People v. Vettese

• Decision Date: 03 August 1992
• Docket Number: Docket No. 123271
• Citation: 489 N.W.2d 514,195 Mich.App. 235
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Robert VETTESE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 514

489 N.W.2d 514

195 Mich.App. 235

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Robert VETTESE, Defendant-Appellant.

Docket No. 123271.

Court of Appeals of Michigan.

Submitted July 7, 1992, at Detroit.

Decided Aug. 3, 1992, at 9:10 a.m.

Released for Publication Oct. 5, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., Robert J. Berlin, Chief Appellate Lawyer, and Richard J. Goodman, Asst. Pros. Atty., for the People.

John D. Lazar, Royal Oak, for defendant-appellant.

Before MURPHY, P.J., and SHEPHERD and EVELAND, ^* JJ.

SHEPHERD, Judge.

Following a jury trial, defendant was convicted of three counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), one count of breaking and entering, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and one count of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. Defendant was sentenced to concurrent prison terms of thirty to sixty years for each of the CSC I convictions and ten to fifteen years each for the breaking and entering and unarmed robbery convictions. Defendant appeals as of right, and we affirm.

Defendant's convictions arose out of events that occurred in the early morning hours of May 10, 1988, in the victim's house in Warren. The victim testified that she was awakened at approximately 3:00 a.m. by a man standing next to her bed. The man knocked off her glasses, put his hand over her eyes, and turned off the light. The victim testified that just before he knocked off her glasses, she recognized her assailant as her former baby-sitter's boyfriend. The victim testified that she felt something sharp in her side and that defendant put a pillow over her face and forced her to put her hands to her sides. After completing the sexual assault, the assailant left the bedroom and ran out the front door of the house, taking the victim's purse that was on the dining room table.

Defendant first argues that the trial court committed error requiring reversal by permitting Glen Moore, a crime laboratory scientist with the Michigan State Police, to testify as an expert in the field of hair analysis regarding a comparison of hair samples. At trial, Moore testified, over a defense objection, that he analyzed several hairs taken from the victim's bedsheets and that one of the hairs was similar in all respects to a pubic hair taken from defendant and could have come from defendant. The expert testified that both sets of pubic hair came from a Caucasian with a Mediterranean background. However, the expert was unable to say with certainty that defendant was the source of the hair or what percentage of the subgroup population might be the source.

Defendant urges us to consider Judge Peterson's forceful dissent in People v. Kosters, 175 Mich.App. 748, 757-776, 438 N.W.2d 651 (1989), lv. gt'd, 434 Mich. 900, 453 N.W.2d 542 (1990), vacated and lv. den., 437 Mich. 937, 467 N.W.2d 311 (1991). In Kosters, the defendant was convicted of sexually molesting his young son and daughter. There, a majority of this Court held that evidence comparing a sample of the defendant's pubic hair with pubic hairs that were found on the daughter's diaper immediately after the defendant's admitted visitation with her was admissible under MRE 401 because it tended to connect the defendant with the crime.

In his dissent, Judge Peterson argued that the pubic-hair evidence should have been excluded under MRE 702, MRE 401 and MRE 403. First, he argued that even if the hair comparison evidence satisfies the test adopted from People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), and Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013 (1923), relative to allowing an expert to testify concerning his findings or opinion, the expert was limited to describing the hairs as being Caucasian pubic hairs and could not testify concerning whether the hairs could or might be from the defendant, because such testimony was not necessary to help a jury understand the evidence under MRE 702. Under the Davis- Frye rule, novel scientific evidence must be shown to have gained the general acceptance of the particular field in which it belongs to be admissible at trial. People v. Young, 418 Mich. 1, 17-18, 340 N.W.2d 805 (1983), after remand, 425 Mich. 470, 391 N.W.2d 270 (1986).

Judge Peterson also argued in opposition to various panels of this Court that had admitted hair-matching evidence under MRE 401. See People v. Horton, 99 Mich.App. 40, 297 N.W.2d 857 (1980); People v. Goree, 132 Mich.App. 693, 349 N.W.2d 220 (1984); People v. Furman, 158 Mich.App. 302, 404 N.W.2d 246 (1987). In Kosters, Judge Peterson argued that the evidence in question suggests neither a greater nor a lesser probability that the hairs were from the defendant, because no evidence of probability was shown. Moreover, even if the expert testimony had any relevance, Judge Peterson contended that it should be excluded under MRE 403, because its probative value was substantially outweighed by the prejudicial effect of superficial scientific testimony.

