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People v. Marks

Court of Appeals of Colorado, First Division

December 3, 2015

The People of the State of Colorado, Plaintiff-Appellee,
Dominic Chee Marks, Defendant-Appellant

          City and County of Denver District Court No. 12CR20000. Honorable William Robbins, Judge.

         Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Defendant-Appellant.

         Taubman and J. Jones, JJ., concur.


          HARRIS, JUDGE.

          [¶1] Dominic Chee Marks appeals the judgment of conviction entered after a jury verdict finding him guilty of first degree felony murder, aggravated robbery, and first degree burglary.

          [¶2] Mr. Marks raises two issues on appeal, arguing that the district court committed reversible error when it: (1) admitted certain DNA evidence without accompanying statistical data in violation of CRE 702 and 403 and (2) rejected his alternate suspect jury instruction.

          [¶3] As to the former issue, we agree that the " no conclusion" DNA evidence was improperly admitted; however, we find the evidentiary error harmless. As to the latter issue, we conclude that the district court properly rejected the tendered instruction. Accordingly, we affirm Mr. Marks's convictions.

         I. Background

          [¶4] On January 25, 2011, two armed men forced their way into the home of S.W., a marijuana dealer, in search of money and marijuana. The robbery was interrupted by the arrival of S.W.'s husband and son. As S.W.'s husband struggled with the robber who was carrying a shotgun, the other robber fired his handgun. One of the bullets struck S.W. and killed her. The robbers fled, leaving the shotgun behind. Police recovered the handgun, a holster, and some items of clothing in the adjacent yard.

          [¶5] The next day, a woman contacted police and identified Mr. Marks as one of the perpetrators, but she did not provide enough information for the police to obtain an arrest warrant. The police did not uncover further leads until February 2012, when another woman reported to police that her boyfriend, Edsgar Rocha-Lovatos, had confessed to killing S.W. During a subsequent interview with police, Mr. Rocha-Lovatos alternately told detectives that he had committed the crime with Mr. Marks, who was then his roommate, and that he was not involved but had heard the details of the crime from Mr. Marks. Police arrested Mr. Rocha-Lovatos and Mr. Marks and charged them, as codefendants, with felony murder, aggravated robbery, and burglary.

          [¶6] But by late 2012, the police had identified and interviewed a group of young people who had driven with the robbers to S.W.'s home, and they reported that Mr. Marks had committed the robbery not with Mr. Rocha-Lovatos, but with their friend, Cody Richison. Mr. Richison soon confessed and he, too, identified Mr. Marks as his partner in the robbery.

          [¶7] Mr. Marks first proceeded to trial in April 2013, but the jury could not reach a verdict on any of the counts, and the court declared a mistrial. At the second trial, as it had in the first trial, the prosecution presented testimony from the group of young people who were present, at different times, in the period leading up to the robbery, including the woman who first contacted police about Mr. Marks's involvement in the crime and Mr. Richison. And, the prosecution again presented DNA evidence, some definitive and some inconclusive. For his part, Mr. Marks argued, as he had at the first trial, that he was not involved in the crime and that Mr. Rocha-Lovatos and Mr. Richison had robbed and shot S.W. The second jury convicted Mr. Marks of all charges.

         II. Admission of " Inconclusive" and " No Conclusion" DNA Results Without Accompanying Statistics

          [¶8] Mr. Marks contends that the trial court erred in admitting evidence of " inconclusive" and " no conclusion" DNA results without evidence of their statistical significance. He argues that the admitted evidence was irrelevant and, even if minimally relevant, its probative value was substantially outweighed by the danger of unfair prejudice. We agree in part, but conclude that the error was harmless.

         A. The DNA Evidence

          [¶9] Deoxyribonucleic acid -- DNA -- is found in the nucleus of human cells and contains genetic information that determines the physical structure and characteristics of each individual. DNA is made up of twenty-three pairs of chromosomes, which in turn contain thousands of genes. The variations in each gene are known as alleles.

          [¶10] A DNA profile is created by documenting alleles at fifteen specific locations, known as markers or loci, in the DNA chain.[1] The analyst creates a DNA profile from the sample obtained from an item of evidence and then compares that DNA profile to other profiles obtained from known individuals (usually the victim and suspect or suspects). The profiles are compared by looking for allele matches at each of the designated markers. Each match can be accorded statistical significance based on population frequency data compiled by the FBI. The statistics indicate the probability that a randomly selected person, if tested, would have the same DNA profile as that of the sample left at the crime scene. In simple terms, as the number of matching alleles at each marker increases between two samples, " the odds of two people having the same profile become vanishingly small." State v. Williams, 574 N.W.2d 293, 297 (Iowa 1998).

