No. 94-023
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
MICHAEL WEEKS,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven J. Shapiro, Clancy, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Cregg
Coughlin, Assistant Attorney General, Helena,
Montana; John Flynn, Broadwater County Attorney,
Townsend, Montana
Submitted on Briefs: November 10, 1994
Decided: February 16, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Defendant/Appellant, Michael Weeks, was charged with sexual
intercourse without consent, a felony in violation of 5 45-5-503,
MCA (19911, alleged to have occurred on or about October 17, 1991.
After a jury trial held in the First Judicial District, Lewis and
Clark County, Weeks was convicted of the charge, and the District
Court entered its Judgment and Order on September 22, 1993,
sentencing Weeks to 35 years in prison with 15 years suspended.
Weeks appeals his conviction. We affirm.
Weeks raises five issues on appeal.
1. Whether he was denied his right to a speedy trial?
2. Whether the District Court abused its discretion in
finding a sufficient chain of custody for the blood
specimens?
3. Whether the District Court abused its discretion in
admitting evidence of serological and DNA testing?
4. Whether the District Court properly denied Weeks'
motion for a judgment of acquittal?
5. Whether the District Court abused its discretion
when it excluded evidence of prior sexual abuse of
the victim?
FACTUAL BACKGROUND
In the fall of 1991, the victim, C.R., was in the seventh
grade and living in Townsend, Montana, with her mother, two
brothers and her stepfather, Weeks. In December of 1991, C.R. went
to a doctor in Townsend, who determined that C.R. was pregnant.
C.R. testified that from the time she was eight years old until she
left the home, Weeks would have sex with her two to three times a
week. C.R. stated that the incidents would usually take place in
2
the morning, after her mother had left for work, and before her
brothers had awakened.
In January of 1992, Cheryl Rolfe, a social worker for the
Montana Department of Social Services working in Broadwater County
received an anonymous referral stating that C.R. was pregnant. As
a result of this referral, Rolfe interviewed C.R. at school, and
C.R. told Rolfe that Weeks had impregnated her. Rolfe immediately
placed C.R. in a foster home, where she stayed until January 31,
1992, at which time Rolfe placed C.R. at the Florence Crittenton
Home. Rolfe stated that she specifically told C.R.'s mother not to
make any contact with C.R. including telephone calls, unless it was
first approved by Rolfe. C.R. stated that while she was staying at
the foster home, her mother and Weeks called her and asked her to
change her testimony and claim someone else was the father of the
child.
On July 20, 1992, C.R. gave birth to a baby boy. C.R.
testified that Weeks was the only person she had ever had sexual
intercourse with. Weeks denies that he is the father of the child,
and presented evidence that C.R.'s brother could have been the
potential father.
The Montana State Crime Lab received blood samples from C.R.,
the baby, Weeks, and C.R.'s brother. Julie Long, a forensic
scientist working at the State Crime Lab testified that she ran
serological tests on the blood samples and determined that Weeks
was included as a possible father of the baby. According to Long,
C.R.'s brother was positively excluded as the baby's father.
3
The State sent blood samples from C.R., the baby, and weeks to
Genelex Corporation, a paternity testing laboratory in Seattle, for
DNA analysis. The president of Genelex, Howard Coleman, testified
that the DNA analysis evidence demonstrated that Weeks could not be
excluded as the baby's father. In addition, Genelex conducted a
statistical analysis of the DNA testing results and determined that
Weeks was 154,000 times more likely to be the baby's father than a
random man.
Weeks was arrested on October 30, 1992, and charged with
sexual intercourse without consent. A jury trial was held July 7.6
through July 28, 1993, and Weeks was found guilty of the charge.
Additional facts will be presented as is necessary for the
discussion of the issues.
1. SPEEDY TRIAL
Although not reflected in the District Court record, Weeks
maintains, and the State does not dispute, that Weeks was charged
by complaint in Broadwater County Justice Court in October of 1992,
and arrested on October 30, 1992. An information charging Weeks
was filed on November 17, 1992, and during Week's arraignment,
which was held on December 4, 1992, the court set the original
trial date for the week of April 12, 1993. On February 9, 1993,
Weeks requested documentation of the DNA testing Genelex conducted.
The State produced the documentation on March 18, 1993. On March
31, 1993, Weeks moved for a continuance of the trial date scheduled
for April 12, 1993 to May 17, 1993, alleging that his expert needed
additional time to review the DNA testing documentation. Weeks
4
specifically waived his right to a speedy trial in his motion,
The District Court granted Weeks' motion for a continuance,
and a second trial date was scheduled for May 17, 1993. On May 3,
1993, Weeks moved to exclude scientific evidence, which included
the evidence of the DNA testing, statistical probabilities based on
the DNA and serological tests, and references to the terms "match"
and "fingerprints." The State objected to Weeks'.motion to exclude
on May 5, 1993, alleging that l'[tlhe very nature of Defendant's
motion begs for an evidentiary hearing to address the issues raised
by the Defense." The State requested that the court vacate the May
17 trial date and hold an evidentiary hearing on Weeks' motion.
After giving preliminary consideration to Weeks' motion on May 7,
the court decided a hearing was necessary to determine the
admissibility of the scientific evidence, and therefore rescheduled
trial for July 26, 1993.
On June 21, 1993, Weeks filed a motion to dismiss on the
grounds that he was denied his right to a speedy trial. Weeks
alleged the State was responsible for the delay because it took six
weeks to respond to his discovery request and because it moved to
vacate the trial and hold a hearing on his motion to exclude the
scientific evidence. After a hearing held on July 2, 1993, the
court denied his motion.
