State v. Dirk

• Decision Date: 30 November 1984
• Docket Number: No. 14573,14573
• Citation: 364 N.W.2d 117
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kevin DIRK, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 117

364 N.W.2d 117

STATE of South Dakota, Plaintiff and Appellee, v. Kevin DIRK, Defendant and Appellant.

No. 14573.

Supreme Court of South Dakota.

Considered on Briefs Nov. 30, 1984.

Decided Feb. 27, 1985.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Jane M. Farrell of Farrell, Farrell & Ginsbach, Hot Springs, for defendant and appellant.

WOLLMAN, Justice.

Defendant was found guilty by a jury of having committed the crime of third-degree burglary. SDCL 22-32-8. We affirm.

Sometime during the evening of November 18, 1983, defendant and Catherine Starr decided to go to a movie. Defendant and Ms. Starr had been drinking together earlier in the day, having consumed a half pint of whiskey and four or five quarts of wine referred to in the record as "Mad Dog 20-20." The two set out for the movie, accompanied by two nieces and one nephew of Ms. Starr. As the group walked by the business establishment known as the Pioneer Trading Post (Trading Post), defendant informed Ms. Starr that he had to relieve himself, whereupon he walked around the side of the Trading Post while the others continued walking towards the theater. Upon rejoining the group, defendant told Ms. Starr that he had broken a window.

After the movie, Ms. Starr returned to her mobile home with defendant, where they resumed drinking. When Ms. Starr refused defendant's request that she return with him to the Trading Post, defendant became angry and began striking Ms. Starr. Ms. Starr left the mobile home to escape the beating and sat under a tree near a neighboring mobile home, where she continued to drink her wine. When she returned to her mobile home later that night, she discovered that defendant was not there.

Several days before this incident Ms. Starr had accompanied defendant to the Trading Post for the purpose of pawning a keychain. As they left the store that day, defendant remarked to Ms. Starr that there were a lot of nice things in the store.

During the evening of November 18, 1983, defendant was wearing a brown corduroy coat that belonged to one of Ms. Starr's friends. Defendant had worn the coat on several earlier occasions.

At 1:56 a.m., November 19, 1983, an alarm sounded at the Hot Springs Police Department indicating an intrusion at the Trading Post. The investigating officers and the owner of the store discovered a broken window on the south side of the building. It was determined that someone had entered the building, apparently cutting himself on the broken glass, and had removed several handguns from a case in the front part of the store. There were several blood spots on the floor along the side of and behind the gun case. The handguns, together with several other items, were found in a box sitting on a bench below the broken window through which the entry had been made. A rifle had also been moved to that area.

The investigating officers discovered a brown corduroy coat, a suitcase, a maroon purse containing a piece of broken glass and a kitchen knife, and a honing steel lying under a trailer that was parked near the broken window. There was a flashlight and a sock with a red and blue top in the pockets of the coat.

A white sock with blue and red striping was found under the rear wheel of a car that was parked near the Trading Post. The officers observed that there was a moist red substance on the sock.

Shortly after 3:00 a.m. on November 19, Chief of Police Gary Larson, who had just completed his on-the-scene interrogation of one of the two persons whom the investigating officers had observed in the immediate area upon responding to the alarm (both of whom were determined not to have participated in the break-in) observed defendant walking in the alley close to the Trading Post. Upon being requested by Officer Larson to produce some identification, defendant displayed his driver's license. Defendant then complied with Officer Larson's request for permission to look at defendant's hands. Officer Larson observed a cut between the thumb and index finger on defendant's left hand. The cut appeared to have recently been bleeding. Defendant was taken to the police station, where he was arrested on a charge of possessing marijuana following an inventory of the contents of his pockets. He was later formally arrested and charged with the offense giving rise to this prosecution.

Ms. Starr was arrested at her mobile home at approximately 4:00 a.m. on November 19, 1983. She testified on behalf of the state under a grant of immunity. She identified the coat found under the trailer as the one that defendant had been wearing on the night of November 18-19 and identified the other items as belonging to her mother. She identified the socks found in the coat pocket and under the car as being similar to ones that she owned.

