Missouri Court of Appeals
DNA transfer; evidence
28150 State of Missouri, Plaintiff/Respondent v. Samuel A. Freeman, Defendant/Appellant.
Handdown date: 01/16/2008
Appeal from: Circuit Court of Ripley County, Hon. David A. Dolan
Counsel for appellant: John M. Albright, Daniel T. Moore, and Stephen E. Walsh
Counsel for respondent: Daniel N. McPherson
Opinion author: Gary W. Lynch, Chief Judge
Opinion vote: REVERSED AND REMANDED WITH DIRECTIONS. Rahmeyer, J., concurs; McGhee, Sr. J., concurs in result only.
The decisions we make daily are based upon facts that we can objectively prove to be true, facts that we subjectively believe to be true, or a combination of both. As intelligent and enlightened people, our society highly regards the use of reason and logic to objectively support a decision. Yet, we routinely make decisions when we do not have sufficient objective data available to us or we are confronted with data which cannot be objectively quantified. In those situations, we make the decision based upon what we subjectively believe to be true, relying upon the limited facts available to us, our intuition, and our feelings. Few of us make all of our decisions based solely upon what we can objectively prove to be true. Likewise, few of us make all of our decisions based solely upon what we subjectively believe to be true. One of the characteristics that make each of us unique is our individual decision-making comfort level located along the spectrum somewhere between these two extremes.
For example, some completely reject spiritual matters because of the lack of supporting objective proof, while others base their spiritual beliefs, which they believe have eternal consequences, solely upon faith, which has been defined as: “Now faith is being sure of what we hope for and certain of what we do not see.” Hebrews 11:1 (New International Version). Many base their spirituality somewhere between absolute objective proof and absolute faith.
In the 18th and 19th centuries, because of the high value placed upon our liberty and seeking the benefits of both objective and subjective decision-making methods, we as a people agreed that the conviction of a crime requires both the presentation of objective evidence proving the charged acts and a subjective decision as to guilt by the finder of fact. This agreement — one of the cornerstones of our system of justice — is found in the Due Process Clauses of the Fifth and Fourteenth amendments to the U.S. Constitution and Article I, Section 10 of the Missouri Constitution — no person shall be deprived of life, liberty, or property without due process of law.
Incarceration for any period of time deprives a person of their liberty and, thus, may only be constitutionally imposed with due process of law. Due process generally requires two steps as a precondition to incarceration — a fair trial, and a finding of guilt. These steps correlate to our two types of decision-making — objective proof, and subjective knowledge. First, in order to be a “fair” trial, the State must produce sufficient objective evidence from which any reasonable, rational, and logical finder of fact, be it judge or jury, could conclude beyond a reasonable doubt that the defendant committed the acts for which incarceration is sought. Jackson v. Virginia, 443 U.S. 307, 317-19, 99 S.Ct. 2781, 2788-89 (1979). Second, in finding a defendant guilty, the finder of fact must reach a subjective level of near certitude — knowledge beyond a reasonable doubt — that the defendant committed those acts. Id. at 315. Thus, a defendant’s conviction cannot constitutionally stand without both objective evidence of guilt being presented at trial and subjective knowledge of guilt being determined by the finder of fact.
The latter part of the 20th century and the dawn of the 21st century have brought with them the promise and reality of greater objectivity and certainty in the evidence used to identify perpetrators of crime. This has come about through the discovery of DNA and the unlocking of its properties to identify certain bodily cells and fluids as belonging to a specific person, if not uniquely, at least to a degree of probability beyond a reasonable doubt. Contrary to the impression given in most fictional television shows, however, DNA, while providing previously unknowable information, still has limits upon its ability to prove that a particular person has in fact committed a particular crime. In this case, we are required to explore and decide how our 18th century concepts of due process interact with our 21st-century knowledge and understanding of DNA evidence and its evidentiary usefulness and limits.
Samuel Freeman (“Defendant”) claims that his due process rights were violated, in that the State, which produced evidence of the presence of miniscule amounts of his DNA at the crime scene, failed to produce sufficient objective evidence from which a reasonable, rational, and logical juror could have found that he committed the crime of murder beyond a reasonable doubt, even though a jury subjectively found him guilty of that crime. We agree and reverse his conviction.
Factual and procedural background
The evidence adduced at trial, viewed in the light most favorable to the verdict, State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003), is as follows. In 1992, Defendant and Victim(FN1) were both members and frequent patrons of the VFW club on South Broadway in Poplar Bluff. Defendant had recently returned to Poplar Bluff after serving in the Army. Victim worked as a pharmacy technician at the Veterans’ Administration hospital. While they had previously been acquainted with each other, they were not romantically involved and had never dated. Both were at the VFW club the evening of May 6, 1992.
The club was a private club, patronized by members and their guests. In addition to a bingo hall, there was a separate bar area referred to by the veterans as the canteen. A pool table was located in the canteen, as well as video games, a jukebox, tables and chairs, and a full-service bar with seating.
Candace Shipman (“Candace”) was working as a barmaid and reported for her evening shift on May 6 around 4:45 p.m., relieving Bridgette Russom (“Bridgette”), who was the daytime bartender. Both Victim and Defendant were in the club at the same time during a four- to five-hour period that evening. Throughout the evening, Candace waited on customers, cleaned, and stocked coolers. She served Victim Miller Lite beer in cans, and Defendant was drinking Budweiser beer and shots of Galliano. Candace estimated she probably served Defendant several beers and two or three shots of Galliano that night. Bridgette remained at the club and met her fiancé there after her shift ended. Victim joined Bridgette and her fiancé at the bar.
