Smith v. Deppish

• Decision Date: 01 March 1991
• Docket Number: Nos. 62939,63470,s. 62939
• Parties: Oliver K. SMITH, Jr., Appellant, v. William DEPPISH, as Sheriff of Geary County, Kansas, Appellee. STATE of Kansas, Appellee, v. Oliver K. SMITH, Jr., Appellant.
• Court: Kansas Supreme Court

Page 144

807 P.2d 144

248 Kan. 217

Oliver K. SMITH, Jr., Appellant, v. William DEPPISH, as Sheriff of Geary County, Kansas, Appellee.

STATE of Kansas, Appellee, v. Oliver K. SMITH, Jr., Appellant.

Nos. 62939, 63470.

Supreme Court of Kansas.

March 1, 1991.

Syllabus by the Court

1. It is the State's obligation to insure that an accused who is in custody is provided with a speedy trial. Delays which are the result of application or fault of the defendant are not to be counted in computing the 90-day statutory speedy trial period.

2. The standard of review for abuse of judicial discretion is whether the judge's ruling was arbitrary, fanciful, or unreasonable. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court.

3. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a four-factor test was established to determine whether a violation of a defendant's constitutional right to a speedy trial had occurred. The four factors are: (1) length of the delay; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice resulting to the defendant.

4. As discussed in Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1722-1723, 90 L.Ed.2d 69 (1986), the burden of proof required of a criminal defendant in order to establish a prima facie case of impermissible purposeful discrimination by the prosecution in the use of peremptory challenges during jury selection is to show he or she is a member of a cognizable racial group and that the prosecution used its peremptory challenges to strike persons of that group from the jury panel. Once defendant meets this burden of proof, it becomes the prosecutor's duty to come forward with a racially neutral explanation for the challenges.

5. Before expert scientific opinion may be received into evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. If a new scientific technique's validity has not been generally accepted as reliable or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence.

6. DNA print testing and the process of Restriction Fragment Link Polymorphism analysis have been recognized as reliable, have gained general acceptance in the scientific community, involve scientifically and professionally established techniques, and, thus, meet the criteria for admissibility under the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

7. While DNA print testing and the process of Restriction Fragment Link Polymorphism Analysis meet the standard of general acceptance in the scientific community and thus are admissible on that basis, such test results may be inadmissible on grounds of relevancy or prejudice as well as under traditional challenges to admissibility of evidence such as contamination of the sample or chain of custody questions.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, and Ralph J. DeZago, Public Defender, were with him on the briefs, for appellant Oliver K. Smith, Jr.

Steven L. Opat, Sp. Prosecutor, Junction City, argued the cause, and Edwin Wheeler, Marion, and Robert T. Stephan, Attys. Gen., were with him on the brief, for appellee.

LOCKETT, Justice:

This is a consolidated appeal by Oliver K. Smith, Jr., who was convicted by a jury in Geary County of felony murder (K.S.A. 21-3401) and rape (K.S.A. 21-3502). He claims that (1) his constitutional right and his statutory right to a speedy trial under K.S.A. 22-3402 were violated; (2) the State violated his right to equal protection in using two of its peremptory challenges to strike blacks from the jury panel; and (3) the trial court erred in admitting DNA profiling evidence. Smith appeals both his conviction and the court's denial of his habeas corpus petition.

At 6:30 p.m. on October 26, 1986, Robert Prine returned to his rural Marion County home from duck hunting. When Prine entered the unlocked and darkened house, he saw his wife, Shelly, lying on the living room floor in a pool of blood. Except for a At the St. Francis Medical Center in Wichita, Dr. Gary Porter performed a rape kit examination of Shelly Prine. The victim was pronounced dead at 8:36 a.m. on October 27, 1986. On October 28, 1986, an autopsy performed by Dr. William Eckert, a forensic pathologist, revealed the cause of death was two small-caliber gunshot wounds, which resulted from bullets fired at close range between the victim's eyes. There were no exit wounds. Four bullet fragments removed from the victim's body were deformed and not suitable for ballistics testing. The pathologist observed the victim had fresh bruises on her left shoulder and fresh scratches on her right biceps, and opined that she had been raped.

shirt and bra pushed up over her breasts, she was naked. Though shot twice in the head, Shelly Prine was still alive. Robert Prine went to a neighbor, Dana Gleason, to call for medical help. Gleason, who accompanied Prine back home, observed a small-[248 Kan. 219] caliber firearm shell casing near the victim. At 6:42 p.m. Gleason notified the sheriff's office of the shooting.

