People v. Reilly

• Decision Date: 09 December 1987
• Citation: 196 Cal.App.3d 1127,242 Cal.Rptr. 496
• Court: California Court of Appeals Court of Appeals
• Parties: , 56 USLW 2378 The PEOPLE, Plaintiff and Respondent, v. Lawrence Patrick REILLY, Defendant and Appellant. A034203.

Page 496

242 Cal.Rptr. 496

196 Cal.App.3d 1127, 56 USLW 2378

The PEOPLE, Plaintiff and Respondent, v. Lawrence Patrick REILLY, Defendant and Appellant.

A034203.

Court of Appeal, First District, Division 2, California.

Dec. 9, 1987.

Review Denied March 17, 1988.

Alys Briggs, Oakland, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., Blair W. Hoffman, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

SMITH, Associate Justice.

We hold in this case that the prosecution met its burden, under the Kelly/Frye standard (People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240; Frye v. United States (D.C.Cir.1923) 293 F. 1013), of showing (1) that electrophoretic testing of dried bloodstains has gained general acceptance in the scientific community and (2) that the technique was properly used in this case. We will therefore affirm the conviction of Lawrence Patrick Reilly for the second degree murders of Frank Anthony Ragusa, Jennifer Ann Ragusa and Marianne Jane Ragusa.

BACKGROUND

The murders occurred on January 25, 1978, in the Oakland hills home of victims Frank Ragusa and wife Jennifer. The third victim was Frank's sister, who was visiting. All three died of shock and hemorrhage from multiple stab wounds. Oakland police acting on a tip discovered the bodies at the house that same day.

The prosecution's theory was that defendant, perhaps pressured by others, used his long-standing friendship with Ragusa to gain access to the Ragusa house. Once inside, he and possibly others took a large amount of cash and stabbed all three victims to death.

Ragusa was a major LSD producer and seller. He often kept large amounts of cash--up to $100,000--locked in a file cabinet in the house. Defendant, a friend of Ragusa's since childhood, had dealt drugs for him and would have known about the cash. The house was well secured against intruders, and lack of forced entry suggested that the victims knew their killer.

Sometime in the month before the incident, defendant approached a county drug-task-force officer, seeking police protection. Describing Ragusa as "a heavy dude" who was into LSD ("acid"), defendant said he was afraid he was being followed because of his association with Ragusa. The officer explained that he could not provide protection but advised contacting the federal drug enforcement agency. Apparently acting on that advice, defendant approached a federal agent in San Francisco about two weeks before the incident. He told the agent that Ragusa was a major LSD dealer and was out to kill him. Defendant wanted Ragusa arrested, but the agent responded that there would first have to be an investigation and asked if defendant would be willing to help. Defendant refused. When the agent declined to do anything, defendant grabbed some notes the agent had been taking and, with a look of rage or terror on his face, walked out. That same month, defendant confided to a neighbor in San Rafael that someone was following him and that people were pressuring him to help set Ragusa up. According Four to eight hours after the murders, defendant attempted suicide at an ex-girlfriend's cottage in Vallejo by slashing his arm. After he had been taken away by ambulance, bloodied pieces of a shirt were found in the cottage bathroom, and more pieces were found in the toilet, which backed up and overflowed when someone tried to flush it. Workers called in to unclog the toilet a week later discovered the sewer line blocked with cut-up currency and a plaid shirt of the kind that defendant habitually wore.

to the neighbor, defendant said he had no choice--"either he would be rich or he would be dead."

The most damaging single piece of evidence was a bloody fingerprint found on the gummed flap of a gray envelope discovered in the Ragusas' kitchen, on top of a dishwasher. The print was defendant's, and the envelope, one like those Ragusa used to store cash, was presumably taken from the file cabinet and emptied.

The evidence at issue in this case concerns dried bloodstains found in various places throughout the house--in particular, certain bloodstains which were typed through electrophoresis and other processes as excluding any of the victims and statistically including defendant as a source. There were three such stains: blood on a tissue found in the living room, a blood chip taken from the den floor, and blood on a nasal spray bottle found in the bathroom. The tissue tested positively for three genetic markers, the blood chip for four, and the nasal spray bottle for five. The statistical frequency with which those markers cumulatively occur in the white population, for each of the items, was 3 percent, 1.2 percent and 1 percent, respectively. Defendant is white, and so were the victims.

