Kennedy v. State, F-79-365

• Decision Date: 03 February 1982
• Docket Number: No. F-79-365,F-79-365
• Parties: John Benjamin KENNEDY, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 971

640 P.2d 971

John Benjamin KENNEDY, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-365.

Court of Criminal Appeals of Oklahoma.

Feb. 3, 1982.

Rehearing Denied March 4, 1982.

An appeal from the District Court of Oklahoma County, Joe Cannon, District Judge.

John Benjamin Kennedy, Jr., appellant, was convicted of Murder in the First Degree in the District Court of Oklahoma County Case No. CRF-78-2768, was sentenced to life imprisonment, and appeals. AFFIRMED.

John C. Forbes and R. Michael Cantrell, Cantrell, Gust & Forbes, Midwest City, Percy Foreman, Foreman & DeGuerin, Houston, Tex., for appellant.

Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., Chief, Crim. Div., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant, John Benjamin Kennedy, Jr., was convicted of Murder in the First Degree in Case No. CRF-78-2768 in the District Court of Oklahoma County. He was sentenced to life imprisonment.

Kennedy was tried for the murder of fifteen-year-old Yvonne Jolene McFaddin. The killing occurred on May 31, 1978, sometime after 8 p. m. and before 8:35 p. m. in Room 207 of the King's Inn Motel at Northwest Tenth and Robinson in downtown Oklahoma City. Earlier that afternoon, a man characterized as McFaddin's pimp, James Thompson, rented the motel room for her to use. At approximately 7 p. m., the victim was observed sitting on Thompson's green car in the parking lot of Eddie's Turf Club near Northwest Ninth and Hudson. State's witness, Scott Allen Terry, observed her talking to a man sitting in a brown Gran Torino and eventually leave with him. Terry made an in-court identification of Kennedy as being the driver of the Gran Torino.

The owner and operator of the motel testified he had seen the victim in the company of a large white male enter Room 207 around 8 p. m. The owner surmised that prostitution was occurring and the police were called. The owner's wife testified that sometime after 8 p. m. she saw a large white man running down the stairs of the motel; shortly thereafter she saw a dark-colored car driven by a man exit quickly from the motel's parking lot.

The motel owner, while working on outside lights, stopped Thompson, who was returning to the motel looking for McFaddin, and told him "to get going". When Thompson went to Room 207 he discovered the door was cracked open and the room was torn apart. He found the victim sitting in a dry bathtub wearing only a T-shirt and a black scarf around her neck. Her face was turning blue and blood was frothing from her mouth. He yelled to the owner for help and the two tried to revive her. The owner noticed a thin wire wrapped around her neck and removed it. McFaddin was declared dead on arrival at a hospital emergency room, and her corpse was taken to the State Medical Examiner's laboratory for an autopsy. The medical examiner found that the cause of death was ligature strangulation and that the nipples on both breasts had been avulsed, appearing to have been chewed away. There was no evidence of sexual intercourse. Investigators found no evidence in the motel room of blood stains or of the avulsed tissue, nor were they able to successfully lift fingerprints other than one identified as Thompson's palm print.

Among other exhibits, the State introduced into evidence items found in the appellant's car in a search conducted on June 22, 1978. Included were a pair of wire cutters and a six-inch piece of stainless steel wire of the same gauge as the stainless steel wire found around the victim's neck. The State also offered extensive bite-mark comparison evidence.

I

In this appeal the appellant challenges the admissibility of scientific and opinion evidence of bite-mark identification of the accused. This is a question of first impression in Oklahoma.

The appellant challenges both the qualifications of the State's expert witnesses and the reliability of bite-mark evidence as an identification technique. He argues that this evidence falls into the category of scientific evidence which has not yet reached the stage of reliability through acceptance by the scientific community. He disputes its reliability-and therefore its relevancy-because there is no "accepted standard" established in the field of bite-mark identification.

Bite-mark comparison is a technique employed in the field of forensic odontology. Currently bite-mark comparison has received evidentiary acceptance in all eight of the jurisdictions in which its admission was sought. ¹

At an in camera hearing the trial court found that the State's witnesses, Dr. Richard Thomas Glass and Dr. Edward E. Andrews, were qualified to testify as experts and to give their opinions on the comparisons between the bite marks and the appellant's dentition.

