Moore v. State

Oscar E. Moore v. STATE of Arkansas

CR 94-590                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1996


1.   Trial -- declaration of mistrial discussed -- trial court
     given wide discretion in granting or denying. -- Declaring a
     mistrial is a drastic remedy and proper only where the error
     is beyond repair and cannot be corrected by any curative
     relief; the trial court should resort to mistrial only where
     the error complained of is so prejudicial that justice cannot
     be served by continuing the trial or when the fundamental
     fairness of the trial itself has been manifestly affected;
     since the trial court is in a better position to determine the
     effect of a remark on the jury, it has wide discretion in
     granting or denying a motion for a mistrial and its discretion
     will not be disturbed except where there is an abuse of
     discretion or manifest prejudice to the movant; an admonition
     to the jury usually cures a prejudicial statement unless it is
     so patently inflammatory that justice could not be served by
     continuing the trial. 

2.   Trial -- testimony so prejudicial admonition to jury did not
     cure it -- trial court's denial of mistrial an abuse of
     discretion. -- The witness's unresponsive testimony that the
     appellant had admitted he killed another woman was so
     prejudicial that it could not be cured by an admonition to the
     jury, the trial court's denial of the motion for mistrial was
     abuse of discretion in the face of such a patently
     inflammatory and prejudicial statement.  

3.   Constitutional law -- taking of blood not a violation of Fifth
     Amendment -- protections of Fifth Amendment do not extend to
     demonstrative, physical tests. -- The protections of the Fifth
     Amendment do not extend to demonstrative, physical tests, but
     are intended to immunize a defendant from providing the State
     with evidence of a testimonial or communicative nature; in
     determining whether evidence is testimonial in nature the
     courts look to see if the activity performed is for the
     purpose of communication, such as a gesture; if it is, the
     activity is privileged; the privilege against self-
     incrimination does not bar compelled intrusions into the body
     for blood to be analyzed for alcohol content.  

4.   Criminal law -- determination whether magistrate had a
     substantial basis for finding probable cause -- totality of
     circumstances approach used. --  The court applies a "totality
     of circumstances" approach in determining whether the neutral
     and detached magistrate had a substantial basis for concluding
     that probable cause existed; the task of the issuing
     magistrate is simply to make a practical, common sense
     decision whether, given all the circumstances set forth in the
     affidavit before him, including the "veracity" and "basis of
     knowledge" of persons supplying hearsay information, there is
     a fair probability that contraband or evidence of a crime will
     be found in a particular place; the duty of a reviewing court
     is simply to ensure that the magistrate had a "substantial
     basis for concluding that probable cause existed." 

5.   Criminal law -- trial court had substantial basis on which to
     find probable cause to grant the order for blood withdrawal. -
     -  The trial court had a substantial basis on which to
     conclude that probable cause existed to grant the order for
     blood withdrawal where, in addition to the statement of the
     witness, the affidavit of the state police investigator in
     support of the Motion for Disclosure recited numerous facts
     upon which a finding of probable cause could be based
     including that he had been informed by a witness that the
     evening prior to the discovery of the victim's body appellant
     had informed the witness that he had killed the victim; that
     black, high top tennis shoes that had been recovered from
     appellant's bedroom matched the print of a large tennis shoe
     that was lifted and preserved from the victim's bedroom; that
     appellant was seen with a large amount of money on the night
     after the murder, which was quite unusual because appellant
     did not have a job; and that because she kept her doors locked
     and would not unlock the door unless she knew the caller, the
     killer was probably known by the victim.

6.   Witnesses -- particular facts bearing on an informant's
     reliability may be required -- no such requirement where the
     witness is a good citizen and not an informant. -- An affiant
     must demonstrate particular facts bearing on an informant's
     reliability as required by Ark. R. Crim. P. 13.1; however, no
     additional support for the reliability of witnesses is
     required where the witness volunteered the information as a
     good citizen and not as a confidential informant whose
     identity is to be protected.

7.   Witnesses -- witness not an informant -- court had substantial
     basis upon which to conclude that there was probable cause to
     order the taking of the appellant's blood. -- Where the
     witness, although an admitted drug seller and so perhaps not
     a model citizen, in this instance did not play the role of an
     informant, instead he voluntarily went to the police with his
     story and gave a blood sample for DNA analysis when requested
     by the police, clearly, there was a substantial basis for the
     court to conclude that probable cause existed to order the
     taking of appellant's blood.

8.   Search  & Seizure -- taking of blood sample not an
     unreasonable search -- there was no unjustified element of
     personal risk and pain. -- Appellant's contention that the
     search was not reasonable because his blood was drawn in the
     police station was without merit where he was taken from his
     cell to the sheriff's office, where his blood was drawn in
     private, by a physician; a minor intrusion into the body
     performed in a reasonable manner (by needle) in a hospital by
     a physician, meets the Fourth Amendment test of
     reasonableness; here the appellant's blood was drawn by a
     physician, not a police officer; as blood is routinely drawn
     by nurses, technicians, and other non-physicians, frequently
     in non-medical facilities, appellant was not in this instance
     subjected to an "unjustified element of personal risk and
     pain"; consequently the manner in which appellant's blood was
     taken did not constitute an unreasonable search, in violation
     of the Fourth Amendment.
                                
