State v. Streich

STATE_V_STREICH.91-335; 163 Vt 331; 658 A.2d 38

[Filed:  17-Feb-1995]

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. 91-335


State of Vermont                                  Supreme Court

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

Todd Streich                                      December Term, 1993


Alden T. Bryan, J.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, and Jeffrey L. Amestoy, Attorney
General, and David Tartter, Assistant Attorney General, Montpelier, for
plaintiff-appellee 

Robert Andres and Michael Johnson, Burlington, and Charles S. Martin of
Martin & Paolini, Barre, for defendant-appellant 


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


     DOOLEY, J.  Defendant Todd Streich was convicted of sexual assault in
violation of 13 V.S.A  3252(a)(1)(A).  On appeal, he raises eleven
allegations of error which can be consolidated into five main issues:  (1)
whether the court improperly admitted DNA evidence which linked defendant to
the crime scene; (2) whether the court improperly admitted blood-type
evidence of another individual which excluded that individual as a possible
perpetrator; (3) whether comments made by the judge during jury selection
warranted a mistrial; (4) whether the court's instructions to the jury were
wrong; and (5) whether the court exhibited open bias and prejudice against
defendant in its rulings.   Although we disagree with the trial court's
rationale regarding the admissibility of DNA statistical evidence, we affirm.

                                I.

     On June 22, 1989, a young woman was sexually assaulted in her home. 
Immediately after the assault, the victim was taken to the hospital where she
underwent an extensive internal 



examination.  A variety of evidence was collected including vaginal swabs,
and blood and pubic hair samples.  The victim's underwear, which was stained
with the assailant's semen, was also taken. 

     During the investigation, a detective spoke with a man named Mark
Rouelle, who gave the detective specific details of the crime, and told the
detective that defendant had related these details to him.  The investigation
then focused on defendant, and the Vermont State Police forwarded to the FBI
criminal lab the evidence collected at the hospital and blood samples from
the victim and defendant for DNA and blood-typing analysis.  The FBI compared
the DNA from defendant's blood sample to the semen found on the victim's
underwear and reported that defendant's genetic profile matched the genetic
profile of the semen at three genetic locations. The FBI concluded that the
probability of another person chosen at random having the same DNA profile
was 1 in 50,000. 

     Prior to the July 1991 trial, defendant filed a motion to exclude the
DNA evidence.  He argued that DNA profiling is not sufficiently reliable to
be admitted in Vermont criminal trials, and in the alternative, the FBI used
faulty procedures that undermined the probative value of the evidence.  The
trial court held a four day hearing, and heard extensive expert testimony on
behalf of both the State and defendant.  Following the hearing, the court
issued a bifurcated order rejecting defendant's arguments. 

     Shortly after the court issued its DNA order, defendant began pursuing
the theory that Mark Rouelle, the individual who had initially led
investigators to defendant, actually committed the crime.  When the State
became aware of this theory, it requested blood samples from Rouelle to
compare to the evidence taken from the victim and from the crime scene. 
Rouelle was uncooperative, and the State's efforts to obtain these samples
was further delayed by his frequent change of counsel and separate hearings
to determine his competency. 

     One week before trial, the trial court issued a nontestimonial
identification order (NTO) requiring Rouelle to provide the requested
samples.  The State never exercised this NTO because 



Rouelle voluntarily offered the blood samples.  The trial court's issuance of
the NTO is relevant, however, because defendant sought to introduce the
statutory standards under V.R.Cr.P. 41.1(c) for obtaining NTOs to support his
theory that Rouelle had committed the crime.  The trial court held that the
statutory standards were not evidence, and therefore, were not relevant. 

     Rouelle's blood samples were analyzed the week before trial.  Because
DNA profiling can take up to six weeks, the laboratory was able to determine
only Rouelle's blood-type and secretor status.  The laboratory report
indicated that Rouelle's blood did not match the evidence found at the crime
scene, and these results were forwarded to the State on July 8, 1991.  The
next day, which was the day before trial, the State provided defendant with a
copy of the report. 

     Defendant immediately complained that the notice was untimely, and moved
for a continuance so that his expert could review the report.  Although the
trial court agreed that the Rouelle report was untimely, it denied the
motion.  Instead, the court ruled that the State was prohibited from
mentioning any information contained in the report during its opening
statement or case-in-chief, and that the report might be barred altogether
depending on what evidence defendant presented at trial.  The court reasoned
that this postponement would provide defendant's expert with an opportunity
to review the evidence.   During cross-examination of one of the State's key
witnesses, defendant advanced his theory that Rouelle had committed the
crime.  The trial court ruled that because defendant initiated the theory,
the State was entitled to rebut it.  Consequently, the court permitted the
State to admit into evidence the Rouelle report, which indicated that
Rouelle's blood-type was inconsistent with evidence from the crime scene and
the victim. 

     A major network filmed the trial for a television documentary.  On July
8, 1991, prior to jury selection, the court discussed with counsel how the
presence of cameras and bright lighting should be explained to the jury. 
Both parties agreed that the potential jurors should be told that the court
was conducting a media experiment, and they were so informed.  Before
resuming the jury draw on July 9th, the State expressed its discomfort with
the fabrication, 



especially since some of the jurors already knew that the filming was for
television.  The court agreed to examine the remaining jurors on whether they
had read or heard anything in the media regarding the trial. Only one juror
responded affirmatively, and he was excused from the panel. The judge then
informed the jurors of the true reason for the cameras and lighting, and
inquired whether the filming would interfere with their responsibilities as
jurors.  No one indicated that it would. 

     On the fourth day of trial, defendant moved for a mistrial on the ground
that the court's misrepresentation concerning media coverage had poisoned the
jury selection process.  In support of his motion, defendant noted that
members of the July 8th jury array who were not selected were upset that the
court had not been candid with them about the television coverage. Defendant
argued that because of the court's misrepresentation, jurors lacked
confidence in the overall integrity of the trial.  The court denied the
mistrial motion, stating that any potential problem with the jury was
effectively addressed on July 9th.  The rest of the trial proceeded without
incident, and the jury found defendant guilty of sexual assault;  this appeal
followed. 

