Johnson v. Com.

• Decision Date: 16 December 1999
• Docket Number: No. 96-SC-0577-MR.,96-SC-0577-MR.
• Citation: 12 S.W.3d 258
• Parties: Terry M. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

Page 258

12 S.W.3d 258

Terry M. JOHNSON, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-0577-MR.

Supreme Court of Kentucky.

December 16, 1999.

Rehearing Denied March 23, 2000.

Daniel T. Goyette, Louisville, Bruce P. Hackett, Deputy Appellate Defender of the Jefferson District, Louisville, for Appellant.

A.B. Chandler, III, Attorney General, Frankfort, Perry T. Ryan, Criminal Appellate Division, Office of Attorney General, Frankfort, for Appellee.

Opinion of the court by Justice COOPER.

Sometime prior to 12:30 p.m. on June 12, 1995, AppellantTerry Johnson's father, Stanford Johnson, was strangled to death in their home.A Jefferson Circuit Court jury convicted Appellant of his father's murder and sentenced him to imprisonment for life.He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b).The primary issue on appeal is whether the testimony of a hair analysis expert should have been suppressed.Appellant also asserts that the Commonwealth should not have been granted a continuance after the completion of jury selection, that the jury was improperly instructed on the offense of murder, and that a mistrial should have been declared after a juror and a deputy sheriff engaged in an ex parte conversation while the jury was deliberating its verdict.

I.FACTS.

Appellant and his father shared a residence in Jefferson County, Kentucky.Between 12:30 and 12:45 p.m. on Monday, June 12, 1995, Appellant telephoned his cousin, Lisa McDowell, and told her that he thought his father was dead.When McDowell inquired whether the victim had been sick, Appellant replied, "I don't know, I haven't been here for two days."At 12:56 p.m., Appellant telephoned the Jefferson County 911 emergency service and advised that he had found his father lying on a couch and that, while attempting to arouse him, he noticed that the victim's body was cold.When Lisa McDowell arrived at the residence, she immediately noticed cuts and abrasions on the victim's body which she had not noticed when she last saw him several days before.It was subsequently determined that the victim had been strangled to death.

Because the residence was equipped with security doors and there was no evidence of forced entry, Appellant became an immediate suspect.A blood spot found on the victim's clothing was consistent with Appellant's blood type, which is found in only three of every one thousand persons.Hairs were found between the fingers of the victim's left and right hands.The hair found in the victim's right hand was subsequently determined to have the same characteristics as hair samples obtained from Appellant's head.The hair found in the victim's left hand was determined to have the same characteristics as hair samples obtained from the victim's head.While obtaining hair and blood samples from Appellant, Dr. William Smock, the assistant medical examiner, noticed that Appellant had a ¼ inch abrasion across the bridge of his nose and numerous scrapes, contusions, and abrasions on his neck, left shoulder, left upper chest, right arm, and right knee, all of which appeared to be of recent origin.Appellant told Dr. Smock that he sustained those injuries while changing a flat tire.Dr. Smock testified at trial that he had never before seen a patient who had sustained such injuries while changing a tire.Four witnesses testified that they noticed no marks or bruises on Appellant during their respective encounters with him between 4:30 p.m. and 11:30 p.m. on June 11.

Appellant told the police that his father was "hard to get along with," that he and his father had had problems in the past, and they had argued a great deal.He denied ever hitting his father, but claimed that his father once "took a slug" at him.Appellant further told the police that he left home at about 4:00 or 5:00 p.m. on June 11 and did not return to the house until about 6:00 or 6:30 a.m. the next morning.(A neighbor testified that she saw Appellant in the back yard of the house at 12:00 a.m. on June 12.)Upon returning home, Appellant noticed nothing unusual and went to bed.He awoke at about 11:00 or 11:30 a.m. and went to a restaurant and then to a department store.When he returned home at about 12:30 or 12:45 p.m., he found his father dead.Appellant was the beneficiary of his father's $15,000 life insurance policy.

An autopsy revealed multiple injuries to various parts of the victim's body, including a fracture of the top vertebra of the neck and a fracture of the hyoid bone, which is located deep within the neck.The cause of death was manual strangulation.

II.HAIR COMPARISON EVIDENCE.