The Sixth Amendment to the United States Constitution, and
Article II, Section 24 of the Montana Constitution, guarantee a
criminal defendant the right to a speedy trial. State v. Stewart
(1994), 881 P.2d 629, 632, 51 St.Rep. 910, 911. This Court applies
5
the four part test set forth in Barker v. Wingo (1972), 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a criminal
defendant has been denied his right to a speedy trial. State ex
rel. Briceno v. District Court (1977), 173 Mont. 516, 568 p.2d 162.
The four factors which must be evaluated are the "[llength of
delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant." Barker, 407 U.S. at 530,
92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Thompson (1993), 263
Mont. 17, 31-32, 865 P.2d 1125, 1134. No particular factor is
determinative, rather, all four factors must be weighed in light of
the surrounding facts and circumstances. Stewart, 881 P.2d at 632.
The first factor, the length of the delay is the threshold
factor, as the other three factors need not be considered unless
the length of the delay is presumptively prejudicial. Thompson,
865 P.2d at 1134. In this case, the State concedes that the 269
day pretrial delay is sufficient to warrant additional speedy trial
analysis. See, Thompson, 865 P.2d at 1135, "[al delay of over 200
days will usually trigger further analysis." Therefore, we
consider the remaining three factors.
The second factor, the reason for the delay, requires an
allocation of portions of the overall delay to the party
responsible for causing any given period of delay. Thompson, 865
P.2d at 1135.
The delay in this case may be divided into three separate
segments. The first period consists of 164 days and represents the
time between Weeks' arrest on October 30, 1992, and the original
6
trial date of April 12, 1993. Because the District Court set the
original trial date, the delay is considered institutional, and is
therefore chargeable to the State. Thomoson, 865 P.2d at 1135.
"However, institutional delay weighs less heavily against the State
than does purposeful delay." Thompson, 865 P.2d at 1135. Weeks
makes no argument, and the record does not indicate, that the State
purposefully caused the delay between his arrest and the first
scheduled trial date, which is by far the longest period of delay.
Therefore, we weigh this initial 164 days less heavily against the
State.
The second period of delay consists of 36 days, and represents
the time between the original trial date of April 12, 1993, and the
trial date set for May 17, 1993. The defendant requested this
delay in his motion for continuance, wherein he specifically waived
his right to a speedy trial. On appeal, Weeks contends that the
State should be responsible for this delay, as it did not timely
respond to his request for discovery. Nevertheless, Weeks
specifically waived his right to a speedy trial until May 17, 1993.
Therefore, the second period of delay is attributable to Weeks.
State v. Tilly (19871, 227 Mont. 138, 143, 737 P.Zd 484, 487; see
also, State v. Nelson (1991), 251 Mont. 139, 822 P.2d 1086.
The third period of delay consists of 69 days, and represents
the delay between the court's vacating the May 17 trial date and
rescheduling the trial for July 26, 1993. Weeks maintains that
this delay should be attributable to the State, as it moved to
vacate the May 17 trial date. While the State agrees that it
7
requested that the trial date be vacated, it argues that the delay
should be attributed to Weeks, as the delay was caused by Weeks'
motion to exclude the DNA evidence. The State alleges that in
light of Weeks' motion to exclude, an evidentiary hearing was
necessary at which expert witnesses could testify. We agree, and
conclude the delay should be attributable to Weeks in this instance
for the following reasons.
First, Weeks did not move to exclude the evidence until two
weeks before trial, although he admits that the DNA testing was
completed by October 1992. Second, the evidence Weeks sought to
exclude is highly complicated and technical scientific evidence.
At the time Weeks made his motion, this Court had never ruled on
the admissibility of DNA evidence in a criminal trial. Therefore,
this evidence was clearly of the type which required a pretrial
admissibility hearing. Given the complexity of the subject matter
and the timing of Weeks' motion to exclude, the State's motion for
an evidentiary hearing was proper, and the District Court was
correct in granting the State's motion. State v. Moore (1994), 885
P.2d 457, 471, 51 St.Rep. 1151, 1160; U.S. v. Martinez (8th Cir.
1993), 3 F.3d 1191, 1197-98, cert denied, - U.S.-, 114 s.ct.
734, 126 L.Ed.2d 697 (1994). Accordingly, we conclude that Weeks
should be charged with this 69 day delay.
Weeks has met the third Barker factor, assertion of his right,
as he moved to dismiss the action on speedy trial grounds, on June
21, 1993, before this case was brought to trial. Stewart, 881 P.Zd
at 633.
8
The fourth Barker factor is prejudice to the defendant.
Prejudice is assessed in light of the interests of the defendant
which may be harmed by a delay in bringing his case to trial.
These interests are: (1) pretrial incarceration, (2) anxiety and
concern, and (3) impairment of defense. Stewart, 881 P.2d at 633.
Applying these criteria to the facts in this case we conclude that
Weeks was not prejudiced by the delay.
Weeks, incarcerated from the date of his arrest to the date of
trial, argues that his incarceration was oppressive and impaired
his defense. However, given the fact that Weeks had been
extradited from Oregon and had few ties to Broadwater County,
pretrial incarceration was necessary to ensure his presence at
trial.
Regarding the second interest, Weeks maintains that 'I [tlhe
anxiety caused by loss of liberty is great." While this may be
true, Weeks offers no proof conclusively showing that he actually
suffered anxiety and concern. This Court has recognized that
anxiety is an inevitable part of being charged with a crime, and
that the existence of anxiety and emotional distress are
notoriously difficult to prove. Stewart, 881 P.2d at 634.
However, we have also held that the State's burden to show lack of
anxiety lessens considerably when marginal evidence of anxiety is
presented. State v. Eklund (1994), 264 Mont. 420, 425, 872 P.2d
323, 326. While Weeks mentions that he was suicidal as a result of
his pretrial incarceration, he offered no support for this cursory
statement. Weeks' evidence demonstrating anxiety and concern is
9
marginal at best.
