U.S. ex rel. DiGiacomo v. Franzen, No. 80-2126

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore PELL, WOOD and ESCHBACH; PER CURIAM
Citation680 F.2d 515
Docket NumberNo. 80-2126
Decision Date12 May 1982
PartiesUNITED STATES of America ex rel. James G. DiGIACOMO, Plaintiff-Appellant, v. Gayle FRANZEN, Director, Department of Corrections, and James Greer, Warden, Menard Penitentiary, Respondents-Appellees.

Page 515

680 F.2d 515
UNITED STATES of America ex rel. James G. DiGIACOMO,
Plaintiff-Appellant,
v.
Gayle FRANZEN, Director, Department of Corrections, and
James Greer, Warden, Menard Penitentiary,
Respondents-Appellees.
No. 80-2126.
United States Court of Appeals,
Seventh Circuit.
Submitted May 12, 1982. *
Decided June 14, 1982.

Ralph Ruebner, Deputy State Appellate Defender, Chicago, Ill., for plaintiff-appellant.

Page 516

William M. Wippold, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before PELL, WOOD and ESCHBACH, Circuit Judges.

PER CURIAM.

In this appeal from the denial of a petition for a writ of habeas corpus, petitioner James G. DiGiacomo claims that he was denied a fair trial when the state was allowed to use mathematical probability to identify him as the perpetrator of a crime. We hold that the admission of the challenged testimony violated no right guaranteed by the Constitution and affirm the district court's judgment denying the petition.

I

In March 1977, James G. DiGiacomo was tried in an Illinois state court on charges of rape, deviate sexual assault, aggravated kidnapping, and battery. The principal witness against DiGiacomo was Patricia Marik, the victim of the assault. Marik testified that DiGiacomo abducted her at knife point from a tavern in Naperville, Illinois, on November 5, 1976, and ordered her to drive him to a cornfield in the country where, after a brief struggle, he forced her to have sexual intercourse with him. 1

In an effort to bolster Marik's identification of DiGiacomo as her assailant at trial, the state called an expert witness to testify concerning a number of hairs that had been recovered from Marik's automobile after the attack. Sally Dillon, the supervising criminologist at the Illinois Bureau of Identification, testified that she had compared the hairs found in Marik's car with a sample of DiGiacomo's hair and found them to be microscopically similar. She was then asked, over defense counsel's objection, whether she could testify as to the statistical probability of the hair found in Marik's car belonging to someone other than DiGiacomo. Dillon responded that based on a recent study she had read, "the chances of another person belonging to that hair would be one in 4,500."

Several hours after beginning their deliberations, the jury, apparently confused by Dillon's testimony, submitted the following question to the court in writing: "Has it been established by sampling of hair specimens that the defendant was positively proven to have been in the automobile?" After consulting with the parties, the trial judge sent a written response to the jury in which he instructed them that it was their duty to determine the facts from the evidence presented at trial and that he could therefore provide no answer to their question. Neither side objected.

The jury later returned guilty verdicts on each of the charges, and DiGiacomo was sentenced to three concurrent terms of eight to twenty-five years for the kidnapping, rape, and deviate sexual assault, and 364 days, also concurrent, for the battery. DiGiacomo appealed his conviction to the Illinois Appellate Court, claiming, inter alia, that the trial court had erred in permitting the state to use mathematical odds to identify him as the perpetrator of a crime. The Appellate Court held that Dillon's testimony was properly admissible and affirmed the conviction. People v. DiGiacomo, 71 Ill.App.3d 56, 27 Ill.Dec. 232, 388 N.E.2d 1281 (2d Dist. 1979). Leave to appeal further was denied by the Illinois Supreme Court.

His state remedies thus exhausted, DiGiacomo filed a petition for habeas corpus in the United States District Court for the Northern District of Illinois in which he claimed that the admission of Dillon's testimony regarding the statistical likelihood of the hairs found in Marik's car belonging to him constituted a denial of due process.

Page 517

The district court denied the petition, and this appeal followed.
II

Under 28 U.S.C. § 2254, a federal court is authorized to issue a writ of habeas corpus in behalf of a person in custody under the judgment of a state court "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Because the admissibility of evidence in state courts is a matter of state law, evidentiary questions are not subject to federal review under § 2254 unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right. United States ex rel. Clark v. Fike, 538 F.2d 750, 757 (7th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977).

