ERRICK D. DUNCAN V. COMMONWEALTH OF KENTUCKY
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2007-SC-000925-MR
ERRICK D. DUNCAN
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K . MERS.HON, JUDGE
NOS. 04-CR-001379 AND 04-CR-003360
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
REVERSING AND REMANDING
Errick Duncan appeals from a Judgment of the Jefferson Circuit Court
convicting him of kidnapping, in violation of KRS 509 .040; of first-degree
sexual abuse, in violation of KRS S 10 .110; and of two counts of second-degree
stalking, in violation of KRS 508.150. In accord with the jury's status
determination and sentence recommendation, Duncan was sentenced as a
first-degree persistent felon to concurrent terms of imprisonment totaling thirty
years . He appeals to this Court as a matter of right.
Duncan was accused of a series of crimes that occurred in south
Louisville in the fall of 2003. The Commonwealth alleged that he kidnapped
fourteen-year-old SM, twice sexually abused her, sodomized her, and raped
her. The jury found him guilty of kidnapping and of one count of sexual abuse,
but could not reach
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verdict on the other charges . The Commonwealth also
alleged that Duncan stalked two other girls from the same neighborhood,
thirteen-year-old JM and fourteen-year-old JH, and that he unlawfully
imprisoned and menaced JH . The jury could not reach a verdict on the
unlawful imprisonment and the menacing charges, but found Duncan guilty of
stalking both girls . Duncan, who testified at trial, denied the charges and
argued that he had been wrongly identified as the perpetrator.
On appeal, Duncan contends that has trial was rendered unfair when he
was subjected to improper cross-examination and when, during her closing
argument, the prosecutor misrepresented evidence concerning DNA test
results. He also contends that one 4 the investigating officers was improperly
allowed to bolster the victims' testimony; that under the kidnapping exemption
statute he was entitled to a directed verdict on the kidnapping charge ; and that
JH's out-of-court identification of him as her stalker was tainted by a
suggestive identification procedure and so should not have been admitted into
evidence . We agree with Duncan that the Commonwealth misrepresented its
DNA evidence and by so doing deprived Duncan of a fair trial, but reject his
other claims of error.
RELEVANT FACTS
The Commonwealth relied on the three victims for proof that the crimes
occurred . Each victim testified about encounters with a man in the
neighborhood of Southern Middle School in Louisville in the fall of 2003 . JM
testified that on ]Halloween evening, while she was walking to a friend's house,
a van pulled up beside her and the driver asked for directions . He then. asked
other questions that JM felt were inappropriate, such as her name and whether
she had a boyfriend. The same man drove past her later that night as she was
trick-or-treating . Soon thereafter she began to see the man parked in front of
her house when she left for school in the morning . Finally, one day while she
was visiting with two male friends, the same man, this time driving a white
Lincoln, drove past them several times. The two boys confronted the man,
asked why he was following JM, and wrote down his license number .
JH testified that one day in early November she and a friend were
walking home from school when they noticed, a man in a white van watching
them . When the van approached them and the man began asking questions,
the girls became frightened and ran home . A few days later, on November 5,
2003, JH was walking down an alley on her way home, when she again saw the
white van . Moments later, a man grabbed her from behind, told her he had a
gun, and warned her not to scream. JH testified that she freed herself by
hitting the man with her elbow and ran home .
SM testified that on November 22, 2003, she was walking home from a
friend's house when a man grabbed her from behind, pressed something hard
against her back, told her he had a gun, and warned her not to scream. The
man led her a short way down an alley, and then led her into a secluded area
behind an abandoned house. There he ordered her to lower her pants and
fondled her vagina. He then had her pull her pants up and led her through
several city blocks, over aa pedestrian bridge across the freeway, through an
opening in a fence, and into a, secluded, area behind. Southern Middle School .
As they were walking they more approached by two people, but the man warned
SM that he "would hate to have to shoot them." When they reached the area
behind the school, the man put a toboggan over SA44 face and again had her
lower her pants. SM testified that he fondled her, orally sodomized her, and
twice tried to rape her, although he was not able to penetrate her fully . He
then forced SM to kiss him while he masturbated . Finally, he had SM adjust
her clothes, removed the toboggan, and told her to leave without looking back.
SM told her mother what had happened, and her mother summoned the police .
A principal issue at trial was the identity of the perpetrator. The
Commonwealth's proof against Duncan included photo identifications by all
three victims. JH and JM positively picked Duncan's photo from a photo array
as the man who had stalked them, and SM picked out Duncan's photo, but
told the officers that she was not positive. The police traced the license
number JM had recorded to Duncan's white Lincoln . Duncan's girlfriend in
the fall of 2003 testified that she had then owned a white van, which Duncan
sometimes borrowed . JM identified both vehicles, and JH identified the van.
Duncan's former girlfriend also authenticated two letters Duncan had sent to
her from prison. In one letter he admitted having had sex with an underage
girl, but claimed the encounter was consensual, and in the other he asserted
that the girls making the other charges were "lying their asses off." Finally, the
Commonwealth presented the results of DNA analyses performed on samples
taken from the panties SM wore at the time of her assault. Those analyses
indicated the presence of a male's DNA, I and the partial profiles obtained
matched, to the extent that they yielded results, the profiles obtained from
Duncan .