Robert McSwain was also present at the VFW club that night.(FN2) Robert was “a regular” at the club, and there was testimony that Victim was “head over heels in love with him.” Jimmy Reed, a co-worker and friend of Victim, testified that Victim and Robert had an “on-again off-again, boyfriend and girlfriend” relationship and described it as a “love-hate relationship.” He stated that the relationship had been ongoing for about six or seven years.
Robert was joined by his son, Richard, and Richard’s friend, and all three played a couple of games of pool. Before they finished their games, Defendant indicated that he wanted a turn at the pool table, and Robert told Defendant he would have to wait his turn. Richard testified that Defendant was “upset” and had a “[d]isgruntled look” on his face.
Afterward, Victim approached Defendant and told him to leave the boys alone. Richard testified that he could see they were arguing, that their “voices were raised a little bit.” Candace stated that Victim was “upset” and “vocal,” but she did not hear what was said. Bridgette testified that she did not “know that anybody was angry”; that Defendant “seemed a little agitated” by the look on his face. Defendant stated that Victim thought he was trying to hustle the boys in a pool game, and that it was no big deal. This encounter lasted “just a matter of seconds.” Soon afterward, Defendant flirted with and offered to buy Victim a drink, however she declined, and he returned to playing the video games.
Closing time for the VFW club was usually 11:00 p.m., but on the night of May 6, 1992, Candace closed the bar earlier. After she gave the last call for drinks, Defendant finished his drink and left the bar to walk home. Defendant lived approximately one mile from the VFW club. He left with a Galliano bottle which Candace had given him after emptying it for Defendant’s last shot.
A Galliano bottle has a distinctive shape in that it has a typical round bottle top that then, in a continuous flow, flares from the top to the base in an alternating round and 12-sided polygonal shape. The glass is rounded at the bend defining each edge between the sides of the polygon. It does not, unlike most wine, liquor, and beer bottles, have two parts — a barrel on the bottom part and a neck on the top — with the neck connected by a flange at the top of the barrel.(FN3)
Approximately 15 minutes after Defendant left the VFW, Candace, Bridgette, and Victim left the club together. Victim left with a paper bag containing six cans of Miller Lite, which she had purchased earlier in the evening, and she got into her car. She declined Bridgette’s offer to follow her home. Upon exiting the parking lot, Bridgette turned left, and Victim continued driving toward her apartment, which was seven or eight blocks from the VFW club.(FN4)
Everett Nichols, a neighbor of Victim, testified that he was at home with his girlfriend watching television when he heard a car drive up. When he looked out the window, he saw Victim retrieve a package from the passenger side of the car and walk toward her apartment door. He did not know what time this occurred, but he testified that the television program “Hunter” had just started. It appeared to him that Victim had some difficulty opening her door. He also noticed a man coming from behind her. They went into her apartment, and he did not hear anything else.(FN5)
Victim’s body was discovered in her apartment bedroom in Poplar Bluff by her mother the next day on May 7, 1992, shortly after 1:00 p.m. She was found lying on her back, her head at the foot of the bed and her feet at the head of the bed, with blankets partially covering her nude body. Knotted around her neck was a nylon knee-length stocking. Another stocking was on her right foot.
After the authorities were contacted, the first responding officer arrived at 1:49 p.m. Shortly thereafter, Poplar Bluff police detective Donwell Clark(FN6) arrived and took charge of the scene. He was later joined by Butler County’s deputy coroner, Bruce Goin, who assisted Clark in processing evidence collected from Victim’s bedroom.
The next day, May 8, 1992, Detective Clark and deputy coroner Goin attended the autopsy on Victim’s body in Farmington. Dr. Steven Parks, who did the autopsy, died before Defendant’s trial. At trial, Michael Zaricor, D.O., testified regarding Dr. Parks’ autopsy report. To prepare for his testimony, Dr. Zaricor reviewed the “autopsy report, the death certificate, the examination by Donwell Clark of the scene, and his report from being at the autopsy, [and] the photographs of the scene, and photographs taken at the time of the autopsy.”
The autopsy report prepared by Dr. Parks noted that “asphyxial death from ligature strangulation” was the cause of Victim’s death and placed the time of death at midnight. Dr. Zaricor testified that a determination as to a time of death “is really difficult.” He could not offer an opinion based upon a reasonable degree of medical certainty as to the time of Victim’s death. He stated that Dr. Parks would have been better prepared and would have more information to offer that opinion than he.
The autopsy report noted that Victim’s larynx was fractured, and there were fractures in the hyoid bone. Dr. Zaricor did not believe that the nylon-stocking ligature found tied around Victim’s neck caused these fractures, although the ligature probably was the cause of petechial hemorrhages in the eye, and he offered his opinion that the fractures were caused by manual strangulation.
There appeared to be no external injuries to Victim’s head, however, after incising the scalp, Dr. Parks found a 6-cm. “subcutaneous hematoma” (an area of hemorrhage) behind her right ear. Dr. Parks concluded that it occurred before her death. Dr. Zaricor opined that the injury resulted from “[s]ome sort of blow to the head” caused by “an instrument, . . . a fall[,]” or a fist. He explained that had it been caused by an instrument of some sort, “it wasn’t struck hard enough to split the skin, because [Dr. Parks] didn’t notice anything externally.” Dr. Zaricor suggested it may have been “[s]omething with a smooth surface.”
