PEOPLE v. BRAVO (1993)

Convicted by jury of forcible rape (Pen.Code,1 § 261, subd. (a)(2)) and sentenced to an eight-year state prison term, appellant contends:  (1) he was denied effective assistance of counsel (2) the trial court erred in admitting into evidence a sheet and blanket (3) the trial court erred in denying his request the jury view the scene (4) the trial court erred in denying his motions to dismiss (§ 1118.1) (5) jury misconduct entitled him to a new trial (6) the trial court erred in admitting rebuttal evidence and (7) the prosecutor committed prejudicial misconduct.   We find the contentions without merit and affirm the judgment.

FACTUAL BACKGROUND

Although the trial concerned a single event on February 20, 1990, lasting perhaps 10–30 minutes, 31 witnesses testified.   The reporter's transcript exceeds 1,100 pages.

No useful purpose would be served in recounting the minute details of each witness's testimony.   The evidence, essentially, was direct and irreconciliable:  the victim promptly and positively identified appellant as her rapist;  appellant's defense was alibi.   The issue was credibility.   The jury believed the victim and other prosecution witnesses and disbelieved appellant and his alibi witnesses.

We summarize the evidence.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

Julia D. was a patient at Metropolitan State Hospital in Norwalk.   She was 27 years old, came from Guatemala, and spoke only Spanish.   She was five feet, four inches tall and weighed 200 pounds.   She had been a patient, intermittently, for five years.

Until early February 1990, she lived in unit 208, a closed unit where patients were confined to their building, except between 2–4 p.m.   Mark Bravo (appellant), a registered nurse, was the supervisor of unit 208.

In early February 1990, her manic-depression condition having improved, Julia D. was transferred to unit 301, an open unit where patients were freely permitted to leave the building.

On February 20, 1990, as usual, lunch was delivered from the hospital kitchen to the unit 301 dining room.   Julia D. and other unit 301 patients ate their lunch there at approximately noon.   Sometime after lunch Julia D. walked to unit 208, one-eighth mile away, where she “visited” with Minerva, a patient-friend who lived there.   Minerva was outside on the grass.   Julia D. also saw two unit 208 custodial employees.

After these two employees left, appellant asked Julia D. if she was hungry.   She said yes because her lunch had been a restricted one, for diabetics, and she was still hungry.   She got in a car with appellant, a four-door white car.   He drove around the hospital grounds for about 10 minutes.   He didn't leave the grounds as he said he was going to but instead parked.   Appellant told Julia D. to get out, he took a blanket from the car, and pulled or forced Julia D. to an alcove of a closed building, unit 303, the old cider house.   A sheet was already on the ground by the alcove and appellant put the blanket over the sheet.

Appellant struck Julia D. in the chest and mouth, pulled her pants down—her underwear came down with them—pulled down his own pants, and had intercourse with her.   She yelled for help once but no one came.   Appellant got up and left, leaving Julia D. on the blanket.

The distance from that alcove to the hospital police office is about one-half mile.   At about 3:10 p.m. hospital Police Officer Alford was alone in the police office when she heard Julia D. knocking on the door.   She opened the door and observed a hysterical Julia D. speaking Spanish which she didn't understand.   Noticing John Flores, a hospital police officer and part-time licensed psychiatric technician, sitting with hospital Police Officer Linda Asher in a police van, Officer Alford directed Julia D. to them.

John Flores had worked 13 years as a psychiatric technician, a job which required him to assess patient behavior.   He knew Julia D. because he had worked in unit 208 when she lived there.   He also knew Mark Bravo, appellant.   John Flores spoke Spanish and was an authorized Metropolitan State Hospital Spanish interpreter.

On February 20, 1990, John Flores finished his police shift at 7 a.m. and then worked another shift as a psychiatric technician from 7 a.m. to 3:15 p.m. in unit 411.   But he was released early from that shift, about 2:45 p.m., and was picked up there by Officer Asher who drove him to the hospital police office where his car was parked.   He and Officer Asher had been talking only a minute or two when he noticed a woman approach his side of the van.   It was about 3:10 p.m.  “She seemed very distraught.   She seemed like she was traumatized.   She was crying and she was rambling.”   He recognized the woman as Julia D.

As Julia D. was talking she made a circle with her thumb and index finger and with her other index finger “was running it through.”

Officer Flores told Julia D. to “calm down” to “just speak slowly.”   He asked her, “Exactly, what specifically happened to you?”

“She said that ‘an employee ․ from 208’ and then she kept saying ‘a nurse who was a supervisor ․ raped me.’ ”   The next thing she said was “ ‘Bravo’.”   Mr. Flores looked at Officer Asher and said “Mark.”   Julia D. said yes, Mark Bravo.

Officer Flores “was shell-shocked” because he knew Bravo and knew he was an employee.   He looked at Officer Asher, looked back at Julia D. and decided “I need to really understand what she is saying and what ․ actually happened.”

Officer Flores repeatedly questioned Julia D., asking her where she had seen appellant, where the act occurred, and how they had gotten there.   He did not suggest answers.   He asked some questions five or six times.  “She was very consistent.”

Julia D. showed Officers Asher and Flores where appellant had parked the car, where the alcove was, and where she had been raped.   They saw the sheet and blanket.   Officer Flores saw a used condom near the blanket and asked Julia D. if appellant had used one.   She said he had tried but it was too difficult to put on so he didn't use it.

Officers Flores and Asher returned to the police office with Julia D.   Soon, the hospital's senior special investigator, Howard Giblin, arrived and took charge of the investigation.   He interviewed Julia D., contacted the Los Angeles County Sheriff's Department, and took Julia D. to the Coast Plaza Hospital for a medical-legal examination.

Physical evidence was collected and submitted to the Sheriff's crime lab for analysis.   Criminalist Richard Catalani testified dried secretions from outside the victim's vagina were positive for sperm.   Samples from the victim's panties and the blanket were compared with blood and saliva samples from appellant and Julia D.   Appellant, a secretor, had a rare blood type which only 1.5 percent of males have.   The stain samples of that blood type were found on both the blanket and the victim's panties.