Other bloodstains, which could have come from either defendant or Jennifer Ragusa, were taken from the kitchen floor, a stairwell, a bedroom wall and a bidet. Still other stains were typed as probably coming from the victims and definitely not from defendant. Blood on the gray envelope was typed only as being of human origin.

The defense rested without calling witnesses.

This is defendant's second jury trial conviction for the same acts. By a two-to-one decision filed in March 1985 (People v. Reilly, A010779 (Rouse, J., dissenting)), we reversed the first conviction, finding prejudicial error in the admission of the blood typing evidence because the record did not satisfy Kelly/Frye standards. Now, after retrial and a much more extensive record on the Kelly/Frye issue, defendant appeals again, raising that issue as his sole contention. He was sentenced to 12 years in state prison for three counts of second degree murder (Pen.Code, §§ 187, 189) and findings that he personally used a deadly weapon, a knife, in each murder (id., § 12022, subd. (b)). (See id., former § 190; Stats.1977, ch. 316, § 5, pp. 1256-1257.)

APPEAL

I

In California courts, "[the] admissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two-step process: (1) the reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. [Citations.S Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. [Citations.]" (People v. Kelly, supra, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240 (Kelly ).) Reliability for this purpose means that the technique " 'must be sufficiently established to have gained general acceptance in the particular field in which it belongs.' " (Ibid., quoting Frye v. United States, supra, 293 F. 1013, 1014.) Despite some criticism of the "general acceptance" test, our courts adhere to it because it ensures that the validity of a technique is assessed by those most qualified to do so, it promotes uniformity of decision, and it hinders the admission of evidence based on new and possibly unaccepted principles that a lay juror might trust uncritically. (Id., 17 Cal.3d at pp. 30-32, 130 Cal.Rptr. 144, 549 P.2d 1240.)

The question of how to characterize the "general acceptance" issue under Kelly/Frye for purposes of defining appellate review of a trial court's determination has not been clearly stated in the case law. We believe, however, that "general acceptance" is best described as a mixed question of law and fact subject to limited de novo review. The issue, recently paraphrased as whether "a consensus of scientific opinion has been achieved" (People v. Brown (1985) 40 Cal.3d 512, 532, 230 Cal.Rptr. 834, 726 P.2d 516 (Brown ), reversed on unrelated grounds in California v. Brown (1987) 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934), is factual but not entirely so for purposes of review. The trial court's determination cannot be sustained, for example, on a mere finding that the record contains " 'sufficient evidence' " of the reliability of the challenged method. (People v. Shirley (1982) 31 Cal.3d 18, 54, fn. 32, 181 Cal.Rptr. 243, 723 P.2d 1354 (Shirley ), cert. den., 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114.)

The reviewing court undertakes a more searching review--one that is sometimes not confined to the record. Because it is impractical to parade a true cross-section of scientists before the court, the scientific literature may be considered on the ultimate issue of consensus. "[F]or this limited purpose scientists have long been permitted to speak to the courts through their published writings in scholarly treatises and journals. [Citations.] The courts view such writings as 'evidence,' not of the actual reliability of the new scientific technique, but of its acceptance vel non in the scientific community.... [I]f a fair overview of the literature discloses that scientists significant either in number or expertise publicly oppose [the technique], the court may safely conclude there is no such consensus at the present time." (Shirley, supra, 31 Cal.3d at p. 56, 181 Cal.Rptr. 243, 723 P.2d 1354.) Law articles, too, may be considered for that purpose. (Kelly, supra, 17 Cal.3d 24, 35, 130 Cal.Rptr. 144, 549 P.2d 1240.) This looking beyond the record can help end case-by-case controversy on the subject (Brown, supra, 40 Cal.3d 512, 533, 230 Cal.Rptr. 834, 726 P.2d 516) and is especially justified by the realization that "once a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community" (Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240).

On the other hand, a court...