The third and most important interest we must consider is
whether the delay impaired or prejudiced the defense. Again Weeks
offers no explanation as to how his defense suffered as a result of
the delay other than stating that 0 [tlhe defense was impaired by
the passage of time." A mere self-serving assertion that the
defendant suffered prejudice is not sufficient to demonstrate that
the delay impaired or prejudiced his defense. State v. Bretz
(1979), 185 Mont. 253, 268, 605 P.2d 974, 983; see also, State v.
Kills on Top (19901, 243 Mont. 56, 79, 793 P.2d 1273, 1288-89.
In summary, of the total 269 days of pretrial delay, 164 days
are institutional, charged to but weighed less heavily against the
State, and 105 days are charged to Weeks. While Weeks may have
suffered some anxiety as a result of his pretrial incarceration,
that incarceration was necessary and his defense was not prejudiced
by the delay. Therefore, applying the four part balancing test of
Barker, we hold that Weeks was not denied his right to a speedy
trial.
2. CHAIN OF CUSTODY
Weeks contends that the State did not establish a proper
foundation for the chain of custody for the blood samples taken
from C.R., the baby, and Weeks. Accordingly, Weeks maintains that
the District Court erred in admitting any evidence regarding the
blood samples and the accompanying test results. Weeks claims that
the blood samples of C.R. and the baby should not have been
admitted because those samples were mistakenly sent to Baltimore Rh
10
Typing Laboratory, a genetic testing center in Baltimore, Maryland,
when they were supposed to have been sent to Genelex Corporation in
Seattle, Washington. When the mistake was discovered, the samples
were forwarded to Genelex. Weeks maintains that the chain of
custody for these two samples was not established because while at
the Baltimore laboratory, ' ttlhe samples could have been opened,
examined, tested, contaminated and resealed before anyone realized
that they did not belong there."
Weeks also argues that the State did not establish a proper
chain of custody for his blood sample because Genelex did not
follow the procedure set forth in its laboratory manual in
identifying the sample. In addition, the State Crime Lab received
a sample of Weeks' blood from Genelex for the purpose of conducting
standard serological tests on the sample. Julie Long, a forensic
serologist at the State Crime Lab, testified that the "blood vial"
was broken when she received it. Ms. Long testified that the
broken blood vial was inside of another plastic tube which was
sealed, and that any glass residue from the breakage would not have
affected the outcome of her testing, nor would any bacterial
contamination have affected the outcome of her testing. However,
Weeks maintains that it is not clear whether Genelex tested from
that broken sample which could have affected the outcome of its
testing.
In deciding whether to admit evidence concerning the blood
tests results, the District Court had to determine whether a proper
foundation had been laid. Specifically, the court had to determine
if the blood samples used for the DNA and serological testing were
the same blood taken from Weeks, C.R., and the baby. Therefore,
the State had to establish a complete and secure chain of custody
from the time the blood was drawn until the time of testing. The
District Court found the State properly established this chain of
custody. We agree.
The determination of the adequacy of the foundation for the
admission of evidence is within the discretion of the trial court,
and will not be overturned absent a clear abuse of discretion.
State v. Wells (19831, 202 Mont. 337, 356, 658 P.2d 381, 391; State
v. Christenson (1991), 250 Mont. 351, 359, 820 P.2d 1303, 1308.
When identifying evidence by a chain of custody, the State has the
burden to make a prima facie showing of a continuous chain of
possession and that there was no substantial change in the evidence
while it was in its possession. State v. Thomas (1975), 166 Mont.
265, 268-69, 532 P.2d 405, 406-07; -r
Wells 658 P.2d at 391. The
burden then shifts to the defense to show that the evidence has
been tampered with while in the State's custody. State v.
Armstrong (1980), 189 Mont. 407, 432, 616 P.2d 341, 355; Wells, 658
P.2d at 391.
While other cases have stated that the State must make a prima
facie showing that the evidence was in the "State's continuous
possession", see e.g., State v. Evans (1991), 247 Mont. 218, 228,
806 P.2d 512, 518, this language is not completely accurate. The
State does not need to show that it had possession at all times;
rather it must establish a continuous chain of custody. For
12
example, as here, when the State ships a piece of evidence to a
laboratory for testing, the evidence necessarily leaves the
"State's possession." At times the post office or parcel carrier
has possession of the evidence; at times the evidence is in the
possession of clerks; and at other times laboratory technicians
have possession. The chain of custody is not broken however, so
long as the State can demonstrate to the court's satisfaction, that
from the time the evidence was gathered to the time it was tested,
(if testing was performed), or to the time it was offered, that
there was no substantial change that would affect the character of
the evidence, the accuracy of the test results, or its probative
value and authenticity.
Weeks first argues that the State did not demonstrate a
complete chain of custody for the blood samples taken from C.R. and
her baby because the samples were mistakenly shipped to the
Baltimore lab. Weeks also alleges that the samples could have been
tampered with while there. However, the record does not support
Weeks' contentions. While it is true that the medical technologist
who originally withdrew the blood samples from C.R. and the baby
shipped them to Baltimore RH Typing Laboratory, the State
demonstrated that it contacted the Baltimore lab the same day the
lab received the samples and instructed it to send the samples to
Genelex. The chain of custody documentation evidences the
following: (1) the Baltimore lab received the samples on July 23,
1992, at 8:35 a.m.; (2) a lab worker opened the shipping package
and noted that blood samples' condition was fine; (3) the State
13
contacted the Baltimore lab by facsimile that same day and
requested that the samples be shipped to Genelex; (4) the Baltimore
lab shipped the samples to Genelex on July 23, 1992; and (5)
Genelex received the samples the next day. Furthermore, Howard
Coleman, the president of Genelex, testified that the evidence tape
sealing the samples was intact, and there was no evidence that the
samples themselves had been opened or tampered with in any way.
