[1] In his appeal, Defendant first contends that the trialcourt erred by denying his objection to Special Agent Freeman's
testimony concerning his opinion about population statistics when
he had not been tendered or qualified in that field. Defendant
argued error as to Special Agent Freeman's statements that: (1)
the profile from the male fraction of the DNA taken from the
minor's underwear was 4.48 million trillion times more likely to be
from Defendant than from another unrelated individual within North
Carolina's Caucasian population; and (2) in his opinion, it was
scientifically unlikely that the semen found on the minor's
underwear originated from anyone other than Defendant.
Preliminarily, we point out that Defendant lodged only general
objections during Special Agent Freeman's testimony and did not ask
to be heard when the objections were overruled. Moreover, defense
counsel questioned Special Agent Freeman at length about population
statistics. The transcript does not clearly demonstrate the
grounds for the objections, and the testimony was not on its face
admissible for no purpose. Defendant therefore failed to preserve
this issue for appeal.
State v. Tyler, 346 N.C. 187, 203, 485
S.E.2d 599, 608 (“An objection to a witness's qualifications as an
expert in a given field or upon a particular subject is waived if
it is not made [] upon this special ground, and a mere general
objection to the content of the witness's testimony will not
ordinarily suffice to preserve the matter for subsequent appellate
review.” (quotation omitted)),
cert. denied, 522 U.S. 1001, 139 L.
Ed. 2d 411 (1997);
State v. Perkins, 154 N.C. App. 148, 152-53, 571
S.E.2d 645, 648 (2002) (where “Defendant's counsel gave no basisfor the [general] objections and the transcript does not clearly
demonstrate grounds for the objections[,]” the issue was not
preserved for appeal except for plain error review (quotations and
citations omitted))
;
State v. Hamilton, 77 N.C. App. 506, 509, 335
S.E.2d 506, 508 (1985),
disc. review denied, 315 N.C. 593, 341
S.E.2d 33 (1986) (“We note [] that a general objection, if
overruled, is ordinarily not effective on appeal.” (citation
omitted)).
Because Defendant failed to preserve the issue of Special
Agent Freeman's qualifications, the proper standard for review is
plain error.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (“[p]lain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the
court”);
Perkins, 154 N.C. App. at 152-53, 571 S.E.2d at 648.
Defendant failed, however, to assert plain error in both his
assignments of error and his appellate brief. Where a defendant
fails specifically and distinctly to allege plain error, the
defendant waives his right to have the issues reviewed for plain
error and we therefore refrain from any review.
State v. Forrest,
164 N.C. App. 272, 277, 596 S.E.2d 22, 25-26 (2004) (“when a
defendant fails to specifically and distinctly allege that the
trial court's ruling amounts to plain error, defendant waives his
right to have the issues reviewed under plain error[]” (citing
State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994));
State v. Flippen, 349 N.C. 264, 274-75, 506 S.E.2d 702, 710 (1998),
cert. denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999) (wheredefendant failed to assert plain error in his assignments of error,
he waived plain error review).
Nonetheless, in the interest of justice and fairness of the
judicial process, and given the considerable gravity of Defendant's
lengthy sentence to imprisonment, we invoke our discretion under
Rule 2 of the North Carolina Rules of Appellate Procedure to review
the merits of this assignment of error. N.C. R. App. P. 2 (“To
prevent manifest injustice to a party . . . either court of the
appellate division may . . . suspend or vary the requirements or
provisions of any of these rules in a case pending before it . .
..”);
State v. Poplin, 304 N.C. 185, 282 S.E.2d 420 (1981)
(granting review under Rule 2 where the defendant made no arguments
and cited no authority in his brief because of the severity of the
sentence of life imprisonment);
but see State v. Dennison, 359 N.C.
312, 608 S.E.2d 756 (2005) (declining to review under Rule 2 where
the defendant failed to renew his objection to the admission of
evidence after denial of a pretrial motion
in limine,
notwithstanding the defendant's sentence to life imprisonment
without parole and
moving to strike the evidence at trial and the
Court of Appeals' granting a new trial based on admission of
improper character evidence at the defendant's trial). Upon our
review, we hold that Defendant's contention is without merit.
