Criminal Practice – Evidence – Expert Witnesses – DNA Evidence – Prosecutor’s Comments

State v. Harris (Lawyers Weekly No. 12-07-0743, 21 pp.) (Wanda G. Bryant, J.) Appealed from Forsyth County Superior Court. (Lindsay R. Davis Jr., J.) N.C. App. Full-text opinion.

Holding: The population geneticists — who made the determinations about the probability of an unrelated, randomly chosen person being the one who contributed to the DNA mixture taken from the victim’s rape kit – were unavailable to testify. Nonetheless, SBI Agent Mackenzie Dehaan gave her opinion that the statistical information upon which she relied in developing her opinion regarding the significance of the DNA match was of a type reasonably relied upon by experts in the field of DNA analysis, such being admissible under N.C. R. Evid. 703. The trial court did not err in admitting the statistical information.

We find no error in defendant’s conviction of first-degree rape, second-degree kidnapping, taking indecent liberties with a child, and two counts of first-degree sexual offense with a child.

During the prosecutor’s closing argument, in the course of discussing the limitations of the physical evidence, the prosecutor said, “There are only two people in this courtroom … that actually know what happened between the two people, and that’s [the victim] and the defendant.” The prosecutor’s comment did not function as a comment on defendant’s decision not to testify. Therefore, the comment was not so grossly improper as to require the trial court to intervene ex mero motu. Furthermore, this comment was not sufficiently prejudicial to support an ineffective assistance of counsel claim.