9.   Witnesses -- conflicts in testimony of witnesses -- trial
     court must resolve. -- Resolution of conflicts in the
     testimony of the witnesses is for the trial court to resolve. 

10.  Discovery -- discovery violations -- standard of review on
     imposing sanctions. -- The standard of review on imposing
     sanctions for discovery violations is whether there has been
     an abuse of discretion; when there has been a failure to
     comply with discovery procedures, a trial court is not
     required to suppress evidence unless prejudice will result. 

11.  Criminal procedure -- blood samples properly taken -- even
     assuming the rules were violated, appellant failed to
     demonstrate prejudice. -- Although appellant argued that he
     was deprived of counsel when his blood was drawn, it was clear
     that he initially caused the delay in the appointment of
     counsel by representing to the judge at his probable cause
     hearing that he had already hired an attorney; appellant did
     not explain how prejudice might have occurred because an
     attorney was not present when the blood samples were taken;
     nor did he explain how the detailed investigator's affidavit
     presented with the Motion for Disclosure failed to meet the
     standard for probable cause for search warrants, or could have
     been attacked; even assuming a violation of Ark. R. Crim. P.
     18.1(b) occurred, the court could not say that appellant had
     demonstrated that he suffered prejudice as a result.

12.  Appeal & error -- even constitutional arguments raised for the
     first time on appeal will not be considered. -- The court will
     not consider even constitutional arguments not raised before
     the trial court.  

13.  Evidence -- admissibility of novel scientific evidence --
     relevancy standard used. -- The relevancy standard used in
     determining the admissibility of novel scientific evidence
     requires: that the trial court conduct a preliminary inquiry
     which must focus on (1) the reliability of the novel process
     used to generate the evidence, (2) the possibility that
     admitting the evidence would overwhelm, confuse or mislead the
     jury, and (3) the connection between the novel process
     evidence to be offered and the disputed factual issues in the
     particular case.

14.  Evidence -- DNA profiling no longer novel scientific evidence
     -- trial judge was correct. -- The trial judge was correct in
     his findings that DNA profiling is no longer novel scientific
     evidence requiring a preliminary inquiry to determine its
     reliability; DNA profiling evidence should no longer be viewed
     as novel scientific evidence requiring a preliminary inquiry
     beyond the showing that the expert properly performed a
     reliable methodology in creating the DNA profiles.

15.  Evidence -- trial court conducted inquiry into whether
     reliable methodology was used in creating DNA profiles -- any
     challenge to the conclusions reached should have been made at
     trial. -- In conducting his inquiry into whether reliable
     methodology was used in creating the DNA profiles, the trial
     court noted that the appellant's experts conceded that the
     laboratory protocol employed by the FBI expert was appropriate
     in determining that the evidence was relevant and would be
     admitted at trial; the trial court also correctly determined
     that any challenge to the conclusions reached by the state's
     expert, including the statistical probability of whether the
     test results constituted a match, should appropriately have
     been made at trial, by cross-examination of the state's
     experts and presentation by the defendant of his own experts
     to express differing opinions about the results of the FBI
     tests and statistical probability of a match.

16.  Witnesses -- admission of opinion testimony by lay witnesses -
     - when requirements of the rule are met. -- Rule 701 of the
     Arkansas Rules of Evidence allows admission of opinion
     testimony by lay witnesses if the opinions or inferences are
     "(1) [r]ationally based upon the opinion of the witness and
     (2) [h]elpful to a clear understanding of his testimony or the
     determination of a fact in issue"; the requirements of Rule
     701 are satisfied if the opinion or inference is one which a
     normal person would form on the basis of the observed facts,
     but if an opinion without the underlying facts would be
     misleading, then the objection should be sustained. 

17.  Evidence -- admission of relevant evidence within the sound
     discretion of the trial court -- standard of review. --     
     Whether to admit relevant evidence rests in the sound
     discretion of the trial court, and the standard of review is
     abuse of discretion; Rule 701 is not a rule against opinions,
     but is a rule that conditionally favors them. 

18.  Witnesses -- admission of lay testimony not an abuse of
     discretion -- trial court's determination not in error. -- 
     The trial court did not abuse its discretion in allowing the
     officer to give lay opinion testimony to show that the
     appellant's shoe print matched the picture, because, even
     though the officer was not an expert in that field, the trial
     court made a determination that he had some experience in that
     area and he was clearly testifying that the patterns matched,
     which was not inconsistent with the crime lab report.
     

