ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Jeffrey A. Modisett
Vonderheide & Knecht Attorney General of Indiana
22 N. 2nd St.
Post Office Box 158 Randi F. Elfenbaum
Lafayette, Indiana 47902 Deputy Attorney General
Bruce W. Graham Office of the Attorney General
Trueblood & Graham Indiana Government Center South
424 Columbia St. 402 W. Washington Street, Fifth Floor
Lafayette, Indiana 47902 Indianapolis, Indiana 46204
INDIANA SUPREME COURT
ERNEST T. SMITH, ) ) Indiana Supreme Court Appellant (Defendant Below ), ) Cause No. 79S00-9609-CR-583 ) v. ) ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
__________________________________________________________ APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable George J. Heid, Judge Cause No. 79D02-9509-CF-89
robbery while armed with a deadly weapon, a class B felony. In this appeal, defendant raises five
issues: 1) whether the trial court erred in admitting DNA evidence; 2) whether the trial court
erred in admitting evidence obtained in violation of a court order; 3) whether the trial court erred
in admitting into evidence a deposition from an unavailable witness; 4) whether the State's
comments during closing argument warrant a reversal; and 5) whether the State presented
insufficient evidence to convict defendant of murder and robbery while armed with a deadly
weapon. We answer each issue in the negative and affirm the trial court.
evidence in this case. At trial, defendant filed a motion to suppress the DNA evidence. The court
held a lengthy and thorough suppression hearing. The motion was denied. This was reversible
error, defendant argues, because several of the DNA tests conducted were scientifically unreliable,
and thus inadmissible under Indiana Evidence Rule 702. The defendant also contends that the
DNA evidence was unfairly prejudicial, and thus inadmissible under Indiana Evidence Rule 403.
Before advancing to the specifics of defendant's argument, we find it necessary to provide some background information. DNA, an acronym for deoxyribonucleic acid, is the genetic material found in the nucleus of our cells; it provides the master plan for the cells of our body. Ninety-nine percent of everyone's DNA is exactly the same. The remaining small percentage is unique to each individual but identical twins.
DNA is structured in a double helix which, if straightened out, resembles a ladder. Each rung of the ladder is made of a pair of bases, of which there are four possibilities: adenine (A), guanine (G), cytosine (C), and thymine (T). To form the rungs, A always pairs with T and G always pairs with C. Thus, if the sequence on one side of a DNA strand is known, then the other side can be determined.
A gene is a segment of DNA and can comprise varying numbers of base pairs. Some genes are located on regions of the DNA which are called polymorphic sites; these sites contain the variability which make each of us unique. Each of the individual possibilities at a polymorphic site is called an allele. We receive one allele from each parent. If we receive the same allele from each parent, then we are homozygous at that site. If we receive a different allele from each parent, then we are heterozygous at that site. The combination of alleles for a gene is commonly
referred to as its genotype.See footnote
Based upon the foregoing knowledge, scientists are able to analyze a DNA sample. One method, the one used in this case, is the Polymerase Chain Reaction (PCR). PCR is a method by which chosen short polymorphic segments of a DNA strand can be amplified (or copied) millions of times. This amplification is done in steps. Essentially what happens is that a double strand of DNA is separated by heat into its single strands. Then, specified areas of each DNA strand are marked and replicas are made so that there are now two identical double strands of that area. This process is repeated 20-35 times, thus producing an enormous number of copies of the original marked strand. The PCR process makes it possible to analyze what was originally a very small quantity of DNA.
Once a large enough sample of DNA exists, tests can be done on the sample to determine what alleles are present at the specified areas. The tests that were used in this case are the DQ Alpha (DQA), Polymarker (PM), and D1S80. In total, these tests determine what alleles are present at seven different polymorphic sites. Based on the genotypes of these seven sites, the scientist can determine the DNA's profile. Once the profile is determined, it can be compared to anyone's profile. For example, in this case, the profiles of the blood from the towel and the shoe were compared to defendant's and Nobile's profiles.
