790 F.2d 1378 (9th Cir. 1986), 84-5173, United States v. Gwaltney

Docket Nº:84-5173.
Citation:790 F.2d 1378
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George Michael GWALTNEY, Defendant-Appellant.
Case Date:June 02, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1378

790 F.2d 1378 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

George Michael GWALTNEY, Defendant-Appellant.

No. 84-5173.

United States Court of Appeals, Ninth Circuit

June 2, 1986

Argued and Submitted Jan. 9, 1986.

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[Copyrighted Material Omitted]

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Richard B. Kendall, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

John J. Cleary, Cleary & Sevilla, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, FARRIS, and NORRIS, Circuit Judges.

FARRIS, Circuit Judge:

At about 5:00 p.m. on January 11, 1982, twenty-three-year-old Robin Bishop departed Los Angeles driving alone to her home in Las Vegas. At 9:23 p.m. on the same date, defendant George Michael Gwaltney, then an officer with the California Highway Patrol, reported by radio that he had discovered a woman's body beside a frontage road just off Interstate 15 some 30 miles northeast of Barstow, California. Robin Bishop had been killed by a single bullet that entered the back of her head. Bruises on her wrists indicated that she had been handcuffed ten to twenty minutes before she died. Autopsy revealed fresh semen in her vaginal cavity.

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Two state-court murder trials in which Gwaltney was defendant culminated in hung juries. A federal indictment was thereafter returned charging that Gwaltney, acting under color of law, willfully assaulted and shot Bishop, thereby causing her death and violating her constitutionally protected right not to be deprived of life or liberty without due process of law. 18 U.S.C. Sec. 242. Gwaltney pleaded not guilty and the matter proceeded to trial. On May 10, 1984, after six weeks of trial and one day of deliberation, a jury found Gwaltney guilty as charged. On June 25, 1984 the district court entered judgment on the verdict and committed Gwaltney to prison for a period of ninety years, "the defendant to become eligible for parole pursuant to 18 U.S.C. 4205(b)(1) [after] serving a minimum term of 30 years." Gwaltney filed a timely notice of appeal on July 2, 1984. Fed.R.App.P. 4(b). He challenges the conviction and the sentence.

The district court had original jurisdiction pursuant to 18 U.S.C. Sec. 3231. Jurisdiction in this court is based on 28 U.S.C. Sec. 1291.

THE CONVICTION

I.

At trial the government adduced considerable evidence concerning the characteristics of defendant's semen, the semen removed from Bishop's vaginal cavity during autopsy, semen stains found on the back seat of the patrol car driven by Gwaltney on the night of the murder, and semen stains found on the blue jeans worn by Bishop on the night of her death. Analysis of the semen removed from Bishop's vaginal cavity revealed that the donor had type A blood and secreted his typing antigen into his semen. It is undisputed that some 29% of the male population are type A secretors. Dried semen found on the back seat of the patrol car was also found to have been donated by a type A secretor, as was the dried semen found on Bishop's blue jeans. An enzyme found in the semen of 40% of the population, PGM 1+1+, was also identified in the semen stain found on the back seat of the patrol car. According to undisputed expert testimony, the occurrence of this enzyme is independent of blood type and secretor status. Analysis of a semen sample taken from Gwaltney revealed that he is a type A secretor exhibiting the PGM 1+1+ enzyme. Additionally, Dr. Edward Blake, the prosecution's forensic serologist, testified that using a relatively new procedure known as an immunobead assay, he detected anti-sperm antibodies in a sample of Gwaltney's semen, as well as in the semen stains found on Bishop's jeans and on the back seat of the patrol car. According to the testimony at trial, anti-sperm antibodies occur in less than 5% of the male population.

Gwaltney contends that no evidence concerning detection of anti-sperm antibodies should have been admitted for any purpose as the government failed to demonstrate that the principle upon which such evidence was based was " 'sufficiently established to have gained general acceptance in the particular field to which it belongs.' " United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978), quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Additionally, he contends that the trial court erred in admitting statistical evidence concerning the percentage of the population sharing Gwaltney's seminal characteristics as such evidence was confusing to the jury and unduly prejudicial.

