State v. Foote

• Decision Date: 29 May 1990
• Docket Number: No. 55306,55306
• Citation: 791 S.W.2d 879
• Parties: STATE of Missouri, Respondent, v. Michael FOOTE, Appellant.
• Court: Missouri Court of Appeals

Page 879

791 S.W.2d 879

STATE of Missouri, Respondent, v. Michael FOOTE, Appellant.

No. 55306.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 29, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 27, 1990.

Application to Transfer Denied July 31, 1990.

Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

SMITH, Judge.

Defendant appeals from his conviction of first degree murder and resultant sentence of life imprisonment without possibility of parole. The state did not seek the death penalty.

The victim was Alfred Foote, Jr., defendant's nephew. Because defendant challenges the sufficiency of the evidence to support the conviction some statement of the facts supportive of the verdict is required. Defendant lived with his mother. On the evening of the murder the mother had been taken to the hospital suspected of having had a heart attack. She was taken by one of defendant's brothers, Gregory. Several other brothers were at the house including Alfred Foote, the father of the victim. The victim's brother, Michael (hereinafter little Michael to distinguish him from the defendant) and the victim were also present. The two boys were respectively seven and ten years of age. Alfred, several brothers and friends decided late in the evening to go to the house of a friend where they engaged in some drinking. They left the victim and little Michael in the care of defendant. Little Alfred and little Michael got into an argument over a candy bar their father had left them. Defendant struck little Alfred hard several times on the forehead and Alfred began crying. After he had stopped, the two boys went to bed. Alfred, Sr. and two of his friends returned to the house around midnight. He went to awaken the boys to return to their home but found only little Michael in the bed. Little Michael, when awakened, told his father he did not know where his brother was. Slim Wyatt, a friend accompanying Alfred Sr. heard little Michael state that the defendant had taken Alfred, Jr. to the basement. It is not clear from the testimony whether anyone else was in the room or heard this statement.

The men began searching for Alfred, Jr. During the search Alfred, Sr. went into the basement and found the door open, which was unusual. He also saw the defendant coming into the back yard from the alley behind the house. Alfred, Sr. asked defendant where Alfred, Jr. was and defendant answered he did not know. Defendant then walked away, not answering when called. When he returned Alfred Sr. began physically struggling with defendant who did not return the blows. Police were summoned and arrested defendant for disturbing the peace. When arrested defendant was wearing jeans with bloodstains on them.

Eventually police followed a trail of blood drops from the basement to the rear of a vacant house several hundred feet away. There they found the body of Alfred, Jr. covered with plastic and plastic bags. He had been decapitated. The head was lying near the body. Brains were lying nearby. Electrical cords were found under the body. One of the cords had been seen in the basement of defendant's house previously. There were multiple wounds to the victim's head and defense cuts on his hands. The head wounds were administered by a cylindrical blunt instrument. Death originated from the head wounds. The victim was dead before the decapitation. That act was accomplished by a sharp object utilizing a sawing motion.

In the basement of defendant's home police found a pool cue containing blood. Bloodstains in the basement, on leaves located between the basement and the location of the body and near the body, and on the pool cue were compatible with the victim's blood. Bloodstains on defendant's jeans were similarly compatible. None of the stains were compatible with defendant's blood. In the defendant's home police found plastic sheeting, an empty box of plastic bags, and a knife under defendant's mattress. The knife could have been utilized for decapitation.

On appeal defendant raises six points. One is a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) challenge. Three involve an attack on the bloodstain testimony, one, involving three subpoints, challenges little Michael's statement, and one challenges the sufficiency of the evidence. We will discuss the issues in that order.

