indicted and prosecuted. There is nothing in the record to indicate that she had any direct involvement in the defendant’s case by participating in thе investigation or preparation of the case, or that she acquired any personal knowledge about the evidence in the case. Indeed, the judge stated in her order that she had no recollection of the investigation in this case. Moreover, the trial judge was not a supervising attorney at the attorney general’s office and, therefore, was not responsible for the work of the prosecutors who were investigating the case. Cf. id. at 1198 (trial judge must disqualify himself or herself if judge had supervisory role over attorneys prosecuting the casе).
Thus, we hold that the trial judge was not required to recuse herself from this case and uphold the court’s decision.
II. Motion to Dismiss
The defendant next argues that the trial court erred by failing to dismiss the indictment charging him with first-degree murder in the course of rape. The indictment in this case charged, in part, that the defendant “knowingly caused the death of Yvonne Fine, age 81, before, after, or while attempting to commit rape.” The defendant contends that this charge should have been dismissed because there was no statutory definition for rape in 1981.
As in all cases involving statutory interpretаtion, the starting point is the language of the statute. State v. Harnum,
In 1981, RSA 630:l-a, 1(b)(1) (1974) provided that a person was guilty of first-degree murder if the person knowingly causes the death of “[a]nother before, after, while engaged in the commission of, or while attempting to
Given the repeal of the former rape statute and the lеgislature’s continued reference to the word “rape” in RSA 630:l-a, 1(b)(1), we agree with the trial court that the statutory language at issue is ambiguous. Thus, it is appropriate to- consider legislative history to discern the intent behind the statutory language. Appeal of Manchester Transit Auth.,
The purpose of promulgating RSA chapter 632-A was to “redefine[] and rе-work[]” parts of the Criminal Code dealing with rape and deviant sexual behavior. N.H.S. JOUR. 480 (1975). Specifically, the law “change[d] the emphasis and the inquiry from the sexual nature of the crime of rape to the violence of the crime.” Id. Contrary to the defendant’s argument, rape and aggravated felonious sexual assault are not dissimilar offenses. We have stated that “[r]ape [is] the common law counterpart to aggravated felonious sexual assault.” State v. Ayer,
There is nothing apparent in the legislative history to establish that by repealing RSA chapter 632, the legislature intended to eliminate the rape element of the first-degree murder statute. In fact, as the trial court correctly stated, the conduct prohibited under the former rape statute is also specifically prohibited under the aggravated felonious sexual assault statute. Compare RSA 632:1 (1974) with RSA 632-A:2 (1996). Accordingly, we concur with the trial court that the legislature’s failure to remove the
III. Scientific Reliability ofPCR-Based STR DNA testing
Finally, the defendant argues that the trial court erred in admitting the results of PCR-based STR DNA testing at trial. Although we have adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Because we have previously discussed the general theory underlying DNA profiling, see State v. Vandebogart,
As with other forms of DNA testing, the PCR-based STR method begins with the extraction of DNA from a sample. The strands of DNA are then split in half using heat application and small segments are duplicated using the PCR technique. The PCR method refеrs to the amplification of DNA material where a chemical reaction takes place in which polymerase, an enzyme, is used to copy a specific DNA location so that the particular DNA region can be typed and compared to DNA of a known sample. The
STR testing, which involves the testing of DNA at three or more genetic markers, is a subtype of the PCR method. See People v. Hill,
In performing the PCR-based STR testing, Cellmark used commercial test kits manufactured by Perkin-Elmer/Applied Biosystems known as the “Profiler Plus” and “Cofiler.” These test kits contain synthetic primers and enzymes that facilitate DNA amplification and DNA typing at the thirteen loci. Cellmark also used a machine called the ABI Prism 310 Genetic Analyzer, which marks the DNA using fluorescent dyes and separates the copied DNA by length. The results from this procedure are then printed in the form of peaks on a graph known as an electropherogram, which is interpreted by a DNA analyst. If the pattern of repeats in the known DNA strand matches the pattern in the questioned strand,.the analyst reports that the donor of the known sample cannot be conclusively eliminated as the source of the questioned sample. Similar to RFLP testing, the analyst performs a statistical calculation to quantify the significance of the similarity between the known and questioned samples.