                               II.
                               A.

     The most significant issue in this case concerns the admissibility of
DNA profiling in a criminal case to prove the perpetrator's identity.(FN1)
Before we can adequately address this issue, it is necessary to outline the
procedures involved in DNA profiling. 

     Deoxyribonucleic acid (DNA) is the codified genetic blueprint of humans,
and with the exception of identical twins, no two people share the same
pattern of DNA.  DNA is found in almost every cell of the body including hair
follicles, blood, and semen.  The DNA molecule 



is composed of 3 billion "base pairs" of four different chemicals, and the
particular order or pattern of these base pairs dictates genetic
characteristics.  Because 99% of the DNA molecule is the same for all humans,
 DNA profiling focuses on those areas of the DNA molecule where there is
significant differentiation of the base pair pattern.  These areas of
significant differentiation are called "polymorphic," and base pair patterns
in polymorphic areas are called "alleles." 

     The basic profiling procedure is to compare DNA from the defendant with
DNA from the assailant.  The matching process involves the use of two
distinct disciplines:  molecular biology and population genetics.(FN2)
biological component of the test utilizes a process called Restriction
Fragment Length Polymorphism (RFLP), where the specific alleles in
polymorphic areas of the molecule are isolated, photographed, and measured. 
If the RFLP process concludes that a match exists, scientists then use
population genetics to determine the probability that the match occurred
merely by coincidence. 

     The first step of RFLP entails extracting DNA from both the evidence
obtained from the victim and found at the crime scene and from samples
provided by the defendant.  It is then "cut" with chemical scissors at all
places along the molecule where polymorphic chemical base pair sequences
occur.  The cut fragments are placed in a gel to which an electrical current
is applied.  The process, known as gel electrophoresis, causes the larger
pieces to remain at one end of the gel and the smaller fragments to move to
the other.  Because gel consistency may vary and thus cause a difference in
the speed with which the fragments move through the gel, the defendant's
sample and the comparison sample are run on the same gel but in different
tracks 



or lanes. 

     After the DNA fragments are sorted by size, they are transferred to a
nylon membrane, which is easier to handle than the gel.  During this stage,
the DNA fragments are split lengthwise along each base pair so that the base
pairs are separated into two strands.  Next, radioactive probe markers
designed to match or complement the single-stranded alleles are applied to
the membrane.  The use of several probes is necessary because it is common
for two or more individuals to have the same alleles even in a polymorphic
area.  It is less common, however, for two individuals to share several
alleles as identified by four or five different probes. 

     The nylon membrane is then placed against a piece of x-ray film so that
the radioactive probes can expose the film where all the tagged alleles are
located.  This picture is called an autoradiograph or autorad, and resembles
the bar code on grocery store packages.  It is also widely known as the "DNA
fingerprint."  The last step of the RFLP test involves measuring the dark
bands or bar codes on the autorad to determine whether a match exists between
the sample from the defendant and that of the assailant.   The length and
width of each band on the autorad is measured, and a match is declared if the
defendant's and the assailant's samples are within 5% of each other.  The 5%
margin of error serves to account for mobility and quality differences
between the samples.  A visual assessment is also made which compares the
relative position and color intensity of the autorad bands. 

     The existence of a match does not necessarily prove that the DNA
obtained from the victim or from the crime scene came from the defendant; it
shows only that the DNA profile of the defendant is consistent with the DNA
profile of the crime scene evidence.  Using population genetics, the
significance of the match is determined by the probability that an individual
randomly selected from the general population has the same DNA profile as the
defendant. 

     The science of population genetics relies heavily on a database
comprised of RFLP results of a sample population.  The database serves two
functions.  First, it guarantees that the 



targeted alleles are truly polymorphic.  If an allele appearing on the
autorad is shared by everyone, it imparts no information about defendant. 
Second, the database is thought to provide information about the frequency
with which specific alleles appear in the population.   Whether the database
actually serves this function, however, is the subject of controversy. 

     One of the most significant criticisms involves the population experts'
derivation of probabilities from multiple allele matches.  Since the DNA
profile is based on numerous individual alleles, the overall probability
determination involves a combination of numerous individual probabilities. 
The probability of a match for each allele is derived from the database. For
example, if a given allele appears in 10% of the database samples, it is
assumed that it appears in 10% of the general population.  Because these
probabilities vary from one allele to another, the second allele on the
autorad might have a probability of 20%, and the third allele a probability
of 5%. 

     The overall probability that an individual randomly selected from the
general population has the same DNA profile as the defendant involves a
combination of the individual allele probabilities.  Population experts have
usually relied upon the "product rule" to calculate the overall probability,
simply by multiplying the individual probabilities for each allele.   Thus,
in the hypothetical in the foregoing paragraph, the odds that another
individual, randomly selected from the population, would share defendant's
DNA profile is 1 in 1,000 (1/10 x 1/5 x 1/20). 

     The validity of the product rule depends on whether the matches at each
allele are statistically independent.  If the three alleles are related, or
linked, the product rule can not be applied because there is a significant
probability that an individual who has one allele has two or more of the
alleles.  For example, suppose the probabilities described above relate to
whether an individual has blond hair, blue eyes, and fair skin.  If the
probability of having all three traits is interrelated, such that someone who
is blond is more likely to have blue eyes, then the characteristics are
interrelated.  The product rule is not accurate because instead of a one in
1,000 match, the probability of all three events occurring together is almost
certainly much 



higher. 

