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Rivera v. State10/30/1992
lied infallibility with respect to DNA testing, and its conclusion was that juries dealing with such complex technology might give undue weight and deference to such evidence. In Pearson v. State, 811 P.2d 704 (Wyo. 1991), this court was concerned with a claim of error because of a statistical argument by the prosecutor. We found no error in that case, but we did note that the claim related to argument, not evidence.
The expert witness at Rivera's trial testified that the probability of duplication based upon his test results would be one in 250,000, a marked difference from the one in thirty-three billion involved in Schwartz. Nevertheless, we consider this claim of error in light of Stephens, 774 P.2d 60. Our conclusion is that, at some level, the statistical probability could be perceived as an opinion by the expert that the accused is guilty. At least, it would be possible for the jury to draw that inference from statistical probabilities associated with the DNA evidence alone. We, therefore, believe the better practice in Wyoming should be to not refer to the statistical probability of duplication when introducing DNA test results.
In this particular instance, the DNA evidence was corroborative of the testimony of BJL. The corroboration went to both identity and the fact of penetration. We are satisfied, however, that the case presented by the State was sufficiently strong that the testimony as to probability of duplication, if it were identified as error, constituted only harmless error.
Rivera next contends his constitutional right not to be twice placed in jeopardy was violated because as to each of the victims he was charged with sexual assault and with taking indecent liberties with a minor. We repeatedly have noted the three-fold impact of the double jeopardy clause. We have said that it prohibits a second prosecution for the same offense after an acquittal; a second prosecution for the same offense after a conviction; and multiple punishments for the same offense. Birr v. State, 744 P.2d 1117 (Wyo. 1987), cert. denied, 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990); Tuggle v. State, 733 P.2d 610 (Wyo. 1987); Garcia v. State, 777 P.2d 1091 (Wyo. 1989). In this case, we are concerned with the third aspect of the protection against double jeopardy, that is multiple punishments for the same offense.
We already have noted that, as to each victim, Rivera was charged with violation of §§ 6-2-302(a) and 14-3-105. These statutes define different crimes. McArtor v. State, 699 P.2d 288 (Wyo. 1985). They are intended to suppress different evils; an acquittal and conviction under one does not prevent prosecution under the other. Goodman v. State, 601 P.2d 178 (Wyo. 1979). In Baum v. State, 745 P.2d 877 (Wyo. 1987), we held there is no violation of a defendant's fundamental right to not be placed twice in jeopardy under the Fifth Amendment to the Constitution of the United States or under art. 1, § 11 of the Constitution of the State of Wyoming when conviction and punishment on two counts occurs even though both acts were committed during the same encounter with the victim. Under two separate statutes, two separate criminal acts can be charged, tried, and punished.
Our rule is like that articulated in People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840 (1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1658, 29 L.Ed.2d 136 (1971), in which the court held that two or more distinct offenses may emanate from the same transaction or act, and the rule that a person cannot be put twice in jeopardy for the same offense is not applicable where two separate and distinct crimes are committed by one and the same act. In Hamill v. State, 602 P.2d 1212 (Wyo
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