No. 1515. APPEAL FROM THE Circuit Court for Worcester County. Theodore R. Eschenburg, JUDGE.
Argued Before Wilner, C.j., Alpert, and Murphy, JJ.
The opinion of the court was delivered by: Murphy
In the Circuit Court for Worcester County, a jury (Hon. Theodore R. Eschenburg, presiding) convicted Brian Ralph Keirsey, appellant, of burglary, first degree rape, and related offenses. Pursuant to Md. Ann. Code art. 27, § 643B, appellant was sentenced to two consecutive life sentences without the possibility of parole for the burglary and first degree rape convictions. The other convictions merged. His appeal presents seven questions that we have renumbered and rephrased as follows:
I. Did the admission of DNA evidence violate due process of law?
II. Did the trial judge err by denying the defense expert access to relevant information about the State Police DNA laboratory?
III. Did the trial judge err in admitting evidence that DNA testing established a "match" between appellant's DNA and the perpetrator's DNA?
IV. Did the trial judge err by admitting the random match probability computed by the State Police DNA Laboratory using the Multiplication Rule?
V. Are appellant's mandatory life sentences without parole illegal because the State failed to prove the facts necessary for imposition of those sentences?
VI. Was imposition of two mandatory sentences of life without parole illegal?
VII. Must the sentence for burglary be vacated because that crime merges into first degree rape?
Appellant was charged with a rape and burglary that occurred in Ocean City on September 15, 1990. The victim was unable to identify her assailant. She made a tentative identification of her assailant's voice from a tape that police played for her. Michael Austin, the person whose voice she identified, was "excluded" on the basis of DNA testing.
The case was investigated by Worcester County Deputy Sheriff Stuart Murray, who learned that appellant had been arrested on unrelated charges shortly after the rape occurred. *fn1 Murray requested that appellant meet him at the Ocean City Police Headquarters. When they met at that location two days after the rape, appellant professed his innocence. He stated that in the early morning hours of September 15 he had been in the Dutch Bar until it closed, then went to the Kitchen Restaurant with friends, and ended up at the Thunderbird Motel where he was staying.
Appellant's criminal agency was established by expert testimony from Teresa Long, a supervisor in the Maryland State Police Crime Laboratory's biology unit ("MSPCL"). After giving a description of the DNA testing process, Long testified that appellant's DNA "matched" the DNA in the sperm recovered from the victim's vaginal swabs. According to Long, (1) the probability that someone selected at random would have appellant's DNA was 1 in 2,200,000; and (2) Michael Austin's DNA did not match the DNA recovered from the victim.
Appellant did not testify. His witnesses challenged the DNA evidence and raised an alibi defense. Dr. William Shields, a DNA expert, disagreed with Long's conclusion andcriticized the MSPCL's testing procedure. Shields ultimately opined that, even if the MSPCL's lab results were compatible with the FBI database used to calculate the probability of a random match, the probability of someone selected at random matching appellant's DNA profile was as low as 1 in 1,349. Kimberly Green testified that, on the morning of September 15, she was working at the Dutch Bar and served appellant a Long Island Iced Tea approximately every 15 minutes. She also testified that, after the bar closed, she was at the Kitchen Restaurant with appellant and others until approximately 3:30 a.m. Penny Miles, who dated appellant in the summer of 1990, described him as 6'2", 200 to 220 pounds, with a "roll of fat" around his stomach and tattoos on one arm. She denied that he spoke with a "hick country accent," but did say that he wore a gold chain around his neck and a gold watch.
Appellant contends that the admission of DNA evidence violated his due process rights because "[a] part of the due process guarantee is that an individual not suffer punitive action as a result of an inaccurate scientific procedure." Higgs v. Wilson, 616 F. Supp. 226, 230 (Ky. 1985). To violate due process, the introduction of the evidence must be "so extremely unfair that its admission violates 'fundamental concepts of justice.'" Dowling v. United States, 493 U.S. 342, 352, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990) (quoting United States v. Lovasco, 431 U.S. 783, 790, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977). No such violation occurred in this case.
Appellant contends that, because DNA evidence is "in a state of flux," whenever such evidence is offered, the accused has a due process right to a Frye-Reed hearing *fn2 to make surethat the evidence offered is considered to be the "best" (i.e., the most accurate, explicit, probative) at that moment by the relevant scientific community. There is no merit in that contention. The criminal defendant does not have a due process right to a Frye-Reed hearing every time the State offers scientific evidence.
Appellant presents the following challenges to the State's DNA evidence:
(1) The State's expert should have been prohibited from opining that appellant's DNA "matched" the perpetrator's DNA because:
(A) The MSPCL used an incorrect "match window."
(B) The MSPCL's internal controls were so inadequate that it was impossible to confirm that the RFLP testing was done properly in this case.
(2) The State's expert should have been prohibited from expressing an opinion about the statistical probability of someone other than appellant having the perpetrator's DNA because:
(A) The State's expert relied on statistical information contained in the FBI database, rather than on a database developed in the MSPCL where the RFLP test was actually performed.
(B) One of the four "probes" used by the State had a "questionable statistical independence" and should not have been included in the "bottom line" conclusion.