     Whether the targeted alleles in the RFLP process are statistically
independent is said to depend on the absence of population substructure in
the database.  Scientists have accounted for some population substructuring
by segregating databases into racial groups.  The conclusion, however, that
population substructuring does not occur even within racial classifications
assumes that the general population freely migrates and mates in a totally
random fashion.  The validity of this assumption, and its impact on the
statistical accuracy of the database, has divided the scientific community. 
See, e.g., People v. Barney, 10 Cal. Rptr. 2d 731, 740-41 (Cal. Ct. App.
1992) (contrasting Lewontin & Hartl, Population Genetics in Forensic DNA
Typing, 254 Science 1745 (1991) and Chakraborty & Kidd, The Utility of DNA
Typing in Forensic Work, 254 Science 1735 (1991). 

     The FBI has developed a statistical process known as "fixed binning"
which it contends resolves the substructure problem in the defendant's favor.
 As a result of population studies, scientists have observed that for a
particular probe, polymorphic allele lengths will vary among individuals. 
These allele lengths are sorted into categories called bins whereby each bin
represents an observed range of allele lengths.  By counting how frequently
alleles in the population sample fall within a specific bin, scientists are
able to calculate the likelihood that a match on a given probe will be
coincidental.  For example, in a study of 200 individuals, if twenty of those
individuals fit into a particular bin for a particular probe, that bin is
said to have a 10% occurrence within the population. 

     This process purportedly accounts for population substructure in two
ways.  First, if a given bin contains fewer than five individuals, this bin
is "collapsed" into an adjoining bin.  As a result, the percentage of the
population with an allele within this redetermined bin will be higher than it
would be otherwise, and the ultimate statistical probability calculation will
be more conservative.  Second, if a suspect's allele length for a particular
probe falls in between two bins, it will be assigned to the bin with the
greater frequency figure, ostensibly generating a 



conservative statistical probability.  This conservatism is said to make up
for any inaccuracies due to the presence of population substructure. 

     The "ceiling principal," recommended in a 1992 report by the National
Research Council, (NRC), is another method of accounting for population
substructure through conservative calculation of the probability statistic. 
Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest, 371 NATURE 735,
736 (Oct. 27, 1994).  It has gained favor among scientists and the courts.  
Id.  See also Commonwealth v. Lanigan, 641 N.E.2d 1342, 1347 (Mass. 1994).  
This method assumes that population substructures exist and requires the
probability statistics to be increased to reflect a worst-case scenario. 
Thus, this approach attempts to resolve any inaccuracy in the defendant's
favor.  Lander & Budowle, supra, at 736. The practical effect of this
approach is to pare back the statistical significance of a DNA match. Id. at
737.  For example, although a four-probe match utilizing the product rule
might reveal "frequencies of about 10-8 -- 10-10, the ceiling principle pares
them back to about 10-6 -- 10-7." Id. 

     In this case, FBI experts used the fixed bin method, and determined that
defendant's DNA matched that of the assailant's DNA at four targeted alleles,
but one allele match was excluded by the court.  The experts concluded that
the frequency probabilities of the first and second probes were one in
seventy, and one in ten, respectively.  For the two remaining probes, the
autorad on defendant's recent sample could not be interpreted, so the FBI
used another autorad of defendant which they had on file in connection with
an earlier analysis.  This comparison of two different autorads is known as
cross-gel analysis, and it revealed that defendant's DNA also matched with
respect to the third probe.  This probe had a frequency probability of one in
seventy-eight.  On the fourth probe, the experts also concluded that a match
existed, but admitted that their analysis of the autorad from the earlier
sample had declared the measurements of the fourth probe to be unreliable. 
The trial court excluded any evidence regarding the fourth probe.  Using the
product method, the FBI witness testified that the 



probability that a person selected from the general population would have the
same DNA characteristics was approximately 1 in 50,000. 

     Defendant raises three arguments contesting the use of DNA evidence at
his trial: (1) DNA profiling is not generally accepted by the scientific
community, and therefore, the introduction of this evidence at his trial was
error; (2) it was error to admit evidence regarding the statistical
probability of the DNA profile match because these statistics unduly
prejudice the jury; and (3) the FBI testing laboratory failed to follow
established procedures.  We combine the first two arguments and start with
them. 


                                B.

     Defendant's arguments are premised on his claim that the admissibility
of novel scientific evidence is governed by the test set forth in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923).   Frye held that such evidence
could be admitted only if it is generally accepted within the scientific
community. Id. at 1014.  Although the Frye standard has been widely used,
this Court has never adopted it.  The issue is governed by V.R.E. 702, which
allows admission of scientific evidence if it "will assist the trier of fact
to understand the evidence or to determine a fact in issue."  See State v.
Percy, 156 Vt. 468, 475, 595 A.2d 248, 252 (1990).  Our rule is identical to
the federal rule, and the United States Supreme Court recently held in
Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, ___ 113 S. Ct. 2786, 2794 (1993) that Fed. R. Evid. 702 superseded the Frye test.  Noting
the identity of the evidence rules, we recently decided to follow Daubert's
principles in scientific evidence cases.  State v. Brooks, ___ Vt. ___, ___,
643 A.2d 226, 229 (1993).  Daubert, not Frye, controls our inquiry. 

     The Daubert Court concluded that Rule 702 relaxed the traditional
barriers to admission of expert testimony, Daubert, ___ U.S. at ___, 113 S. Ct.  at 2794, and replaced the Frye "general acceptance" requirement with a
flexible standard governed by two principles: reliability 



and relevance.(FN3)
 Id. at 2797.  The principles are derived from two components of Rule 702,
the requirement of "scientific knowledge" and the requirement that the
evidence assist the trier of fact.  Id. at 2796. 

     Reliability is assured if the expert testimony is supported by
"scientific knowledge," defined as information that is more than a subjective
belief or unsupported speculation, and that is grounded in the methods and
procedures of science.  Id. at 2795.  Science represents a "`process for
proposing and refining theoretical explanations about the world that are
subject to further testing and refinement.'"  Id. (quoting Brief for American
Association for the Advancement of Science and the National Academy of
Sciences as Amici Curiae 7-8  (emphasis in original).   Of course, there are
no certainties in science. 

