Phillips v. State

FRIEDMAN, J. This case requires us to decide what to do with a statute that appears to be obsolete regarding the admissibility of DNA evidence. Following a jury trial in the Circuit Court for Prince George’s County, appellant Richmond Phillips (“Phillips”) was convicted of two counts of murder in the first degree, one count of use of a handgun in a crime of violence, and one count of child abuse in the first degree. He was sentenced to two consecutive terms of life imprisonment without the possibility of parole. On appeal, Phillips challenges the DNA evidence the State used against him.

The State argues that the DNA evidence was automatically admissible under § 10-915 of the Courts and Judicial Proceedings (“CJP”) Article of the Maryland Code. Section 10-915, however, requires that, to be admissible, a DNA profile must include certification that the analysis was performed according to standards promulgated by two entities that no longer exist. Phillips asserts that the DNA evidence failed to comply with this factually obsolete ⁴ statute and, therefore, that the trial court was correct in conducting a Frye-Reed hearing to determine whether to admit the DNA evidence. Phillips alleges, however, that the trial court erred in concluding that the DNA evidence was admissible under Frye-Reed.

For the following reasons, we will affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL HISTORY Phillips was charged and convicted of the murders of his ex-girlfriend, Wynetta Wright, and their 11-month-old child, Jaylin Wright. Wynetta’s body was found in a park near the Hillcrest Heights Community Center. Wynetta died of a gunshot wound to the head.

Jaylin was found dead in Wynet-ta’s car in a nearby parking lot. Jaylin died of hyperthermia as a result of being left in a hot vehicle for an extended period of time. Phillips admitted to meeting with Wynetta during the early morning hours of May 31, 2011, but denied any part in her or their child’s death. The police obtained DNA samples, 1 which were tested in June 2011 by forensic chemist Jessica Charak of the Prince George’s County DNA laboratory.

Two of the DNA samples are relevant to this appeal: one was from the steering wheel of Wynetta’s car, and the other was from Phillips’ buccal swab. 2 Based on DNA analysis of the two samples, it was Charak’s opinion that the steering wheel sample contained material that was consistent with Phillips’ DNA and, therefore, Phillips could not be excluded as a contributor. The ⁵ steering wheel sample also contained genetic material from Wynetta, Jaylin, and two other unknown contributors. In her report, Charak calculated that “[t]he chances of selecting an unrelated individual from the random population who would be included as a possible contributor to the mixed DNA profile obtained from the evidence sample at the remaining tested loci are approximately ... 1 in 2.93 million individuals in the African American population.” Additionally, Charak’s report included the following statement that figures prominently in this appeal: “The DNA profiles reported below were determined by procedures which have been validated according to the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.” Prior to trial, Phillips filed a motion in limine to exclude any expert testimony pertaining to the State’s DNA evidence, asserting that the Prince George’s County DNA laboratory’s interpretation of complex, low copy number DNA samples 3 was not based on generally accepted scientific standards and was thus inadmissible under the Frye-Reed standard. 4 The State countered that the DNA evidence at issue is automatically admissible under CJP § 10-915 (the “DNA Admissibility Statute”). The trial court undertook a two-step process to determine the admissibility of expert testimony pertaining to the disputed DNA analysis.

First, the trial court held a hearing to determine whether the Prince George’s County DNA laboratory was in compliance with the DNA Admissibility Statute, and ⁶ whether the resulting DNA evidence was therefore automatically admissible without a Frye-Reed hearing. The trial court determined that the Prince George’s County DNA laboratory was not following the standards referred to by the DNA Admissibility Statute, and, therefore, that the DNA evidence was not automatically admissible pursuant to the statute. Second, the trial court conducted a Frye-Reed hearing. The trial court determined that the underlying scientific methods used by the Prince George’s County DNA laboratory were generally accepted in the relevant scientific community and, therefore, the DNA analysis would be admissible at trial.

