Lewis v. State

• Decision Date: 06 August 1987
• Docket Number: 01-86-0102-C,Nos. 01-86-0101-C,01-86-0104-CR,01-86-0103-C,s. 01-86-0101-C
• Citation: Lewis v. State, 737 S.W.2d 857 (Tex. App. 1987)
• Parties: Reginald J. LEWIS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 857

737 S.W.2d 857

Reginald J. LEWIS, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-86-0101-CR, 01-86-0102-CR, 01-86-0103-CR, 01-86-0104-CR.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 6, 1987.

Rehearing Denied Sept. 17, 1987.

Virgie Lemond Mouton, Houston, Donald W. Bankston, Richmond, for appellant.

Sam W. Dick, Fort Bend, Asst. Dist. Atty., Richmond, Bryan K. Best, Fort Bend, Asst. Dist. Atty., Richmond, for appellee.

Before WARREN, HOYT and DUNN, JJ.

OPINION

WARREN, Justice.

Appellant was indicted for the murder of four members of his family; the four causes were consolidated for trial. A jury found him guilty and assessed punishment at 99 years imprisonment in each cause.

In seven points of error, appellant claims that:

(1) the court erroneously admitted into evidence, over objection, the results of a blood-spatter analysis by Herbert Leon MacDonnell;

(2) the trial court erred in overruling appellant's motion to suppress and in admitting portions of his written statement, because it was the product of an illegal arrest;

(3) the evidence is insufficient to sustain each murder conviction; and

(4) the prosecutor's jury argument was outside the permissible limits and violated appellant's right to due process.

In the early morning hours of February 1, 1985, appellant awakened his neighbors in Missouri City, in Fort Bend County, by loudly knocking and screaming at their front door. Appellant told them that his house was on fire. Keith Sherrod accompanied appellant to his house while Sherrod's mother, Ann Parker, called the fire department. Sherrod's stepfather, Edward Parker, dressed and followed Sherrod and appellant.

Sherrod, Parker, and Nathaniel Southern, another neighbor, discovered the bodies of appellant's parents and his two brothers in the Lewises' house. The body of Henry Lewis Sr., appellant's father, was found burning in a hallway. Investigators later determined that Lewis Sr. had been shot twice, stabbed, and beaten with a blunt, heavy object. Henry Lewis Jr. had been shot once in the head, and lay dead on a couch. Mary Lewis and Byron Lewis were found dead in their beds, each of them shot by a .38 caliber pistol, the same caliber as the gun used to kill the other family members.

Appellant was asked to accompany Houston police officers to their headquarters in Harris County, at about 7:30 a.m. He expressed a willingness to do all he could to help apprehend the murderer, and voluntarily gave samples of his clothes, hair, and blood. Although Sergeant Larry Webber testified that appellant was free to go at that time, he was fingerprinted and photographed, and his clothes were exchanged for jail clothes. At 1:00 p.m., after extensive questioning and an investigation of the scene, the officers determined that appellant should be considered a suspect. They took him to a magistrate in Fort Bend County, who warned appellant that he was charged with "suspicion of murder," gave Miranda warnings, and set a bond at $100,000.

Later that afternoon, after receiving Miranda warnings and the magistrate's warning, appellant made an exculpatory written statement detailing his activities of the previous evening, on a form captioned "Statement of Person in Custody." He stated that he had traveled to Houston to attend an evening class, which was cancelled due to extremely cold weather; that he had stopped at a service station, a nightclub, and an adult bookstore; that he had spent an hour parked at a field five minutes from his home, reading a schoolbook; and that when he returned home he saw his father's body on fire and ran next door for help.

While appellant was in custody, no arrest warrant issued, nor was an examining trial conducted. The police held appellant for three days, and then released him, because, as Webber testified, probable cause to arrest the appellant had not been established. Appellant was indicted by the Fort Bend County grand jury on May 21, 1985.

In his first point of error, appellant argues that the trial court should have excluded the testimony of Herbert L. MacDonnell, an expert witness for the State, because MacDonnell's discipline is neither scientifically recognized nor considered scientifically reliable in Texas. MacDonnell is a criminologist whose testimony concerned the interpretation of bloodstain patterns found at the scene and on the appellant's clothes.

MacDonnell testified that he has undergraduate and graduate degrees in chemistry and physics; that he had been employed as a professor of chemistry and as an industrial chemist; that he had studied bloodstain characteristics since 1954; that his research involved thousands of laboratory experiments; that he had studied with Dr. Paul Kirk, a California criminologist, who had testified regarding bloodstain analysis in other states; that blood acts as any other liquid when it is dropped, smeared, or spattered; and that bloodstain analysis borrows its techniques from the fields of chemistry, physics, mathematics, and biology.