Los Angeles County Sheriff's Detective Biondi took charge of the investigation February 21, 1991.   He had aerial photographs taken of the hospital grounds and other photographs taken of Julia D., showing injuries to her chest and lip.   He arrested appellant on February 21, 1990.

Appellant denied seeing Julia D. on February 20, 1990, testifying that he arrived for work at unit 208 at 8 a.m., left the hospital grounds about 11 a.m., driving to Greater El Monte Hospital where he remained until about noon.²  He returned to Metropolitan Hospital approximately 12:35–12:40 p.m., checked in at unit 208, left at 12:55 with a nurse he supervised (Rebeca Naciif), and arrived at unit 203 at 12:55 p.m.   That meeting lasted until 2 p.m. and was followed by another which lasted until 3:10 p.m.   He never left either meeting.   He then photocopied study materials for an exam the next day, not finishing until about 3:40 p.m.   Fellow employees corroborated his attendance at the meetings.

DISCUSSION

1. Appellant contends he was denied effective assistance of counsel.

Appellant urges several grounds of trial counsel incompetence.   We consider each.

 First, he argues competent counsel would have obtained DNA testing of the physical evidence (sheet, blanket, and panties) and his defense counsel failed to do so.

We review this argument according to the following standard.

“To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings.   ‘[W]here the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’  ‘In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.   In such circumstances, unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.’

“As the United States Supreme Court noted in Strickland v. Washington:  ‘Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.   A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “ ‘might be considered sound trial strategy.’ ”   There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.' ”   (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892.   Internal citations omitted.)

As to the first criterion, appellant has failed to show that all reasonably competent attorneys would have sought DNA testing of the physical evidence.   The record indicates that there are only a few laboratories in the United States, and none in California, which perform DNA tests.   All are backlogged and require from 6–9 months to do the testing.   Further, DNA testing requires “high quality” sample materials.

Moreover, defense counsel did seek to obtain DNA testing of the physical evidence.   On August 9, 1990, he moved for a continuance for that purpose.   His declaration stated he had contacted Cal Lab on July 20, 1990, and learned that only a laboratory in Maryland was available to do DNA testing.   The trial court denied the continuance motion.

As to the second criterion, appellant has failed to show “it is reasonably probable that a more favorable determination would have resulted” from DNA testing.   The tests may not have been possible or if possible, the results might have been inculpatory.

“Appellate courts will not second guess a trial attorney's reasonable tactical decisions․”  (People v. Jennings (1991) 53 Cal.3d 334, 379, 279 Cal.Rptr. 780, 807 P.2d 1009.)   Appellant's argument is not well taken.

 Second, appellant argues his counsel was deficient for not obtaining alibi witnesses for the 20 minute period 12:40 p.m. to 1:00 p.m.   The argument does not bear scrutiny.

Appellant testified he returned to the hospital approximately 12:35–12:40 p.m. and checked in with Celia Crawford, a unit 208 employee.   Trial counsel called Celia Crawford and she corroborated appellant's testimony.

Appellant testified that at 12:50 p.m. he left unit 208 with Rebeca Naciif for his 1 p.m. meeting.   Trial counsel called Rebeca Naciif and she corroborated appellant's testimony.

More to the point, this 20 minute period was not significant—except to the prosecutor.³  The most reasonable, perhaps the only reasonable, view of the evidence was that the rape occurred between 2:15–3:00 p.m.

Third, appellant argues his counsel should have but did not object to prosecutorial misconduct.   This alleged misconduct constitutes appellant's seventh contention.   We defer consideration of this argument to our discussion of that contention.

Fourth, appellant argues his counsel was incompetent for not objecting to the prosecutor's leading questions of Julia D.   The argument is meritless.

“A ‘leading question’ is a question that suggests to the witness the answer that the examining party desires.”  (Evid.Code, § 764.)   The trial court has discretion to permit leading questions if the capacity of the witness or the ascertainment of truth require such questions.  (Evid.Code, § 765;  3 Witkin, Cal.Evidence (3d ed. 1986), § 1822, pp. 1781–1782.)

 Contrary to appellate counsel's assumption, that a question was answered “yes” does not mean the question was leading.   One example—a question appellate counsel cites—will suffice.   The prosecutor showed Julia D. a photograph of the hospital premises and asked:  “Do you recognize what's in this picture?”   She answered “Yes.”

Moreover, defense counsel did periodically object to prosecutorial questions of Julia D. as leading.   Some were sustained, some overruled.

Finally, attorney competence is not a measure of objection frequency.   A skilled trial attorney may choose not to object to objectionable questions.   A sustained “leading question” objection does not bar an answer.   It merely allows the other attorney to re-ask the question, in different form and with perhaps, greater impact.   Making objections, even sustained ones, may also risk alienating the jury.

The contention is not well taken.

2. Appellant contends the trial court erred in admitting into evidence the sheet and blanket.

 Appellant argues the “chain-of-custody” requirements for admitting physical evidence were not satisfied and therefore the trial court erred in admitting the physical evidence (the sheet and blanket).

He asserts that if the rape occurred approximately 2:30 p.m. and the evidence was not seized until approximately 5:15 p.m. (by hospital Police Sergeant Linda Miller), then the evidence could have been tampered with anytime during almost a three hour period.

The contention is without merit.   There was no evidence the sheet and blanket had been tampered with.  “[W]hen it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.”  (People v. Riser (1956) 47 Cal.2d 566, 581, 305 P.2d 1, overruled on other grounds by People v. Morse (1964) 60 Cal.2d 631, 637, 649, 36 Cal.Rptr. 201, 388 P.2d 33 [An officer seized a glass from a bar where a robbery had occurred and then left the glass in an open bookcase, in an unlocked office, accessible to innumerable persons, for four hours.];   see also People v. Williams (1989) 48 Cal.3d 1112, 1132–1135, 259 Cal.Rptr. 473, 774 P.2d 146 [The prosecution mishandled a business card found in a murder residence:  there was confusion whether it was found in the kitchen or bedroom, whether it was commingled with other evidence, and why a fingerprint comparison was delayed 14 months.   Yet the card with the defendant's fingerprint was properly admitted];  People v. Lewis (1987) 191 Cal.App.3d 1288, 1298–1299, 237 Cal.Rptr. 64.)

