Keirsey v. State

MURPHY, Judge. In the Circuit Court for Worcester County, a jury (Hon. Theodore R. Eschenburg, presiding) convicted Brian Ralph Keirsey, appellant, of burglary, first degree rape, and related offenses. Pursuant to Md.Ann.Code art. 27, § 643B, appellant was sentenced to two consecutive life sentences without the possibility of parole for the burglary and first degree rape convictions.

The other convictions merged. His appeal presents seven questions that we have renumbered and rephrased as follows: I. Did the admission of DNA evidence violate due process of law?

II

Did the trial judge err by denying the defense expert access to relevant information about the State Police DNA laboratory?

III

Did the trial judge err in admitting evidence that DNA testing established a “match” between appellant’s DNA and the perpetrator’s DNA?

IV

Did the trial judge err by admitting the random match probability computed by the State Police DNA Laboratory using the Multiplication Rule? V. Are appellant’s mandatory life sentences without parole illegal because the State failed to prove the facts necessary for imposition of those sentences?

VI

Was imposition of two mandatory sentences of life without parole illegal?

VII

Must the sentence for burglary be vacated because that crime merges into first degree rape? ⁵⁵⁵ FACTUAL BACKGROUND Appellant was charged with a rape and burglary that occurred in Ocean City on September 15, 1990. The victim was unable to identify her assailant. She made a tentative identification of her assailant’s voice from a tape that police played for her. Michael Austin, the person whose voice she identified, was “excluded” on the basis of DNA testing.

The case was investigated by Worcester County Deputy Sheriff Stuart Murray, who learned that appellant had been arrested on unrelated charges shortly after the rape occurred. 1 Murray requested that appellant meet him at the Ocean City Police Headquarters. When they met at that location two days after the rape, appellant professed his innocence. He stated that in the early morning hours of September 15 he had been in the Dutch Bar until it closed, then went to the Kitchen Restaurant with friends, and ended up at the Thunderbird Motel where he was staying. Appellant’s criminal agency was established by expert testimony from Teresa Long, a supervisor in the Maryland State Police Crime Laboratory’s biology unit (“MSPCL”).

After giving a description of the DNA testing process, Long testified that appellant’s DNA “matched” the DNA in the sperm recovered from the victim’s vaginal swabs. According to Long, (1) the probability that someone selected at random would have appellant’s DNA was 1 in 2,200,000; and (2) Michael Austin’s DNA did not match the DNA recovered from the victim. Appellant did not testify. His witnesses challenged the DNA evidence and raised an alibi defense.

Dr. William Shields, a DNA expert, disagreed with Long’s conclusion and ⁵⁵⁶ criticized the MSPCL’s testing procedure. Shields ultimately opined that, even if the MSPCL’s lab results were compatible with the FBI database used to calculate the probability of a random match, the probability of someone selected at random matching appellant’s DNA profile was as low as 1 in 1,349. Kimberly Green testified that, on the morning of September 15, she was working at the Dutch Bar and served appellant a Long Island Iced Tea approximately every 15 minutes. She also testified that, after the bar closed, she was at the Kitchen Restaurant with appellant and others until approximately 3:30 a.m.

Penny Miles, who dated appellant in the summer of 1990, described him as 6'2", 200 to 220 pounds, with a “roll of fat” around his stomach and tattoos on one arm. She denied that he spoke with a “hick country accent,” but did say that he wore a gold chain around his neck and a gold watch. DISCUSSION I Appellant contends that the admission of DNA evidence violated his due process rights because “[a] part of the due process guarantee is that an individual not suffer punitive action as a result of an inaccurate scientific procedure.” Higgs v. Wilson, 616 F.Supp. 226, 230 (Ky.1985). To violate due process, the introduction of the evidence must be “so extremely unfair that its admission violates ‘fundamental concepts of justice.’ ” Dowling v. United States, 493 U.S. 342, 352 , 110 S.Ct. 668, 674 , 107 L.Ed.2d 708 (1990) (quoting United States v. Lovasco, 431 U.S. 783, 790 , 97 S.Ct. 2044, 2048 , 52 L.Ed.2d 752 (1977)).