(C) The State's probability estimate was based on the "Multiplication Rule" (also known as the "product rule"), a methodology that is no longer generally accepted as reliable by the relevant scientific community.
Each of these challenges is discussed in parts III and IV of this opinion. In light of our disposition of those challenges, we do not reach the issue of whether a criminal defendant has adue process right to obtain the exclusion of unreliable scientific evidence that is admissible by statute.
The proponent of scientific evidence can satisfy the Frye-Reed test in three ways: (1) proving to the trial judge, through testimony and exhibits (including persuasive authority from other jurisdictions), that the relevant scientific community is in agreement that the technique at issue produces an accurate result; (2) asking the trial judge to take judicial notice of a reported opinion in which a Maryland appellate court has held that the technique at issue satisfies the Frye-Reed test; or (3) asking the trial judge to take judicial notice of a statute in the Annotated Code of Maryland that provides for the admissibility of the test results at issue. In this case, the State satisfied Frye-Reed by reliance on the applicable statute, and the defense made no contention that the relevant scientific community is now divided over the issue of whether RFLP testing produces accurate results.
There is a good reason why the defense decided against arguing that the RFLP testing technique cannot satisfy the Frye-Reed test. The reliability of RFLP test results has been established. The relevant scientific community agrees that RFLP testing is capable of determining whether persons' DNA do or do not "match" at a specific location on a particular chromosome. The legislature has expressly recognized RFLP as a reliable method of DNA profiling. So have appellate courts in other jurisdictions.
The only Frye-Reed challenge in this case was addressed to the State's statistical probability calculation. In part IV, we explain why the Frye-Reed test does not apply to estimates of statistical probability. We therefore affirm the trial judge's refusal to grant appellant's request for a Frye-Reed hearing on the State's DNA evidence.
Appellant made two separate motions requesting that his expert gain access to information contained in the MSPCL. The first motion requested that the State, pursuant to MarylandRule 4-263, "produce and permit the Defendant to inspect and copy all written reports or statements made in connection with this case by each expert consulted by the State, including the results of any...scientific tests, experiment or comparison...." Appellant never requested a ruling on this motion.
The second motion requested that Dr. Shields be allowed access to the MSPCL for a period of approximately eight hours so he could inspect the lab and assess the work done in this case. That motion was denied as overbroad by Judge Eschenburg who concluded that, "the Md. State Police Lab can not be turned over for inspection in all cases where a Defendant requests it. If this were permitted statewide, the lab would be in total chaos. [The defense] expert literally wants the lab turned over to him for inspection and questioning."
Appellant thereafter made no further request for access to the lab. Moreover, the following dialogue occurred during trial between the Court and appellant's counsel:
THE COURT: Wait a minute. There was a motion where you wanted to have your expert go, and he wanted, in effect, the court's order having the lab, in my judgment, turned over to your expert for review and study all these various documents and their equipment and everything else about it, and I denied it.
Is that what would have accomplished that, what you're talking about?
[DEFENSE COUNSEL 1]: No, Your Honor. This could have been accomplished by just simply providing the data.
THE COURT: Well, did you file any such motion? I can't remember. I don't remember that.
[DEFENSE COUNSEL 1]: Yes, your Honor.
THE COURT: So I denied it then, obviously; right?
[DEFENSE COUNSEL 1]: (Nodding head affirmatively).
THE COURT: Is that what you're saying?
[DEFENSE COUNSEL 1]: Well, Your Honor, I'll have Doctor Shields address that.
THE COURT: No. But Doctor Shields has nothing to do with whether or not I denied an order or granted it. Did I grant it or deny it, or did you even file such a motion?
[DEFENSE COUNSEL 1]: Yes, I did file a motion, Your Honor. And as of the date of trial, I never received a ruling.
THE COURT: Well, I asked you before court started if there were any undisposed trial motions, and I was told no.
[DEFENSE COUNSEL 2]: That's correct. And it was probably my fault in miscommunication. You did deny our request for a court order to go in, and that's all we're asking.
THE COURT: And that's that. Okay.
Appellant clearly abandoned the 4-263 motion in favor of the Motion to gain access to the MSPCL. His present complaint, alleging error in the denial of the 4-263 motion, comes much too late.
Appellant also contends that § 10-915 provides for more extensive and specific discovery in a DNA case and that the State failed to provide the necessary information. In the circuit court, however, appellant never alleged that the State failed to comply with its discovery obligation under the statute. The discovery issue has not been preserved for our review.
Md. Ann. Code (1989 Repl. Vol.), § 10-915(b) of the Courts and Judicial Proceedings Article ("the statute") provides in part that "in any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person...." In § 10-915(a)(3) of that statute, a DNA Profile is defined as "an analysis that utilizes the restriction fragment length polymorphism analysis of DNA resulting in the identificationof an individual's patterned chemical structure of genetic information."
DNA and the RFLP testing process have been described in a number of opinions, including Cobey v. State, 80 Md. App. 31, at 36-41, 559 A.2d 391 (1989). A brief summary, however, is necessary to provide the background for the evidentiary issues presented in this case.
[Deoxyribonucleic acid (DNA)] contains the...'genetic code' that defines who we are, what we look like, ...