Appellant argues that MacDonnell's discipline is a novel technique, and that the State was bound to show its "general acceptance in the particular field to which it belongs" in order to establish the admissibility of MacDonnell's testimony. Frye v. United States, 293 F. 1013 (D.C.Cir.1923); Jones v. State, 716 S.W.2d 142, 145 (Tex.App.--Austin 1986, pet. pending). Appellant cites four cases in which, he argues, Texas courts have found that specific scientific techniques had not attained general acceptance. Cain v. State, 549 S.W.2d 707 (Tex.Crim.App.), cert. denied, 434 U.S. 845, 98 S.Ct. 149, 54 L.Ed.2d 111 (1977); Cody v. State, 548 S.W.2d 401 (Tex.Crim.App.1977); Wilson v. State, 697 S.W.2d 83 (Tex.App.--El Paso 1985, pet. ref'd); Isaacks v. State, 646 S.W.2d 602 (Tex.App.--Houston [1st Dist.] 1983, pet. ref'd).

Each of the cases cited by appellant is distinguishable from the case at bar. In Wilson, the sponsoring witness specifically testified that he could not say that a urinalysis system had been generally accepted. 697 S.W.2d at 84. Isaacks involved a witness who was unqualified to testify regarding general acceptance of a urinalysis system. 646 S.W.2d at 603. In Cain, the court noted that "truth serum" tests were widely regarded as unreliable. 549 S.W.2d at 712. In Cody, the State failed to establish the proper predicate for introduction of a breathalyzer test. 548 S.W.2d at 404.

In the present case, MacDonnell testified that his discipline was not particularly novel, and that he had drawn from bloodstain analysis in his testimony in 26 states. He testified regarding his extensive expert credentials, and explained that bloodstain analysis is a narrower application of techniques borrowed from established fields.

Appellant complains that bloodstain analysis has never been offered as evidence in a Texas criminal trial, and observes that, at trial, the State failed to cite any cases approving the technique in other jurisdictions. Judicial recognition of a given technique is a factor in determining general acceptance. Jones, 716 S.W.2d at 147.

This Court may take judicial notice on its own motion of the judicial decisions of other states. Tex.R.Crim.Evid. 202. Bloodstain analysis is considered a proper subject of expert testimony in several states. State v. Melson, 638 S.W.2d 342 (Tenn.1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983); State v. Hilton, 431 A.2d 1296 (Me.1981); People v. Erickson, 89 Ill.App.3d 56, 44 Ill.Dec. 138, 411 N.E.2d 44 (1980); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957). Such testimony was also admitted in a recent Texas trial, although it is unapparent whether the evidence was challenged. Guerrero v State, 720 S.W.2d 233, 234 (Tex.App.--Austin 1986, pet. ref'd).

MacDonnell testified that he was aware of "many" other individuals who study in his field. Appellant notes that these other individuals were not named, and suggests that MacDonnell should not have been allowed to establish the general acceptance of his methods by his testimony alone. This rule might be valid in cases where the challenged technique uses untested methods, or where the reliability of the technique is seriously questioned, as is the case with lie detectors and "truth serum." However, MacDonnell's studies are based on general principles of physics, chemistry, biology, and mathematics, and his methods use tools as widely recognized as the microscope; his techniques are neither untested nor unreliable. We hold that McDonnell's testimony was properly admitted.

Appellant's first point of error is overruled.

In his second point of error, appellant urges that a written statement taken after his illegal arrest should have been excluded from the evidence, and that it was not harmless error to admit the statement, even though it was exculpatory in nature. In his written statement, appellant confessed nothing, but offered an elaborate alibi explaining his activities of the previous evening. When it is shown that a statement is the product of an illegal arrest, "it is immaterial whether the declarations be termed 'exculpatory.' " Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Even exculpatory statements may be excluded as fruit of an illegal arrest.

After a hearing on appellant's motion to suppress, the trial court ruled that appellant's statement was admissible. In written findings of fact and conclusions of law, the trial court concluded that "[p]robable cause existed for the detention of Defendant during which the five (5) page statement was given."

No evidence that probable cause existed was presented to the trial court. In fact, Sergeant Webber testified at trial that he felt that there had been no probable cause for appellant's detention, and that appellant was released for that reason. The prolonged detention of appellant for investigative purposes was illegal. Dunaway v. New York, 442 U.S....