The autopsy also revealed bruises (contusions) outside and inside of the left thigh and on both buttocks adjacent to the vaginal opening. Dr. Zaricor believed these injuries occurred “just before or during the time of death.” An examination inside the vagina revealed an abrasion (cut or break in the skin) within a contusion, and “bruising and linear abrasions next to the cervix” caused by penetration by “[s]omething other than a penis[.]” Dr. Zaricor expressed his opinion that what might have caused these injuries was “[s]omething relatively sharp . . . not a blunt thing . . . probably a sharp, rounded surface . . . [s]omething rigid enough, with a corner or edge to it, that could tear that.” Although he stated he was “not familiar with dildos,” he supposed “something like that, or something of that shape could cause it,” however he did not “remember ever seeing anything like that that sharp.” Pressed to provide more detail regarding what object might inflict such injuries, Dr. Zaricor stated, “It has to be narrow enough to fit in there, and long enough to reach the paracervical area in the vagina. We are talking probably six or eight inches long.” In terms of the diameter of such an object, Dr. Zaricor testified:
That could vary. If it is something rigid it doesn’t have to be of any specific diameter, but the bruising caused to the buttocks indicated that it had to be long enough to damage that while still being in there, or to damage it by contusing it as it was inserted in and out. It probably would have to have a wider flange at the base.
To insert that to the depth that it was inserted and cause the bruising of the buttocks, it either has to be ripped from side to side, or as it is inserted it is bruising. Then it has to have a wider flange at the bottom.(FN7)
Dawn Kliethermes, a criminalist/latent print examiner employed at the Missouri State Highway Patrol Crime Laboratory testified regarding further evidence obtained at the scene of Victim’s death. Initially she noted: “A fingerprint, we may also refer to is a latent print. That is a reproduction of the friction ridges that are left on an item or object that has been touched by an individual.” Very little fingerprint evidence was obtained from the scene. There was one latent print recovered from a beer can found in a trash can, which was later matched with the index finger of Victim’s right hand. Two other fingerprints were recovered, although the witness was “not positive where these [two] prints are coming from.” One fingerprint which was determined to be “suitable for comparison purposes,” was not matched to either Victim or Defendant, and another print was found to be not “suitable for comparison purposes.” The witness conceded that the fingerprint evidence did not link Defendant to the crime scene.
The jury heard testimony from Jason Wycoff, a DNA analyst/criminalist with the Missouri State Highway Patrol Crime Laboratory in Jefferson City for “over ten years,” beginning in 1996. Wycoff explained that deoxyribonucleic acid (“DNA”) is a molecule within the nucleus of a cell in the body. Providing a background for the testing process, Wycoff testified that cellular material, which he also referred to as DNA “stain,” that could yield DNA includes “skin cells, hair cells, sperm cells, blood, and so forth.” Blood and saliva “are generally known to house quite a bit of the cellular material for DNA.” DNA is found in white blood cells in the blood, sperm cells in semen, and “epithelial cells or skin cells inside the mouth in saliva.” Non-fluid stain examples would include skin cells, the most widely observed example of which is dandruff.
According to Wycoff, DNA can transfer. One can transfer one’s own DNA by shaking hands or touching someone else, i.e., skin-to-skin transfer. Transfers of one’s DNA can occur by skin contact with an object, such as skin to clothing. Transfer can also occur in the other direction. The DNA of someone who has previously worn that clothing can transfer to the skin of someone who later wears that clothing. In such a situation, Wycoff would expect to find a mixture consisting of the DNA from both persons. Transfer can occur between two people or a person and an object without any physical contact. For example, saliva, mucus, or sweat is propelled from one’s body, by a natural movement or reflex such as talking or coughing, sneezing, or swinging an arm, and deposits itself on another person or their clothing. Wycoff noted that “[w]et stains tend to transfer more easier [sic] than dry stains do.”
Wycoff could not say when the DNA were transferred to the items tested, and could not say how the various DNA were transferred. He stated that one explanation for the transfer of 0.0125 of one-billionth of a gram could be possibly explained by saying there was very slight transfer of a profile DNA; that it is possible that someone putting their hands on a surface and another person wiping a sleeve upon that surface could potentially transfer DNA.
Because of the ease with which DNA can be transferred, it can be transferred, Wycoff explained, during the collection and testing of evidence. This type of transfer is referred to by law enforcement as “contamination” which occurs, according to Wycoff, “when [DNA] shows up where it shouldn’t be.” For example, the DNA of the analyst is transferred to a piece of evidence while it is being analyzed, or DNA is transferred by one piece of evidence coming into contact with another piece of evidence. This latter type of transfer is sometimes referred to as cross-contamination. Wycoff indicated that precautions to avoid any contamination in the process of collecting DNA evidence should include: changing gloves before handling different specimens; wiping down tools used in examination of evidence to avoid transfer; changing surfaces over which examinations are conducted; and securing the laboratory.
The DNA extraction process essentially breaks open the cells in the sample, releasing the DNA. Wycoff explained to the jury that “99.9 percent of a person’s DNA is the same from one person to the next. It is the point one percent that is different where the crime lab focuses.” Ideally, within that point one percent difference, Wycoff stated he searches for sixteen specific areas of the DNA chain for comparisons in determining a profile. Thirteen areas are considered “core” by the FBI, which he explained “is what they would like to have.” The minimum criteria require 10 areas for comparison. The DNA profile developed by Wycoff from the evidence is then compared to the profile established from a “standard” obtained from a known donor, often by swabbing the mouth for saliva samples or from blood samples.
Wycoff stated that it does not take much of a quantity of a stain to determine DNA profiles; “the size of one or two or three pin heads” is sufficient. The stains Wycoff obtained for testing in this case “were between 0.0125 nanograms per microliter, and 0.03 nanograms per microliter.” Wycoff testified that “[a] nanogram is a billionth of a gram.” There was testimony from Wycoff that DNA can degrade over time, but it can last for quite a long period of time “under certain conditions.”
