State v. Smith

• Decision Date: 08 June 1982
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Glenn Alan SMITH, Appellant. 32857.
• Court: Missouri Court of Appeals

Page 232

637 S.W.2d 232

STATE of Missouri, Respondent, v. Glenn Alan SMITH, Appellant.

No. WD 32857.

Missouri Court of Appeals, Western District.

June 8, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Aug.

3, 1982.

Application to Transfer Denied Sept. 13, 1982.

Charles Ross Stroupe, Columbia, for appellant.

John Ashcroft, Atty. Gen., William K. Haas, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The defendant Smith was convicted by a jury on counts of rape (§ 566.030, RSMo 1978), sodomy (§ 566.060) and first degree burglary (§ 569.160). The defendant was sentenced to consecutive terms of fifty years, fifty years and fifteen years on the respective counts. The appeal contends error from the admission of evidence and the systematic exclusion of blacks from the venire.

The evidence was that at about 9:00 p. m. a black man identified as the defendant came into the residence of the victim, TS, through the doorway from the basement grabbed her and immediately began to forcibly disrobe her. The face of the assailant was covered with mask with eye-slits fashioned from a pantyhose. A frantic struggle ensued from room to room in the course of which the victim managed to pull up the mask and observe the face of the assailant before he could restore its cover. In the course of the resistance, the assailant attempted to reach a knife in the kitchen and managed access to a curtain rod which he pressed against her throat to compel her to the act of fellatio. The struggle continued and the assailant finally succeeded to penetrate the priapus into the sexual organ of the victim. He did not ejaculate during penetration, but spewed her face with semen after withdrawal. The assailant then dragged TS into the bathroom to compel her to bathe, but the victim resisted. In that continued struggle, she again unmasked the assailant and saw the face in the full light of the bathroom. He made no attempt to re-cover the face, but the entreaties of the victim and her warning of an expected visit from a friend prompted the assailant to leave. The encounter had lasted a full hour. The victim called the police. On the basis of the description TS gave, the police apprehended the assailant still in his car only some ten minutes later. TS was driven to the scene of the detention where she positively identified the occupant of the car, the defendant Smith, as her assailant. The defendant was placed in arrest and a search of the vehicle yielded the pantyhose used as a mask.

The victim was taken to the hospital and examination revealed a bruised and scratched face and a lacerated toe. A vaginal smear resulted in no trace of motile sperm.

A comb with two hairs was retrieved by police from under a cushion of a sofa in the residence of the victim. The prosecution gave evidence that the hairs found at the site of the assault and the hair samples taken from the head of the defendant were of common origin. The prosecution gave evidence also that a foreign fiber taken from the hair of the defendant shortly after arrest and the fibers taken from the pantyhose found in the car were chemically indistinguishable. That evidence was given in the form of expert opinion based on the test results of neutron activation analysis. The defendant contends that the test procedure itself was not reliable and that the witness lacked qualification as an expert to render opinion.

The expert for the prosecution was one Baxter, a forensic chemist. He described in detail the procedures and principles involved in a neutron activation analysis. The test subjects the evidence samples (in this case, the hairs and fibers) to a bombardment of neutrons in a nuclear reactor. The neutrons cause the trace elements in the samples to become radioactive. Each of the elements emits a distinctive radiation (gamma ray). The irradiated samples are then placed in a germanium lithium detector which converts the gamma ray emission of each trace element into an electrical impulse projected onto a graph and identified and quantitatively measured by the measure. In the case of hair or fiber, the neutron activation breaks down the components of each material into its basic elements to enable comparison. If the hairs or the fibers display the same elements and the same concentration of these elements, the comparison may result in a match of the materials and justify the conclusion that they are of common origin. This method of analysis, the witness testified, is also suitable for gunshot residue, glass and other evidence materials.