The case proceeded to trial on January 14, 2013, and resulted in Phillips’ conviction. On March 22, 2013, the trial court sentenced Phillips to two consecutive terms of life imprisonment without the possibility of parole. This appeal followed. DISCUSSION I. Compliance with the DNA Admissibility Statute Maryland’s DNA Admissibility Statute provides: (a) (1) Definitions. — In this section the following words have the meanings indicated.

(2) “Deoxyribonucleic acid (DNA)” means the molecules in all cellular forms that contain genetic information in a chemical structure of each individual. (3) “DNA profile” means an analysis of genetic loci that have been validated according to standards established by: (i) The Technical Working Group on DNA Analysis Methods (TWGDAM); or (ii) The DNA Advisory Board of the Federal Bureau of Investigation. (b) In general. — A statement from the testing laboratory setting forth that the analysis of genetic loci has been validated by standards established by TWGDAM or the ⁷ DNA Advisory Board is sufficient to admit a DNA profile under this section. (c) Purposes. — In any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person, if the party seeking to introduce the evidence of a DNA profile: (1) Notifies in writing the other party or parties by mail at least 45 days before any criminal proceeding; and (2) Provides, if applicable and requested in writing, the other party or parties at least 30 days before any criminal proceeding with: (i) First generation film copy or suitable reproductions of autoradiographs, dot blots, slot blots, silver stained gels, test strips, control strips, and any other results generated in the course of the analysis; (ii) Copies of laboratory notes generated in connection with the analysis, including chain of custody documents, sizing and hybridization information, statistical calculations, and worksheets; (iii) Laboratory protocols and procedures utilized in the analysis; (iv) The identification of each genetic locus analyzed; and (v) A statement setting forth the genotype data and the profile frequencies for the databases utilized.

(d) Prerequisites. — If a party is unable to provide the information required under subsection (c) of this section at least 30 days prior to the criminal proceedings, the court may grant a continuance to permit such timely disclosures. (e) Discovery. — Except as to the issue of admissibility under this section, subsection (c) of this section does not preclude discovery under the Maryland Rules relating to discovery, upon a showing of scientific relevance to a material issue regarding the DNA profile. ⁸ CJP § 10-915. The import of the statute is clear: so long as the sponsoring party complies with the notice provisions of subsection (c), a DNA profile will be automatically admissible to prove or disprove identity if it is accompanied by a statement from the testing laboratory that it was “validated by standards established by TWGDAM or the DNA Advisory Board.” CJP § 10—915(b). In Phillips’ case, however, the DNA profile was accompanied by a certification stating, “[t]he DNA profiles reported below were determined by procedures which have been validated according to the Federal Bureau of Investigation’s Quality Assurance Standards.” Thus, the threshold question is whether compliance with the FBI’s Quality Assurance Standards is sufficient for automatic admissibility or whether we must insist on compliance with standards issued by TWGDAM or the DNA Advisory Board.

If compliance with the FBI Quality Assurance Standards is sufficient, then the steering wheel DNA sample is automatically admissible because the Prince George’s County DNA laboratory complied with those standards. If, on the other hand, the DNA analysis needed a statement that it complied with standards from either TWGDAM or the DNA Advisory Board (which it did not have), then the steering wheel sample is not automatically admissible. If not automatically admissible for this reason, the DNA analysis must satisfy the Frye-Reed standard of general acceptance in the scientific community before it may be admitted. The issue is made more complicated because neither TWGDAM nor the DNA Advisory Board remain in existence.

SWGDAM, About Us, http://perma.cc/VHA5-5FXX. Accordingly, compliance is impossible today. 1. The Problem of Obsolete Statutes Statutes, from time to time, become obsolete. Statutes can become legally obsolete when they are completely superseded by a subsequent legislative enactment (but, for whatever reason, not deleted) or are declared unconstitutional by the United States Supreme Court or by the appellate courts of this State.

Thus, for example, adoption of Article 46 of the ⁹ Maryland Declaration of Rights (Maryland’s Equal Rights Amendment) rendered the “necessities statute,” (then Md. Code. Ann. Art. 45, § 21), whereby a husband was legally responsible for his wife’s expenses, legally obsolete. Condore v. Prince George’s County, 289 Md. 516, 530 , 425 A.2d 1011 (1981). There are many other examples.