Duncan presented a denial defense. He claimed to have had no
encounters with any of the victims . He established that SM and JH, when first
describing the man to the police, had guessed him to be short, in the
neighborhood of five feet, eight inches tall, when in fact Duncan is over six feet
tall. He elicited testimony from the forensic witnesses to the effect that the
DNA analyses did not identify him as the source of the DNA found in SM's
panties, but rather as one of an undetermined number of potential sources.
And he testified that the letter to his former girlfriend referred not to SM but to
a seventeen-year-old girl he had been seeing at the time and who, he
mistakenly believed, was the source of the rape charges. As noted, although
the jurors did not accept Duncan's defense, neither were they all convinced
that he had committed the more serious of the crimes charged .
Duncan maintains that his trial was rendered unfair in several ways .
His principal complaint concerns instances of what he characterizes as
prosecutorial misconduct . He contends that he was cross-examined unfairly
when the prosecutor asked him to "explain" the DNA evidence and to
In fact, the analyses indicated the presence of DNA from two men . SM testified that
on the day of her assault she was wearing clean panties taken from a laundry
basket but that her mother had worn them before they were laundered . The
analyses yielded partial profiles consistent with both Duncan and SM's step-father.
SM testified that she had a good relationship with her step-father, and the officers
testified that nothing in the investigation even remotely suggested any wrongdoing
by him.
characterize the testimony of other witnesses as "lying" or as "wrong." He also
contends that during her closing argument one prosecutor misrepresented the
DNA evidence by stating that it established that he was the source of the male
DNA recovered from SM's panties . We begin with these alleged instances of
prosecutorial misconduct.
ANALYSIS
I. Duncan's Trial Was Rendered Unfair by Prosecutorial Overreaching.
As Duncan correctly notes, prosecutorial misconduct can assume many
forms, including improper questioning and improper closing argument . Brown
v. Commonwealth,
S .W.3d
(Ky. June 17, 2010) ; State v. Singh, 793 A .2d
226 (Conn . 2002) . If the misconduct is objected to, we will reverse on that
ground if proof of the defendant's guilt was not such as to render the
misconduct harmless, and if the trial court failed to cure the misconduct with a
sufficient admonition to the jury . Where there was no objection, we will reverse
only where the misconduct was flagrant and was such as to render the trial
fundamentally unfair. Barnes v. Commonwealth, 91 S .W .3d 564 (Ky. 2002) ;
Partin v. Commonwealth, 918 S.W .2d 219 (Ky. 1996) .
A. During His Cross-Examination of Duncan, the Prosecutor
Misrepresented Key Aspects of the Commonwealth's Evidence .
Toward the end of his lengthy cross-examination, one prosecutor asked
Duncan, "Your story today is that JM was lying. JM has to be lying in order for
your story to be true, right?" Defense counsel objected on the ground that JM
could have testified honestly but mistakenly. Although the court did not
sustain the objection, it did advise the prosecutor to "clear the matter up." The
prosecutor then asked, "For your story to be right, JM has to be wrong .
Right?" He then proceeded to ask the same question with respect to SM and
JH, with respect to the detectives, and with respect to the DNA evidence, i.e.,
"The DNA has to be wrong for your story to be true. Isn't that correct." When
Duncan protested that he did not understand the DNA evidence, the
prosecutor held up the exhibit which showed the results of the DNA analysis,
had Duncan acknowled e, point by point, the instances where the DNA from
SM's panties was consistent with his DNA, and then asked again : "The DNA
has to be wrong for your story to be right. Isn't that true?" To none of these
latter questions did, Duncan's counsel object. Duncan contends on appeal,
nevertheless, that these questions were flagrantly improper and rendered his
trial unfair . With respect to the DNA questions, we agree.
In Moss v. Commonwealth, 949 S .W.2d 579, 583 (Ky . 1997), we reiterated
what had long been the rule in this state and what is overwhelmingly the
majority rule in other jurisdictions when we emphasized that "[a] witness
should not be required to characterize the testimony of another witness . . . as
lying." See also Liggett v . People, 135 P.3d 725 (Colo. 2006) (collecting cases) .
Not only do such questions invade the jury's role as sole determiner of
credibility and unfairly require the witness to disparage another witness, but
they are usually misleading, for, as in this case, mistake rather than either
witness's dishonesty could account for disparities in their testimonies . The
prosecutor's question to Duncan as to whether his story did not imply that JM
was lying was a blatant Moss violation, and Duncan's objection should have
been sustained . That violation alone, however, would not entitle Duncan to
relief, for following the objection the prosecutor asked instead whether
Duncan's version of events did not imply that the victims' versions were wrong
rather than dishonest, and that question at least clarified for the jury that
Duncan's defense did not hinge on a conclusion that the victims had fabricated
their allegations .
