State v. Passino

STATE_V_PASSINO.92-078; 161 Vt. 515; 640 A.2d 547

[Opinion Filed 18-Mar-1994]

[Motion for Reargument Denied 08-Apr-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-078


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Franklin Circuit


 Arthur Passino                               January Term, 1994


 Ronald F. Kilburn, J.

 James A. Hughes, Franklin County Deputy State's Attorney, St. Albans, for
    plaintiff-appellee

 Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
     Montpelier, and Arthur Passino, pro se, Swanton, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   Defendant Arthur Passino appeals his conviction for
 involuntary manslaughter.  He alleges that the trial court denied him his
 constitutional right to present evidence and confront witnesses against him.
 We agree and reverse.
      On the evening of January 20, 1990, Shirley LeClerc was found dead in a
 vacant apartment, across the hall from the apartment she shared with her
 husband in Enosburg.  She had been severely beaten and strangled, and
 evidence indicated that the victim had engaged in sex before her death.
 Soon after her husband, Urbain LeClerc, found the body, defendant was
 discovered in an adjacent apartment.  After speaking with LeClerc, defendant

 

 went to his mother's nearby home where he showered and, uncharacteris-
 tically, put several articles of clothing through the washing machine,
 including a pair of blue pants he had been wearing that day.
      Defendant was charged with felony murder, allegedly having killed the
 victim with malice aforethought during a sexual assault.  The nature of the
 crime made it likely that the perpetrator's clothes would have come in
 contact with the victim's blood.  Pursuant to warrant, police seized the
 pants to conduct tests on stains in the material.  A state police chemist
 identified four distinct stains containing human blood, which were cut from
 the pants and individually marked.
      These blood samples and other evidence were forwarded to the Federal
 Bureau of Investigation in Washington, D.C., along with hair, blood and
 other body fluid specimens taken from the victim, defendant, and the
 victim's husband.  The FBI subjected the samples to DNA profiling analysis,
 to determine whether any of the evidence could be traced to the individuals
 tested.  Tests on semen found on the victim showed defendant to be the
 source, and positively excluded the husband.  The FBI tested two of the
 four blood stains taken from defendant's pants; one produced inconclusive
 results, but the victim was positively excluded as the source of the other.
      As required by discovery rules, the State notified the defense of its
 intent to use the DNA evidence at trial to establish that defendant was the
 source of the semen found on the victim's body.  In response, defendant
 filed a motion in limine to preclude counsel from informing the jury of the
 DNA results in opening statements, contending that it was "unlikely that
 the DNA evidence for inclusion [will] be admitted."  The court heard testi-
 mony on the DNA evidence in four days of hearings held on May 6-9, 1991.

 

      To support introduction of the DNA profiling evidence identifying
 defendant as the source of semen, the State offered testimony from three
 expert witnesses:  Dr. Dwight Adams, an FBI biologist with expertise in DNA
 analysis of forensic samples and the application of the FBI's methods in
 population genetics; Dr. Eric Buel, a forensic chemist with the Vermont
 State Police also qualified as an expert in DNA analysis and its application
 to population genetics; and Dr. Charles Kilpatrick, a professor of zoology
 at the University of Vermont and expert in population genetics and DNA
 profiling.  The witnesses offered detailed testimony about the technique of
 DNA profiling and the procedures employed and results obtained in this
 particular case.(FN1)
      In essence, DNA profiling seeks to determine whether genetic material
 unique to an unknown source, such as evidence from a crime scene, matches
 genetic material from a known source, thereby linking the known source to
 the crime.  The process comprises two stages.  In the first stage, an x-ray
 image, or "autorad," of the DNA from the known and unknown sources is
 produced.  If the DNA from those sources does not match, then the test is
 either deemed inconclusive or the known source is positively excluded as the
 source of the unknown DNA.  If the DNA matches, the profiling proceeds to
 the second stage, wherein a statistical analysis of population frequencies
 is performed to determine that the known and unknown DNA match because they
 came from the same person, not because two unrelated individuals happen to
 have some identical DNA.