No such violation occurred in this case. Appellant contends that, because DNA evidence is “in a state of flux,” whenever such evidence is offered, the accused has a due process right to a Frye-Reed hearing 2 to make sure ⁵⁵⁷ that the evidence offered is considered to be the “best” (i.e., the most accurate, explicit, probative) at that moment by the relevant scientific community. There is no merit in that contention. The criminal defendant does not have a due process right to a Frye-Reed hearing every time the State offers scientific evidence.

Appellant presents the following challenges to the State’s DNA evidence: (1) The State’s expert should have been prohibited from opining that appellant’s DNA “matched” the perpetrator’s DNA because: (A) The MSPCL used an incorrect “match window.” (B) The MSPCL’s internal controls were so inadequate that it was impossible to confirm that the RFLP testing was done properly in this case. (2) The State’s expert should have been prohibited from expressing an opinion about the statistical probability of someone other than appellant having the perpetrator’s DNA because: (A) The State’s expert relied on statistical information contained in the FBI database, rather than on a database developed in the MSPCL where the RFLP test was actually performed. (B) One of the four “probes” used by the State had a “questionable statistical independence” and should not have been included in the “bottom line” conclusion. (C) The State’s probability estimate was based on the “Multiplication Rule” (also known as the “product rule”), a methodology that is no longer generally accepted as reliable by the relevant scientific community.

Each of these challenges is discussed in parts III and IV of this opinion. In light of our disposition of those challenges, we do not reach the issue of whether a criminal defendant has a ⁵⁵⁸ due process right to obtain the exclusion of unreliable scientific evidence that is admissible by statute. The proponent of scientific evidence can satisfy the Frye-Reed test in three ways: (1) proving to the trial judge, through testimony and exhibits (including persuasive authority from other jurisdictions), that the relevant scientific community is in agreement that the technique at issue produces an accurate result; (2) asking the trial judge to take judicial notice of a reported opinion in which a Maryland appellate court has held that the technique at issue satisfies the Frye-Reed test; or (3) asking the trial judge to take judicial notice of a statute in the Annotated Code of Maryland that provides for the admissibility of the test results at issue. In this case, the State satisfied Frye-Reed by reliance on the applicable statute, and the defense made no contention that the relevant scientific community is now divided over the issue of whether RFLP testing produces accurate results.

There is a good reason why the defense decided against arguing that the RFLP testing technique cannot satisfy the Frye-Reed test. The reliability of RFLP test results has been established. The relevant scientific community agrees that RFLP testing is capable of determining whether persons’ DNA do or do not “match” at a specific location on a particular chromosome. The legislature has expressly recognized RFLP as a reliable method of DNA profiling.

So have appellate courts in other jurisdictions. The only Frye-Reed challenge in this case was addressed to the State’s statistical probability calculation. In part IV, we explain why the Frye-Reed test does not apply to estimates of statistical probability. We therefore affirm the trial judge’s refusal to grant appellant’s request for a Frye-Reed hearing on the State’s DNA evidence.

II Appellant made two separate motions requesting that his expert gain access to information contained in the MSPCL. The first motion requested that the State, pursuant to Mary ⁵⁵⁹ land Rule 4-263, “[pjroduee and permit the Defendant to inspect and copy all written reports or statements made in connection with this case by each expert consulted by the State, including the results of any ... scientific tests, experiment or comparison.... ” Appellant never requested a ruling on this motion. The second motion requested that Dr. Shields be allowed access to the MSPCL for a period of approximately eight hours so he could inspect the lab and assess the work done in this case. That motion was denied as overbroad by Judge Eschenburg who concluded that, “[t]he Md. State Police Lab can not be turned over for inspection in all cases where a Defendant requests it.

