People v. Bunting
| Decision Date | 11 December 1985 |
| Docket Number | Docket No. 79384 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Merle Kenneth BUNTING, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and Joseph F. Burke, Asst. Pros. Atty., for the People.
Barry M. Levine, Ann Arbor, for defendant-appellant, on appeal.
Before GRIBBS, P.J., and BURNS and MARTIN, * JJ.
Defendant was convicted by a jury of criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), and was sentenced to a term of from 16 to 35 years in prison. He now appeals as of right.
Defendant's sole claim on appeal is that the admission into evidence of the results of electrophoresis testing was error so prejudicial as to require reversal of his conviction. We find this argument without merit and affirm defendant's conviction.
At trial, Dr. Henry Gershowitz, a qualified expert, testified out of the presence of the jury about the use of electrophoresis for identification of particular types of serum proteins and enzymes to classify people into certain distinct populations which possess these genetic qualities. It was Dr. Gershowitz's opinion that electrophoresis has been generally accepted in the scientific community for well over 20 years. Defense counsel neither cross-examined Dr. Gershowitz nor objected to any of his testimony.
Subsequently, Charles Barna, qualified as an expert in forensic serology, testified to the results of the electrophoresis testing he did on bloodstains from the complainant's bed sheet, her T-shirt, defendant's plaid shirt, and a piece of bloodstained glass from a window broken by the assailant.
The bloodstain on the victim's T-shirt, which she had worn the night of the attack, matched all of defendant's genetic markers and did not match either the victim's or her boyfriend's markers. Only .68 percent of the population, or 1 in 147 people, could have contributed that bloodstain. The bloodstain on the victim's bed sheet matched the genetic markings of defendant and did not match those of either the victim or her boyfriend. It was determined that .87 percent, 1 out of 115 people, could have deposited that bloodstain. The bloodstain on defendant's shirt, which the victim testified defendant was wearing the night of the attack, did not match the victim's markings but did match defendant's. The tiny bloodstain on the piece of glass recovered from the victim's apartment indicated only that it was type A blood. Both defendant and the victim have type A blood.
Defense counsel did not object to the qualifications or testimony of either Dr. Gershowitz or Mr. Barna at trial. On appeal, however, defendant contends that their testimony is not sufficient to establish either the acceptance or reliability of electrophoresis test results. Defendant bases his argument on the Supreme Court's opinion in People v. Young, 418 Mich. 1, 340 N.W.2d 805 (1983), in which the Court determined that it was error for the trial court to have accepted testimony on electrophoresis tests because there had been no prior determination that the electrophoresis procedure enjoys general scientific acceptance among impartial and disinterested experts. The Court remanded Young to the trial court for a Davis-Frye 1 evidentiary hearing to determine whether the results of serological electrophoresis testing had achieved general scientific acceptance for reliability among impartial and disinterested experts. The Court retained jurisdiction, but has not as yet...
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...met its burden of establishing general scientific acceptance of the testing by disinterested expert witnesses. People v. Bunting, 145 Mich.App. 210, 212-213, 377 N.W.2d 307 (1985) (the issue of the admissibility of electrophoresis evidence has not been temporarily frozen pending the final o......
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