State v. Spencer
| Decision Date | 08 March 1974 |
| Docket Number | No. 43963,43963 |
| Citation | 216 N.W.2d 131,298 Minn. 456 |
| Parties | STATE of Minnesota, Respondent, v. Frank Eugene SPENCER, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. The trial court did not err in admitting into evidence the results of neutron activation analysis of the hands of a criminal accused which tended to show that the accused had fired a gun.
2. While the weight and credibility to be given the opinion of an expert lies with the factfinder, it is the responsibility of the court and counsel to insure that expert opinions do not, in advocating new ideas or scientific methods, abridge the rights of the accused to a fair and objective inquiry.
3. The trial court did not err in admitting the out-of-court statement of a prosecution witness into evidence where the prosecution was surprised by the contradictory testimony of the witness at trial and defense counsel made use of said statement on cross-examination and then did not object to its introduction. The court's failure to give a cautionary instruction on the use of the statement was not prejudicial error.
4. Minn.St. 609.22, defining assault as an offense requiring intent, and Minn.St. 609.225, which defines aggravated assault, must be read together so that intent is a necessary element of aggravated assault. The court's instruction on intent was in error but, under facts in case and because defendant did not object to instruction, it does not constitute reversible error.
C. Paul Jones, Public Defender, Doris O. Huspeni, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Theodore R. Rix, Vernon E. Bergstrom, and Michael McGlennen, Asst. County Attys., Minneapolis, for respondent.
Heard before KNUTSON, C.J., and PETERSON, TODD, and YETKA, JJ., and considered and decided by the court.
Following a jury trial, defendant was convicted in Hennepin County District Court of aggravated assault and sentenced to an indeterminate term, not to exceed 10 years, in the custody of the commissioner of corrections. He appeals from the judgment of conviction. We affirm.
On Saturday evening, February 12, 1972, Allen Berryman, an off-duty Minneapolis police officer, was shot in the back while working as a bouncer at the Northern Bar in the city of Minneapolis. Although Berryman was hospitalized for some time, he has recovered from the shooting.
Berryman testified at trial that he arrived at the Northern Bar at approximately 10:10 or 10:15 p.m. on the night he was shot. He was to start work at 10:30. As he walked into the bar, the officer noticed that the heel of his boot had fallen off. He hung up his coat, obtained a falshlight from the bartender, and returned to the parking lot behind the bar to look for the heel. Berryman was not in uniform that evening but was wearing a pullover sweater and knit slacks.
He found the heel to his boot directly under the front door of his car. While kneeling beside his car, Berryman observed a man and woman leaving the bar through the back door. The two were arguing. As Berryman stood up, the observed the man strike the woman in the face with his closed fist. Berryman testified that he was standing approximately 15 feet from the couple when he saw the man first strike his companion.
As Berryman started to walk past the couple, toward the back door of the bar, he again saw the man strike his companion. At that time the officer was within 6 feet of the couple and looking straight at the man. He continued by the couple and paused. He testified,
Berryman then addressed the man, saying in effect: The man responded with an obscenity and pulled a pistol from his belt and leveled it at the officer's head.
At this point, Berryman was approximately 15 feet from the couple and facing them. Behind him, some 3 to 5 feet was the back entrance to the bar.
While the gun was leveled at his head, Berryman saw and heard his assailant pull back the hammer and cock the weapon. He described the gun as a small caliber revolver, .22 or .25, with white or pearl handles and he stated that it appeared to be old as some of the blueing was worn from the barrel.
Berryman raised his hands and quickly apologized for interfering. In fear of his life, he turned his back to his assailant, 'and just as I turned my head away I heard a shot and then I fell.' He staggered into the bar and told the bartender that he had been shot and to call a squad car and an ambulance.
A few hours after the shooting, the defendant was arrested at his home and charged with aggravated assault in the shooting of Berryman.
At trial, the state, by use of fingerprint evidence, placed defendant at the Northern Bar at the approximate time of the shooting and Officer Berryman identified the defendant as his assailant. The state also introduced two .22-caliber revolvers, both seized from defendant's home, pursuant to a valid search warrant, on the morning following the shooting. One of the weapons was a worn .22-caliber revolver with white handles.
Defendant does not claim that the evidence was insufficient to support the finding of guilt but asserts three errors in the trial as prejudicial.
1--2. Defendant contends that was error for the trial court to admit into evidence the results of a neutron activation analysis of his hands which tended to show that he had fired a gun on the night of the shooting.
After he was taken into custody, but prior to the time he was booked in the county jail, defendant's hands were swabbed with a nitric acid solution. The swabs were later sent to the Treasury Department laboratory in Washington, D.C. for neutron activation analysis, a testing procedure which can determine the presence and amount of certain chemical elements.
The state introduced into evidence at trial the results of the neutron activation analysis of defendant's hands. Mr. Maynard Pro, of the Alcohol, Tobacco and Firearms Division of the Treasury Department, testified, over the continuing objection of the defense, that the chemical analysis of defendant's right hand, based upon the samples taken on the night of his arrest, showed 1.67 micrograms of barium and 1.33 micrograms of antimony. The presence of these elements, in the opinion of Mr. Pro, was conclusive that defendant's right hand was associated with firing a gun.
On cross-examination of Mr. Pro by the defense, the following colloquy took place:
The reliability of neutron activation analysis in identifying the chemical composition of evidentiary materials was recognized by the United States Court of Appeals for the Sixth Circuit in United States v. Stifel, 433 F.2d 431 (6 Cir. 1970), certiorari denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971). In that case, a homicide was committed by sending a package bomb through the mails. The state used neutron activation analysis to examine the composition of the bomb debris. Government experts concluded that the elemental composition of the bomb was identical with certain materials found in the storeroom at the accused's place of employ. Emperts in Stifel were permitted to testify that some of the materials--vinyl tape and a metal cap--from which the bomb was made were 'of the same manufacture' and 'from the same batch' as materials found in a storeroom to which defendant had access. 433 F.2d 436.
Some 76 cases are listed in 15 Am.Jur., Proof of Facts (1973 Supp. p. 22) in which the results of neutron activation analysis were admitted in evidence. However, there is no appellate case among the 76 listed where neutron activation analysis is held admissible to establish that a suspect had actually fired a gun.
While there seems to be little doubt that neutron activation analysis can accurately detect the presence and amount of certain chemical elements, it is doubtful that it can Conclusively establish that those elements were present as the result of firing a weapon. The elements of barium and antimony may be found in varying amounts on the hands of many people who have not fired a weapon. Mr. Pro himself conceded that the elements of barium and antimony could have come from some 100 sources other than gunpowder.
However, the presence of these chemicals together in the amounts found on this defendant's hands could reasonably provide some evidence that defendant had fired a gun. We hold the trial judge did not err in admitting the test results in evidence. We are concerned, however, about the sweeping and unqualified manner in which Mr. Pro's testimony was offered. Where expert testimony concerning a new scientific technique is heard by a jury, there is danger that the evidence may be given more weight than is warranted.
An expert witness could be permitted to testify that in his opinion the chemicals present on defendant's hand may have resulted from the firing of a gun. He should not have been permitted to state, as he did, that this defendant had definitely fired a gun. To allow this testimony to stand without a cautionary instruction to the jury was technical error.
While it would have been better had the state's expert been less conclusive, he was...
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