U.S. v. Massey

• Citation: 594 F.2d 676,36 A.L.R.3d 1194
• Decision Date: 12 March 1979
• Docket Number: No. 78-1463,78-1463
• Parties: UNITED STATES of America, Appellee, v. Carl MASSEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 676

594 F.2d 676

UNITED STATES of America, Appellee, v. Carl MASSEY, Appellant.

No. 78-1463.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 24, 1978.

Decided March 12, 1979.

Mark W. Peterson, Minneapolis, Minn., argued and on brief, for appellant.

Thorwald H. Anderson, Asst. U. S. Atty., Minneapolis, Minn. (argued), Andrew W. Danielson, U. S. Atty., and William M. Orth, Legal Intern., Minneapolis, Minn., on brief, for appellee.

Before LAY, HEANEY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

Carl Massey was convicted of bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), receiving a sentence of 12 years. On appeal Massey challenges (1) the sufficiency of the evidence and (2) the prejudicial effect of testimony elicited by the trial court and the prosecutor's closing argument, relating to the use of microscopic hair comparisons in terms of statistical probabilities. We find that the evidence was sufficient to sustain the conviction but hold that there was prejudicial error in the overall reference to the defendant's guilt in terms of mathematical probabilities.

On January 18, 1978, at 12:10 P.M. two men robbed the North Shore State Bank in Duluth, Minnesota. Carl Massey, his sister Yvonne Massey, and John Murray were charged in the same indictment with the bank robbery. Yvonne Massey and John Murray plead guilty on the day of trial; only Carl Massey proceeded to trial. The Government's evidence included pictures recorded by an electronic surveillance camera of two men in the process of robbing the bank. The first man wore a ski mask with one center opening, surgical rubber gloves and a tan field jacket. The second man, wearing a ski mask with openings only for his eyes and mouth, leather gloves over cloth gloves, ragged jeans and a hooded parka, brandished two cocked guns during the course of the robbery.

The two men fled the bank in a beige camper, which the police found abandoned a short distance from the bank. A police dog followed the scent of a track leading from the camper to a spot in a parking lot behind a hardware store, where the dog lost the scent. At approximately noon on the day of the robbery an employee and customer of the hardware store had observed a yellow Volkswagon with its motor running in the same parking lot. A young woman wearing a red scarf and wire rim glasses was observed in the driver's seat.

At approximately 12:45 P.M. on the day of the robbery, a witness, George Bowen, looked out his window and noticed a yellow Volkswagon parked in front of 1217 West Fifth Street, the residence of William and Lana Papberg. At about 1:10 P.M. he observed a man with blond hair, wearing a blue vest jacket, come out of the Papberg residence and begin rummaging through the car.

At about 1:14 P.M. Sergeant Eli Miletich observed the yellow Volkswagon parked in front of the Papberg residence. The officer then went to a nearby phone, ran a license check and discovered that the Volkswagon was registered to Nancy Massey, mother of Carl Massey and Yvonne Massey. When he returned after running the license check, the Volkswagon was gone.

At approximately 2:15 P.M. the Volkswagon returned to the Papberg residence. Yvonne Massey was driving; John Murray was a passenger. The couple entered the Papberg residence and stayed for approximately 20 minutes. When they returned Massey and Murray consented to a search of the car. In a suitcase belongingto John Murray the officer discovered a red notebook which contained a list of articles intended for use in criminal activity. The notebook also contained the following names and initials and accompanying percentage figures: "Jay, 100. Lana, 250. M.C., 10 percent. Y., 15 percent. C., 25 percent. G., 25 percent. J., 25 percent." ¹ Officers continued surveillance of the Papberg residence throughout the afternoon and into the evening.

At approximately 8:30 P.M. the Papberg residence was searched pursuant to a search warrant. Those present during the search included Lana Papberg, Nancy Massey, Yvonne Massey and Carl Massey, who was wearing a blue vest jacket. Among the many items seized in the basement were a ski mask with holes for the eyes and mouth, a red scarf, a pair of wire rim glasses and surgical rubber gloves. One of the bank's employees testified that the robber holding the guns wore a ski mask that covered everything but his eyes and mouth. There was also testimony that the red scarf and wire rim glasses were similar to the items worn by the woman sitting in the yellow Volkswagon on the day of the robbery. Also seized from the Papberg residence were two jackets, one of which an expert in photographic comparison analysis positively identified as the same jacket appearing in the surveillance photographs. The expert testified that the other jacket was similar to the one pictured by the surveillance camera but he was unable to make a positive identification.