As a preliminary matter, we note that the defendant does not challenge the admissibility of the PCR method of DNA analysis, which “has received
While we have previously examined the general theory of DNA profiling and the methods and techniques involved in RFLP testing, see VandsbogaH (DNA), 136 N.II. at 378-79, we have yet to address the reliability of PCR-based STR DNA testing. While decisions concerning this form of DNA testing are not widespread, the majority of jurisdictions that have addressed the admissibility of PCR-based STR DNA testing have held that the techniques and procedures used in such testing are scientifically reliable. See, e.g., People v. Shreck,
At the Frye hearing, one of the State’s expert witnesses, Doctor Robin Cotton, a forensic scientist and molecular biologist who works as a forensic laboratory director for Cellmark, testified that the PCR method of STR DNA testing, as well as the methods and techniques underlying the use of the Profiler Plus and Cofiler kits with the 310 Genetic Analyzer, are generally accepted in the relevant scientific communities of forensic science and molecular biology. Cf Jackson,
The defendant attempts to discredit the testimony of both Doctor Cotton and the State’s other expert witness, Doctor Ranajit Chakraborty, on the ground that they are biased. It is well settled that the trier of fact is in the best position to measure the persuasiveness of evidence and the credibility of witnesses. Cheshire Toyota/Volvo, Inc. v. O’Sullivan,
The defendant next argues that the PCR-based STR DNA test is not admissible under Frye because the commercial testing kits used in this case and Cellmark’s internal laboratory procedures have not undergone sufficient validation testing. The State argues, and the trial court ruled, that these validation concerns are not relevant to the Frye analysis. We agree. First, “the Cofiler and Profiler materials kits do not represent a separate part of the [DNA] typing process, but rather, simply contain materials for beginning the PCR process.” Trala,
Nevertheless, the testimony at the Frye hearing supports the trial court’s findings that both Cellmark’s testing procedures and the Profiler Plus and Cofiler testing kits are validated and scientifically reliable. Doctor Cotton testified regarding the validation studies Cellmark conducted with respect to PCR-based STR DNA testing. She explained that her laboratory performed numerous studies and experiments addressing various issues such as the limits of the instrument’s detection and the ability of analysts to interpret mixed samples. She further testified that the majority of lаboratories in the United States use the same methods and instruments as Cellmark. The State also introduced a summary of Cellmark’s internal validation studies.
In addition, there was evidence introduced that Perkin-Elmer conducted validation studies of its test kits. This evidence included articles that were submitted for publication addressing the design of the kits and the procedures for performing experiments. Doctor Chakraborty testified that his laboratory was involved in testing the Profiler Plus and Cofiler test kits during their developmental stages. Finally, we note that other courts have found the Profiler Plus аnd Cofiler test kits to be scientifically reliable. See, e.g., Owens,
While the defendant’s expert witnesses were critical of the sufficiency of both Cellmark’s and Perkin-Elmer’s validation studies, scientific unanimity is not required to render such theory or technique admissible under Frye. See Vandebogmt,
The defendаnt also argues that PCR-based STR testing is not admissible under Frye because the technology cannot adequately distinguish stutter and other artifacts from sample-specific peaks on an electropherogram, which affects the ability to analyze mixed samples. Specifically, he asserts that the problems of stutter and other artifacts have not been sufficiently studied by Cellmark, Perkin-Elmer, or the scientific community to render STR testing admissible under Frye.
An “artifact” is a result that does not come from the things one actually intends to test. One form of artifact is called a “stutter,” which occurs in STR testing when a small sample of production of a fragment is one base pair shorter than the true allele. Artifacts are not unique to STR tests, but rather are present in many forms of DNA testing. Doctor Cotton testified
Testimony at the Frye hearing established that mixed samples, which involve DNA of two or more people, are one of the most common things that scientists encounter in forensic science. Doctor Peter D’Eustacio, a defense expert, testified that mixture interpretation has bеen examined extensively and is not a new concept in forensic science. The State introduced various articles at the Frye hearing addressing specifically the testing and interpretation of mixtures in the forensic DNA setting. As explained above, Cellmark has also conducted various internal validation studies to address the problems of mixtures, Finally, Doctor Cotton stated that Cellmark follows the DNA Advisory Board guidelines, which cover such areas as validation testing and internal operating procedures to ensure testing accuracy.
While the presеnce of artifacts could affect an analyst’s interpretation of an electropherogram, this fact does not undermine the general acceptance of the techniques, methods, or procedures by which the data is produced. Thus, in light of the evidence presented in this case, we hold that interpretive issues raised by the defendant are properly the subject of cross-examination and affect the weight to be given such evidence in a particular case. See Traía,
Lastly, while not argued specifically in his brief, the defendant asserted at oral argument that Cellmark’s method of interpreting electropherograms to calculate a DNA match constitutes an improper application of the product rule. “The product rule is one technique used to determine the probability of finding a match between a DNA sample from a suspect and DNA material found in a body fluid sample recovered from a crime scene.” Jackson,-
Even assuming without deciding that Cellmark did misapply the product rule, we disagree with the defendant that this renders the results of PCR-based STR DNA testing inadmissible under Frye. The contention that Cellmark failed to follow generally aсcepted techniques when analyzing
As a result, based upon the evidence presented during the Frye hearings and the overwhelming acceptance of PCR-based STR DNA testing in other cases, we affirm the trial court’s ruling that the methods and techniques used in PCR-based STR DNA testing are generally accepted in the scientific community.
Affirmed.