State v. Hasan, 13074

• Decision Date: 15 December 1987
• Docket Number: No. 13074,13074
• Citation: 205 Conn. 485,534 A.2d 877
• Court: Connecticut Supreme Court
• Parties: , 71 A.L.R.4th 1137 STATE of Connecticut v. Wendell HASAN.

Page 877

534 A.2d 877

205 Conn. 485, 71 A.L.R.4th 1137

STATE of Connecticut v. Wendell HASAN.

No. 13074.

Supreme Court of Connecticut.

Argued Oct. 2, 1987.

Decided Dec. 15, 1987.

Michael O. Sheehan, Sp. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on the brief, was Bruce Hudock, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

HULL, Associate Justice.

The sole issue in this appeal is whether the trial court erred in admitting the testimony of a podiatrist identifying as the defendant's a pair of sneakers linked to the scene of the crimes with which he was charged.

After a jury trial, the defendant, Wendell Hasan, was found guilty of felony murder; General Statutes § 53a-54c, ¹ and burglary in the first degree. General Statutes § 53a-101(a)(2). ² This appeal followed.

The jury could reasonably have found the following facts. On July 2, 1985, the police were called to the home of George and Rachel Tyler to investigate a possible homicide. The police found George Tyler dead in the kitchen, Rachel Tyler injured, and the premises apparently ransacked. The Tylers' son and daughter-in-law determined that George Tyler's wallet was missing as was some of Rachel Tyler's jewelry. Among the evidence secured by the police were broken glass and linoleum bearing a bloody footprint made by a sneaker. Police suspicion turned to the defendant when, on July 5, 1985, a plumber repairing a clogged toilet in a South Norwalk apartment found two credit cards belonging to George Tyler to be the cause of the clog. The plumber turned the cards over to the owner of the apartment, who reported the find to the police. The police obtained a warrant to search the apartment.

The defendant had been living at the South Norwalk apartment intermittently; it was also occupied by his mother, stepfather, his brother, James Singleton, two sisters and James' girlfriend. Pursuant to the warrant, the police seized several pairs of shoes, including a pair of size ten Puma low cut sneakers which they found at the foot of the bed in which James and his girlfriend slept. The bedroom was actually the defendant's and most of the belongings there were his. James told the police that the sneakers were the defendant's and that his own shoe size was thirteen. During custodial interrogation, the defendant stated that the apartment was his primary residence and that he owned a pair of Puma sneakers like the ones seized.

The conviction depended in large measure on circumstantial evidence. Glass shards and linoleum fibers found in the sole of one of the sneakers, were similar to the mass produced glass and linoleum located at the crime scene, but could not be positively identified as having come from there. Similarly, human blood detected on the sneakers was consistent with the victims' blood, but could not be positively identified as theirs. During trial, a forensic expert from the Connecticut state police forensic laboratory identified the Puma sneakers as those that made the footprints on the Tylers' kitchen floor. James testified that the defendant had been in and out of the apartment between July 1 and July 3, 1985, and that he had concluded that the sneakers belonged to the defendant because they were in his room under his bed. A former cellmate of the defendant testified that the defendant had admitted to having taken part in the crime.

In addition to the foregoing, the jury heard the testimony of Dr. Robert Rinaldi, a podiatrist called by the state as an expert witness, who concluded "within reasonable podiatric certainty" that based on his examination of the sneakers and the defendant's feet, the sneakers belonged to the defendant. The defendant excepted to the admission of this testimony ³ and appeals on this ground.

The admissibility of expert testimony depends on whether the witness offered as an expert possesses " ' "any peculiar knowledge or experience, not common to the world, which renders [his] opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue." ' " State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Esposito, 192 Conn. 166, 175, 471 A.2d 949 (1984); C. Tait & J. LaPlante, Connecticut Evidence (1976) § 7.16, p. 96. The knowledge may be drawn from reading alone, from experience alone, or from both. State v. Esposito, supra. Whether a witness is qualified to testify as an expert is a matter that lies within the discretion of the trial court. State v. Palmer, 196 Conn. 157, 167, 491 A.2d 1075 (1985). Expert testimony is admissible if the witness possesses a special skill or knowledge directly applicable to a matter in issue, the skill or knowledge is not commonly shared by the average person, and the testimony would be helpful to the court or jury in considering the issues; State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); or in teaching the jury to view items of physical evidence by focusing their attention on certain salient features. State v. Palmer, supra, 196 Conn. 166, 491 A.2d 1075. Absent an abuse of discretion, we will not disturb a trial court's decision in admitting or excluding such testimony. Id.

