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.