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New DNA tests up in air

February 22, 1999|By DON AINES

CHAMBERSBURG, Pa. - A hearing on whether a man charged with rape will undergo a second set of DNA tests was continued Monday after objections were raised by the Franklin County Public Defender's Office.

Terry A. Boose, 33, of Gardners, Pa., is charged with raping a 28-year-old Delaware woman on an isolated section of the Appalachian Trail in Quincy Township, Pa., on June 3. The initial DNA test, however, failed to provide a match between vaginal swabs taken from the woman and a blood sample taken from Boose.

District Attorney John F. Nelson was seeking a second set of tests, essentially a search warrant for blood and saliva samples from Boose, who is being held in Cumberland County on other charges.

Nelson called Pennsylvania State Police Sgt. James W. Brown, the supervisor for the Chambersburg barrack's criminal investigation unit, to testify. He asked Judge John R. Walker to accept hearsay testimony about how the tests may have been compromised.

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"It's possible the lab samples could have been switched without the hospital personnel's knowledge," Brown said.

Assistant Public Defender Nancy Meyers objected. "That's pure speculation," she told Walker, who sustained the objection.

"The state police better get their act together if they are going to handle evidence that way," Walker said.

Brown, the unit supervisor at the time of the rape, also testified there was a "very small possibility" that blood and other bodily fluids of a person may not provide a DNA match.

"That calls for expert testimony," Myers said in another objection that Walker also sustained.

Myers said the person who drew blood from Boose and the victim should have been called to testify, along with the trooper who received the samples and the crime-lab technician who performed the tests.

Public Defender Robert J. Trambley said he wanted a defense expert witness present to hear the testimony of prosecution expert witnesses. Meyers asked that an expert witness on probable cause be called, but Walker delayed that until later.

Nelson asked that the hearing be continued and Walker scheduled it to resume on March 4.

"It's possible that someone mishandled the samples and made a mistake, but we can't prove that," Nelson said after the hearing.

"Normally, hearsay evidence is admissible in the context of a search warrant," he said.

"I don't know DNA. All I know is what I saw in the O.J. Simpson trial," Walker said during the hearing. He told the attorneys to submit memorandums on current case law involving requests for DNA retesting.

Boose was arrested June 9 in Cumberland County when state police found him in an orchard. The previous day he had fled when a trooper tried to question him about the June 3 rape, the trooper said.

The rape victim identified Boose at an Aug. 31 lineup, although the DNA mismatch was known before that, according to a Dec. 8 hearing on the case.

When Boose was stopped, it was discovered he was wanted on theft and criminal mischief charges in Adams County, according to state police.

While released on bond for the Franklin County rape charge, he is still being held in Cumberland County Prison.

Sam Milkes, an assistant public defender in Cumberland County, said Boose has pleaded guilty to fleeing from police and is awaiting sentencing.

Boose is also awaiting a March trial on burglary and theft charges.

"The allegation is he stole some women's underwear from a residence," Milkes said.

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