Duncan maintains that he should not have been asked to characterize
other witnesses as "wrong" any more than as "lying." This appears to be a
question we have not addressed before . Other courts have distinguished the
two types of questions: "Asking a witness whether a previous witness who gave
conflicting testimony is `mistaken' highlights the objective conflict without
requiring the witness to condemn the prior witness as a purveyor of deliberate
falsehood, M, a'liar."' United States v. Gaind, 31 F.3d 73, 77 (2 nd. Cir . 1994) .
In denying plain error relief in a case, like this one, in which during crossexamination the defendant was asked if several witnesses were mistaken about
particular details of their testimony, details that conflicted with the defendant's
version of events, the United States Court of Appeals for the First Circuit cited
the Second Circuit's distinction between "mistake" and "lie," and held that
"[w]hether this avoidance [of the "L" word] would suffice in all situations, we
need not decide now . As [the defendant] did not object in the district court to
these questions . . . our review is limited to plain error. Clearly that standard
was not transgressed ." United States v. Gaines, 170 F .3d 72, 82 (1st Cir. 1999) .
Likewise here, Duncan did not preserve this issue by proper objection at trial.
We are limited, therefore, as noted above, to asking whether the prosecutor
engaged in flagrant misconduct and if so whether it rendered Duncan's trial
fundamentally unfair. Since Duncan's defense was precisely that the three
victims had mistakenly identified him, it assuredly did not amount to flagrant
misconduct for the prosecutor to ask him if they had to be mistaken for his
version of events to be true.
The prosecutor's asking whether the detectives had to be mistaken is
more troubling, because the prosecutor did not specify what in particular
about their testimonies conflicted with Duncan's version in such a way that
either they were mistaken or Duncan's version could not be right. We need not
decide whether that failure made the question improper, however, for even if it
did the question did not render Duncan's trial fundamentally unfair.
The prosecutor's DNA question, however-"The DNA has to be wrong for
your story to be right . Isn't that true?"-was altogether more egregious. To
understand why, it is necessary to consider in some detail the
Commonwealth's DNA evidence. That evidence was introduced through the
testimonies of two lab supervisors employed by Orchid Cellmark, a company
specializing in DNA analysis . One of those witnesses, William Watson, the
supervisor of Orchid Cellmark's Nashville facility, testified that among other
items to be analyzed, the Commonwealth sent to it cuttings from SM's panties,
a blood sample from SM, and a blood sample from Duncan . According to
Watson, the lab performed what has become the standard PCR/ STR analysis of
these samples .
As background, we note some basic principles pertaining to DNA
analysis from the COMMITTEE ON DNA FORENSIC SCIENCE: AN UPDATE,
NATIONAL RESEARCH COUNCIL, THE EVALUATION OF FORENSIC DNA
EVIDENCE (1996) ("NRC Update") discussed extensively in State v. Bander, 208
P-3d. 1242 (Wash . App . 2009) . Nuclear DNA is a long, spiral molecule found in
every human cell except red blood cells . NRC Update . Most of this long
molecule is identical from person to person, but along its length are segments
where variations occur. Id. These varying segments are referred to as
polymorphic sites, and the possible variants, generally only a few for each
polymorphic site are referred to as alleles. 1d. In all but sex cells, a person has
two alleles at each site, one inherited from each parent . 1d. When several sites
are tested and the alleles determined, the pattern of alleles is referred to as a
profile. Id. Several tests targeting different polymorphic sites have been
marketed, but in 1994 Congress established a set of thirteen such sites as a
national standard for use in the Combined DNA Identification System (CODIS) .
Roberts v. United States, 916 A.2d 922 (D .C . 2007) . Watson did not testify that
those were the thirteen sites his lab tested, but it appears from his report filed
with the Commonwealth's discovery that they were .
In any event, PCR/STR testing refers to a test targeting a particular kind
of polymorphic site, sites at which the alleles are short pieces of DNA repeated
some number of times (Short Tandem Repeats or STR) . Roberts, supra . The
alleles are distinguished by the number of repeats . Id. PCR, short for
Polymerase Chain Reaction, refers to a testing process in which the DNA from a
sample is isolated ; the polymorphic sites to be analyzed are chemically marked
and copied millions of times; and then, from that amplified genetic material,
the alleles present at each site are identified . Bander, supra. By virtue of its
"amplifying" capacity, PCR has made possible the analysis of very small DNA
samples, but even with PCR it sometimes happens that an analysis will fail to
identify some or any of the alleles at a. particular site. Id. When some sites
yield full results and some do not, the incomplete pattern of alleles is
sometimes referred to as a partial profile . Commonwealth v. Linton, 924 N .E .2d
722 (Mass . 2010) .
It also happens, frequently in the course of forensic DNA analyses, that a
sample will prove to contain a mixture of DNA from more than one person. A
mixture is apparent when the analysis discloses more than two alleles at any
given site. Bander, supra. Two samples, a known sample, say, such as
Duncan's in this case, and an unknown sample such as that recovered from
SM's panties, are said to match if the profiles they yield are identical, i. e ., if the
alleles present at each site in both samples are the same . Id. If an unknown
sample yields only a partial profile, but that partial profile is identical, as far as
it goes, with a known sample, the two are sometimes said to partially match .