3. Appellant contends the trial court erred in denying his request the jury view the scene.

 In pertinent part, section 1119 provides:  “When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, ․ it may order the jury to be conducted in a body, ․ to the place, ․ which must be shown to them by a person appointed by the court for that purpose;  and the officer must be sworn to suffer no person to speak or communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.”

“It is settled that the decision as to whether the jury should view the scene of the crime rests in the sound discretion of the trial court.”  (People v. Brown (1981) 119 Cal.App.3d 116, 135, 173 Cal.Rptr. 877;  People v. Price (1991) 1 Cal.4th 324, 422, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   In exercising its discretion the trial court may consider the “inconvenience of conducting a jury view” (People v. Price, supra, at p. 422, 3 Cal.Rptr.2d 106, 821 P.2d 610) and the fact that “the evidence included aerial and close photographs of the crime scene.”  (People v. Brown, supra, 119 Cal.App.3d at p. 135, 173 Cal.Rptr. 877.)

Defense counsel requested a jury view so that jurors could see how many people walked in the area and how visible it was.   The trial court denied the request for two reasons:  photographs adequately depicted the crime scene and the impossibility of accurately recreating the nearby traffic, both human and vehicular.

There was no abuse of discretion.

4. Appellant contends the trial court erred in denying his motions to dismiss (§ 1118.1).4

 “The test to be applied by the trial court under ․ section [1118.1] is the same test applied by an appellate court in reviewing a conviction.”   (People v. Bloyd (1987) 43 Cal.3d 333, 350, 233 Cal.Rptr. 368, 729 P.2d 802;  5 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 2961, pp. 3637–3638.)

“The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt.   In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence․  [O]ur task ․ is twofold.   First, we must resolve the issue in the light of the whole record․  Second, we must judge whether the evidence of each of the essential elements ․ is substantial․

“Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value, it must be ever cognizant that it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends․  Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness's credibility for that of the fact finder.”  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.   Internal citations and quotations deleted.   Original emphasis.)

It was “the exclusive province of the ․ jury to determine the credibility” of Julia D.   Her testimony, and much circumstantial evidence which corroborated it, constituted substantial evidence of appellant's guilt.

The trial court properly denied appellant's motions to dismiss.

5. Appellant contends jury misconduct entitled him to a new trial.

Appellant contends his motion for a new trial based upon jury misconduct ⁵ should have been granted.   Alternatively, he argues the trial court erred in denying his request for juror addresses and phone numbers.   We disagree.

In moving for a new trial and for the disclosure of juror addresses and phone numbers, defense counsel relied upon an affidavit of juror Susan Lung.   The prosecutor submitted counter-affidavits of jury foreman Roger Karle, Mr. Karle's wife, Judy Karle, and the personnel officer of Metropolitan State Hospital, Gary A. Hahn.

The issue before the trial court is best described by People v. Rhodes (1989) 212 Cal.App.3d 541, 261 Cal.Rptr. 1:  “[U]pon timely motion, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial․

“Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of the juror information as a matter of right in each case.   This rule safeguards both juror privacy and the integrity of our jury process against unwarranted ‘fishing expeditions' by parties hoping to uncover information to invalidate the jury's verdict.   At the same time, it protects a defendant's right to a verdict uninfluenced by prejudicial juror misconduct by permitting, upon a showing of good cause, access to juror information needed to investigate allegations of juror misconduct.”  (Id. at pp. 551–552, 261 Cal.Rptr. 1.)

In reliance upon People v. Rhodes, the trial court ruled “a sufficient showing” of “jury misconduct” had not been made.   We agree.

The affidavit of juror Susan Lung claimed numerous instances of misconduct by the jury foreman, Roger Karle.   We consider each.

 Susan Lung declared:  “prior to jury selection [in] People v. Bravo, Mr. Roger Karle ․ told me that his wife worked at Metropolitan State Hospital in Norwalk.”   The claimed relevance of this declaration is Mr. Karle's failure to disclose his wife's employment at Metropolitan State Hospital during voir dire, a disclosure which if made, juror Lung told Mr. Karle, “would probably [cause him] not [to] be selected as a juror․”

The trial court was entitled to conclude that Ms. Lung was mistaken.   In Mr. Karle's affidavit he declared that when he had served with Ms. Lung on a previous jury, he told her his wife had worked on the grounds of Metropolitan State Hospital.   During the instant trial his wife worked at Los Altos Hospital.

Judy Karle, in her affidavit, declared she had never been a Metropolitan State Hospital employee but two years before the instant trial she had worked for a private company which had leased a building on the grounds of Metropolitan State Hospital.

A third affidavit by the personnel officer of Metropolitan State Hospital (Gary A. Hahn) confirmed that Judy Karle had never been employed by the hospital.

We have also reviewed the voir dire of Mr. Karle, which the trial court was familiar with.   We note that Mr. Karle volunteered he had been a security officer for an aerospace company for eight years and freely informed the court and counsel his wife was a licensed psychiatric technician and that they lived in Norwalk.

When defense counsel, during a chambers conference, “wondered” if Mrs. Karle might work at Metropolitan State Hospital, Mr. Karle was asked into chambers and questioned.   To the court's question about where his wife is employed, Mr. Karle responded:  “She is employed at Los Altos Hospital in Long Beach.   She is a medication nurse.   She doesn't interface with the patients other than their medication.”

Neither the court nor defense counsel asked Mr. Karle if his wife had ever worked on the grounds of Metropolitan State Hospital.

This declaration by Ms. Lung did not constitute a sufficient showing of juror misconduct.

Susan Lung declared:  “Mr. Karle commented during the trial that his wife Mrs. Karle was in the courtroom and she had said that she did not know any of the people who were testifying.”   Even if true, spousal trial attendance, alone, is not juror misconduct.   But the trial court was entitled to again conclude Ms. Lung's declaration was not true.   Mr. Karle declared his wife had attended the previous trial (on which both he and Ms. Lung served), not the instant one.   Mrs. Karle declared she never attended the instant trial.