 

      In summarizing its position regarding admissibility of the DNA test
 results purportedly showing defendant as the source of semen, the State
 argued, and the record supports, that the only issue was the validity of the
 second stage of the DNA profiling, the FBI's statistical analysis.  In its
 argument on the DNA admissibility, the defense asserted that "D.N.A.
 evidence for inclusion, as offered in this case, is not proper evidence and
 the population frequency analysis is not proper evidence."  Defense counsel
 also argued, "It's our position that [V.R.E.] 401 and 403 are violated by
 receiving D.N.A. evidence for inclusion.  Exclusion is a substantially
 different matter.  Certainly when the exclusions are clear and unequivocal."
      In the suppression hearing, Dr. Adams testified that "an exclusion is
 absolute," in that the known source could not be the source of a particular
 body fluid.  He also reported that of two blood samples taken from
 defendant's pants, one produced no DNA results, and the other showed "no DNA
 profiles which resembled the victim's blood whatsoever."  In corroboration
 of this testimony, Dr. Kilpatrick opined that the one bloodstain that gave a
 result matched defendant's DNA, effectively ruling out the victim as the
 source of the blood.
      The court's order excluding the DNA evidence expressly acknowledged
 that defendant contested only the FBI's probability calculations, which
 purportedly ruled out a coincidence in the match between defendant and semen
 found on the victim's body.  The discussion was confined to the composition
 of the comparison database and the assumptions made about defendant's
 ancestry, two critical components of an accurate probability assessment.
 The court found the FBI probability analysis flawed, and held that
 "[b]ecause the probability estimates are such an integral part of the FBI's

 

 DNA profiling, the test results in this case must be suppressed," and added
 that results showing a match are not admissible without reliable statistics.
      On June 4, 1991, the eighth day of a sixteen-day trial, the defense
 moved for compensation and expenses for the testimony of Dr. Kilpatrick as
 an expert witness.  This came the day after the court decided to admit
 defendant's pants into evidence.  In argument on the motion held that same
 day, defense counsel explained that Dr. Kilpatrick's testimony was needed to
 introduce the test results that had excluded the victim as the source of
 blood taken from one of the stains on defendant's pants.  The State
 vigorously protested presentation of any DNA evidence.  The prosecution
 pointed to the court's ruling in limine, the lack of requisite advance
 notice, and the fact that the defense counsel had made every effort to cull
 from the venire anyone with knowledge of DNA testing.
      The defense countered that the motion in limine and hearings on the DNA
 evidence dealt only with the propriety of DNA evidence purportedly including
 defendant as the source of semen; the court's order did not preclude tests
 excluding the victim as the source of blood.  The defense noted that,
 despite the lack of formal notice, Dr. Kilpatrick was listed as a State's
 witness, and had testified at length in the in limine hearing on the DNA
 evidence.  The defense contended that a fair trial hinged on the ability to
 present this exculpatory evidence.  The motion was denied, and defendant was
 precluded from presenting the exculpatory DNA evidence.
      Later in the trial, the State introduced the results of traditional
 blood serology tests conducted on one of the blood stains not subjected to
 DNA analysis.  The spot tested as type "A," the victim's blood type.
 Defendant attempted to cast doubt on the results by suggesting that the

 

 bloodstain could in fact have been "AB," defendant's blood type.  The
 defense also contended that defendant and the victim had engaged in
 consensual intercourse, and that the victim's husband had killed his wife in
 a jealous rage after discovering her affair with defendant.  After three
 days of deliberation, the jury delivered a verdict of guilty on the lesser-
 included offense of involuntary manslaughter.  On appeal, defendant contends
 he deserves a new trial because the trial court denied him his
 constitutional right to present the exculpatory DNA evidence.
                                     I.
      The trial court excluded the DNA evidence as a sanction for failure to
 notify the State of the intended use of the scientific evidence and expert
 witnesses, Drs. Kilpatrick and Buel.  Rule 16.1 of the Rules of Criminal
 Procedure empowers the trial court to require the defendant to disclose
 proposed scientific or expert evidence.  V.R.Cr.P. 16.1(b).  The rule also
 provides that, "[o]n request of the prosecuting attorney, the defendant's
 attorney shall disclose the names and addresses of persons whom he intends
 to call as witnesses at the trial."  V.R.Cr.P. 16.1(c).  In this context,
 Rule 16.1 strives to ensure the prosecution ample opportunity for pretrial
 preparation to respond to evidence involving medical or scientific
 expertise.  See Reporter's Notes, V.R.Cr.P. 16.1(b).
      The trial court may order appropriate sanctions for violations of
 discovery rules.  See V.R.Cr.P. 16.2(g).  Our review of the sanctions
 imposed, including exclusion of expert testimony, is limited to an abuse of
 discretion.  State v. Meyers, 153 Vt. 219, 223, 569 A.2d 1081, 1084 (1989).