     Based on this overview and using the self-descriptor of "general
observations," the Court outlined four non-exclusive factors designed to
assist a trial judge how to determine whether expert testimony was
sufficiently rooted in "scientific knowledge" to be admissible: (1) whether
the theory or technique involved is capable of being tested, id. at 2796; (2)
whether the theory or technique has been subjected to peer review and
publication, id. at 2797; (3) the known or potential rate of error associated
with the scientific technique, id.; and (4) whether the theory or technique
has been generally accepted in the scientific community, id.  The fourth
factor is, of course, the Frye standard, but it is now only one of many
factors without controlling significance.  If the evidence is sufficiently
rooted in scientific knowledge, it must also be relevant such that it will
"assist the trier of fact to understand the evidence or to determine a fact
in issue."  Id. at 2796. 



       In applying the reliability and relevancy framework outlined in
Daubert to the present case, it is clear that the relevancy component of the
analysis is not at issue.  Because the identity of the perpetrator is a key
factual issue, the fact that DNA found on the victim matches that from
defendant is probative and helpful to the trier of fact.  See State v.
Anderson, 881 P.2d 29, 47 (N.M. 1994).  Consequently, our analysis need
examine only the reliability of the two components of DNA profiling. 

     To ensure consistency in our approach to the admissibility of DNA
evidence and the statistics derived from DNA matches, we must look at the
foundation evidence received in this case, the scientific literature, and the
analysis in other courts.  As has been typical of criminal cases in which the
prosecution seeks to admit DNA evidence, the foundation evidence shows sharp
differences in the scientific community and supports virtually any outcome. 
The trial court is, of course, entitled to discretion in evaluating
foundation evidence.  See V.R.E. 104(a); State v. Ogden, ___ Vt. ___, ___ 640 A.2d 6, 11 (1993). 

     We also admit openly that our conclusion is greatly influenced by the
timing of this decision.  As is typical in DNA cases, the legal and
scientific climate is vastly different as we decide the issue from that which
was present when the trial court rendered its decision.  Daubert has emerged,
clearly stating a more liberal approach to the admission of such evidence. 
Part of the scientific debate has essentially ended in favor of DNA
admissibility.  See, e.g., State v. Vandebogart, 616 A.2d 483, 492 (N.H.
1992) (authorizing trial courts to take judicial notice of RFLP).  That part
which involves the proper probability statistics to employ has not abated,
and strong support has emerged for the ceiling principle.  See, e.g., United
States v. Porter, 618 A.2d, 629, 637 (D.C. 1992); see also Lander & Budowle,
supra, at 737 (noting disagreement over best solution to population
probability theories).  Although admissibility cannot turn on the content of
the most recent publication in a scientific journal, we must be cognizant of
emerging trends. 

     The first aspect of the DNA profiling process is the RFLP test, which
determines whether 



a DNA match exists.  The RFLP process is firmly rooted in "scientific
knowledge," and an application of the four Daubert factors confirms this
conclusion.  RFLP has been widely tested and has been the subject of a
variety of learned articles.  Lander & Budowle, supra, at 735. The process is
not error-free, but adherence to accepted procedures and controls minimizes
this error.  See People v. Castro, 545 N.Y.S.2d 985, 993-95 (N.Y. Sup. Ct.
1989) (describing techniques to minimize error).  The technique is generally
accepted in the scientific community. State v. Cauthron, 846 P.2d 502, 511
(Wash. 1993) (citing fifteen cases supporting general acceptance of the
test).  Indeed, we cannot find any recent decision under any standard of
admissibility which refuses to admit the DNA match result based on the
invalidity or risk of error of the underlying technology.  See, e.g., Porter,
618 A.2d  at 636 (case law overwhelmingly supports validity of match
technology). 

     We cannot reach the same conclusion about probability statistics if they
are generated by the product method.  Even the conservatism introduced by
fixed-bin analysis, does not attempt to account for the dependence of allele
frequencies in particular populations.  The decisions from other
jurisdictions on the use of the product method are mixed.  Compare State v.
Bible, 858 P.2d 1152, 1190 (Ariz. 1993) (product method statistics
inadmissible); Lanigan, 641 N.E.2d  at 1349-50 (DNA frequency statistics
admissible only if the ceiling principle is used); Vandebogart, 616 A.2d  at
494-95 (same as Bible); and Cauthron, 846 P.2d  at 517, with United States v.
Bonds, 12 F.3d 540, 565 (6th Cir. 1993) (dispute over statistics goes to
weight not admissibility); State v. Pierce, 597 N.E.2d 107, 115 (Ohio 1993)
(same as Bonds); and People v. Soto, 35 Cal. Rptr. 2d 846, 858 (Cal. Ct. App.
1994) (product rule statistics admissible); We note that the courts that
refuse to accept statistics based on the unmodified product method continue
to rely on the more narrow Frye standard. 

     We believe, however, that even under Daubert it is inappropriate to
allow evidence based on the unmodified product method.  In the lexicon of
Daubert, we are concerned that the accuracy of the results cannot be ensured
by testing, there is an unknown potential for error, and 



these calculations are not generally accepted within the scientific
community.  The endorsement of the ceiling principle by the NRC and more
recently by leading advocates in the dispute, including a representative of
the FBI, leads us to this conclusion. Lander & Budowle, supra, at 735. 
Further research may show that the unmodified product rule is reliable, but
the current state of scientific development speaks forcefully that we must
insist on ceiling principle statistics to fully protect rights of criminal
defendants. 

