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State v. Peek5/3/2000
ally assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.
Tenn. R. Evid. 702; see also McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 264 (Tenn. 1997). Scientific or technical evidence, like all evidence, must first be relevant to a fact at issue in the case. See Tenn. R. Evid. 401, 402. If relevant, scientific or technical evidence must also meet the requirements of Rule 702.
Here, the defendant does not argue the relevance of the evidence but only that Agent Minor was not qualified by "knowledge, skill, experience, training, or education." Id. Rule 702. The expert, Agent Minor, testified that he had spent the past seven years in the DNA analysis unit of the crime laboratory of the Tennessee Bureau of Investigation; had both a Bachelor of Science and a Master of Science in Biology; had attended schools at the FBI Academy in Forensic Serology; and had studied bloodstain analysis methods, DNA typing methods, laboratory applications of DNA typing methods and advances aspects of DNA typing methods. His testimony concerning statistical analysis of DNA evidence was based on reliable FBI and TBI data. Agent Minor also testified that he works closely with Dr. Kasselberg, an eminent professor in the Department of Cell Biology at Vanderbilt University. Agent Minor stated that he had testified some twenty times concerning DNA analysis and DNA issues. Agent Minor was fully qualified by both education and experience in the field and his testimony was illuminating and thoughtful on a difficult subject. We conclude that the requirements of Rule 702 were fully satisfied, and that the trial judge's admission of Agent Minor as an expert witness was not an abuse of discretion. This issue is without merit.
VI. PROSECUTORIAL MISCONDUCT
In his sixth issue, the defendant argues that the prosecutor committed prosecutorial misconduct in his opening statement by becoming a witness himself and, additionally, by commenting on the fact that the defendant could not call a witness to dispute the general reliability of DNA evidence today.
When this court reviews allegations of prosecutorial misconduct, we must determine whether such conduct could have affected the verdict to the prejudice of the defendant. See Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976) (citing Harrington v. State, 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965)). Factors relevant to that determination include:
1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the record.
5. The relative strength or weakness of the case.
As to the prosecutor's becoming a witness, the defendant asserts that the prosecutor testified to the fact that he was an expert in DNA analysis. The defendant points to no specific statement in the record to support this allegation and we find none. The defendant's reliance on State v. Smith, 803 S.W.2d 709 (Tenn. Crim. App. 1990), is misplaced since in that case the prosecutor took part in a demonstration, yet because of his status, he was not subject to cross-examination. In this case, the opening statement of the prosecutor appropriately discussed the importance of DNA evidence to the State's case. The State's expert witness was fully cross-examined by the defens
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