State v. Stinson
| Citation | 397 N.W.2d 136,134 Wis.2d 224 |
| Decision Date | 28 October 1986 |
| Docket Number | No. 86-0002-CR,86-0002-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert Lee STINSON, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
Bronson C. La Follette, Atty. Gen. and Michael R. Klos, Asst. Atty. Gen., for plaintiff-respondent.
Michael D. Mandelman, Milwaukee, for defendant-appellant.
Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.
Robert Lee Stinson (Stinson) appeals from a judgment of conviction for first-degree murder, party to a crime, contrary to secs. 940.01 and 939.05, Stats. A jury found him guilty of the charges. On appeal, Stinson raises the following issues: (1) Did the trial court err in admitting expert testimony on bite mark identification?
(2) Was there sufficient evidence to support the jury verdict of first-degree murder? (3) Did the trial court err in limiting defense counsel's closing argument? (4) Did the trial court err in denying Stinson's request to discharge defense counsel and substitute new counsel? After considering each issue and reviewing the record, we affirm the conviction
On the morning of November 3, 1984, seventy-three-year old Ione Cychosz (Cychosz) was found dead in a backyard area near her home. Cychosz was last seen by a friend who drove her home shortly after midnight on November 3. The friend testified that before she drove away she watched Cychosz go up to her house and then walk around to the back of the residence.
Cychosz's body was discovered at 6:30 a.m. by a neighbor as he passed by the yard on his way to work. Cychosz had been beaten to death; her clothing and personal effects were scattered around the yard. According to medical testimony, Cychosz died of multiple internal injuries due to a beating. In addition, the parties stipulated that spermatozoa were found in the vaginal wash of Cychosz, but the number of cells was too few for identification purposes. Time of death was estimated to be between midnight and 2 a.m.
The medical examiner testified that upon examining the victim, she discovered bite marks on the breast, abdomen and upper pubic region of the body. In her opinion, the bite marks had been inflicted prior to death.
At trial, the state presented two experts in the field of forensic odontology who testified on the subject of bite mark identification. 1. Both experts concluded, to a reasonable degree of scientific certainty, that the bite marks on the victim had been inflicted at or near the time of death, and that Stinson was the only person who could have inflicted the wounds. The first issue Stinson raises on appeal concerns the admission of this bite mark evidence, which presents a question of first impression in Wisconsin. 2. Because the major issue on appeal is the admissibility of these opinions, we will summarize in some detail the expert testimony in the case.
Dr. Lowell Thomas Johnson (Dr. Johnson), 3. a practicing dentist and a clinical professor of pathology at Marquette University School of Dentistry, testified for the state. On November 3, 1984, Dr. Johnson was called by the medical examiner and asked to examine the victim's body.
Upon examining Cychosz, Dr. Johnson discovered eight complete or partial bite marks. To preserve this evidence, Dr. Johnson had a photographer from the state crime laboratory photograph the bite marks. Dr. Johnson then made a rubber impression of the victim's right breast which contained the greatest number of three-dimensional indentations. According to Dr. Johnson, when the wounds are three-dimensional, or when there are any indentations present, they can be well preserved by taking an impression of them. This impression is then later used to produce a static replica of the bite marks which will not be subject to distortion.
Dr. Johnson also testified that as part of established procedure, he preserved some of the tissue from the deeper bites. This was done by affixing an acrylic ring to the tissue surrounding the indentations and then removing that block of tissue for future study.
In addition to examining Cychosz, Dr. Johnson also did a complete forensic workup on Stinson. As part of the workup, a special camera was used to photograph the biting and facial surfaces of the teeth. A set of rubber impressions were then taken so a model of Stinson's teeth could be prepared. In addition, Dr. Johnson examined Stinson's teeth to observe the presence of defective or decayed teeth, or teeth which had been artificially restored.
Dr. Johnson also performed a similar dental workup on Robert Earl Stinson, the defendant's twin brother. Based on his comparison of the evidence taken from the victim with the models of Robert Earl's teeth, Dr. Johnson concluded that there were some gross discrepancies which would rule out Robert Earl Stinson as having possibly made the bite marks.