     We are also influenced by a practical consideration.  The debate is not
about whether to allow introduction of probability statistics.  We agree with
the courts that have held that evidence about the fact of one or more allele
matches is not helpful without some evidence about the probability of a match
in the population as a whole.  See, e.g., Vandebogart, 616 A.2d  at 494;
Cauthron, 846 P.2d  at 516.  The debate instead is about how conservative the
probability statistic will be.  Although use of the ceiling principle will
increase the likelihood of a random match, the difference is unlikely to have
any real effect on jury deliberations.  We strongly doubt whether it will
make much difference to a jury whether the probability of random selection of
a person with the same alleles is 1 in 100,000 or 1 in 1,000,000. 

     Thus, we find it wholly impractical to say the dispute over statistical
measurement should go before the jury for a clash of experts on the proper
probability figures.  Such evidence will not assist the jury in understanding
the evidence or determining a fact in issue as required by Rule 702.  It
would threaten to become an evidentiary sideshow raising serious Rule 403
concerns.  On the one hand, it may inappropriately undercut the legitimate
force of DNA match evidence.  On the other hand, it may focus too much
attention on the significance of the probability statistics.  These are
exactly the considerations that prompt concerned experts to try to find a
truce in the scientific debate.  See Lander & Budowle, supra, at 736. 

     The failure of the unadjusted product method to pass muster under the
reliability standards of Daubert does not sound the death knell for the use
of DNA profiling in Vermont courts.  The use of the ceiling principle will
eliminate the objections we have itemized and allow 



introduction of DNA match statistics consistent with legitimate accuracy
concerns of defendants. There is general acceptance within the scientific
community that the ceiling principle over- compensates for any population
substructure or allele linkage.  See Barney, 10 Cal. Rptr. 2d  at 745 (ceiling
principle points way to common ground).  Because the ceiling principle offers
an unabashedly conservative estimate, the risk of error is minimal. 

                               C.

     The ceiling principle, however, was not used in this case.  The trial
court admitted the FBI's calculations under the fixed-bin method which
calculated that the odds of a coincidental match were one in 50,000.  Because
admitting this statistic was error, we must evaluate the effect of the
evidence and determine whether the error was harmless, or adversely affected
defendant's substantial rights.  V.R.Cr.P. 52(a);  see State v. Lynds, 158
Vt. 37, 42, 605 A.2d 501, 503 (1991). 

     If the error here were of constitutional dimension, we could find the
error harmless only if it is clear beyond a reasonable doubt that the jury
would have returned a guilty verdict regardless of the error.  Lynds, 158 Vt.
at 42, 605 A.2d  at 503.  We have not created a definitive standard for
non-constitutional errors.  See State v. Curavoo, 156 Vt. 72, 76-77, 587 A.2d 963, 965-66 (1991) ("Vermont harmless-error rule appears in need of
clarification").  We conclude that we do not have to adopt a definitive
standard to decide this case. 

     Whatever the standard, the factors that guide our inquiry are the same. 
Lynds, 158 Vt. at 42, 605 A.2d  at 503.  These include the importance of the
evidence in the prosecution's case, whether the evidence was cumulative, the
extent of cross-examination, and the overall strength of the prosecution's
case.  Id.  We start by emphasizing the nature of the error in this case. 
The error is not that the State's witness declared a DNA match, nor even that
he offered probability statistics on whether the DNA sample found on the
victim came from someone other than defendant.  Instead, the error is that
the probability of a coincidental match, placed at 1 in 50,000 by the
witness, is too low under the ceiling principle.  See Vandebogart, 616 A.2d 
at 



495.(FN4) Although we do not know the exact number that would be produced
by the ceiling principle, we understand that it would be in the range of 1 in
1000 to 1 in 5000. 

     The disputed DNA statistics were certainly not the most incriminating
aspects of the State's case.  Other scientific tests were performed which
linked defendant to the crime scene. Samples of his pubic hair matched those
found on the victim's bedsheet.  Secretor status tests revealed that
defendant's secretor status was consistent with the blood type and secretor
status found in the semen on the victim's underwear.  The victim conclusively
identified defendant's voice as that of her assailant from a voice line-up. 
She identified her attacker as a six-foot-tall man with brownish hair parted
in the middle and feathered down the sides; defendant matched this
description.  She also identified rings that defendant gave his girlfriend as
those that were stolen from her when she was attacked.  Finally, the victim
testified that her assailant had threatened her with a .45 caliber
semiautomatic pistol, and investigators retrieved this type of gun from
someone who had purchased the gun from defendant. 

     In the wake of all of this evidence, the admission of the DNA profile
statistic was cumulative in nature and not very significant.  See Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986).  We recognize that DNA statistics can
have a powerful impact on a jury.  Where other identification evidence is
overwhelming, however, other courts have found  beyond a reasonable doubt
that the erroneous admission of probability statistics was harmless.  See
Bible, 858 P.2d  at 1191; Barney, 10 Cal. Rptr. 2d at 747-48; Nelson v. State,
628 A.2d 69, 77 (Del. 1993). On this basis, we find the error in the
admission of the product method probability statistics to be harmless error. 

                               D.



     The last DNA issue we must address concerns whether the FBI used proper
procedures in performing the RFLP test.  We recognize the sensitivity of the
RFLP test, and note that even minor errors in the laboratory can have a
dramatic impact on the results.  See Vandebogart, 616 A.2d  at 491 (referring
to courts excluding DNA evidence because laboratory failed to follow
established procedures).  Indeed, additional problems exist when the test is
used for forensic purposes because the quality of forensic samples may be
adversely affected by weather, time, or insufficient quantity.  See
Commonwealth v. Curnin, 565 N.E.2d 440, 441 (Mass. 1991). Nonetheless,
defendant's arguments on this issue are not persuasive. 