     Appeal from Calhoun Circuit Court; John M. Graves, Judge;
reversed and remanded.
     Bramblett & Pratt, by:  James M. Pratt, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Andree Layton Roaf, Justice.February 19, 1996.  *ADVREP11*








OSCAR E. MOORE,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,






CR94-590


APPEAL FROM THE CALHOUN COUNTY
CIRCUIT COURT,
NO. CR-90-32,
HON. JOHN M. GRAVES, JUDGE,




REVERSED AND REMANDED.



                   Justice Andree Layton Roaf


     Appellant Oscar E. Moore was convicted of capital murder and
rape of a ninety year old neighbor, and of the burglary of her
home.  He was sentenced as an habitual offender to life without
parole for the capital murder.  He raises four points on appeal of
his conviction and sentence, that the trial court erred in 1)
refusing to suppress results of testing of appellant's blood; 2)
admitting DNA matching and probability testimony without conducting
a preliminary hearing; 3) refusing to grant a mistrial when the
state's witness testified that appellant had admitted to committing
another murder unrelated to this case; and 4) permitting an
investigating officer to give lay opinion testimony that the
appellant's tennis shoes matched a footprint found at the scene of
the murder.  
     We agree that the trial court erred in not declaring a
mistrial, and reverse and remand.  Moore's remaining points are
discussed to the extent they are relevant to a second trial.

                              Facts
     On the morning of November 4, 1990, a neighbor went to the
home of Ms. Nethealve Cannon and after being unable to get a
response from her, kicked in a door and discovered her body.  Ms.
Cannon had blood on her nose, mouth and legs, and her undergarments
were removed; she had been raped, strangled and her home had been
burglarized.
     Appellant lived with his mother across the road from Ms.
Cannon and was present outside her home when her body was
discovered.  Appellant was heard to say that Ms. Cannon had only
had a heart attack and should be taken to the hospital, and that
her death would probably be pinned on him because he had been in
some trouble lately.  A tennis shoe print was discovered in Ms.
Cannon's bedroom near where her undergarments were found;  the
footprint was preserved and photographed.
     Five days after Ms. Cannon's body was discovered, Lester
"Fleabag" Parker informed police that he had gone to appellant's
home the night before Ms. Cannon's body was discovered, to collect
money from appellant for a marijuana sale.   Parker stated that
appellant told him that he did not have the money at that moment,
but that he had stolen $7200.00 from Ms. Cannon after killing her. 
Parker further contended that he did not believe that appellant had
killed Ms. Cannon until her body was discovered the next day.  
     Based on Parker's information, the appellant was arrested, a
search warrant was obtained for his home, and a pair of appellant's
tennis shoes were recovered.  The state crime lab could not
conclusively say that appellant's tennis shoes matched the print
found in Ms. Cannon's home.  
     Also, twenty days after the appellant's arrest and several
days before the information was filed by the prosecution,
investigators filed a Motion for Disclosure requesting that
appellant's blood be drawn to compare with semen found in the
decedent.  Appellant had informed the court the day after his
arrest that he was in the process of hiring an attorney,
consequently an attorney had not been appointed for him on the date
this order was issued and the blood drawn.
     The FBI laboratory concluded that the DNA in appellant's blood
matched the DNA in the semen recovered from Ms. Cannon and that the
chance of randomly selecting an unrelated individual from the black
population who would have the same DNA profile as the appellant was
1 in 500,000.  The appellant moved to suppress the evidence from
the blood alleging it was unlawfully obtained; this motion was
denied.  The appellant further moved to exclude the DNA testing
results which declared the match and calculated the probability of
a random match or, in the alternative, to require that the court 
hold a preliminary hearing, to determine whether the results of the
DNA testing should be admitted into evidence in accordance with
Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).  The trial
court recognized Prater, but declined to order a preliminary
hearing, reasoning that DNA testing was no longer a "novel"
approach which warranted a preliminary hearing and, further, other
jurisdictions had begun to take judicial notice of the reliability
of DNA testing.
     After hearing all the evidence, including testimony regarding
the DNA profiling, the jury found appellant guilty of capital
murder, rape and burglary and recommended a sentence of life
imprisonment without parole for the capital murder.
                           a. Mistrial
     We agree that the trial court should have granted appellant's
motion for mistrial during the testimony of Lester Parker.  Parker
had testified on direct examination that appellant had told him
that he had killed Ms. Cannon on the night before her body was
discovered.  During the cross-examination by appellant's counsel,
the following colloquy occurred:
          Q:   Now, Fleabag, I don't suppose we could be
          so lucky as for you to tell us that there was
          somebody else besides you that heard Oscar
          Moore on this Saturday night confess to you
          that he had killed Ms. Cannon?

          A:   Did ---.

          Q:   Oscar Moore, on this Saturday night that
          he confessed to you that he killed Ms. Cannon,
          there was nobody else present there, was
          there?

          A:   No, but he admitted to killing another
          woman to his brother.