If the profiles of the sample and an individual are different, then the individual can be excluded as a contributor of the DNA sample. If, however, the profiles match, then the individual
cannot be ruled out as a contributor. Instead, the scientist must next determine how common it is
to have that profile. This determination is made by comparing the genotypes from the sample to
the genotypes of a database. The database is garnered from a larger population, separated into
racial and/or ethnic groups, and shows, by percentage, how common each different genotype
possibility is amongst each population. Once the comparison determines the percentage of the
population that has each of the different genotypes, all of the percentages can be multiplied
together (the Product Rule) to determine what percentage of the population has all seven of the
genotypes and, thus, fits the DNA's profile.See footnote
On appeal, defendant argues that the Polymerase Chain Reaction methodology or PCR process, and more specifically, the PM and D1S80 tests are scientifically unreliable, that the frequency calculations are unreliable, and that flaws in the handling of evidence and conducting the tests make the results unreliable.See footnote 3 Defendant also argues that the evidence presents a danger
of unfair prejudice. As we have noted previously, the words 'DNA test results' are not magic
words which, once uttered, cause the doors of admissibility to open. Harrison v. State, 644
N.E.2d 1243, 1251 (Ind. 1995), cert. denied, 117 S. Ct. 307 (1997). Like any other evidence,
and notwithstanding Indiana Code section 35-37-4-13(b), DNA evidence presented by expert
testimony must satisfy the requirements of the Indiana Rules of Evidence. See Jervis v. State, 679
N.E.2d 875, 881 (Ind. 1997). In this case, the relevant rules require that the expert be qualified to
testify, the trial court be satisfied that the scientific principles upon which the expert testimony
rests are reliable, and the testimony's probative value is not substantially outweighed by the
dangers of unfair prejudice. Ind. Evidence Rules 403, 702; see Harrison, 644 N.E.2d at 1252.
We review the trial court's evidentiary decisions for an abuse of discretion. Jervis, 679 N.E.2d at
881; McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997). Defendant's arguments concern only
the reliability of the scientific principles and the potential prejudice. We will address each
argument in turn.
Washington Departments of Urology and Pathobiology, testified as to the unreliability of the PM
and D1S80 tests. Sandy L. Zabell, a professor of mathematics and statistics at Northwestern
University, also testified for the defense as to possible statistical errors in the test results
In addition to expert testimony, the State submitted the National Research Council's 1996 Evaluation of Forensic DNA Evidence (NRC), which states that the PM and D1S80 tests have been validated and that the state of the profiling technology and the methods for estimating frequencies and related statistics have progressed to the point where the admissibility of properly collected and analyzed DNA data should not be in doubt. (R. at 2955-56.) Finally, other courts accept the reliability of the PM and D1S80 tests. See Beasley, 102 F.3d at 1446-48; Gaines, 979 F.Supp. at 1435-41; Sok, 683 N.E.2d at 680-81. The trial court properly found that the PM and D1S80 tests are scientifically reliable.
Beasley, 102 F.3d at 1448; Begley, 956 S.W.2d at 478; Sok, 683 N.E.2d at 682-83. As we will
discuss in the following paragraphs, the trial court did not commit an abuse of discretion by
admitting the evidence and letting the jury determine the weight of the evidence.
First, defendant argues that the likelihood of contamination due to improper collection and handling makes the evidence inadmissible. As defendant rightly notes, the PCR method amplifies whatever DNA exists in the sample. Defendant's concern is that, due to improper handling of the evidence (for example people touching the towel and shoe without gloves), there is a chance that the handlers may have transferred some of their own DNA to the evidence and, thus, contaminated the evidence. Two of the State's experts agreed that contamination can be a problem in some situations, for example if someone sneezed onto the sample. However, they also testified that simply breathing on or touching the sample is unlikely to have much of an impact because the DNA present in the sample will overpower the small amount of contamination. Furthermore, the experts testified that the test results showed no evidence of any contamination. Any concerns that exist in this respect go to the weight of the evidence, not its admissibility.
Second, defendant argues that the test on the shoe cannot be valid. Specifically, defendant contends that the test was done on a leather portion of the shoe, and leather acts as an inhibiter which prohibits obtaining interpretable results. However, the record shows that the results in question were obtained from a piece of thread, not from any leather portion of the shoe. Thus, this argument is without merit.
Third, defendant argues that the police lab failed to conduct control tests on the samples. Specifically, defendant contends that the lab failed to do a test on the background material in
order to determine its DNA and that the lab failed to do two gel control tests.See footnote
record shows that these tests are not absolutely necessary unless the original tests show mixed or
incomplete results. Any concerns in this respect go to the weight of the evidence, not its
Fourth, defendant argues that the Indiana State Police laboratory lacks accreditation, and that this affects the reliability and admissibility of the evidence. However, the lab was accredited by the American Society of Crime Lab Directors in 1990. Furthermore, the lab runs its tests under controlled conditions, follows specific protocols, and conducts quality testing on the kits and the analysts. Any concerns in this respect go to the weight of the evidence, not its admissibility.
