People v. Marx

• Citation: 54 Cal.App.3d 100,126 Cal.Rptr. 350
• Decision Date: 29 December 1975
• Docket Number: Cr. 26579
• Court: California Court of Appeals
• Parties: , 77 A.L.R.3d 1108 The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Edgar MARX, Defendant and Appellant.

Page 350

126 Cal.Rptr. 350

54 Cal.App.3d 100, 77 A.L.R.3d 1108

The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Edgar MARX, Defendant and Appellant.

Cr. 26579.

Court of Appeal, Second District, Division 5, California.

Dec. 29, 1975.

[54 Cal.App.3d 103] Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Howard J. Schwab, Deputy Attys. Gen., for plaintiff.

KAUS, Associate Justice.

Defendant Walter Marx was indicted by a grand jury for murder, and, after a court trial, was found guilty of voluntary manslaughter. ¹ He was sentenced to prison.

FACTS

The victim was Lovey Benovsky, a woman possibly 75 years of age. ² Defendant boarded at Benovsky's home on weekends. Benovsky was last seen at about 8:30 p.m. on Saturday, February 2, 1974, by a neighbor with whom she had been watching television. The next day, Sunday, at about 3:00 p.m., another neighbor, learning that Benovsky had not been seen that day, went to her home and looked in the front window into her bedroom. Benovsky was lying on her bed; there was blood on the pillow. The neighbor called the police.

Firemen arrived first. The neighbor's wife knew where a house key was hidden and gave it to the firemen. The fire department captain testified that the body was in kneeling position when he arrived. The police arrived shortly thereafter. The victim was found nude, lying face down on a bed. The mattress was bloody, but there was no other blood in the room. A bath towel found in the bathroom had blood on it.

Human blood was found on a pair of Levis belonging to defendant. The blood could not be typed, and may have been as old as one year. The bloody towel in the bathroom was found to have human blood, either types A and B superimposed, or AB. The victim had type 'B' blood and defendant had type 'A' blood.

The coroner performed an autopsy on February 4. He attributed the cause of death to manual strangulation. The victim had also been knifed in the vagina. The coroner further observed 'an elliptical laceration of the nose,' which he believed were teeth marks. The knife wound was inflicted after the strangulation. In the coroner's opinion, the victim had been dead from 15 to 25 hours when she was discovered--at about 6:30 p.m., Sunday, according to his records. Thus, the victim was killed probably some time after 8:30 Saturday evening when she was last seen, and before about 3:30 Sunday morning. ³

A police officer interviewed defendant after advising him of his rights. Defendant said he had known the victim for about six months, and that he rented a weekend room from her at a rate of $15 per week. During the week he lived with Louise Wileman, who had been recently divorced and had weekend custody of the children. Defendant preferred to take a weekend room to staying with Wileman when the children were there. On Friday evening, February 1, he arrived at Benovsky's house at about 9:00 or 10:00 p.m. They watched television together and he drank some brandy. He stayed the night and then went to Louise Wileman's house at about noon or 1:00 p.m. They had supper at home because they were short of funds, and then at about 9:00 or 10:00 p.m., Wileman drove him back to Benovsky's house. He stayed there a short time. Everything appeared normal. He walked to a bar called the '488 Keys' where he had more drinks and then went to a second bar where he had a few more drinks. He then walked back past Benovsky's house and checked into the El Rancho Motel.

According to the motel owner, defendant arrived at the El Rancho some time between midnight and 2:00 or 3:00 a.m. She testified that defendant did not appear to be either drunk or high on drugs. He had stayed at the El Rancho before. The room cost $14.00.

Defendant told the police officer that he checked out the next day at about noon and called Louise Wileman, who picked him up. Defendant said that he had rented a motel room because he had made plans with a co-worker to go fishing late Saturday night or early Sunday and that these plans had fallen through.

A co-worker of defendant testified, however, that while he and defendant did have plans to go fishing, something came up and he told defendant on Friday, February 1, that he would not be able to make it. In any case, had the trip taken place, he would have picked up defendant at Wileman's house at 1:00 a.m.