A.

The general test regarding the admissibility of expert testimony is whether the jury can receive "appreciable help" from such testimony. United States v. Solomon, 753 F.2d 1522, 1525 (9th Cir.1985). See also United States v. Awkard, 597 F.2d 667, 669 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979) and 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 383 (1979); United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973). Testimony concerning the results of a fundamentally unreliable test procedure is of scant value to a jury. See generally United States v. Downing, 753 F.2d 1224, 1237-

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39 (3d Cir.1985). The trial judge "has wide discretion in determining whether particular scientific tests are sufficiently reliable to permit expert testimony based upon their results." United States v. Bowers, 534 F.2d 186, 193 n. 7 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 311 (1976). See also Solomon, 753 F.2d at 1525 ("The necessary balancing of the probative value of the evidence against its prejudicial effect is committed to the discretion of the trial court."). Her decision to admit evidence concerning anti-sperm antibodies will not be disturbed unless "manifestly erroneous." See Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). See also Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590 (1974); United States v. Falsia, 724 F.2d 1339, 1341 (9th Cir.1983).

We agree that as the immunobead assay has yet to gain general judicial recognition, "the proponent of such evidence has the burden of laying a proper foundation showing the underlying scientific basis and reliability of the expert's testimony." United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976). See also Falsia, 724 F.2d at 1341 ("The burden of laying a proper foundation showing the underlying scientific basis and reliability of expert testimony is on the proponent of such evidence."). Having reviewed in meticulous detail the transcripts of the pretrial hearing on Gwaltney's motion to exclude and the government's lengthy offer of proof at trial, we conclude that the government presented ample evidence that the immunobead assay is sufficiently reliable to warrant admission of Dr. Blake's testimony concerning the detection of anti-sperm antibodies.

Gwaltney did not contest the validity of the antibody theory expounded by the government's experts. The testimony of Dr. Blake, together with that of Dr. Richard Bronson, established the scientific basis underlying the immunobead assay procedure. To the extent Gwaltney complains of the application of the procedure in this instance, he does so in the wrong forum. Criticism of the application of a valid test in a particular instance bears on weight, not admissibility. Bowers, 534 F.2d at 193-94. Gwaltney had ample opportunity to cross-examine the government's experts concerning the controls employed by Dr. Blake and to present conflicting expert testimony. The jury was properly instructed to give the expert testimony such weight as it deserved.

B.

Gwaltney's contention that the government impermissibly established his identity "by mathematical formula," is without merit. He "has no quarrel with the statistical evidence that he was part of the 29% of the population who are Type A secretors or that his PGM 1 plus 1 [sic] group constitutes 40% of the population." Instead, he contends that the court erred in admitting testimony that these independent characteristics occur together in only 12% of the male population. While "the interjection into the criminal trial process of sophisticated theories of mathematical probability raises a number of serious concerns," United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir.1982), Gwaltney has not suggested how simple multiplication of the percentages of the population sharing the seminal characteristics exhibited by Gwaltney was so potentially confusing or misleading as to require exclusion. Statistical evidence is not inadmissible per se. See, e.g., United States v. Kennedy, 714 F.2d 968, 971 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984); Scott v. Perini, 662 F.2d 428, 430 (6th Cir.1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982). Any potential prejudice was not so pronounced as to render admission of the testimony an abuse of discretion, particularly in light of the instruction given by the trial judge concerning the permissible use

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of this evidence. 1 Nor is there any record support for Gwaltney's implication that the government employed the statistics in an attempt "to assign a number to the probability of guilt or innocence." People v. Collins, 68 Cal.2d 319, 330, 438 P.2d 33, 40, 66 Cal.Rptr. 497, 504 (1968). The prosecution did not argue, or even obliquely suggest, that the percentage of the population sharing the seminal characteristics exhibited by Gwaltney could in any way be used to predict the "odds" that Gwaltney was guilty.

Gwaltney further contends that reversal is warranted because the...

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