 Susan Lung declared:  “[D]uring jury deliberation I requested testimony read back of Howard Giblin three (3) times and Mr. Karle replied Why? and What for? and proceeded to ignore my request.”   Mr. Karle, according to his affidavit, did not recall any request concerning Howard Giblin but did recall Ms. Lung's request to have John Flores' testimony read back.   A read back was not requested because “the jury pretty much felt it was unnecessary.”

Later, in Ms. Lung's affidavit, she confirmed that it was the jury, not Mr. Karle, who decided whether or not to request testimony be read.

A jury decides how it shall deliberate.   It selects its foreperson and determines internal procedures.   A single juror has no inherent right to have testimony read.   Ms. Lung's declaration did not constitute evidence of jury misconduct.

 Susan Lung declared:  “[M]any of the jurors where [sic] on there [sic] fifth week of jury duty and they expressed and felt pressured to get back to work.”   This declaration omits the statements of jurors and merely gives Ms. Lung's conclusion about “the effect of such statement[s].”  (Evid.Code, § 1150.⁶ )  Such evidence is inadmissible to impeach a jury verdict.   (Ibid.;  People v. Hutchinson (1969) 71 Cal.2d 342, 349, 78 Cal.Rptr. 196, 455 P.2d 132.)

Susan Lung declared:  “[D]uring the jury deliberation process Mr. Karle brought in outside evidence that Linda Gross the girlfriend of Mark Bravo the defendant in this case that her car was light gray in color.”   Mr. Karle denied providing such information.   The trial court was entitled to believe Mr. Karle and disbelieve Ms. Lung.

 Susan Lung declared:  “Mr. Karle brought in evidence that a five point restraint of a victim would result in the listing of injuries of the victim in the records and would be documented if any were caused as a result of the five point restraint.  [¶]  I further declare that Mr. Karle mentioned to the jurors that it was common for these type of sexual encounters to go on at Hospitals.”   Mr. Karle denied providing any “inside” information about hospitals to Ms. Lung or any other juror.   There was much evidence concerning a five point restraint and whether an injury resulting from its use would be documented in a patient's records.   It would have been appropriate for jurors to discuss such evidence.

Justice Mosk's observation is also apt:  “The jury system is an institution that is legally fundamental but also fundamentally human.   Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience.   That they do so is one of the strengths of the jury system.   It is also one of its weaknesses:  it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court.   Such a weakness, however, must be tolerated.  ‘[I]t is an impossible standard to require ․ [the jury] to be a laboratory, completely sterilized and freed from any external factors.’  (Rideau v. Louisiana (1963) 373 U.S. 723, 733 [83 S.Ct. 1417, 1423, 10 L.Ed.2d 663] (dis. opn. of Clark, J.).)   Moreover, under that ‘standard’ few verdicts would be proof against challenge.”  (People v. Marshall (1990) 50 Cal.3d 907, 950, 269 Cal.Rptr. 269, 790 P.2d 676.)

We conclude the trial court properly found appellant had failed to make a sufficient showing of jury misconduct.

6. Appellant contends the trial court erred in admitting rebuttal evidence.

On cross-examination, appellant testified to the following:  (1) he had a master's degree in nursing from California State College, Los Angeles (2) he was unaware Metropolitan State Hospital had a notification and approval rule regarding second jobs by employees (3) he never had his girlfriend Linda Gross “cover” any of his second job assignments and (4) in his hospital application, he had not represented having had experience as a “corpsman” in the Marines.

The prosecutor, in rebuttal, presented evidence tending to impeach this testimony.

Appellant contends it was error for the trial court to admit the rebuttal evidence.   Appellant is mistaken for two reasons.

First, the rebuttal evidence tended to contradict appellant's testimony and was therefore relevant to his credibility.   It was not cumulative and was within the trial court's discretion to admit it.  (People v. Graham (1978) 83 Cal.App.3d 736, 741, 149 Cal.Rptr. 6.)

Second, appellant failed to object to the rebuttal evidence.  (Evid.Code, § 353;  People v. Gordon (1990) 50 Cal.3d 1223, 1255, 270 Cal.Rptr. 451, 792 P.2d 251;  People v. Price (1991) 1 Cal.4th 324, 430, 3 Cal.Rptr.2d 106, 821 P.2d 610;  People v. Clark (1992) 3 Cal.4th 41, 125–126, 10 Cal.Rptr.2d 554, 833 P.2d 561.)

7. Appellant contends the prosecutor committed misconduct.

 Appellant claims “[t]here were numerous examples throughout this trial of prosecutorial misconduct.”   But appellant concedes that defense counsel failed to object to “most” of them.

We have examined each cited example and find no objection by defense counsel.   Even if there were instances of prosecutorial misconduct, failure to object and request a curative admonition, when such an objection and admonition would have remedied any harm, constitute a waiver.  (Evid.Code, § 352;  People v. Price, supra, 1 Cal.4th at p. 430, 3 Cal.Rptr.2d 106, 821 P.2d 610.)

But appellant inflates his claim.

For example, appellant asserts “At one point in time another deputy from the D.A.'s office had to be sent into court because Ms. Chilstrom [the trial prosecutor] had become so belligerent to both counsel and the court.”   As authority for this dramatic claim appellant cites page 4, lines 1–5 of a November 1, 1990, reporter's transcript.   Not only is this reference to a post-verdict hearing (where if misconduct had occurred it could not have affected a verdict rendered two weeks earlier) but it fails to support the claim.   According to both the reporter's transcript and the clerk's minute order the People were represented by one deputy district attorney, Linda Chilstrom, the trial prosecutor.   The reporter's transcript reflects a continuous, uninterrupted hearing without any request that “another deputy ․ be sent into court.”   Another person was present during the hearing but he is only identified by name (Mr. Martinez), not title and in a hearing that took 10 transcript pages to report, he uttered two sentences.

Similarly, other examples cited by appellant are to post-verdict hearings when no jury prejudice was possible.