Id. If the unknown sample is a mixture, with more than two alleles per site,
the known sample is said to match or the source of that sample to be a
possible contributor to the mixture if the known sample's alleles are among
those present at each site in the mixture . Id. If the unknown sample is a
mixture and yields only a partial profile, the known sample is said to partially
match it, or again to come from a possible contributor to the mixture, if the
known sample's alleles are present at each complete site of the unknown
sample and are either present or potentially present at each site for which
there are incomplete results. Id.
The significance of a match or a partial match depends upon how rare or
how common the profile or partial profile is. Population geneticists have
amassed data bases for the commonly tested polymorphic sites, such as those
in the CODIS standard, which enable them to estimate the frequency with
which the various alleles occur in the general United States population and in
certain subsets of the population . Roberts, supra. Those estimates then allow
the calculation of the frequency with which a given profile occurs . Id. That
frequency is often expressed as the "random match probability" or the odds
that an unrelated person chosen at random from the reference population
would have the given profile. Id. For large profiles, such as those based on the
twenty-six alleles of the thirteen CODIS sites, the random match probability is
frequently vanishingly small, one chance in billions or trillions or quadrillions.
In such cases a very strong inference arises that the matching known and
unknown samples came from the same source. Young v. State, 879 A.2d 44
(Md. 2005) . For smaller profiles, however, those based on partial matches, say,
at only a few sites, the odds of a random match can be much higher and the
inference that the source of the known sample was also the source of the
unknown sample much weaker. Commonwealth v. Mattei, 920 NE.2d 845
(Mass . 2010) .
In this case, for example, Watson testified that the sample recovered from
SM's panties yielded a mixture of DNA from t least three persons, two of
whom were males. Although he did not specify the results of the analysis for
each site tested, he indicated that the results were partial, with several sites
yielding incomplete results. SM and Duncan were both possible contributors
to the mixture, he testified, but the odds of choosing a possible contributor at
random from the reference population (Watson did not state whether he was
referring to the general population or to a subset) were better than one in three .
Because these results did not have much inferential force, Watson
recommended to the Commonwealth that it have the sample recovered from
SM's panties and the sample obtained from Duncan retested at Orchid
Cellmark's Dallas facility, where a different test, a so called Y-STR test, could
be performed .
The director of Orchid Cellmark's Dallas facility, Cassie Johnson,
testified that the Commonwealth agreed to the further testing and submitted
samples from SM's panties, from Duncan, and from SM's step-father . Johnson
explained that she tested the samples twice, the first time in 2004 and then
again in 2005 after a new, expanded version of the test came out . Like the test
Watson's lab performed, the tests Johnson oversaw employed PCR to amplify
certain STR polymorphic sites, and then sought to identify the alleles present
at those sites. The difference was that the sites Johnson's lab targeted are
located on the Y-chromosome, a portion of the DNA molecule that occurs only
in men and that is passed on intact from father to son . Bander, supra. This
male-only test would screen out any female contribution to the mixture present
on the panties, and thereby, it was hoped, would provide more resolution for
the analysis of the male contribution . Johnson
testified
that because the Y-
chromosome comes only from the father, only one allele occurs at each site,
and the pattern of alleles is the same for father and son and hence for any man
in the same paternal lineage . As a result, Johnson testified, Y-STR testing
cannot identify at particular individual, and a match between samples indicates
that not only the source of the known sample, but others in his lineage, were
possible sources of the unknown sample .
The first test Johnson's lab performed targeted ten sites and from the
sample isolated from the panties yielded results for seven of them. At all seven
of those sites, Duncan's alleles occurred . In 2005, Johnson's lab analyzed the
samples again, this time with a new version of the test that targeted seventeen
Y-chromosome sites . For the sample recovered from SM's panties, the test
yielded results at ten of the seventeen. At two of those sites two alleles were
detected, indicating that the sample contained a mixture of DNA from two men.
At all ten of the sites where results were obtained, Duncan's alleles occurred.
At the two sites where an additional allele was detected, that allele matched the
step-father's corresponding allele . At four other of the ten result-yielding sites
Duncan's and the step-father's alleles were the same . Johnson concluded that
Duncan and the step-father were both potential contributors to the mixture,
and neither Duncan nor any male in his paternal lineage could be excluded as
a source of the DNA recovered from SM's panties . Johnson was not asked for
and did not offer any testimony regarding the statistical significance of her
results. The jury was told that Duncan could not be ruled out, but it was not
told that anyone else could be either.
Given this complete lack of evidence regarding the significance of
Duncan's partial match, it was a gross misrepresentation of Johnson's
testimony for the prosecutor to suggest that the "DNA has to be wrong" for
Duncan's version of events to be right. The DNA evidence was consistent with
a scenario in which Duncan was the perpetrator. Given Johnson's very limited
testimony, however, (the failure to establish through statistics or otherwise the
significance of the finding) it was also consistent with a scenario in which any
other man on the planet was the perpetrator, and thus did not need to be
wrong for Duncan's testimony to be right. The prosecutor compounded the
impropriety by having Duncan acknowledge, one by one, all ten sites at which
his profile matched the partial profile obtained from the panty sample . The
significance of those matches is precisely what the expert failed to establish,
and by suggesting that those matches were either "wrong" or conflicted with
Duncan's testimony the prosecutor invited the jury to be its own expert - - to
make inferences that it was not qualified to make and which amounted to pure
speculation . This was a flagrant abuse of cross-examination that, given the
aura of conclusiveness that surrounds DNA evidence, rendered Duncan's trial
manifestly unfair.
