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State v. Fleming
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1997 ME 158
Docket:	Pen-95-639
Argued:June 12, 1997
Decided:	July 21, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and LIPEZ, JJ.

STATE OF MAINE

v.

DAVID G. FLEMING

WATHEN, C.J.

	[¶1]  David G. Fleming appeals from the judgment entered in the
Superior Court (Penobscot County, Mead, J.) following a jury verdict finding
him guilty of intentionally or knowingly causing the death of Lisa Garland in
violation of 17-A M.R.S.A. § 201(1)(A) (1983). The issue on appeal is one of
first impression in this state.  Defendant contends that deoxyribonucleic
acid (DNA) and the "product rule" -- a mathematical formula employed in
this case in extrapolating the likelihood of a random DNA match{1} -- has not
been sufficiently accepted in the relevant scientific community to meet the
admissibility requirements of M.R. Evid. 702.  He also argues, inter alia, that
the court erred by admitting testimony relating to prior DNA testing of his
blood.  Finding no error, we affirm the judgment.
	[¶2]  The record reflects that the jury could have found the following
facts:  On October 26, 1990, at 8:00 p.m., Fleming left his home in
Bucksport and drove to Bangor.  He went to the Club Roxy, located a few
blocks away from the Green Gables convenience store where Garland
worked.  Fleming left the Club Roxy after receiving directions to another bar
at approximately 11:30 p.m.
	[¶3]  On October 26, Garland was working at the convenience store
from late afternoon until closing at 1:00 a.m.  She left the store after closing
and proceeded to her home located nearby.  At 1:30 a.m., Kitty Everett, a
close friend, went looking for Garland at her apartment and discovered the
apartment door open, a plant knocked over, Garland's open purse on the
counter, and an open soda can.  Garland was not at the apartment and was
not seen alive again.
	[¶4]  Fleming returned to the home he shared with his girlfriend in
Bucksport at approximately 3:00 a.m.  Fleming did not sleep soundly, awoke
at 5:00 a.m. and left in his girlfriend's vehicle.  At approximately 6:20 a.m.,
Fleming, while driving her car, accelerated, veered off the road and crashed
head-on into the front of a parked tractor-trailer.  Fleming survived the
crash, but he was hospitalized for fifteen days.
	[¶5]  On November 30, 1990, an equipment operator found Garland's
body lying face down in a gravel pit in Alton.  An autopsy revealed that
Garland had been raped and died of a skull fracture after being struck by a
blunt instrument.  The medical examiner was unable to precisely determine
the date of Garland's death but testified that there was nothing to indicate
that she had not died five weeks before the autopsy.  During the autopsy, the
medical examiner gathered evidence that included carpet fibers from
Garland's socks, a vaginal swab, a vaginal smear, and a whole blood sample. 
The State Police sent the evidence to the Federal Bureau of Investigation
(FBI) for analysis when tests conducted on the vaginal swab and smear
revealed the presence of intact sperm cells.
	[¶6] After the discovery of Garland's body, the police questioned and
considered a number of suspects.  In July of 1991, the police were alerted
to Fleming's possible involvement in Garland's homicide based on an
unrelated crime in Cape Neddick.{2}  During the investigation into the Cape
Neddick crime, the police seized many pieces of white pine from the trunk
of Fleming's vehicle, a carpet swatch from the vehicle, and obtained a blood
sample from Fleming for DNA analysis.
	[¶7] A distinctive wood chip had been found among the debris in the
body bag used for Garland's body.  At the trial, Richard Jagels, a professor at
the University of Maine, testified that the wood chip was consistent with the
white pine found later in the trunk of Fleming's car and inconsistent with
the types of wood otherwise present at the crime scene.  Wayne Oakes, a
supervisory special agent with the FBI, testified that the fibers taken from
Garland's socks matched those from the carpet swatch of Fleming's car.
	[¶8]  Michael Vick, a DNA analyst at the FBI laboratory, testified that
restriction fragment length polymorphism ("RFLP") DNA testing
demonstrated that DNA bands from Fleming's whole blood sample matched
the DNA bands from the male portion of Lisa Garland's vaginal swab on three
of the four probes tested.  The fourth probe was declared uninterpretable. 
Over Fleming's objection, Vick testified that the chances of someone other
than Fleming matching the bands from the swab on three probes was 1 in
500,000.  Vick testified that the FBI estimates the frequency of DNA
patterns by utilizing the product rule.  He also testified that, estimating the
frequency of DNA patterns pursuant to the "ceiling principle,"{3} the chance
of someone other than Fleming matching the bands from the swab was 1 in
35,760.
	[¶9]  Laurence Mueller, an associate professor in population genetics
at the University of California-Irvine, testified that the FBI's application of
the product rule to Caucasians is wrong.  Mueller testified that a better
method of determining the frequency of DNA patterns is through the use of
the ceiling principle or the counting method.  Using the ceiling principle,
Mueller testified that the chance of someone other than Fleming matching
the bands from the swab was 1 in 140, and using the "counting method," 1
in 1,710.{4}
	[¶10]  Fleming was indicted on March 1, 1993, for intentionally and
knowingly causing the death of Lisa Garland in violation of 17-A M.R.S.A. §
201(1)(A) (1983).{5}  On August 25, 1993, Fleming filed a motion in limine
seeking to prevent the State from admitting the DNA evidence.  The court
denied Fleming's motion.  Fleming now appeals.

