Appeal from Superior Court, King County; 91-1-02802-4. Honorable Robinson, Judge.
As Amended October 21, 1996.
Authored by Barbara A. Madsen. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Gerry L. Alexander, Philip A. Talmadge, Rosselle Pekelis
The opinion of the court was delivered by: Madsen
MADSEN, J. William Marlin Jones appeals a conviction of first degree rape and second degree robbery, primarily arguing that the trial court erred in admitting expert testimony involving the use of DNA identification evidence. We conclude that the DNA evidence was admissible, affirm the conviction, and uphold imposition of an exceptional sentence.
Margaret Hill, a 77-year-old woman who lived alone, was awakened in her home by an intruder standing over her, shining a flashlight in her eyes. The man put his hand over her mouth and demanded, "where is the money, lady?" In fear for her safety, Hill led the intruder to her basement freezer and gave him some money she had hidden there. Clerk's Papers (CP) at 119. After taking the money, the intruder ordered Hill back to the bedroom where he raped her vaginally. During the rape, he again shined the flashlight in her eyes, and said, "It's been a while, hasn't it?" CP at 119. At no time was Hill able to see the man clearly in the light. Hill described her attacker as "a clean-shaven, black male with short hair; five feet, two inches to five feet, three inches; a thin, small man with big eyes and nothing unusual about the eyes." CP at 119.
Police preserved hair and semen samples for forensic analysis. The semen samples and a blood sample taken from Jones were sent to the Federal Bureau of Investigation (FBI) crime lab for deoxyribonucleic acid (DNA) analysis, which determined that Jones' DNA profile matched that of the semen sample taken from Hill on the night of the rape. Dr. Ranajit Chakraborty calculated the chance of another person's DNA profile matching that of the defendant's to be 1 in 1.2 million, using a method called the "interim ceiling principle." CP at 120. Samples of Jones's semen and blood were also sent to the Washoe County Crime Lab. That lab also found a match between the DNA profiles in the semen and blood, and calculated the chance that another person's DNA profile could match that of the defendant's as 1 in 8 million.
The trial court held a Frye hearing to determine the admissibility of the DNA identification testimony. The State called the following witnesses: Audrey Lynch, FBI special agent and the person who interpreted Jones's DNA test results; Richard Gelinas, molecular biologist; Norman Buroker, population geneticist; Dr. Ranajit Chakraborty, statistician and human population geneticist; and, as a rebuttal witness, Berch Henry, criminalist of the Washoe County, Nevada, crime lab, who performed the second DNA test.
The defense called Randall Libby, molecular biologist; Lawrence Mueller, population geneticist; and Seymour Geisser, statistician. The bulk of expert testimony dealt with the procedures used by the FBI in declaring a match and the statistical methods of calculating a random match probability.
The court ruled the DNA identification evidence admissible because the procedures used by the FBI in declaring a match and the use of the ceiling principle were generally accepted in the scientific community.
Following the Frye hearing, Jones waived his right to a jury trial and agreed to a trial on stipulated facts. He was convicted of first degree rape and second degree robbery.
The trial court sentenced Jones to an exceptional term of 280 months.
In support of the exceptional sentence, the court found that the victim was a 77-year-old woman who lived alone, and concluded that she was particularly vulnerable and incapable of resistance due to her advanced age. The trial court also found that Jones selected the elderly to victimize. DNA Evidence Admissibility of novel scientific evidence depends upon whether the evidence sought to be introduced is derived from a scientific theory or principle that "has achieved general acceptance in the relevant scientific community." State v. Cauthron, 120 Wash. 2d 879, 886, 846 P.2d 502 (1993) (quoting State v. Martin, 101 Wash. 2d 713, 719, 684 P.2d 651 (1984)). The "general acceptance" test looks to the scientific community to determine whether the evidence in question has a valid, scientific basis. Cauthron, 120 Wash. 2d at 887. If there is a significant dispute among experts in the relevant scientific community as to the validity of the scientific evidence, it is not admissible. Id. at 887. Washington thus follows the Frye standard for admissibility, as we have just reaffirmed in State v. Copeland, 130 Wash. 2d 244, 922 P.2d 1304 (1996). See Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014, 34 A.L.R. 145 (D.C. Cir. 1923). We reject, as we did in Copeland, the State's invitation to adopt the standard in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Initially we note that while the trial court misstated the Frye test, the error is not significant, as our review is de novo under the correct ...