People v. Newsome
| Decision Date | 26 October 1982 |
| Docket Number | Cr. 20912 |
| Citation | 136 Cal.App.3d 992,186 Cal.Rptr. 676 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Aldon Ray NEWSOME, Defendant and Respondent. A011224. |
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.
Allen Ruby, Morgan, Ruby, Teter, Schofield, Franich, Bouchier & Fredkin, San Jose, for defendant and respondent.
An information charged Aldon Ray Newsome (defendant) with rape (Pen. Code, § 261, subds. (2) & (3)), 1 kidnapping (§ 207) and forcible oral copulation (§ 288a, subd. (d)). He pleaded not guilty. Trial by jury resulted in a deadlock. Newsome thereafter moved to dismiss the charges for failure of the prosecution to preserve a semen sample. The trial court granted the motion and dismissed the information. The People appeal. 2
We reverse.
The record of the motion to dismiss and the referee's hearing and findings supports the recitals of the evidence captioned below.
On April 19, 1979, M. complained of rape. A sheriff's deputy accompanied her to a medical facility for a vaginal examination.
The parties stipulated there was a lapse of approximately 15 and 1/2 hours between the time of the alleged rape and the collection of the specimen 3 and that within an hour of receiving the sample Deputy Sheriff Sargent of the Santa Clara County Sheriff's Department refrigerated the sample. The deputy took custody of the swab immediately.
Sergeant Bush removed the specimen from the refrigerator in the medical section of the jail and took it to the criminalistics laboratory on April 23, 1979. The criminalist, Mr. Gadd, air-dried the swab from April 23 to April 25, 1979. On April 25, 1979, Gadd processed the swab to determine if seminal material was present. He obtained a positive presumptive test indicating the presence of semen. He also examined the sample microscopically. This examination did not reveal the presence of any spermatozoa, but did show a moderate amount of microorganisms. Gadd froze the sample on April 25 and it remained frozen until October 24, 1979.
In May 1979 the deputy district attorney assigned to try the case requested PGM typing on the swab. In June, however, she asked the lab to "hold up" further work. The PGM typing was not done in May, possibly because Gadd, in keeping with the custom and practice of the lab not to run PGM and ABO testing until blood and saliva samples were obtained from the victim and the suspect, was still waiting for a blood sample from the suspect. A blood sample had been obtained from the victim on April 20, 1979, but Gadd never received a saliva sample from her or a blood or saliva sample from the defendant. After defendant was arrested, Sergeant Bush, the investigating officer, had attempted to obtain a blood sample from him, but Mr. Hardeman, defendant's then attorney, refused to permit Bush to contact defendant for the purpose of securing a blood sample. No court order was sought to compel production.
Mr. Hardeman was aware of the availability of the semen sample by the end of April 1979, but made no request for the specimen. Neither the semen sample nor the vaginal swab were introduced at defendant's first trial in July 1979.
In October 1979, PGM typing was again requested. On October 24, 1979, Gadd removed the swab from the freezer and cut out a portion of it to use in a PGM test. The test was attempted on October 24 and 25, with inconclusive results. The test was repeated on a different portion of the swab on October 25 and 26, again without obtaining any useful results.
Sometime in October, after the inconclusive PGM tests, Sergeant Bush telephoned Gadd and indicated that he would be over to pick up the evidence. Gadd placed the vaginal swab aside in preparation for Bush's picking it up, but Bush neglected to do so. The swab was left unfrozen from October 1979 until January 22, 1980.
In September 1979, Allen Ruby replaced Hardeman as defendant's counsel. During September and October 1979, Ruby attempted to discover the status of the vaginal swab and whether any tests had been performed. Sometime in October Ruby learned that the laboratory results were inconclusive. In November or December he learned that the specimen had been unfrozen for a significant period of time, to an extent that any additional testing would be unlikely to yield useful results. Ruby filed the motion to dismiss in January 1980.