If this were permitted statewide, the lab would be in total chaos. [The defense] expert literally wants the lab turned over to him for inspection and questioning.” Appellant thereafter made no further request for access to the lab. Moreover, the following dialogue occurred during trial between the Court and appellant’s counsel: THE COURT: Wait a minute. There was a motion where you wanted to have your expert go, and he wanted, in effect, the court’s order having the lab, in my judgment, turned over to your expert for review and study all these various documents and their equipment and everything else about it, and I denied it. Is that what would have accomplished that, what you’re talking about? [DEFENSE COUNSEL 1]: No, Your Honor.

This could have been accomplished by just simply providing the data. THE COURT: Well, did you file any such motion? I can’t remember. I don’t remember that. [DEFENSE COUNSEL 1]: Yes, your Honor.

THE COURT: So I denied it then, obviously; right? [DEFENSE COUNSEL 1]: (Nodding head affirmatively). ⁵⁶⁰ THE COURT: Is that what you’re saying? [DEFENSE COUNSEL 1]: Well, Your Honor, I’ll have Doctor Shields address that. THE COURT: No. But Doctor Shields has nothing to do with whether or not I denied an order or granted it. Did I grant it or deny it, or did you even file such a motion? [DEFENSE COUNSEL 1]: Yes, I did file a motion, Your Honor. And as of the date of trial, I never received a ruling.

THE COURT: Well, I asked you before court started if there were any undisposed trial motions, and I was told no. [DEFENSE COUNSEL 2]: That’s correct. And it was probably my fault in miscommunication. You did deny our request for a court order to go in, and that’s all we’re asking. THE COURT: And that’s that.

Okay. Appellant clearly abandoned the 4-263 motion in favor of the Motion to gain access to the MSPCL. His present complaint, alleging error in the denial of the 4-263 motion, comes much too late. Appellant also contends that § 10-915 provides for more extensive and specific discovery in a DNA case and that the State failed to provide the necessary information.

In the circuit court, however, appellant never alleged that the State-failed to comply with its discovery obligation under the statute. The discovery issue has not been preserved for our review. Ill Md.Ann.Code (1989 RepLVol.), § 10-915(b) of the Courts and Judicial Proceedings Article (“the statute”) provides in part that “[i]n any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person.... ” In § 10-915(a)(3) of that statute, a DNA Profile is defined as “an analysis that utilizes the restriction fragment length polymorphism analysis of DNA resulting in the identifi ⁵⁶¹ cation of an individual’s patterned chemical structure of genetic information.” DNA and the RFLP testing process have been described in a number of opinions, including Cobey v. State, 80 Md.App. 31, at 36-41 , 559 A.2d 391 (1989). A brief summary, however, is necessary to provide the background for the evidentiary issues presented in this case. [Deoxyribonucleic acid (DNA) ] contains the ... ‘genetic code’ that defines who we are, what we look like, and where our talents lie....

Embedded within the nucleus of virtually every cell of each human being’s body are forty-six road-shaped chromosomes .... Each chromosome has the shape of a twisted ladder or spiral staircase [ (a double-stranded helix) ]. The ‘banisters’ of this staircase are made of phosphates and sugars, while the ‘steps’ or ‘rungs’ consist of ‘base pairs,’ or pairs of amino acids bound together. A single DNA molecule—itself not a very large entity—contains about three billion base pairs.

Located at specific sites, or ‘loci,’ along each chromosome are large groups of base pairs known as ‘alleles,’ or ‘genes.’ Over 99% of these genes are identical among all human beings ... The remaining [base pairs, approximately 3 million]—known as ‘polymorphic’ genes because they vary in form from person to person—account for our unique characteristics as individuals. Many polymorphic genes are known to have definite functions: some are responsible for the color of our hair and of our eyes, some for the shape of our body and the type of our blood. Other polymorphic genes, however, appear to have no function whatever.

These ‘junk DNA’ segments ... consist of varying lengths of repeating sequences of base pairs____ The remarkable technology which has provided molecular biologists with an entree into the wonders of sub-microscopic exploration has not yet enabled them to compare every base pair in one DNA molecule with every base pair in another to determine conclusively that the two molecules ⁵⁶² are, in fact, identical. Forensic scientists, seeking to apply the new technology to identify the guilty and to vindicate the innocent, have developed a ‘shortcut’ for making this determination. United States v. Porter, 618 A.2d 629, 632 (D.C.App.1992). DNA profile evidence involves two distinct procedures.