          [¶11] The prosecution closed its case with its DNA expert, Susan Berdine. Ms. Berdine created DNA profiles from samples obtained from seven items of evidence recovered from the crime scene -- the shotgun, the handgun, a holster, a hat belonging to S.W., a sweatshirt, a pair of gloves, and a T-shirt -- as well as two strands of hair found in S.W.'s hand. In most instances, more than one sample was taken from an item of evidence. In almost all cases, the DNA samples were mixed, meaning that more than one person's DNA was present on the item of evidence. Ms. Berdine then compared the DNA profiles derived from those samples to the profiles of Mr. Marks, Mr. Rocha-Lovatos, Mr. Richison, S.W., and S.W.'s husband.

          [¶12] Each of Ms. Berdine's conclusions about the comparisons fell into one of five categories, three of which have commonly understood meanings: (1) the profiles matched, meaning that there was an infinitesimal chance that another person's DNA profile would be the same as the profile obtained from the item of evidence; (2) a person was excluded as a possible contributor, meaning that he or she could not be the source of the DNA found on the item of evidence; or (3) a person was included as a possible contributor, meaning that he or she could be the source of the DNA but a complete match between the two profiles had not been established.

          [¶13] Ms. Berdine provided statistical probabilities for the first and third categories. When she testified that S.W.'s DNA profile matched the profile from the hat found at the crime scene, she gave the jury some statistical context for that conclusion -- the chances that a random person might also match the DNA on the hat, Ms. Berdine said, were one in twenty-eight quintillion. When she testified that S.W.'s husband was included as a possible contributor to the DNA sample obtained from the shotgun, she acknowledged that one in six random people would also be considered possible contributors based on their DNA patterns.

          [¶14] Most of the results from the DNA testing, however, were " inconclusive" or " no conclusion." These two categories of results have more complicated meanings.

          [¶15] One common reason for the " inconclusive" results was the difficulty in attributing to any one person the alleles present in a mixed DNA sample. As Ms. Berdine explained, a DNA profile looks like a string of numbers, with two numbers at each marker. In a single-source DNA sample, the analyst can compare the numbers from the profiles at each marker and determine if there is a match. But in a mixed sample, where two or more people have contributed DNA, there are more than two numbers at each marker, and, assuming fairly equal contributions by each person, the numbers could combine in any way. Therefore, a person whose profile contains any combination of those numbers might be a possible contributor; that is, his or her DNA profile numbers might match a sample at a certain marker, but they might not. In those instances, Ms. Berdine characterized the results as " inconclusive."

          [¶16] As for the " no conclusion" category of results, Ms. Berdine explained that in some instances, she would be able to determine whether the person's DNA was present or absent in a sample, but her lab did not have the capability to assign statistical probabilities to the result. In those circumstances, she labeled the result " no conclusion."

          [¶17] Statistical probabilities are not provided (because they are not useful) when a person is excluded as a possible contributor.[2] See Scientific Working Group on DNA Analysis Methods, SWGDAM Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories 4.4, (SWGDAM Guidelines).[3] So, Ms. Berdine could only have meant that, in some instances, she could identify a person as being included as a possible contributor, but, because she could not give the odds that other, random people might also be contributors, she would simply say that she had no conclusion. With respect to a sample obtained from the shotgun, Ms. Berdine testified that the profile was suitable for excluding possible contributors (Mr. Rocha-Lovatos and Mr. Richison), and for including a major contributor (S.W.'s husband), but that it was not suitable " for including possible minor contributors with any kind of statistical weight given. So those are . . . N-C for no conclusion."

          [¶18] In her DNA comparisons using Mr. Marks's DNA profile, Ms. Berdine reached " no conclusion" on six samples obtained from four different items of evidence -- the shotgun, the hooded sweatshirt, the gloves, and the hair in S.W.'s hand.

          [¶19] Mr. Marks's DNA was a match to the DNA samples found on the T-shirt, and he was included (with statistical weight given to the inclusion) as a possible contributor to a sample taken from the hooded sweatshirt. Results were otherwise " inconclusive." [4]

          [¶20] Mr. Marks filed a pretrial motion in limine to exclude evidence of the " inconclusive" and " no conclusion" results. He argued that the evidence was irrelevant, as it did not help the jury determine whether he was a possible source of the DNA obtained from the items of evidence and, without accompanying statistical data, the DNA evidence was confusing and misleading. Mr. Marks suggested that the parties inform the jury ...

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