B . During Closing Argument, the Prosecutor Again Misrepresented the
Import of the Commonwealth's DNA Evidence .
This conclusion is underscored by portions of the prosecutor's closing
argument to which Duncan objected . Twice during that portion of here
argument based on Johnson's testimony, the prosecutor went from quoting
Johnson's conclusion that Duncan could not. b e excluded as a source of the
DNA in SM's panties, to insisting that "not excluded" means "included," to "the
bottom line: What is Errick Duncan's DNA doing in SM's panties?" Counsel
objected both times the prosecutor reached this "bottom line" assertion, an
following the second objection the court admonished the jury to the effect that
while the evidence had not established "a direct, absolute match," both sides
were allowed to argue reasonable inferences from the evidence . Duncan
maintains that the prosecutor's argument went beyond "reasonable inference"
and had the effect, like that of the improper cross-examination, of
misrepresenting Johnson's testimony . For the reasons discussed above, we
agree.3
The problem is not that the evidence failed to establish a match between
Duncan's profile and the profile obtained from the sample . The evidence
2
The Commonwealth was represented by two Assistant Commonwealth's Attorneys .
One cross examined Duncan, and the other presented the Commonwealth's closing
argument .
3
As discussed above, when objected to prosecutorial misconduct is reversible if it
was not cured by an adequate admonition and if it cannot be deemed harmless in
light of the totality of the proof. Because we have already determined that Duncan's
improper cross-examination requires that he be retried, we need not decide
whether, under this standard, the prosecutor's closing argument by itself would
also require reversal . There is no doubt, however, that the prosecutor grossly
overstated the weight of Johnson's testimony and this in conjunction with the
improper cross-examination rendered Duncan's trial unfair .
established a match, or a partial match, at ten of the seventeen tested sites.
But missing from the Commonwealth's proof was any testimony establishing
the significance of that partial match. Johnson's testimony that Duncan could
not be excluded as a source of the panty DNA said nothing at all about how
likely or unlikely it was for such a partial match to occur, and most assuredly
it did not say that Duncan was the source . By asking the jury to infer on the
basis of Johnson's testimony that he was, the prosecutor sought to wring from
that testimony a conclusion it could not reasonably yield .
This concern was reflected in the 1992 report of the National Research
Council's Committee on DNA Forensic Science . That report, titled DNA
Technology in Forensic Science, emphasized that "[flo say that two patterns
match, without providing any scientifically valid estimate (or, at least, an upper
bound) of the frequency with which such matches might occur by chance, is
meaningless ." Id . at 301 . It is "meaningless," or, at most, of marginal value,
for precisely the reason noted above : although the evidence of a partial match
established that Duncan could not be excluded as a potential source of the
panty DNA, without further evidence putting the match in some context of
significance, statistical or otherwise, it does not establish that anyone can be
excluded and so merely includes Duncan among the rest of the world as a
potential source. For this reason, several courts have held that DNA "match"
or "non-exclusion" evidence is inadmissible without reliable accompanying
evidence as to the likelihood that the test could or could not exclude other
individuals in a given population . Without the accompanying evidence, these
courts note "the jury have no way to evaluate the meaning of the result."
Commonwealth v. Mattei, 920 N.E.2d at 856 (collecting cases) .
In Sholler v. Commonwealth, 969 S.W .2d 706 (Ky. 1998), this Court
rejected that per se exclusionary approach and held that bald DNA "match" or
"non-exclusion" evidence was admissible as circumstantial evidence akin to
blood type evidence :
We view [the expert's non-exclusion DNA] testimony as
similar to that of an expert who testifies that a
defendant's blood type is the same as that of a blood
sample found at a crime scene . . . . Such does not
mean that the crime scene blood was the defendant's
blood, but only that the defendant is not excluded as
the source of the crime scene blood .
Id. at 710 . We adhere, with some reluctance, to that holding today, but
emphasize the following qualifications .
Matching blood types provide weak circumstantial evidence that the
defendant was the source of the crime scene blood . The rarer the blood type
the slightly better the evidence, but no blood-type evidence standing alone
would serve to identify the defendant beyond a reasonable doubt as the source
of the crime scene blood . The potential probative value of DNA evidence is
vastly more powerful. Although theoretically a DNA match over a large number
of polymorphic sites, such as the thirteen sites of the CODIS standard, does
not conclusively identify a defendant as the source of crime scene DNA, when
the odds of a random match begin to vanish in the mists of the unimaginably
small, as they often do in such cases, for all practical purposes the defendant
is identified, and that evidence, standing alone, would support such a finding.
In such cases, the Maryland Court of Appeals has held, the expert need not
couch his or her testimony in the theoretical language of mathematics, b t
may testify directly that the match proves, to a reasonable scientific certainty,
that the defendant is the source of the crime scene DNA . Young v. State, supra.
