People v. Nelson

185 P.3d 49

78 Cal.Rptr.3d 69

43 Cal.4th 1242

The PEOPLE, Plaintiff and Respondent, v. Dennis Louis NELSON, Defendant and Appellant.

No. S147051.

Supreme Court of California.

June 16, 2008.

Cara DeVito, under appointment by the Supreme Court, West Hills, for Defendant and Appellant.

John T. Philipsborn and Linda F. Robertson, San Francisco, for California Attorneys for Criminal Justice and California Public Defenders' Association as Amici Curiae on behalf of Defendant and Appellant.

Jennifer Friedman, Public Defender (Los Angeles); and Edward J. Ungvarsky for Los Angeles Public Defender and Public Defender Service for the District of Columbia as Amici Curiae on behalf of Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, J. Robert Jibson, Janet E. Neeley, Enid A. Camps and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

Bonnie M. Dumanis, District Attorney (San Diego), Catherine Stephenson and James E. Atkins, Deputy District Attorneys, for Office of the District Attorney of San Diego County as Amicus Curiae on behalf of Plaintiff and Respondent.

CHIN, J.

In 2002, investigators compared evidence from a 1976 murder scene with defendant's deoxyribonucleic acid (DNA) profile and identified him as a possible donor of that evidence. He was then tried for and convicted of that murder. The prosecution presented evidence that the odds that a random person unrelated to defendant from the population group that produced odds most favorable to him could have fit the profile of some of the crime scene evidence are one in 930 sextillion (93 followed by 22 zeros). Because the world's total population is only about seven billion (seven followed by nine zeros), this evidence is tantamount to saying that defendant left the evidence at the crime scene. We granted review to decide issues arising from prosecutions following such DNA "cold hits" many years after the crime.

We conclude that the justification for the delay in charging defendant with this 1976 crime — he was not charged until further investigation, specifically the DNA testing in 2002, provided strong new evidence of his guilt — outweighed the prejudice defendant suffered from the delay. Accordingly, the delay did not violate defendant's constitutional rights to a fair trial and due process. We also conclude that the jury properly heard evidence that it was virtually impossible that anyone other than defendant could have left the evidence found at the crime scene.

Accordingly, we affirm the judgment of the Court of Appeal, which reached similar conclusions.

I. FACTS AND PROCEDURAL HISTORY

Because neither party petitioned the Court of Appeal for a rehearing, we take our facts largely from that court's opinion. (Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 415, 9 Cal.Rptr.3d 121, 83 P.3d 518; see Cal. Rules of Court, rule 8.500(c)(2).)

In the late afternoon of February 23, 1976, Ollie George, a 19-year-old college student, drove her brother's car to a shopping center in Sacramento to buy some nylons. Around 5:30 p.m., she told her mother by telephone that the car would not start. Around that time, she was seen at a nearby McDonald's restaurant. Later the car was found unattended at the shopping center, with the door unlocked and the keys in the ignition. The car contained grocery items, nylons, Ollie's purse, and a partially eaten McDonald's hamburger. Ollie was missing. Her family notified the police that she was missing, and her disappearance was reported in the newspaper and on television. Two people said they had observed Ollie inside a car at the shopping center around the time she disappeared. The hood was open, and a man described as African-American appeared to be working on the engine. One witness said the man was wearing a "watch cap."

Two days later, Ollie's body was found in an unincorporated area of Sacramento County. She had been raped and drowned in mud.

Within a couple of weeks, one of the witnesses saw what he believed to be the same car in which he had seen Ollie around the time she disappeared. He reported the license number to the police. The car was defendant's faded blue Oldsmobile F85. In early March 1976, sheriff's detectives observed defendant and his car in an apartment parking lot. He was wearing a watch cap. He agreed to go to the sheriff's department for an interview. There, he gave a rather confused account of his whereabouts at the time Ollie disappeared. Defendant's mother-in-law said that defendant was at her house sometime between 4:00 and 6:00 p.m. on the day Ollie disappeared, but she also said that defendant never stayed long at her house.

