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APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-16-2178],
HONORABLE BRAD KARREN, JUDGE
Robert
M. "Robby" Golden, for appellant.
Leslie
Rutledge, Atty Gen., by: Kent G. Holt, Asst Atty Gen., for
appellee.
Opinion
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, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that the trial
courts 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 victims 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
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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 individuals
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 victims vagina, Q01, but it was
compared to, and was consistent with, Britts 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 victims pants, Q07. It was compared to, and
was also consistent with, Britts 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 Britts motion. The trial court granted Britts
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 States 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 defenses
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 Britts motion to exclude expert testimony on
Y-STR testing, the trial court found that Y-STR evidence is
reliable, that it is widely ...