Opinion
No. 4D99-2362
Opinion filed October 25, 2000 JULY TERM 2000
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 97-16206 CF10A.
Daniel S. Carusi of Daniel S. Carusi, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
The Defendant appeals his conviction on two counts of sexual battery on a person aged 12 to 18 by a person in familial or custodial authority. He raises four issues, challenging the trial court's denial of his motion to dismiss the information and three evidentiary rulings. Finding no merit to the Defendant's arguments, we affirm.
The Defendant is the victim's uncle by marriage. The victim resided with the Defendant and her aunt, during which time the Defendant, according to the evidence, sexually abused the victim repeatedly. This abuse culminated in the victim's pregnancy. A DNA test was conducted comparing the victim's baby's DNA to that of the Defendant. The conclusion drawn from this testwas that there was a 99.99+% probability that the Defendant was the father of the victim's baby. The Defendant was convicted upon testimony of the victim describing the incidents of sexual abuse and the results of the DNA test.
The Defendant's defense was that his nephew, another adult male who lived in the house, sexually abused the victim and fathered her child. The nephew did not submit a DNA sample for comparison to the baby's, and by the time of trial, the nephew had died. The Defendant sought to elicit testimony from the State's geneticist expert as to whether he could exclude the nephew as a possible father of the victim's child. The trial court sustained the State's objection. The Defendant now argues that such testimony would have helped to cast doubt on the conclusion drawn from the DNA test that he fathered the victim's baby (and thus sexually abused the victim).
Although the trial court sustained the State's objection, the record shows that the geneticist essentially answered the question by explaining that because the nephew was not tested, there was no way of calculating the probability he was the father. The question could not have been answered any better than it was.
The Defendant also argues the trial court should have allowed testimony that the victim had once accused her mother's live-in boyfriend of sexual abuse. The Defendant does not argue that this testimony was probative of some possible defense that the victim fabricated the charges in retaliation of an exercise of authority by a parent or guardian figure. Cf. Gutierrez v. State, 747 So.2d 429 (Fla. 4th DCA 1999). Rather, he argues that this testimony was relevant because it "would have established a basis for her sexual knowledge" and thus could have impacted the jury's assessment of her credibility.
The Defendant relies upon cases in which the courts held that due to the victim's age or mental capacity, the jury might perceive the victim as naive and thus should have been allowed toconsider evidence that might help them evaluate the victim's testimony of sexually explicit matters. See Bisbee v. State, 719 So.2d 993 (Fla. 1st DCA 1998); Hammond v. State, 660 So.2d 1152 (Fla. 2d DCA 1995). To contrast, here, the trial evidence showed the victim was thirteen at the time of the abuse. She became pregnant as a result of the abuse, so she had already reached puberty. Further, defense counsel elicited testimony from her that she had had sex education classes in school and knew enough about sex to understand what semen was and that a pre-pubescent boy could not have caused her pregnancy. The Defendant cannot now argue that the only explanation for the victim's knowledge of sex was some previous instance of sexual abuse. The trial court did not abuse its discretion in excluding this testimony.
The Defendant raises two other issues, which we affirm without comment. Finding no merit to the Defendant's arguments, we affirm his convictions and sentence.
AFFIRMED.
GUNTHER and GROSS, JJ., concur.
FARMER, J., dissents with opinion.
The key question in this case is whether the trial judge properly barred defendant from asking the state's DNA population frequency expert on cross-examination whether he could exclude the defendant's nephew as the father of the child. The question was relevant to a defense that the nephew had sexual relations with victim and was the father of the child born to the victim. I thinkit was error to exclude this testimony, error which I cannot say is harmless.
There was other evidence to the effect that the nephew shared the same home with the victim and defendant, that the nephew had the opportunity, that he had been found alone with the victim, that the victim would walk through the nephew's room on her way to the bath; that the victim's aunt thought that the nephew was the father of the child. The trialjudge also excluded evidence that the victim had several years before told police that her mother's then live-in boyfriend had abused her when it was not true. I believe it was also error to exclude this latter testimony as well.
Under Brim v. State, 695 So.2d 268 (Fla. 1997), the admission of DNA evidence involves two distinct steps: the first to show that the DNA does not exclude the defendant, and the second to show the probabilities that defendant supplied the DNA in question. The issue in this case concerns the second step, the population frequency statistics.
The state's population frequency expert testified on direct examination that in his opinion the probability was 99.99+% that defendant was the source of the DNA. He explained that his analysis determined a probability of paternity as against a randomly selected individual from defendant's population base. On cross-examination defense counsel asked the witness whether he could exclude the nephew as the source. The state objected to the question. The trial judge told defendant he could not ask the question unless the witness had actually analyzed the nephew's DNA. Defense counsel proffered that the witnesswould answer that based on the studies he had already done he could not exclude the nephew as the source; that unless he actually analyzed the DNA of any specific member of defendant's family he could not exclude him as the father; and that he had not done so. The trial court sustained the state's objection.
He identified three population bases: Caucasian, African-American and Hispanic.
The premise for the question is that the defendant and his nephew share some common DNA characteristics which the rest of the subject population do not have or have in very limited numbers.
The nephew was killed after police investigated this case. There was testimony that when the victim became pregnant her older brother was visibly upset, got a gun and threatened to shoot the father. The trial judge also excluded evidence to the effect that the police suspected the older brother in the murder of the nephew. This evidence was admittedly on the margin of admissibility. When exculpatory evidence is doubtful, in my opinion it should be admitted.
The probative power of DNA evidence in a criminal trial is the equivalent of the 1,000 pound behemoth in the wrestling match. It outweighs all other challengers. Consequently I believe that judges have special obligations to insure that the behemoth has not been improperly unleashed. Thus the population frequency statistics require careful analysis as to precisely what was being compared.
The probability testified by the witness was between the defendant on the one hand, and a randomly selected individual from the rest of the subject population on the other. The 99% probability given by the expert was that the DNA in question did not have its source in the rest of the population. In other words he did not attempt to quantify any probability between the defendant and the nephew — only between the defendant and the rest of the world.
Defendant's question on cross-examination thus addressed a different population, so to speak. He wanted to know in essence whether the 99% probability applied to members of defendant's family. For purposes of judging any prejudice in excluding the question, it is irrelevant that the probabilities are 99% that a randomly selected individual from the rest of defendant's racial population can be excluded as the source. Defendant was entitled to cross-examine the population frequency expert to make the point that his probabilities were limited to sources outside the family.
I do not understand the logic of the trial judge in excluding the question and its answer. The fact that the nephew's DNA has not been analyzed does not yield any possible conclusion that it isirrelevant to ask whether the expert's existing analysis excluded the nephew as well. He did not ask the expert to state a probability that the nephew actually was the source. This latter question — not posed by defendant — would conceivably require analysis of the nephew's DNA. But the only question asked, whether the 99% probability excluded the nephew, did not require such an analysis. It merely made clear that what appears to be all but conclusive for so the average juror is likely to regard any authoritative 99.99+% probability — is not at all decisive on the single individual who, because of the blood relationship, bears some common DNA characteristics.
I would reverse for a new trial.