No Relief When Defense Attorney Decides Not To Challenge DNA Expert

The North Carolina Court of Appeals affirmed a conviction, rejected the defendant’s contention that his trial counsel’s decision not to cross-examine the State’s DNA expert over his expressed desire to challenge the evidence merited reversal of his conviction.

The defendant met the 14-year old victim on Facebook. He offered her an opportunity with a  modeling agency. A few days later, she was dropped off by her stepfather at the library. Instead she and the defendant met at a nearby pizzeria.  He took her to a motel and had intercourse with her over a period of several hours. She told her parents what had happened that evening and the crime was reported the next day.

The expert

DNA analyst Aby Moeykens, with the Charlotte Mecklenburg Police Crime Lab, had been a DNA analyst for twelve years and after stating her credentials was accepted without objection as an expert in DNA analysis and forensic DNA analysis. Moeykens testified that she “was asked to analyze a buccal standard from [defendant] and . . . [a] buccal standard from [Rebecca], vaginal swabs, external genitalia swabs, crotch with stains from the underpants, . . . [as well as] fingernail swabs.” “[T]he DNA profile obtained from [defendant] matched the major DNA profile obtained from the vaginal swabs.” Moeykins testified that the probability of selecting another individual who would match the DNA profile was “approximately 1 in 2.54 quadrillion.” Moeykens further testified that defendant’s DNA profile matched the DNA profile obtained from sperm cell fractions taken from Rebecca’s external genitalia, as well as her underwear.

Defendant did not present any evidence.

The court

we consider whether defendant’s direction to his trial counsel to crossexamine the State’s DNA expert on the extent of a mold contamination in the testing laboratory amounted to a tactical decision or a frivolous act…

Denying defendant’s request to compel his trial counsel to examine the State’s DNA expert regarding the contamination reported in the lab’s freezer, the trial court made the following remark: “[Defense counsel] has an obligation not to — as he indicated, I think I’ve alluded to and I certainly agree with him, that raising an issue that is not an issue just when you know it’s not an issue is improper.” This reasoning and ruling by the trial court in the instant case is in line with the Court’s reasoning in Jones. 220 N.C. App. at 395, 725 S.E.2d at 417 (“Nothing in Ali or our Sixth Amendment jurisprudence requires an attorney to comply with a client’s request to assert frivolous or unsupported claims. In fact, to do so would be a violation of an attorney’s professional ethics[.]”).

On the record before us, it appears that the proposed challenge to the DNA analysis performed by the Charlotte Mecklenburg Police Crime Lab on the basis of contamination was not a challenge rooted in relevant facts. Rather, the matter was properly considered one which is governed by rules of professional ethics for attorneys. The trial court properly denied defendant’s request to compel trial counsel to pursue a line of questioning to elicit irrelevant facts. See id. Accordingly, defendant’s argument is overruled.

And

Even presuming the trial court’s failure to resolve the impasse between trial counsel and defendant in defendant’s favor amounted to a violation of defendant’s Sixth Amendment right to counsel, the other overwhelming evidence of defendant’s guilt on the two counts of statutory rape of a person thirteen, fourteen, or fifteen years old and two counts of taking indecent liberties with a child would render even the constitutional error harmless beyond a reasonable doubt.

The court also held that the attorney’s decision to challenge a juror that the defendant wanted seated did not provide a basis for relief. (Mike Frisch)