We should not be understood as approving the conduct of the trial prosecutor.   At times she was discourteous to defense counsel, abrasive to the trial court, and insulting to witnesses.   Such conduct—and other failings see fn. 3—did not benefit the prosecution nor prejudice appellant.   The prosecutor's reliance on ad hominem attacks could only have diminished her own stature in the eyes of the jury.   Their verdict was a judgment of the defendant's guilt not the prosecutor's effectiveness or virtue.

The contention is without merit.

DISPOSITION

The judgment is affirmed.

I respectfully dissent.   Although there were other questionable features of this conviction, in my opinion we need go no further than the trial court's error in denying appellant's request for a continuance to obtain a DNA test.   Given the state of the other evidence at trial, it was clearly reversible error to deprive appellant of the opportunity for this crucial item of proof.¹

Although not addressed in the majority opinion the issue of the denial of a continuance for the purpose of obtaining a DNA test was very much before this court on appeal.   It was included as part of a section of appellant's brief labelled ineffective assistance of counsel, but which covered a number of issues revolving around the failure to provide appellant a DNA test.   In that section of the brief, appellant clearly specified the trial court's denial of his continuance motion as error, indeed error with a constitutional dimension.   At one point in the brief, appellant's counsel states:  “[Appellant] was entitled to the much more specific results that could have been attained using DNA testing and the failure of the court to allow a trial continuance so that such testing could be done was a violation of defendant's right to due process.”  (Italics added.)

On the next page of her brief, appellant's counsel reinforces this contention.  “The error in the failure of the court to allow the continuance was further supported by the fact that the court itself could have ordered the testing.”  (Italics added.)

While it might have been preferable for appellant's counsel to have included the denial of the continuance motion under a separate and distinct sub-heading, her client cannot be denied consideration of that issue merely because the argument was not highlighted as boldly as it could have been.

It is true the grant or denial of a motion to continue ordinarily is deemed to be within the discretion of the trial judge and only reversible where that discretion has been abused.  (People v. Mickey (1991) 54 Cal.3d 612, 660, 286 Cal.Rptr. 801, 818 P.2d 84;  see also 5 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Trial § 2502, p. 3002.)   But there are continuance motions and there are continuance motions.   Appellant was not seeking a continuance because it would be inconvenient for himself or his counsel to appear on the appointed day.   Nor was he seeking delay for the sake of delay.   Instead he was asking for time to obtain a crucial form of evidence.

There was some considerable risk in this for defendant—if and only if he were guilty—because this was evidence which could prove him innocent if he were innocent but guilty if he were guilty.   At the time appellant sought this continuance he was faced with two items of evidence against him:  the frequently wavering, inconsistent testimony of a mental patient and a scientific test which demonstrated he was within a rather narrow population group who could have committed the crime.   What he was exposing himself to by requesting a DNA test was evidence which could supply proof positive he was the perpetrator as well as absolute vindication if he was not.   Accordingly, to ask for a continuance for this purpose is not something a defendant does lightly or for purposes of delay.

The next question is whether the trial court was justified in denying the requested continuance because the proposed DNA test would not produce admissible evidence.

There currently is a split of authority within California about the admissibility of DNA test evidence to prove an affirmative match, that is, to establish the defendant on trial was the one and only person whose bodily tissues or fluids could match those found at the scene of the crime.   (People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411 (Second Dist., Div. Six) [DNA evidence admissible for this purpose];  People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731 (First Dist., Div. Three);  People v. Wallace (1993) 14 Cal.App.4th 651, 17 Cal.Rptr.2d 721 (First Dist., Div. Three) [DNA evidence inadmissible for this purpose unless and until statistical comparisons are changed or until there no longer is dispute within scientific community about validity of statistical comparisons currently used by DNA labs].)   However, in the rest of the country there is no such split.   The overwhelming number of jurisdictions and courts have accepted the admissibility of DNA evidence in criminal proceedings to prove the identity of those perpetrating crimes.   This includes judicial decisions in Federal courts and 20 states.   Only a couple of appellate courts outside California have expressed reservations.²  (See cases collected and discussed in Annot., Admissibility of DNA Identification Evidence (1991) 84 A.L.R.4th 313.)

In any event, no matter what the virtues of DNA testing to prove a given individual was the one and only possible source of some tissue or bodily fluid found at the scene of the crime, there is no dispute about its ability to exclude an individual as a possible source of that sample.   That is, whether there is a reasonable debate about the statistical probability of two individuals having the same match of DNA properties, there is no debate when a segment of an individual's DNA fails to match the equivalent segment of the DNA which was drawn from the sample at the scene.   In this instance, DNA test evidence can establish conclusively the individual concerned was not the person whose bodily tissues or fluids were connected with the crime.   As a New York court observed in a case where it permitted DNA evidence for purposes of exclusion but not to establish an affirmative match:

“Because the scientific method for determining whether two samples of DNA do not match and, therefore, are genetically different, is less complex in its analysis, it is equally clear that DNA forensic evidence establishing an exclusion is reliable.   It is noted that if two samples of DNA do not co-migrate by a significant margin the autorad can be interpreted merely by visual means and population genetics is not involved as would be the case when declaring a match.   If the bands are not significantly separated then quantitative measurements may be employed to confirm the visual exclusion.   Again, it is noted that population genetics is not involved in this calculation.  [¶] Accordingly, this court concludes that DNA forensic identification tests to determine exclusion are reliable and meet the Frye standard of admissibility.”  (People v. Castro (Sup.1989), 144 Misc.2d 956, 545 N.Y.S.2d 985, 995.   See also U.S. Congress, Office of Technology Assessment, Genetic Witness:  Forensic Uses of DNA Tests, OTA–BA–438, 101st Cong. 46 (1990);  see generally Note, Kelly/Frye Analysis:  DNA Evidence on Trial (1990) 18 Western St.U.L.Rev. 331.)