During the investigation, detectives received hundreds of tips, including reports that Ollie, or at least a woman who, like Ollie, was African-American, was seen with a Caucasian male or males. Detectives interviewed over 180 potential witnesses and followed other leads. However, they were unable to develop sufficient evidence to focus the investigation on a specific person. Eventually, the matter became a cold case, that is, unsolved but inactive.

In later years, for unrelated events, defendant was convicted of criminal offenses, including rape and forcible oral copulation, and was sentenced to a lengthy prison term. A biological sample was obtained from him for DNA analysis and entry into the state convicted offender databank.

In October 2000, the state allocated funds to enable local law enforcement agencies to utilize DNA to solve sexual assault cases that lacked suspects. Sacramento County began hiring and training analysts, a process that takes about a year. At that time, the county had about 1,600 unsolved sexual assault cases. In July 2001, a review of Ollie George's death determined that the case had biological evidence warranting analysis. The case was put in line for DNA analysis. The evidence included a vaginal swab, semen stains on Ollie's sweater, and Ollie's hair samples obtained during the autopsy. An analyst used part of a semen stain from the sweater to develop a DNA profile. The state Department of Justice obtained that profile for comparison, by computer, with the state's convicted offender databank. At the time, the databank contained about 184,000 individual profiles. The search resulted in a match with one of the persons in the databank. Defendant was that person, and he was identified as a potential source of the semen stain.

In 2002, with a warrant, detectives obtained oral swabs from defendant, which were analyzed with Ollie's vaginal swab, the semen stains on her sweater, and her hair samples. Defendant's DNA matched the DNA of each of the evidence samples. As a result, defendant was charged with Ollie's first degree murder. Before trial, defendant moved unsuccessfully to have the matter dismissed due to the delay in charging him with the murder. (This point will be discussed further in pt. II. A., post.) At trial, over objection, the prosecution presented evidence that the DNA profile on the vaginal swab would occur at random among unrelated individuals in about one in 950 sextillion African-Americans, one in 130 septillion Caucasians, and one in 930 sextillion Hispanics. There are 21 zeros in a sextillion and 24 zeros in a septillion. (This evidence will be discussed further in pt. II. B., post.)

In view of the DNA evidence, the defense did not deny that defendant had sexual intercourse with Ollie. Rather, the defense claimed that Ollie and defendant had consensual intercourse on the weekend before she disappeared, and that someone else abducted, raped, and murdered her.

The jury convicted defendant of first degree murder, and the trial court sentenced him accordingly. The Court of Appeal affirmed the judgment. We granted defendant's petition for review limited to the following questions: (1) Did the delay in charging defendant violate his state and federal constitutional rights? (2) Does the methodology for assessing the statistical significance of a "cold hit" from a DNA database require proof of general scientific acceptance? (3) How should the statistical significance of a "cold hit" from a DNA database be calculated?

II. DISCUSSION

A. Delay in Bringing Charges

Defendant was charged with Ollie's 1976 murder in 2002. He contends his state and federal constitutional rights to a fair trial and due process were violated because the delay was unjustified and prejudiced his defense. The prosecution contends the delay was justified because it did not have enough evidence to bring charges until the 2002 comparison of the crime scene evidence with defendant's DNA resulted in a match. It also contends, and defendant does not deny, that it prosecuted defendant reasonably promptly after it obtained the DNA evidence.

Defendant's state and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) are not implicated in this case. Neither applies until at least the defendant has been arrested or a charging document has been filed. (See People v. Martinez (2000) 22 Cal.4th 750, 754-755, 94 Cal.Rptr.2d 381, 996 P.2d 32.) Defendant was not charged with or arrested for this murder until 2002, so his speedy trial rights did not attach until that time. He does not complain of delay after that time.

Defendant complains only of delay between the murder and the time the state first charged him with the crime (hereafter sometimes referred to as precharging delay). Although precharging delay does not implicate speedy trial rights, a defendant is not without recourse if the delay is unjustified and prejudicial. "[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or...