Defendant contends that Special Agent Freeman, who was
qualified as an expert in forensic DNA analysis, was not qualified
to testify as to population statistics and argues error as to
Special Agent Freeman's statements that: (1) the profile from themale fraction of the DNA taken from the minor's underwear was 4.48
million trillion times more likely to be from Defendant than from
another unrelated individual within North Carolina's Caucasian
population; and (2) in his opinion, it was scientifically unlikely
that the semen found on the minor's underwear originated from
anyone other than Defendant.
In
Futrell, 112 N.C. App. at 659, 436 S.E.2d at 888, this
Court provided a review of “the process of DNA analysis[]” and
found
that a population-statistical analysis is the third part of
DNA analysis. This Court outlined the steps of DNA analysis as:
First, the “known” and “unknown” samples
of DNA molecules are chemically cut into
fragments, separated into single strands, and
lined up longest to shortest. A “probing
step” follows to isolate those portions of DNA
molecules which are “variable,” that is,
differ from one individual to another. Four
specific areas of the DNA molecule are usually
“probed” in the RFLP procedure. Then a
process called autoradiography yields an
exposed film called an “autorad” showing a
pattern of fuzzy lines or bands, commonly
referred to as a “DNA profile.”
Bands derived from the known and unknown
samples are thereafter compared visually. If
the numbers and positions of the bands on the
autorad appear consistent with one another
(
i.e. -- “line up”), they are then sized by
computerized measurement with reference to
“size markers” or “sizing ladders” which also
appear on autorads in three parallel lanes.
After visual examination and computerized
measurement, an “interpretation” is made as to
whether, within a specified deviation or
“match window,” a “match” may be declared.
Under the F.B.I. protocol, a margin of error
of plus or minus 2.5% is permitted.
Finally, the statistical significance of
the “match,” that is, the probability of
finding identical strands of DNA in someoneother than the accused, is determined. This
is accomplished by ascertaining the frequency
with which a particular pattern of bands will
appear within a relevant population, this
latter being initially established by the race
of the individual involved and by references
to the pertinent data base compiled by the
testing agency.
Id. at 660, 436 S.E.2d at 888 (emphasis added). In
Futrell, a
special agent assigned to the DNA Analysis Unit of the Federal
Bureau of Investigation laboratory testified as an expert in
forensic DNA analysis. The special agent,
inter alia, “compared
DNA from defendant's blood sample and the semen to the F.B.I.'s
black population data base and concluded the probability of finding
a random match of the DNA in the semen and in defendant's blood was
approximately 1 in 2.7 million individuals.”
Id. at 656, 436
S.E.2d at 886.
Similarly, in
State v. McKenzie, 122 N.C. App. 37, 468 S.E.2d
817 (1996), an agent tendered as an expert in forensic DNA analysis
testified,
inter alia, “regarding the statistical analysis
concerning the predicted population frequency of the DNA profiles
in this case.”
Id. at 44, 468 S.E.2d at 823. While the defendant
in
McKenzie did not argue the agent's lack of qualification to
address population statistics, this Court found that “[b]ased on
[the agent's] training and experience, his testimony . . . provided
a proper basis on which to accept this scientific evidence.”
Id.
In a further example,
State v. Hill, 116 N.C. App. 573, 449 S.E.2d
573,
disc. review denied, 338 N.C. 670, 453 S.E.2d 183 (1994), an
expert in molecular genetics and forensic DNA analysis testified as
to population statistics, stating “that the probability ofselecting another unrelated individual having the same DNA profile
as defendant was approximately 1 in 2.6 million for the North
Carolina white population.”
Id. at 578, 449 S.E.2d at 576. While
the defendant in
Hill did not object on the basis of the agent's
qualifications, his other objections as to the agent's testimony
were found to have no merit.