Second, the State presented sufficient evidence to establish that the results were not skewed by
linkage disequilibrium. Linkage disequilibrium and the unreliable frequency calculations that flow
therefrom occur when dependent frequency markers are multiplied together.See footnote
In this case, no
linkage disequilibrium can be found. The State's expert properly applied the Product Rule by
multiplying two independent frequency markers to obtain the frequency calculations.See footnote
defendant's attacks go to the weight of the evidence, not its admissibility. See Jenkins v. State,
627 N.E.2d 789, 794 (Ind. 1993). The trial court did not abuse its discretion by admitting the
control mechanisms. Finally, the tests showed no evidence of contamination.
we will reverse only for an abuse of discretion. Id. The exclusion of evidence as a discovery
abuse sanction is proper only where there is a showing that the State engaged in deliberate or
other reprehensible conduct that prevents the defendant from receiving a fair trial. Id.
The trial court did not abuse its discretion by denying defendant's motion to exclude the evidence. Though Epperson apparently violated the discovery order, her doing so in no way prevented defendant from receiving a fair trial. Epperson tested only a small portion of the towel, and the rest of the towel, including portions with the blood stain, was resealed, retained, and remained available for testing.
Defendant's second argument rests on the premise that the evidence should be excluded because there is a possibility that Epperson contaminated the entire sample while defendant's expert was not watching. Defendant asserts that this would be the equivalent of destroying the evidence and that, therefore, the evidence should be excluded. Assuming without deciding that this issue was raised at trial, we nonetheless hold that it is without merit. While it is true that the failure to preserve potentially useful evidence may constitute a denial of due process if the defendant can show bad faith on the part of police, Bivins v. State, 642 N.E.2d 928, 943 (Ind. 1994) (citing Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)), defendant can point to nothing but idle speculation as evidence that Epperson contaminated the towel. Instead, the evidence shows that the towel was available, in the same condition, for testing after Epperson conducted her original tests.
Police, conducted DNA tests on the evidence in this case. On November 1, 1995, defendant
deposed Epperson. On November 29, 1995, Epperson died in a car crash. On February 15,
1996, defendant filed a motion to suppress the deposition. After a hearing, the trial court denied
the motion. Defendant renewed the motion at trial, and it was again denied. The State read
Epperson's deposition into evidence. Defendant argues that the trial court erred because
defendant did not have the opportunity to fully cross-examine Epperson.
The admission of depositions into evidence is within the discretion of the trial court, and we will reverse the trial court's decision only for an abuse of that discretion. Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995). When a witness is unavailable to testify at trial because of death, a prior deposition may be admissible as evidence if the party opposing the deposition had a full and fair opportunity to cross-examine the witness during the deposition and had the same or similar motives in questioning. See State v. Owings, 622 N.E.2d 948, 950-52 (Ind. 1993); see also Ind. Evidence Rule 804; Ind. Trial Rule 32(A)(3)(a).
In the present case, defendant was fully able to and did cross-examine Epperson during the deposition, and he had the same motives then as he would have had at trial. He asked Epperson about her background and training, about the accreditation of the lab, about the protocol for testing at the lab, about the quality control at the lab, about her involvement with this case, about her interaction with the evidence in this case, about her testing and results in this case, and many other questions. Defendant's main concern on appeal seems to be that he was unable to attack Epperson's credibility. However, at trial, defendant was fully able to explore Epperson's qualifications and proficiency via her lab supervisor and prior proficiency tests. Defendant was also able to cross-examine Todd Bille, another analyst in the police lab, who reviewed Epperson's
findings and did his own tests and calculations. The trial court did not abuse its discretion by
admitting the deposition.
comments simply presented evidence from trial - that the defendant's expert did not run any DNA
tests on the evidence. See Cox, 696 N.E.2d at 860. Assuming, however, that the comments were
improper, we do not believe that they had any probable persuasive effect on the jury's verdict. In
its preliminary and final instructions, the trial court informed the jury that a person charged with a
crime is presumed innocent unless the State proves defendant guilty beyond a reasonable doubt of
each element of the crime charged and that the defendant is not required to present any evidence
to prove his innocence or to prove or explain anything. (R. at 470, 521.) Given these
instructions, the weight of the evidence, and the de minimis nature, if any, of the impropriety, no
reversible error exists. See Wright, 690 N.E.2d at 1112.
he knew about Nobile and her bar habits, that he was seen with blood on his pants the afternoon
of the murder, that he was spending large amounts of cash right after the murder and robbery, that
he admitted his involvement in the crime to a cell-mate, that his DNA matched DNA in blood
found at the scene of the murder, and that DNA found in blood on his shoe matched Nobile's
DNA. Also, witnesses' testimony is supported by the physical evidence presented at trial. The
State established sufficient evidence to support the defendant's murder conviction.
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