It requires a smaller, less perfect sample of bodily tissue or fluid from the crime scene to determine whether the defendant can be excluded from the population capable of leaving that sample than is required to establish a match.  (Prince v. Superior Court (1992) 8 Cal.App.4th 1176, 10 Cal.Rptr.2d 855.)   Consequently, even if the tissue or fluid sample from the scene in this case were too small to make a statistically persuasive match it might be large enough to exclude an individual as a possible perpetrator.

At a minimum, then, the DNA test for which appellant sought a continuance could supply admissible evidence which would offer compelling if not conclusive proof of his innocence.   Even if the trial court elected to follow the First District decision holding DNA test evidence is not yet admissible to prove a match instead of following the Second District decision holding it is admissible for that purpose, nothing in the First District case suggests DNA evidence is inadmissible for the purpose of excluding appellant as a potential source of the semen found on the blanket.   Furthermore, even if the sample available from the scene of this crime proved too small to allow a DNA laboratory to make a statistically valid match it probably would have been sufficient to exclude appellant as a source of this semen.   Thus, the proposed test could yield admissible and potentially crucial evidence.   As a result, the trial court's denial of the continuance motion cannot be justified on grounds the requested delay would fail to serve a useful or important purpose.

Penal Code section 1050 provides a continuance may be granted on a showing of good cause.  (Pen.Code, § 1050, subd. (e).)  Similarly, rule 227.7 of the California Rules of Court provides a continuance in a criminal trial may be granted on a showing of “affirmative proof in open court that the ends of justice require a continuance.”   Neither the rule nor the statute defines “good cause.”   However, a number of situations have been judicially recognized as valid grounds for a continuance.   These grounds include the excusable failure to obtain necessary evidence and the excusable absence of a material and necessary witness.  (See 5 Witkin & Epstein, Cal.Criminal Law (2d ed., supra ) Trial, § 2501, p. 3002.)

These exceptions have been recognized because, although the Legislature has stated a policy in favor of the prompt resolution of cases, there is an equally compelling policy in favor of granting continuances where necessary to protect a defendant's constitutional rights of confrontation of witnesses and effective representation of counsel.  (See, e.g., People v. Fong Chung (1907) 5 Cal.App. 587, 590, 91 P. 105 [“The constitution of the state (article I, section 13) gives a defendant the right to have the process of the court to compel the attendance of witnesses in his behalf.   It is the duty of the court, when due diligence has been used, and it appears that the application is made in good faith, and the evidence is material, to continue the case for a reasonable time so that the case may be fairly tried on its merits.”].)

This policy was expressed in People v. Dodge (1865) 28 Cal. 445.   In that case the defendant was accused of murder.   On the day of trial the defendant sought a continuance because his most crucial witness was too ill to attend the trial.   The trial court refused to grant a continuance.   The Supreme Court found the trial court's ruling denied the defendant his fundamental rights and reversed the judgment.   In so doing the court noted:

“A defendant in a criminal trial is undoubtedly entitled to the personal attendance of his witnesses at the trial, if the same can be obtained without unreasonable delay.   Such is the policy of the law, not merely from considerations affecting the defendant only, but also from considerations affecting the ends of public justice, irrespective of individual interests, which is manifest from the fact that the depositions of such witnesses are allowed to be read in evidence only upon further evidence at the trial that their personal attendance cannot be obtained․  It is to the interest of the people, as well as the defendant, that the witnesses of the latter should be made to give their testimony in the presence of the jury, for we all know, by daily experience, how much weight is added to or taken from testimony by the personal appearance, bearing and manner of the witness while under examination;  if these add to the weight of his testimony, the defendant ought not be deprived of such effect, except upon grounds of necessity.”  (People v. Dodge, supra, 28 Cal. at 448;  see also People v. Brown (1880) 54 Cal. 243 [abuse of discretion to deny continuance where absent witness was only witness to whom robbery victim had admitted he had no money at all on the night he was allegedly robbed].)

The identical standards of identifiable evidence, materiality, necessity and diligence are imposed whether the defense or prosecution requests a continuance.  (5 Witkin & Epstein, Cal.Criminal Law (2d ed., supra ) Trial, § 2515, pp. 3017–3018.)   Thus in Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 161 Cal.Rptr. 704, the court held it was not an abuse of discretion to grant a continuance beyond the statutory speedy trial time limit where the prosecution's critical witness, a subpoenaed police officer, failed to appear for trial.   Similarly, in In re Lawanda L. (1986) 178 Cal.App.3d 423, 223 Cal.Rptr. 685, the prosecution sought a continuance to secure a rebuttal witness who allegedly saw the minor break the window.   The Court of Appeal found it was not an abuse of discretion to grant the continuance because the evidence was crucial in order to “get to the bottom” of the case.  (In re Lawanda L., supra, 178 Cal.App.3d at p. 429, 223 Cal.Rptr. 685.)

Time to secure scientific testimony at trial has also been held to constitute good cause for a continuance.  (See, e.g., People v. Knights (1985) 166 Cal.App.3d 46, 212 Cal.Rptr. 307 [continuance properly contemplated to secure rebuttal witness to prosecution's footprint expert];  People v. Alvarez (1989) 208 Cal.App.3d 567, 578, 256 Cal.Rptr. 289 [good cause to continue the trial until the criminologist was available to testify];  compare People v. Howard (1992) 1 Cal.4th 1132, 1170–1172, 5 Cal.Rptr.2d 268, 824 P.2d 1315 [no abuse of discretion to deny defendant's motion for continuance and to reopen case to present expert pathologist's testimony concerning shoe markings on murder victim where expert unidentified at time continuance requested].)