I. The Batson Challenge

The prosecution utilized five of its peremptory challenges to remove black veniremen. Two blacks were initially seated as jurors and a black alternate became a juror when another juror was excused during trial. The defendant in this case was black as was the victim and all the non-police, non-expert witnesses. The case is not one where a discriminating prosecutor would perceive an advantage in striking blacks from the jury. State v. Hood, 745 S.W.2d 785 (Mo.App.1988) . The trial court held an extensive hearing on the prosecutor's utilization of his strikes. The court dictated into the record an extensive set of findings to support its denial of the Batson claim. The prosecutor stated he desired no jury members who had exposure to scientific testings methods fearing that in that area a little knowledge could be dangerous. He exercised his peremptories as to that category of veniremen as to both blacks and whites. He additionally struck one venireman who had a long history of unemployment, and two veniremen whose brothers had been arrested. The trial court was satisfied with the prosecutor's explanations. We find no abuse of the trial court's considerable discretion.

II. The Bloodstain Evidence

Defendant posits three claims of error concerning the bloodstain evidence. The claims are interrelated. The tests performed to establish the compatibility of the bloodstains to the victim's blood and its non-compatibility to defendant's blood was a system known as the multisystem method of electrophoresis. It consists, overly simply stated, of exposing threads containing the dried blood to an electrical charge. The threads are placed into a gel before the charge. The charge causes the enzymes in the blood to form a series of bands in the gel which bands identify the enzymes contained in the blood. The blood of defendant differed from that of the victim only as to one subgroup of the enzyme PGM. Defendant's blood has PGM 1 while the victim's was PGM 2-1. There are no cases in Missouri which have upheld the admissibility specifically of the multisystem method of electrophoresis. ¹

Initially defendant attacks the acceptability of the test utilized. The standard to be applied for determining the admissibility of new scientific techniques is that articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Alsbach v. Bader, 700 S.W.2d 823 (Mo. banc 1985) l.c. 828; State v. Onken, supra. As stated in Frye, supra, l.c. 1014:

"... while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

Scientifically accepted principles are those which have proven to have wide following in the relevant scientific community to the point where, although possibly still controversial, the great majority of scientists in the field acknowledge their legitimacy. State v. Johnson, 42 N.J. 146, l.c. 171, 199 A.2d 809, l.c. 823 (1964) . In this case the trial court held an extensive pre-trial hearing concerning the acceptance of the multisystem method of electrophoresis. Testimony was adduced from Donna Bell, a biologist employed as a criminalist by the St. Louis Police Department, Mark D. Stolorow, Laboratory Director of the Illinois State Police with an M.S. in forensic chemistry, and Dr. Henry Gershowitz, a Ph.D. in genetics and Professor of Human Genetics at the University of Michigan. All three testified at length to the accuracy of electrophoresis and the multisystem method and to their acceptance in the relevant scientific community. This testimony also revealed that all states which have considered the question have admitted the evidence, save Michigan. See, People v. Young, 425 Mich. 470, 391 N.W.2d 270 (1986). Commonwealth v. Gomes, 403 Mass. 258, 526 N.E.2d 1270 (1988) (listing the states in which the issue has been addressed.) See since Gomes, Santillanes v. State, 765 P.2d 1147 (Nev.1988); State v. Rough Surface, 440 N.W.2d 746 (S.D.1989); Spencer v. Commonwealth, 384 S.E.2d 785 (Va.1989). The evidence before the court was sufficient to establish the admissibility of the tests under the Frye doctrine. State v. Onken, supra. Defendant's challenges to the procedures followed by Bell go to the weight of the evidence, not its admissibility. State v. Moore, 690 S.W.2d 453 (Mo.App.1985) . The trial court did not err in admitting the evidence of the multisystem electrophoresis testing.

Defendant also claims that he was unduly limited in his cross-examination of Bell and in the restriction in the testimony that would be allowed of a potential expert witness for the defendant. As a result of the restrictions, defendant did not tender its expert as a witness. We find no merit to these contentions. Bell was cross-examined extensively on her procedures, her qualifications, her skill and knowledge and the value and accuracy of her opinions. What the trial court would not allow were questions which sought to attack the efficacy of the electrophoresis testing and therefore its admissibility. The trial court took the position that that issue had...