United States v. Allison , 63 M.J. 365 ( 2006 )

UNITED STATES, Appellee
v.
Reginold D. Allison, Mess Management Specialist Seaman
U.S. Navy, Appellant
No. 05-0235
Crim. App. No. 200000637
United States Court of Appeals for the Armed Forces
Argued February 23, 2006
Decided August 9, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in part and dissenting in
part.
Counsel
For Appellant: Lieutenant Commander Jason S. Grover, JAGC, USN
(argued).
For Appellee: Lieutenant Mark H. Herrington, JAGC, USN
(argued); Captain Glen R. Hines, USMC, and Commander Charles N.
Purnell, JAGC, USN (on brief).
Amicus Curiae for Appellant: Derrien A. Bonney (law student)
(argued); Phyllis C. Smith, Esq. (assistant professor) (on
brief) – for the Florida A&M University College of Law.
Military Judge: Peter J. Straub
This opinion is subject to revision before final publication.
United States v. Allison, No. 05-0235/NA
Judge ERDMANN delivered the opinion of the court.1
Mess Management Specialist Seaman Reginald D. Allison was
charged with fleeing apprehension, rape, assault with a means
likely to produce grievous bodily harm, assault with a dangerous
weapon, assault upon a police officer, and burglary with intent
to commit rape in violation of Articles 95, 120, 128, and 129,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 895, 920,
928, 929 (2000). At a general court-martial he was acquitted of
assault on a police officer but convicted of fleeing
apprehension, assault consummated by a battery (choking),
assault consummated by a battery with a knife, burglary with
intent to commit rape, and rape. He was sentenced to a
reduction in grade to E-1, forfeiture of all pay and allowances,
confinement for eight years, and a bad-conduct discharge. The
convening authority approved the findings and sentence which
were then affirmed by the United States Navy-Marine Corps Court
of Criminal Appeals. United States v. Allison, No. NMCCA
200000637, 2004 CCA LEXIS 257, *32-33 (N-M. Corps Ct. Crim. App.
Nov. 24, 2004) (unpublished).
1
We heard oral argument in this case at Florida A&M University
College of Law as part of the Court’s “Project Outreach.” See
United States v. Mahoney, 58 M.J. 326, 347 n.1 (C.A.A.F. 2003).
This practice was developed as part of a public awareness
program to demonstrate the operation of a federal court of
appeals and the military justice system.
2
United States v. Allison, No. 05-0235/NA
A witness may testify as an “expert” on a particular
subject matter only if the military judge determines that the
witness is qualified based on his or her “knowledge, skill,
experience, training, or education” regarding that subject.
Military Rule of Evidence (M.R.E.) 702. The first granted issue
addresses whether the military judge abused his discretion in
allowing two government witnesses who were otherwise qualified
as DNA analysis experts to testify as to the statistical
significance of that analysis. The second granted issue
addresses whether Allison’s due process rights were violated by
an appellate review that took 1,867 days from trial to the
issuance of a decision by the Navy-Marine Corps Court of
Criminal Appeals.2 We hold that the military judge did not abuse
his discretion in allowing the expert witnesses to testify as to
the statistical significance of the DNA analysis. We further
conclude that Allison is not entitled to any relief as a result
of the delay in his appellate processing.
2
We granted review of the following issues:
I. WHETHER THE GOVERNMENT’S TWO DNA
EXPERTS, MR. Y AND MISS J, WERE WHOLLY
QUALIFIED AS EXPERTS IN FORENSIC DNA
ANALYSIS, TO INCLUDE EXPERTISE IN THE
FREQUENCY OF OCCURRENCES FOR PARTICULAR
DNA SAMPLES.
II. WHETHER APPELLANT’S DUE PROCESS RIGHTS
WERE VIOLATED WHEN IT TOOK MORE THAN
FIVE YEARS FOR THE ARTICLE 66 REVIEW BY
THE COURT BELOW TO BE COMPLETED.
