P. v. Nelson 8/31/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C047366

Case Date: 11/16/2006

Preview:Filed 8/31/06

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. DENNIS LOUIS NELSON, Defendant and Appellant. C047366 (Super. Ct. No. 02F06021)

APPEAL from a judgment of the Superior Court of Sacramento County, Gary S. Mullen, Judge. Affirmed. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

*

Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts IC, III, IV and V. 1

In this case, we confront issues arising from the use of the state's convicted offender deoxyribonucleic acid (DNA) databank to solve a murder that occurred many years earlier. The victim was abducted, raped, and murdered in 1976. In 2002,

a DNA profile derived from crime scene evidence was searched through the DNA databank. Defendant Dennis Louis Nelson was In further testing, it was

identified as a potential candidate.

determined that his DNA profile matched that of the evidentiary samples. appeals. In the published parts of this opinion, we reject defendant's claims that (1) the delay between the date of the crime and the filing of a complaint charging him with the murder violated his right to due process of law, and (2) in light of the holding in People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly), the DNA evidence should not have been presented to the jury because there is no general scientific acceptance of a statistical means of explaining the results of a DNA comparison when a DNA databank is used to identify a potential candidate. those claims of error lack merit. The 26-year delay in prosecuting defendant was not the result of negligence, and it was not for the purpose of gaining an advantage over him. It occurred solely due to the limits of forensic technology at As we will explain, Convicted of first degree felony murder, defendant

the time of the initial investigation, which resulted in insufficient evidence to identify defendant as a suspect. When forensic technology

in the form of the DNA databank became available to identify him as a candidate for further investigation and testing, the prosecution 2

proceeded with promptness.

The justification for the delay outweighed

defendant's minimal showing of prejudice. Like the use of a fingerprint database search to identify potential candidates as suspects, a DNA databank search does not implicate the concerns addressed in Kelly. The DNA databank search

merely identified defendant as a possible candidate as the murderer; it was not the basis for declaring that his DNA matched DNA on the evidentiary samples. The latter determination was made based upon

further, complete testing utilizing scientific techniques found to be reliable and admissible under the Kelly test. In the unpublished parts of this opinion, we conclude that defendant's other contentions lack merit. the judgment. FACTS In 1976, Ollie George was a 19-year old college student who lived with her parents. On the late afternoon of February 23, Thus, we shall affirm

1976, she borrowed a car from her brother, Delbert, in order to go to the store to buy some nylons.1 Ollie went to a shopping center

where there were a Safeway, a Pay 'n Save, and a nearby McDonald's restaurant. At about 5:30 p.m., Ollie telephoned her mother and Delbert's car, a Pontiac

reported that the car would not start.

GTO, would often flood; the remedy was to wait for a while and try again, although it was unclear whether Ollie knew that. Ollie's

mother asked her to pick up some grocery items while she waited.

1

For simplicity and to avoid confusion, we will refer to members of the George family by their first names. 3

Dan Kemp worked at the nearby McDonald's and recognized Ollie from prior visits to the restaurant. He reported that Ollie visited

the restaurant at some time after he started his shift at 5:00 p.m. Delbert's girlfriend, Beata Garner, went to the George home at about 5:30 p.m. Ollie's sister, Laurenda, wanted to go to the They

shopping center to meet Ollie, so Garner drove her there. located Delbert's car. in the ignition.

The door was unlocked and the keys were

The car contained grocery items, nylons, Ollie's Ollie was

purse, and a partially eaten McDonald's hamburger. missing.

When Ollie could not be located, the family notified

the city police department. Ollie's disappearance was reported in the newspaper and on television. Upon learning of the disappearance, Ardis Hayes He reported that he had been at

contacted the police department.

the shopping center at the time it was just beginning to get dark. As he was on his way into the store, he saw Ollie in a faded blue or gray Oldsmobile F85. The hood was open and an African-American

man appeared to be working on the engine. Ruth Jones, who was acquainted with Ollie, also reported seeing her at the shopping center. Jones said that she and her

children went to the shopping center in the evening, around 5:00 or 6:00 p.m., and as they were leaving they saw Ollie in the driver's seat of a blue car. The hood was open and a man appeared to be Jones first thought the man was Caucasian,

working on the engine.

but when he stood up she saw that he was an African-American. The man was wearing a "watch cap."