The expert witness then testified that this procedure was applied to test and compare the hair samples taken from the head of the defendant and the hair taken from the comb found at the site of the assault. He described the actual test process step by step. The analysis disclosed that nine trace elements in each of the hair samples matched both in kind and in concentration with the hair taken from the comb. The witness testified that a neutron activation analysis which yields comparable concentrations of seven component elements between the hair samples allows an opinion to a scientific certainty that the hairs are from a common origin. ¹ The expert gave opinion within a reasonable degree of scientific certainty that the hair from the comb and the hair taken from the head had a common origin-the defendant. ²

The expert witness testified also that this procedure was applied to test and compare the fiber found in the head hair of defendant soon after arrest with fiber from the pantyhose found in his car. The analysis disclosed that ten elements in each sample matched in kind and in concentration. He gave opinion that the two samples were chemically indistinguishable but could not draw the ultimate conclusion that they had a common origin. The reason for that lack of scientific certainty was that his test experience was not sufficient to determine whether the fiber taken from the pantyhose for comparison was typical or atypical in elemental components. It was the first pantyhose analysis the witness undertook by the neutron activation method. In preparation for the test, the witness made four random purchases of pantyhose, subjected them to neutron activation analysis, and determined that the component elements "were vastly different from either the unknown sample or the pantyhose that were submitted." The random samples were not a sufficiently broad test group to establish the statistical probability for a scientific opinion of common origin of the compared fibers-and the witness gave none.

The defendant contends that witness Baxter did not qualify as an expert and so the opinions on the neutron activation analysis results were not competent evidence. A witness who "by reason of education or specialized experience ... possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or drawing correct conclusions" qualifies as an expert. State v. Stevens, 467 S.W.2d 10, 23(12) (Mo.1971). The determination that a witness qualifies as an expert rests with the discretion of the trial court, an exercise not disturbed on review in the absence of abuse. State v. Sager, 600 S.W.2d 541, 572(10) (Mo.App.1980).

The witness Baxter was employed by the University of Missouri as a forensic chemist and, at the time his opinion was accepted as evidence, he practiced that function for seven years. He held a Bachelor of Science degree in chemistry and a Master in Business Administration postgraduate degree. His actual experience included some 70 separate instances of hair neutron activation analysis, participation in the compilation of a statistical library over the seven years of that special practice, and gave expert testimony on the subject in more than 100 court cases. ³ The defendant objects that the graduate business instruction is irrelevant to the scientific procedures the neutron activation analysis involves and that a practitioner tendered as an expert in such a technical process must be not qualified, merely, but "highly qualified"-a condition not met by witness Baxter. The business administration study, if nothing else-as the witness observed, furnished the statistics ground which informs the technical scientific analysis of the neutron activation method. The comparative preeminence of qualification may bear on the weight the jury will accord the opinion, but not on the admissibility of the opinion of an expert qualified to give opinion. The witness Baxter was properly allowed to testify as an expert on neutron activation analysis.

The defendant contends next that the neutron activation analysis procedure was not generally accepted by the scientific community as a reliable method to test and compare hair and fiber samples so that any opinion based on that technique was speculative and not competent as evidence.

Our law prescribes that the results of scientific tests and expert opinions rendered on such results are admissible only if the principle involved has general acceptance in that particular scientific community. State v. Johnson, 539 S.W.2d 493, 501(1) (Mo.App.1976). ⁴ The defendant concedes that the neutron activation analysis method is deemed reliable in the scientific community to test gunshot residue (State v. Ross, 523 S.W.2d 841, 845(5) (Mo.App.1975) ) but argues that such an approval does not constitute a scientific sanction for the use of that method of test analysis to every evidentiary material-human hair or fiber, among them. The efficacy of the nuclear activation method to detect traces of elements in miniscule samples to solve problems of identification of evidentiary materials is firmly established. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970); State v. Spencer, 298 Minn. 456, 216 N.W.2d 131 (1974); State v. Johnson, 539 S.W.2d 493 (M...