Many jurisdictions have adopted a special rule for admissibility of scientific evidence, in accordance with Frye v. United States, 293 F. 1013 (D.C.App.1923). C. Tait & J. LaPlante, Connecticut Evidence (1983 Sup.) § 7.16, p. 55; C. McCormick, Evidence (3d Ed.1984) § 203, p. 606. There the court stated: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and 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." Frye v. United States, supra, 1014.

The Frye "general acceptance" test has been employed to assess the admissibility of spectrographic voice analysis; People v. Kelly, 17 Cal.3d 24, 549 P.2d 1240, 130 Cal.Rptr. 144 (1976); Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671 (1975); ion microprobic analysis of hair samples; United States v. Brown, 557 F.2d 541 (6th Cir.1977); and hypnotically refreshed recollection. People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal.Rptr. 243, cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982). We have acknowledged that Frye sets forth the prevailing standard for evaluating the admissibility of evidence derived from innovative scientific techniques. Moore v. McNamara, 201 Conn. 16, 30, 513 A.2d 660 (1986). We have expressly applied it to polygraph testing; State v. Miller, 202 Conn. 463, 484, 522 A.2d 249 (1987); and to human leukocyte antigen testing for paternity. Moore v. McNamara, supra. We have applied the "general acceptance" standard, without reference to Frye, in State v. Mitchell, 169 Conn. 161, 169-70, 362 A.2d 808 (1975) (polygraph testing), Molino v. Board of Public Safety, 154 Conn. 368, 376-77, 225 A.2d 805 (1966) (polygraph testing), and State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (police radar).

The defendant argues that the evidence elicited from Rinaldi was scientific evidence subject to the standard for admissibility articulated in Frye. We disagree.

"The Frye test finds its rational basis in the degree to which the trier of fact must accept, on faith, scientific hypotheses capable of proof or disproof in court and not even generally accepted outside the courtroom." People v. Marx, 54 Cal.App.3d 100, 110, 126 Cal.Rptr. 350 (1975). Frye contemplates those situations in which the evidence sought to be admitted is beyond the understanding of the ordinary juror who must sacrifice his independent judgment in deference to the expert. People v. Marx, supra, 110-11, 126 Cal.Rptr. 350. Among the dangers created by such scientific evidence is its potential to mislead lay jurors "awed by an 'aura of mystic infallibility' surrounding 'scientific techniques,' 'experts' and the 'fancy devices' employed." United States v. Williams, 583 F.2d 1194, 1199 (2d Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979). The fact that a technique or method has gained general acceptance in the scientific community to which it belongs tends to ensure that the jury will not accord undue weight to theories whose validity has not been adequately tested. People v. Kelly supra, 17 Cal.3d 31-32, 549 P.2d 1240, 130 Cal.Rptr. 144.

Such infirmities do not inhere in all types of expert evidence. Accordingly, the Frye test has been either ignored or rejected in cases in which the method used by the expert was a matter of physical comparison rather than scientific test or experiment; Ex parte Dolvin, 391 So.2d 677 (Ala.1980) (identification of skeletal remains by comparing teeth and facial structure with photographs of victim; Frye inapplicable); the basic data upon which the expert relied was verifiable by the factfinder; People v. Marx, supra (bite mark identification; trier shown models, photographs, X-rays and slides of victim's wounds and defendant's teeth; Frye inapplicable); or where established techniques were applied to the solution of novel problems. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981) (bite mark identification by application of dentistry and photography; Frye ignored). Many of these cases have involved identification of bite marks by comparison of the defendant's dental impressions to bite marks found on a victim's body; see, e.g., State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985); People v. Marx, supra; Niehaus v. State, 265 Ind. 655, 359...