In this case, DiGiacomo contends the admission of expert testimony as to the mathematical likelihood of hairs found in Marik's car belonging to him resulted in a denial of fundamental fairness in that it misled the jury into believing that the state had conclusively established that he was in the car. 2 In support of his contention, DiGiacomo cites the Eighth Circuit's decision in United States v. Massey, 594 F.2d 676 (8th Cir. 1979).

In Massey, the court held that the trial judge's comments construing expert testimony with respect to comparison of hair samples in terms of mathematical probability of error, coupled with the prosecutor's emphasis upon the mathematical probabilities in his closing argument, constituted plain error under Rule 52(b), Fed.R.Crim.P., and required reversal of the defendant's bank robbery conviction even though no objection had been made at trial. The expert in that case had testified that three of five hairs found in a blue ski mask similar to one worn by one of the perpetrators of the robbery were microscopically similar to the defendant's hair. He was then asked by the trial judge how many people in the country might have similar hair that could not be distinguished. The expert responded that in his own experience there had been only a "couple" cases out of over 2,000 in which he had been unable to distinguish hair from two different individuals. He added, however, that according to a recent study, apparently the same study on which Dillon had based her testimony, there was a one in 4,500 chance of another person having the same hair. 594 F.2d at 679. In an attempt to clarify the response, the trial judge asked the witness if this meant there was only a one in 4,500 or one in 2,000 chance of his identification being wrong. Although the expert's...

To continue reading

Request your trial
29 practice notes
  • U.S. v. Gwaltney, No. 84-5173
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 2, 1986
    ...of sophisticated theories of mathematical probability raises a number of serious concerns," United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir.1982), Gwaltney has not suggested how simple multiplication of the percentages of the population sharing the seminal characteris......
  • Moore v. State, No. F-85-668
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 17, 1990
    ...J.G.'s presence in appellant's car and trailer was consistent with the forensic evidence, see United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 519 (7th Cir.1982), we do not believe her opinion was an improper expression of guilt or innocence so as to constitute reversible error. Al......
  • Ege v. Yukins, No. 01-10294-BC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 22, 2005
    ...830, 845, 464 N.E.2d 734, 749 (1984) (testimony based on blood marker frequencies excludable); United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir.1982) (expressing reservations about probability estimates as cautioned in Collins due to the possibility of prejudice by mis......
  • Wallace v. Davis, Cause No. IP95-0215-C-B/S (S.D. Ind. 11/14/2002), Cause No. IP95-0215-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 14, 2002
    ...a resultant denial of fundamental fairness or the denial of a specific constitutional right." United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir. 1982); Burrus v. Young, 808 F.2d 578, 580-81 (7th Cir. 1986). Wallace's general assertions of the abrogation of due process a......
  • Request a trial to view additional results
29 cases
  • U.S. v. Gwaltney, No. 84-5173
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 2, 1986
    ...of sophisticated theories of mathematical probability raises a number of serious concerns," United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir.1982), Gwaltney has not suggested how simple multiplication of the percentages of the population sharing the seminal characteris......
  • Moore v. State, No. F-85-668
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 17, 1990
    ...J.G.'s presence in appellant's car and trailer was consistent with the forensic evidence, see United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 519 (7th Cir.1982), we do not believe her opinion was an improper expression of guilt or innocence so as to constitute reversible error. Al......
  • Ege v. Yukins, No. 01-10294-BC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 22, 2005
    ...830, 845, 464 N.E.2d 734, 749 (1984) (testimony based on blood marker frequencies excludable); United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir.1982) (expressing reservations about probability estimates as cautioned in Collins due to the possibility of prejudice by mis......
  • Wallace v. Davis, Cause No. IP95-0215-C-B/S (S.D. Ind. 11/14/2002), Cause No. IP95-0215-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 14, 2002
    ...a resultant denial of fundamental fairness or the denial of a specific constitutional right." United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir. 1982); Burrus v. Young, 808 F.2d 578, 580-81 (7th Cir. 1986). Wallace's general assertions of the abrogation of due process a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT