People v. Marsh

• Citation: 177 Mich.App. 161,441 N.W.2d 33
• Decision Date: 26 June 1989
• Docket Number: Docket No. 106033
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony Dale MARSH, Defendant-Appellant. 177 Mich.App. 161, 441 N.W.2d 33
• Court: Court of Appeal of Michigan (US)

Page 33

441 N.W.2d 33

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony Dale MARSH, Defendant-Appellant.

Docket No. 106033.

177 Mich.App. 161, 441 N.W.2d 33

Court of Appeals of Michigan.

Submitted March 7, 1989.

Decided May 15, 1989.

Released for Publication June 26, 1989.

[177 MICHAPP 162] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Leonard A. Peres, Pontiac, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and CYNAR and SAWYER, JJ.

SHEPHERD, Presiding Judge.

Following a jury trial, defendant was convicted of first-degree felony (criminal sexual conduct) murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Defendant then pled guilty to being a fourth-felony habitual offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. He was sentenced to life imprisonment and now appeals as of right. The sole issue raised presents a question of first impression for this Court, specifically, the admissibility of bite-mark evidence in light of the standards for novel scientific evidence set forth in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), and adopted in this state. People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), and see People v. Young, 418 Mich. 1, 24, 340 N.W.2d 805 (1983). We hold that the science of bite-mark analysis is sufficiently established that a trial court may admit the evidence without holding a Davis-Frye hearing.

On March 18, 1987, at about noon, the nude body of the victim was found on a beach at Upper Straits Lake in the City of Walled Lake. The body was laying face down, partially in the water and partially on the shore. An autopsy performed the next day by Dr. Bill Brooks placed the time of [177 MICHAPP 163] death in the early morning hours of March 18. The cause of death was manual strangulation. Further, there was evidence that the victim had been beaten and sodomized either at the time of death or immediately thereafter.

Because Dr. Brooks observed what appeared to be a bite mark on the victim's left breast, he requested that Dr. Richard Fox, a forensic odontologist, examine the body. Dr. Fox commenced his examination the same day. He took photographs and an impression of suspected bite marks and then removed the tissue itself for further study. A tissue sample was sent to another doctor to examine under a scanning electron microscope for cellular damage. Where cellular damage is observed, and the damage (indenture) is severe enough, a comparison of the cellular damage to a particular tooth may lead to a positive identification on whether the tooth made the mark.

Because no cellular damage was observed, Dr. Fox did his analysis by making a comparison between an enlarged photograph of the surface marking on the skin and a tracing of defendant's bite mark. Dr. Fox reproduced defendant's bite mark through the use of impressions, x-rays and other techniques. First, he took photographs, impressions, and a wax bite of defendant's teeth. Next, Dr. Fox used the impressions to make a reproduction of defendant's upper and lower teeth. The reproduction was then used to make impressions in wax. A mixture of alcohol and silver filling material was then brushed into the indentations. When the material dried, x-rays were used to make tracings of the bite-mark impression on clear acetate. Once the tracings were made and checked for accuracy, they were superimposed upon the enlarged photographs of the suspected bite marks on the victim's skin.

[177 MICHAPP 164] At trial, the photographs, impressions and other materials used by Dr. Fox in the comparison process were admitted into evidence. Further, Dr. Fox expressed his opinion that the surface markings on the skin were consistent with bite marks and that the marks left by defendant's teeth in wax were consistent with the marks in the photographs. On cross-examination, Dr. Fox was candid about the difficulty skin, as a medium, poses for bite-mark analysis. Dr. Fox also concluded that he could not say with reasonable certainty that the marks were made by defendant's teeth. However, he opined that there were two marks that were consistent with defendant's teeth and that there was no discrepancy in the pattern of the marks which would totally rule out defendant.

On appeal, defendant contends that the trial court should have held a Davis-Frye hearing before admitting Dr. Fox's testimony. We disagree.

Under MRE 702, the rule permitting expert testimony where "the court determines that recognized scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," the Davis-Frye standard is applied to determine if novel scientific evidence has gained general acceptance in the scientific community. People v. King, 158 Mich.App. 672, 675, 405 N.W.2d 116 (1987). Proof of acceptance must be established by disinterested and impartial experts. Id., p. 675, 405 N.W.2d 116. The central purpose of the Davis-Frye standard "is to prevent the jury from relying on unproven and ultimately unsound scientific methods." People v. Gonzales, 415 Mich. 615, 623, 329 N.W.2d 743 (1982).

Although an issue of first impression in this Court, the science of bite-mark analysis has been extensively reviewed in other jurisdictions. The admissibility of the evidence has been consistently [177 MICHAPP 165] upheld without the need for a Davis-Frye type hearing. In Handley v. State, 515 So.2d 121 (Ala.Crim.App.1987), the Alabama Court of Criminal Appeals held that the admissibility of a dental witness' bite-mark analysis does not depend on meeting the Davis-Frye standard. The Handley court, in part, relied on the decision in other jurisdictions:

In a recent bite mark case of first impression in the State of Wisconsin, the court of appeals observed the following: "Currently, bite mark comparison has received evidentiary acceptance in nineteen jurisdictions. No jurisdiction has rejected the admission of such evidence." State v. Stinson, 134 Wis.2d 224, 228, n. 2, 397 N.W.2d 136, 137, n. 2 (1986). One of those jurisdictions which accept such testimony is Florida. The Supreme Court of Florida recognizes the Frye standard, but in the recent case of Bundy v. State, 455 So.2d 330, 349 (Fla., 1984), cert. den., 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986), rejected the applicability of Frye to the admission of bite mark comparison and stated the following:

"The evidence in question is based on the examinations of impressions made by human teeth and their comparison with models of known human teeth for the purpose of determining whether the impressions were or probably were or could have been made by a particular individual. Bite mark comparison evidence differs from many other kinds of scientific evidence such as blood tests, 'breathalyzer' tests, and radar (as well as from inadmissible techniques such as the polygraph and voice-print analyses) in that these various techniques involve total reliance on scientific interpretation to establish a question of fact. With bite mark evidence, on the other hand, the jury is able to see the comparison for itself by looking directly at the physical evidence in the form of photographs and models. People v. Slone, 76 Cal.App.3d 611, 143 Cal.Rptr. 61 (Cal.Ct.App., 1978); People v. [177 MICHAPP 166] Marx, 54 Cal.App.3d 100, 126 Cal.Rptr. 350 (Cal.Ct.App., 1975)." [Handley, supra, pp. 130-131.]

Subsequently, in State v. Armstrong, 369 S.E.2d 870, 875-877 (W.Va., 1988), the West Virginia Supreme Court of Appeals

took judicial notice of the general reliability of bite-mark evidence stating:

All of the twenty-one jurisdictions which have specifically addressed this question in a reported opinion, where a qualified expert was...