 

 The discovery sanction aside, "[a] court's determination of whether to
 exclude expert testimony is discretionary and will not be disturbed" absent
 "a clear abuse of discretion."  Id. at 224, 569 A.2d  at 1085.
      Nevertheless, the exclusion of a defendant's proffered evidence
 implicates the constitutional right to present a defense and confront
 adverse witnesses.(FN2)  Michigan v. Lucas, 111 S. Ct. 1743, 1746 (1991); see
 Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987).  The right "'may, in
 appropriate cases, bow to accommodate other legitimate interests in the
 criminal trial process.'"  Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting
 Chambers v. Mississippi, 410 U.S. 284, 295 (1973)); State v. Hugo, 156 Vt.
 339, 345, 592 A.2d 875, 879 (1991).  But restrictions on the right to
 present evidence and confront witnesses "may not be arbitrary or
 disproportionate to the purposes they are designed to serve."  Rock, 483 U.S.  at 56.  A defendant's Sixth Amendment rights may be violated by a
 discovery sanction that entirely excludes a defendant's proffered evidence.
 See Taylor v. Illinois, 484 U.S. 400, 409 (1988).
      In Lucas, the Supreme Court reiterated that in most cases, alternative
 sanctions are "'adequate and appropriate.'"  Lucas, 111 S. Ct.  at 1748
 (quoting Taylor, 484 U.S. at 413).  Circumstances could warrant preclusion
 if a less severe penalty "'perpetuate[s] rather than limit[s] the prejudice
 to the State and the harm to the adversary process,'" as would be the case
 if the defense engages in willful misconduct to gain a tactical advantage.
 Id. (quoting Taylor, 484 U.S. at 413).  To assess the propriety of a
 preclusion sanction, this Court has employed a balancing test suggested in

 

 Taylor, which involves weighing a defendant's right to offer testimony
 against "'[t]he integrity of the adversary process . . ., the interest in
 the fair and efficient administration of justice, and the potential
 prejudice to the truth-determining function of the trial process.'"  State
 v. Edwards, 153 Vt. 649, 649, 569 A.2d 1075, 1076 (1990) (quoting Taylor,
 484 U.S. at 414-15).  In light of this standard, we believe the trial court
 overstepped the bounds of its discretion in preventing defendant from
 offering the DNA evidence.
      The court enumerated three reasons for precluding DNA evidence that
 excluded the victim as the source of blood.  First, the defense gave the
 State insufficient notice to rebut the complex DNA profiling evidence,
 which, the court said, would have greatly prejudiced the prosecution.
 Second, the court perceived that defendant's request to introduce the DNA
 evidence of the blood test was inconsistent with defense counsel's efforts
 to select a jury with no knowledge of DNA profiling, suggesting an attempt
 to use the evidence to its own advantage.  Finally, the court noted that the
 proposed DNA evidence, which excluded the victim as the source of blood, was
 obtained through testing of only one of the four blood stains found on
 defendant's pants.  Testing of one of the remaining stains through
 traditional blood typing techniques showed that the blood was type "A," the
 victim's blood type.  The court characterized the different analyses
 performed on different stains as "inconsistent testing" that warranted
 exclusion of DNA evidence.
      As to the first basis for preclusion, defendant concedes the failure to
 provide the requisite advance notice of Dr. Kilpatrick as a defense witness.
 Defense counsel offers no explanation for the failure to inform the State

 

 formally about the proposed use of exculpatory DNA evidence.  Nothing,
 however, suggests that defense counsel willfully disregarded discovery
 requirements to obtain an unfair tactical advantage.  Moreover, the State
 was aware that defendant was emphasizing the distinction between
 inculpatory and exculpatory DNA profiling.  Defendant's original motion in
 limine was directed to "DNA evidence for inclusion."  The hearings on the
 motion to exclude the DNA evidence focused on the validity of the FBI's
 methods of statistical analysis to rule out coincidences in the event of a
 match.  Finally, defense counsel's summary argument at the close of the
 hearings clearly indicated that defendant's position with regard to
 exculpatory DNA profiling was another matter entirely.  Defense counsel
 also informed the court that they would not offer the DNA evidence if the
 court did not admit defendant's pants into evidence.
      Even if the prosecution had no inkling of defendant's intent to offer
 the exculpatory evidence before the motion for Dr. Kilpatrick's witness
 fees, the protestations of extreme prejudice are not supported by the
 prosecution's representations at the suppression hearing.  First, at the
 hearing the State emphasized, and the record bears out, that the only
 disputed issue was the determination of probabilities of a match, not the
 methods employed to create an autorad image that could definitively exclude
 a known source such as the victim.  The State also offered Drs. Kilpatrick
 and Buel, defendant's proposed witnesses, as experts thoroughly versed in
 the FBI protocols used by their expert Dwight Adams to produce the autorads.
 All three of the State's experts agreed that the victim was not the source
 of blood in the one stain of the two tested that produced usable
 information.  The hearing record shows that the State had thoroughly