     Appellant requested that the comment be struck, the jury be
admonished, and made a motion for mistrial.  The trial court denied
the mistrial after a brief in-chambers hearing, and delivered an
admonition to the jurors instructing them to disregard Parker's
answer to the defense counsel's question.
     Declaring a mistrial is a drastic remedy and proper only where
the error is beyond repair and cannot be corrected by any curative
relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).  The
trial court should resort to mistrial only where the error
complained of is so prejudicial that justice cannot be served by
continuing the trial or when the fundamental fairness of the trial
itself has been manifestly affected. Stewart v. State, 320 Ark. 75,
894 S.W.2d 930 (1995).  Since the trial court is in a better
position to determine the effect of a remark on the jury, Cupples,
supra, it has wide discretion in granting or denying a motion for
a mistrial and its discretion will not be disturbed except where
there is an abuse of discretion or manifest prejudice to the
movant. Stewart, supra.  Finally, an admonition to the jury usually
cures a prejudicial statement unless it is so patently inflammatory
that justice could not be served by continuing the trial. King v.
State, 317 Ark. 293, 877 S.W.2d 583 (1994).
     We agree that Parker's unresponsive testimony that the
appellant had admitted he killed another woman was so prejudicial
that it could not be cured by an admonition to the jury.  Here the
trial court's denial of the motion for mistrial was abuse of
discretion in the face of such a patently inflammatory and
prejudicial statement.  See Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); King v. State, 9 Ark. App. 295, 658 S.W.2d 434
(1983).
                  b. Suppression of blood tests
     Appellant argues that his blood was drawn over his objection
and when he was not represented by counsel, even though he had
requested permission to talk to a lawyer immediately before his
blood was drawn.
     Prior to trial, appellant's counsel filed a motion to suppress
the results of any scientific tests performed on the blood samples
taken from appellant, asserting that the State had the samples
drawn from appellant in violation of his constitutional rights
under the Fourth and Fifth Amendments to the United States
Constitution and in violation of Ark. R. Crim. P. 18.1.  The motion
was denied and appellant raises the same arguments on appeal.
                         Fifth Amendment
     We first address the appellant's Fifth Amendment argument
because this claim may be more readily resolved.  The appellant
contends that his right to remain silent and not incriminate
himself has been violated by the taking of his blood.  He invokes
the Fifth Amendment but cites no further authority; his argument is
untenable. The protections of the Fifth Amendment do not extend to
demonstrative, physical tests, but are intended to immunize a
defendant from providing the State with evidence of a testimonial
or communicative nature. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).  In determining whether evidence is testimonial in
nature the courts look to see if the activity performed is for the
purpose of communication, such as a gesture; if it is, the activity
is privileged. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218
(1981).  In Schmerber v. California, 384 U.S. 757 (1966), the
United States Supreme Court determined that the privilege against
self-incrimination does not bar compelled intrusions into the body
for blood to be analyzed for alcohol content.  Appellant's Fifth
Amendment argument clearly has no merit.
                        Fourth Amendment
     Appellant also asserts that the order for blood withdrawal and
the taking of the blood against his will constituted an
unreasonable search and seizure forbidden by the Fourth and
Fourteenth Amendments of the United States Constitution.  There are
two components to this argument.  Appellant first argues that the
search was not proper because the affidavit for probable cause to
arrest him was based on the statement of Lester Parker, an
unreliable informant.  However, at issue is the probable cause
which existed for the issuance of the order for withdrawal of
appellant's blood, not his arrest.  This court applies a "totality
of circumstances" approach in determining whether the neutral and
detached magistrate had a substantial basis for concluding that
probable cause existed. Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).  
          The task of the issuing magistrate is simply
          to make a practical, common sense decision
          whether, given all the circumstances set forth
          in the affidavit before him, including the
          "veracity" and "basis of knowledge" of persons
          supplying hearsay information, there is a fair
          probability that contraband or evidence of a
          crime will be found in a particular place. 
          And the duty of a reviewing court is simply to
          ensure that the magistrate had a "substantial
          basis for . . . conclud[ing] that probable 
          cause existed." 