The Restriction Fragment Length Polymorphism (RFLP) analysis determines whether there is a “match” between the DNA of the defendant and the DNA of the perpetrator. A “match” produced by that process, however, does not prove conclusively that the defendant is the person who committed the crime: Even if there is a perfect [visual] match at four or five different loci, there is still a possibility that the two samples came from different people whose DNA patterns at those particular loci are indistinguishable. Thus, the second procedure, calculation of the probability of a random match, generates a ratio which accompanies a match, the purpose of which is to express the statistical likelihood that an unrelated person chosen at random from a particular population could have the same DNA profile as the suspect. People v. Watson, 257 Ill.App.3d 915 , 196 Ill.Dec. 89, 92 , 629 N.E.2d 634, 637 (1994).

The RFLP Testing Procedure There are six steps involved in determining whether there is a “match” between the defendant’s DNA and the perpetrator’s DNA: 1. Extraction: The DNA of each relevant person must be chemically extracted from samples of a person’s tissue, e.g., blood, semen, hair, bone, or skin. 2. Fragmentation: The DNA is then cut by restriction enzymes. Often described as “molecular scissors,” these enzymes are designed to cut the DNA strand into fragments.

The cuts are made at ⁵⁶³ places on the DNA strand that the enzyme recognizes as being “nonvariable”, i.e., the same in everyone. If everyone’s DNA were the same, the enzymes would produce fragments of the same length. The fragments cut by the restriction enzyme are not the same length, however, because in each fragment there are repetitive sequences of base pairs unique to each individual. These sequences are known as “VNTRs” (“variable number of tandem repeats”).

The VNTRs are called “polymorphic'” because they differ from person to person. 3. Gel Electrophoresis: This process sorts the fragments according to length. The fragments are placed on a slab of gel, and an electric current is applied to move the fragments toward the positive end of the gel. The distance that the fragments travel will depend on their length.

Smaller fragments will travel further than larger fragments. Ip. Southern Blotting: To facilitate the interpretation of the DNA fragments, they are then transferred to a nylon membrane. In a procedure called southern blotting, the fragments are blotted onto the membrane. 5.

Hybridization: DNA is a double stranded fragment. At this point it is chemically treated to “unzip” it, turning it into a single strand. The VNTRs on this strand are located with the use of radioactive probes. A probe is a single stranded fragment of cloned DNA.

Probes are predeveloped in laboratories around the world and are designed to identify strands of VNTRs at a particular “address” (section) on a specific chromosome. 3 As the State’s expert explained it, ⁵⁶⁴ ... a probe looks at a specific point or a locus on a chromosome or a location on a chromosome. The D stands for DNA; the number following that stands for which chromosome it’s found on; S stands for region; and the number following that stands for which region on that chromosome. The probe is placed on the membrane. When a probe recognizes a complementary strand of DNA, it will act like a magnet and “bind” itself to the fragment at that sequence.

This will “light up” the entire fragment, including the polymorphic portions, i.e., the portions that vary in length from individual to individual depending on the number of VNTRs contained within them. The probe thus allows the technician to measure the length of each person’s variable DNA at a particular locus (location) on a specific chromosome. The State’s expert explained the hybridization process as follows: Basically, ... the probe flows up the membrane. WTien it finds its compl[e]mentary match for every time there’s an “A” on the DNA fragment of the nylon membrane and “T” in the probe, and everything matches all along the line, it will zip back up in a double strand of DNA fragment.

And what’s so special about this probe is that we’ve made it radioactive so we can detect it later on ... Now, when I mention “probe,” what a probe does is looks for one area of the DNA that is specific to one chromosome. 6. Autoradiograph: Once the probes have attached, the nylon membrane is exposed on x-ray film. Black bands appear where the probes have attached to the fragments.

