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Nelson v. Ajayi

Court of Appeals of Virginia. Alexandria
Sep 29, 1992
Record No. 0665-91-4 (Va. Ct. App. Sep. 29, 1992)

Opinion

Record No. 0665-91-4

September 29, 1992

FROM THE FAMILY COURT OF THE CITY OF ALEXANDRIA STEPHEN W. RIDEOUT, JUDGE.

William Ray Ford for appellant.

Nancy J. Crawford, Special Counsel, Division of Child Support Enforcement (Betsy S. Elliott, Senior Special Counsel, Virginia Department of Social Services, Division of Child Support Enforcement, on brief), for appellee.

Present: Judges Baker, Benton and Moon.

Argued at Alexandria, Virginia.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated publication.


In this appeal, we decide whether the trial court erred when it admitted into evidence a paternity evaluation report which contained results of DNA testing, without first requiring expert testimony laying a proper foundation for its admission. At the outset, we acknowledge that the Virginia Supreme Court has held that DNA testing is a reliable scientific technique and nothing in this opinion should be interpreted as reducing the effect of that decision.

Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 493 U.S. 1036 (1990).

Michael Nelson (appellant) appeals from an order of the Family Court of the City of Alexandria (trial court), which found that he is the biological father of a child born out of wedlock on September 28, 1977 to Berdonna Nicole Ajayi (appellee). The proceeding from which the order emanates began on May 17, 1990, when appellee filed a civil petition in the trial court asking the court to find that appellant was the father of the child and that he be required to pay $200 per month for child support.

When parentage was denied by appellant, the trial court ordered appellant, appellee and the child to permit the personnel of American Medical Laboratories, Inc. to withdraw samples of their blood to be used in HLA testing to determine probability of paternity as conducted by Genetic Design, Inc. (the laboratory). Blood samples were drawn from each of them and submitted to the laboratory for testing, as directed by the court order. The results of the paternity evaluation report consisted of ABO, Rh, MNSs, Kell, Duffy, Kidd, HLA-A, HLA-B and DNA testing. The report concluded that appellant could not be excluded as the biological father of the child and, based on the above genetic testing results, the probability of paternity was 99.88%, as compared to an untested random man of the North American Black population. It further stated that appellee's specimen was unsuitable for typing in the HLA-A and HLA-B testing systems and that a motherless calculation was performed. No evidence was presented at trial to clarify why appellee's specimen was unsuitable for typing.

At trial, over appellant's objection, the trial court admitted the paternity evaluation report into evidence and founded its decision upon the conclusions contained in the report. The report disclosed that its analysis was based on two types of tests other than the HLA tests ordered by the trial court. It is apparent from the report itself that the laboratory could not reach a satisfactory conclusion based on its HLA testing alone. The report notes that appellee's specimen was unsuitable for HLA-A or HLA-B testing, and that its numerical assignment of Paternity Index made from those tests was based on a "motherless calculation performed."

The Paternity Index shown on the report resulting from the HLA tests was only 36.14.

Because no expert connected with the laboratory was produced by appellee to support the validity of the Paternity Evaluation Report, we are left to speculate why DNA testing was conducted without trial court direction. Having reviewed the report, we conclude that the laboratory conducted the DNA testing on its own volition because the HLA tests, made without a suitable specimen from appellee, were inconclusive.

For a detailed explanation of the DNA point identification techniques, see Spencer, at 286-89, 384 S.E.2d at 781-82.

Appellant's objection to the admissibility of the report was based on appellee's failure to lay a proper foundation through experts to testify to the reliability of the DNA test and that the DNA test was properly conducted. Appellee responded that Code § 20-49.3 permits the results of DNA testing to be admitted into evidence without such foundations; that viewing the entire report, it discloses that the probability of appellant being the child's father is 99.88%; and that finding triggers the provisions of Code § 20-49.1(B), which declare that a probability greater than 98%, without more, establishes parentage. In addition, appellee argues that this case is controlled by Code § 20-49.3 and the holding in Spencer, which she asserts are the bases for certified DNA test results being admissible without expert testimony.

We hold that the provisions of Code § 20-49.3, in effect when the finding of the trial court was made, did not eliminate the necessity of expert testimony showing that the tests were properly conducted. For that reason, the report was improperly admitted and could not constitute a basis for finding more than a 98% probability that appellant is the child's father. Thus, Code § 20-49.1(B) is not a factor to be considered by this Court. Moreover, the Spencer case did not involve Code § 20-49.3, which provides:

§ 20-49.3. Admission of blood grouping tests. — A. In the trial of any matter in any court in which the question of parentage arises, the court, upon its own motion or upon motion of either party, may and, in cases in which child support is in issue, shall direct and order that the alleged parents and the child submit to medically reliable genetic blood grouping tests.

