People v. Gistover

• Decision Date: 06 May 1991
• Docket Number: Docket No. 114508
• Citation: People v. Gistover, 472 N.W.2d 27, 189 Mich.App. 44 (Mich. App. 1991)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Jerome GISTOVER, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 27

472 N.W.2d 27

189 Mich.App. 44

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Jerome GISTOVER, Defendant-Appellant.

Docket No. 114508.

Court of Appeals of Michigan.

Submitted June 19, 1990, at Lansing.

Decided May 6, 1991, at 10:10 a.m.

Released for Publication July 29, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Gladys L. Christopherson, Asst. Pros. Atty., for the People.

Daniel D. Bremer, Flint, for defendant-appellant.

Lawrence J. Gistover, in pro. per.

Before RICHARD ALLEN GRIFFIN, P.J., and SHEPHERD and DOCTOROFF, JJ.

SHEPHERD, Judge.

Defendant appeals as of right his jury conviction of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and subsequent plea of guilty of being an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082, claiming that the trial court erred in allowing the admission into evidence of results of electrophoretic testing done on a dried evidentiary bloodstain taken from a leg of defendant's blue jeans. We find, after a careful review of the record, that the trial court did not err in this regard. Defendant also claims that the trial court erred in failing to suppress a statement given by defendant to a police officer before defendant's arrest. We disagree and, therefore, affirm defendant's conviction.

The starting point for our analysis of the first issue raised by defendant is the so-called Davis- Frye rule, a culmination of the reasoning in the cases of Frye v. United States, 54 U.S.App.D.C. 46, 47, 293 F. 1013 (1923); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), and People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977), which allows for the admission of expert testimony concerning a novel form of scientific evidence only if it is established that the evidence has achieved general scientific acceptance among impartial and disinterested experts in the field. The party offering the evidence has the burden of demonstrating that it has been accepted as reliable by the scientific community. People v. Young, 418 Mich. 1, 17-20, 340 N.W.2d 805 (1983). We must also be mindful of the standard by which we review a trial court's findings of fact. Those findings will not be disturbed on appeal unless they are clearly erroneous. MCR 2.613(C). A finding is clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. People v. Stoughton, 185 Mich.App. 219, 227, 460 N.W.2d 591 (1990).

Electrophoresis was aptly described in People v. Reilly, 196 Cal.App.3d 1127, 1137-1138, 242 Cal.Rptr. 496 (1988), as follows:

Electrophoresis is a method for separating charged molecules, and its use for detecting genetic markers in blood is mechanically uncomplicated. "[A] test sample is placed on a gel medium in an ionized buffer solution. When an electric current is run through the solution, the sample separates and migrates on the medium into characteristic patterns. These are then fixed, dyed, and read visually by the analyst. (See Jonakait, Will Blood Tell? (1982) 31 Emory L J 833, 836-842.)" ( [People v.] Brown, supra, 40 Cal3d 512, 529; 230 Cal Rptr 834; 726 P2d 516 [1985].)

Of the many genetic marker systems that have been identified in blood, only about a dozen are currently considered useful in typing dried as opposed to liquid blood. This is because some markers do not "persist" well--i.e., they lose mobility--in the dried state. One of the more persistent markers is the red cell antigen system ABO, which is not tested through electrophoresis. The others are polymorphic enzyme or protein marker systems, which include [phosphoglucomutase (PGM), esterase D (EsD), glyoxylase 1 (GLO), erythrocyte acid phosphatase (EAP), haptoglobin (Hp), adenylate kinase (Ak), and adenosine deaminase (ADA) ]. The basic electrophoretic process is the same whether for liquid or dried blood. Depending on the particular marker being tested, there will be variations in the buffer solution, the amount of electric current, the length of time allowed for separation and migration, the type and thickness of the gel (medium), and the catalytic agent used for staining. Predetermined sets of these variations, called protocols, are developed for each marker.

