State v. Kersting

• Decision Date: 21 April 1981
• Docket Number: No. C,C
• Citation: 50 Or.App. 461,623 P.2d 1095
• Parties: , 40 A.L.R.4th 579 STATE of Oregon, Respondent, v. Dennis Dean KERSTING, Appellant. 79-01-30263; CA 15260.
• Court: Oregon Court of Appeals

Page 1095

623 P.2d 1095

50 Or.App. 461, 40 A.L.R.4th 579

STATE of Oregon, Respondent, v. Dennis Dean KERSTING, Appellant.

No. C 79-01-30263; CA 15260.

Court of Appeals of Oregon.

Argued and Submitted Nov. 26, 1980.

Decided Feb. 17, 1981.

Reconsideration Denied March 26, 1981.

Review Allowed April 21, 1981.

Phillip M. Margolin, Portland, argued the cause and filed the briefs for appellant.

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

BUTTLER, Judge.

Defendant appeals his conviction for the murder of a young woman. He assigns as error the admission in evidence of (1) expert testimony regarding identification of hair by microscopic comparison, (2) testimony regarding a statement made by defendant to Jim Juan, and (3) a photograph of the victim. Defendant also challenges (4) the trial court's refusal to allow certain cross-examination of one of the state's witnesses, and (5) the denial of his motions to suppress and dismiss based on the destruction of blood samples found in his tow truck. We affirm.

Shellie Szabo met her death by being stabbed over 15 times in the early morning hours of November 26, 1978. Rope burns were found on her wrists and several human hairs and rope fibers were found on her person. Time of death was placed at shortly after 3 a. m. Ms. Szabo worked as a prostitute and generally served well-to-do businessmen. Her most common modus operandi was to arrange to meet a customer at a restaurant, after which they would go to a motel. She charged a minimum of $50.

Ms. Szabo was pursuing her occupation on the night of the murder. She was seen downtown near a phone booth at about 2:10 a. m. The switchboard operator at the motel where she and her boyfriend were staying testified that Ms. Szabo called for her boyfriend at 2 a. m. that night. A businessman, who was both a friend and a customer of the victim, was out late that night. On his way home he decided to try to find Ms. Szabo because she had left several messages on his telephone answering device during the preceding few days. He drove to a restaurant he knew she frequented, but did not find her. He decided to try another restaurant; while en route, and as he approached the intersection of Grand and Holladay at about 3:05 a. m., he noticed a tow truck in front of him in the lane to his left. As he pulled alongside the truck, he saw Ms. Szabo sitting in the passenger seat. She looked directly at him from a distance of about six feet but she did not wave to him when she saw him, which he thought unusual. She had a look of terror on her face and was signaling to him by moving her head and shoulders, and thus appeared to be bound. The tow truck turned left at the intersection, and although Ms. Szabo's friend turned around to follow the truck, he lost it in the fog. He continued unsuccessfully to look for her and finally went home at 5 a. m. He was so disturbed by the incident that upon arriving home he woke his wife to tell her about it. The next day, when he discovered that Ms. Szabo had been murdered, he reported the incident and gave a description of the truck to the police.

The description of the tow truck led the police to Gerlock Towing, where defendant worked. Upon searching the truck assigned to defendant, the police found small amounts of encrusted blood and a rope with drops of blood on it. Vacuum sweepings of the truck's interior contained fibrils which were consistent with the material of the victim's sweater. The rope fibers found on the victim were consistent with the rope in the truck. A luminol test performed on the truck seat indicated that a large amount of blood had been present on the seat and seat-back.

The police first contacted defendant on November 29th for questioning. Defendant is a knife collector who enjoyed obtaining and carrying knives. Defendant was searched and five pocket knives were found on his person. Police seized 13 more knives upon searching defendant's home.

At first, defendant denied any knowledge of Ms. Szabo or her murder. He stated that he left home the night of the murder at about 12:30 a. m. to buy a Coke. Afterward, he went by two friends' homes, but when he found no one home he drove to a restaurant at Ninth and Burnside where he stayed for about two hours, watching people from his truck. He then drove home about 3 a. m.