3
United States v. Allison, No. 05-0235/NA
I. Expert Qualification
Background
The charges against Allison arose from events that occurred
in the early morning hours of November 8, 1998. A man broke
into the room of Yeoman Third Class (YN3) RR and assaulted and
raped her. He then strangled her until she was unconscious.
Yeoman Third Class RR was acquainted with Allison and testified
that during the assault she recognized Allison’s eyes through
the ski mask he wore. She also testified that she recognized
his voice when he threatened her. Allison’s defense at trial
was that he was not the perpetrator of the rape and that it was
a case of mistaken identity.
In addition to YN3 RR’s identification of Allison, a condom
containing semen was found on the floor of YN3 RR’s room
following the rape. Two DNA experts, Mr. Y and Miss J,
conducted DNA testing on the semen in the condom and Allison’s
blood. Both experts found that the DNA in the two items was a
match.
Before trial a hearing pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), was held regarding
the admissibility of the DNA evidence. At that hearing Mr. Y
testified to his almost thirty years as a forensic serologist
and his background and qualifications for conducting polymerase
chain reaction (PCR) and restriction fragment length
4
United States v. Allison, No. 05-0235/NA
polymorphism (RFLP) DNA testing. He also testified regarding
the procedures involved in PCR and RFLP testing, as well as the
processes by which statistical analysis of the results of those
tests is made.
In response to questions from defense counsel regarding his
training in statistical DNA analysis, Mr. Y testified that he
had attended three different workshops on the subject. He
testified that he knew “how to calculate the frequency of
occurrence values for the loci that we use at the laboratory.”
He explained that he did his calculations using a method
provided by the National Research Council (NRC)3 giving guidance
on “how frequence of occurrence values should be calculated.”
He also explained that the database used in his calculations was
provided by a company called PerkinElmer Inc.4 and he explained
how that database was developed by testing individuals from
certain racial groups.
Defense counsel objected that Mr. Y was not qualified as an
expert in PCR, RFLP or statistical analysis. The military judge
3
Mr. J testified that the National Research Council (NRC) is a
part of the National Academy of Sciences and has issued several
reports on the reliability of DNA testing. He also stated that
the method of calculation provided by NCR is widely accepted and
used by a number of laboratories in calculating statistical
frequencies.
4
PerkinElmer Inc.’s Life & Analytical Sciences division
“provides drug discovery, genetic screening and chemical
analysis instrumentation, reagents and services for scientific
research and clinical applications.”
http://las.perkinelmer.com/About+Us/default.htm.
5
United States v. Allison, No. 05-0235/NA
found that Mr. Y was qualified as an expert in PCR and RFLP
analysis and informed the defense counsel that “the genetics
merely goes to an argument you can bring out in front of the
members.” Mr. Y went on to testify about PCR and RFLP testing
and its use and acceptability in the scientific community.
Defense counsel again questioned him on his knowledge and
understanding of population genetics and statistical analysis.
While Mr. Y testified that he was not a population geneticist,
he was able to explain the racial distinctions made by the
database upon which he relied and explained the limitations of
the database when confronted with a person of mixed race. He
also explained that he relied on NCR “confidence intervals”
which provided a “range in frequency of occurrence values that
you say with . . . that size of a data base that you have, if
you went out and took that data base again, you would have a 95
percent confidence that you would get numbers between these
values.”
Following the Daubert hearing, the military judge ruled
that “the underlying principles and techniques used in DNA
profiling, specifically PCR and RFLP testing, are sound and
reliable and [DNA profiling] is sufficiently reliable to warrant
its use in the courtroom.” In so holding, the military judge
also found:
Counsel’s argument that a statistician is
needed in this determination is misspent.
6
United States v. Allison, No. 05-0235/NA
The statistical analysis required is based
on data bases and formulas provided by
statisticians. The expert testified he
attended several workshops in the use of
these formulas giving him the ability to --
to make the calculations. If anything, this
may be just grist for cross-examination.
