Simmons v. State4/28/2000
of all these stab wounds would be painful. I think cutting a 30 inch hole, you know, it may be about a 20 inch hole extending into the abdomen would be painful. I think that just the slices through the genitals and the anus would be painful. I think cutting through the muscles and fat of the back and separating the buttocks would be painful." (R. 697-98.)
Many of the issues which Simmons raises on appeal were not presented to the trial court. The failure to raise these claims at trial, however, does not prevent our review of these issues because Simmons was sentenced to death. Any claim of prejudice with regard to these claims does weigh against Simmons, because they were not raised to the trial court. See Burgess v. State, [Ms. CR-94-0475, December 18, 1998] ___ So.2d ___ (Ala.Cr.App. 1998), rev'd on other grounds, [Ms. 1980810, January 28, 2000] ___ So.2d ___ (Ala. 2000); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), aff'd, 577 So.2d 531 (Ala. 1991), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).
Moreover, Rule 45A, Ala.R.App.P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
Finally, we recognize, as we stated in Dunaway v. State, 746 So.2d 1021, 1027 (Ala.Cr.App. 1998), aff'd, 746 So.2d 1042 (Ala. 1999):
"`This plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."' United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting [in turn] United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982))."
I.
On remand, the trial court conducted a hearing to determine the admissibility of the DNA population frequency statistical evidence. Larry Huys, a forensic serologist for the Birmingham laboratory of the Alabama Department of Forensic Sciences, testified that the Department developed a database from the general population of the State of Alabama, consisting of samples for 100 Caucasians and 100 African- Americans. This Alabama database is then compared to other databases from around the country to determine that the characteristics commonly noticed in the Alabama database also occurred frequently in other population databases. According to Huys, the characteristics noticed in the Alabama population are similar to characteristics found in other states's populations. Huys testified that his department had been using this procedure for approximately 10 years. Additionally, the Alabama database has been examined by an independent expert, who found no errors in the database or methodology. Huys testified that the statistical methods he used to calculate the DNA match were recommended by the National Research Council and were generally accepted in the scientific community. Moreover, Huys stated that before the results of a statistical analysis of DNA evidence could be published in a report two analysts had to independently obtain the same result. Huys stated that no errors were found in the statistical calculations in this case.
The trial court in its order stated: "I am convinced to a certitude that the DNA population frequency statistical evidence referenced in trial is reliable, relevant, and admissible." (C.R. on remand 25.) We agree. Based on the evidence presented, the trial court
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