The next day when defendant was questioned again, he admitted having seen Ms. Szabo at the restaurant and having engaged her for a sexual act. He said she agreed to perform oral sex in his truck for $20, paid for with two fives and a ten dollar bill, and that they drove about four blocks away to complete the act. After about 20 minutes he drove her back to within two blocks of the restaurant. He stated he last saw her walking toward the restaurant in her socks, carrying her shoes.

Defendant further stated that he had not cleaned the inside of his truck for six or seven months, although he had washed the outside the previous Friday. Defendant testified at trial, however, that he cleaned the inside of his truck every Friday in order to get his paycheck, and denied having told the police that he had not cleaned the interior for six months.

Police investigators found Ms. Szabo's shoes lying near her body, which was found in bushes approximately one mile from where defendant's tow truck had been seen with Ms. Szabo in it and along the route the tow truck appeared to be following. Except for dirt on one of the victim's heels, which corresponded with a drag mark near the body, her white socks were clean and dry. Forty-five dollars were found in the victim's left sock, but no five dollar bills were present. The autopsy revealed that the victim's wounds were consistent with a strong, doubly-incised blade one inch in width. None of the wounds was deeper than seven inches. One of the wounds had a hilt mark on it consistent with the unique hilt of a "Mark II" survival knife seized from the defendant. The "Mark II" knife has a seven and one-half inch, doubly-incised blade. The man who sold the "Mark II" knife to defendant testified that his records showed he had sold two such knives to defendant. A second knife was not found.

I.

Defendant first assigns as error the trial court's admission of expert testimony on microscopic hair analysis and comparison. Ms. Carpenter, the state's expert, testified that hairs found in the decedent's hand, outer sweater, and turtleneck sweater were "similar" to or "indistinguishable" from hair samples taken from defendant. Defendant challenges this evidence on the grounds that (1) Ms. Carpenter was not qualified as an expert witness, and (2) microscopic hair comparison should not be admissible unless the scientific method used to make the comparison is generally accepted as reliable in the scientific community.

At trial defendant did not challenge Ms. Carpenter's qualifications as an expert, so that issue is not properly before us. Accordingly, we consider only the second argument.

Defendant's contention that the questioned evidence should not have been admitted raises issues which have attracted the attention of courts, attorneys, and forensic professionals for many years in an effort to resolve the question of what standard should govern the admissibility of scientific evidence. See generally, Mossens and Inbau, Scientific Evidence in Criminal Cases, § 1.03 (2d ed. 1978). Two basic approaches have evolved. The first is that scientific evidence is not admissible unless the scientific technique in question has gained general acceptance in the relevant scientific community. The second approach is that scientific evidence is admissible once a showing of its reasonable reliability is made, without regard to whether the method has attained general acceptance. Oregon has not yet taken a definitive position on this issue.

The case of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), formed the genesis of the rule which requires that, prior to the admission of expert testimony based on the application of a scientific technique, a foundation must be laid as to general acceptance of the technique within the relevant scientific community. Frye involved a defendant's attempt to introduce evidence of a systolic blood pressure test (a precursor to the modern polygraph test) which indicated his innocence. 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." (Emphasis supplied.) 293 F. at 1014.

The rationale of Frye ¹ has since been applied by an apparent majority of courts determining the admissibility of scientific evidence. See Reed v. State, 283 Md. 374, 391 A.2d 364, 97 A.L.R.3d 201, 207-09 (1978); Annot., 97 A.L.R.3d 294 (1980) (admissibility of voice print evidence); McCormick, Evidence § 203, at 488-89 (2d ed. 1972).

A minority of courts have rejected the Frye approach as unnecessarily restrictive to the admissibility of otherwise relevant scientific evidence. These courts have adopted, instead, a "reliability" test, under which scientific evidence is admissible if the trial court determines that a foundation as to its reasonable reliability has been made. E. g., United States v. Baller, 519 F.2d 463, cert. den. 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (4th Cir. 1975); State v. Hall, 297 N.W.2d 80, 86 (Iowa 1980); see Annot., 97 A.L.R.3d, supra at...