A specimen of defendant's blood, taken pursuant to court order, was sent to the forensic laboratory of the Division of Criminal Investigation in Pierre, along with specimens of the dried blood found in the interior of the Trading Post.

One of the witnesses for the state was Rex Riis, who at the time of trial had been employed by the Division of Investigation's forensic laboratory for some five and one-half years. Riis holds a Master of Science degree in zoology. His graduate work consisted primarily of a special study in physiology and serology. In addition to his regular academic course of study, Riis has had additional graduate level training in biochemical analysis of blood stains at the Federal Bureau of Investigation Academy in Quantico, Virginia. He has also attended a two-week course in serology and forensic applications thereof offered by the Serologic Institute of Emeryville, California. He has also had forensic serology training at the state crime laboratories in Iowa, Montana, Washington, and Minnesota. Riis had testified in other courts regarding the theories and techniques used in analyzing blood and blood tissue and the results of his analysis of various samples of blood and blood tissue.

Over defendant's objections, Riis was permitted to testify regarding the tests that he had performed with respect to the samples of dried blood taken from the Trading Post, the blood on the sock that was found beneath the car, and the blood sample taken from defendant. The tests conducted by Riis included the determination of the blood group to which the samples belonged, together with an analysis of the enzymes esterase and phosphoglucomutase. Riis testified that the tests indicated that all of the samples were esterase type one and phosphoglucomutase type one and that they all belonged to blood group A. Riis stated that these tests were recognized as being scientifically reliable and accurate. He testified that eighteen to nineteen percent of the total population possesses blood with the characteristics revealed by the tests. Stated conversely, the tests excluded some eighty-one percent of the general population as possible sources of the blood found within the Trading Post and on the sock.

We turn, then, to the issues raised by defendant.

I.

Admissibility Of Expert Testimony Regarding Blood

Identification Factors Other Than A, B, O Grouping.

Defendant contends that the court erred in denying his motion in limine objecting to Riis' testimony regarding the enzyme analysis of the blood samples. Defendant's objection to the admission of this testimony was based upon Riis' alleged lack of credentials as an expert witness and upon the ground that the enzyme analysis identification process is not a type of test reasonably relied upon by experts in the field. We hold that neither objection is well taken.

The admission of expert testimony is governed by our court-adopted rules of evidence. SDCL 19-15-2 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

As we indicated in State v. Shell, 301 N.W.2d 669 (S.D.1981), the foregoing rule is patterned after Rule 702 of the Federal Rules of Evidence. In Shell we adopted the same standard of review with respect to our rule that the federal courts have applied to Rule 702. Under this standard, the trial court has broad discretion in determining the qualifications of expert witnesses and in admitting expert testimony. The trial court's decisions in this regard will not be reversed in the absence of a clear showing of an abuse of that discretion.

We hold that there was no abuse of discretion by the trial court in admitting the challenged testimony in view of Riis' academic and post-academic training, as well as his experience in conducting serologic tests of blood samples. As did the trial court in Shell, supra, the trial court gave the jury in the present case an appropriate instruction concerning its right to give the expert testimony the weight to which it found it to be entitled.

Likewise, we hold that the trial court did not err in overruling defendant's challenge to the scientific reliability of the enzyme analysis procedure.

In State v. Helmer, 278 N.W.2d 808 (S.D.1979), we applied to breathalyzer test results the test of admissibility of scientific evidence set forth in Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923). To be admissible under the Frye test, the scientific principle or technique must be shown to have "gained general acceptance in the particular field in which it belongs." 293 Fed. at 1014.

In support of his contention that the enzyme testing procedure of dried blood samples does not meet the test of scientific reliability set forth in Frye, defendant cites Johakait, "Will Blood Tell? Genetic Markers in Criminal Cases," 31 Emory L.J. 833, 880 (1982):

While experiments with laboratory-prepared bloodstains...