State v. Murdock, 56074

• Decision Date: 26 October 1984
• Docket Number: No. 56074,56074
• Citation: 689 P.2d 814,236 Kan. 146
• Parties: STATE of Kansas, Appellee, v. Bennie R. MURDOCK, Appellant.
• Court: Kansas Supreme Court

Page 814

689 P.2d 814

236 Kan. 146

STATE of Kansas, Appellee, v. Bennie R. MURDOCK, Appellant.

No. 56074.

Supreme Court of Kansas.

Oct. 26, 1984.

Syllabus by the Court

1. An expert witness who is shown to be qualified may testify as to the identity of fingerprints.

2. The qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court. Its ruling thereon will not be disturbed on appeal unless the appellate court finds an abuse of discretion.

3. The opinion testimony of an expert is to be considered as any other testimony and should receive only such weight as the factfinder determines proper.

4. The opinion of an expert witness must be based upon facts personally perceived by or known to him or made known to him at the hearing. "Perceived" means knowledge acquired through one's own senses; "made known" refers to facts put into evidence.

5. Upon cross-examination of a fingerprint expert, it was disclosed that she had no recollection of the points of identity, that she made no notes on the three occasions she compared the fingerprints, and that she had no enlargements of the fingerprints she compared. Such matters go to the weight and credibility of the expert testimony, and not to its admissibility.

6. It is the general rule that photographs that accurately portray what they purport to show are admissible in evidence. The degree of accuracy required, however, varies depending upon the purpose of the photograph.

7. The trial court's exclusion of photographic exhibits which were unclear, which could not be used by an expert witness for the purpose for which they were offered, and which would not be helpful to the jury, was not error.

8. An information in the ordinary form charging that a killing was done with malice aforethought, deliberation and premeditation is sufficient to sustain instructions upon and a conviction of murder in the first degree committed in the perpetration of a robbery or burglary.

9. When a murder is committed during the commission of a felony, the rule requiring the giving of instructions on lesser included offenses does not apply. We recognize an exception to the rule when there is extremely weak or conflicting evidence that the underlying felony was committed and where the evidence supports a conviction of the lesser crime.

N. Trip Shawver, of Shawver & Rathbun, Wichita, argued the cause and was on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause; Kimberly Gee Vines, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on brief, for appellee.

MILLER, Justice:

This is an appeal by Bennie Murdock from his conviction of first degree felony murder, K.S.A. 21-3401, aggravated burglary, K.S.A. 21-3716, and rape, K.S.A. 21-3502, by jury trial in Sedgwick District Court. He contends that the trial court erred in refusing to strike the testimony of the State's fingerprint expert, Detective Vickie Abele, in excluding photographic slides of fingerprints offered in evidence by the defendant, in overruling defense objections to questions asked by the prosecution on cross-examination of the defendant, in failing to give an instruction on premeditated murder, in giving a felony murder instruction, and in failing to instruct on lesser degrees of homicide. He also contends that the evidence is not sufficient to support the convictions. Since the sufficiency of the evidence is challenged, we will review it in some detail.

On February 8, 1983, the body of ninety-year-old Tressa Corsaut was found in her apartment in the Shirkmere Hotel in Wichita, Kansas. An autopsy disclosed numerous injuries to the victim's hands, face, and clavicle area, all of which were classified by the pathologist, Dr. William G. Eckert, as "blunt injuries," consistent with her being hit repeatedly with a fist. The autopsy also disclosed laceration on the back wall of her vagina which caused a considerable amount of bleeding. Dr. Eckert testified that this injury was consistent with the insertion of a penis into the vagina, and that the injury probably occurred prior to death. The victim had a pink dressing gown wrapped around her neck and Dr. Eckert expressed the opinion that the cause of death was anoxia, the shutting off of oxygen to the brain, caused by strangulation. The victim was a very neat housekeeper; her apartment was in general disarray, drawers were open, a purse and wallet were found open, and the rooms appeared to have been ransacked.