This Court has previously held that it is not necessary for
the State to call as witnesses at trial each person who handled the
evidence in order to establish a chain of custody. State v.
Bradley (1993), 262 Mont. 194, 198-99, 864 P.2d 787, 790. In
Bradlev, we held that testimony concerning the chain of custody
from the time a blood sample was drawn, to when it was shipped,
along with the laboratory log listing the names of the persons at
the lab who handled the evidence was sufficient to establish chain
of custody foundation. Bradley, 864 P.2d at 790. Likewise, here
we conclude that the documentation and testimony outlined above,
demonstrates a sufficient chain of custody of the samples from the
time they were withdrawn from C.R. and her baby until the time the
tests were conducted.
Regarding the tampering allegation, Weeks failed to present
any evidence that the sealed samples were actually altered or
tampered with in any way. The State's evidence, in fact, was to
the contrary. Accordingly, we conclude that this argument has no
merit. Armstronq, 616 P.2d at 355.
Weeks' next contention concerns the sample of blood withdrawn
14
from him. Weeks argues that the State failed to establish a
foundation for the admission of his blood sample because the sample
did not comply with "mandatory identification requirements." Weeks
suggests that because the procedure used to identify the blood
sample in this case did not follow the identification procedures
set forth in Genelex's lab manual, i.e., the sample was not
accompanied by a signed fingerprint or signed photograph, Genelex
had no means of connecting the sample to Weeks. Weeks relies on
State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328, as support
for his argument that failure to follow the requirements of the
administrative rules of Montana is analogous to failure to follow
a laboratory manual. We disagree, and conclude there was
sufficient evidence to prove that the blood sample Genelex tested
was the same sample withdrawn from Weeks, as is evidenced by the
following facts.
John Oritz testified that in February 1992, while he was
employed as an investigator for the Broadwater County Attorney's
Office, he received a signed consent from Weeks to take a sample of
Weeks' blood. Oritz and Weeks went to the Broadwater Health Center
in Townsend, where Katherine Carr, a medical technologist, drew
three vials of Weeks' blood. Carr testified that she labeled the
vials with Weeks' name, the date, and the time of the procedure.
Carr then packed the samples and gave them to Oritz. Carr also
testified that Oritz watched the procedure, and that she personally
knew Weeks.
Oritz testified that he placed evidence tape over the sample's
15
lids, and stored them in the evidence refrigerator at the sheriff's
office until he mailed them to Genelex through registered mail.
Genelex's chain of evidence documentation indicates it received the
samples by registered mail on February 24, 1992.
Coleman testified that while Genelex's laboratory manual
states that a sample should be accompanied by a signed fingerprint
or signed photograph, he also stated that it was impossible for the
manual to cover every eventuality that might occur. Coleman
explained that Genelex would accept a specimen which deviated from
the procedures contained in the laboratory manual if it followed
accepted laboratory practice and forensic and law enforcement
practice in terms of the maintenance of custody. Coleman added:
The typical kinds of cases in which we don't have that
sort of documentation [i.e., documentation set forth in
Genelex's laboratory manual] is the case exactly such as
this one, a criminal case where one of the parties who
has been drawn has been in custody of a law enforcement
officer at the time of the blood draw and the law
enforcement officer will provide the specimen to us on
their chain of custody forms and they will sign off on it
and send it to us then in an appropriate manner.
Coleman also testified that the identification procedure set
forth in its lab manual was merely administrative procedure which
did not affect the laboratory procedure, and did not invalidate the
testing. Finally, Coleman noted that in this case, "the bottom
line is that the chain of custody was maintained." Accordingly, we
conclude that Weeks' allegation that the State failed to establish
a proper foundation for chain of custody for his blood sample is
also without merit.
Finally we address Weeks' argument that Genelex could have
16
tested from the broken sample received by the Montana State Crime
Lab, and returned to Genelex. The record again demonstrates that
Genelex did not test from this sample because Coleman testified
that Genelex did not use the sample it received from the crime lab
for testing, but rather conducted the tests using the original
samples. Therefore, we conclude that Weeks did not demonstrate the
blood sample Genelex used for testing had been contaminated while
in the State's possession.
Upon considering all of Weeks' allegations of error, we hold
that the District Court did not abuse its discretion in admitting
evidence of the blood samples and the test results thereof.
3. DNA AND SEROLOGICAL EVIDENCE
Background
Before we begin our discussion of the alleged errors
concerning the DNA and serological analysis evidence, a brief
overview of the DNA and statistical analysis conducted in this case
is necessary.
DNA makes up units called chromosomes. In the nucleus of each
cell there are 46 chromosomes arranged in 22 pairs plus one pair of
sex chromosomes. An individual inherits one-half of his or her
chromosomes from the father, and one-half from the mother.
Therefore, scientists are able to determine a genetic profile of
the father of a child by examining the genetic traits of the mother
and her child.
DNA analyses are frequently used in paternity cases.
In the typical case, laboratories perform genetic tests
on the mother, child, and alleged father to arrive at a
so-called 'paternity index.' This is a measure of the
17
strength of the genetic evidence, where higher numbers
are more probative of paternity than lower numbers.
Essentially, it is a ratio of the chance that the alleged
father, if he was the father, would transmit the genetic
markers observed in the child to the chance that a
randomly selected man from the reference population, if
he was the father, would pass along these markers.
Koehler, DNA Matches and Statistics, 76 JUDICATURE, 222, 224 (1993).
In this case, Genelex conducted the DNA paternity testing
using a process called Restriction Fragment Length Polymorphism
analysis (RFLP). As explained in -I
Moore 855 P.2d at 465-66, RFLP
analysis involves several steps: extraction of the DNA from the
evidentiary sample; fragmentation (cutting) of the DNA molecules at
specific sites into restriction fragments; assortment of the
fragments by gel electrophoresis; Southern transfer, a process
which transfers the DNA fragments onto a nylon membrane;
hybridization with radioactive probes; and production of
autoradiographies (autorads) by placing x-ray film over the nylon
membrane, thereby revealing the restriction fragments (or alleles),
which appear as dark bands on the film.