At trial Mr. Y testified again regarding his qualifications
in DNA testing, his curriculum vitae (CV) was admitted, and the
military judge recognized him as an expert in “the field of
forensic serology and forensic DNA analysis . . . .” The
defense renewed its earlier objection to Mr. Y’s testimony
regarding the DNA statistical analysis based on the fact that
Mr. Y was not a population geneticist. The objection was
overruled by the military judge.
Consistent with his DNA testing report, Mr. Y testified
that there was a match between the DNA in the condom and
Allison’s DNA, and that the frequency of selecting an unrelated
individual at random from the population having this profile is
approximately 1 in 3.9 billion for a Caucasian and 1 in 17
million for an African American.5 Mr. Y also explained how the
numbers that made up the frequencies were calculated and stated
5
Mr. Y also testified, consistent with his report, that there
was a match between the non-sperm DNA found in the condom, blood
found on a knife that was also found in Yeoman Third Class (YN3)
RR’s room, and YN3 RR’s DNA, and that the “frequency of
selecting an unrelated individual at random from the population
having this profile is approximately” 1 in 3 million for a
Caucasian and 1 in 1.6 million for an African American.
7
United States v. Allison, No. 05-0235/NA
that in fact the numbers given in his report were
“conservative.”6
Miss J was called to testify as a forensic serologist and a
DNA examiner with fourteen years of experience. In support of
her qualifications the Government offered her CV which reflected
that she had taken courses in statistics and had participated in
training regarding statistics in DNA analysis. The defense
objected to her qualification as an expert based on her lack of
advanced degrees and because she was not a population
geneticist. That objection was also overruled by the military
judge.
Miss J testified about the DNA testing process and that she
had conducted RFLP testing on the DNA samples. She concluded
that the DNA from the semen in the condom matched Allison’s DNA.
Her report which summarized these test results was also
admitted. That report stated that “[t]he estimated probability
of finding this profile in an unrelated person is: 1 in 3
quadrillion in the U.S. Caucasian population, 1 in 900 trillion
in the African American population and 1 in 40 trillion in the
U.S. Hispanic population.” Miss J also testified regarding
6
Mr. Y explained that the calculations were “conservative”
“because you’re not using any -- any rare event to -- to make
that calculation[,]” and because they had tested thirteen loci
overall, “and the frequency of occurrence values for those were
calculated independently. In other words, one did not affect
the other.”
8
United States v. Allison, No. 05-0235/NA
these statistical probabilities and explained that these numbers
were conservative ones.
On cross-examination, defense counsel questioned Miss J
regarding her understanding of the database that formed the
basis for her statistical analysis. Miss J testified that in
developing these numbers she relied upon a database provided by
the Federal Bureau of Investigations, and that this database was
developed by testing between 300 and 750 people. She stated
that like the database relied upon by Mr. Y, the database she
relied upon was broken down by racial groups. Defense counsel
also questioned Miss J regarding her knowledge of statistics in
general. Miss J testified that the method she followed came
from the NRC and was based on recommendations from a number of
lawyers and statisticians.
Discussion
A witness may testify as an “expert” on a particular
subject matter only if the military judge determines that the
witness is qualified based on his or her “knowledge, skill,
experience, training, or education” regarding that subject.
M.R.E. 702. The facts or data that an expert relies upon in a
particular case may be referenced before the trial and if of a
type “reasonably relied upon by experts in the particular field
in forming opinions or inferences”, the data need not be
admissible in order for the opinion to be admitted. M.R.E. 703.
9
United States v. Allison, No. 05-0235/NA
“The military judge has broad discretion as the ‘gatekeeper’ to
determine whether the party offering expert testimony has
established an adequate foundation with respect to reliability
and relevance.” United States v. Green, 55 M.J. 76, 80
(C.A.A.F. 2001). A military judge’s decision regarding the
qualifications of an expert witness is reviewed by this court
for abuse of discretion. See United States v. Billings, 61 M.J.
163, 166 (C.A.A.F. 2005).
In United States v. Youngberg, 43 M.J. 379, 386 (C.A.A.F.
