Opinion
No. 159, 1998.
February 9, 1999.
Court Below: Superior Court of the State of Delaware, in and for New Castle County: Cr.A. No. IN96-06-1122 and Cr. ID#9606016065.
AFFIRMED.
Unpublished Opinion is below.
ROY H. McINTYRE, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 159, 1998. In the Supreme Court of the State of Delaware. Submitted: January 5, 1999. Decided: February 9, 1999.
Court Below: Superior Court of the State of Delaware, in and for New Castle County: Cr.A. No. IN96-06-1122 and Cr. ID#9606016065.
Before VEASEY, Chief Justice, HOLLAND, and HARTNETT, Justices.
ORDER
This 9th day of February 1999, upon consideration of the briefs and the oral arguments of the parties, it appears to the Court that:
1. Defendant-below, appellant, Roy H. McIntyre, was convicted in the Superior Court of unlawful sexual intercourse third degree with a 15 year old female. In this direct appeal McIntyre claims four errors: 1) the trial court incorrectly admitted evidence of the DNA analysis without a judicial hearing to determine its scientific reliability; 2) one DNA test result should have been excluded because the State violated the explicit notice provision of 11 Del. C. § 3515; 3) the prosecutor improperly characterized appellant as a liar and improperly commented on matters not in the record during closing argument; and 4) the trial court erred in refusing to allow the testimony of a witness regarding an out-of-court statement made by the victim. The appeal is without merit.
2. At trial McIntyre did not object to the admission of the DNA evidence. The evidence showed that his semen was found in the victim and on her underclothing. McIntyre now claims this was plain error because the Superior Court did not sua sponte hold a hearing on the reliability of two DNA analyses before admitting the results into evidence. McIntyre relies on Fensterer v. State, Del. Supr., 509 A.2d 1106 (1986) in support of his claim that the Superior Court had a duty to hold a hearing on the reliability of the DNA evidence, notwithstanding his failure to object to its admissibility. The reliance on Fensterer is misplaced.
3. In Fensterer there was an objection to the admissibility of the testimony of an expert witness based on the reliability of his opinion. The issue was whether the expert sufficiently met the mandate of D.R.E. 705 by establishing the facts and data upon which he based his opinion. In this case, however, McIntyre waived any right to object to the reliability of the DNA evidence by not objecting to its admissibility at trial. D.R.E. 103(a)(i). Del. Supr. Ct. Rule 8.
4. Because McIntyre did not object to the admissibility of the DNA evidence, this Court may only review for plain error. Wainwright v. State, Del. Supr., 504 A.2d 1096-1100, cert. den., 479 U.S. 869 (1986). D.R.E. 103(d).
5. F.B.I. agent Robert Guerrieri testified regarding the DNA evidence obtained from semen found in victim's vagina and on her under pants. The semen found was compared through DNA analysis with a blood sample from McIntyre. The witness explained how he obtained the results and how the results linking the semen to McIntyre were determined to be common or uncommon using the population data base. He then testified as to why it was highly likely that the semen was from McIntyre. McIntyre did not object to the admission of the DNA evidence. He had the opportunity to cross examine the expert witness or to have presented his own witness. He chose not to do so. Under these circumstances there has been no showing that "the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." Wainwright, 504 A.2d 1096 at 1100; Floray v. State, Del. Supr., 720 A.2d 1132 (1998).
6. McIntyre next claims that the State violated 11 Del. C. § 3515 because it did not provide prior notice to McIntyre of the DNA test of the victim's underclothes. Because there was no objection at trial we review for plain error.
7. Trial was held commencing on December 16, 1997. In August 1996, in response to a discovery request, the State reported in writing to McIntyre's first counsel that it intended to use any evidence developed from the DNA analysis. Attached to the report was a detailed description of all the evidence sent to the F.B.I. lab including the victim's vaginal swabs and underwear.
8. The record, notwithstanding McIntyre's claim, is clear that McIntyre received adequate prior notice of the DNA testing. There is no plain error.
9. McIntyre next asserts it was plain error for the prosecutor to have characterized McIntyre as a liar in closing arguments. McIntyre also claims the prosecutor improperly commented on his testimony that he did not have chlamydia, although the victim had it, by referring to chlamydia as a "symptomless disease". The record is clear that there was no evidence that chlamydia is a symptomless disease. The State and the defense had stipulated that a person may or may not contact chlamydia from sexual intercourse.
10. It is clear that the comments of the prosecutor were improper but they did not prejudicially affect McIntyre's substantial right to a fair trial because the case was not close because of the DNA evidence. Hughes v. State, Del. Supr., 437 A.2d 559 (1981).
11. Lastly, McIntyre asserts that the Superior Court erred in excluding the testimony of a witness that the victim had recanted her accusation that McIntyre had sexual relations with her.
12. Even if the Superior Court erred in excluding this evidence, it was not sufficiently prejudicial to deny McIntyre a fair trial because the DNA evidence was overwhelming and, therefore, the error was harmless. Barriocanal v. Gibbs, 697 A.2d 1171.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Maurice A. Hartnett, III, Justice