Genelex used four different probes to analyze the DNA profile
of C.R., the baby, and Weeks. Specifically, Genelex examined
certain loci (or sites) on chromosomes two, four, ten and
seventeen, to determine whether Weeks and the baby shared a common
band at each location. For each locus examined, Weeks has a gene
which is indistinguishable from the baby's obligate (paternal)
gene.
The next step, the statistical analysis, attempts to
determine how often the particular bands would occur in the
18
relevant racial population, thereby demonstrating how frequently
the genes of the alleged father occur in the relevant racial
population. TO make this statistical analysis, Genelex prepared a
database which is comprised of DNA profiles of several hundred
people to determine the sizes of specific DNA fragments (alleles)
in all the individuals tested. The scientists then determine how
often a particular allele occurs within the database.
To determine how often an allele is found within the database,
Genelex uses a process called "binning," whereby the alleles are
separated by size range and assigned to separate bins. For
example, an allele which is comprised of approximately 2,500 base
pairs is placed into a bin with alleles which are comprised of
between 2,000 and 3,000 base pairs. Once an allele is assigned to
a bin, the scientist determines how frequently it occurs within the
database.
The scientist then compares the alleles in question (in this
case the alleles shared between Weeks and the baby) to the alleles
generated from the database. Then using certain basic formulas
from population genetics, the scientist makes a statistical
determination of how frequently that particular allele is found in
the same racial population.
Here, Genelex examined four probes, determined how frequently
they were found in the database, and then, using a multiplication
or product rule computed an aggregate estimate of the statistical
probability that the combination of alleles would be found in the
relevant racial population. For example, if one allele is found in
19
ten percent of the population, and another allele is found in fifty
percent of the population, scientists, (knowing that the occurrence
of these genes is independent of each other) apply the product rule
and conclude that the probability of a coincidental match on both
alleles is 0.10 x 0.50 = 0.05 or a five percent probability.
Upon completing the statistical analysis, Genelex concluded
that Weeks "is 154,000 times more likely to be the father of the
baby . . than a random man."
Discussion
Weeks argues that the District Court erred in admitting the
DNA evidence and its accompanying statistical data on several
grounds. We will first address Weeks' objections to the DNA
testing evidence, and then his objections to the statistical
evidence.
Standard of Review
Rulings on the admissibility of evidence are left to the sound
discretion of the trial court, and the court's decision will not be
overturned absent an abuse of discretion. Moore, 885 P.2d at 467.
A. DNA Analysis Evidence
Weeks asserts that evidence of the DNA testing in general,
should not have been admitted because one set of standards does not
govern the industry. Weeks concludes that because the industry
uses various standards for testing, the laboratories do not have
guidelines concerning what procedures will be acceptable to the
courts , and likewise, the courts cannot be assured that the results
will be consistent from one laboratory to another.
20
While Weeks is correct in stating that one standard does not
govern the industry, that fact does not, in and of itself, impair
the reliability of the DNA analysis evidence. Weeks' own expert,
Dr. Moses Schanfield, testified that there are several sets of
standards governing the industry, citing: TWGDAM, or the Technical
Working Group on DNA analysis and Methods; HCFA, the Health Care
Finance Administration; and ASHE, the American Society of
Histocompatibility and Genetics. Schanfield also noted that most
laboratories that are engaged in paternity testing are accredited
by the American Association of Blood Banks (AABB) and that:
[while] there is no law requiring paternity testing
laboratories [to] be accredited. . . . virtually every
contract that comes out for parentage testing by a state
o r county agency requires that the laboratory be
accredited or have applied for accreditation with the
AABB so that even though there is no statutory
requirement, there is a de facto one that exists.
Dr. Schanfield added:
The standards should be considered minimal standards and
they are not specific because -- to use a colloquialism
there is more than one way to skin a cat. The reality is
there is more than one way to test an enzyme and get the
same results.
This Court has recently recognized that "the theory underlying
DNA and RFLP technology is generally not open to serious attack. .
I! Moore, 885 P.2d at 468. We also concluded that the general
reason courts exclude RFLP analysis evidence is because the
particular laboratory failed to adhere to generally accepted
techniques for obtaining relevant, reliable results. Moore, 885
P.2d at 468-69.
In this case, Weeks fails to point out any errors in Genelex's
21
testing procedures. Genelex is certified by the American
Association of Blood Banks. During the certification process, the
AABB reviewed Genelex's laboratory procedure manual, inspected the
various phases of the laboratory's operation, and its statistical
methods. Upon completion of the certification process, the AABB
issued Genelex a certification of accreditation. Accordingly, we
conclude that Weeks' argument concerning the lack of standards
governing DNA testing is without merit. See, Moore, 885 P.2d at
469.
B. Statistical Evidence
Weeks also alleges that the State failed to lay a foundation
for the admissibility of the DNA statistical analysis evidence. The
essence of Weeks' argument is that Genelex's database was too small
to project to a population of 100 million and that Genelex failed
to make statistical corrections to its database.
Genelex's database is comprised of approximately 300
individuals. From this database, Genelex extrapolates to the
frequency of a genetic occurrence within the United States'
population. According to Weeks, Genelex's database is too small
which is evident in the difference between the State expert's
conclusion that there might be "dozens" of men who carry the
genetic pattern which would show them to be the father of the baby,
and the defense expert's conclusion that 12,000 men would have the
same genetic pattern as the father of the baby. Dr. Schanfield,
the defense expert, based his calculations on the FBI database of
approximately 10,000 samples, while Mr. Coleman, the State's
22
expert, based his calculations on Genelex's database.