In comparing a DNA profile from a piece of evidence with a “standard” DNA profile from a known donor, Wycoff told the jury that he could not “come out as in like they do in fingerprints to say the person contributed this fingerprint to the exclusion of all others in the world.” The only thing he can say is that the profiles are either consistent or inconsistent with each other; and, if consistent, “then possibly back that up with some sort of statistical calculation.” Wycoff identified this statistical calculation as a “population frequency” and told the jury that as related to a DNA profile, it “means the number of times I would expect that profile to show up in the population if I profiled everybody in the world.” He quantified “everybody in the world” by telling the jury that the world’s population was approaching 7 billion people.
Sometimes Wycoff is confronted with a stain that contains a mixture of the DNA from two or more people. He defined “mixture” as “DNA coming from more than one person . . . [with] characteristics of at least two people.” Wycoff described such a DNA mixture to the jury in the following manner:
I like to use the analogy of a bowl of M&Ms. You have red M&Ms and you have green M&Ms. You mix them together and, you know, you have a mixture of red and green. Sometimes you see a whole lot of red, not a whole lot of green. You know you have more red contributing to that mixture than you do green. Sometimes it is the other way around. You have more green contributing than you do red. Sometimes it is an equal mixture. You don’t know who is doing what. It is too hard to count them. You don’t know. So you can just say at that point I see a mixture of red and green.
When he can make a determination that a single individual contributed the most DNA to a mixture (more reds than greens), Wycoff referred to the DNA of that individual as the “major component” in the mixture and any other contributor as a “minor component” (less greens than reds). If Wycoff cannot determine a major contributor to a mixture, he cannot make any statistical calculations as to the population frequency of any of the DNA contained in the mixture.
Initially, some of the evidence recovered from Victim’s apartment was sent to the Southeast Missouri Crime Lab in June 1992, but no DNA testing was performed at that time. Nevertheless, Wycoff was not the first analyst to perform DNA testing on some of the evidence submitted in this case. Joe Roberts and Brian Hoe preceded him, and one or both of them was responsible for testing beer cans in 1998. That testing indicated that there was an insufficient amount of DNA to enable a profile to be developed.
In 2005, the Poplar Bluff police sent Wycoff several items from Victim’s apartment for DNA testing. These items included the sexual assault kit performed on Victim during the autopsy, two paper towels, a piece of toilet paper with a blue seashell print, three pink-colored tissues, the knee-high nylon stocking on Victim’s right leg, the knee-high nylon stocking that was tied and knotted around Victim’s neck, and a piece of toilet paper with a pink seashell print which was found by the Victim’s shoulder.
Wycoff obtained DNA samples to use as “standards” for comparison purposes and established DNA profiles for Victim, Defendant, and all officers present at the scene. All officers were essentially excluded(FN8) as being contributors of any of the DNA found on items taken from Victim’s apartment and submitted for testing, except for one paper towel used by Donwell Clark to blow his nose. Wycoff was also able to exclude Defendant as a contributor on all items submitted where DNA was located, except for the last three items listed: the two nylons and the piece of toilet paper with a pink seashell print.
“[S]ome sort of stain identification was performed at the Southeast Missouri State Lab” on the two nylons prior to testing at Wycoff’s lab, however it was determined then, presumably in 1992, that the nylons were negative for stain identification. Wycoff employed an “alternative light source . . . to try to show stains that might be present” on the nylons, as “stains that are living in nature, so to speak, urine, saliva, sweat, tears, and so forth, have a tendency to fluoresce under the alternative light source.” Wycoff opined that the source of the DNA extracted from the stockings and toilet tissue (found under Victim’s shoulder) was biological and fluid in nature, as the alternative light source picked up areas that might be biological fluid, but he could not say whether it was saliva, blood, or another source.
On “the stocking that was tied and knotted around [Victim’s] neck,” cells from a single stain location yielded 13 of the 16 specified areas in the DNA chain and provided a “partial profile” that was “a mixture.” This mixture “had male and female gender characteristics.” This stocking had more “female gender characteristics,” indicating that the “major contributor, or the person who contributed the more DNA to that profile was female.” As to the other “contributor,” “[i]t is a mixture.”
The stocking found on Victim’s leg, had “10 out of 16” of the specified areas from the one location from which DNA was extracted. Wycoff “determined that Victim could not be eliminated as being a contributor to the mixture of both items [he] got a profile from.” “Of the people I tested, she is still in the running for people that are probably or could be on here. It means that I could not eliminate her as being a contributor to this.”
State’s Exhibit 56 was the piece of toilet paper with a pink seashell print “found next to victim’s shoulder.” Wycoff “used the alternate light source to try to determine if there were stains that could be biological in nature that [he] could attempt DNA profiling,” and he ultimately tested 10 separate pieces. Wycoff “wound up with like six different areas” that contained DNA for comparison purposes, and “[o]nly on one out of the six was [he] able to make a major component determination,” meaning the person who contributed the most DNA. That was the male component. “There were actually six profiles developed from the tissue. . . . Every one of them were mixtures[,]” meaning they contained female and male characteristics. He could not exclude Victim as a possible contributor: “[p]rofiles consistent with her were detected in those mixtures.” All of the officers were eliminated as possible contributors. He further stated, “Essentially I knew that I was dealing with mixtures that were characteristics of at least two people, and that it appeared to be at least two people showing up in all six of the profiles.” Wycoff also testified, “There are areas of foreign DNA that is [sic] showing up in those mixtures. It is minor and it is partial. . . . There is DNA in the mixture from the tissue that can’t be explained by any of the profiles I developed to the reference standards in this case.” Wycoff determined that the male who was the major component to the DNA stain on the tissue “could not be eliminated as being a contributor to the nylons.”
Of the six profiles developed from the tissue, Wycoff “was able to determine on five of those that [Defendant] could not be eliminated as a contributor to the mixture.” “And on that one area where [he] had a major component that appeared to be male, [Defendant] could not be eliminated as a source of that major component.”