B. The court shall require the person requesting such blood grouping test to pay the cost. However, if such person is indigent, the Commonwealth shall pay for the test. The court may, in its discretion, assess the costs of the blood-grouping test to the party or parties determined to be the parent or parents.

C. The result of a medically reliable genetic blood grouping test may be admitted in evidence when contained in a written report prepared and sworn to by a duly qualified expert, provided the written results are filed with the clerk of the court hearing the case at least fifteen days prior to the hearing or trial. Verified documentary evidence of the chain of custody of the blood specimens is competent evidence to establish the chain of custody. Any qualified expert performing such test outside the Commonwealth shall consent to service of process through the Secretary of the Commonwealth by filing with the clerk of the court the written results. Upon motion of any party in interest, the court may require the person making the analysis to appear as a witness and be subject to cross-examination, provided that the motion is made at least seven days prior to the hearing or trial. The court may require the person making the motion to pay into court the anticipated costs and fees of the witness or adequate security for such costs and fees (emphasis added).

A 1992 amendment to Code § 20-49.3 substituted "scientifically reliable genetic tests including blood tests" for "medically reliable genetic blood grouping tests," and other similar substitutions.

Neither Code § 20-49.3 nor Spencer permit conclusions shown on certified reports that are based on DNA testing to be admitted in evidence without further foundation. In arriving at its decision to admit the results of DNA testing, after recognizing that the Spencer record was replete with uncontradicted evidence that the DNA printing technique was reliable and that the experts had established that "the testing procedure performed in this case was conducted in a reliable manner," the Court said:

Because the undisputed evidence supports the trial court's conclusion that DNA testing is a reliable scientific technique and that the tests performed in the present case were properly conducted, we hold that the trial court did not err in admitting [into] evidence [the results of the DNA testing].

Spencer, at 290, 384 S.E.2d at 783 (emphasis added).Spencer did not hold that a DNA test was a medically reliable genetic blood test; rather, it recognized DNA testing as a reliable scientific technique, supported by the evidence presented by the experts in that case. The Court declined to adopt the stringent requirements of the Frye test. Yet, after referencing the trial testimony, the Court made a specific finding that "the tests performed in this [the Spencer] case were properly conducted."

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Court opinions are not unanimous on these requirements. See, e.g., People v. Castro, 545 N.Y.S.2d 985 (Sup.Ct. 1989).

See extensive discussion by Thompson Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va. L. Rev. 45 (1989), wherein potential for obtaining unreliable results may occur if strict proper testing procedures are not followed.

Appellee further argues that Code § 20-49.3 provides a vehicle for appellant to attack the validity of the DNA test if he chooses to do so, and asserts that the burden is on appellant to show that the DNA test is not a "medically reliable genetic blood grouping test" if he wishes to have the certified test results excluded. As previously noted, Spencer did not hold that DNA tests are permitted by that Code section. In the absence of proof to the contrary, expert opinions must be personally expressed by the expert and subjected to in-court cross-examination. If an exception to that rule exists, the burden is on the proponent to prove admissibility of the opinion by such exception. Here, appellee did not meet her burden.

When announcing its decision, the trial court stated that as between the testimony of appellee and appellant it could not find that appellant is the father of the child; however, it further opined that when the DNA testing is added to appellee's testimony, the evidence establishes quite clearly and convincingly that appellant is the father. The paternity evaluation report containing the DNA test results, erroneously admitted and considered by the trial court, appears to have resulted in a conclusion that would not have been reached without the inadmissible evidence.

Unless the ends of justice require that we review alleged errors asserted for the first time on appeal, we will not respond to issues not presented to the trial court. Rule 5A:18. In his argument before us, for the first time, appellant avers that the petition filed in the Family Court should have been dismissed because, although he did not request a jury trial, he was denied the opportunity to be tried by jury. Consideration of that issue is foreclosed by Rule 5A:18.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded to that court for such further proceedings as the parties may be advised.

Reversed and remanded.


Summaries of

Nelson v. Ajayi

Court of Appeals of Virginia. Alexandria
Sep 29, 1992
Record No. 0665-91-4 (Va. Ct. App. Sep. 29, 1992)
Case details for

Nelson v. Ajayi

Case Details

Full title:MICHAEL NELSON v. BERDONNA NICOLE AJAYI

Court:Court of Appeals of Virginia. Alexandria

Date published: Sep 29, 1992

Citations

Record No. 0665-91-4 (Va. Ct. App. Sep. 29, 1992)