The characteristic pattern of a marker displays itself in the finished gel (the electrophoretogram) as a series of bands. The pattern for each marker is distinct because each protein or enzyme carries a slightly different charge, causing it to migrate through the gel at a different rate. Test results are read visually according to the color, number, position and relative intensity of the bands. Several gels are usually tested at one time on a single "plate." Samples of known types ("controls" or "standards"), screened beforehand to determine degrees of genetic variance, are often included for comparison of banding and to ensure that enough time has been allowed for separation. The control or standard thus acts to safeguard against mistyping. Other safeguards include repeating tests (the amount of sample permitting), having a second analyst independently interpret the gel, and photographing the gel for future reference (although it is preferable to read the gel directly and even better if the second analyst sees the development process as opposed to just the end result.) The original gel is often hard to preserve. Because interpreting the results calls for some subjective judgment, the competence, experience and training of the analyst are important. [Emphasis in original.]

Defendant does not argue that electrophoresis in general lacks acceptance or reliability, but, rather, only that the method is not accepted or reliable when dried evidentiary bloodstains are involved. Of the sixteen or so jurisdictions that have addressed the issue, ¹ most often under the standard enunciated in Frye v. United States, supra, Michigan is the only one that has deemed electrophoretic testing of dried evidentiary blood samples to be inadmissible. The dispute centers on the thin-gel multisystem and, most particularly, the method developed by Brian Wraxall and Mark Stolorow which simultaneously analyzes several genetic markers on a single, thin-layer starch gel. This Court has held that electrophoretic testing of an evidentiary bloodstain using a single system method does enjoy general scientific acceptance for reliability and is, thus, admissible as evidence. See Stoughton, supra, 185 Mich.App. p. 229, 460 N.W.2d 591.

In People v. Young (After Remand), 425 Mich. 470, 391 N.W.2d 270 (1986), a sharply divided Michigan Supreme Court held that the prosecution in that case failed to establish that the results of electrophoretic testing of evidentiary bloodstains had achieved general scientific acceptance for reliability among impartial and disinterested experts in the scientific community because there was disagreement within that community on three issues: the length of time that genetic markers, particularly EAP, can be accurately read in dried blood; the reliability of the Wraxall thin-gel multisystem analysis; and the effects of crime scene contaminants. Id., 425 Mich. p. 475, 391 N.W.2d 270. ²

The first issue is not in dispute here because the bloodstains were taken within a day or two of the murder and preserved. See Young (After Remand), 425 Mich. p. 490, 391 N.W.2d 270. The Young (After Remand) Court's concern over the reliability of the Wraxall thin-gel multisystem stemmed from the lack of independently conducted reliability studies in light of the criticism espoused primarily by the system's outspoken critic, Dr. Benjamin Grunbaum, that the filter used in testing EsD molecules has the unintended effect of compromising the analysis of the PGM and GLO molecules. Also, at the time Young (After Remand) was decided, no comprehensive control tests had been conducted on the effect of common crime scene contaminants, and the scientists who testified in that case had no experience with soil or chemical contamination and, therefore, could only guess what effect those contaminants might have. The Young (After Remand) Court, on the basis of the evidence before it, found there was disagreement with regard to the effect common crime scene contaminants may have on electrophoresis and, until comprehensive control tests were conducted, the reliability of electrophoresis on dried evidentiary bloodstains remained unresolved.

As testified to below, in the wake of Young (After Remand), a study was done on the possible effects of various contaminants. This published study, conducted by Dr. Bruce Budowle and Professor Robert Allen, tested various contaminants such as soil, gasoline, oil, bleach, salt, detergent, acid, and base, and found that the first three had no effect on the genetic markers or the electrophoretic runs, and the acid, base, and bleach altered the pH of the electrophoretic gels so much that the distortion was easily identifiable by even a novice. Thus, concluded the authors, contaminants that could affect protein conformation, alter the pH, or impart charge changes would be readily apparent because they would distort the electrophoretic gel pattern in a way that could be easily recognized by the reader.

In Stoughton, supra, 185 Mich.App. p. 229, 460 N.W.2d 591, a panel of this Court found that the Budowle/Allen study satisfied the demand for "comprehensive control tests evaluating the effects of different contaminants," and that through the study's publication in a scientific journal, the results had been subjected to the scrutiny of the scientific community, as required by Young (After Remand). The trial court in the present matter came to the same conclusion and, in light of Stoughton, we see no reason to disagree, let alone find its conclusion on this particular issue clearly erroneous.

At the Davis- Frye hearing...