4

Ollie's body was found in an unincorporated area of the county on February 25, 1976. mud. She had been brutally raped and drowned in

At that point, the county sheriff's department took over the

investigation. Within a couple of weeks, Hayes saw what he believed to be the same car in which he had seen Ollie around the time of her disappearance. Hayes took down the license number of the car and

reported it to the police department, which relayed the information to the sheriff's department. The car Hayes saw on that occasion

was defendant's faded blue Oldsmobile F85. In early March 1976, sheriff's detectives encountered defendant and his car in an apartment parking lot. watch cap. Defendant was wearing a

The detectives spoke with him and took photographs of Defendant told the detectives his car was not

him and his car.

running properly; it would cut off when he stopped, and he would have to use jumper cables to start it. Defendant agreed to go to the sheriff's department for an interview. When asked to account for his whereabouts at the time

of Ollie's disappearance, defendant gave a somewhat confused and conflicting account about visiting his mother-in-law's house, his grandmother's house, and his estranged wife's house, and about giving a ride to a person whom he knew as Eloise. he believed that his sister-in-law knew Ollie. Defendant said

He did not say that

he knew Ollie, had been in contact with her, or had been intimate with her. When defendant's mother-in-law was interviewed, she told detectives that while she could not be specific about the time, 5

defendant was definitely at her house sometime between 4:00 and 6:00 p.m. on February 23, 1976. However, she also said that

defendant never stayed at her house very long. During the investigation, detectives received hundreds of tips, including the reports of Hayes and Jones. Some of those providing

information reported seeing Ollie, or at least an African-American female, with a Caucasian male or males. Detectives interviewed However,

over 180 potential witnesses and followed other leads.

they were unable to develop sufficient evidence to focus the investigation upon any person. Eventually, the matter became

a cold case, that is, unsolved but inactive. Due to his convictions for robbery in 1977 and felony petty theft in 1984, defendant was incarcerated for a significant portion of the decade between the murder of Ollie and incidents in 1986 that led to defendant's identification as the person who raped and killed Ollie. In 1986, defendant abducted a woman from a parking lot, drove her car while holding her hostage, and took her to an isolated location where he committed violent sexual offenses against her. He said that he should kill her but relented when she convinced him she would not identify him. A week later, defendant abducted This incident began exactly as The second victim became fearful

another woman from a parking lot. had the abduction a week earlier. and tried to escape.

This led to a struggle during which defendant

crashed the car, which enabled the victim to get away.

6

Based on these incidents, defendant was convicted of criminal offenses including rape and forcible oral copulation. sentenced to a lengthy prison term. As a result of defendant's convictions and prison sentence, a biological sample was obtained from him for DNA analysis and entry into the state convicted offender databank. In October 2000, with California's convicted offender DNA databank in operation, 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 At that He was

training analysts, a process that takes about a year.

time, the county had approximately 1,600 unsolved sexual assault cases. In July 2001, the Ollie case was screened and it was

determined that there was biological evidence warranting analysis. The case was put in line for DNA analysis. The biological evidence included a vaginal swab, semen stains on Ollie's sweater, and hair samples from Ollie obtained during the autopsy. An analyst used a portion of a semen stain from the The profile was provided to

sweater to develop a DNA profile.

the state Department of Justice for comparison, by computer, with the state's convicted offender databank. The search identified

defendant as a potential source of the semen stain. With a warrant, detectives obtained oral swabs from defendant, which were analyzed with the vaginal swab from Ollie, the semen stains on her sweater, and Ollie's hair samples. DNA matched the DNA of the suspect samples. Defendant's

Through use of the

7

"product rule," which we will discuss later, it was determined that a random chance match would be extraordinarily unlikely.2 Defendant was charged with the first degree felony murder of Ollie. In view of the DNA evidence, the defense did not deny that Rather, the defense

defendant had sexual intercourse with Ollie.

asserted, without evidentiary support, that Ollie and defendant had consensual intercourse on the weekend before she disappeared and that someone else abducted, raped, and murdered her. DISCUSSION I Ollie was murdered in February 1976. Twenty-six years later,

in July 2002, a complaint was filed charging defendant with having committed the crime. He contends that prosecution after such a

length of time violated his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution. A Delay in prosecution that occurs before the defendant is arrested or a complaint is filed can constitute the denial of

2

The random match probability is the same as the anticipated frequency of a particular profile in the population. (People v. Soto (1999) 21 Cal.4th 512, 524-525.) Under the product rule, the anticipated frequency of a profile is dependent in part on the number of DNA loci tested. (Ibid.) A 13-loci profile was developed in this case, and it was determined that this profile would occur at random among unrelated individuals in about one in nine hundred and fifty sextillion African Americans, one in one hundred and thirty septillion Caucasians, and one in nine hundred and thirty sextillion Hispanics. There are 21 zeros in a sextillion and 24 zeros in a septillion. 8

due process of law under both the state and federal Constitutions. (People v. Catlin (2001) 26 Cal.4th 81, 107 (hereafter Catlin.) "A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay." (Ibid.)