Dr. Glass, a dentist and pathologist, serves as a consulting forensic odontologist for the Oklahoma Medical Examiner's office. He has been studying human bites and bite marks for the past ten years. He is Chairman and Associate Professor of Oral Pathology at the University of Oklahoma College of Dentistry and Medicine. He has also written an article on animal bite marks which appeared initially in the Journal of Forensic Sciences, as well as articles on other biological topics. His area of expertise also includes specialized structures that occur in the mouth, head and neck, and microorganisms found in the mouth. He is a diplomate of the American Board of Oral Pathology.

Dr. Andrews, a dentist who specializes in prosthodontics and maxillofacial prosthetics, also gives consultations in forensic odontology to the Oklahoma Medical Examiner's office. He has identified between 250 and 300 bodies based solely on their teeth. He is president of the American Society of Forensic Odontology. In the trial of State v. Sager, 600 S.W.2d 541, Mo.App., (1980), he was qualified as a bite-mark expert for the defense. He has worked in eight medical cases in Oklahoma involving bite marks, seven of which were caused by humans. Dr. Andrews has also published two articles in the Journal of Forensic Sciences.

The State presented expert witnesses who described with particularity the procedures and methods followed in photographing the bite marks on the victim, in making impressions and models of the bite marks, in obtaining impressions and preparing casts of the appellant's teeth, and in finding similarities between the bite marks and the accused's dentition.

Richard Reed, chief field agent for the medical examiner's office, testified that he photographed the wounds on the victim's breasts. Reed made one-to-one photographs using a special 200 millimeter medical Nikor lens, which has an extremely flat field, mounted on a Nikormat camera. To insure accuracy, a metric ruler was placed close to the breast wounds. At Dr. Andrews' request, Reed photographed the models which had been made of the appellant's teeth, using a three-to-one scale. Then he made positive and negative overlays of the biting surfaces of the teeth. Reed also made three-to-one black-and-white negatives of color slides he had taken of the breast wounds before the autopsy. Prints made of the wounds on the same scale could then be matched with the overlays made of the teeth.

Dr. Glass testified that he had made dental impressions and models of the appellant's teeth using accepted clinical techniques. During that procedure, he found that Kennedy had a gum disease, gingivitis, and that his teeth were malaligned. Serving as a consultant to the medical examiner's office, Dr. Glass also prepared microscopic slides of injured tissue sections. Using a light-polarizing lens on his microscope, he was able to detect a foreign material in the breast tissue sections which he believed to be calculus, a calcified substance which collects on teeth. He also detected the presence of a birefringent material which can be found in a human's mouth; and a type of bacteria which would not be found outside of the alimentary canal.

Dr. Glass testified that his gross examination findings were that the breasts appeared to have been gnawed, rather than cleanly incised. He said Kennedy had a Class III malocclusion, meaning that the mandible (the lower jawbone) is anterior to the maxilla (the upper jawbone). Dr. Glass stated that with such a malocclusion, a great deal of movement and pushing would be necessary to incise.

Dr. Glass further gave his opinion that the arch form of the bite marks indicated they had been caused by a human mouth.

The court held an in camera hearing to determine whether to admit evidence of Dr. Glass's comparisons between the models of the appellant's teeth and the models of the victim's breasts. At that time, Dr. Glass told the court that his opinion was based on the diameters and the inclinations of the teeth. He added that tests with photographic overlays increase the medical certainty. Additionally, he said that the numerous types of microorganisms present in the wounds were consistent with a finding that the bites had been made by someone who had a significant amount of gingivitis.

The evidence being allowed, Dr. Glass testified he was of the opinion that the models of the appellant's teeth were consistent with the bite marks on the victim's breasts.

The State's other expert witness, Dr. Andrews, described how he used alginate, a generally accepted impression material which has an accuracy within one-thousandth of an inch, to make impressions of the bite marks. From these, stone models were made to produce positives of the breast wounds.

Dr. Andrews testified extensively describing the consistencies he found when comparing the photographic overlays of the appellant's dentition to the bite marks. These photographic comparisons were shown in detail to the jury. He demonstrated forty points of comparison and testified he had found all teeth marks of the appellant to be consistent with the marks on both breasts.

Dr. Andrews, in showing that the outlines of the...