Id. at 494, citing Illinois v. Gates, 462 U.S. 213 (1983).  
     In this instance, the trial court had a substantial basis in
which to conclude that probable cause existed to grant the order
for blood withdrawal.  In addition to the statement of Parker, the
affidavit of the state police investigator in support of the Motion
for Disclosure recited: that he had been informed by Lester Parker
that the evening prior to the discovery of the victim's body
appellant had informed Parker that he had killed Ms. Cannon; that
black, high top tennis shoes that had been recovered from
appellant's bedroom matched the print of a large tennis shoe that
was lifted and preserved from the victim's bedroom;  that appellant
claimed to have cleaned and cooked for Ms. Cannon on numerous
occasions even though no one else could verify this claim; that
appellant was seen with a large amount of money on the night after
the murder, which was quite unusual because appellant did not have
a job; that appellant informed the police that he had entered Ms.
Cannon's house upon the discovery of her body, put her phone on top
of a table, and covered Ms. Cannon's body with a blanket, while the
individual who discovered the body stated that she was the only
person to enter Ms. Cannon's house before the police arrived; and
that because she kept her doors locked and would not unlock the
door unless she knew the caller, the killer was probably known by
Ms. Cannon.  
     With regard to Parker, appellant further argues that an
affiant must demonstrate particular facts bearing on an informant's
reliability as required by Ark. R. Crim. P. 13.1.  Jackson v.
State, 291 Ark. 98, 722 S.W.2d 831 (1987).  However, no additional
support for the reliability of witnesses is required where the
witness volunteered the information as a good citizen and not as a
confidential informant whose identity is to be protected.  Simmons
v. State, 278 Ark. 305, 645 S.W.2d 680 (1983).  Although Parker, an
admitted drug seller, may not be a model citizen, in this instance
he did not play the role of an informant.  In his statement, Parker
said that he was "scared" and told his cousin, appellant's brother
and his boss about appellant's confession before reporting the
matter to the police, after his boss urged him to do so.  Parker
also voluntarily gave a blood sample for DNA analysis when
requested by the police.  Clearly, there was a substantial basis
for the court to conclude that probable cause existed to order the
taking of appellant's blood.
     The second aspect of appellant's Fourth Amendment argument
involves the taking of the blood sample.  Appellant contends the
search was not reasonable, because his blood was drawn in the
police station, in violation of the order, and that it falls short
of the standard for reasonableness provided by Schmerber, supra. 
Although the order provided that appellant be taken to a medical
facility, he was taken from his cell to the sheriff's office, where
his blood was drawn in private, by a physician.  In Schmerber, the
Supreme Court held that a minor intrusion into the body performed
in a reasonable manner (by needle) in a hospital by a physician,
met the Fourth Amendment test of reasonableness.  However, the
Court cautioned:
     We are thus not presented with the serious question which
     would arise if a search involving use of a medical
     technique, even of the most rudimentary sort, were made
     by other than medical personnel or in other than a
     medical environment - for example, if it were
     administered by police in the privacy of the
     stationhouse.  To tolerate searches under those
     conditions might be to invite an unjustified element of
     personal risk and pain.
Schmerber.
     Initially, we note that Schmerber does not expressly prohibit
the taking of a blood sample in the manner employed in the instant
case.  Despite the  cautionary language warning against conducting
searches which employ medical techniques in other than medical
environments, here the appellant's blood was drawn by a physician,
not a police officer.  As blood is routinely drawn by nurses,
technicians, and other non-physicians, frequently in non-medical
facilities, appellant was not in this instance subjected to an
"unjustified element of personal risk and pain."  
     We consequently cannot say that the manner in which
appellant's blood was taken constituted an unreasonable search, in
violation of the Fourth Amendment.
                   Ark. R. Crim. P. Rule 18.1 
     Appellant asserts Ark. R. Crim. P. 18.1(b) was violated
because it requires that "reasonable notice" be given to a
defendant and his counsel.  Arkansas Rules of Criminal Procedure
Rule 18.1 gives a judicial officer the authority to require a
defendant to permit the taking of samples of his blood, hair and
other materials of his body if it involves no unreasonable
intrusion.  This rule provides in pertinent part:
            (a) Notwithstanding the initiation of
          judicial proceedings, and subject to
          constitutional limitations, a judicial officer
          may require the defendant to:

            (vii) permit the taking of samples of his
          blood, hair and other materials of his body
          which involve no unreasonable intrusion
          thereof;  

            (b) Whenever the personal appearance of the
          defendant is required for the foregoing
          purposes, reasonable notice of the time and
          place of such appearance shall be given by the
          prosecuting attorney to the defendant and his
          counsel.  (Emphasis added.)

     When appellant's blood was drawn, he had been in jail for
twenty days on the charges involved in this case and did not have
an attorney, although he was represented by a public defender on a
pending unrelated burglary charge.  On the date the blood was
drawn, the state police investigator, with the help of the
prosecutor, prepared a motion seeking permission to draw blood from
appellant, obtained an order from the circuit judge granting the
motion, filed the motion and order with the clerk, and picked up a
physician and took him to the jail to draw the blood.  The order
provided that "a copy of the order shall be personally served on
[appellant] and upon his attorney, should said attorney be made
known to the Arkansas State Police or the prosecuting attorney's
office," and that appellant be taken to the health department or
other medical office for the drawing of blood.  Appellant admitted
at his suppression hearing that he was advised by the judge the day
after his arrest that an attorney would be appointed for him if he
could not afford to hire one; appellant at that time informed the
court that he was "seeking the means to hire an attorney" and that
he had already hired a lawyer because Investigator Glenn Sligh did
not like him.  He stated that he did not know his attorney's name. 