In their respective dissents to the Supreme Court's order vacating its previous order granting leave to appeal, Justices Cavanagh and Levin agreed with Judge Peterson that it was error to admit the hair-matching evidence. Kosters, supra, 437 Mich. at 937-952, 467 N.W.2d 311. Justice Cavanagh argued that the hair-matching evidence was inadmissible because the expert testimony was irrelevant and improper and because the prosecutor's distortion and misrepresentation of the nature of the evidence during closing argument may have prejudiced the defendant and influenced the verdict. Justice Cavanagh stated:

The expert's testimony thus lacked any significant probative value for purposes of identifying the defendant as the source of the disputed hairs. See MRE 401. Because, on the basis of the expert's testimony, it is conceivable that thousands of individuals in the local area might have produced the hairs, this evidence established only an infinitesimally small possibility that the defendant and the abuser were one and the same individual. Any minuscule probative value such evidence might have would clearly be outweighed by the unfair prejudicial effect. See MRE 403. [Id. at pp. 939-940, 467 N.W.2d 311].

In arguing that the evidence lacked any significant probative value, Justice Cavanagh noted that the expert witness could not provide "any meaningful statistical grouping for the jury" and could only arrive at "the meaningless conclusion that the disputed hairs might have come from defendant, just as they might have come from any other Caucasian." Emphasis in original; id. at p. 942, 467 N.W.2d 311.

More importantly, however, Justice Cavanagh found that the "jury may have vested this evidence with undue weight," owing to the prosecutor's misleading and distorted presentation of the hair-analysis evidence. During closing argument, the prosecutor argued:

[C]ould it be that somebody else has pubic hair with a similar characteristic to that? Yes, it's possible, but it's not likely. Not likely, not likely, not likely, not likely, not likely, not likely. Seven times.

Add it all up. Is it possible that this could be somebody else's pubic hair other than Elroy Kosters? It's possible. How likely? We don't know. There are no numbers for that sort of thing. [Id.]

In his dissent, Justice Levin agreed with Justice Cavanagh that the hair-sample evidence was "pseudoscientific evidence that might very well have misled the jury." Id. at p. 952, 467 N.W.2d 311.

In the instant case, we must conclude, as have previous panels of this Court that have addressed the question of the admissibility of hair-matching evidence offered by an expert, that the trial court's admission of this type of evidence did not constitute error requiring reversal. See People v Hayden, 125 Mich.App. 650, 658-659, 337 N.W.2d 258 (1983). First, microscopic hair analysis satisfies the Davis- Frye test for admissibility of scientific opinion testimony. People v. Watkins, 78 Mich.App. 89, 95-96, 259 N.W.2d 381 (1977).

Second, the hair-matching evidence constitutes relevant evidence under MRE 401. In this case, the testimony that the pubic hair found in the victim's bed was similar in all relevant respects to the defendant's pubic hair has probative value, because it places defendant within the group of suspects that could have committed the crimes and thereby makes it more probable than not that defendant was the perpetrator. In finding that this evidence satisfies MRE 401, we note that it is not necessary to provide evidence of degrees of probability, as Judge Peterson contended. The fact that defendant was not excluded from the class of possible suspects suffices to show that the evidence is relevant and is entitled to some weight by the jury, even though the expert did not positively identify defendant as the source of the pubic hair found in the victim's bedsheets. Equally, we note that this type of evidence could also be relevant to exclude a person as a possible suspect in a case. See, e.g., State v. Acklin, 317 N.C. 677, 346 S.E.2d 481 (1986), where the Supreme Court of North Carolina found prejudicial error requiring a new trial in a rape and kidnapping prosecution where the trial court refused to admit laboratory reports showing that pubic hair and semen found on a victim were not attributable to the defendant.

Further, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice under MRE 403. In this case, there was substantial, if not overwhelming, evidence of defendant's guilt. The victim identified defendant as the perpetrator. Although the victim saw her assailant for just one second, she immediately recognized him as her baby-sitter's former boyfriend, who lived down the street from her. Further, defendant owned a blue jean jacket and black leather gloves similar to what the...