     Defendant contests the fact that the FBI did not repeat the RFLP process
to verify its conclusions.  We find nothing in the record or the relevant
literature to suggest that RFLP is not reliable unless the same results are
obtained twice.  In addition, defendant challenges the FBI's use of cross-gel
analysis whereby his known sample on one autorad was compared to the evidence
sample on another autorad.   Cross-gel analysis was employed because the
results from defendant's known sample on the initial autorad were
inconclusive.  It is important to note that the inconclusive results were on
defendant's known sample, not the sample obtained from the victim and the
crime scene, and that adequate controls were in place which allowed for this
type of cross-gel comparison.   The trial judge carefully considered the
evidence on the reliability of results based on cross-gel analysis, and ruled
the results admissible.  We think the ruling was within his discretion. 

                               III.

     Defendant contests the trial court's admission of the blood-type
evidence of Mark Rouelle, the person defendant theorized had committed the
crime.  He maintains that his due process rights were violated because the
trial court admitted the evidence contrary to its July 10th pretrial ruling,
adversely affecting his trial strategy. 

     Defendant misinterprets the trial court's pretrial ruling as a fixed
prohibition against the introduction of the blood-type evidence.  The court
instructed the prosecution that the ruling 



could be revisited depending upon what transpired at trial.  It stated that
the prosecution could not mention the blood-type evidence in its opening
statement or its case-in-chief, but it specifically left open the question of
whether the prosecution could use the evidence on rebuttal. The prosecution
honored these instructions, and with the court's permission, introduced the
evidence on rebuttal.  Although defendant may have misinterpreted the court's
instructions, his misunderstanding does not create reversible error. 

     Even assuming that the pretrial ruling specifically precluded the
admission of the blood- type evidence, we have held that pretrial rulings are
provisional, and are subject to later modification.  See State v. Bruno, 157
Vt. 6, 8, 595 A.2d 272, 273 (1991).  Thus, a ruling on a pretrial motion to
exclude evidence is tentative and subject to revision at trial.  See id.
(citing State v. Blondin, 128 Vt. 613, 617, 270 A.2d 165, 167 (1970)).   In
light of these decisions, defendant's reliance on the pretrial ruling to
determine his trial strategy was imprudent.  Because he could not
legitimately expect to rely on the ruling, no due process violation exists. 

     Defendant also asserts that the trial court's decision to admit the
blood-type evidence of Mark Rouelle was error.  The blood-type evidence was
offered to rebut defendant's theory that Rouelle committed the crime.  It is
well within the trial court's discretion to admit evidence that rebutted a
theory aggressively advanced by defendant.  See State v. Jones, 160 Vt. 440,
446, 631 A.2d 840, 846 (1993) (trial court has wide discretion over
evidentiary rulings, including the admission of rebuttal testimony). 

                               IV.

     Defendant next contends that the State violated V.R.Cr.P. 16(a)(1) and
V.R.Cr.P 16.2(b) by failing to give the defense timely notice of the Rouelle
blood- and hair-analysis report.  The State provided the defense with this
report on July 9th, the day before trial. 

     V.R.Cr.P. 16(a)(1) imposes a duty on the State to disclose to the
"defendant as soon as possible the names and addresses of all witnesses then
known to [it]."  V.R.Cr.P. 16.2(b) further provides that the State has a
continuing duty to disclose relevant material discovered after initial



compliance with a discovery request.  The purpose of these rules is to
prevent the State from assuming an unfair advantage over the defense.  See
State v. Percy, 149 Vt. 623, 636, 548 A.2d 408, 416 (1988).  To establish
reversible error, however, defendant must show both a violation of the rule
and resulting prejudice.  Jones, 160 Vt. at 446, 631 A.2d  at 845 (citing
State v. Sird, 148 Vt. 35, 39, 528 A.2d 1114, 1116 (1987)); State v. Heath,
___ Vt. ___, ___, 649 A.2d 243, 244 (1994).  Defendant has shown neither. 

     Nothing suggests that the State gained an unfair advantage by its
untimely delivery of the Rouelle report.  Indeed, at least two years prior to
trial, the State provided defendant with test results showing the blood-type
and secretor status of the victim and defendant.  Defendant should have
anticipated that similar blood-type evidence would be taken from Rouelle once
he proposed that Rouelle was the real perpetrator.  Furthermore, the State's
explanation for the delay in producing the Rouelle report was reasonable. 
The State did not learn of the defense plan to name Rouelle as the
perpetrator until May 20, 1991.  Testing of Rouelle was also delayed by his
competency determination and frequent change of counsel.   There is no
evidence that the State deliberately withheld the reports or acted in bad
faith. 

     Moreover, the only objection defendant's counsel raised below concerned
his inability to confer with his expert about the test results given the
short notice.  The trial court addressed this problem when it precluded the
State from using any of the contested evidence in its opening statement or
case-in-chief.  The record shows that the blood-type evidence of Mark Rouelle
was not introduced until late in the trial, and defense counsel conceded that
his expert would be able to review the reports by that time. 

     Even if the expert could not have reviewed the report, defendant has
failed to show prejudice.  He makes no claim how the expert review would have
affected his defense strategy or made it more viable.  His only claim is that
the defense would have been stronger without the evidence, a claim that may
be true but is not responsive to the asserted error. 

     Defendant also asserts that the State's failure to provide timely notice
of the Rouelle 



report violated Article 10 of the Vermont Constitution and the Sixth
Amendment to the United States Constitution.  For the reasons explained
above, no constitutional violations exist. 

     Defendant argues further that the State's failure to disclose the
Rouelle report in a timely fashion required the trial court to grant his
motion for a continuance.  The granting of a continuance by the trial court
is a matter of discretion.  State v. Bailey, 144 Vt. 86, 93, 475 A.2d 1045,
1049  (1984).  This Court will not interfere with a discretionary action of
the trial court as long as a reasonable basis exists for the court's
decision.  Brooks v. Brooks, 131 Vt. 86, 93, 300 A.2d 531, 535 (1973).  To
support a claim of error, defendant must show that the trial court's decision
was untenable or clearly unreasonable.  State v. Ahern, 137 Vt. 253, 267, 403 A.2d 696, 705 (1979).  He fails to make this showing. 