However, when questioned whether Genelex's database was too
small, Schanfield testified that Genelex's data base was the
minimum size to detect the bands being sought. Schanfield stated,
"I think the Genelex data base like most starting databases is
small. That is a reality of starting databases. Ours was that
size once, too. All it means is there are inherently larger errors
in it."
In addition, Coleman also agreed that calculations become more
accurate using a larger data base. However, in Coleman's opinion,
the differences would not be significant in light of the fact that
the statistical probability is an underestimate of the true number.
In United States v. Bond (6th Cir. 1993), 12 F.3d 540, 558,
the defendants also argued that the statistical probabilities of a
match would have been more accurate if a different database had
been used. Similar to the arguments raised here, the defendants in
Bond did not challenge the fact that the probabilities were
generated, but rather challenged the precision of the probability
estimate. Bond
-I 12 F.3d at 558. The Sixth Circuit Court noted
that the test for admissibility under Daubert v. Merrell Dow
Pharmaceuticals, Inc. (19931, U.S. , 113 S.Ct. 2786,
2796, requires only scientific validity for admissibility, not
scientific precision. -,
Bond 12 F.3d at 558. The Bond court
concluded that:
[T]he criticisms about the specific application of the
procedure used or questions about the accuracy of the
test results do not render the scientific theory and
methodology invalid or destroy their general acceptance.
23
These questions go to the weight of the evidence, not the
admissibility.
Bond
-r 12 F.3d at 563.
Weeks does not contend that the scientific theory and
methodology underlying the probability estimates were invalid.
Rather, he argues that the conflicting testimony concerning the
probability determinations, renders the evidence inadmissible. We
disagree and conclude that the conflicting evidence was a matter of
weight for the jury to decide. See, Barmeyer v. Montana Power Co.
(1983), 202 Mont. 185, 193-94, 657 P.Zd 594, 598 ("it is better to
admit relevant scientific evidence in the same manner as other
expert testimony and allow its weight to be attacked by cross-
examination and refutation.") Accordingly we hold that the
District Court did not abuse its discretion in admitting the
statistical analysis evidence.
Weeks also asserts that the exaggerated opinion of the
accuracy of DNA testing is prejudicial, as juries would give undue
weight and deference to the statistical evidence. Weeks claims
that "[t]he popular media and the DNA laboratories themselves have
portrayed DNAtesting as 99.99% accurate in demonstrating 'matches'
of biological samples." Weeks concludes that the probability
aspect of the DNA analysis invades the province of the jury to
decide the guilt or innocence of the defendant.
Weeks relies on Rule 403, M.R.Evid., which allows a court to
exclude evidence " if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. . .I( Weeks cites Delaware v.
24
Pennell (Del.Super. 1989), 584 A.Zd 513, to support his argument
that the impact of statistics upon a jury can be overwhelming.
However, we conclude that Pennell is unpersuasive, as the Delaware
court specifically did not adopt the position that statistical
analysis would never be proper. Rather, the Delaware court stated,
"[iIn this case, however, the State has failed to demonstrate a
degree of reliability necessary to admit such statistical
probabilities." Pennell, 584 A.2d at 522.
Weeks also cites Commonwealth v. Curnin (Mass. 1991), 565
N.E.Zd 440, and State v. Schwartz (Minn. 1989), 447 N.W.2d 422, to
support his argument. We find these cases to be unpersuasive as
well, as they were decided under the general acceptance test set
forth in Frye v. United States (D.C. Cir. 1923), 293 F. 1013, which
we rejected in Barrnever.
We recognize that courts must be mindful that the probative
value of statistical probabilities evidence is not outweighed by
any unfair prejudicial effect. United States v. Chischilly (9th
Cir. 1994), No. 92-10619, 1994 WL 382696, *g-*10; Bond, 12 F.3d at
567. However, Weeks presents no evidence in the record that
supports his contention that the statistical analysis evidence had
a prejudicial impact on the jury. Accordingly, we conclude that
the statistical analysis evidence was more probative than
prejudicial.
Weeks also alleges that the statistical analysis evidence
invades the province of the jury. Weeks states that because he was
charged with sexual intercourse without consent, the State must
25
prove that someone had sexual intercourse with the victim, and that
it was done without consent. According to Weeks, because C.R. was
13 years old at the time of the crime, she was incapable of giving
consent pursuant to § 45-5-501(l) (b) (iii), MCA, therefore, the
proof of sexual intercourse alone is the fact in issue. The fact
that C.R. had a baby "is in most circumstances, proof of sexual
intercourse." Therefore, Weeks argues the ultimate factual issue
is the identify of the perpetrator, which the statistics purport to
resolve.
Weeks' argument has no merit. Rule, 704 M.R.Evid., provides:
Opinions on ultimate issue. Testimony in the form of an
opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be
decided by the trier of fact.
Here, the jury was entitled to consider the statistical
analysis evidence along with all of the other direct and
circumstantial evidence to determine the question of Weeks' guilt
or innocence. The jury was free to disregard or discredit any of
the evidence. Furthermore, we note that Weeks' arguments that the
statistical evidence invades the province of the jury is weakened
by the fact that he himself offered statistical probabilities of
the DNA match for the jury's consideration.
The Iowa Supreme Court considered a similar argument in
State v. Brown (Iowa 1991), 470 N.W.Zd 30, 33. The Iowa Court
concluded that such an argument:
will exclude statistical probability testimony where it
is the most cogent, and allow it in evidence only where
there remains a degree of doubt because of the
inconclusiveness of the numbers. Where both are based on
the same scientific methods and facts, this makes little
26
logical sense. Indeed, it might lead to the exclusion of
fingerprint evidence, which is also based on the
mathematical theory of probabilities that the chance of
two individuals bearing the same fingerprint (or prints)
is so infinitesimally small as to be negligible.
