JOHN CLARK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Clark appeals his convictions for lewd assault, challenging the admissibility of DNA evidence using the product rule calculation method and the sentencing assessment for victim injury. The court affirms the convictions and admissibility of DNA evidence under the product rule, but remands for reconsideration of sentencing enhancements.
The court holds that DNA match probability calculations under the product rule are admissible and appropriate as a matter of scientific fact and law, and the ceiling principle has no validity. The court remands for a hearing to determine whether victim injury points were properly assessed based on evidence of injury beyond mere penetration.
[1] DNA match probability calculations using the product rule are admissible in court.
[2] The "ceiling principle" in DNA evidence analysis lacks scientific validity.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record as well as developments since the hearing, especially the contents of a 1996 report of the National Research Council, The Evaluation of Forensic DNA Evidence, effectively demonstrate that the 'ceiling principle' has no validity whatever and that, contrariwise, product rule calculations are appropriate as a matter of scientific fact and law”
Establishes the court's holding that product rule DNA calculations are scientifically and legally sound, rejecting the ceiling principle alternative
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Join FLexlaw to unlock all legal intelligenceClark was convicted of two counts of lewd assault based primarily on DNA testing evidence establishing paternity of the victim's child. The trial cour…
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SCHWARTZ, Chief Judge.
The defendant appeals from his convictions and sentences on two counts of lewd assault after a jury trial.
I.
The primary evidence against Clark was the result of DNA testing which established, to a disputed degree of likelihood, that the defendant was the father of the victim’s child. The primary issue raised in this appeal is the correctness of the trial court’s determination, rendered after an extensive Frye1 hearing in which three nationally recognized experts testified for the state, that DNA match probability calculations rendered under the “product rule” were properly deemed admissible — without reference to and, indeed, to the exclusion of the so-called “ceiling principle” reflected in a 1992 preliminary report of the National Research Council. Cf. Gibson v. State, 667 So. 2d 884 (Fla. 1st DCA 1996), review granted 678 So. 2d 339 (Fla.1996); Brim v. State, 654 So. 2d 184 (Fla. 2d DCA 1995), review granted, 663 So. 2d 629 (Fla.1995); Vargas v. State, 640 So. 2d 1139 (Fla. 1st DCA 1994), rev’d on other grounds, 667 So. 2d 175 (Fla.1995).
We conclude not only that the order below is fully — indeed, essentially uncontradictedly— sustained by the evidence, but that the record as well as developments since the hearing, especially the contents of a 1996 report of the National Research Council, The Evaluation of Forensic DNA Evidence, effectively demonstrate that the “ceiling principle” has no validity whatever and that, contrariwise, product rule calculations are appropriate as a matter of scientific fact and law. See Committee on DNA Forensic Science, National Research Council, An Update, The Evaluation of Forensic DNA Evidence (prepublication copy 1996); United States v. Bonds, 12 F. 3d 540 (6th Cir.1993); United States v. Jakobetz, 955 F. 2d 786 (2d Cir.1992), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992); Fishback v. People, 851 P. 2d 884 (Colo.1993); People v. Adams, 195 Mich.App. 267, 489 N.W. 2d 192 (1992), modified in part, appeal denied in part, 441 Mich. 916, 497 N.W. 2d 182 (1993); State v. Pierce, 64 Ohio St.3d 490, 597 N.E. 2d 107 (1992); see also Perry v. State, 606 So. 2d 224 (Ala.Crim.App.1992); Prater v. State, 307 Ark. 180, 820 S.W. 2d 429 (1991); Nelson v. State, 628 A. 2d 69 (Del.1993); Andrews v. State, 533 So. 2d 841 (Fla. 5th DCA 1988), review denied, 542 So. 2d 1332 (Fla.1989); State v. Montalbo, 73 Haw. 130, 828 P. 2d 1274 (1992); State v. Brown, 470 N.W. 2d 30 (Iowa 1991); State v. Dykes, 252 Kan. 556, 847 P. 2d 1214 (1993); Cobey v. State, 80 Md.App. 31, 559 A. 2d 391 (1989), cert. denied, 317 Md. 542, 565 A. 2d 670 (1989); State v. Williams, 252 N.J.Super. 369, 599 A. 2d 960 (1991); People v. Wesley, 83 N.Y.2d 417, 633 N.E. 2d 451, 611 N.Y.S.2d 97 (1994); State v. Pennington, 327 N.C. 89, 393 S.E. 2d 847 (1990); State v. Ford, 301 S.C. 485, 392 S.E. 2d 781 (1990); Satcher v. Commonwealth, 244 Va. 220, 421 S.E. 2d 821 (1992), cert. denied, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993).