On October 26, 1986, the KBI searched the Prines' premises and outbuildings. The search revealed no forced entry, indicating the doors had been unlocked. The broken legs of the coffee table indicated a struggle had occurred. The KBI found a spent brass-colored .22 caliber shell casing on the living room floor where the victim's body had been lying and a pair of the victim's jeans stuffed under a small stool in the kitchen. In addition, the KBI collected carpet samples from the area where the victim was lying and blood samples from various areas of the house. From St. Francis Medical Center the KBI obtained the rape kit, bullet fragments, blood, and body and pubic hairs that were retrieved from the body of the victim at the time of the autopsy. All the evidence was sent to the KBI laboratory in Topeka.

The investigation revealed that none of the neighbors had observed anyone at the Prines' residence during the afternoon of October 26. However, one neighbor testified he had seen a motorcycle leave the Prines' house at approximately 5:15 p.m. Another neighbor stated she had heard and seen either a motorcycle or a three-wheeler at approximately 5:30 p.m. Based on the neighbors' reports and the shell casing, the KBI compiled a list of local residents who owned a motorcycle and a .22 caliber firearm.

Defendant Oliver K. Smith, Jr., was a friend of the Prines who worked with Robert Prine. Smith had visited the Prines' home on two occasions in September 1986. Smith owned a motorcycle, a .22 caliber rifle, and an AMT Lightning .22 caliber semiautomatic pistol.

On November 4, 1986, Smith voluntarily test-fired his .22 caliber rifle and AMT Lightning pistol for the KBI agents so they could compare the spent shell casings from his guns with the shell casing found near the victim's body. Weapons belonging to four other individuals were test-fired for comparison. The shell casing from Smith's .22 caliber AMT Lightning pistol matched the shell casing found in the Prines' home.

On November 14, 1986, the KBI obtained a search warrant for Smith's residence and vehicles. The KBI found the AMT Lightning pistol in a shoulder holster ring in Smith's pickup truck and his Yamaha Enduro 500 motorcycle in the garage. On November 20, 1986, the KBI obtained a search warrant to gather blood, saliva, hair samples, and fingerprints from Smith.

On December 18, 1986, the KBI, after Mirandizing Smith, interviewed him while his attorney was present. At that interview, Smith stated he had never had loaned the AMT gun to anyone. Smith said he had been to the Prines' house three times and on two of those occasions had been in the house. A KBI agent noted the distance between the Smiths' and Prines' residences was thirteen miles.

Bill Mueller, the KBI agent who interviewed Smith on October 26, 1986, testified Smith stated that he had gone deer hunting in the morning and in the afternoon had visited his cousin in Newton. Smith told Mueller he then had driven his Yamaha motorcycle to his friend's home in Newton and had stayed for three to four hours A forensic examination revealed semen stains on the victim's jeans as well as on a blanket discovered near her body. At trial Eileen Burnau, a criminalist with the KBI forensic laboratory in Topeka, testified that, although Prine was excluded as a contributor to the samples taken from the jeans, he could have contributed the semen taken from the vaginal swabs and the blanket samples. Her test indicated that Smith was included in the approximately 20 percent of the black population that could have contributed the semen found on the victim's jeans.

before returning to his home between 7:00 and 8:00 p.m.

Burnau testified about the tests conducted on Smith's AMT gun and holster for the presence of blood. There were bloodstains in three places on the holster. Human blood was found on the edge of the holster. The blood samples on the gun were insufficient to determine whether the blood was human or animal blood.

Phillip Aviles, KBI laboratory criminalist, found two Negroid body hairs on the carpet samples. Prine testified Smith was the only black person that had been in his home. Prine further testified that his wife had vacuumed the carpet between Smith's visits in September 1986 and the October 26, 1986, shooting.

After the State offered its forensic evidence on the blood typing, a Frye-type hearing was held on the defense's motion to exclude DNA profiling evidence. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The trial court denied Smith's motion to exclude the DNA evidence.

The State's DNA experts informed the jury that the DNA test excluded all but .2 percent of the white population and...