1995), we held that DNA testing was sufficiently reliable and
“is admissible at courts-martial if a proper foundation is
laid.” The defendant in Youngberg also argued at trial that
“‘there is a lack of general acceptance of the statistical
approach which quantifies the significance of an alleged
match.’” Id. at 387 n.9. We rejected that argument, and
followed the United States Court of Appeals for the Tenth
Circuit which held that “‘statistical probabilities are basic to
DNA analysis and their use has been widely researched and
discussed.’” Id. at 387 (quoting United States v. Davis, 40
F.3d 1069, 1075 (10th Cir. 1994)). Like the underlying DNA
analysis, this statistical evidence also is admissible at court-
martial so long as a proper foundation is laid.7
7
Where, as here, the scientific evidence being offered is not
novel, the proponent of the evidence needs to show only that the
proffered expert relied upon sufficient facts or data, used
10
United States v. Allison, No. 05-0235/NA
We begin our analysis by concluding that evidence of
statistical probabilities is not only “basic to DNA analysis,”8
but also essential to the admissibility of that analysis. In
this regard, we follow the state courts which have held that
without evidence of statistical frequencies, DNA evidence is
meaningless and would not be admissible. See, e.g., People v.
Coy, 620 N.W.2d 888, 898-99 (Mich. Ct. App. 2000) (concluding
that “some qualitative or quantitative interpretation must
accompany evidence of a potential match”); United States v. Yee,
134 F.R.D. 161, 181 (N.D. Ohio 1991) (holding that “[w]ithout
the probability assessment, the jury does not know what to make
of the fact that the patterns match”); State v. Cauthron, 846
P.2d 502, 516 (Wash. 1993) (“Testimony of a match in DNA
samples, without the statistical background or probability
estimates, is neither based on a generally accepted scientific
theory nor helpful to the trier of fact.”); see also M.R.E. 401
(requiring evidence be logically relevant).
reliable principles and methodology and possessed sufficient
knowledge, skill, experience, training, or education. M.R.E.
702. If the opposing party then wishes to challenge
admissibility of the proffered evidence based on the data or
methodology relied upon, that party has the opportunity to do
so. See United States v. Billings, 61 M.J. 163, 166 (C.A.A.F.
2005).
8
United States v. Davis, 40 F.3d 1069, 1075 (10th Cir. 1994).
11
United States v. Allison, No. 05-0235/NA
Allison does not challenge the qualifications of Mr. Y and
Miss J with respect to their expertise in DNA analysis, but he
argues that they lacked the necessary qualifications in
populations genetics to be allowed to testify as to the
statistical frequency analysis. Although statistical
probabilities may be “basic to DNA analysis,” Davis, 40 F.3d at
1075, it does not necessarily follow that all experts qualified
to give testimony on DNA analysis will be qualified to testify
regarding statistical frequencies. Nor does it necessarily
follow, however, that a witness must be an expert population
geneticist to explain and testify about the methodology and
calculations used to determine the statistical probability of a
match between two DNA samples.
The record reflects that Mr. Y and Miss J had received
training in DNA statistical analysis and both had considerable
experience in conducting that analysis. Mr. Y testified that he
had attended three different workshops on statistical analysis
of DNA evidence, and that he knew “how to calculate the
frequency of occurrence values for the loci that we use at the
laboratory.” Miss J’s CV reflected that she had taken courses
in statistics and had participated in training regarding
statistics in DNA analysis. Both experts responded to questions
regarding their statistical conclusions and their understanding
of the databases upon which their calculations relied. The
12
United States v. Allison, No. 05-0235/NA
testimony also established that the method of calculation
utilized in the analysis had been developed by statisticians and
was widely accepted.
We therefore conclude that the military judge did not abuse
his discretion in allowing the witnesses to testify regarding
the statistical frequencies establishing the relevance of the
DNA evidence. There was sufficient evidence from which the
military judge could determine that Mr. Y and Miss J possessed
the “knowledge, skill, experience, training, or education” to
testify about the databases upon which they relied, their method
of calculation, and the results of their statistical frequency
determinations. M.R.E. 702.
