Brown v. State

• Citation: 751 P.2d 1078
• Decision Date: 15 March 1988
• Docket Number: No. F-84-94,F-84-94
• Parties: Albert Wesley BROWN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1078

751 P.2d 1078

Albert Wesley BROWN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-94.

Court of Criminal Appeals of Oklahoma.

March 15, 1988.

An appeal from the District Court of Wagoner County; William Bliss, District Judge.

Albert Wesley Brown, appellant, was tried and convicted for the offense of first degree murder in the District Court of Wagoner County, Oklahoma, Case No. CRF-82-92, was sentenced to life imprisonment, and appeals. AFFIRMED.

Jackson M. Zanerhaft, Howard, LaSorsa & Widdows, Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Lana Cohlmia, Legal Intern, Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

The appellant, Albert Wesley Brown, was convicted in the District Court of Wagoner County, Case No. CRF-82-92, of Murder in the First Degree. The trial court sentenced the appellant, in accord with the jury's verdict, to life imprisonment. From this judgment and sentence, the appellant has perfected his appeal to this Court. We affirm.

An opinion was rendered in this matter on August 31, 1987. Subsequently on October 28, 1987, an order was entered withdrawing the opinion. This opinion is filed in lieu of the one withdrawn. See Brown v. State, 744 P.2d 218 (Okl.Cr.1987).

In the late morning of October 31, 1981, the dead body of Earl Taylor was found floating near the shore of Jackson Bay on Fort Gibson Lake. He had been gagged with a red shop cloth. His hands were tied behind his back. His body was weighted down by a large rock. The following morning, before the body was identified, Earl Taylor's father, Joe Taylor, noticed that his son's house lights had been on all day Saturday through Sunday morning. He called the police. When the officers arrived, they found a window had been pried open and the victim's house had been ransacked.

The appellant's girlfriend, Stanna Joe Hale, loaned her car to the appellant at about 7:30 a.m. on Saturday, October 31. When the appellant returned her car in the middle of that afternoon, one of its tires had been replaced with the temporary spare tire.

Kenneth Ede, a chemist with the Oklahoma State Bureau of Investigation, testified that hair found on the gag in the victim's mouth was consistent with the appellant's head hair; that hair found in the trunk of Ms. Hale's car was consistent with the victim's head hair; that fibers found on the window of the victim's home were consistent with fibers from appellant's shirt; and that a soil sample taken from the spare tire of Ms. Hale's car was consistent with the soil near the Gray Oaks Road which runs by Jackson Bay. Mr. Ede further testified that according to scientific studies conducted by Dr. Gaudett in Canada the probability of finding two people having head hair consistent with each other was one in 4,500. Mr. Ede testified that his examination revealed the victim used a hair coloring agent like Grecian Formula. He testified that the fact that the victim colored his hair decreased the probability of finding another person with head hair consistent with that of the victim, but to what extent he did not know. Defense counsel conducted vigorous cross-examination.

For his first assignment of error appellant contends that Mr. Ede's testimony as to the statistical probability of finding two persons with consistent head hair should not have been admitted into evidence. Appellant claims the State failed to present an adequate foundation for this evidence, and that its prejudicial effect outweighs its probative value.

Appellant does not challenge the admissibility of the microscopic hair comparison evidence. See Driskell v. State, 659 P.2d 343 (Okl.Cr.1983). Nor does he contend Mr. Ede was wrong in his conclusions as to the likelihood that the head hair found on the gag in the victim's mouth was his and that the hair found in the trunk of Ms. Hale's car was from the victim. Indeed, appellant argues only that Mr. Ede should not have been allowed to express his conclusion in terms of mathematical probability.

Statistical information for which a proper foundation is laid is admissible if it makes the existence of a consequential fact more or less probable. Plunkett v. State, 719 P.2d 834, 839 (Okl.Cr.1986). In holding that evidence of statistical probability for which a proper foundation is laid is admissible in a criminal trial, we are acutely aware of the serious danger that the evidence will be used improperly. See People v. Collins, 68 Cal.2d. 319, 66 Cal.Rptr. 497, 438 P.2d 33, 36 A.L.R.3d 1176 (1968); State v. Sneed, 76 N.M. 349, 414 P.2d 858 (1966), United States v. Massey, 594 F.2d 676 (8th Cir.1979).

In addition to possible misuse, there is also the very real danger that the probability evidence may have an undue psychological impact on the trier of fact. As one court has observed, "Mathematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in the search for truth, must not cast a spell over him." People v. Collins, 66 Cal.Rptr. at 497, 438 P.2d at 33. This inherent danger in the use of sophisticated mathematical evidence was also noted by the Supreme Court of Minnesota. In a case involving admissibility of virtually the same evidence as in the instant case, that court noted,

Testimony expressing opinions or conclusions in terms of statistical probabilities can make the uncertain seem all but proven, and suggest, by quantification, satisfaction of the requirement that guilt be established "beyond a reasonable doubt". See Tribe, Trial by Mathematics, 84 Harv.Law Review 1329.

State v. Carlson, 267 N.W.2d 170, 176 (Minn.1978).

The court concluded in Carlson that the expert's testimony as to mathematical...