State v. Roman Nose

GILBERT, Justice

(dissenting).

The majority holds that the district court improperly denied appellant his right to a pretrial Frye-Mack hearing on the general acceptance within the relevant scientific community of the PCR-STR method of testing DNA. Based on this holding, the majority stays appellant’s appeal and remands for a Frye-Mack hearing. I respectfully dissent.

The district court did not , err when it admitted the DNA evidence derived from the PCR-STR test because the state established sufficient foundation that the PCR-STR test was not new, novel, or emerging within the relevant scientific community and appellant offered no proof that the test was new, novel, or emerging. Furthermore, even if a Frye-Mack hearing should have been held prior to admitting the DNA evidence, it is not necessary to remand for such a hearing under the facts of this case because any error in the *824admission of the DNA evidence is harmless beyond a reasonable doubt.

The issue before us is whether the district court erred when it denied appellant’s request for a pretrial F'ty e-Mack hearing to determine whether the PCR-STR method of DNA testing is generally accepted within the relevant scientific community. To address this question, it is necessary to detail the arguments and evidence presented to the district court by the state and appellant.

In its memorandum to the district court opposing a Frye-Mack hearing, the state contended that a Frye-Mack hearing covering general acceptance in the scientific community was unnecessary because the PCR-STR test is only a new laboratory technique rather than new, novel, or emerging scientific evidence. More specifically, the state contended that there is no requirement that such a hearing be conducted “whenever a technological advancement paves the way for an improved DNA testing method.” In support of its argument, the state provided the decisions and findings of three Minnesota district courts in which those courts found that the PCR-STR test was generally accepted in the scientific community. See State v. Licari, No. K9-99-490 (Isanti County Dist. Ct. Sept. 20, 2000); State v. Contreras, No. K1-99-3420 (Ramsey County Dist. Ct. Apr. 24, 2000); State v. Dishmon, No. 99047345 (Hennepin County Dist. Ct. Mar. 3, 2000). In Dishmon, the court made detailed written findings regarding the general acceptability in the scientific community of the PCR-STR test. The court based its findings on the testimony of several expert witnesses1 and the “huge body of scientific literature pertaining to STRs.”

In his memorandum in support of his motion for a Frye-Mack hearing, appellant argued that such a hearing was necessary because the PCR-STR method was new and/or novel. Appellant contended that “[o]ther courts around the country, applying state versions of the Frye or Daubert analysis have found STR testing of the type used in this case is not generally accepted in the scientific community.” Citing Goeb, appellant asserted that the state is required to conduct a hearing whenever a technological advancement paves the way for an improved DNA testing method. Appellant further contended that the PCR-STR test is new to the Minnesota courts and that the state, as the proponent of the evidence, has the burden to establish the proper foundation for the admissibility of the test by showing that it is reliable.

As evidence that the PCR-STR method was not generally accepted in the scientific community, appellant provided the decisions of four courts. According to appellant, the court in Colorado v. Shreck, No. 98CR2475, Div. 4 (Colo Dist. Ct.2000), found that the state “ ‘failed to prove by a preponderance of the evidence that STR multiplex techniques used in this case are generally accepted and the results reliable.’ ” However, the court in Shreck found that “PCR amplification, PCR-STR monoplex and triplex testing, and the relevant statistical analysis used in this case * * * are reliable and generally accepted in the scientific communities.” According to appellant, the court in State v. Pfenning, No. 57-4-96 (Vt.Dist.Ct. Apr. 6, *8252000), found that “ ‘the Court cannot establish whether Profiler Plus is a rehable system or one which is prone to error.’ ” However, the defendant in Pfenning did not challenge whether PCR-STR was generally accepted in the scientific community. Rather, the defendant claimed that the specific tests used in connection with his case were not rehable and that the laboratories did not follow established protocols.

Appellant also cited State v. Bokin, No. 168461 (Cal.Super.Ct. May 6, 1999), in' support of his argument that the PCR-STR test was not generally accepted within the relevant scientific community. According to appellant, the Bokin court found that the STR test at issue “had not been scientifically validated and suppressed the results.” Appellant also cited to People v. Hunt, et. al., No. SA034500 (Cal.Sup.Ct. Oct. 24, 2000), for the proposition that a Frye hearing was necessary in an STR case. However, the Bokin court found that the prosecution had not established that the STRs as identified with a particular kit are admissible. Moreover, several California appellate courts have held that the PCR-STR is generally acceptable in the scientific community. See, e.g., People v. Hill, 89 Cal.App.4th 48, 107 Cal.Rptr.2d 110, 118-19 (2001); People v. Allen, 72 Cal.App.4th 1093, 85 Cal.Rptr.2d 655, 659 (1999).

