State v. Washington, 51885
| Decision Date | 17 January 1981 |
| Docket Number | No. 51885,51885 |
| Citation | 229 Kan. 47,622 P.2d 986 |
| Parties | The STATE of Kansas, Appellee, v. Adrian C. WASHINGTON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. If a new scientific technique's validity has not been generally accepted as reliable or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence.
2. On the basis of the evidentiary record as set out in the opinion, the district court did not err in ruling that the Multi-System method of blood analysis of polymorphic enzymes was generally accepted as reliable in the scientific community and that expert testimony on that subject was admissible.
3. Expert testimony of mathematical probabilities that a certain combination of events will occur simultaneously is generally inadmissible when based on estimations rather than on established facts. By contrast, population percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admissible as relevant to identification.
4. The record on appeal is examined in a criminal action and it is held that the district court did not err (1) in admitting expert testimony concerning certain blood tests; (2) in permitting an assistant district attorney to testify on rebuttal; and (3) in ruling that the prosecutions's evidence was sufficient to establish the crimes of rape and aggravated burglary.
Ronald E. Wurtz, of Topeka, argued the cause, and Robert E. Keeshan, Topeka, was with him on brief, for appellant.
Sally Davis Pokorny, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with her on brief, for appellee.
This is a direct appeal from convictions of first-degree murder (K.S.A. 21-3401), rape (K.S.A. 1979 Supp. 21-3502), and aggravated burglary (K.S.A. 21-3716). The charges and convictions stem from the stabbing death of Cathy Cummings in her apartment at 1325 Tyler, Topeka, on June 17, 1979.
The circumstances of the homicide were essentially undisputed. The time of death was established as being between 1:00 and 3:00 a. m., although the body was not discovered until 9:15 a. m. by friends. Police arrived on the scene shortly thereafter. The victim was naked from the waist down and was lying in a large pool of blood resulting from multiple stab wounds. Blood was also found splattered on a wall. Smaller drops of blood were found leading from the room where the body was found to the back door, which was ajar. The rear window was open and the screen was missing. The autopsy revealed eighteen stab wounds from two different instruments. One wound severed the carotid artery, accounting for the blood on the wall. The coroner testified that it was unlikely that the assailant could escape without getting some of the victim's blood on him. A vaginal swab revealed the presence of spermatozoa, indicating the victim had had sexual intercourse within the past twenty-four hours. There was no trauma to the vaginal area.
Earlier that morning, around 6:00 a. m., a Topeka police officer talked with defendant, Adrian Washington, at St. Francis Hospital. Defendant was being treated for a stab wound. Defendant told the officer he had been walking in the alley toward his father's house at 1631 Tyler, when he was attacked and stabbed in the shoulder by two men, one white and one black. Defendant was vague about the description of his assailants. Defendant said he was able to flee to a friend's house on Western Street, and that friend brought him to the hospital emergency room. Defendant was arrested on an outstanding bench warrant for a traffic offense and taken to the police station where he was questioned about an attempted car theft in the same area where he said he was assaulted. He was given the Miranda warnings and asked to sign a consent form for his fingerprints. After his fingerprints were taken and the amount owing on the bench warrant paid, defendant was released.
Subsequent investigation revealed evidence tending to tie defendant to Cathy Cummings's murder. Defendant's fingerprints were discovered on the outside of the rear screen door of the victim's apartment and on a window screen found in bushes two doors down from the Cummings residence and next door to defendant's house. Two foreign pubic hairs were found on the victim. Comparison of those with pubic hairs taken from the defendant established twenty-one similar microscopic characteristics, with no dissimilarities. However, the expert witness was unable to state that the foreign pubic hairs found on the victim "came from Adrian Washington beyond any scientific doubt." Blood samples taken from defendant were compared with drops of blood found in the apartment leading to the back door. They were found to be remarkably similar.