The defendant had lived in the Shirkmere building until about ten months before the homicide. When he was arrested, he still had in his possession a key to the outside door of the building. He testified that he had returned to the apartment building several times after moving but that he always stayed downstairs in the lobby and had never been in the victim's apartment nor on the fifth floor where it was located. He testified that he did not know how his fingerprints could have gotten on the door slats or on the telephone in her apartment.

Another tenant who lived next door to Mrs. Corsaut testified that on February 7, the night before the victim's body was discovered, a man knocked on his door and said, "We are working, or looking about a steam leak." Later, he saw the same man knocking on someone else's door on the same floor, just down the hall from him. He saw no one else. He identified the defendant as the person he had seen in the hallway outside his apartment on the evening of February 7.

Detective Vickie L. Abele of the Wichita Police Department examined the scene for latent fingerprints. She found fingerprints on wooden slats that had been torn from the outer door and left in the apartment, and she also found fingerprints on a telephone which was on the bed beside the victim. She photographed the fingerprints found on the wooden slats so that the photograph was the actual size of the fingerprints, a one-to-one ratio. She was able to lift the fingerprints from the telephone with tape, and that tape was mounted on matte acetate cards. The photograph of the fingerprints lifted from the wooden slats, the matte acetate cards with the prints lifted from the telephone, and several sets of rolled-ink fingerprints of the defendant were all received in evidence. The witness testified that she compared the fingerprints shown in the photograph of the slats and the fingerprints lifted from the telephone with known rolled-ink fingerprints of the defendant. She compared them on February 9, 1983, and two or three times thereafter, using magnification. She testified that she would not make a positive identification unless she found at least eight points of identification. On each occasion that she compared the latent prints with the known prints of the defendant, she found at least twelve points of identification. She testified that in her opinion the latent fingerprints on the wooden slats and on the telephone were made by the same person who made the rolled-ink impressions: the defendant.

On cross-examination, Detective Abele testified that she did not make any notes during her comparisons and she could not recall the specific points of identification. The defendant moved to strike Detective Abele's testimony due to her inability to recall the points of identification. The court overruled the motion.

The defendant offered in evidence slide photographs of the fingerprints; the State objected to the exhibits. A hearing was held out of the presence of the jury. Detective Abele testified that the slide photographs were not taken to scale and that they were not clear. She testified that she would not be able to make a comparison by the use of these particular slide photographs. At the conclusion of the hearing the trial court sustained the objection, observing that the slides of the matte acetate prints "just look like blurs to me."

The first point raised is the defendant's claim that the trial court erred in refusing to strike the testimony of Detective Abele. He contends that the witness's inability to recall the specific points of identification she found during her comparison of the fingerprints found at the scene and the known fingerprints of the defendant, as well as her failure to make notes at the time she made her comparison and produce them at trial, interfered with defendant's right to effectively cross-examine the witness. He also contends that the witness could have provided enlarged photographs of the prints or she could have brought her portable comparator to the courtroom to show the jury the points that she utilized in making the identification.

An expert witness who is shown to be qualified may testify as to the identity of fingerprints. 23 C.J.S., Criminal Law § 876; 22A C.J.S., Criminal Law § 616; 31 Am.Jur.2d, Expert and Opinion Evidence § 123; 2 Jones on Evidence § 435 (5th ed. 1958). The purpose of such testimony is, of course, to establish the identity or non-identity of a person accused and one whose fingerprints are found at the scene of a crime. The qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court. Its ruling thereon will not be disturbed on appeal unless the appellate court finds an abuse of discretion. State v. Jones, 233 Kan. 112, 660 P.2d 948 (1983); State v. Churchill, 231 Kan. 408, 413, 646 P.2d 1049 (1982). The opinion testimony of an expert is to be considered as any other testimony and should receive only such weight as the factfinder determines proper. In re Adoption of Irons, 235 Kan. 540, Syl. p 2, 684 P.2d 332 (1984); and see A.T. & S.F. Rld. Co. v. Thul, 32 Kan. 255, 261, 4 Pac. 352 (1884). The opinion of an expert witness must be based upon facts personally perceived by or known to him or made known to him at the hearing. "Perceived" means knowledge acquired...