Wycoff determined the population frequency on the major component from that mixture on the tissue. Per the Caucasian database, Wycoff calculated he “would expect the major component from that tissue to show up in the population once in every 6.131 quadzillion people.” Per the Black population, “I would expect the profile from the major component to show once in every 2.43 quintillion people.”
Wycoff did not calculate population frequencies for the profiles obtained from the nylon stockings because “[t]hey were of insufficient data and the mixture was of insufficient value for me to perform statistical calculations” and he could not do statistical calculations of those types of mixtures. All he could say is that “these two individuals [referring to Victim and Defendant] could not be eliminated as a contributor.” The DNA profiles obtained from the stockings were partial profiles. Wycoff could not do a statistical calculation “because of the mixture itself[,]” which was of such a nature that he “could not assign a clear major minor component type of thing.” If he could not assign a clear major or minor component from the mixture, he stated he “probably can’t do the statistics.”
Wycoff could not say whether the source of the stain on the tissue was semen, as he “did not do any stain ID testing in the laboratory or this item[,] and did not know.” All he could say is that it was “some biological matter.”
Wycoff also testified, “[T]here is DNA present in small concentrations that I can’t contribute to anyone. It is foreign to everybody that I tested in the case. So there is potentially another person showing up in those items. . . . I don’t know who it belongs to at this point. I don’t have a reference standard to do a comparison back to. . . . I would have to assume that at this point we must be dealing with at least three” and possibly as many as five people. Wycoff requested additional standards to enable him to do further comparisons. However, none were sent to him at the time of trial.
On Nov. 14, 2005, Defendant was charged with the class A felony of murder in the first degree, pursuant to section 565.020, RSMo Cum.Supp. 1991, for the May 1992 murder of Victim.(FN9) Upon trial, the jury returned a verdict of guilty, and Defendant was sentenced to a term of life imprisonment without eligibility for probation or parole. This appeal followed.
On appeal, Defendant challenges, in part, the trial court’s denial of his motions for judgment of acquittal filed at the close of the State’s case and at the close of all the evidence based upon the insufficiency of the evidence. Defendant maintains that “the only evidence connecting the Defendant to the crime was his DNA found on a tissue and a stocking,” and because DNA is “robust, miniscule and easily transferred[,]” the jury could not reasonably infer from the mere presence of his DNA that he caused Victim’s death.
Standard of review
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, this court’s review is limited to determining whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt.” State v. Salmon, 89 S.W.3d 540, 546 (Mo.App. 2002). We view the evidence and reasonable inferences drawn therefrom in the light most favorable to the jury’s verdict and disregard all contrary inferences. Id. “Reasonable inferences may be drawn from both direct and circumstantial evidence.” Id. “However, the inferences must be logical, reasonable, and drawn from established fact.” Id. We may “not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.” State v. Whalen, 49 S.W.3d 181, 184 (Mo.banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n.1 (Mo.App. 1999).
An inference is “the act of passing from one proposition, statement, or judgment considered as true to another whose truth is believed to follow from that of the former.” Merriam-Webster’s 11th Collegiate Dictionary. “Inferences . . . are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime – that is, an ‘ultimate’ or ‘elemental’ fact — from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224 (1979). For example, a trier of fact could infer the elemental fact that a defendant caused the death of a victim from the evidentiary facts that the defendant was observed standing over the victim with a smoking gun and that the victim died from a gunshot wound, even though there was no direct testimony or evidence that the defendant shot the victim.
We are mindful that: “[t]he Court of Appeals does not determine credibility of witnesses, resolve conflicts in testimony, or weigh evidence, as these tasks are quite properly left to the jury.” State v. Butler, 24 S.W.3d 21, 27 (Mo. App. 2000) (Lowenstein concurring opinion) (citing State v. Idlebird, 896 S.W.2d 656, 660-61 (Mo. App. 1995)). Nevertheless, in assessing the sufficiency of the evidence where the State relies upon an inference or inferences drawn from the direct evidence to support any element of the charged offense, due process requires that an inference must rise above the level of conjecture and speculation and, at a minimum,(FN10) the inferred fact must be more likely than not to flow from the proved fact in order to be considered rational, reasonable, and logical. Leary v. U.S., 395 U.S. 6, 36, 89 S.Ct. 1532, 1548 (1969). Thus, in considering the sufficiency of the evidence to support a particular inference in this context, we are not making any credibility assessments, resolving any conflicts in the testimony, or re-weighing the evidence, because we view all of those matters as resolved by the jury in our consideration of the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Also when viewed in this light, we do not engage in considering the probability of whether any contrary inferences are more reasonable or more logical because we disregard all contrary inferences. Salmon, 89 S.W.3d at 546. Our review merely consists of a determination as to whether the evidence when viewed in this manner supports the conclusion that the inferred fact upon which the conviction relies, at least more likely than not, flows from the direct evidence produced at trial. Leary, 395 U.S. at 36.
The State has the burden of proving that Defendant caused Victim’s death as one of the elements of the offense of first-degree murder. Section 565.020; State v. Evans, 992 S.W.2d 275, 284 (Mo.App. 1999). Victim died by manual strangulation, so proof that Defendant caused her death presupposes the fact that Defendant was present in person at the time and at the location where she was strangled. Defendant claims that the evidence presented at trial was insufficient to prove his presence at the time and place of Victim’s death and, thus, was insufficient to prove he strangled Victim.