[Citation omitted.]
Finally, Weeks argues that the court erred in allowing Coleman
to testify concerning the statistical analysis generated by Genelex
from the serological evidence because the State did not provide
proper foundation.
The State Crime Lab conducted standard serological tests on
the blood specimens of Weeks, C.R., and the baby, and determined
that Weeks could not be excluded as the baby's father. The samples
were analyzed for ADO antigen type, six red blood cell enzymes and
one serum protein. Upon receiving the serology reports from the
State Crime Lab, Genelex calculated a combined paternity index of
12.43; i.e., Weeks is 12.43 times more likely to be the baby's
father than a random Caucasian-American man. Genelex then used the
statistics generated from the serological tests and the statistics
generated from the DNA analysis to reach a combined statistical
analysis. Coleman acknowledged that the combined calculation was
an approximation because he could not insure that the systems were
"unlinked" to the DNA profiles. Coleman's testimony concerning
these statistical analyses was offered and received into evidence
at trial without objection.
The State argues that Weeks waived his objection concerning
the admissibility of the combined statistical analysis evidence
because he did not object to the foundation for the evidence at
either the admissibility hearing or at trial. Weeks maintains that
27
he established and preserved his objection by filing a motion in
limine before trial. While a motion in limine may preserve a
SpeCifiCatiOn of error for appeal, State v. Brown (1984), 209 Mont.
502, 506-07, 680 P.2d 582, 584-85, that does not negate the
obligation of the objector to make the basis and grounds for his
objection clear to the court. "A district court will not be put in
error where it was not given an opportunity to correct itself."
BrownI
- 680 P.2d. at 584. In addition, specific objections must be
made to portions of testimony deemed inappropriate; broad general
objections do not suffice. State v. Anderson (1984), 211 Mont.
272, 290, 686 P.2d 193, 202-03; State v. Courchene (1992), 256
Mont. 381, 385, 047 P.2d 271, 273.
While Weeks did object to the admission of the statistical
analysis evidence, he failed to specify any reasons or authority
regarding why the evidence should be excluded. Rather, Weeks
relied on sweeping conclusory statements that the serological
statistical evidence is inadmissible. For example, Weeks stated in
his motion to exclude:
In order to make the complexity and multiplicity of their
errors clear to the Court, the Defendant points out that
after calculating the erroneous statistics for the
serology analysis, Genelex went on to multiply that by
the erroneous statistics for their DNA analysis. . .
Weeks' "objection" simply assumes, without proof, that the
serology and DNA statistical probabilities are "erroneous. IT
Moreover, Weeks motion in limine did not contain an objection to
the combined statistical analysis evidence on a foundation basis,
rather it set forth an argument that the evidence was prejudicial.
28
Simply objecting to evidence because it is prejudicial is not
sufficient. State v. Arlington (19941, 265 Mont. 127, 150, 875
P.2d 307, 321, ('I [pl rejudice in a criminal case will not be
presumed, it must be established by the record. . . [that] the
prosecution denied the defendant a substantial right"). Evidence
offered by a litigant in support of, or in defense of its case
usually is prejudicial to the other side's case. If it were not,
there would be little reason to offer the evidence.
Pursuant to 5 46-20-104(2), MCA, " [flailure to make a timely
objection during trial constitutes a waiver of the objection,
except as provided in 46-20-701(2)." Section 46-20-701(2), MCA,
states that unless an objection is made, U [alny error, defect,
irregularity, or variance which does not affect substantial rights
shall be disregarded."
This Court will not consider issues raised for the first time
on appeal when the appellant had the opportunity to make an
objection at the trial level. State v. Webb (1992), 252 Mont. 248,
251, 828 P.2d 1351, 1353. We conclude that Weeks waived his
objection to the statistical evidence regarding the serological
testing by his failure to make a specific objection in his motion
in limine and by his failure to make any objection at the
admissibility hearing or at trial. Furthermore, Weeks failed to
demonstrate that his substantial rights were prejudiced.
Moreover, having thoroughly reviewed the entire record, we are
satisfied that while the foundation laid by the State for the
combined statistical analysis evidence might have been more
29
detailed, there was no showing that such evidence was inaccurate,
inherently unbelievable, unduly prejudicial or inflammatory. The
combined statistical evidence was, in fact, consistent with and
merely corroborative of other scientific, circumstantial and direct
evidence in this case.
After considering all of Weeks' arguments concerning the
admissibility of the DNA and serological evidence, we hold that the
District Court did not abuse its discretion by admitting evidence
of the DNA analysis and the statistical analysis conducted in this
case.
4. MOTION FOR JUDGMENT OF ACQUITTAL
Weeks maintains that the District Court erred when it denied
his motion to dismiss at the conclusion of the State's case. Weeks
argues that there was insufficient evidence to convict him of the
charge of sexual intercourse without consent because the State
failed to prove that Weeks actually penetrated C.R. We disagree.
Pursuant to § 46-16-403, MCA, a district court may dismiss a
criminal action at the close of the State's case when the evidence
is insufficient to support a verdict of guilty. This Court has
previously held that a trial court should grant a motion for a
directed verdict of acquittal only when there is no evidence to
support a guilty verdict. State v. Mergenthaler (1994), 263 Mont.
198, 203, 868 P.2d 560, 562-63. The standard of review for a
directed verdict of acquittal, is "whether, after reviewing the
evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
30
beyond a reasonable doubt." State V. Bower (1992), 254 Mont. 1, 6,
833 P.Zd 1106, 1110.
Weeks was charged under § 45-5-503, MCA (1991), which
provides:
Sexual intercourse without consent. (1) A person who
knowingly has sexual intercourse without consent with
another person commits the offense of sexual intercourse
without consent. . .
