Troxell v. State

ATTORNEY FOR APPELLANT

John H. Watson
Public Defender
Sunman, Indiana




ATTORNEYS FOR APPELLEE

Steve Carter
Attorney General of Indiana

Adam M. Dulik
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

JAMES TROXELL,                    )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 69S00-0101-CR-2
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE RIPLEY CIRCUIT COURT
                      The Honorable Carl H. Taul, Judge
                         Cause No. 69C01-9809-CF-43
__________________________________________________________________


                              ON DIRECT APPEAL

__________________________________________________________________

                              November 22, 2002

BOEHM, Justice.
      James Troxell was convicted of burglary, attempted rape,  and  battery
and sentenced to eighty years imprisonment.  In this direct appeal,  Troxell
challenges the chain of custody of DNA samples from him and the  victim  and
also contends that because the conclusions as to DNA  matches  were  derived
by Short Tandem Repeat  analysis  they  were  not  properly  admitted  under
Evidence Rule 702(b).  We affirm the trial court.

                      Factual and Procedural Background


      In the early morning of June 17, 1997, the victim was awakened in  her
bed by a punch in the face.  After  several  blows,  the  attacker  stopped,
rose and walked to the hallway.  The victim felt pain  in  her  vagina,  but
did not know whether penetration had occurred.  After she attempted to  hide
under the bed, her assailant returned and ordered oral sex, but left  before
the victim complied.  The victim never  saw  the  intruder’s  face.   Police
determined that her family room door had been kicked in, and  collected  her
bedding and clothing, some hairs from the floor,  and  a  few  other  items.
The victim was taken to the hospital, where a sample  of  her  blood,  hair,
and saliva were taken.
      Police questioned Troxell, who lived nearby,  and  noticed  suspicious
marks on his hand.  After further investigation, Troxell became  a  suspect.
Subsequent DNA testing of the hair found in the bedroom determined that  the
likelihood of a white male other than Troxell as the source of the  DNA  was
one in 230  trillion.   The  victim  also  testified  that  she  had  “never
invited” Troxell into her home.  A jury convicted Troxell of burglary  as  a
Class A felony, burglary as a Class B felony, residential entry as  a  Class
D felony, attempted rape as a Class  B  felony,  and  battery  resulting  in
serious  bodily  injury  as  a  Class  C  felony.   The  jury   subsequently
adjudicated Troxell a habitual offender.  After merging the Class  B  felony
burglary and the Class D felony residential entry into the  Class  A  felony
burglary, the trial court sentenced Troxell to a term of eighty years.
                            I.  Chain of Custody
      Troxell claims error in the trial court’s  admission  of  the  results
from the  DNA  tests  of  both  hair  samples  found  in  the  bedroom.   In
particular, Troxell claims error with  regard  to  the  victim’s  rape  kit,
contending there was improper supervision when the  rape  kit  was  obtained
and that no one responsible for collecting the victim’s rape  kit  testified
at trial.  Troxell also contends that his own blood  samples  were  admitted
despite an improper chain of custody at the FBI laboratory.
      A.  The Victim’s Sample
      Troxell asserts error in the chain of custody of the  victim’s  sample
from the rape kit before it was placed in police custody.  Troxell  contends
that because the DNA found at the crime scene must exclude the victim to  be
probative, the victim’s DNA from the rape kit was subject to the same  chain
of custody required for the defendant’s DNA.  Whatever  the  merits  of  his
challenge to the chain of custody, any error in the chain of custody of  the
victim’s DNA was harmless.   Troxell’s  DNA,  not  the  victim’s,  supported
Troxell’s conviction.   The  identification  of  the  perpetrator,  not  the
victim, was the significance of this evidence.  Any chain of custody  issues
related to the victim’s DNA are irrelevant, as long  as  Troxell’s  own  DNA