In conjunction with this vast probative potential, DNA evidence is also
subject to vast misunderstanding and misuse. Although, at times highly
probative, it can also, as this case illustrates, be much more modestly
probative or hardly probative at all . Where its significance falls along that
spectrum is a matter dependant upon expert testimony, since lay jurors are not
qualified to make the assessment on their own . Statistical evidence, if
possible, is the best way to convey the strength of DNA evidence, but statistics
may not always be available, and where it is not the expert may use other valid
means to give some idea of the extent to which the DNA evidence narrows the
field of possible sources.4 Whatever avenue is chosen, the Commonwealth
must abide by the limitations of its own proof and not make claims that its
DNA evidence is more probative than the expert's testimony has shown it to be .
In particular, if, as in this case, the Commonwealth relies on mere evidence of
a partial match and "non-exclusion" without any other evidence of the match's
significance, it may not, as it did here, ask whether the DNA evidence is
4
For example, Cassie Johnson, the DNA witness in this case also testified in
Commonwealth v. Linton, supra. As the Supreme Court of Massachusetts noted,
she testified that statistical calculations available with standard DNA testing were
not yet available for the Y-STR testing but she testified that the DNA at issue in
Linton (which matched the defendant's sample at 13 points) was not duplicated in
any of the other 3,561 male profiles than on record at Orchid Cellmark. 924 N.E.2d
743-44 . Arguably, similar testimony could have been presented in this case.
"wrong" because it contravenes the defendant's version of events . Similarly,
the Commonwealth may not, by underscoring the fact of the partial match,
invite the jury to speculate that the match is actually more significant than the
expert testified, or that evidence of the partial match by itself is sufficient to
identify the defendant as the source of the crime scene DNA . These are not
reasonable inferences from bare "non-exclusion" evidence and so are not fair
game either for cross-examination or for closing argument . Because the
Commonwealth failed to present any evidence of the significance of Duncan's
partial DNA match other than the expert's "non-exclusion" testimony, its
suggestion during Duncan's cross-examination and during closing argument
that the DNA evidence pin-pointed Duncan was highly improper and, given the
immense weight jurors are apt to accord DNA evidence, rendered Duncan's
trial manifestly unfair . We are obliged, accordingly, to reverse Duncan's
conviction and to remand for additional proceedings . Because Duncan's other
claims of error raise issues that could recur at a retrial, we shall briefly
consider them as well .
II. Duncan Was Not Exempt From the Charge that He Kidnapped SM .
In pertinent part, IRS 509 .040 provides that "[a] person is guilty of
kidnapping when he unlawfully restrains another person and when his intent
is : . . . (b) To accomplish or to advance the commission of a felony." Many
felonies, however, either inherently or as a matter of common occurrence,
involve the restraint of the victim in some manner . Forcible rape, sodomy, and
sexual abuse, for example, the offenses Duncan was accused of committing
against SM, all involve restraining the victim in conjunction with and so as to
accomplish the unlawful sexual contact. To distinguish kidnapping from the
restraint that is part-and-parcel of another offense, KRS 509 .050, the
kidnapping exemption statute, provides in pertinent part that
[a] person may not be convicted of . . . kidnapping
when his criminal purpose is the commission of an
offense defined outside this chapter [KRS 509] and his
interference with the victim's liberty occurs
immediately with and incidental to the commission of
that offense, unless the interference exceeds that
which is ordinarily incident to the commission of the
offense which is the objective of his criminal purpose .
We have construed this statute narrowly and have held that for the
exemption to apply the restraint will have to have been "close in distance and
brief in time . . . If the victim is restrained and transported any substantial
distance to or from the place at which the crime is committed or to be
committed, the offender will be guilty of an unlawful imprisonment offense as
well." Timmons v. Commonwealth, 555 S .W .2d 234, 241 (Ky . 1977) . We have
required, moreover, that one seeking to invoke the exemption strictly satisfy all
three of the statutory requirements: (1) that the underlying criminal purpose
was the commission of a crime defined outside KRS Chapter 509 ; (2) that the
interference with the victim's liberty occurred immediately with or incidental to
the commission of the underlying intended crime ; and (3) that the interference
with. the victim's liberty did not exceed that which is ordinarily incident to the
commission of the underlying crime. Hatfield v. Commonwealth, 250 S .W.3d
590 (Ky. 2008) . The trial court, rather than the jury, determines whether the
exemption applies, Arnold v. Commonwealth, 192 S .W .3d 420 (Ky. 2006) (citing
Calloway v. Commonwealth, 550 S .W.2d 501 (Ky. 1977)), and we review that
determination under the abuse of discretion standard . Id.
Duncan contends that his restraint of SM is indistinguishable from the
alleged sexual offenses because she was restrained for no reason other than
the commission of those offenses and because the restraint was no longer than
necessary to carry out the sexual assault. This last contention is absolutely
meritless . Even granting that Duncan's purpose was the commission of an
offense defined outside KRS Chapter 509, and that he thus satisfied the first
statutory requirement, his restraint of SM clearly exceeded what could be
deemed merely incidental to the sex offenses .