Appellant filed a motion in limine to suppress evidence that the hair found between the fingers of the victim's right hand had the same characteristics as hair samples removed from Appellant's head.This fact had been determined by microscopic comparison performed by a serologist at the Kentucky State Police Crime Laboratory.After determining that evidence of hair analysis by microscopic comparison has been routinely admitted into evidence in this jurisdiction for many years, the trial judge first overruled the motion without an evidentiary hearing.However, the trial judge subsequently allowed Appellants to introduce evidence in support of his motion by way of avowal.Appellant then proffered evidence consisting of the published opinion in the case of Williamson v. Reynolds,904 F.Supp. 1529(E.D.Okla.1995), in which a federal district judge in Oklahoma concluded that hair analysis by microscopic comparison no longer satisfies the test of reliability enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993), and an inconclusive cross-examination of the Commonwealth's expert serologist, who denied any knowledge of the studies and statistics cited in the Williamson opinion.After considering this evidence, the trial judge again overruled the motion to suppress.

Prior to the United States Supreme Court's decision in Daubert, supra, the test for admissibility of scientific evidence was whether the scientific method or theory at issue had been generally accepted in the relevant scientific community.Frye v. United States,293 F. 1013(D.C.Cir.1923);Harris v. Commonwealth, Ky., 846 S.W.2d 678(1992).Under Daubert, adopted by this Court in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100(1995), overruled on other grounds, Fugate v. Commonwealth, Ky., 993 S.W.2d 931(1999), the Frye test of general acceptance is but one factor to be considered in determining the admissibility of scientific evidence under FRE (or KRE) 702.Other factors include whether the method or theory can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation.Daubert, supra,509 U.S. at 592-95, 113 S.Ct. at 2796-97.

Daubert also recognized that some scientific methods, techniques and theories are so firmly established as to be proper subjects of judicial notice pursuant to FRE 201(b)(2).Daubert, supra,509 U.S. at 592 n. 11, 113 S.Ct. at 2796 n. 11.Thus, in United States v. Martinez,3 F.3d 1191, 1197(8th Cir.1993), cert. denied,510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697(1994), it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of the reliability and validity of the scientific method, technique or theory at issue.Courts are "right to admit or exclude much evidence without `reinventing the wheel' every time by requiring the parties to put on full demonstrations of the validity or invalidity of methods or techniques that have been scrutinized well enough in prior decisions to warrant taking judicial notice of their status."3 C. Mueller and L. Kirkpatrick, Federal Evidence§ 353, at 657 (2d ed.1994).A substantial consensus in that regard has emerged in recent years.E.g., United States v. Beasley,102 F.3d 1440(8th Cir.1996), cert. denied,520 U.S. 1246, 117 S.Ct. 1856, 137 L.Ed.2d 1058(1997);United States v. Booker,70 F.3d 488, 490 n. 5(7th Cir.1995), cert. denied,517 U.S. 1111, 116 S.Ct. 1334, 134 L.Ed.2d 484(1996);In re Paoli R.R. Yard PCB Litig.,35 F.3d 717, 744 n. 10(3d Cir.1994), cert. denied,513 U.S. 1190, 115 S.Ct. 1253, 131 L.Ed.2d 134(1995);United States v. Jakobetz,955 F.2d 786, 799-800(2d Cir.1992), cert. denied,506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63(1992);State v. Coon,974 P.2d 386(Alaska1999);Moore v. State,323 Ark. 529, 915 S.W.2d 284, 293(1996);Ford Motor Co. v. Ammerman,705 N.E.2d 539, 551(Ind.Ct.App.1999);State v. Witte,251 Kan. 313, 836 P.2d 1110, 1121(1992);Schultz v. State,106 Md.App. 145, 664 A.2d 60, 71(1995);State v. Pennington,327 N.C. 89, 393 S.E.2d 847(1990);State v. O'Key,321 Or. 285, 899 P.2d 663, 673 n. 8(1995);DiPetrillo v. Dow Chem. Co.,729 A.2d 677(R.I.1999);Wilt v. Buracker,191 W.Va. 39, 443 S.E.2d 196(1993), cert. denied,511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867(1994).

We recently held in Fugate v. Commonwealth, supra, that the scientific reliability of the RFLP and PCR methods of DNA testing has been sufficiently established that a Daubert hearing is no longer required before such evidence is admissible at trial.For other types of scientific methods and techniques which have been recognized as reliable by our courtsseeCommonwealth v. Wirth, Ky., 936 S.W.2d 78(1996)(breath testing to determine blood alcohol content);Bartlett v. Commonwealth, ex rel. Calloway, Ky., 705 S.W.2d 470(1986)andPerry v. Commonwealth, ex rel. Kessinger, Ky ., 652 S.W.2d 655(1983)(HLA blood typing to determine paternity);Garr v. Commonwealth, Ky., 463 S.W.2d 109(1971), cert. denied,403 U.S. 910, 91 S.Ct. 2219, 29 L.Ed.2d 687(1971)(fiber analysis);Morris v. Commonwealth,306 Ky. 349, 208 S.W.2d 58(1948)...