No direct evidence was presented of Defendant’s presence at the time and place of Victim’s death. However, there was evidence of the circumstances surrounding Victim’s death, which the State maintains reasonably infers Defendant’s presence with Victim at the time of her death. That circumstantial evidence consists of Defendant’s DNA found on the two nylons on Victim’s leg and neck and on the tissue by Victim’s shoulder discovered after her death.(FN11) The logical support for the State’s position necessarily includes four inferences drawn from this circumstantial evidence, which build upon each other in the following order. First, Defendant physically touched these three articles — the two nylons and the tissue — at the time that his DNA was transferred to the articles. Second, the three articles were present at the same time and location as Victim’s death. Third, the transfer of Defendant’s DNA to the three articles occurred at the same time and location where Victim was killed. Fourth, Defendant was, therefore, present at the same location as Victim at the time Victim died, and he caused her death. Defendant faults the logic of the first foundational inference — his DNA transferred to the articles when he touched them — claiming it is not supported by the evidence.
The only evidence supporting this inference is supplied by the State’s DNA expert, Jason Wycoff. He testified that the DNA stains were not visible to the naked eye. Likewise, the DNA molecules are so small that they cannot be seen even under a microscope. The existence of these miniscule molecules could only be brought to the attention of the jury through Wycoff’s use of sophisticated scientific equipment, his training and experience in using that equipment and interpreting the results of the testing performed with that equipment, and his testimony as to the scientific principles involved. Such highly complex scientific principles, processes, and equipment related to the nature and characteristics of DNA are not within the ordinary and common experience and knowledge of the jury. Thus, any inferences drawn by the jury from the evidence as to the presence of Defendant’s DNA on these three articles must be supported by evidence supplied by Wycoff, the only expert witness who offered any evidence related to the nature and characteristics of DNA.
After testifying on cross examination that DNA is transferable and that there are potentially many ways it can be transferred and re-transferred, the following exchange occurred between the prosecutor and Wycoff on redirect:
Q. [Defense counsel] asked you different ways DNA could have shown up on the pantyhose and the tissue by this dead girl’s body, right?
Q. One way he didn’t ask you, and I want to ask you, because I think you followed it up with potentially, because you don’t know how it got there?
A. That’s correct. I don’t know how the DNA got where it got.
Q. But potentially a way that that DNA got on the pantyhose is because that man had his hand around them while they were around her neck and he was choking her to death. That is one potential way, isn’t it?
A. That would be a potential way.
This is the only evidence in the record supporting the occurrence of a direct contact transfer of Defendant’s DNA to the three items. Thus, the question for our resolution becomes whether the “potential” of a direct contact transfer of Defendant’s DNA to the three articles is sufficient evidence upon which to base a reasonable, rational, and logical — more likely than not — inference that Defendant actually touched the items. We hold that it is not.
The State contends that the analytical framework for our analysis of this question should be guided by cases involving fingerprints. See State v. Grim, 854 S.W.2d 403 (Mo. banc 1993); State v. Maxie, 513 S.W.2d 338 (Mo. 1974); State v. Rockett, 87 S.W.3d 398 (Mo.App. 2002); State v. Woodworth, 941 S.W.2d 679 (Mo.App. 1997). These cases are not helpful in our analysis, however, because the presence of a fingerprint and the presence of DNA occur through differing physical processes.
As noted in Grim: “A fingerprint can also prove presence at a particular place because prints are left through physical contact between people and things. If there is adequate evidence of where the object was when the person left the print, the print is evidence that the person was in the same place.” 854 S.W.2d at 411-12 (emphasis added). The State’s fingerprint expert in the instant case also testified: “A fingerprint . . . is a reproduction of the friction ridges that are left on an item or object that has been touched by an individual.” (Emphasis added). Thus, based upon the proven fact that fingerprints are only left by the process of physical contact of a person with an object, it may reasonably and logically be inferred that the person to whom the fingerprint belonged was physically present when the fingerprint was made.
However, unlike fingerprints, this process — physical contact between a person and an object — is not the exclusive manner in which DNA is transferred to an object. According to Wycoff, it is only a “potential” process by which to explain the presence of DNA on an object and there are many other processes that “potentially” give rise to the presence of DNA on an object. Wycoff described the physical characteristics of DNA and the various body fluids that contain DNA in such a manner that DNA potentially can be transferred without any direct contact, such as by a sneeze, cough, or discharge of sweat in the vicinity of another person or object.
In addition, Wycoff explained that DNA can potentially be re-transferred from one person to another person, from one person to an object then to another person or object, or from object to object. Indeed, the myriad ways in which DNA can potentially be transferred poses such a risk of contamination and cross-contamination that, as Wycoff explained, law enforcement officers and lab personnel must take many precautions in order to avoid such unintended transfers. Clearly, in the absence of such precautions, transfers and re-transfers of DNA occur daily on a routine basis in everyone’s life and can be described as, as Wycoff explained contamination, “when [DNA] shows up where it shouldn’t be.”
Here, Defendant and Victim were confined within the same enclosed space — the VFW club — for a period of four to five hours within just a few hours before Victim’s death. During that time they were within close proximity of each other on at least two occasions — the argument and the attempt by Defendant to buy Victim a drink. Also during that time period, both of them had occasions to come into contact with objects located in the club, such as the bar and other furnishings. This proximity to each other and the objects located in the club during this time period offered many “potential” primary or secondary transfers of Defendant’s DNA to Victim’s person, her clothing, or other objects in her possession. The actions of the perpetrator of Victim’s death in using Victim’s clothing to strangle her and then in wiping down her apartment, as evidenced by the lack of any significant number of fingerprints, afforded additional opportunities for “potential” re-transfer of Defendant’s DNA to the three articles.(FN12)
Wycoff, however, offered little, if any, guidance as to how to quantify the potentiality that any particular type of transfer could explain the presence of a particular
person’s DNA on any particular object. The closest he came to providing such information was in describing the potential transfer of DNA by serial contact of an item of clothing by two people. In that situation, he would expect to see a mixture of both persons’ DNA.