     Appellant further testified at the suppression hearing that he
asked to call his mother and an attorney immediately before his
blood was withdrawn but his requests were refused.  State Police
Investigator Glenn Sligh testified that he asked appellant who his
lawyer was in order to serve the order on the attorney, and that
appellant stated that his attorney was coming from Texas.  Mr.
Sligh further testified that he allowed appellant to call his
mother immediately prior to the drawing of the blood and that
appellant was apparently seeking to determine if she had obtained
a lawyer for him.  He stated that appellant made no further mention
of a lawyer after this call.  Appellant's mother denied receiving
a call from appellant that day and a jailer testified to hearing a
sheriff's employee refuse to allow appellant to call his family or
a lawyer, but stated that she did not recall seeing Mr. Sligh that
day with the appellant.  This court has repeatedly stated that
conflicts in the testimony of the witnesses is for the trial court
to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).  
     Although appellant argues on appeal that he was deprived of
counsel when his blood was drawn, it is clear that he initially
caused the delay in the appointment of counsel by representing to
the judge at his probable cause hearing that he had already hired
an attorney.  Appellant cannot decline appointed counsel on the one
hand and later claim he was denied the assistance of counsel; this
is akin to the invited error doctrine.   He further argues that the
order was obtained without affording him a hearing, and that he had
no prior notice that the state intended or desired to draw his
blood.  Rule 18.1(b) provides that "whenever the personal
appearance of the defendant is required [for the taking of
samples], reasonable notice of the time and place of such
appearance shall be given . . . to the defendant and his counsel." 
A defendant who must present himself for the taking of samples is
contemplated by this language.  Here, the appellant was in custody
at the time, and was given a copy of the order immediately prior to
the blood withdrawal.
     Moreover, even if the State violated Rule 18.1(b), we have
said that suppression of the evidence is not the appropriate remedy
for this violation. See Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).  The standard of review on imposing sanctions for
discovery violations is whether there has been an abuse of
discretion.  In Davasher, the defendant was represented by counsel,
and argued that the failure to notify his counsel of the taking of
samples from defendant shortly after his arrest was "prosecutorial
misconduct" for which the remedy was suppression of the evidence.
Id. at 163.  We rejected this argument and stated that when there
has been a failure to comply with discovery procedures, a trial
court is not required to suppress evidence unless prejudice will
result. Id. at 164.  
     Here, as in Davasher, appellant does not explain how prejudice
might have occurred because an attorney was not present when the
blood samples were taken.  Appellant suggests that had he been
represented by counsel when the court determined whether to order
his blood drawn, "it is possible that probable cause could have
been shown to have been lacking," because Lester Parker's
trustworthiness could have been challenged, and that the trial
court "might have ruled differently if the truth were known."  He
further asserts that had the damaging blood test evidence not been
submitted to the jury, there is a "reasonable probability" that the
result below would have been different.  However, appellant does
not explain how the detailed investigator's affidavit presented
with the Motion for Disclosure failed to meet the standard for
probable cause for search warrants, or could have been attacked. 
In sum, even assuming a violation of Ark. R. Crim. P. 18.1(b)
occurred, we cannot say that appellant has demonstrated that he
suffered prejudice as a result.
     Finally, we note that appellant argues for the first time in
his reply brief that he had an absolute right to counsel in the
blood withdrawal proceeding because Ark. R. Crim. P. 8.3(b) forbids
any action being taken after a defendant's first appearance until
the defendant and his counsel have had an opportunity to confer. 
He also asserts for the first time on appeal that the drawing of
the blood sample violated his Sixth Amendment right to counsel. 
Neither of these arguments were made in his Motion to Suppress or
Amended Motion to Suppress or argued to the trial court.  We will
not consider even constitutional arguments not raised before the
trial court.  See Williams v. State, 320 Ark. 211, 895 S.W.2d 913
(1995).  
           c. DNA Matching and Probability testimony.
     Prior to trial, the State advised the appellant that it
intended to introduce test results conducted by the FBI laboratory
which indicated a "match" in the DNA of semen found in the victim
and the DNA of the blood drawn from the appellant.  The State
further announced plans to introduce, by population frequency
statistics, the likelihood of the "match" being someone other than
the appellant.  Amending his motion to suppress, appellant
requested a preliminary hearing to determine whether the results of
any DNA testing was admissible pursuant to the requirements of
Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).  The trial
court determined that the preliminary hearing was not necessary and
took judicial notice of the reliability of DNA profiling.  The
order denying the preliminary hearing provided in pertinent part:
               Since the filing of the motion and the
          request for a hearing, the court and the
          parties have reviewed current decisions
          regarding the DNA issue including, but not
          limited to U.S. v. Martinez, ____ F.3d____    
          62 USLW 2199, (8th Circuit September 2, 
          1993), U.S. v. Jakobetz, 955 F.2d 786 (2d
          Circuit), Daubert v. Merrell Dow
          Pharmaceuticals, Inc., 125 L. Ed. 2d 469 (June
          28, 1993).  The Court has also reviewed a
          twenty-one page affidavit with exhibits
          attached of Audrey Grace Lynch.  supervisory
          Special Agent, DNA Analysis Unit II, FBI, who
          conducted the forensic analysis of the DNA
          evidence involved in this cause.  The
          affidavit indicates how the laboratory work
          was done and what analysis and assumptions
          underlie the probability calculations.  The
          defendant, through his attorney, has advised
          the Court that his DNA expert witnesses have
          reviewed the laboratory notes of the FBI and
          if asked, would testify that the laboratory
          protocol was appropriate.