According to SM, Duncan first forced her from the street, where she was
walking, down an alley and then into a secluded area behind an abandoned
house where he sexually abused her. In Mitchell v. Commonwealth, 908 S .W.2d
100 (Ky. 1995), a woman was carried by two attackers from the street into a
backyard, where the attackers raped her. We held that the trial court properly
refused to apply the exemption statute to the restraint involved in moving her
from the street to the backyard . It is arguable, therefore, that Duncan's
forcible removal of SM from the street to the area behind the abandoned house
was not an exempt restraint. But see Hatfield, supra (removal of murder victim
from church parking lot to secluded area behind the church deemed merely
incidental to the murder and so exempt) . Regardless, the additional restraint
Duncan imposed when he forced SM to walk for five to ten minutes through
several blocks to the area behind the school was neither brief in time nor short
in distance, for the purposes of the exemption statute, and exceeded what was
merely incidental to the alleged sexual offenses . The trial court did not abuse
its discretion by ruling that the exemption. statute did, not apply.
III . JH's Pre-trial Identification of Duncan Was Not Tainted by an Unduly
Suggestive Procedure .
Duncan next contends that JH's pretrial identification of him was tainted
by a suggestive identification procedure and that under the Due Process Clause
of the United States Constitution evidence of her identification should therefore
have been suppressed . The admissibility of identification evidence for due
process purposes is governed by a two-part test. First, the court determines if
the identification procedures were "impermissibly suggestive ." Simmons v.
United States, 390 U .S . 377, 384 (1968) . If they were not, then the admission
of evidence based thereon does not violate the Due Process Clause, and the
inquiry is at an end. If the procedures were unduly suggestive, then the court
moves to the second step of the test and determines whether, in light of the
totality of the circumstances, the suggestive procedures created "a very
substantial likelihood of irreparable misidentification ." Simmons, 390 U.S. at
384 . See also Neil v. Biggers, 409 U .S . 188 (1972) (outlining factors to be
considered in totality of circumstance analysis) ; Manson v. Brathwaite, 432
U .S. 98 (1977) (affirming the totality-of-the-circumstances approach and
permitting admission of the evidence unless the circumstances make it likely
that the evidence is not reliable) . We review the trial court's underlying factual
findings for clear error and its ruling on the admissibility of the identification
evidence under the abuse of discretion standard . King v. Commonwealth, 1,42
S .W.3d 645 (Ky. 2004) .
Here, JH testified that on November 1, 2003, when she was fourteenyears old, a man driving a white van pulled up along side her and the friend
with whom she was walking and asked them their names . Frightened, the two
girls ran home. A few days later, on November 5, 2003, as she was walking
home through an alley by herself, a man grabbed her from behind, told her he
had a gun, and warned her not to scream . JH freed herself by hitting the man
with her elbow and ran home, but as she was wrenching herself free, she faced
the man and caught a clear, albeit brief, look at him . She testified that about a
month later police officers twice showed her an array of six photographs of men
matching the description she had given of her attacker. The first time she
tentatively picked out two men, one of whom was Duncan, as resembling the
man who grabbed her. She remembered her attacker as wearing glasses but
none of the men in the photo array wore glasses. A few days later the police
presented her with a second array of six photographs, this one with a more
recent photograph of Duncan, one in which he and the other men included in
the array are wearing glasses . From that array, JH positively identified
Duncan as her assailant .
Duncan sought to suppress JH's identification and argued that showing
JH his photo the second time was unduly suggestive . The trial court,
disagreed . It ruled that the identification procedures were not unduly
suggestive, and so admitted JH's identification evidence without going to the
second step of the test and considering whether there was a "substantial
likelihood" that JH had misidentified Duncan . On appeal, Duncan renews his
objection to the second photo array as unduly suggestive.
An identification procedure is suggestive when it tends to focus attention
on a single individual . United States v. Montgomery, 150 F-3d 983 (911, Cir.
1998) ; St. Clair v. Commonwealth, 140 S .W.3d 510 (Ky. 2004) (showing witness
mug shots of two suspects and no other photos impermissibly suggestive) ;
Moore v. Commonwealth, 569 S .W.2d 150, 153 (Ky. 1978) ("The display .
of a
single mug shot . . . unaccompanied by any other pictures, was unnecessarily
suggestive .") . Repeatedly shoving the picture of an individual can also have
such a focusing effect. Simmons, 390 U .S. at 383 . Duncan insists that the
appearance of his photo in both arrays rendered the second array
impermissibly suggestive because by virtue of the repetition his second photo
was "emphasized ." This precise question has not previously been before us,
but federal courts addressing the issue have held that while "the fact that a
defendant's photo is the only one which occurs in several photo arrays shown
to the same witness could be unduly suggestive," it is not necessarily so .
Stewart v. Duckworth, 93 F.3d 262, 265 (70 (Mr . 1996) (citing United States v.
Bagley, 772 F .2d 482
(91h
Cir. 1985)) . In holding that this scenario was not
unduly suggestive
in the case before it, the Stewart Court noted that eleven
days separated the presentation of the two arrays and that the two photos of
the defendant were taken four years apart and looked very different . In one the
defendant looked thin and wore long hair, while in. the other he was heavier
and had short hair.