Here, Defendant does not dispute that Special Agent Freeman
was properly tendered as an expert in the field of forensic DNA
analysis. Indeed, the trial court established that Special Agent
Freeman had a bachelor's degree in biochemistry, a master's and
Ph.D. in microbiology, had undergone additional forensic DNA
training through the North Carolina Bureau of Investigation, the
Federal Bureau of Investigation, and the Armed Forces, and had
conducted DNA analysis in over 400 cases.
Defendant asserts that “there are three separate areas of
expertise associated with DNA testimony. Those three are forensic
serology, forensic DNA analysis, and population statistics[,]” and
that, because Special Agent Freeman was qualified only as a DNA
analyst, “he can testify about electrophoresis and performing a
polymerase chain reaction” but not about population statistics.
Significantly, Defendant cites no authority in support of these
contentions (in violation of Rule of Appellate Procedure 28(b)(6)).
Given that this Court has found that a population-statistical
analysis is the third step in DNA analysis, our case law evidences
the admissibility of testimony on population statistics by
(forensic) DNA analysis experts, and Defendant cites no authorityin support of his argument, we uphold the trial court's ruling that
Special Agent Freeman, who was qualified as an expert in DNA
analysis, was qualified to testify as to the population statistics
in this case
.
[2] Defendant next contends that the trial court erred by
denying his objection to Special Agent Freeman's testimony about
results of a DNA analysis conducted by an absent colleague. The
record reflects that the DNA analysis, indicating that the male DNA
found in the minor's underwear matched that of the Defendant, was
initially conducted by Special Agent Freeman's colleague and was
then reviewed by Special Agent Freeman, the leader of the State
Bureau of Investigation's molecular genetics section. Defendant
alleges that Special Agent Freeman testified as to his absent
colleague's “lab conclusion” and thereby violated Defendant's Sixth
Amendment right to confrontation
, particularly in light of
Crawford
v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004)
.
(See footnote 2)
Defendant lodged only a general objection during the relevant
testimony and did not ask to be heard when the objection was
overruled. The transcript does not clearly demonstrate the groundsfor the objection, and the evidence was not on its face admissible
for no purpose. Defendant thus failed to preserve this issue for
appeal.
State v. Golphin, 352 N.C. 364, 403-04, 533 S.E.2d 168,
197 (2000),
cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)
(“[T]his Court is not required to pass upon a constitutional issue
unless it affirmatively appears that the issue was raised and
determined in the trial court.”
(quotations and citations
omitted));
Perkins, 154 N.C. App. at 152-53, 571 S.E.2d at 648
(where defendant gave no basis for the objections and the
transcript did not clearly demonstrate the grounds, the issue was
not preserved for appeal)
. Moreover, Defendant failed specifically
and distinctly to allege plain error in his assignment of error and
appellate brief. Because Defendant failed specifically and
distinctly to allege plain error, he waived his right to have the
issues reviewed for plain error.
Forrest, 164 N.C. App. at 277,
596 S.E.2d at 25-26;
Flippen, 349 N.C. at 274-75, 506 S.E.2d at
710.
Again however, for the reasons previously stated, we exercise
our discretion under Appellate Procedure Rule 2 to reach the merits
of Defendant's argument on this issue.
In
State v. Delaney, __ N.C. App. __, 613 S.E.2d 699 (2005),
this Court determined that a defendant's right to confrontation
was
not violated where an expert in analyzing controlled substances
relied on a non-present chemist's analyses in forming his expert
opinion and testified regarding those analyses. This Court stated:
Since it is well established that an expert
may base an opinion on tests performed by
others in the field and Defendant was given an
opportunity to cross-examine [the expert] onthe basis of his opinion, we conclude that
there has been no violation of Defendant's
right of confrontation under the rationale of
Crawford.
Id. at 144, 613 S.E.2d at 701. And in another recent case,
State
v. Walker, 170 N.C. App. 632, 613 S.E.2d 330 (2005), this court
found that the testimony of an expert as to a forensic firearms
report conducted by another and admission of such report did not
violate a defendant's right to confrontation and stated “where the
evidence is admitted for,
inter alia, corroboration or the basis of
an expert's opinion, there is no constitutional infirmity.”
Id. at
635, 613 S.E.2d at 333 (citations omitted).