The code revision process is the principal but not the only means for removing legally obsolete provisions from the Maryland Code. 5 Statutes may also become factually obsolete. Conditions change. Laws drafted for the horse and buggy don’t make sense for automobiles; some current automobile laws may not make sense for driverless cars. Unfortunately, unlike code revision, there is no regularized mechanism for eliminating factually obsolete statutes.

While a legislature may delete a factually obsolete statute when it is noticed, combing the Code for factually obsolete statutes is generally not a high legislative priority. Judge Guido Calabresi and others have referred to this concept as legislative inertia — the recognition that it is easier to leave obsolete statutes than it is to remove or revise them. Guido Calabresi, A Common Law for the Age of Statutes 2 (1982) [hereinafter Calabresi]; Archibald Cox, Book Review, A Common Law for the Age of Statutes; by Guido Calabresi 70 Cal. L.Rev. 1463, 1464 (1982) (“the obsolete law ¹⁰ remains ... because of inertia”).

The result is that many factually obsolete statutes remain on the books. 6 Courts have generally taken three different approaches when dealing with factually obsolete statutes: (1) enforce the statute “as is”; (2) invent a new interpretation, unimagined by the legislative drafters, that saves the statute from obsolescence; or (3) declare the obsolete statute unconstitutional. Calabresi at 6. As Judge Calabresi puts it: Faced with [the problem of an obsolete statute], it is little wonder that the least willful judges have responded to their task with open aversion, but have enforced time-worn interpretations of even more time-worn laws. Other judges have acted far more aggressively and used the Constitution or far-fetched interpretations to make obsolete laws functional.

Id. All of these approaches are unsatisfactory. Applying a factually obsolete statute “as is” can result in serious injustice. See, e.g., id. at 6 n. 26 (citing Behrns v. Burke, 89 S.D. 96 , 229 N.W.2d 86 (1975) (stating that a statute was “unreasonable ...

In fact, unreasonable may be too kind an expression,” yet upholding the statute)). Inventing a far-fetched interpretation to save an obsolete statute makes the court appear willful and undermines its important role in conscientious and careful modes of ordinary statutory interpretation. See id. at ch. IV (discussing the problems that arise from judges using “stretched” interpretations of obsolete statutes). Perhaps worst of all is the choice to declare an obsolete statute unconstitutional. “Calabresi ... cites scores of cases in which the courts have declared obsolete statutes unconstitutional when such a conclusion could not be justified by any cogent constitutional analysis....” Richard Neely, Obsolete Statutes, Structural Due Process, and the Power of Courts to Demand a Second Legislative Look, 131 U. Pa.

L.Rev. 271, 277 (1982) [hereinafter Neely] (“The problem has traditionally been that ¹¹ due process and equal protection are the only constitutional theories available to unimaginative courts.”). Stretching constitutional doctrines to judicially revise or eliminate obsolete statutes weakens the doctrines: New things will destroy judicial review, and weaken those rights we want to have protected by the Constitution, more effectively than its use to overcome legislative inertia in areas involving bad law, perhaps, but no real constitutional issue. Even correct results in cases of this sort, where the Constitution is used to invalidate a law that was only held in place by inertia and was inconsistent with other prevailing legal principles, will tend to spawn highly vulnerable constitutional doctrines and hence may weaken the “core” rights that need to be protected by our constitutions. Calabresi at 11-12.

Of course, a judicial determination that a particular statute is obsolete exacerbates the problem of legislative inertia by foreclosing the possibility of a legislative revision: Once the courts have modified or invalidated a statute on constitutional grounds, they have done much more than act in an area of legislative inertia. If the courts’ aim is only to update in an area of inertia and if they are wrong in their judgment that a statute which does not fit the legal fabric no longer has majoritarian support, their use of constitutional adjudication makes legislative correction of their mistake impossible. The consequence of a wrong guess is not merely legislative revision, as in common law adjudication; a wrong guess will entail either a constitutional amendment or the dominance of judge-made law. Id. at 11. 7 Cognizant of the challenges presented by obsolete statutes, and mindful of the pitfalls of the three approaches courts have ¹² taken, it is our view that the best way to proceed with an obsolete statute is not to take any of the three, but to rely on the traditional tools of statutory interpretation to effectuate the legislature’s intent, as we have previously done when dealing with outdated statutes.

