(concurring in part; dissenting in part).
My vote is to likewise reverse this conviction.
Concerning the DNA issue, I would reverse and remand thereby requiring the trial court to hold an expanded pre-trial hearing on the admissibility of the DNA evidence. Under Two Bulls, cited in footnote 6 of the majority opinion, five criteria must be met, or should be met, before the trial judge decides to permit the DNA evidence to go before the jury.* In my opinion, these criteria were absolutely not met in this case. Furthermore, it is not a burden of proof to be placed upon the defendant/appellant to offer evidence to invalidate the DNA test result. Rather, it is the State which bears the burden of proof. Therefore, I take legal exception to the language in the concluding paragraph of the majority opinion. I am not, per se, expressing that the scientific technique called DNA is no good and unreliable; I am expressing that it is a highly prejudicial piece of evidence and that, if it is going to be admitted, it must have a good, solid, sufficient foundational basis to establish its overall admissibility into evidence. Two Bulls, at 58. Admission of DNA tests has a powerful impact on a jury. DNA profiling has been the subject of great controversy in the legal and scientific fields. The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets The Criminal Defendant, 42 Stan.L.Rev. 465, 479 (1990). Indeed, there is a dark side to DNA profiling, and that is why I would insist that this trial judge follow the five criteria set forth in Eighth Circuit Court of Appeals’ Chief Judge Lay’s writing in Two Bulls. There are several cases expressing that DNA evidence is subject to attack due to resulting prejudice, relevancy and laboratory procedures. See, State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990).
“Women did not like Wimberly” should be inadmissible. Such a statement violates SDCL 19-15-1 because it is an opinion which unfairly casts a perception, in the minds of the jurors, which engulfs a true finding of fact.
I agree with majority opinion’s treatment of the “good cause” delay under SDCL 23A-44-5.1. I concur that there was no break in the chain of custody on the blood sample, namely issue 2.
The trial court is to decide (1) whether DNA evidence is generally accepted by the scientific community, (2) whether the testing procedures used in this case are generally accepted as reliable if performed properly, (3) whether the test was performed properly in this case, (4) whether the evidence is more prejudicial than probative in this case, and (5) whether the statistics used to determine the probability of someone else having the same genetic characteristics is more probative than prejudicial under Rule 403.