I.  Expert Testimony on DNA Match Evidence

	[¶11]  At the motion in limine and at the trial, Fleming failed to
challenge the general theory and techniques of DNA profiling.{6}  The State
now asks us to take judicial notice of the reliability of RFLP DNA testing.  We
may properly take judicial notice on appeal.  M.R. Evid. 201(f).  "A judicially
noticed fact must be one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned." M.R. Evid. 201(b).{7}
	[¶12]  After independently reviewing the evidentiary hearing
transcripts in this case, the court's findings and conclusions, numerous
articles discussing scientists' views on the merits of DNA profiling,{8} and a
number of state{9} and federal{10} court opinions addressing the admissibility of
DNA evidence as a forensic tool in criminal cases, we join the overwhelming
number of jurisdictions that have found the overall theory and techniques of
DNA profiling{11} scientifically reliable if conducted in accordance with
appropriate laboratory standards and controls.

II.  Evidence of Statistical Probability 

	[¶13]  Fleming contends that the court erred by admitting the
statistical component of DNA profiling evidence.  His argument focuses on
the FBI's use of the product rule.  Fleming claims that the NRC report
demonstrates that the statistical component of DNA match evidence cannot
properly be calculated using the product rule because it is unreliable.{12}  We
disagree.
	[¶14]  The admission of scientific opinion is governed by M.R. Evid.
702:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the
form of an opinion or otherwise.

Pursuant to State v. Williams, 388 A.2d 500 (Me. 1978), the proponent of
expert scientific testimony need only satisfy the trial judge that the evidence
is relevant pursuant to Rule 401 and that it will assist the jury in
understanding the evidence or determining the existence of a fact in issue. 
Field & Murray, Maine Evidence § 702.3 at 346 (4th ed. 1997).  The
determination of whether the proffered expert testimony will be helpful to
the jury requires a showing of sufficient reliability.   State v. Boutilier, 426
A.2d 876, 879 (Me. 1981).   We review the trial court's evidentiary rulings
for clear error and an abuse of discretion.   State v. Taylor, 1997 ME 81, ¶
10,      A.2d     .
	[¶15]  Vick's testimony regarding the significance of the DNA match
produced by RFLP testing was relevant.  Once the jury heard testimony that
Fleming's known sample matched the tested portion of the crime scene
DNA, it was necessary for the jury to know the degree to which such a
match suggested Fleming produced the semen found at the scene.  The
statistical data admitted reflected the rarity of finding two people who
shared the same genetic patterns at several sites on their DNA strands.  The
evidence on the subject was relevant, therefore, to a determination of
Fleming's guilt.
	[¶16]  The expansive literature and case law suggest that the FBI
laboratory's frequency estimating process is reliable enough to be admissible
scientific evidence.  The FBI Laboratory's product rule has been thoroughly
tested and the same results can be obtained by different examiners using the
same methodology.  See United States v. Bonds, 12 F.3d 540, 558-59 (6th
Cir. 1993).  The process has been reviewed, debated, and discussed in
scholarly articles (both formal peer review and otherwise).  Id. at 559-60. 
There is no definitive proof that statistical results derived by applying
genetic principles to DNA database figures have a known or potential risk of
error.  Taylor, 889 P.2d at 336.  Finally, it appears that the relevant
scientific community has generally accepted the application of the product
rule in calculating the statistical component of DNA match evidence.  See
Lander & Budowle, supra, at 736.
 	[¶17]  Having determined that the statistical portion of the DNA
profiling evidence was both relevant and reliable, we must also consider
whether the evidence is inadmissible because its probative value was
substantially outweighed by the danger of unfair prejudice.  M.R. Evid. 403. 
As we have stated, "prejudice, in this context, means more than simply
damage to the opponent's cause.  A party's case is always damaged by
evidence that the facts are contrary to his contention; but that cannot be
ground for exclusion.  What is meant here is an undue tendency to move the
tribunal to decide on an improper basis ...." State v. Forbes, 445 A.2d 8, 12
(Me. 1982) (quoting State v. Hurd, 360 A.2d 525, 527 n.5 (Me. 1976)).
	[¶18]  The "one in 500,000" statistic was a necessary and probative
component of the DNA match because it enabled the jury to appreciate the
significance of the match.   The jury also heard testimony from Vick as to
the statistical evidence applying the ceiling principle and from Fleming's
expert that the probability of a match was as low as 1 in 140 pursuant to the
ceiling principle.  The jury was free to weigh all the evidence, assess the
credibility of the witnesses and remain unpersuaded that Fleming
committed the crime.  See State v. Kaler, 1997 ME 219, ¶9, 691 A.2d
1226, 1230 (jury's province to resolve inconsistencies and determine the
credibility of witnesses).  Although the DNA statistics could be considered
prejudicial, they are not unfairly so, and in no event did unfair prejudice
substantially outweigh the probative value of this evidence.  The DNA
statistical evidence was relevant and reliable, and the court committed no
error in admitting the evidence against Fleming.