Here, three days separated JH's viewing of the two arrays, not as long a
period as in Stewart, but a substantial gap nonetheless . The two photos of
Duncan, moreover, are markedly different. They were taken more than three
years apart, and in the earlier one Duncan appears noticeably younger, is not
wearing glasses, and has a full goatee . In the more recent one, Duncan's face
is fuller, he is wearing glasses, and he has a mustache but no beard. Given the
significant differences between the two photos, we are convinced that JH was
not shown what amounted to a mere repetition of the first photo, and that fact
plus the amount of time between the two viewings convince us that the photo
identification process was not unduly suggestive . The trial court did not abuse
its discretion by so ruling.
IV. The Trial Court Did Not Err by Allowing a Police Detective to Express
a Modest, Experience-Based Opinion.
During his cross-examination of the lead detective in the case, Detective
Mark Fulmore, Duncan elicited testimony to the effect that SM and JH both
described their attacker as not very tall, as perhaps around five-foot-eight
inches tall, whereas Duncan is six-foot-one . On redirect examination, the
Commonwealth asked Detective Fulmore if in his experience it was unusual for
witnesses to describe a suspect's height inaccurately . Duncan objected on the
ground that the detective was not an expert in eye-witness identifications and
so was not qualified to render an opinion . Overruling the objection, the trial
court ruled that if a proper foundation were laid the officer could testify about
his
experience . Asked about has experience, t e detective stated that he had
been interviewing witnesses for twenty-one years and that it was common for a
witness to be mistaken about a suspect's height . Duncan contends that the
trial court abused its discretion under KRE 702 by admitting what amounted
to an unreliable expert opinion . We disagree .
Under KRE 702, an expert may testify concerning "scientific, technical,
or other specialized knowledge" if such testimony "will assist the trier of fact to
understand the evidence or to determine a fact in issue." A witness may be
qualified by "knowledge, skill, experience, training, or education," to give such
testimony, and we have held that where the knowledge required is neither
extensive nor complex, an officer's opinion may be admissible on the basis of
training and experience . Dixon v. Commonwealth, 149 S.W .3d 426 (Ky. 2004)
(narcotics investigator allowed to opine that notations on slip of paper referred
to drug transactions) . Here, Detective Fulmore did not purport to be an expert
in eye-witness psychology nor did he claim that certain types of witnesses or
witnesses in certain situations were more or less apt than others to estimate a
suspect's height inaccurately . In essence, he testified only that his experience
confirmed the common sense notion that people are generally poor judges of
height . As such the problem with his testimony, if there was one, was not that
it was unreliable, but that it was not calculated to "assist the trier of fact." As
the United States Court of Appeals for the First Circuit has explained, "[e]xpert
testimony on a subject that is well within the bounds of a jury's ordinary
experience generally has little probative value . On the other hand, the risk of
unfair prejudice is real . By appearing to put the expert's stamp of approval on
the government's theory, such testimony might unduly influence the jury's own
assessment of the inference that is being urged ." United States v. Montas, 41.
F .3d 775, 784 (Pst Cir. 1994) . Whether Detective Fulmore's opinion could have
been elicited during his direct examination, is a question that is not before us .
In fact, his opinion was elicited only in response to Duncan's questions
meant to discredit the victims' identifications . Generally, "when a witness has
been impeached, the party introducing him may introduce evidence to
corroborate his testimony or support his credibility." Samples v.
Commonwealth, 983 S.W.2d 151, 154 (Ky. 1998) (citation and internal
quotation marks omitted) . Accordingly, as the Montas Court noted, "felxpert
testimony may be used `on some occasions to explain even non-esoteric
matters, when the defense seeks to discredit the government's version of events
as improbable.'" 41 F.3d at 784 (quoting from United States v. Taylor, 18 F .3d
55, 59 (2 nd Cir. 1994)) . The trial court here did not abuse its discretion under
KRE 702 by allowing Detective Fulmore to testify on redirect examination that
in his extensive experience witnesses commonly misgauge a suspect's height .
CONCLUSION
In sum, having failed to establish the significance of its DNA evidence
beyond the expert's testimony that it did not exclude Duncan as a possible
source of the DIVA, recovered from SM's panties, the Commonwealth grossly
misrepresented that evidence when, during its cross-examination of Duncan
and during its closing argument, it asserted that that evidence identified
Duncan as the source and had to be "wrong" if Duncan's testimony was to be
believed . Given the immensely persuasive effect DNA evidence tends to have,
the Commonwealth's misuse of it rendered Duncan's trial manifestly unfair
and necessitates that his conviction be reversed. Duncan's other claims of
erronare not well-taken . At a retrial, Duncan is not exempt from the charge
that he kidnapped SM, JH's pretrial identification of him is not subject to
suppression on the ground that it resulted from an unduly suggestive
procedure, and should Duncan attack the victims' identifications of him by
eliciting that they initially described their attacker as a much shorter person,
the Commonwealth's investigator can counter that in his experience witnesses
commonly misjudge a suspect's height . Accordingly, we reverse the Judgment
of the Jefferson Circuit Court and remand for additional proceedings .
All sitting. All concur .
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentuc
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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