See, e.g., Sieglein v. Schmidt, 224 Md.App. 222, 242 , 120 A.3d 790 (2015) (interpreting “artificial insemination” in parentage statute to encompass in vitro fertilization — a newer reproductive technology that didn’t exist at the time of the statute’s enactment — because the legislature intended to “acknowledge the role of medically assisted, nontraditional conception of a child in establishing a parent’s rights and obligations”). Therefore, we will attempt to discern the legislature’s intent in passing the DNA Admissibility Statute. Our principal aim in this undertaking is to determine if and how the legislature would have intended for us to enforce this now-obsolete statute. Thus, we hold that the proper way to deal with a statute that is obsolete on its face is to look to the legislature’s intent and work to effectuate that intent in the present legal and factual landscape.

We note that it will not always be the case that the legislature will tell us what to do if a statute becomes obsolete. In this instance, however, we conclude that it did. 2. Discerning Legislative Intent The DNA Admissibility Statute’s legislative history is instructive. Our review strongly suggests that the 1997 statute was enacted to address a perceived drafting flaw in a previous version.

The 1991 version of the DNA Admissibility Statute ¹³ allowed automatic admissibility of DNA that was analyzed with the restriction fragment length polymorphism method (“RFLP”), which it specified by name. CJP § 10-915 (1991) (amended 1997). By 1997, however, the RFLP method for DNA analysis had been superseded by a new technique, the polymerase chain reaction method (“PCR”). Jud.

Proc. Comm., Bill Analysis: H.B. 414 (1997). Laboratories were using PCR but, because the 1991 DNA Admissibility Statute specified only RFLP by name, PCR was not automatically admissible. Id.

In effect, the 1991 statute had become obsolete. As a result, state’s attorneys throughout Maryland were forced to justify their use of PCR in every case at expensive Frye-Reed hearings. State of Maryland Department of State Police, Position on Proposed Legislation HB 414 (Feb. 11, 1997) (“An enormous amount of time and money has been spent defending PCR methods at [Frye-Reed] Hearings in various Circuit Court[s] in the State.”). In drafting the 1997 DNA Admissibility Statute, the General Assembly wanted to eliminate the need for Frye-Reed hearings for PCR analysis.

See Jud. Proc. Comm., Bill Analysis: H.B. 414 (1997). (“This statute obviates the need for a Frye-Reed hearing on the admissibility of [PCR] evidence.

This will save the State and the counties money and will keep law enforcement personnel out of court.”) Furthermore, we gather that the legislature did not want to repeat the drafting weakness of the 1991 statute and identify the PCR method by name — such that when scientific advances inevitably replace PCR, the 1997 statute would become obsolete too. Rather, the legislature cleverly delegated the power to approve new DNA analysis techniques to two national standards-setting entities on the cutting edge of DNA science, TWGDAM and the DNA Advisory Board. Id. (“This bill expands the definition of “DNA profile” to include an analysis of genetic loci that has been validated according to standards established by either the Technical Working Group on DNA Analysis Methods (TWGDAM) or the FBI DNA Advisory Board.”) In that way, we see that the 1997 DNA Admissibility Statute was designed to be obsolescence-proof.

If a new ¹⁴ technique was good enough for TWGDAM and the DNA Advisory Board, it would be good enough for automatic admissibility in Maryland courts. Id. Those standards-setting entities soon became defunct, however, in effect, rendering the obsolescence-proof statute, ironically, obsolete. SWGDAM, About Us, http://perma.cc/VHA5-5FXX.

