Cobey v. State

GILBERT, Chief Judge. We here visit for the first time and on a very limited basis the scientific world of deoxyribonucleic acid, more familiarly known as “DNA.” 1 Kenneth S. Cobey, who was convicted in the Circuit Court for Montgomery County of several sexual offenses, together with other related but non-sexual crimes, 2 specifically assails the DNA fingerprint analysis as used in the instant case. Cobey also challenges the taking of a blood sample from him in what he avers violated the Fourth Amendment to the Constitution of the United States. Because we think Judge Ruben did not err in his evidentiary ruling, we reject Cobey’s arguments and affirm the judgments of the circuit court.

The Facts On the evening of September 4, 1985, a young woman drove her automobile to Northwest Branch Park in Montgomery County. She parked her car and went for a stroll. As she walked along a jogging trail, she was attacked from behind by a man who forced her off the path and into the woods. There, after threatening to kill her if she screamed, he compelled her to perform oral sex on him and ravished and sodomized her.

The assailant then fled, using the victim’s vehicle. A traffic citation issued to Cobey while he was driving the victim’s automobile precipitated the investigation which led to Cobey’s being prosecuted for sexually assaulting the victim, as well as for the other crimes. ³⁴ At trial, 3 the State presented, over objection, a DNA fingerprint analysis linking Cobey to the offenses. The analysis compared Cobey’s DNA structure, as revealed by his blood, with the DNA extracted from semen stains found on the victim’s underclothing. The analysis was performed by Cellmark Diagnostics, a private laboratory in German-town, Maryland.

Dr. Robin Cotton, Director of Research and Development at the laboratory, testified that she perceived a “match” between the DNA in Cobey’s blood sample and the DNA in the semen stains. Although Cobey primarily assails the method used by Cellmark as opposed to the admissibility of DNA fingerprint analysis evidence in general, the novelty of the question requires that we address both the frontal assault on Cellmark’s methodology as well as the admission into evidence generally of DNA fingerprints. Underlying the whole case is the question of whether DNA fingerprinting meets the Frye test. 4 The Law I. Admissibility of DNA Fingerprint Analysis 5 Judge Ruben held a Frye 6 hearing on the admissibility of Cellmark’s DNA fingerprint test results, focusing on the acceptance of the methodology. Over objection, the judge admitted the test results.

The Court of Appeals in Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), adopted as the criterion for admission of ³⁵ scientific evidence the rule enunciated by the Court of Appeals of the District of Columbia in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye standard requires that the method at issue be “generally accepted as reliable” in the relevant scientific field or community before the test results derived therefrom may be admitted into evidence. Reed, 283 Md. at 381 , 391 A.2d 364 . The State in the case sub judice presented five experts who testified that DNA fingerprinting was accepted in the scientific community. 7 Cobey produced no expert evidence to the contrary.

DNA fingerprinting has been accepted in Andrews v. State, 533 So.2d 841 (Fla.App. 5th Dist., 1988), and People v. Wesley, 140 Misc.2d 306 , 533 N.Y.S.2d 643 (County Court of Albany, 1988). In Andrews the court concluded that Frye's viability was questionable, at best, in Florida. The court grounded its acceptance of DNA sequencing and comparison testing on its use in the diagnosis and treatment of genetically inherited diseases, as well as testimony that an incorrect “match” is an impossible result. Judge Joseph Harris in Wesley , a rape case, permitted the use of DNA fingerprinting to identify Wesley as the culprit.

Judge Harris reasoned that under Frye the test was not whether the procedure is unanimously endorsed but rather whether it is generally accepted as reliable. In a carefully crafted opinion, the judge concluded that DNA fingerprinting is accepted generally in the scientific community. Moreover, DNA fingerprinting has also been accepted in a paternity case, The Matter of Baby Girl S., 140 Misc.2d 299 , 532 N.Y.S.2d 634 (Surrogate Court of New York County, 1988). The Federal Bureau of Investigations, after ³⁶ conducting a year of practical tests, has initiated widespread use of DNA fingerprinting.