The district court denied appellant’s motion for a Frye-Mack hearing on the general acceptance of the PCR-STR test. In doing so, it explained that four separate Minnesota district courts had addressed the general acceptance of the PCR-STR test and had found that this method of testing is generally accepted in the relevant scientific community. In addition to the cases cited by the state, the court cited State v. Payne, Washington County District Court File No. K7-01-37.

Based on the evidence presented to the court, I would hold that the district court did not abuse its discretion in denying appellant’s request for a Frye-Mack hearing on the general acceptance of the PCR-STR test. The state met its burden of demonstrating that the test is generally accepted within the relevant scientific community. Appellant offered no evidence calling into question the general acceptance of the PCR-STR test. In fact, the decisions cited by appellant either strongly supported the state’s position that the PCR-STR test is generally accepted in the scientific community or were irrelevant. The district court, in making its finding, cited to four Minnesota district court decisions that had found that the PCR-STR test is generally accepted in the scientific community. The majority acknowledges that a court may take notice of decisions from other district courts within Minnesota and decisions from other jurisdictions regarding the general acceptability of certain scientific technologies. Under these facts, the district court did not abuse its discretion in denying a Frye-Mack hearing on the general acceptance of the PCR-STR test. The rule established by the majority automatically compels a Frye-Mack hearing on the basis of mere allegations and pure speculation that such a hearing is warranted.

Despite the absence of any evidence before the district court that the PCR-STR test was new, novel, or emerging, the majority insists that a Frye-Mack hearing is necessary because the PCR-STR test is a new method of testing DNA. In a footnote, the majority explains the difference between the RFLP testing procedures and the testing procedures of the PCR-STR test. According to the majority, the main difference between the two tests is that the RFLP test requires relatively large samples of DNA while the PCR-STR test can be done using a smaller *826quantity of DNA that is amplified many times over to increase the size of the sample that is subjected to analysis. However, there is nothing in the record indicating the qualitative difference between a small amount and amplifying or copying a DNA sample. The majority simply asserts that the PCR-STR method of testing DNA is “sufficiently different” from the RFLP method. The majority concludes that “[bjecause the PCR-STR method is a new scientific technique that this court has never before considered, and because it is sufficiently different from the RFLP method, the evidence obtained from the technique is novel scientific evidence” that requires a Frye-Mack hearing to determine its general acceptance within the relevant scientific community.

The problem with the majority’s approach is that there is no explanation of what triggers a Frye-Mack hearing. Although the majority seems to believe that such a hearing is triggered when there is an allegation that a scientific technology is new or novel, the majority does not explain how much deviation from existing methods or practices must be present for a scientific technology to be considered new or novel. The majority defends its analysis by insisting that “the issue of whether a technique is generally accepted within the relevant scientific community is best determined by evidentiary hearing.” This begs the question. The majority’s lack of clarity regarding when and under what conditions a Frye-Mack hearing is appropriate creates the risk that our courts would have to put their imprimatur on every scientific technology based on an objection from a party without any offer of proof that a technology is new or novel. It also creates the risk that our courts must conduct time-consuming and costly hearings to establish the general acceptability of technologies whose general acceptability has been well documented by the appropriate scientific literature and judicial decisions from other jurisdictions.

There are two ways we can avert these problems. First, the majority should explain when and under what conditions a Frye-Mack hearing on the issue of general acceptance is required and should require more than pure speculation that a scientific technology is different from preexisting technologies before conducting such a hearing. Second, as the majority acknowledges, our courts can take notice of decisions from other jurisdictions regarding the general acceptability of .certain scientific technologies to establish the general acceptability of the technology in this jurisdiction. See State v. Butterfield, 27 P.3d 1133, 1141 (Utah 2001); Allen, 85 Cal.Rptr.2d at 659; Lemour v. State, 802 So.2d 402, 404 (Fla.Dist.Ct.App.2001); United States v. Trala, 162 F.Supp.2d 336, 346 (D.Del.2001).