Defendant's first point on appeal is that the trial court erred in admitting expert testimony concerning the blood tests. At trial, the State called Eileen Burnau, criminalist for the Kansas Bureau of Investigation. Burnau had been with the KBI since 1973, and had specialized in blood analysis for the past five years. She testified that she analyzed the blood samples found in the Cummings apartment and compared them with known blood samples from the victim and defendant. In comparing the blood samples, the blood was broken down into eight different variables. The first was the A-B-O typing, consisting of types A, B, AB, and O. The next six are polymorphic enzyme systems. The first of the six, the EAP enzyme, consists of five types, types A, B, BA, CA, and CB. The next, AK, consists of three types, types 1, 2-1, and 2. The ADA, PGM, EsD, and GLO-1 systems also contain three types each, types 1, 2-1, and 2. The final system, Gc, is protein rather than enzyme, also consisting of types 1, 2-1, and 2. Comparison of the defendant's and the victim's blood was as follows:
ABO EAP AK ADA PGM EsD GLO-1 Gc
Cummings A BA 1 1 1 1 2-1 2-1
Washington A B 1 1 1 1 2 1
Burnau testified to the percentage of the Caucasian population having each of the types present in Cummings's blood. She also testified to the percentage of the Negroid population which would have each of the types present in defendant's blood. Multiplying the highest of each percentage together, she determined that 3.1% of the Negroid population would have the same combination of enzymes and proteins as the defendant. Burnau testified that the seminal fluid obtained from the vaginal swab did not show the blood type, indicating that the person who had had intercourse with the victim was a nonsecretor. Saliva samples were tested for both the victim and the defendant, and both were determined to be nonsecretors. Studies show that only 20% of the population are nonsecretors. Adding this factor to her other percentage, Ms. Burnau determined that only 6/10ths of 1% of the population would have defendant's combination of blood factors.
Burnau stated that she collected blood samples from several areas in the apartment and compared them with the known blood samples of defendant and the victim. In six different areas, including the kitchen and back door, she found blood characteristics consistent with the defendant's blood. On all the blood samples, she used a method of analysis called the Multi-System method of analysis or Multi-System analysis. She testified that this method was used throughout the forensic community because of its speed, consistency, and reliability, and that its distinguishing feature is that it allows the analysis of three enzyme systems from one sample at one time. Defendant objected to the use of the Multi-System analysis, contending that it is unreliable and that Burnau was not qualified either to perform the analysis or to testify as to her results. In support of its unreliability argument, the defense offered the testimony of Dr. Benjamin W. Grunbaum. Dr. Grunbaum possesses an impressive string of credentials, including bachelor's, masters, and doctoral degrees in biochemistry, and a masters in criminology with a specialty in criminalistic identification. Dr. Grunbaum has been employed as a research biochemist at Berkeley for the past 27 years, specializing in analytical biochemistry and microanalysis, which includes the examination of body fluids.
Dr. Grunbaum testified that he did not approve of the use of the Multi-System analysis because of its unreliability. He further testified that, after examining photographs of the tests performed by Burnau, he disagreed with several of her test results. Specifically, Dr. Grunbaum complained that blood, once outside the body, is always deteriorating. He explained that the degradation was particularly acute in the EAP and GLO enzymes. Because of the length of time and the fact that the blood samples were dry, Dr. Grunbaum testified that the test of the samples in this case could not be reliable. As to the EAP enzymes, he stated his belief that the A factor begins to deteriorate most rapidly, so that after a period of time, an AB type might show up as a B. Because the difference in the blood types of the victim and the defendant were the EAP (the victim was a AB and the defendant a B), GLO-1, and Gc enzyme systems, Grunbaum testified that the possible interceding degradation rendered the testing unreliable and the victim's blood stains indistinguishable from the accused's. He further testified that some of Burnau's tests were inconclusive, and should have been repeated "over and over again to show beyond any shadow of a doubt that it is really individualizing the defendant."
Dr. Grunbaum also stated his opinion that the Multi-System of enzyme analysis used...
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