F.B.I. Agent Robert Harvey, who participated in the search of the Papberg residence, found a blue ski mask with a center opening similar to the one described by a bank employee as belonging to one of the robbers. Five hairs found in the ski mask were microscopically compared with hair samples taken from Carl Massey's head. Agent James Hilverda, an expert in microscopic analysis, testified that Carl Massey's hair was similar to three of the five hairs found in the blue ski mask in all categories of microscopic comparison.

Two tellers at the bank testified that two days prior to the robbery, a young man with blond hair approached a teller's window and asked for a roll of quarters and some coin wrappers. Both tellers subsequent to the robbery identified the blond young man as Carl Massey.

In view of the jury verdict in favor of the Government, the evidence, although circumstantial, along with all reasonable inferences to be drawn therefrom, must be reviewed in the light most favorable to the Government. At oral argument the Government conceded, as we feel it must, that the observation of the defendant at the bank two days before the robbery, the notebook, the observation of a young man with blond hair rummaging through the Volkswagon shortly after the robbery and Massey's presence at the Papberg home at the time of the search are insufficient facts to sustain Massey's conviction. Although the cumulative effect of this evidence points a strong finger of suspicion it is not in itself sufficient to prove that Massey was one of the bank robbers. The linchpin is established, however, when this evidence is weighed with the testimony of the Government's expert which established that three of five hair samples found in the blue ski mask (similar to the one used in the robbery) matched in all areas of microscopic comparison with known samples of defendant's hair. We therefore reject defendant's contention that the evidence was insufficient to support the conviction.

The evidentiary importance of the microscopic comparison of the hair samples, however, requires this court to scrutinize defendant's challenge to its foundation, the trial court's interpretation of it and its use by the prosecutor in closing argument. ² F.B.I. Agent Robert Harvey testified that five hairs were found in the blue ski mask. James Hilverda, an expert in microscopic analysis, then testified that Massey's hair was similar to three of the five hairs found in the blue ski mask in all categories of microscopic comparison. After so testifying the court interrogated Mr. Hilverda and the following colloquy occurred:

THE COURT: How many people in the United States have hair that you couldn't distinguish? In other words, what's the likelihood that any one individual, his hair might meet all the characteristics of another individual?

A. Well, first of all you could eliminate people from different races. . . .

You can say positively it came from a person of the Caucasian race or the Mongoloid race and the Negroid race, so basically exclude all those.

You could exclude primarily those people who have mixed racial origin.

So you can be positive on those.

It's the type of thing hair evidence is the type that you can not positively say it comes from one individual to the exclusion of all others.

And I would basically have to go with my experience in examining about probably in excess of 2,000 cases, that I have seen only on a couple of occasions I have seen hair from two different individuals I could not distinguish, that they were so similar, that some hairs within each sample were very close and I did not feel comfortable enough to work the case and to say that one hair came from one individual to the exclusion of the other.

So I did not work the case in that instance.

THE COURT: Two chances one chance in a thousand?

A. Well that's very difficult you're putting it in probabilities because I do not take a hair from each case and compare it with hair from all the other cases.

But that's the frequency with which I have seen it.

The other thing, I could give you a study the Canadians have done a study where they have come up with one in 4,500, that a possibility that a hair which you have done or matched in the manner which I have set forth, there's a chance of one in 4,500 these hairs could have come from another individual.

THE COURT: If you have one hair there, and then you could compare it with 4,500 others, and you might find one?

A. You might find one that would show the same. That would be assuming that you took hairs from 4,500 other people of the same race.

Of course, if you had more hairs than that, you would have multiplication factor at that point.

The defendant does not challenge the opinion evidence that certain hairs within the ski mask were microscopically identical to his hair. The fundamental challenge relates primarily to the prejudicial effect of the use of mathematical statistical probability as elicited and interpreted by the trial judge and argued by the prosecutor.

The actual testimony of the...