We note that the presence of an identified body fluid such as blood or semen, both of which are not normally and routinely exchanged by people in public places or left on objects in public places, identified by that person’s DNA therein, could provide additional evidence of potentiality to support an inference of that person’s presence at or near the location of the blood or semen. Here, however, Wycoff could not identify the bodily fluid source from which the Defendant’s DNA originated. He observed: “Perhaps it was a skin cell. Perhaps it could have been some other type of body cell.” On his cross examination the following exchange took place:
Q. Now, on the DNA profile you were able to extract from the two stockings and the tissue, you couldn’t tell the jury if that was a nasal extraction, saliva, skin? You don’t know, do you?
A. I can offer an opinion. It was biological in nature, and it appeared to be fluid of some sort because the alternate light source picked up areas that might be biological fluid.
Q. By fluid, does that include sweat, tears, saliva? What else would it include? Blowing your nose?
Wycoff also noted: “[A] wet stain will transfer easier than dry stains. They tend to stay stuck where you stick them.”
None of the above evidence supports an evidentiary basis from which a reasonable juror could infer that any one particular “potential” type of transfer — direct physical contact as argued by the State — was more likely than not to flow from the presence of Defendant’s DNA on the three articles. Leary, 395 U.S. at 36. Therefore, the inference that Defendant’s DNA was transferred to the three articles by Defendant’s direct physical contact with them is not logical, rational, or reasonable, but rather is illogical, arbitrary, and based upon nothing more than speculation and conjecture. Without this foundational inference, the jury could not further reasonably infer that Defendant was at the location of Victim’s death at any time, much less at the time that Victim was killed. Thus, there was insufficient evidence by direct or circumstantial evidence of an essential element of the crime — Defendant caused Victim’s death.
The State argues that, in addition to the presence of his DNA, the fact that the Defendant was in possession of a Galliano bottle within a couple of hours before Victim was killed and within seven or eight blocks of where Victim’s body was found and which bottle could have been used to hit Victim on the head and to sodomize her, gives rise to a reasonable inference that Defendant caused Victim’s death. In support, the State cites us to State v. Kinder, 942 S.W.2d 313 (Mo. banc 1996): “[W]here there was evidence that defendant possessed a metal pipe on the night of the murder, the victim’s injuries were consistent with being beaten with a blunt, heavy object, and the defendant’s DNA was found at the scene.” While “similar circumstantial evidence cases are not dispositive of the question of submissibility of this case, since each case must be considered in light of its own particular facts and circumstances,” State v. Franco, 544 S.W.2d 533, 536 (Mo. 1976), consideration of the distinguishing facts in Kinder lend support to our determination of the insufficiency of the evidence in this case.
In Kinder, where our Supreme Court found sufficient evidence to support the defendant’s conviction for murder, the defendant was observed at about midnight in the parking lot of a bar about forty yards from the female victim’s home, holding a pipe with black tape on one end. 942 S.W.2d at 320. At about 1:00 a.m., the defendant was observed exiting the victim’s home. Id. Early the next morning, victim’s unclothed body was found lying on the bed of her home in a pool of blood. Id. The pathologist testified that her injuries were consistent with being beaten with a pipe. Id. Semen was recovered from the victim’s body, and DNA testing of the genetic material in that semen matched the defendant’s profile. Id.
First, we note that the fluid containing the defendant’s DNA in Kinder was semen, which more likely than not infers that it was placed there by the volitional act of the defendant. Second, the defendant was observed exiting the home where the victim’s body was found. This direct evidence of the defendant’s presence at the victim’s home and the presence of the defendant’s semen on the victim, more likely than not, infers that the defendant was physically present in the victim’s bedroom — the scene of the murder. Third, the defendant was observed holding a pipe within 40 yards from the victim’s home, and the pathologist testified the victim’s injuries were consistent with having been inflicted with a pipe. These facts more likely than not infer that the victim’s injuries were inflicted with the pipe that was in the defendant’s possession. Being built upon such reasonable and logical inferences, the resulting inference that defendant caused the death of the victim was, thus, reasonable and logical and, therefore, provided sufficient evidence to support the defendant’s conviction for her murder. Contrast these facts, however, with the paucity of evidence supporting the reasonableness and the logic of the inferences attempted to be drawn by the State in the case at bar.
In Kinder, the defendant’s semen was found on the victim’s body. Here, the bodily fluid containing, as part of a mixture, Defendant’s DNA was unidentified. Without such identification, no reasonable and logical inferences can be drawn as to how that fluid was transferred to those three items, as previously discussed infra. In Kinder, there was direct and circumstantial evidence that the defendant was in the victim’s home. Here, there was no direct evidence that Defendant was ever closer than seven or eight blocks to Victim’s apartment, and there is no evidence, either direct or circumstantial, that Defendant knew where Victim lived or had taken any action to acquire such information. In Kinder, the Defendant was in possession of a pipe at a bar, which is an item not normally or usually found at a bar, just forty yards from the victim’s home. Here, Defendant left a bar located seven or eight blocks from Victim’s apartment with a liquor bottle, which is an item usually and normally found in bars. In Kinder, the pathologist testified that the victim’s injuries were consistent with being inflicted with a pipe. Here, the medical examiner testified that the bruise on the back of Victim’s head was inflicted by “an instrument, . . . a fall[,]” or a fist. We can say with some degree of certainty that virtually all people within the seven- or eight-block radius of Victim’s apartment on the night in question had a fist and that most had within their immediate possession “an instrument” within the relevant time period. Other than the general reference to “an instrument,” nothing in the evidence supports that this bruise was more likely than not inflicted by a Galliano bottle. Thus, any inference that it was would not be reasonable or logical. Likewise, the medical examiner testified that the instrument which might have been used to sodomize Victim had to be “[s]omething relatively sharp . . . not a blunt thing . . . probably a sharp, rounded surface . . . [s]omething rigid enough, with a corner or edge to it, that could tear that,” small enough to fit in the vagina, long enough to reach the paracervical area, probably six to eight inches long, and “it would probably have to have a wider flange at the base.” While a Galliano bottle is rigid, small enough to fit in the vagina, and long enough to reach the paracervical area, it is not sharp, it does not have a corner or edge to it, and it does not have a wider flange at the base. While the similarities to some of the attributes described by the medical examiner may make the possession of a Galliano bottle within seven or eight blocks of the scene of the crime probative and, therefore, relevant for purposes of the admission of its possession into evidence, such modicum of evidence is not sufficient to support a reasonable and logical inference that Victim’s sodomization more likely than not was inflicted by a Galliano bottle. Such an inference drawn from the meager facts of this case and the broad generalizations in the medical examiner’s testimony is based on nothing more than speculation and conjecture and, as such, is illogical and arbitrary.