               The Court is aware that Prater v. State
          infra directed that a preliminary hearing or
          inquiry be conducted when novel scientific
          evidence coupled with evidence of mathematical
          probabilities is offered.  The evidence
          offered is no longer new or unusual, there
          having been over 50 appellate court decisions
          which support the admissibility of forensic
          DNA-RFLP profiling. DNA Evidence and
          Massachusetts, Crime Laboratory Digest, Vol.
          19, No. 3 July, 1993.  Based on the above, the
          Court concludes that the DNA profiling was
          derived from the application of reliable
          methodology or principle and that according to
          the affidavit of the affiant finds she
          properly performed protocol involved in DNA
          profiling.  Accordingly, the Court is of the
          opinion that no preliminary hearing is
          necessary.

               The Court therefore takes judicial notice
          of the general theory and reliability as well
          as the techniques of DNA profiling.  Based
          upon the affidavit of Audrey Grace Lynch and
          the statement of defendant's counsel that he
          has no evidence attacking the methodology of
          the FBI laboratory procedures, the Court
          further finds that the proposed testimony by
          the FBI witnesses is relevant and will be
          admitted.

     This court adopted in Prater a relevancy standard in
determining the admissibility of novel scientific evidence.  The
relevancy approach requires:
          that the trial court conduct a preliminary
          inquiry which must focus on (1) the
          reliability of the novel process used to
          generate the evidence, (2) the possibility
          that admitting the evidence would overwhelm,
          confuse or mislead the jury, and (3) the
          connection between the novel process evidence
          to be offered and the disputed factual issues
          in the particular case.

Id. at 186.  Under this relevancy approach, reliability is the
critical element.  
     However, as the trial court correctly noted, since we decided
Prater in 1991, there have been significant developments regarding
the admissibility of DNA profiling; a number of appellate courts
have recognized the reliability of this process, and no longer
consider it novel scientific evidence.
     Two of the cases relied upon by the trial court, U.S. v.
Jakobetz, 955 F.2d 786 (2nd Cir. 1992), and U.S. v. Martinez, 3 F.2d 1191 (8th Cir. 1993), warrant our consideration.  Both hold
that trial courts may take judicial notice of the reliability of
DNA profiling.  In Jakobetz, the court undertook an exhaustive
analysis and discussion of the scientific background of DNA
profiling and the legal standard of admissibility for novel
scientific evidence, before concluding that the general theories of
genetics which support DNA profiling are unanimously accepted in
the scientific community and that the specific techniques used by
the FBI laboratory in DNA analysis are commonly used by scientists
in microbiology and genetics research.
     In Martinez, supra, the court relied heavily on the Jakobetz
decision, stating, "We conclude that the Second Circuit's
conclusions as to the reliability of the general theories and
techniques of DNA profiling are valid under the Supreme Court's
holding in Daubert, and hold that future courts can take judicial
notice of their reliability."  However, the Martinez court further
stated that its holding does not mean that expert testimony
concerning DNA profiling would be automatically admissible without
preliminary inquiry to determine if the expert properly performed
a reliable methodology in arriving at his opinion, and further
provided that the testifying expert should be required to submit
affidavits attesting that he properly performed the protocols
involved in DNA profiling.
     Since Prater, we have on three occasions considered whether a
scientific procedure should be considered novel scientific
evidence, thus warranting a preliminary hearing or inquiry.  We
determined that the Horizontal Gaze Nystagmus test used to
determine the presence of alcohol by observing the involuntary
jerking of the eyeball, is not novel scientific evidence.  Whitson
v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).  We reached the same
conclusion with regard to human bite mark identification.  Verdict
v. State, 315 Ark. 436, 868 S.W.2d 443 (1993).  However, we held
that luminol testing for the presence of blood is novel evidence of
that requires a preliminary hearing to determine admissibility. 
Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995).
     In light of the developments in the treatment of DNA evidence,
we believe that we should revisit our now four-year-old holding in
Prater, that DNA profiling is novel scientific evidence.  We first
observe that in Prater, we rejected the majority approach for
determining the admissibility of novel scientific evidence as set
forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  The
Frye standard relies solely on the general acceptance of this
theory upon which the evidence is based in the relevant scientific
community.  We instead adopted the more liberal standard of
admissibility, based upon the relevancy approach of the Uniform
Rules of Evidence, in particular Rules 401, 402 and 702.
     In 1993, the U.S. Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. ___, 113 S. Ct. 2786 (1993), held
that the Federal Rules of Evidence supersede the Frye test and that
the admissibility of expert opinion testimony concerning novel
scientific evidence would no longer be limited solely to knowledge
or evidence generally accepted as reliable in the relevant
scientific community.  The Court stated that, under the Rules of
Evidence, the trial court must ensure that scientific evidence
admitted is not only relevant, but reliable.  Daubert, supra. 
Although Jakobetz was decided prior to Daubert, both courts adopted
a reliability approach to Rule 702, comparable to the relevancy
approach of Prater in which reliability is the critical element.  
     It remains for us to determine whether the trial judge was
correct in his findings that DNA profiling is no longer novel
scientific evidence requiring a preliminary inquiry to determine
its reliability.  We agree with his findings and hold that DNA
profiling evidence should no longer be viewed as novel scientific
evidence requiring a preliminary inquiry beyond the showing that
the expert properly performed a reliable methodology in creating
the DNA profiles.
     The trial court conducted this inquiry in the instant case. 
Indeed, the trial court noted that the appellant's experts conceded
that the laboratory protocol employed by the FBI expert was
appropriate, in determining that the evidence was relevant and
would be admitted at trial.  The trial court also correctly
determined that any challenge to the conclusions reached by the
state's expert, including the statistical probability of whether
the test results constituted a match, would appropriately be made
at trial, by cross-examination of the state's experts and
presentation by the defendant of his own experts to express
differing opinions about the results of the FBI tests and
statistical probability of a match.
  We note that at trial, appellant's counsel conducted an extensive
cross examination of the FBI agent who performed the DNA profiling
and the two other prosecution experts who confirmed the DNA matched
that of the appellant.  During the cross examination of the FBI
agent, the following testimony was brought forth:
     [Defense Counsel]
     Q.   - and the DNA in the semen that came from Mrs.
     Cannon, when you compare them or look at them, and you
     say it is a match, you are not saying absolutely that
     that is Oscar Moore's semen that was found in Mrs.
     Cannon, are you?

