Britt v. State

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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, Att’y Gen., by: Kent G. Holt, Ass’t Att’y 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 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

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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 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 ...