Because of the perceived superiority of DNA test evidence, trial courts in other states frequently have granted continuances to prosecutors to allow them time to send samples to far away DNA laboratories and obtain analyses which can be introduced in court.   Appellate courts have found these continuances justified even when they extended trial dates beyond ordinary speedy trial deadlines.  (See, e.g., United States v. Drapeau (8th Cir.1992) 978 F.2d 1072 [eight-week continuance for completion of DNA testing is permissible despite Federal speedy trial limits because this purpose for delay satisfies “ends of justice” exception to the speedy trial provision];  Lazcano v. State (Tex.App.1992) 836 S.W.2d 654 [five-month continuance for DNA testing permissible];  Thompson v. State (Iowa 1992) 492 N.W.2d 410 [continuance for DNA testing permissible despite speedy trial limits even though prosecution waited to determine whether defendant would plead guilty before ordering test since DNA analysis is expensive], State v. Green (1993), 252 Kan. 548, 847 P.2d 1208 [30–day continuance to determine whether sample sufficient for testing and 90–day continuance for actual testing permissible despite speedy trial limits];  Smith v. Deppish (1991), 248 Kan. 217, 807 P.2d 144 [two continuances totaling over 130 days for DNA testing permissible despite speedy trial limits even though first continuance requested and granted on eve of original trial date].)

In State v. Stroud (Minn.App.1990) 459 N.W.2d 332, the appellate court reversed the denial of a continuance motion the prosecution had filed at trial on the specific ground it was an abuse of discretion to deny a continuance requested for purposes of conducting a DNA test.   If the desirability of DNA evidence is so great it constitutes good cause for suspending defendants' speedy trial rights in order to grant prosecutors a continuance when they need one for the purpose of obtaining this evidence, surely it is an abuse of discretion to find insufficient good cause for a continuance when sought by a defendant for the same purpose.

There is another reason it was an abuse of discretion to deny appellant the opportunity to obtain the DNA test in this particular case.   Here the prosecution had obtained other far less precise scientific evidence pointing in the direction of appellant's guilt—the serology test placing appellant within the 1.5 percent of the population who could have deposited semen on the blanket used in the crime.   To deny appellant the chance to procure scientific evidence of a similar but higher order which might disprove the inference the jury would logically draw from the prosecution's serology evidence was to give the prosecution an unfair advantage.   It was to allow the prosecution to convict on the basis of evidence which appears to be 98.5 percent accurate by depriving the defendant of evidence which would “scientifically be one of complete accuracy.”  (People v. Bynon (1956) 146 Cal.App.2d 7, 13, 303 P.2d 75 [arguing it was inappropriate to base paternity decisions on unscientific or less scientific evidence when blood tests could exclude persons as the potential father of a given child.]

Any claim the denial of the continuance motion was justified because the motion came too late must fail, too.   The evidence in the record demonstrates appellant's trial counsel had discussions with the prosecutor indicating the prosecutor intended to obtain a DNA test.   It only became relevant for the defense to begin considering whether to obtain its own DNA analysis after it became clear the prosecution was not going to do so.   The continuance motion was filed some three months before what turned out to be the actual trial date and was denied seven weeks before that date.   So neither the request nor the decision on the request came on the “eve of trial.”

In any event, we cannot allow speed to become the overriding purpose of the criminal justice system.   We cannot allow the process to deteriorate into a blind rush to judgment.   If we do, that system will no longer serve its function of separating the innocent from the guilty nor will it offer either the appearance or the reality of justice.

I am convinced this conviction should not stand while this defendant is denied a DNA test which might prove his innocence—or his guilt.   If necessary, I would vote to reverse the judgment below.   Were I in the majority, however, I would support a resolution of this appeal which did not require outright reversal, at least at this stage.   I would favor a disposition which granted the request appellant made twice while this case has been pending on appeal, to permit the semen samples to be withdrawn from evidence and subjected to DNA testing.

Appellate counsel first applied to the trial court for permission to take this step shortly after she was appointed to represent appellant.   The trial court properly denied this request for lack of jurisdiction since the appeal was pending in this court.   Appellant's counsel then applied to this court requesting release of the semen samples taken from the scene for the purpose of a DNA testing.   This request likewise was denied.

In retrospect, I would favor granting the request filed in this court for DNA testing.   This should be easier to accomplish in the instant case because this court already has remanded the cause to the trial court pursuant to a habeas corpus petition for a factual finding concerning the complaining witness' credibility in the light of her latest recantation.   I would merely require the trial court to expand its inquiry by allowing appellant to conduct a DNA analysis of the samples taken from the scene or, preferably, require the court to order its own DNA analysis.

Depending on the results of that DNA testing, the trial court might well be in a position to grant or to deny habeas corpus based primarily on the DNA analysis.   If the DNA test reveals a match to a high degree of statistical probability, it would be appropriate to deny habeas corpus since evidence more powerful than anything introduced at trial would then support appellant's guilt.   On the other hand, if the DNA testing conclusively excluded appellant as the donor of the semen found at the scene it would be appropriate for the trial court to grant habeas corpus without bothering to decide the credibility of the victim's trial testimony.   Or, if the DNA test proved inconclusive, the habeas corpus petition could then be resolved on issues unrelated to the DNA test.

I recognize this proposed disposition is unusual since appeals and habeas corpus petitions are considered independent actions.   However, this is the rather rare case where the appellate court has ordered the trial court to consider certain issues in a habeas corpus hearing which also are relevant to the appeal before the appeal itself has been resolved.   This affords a unique opportunity to determine whether what I, at least, consider error, in fact warrants reversal of the conviction.

FOOTNOTES

FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   People's exhibit 15, a psychiatric intervention form signed by appellant, corroborated appellant's testimony that he had been at Greater El Monte Hospital during the morning of February 20.   The form stated appellant arrived at 11 a.m. and departed at 11:57 a.m.

3.   The prosecutor, in final argument, claimed the rape occurred between 12:40–1:00 p.m. (Her opening statement was not reported.)   Her own evidence, including People's exhibit 15, refuted this theory.   Despite the prosecutor's argument the jury convicted appellant.

4.   The section reads:  “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.   If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”

5.   In pertinent part section 1181 provides:  “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only.“․“2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property;“3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented;“4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors;  ․”

6.   The section reads:  “(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.   No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.“(b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.”

1.   The prosecution's case at trial essentially rested on the uncorroborated testimony of the victim and a serology test which placed appellant within the 1.5 percent of the population who could have been the source of the sperm on the bed sheet where the act occurred.   The victim has recanted her identification of appellant as her assailant at several times—to a number of different people in the months before she testified at trial and now again to another person after the trial.   The majority opinion makes no mention of the victim's pre-trial wavering as to the identity of the perpetrator, although that was brought out during her trial testimony.   However, this court has granted habeas corpus and ordered a hearing before the trial court to reconsider the credibility of the victim's trial testimony in the light of the new recantation.