The mere presence of Defendant’s DNA on the three items and Defendant’s possession of a Galliano bottle as he left a bar seven or eight blocks removed from the crime scene is not sufficient evidence from which a reasonable juror could reasonably and logically infer that Defendant caused Victim’s death. In the absence of any proof on this issue, we cannot supply a forced inference that Defendant, in fact, caused the death of Victim. See State v. Self, 155 S.W.3d 756, 764 (Mo. banc 2005).
Victim’s horrible and tragic death cries out for justice. In our quest for that justice, however, our oath of office prevents us from setting aside the constitutional due process requirement to afford a fair trial — one supported by sufficient objective evidence — to each and every person accused of a crime, including Defendant. Lack of fidelity to that oath would not bring about justice for Victim, but would only perpetrate another injustice.
“The double jeopardy clause precludes remand for a second trial when a conviction is reversed because the evidence introduced at the first trial was legally insufficient.” Id. Because the State failed to prove an essential element of the charged offense — that Defendant caused the death of Victim — Defendant’s conviction is not supported by sufficient evidence and must be reversed. See id. For the reasons set forth above, the judgment is reversed, and the case is remanded for entry of a judgment of acquittal.
FN1. Section 566.226 requires that:
After August 28, 2007, any information contained in any court record, whether written or published on the Internet, that could be used to identify or locate any victim of sexual assault, domestic assault, stalking, or forcible rape shall be closed and redacted from such record prior to disclosure to the public. Identifying information shall include the name, home or temporary address, telephone number, social security number, or physical characteristics.
We use the term “Victim” in this opinion in order to comply with this statute. No disrespect is intended.
All references to statutes are to RSMo 2000, unless otherwise indicated.
FN2. Robert McSwain died eight years before Defendant’s trial.
FN3. A 17-and-one-quarter-inch-tall Galliano bottle was offered by the State and admitted into evidence, over Defendant’s objection, for the limited purpose of demonstrating and modeling its shape for the jury.
FN4. The actual distance as measured by the police was 1,241.8 feet.
FN5. Nichols gave conflicting descriptions of the man he observed, none of which correlated to Defendant. However, the jury was free to disbelieve and disregard Nichols’ testimony describing the identifying characteristics of the man he observed. State v. Coe, 233 S.W.3d 241, 251 (Mo.App. 2007).
FN6. Clark died three weeks prior to trial. Parts of his testimony at the preliminary hearing in this case were read into evidence before the jury.
FN7. The State attempted to admit an 11-and-one-quarter-inch-tall Galliano bottle during questioning of the witness about what type of item could have caused the injuries. Defense objected, and the trial court sustained the objection.
FN8. On the toilet paper with the blue seashell print, Wycoff identified female DNA that was consistent with Victim and “possibly” identified some DNA with a “Y” chromosome, but no other information to identify any particular male. Of course, as indicated by Wycoff, the DNA of every male in the world would be consistent with this latter finding.
FN9. A count of forcible sodomy was also charged but was later dismissed by the State before trial.
FN10. Because we find that the inference upon which the State relies in the instant case does not rise to this minimum level, we need not consider here whether an inference which is the sole and sufficient basis for a finding of guilt must have evidentiary support, such that a reasonable fact-finder could only conclude that the inferred fact flows from the proven fact beyond a reasonable doubt. See County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 167, 99 S.Ct. 2213, 2230 (1979).
FN11. While no direct evidence was presented identifying these DNA stains as belonging to Defendant, circumstantial evidence was before the jury in the nature of the population frequency of the major contributor to the one stain on the tissue and the inability to rule out that major contributor as a contributor to the other stains on the tissue and one location on each nylon. The jury could have inferred that, as a result of the probability supported by the population frequency on the one stain from the tissue, DNA from the major contributor to that stain more likely than not belonged to Defendant. The jury could have further inferred that if the Defendant contributed to that one stain on the tissue, he more likely than not was a contributor to the five other stains on the tissue and the stain on each of the nylons. These inferences are supported by the evidence, and are reasonable and logical. Defendant does not argue otherwise in this appeal.
FN12. The State and Defendant disagree as to what inferences may reasonably be drawn from the evidence that the pattern on the tissue found by Victim’s shoulder matched the pattern on the rolls remaining in an opened package of tissue found in the apartment after Victim’s death. The State contends it is reasonable to infer that the tissue in question originated from that package and that it never left the apartment after it was taken out of the package. Defendant concedes the reasonableness of the origination inference, but challenges the logic of the latter inference that it never left the apartment. We need not address this issue because, even if the inference that the tissue never left the apartment after it was taken out of the package is reasonable and logical, which we do not decide, the evidence is still insufficient that it is more likely than not that the Defendant’s DNA was transferred to that tissue by direct physical contact by Defendant as discussed infra.