Prejudice will not be presumed from such delay; it must be affirmatively shown. (People v. Martinez (2000) 22 Cal.4th 750,

769-770; People v. Archerd (1970) 3 Cal.3d 615, 640 (hereafter Archerd); People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911; People v. Butler (1995) 36 Cal.App.4th 455, 467; People v. Lawson (1979) 94 Cal.App.3d 194, 198.) If the defendant demonstrates

actual prejudice, then the prosecution is permitted to offer justification for the delay. p. 107.) (Catlin, supra, 26 Cal.4th at

It then becomes the trial court's duty to balance harm

to the defendant against justification for the delay in deciding whether to dismiss the charge. (Ibid.)3

3

Defendant asserts that prejudice may be presumed, citing Doggett v. United States (1992) 505 U.S. 647 [120 L.Ed.2d 520]. But that case concerned only postaccusation delay in violation of the Sixth Amendment right to a speedy trial. (Id. at p. 648 [120 L.Ed.2d at p. 526] [negligent delay of eight and a half years between obtaining the indictment and arresting the accused].) In such circumstances, prejudice can be presumed and, while not sufficient in itself, such presumed prejudice is part of the mix of relevant facts. (Id. at pp. 655-656 [120 L.Ed.2d at pp. 530-531].) With respect to preaccusation delay, however, the due process clause "has a limited role to play in protecting against oppressive delay;" "proof of actual prejudice" is "a necessary but not sufficient element of a due process claim . . . ." (United States v. Lovasco (1977) 431 U.S. 783, 789-790 [52 L.Ed.2d 752, 758-759], italics added; United States v. Marion (1971) 404 U.S. 307, 325-326 [30 L.Ed.2d 468, 481-482].) Stabio v. Superior Court (1994) 21 Cal.App.4th 1488 was a case of postaccusation, not preaccusation, delay 9

The balancing process is the same under both the state and federal Constitutions. (Catlin, supra, 26 Cal.4th at p. 107.)

However, the United States Constitution imposes an additional requirement; it must be shown that the delay was deliberately undertaken to gain a tactical advantage over the defendant. (Ibid.) In the trial court, defendant's counsel stated: "The defense

makes no argument that the authorities somehow `had it in' for [defendant] or that they delayed the investigation in order to gain some advantage over him." This concession is fatal to the

claim of error based on the federal Constitution. In his reply brief, defendant acknowledges his concession but argues it was before an evidentiary hearing revealed that the prosecution delayed until the forensic use of DNA was developed to the point that defendant could be identified and tried for the murder. According to defendant, the development of sophisticated

DNA techniques was the tactical advantage the prosecution gained through delay. We reject the contention. A prosecutor should not

begin a prosecution until he or she is satisfied the defendant should be prosecuted and the evidence will establish guilt beyond a reasonable doubt. (Catlin, supra, 26 Cal.4th at p. 109.) The

development of forensic techniques that were not available at the time of an initial investigation provides justification for a delay

(id. at p. 1493) and, thus, it does not hold that prejudice may be presumed from preaccusation delay in support of a claim of federal constitutional error. In any event, as we will explain, a concession by defendant in the trial court defeats his federal due process claim. 10

in prosecution. 641-643.)

(Id. at p. 110; Archerd, supra, 3 Cal.3d at pp.

And the development of forensic science to the point it

was possible to identify and prosecute defendant is not prejudice within the meaning of due process principles. With respect to our state Constitution, however, a relevant consideration is whether the delay was deliberately undertaken to gain an advantage over the defendant. at pp. 109-110.) (Catlin, supra, 26 Cal.4th

But such a showing is not required to prevail on (Scherling v. Superior Court (1978) Governmental negligence

a motion to dismiss charges.

22 Cal.3d 493, 507 (hereafter Scherling).)

may be sufficient if an unjustified delay causes prejudice to the defendant. (Ibid.)

The People assert that we should not follow the holding in Scherling--negligent delay may suffice--because it is dictum. We decline the invitation. In Archerd, which did not distinguish between state and federal constitutional principles, the Supreme Court said preaccusation delay "must be purposeful, oppressive, and even `smack of deliberate obstruction on the part of the government,' before relief will be granted." (Archerd, supra, 3 Cal.3d at p. 640.) Subsequently, in

Penney v. Superior Court (1972) 28 Cal.App.3d 941 (hereafter Penney), the Court of Appeal nonetheless held negligent preaccusation delay can violate due process. (Id. at pp. 951-952.) In People v. Hannon

(1977) 19 Cal.3d 588, the Supreme Court noted the issue but found it unnecessary to resolve it. (Id. at pp. 610-611, fn. 12.) There

followed Scherling, in which the Supreme Court unequivocally said "it makes no difference whether the delay was deliberately designed 11

to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution." 22 Cal.3d at p. 507.) Because Scherling found there was no prejudice and thus no need to consider justification for the delay (Scherling, supra, 22 Cal.3d at p. 506), its statement that negligent delay may be enough was dictum. However, where the Supreme Court unequivocally states (Scherling, supra,

a principle of law in a unanimous opinion, then the statement, albeit dictum, is entitled to respect from the Courts of Appeal and should be followed absent sound reasons otherwise. (Hubbard v.

Superior Court (1997) 66 Cal.App.4th 1163, 1169; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,

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