# State v. Carter > Nebraska Supreme Court · December 2, 1994 · 246 Neb. 953 URL: https://www.frixlaw.com/law-library/cases/9668465 ## Case - **Full name:** State of Nebraska, Appellee, v. Asa T. Carter, Appellant - **Court:** Nebraska Supreme Court - **Decided:** December 2, 1994 - **Citations:** 246 Neb. 953; 524 N.W.2d 763; 1994 Neb. LEXIS 234 - **Precedential status:** Published - **Opinion:** Dissent by Wright - **Judges:** Hastings, Boslaugh, White, Caporale, Fahrnbruch, Lanphier, Wright - **Cited by:** 60 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by State v. Freeman, 253 Neb. 385 (1997). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9668465 ## How later opinions describe it (automated extraction) - holding that “evidence of a DNA match will not be admissible if it has not been accompanied by statistical probability evidence that has been calculated from a generally accepted method” - reaffirming use of Frye test in Nebraska despite U.S. Supreme Court’s modification of test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) ## Opinion text Wright, J., dissenting. I respectfully dissent from the decision of the majority, which grants Asa T. Carter a new trial. The following is a brief summary of the evidence upon which the conviction was obtained: On October 20, 1990, the victim, a 9-year-old girl, was found dead in an area immediately to the rear of the apartment house in Omaha in which Carter resided. Carter’s wife testified that the victim arrived to stay overnight at the Carters’ home on the evening of October 19. During the evening, Carter, Lanny Hicks, and David Harpster periodically came and went from the apartment. At no time did Hicks or Harpster have any contact with the victim, and eventually they left. At 4:15 a.m. on October 20, Carter entered the bedroom, became sexually aroused, and told his wife he wanted to “make love” to her, but then told his wife he wanted to make love to the victim, who was sleeping in the same bed. Carter told his wife that if she loved or cared about him, she would let him make love to the victim, so his wife left the apartment. When Carter’s wife returned approximately 40 minutes later, she found the victim lying naked faceup on the bed, with no pulse. Carter told his wife, “I didn’t mess with her.” He then threatened his wife, told her she must “stick by his side” or the “same thing could happen to [her],” and indicated that “if he [went] down,” he would take her “down with him.” Carter then dressed the victim, removed the body from the apartment, and put the bedsheets into the bathtub. Medical evidence established that the victim had been subjected to anal and vaginal penetration and that the cause of death was asphyxiation, most likely caused by compression of *991 her chest by the perpetrator of the sexual assault. Semen was present in the crotch and back area of the victim’s underwear and on an anal swab taken from the victim. Human blood was found on vaginal and anal swabs, a washcloth, a towel, a shirt, bedsheets, and Carter’s jacket pocket. As I understand it, the testing conducted in this case, polymerase chain reaction DNA amplification (PCR DQ Alpha DNA) typing, had two separate components. First, semen taken from the anal swab was tested for the presence or absence of certain PCR genotypes, and similar tests for PCR genotypes were completed on samples taken from the victim, Carter, Hicks, and Harpster. The results were compared directly. Without any statistical analysis whatsoever, the lack of certain PCR genotypes eliminated Hicks and Harpster as possible donors of the semen. Conversely, Carter could not be eliminated because of the presence of certain PCR genotypes. The majority concedes that the methodology up to this point meets the Frye-Houser standard. The second step in the PCR analysis becomes significant. That step is the statistical analysis of the raw data from the tests. The majority holds that this statistical analysis of the raw data, the statistical analysis which identified Carter as a possible donor of the semen, did not meet the Frye-Houser standard. The majority places emphasis on the statistical calculation which ties Carter to the donor of the semen. Because the majority believes the calculation of statistical probability is an essential part of the process used to determine the significance of a DNA match, it concludes that inclusion of the DNA tests in evidence was prejudicially erroneous. In my opinion, statistical probability evidence is not required for the admission of the PCR test in this case. Restriction fragment length polymorphism (RFLP) DNA analysis, which was used in State v. Houser, 241 Neb. 525 , 490 N.W.2d 168 (1992), declares a specific “fingerprint” match. The PCR test used in this case does not identify the donor, but merely determines whether a particular person can be eliminated as a donor. Whether or not statistical evidence is later used to correlate the exclusions established by the test to particular population groups, the exclusions made by the test stand — they *992 are independent of the statistical analysis. If Carter had been an unknown suspect in a general population, the statistical correlation would have been critical in identifying him as a possible donor of the semen. Logically, in a case involving an unknown number of suspects, evidence of the number of people who had similar DNA patterns and the possible frequency of such similar DNA patterns among samples taken from a given population would be extremely important in identifying the perpetrator. However, Carter’s identity as the probable perpetrator was established by the testimony of his wife, which placed him in bed with the victim and sexually aroused no more than 40 minutes before the victim’s death. Disregarding statistical analysis, the PCR test tended to show no more and no less than the fact that Carter could not be ruled out. In other words, the PCR test showed that it was not impossible for Carter to be the donor. The testimony of Carter’s wife established a particular chain of events. When Carter’s wife left the apartment, the victim was alive and healthy. Forty minutes later, the victim had been sexually assaulted anally and vaginally and had died from suffocation. Carter told his wife he was going to sexually assault the victim, and when his wife returned, Carter threatened that harm would come to her if she did not remain silent about the death. He then disposed of the body and attempted to destroy other evidence. The raw data from the PCR test showed that this chain of events was not scientifically impossible. In addition to the testimony of Carter’s wife, the jury heard testimony from Carter’s two daughters from a previous marriage and his half sister, who testified that they had been sexually assaulted by Carter when they were between the ages of 6 and 11. The testimony established that Carter had a history of sexually assaulting young girls. Even assuming that the statistical probability evidence in this case was erroneously admitted, it can be said beyond a reasonable doubt that its admission was harmless. It is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless. State v. Timmerman, 240 Neb. 74 , 480 N.W.2d 411 (1992). In the trial of a criminal case, *993 erroneous admission of evidence which is not cumulative may constitute harmless error beyond a reasonable doubt, when a defendant’s conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection. State v. Nielsen, 243 Neb. 202 , 498 N.W.2d 527 (1993). An error is harmless when the improper admission of evidence did not materially influence the jury to reach a verdict adverse to the substantial rights of the defendant. State v. Hughes, 244 Neb. 810 , 510 N.W.2d 33 (1993). It may be said beyond a reasonable doubt that the jury did not rest its verdict upon evidence that Carter’s genotype was found in 7 percent of the white population and 10 percent of the black population. There were three male suspects who had access to the victim. Two of those three were eliminated without the use of statistical analysis. Where there is a known group of three possibilities and two are eliminated, statistical probabilities concerning the third possibility are unnecessary. The evidence of Carter’s guilt is overwhelming. I cannot say that the statistical probability evidence regarding the DNA pattern materially influenced the jury. I would affirm the conviction. Hastings, C. J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668465. Public record. Not legal advice.