"Sexual intercourse" is defined at 5 45-2-101(61), MCA (1991), for
purposes of this case as:
[Plenetration of the vulva, . . . of one person by the
penis of another person. . Any penetration, however
slight, is sufficient.
The record in this case evidences the following facts
regarding penetration: (1) C.R. testified that Weeks had sexual
intercourse with her several times a week from the time she was
eight years old until she left the home; (2) C.R. testified that
she knew Weeks was the father of the baby because she did not have
sexual intercourse with anyone else; (3) C.R. testified she learned
what the term sexual intercourse meant after speaking with a worker
at the Florence Crittenton Home, and that was what Weeks was doing
with her; (4) C.R. had a baby, and the statistical interpretation
of the DNA analysis demonstrated that Weeks was 154,000 times more
likely than a random man to be the father of the child, and the
combined statistical analysis of the serological and DNA testing
indicated that Weeks was 1.9 million times more likely to be the
father of the baby than a random man.
Based on the above, we conclude that the State provided
sufficient evidence upon which a rational trier of fact could find
31
Weeks penetrated C.R. Therefore we hold the District Court
properly denied Weeks' motion for a directed verdict of acquittal.
5. PRIOR SEXUAL ABUSE
The final issue Weeks raises on appeal is whether the District
Court abused its discretion when it excluded evidence of prior
sexual abuse of C.R. Pursuant to 5 45-5-511(2), MCA, the rape
shield statute, the State moved to limit evidence of C.R.'s prior
sexual conduct, except evidence of prior conduct which was relevant
to show the origin of her pregnancy, or evidence of C.R.'s past
sexual conduct with Weeks. The court granted the motion, limiting
defense counsel from presenting any evidence of C.R.'s past sexual
conduct, except for evidence of sexual conduct within the time
frame for the period of conception. Before trial, the State moved
that Weeks' witnesses be interviewed in chambers prior to
testifying to ensure compliance with the court's order. The court
granted the motion.
Accordingly, outside the presence of the jury, Weeks presented
the testimony of two potential witnesses: thirteen year old G.Q.,
and fourteen year old N.H. N.H. stated that in the fall of 1991,
C.R. had told her that C.R.'s brother was having sex with her.
N.H. also related that C.R. told her that C.R.'s brother made C.R.
undress in front of him and his friends. However, N.H. did not
know when the alleged incidents occurred.
G.Q. related that in October of 1991, C.R. told her that
C.R.'s brother had forced C.R. to go to bed with him. According to
G.Q., C.R. said this incident had occurred a few nights before.
32
G.Q. also stated that C.R. had told her that her brother, and
"Gordon," an adult male, had intercourse with C.R. on several
occasions. When asked if C.R. had ever mentioned anything about
Weeks, G.Q. related that C.R. told her that Weeks "was the nicest
person. 'I
The District Court would not allow N.H. to testify, because
the defense could not establish that the conduct between C.R. and
her brother occurred within the general parameters of the
conception period. Therefore, the court ruled N.K.'s testimony was
impermissible under the rape shield statute. The court limited
G.Q.'s testimony to the incident which occurred in October of 1991;
that C.R.'s brother had forced her to go to bed with him. The
court excluded the remainder of G.Q.'s testimony, ruling that it
was irrelevant and violative of the rape shield statute. On
appeal, Weeks argues that the court's rulings violated his due
process rights because he was not able to challenge the credibility
of C.R.
Section 45-S-511(2), MCA, prohibits evidence concerning the
sexual conduct of the victim of a sexual crime, "except evidence of
the victim's past sexual conduct with the offender or evidence of
specific instances of the victim's sexual activity to show the
origin of semen, pregnancy, or disease which is at issue in the
prosecution." The purpose of the rape shield statute is to prevent
the trial from becoming a trial of the victim. State v. Steffes
(1994) P.2d , 51 St.Rep. 1463, 1469. It is well
established that inadmissible evidence concerning sexual conduct of
33
the victim includes prior sexual abuse. state v. Lamb (1982), 198
Mont. 323, 646 P.2d 516; State v. Rhyne (19921, 253 Mont. 513, 519,
833 P.Zd 1112, 1116; Steffes, 51 St.Rep. at 1469.
However, the protection of victims under the rape shield
statute must be balanced against the defendant's right to confront
witnesses. Steffes, 51 St.Rep. at 1469-70. This Court has
determined that defendant's right to confront witnesses is not
abridged by the exclusion of evidence of the victim's prior sexual
abuse unless the victim's accusations or allegations of prior
sexual abuse have been proven to be false. State v. Van Pelt
(1991), 247 Mont. 99, 104, 805 P.Zd 549, 552.
In this case, Weeks failed to demonstrate how his rights were
abridged. The District Court allowed G.Q. to testify concerning
the incident which occurred within the conception time period. The
court concluded that this testimony was relevant to establish that
the origin of C.R.'s pregnancy could have been someone other than
Weeks, even though the genetic tests excluded C.R.'s brother as the
possible father of the child. The remainder of the proposed
evidence was clearly violative of the rape shield statute.
The determination of admissibility under the statute is left
to the discretion of the trial court and will not be disturbed on
appeal absent an abuse of discretion. Van Pelt, 805 P.2d at 552.
Upon review, we hold that the District Court did not abuse its
discretion in excluding the evidence of prior sexual abuse which
would not demonstrate the origin of C.R.'s pregnancy.
In conclusion, after considering all of the issues raised by
34
Weeks, we hold that the District Court did not commit reversible
error as to any issue raised on appeal. Acsordingly,,, Weeks
conviction is AFFIRMED.
Jfstice
We Concur: 1
35
State v. Weeks
Court: Montana Supreme Court
Date filed: 1995-02-16
Citations: 891 P.2d 477, 270 Mont. 63, 52 State Rptr. 78
Copy Citations