State v. Salmon

• Decision Date: 08 October 2002
• Docket Number: No. WD 59916.,WD 59916.
• Citation: 89 S.W.3d 540
• Parties: STATE of Missouri, Respondent, v. William C. SALMON, Appellant.
• Court: Missouri Court of Appeals

Page 540

89 S.W.3d 540

STATE of Missouri, Respondent, v. William C. SALMON, Appellant.

No. WD 59916.

Missouri Court of Appeals, Western District.

October 8, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 26, 2002.

Wendell G. Jaco, Kansas City, MO, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, MO, for respondent.

Before BRECKENRIDGE, P.J., LOWENSTEIN and SMART, JJ.

PATRICIA BRECKENRIDGE, Judge.

William Salmon was convicted by a jury of first degree murder, § 565.020, RSMo 2000,¹ and sentenced to life imprisonment without the possibility of parole. On appeal, Mr. Salmon alleges that his conviction should be reversed because the trial court erred by (1) admitting polymerase chain reaction short tandem repeat DNA (deoxyribonucleic acid) evidence without first holding a Frye² hearing; (2) denying his motion for judgment of acquittal since there was not sufficient evidence to support his conviction; and (3) instructing the jury on the lesser included offense of second degree murder. This court finds the evidence supported admission of the polymerase chain reaction short tandem repeat DNA evidence so Mr. Salmon was not prejudiced by the trial court's failure to hold a Frye hearing. The court further Rh& that there was sufficient evidence in the record to support both the verdict and the instruction for second degree murder. The judgment and sentence are affirmed.

Factual and Procedural Background

The facts viewed in the light most favorable to the jury's verdict are that, on September 5, 1990, Jan Lewis found her sister, Judith Pritchard, murdered inside a closet in Ms. Pritchard's home. Ms. Lewis called 911 and the police responded to Ms. Pritchard's house. The officers who responded to the house found that there was no forced entry into the house. The bed in the room Ms. Pritchard intended to rent was in slight disarray. When the blankets over Ms. Pritchard's body were removed, it was discovered that she was unclothed from the waist down and her top and bra had been pushed up over her breasts. Law enforcement officers collected evidence that included a bedspread that was on Ms. Pritchard's bed.

The pathologist who performed the autopsy on Ms. Pritchard determined that Ms. Pritchard died on September 3, 1990. On the morning of September 3, 1990, Ms. Pritchard was scheduled to interview two people who were interested in renting a room that she had advertised. One person was a twenty-eight-year-old male who had something to do with Square D and 3M. Ms. Pritchard talked with her sister by phone at approximately 10:00 A.M. and told her that even though the man was supposed to be on his way to look at the room, she had decided that she did not want to rent to a man.

The other potential renter was Sharon Ralphs. At 11:00 A.M. on September 3, 1990, Ms. Ralphs went to Ms. Pritchard's home. No one answered the door, but Ms. Ralphs thought she heard voices inside. While waiting at Ms. Pritchard's house, Ms. Ralphs observed a white Chevy truck with wide maroon stripes down the sides that was parked in front of Ms. Pritchard's house. She noticed that it was a short-bed truck and had high-backed bucket seats. She also observed that there were decals in the back window of the truck. After five minutes, Ms. Ralphs went to make a telephone call to Ms. Pritchard. No one answered Ms. Ralphs' call.

A few days after the murder, Ms. Ralphs learned that Ms. Pritchard had been murdered. She phoned the police, and she told them that she was at Ms. Pritchard's house on the morning of September 3. She also told the police that she saw a truck parked in front of Ms. Pritchard's house. Within the next few days, the police took Ms. Ralphs around Columbia and showed her several pickup trucks. Ms. Ralphs positively identified a truck in the parking lot where Mr. Salmon worked. The truck was a GMC, which had minimal differences from a Chevrolet. Ms. Ralphs identified the truck because it had wide maroon stripes, a short bed, high-backed bucket seats, and she recognized the decals in the back window. After investigating, the police discovered that the truck belonged to Mr. Salmon.

The police questioned Mr. Salmon. Mr. Salmon was a twenty-eight-year-old man. He was employed at Knernschield Manufacturing but he routinely made deliveries to 3M and Square D. The police officers told Mr. Salmon that they were investigating a crime and that a truck that looked like his truck had been seen in the area. When the officers asked Mr. Salmon for his address, he told them his address and then said, "Yeah, just a couple of blocks from —." He then said, "I mean a few blocks from where I work." At the time he made these statements, the officers had not told him that they were investigating the murder of Ms. Pritchard. Mr. Salmon lived six and a half miles from his place of business, but he lived five-eighths of a mile from Ms. Pritchard's home. While Mr. Salmon denied that he was at Ms. Pritchard's house on September 3, he was asked to provide hair and saliva samples, which he did.

