People v. Bethune

• Decision Date: 31 December 1984
• Citation: 105 A.D.2d 262,484 N.Y.S.2d 577
• Parties: The PEOPLE, etc., Respondent, v. Nathaniel BETHUNE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 577

484 N.Y.S.2d 577

105 A.D.2d 262

The PEOPLE, etc., Respondent, v. Nathaniel BETHUNE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1984.

William E. Hellerstein, New York City (Mark C. Cogan, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Asst. Dist. Atty., Roseann B. Mackechnie and Karen M. Wigle, Brooklyn, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, NIEHOFF and BOYERS, JJ.

BRACKEN, Justice Presiding.

At defendant's trial for rape and related offenses, in which the issue of identity was hotly contested, the victim identified defendant as her assailant, and also testified that she had bitten his arm during the course of the attack. Expert testimony was then adduced to the effect that defendant did, in fact, have the scar of a human bite mark on his arm. While the expert was unable to state, with a reasonable degree of scientific certainty, that the bite in question had been inflicted by the victim, he was allowed to testify that the scarring pattern on defendant's arm was consistent with the victim's dentition. On this appeal, we are called upon to determine whether, under these circumstances, the evidence pertaining to the bite mark was properly admitted. We affirm.

The trial which resulted in the judgment of conviction now under review was conducted in April, 1981. ¹ The pertinent trial evidence, which we must view in the light most favorable to the People (People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Tucker, 102 A.D.2d 535, 536, 477 N.Y.S.2d 386), established that on the afternoon of August 28, 1978, the victim returned from a shopping trip to the apartment of her boyfriend, who was then at work. Upon entering the bedroom, she encountered a black male, approximately five feet seven or eight inches in height, and weighing 150 to 160 pounds, with a medium-length Afro haircut, long sideburns and no other facial hair. The man had needlemarks on his arm and was missing several teeth. The victim attempted to flee the apartment, but the man seized her and prevented her escape. During the ensuing struggle, while her assailant had his right arm around her neck, she bit him on that arm, between his elbow and wrist. The man then went into the bathroom, where he remained for approximately two minutes, during which time the victim heard the water running. He then returned, and, after assaulting and raping the victim, stole money and various items of property from within the apartment, and left. The entire incident lasted in excess of one hour. The police were promptly notified, and the victim was taken to the hospital for treatment of her injuries.

On the afternoon of March 20, 1979, approximately seven months later, the victim encountered a man near the mailboxes of the building in which her boyfriend's apartment was located. Although this man had a full beard, she nevertheless believed him to be her assailant. However, because she was unable to see if this man was missing any teeth, she did not call the police.

On March 25, 1979, five days later, the victim encountered the same man at a social club, who at this time had no beard, but who did have a light mustache and heavy sideburns, and was missing some teeth. After approaching the man and asking him if he knew her, and recognizing that this was the man who had raped her, the victim contacted the police; defendant was subsequently arrested and charged. The victim identified defendant in court as her assailant.

In addition, the prosecution called Dr. Lowell Levine, who was qualified as an expert in the field of forensic odontology. ² Dr. Levine testified that on January 8, 1981, he had examined defendant's mouth and found, inter alia, that defendant had several missing teeth. In particular, defendant had lost an upper left central incisor tooth, resulting in an unusually large diastema, or space, between the remaining upper front teeth. Dr. Levine noted that the missing teeth had been replaced with a removable or partial denture. ³

Dr. Levine further testified that on February 11, 1981, almost two and one-half years after the alleged crime, he had conducted an examination of defendant's right arm. He observed a scar on the outer portion of the arm, between defendant's elbow and wrist, and caused a series of life-sized photographs of the scar to be taken. Dr. Levine also obtained a set of models or study casts of the victim's teeth, with which he made aluwax impressions of her bite marks. He then conducted a comparison of the aluwax imprints with the scar depicted in the life-sized photographs of defendant's arm.