 

 prepared these witnesses to offer testimony no different from that proposed
 by defendant less than one month later, at trial.
      The State contends that it could not meet DNA evidence without the
 testimony of Dr. Adams, who performed the original tests.  But at the
 suppression hearing, the prosecution specifically offered Dr. Kilpatrick as
 an expert familiar with all facets of the FBI DNA profiling procedure, who
 would attest to the acceptance of the FBI testing protocol in the scientific
 community.  The State also represented that its witness had reviewed Dr.
 Adams' report and the test results, "where he finds a match, where the
 quality controls seem to have worked, and whether there were any problems
 that should have been noted on the autorads."  Dr. Kilpatrick's testimony at
 the suppression hearing bore out the State's offer of proof.  The late
 notice might have imposed some burden on the State, but the circumstances of
 this case belie the prosecution's contention that the burden would have been
 undue and extreme, especially if given time to prepare for cross-
 examination.
      The court's second basis for preclusion was defense counsel's allegedly
 studied effort to keep venire persons with any knowledge of DNA profiling
 off the jury.  Assuming this is true, the jury comprised individuals with no
 preconceived notions regarding this scientific identification procedure.
 They would have been educated by expert witnesses, whose function was to
 inform about matters such as DNA profiling that exceed the average person's
 knowledge and experience.  See V.R.E. 702.  The State, as opposing party,
 could have questioned any of the bases for opinions offered by the experts
 it originally intended to put on the stand to offer a presumably identical
 explanation of DNA profiling.  We fail to see how the defense counsel's

 

 efforts at jury voir dire could have redounded to defendant's unfair
 advantage.  In short, working for a jury ignorant of DNA profiling and
 offering DNA profiling evidence are not necessarily inconsistent courses of
 action that would warrant preclusion of the evidence.
      The trial court's third and final basis for preclusion was the
 "inconsistent testing" performed on different blood stains taken from
 defendant's pants.  Conventional testing of one spot revealed blood of the
 victim's type; DNA profiling of another spot conclusively excluded the
 victim as the source.  The results are not necessarily inconsistent.  The
 jury could have concluded that both tests were accurate, so that one stain
 was blood from the victim and the other was not.  The jury also could have
 found that the DNA test raised doubt concerning the reliability of the blood
 serology test.  In any event, matters of credibility and weight of evidence
 are for the jury as fact-finder, not the court.  State v. Daigle, 136 Vt.
 178, 180, 385 A.2d 1115, 1116 (1978).
      We believe that defendant was considerably prejudiced by preclusion of
 the exculpatory DNA evidence.  Proof that blood of the victim's type was
 found on defendant's pants formed an important link between defendant and
 the crime.  Though the defense contended that the degraded condition of the
 blood had produced a false reading, the exculpatory DNA evidence would have
 rebutted the State's evidence more effectively, or at least would have
 created doubt regarding defendant's connection to the scene.  In other cases
 in which we have approved the sanction of preclusion, the cumulative nature
 of the proffered evidence helped tip the balance toward exclusion.  See
 Hugo, 156 Vt. at 345, 592 A.2d  at 879; Edwards, 153 Vt. at 649, 569 A.2d  at

 

 1076.  Here, the DNA evidence was neither cumulative nor peripheral to the
 question of guilt.
      In summary, our analysis leads us to conclude that the trial court
 should have imposed a sanction less severe than exclusion of evidence for
 defense counsel's failure to comply with notice requirements.  Absent
 evidence that the defense willfully evaded compliance to gain an unfair
 advantage, a lesser sanction would not undermine the integrity of the
 adversary process.  Presenting the exculpatory DNA profiling results to the
 jury, which the State had endorsed in the suppression hearing as highly
 relevant and probative evidence, would have promoted the fair and efficient
 administration of justice and advanced the truth-determining function of the
 trial process.  See Taylor, 484 U.S.  at 414-15.  The trial court's sanction
 unduly trammeled defendant's right to present evidence, and therefore was an
 abuse of discretion.  In light of the importance of this evidence to
 defendant's case, and the fact that the evidence was not cumulative and
 would tend to rebut the State's test evidence, we cannot say that the
 erroneous exclusion was harmless beyond a reasonable doubt.  State v. Lynds,
 158 Vt. 37, 42-44, 605 A.2d 501, 503-04 (1991).  Defendant must be given a
 new trial.
      Reversed and remanded.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice

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                             Footnotes


FN1.    For a detailed description of the DNA profiling process, see United
 States v. Jakobetz, 747 F. Supp. 250 (D. Vt. 1990), aff'd, 955 F.2d 786 (2d
 Cir. 1992).

FN2.    "In all criminal prosecutions, the accused shall enjoy the right . . .
 to be confronted with the witnesses against him . . . ."  U.S. Const.
 Amend. VI.