II. Appellate Delay
In analyzing whether appellate delay has violated the due
process rights of an accused we first look at whether the delay
in question is facially unreasonable. United States v. Moreno,
63 M.J. 129, 136 (C.A.A.F. 2006). If it is, then this court
examines and balances the four factors set forth in Barker v.
Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay;
(2) the reasons for the delay; (3) the appellant’s assertion of
the right to timely review and appeal; and (4) prejudice. See
Moreno, 63 M.J. at 135-36; United States v. Jones, 61 M.J. 80,
83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102
(C.A.A.F. 2004). If we conclude that an appellant has been
13
United States v. Allison, No. 05-0235/NA
denied the due process right to speedy post-trial review and
appeal, “we grant relief unless this court is convinced beyond a
reasonable doubt that the constitutional error is harmless.”
United States v. Toohey, 63 M.J. __ (24) (C.A.A.F. 2006).
Whether an appellant has been denied the due process right to a
speedy post-trial review and appeal, and whether constitutional
error is harmless beyond a reasonable doubt are reviewed de
novo. United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F.
2006) (constitutional error); United States v. Kreutzer, 61 M.J.
293, 299 (C.A.A.F. 2005); United States v. Rodriguez, 60 M.J.
239, 246 (C.A.A.F. 2004) (due process); United States v. Cooper,
58 M.J. 54, 58 (C.A.A.F. 2003) (due process).
As a general matter, we can dispose of an issue by assuming
error and proceeding directly to the conclusion that any error
was harmless. See United States v. Gorence, 61 M.J. 171, 174
(C.A.A.F. 2005) (any error in permitting evidence of preservice
drug use was harmless); United States v. Lovett, 59 M.J. 230,
234 (C.A.A.F. 2004) (assuming error in admitting hearsay, the
error was harmless); United States v. Bolkan, 55 M.J. 425, 428
(C.A.A.F. 2001) (any error in defense counsel’s concession that
a punitive discharge was an appropriate punishment was
harmless). Similarly, issues involving possible constitutional
error can be resolved by assuming error and concluding that the
error is harmless beyond a reasonable doubt. See United States
14
United States v. Allison, No. 05-0235/NA
v. Cuento, 60 M.J. 106, 111 (C.A.A.F. 2004) (assuming that there
was error and that the error was of constitutional dimension,
error was harmless beyond a reasonable doubt); see also United
States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005) (court
need not determine whether counsel’s performance was
constitutionally deficient where it can determine that any such
error would not have been prejudicial). Thus, in cases
involving claims that an appellant has been denied his due
process right to speedy post-trial review and appeal, we may
look initially to whether the denial of due process, if any, is
harmless beyond a reasonable doubt.
Assuming that the delay of over five years to complete
Allison’s appeal of right denied him his right to speedy review
and appeal, we proceed to assess whether that error was harmless
beyond a reasonable doubt. In determining whether relief is
warranted for a due process denial of speedy review and appeal,
we will consider the totality of the circumstances in the
particular case. Having considered the entire record, the fact
that we have found no merit in Allison’s other issue on appeal,
and considering all the circumstances of this case, we conclude
that this error was harmless beyond a reasonable doubt and no
relief is warranted.
15
United States v. Allison, No. 05-0235/NA
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
16
United States v. Allison, No. 05-0235/NA
CRAWFORD, Judge (concurring in part and in the result):
While I agree with the majority as to the disposition and
analysis of Issue I and the affirmance of the United States
Navy-Marine Corps Court of Criminal Appeals, I write separately
to disassociate myself from this Court’s analysis of Issue II,
which is based on its prospective rule set forth in United
States v. Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006), and its
misapplication of the Barker v. Wingo, 407 U.S. 514, 530 (1972),
test. See Moreno, 63 M.J. at 144 (Crawford, J., concurring in
part and dissenting in part).