On January 22, 1980, subsequent to the hearing on the motion to dismiss, Gadd attempted an ABO grouping test. No useful result was obtained. Custom and Practice of the Relevant Law Enforcement Agencies
On receipt of a rape complaint, a deputy sheriff takes the complainant to the Valley Medical Center for a vaginal examination. Within one hour of receipt of the swab from the examining physician, the deputy places the evidence in the refrigeration unit of the medical section in the county jail. Refrigeration is maintained until the swab is delivered to the county criminalistics laboratory. After the sample has been analyzed by the laboratory, it is returned to the sheriff's department and booked into the unrefrigerated evidence locker at the sheriff's office.
At the time relevant to this case, on receipt of the vaginal swab the criminalist would air-dry the swab to reduce the bacterial activity that can degrade the sample. In April 1979 air-drying was one of several acceptable means, although not the optimal means, of preserving the sample. The length of time necessary for air-drying varies with the viscosity of the sample, but two days is a normal length of time.
Usually the lab performs an initial analysis immediately after the sample has air-dried, and then places the sample in a box for retrieval by the law enforcement agency. However, in cases where there is a possibility that additional analysis will be required, the sample is stored in the laboratory's freezer.
PGM and ABO grouping tests are not done routinely, but only if the laboratory receives some indication that the tests will be needed. It is the custom and practice of the laboratory not to perform the tests until it receives a blood and saliva sample from both the victim and the suspect. The reason for waiting for the blood and saliva samples is to determine if in fact it will be possible to differentiate between the PGM type or ABO group of the victim and suspect, so as to avoid wasting a valuable sample on a system that cannot be differentiated.
In 1979 it was not the practice of the Santa Clara County Criminalistics Laboratory to do ABO grouping on vaginal specimens because there were indications that the mixing of semen with vaginal secretions would preclude useful results. Although more recent research indicates that interpretable results can be obtained in a number of cases, the achievement of results is dependent upon whether the parties involved are secreters and, if so, whether they secrete enough of the antigen material to permit its detection.
A PGM type is a particular type of enzyme found in semen, blood and vaginal secretions. There are basically three common PGM types.
An ABO grouping is a person's blood type. If a person is a secreter of the ABO antigens, the person's ABO grouping can be determined from vaginal secretions or semen.
Criminalist Gadd could not say with certainty that any particular factor was primarily responsible for the laboratory's inability to obtain a useful result in the PGM testing conducted in October 1979. However, Gadd testified that the laboratory's inability to obtain a useful PGM result could have been affected by any one or a combination of the following factors:
(1) The lapse of time between the act of intercourse and collection of the sample. The greater the delay, the less likely the sample is to yield a positive reading, and a delay of between 12 and 18 hours could affect the sample. 4
(2) The presence of the moderate amount of microorganisms observed when the sample was examined microscopically on April 25, 1979. Gadd recognized then that the amount of microorganisms could create a problem for future processing, and stated that the amount of microorganisms could possibly have prevented obtaining interpretable results even if the swab had been taken and tested immediately. The microorganism activity that may have destroyed the integrity of the semen sample might have been increased by (a) the length of time between intercourse and collection of the sample, (b) the dampness of the swab for a period of time, or (c) the six-month delay in performing the PGM testing.
(3) The amount of seminal material present on the swab.
(4) Whether one or both of the parties involved have sufficient amount of the PGM enzyme to permit typing.
(5) The delay in processing the sample. However, Gadd testified that for reasons not yet understood, in some instances vaginal specimens taken and tested immediately after intercourse will fail to yield decipherable results.
Gadd similarly was unable to say why the ABO grouping attempted in January 1980 was unsuccessful. However, he testified that there were four possible contributing factors:
(1) The same deteriorative factors that prevented obtaining a useful PGM typing, including delay in collection of the sample, the microorganism activity, the amount of seminal material, and the delay in testing. However, the ABO antigen is more stable than the PGM enzyme and there is not necessarily a correlation between the success of the two types of tests.
(2) Whether the parties involved are secreters of the ABO antigens.
(3) The lack of...
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