At that time, the State did not bring charges against Mr. Salmon or anyone else. In late 1999, however, a police officer was reviewing the evidence that related to M s. Pritchard's murder. The officer noticed that a stain had been found on the bedspread from Ms. Pritchard's bed that was found to be semen. Although the semen sample from the bedspread had been tested for blood types, it had not been submitted for DNA testing. The officer sent the sample to the Missouri Highway Patrol laboratory. The test that was used was the polymerase chain reaction (PCR) short tandem repeat (STR) DNA method.³ The Missouri Highway Patrol laboratory had performed this method of DNA testing since April of 1999. The DNA test revealed a match with the hair and salvia samples Mr. Salmon gave in 1990.

Subsequently, the State charged Mr. Salmon with first degree murder for the murder of Ms. Pritchard. At a jury trial on March 6-7, 2001, Mr. Salmon was convicted of first degree murder. He was sentenced to life imprisonment without the possibility of probation or parole. This appeal follows.

No Error in Admission of PCR STR DNA

Evidence Without a Frye Hearing

In his first point on appeal, Mr. Salmon claims that the trial court erred in failing to hold a Frye hearing on the admissibility of PCR STR DNA profiling prior to admitting into evidence testimony that this DNA testing showed a match between the DNA in the semen stain on Ms. Pritchard's bedspread and Mr. Salmon's DNA. Mr. Salmon argues that a Frye hearing was required because no prior Missouri case has held that PCR STR DNA testing has been proven and independently verified as acceptable in the scientific community as a reliable source of scientific testing.

The Frye hearing that Mr. Salmon claims was required originated because Missouri follows the standard set forth in Frye v. U.S., 293 F. 1013 (D.C.Cir.1923), to determine the admissibility of scientific evidence. "The long accepted standard for admissibility of results of scientific procedures enunciated in Frye v. United States, requires that such may be admitted only if the procedure is `sufficiently established to have gained general acceptance in the particular field in which it belongs.'" State v. Davis, 814 S.W.2d 59a, 600 (Mo. banc 1991) (quoting Frye, 293 F. at 1014). Whether or not a procedure has gained acceptance in the relevant field and is admissible scientific evidence is established in a Frye hearing — that is a hearing held outside of the presence of the jury. See Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993).

Here, the trial court did not hold a hearing outside the presence of the jury. Prior to the admission of any evidence concerning the testing of the semen stain, Mr. Salmon objected that the type of methodology used in this case for DNA testing has not been found to be scientifically reliable. Mr. Salmon argued that the evidence should not be admitted without a prior showing that the method of testing has been proved and independently verified. Specifically, Mr. Salmon stated in his objection:

[M]y objection is that DNA evidence is not a scientifically reliable process. In particular realizing that the Ralph Davis case has held that. And that does not stand for that proposition. There has been a change in the technology and the evidence they are going to be presenting here today with regard to STR testing done by the Highway Patrol lab. In particular our concern is that there has not been proper verification of the independence of specific loci that they are using in this case. That was not involved in the Ralph Davis case. This is new technology. To my knowledge there is no case in the state of Missouri where this type of methodology has been proved and independently verified. It's my understanding that they intend to do that through this Mr. Kidd. But I believe that it has not been shown to do a, with scientifically reliable process under Frye and Debler [sic] and therefore I believe that the evidence should not be admitted without a prior showing that there has been independent testing, verification.

In response to Mr. Salmon's objection, the State argued,

This is DNA PCR STR testing. I know I presented evidence to this effect on DNA PCR STR in the Kevin Tuggle case. We've gone through Frye hearings back Keith Vaughn in this circuit, DNA testing. Ralph Davis survived Frye hearings. This is generally accepted as being a reliable means of testing forensic evidence in the scientific community.

The court overruled Mr. Salmon's objection and allowed the State to present DNA evidence.

Mr. Salmon challenges this ruling on appeal. In his point relied on, he focuses on the trial court's failure to hold a Frye hearing — that is its failure to hear, outside the presence of the jury, foundation evidence before making its determination of whether the Frye standard was met. Although ...