People v. Young

• Decision Date: 05 August 1986
• Docket Number: Docket No. 67373
• Citation: 391 N.W.2d 270,425 Mich. 470
• Parties: , 66 A.L.R.4th 545 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allen YOUNG, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 270

391 N.W.2d 270

425 Mich. 470, 66 A.L.R.4th 545

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allen YOUNG, Defendant-Appellant.

Docket No. 67373.

Supreme Court of Michigan.

Argued June 4, 1985.

Decided Aug. 5, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David M. Funk, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys., Appellate Service, Lansing, for plaintiff-appellee.

State Appellate Defender Office by Ronald J. Bretz, Asst. Defender, Lansing, for defendant-appellant.

AFTER REMAND

LEVIN, Justice.

The question presented, in the words of the opinion of the Court on an earlier submission of this appeal, is whether "the results of serological electrophoresis [of dried evidentiary bloodstains] have achieved general scientific acceptance for reliability among impartial and disinterested experts" in the scientific community. ¹ We conclude that the people have not established such general scientific acceptance.

I

Defendant Jeffrey Allen Young was convicted of first-degree murder on evidence that the homicide was committed during the perpetration of a felony. The Court of Appeals affirmed.

The felony described in the information was burglary. On the earlier submission of Young's appeal to this Court, we held that at the time of the homicide ² the term burglary in the section of the Penal Code defining the offense of first-degree murder meant "breaking and entering of a dwelling house in the nighttime with an intent to commit a felony." ³ The people's evidence tended to show that the breaking and entering occurred in the daytime. ⁴

We further held that "the results of the blood analyses were [not] admissible at trial without a prior showing that the technique of serological electrophoresis enjoys general scientific acceptance among impartial and disinterested experts...." ⁵

We declined to respond to the question "whether the results of blood analyses are admissible to include an accused within the class of possible perpetrators" (emphasis in original) until "development of a record by the trial court at the hearing which we order to determine if serological electrophoretic analysis has achieved general scientific acceptance for reliability, Frye v. United States, 54 App DC 46; 293 F 1013 (1923); People v. Davis, 343 Mich 348; 72 NW2d 269 (1955), by disinterested and impartial experts, People v. Barbara, 400 Mich 352; 255 NW2d 171 (1977); People v. Tobey, 401 Mich 141, 257 NW2d 537 (1977)." ⁶

We declined to reduce the conviction to second-degree murder "pending resolution of the remaining issues in this case following remand," ⁷ and deferred as "premature" in "light of the hearing which we order" consideration of the prosecutor's argument that "a Davis-Frye error here, if any, was harmless beyond a reasonable doubt because of the other evidence of defendant's guilt adduced at trial." ⁸

We retained jurisdiction. ⁹ The hearing on the admissibility of the bloodstain evidence was held in the circuit court, and the record was transmitted to us. Our order did not require the circuit judge to file findings of fact, and he did not do so. Supplemental briefs were filed, and the cause was reargued.

II

Evaluating the scientific community's acceptance of the reliability of electrophoresis of dried evidentiary bloodstains presents some unusual problems. The number of scientists not working for a police agency who are familiar with electrophoresis of evidentiary bloodstains is small. If these scientists alone were considered, the community would be too small for a fair sampling of scientific opinion. There is, however, a larger number of nonforensic scientists using electrophoresis who are capable of evaluating the reliability of electrophoresis of evidentiary bloodstains if presented with the information they need to fill the gaps in their own knowledge and experience. The two groups combined constitute a group of scientists large enough to make a fair determination of whether electrophoresis of evidentiary bloodstains is generally accepted by experts in the scientific community.

The prosecution has the burden of establishing this community's general acceptance of the reliability of electrophoresis of evidentiary bloodstains. In the instant case, there is disagreement within the community on three separate issues: the length of time that genetic markers, particularly erythrocyte acid phosphatase (EAP), can be accurately read in dried blood, the reliability of the thin-gel multisystem analysis, and the effects of crime-scene contaminants. The prosecution did not fulfill its burden respecting the last two issues raised by the defense.