     The trial court fully considered defendant's need to have his expert
review the Rouelle report, and specifically postponed the State's
introduction of this evidence to provide defendant with an opportunity for
his expert to review the report.  This approach is consistent with our
previous cases.  See  State v. Burnham, 145 Vt. 161, 168-69, 484 A.2d 918,
923 (1984) (no abuse of discretion where trial court declared recess to
permit defendant opportunity to interview witness not disclosed by State);
State v. Connarn, 138 Vt. 270, 271, 413 A.2d 812, 814 (1980) (no abuse of
discretion where trial court gave defendant opportunity to depose witness not
disclosed by State).  Thus, there was no prejudice to defendant from the
denial of the continuance.  Compare Heath, ___ Vt. at ___, 649 A.2d  at 244. 
Accordingly, we can not hold that the trial court's refusal to grant a
continuance was an abuse of discretion. 

                               V.

     Defendant next challenges the trial court's refusal to allow into
evidence the statutory standards under V.R.Cr.P. 41.1 (c) for obtaining a
nontestimonial identification order (NTO).(FN5) 



He argues that because an NTO was issued against Mark Rouelle, the
requirements for such orders are relevant to support his theory that Rouelle
committed the crime.  Thus, he asserts the trial court violated V.R.E. 402
(relevant evidence is admissible unless otherwise excluded) by excluding this
evidence. 

     V.R.E. 401 defines evidence as relevant if it has "any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence."
 Despite this broad rule of relevancy, the decision to admit evidence lies
within the sound discretion of the trial court, and will not be overturned on
appeal absent a showing of an abuse of discretion.  See State v. LaRose, 150
Vt. 363, 371, 554 A.2d 227, 223 (1988).  In this case, the fact that the
trial judge found that the NTO standards were met with respect to Rouelle
adds nothing to the jury's task of determining the identity of the victim's
assailant.  Moreover, introduction of the NTO standards might mislead the
jury into thinking that the court's action somehow bound their determination.
 See V.R.E. 403.  The trial court's decision to exclude this information was
a proper exercise of its discretion. 

                               VI.

     Defendant argues that the trial judge's misrepresentation to potential
jurors of the reason 



for the presence of television cameras in the courtroom warranted a mistrial
because this deception destroyed the jury's confidence and trust in the
proceedings.  He further contends that the trial judge erred by failing to
either examine the jury regarding this matter or issue a curative
instruction.  Our review of the record does not support these arguments. 

     We agree that the trial judge's explanation to the jury pool about the
presence of television cameras was inaccurate.  As defendant points out,
prospective jurors complained to the Judicial Conduct Board about the
deception, demonstrating their negative reactions.  There is no evidence,
however, that the empaneled jurors were negatively affected by the deception.
Indeed, the empaneled jury was questioned about whether it had read or heard
anything in the media regarding the trial;  only one juror responded
affirmatively, and he was excused from the panel.  In addition, the judge
instructed the empaneled jury that the trial was going to be televised.  He
inquired whether this filming would interfere with any juror's ability to
work in an unbiased, impartial manner;  none indicated that the filming would
interfere with their work. 

     We agree with defendant that he is entitled to an impartial jury free
from any suspicious taint by outside influences, and that he need show only
that an irregularity had the capacity to influence the result of the trial,
not that it actually did so.  See State v. Griffin, 152 Vt. 41, 45, 563 A.2d 642, 645 (1989).  He failed, however, to show any irregularities or outside
influences on the empaneled jurors.  Accordingly, the trial court's denial of
his motion for a mistrial was proper. 

                               VII.

     Defendant claims that the trial court improperly instructed the jury on
the State's burden of proof.  There is no error if the jury charge as a whole
conveys the "`true spirit of the law, and there is no fair ground to say that
the jury has been misled by it.'"  State v. Benoit, 158 Vt. 359, 362, 609 A.2d 230, 232 (1992) (quoting State v. Williams, 154 Vt. 76, 81, 574 A.2d 1264,  1267 (1990)).  Moreover, because defendant failed to make a timely
objection to the language he now challenges, the verdict may be overturned
only for plain error.  V.R.Cr.P. 



52(b); State v. Welch 136 Vt. 442, 444, 394 A.2d 1115, 1116 (1978).  Plain
error will be found only in rare and extraordinary cases where the error is
obvious and strikes at the heart of defendant's constitutional rights or
results in a miscarriage of justice. See State v. Ross, 152 Vt. 462, 469, 568 A.2d 335, 339 (1989).  Defendant fails to meet this standard. 

     Defendant bases his claim on two isolated phrases from the trial court's
lengthy charge to the jury.  These phrases note that the jury's role is to
"seek the truth."  Relying on State v. Giroux, 151 Vt. 361, 365, 561 A.2d 403, 406 (1989), he maintains that the inclusion of these phrases caused the
jury to lose sight of the prosecution's burden to prove defendant's guilt
beyond a reasonable doubt.  When we look at the entirety of the charge,
however, we find that the court repeatedly instructed that the State's burden
was proof beyond a reasonable doubt. Taken as a whole, the court's charge
correctly conveyed to the jury the State's burden of proof. There is no plain
error. 

                              VIII.

     Finally, defendant argues that the trial court exhibited bias and
prejudice toward him and defense counsel during pretrial and trial
proceedings.  He lists twelve incidents that he claims individually and
collectively demonstrate the court's bias and prejudice.  We have already
addressed several of these incidents in our discussion above, and determined
that the court's actions were proper; thus, they require no further
discussion here.(FN6)  Defendant's remaining examples of judicial bias are as
follows:  (1) imposition of a thirty-minute limit on defense 



counsel's cross examination on rebuttal of a State witness during a hearing
on a pretrial motion; (2) attempts to "coerce" defense counsel to waive his
client's Fifth Amendment privilege; (3) reference to one of defense counsel's
statements as "fantasy"; and (4) the grant of the State's request for an NTO
of Mark Rouelle. 