Dr. Levine explained to the jury that every person's set of teeth are unique by reason, inter alia, of the arrangement of the teeth, their shapes and positions, the existence of wear patterns or breakage, and the presence of dental work such as fillings or caps. With respect to the victim's teeth, Dr. Levine noted that she had a diastema, or space, between two wide upper central incisor teeth; she had two upper lateral incisor teeth which exhibited wear patterns; she was missing her upper canine teeth, and her first premolars occupied the space in which the upper canines would normally have been found; her lower teeth were very crowded; and she had only three lower central incisor teeth instead of the normal four in number.

Based upon the examination of defendant's arm, Dr. Levine formed an opinion that the scar thereon was a healed human bite mark. Specifically, Dr. Levine stated, with a reasonable degree of medical or dental certainty, that the bite mark on defendant's arm had been produced by six upper and three lower teeth. Dr. Levine further stated that the characteristics of the victim's dentition were consistent with the scar pattern on defendant's arm. However, he was unable to state, with the same degree of certainty, that the bite on defendant's arm had in fact been inflicted by the victim.

The only testimony offered by the defendant as to the bite mark issue was that of Dr. Arthur Goldman, an expert in forensic odontology. In March and April, 1981, Dr. Goldman had examined defendant's arm, along with the photographs thereof taken under the direction of Dr. Levine. He also examined the study casts of the victim's teeth, from which he prepared his own wax imprints. Dr. Goldman testified that he was reasonably sure that the marks on defendant's arm constituted a "very, very old" human bite mark, although he was unable to determine its age with any greater specificity. Dr. Goldman was also unable to perceive sufficient detail to relate or orient the marks to the victim's dentition, which he found to be quite distinctive. Dr. Goldman conceded that Dr. Levine had greater expertise in the field of bite mark identification than he did.

On appeal from the ensuing judgment of conviction, defendant contends that the trial court erred in admitting any evidence as to the presence of a bite mark scar on his arm as a means of identifying him as the person who committed these crimes. He maintains that the prejudicial impact of such evidence was great, and that its probative value was minimal, because: (1) two and one-half year old bite marks, such as that in the case at bar, have simply not been accepted or recognized in the field of forensic odontology as providing a scientifically reliable basis for identification; (2) the People's expert testified only that the scar on defendant's arm was merely consistent with the victim's dentition; and (3) defendant established, in cross-examination of the People's expert, that the particular scar on his arm could not have resulted from a bite inflicted in the manner described by the victim.

We reject these contentions and conclude that evidence of the presence of a human bite mark on defendant's arm was relevant evidence which tended to prove that he was the assailant. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" (People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456, cert. den. 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88, citing Uniform Rules of Evidence, Rule 401 see, also, People v. Johnson, 47 N.Y.2d 785, 787, 417 N.Y.S.2d 925, 391 N.E.2d 1006, cert. den. 444 U.S. 857, 100 S.Ct. 116, 62 L.Ed.2d 75; Richardson, Evidence § 4). Logically, once the victim testified that she had inflicted a bite on her attacker's right arm between his elbow and wrist, evidence of the existence of a scar on that very location on defendant's right arm, which was identified by both the prosecution and defense experts as a healed human bite mark, rendered it more probable that defendant was, in fact, the person bitten by the victim. This, in turn, was circumstantial evidence which, in conjunction with the victim's identification of defendant and her description of his physical characteristics, properly permitted the trier of fact to infer the ultimate fact in issue, i.e., that defendant was the assailant.

In this State, it is recognized that bite mark evidence, i.e., the comparison of impressions made upon a person's body with the dentition of another, has gained general acceptance in the scientific community as a reliable means of identification, and such evidence is therefore admissible in a criminal case (People v. Middleton, 54 N.Y.2d 42, 45, 49-50, 444 N.Y.S.2d 581, 429 N.E.2d 100; see, also, People v. Smith, 63 N.Y.2d 41, 63, 479 N.Y.S.2d 706, 468 N.E.2d 879). So long as an expert has utilized techniques and procedures that have been approved by a majority of the experts in the field in arriving at his opinion, that opinion is admissible in evidence without the necessity of a separate judicial determination regarding the validity or acceptance of the operative scientific...