N.Y. Times, June 12, 1989, § A at 1. DNA Generally The structure of the DNA molecule was discovered in 1953 by James Watson and Francis Crick, two scientists working together at Cambridge University. Since that time, biochemists and other scientists have embarked on a vast ocean of genetic research which has significant application to forensic identification. 8 Each human cell which has a nucleus contains forty-six chromosomes arranged in pairs of twenty-two, plus two sex chromosomes (X for female, Y for male). Chroinosomes are composed of strands of DNA and associated proteins.

The structure of DNA consists of a “double helix” or two strands of nucleotides running in opposite directions. The helix with its bases is reminiscent of a spiral staircase. The strands are connected to each other by hydrogen bonds between bases on each “rung of the ladder.” (See Figure 1.) ³⁷ [[Image here]] There are four varieties of bases (A, G, C, T); yet they form only two varieties of pairs: A and T, G and C. Three base pairs on a segment of DNA form a sequence called a codon. A gene is comprised of groups of codons.

Every gene, therefore, contains a number of base pairs arranged in a specific order. Some links of a DNA segment are common to every human being. Those links contain genes characteristically related to human organs, as distinguished from those of ³⁸ other creatures. Every individual human being, with the exception of identical twins, 9 has links of DNA that are unique to him or her.

It is those highly variable individual links of DNA that provide the basis for genetic fingerprinting. DNA Fingerprinting Procedure The procedure known as DNA fingerprinting was meticulously explained by Judge Harris in Wesley, supra: “DNA Fingerprinting, as applied to forensic identification, involves essentially six steps, all the scientific principles and technology of which have gained general acceptance in the scientific field in which they belong: (1) EXTRACTION OF DNA. The DNA is chemically extracted from the submitted evidentiary sample — semen found in the victim, blood, hair, or any other tissue thought to originate from the perpetrator of the crime— and purified; (2) FRAGMENTATION BY RESTRICTION ENZYMES. The DNA is then cut into fragments.

The ‘molecular scissors’ used to cut the DNA are called restriction endonucleases, or restriction enzymes — enzymes that cleave the DNA molecule at specific base sequences; routinely, a restriction enzyme will cut everyone’s DNA in the same places, resulting in same-size fragment lengths — however, in every person’s DNA, variable lengths of repetitive ‘junk DNA’ periodically turn up. In those areas the cut points get shifted, resulting in fragments of varying lengths. (3) GEL ELECTROPHORESIS. The fragments of DNA are then subjected to a technique widely accepted by the scientific community, and much used particularly ³⁹ by molecular biologists, known as ‘gel[ 10 ] electrophoresis’; the purpose of this process is to arrange or line up the fragments of DNA according to length, for later comparative purposes.

The process of gel electrophoresis essentially consists of placing the DNA fragments on an electrically charged flat gelatin surface containing agarose gel, a thick jello-like substance, full of holes; at one end of this surface is a positively charged electric pole and at the other end a negatively charged pole; because DNA carries a negative charge, and because opposite electrical charges attract, the DNA fragments will travel from the negatively charged end toward the positively charged end; the distance the fragments travel depends on their length — the larger fragments, being bulkier than the shorter fragments, find it more difficult to worm their way through the holes in the agarose gel, and will not travel as fast or as far, remaining closer to the negative pole, while the shorter fragments will arrange themselves closer to the positive pole. The result is an orderly arrangement of the DNA fragments along parallel lines. (4) SOUTHERN BLOTTING. The double-stranded DNA fragments are then chemically split apart into two strands, leaving their chemical bases (A, C, G and T) separated like open zipper teeth; the fragment pattern is then transferred from the wobbly surface of the agarose gel onto a sheet of nitrocellulose (or a nylon membrane), which resembles a sheet of heavy blotting paper.

This procedure is known as Southern Blotting, after Dr. E.H. Southern, who reported the process in 1975. (5) HYBRIDIZATION. To