The result is an autoradiograph or autorad. A visual comparison is made of the auto-rads containing the victim’s sample, the suspect’s sample and the perpetrator’s sample. The lab technician is looking for ⁵⁶⁵ bands that (1) have identical lengths, and (2) occupy the same position on the autorad. The RFLP test does not allow the technician to determine the specific sequence of bases in the DNA fragment.

The State’s expert showed the jury the autorads produced in this case, 4 and testified as follows: I ... received a ... blood sample ... from Brian Ralph Keirsey. Again, the DNA profile were generated for the genetic loci D2S44; D17S79; D1S7; S(sic)10; and (sic) S28. They were developed from the blood samples of the victim, blood sample of the suspect Brian Keirsey, and the victim’s vaginal swabs.... The DNA profile obtained from the vaginal swabs ... matches the DNA profile that came from the blood sample of Brian Keirsey.

The first autoradiograph for the probe is D2S44. Again, you can see our molecular ladders across the gel and the sides of the bands. You can see in the second lane here is our real control line or cell line. You don’t produce a more suitable pattern.

That’s been pre-determined, and you gauge yourself to the proper places. The next lane is the victim’s band pattern. It has a band here and here. And S-l is the first suspect ... and here and there.

(Indicating) and Q1 is the male fraction of the vaginal swabs. That’s generated the entire length here. (Indicating) And you can see visually that this band pattern from the male fraction vaginal swabs does not match [the first suspect]. ⁵⁶⁶ When we received the blood of Brian Keirsey—it’s hard to see these on your overhead. You see this band pattern here is the male fraction vaginal swabs.

Right here is the blood of Brian Keirsey: This band here and that band there. Again, that’s a visual match, and we would go on the size of that. (Emphasis added) A margin of error is built into RFLP testing because it is impossible to measure the sample fragments precisely. Watson, supra, 196 Ill.Dec. at 94 , 629 N.E.2d at 639 .

This margin of error is called the match window. The MSPCL uses the FBI laboratory’s match window of +/ - 2.5 percent. Thus, the process produces a “match” if—at a particular section of a specific chromosome—the length of the suspect’s polymorphic DNA strand is no more than (1) 2.5% longer, or (2) 2.5% shorter than the length of the perpetrator’s polymorphic DNA strand. The RFLP test is an essential component of the expert’s opinion that the defendant’s DNA does or does not “match” the perpetrator’s DNA.

That test is based on a precise scientific technique “controlled by inexorable, physical laws.” State v. Allewalt, 308 Md. 89, 98 , 517 A.2d 741 (1986). If, as in this case, such a scientific technique is an essential component of an expert’s opinion, that technique must satisfy the Frye-Reed test. Keene Corp. v. Hall, 96 Md.App. 644, 660 , 626 A.2d 997 (1993), cert. granted, 332 Md. 741 , 633 A.2d 102 (1993). As we stated in Part I, however, compliance with Frye-Reed was fully satisfied.

Section 10-915 does not require the admission of unreliable evidence. As is the case with any scientific evidence, a proper foundation is required before RFLP test results can be admitted. 5 The State’s foundational evidence must establish ⁵⁶⁷ that (1) the equipment necessary for performing each phase of the test was in proper working order, and (2) the persons operating the equipment at every stage in the process were qualified to do so. See 5 Lynn McLain, Maryland Evidence, § 401.4(d) (1987). In this case, the State’s foundational evidence was more than sufficient to establish that a correct “match window” was used and that the MSPCL’s internal controls were adequate.

IV Statistical Probability Analysis The statistical probability analysis attempts to answer the question, “What is the likelihood that a person other than the defendant has the same DNA as the perpetrator?” The RFLP process does not determine with precision either the exact number of base pairs or the exact order of the YNTR sequence for any DNA fragment at issue. The process only makes it possible for the technician to measure the overall length of a polymorphic DNA fragment that is located at a particular locus on a specific chromosome. “A match is virtually meaningless without a statistical probability expressing the frequency with which a match could occur.” State v. Vandebogart,