Accordingly, we affirm the determination below and the convictions under review. Moreover, we hold that DNA match probability calculations under the product rule are admissible in this district, and evidence based upon the ceiling principle is not.
II.
Under Karchesky v. State, 591 So. 2d 930 (Fla.1992), the defendant also challenges the assessment of sentencing points for “victim injury” when, he says, there was evidence only of penetration. Because it is unclear whether this point was properly preserved below, compare McCalister v. State, 664 So. 2d 1149 (Fla. 3d DCA 1995) with Pinocle v. State, 654 So. 2d 908 (Fla.1995), we deem it appropriate to remand the cause for a hearing as to whether there was, in fact, additional victim injury apart from penetration, for which points could properly have been assessed under Karchesky. If there was, the sentence shall be affirmed. If there is a contrary finding, Clark shall be resen-tenced upon a properly corrected scoresheet.
Affirmed in part, vacated in part and remanded.
. Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
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Butler v. State, 842 So. 2d 817 (Fla. 2003)…hat the NRC adopted the ceiling principle amid speculation that product rule calculations did not account for population substructures, but later disavowed the ceiling principle and renewed its approval of product rule calculations); Clark v. State, 679 So. 2d 321 (Fla. 3d DCA 1996) (“[Pjroduct rule calculations are appropriate as a matter of scientific fact and law.”) (citing National Research Council, The Evaluation of Forensic DNA Evidence (prepublication copy 1996)); see also United States v. Bonds, 12 F.…
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Brim v. State, 779 So. 2d 427 (Fla. 2d DCA 2000)…ct statistic in 1993 was 1 in 3.5 billion. . Footnote 8 in the supreme court’s opinion suggests that the alternative statistical approaches of the defense expert at trial were properly admitted. See Brim, 695 So. 2d at 273 n. 8; cf. Clark v. State, 679 So. 2d 321 (Fla. 3d DCA 1996) (barring use of ceiling principle). Nevertheless, the admissibility of those statistical methods was not an issue on appeal, and the trial court properly did not consider further evidence about those methods on remand. . By analo…1 / 2
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Lightner v. State, 691 So. 2d 551 (Fla. 3d DCA 1997)…PER CURIAM. Affirmed. State v. Wilson, 686 So. 2d 569 (Fla.1996); Fuentes v. State, 681 So. 2d 288 (Fla. 3d DCA 1996); Clark v. State, 679 So. 2d 321 (Fla. 3d DCA 1996).…
Authorities Cited (14 total)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Andrews v. State, 533 So. 2d 841 (Fla. 5th DCA 1988)
- Vargas v. State, 640 So. 2d 1139 (Fla. 1st DCA 1994)
- United States v. Jakobetz, 955 F.2d 786 (2d Cir. 1992)
- State v. Vargas, 667 So. 2d 175 (Fla. 1995)
- McCalister v. State, 664 So. 2d 1149 (Fla. 3d DCA 1995)
- Brim v. State, 654 So. 2d 184 (Fla. 2d DCA 1995)
- Dewayne Jermaine Pinacle v. State, 654 So. 2d 908 (Fla. 1995)
- Gibson v. State, 667 So. 2d 884 (Fla. 1st DCA 1996)
- Brown v. United States, 506 U.S. 834 (U.S. 1992)