The only prosecution witness having substantial experience with electrophoresis of evidentiary bloodstains relied on his own unpublished observations and an unpublished reliability study by the developer of the multisystem to conclude that the thin-gel multisystem analysis was reliable. A defense witness questioned both the reliability of the technique and the study. The other prosecution witnesses were unfamiliar with the thin-gel multisystem, and their conclusion about the reliability of the method was based on the absence of any study showing that it did not work. No independently conducted reliability study supported that conclusion. Another defense witness said that the scientific community would not agree on the reliability of that conclusion without better supporting evidence.

Nor have comprehensive control tests been run with respect to the effects of crime scene contaminants. Prosecution witnesses testified, on the basis of their experience with bloodstains drawn under laboratory conditions, that they can identify bacterial contamination, at least if it is of the type normally encountered. They also claimed that bacterial contamination has not affected the reliability of the electrophoresis tests they have conducted. This is, however, the type of self-verification considered inconclusive in the scientific community. The record does not indicate that any work has been done on the effects of soil and chemical contamination on the reliability of electrophoresis.

We conclude that the scientific community's general acceptance of the reliability of electrophoresis of evidentiary bloodstains has not been established in the instant case. Reliability remains in dispute and unresolved because of the questions unanswered. The questions are not likely to be answered and the reliability of electrophoresis of evidentiary bloodstains established until independently conducted validation studies on the thin-gel multisystem analysis are undertaken and comprehensive control tests evaluating the effects of different contaminants are run, and the results have been subjected to the scrutiny of the scientific community. The evidence produced by electrophoresis should, therefore, not have been admitted.

If it were clear that the erroneous admission of the electrophoresis had not prejudiced the defendant, a new trial would not be required. In the instant case, however, it is not clear the error was harmless. The only witness testifying about electrophoresis at the trial said that this new technique was reliable and that the test results showed that only a small percentage of the population could have had the protein subtype and ABO combination found in the blood at the crime scene. It does not clearly appear that the other evidence offered by the prosecution would have dispelled all reasonable doubts in the jurors' minds.

III

Mitchell Lechtanski was last seen alive at 8:00 a.m. on May 16, 1978. At 11:00 a.m., Lechtanski's housekeeper entered his house and found its contents disturbed. She left immediately and called the police. At 11:30 a.m., police officers entered the house and found Lechtanski's body. There was a great amount of blood. The scene was secured and assistance summoned.

At 1:30 p.m., a detective found a trail of blood leading from Lechtanski's driveway to an intersection near a parking lot. Bloodstains were also found on the floor of the rear porch and on a stairway near a window that had apparently been broken to gain entry to the house.

At 3:55 p.m., State Police Crime Laboratory personnel arrived. A laboratory scientist used a damp cloth to obtain samples of dried blood from the sidewalk, stairway, and porch. Detective Stolorow received the stains at the end of May. The stains were accompanied by a brief description of "the location from which that blood was collected...."

The first electrophoretic testing was conducted on June 5.

"Electrophoresis is a physical method for the separation of biologically important proteins through the use of electric current. Proteins are very complex molecules which assume positive, negative, or neutral charges, depending on the solution in which they are placed. When these charged molecules are placed on an appropriate medium and subjected to an electrical field, they will migrate toward the pole of the opposite charge. Blood proteins vary in size, shape, density, and charge; consequently they vary in electrophoretic mobility. Therefore, after electrophoresis, they are separated into distinct bands on the supporting medium." ¹⁰

The distinct bands form characteristic patterns that reveal the protein subtypes.

The samples were tested for five different proteins: phosphoglucomutase (PGM), esterase D (EsD), glyoxylase 1 (GLO), erythrocyte acid phosphatase (EAP), and haptoglobin (Hp). Three of the genetic markers, EsD, PGM, and GLO, were tested simultaneously using a thin-layer starch gel multisystem analysis. The other two genetic markers were tested individually.

A test can yield no interpretable result, or it can reveal the specific subtype of a protein. Protein testing, like ABO blood-type testing, does not give a "yes-or-no" answer, rather, it indicates insufficient information, or it provides the subtype (i.e., for ABO: A, B, AB or O; for PGM: PGM,...