2.   The vast majority of jurisdictions which have considered the question have admitted evidence obtained from DNA testing to prove a match between the defendant and the crime scene if the laboratory complies with the appropriate standards and controls.   See, e.g., the following decisions.U.S.—United States v. Jacobetz (D.C.Vt.1990) 747 F.Supp. 250, aff'd 955 F.2d 786, cert. denied (1992);  U.S. v. Young (1990, D.C.S.D.) 754 F.Supp. 739.Alabama—Ex Parte Perry v. State (Ala.1991) 586 So.2d 242, remanded (Ala.App.1991) 586 So.2d 256, appeal after (Ala.App.1992) 606 So.2d 224.Colorado—Fishback v. People (Colo.1993) 851 P.2d 884.Delaware—State v. Pennell (Del.Super.1989) 584 A.2d 513.Florida—Martinez v. State (Fla.App.1989) 549 So.2d 694;  Andrews v. State (Fla.App.1988) 533 So.2d 841, later proceeding (Fla.App.1988) 533 So.2d 851, rev. denied (1989) 542 So.2d 1332.Georgia—Caldwell v. State (1990) 260 Ga. 278, 393 S.E.2d 436.Indiana—Hopkins v. State (Ind.1991) 579 N.E.2d 1297;  Davidson v. State (Ind.1991) 580 N.E.2d 238.Iowa—State v. Brown (Iowa 1991) 470 N.W.2d 30.Kansas—State v. Dykes (1993) 252 Kan. 556, 847 P.2d 1214;  Smith v. Deppish (1991) 248 Kan. 217, 807 P.2d 144.Maryland—Cobey v. State (1988) 80 Md.App. 31, 559 A.2d 391, cert. denied (1989) 317 Md. 542, 565 A.2d 670.Mississippi—Polk v. State (Miss.1992) 612 So.2d 381.New Jersey—State v. Williams (1991) 252 N.J.Super. 369, 599 A.2d 960.New York—People v. Castro (1989) 144 Misc.2d 956, 545 N.Y.S.2d 985;  People v. Shi Fu Huang (1989), 145 Misc.2d 513, 546 N.Y.S.2d 920;  People v. Wesley (1988), 140 Misc.2d 306, 533 N.Y.S.2d 643, aff'd People v. Bailey (1989) 156 A.D.2d 846, 549 N.Y.S.2d 846, app. denied People v. Bailey (1990), 75 N.Y.2d 810, 552 N.Y.S.2d 560, 551 N.E.2d 1238, post-conviction proceeding People v. Wesley (1992) 183 A.D.2d 75, 589 N.Y.S.2d 197, appeal granted People v. Wesley (1993) 81 N.Y.2d 978, 598 N.Y.S.2d 779, 615 N.E.2d 236.North Carolina—State v. Bruno (1993) 108 N.C.App. 401, 424 S.E.2d 440, rev. denied (1993) 333 N.C. 464, 428 S.E.2d 185;  State v. Pennington (1990) 327 N.C. 89, 393 S.E.2d 847.Ohio—State v. Nicholas (1993) 66 Ohio St.3d 431, 613 N.E.2d 225;  State v. Thomas (1991) 63 Ohio App.3d 501, 579 N.E.2d 290;  State v. Pierce (1990) 64 Ohio St.3d 490, 597 N.E.2d 107, reh'g denied (1992) 65 Ohio St.3d 1436, 600 N.E.2d 679.South Carolina—State v. Ford (1990) 301 S.C. 485, 392 S.E.2d 781.South Dakota—State v. Wimberly (S.D.1991) 467 N.W.2d 499.Texas—Williams v. State (Tex.App.1993) 848 S.W.2d 915;  Bethune v. State (Tex.App.1991) 821 S.W.2d 222, aff'd (Tex.Cr.App.1992) 828 S.W.2d 14;  Glover v. State (Tex.App.1990) 787 S.W.2d 544 (Tex.Cr.App.1992) 825 S.W.2d 127;  Kelly v. State (Tex.App.1990) 792 S.W.2d 579, later case (Tex.Cr.App.1992) 824 S.W.2d 568;  Mandujano v. State (Tex.App.1990) 799 S.W.2d 318.Virginia—Spencer v. Commonwealth (1989) 238 Va. 275, 384 S.E.2d 775, cert. denied 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775;  Spencer v. Commonwealth (1989) 238 Va. 295, 384 S.E.2d 785, cert. denied (1990) 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073.  Spencer v. Commonwealth (1989) 238 Va. 563, 385 S.E.2d 850, cert. denied (1990) 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073,  Spencer v. Commonwealth (Va.1990), 240 Va. 78, 393 S.E.2d 609, cert. denied (1990) 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235.Washington—State v. Cauthron (1993) 120 Wash.2d 879, 846 P.2d 502;  State v. Kalakosky (1993) 121 Wash.2d 525, 852 P.2d 1064.West Virginia—State v. Woodall (1989) 182 W.Va. 15, 385 S.E.2d 253.The courts have imposed certain caveats to admission of DNA evidence in a few of these jurisdictions.Minnesota courts view DNA tests as generally admissible, however the court must limit the use of statistical frequency evidence (State v. Kim (Minn.1987) 398 N.W.2d 544, 548) and the laboratory must comply with the appropriate standards and controls (State v. Schwartz (Minn.1989) 447 N.W.2d 422).  State v. Johnson (Minn.1993) 498 N.W.2d 10, reh'g denied (1993);  State v. Jobe (Minn.1992) 486 N.W.2d 407;  State v. Stroud (Minn.App.1990) 459 N.W.2d 332.New Mexico courts view DNA tests as generally admissible but not the use of statistical frequency evidence (State v. Anderson (N.M.App.1993) 115N.M. 433, 853 P.2d 135, cert. granted (N.M.1993) 115 N.M. 145, 848 P.2d 531).

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.