A psychiatrist, called by defendant, testified that defendant under sodium pentothal did not recall committing the offense. During a later interview at the county jail, he did recall trying to help the victim by giving mouth-to-mouth resuscitation, of possibly seeing someone else leaving the house, of realizing that the victim was dead and feeling frightened and leaving.

After the interview with the police officer, defendant was asked if he would provide samples of his fingerprints and body hair. He refused. A search warrant was obtained to secure defendant's fingerprints, body fluids, and a cast of his teeth. He refused to comply with the order. On February 12, the prosecutor told defendant that there was a court order, that he had no right to an attorney, that he had no right to refuse to comply with the order, and that such refusal could be used against him as evidence in court. Defendant still refused to comply.

On February 13, defendant was brought before the judge who had signed the search warrant. Defendant did not request an attorney, but indicated that 'he or some member of the family were in the process of arranging for him to be represented by counsel.' The judge ordered defendant to comply. Defendant refused and was brought back to the court that day. He was again ordered to obey the court order and told that if he did not, he could be found in contempt of court and jailed until he did comply, and that his refusal 'could be used against him in a trial.' Defendant refused to comply and was jailed. On March 20, he was again brought before the court, which was advised that he was now willing to comply with the court order.

On March 20, a dentist made impressions of defendant's upper and lower teeth--later introduced into evidence. After the impressions were made, and defendant had submitted to the other tests, he was released and exonerated from contempt. The prosecutor told the detectives that the most promising area of further investigation was to exhume the victim's body and to obtain a cast of the bite mark on her nose.

The autopsy of the victim had been performed on February 4, and the body buried in Dallas, Texas on February 7. On March 25, it was exhumed and impressions of the wound on the victim's nose were made.

The central issue in this case is the admissibility of expert testimony--supported by many exhibits--that the bite on the victim's nose was made by defendant's teeth.

Three dentists testified on behalf of prosecution. One dentist testified on behalf of defendant. The three prosecution experts were: Reidar Sognnaes, a dentist and professor at UCLA medicine school; ⁴ Gerald Vale, a dentist and lawyer and chief of forensic dentistry with the Los Angeles Coroner's office; and Gerald Felando, a dentist in private practice. The project of identifying the teeth which Defendant did not testify.

made the bite on the victim was conducted in part as a joint effort. Each of the three experts used somewhat different analytic techniques.

DISCUSSION

A. The Expert Evidence

The relevance of the expert testimony turned on two postulates: first, that, as a general rule, it is possible to identify a person from his dentition; second, that in this particular case there was enough evidence of a 'match' between defendant's dentition and the victim's wounds to enable experts to make such an identification, and, thereby, to eliminate others as suspects. ⁵

The real dispute on admissibility centers on the second of these premises. Defendant concedes that the science--or art--of identifying persons through their teeth is, as such, well-established. Each of the three prosecution experts and even defendant's own expert had performed such identifications. ⁶ While the field is relatively new and experts do not agree on the exact number of similarities necessary to make a positive identification, the prosecution experts stressed the obvious point that it is not the number of similarities, but their quality which is most helpful. ⁷ Further, this being a case involving identification by bite marks, rather than by comparing a dentition with two-dimensional X-rays and charts, the experts were able to use a virtually unprecedented three-dimensional approach. Thus, apart from a wholly unmeritorious claim that the experts used an approach condemned by People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33, the basic ability of experts to identify persons from their teeth is not in issue.

What defendant does attack is the admissibility of the prosecution evidence insofar as it rests on the experts' asserted ability to prove identity from similarities between bite marks and the dentition of a person suspected of having made those marks.

Concededly, there is no established science of identifying persons from bite marks as distinguished from, say, dental records and X-rays. Indeed, the testimony of the three prosecution experts reflects their enthusiastic response to a rare opportunity to develop or extend forensic dentistry into the area of bite mark identification.

The state of the art was summed up by Dr. Sognnaes: 'There have been cases where bite marks have been identified in various inure substances or, in theory, for example, a piece of chocolate found on a desk where the crime was committed or banana or marzipan or apples or even wood. . . . ( ) In the case of bite marks in skin, most of the ones that have been in the literature...