For the reasons
stated in
Delaney
and
Walker
, Special Agent
Freeman's using
results of a DNA analysis conducted by a colleague
to form the basis of his expert opinion and related testimony about
that analysis did not violate Defendant's right of confrontation
.
[3] Third, Defendant contends that the introduction of foul-
smelling products of conception violated Defendant's due process
rights under the Fourteenth Amendment of the United States
Constitution.
(See footnote 3)
Prior to trial, Defendant made a motion
in limineto prevent any mention of the products during trial, contending
that the evidence was “solely for the purpose of prejudicing the
defendant and placing his character in issue.” The motion was
“insufficient to preserve for appeal the question of admissibility
of evidence.”
State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264,
274 (1997) (quotation omitted)
,
cert. denied, 523 U.S. 1142, 140 L.
Ed. 2d 1099 (1998);
T&T Dev. Co. v. S. Nat'l Bank of S.C., 125 N.C.
App. 600, 602, 481 S.E.2d 347, 348-49,
disc. review denied, 346
N.C. 185, 486 S.E.2d 219 (1997) (same)
.
(See footnote 4)
At trial, Defendant
lodged only a general line objection to Dr. Kohn's testimony
about
the products of conception, did not ask to be heard when the
objection was overruled, and failed to indicate that the grounds
for the desired exclusion was offensiveness that would violate
Defendant's due process rights. The transcript does not clearly
demonstrate the grounds for the objection, and the evidence was not
on its face admissible for no purpose. Moreover, when the actualproducts themselves
were entered into evidence, Defendant lodged no
further objections. Furthermore, in his assignments of error and
appellate brief, Defendant did not specifically allege plain error.
This issue is therefore not preserved even for plain error review.
Golphin, 352 N.C. at 403-04, 533 S.E.2d at 197;
Perkins, 154 N.C.
App. at 152-53, 571 S.E.2d at 648
;
Forrest, 164 N.C. App. at 277,
596 S.E.2d at 25-26;
Flippen, 349 N.C. at 274-75, 506 S.E.2d at
710.
However, Defendant contends that “the failure of defense
counsel to stipulate to the chain of custody of the products of
conception to avoid the necessity of introducing them into evidence
constituted ineffective assistance of counsel[.]” [R. p. 21]
Because Defendant “has raised the specter of ineffective assistance
of counsel . . . we consider the possible existence of prejudice.”
State v. Roache, 358 N.C. 243, 275, 595 S.E.2d 381, 403 (2004).
An ineffective assistance of counsel claim is subject to a
two-part analysis, where Defendant must show: (1) his “counsel's
performance fell below an objective standard of reasonableness as
defined by professional norms[,]”
and (2) “the error committed was
so serious that a reasonable probability exists that the trial
result would have been different absent the error.”
State v. Lee,
348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998) (citing
Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984);
State v.
Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (same)).
“[I]f a reviewing court can determine at the outset that there is
no reasonable probability that in the absence of counsel's allegederrors the result of the proceeding would have been different, then
the court need not determine whether counsel's performance was
actually deficient.”
Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
After examining the record, we conclude that there is no
reasonable probability that defense counsel's alleged error
affected the outcome of Defendant's trial. Had defense counsel
stipulated to the chain of custody of the products of conception,
testimony regarding the results of the paternity would still have
come in. A forensic DNA analyst who had examined the products of
conception and blood samples of Defendant and the minor testified
that the probability of Defendant's paternity was 99.99 percent.
Special Agent Freeman testified
that the profile from the male
fraction of the DNA taken from the minor's underwear was 4.48
million trillion times more likely to be from Defendant than from
another unrelated individual within North Carolina's Caucasian
population, 17.3 million trillion times more likely to be from
Defendant than from another unrelated individual within North
Carolina's African-American population, 5.59 million trillion times
more likely to be from Defendant than from another unrelated
individual within North Carolina's Caucasian Lumbee Indian
population, and 20.7 million trillion times more likely to be from
Defendant than from another unrelated individual within North
Carolina's Hispanic population. Special Agent Freeman testified
that, in his opinion, it was scientifically unlikely that the semen
found on the minor's underwear originated from anyone other than
Defendant. This evidence corroborated the minor's account ofDefendant's criminal conduct. A stipulation to the chain of
custody of the products of conception could not have negated the
overwhelming evidence of Defendant's guilt. We therefore do not
need to determine whether counsel's performance was actually
deficient.
Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
We nevertheless note that the admission of the leaking
products, which were so malodorous that court needed to be recessed
for the bailiff to spray the courtroom, is troublesome.
Our Supreme Court and this Court have found gruesome but
relevant physical evidence to be admissible. For example, in
State
v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991), the defendant argued
that the trial court erred by admitting into evidence a plastic cup
containing the victim's
left pinkie finger.
Id. at 421, 402 S.E.2d
at 814. Our Supreme Court stated that “relevant evidence will not
be excluded simply because it may tend to prejudice the opponent or
excite sympathy for the cause of the party who offers it as
evidence.”
Id. Therefore, in
Eason, where the victim's body was
charred almost beyond recognition and the identity of the body was
thus at issue, the finger, the print of which matched that of the
victim, was relevant. And the Supreme Court held that the finger's
“probative value as to the issue of the identity of the victim was
not substantially outweighed by any danger of unfair prejudice.”
Id. at 421, 402 S.E.2d at 815. In
State v. Williams, 17 N.C. App.
39, 43, 193 S.E.2d 452, 454 (1972),
cert. denied, 282 N.C. 675, 194
S.E.2d 155 (1973), the defendant claimed that the admission into
evidence of a tattoo
ed segment of the deceased victim's skin was
“unnecessarily gruesome and repulsive.” This Court found no error,
holding that the identity of the victim was at issue, and the
tattooed skin segment was relevant and thus admissible.
Id.
While there appears to be no precedent in North Carolina for
the admission of products of conception into evidence, other courts
have admitted such evidence. For example, in
People v. White, 621
N.Y.S.2d 728 (1995), where the defendant was charged with statutory
rape, the trial court admitted products of conception into evidence
to prove chain of custody.
Id. at 732. In
White, the defendant
asserted that “introduction into evidence of tissue from the
remains of the victim's aborted fetus was reversible error because
the exhibits were unnecessarily gruesome[.]” The
White court held:
Such evidence is admissible at the discretion
of the trial court if relevant to an issue at
trial (see,
People v Stevens, 76 NY2d 833;
People v Pobliner, 32 NY2d 356,
cert. denied,
416 US 905). The fetal material was introduced
to establish the chain of custody relating to
the admissibility of the DNA evidence and was,
thus, relevant. Any material not used for the
DNA test was merely cumulative to that already
admitted and was not designed to inflame the
passions of the jury.
Id.
In another case where a court admitted products of conception,
State v. Mucie, 448 S.W.2d 879, 887,
cert. denied, 398 U.S. 938, 26
L. Ed. 2d 271 (Mo. 1970), a “manslaughter by abortion” case, the
defendant contended that the trial court erred in admitting uterus
and fetal materials into evidence, alleging that their admission
“served only to inflame the jury.”
Id. at 887.
The Supreme Court
of Missouri disagreed and found the materials went to,
inter alia,
pregnancy and cause of death. Moreover, the court noted that thematerials “were preserved in clear glass bottles in the manner of
laboratory specimens[]” _ a manner of presentation likely to
minimize leakage and smell.
Id.
Here, in contrast to the sterile manner in which the
Mucie
materials were admitted, the trial court admitted into evidence a
leaking bag of products of conception, including fetal material.
The materials were so malodorous that court had to be recessed in
order for the bailiff to spray the courtroom, and the trial judge
stated “[f]or the record State's Exhibit Number 35 has a very
unpleasant odor[.]”
The products of conception were relevant as to
Defendant's being the perpetrator of the statutory rape,
particularly in light of his denying having had any sexual contact
with the minor and not stipulating as to the products' chain of
custody. However, notwithstanding the inflammatory manner in which
the products were admitted, were the issue preserved for review
and
assuming the admission amounted to error
, we would find no
prejudicial error given the overwhelming evidence of Defendant's
guilt
.