     A.   Correct.  I am not saying absolutely.

     Q.   And you can't say that and be telling the truth, can
     you?

     A.   No.  Again, I cannot individualize to the point to
     say that it came absolutely from one person.

     . . .

     Q.   [Y]ou are not saying that these results established
     absolutely that the DNA found in the semen in the victim
     is the DNA of Oscar Moore?  You're not saying that at
     all, are you?  

     A.   I am not saying that absolutely without any
     question.  That's correct.

     . . .

     Q.   . . . it's either [appellant's], or it's somebody
     who has a DNA profile similar to him?  That is your
     opinion, is it not?

     A.   That is correct.
In addition, appellant presented two experts who disputed the
testimony of the prosecution experts and testified that the
probability of a match with appellant's DNA was actually 1 in 2662
and 1 in 355, as opposed to 1 in 500,000, as concluded by the FBI
agent.  Appellant was thus able to challenge the reliability of the
DNA evidence by cross examination and with his own experts at
trial.
                    d. Lay Opinion Testimony
     At trial, a state crime lab report regarding the shoe print
was introduced during the testimony of state police investigator
Glenn Sligh.  The crime lab was unable to identify or eliminate the
print found in the victim's bedroom as having been made by
appellant's shoe due to the lack of sufficient individual markings. 
However, the report stated that the shoe sole pattern of the print
was consistent with the pattern on appellant's shoe.  
     The testimony that appellant complains of came about during
the examination of Investigator Sligh.  On direct examination by
the State, Sligh testified that the sole of the appellant's
athletic shoe matched the shoe print found on the center of the
victim's bedroom floor by stating, "That's the right foot.  This is
what we believe to be a match to that picture and to the lifted
print."  Appellant objected to Mr. Sligh's opinion about the shoe
print when he realized that Mr. Sligh apparently did not have the
education or training to qualify as an expert.  The trial court
ruled that although Sligh testified that he had compared shoe
prints in several cases, he was not an expert, and his testimony
would be allowed as lay opinion testimony pursuant to Ark. R. Evid.
701.
     Rule 701 of the Arkansas Rules of Evidence allows admission of
opinion testimony by lay witnesses if the opinions or inferences
are "(1) [r]ationally based upon the opinion of the witness and (2)
[h]elpful to a clear understanding of his testimony or the
determination of a fact in issue." Brown v. State, 316 Ark. 724,
875 S.W.2d 828 (1994).  This court has stated that the requirements
of Rule 701 are satisfied if the opinion or inference is one which
a normal person would form on the basis of the observed facts, but
if an opinion without the underlying facts would be misleading,
then the objection should be sustained. Id. at 729.
     Whether to admit relevant evidence rests in the sound
discretion of the trial court, and the standard of review is abuse
of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995).
Rule 701 is not a rule against opinions, but is a rule that
conditionally favors them. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991).  
     We cannot say that the trial court abused its discretion in
allowing the officer in this instance to give lay opinion testimony
to show that the appellant's shoe print matched the picture,
because, even though the officer was not an expert in that field,
the trial court made a determination that he had some experience in
that area and he was clearly testifying that the patterns matched,
which was not inconsistent with the crime lab report.
     Reversed and remanded.