Here, although appellant has offered no evidence that the PCR-STR method is new or novel to require a Frye-Mack hearing, the majority permits a Frye-Mack hearing based on appellant’s mere allegation that any change in technique for DNA testing requires such a hearing. It is not surprising that appellant could not provide any evidence that the PCR-STR test is new, novel, or emerging because there is overwhelming evidence that the PCR-STR test is generally accepted and is far from being new, novel or emerging in the scientific community. The test is used in multiple jurisdictions within the United States and around the world. As the testimony indicated, the BCA has used the test in Minnesota since February 1999 in hundreds of cases. The National Research Council II report indicates that the test is reliable. Indeed, every appellate court from around the country that has reviewed this test, including the appellate courts of *827California, Colorado, Massachusetts, Nevada and Utah, has found the test to be accepted within the relevant scientific community and has permitted it to be used. Appellant has not cited any appellate court that has found the test to be unaccepted within the relevant scientific community, unreliable or otherwise invalid. The majority’s holding sets Minnesota apart from the worldwide scientific community that has accepted this test. In light of the decisions from numerous jurisdictions regarding the reliability of the PCR-STR method of DNA testing, we should take judicial notice of the inherent reliability of the PCR-STR method in the interests of judicial economy unless something in the record indicates a reason to depart from the findings of other jurisdictions.

Further, even if a Frye-Mack hearing on the issue of general acceptance within the scientific community should have been held prior to admitting the DNA evidence, it is not necessary to remand for such a hearing under the facts of this case because the DNA evidence was merely corroborative of other evidence that, standing alone, was sufficient to support the conviction. A court will not reverse a conviction based on the erroneous admission of objected-to evidence so long as the admission was harmless beyond a reasonable doubt. State v. Shannon, 583 N.W.2d 579, 585 (Minn.1998). An error is harmless beyond a reasonable doubt “[i]f the verdict actually rendered was surely unattributable to the error.” State v. Jones, 556 N.W.2d 903, 910 (Minn.1996). To determine whether an erroneous admission of evidence was harmless, a court examines the record as a whole and considers the strength of the state’s evidence and the weakness of any defense evidence. State v. Van Wagner, 504 N.W.2d 746, 749 (Minn.1993). As a general rule, an error is less likely to be prejudicial where the evidence of guilt is strong. State v. Dillon, 532 N.W.2d 558, 558 (Minn.1995).

The state’s purpose in using the DNA evidence was to prove that the victim’s blood was on appellant’s pants and shirt. Although the results of the PCR-STR test demonstrated that the victim’s blood was on appellant’s pants and shirt, there was other evidence establishing this fact. Specifically, appellant admitted to the police and in his testimony at trial that he was at the scene of the murder of Jolene Stuede-mann, the victim, at or about the time that she was murdered. He also admitted to the police that the victim’s blood was on his pants and shirt, that he had consensual sexual intercourse with the victim, and that he lied to the police investigators. In addition, the police found appellant’s bloodstained clothing in the garage of the group home where the appellant resided. One of the other residents of the group home testified that he saw appellant discard the bloodied clothing in the garbage in the home’s garage the morning after the murder. Moreover, the appellant’s fingerprint was found on a newspaper stuffed in the mouth of the victim. Thus, the evidence derived from the PCR-STR test was merely corroborative of other evidence that, standing alone, was sufficient to support the conviction. Under these circumstances, any error in the admission of the DNA evidence is harmless. Accordingly, a remand to determine the reliability of the DNA evidence is unnecessary.

I would affirm the trial court on the denial of a Frye-Mack hearing on the first prong relating to general acceptability in the scientific community and decide the remaining issues in this case.

. The court heard testimony from Ann Gross of the BCA; Patricia Wojtowicz of the BCA; Dan Bergman of the BCA; Dr. Bruce Bu-dowle, Chief of the Forensic Science Research Unit at the FBI; Dr. Arthur Eisenberg, Associate Professor in the Department of Pathology and Director of the DNA/Identity Lab at the University of North Texas and Chairman of the United States DNA Advisory Board; and Dr. P. Michael Conneally, Distinguished Professor of Medical Genetics at Indiana University.