was properly admitted and established to be from the crime scene.
      B.  Troxell’s Sample
      Troxell also challenges the chain of custody of his  own  DNA  sample.
Specifically he asserts that the State failed to establish  a  proper  chain
of custody within the  FBI  laboratory.   Because  there  was  no  chain  of
custody objection to this evidence, this claim is not  available  on  appeal
unless it constituted fundamental error.  Cutter v. State, 725  N.E.2d  401,
406 (Ind. 2000).  The State bears a higher burden to establish the chain  of
custody of “fungible” evidence,  such  as  blood  and  hair  samples,  whose
appearance is indistinguishable to the  naked  eye.  Culver  v.  State,  727
N.E.2d 1062, 1068 (Ind. 2000); see also Bivins v.  State,  433  N.E.2d  387,
389 (Ind. 1982)  (acknowledging  that  hair  is  characterized  as  fungible
evidence).  To establish a proper chain of  custody,  the  State  must  give
reasonable  assurances  that  the  evidence  remained  in   an   undisturbed
condition.  Cliver v. State, 666 N.E.2d 59, 63 (Ind.  1996).   However,  the
State need not establish a perfect chain of  custody,  and  once  the  State
“strongly suggests” the exact whereabouts of the evidence, any  gaps  go  to
the weight of the evidence and not to  admissibility.   Wrinkles  v.  State,
690 N.E.2d 1156, 1160 (Ind. 1997); Jenkins v. State,  627  N.E.2d  789,  793
(Ind. 1993) (noting that failure  of  FBI  technician  to  testify  did  not
create error).  Moreover, there  is  a  presumption  of  regularity  in  the
handling of evidence by officers, and there is a presumption  that  officers
exercise due care in handling their duties.  Wrinkles, 690 N.E.2d  at  1160;
Culver, 727 N.E.2d at 1067.  To mount a successful challenge  to  the  chain
of custody, one must present evidence that  does  more  than  raise  a  mere
possibility that the evidence may have  been  tampered  with.   Cliver,  666
N.E.2d at 63.
      Indiana State Police Sergeant Lewis  collected  the  evidence  at  the
crime scene, including the bedding and the carpet sweepings  that  contained
the hairs, locked it in his  van,  and  transported  it  to  the  Versailles
Indiana State Police Post.  At the post, Sergeant Lewis locked the  evidence
in the evidence locker  until  it  was  shipped  to  Special  Agent  Douglas
Deedrick at the FBI laboratory.  At trial, Deedrick explained  the  protocol
that the Bureau follows upon the receipt of items of evidence for  analysis.
 He testified that the evidence first goes  through  an  X-ray  facility  to
make sure that the evidence is safe.  From there, the evidence  is  sent  to
an information center where information about the  case  and  the  evidence,
including an inventory of the evidence, is entered  into  a  computer.   The
items are then sent for processing and analysis.   Special  Agent  Guerrieri
testified to the FBI’s quality  control  processes.   Guerrieri  also  noted
that the FBI rechecks its results to further ensure accuracy.
      Additionally, two agents completed three tests comparing the DNA  from
hair and blood samples collected from the victim  and  Troxell  to  the  DNA
from hair found in the victim’s bedroom.   All  of  the  test  results  were
consistent.  Although the  record  contains  no  specific  dates  and  times
documenting the movement of Troxell’s samples within the FBI processes,  the
absence of this information goes to the weight of the evidence  and  not  to
its admissibility.  Jenkins,  627  N.E.2d  at  793  (Ind.  1993).   In  sum,
Troxell points to the possibility that his DNA  sample  may  have  been  the
subject of tampering but  he  points  to  no  evidence  in  support  of  the
allegation.  Because of the presumption of regularity in handling  evidence,
there was no error in admitting this evidence, let alone fundamental error.
                    II.  Short Tandem Repeat DNA Analysis
      Troxell last claims that the trial court erred in  admitting  the  DNA
test results from  the  FBI  laboratory,  which  used  Short  Tandem  Repeat
analysis to establish the minuscule  probability  of  error  in  identifying
samples from both the victim and Troxell.   A  number  of  courts  have  set
forth the science underlying STR analysis.  A more complete  explanation  is