     Although we address each of these claims, we emphasize that rulings
adverse to the defense, even if erroneous, do not by themselves demonstrate
that the judge was biased.  It is incumbent on defendant to make some showing
of improper motivation by the rulings, a showing he has not made here. 

     Defendant first contends that the trial court impermissibly limited
defense counsel's cross- examination of a state witness during a hearing on a
pretrial motion.  Rule 611(a) of the Vermont Rules of Evidence provides that
the trial court has the authority to set reasonable limits on the consumption
of time in examining witnesses.  These time limits must be reasonable and
sufficiently flexible to ensure that important evidence is not excluded due
to artificial time constraints.  See Varnum v. Varnum, 155 Vt. 376, 390, 586 A.2d 1107, 1115 (1990).  Here, there is no indication that the limit on the
length of the witness's cross-examination was unreasonable or that important
evidence was excluded. 

     Defendant also asserts that the trial court tried to "coerce" defense
counsel to waive his client's Fifth Amendment privilege, and that the court
referred to one of defense counsel's statements as "fantasy."  These
incidents stem from the televised coverage of the trial, and relate to
discussions between the parties concerning what type of immunity would be
extended to defendant in his interviews with television reporters.  The
prosecution and defense counsel could not agree, and the trial court's
frustration over the issue is apparent from the transcript. Defendant is
wrong to characterize the court's impatience as an attempt to coerce defense
counsel into waiving any of his client's rights.  Indeed, the court
specifically stated that the decision whether to participate in the
television interviews ultimately rested with defendant.  The court's
reference to "fantasy" was in response to an example defense counsel offered
to further 



explain his position.  The court noted that the example was not comparable to
the situation at hand, not that defendant's Fifth Amendment concerns were
fantasy.  The court's comments, when considered in their proper context, do
not show bias or prejudice. 

     Defendant also maintains that the trial court's bias was exhibited by
granting the State's request for an NTO of Mark Rouelle, but he fails to
provide any reasons or explanation why this ruling was biased.  Given that
the State's request for the NTO was prompted by defendant's claim that
Rouelle had committed the crime, the court's decision was reasonable. 
Defendant invites us to find that the court was biased merely because it
ruled in favor of the other side; for obvious reasons, we decline the
invitation. 

     Finally, defendant argues that the cumulative effect of all these
incidents constitutes judicial bias.  Because we have not found any instance
of judicial bias, no cumulative effect exists.  See State v. Wheel, 155 Vt.
587, 612, 587 A.2d 933, 948 (1990). 

     Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate  Justice


-----------------------------------------------------------------------------
                              Footnotes


FN1. This Court has previously considered the use of DNA evidence to show that a
 defendant was not the perpetrator of a crime.  State v. Passino, No. 92-078
 (Vt. Mar. 18, 1994).  Because the use of DNA evidence for exculpatory
 purposes does not involve the same issues as when it is used for inculpatory
 purposes, Passino is not relevant to this analysis. 

FN2. For a more extensive discussion of these two disciplines see United
 States v. Jakobetz, 747 F. Supp. 250, 251-54 (D.Vt.1990), State v. Cauthron,
 846 P.2d 502, 508-15 (Wash. 1993); State v. Vandebogart, 616 A.2d 483, 486-89
 (N.H. 1992); Commonwealth v. Curnin, 565 N.E.2d 440, 445-448 (Mass. 1991); 
 Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R. 4th 313
 (1991); Note, The Dark Side of DNA Profiling:  Unreliable Scientific Evidence
 Meets the Criminal Defendant, 42 Stan. L. Rev. 465 (1990). 

FN3. The Court also emphasized that the inquiry regarding the admissibility
 of scientific evidence can not be divorced from the other rules of evidence. 
 Daubert, ___ U.S. at ___, 113 S. Ct.  at 2979.  The Court noted that Rules 703
 (otherwise inadmissible hearsay permitted if it normally relied upon by
 experts in the field),  706 (court may procure assistance of expert of its
 own choosing), and 403 (relevant evidence excluded if probative value
 outweighed by unfair prejudice) are also relevant to an admissibility
 inquiry. 

FN4. The Supreme Court of New Hampshire remanded the case to the trial court
 to determine whether use of ceiling principle statistics would have made any
 difference in the outcome of the criminal trial.  Vandebogart, 616 A.2d  at
 495.  Although we believe it is unnecessary to remand in this case to assess
 the effect of the error, we do not rule out such a procedure in other cases. 

FN5. V.R.Cr.P. 41.1(c) provides:

 An order shall issue only on an affidavit or affidavits sworn before
 the judicial officer and establishing the following grounds for the
 order:

 (1) that there is probable cause to believe that an offense has been
 committed;
 (2) that there are reasonable grounds, that need not amount to
 probable cause to arrest, to suspect that the person named or
 described in the affidavit committed the offense; and
 (3) that the results of specific nontestimonial identification
 procedures will be of material aid in determining whether the
 person named in the affidavit committed the offense.

FN6. The alleged incidents of bias or prejudice which we have already
 discussed include: (1) the admission of the Rouelle report at trial despite
 the court's pretrial ruling, (2)  the trial court's denial of defendant's
 motion for a continuance, (3)  the exclusion of the NTO standards, and (4)
 the denial of the mistrial motion based on the trial judge's
 misrepresentations to prospective jurors.  Defendant attempts to squeeze
 several different arguments out of the trial court's decision regarding the
 inclusion of the Rouelle report (i.e., that the court's evidentiary rulings
 were motivated by the State's needs, refusing to issue clear and concise
 rulings regarding the Rouelle report evidence, and forcing defense counsel to
 present Rouelle as a witness after it rested).  We are unpersuaded by this
 effort.  Our earlier discussion adequately addresses any concerns defendant
 has regarding the trial court's treatment of the Rouelle report.