Dr. Johnson next testified extensively on the comparisons he made using the dental impressions of Stinson's teeth and the bite marks found on the victim's body. He described and demonstrated the methods he used in making these comparisons. First, a comparison was made using the model of the bite marks and the model of Stinson's teeth. A comparison was also made by placing the model of Stinson's teeth over photos of the bite marks to see if the features were consistent. In addition, Dr. Johnson used an overlay technique, which he stated was another standard procedure in bite mark comparison. By taping a black and white negative of Stinson's teeth over a color transparency of the bite mark, Dr. Johnson was able to compare the patterns of the bite marks with the patterns of the teeth. Based on these comparisons, Dr. Johnson concluded that the bites he examined on Cychosz "had to have been made by teeth identical in all of these characteristics to those that I examined on Robert Lee [Stinson]."
The state also called Dr. Raymond Rawson (Dr. Rawson), a forensic odontologist, who, as chairman of the Bite Mark Standards Committee of the American Board of Forensic Odontologists, participated in formulating the standards and procedures for evaluating bite mark evidence. Dr. Rawson was asked to conduct an independent evaluation of the bite mark evidence using Dr. Johnson's models and photos. Dr. Rawson testified that the evidence in the case was "high quality" and "overwhelming." He stated that this was an "exceptional" case because "[t]here were more ... pieces of evidence than you usually see in a bite mark case."
After examining Dr. Johnson's workup, Dr. Rawson stated that the methods Dr. Johnson used in gathering the evidence complied with the standards of the American Board of Forensic Odontology. Dr. Rawson then analyzed the evidence and concluded, to a reasonable degree of scientific certainty, that Stinson had inflicted the bite marks found on Cychosz's body.
Dr. Rawson also reviewed the evidence produced from the examination of Stinson's twin brother. Dr. Rawson testified that after an extensive analysis of the similarities and differences between the two brothers' mouths, he found significant discrepancies in their dentition. Therefore, Dr. Rawson concluded, Robert Earl Stinson could During trial, defense counsel requested a hearing on the admissibility of the bite mark evidence. At the end of the hearing, the state requested that the court deny Stinson's motion to exclude the evidence. The state argued that because there are sufficient standards and guidelines in the field of forensic odontology, it therefore is a field in which an expert opinion would be helpful to the jury. The court agreed, stating:
not have inflicted the bite marks found on Cychosz's body.
I will deny the motion of the defense to exclude the evidence.... I'm going to find that there is sufficient evidence at this motion to find that there are adequate standards and controls in the area of forensic odontology, specifically for the identification of an individual through bitemark [sic] evidence and that that area of science is an accepted area of signs [sic], a recognized area of science....
Stinson now contends that the trial court "acted with haste" and erred in admitting the testimony on bite mark identification. We disagree.
When reviewing evidentiary issues, the question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. 4. This court will not find an abuse of discretion if there is a reasonable basis for the trial court's determination. 5 For such a discretionary decision to be upheld, however, there should be evidence in the record that discretion was in fact exercised and the basis for that exercise of discretion should be set forth. 6..
The defense in this case contends that the state of the scientific knowledge in the subject of bite mark identification is not sufficiently developed to allow a reasonable opinion to be asserted by an expert. To support this argument, Stinson relies on the following language in In re Adoption of R.P.R.: 7.
The elements of admissible expert testimony are: (1) the subject is distinctively related to some science, profession, business or occupation and therefore beyond the realm of the average layman; (2) the expert has sufficient skill in the area to aid the trier of fact in his search for the truth, and (3) the state of the pertinent art or scientific knowledge in the subject is sufficiently developed to allow a reasonable opinion to be asserted by an expert. [Citation omitted and emphasis added.]
While Stinson acknowledges that R.P.R. has been reversed, he argues that in its decision to reverse, our supreme court did not criticize the legal analysis applied by the Court of Appeals in the case. Stinson contends this...
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