provided in United States v. Trala, 162 F. Supp. 2d 336 (D. Del. 2001).   In
simplified terms, STR provides  a  more  statistically  reliable  result  by
comparing more loci among  the  huge  number  comprising  a  strand  of  one
human’s DNA with that of another.  Id. at 340-41.  The results from the  STR
analysis in this case indicated that the chance  that  a  white  male  other
than Troxell was the source of the hair found in the victim’s room  was  one
in 230 trillion.  Troxell argues that STR is  too  new  to  be  reliable  or
accepted in the relevant scientific community and that evidence  based  upon
STR analysis was unduly prejudicial.  This Court has noted that  “the  words
‘DNA test results’ are not magic words which, once uttered, cause the  doors
of admissibility to open.”  Smith v. State, 702 N.E.2d 668, 672 (Ind.  1998)
(quoting Harrison v. State, 644 N.E.2d 1243,  1251  (Ind.  1995)).   Rather,
DNA testing is admissible if the trial court  is  satisfied  that:  (1)  the
scientific principles upon which the expert testimony  rests  are  reliable;
(2) the witness is qualified; and (3) the  testimony’s  probative  value  is
not substantially outweighed by the dangers of unfair prejudice.  Ingram  v.
State, 699 N.E.2d 261, 262 (Ind. 1998).  Under Indiana  Evidence  Rule  702,
no specific test is required to establish the reliability  of  a  scientific
process.  McGrew v. State, 682 N.E.2d 1289, 1292  (Ind.  1997).   Rather  we
have permitted trial courts to consider: (1) whether the technique has  been
or can be empirically tested; (2) whether the technique has  been  subjected
to peer review and publication; (3) the known or potential  rate  of  error,
as well as the  existence  and  maintenance  of  standards  controlling  the
technique’s operation;  and  (4)  general  acceptance  within  the  relevant
scientific community.  We review the trial court’s  determination  to  admit
evidence based  on  a  scientific  process  under  an  abuse  of  discretion
standard.  Ingram, 699 N.E.2d at 263.
      The trial court conducted a hearing as to  the  admissibility  of  the
STR test results.  Special Agent Guerrieri noted that after the  development
of the STR test, the test underwent a  thorough  validation  process  before
being put into service by the  FBI  in  the  late  1990s,  before  Troxell’s
samples were analyzed.  He also stated that the protocol  used  by  the  FBI
has been subjected to technical review by its own scientists and by  outside
experts.  The State introduced several  articles  in  peer  review  journals
that validated the STR testing process.  Special Agent Guerrieri also  noted
that at the time of trial, over 140 laboratories performed STR testing.   He
explained that STR testing is replacing other forms of  testing  because  it
is more efficient and effective.  He also described the lab’s  processes  to
avoid  contamination  and  testified  that  the  lab  regularly  tests   the
proficiency of  its  own  analysts.   Finally,  Guerrieri  stated  that  STR
analysis is generally accepted in the relevant scientific community.
      Other courts have reached the same  conclusion.   See  Trala,  162  F.
Supp. 2d. at 336; State v. Allen, 85  Cal.  Rptr.  2d  655  (Cal.  Ct.  App.
1999); State v. Schreck, 22 P.3d 68 (Colo. 2001); Lemour v. State,  802  So.
2d 402 (Fla. Dist. Ct. App. 2001); Commonwealth v. Rosier,  685  N.E.2d  739
(Mass. 1997); State v.  Jackson,  582  N.W.2d  317  (Neb.  1998);  State  v.
Deloatch, 804 A.2d 604 (N.J. Super. Ct. Law Div. 2002); New York  v.  Owens,
725 N.Y.S.2d 178 (N.Y. Sup. Ct. 2001); Fanniel v.  State,  No.  01-00-00732-
CR, 2002 Tex. App. LEXIS 2260  at  *1  (Tex.  Crim.  App.  March  28,  2002)
(unpublished); State v. Butterfield, 27 P.3d 1133  (Utah  2001).   Based  on
the testimony of Special Agent Guerrieri, the reported  decisions  in  other
jurisdictions, and what seems to us to be the  clear  weight  of  scientific
opinion that STR is now refined and reliable technology,  we  conclude  that
the trial court was well within its discretion  in  finding  the  scientific
principles of STR testing to be  reliable  and  generally  accepted  in  the
relevant scientific community.
                                 Conclusion
      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.