Nevertheless, we discern that the legislature intended to create a statute that would track cutting-edge DNA science and ensure automatic admissibility only if the DNA techniques complied with the standards promulgated by the most rigorous standards-setting body available. 3. Effectuating Legislative Intent Having determined that the legislative intent in adopting the DNA Admissibility Statute was to permit automatic admissibility for cutting-edge DNA analysis if that analysis complied with the standards promulgated by the most rigorous standards-setting body, we must now determine if the Prince George’s County DNA laboratory’s DNA analysis— performed in compliance with the FBI’s Quality Assurance Standards — satisfies that test. We find it useful, as the trial court did, to contrast the FBI’s Quality Assurance Standards to those set by the Scientific Working Group on DNA Analysis Methods (“SWGDAM”). First, we recognize that SWGDAM is both the successor entity and the successor “in spirit” to both TWGDAM and the DNA Advisory Board.

SWGDAM succeeded both of those organizations as the entity responsible for developing rigorous DNA analysis standards and recommending revisions to the FBI Quality Assurance Standards. SWGDAM, About Us, supra. TWGDAM developed the original guidelines for DNA analysis, beginning in 1989. Id.

The forensic DNA community followed TWGDAM’s guidelines when implementing their programs, making the guidelines the de facto standards, “recognized by courts as minimum requirements for a quality DNA forensic analysis program.” Id. Like TWGDAM, the DNA Advisory Board, established by the DNA Identification Act of 1994, produced comprehensive standards for the forensic DNA ¹⁵ community. John M. Butler, Forensic DNA Typing 593 (2d ed. 2005) [hereinafter Butler]. The DNA Advisory Board was responsible for recommending standards and revisions to the FBI for inclusion in the FBI Quality Assurance Standards.

SWGDAM, About Us, supra. TWGDAM and the DNA Advisory Board no longer exist, and their responsibility for recommending rigorous standards for cutting-edge DNA technology has been transferred to SWGDAM. Id. In 1998, TWGDAM was renamed the “Scientific Working Group on DNA Analysis Methods” or SWGDAM.

Butler at 394. In 2000, the DNA Advisory Board expired at the end of its statutory term and “transferred responsibility for recommending revisions of [the FBI] Quality Assurance Standards to the Scientific Working Group on DNA Analysis Methods (SWGDAM).” FBI, CODIS — Quality Assurance, http://perma.cc/7HHX-2X7E. SWGDAM succeeded TWGDAM and the DNA Advisory Board as the entity charged with recommending revisions for DNA analysis standards to the FBI. SWGDAM, About Us, supra.

We have no doubt, as the trial court concluded, that a DNA analysis would be automatically admissible, pursuant to the DNA Admissibility Statute, if it bore a statement that it had been conducted pursuant to standards promulgated by SWGDAM. By contrast, the FBI Quality Assurance Standards fulfill a different purpose. Unlike SWGDAM’s recommendations, which are based on cutting-edge DNA science, the FBI Quality Assurance Standards are the minimum requirements that must be followed by forensic DNA laboratories. FBI, CODIS — Quality Assurance, supra; SWGDAM, Frequently Asked Questions, http://perma.cc/H8LL-Q7EK (“[SWGDAM guidelines] are intended to provide additional guidance to the DNA community ... and should not be treated as requirements or minimum standards for forensic DNA laboratories”) As such, SWGDAM’s recommendations are forwarded to the FBI for consideration, but the FBI is not required to incorporate every revision that SWGDAM recommends for the FBI Quality Assurance Standards.

SWGDAM, About Us, supra. ¹⁶ Furthermore, when the FBI does adopt a SWGDAM recommendation, the revised standard often does not apply retroactively. SWGDAM, Frequently Asked Questions, supra; see FBI, SWGDAM Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories, available at http://perma.cc/7D4J-D8J3 (“The revised guidelines are not intended to be applied retroactively.”). Accordingly, although SWGDAM provides recommendations based on cutting-edge DNA techniques and research, older protocols that are “good enough” remain in force because either the FBI chooses not to follow