See State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784
(“[T]o establish prejudice, defendant must persuade this Court that
had the trial court not admitted the [evidence], a different
outcome likely would have been reached. Given the overwhelming
evidence of defendant's guilt, we are not so persuaded.” (citation
omitted)),
cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002);
Hill, 116 N.C. App. at 580, 449 S.E.2d at 577 (“Even if this Court
found error in the trial court's admission of [photograph and
physical evidence], defendant has failed to present evidence ofprejudice . . . considering the overwhelming evidence presented
against him.”).
[4] Fourth, Defendant contends the trial court erred by
imposing a sentence grossly disproportionate to the crime. This
Court has previously held that the penalty set by our legislature
for statutory rape is not disproportionate to the crime.
The General Assembly established a statutory
scheme to protect young females from older
males. Section 14-27.7A defines two offenses
in subsections (a) and (b), with a greater
penalty corresponding to a greater age
differential between the parties. Where the
female is even younger, section 14-27.2
provides a penalty yet more severe than that
found in section 14-27.7A. This statutory
scheme, calibrating sentence severity to the
gravity of the offense, reflects a rational
legislative policy and is not disproportionate
to the crime. See
State v. Green, 348 N.C.
588, 609, 502 S.E.2d 819, 829 (1998), cert.
denied, __ U.S. __, 142 L. Ed. 2d 783 (1999).
This sentencing scheme does not violate the
North Carolina Constitution.
State v. Anthony, 133 N.C. App. 573, 578, 516 S.E.2d 195, 198
(1999),
aff'd, 351 N.C. 611, 528 S.E.2d 321 (2000);
see also State
v. Clark, 161 N.C. App. 316, 319, 588 S.E.2d 66, 67 (2003)
(although statutory rape carries “very severe punishment . . . ,
this is an issue for the legislature and not the courts.
Furthermore, this Court has previously held that the sentencing
scheme . . . reflects a rational legislative policy and is not
disproportionate to the crime and is therefore constitutional.”
(quotation omitted)),
disc. review denied, 358 N.C. 157, 593 S.E.2d
81 (2004). Defendant has not even attempted to explain why this
rationale would change under the Eighth Amendment of the UnitedStates Constitution. This assignment of error is overruled.
[5] Finally, in a motion for appropriate relief, Defendant
contends that the trial court erred in finding an aggravating
factor and sentencing him within the aggravated range in violation
of his Sixth Amendment right to a jury trial.
See Blakely, 542
U.S. 296, 159 L. Ed. 2d 403. The trial court found the aggravating
factor that Defendant committed the offense while on pretrial
release on another charge.
Our Supreme Court has recently held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed presumptive range must be submitted
to a jury and proved beyond a reasonable doubt.”
Allen, __ N.C. at
__, __ S.E.2d at __;
see Speight, __ N.C. at __, __ S.E.2d at __.
Therefore “those portions of N.C.G.S. § 15A-1340.16 (a), (b), and
(c) which require trial judges to consider evidence of aggravating
factors not found by a jury or admitted by the defendant and which
permit imposition of an aggravated sentence upon judicial findings
of such aggravating factors by a preponderance of the evidence
violate the Sixth Amendment to the United States Constitution.”
Allen, __ N.C. at __, __ S.E.2d at __. Accordingly, our Supreme
Court concluded that “
Blakely errors arising under North Carolina's
Structured Sentencing Act are structural and, therefore, reversible
per se.”
Allen, __ N.C. at __, __ S.E.2d at __.
As the aggravating factor here was not a prior conviction, the
factor was not admitted by Defendant, and the facts for this
aggravating factors were not presented to a jury and proved beyonda reasonable doubt,
pursuant to
Allen and
Speight we must remand
for resentencing.
For the foregoing reasons, we affirm Defendant's conviction
but remand for resentencing.
No Error in part, Remand for resentencing in part.
Judges HUDSON and STEELMAN concur.
Footnote: 1