APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-16-2178]
HONORABLE BRAD KARREN, JUDGE
Robert
M. "Robby" Golden, for appellant.
Leslie Rutledge, Att'y Gen., by: Kent G.
Holt, Ass't Att'y Gen., for appellee.
BART
F. VIRDEN, JUDGE
A
Benton County jury convicted appellant John Britt of raping
his teenage daughter, and he was sentenced to forty years in
the Arkansas Department of Correction. On appeal, Britt
argues that the trial court erred in admitting expert
testimony on Y-STR[1]DNA testing because it does not comport
with the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that the
trial court's admission of such evidence violated
Arkansas Rule of Evidence 702. We affirm.
I.
Procedural History
On
January 30, 2017, Britt was charged with one count of rape, a
Class Y felony. A rape kit was performed, and DNA material
from the victim's body and clothing was submitted for
testing by the Arkansas State Crime Laboratory. When the lab
did not detect enough male DNA on the samples taken from the
victim to perform autosomal DNA testing-the more common
method that produces a profile that is unique to an
individual- the lab performed Y-STR testing, which amplifies
the male Y chromosome and excludes those men who do not share
the same paternal lineage. While Y-STR testing cannot
identify the source of DNA material, it can exclude those
other than the individual donor or that individual's
father, grandfather, son, etc.
Autosomal
DNA testing was performed on a known sample from Britt to
create a profile, K02, which was then compared to the samples
from the victim that had been tested through Y-STR. Only a
partial profile was obtained from the sample of material
taken from the victim's vagina, Q01, but it was compared
to, and was consistent with, Britt's profile; the
frequency of occurrence in the statistical population was 1
in 207; and the probability of exclusion was 99.52 percent. A
complete profile was obtained from the sample of material
taken from the victim's pants, Q07. It was compared to,
and was also consistent with, Britt's profile; the
frequency of occurrence in the statistical population was 1
in 1, 157; and the probability of exclusion was 99.91
percent.
Before
trial, Britt filed a motion requesting a Daubert
hearing to challenge the admission of expert testimony
regarding Y-STR testing. The State did not file a written
response to Britt's motion. The trial court granted
Britt's motion and held a hearing on August 18, 2017.
Britt presented the testimony of Mary Robinette, a retired
chemist who had worked for seventeen years at the Arkansas
State Crime Laboratory. Julie Butler, the State's
witness, is the DNA analyst who conducted the Y-STR testing
of the samples from the victim. Although Butler was present
at the Daubert hearing, the State did not call her
to testify but did cross-examine Robinette.
Robinette
testified that Y-STR testing plays "a great role"
in forensics and that it is especially helpful with missing
persons and with male-female "mixture" cases. She
said that, although Y-STR evidence cannot identify a person,
it can place a person in "a pool of possibilities."
Robinette stated that she had testified regarding Y-STR
testing probably fifty times. She expressed concern in this
case about potential cross-contamination because the process
had been "rushed," confusion as to why some numbers
did not match up, and uncertainty whether the Arkansas State
Crime Laboratory still uses the "national
database." On cross-examination by the State, Robinette
described Y-STR testing as valid, legitimate science that she
has used "numerous times." She said that it is
reliable, repeatable, quantifiable, and widely used in the
scientific community, especially forensics. She said that she
has never expressed any concerns that the national database
was insufficient such that it would call into question the
validity of results. As for cross-contamination, she conceded
that she did not know whether it had occurred in this case.
During
the hearing, the trial court noted that the defense's
argument appeared to pertain more to the weight of the
evidence, and not its admissibility under Daubert
and Rule 702. The trial court also remarked that it was clear
that Y-STR testing is not "voodoo science." In its
order denying Britt's motion to exclude expert testimony
on Y-STR testing, the trial court found that Y-STR evidence
is reliable, that it is widely accepted in court, that it is
highly probative, and that expert testimony on the subject
could be helpful to a jury.
At
trial, Butler testified that she is a forensic DNA analyst at
the Arkansas State Crime Laboratory with twenty years'
experience.[2] She said that she stays up to date with
DNA technology and techniques; for example, she attends
regularly scheduled training, reviews literature, and
undergoes semiannual proficiency testing. As for standards,
she said that there are "quite a number of steps
taken" to avoid cross-contamination. She also testified
that there are quality-assurance rules in place. Butler said
that Y-STR testing is "extremely useful" for
excluding people but that it does not have the "same
statistical power" as with autosomal DNA testing. She
further confirmed that the crime lab indeed uses the national
database and testified that the statistical numbers are
"not just generated out of thin air." She said that
an organization called Scientific Working Group on DNA
Analysis Methods (SWGDAM) makes recommendations for the best
practice in DNA testing and that the organization, comprised
of approximately fifty scientists, recommended that the
Arkansas State Crime Laboratory use the national database.
Butler explained that there is not a database in which the
DNA for everyone who has ever lived or is living has been
compiled but that the statistical method is used by the
scientific community. She said, "That is how all of this
DNA science works whether we're talking about autosomal
DNA or Y-STR DNA." She said that the database is used by
forensic scientists all over the world and that it has been
studied, analyzed, "picked apart," and tested and
that it is the best methodology available for forensic
scientists.
At the
conclusion of all the evidence, the jury convicted Britt of
rape, and he was sentenced to forty years' imprisonment.
He brings this appeal challenging ...