 III.  Other DNA Test

	[¶19]  Fleming contends that testimony relating to prior DNA testing
of his blood was improperly admitted as evidence of a prior bad act. 
Although he did not object to the admission of this evidence, he argues that,
by its admission, the jurors were forced to conclude that he had raped or
murdered another person.  When the defense fails to object or otherwise
preserve an error, we review for obvious error affecting substantial rights. 
M.R. Crim. 52(b).  Obvious error is error that is so highly prejudicial and so
taints the proceedings as to virtually deprive the defendant of a fair trial. 
State v. Pelletier, 673 A.2d 1327, 1330 (Me. 1996).
	[¶20]  At the trial Fleming vigorously cross-examined all the expert
witnesses on their labelling of the evidentiary samples.  At a sidebar
conference that occurred during the cross examination of Vick, the State
warned defense counsel that he was opening the door for the State to dispel
any confusion about the mislabelling of the samples.  After Fleming's counsel
replied, "well, go ahead and do it," the court told the State that it was
entitled to clear up opposing counsel's "improper spin" on redirect.
	[¶21]  During the ensuing redirect examination of Vick, the State
elicited testimony that a sample of Fleming's blood had been submitted to
him "earlier on a prior occasion," that he had already run the sample
through the DNA testing procedure, and that he would be able to lay the test
results produced on that occasion over the test results produced in this case
to establish that there was no inconsistency between Fleming's known
sample and the other samples he had received.  Defendant offered no
objection.  The State then requested a sidebar conference and obtained the
court's permission to have Vick compare the test results.  The State then
asked Vick to compare one of Fleming's test results in this case with a
comparable test result obtained on a "separate occasion," and he
subsequently testified that the band patterns lined up perfectly.  The State
then offered the other test result into evidence without objection.
	[¶22]  The jury only heard testimony that Vick had obtained Fleming's
whole blood sample on a "separate occasion."  Fleming's contention that the
jury was then forced to conclude that he had raped or murdered another
person is without merit.  There was no evidence that a whole blood sample
is only obtained by the FBI in rape and murder cases.  The jury was free to
conclude that the FBI obtained two whole blood samples from Fleming solely
as a result of this case.  Contrary to Fleming's assertion, the court did not
commit obvious error.
	[¶23] Fleming's remaining arguments, including his challenge to the
sufficiency of the evidence, are without merit and require no discussion.
	The entry is:
					Judgment affirmed.
                                                              
Attorneys for State:
Andrew Ketterer, Attorney General
Donald W. Macomber, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006

Eric E. Wright, Esq. (orally)
Friedman & Babcock
P O Box 4726
Portland, ME 04112-4726
(Mr. Wright was an Assistant Attorney General at the time of trial and was
temporarily appointed as such in order appear at oral argument.)

Attorney for defendant:

William Maselli, Esq. (orally)
98 Court Street
Auburn, ME 04210