PEOPLE v. GISTOVER Docket No. 114508.
189 Mich. App. 44 (1991)
472 N.W.2d 27
PEOPLE v. GISTOVER
Michigan Court of Appeals.
Decided May 6, 1991, at 10:10 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Gladys L. Christopherson, Assistant Prosecuting Attorney, for the people.
Daniel D. Bremer, and Lawrence J. Gistover, in propria persona.
Before: GRIFFIN, P.J., and SHEPHERD and DOCTOROFF, JJ.
Defendant appeals as of right his jury conviction of first-degree murder, MCL 750.316; MSA 28.548, and subsequent plea of guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082, claiming that the trial court erred in allowing the admission into evidence of results of electrophoretic testing done on a dried evidentiary bloodstain taken from a leg of defendant's blue jeans. We find, after a careful review of the record, that the trial court did not err in this regard. Defendant also claims that the trial court erred in failing to suppress a statement given by defendant to a police officer before defendant's arrest. We disagree and, therefore, affirm defendant's conviction.
The starting point for our analysis of the first issue raised by defendant is the so-called Davis-Frye rule, a culmination of the reasoning in the cases of Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923); People v Davis,
Electrophoresis was aptly described in People v Reilly,
In People v Young (After Remand),
The first issue is not in dispute here because the bloodstains were taken within a day or two of the murder and preserved. See Young (After Remand), p 490. The Young (After Remand) Court's concern over the reliability of the Wraxall thin-gel multisystem stemmed from the lack of independently conducted reliability studies in light of the criticism espoused primarily by the system's outspoken critic, Dr. Benjamin Grunbaum, that the filter used in testing E[s]D molecules has the unintended effect of compromising the analysis of the PGM and GLO molecules. Also, at the time Young (After Remand) was decided, no comprehensive control tests had been conducted on the effect of common crime scene contaminants, and the scientists who testified in that case had no experience with soil or chemical contamination and, therefore, could only guess what effect those contaminants might have.
As testified to below, in the wake of Young (After Remand), a study was done on the possible effects of various contaminants. This published study, conducted by Dr. Bruce Budowle and Professor Robert Allen, tested various contaminants such as soil, gasoline, oil, bleach, salt, detergent, acid, and base, and found that the first three had no effect on the genetic markers or the electrophoretic runs, and the acid, base, and bleach altered the [p]H of the electrophoretic gels so much that the distortion was easily identifiable by even a novice. Thus, concluded the authors, contaminants that could affect protein conformation, alter the [p]H, or impart charge changes would be readily apparent because they would distort the electrophoretic gel pattern in a way that could be easily recognized by the reader.
In Stoughton, supra, p 229, a panel of this Court found that the Budowle/Allen study satisfied the demand for "comprehensive control tests evaluating the effects of different contaminants," and that through the study's publication in a scientific journal, the results had been subjected to the scrutiny of the scientific community, as required by Young (After Remand). The trial court in the present matter came to the same conclusion and, in light of Stoughton, we see no reason to disagree, let alone find its conclusion on this particular issue clearly erroneous.
At the Davis-Frye hearing conducted in this matter, the prosecution presented several witnesses
However, the Young (After Remand) majority was concerned with the reliability of the Wraxall multisystem and imposed a requirement of independent validation because the scientific community could not reach a consensus on the reliability of that system. (The Wraxall multisystem was not used in the case at bar.) Dr. Grunbaum's testimony in the instant matter reveals that he does not object to all multisystems, just the one devised by Wraxall. He further testified that he has always believed that under certain circumstances the courts can have confidence in electrophoresis of dried evidentiary bloodstains. To him reliability means repeatability. That is, if the test can be repeated and the same conclusion reached by different analysts, the results may be deemed reliable. That is what occurred here. One analyst ran
Dr. Grunbaum would also impose other guidelines on laboratories, such as requiring that their analysts be certified and subjected to periodic proficiency tests, and that they be supervised and have a quality assurance program in place which is monitored and externally enforced. The laboratory and the analysts that conducted the electrophoretic testing in the case at bar met Grunbaum's standard. For example, an established protocol was in place at the laboratory, the analysts there continually underwent both internal and external proficiency testing, controls were used, and, as noted above, two analysts read the stains independently to ensure accuracy.
The trial court found that Dr. Grunbaum's concerns had been addressed, and that the procedure in question had been shown to have gained general scientific acceptance for reliability. After reviewing the evidence presented in this matter, we cannot say that we are left with a definite and firm conviction that a mistake was made.
Contrary to defendant's assertion, we need not resolve the question whether the Wraxall thin-gel multisystem has gained acceptance in the relevant scientific community. That particular method, the reliability of which may or may not still be disputed and was the focus of concern in Young (After Remand), was not used here. We agree with the Stoughton panel that Young (After Remand) "imposed the requirement of independent validation because the scientific community [as perceived by the Young (After Remand) majority] could not reach a consensus on the reliability of the Wraxall multisystem." Stoughton, supra, p 229.
According to the Young (After Remand) majority, there existed a dispute over the reliability of
The concerns that were present in Young (After Remand) and, thus, the dispute over the reliability of the particular method employed in Young (After Remand), do not exist here. Therefore, we cannot say that the trial court's findings in this matter are clearly erroneous. We are bound by Young (After Remand) and, applying the reasoning utilized in Young (After Remand), we find no basis to conclude that the electrophoretic testing done in this case did not enjoy acceptance by the scientific community. The issue of the effect of contaminants has been studied and the study subjected to scrutiny, and there was no problem with compromise as discussed above. The test results were read independently by two analysts who came to the same conclusions, and an established protocol was followed.
In sum, we hold that where adequate safeguards have been implemented, such as utilization of samples of known types as controls for comparison, a second, independent reading by another analyst, use of analysts who periodically undergo proficiency testing, adherence to established protocols, reporting of only unambiguous banding patterns, and where PGM, GLO and E[s]D markers have not been typed simultaneously, the results of electrophoretic typing of dried evidentiary bloodstains
We further find no merit to defendant's contention that the trial court erred in allowing a statement given by defendant to a police officer to be admitted into evidence. Defendant was not in custody at the time he gave the statement, nor was he otherwise deprived of his freedom of action in any significant way such that Miranda [v Arizona,
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