In November, 1977, we granted this appeal to the defendant, Eugene Clawson, on two first degree murder convictions rendered in the Circuit Court of Monongalia County. Full argument was heard on March 11, 1980, with the defendant asserting multiple errors. The first relates to the admission of one of his confessions as to which he claims he did not initially waive his right to have counsel present. Collateral to this is the further claim that certain statements made at the time he was taken to an area where part of the crime was committed should not have been admitted without first determining in an in camera hearing if they were voluntary.
Another error assigned is that certain photographs of the bodies of the two victims of the crime should not have been admitted as they were extremely gruesome, highly inflammatory and lacking in probative value. He also contends the trial court erred in refusing his motion for a change of venue. The final ground is that expert testimony relating to hair samples was inadmissible.
The crime had its origin on the evening of January 18, 1970, when two female students at West Virginia University were seen accepting a ride from a passing automobile on a street in Morgantown where they had been hitchhiking. Their failure to return to their dormitory rooms was reported to local authorities. Efforts to trace them were not successful until certain items of personal property belonging to the victims were discovered along the roadside of Route 119 between Morgantown and Grafton. This resulted in an extensive search of a nearby wooded area located some distance from Goshen Road which intersects with Route 119. The bodies of the students were discovered in a shallow grave on April 16, 1970. Both bodies were decapitated and their heads have never been located.
The homicides remained unsolved until January of 1976 when law enforcement officials in Camden, New Jersey, contacted West Virginia police officials that the defendant, who was being held on other charges, was prepared to confess to the crime. A representative of the West Virginia State Police and a Morgantown police detective went to New Jersey where in cooperation with the New Jersey authorities a detailed confession was obtained from the defendant by way of questions and answers taken down by a court reporter.
On January 16, 1976, three days after this confession, the defendant was brought to the Morgantown area where an attempt was made to have him locate the area in which he claimed he had disposed of the victims' heads. The defendant led investigators to a hillside near Point Marion, Pennsylvania, where an opening was discovered leading into some abandoned mine passageways. These were explored but neither the heads nor the gun, that the defendant claimed he threw in the opening along with the heads, could be found. The authorities did, however, find some strands of human hairs in several animal nests located in one of the underground passages.
On February 17, 1976, West Virginia officials again travelled to New Jersey to further interrogate the defendant regarding aspects of his first confession that conflicted with the independent information that the officers had obtained in their effort to corroborate that confession. This second
The defendant furnished further incriminating statements in a letter written February 21, 1976, which he mailed while in jail in New Jersey to one of the West Virginia State police investigators in which he reasserted his responsibility for the offense.
I. The Confessions
At trial the defendant's counsel sought to have defendant's first confession of January 13, 1976, held inadmissible on the ground that the defendant had not clearly and unequivocally waived his right to have counsel present at the time the confession was taken.
During the in camera hearing on the suppression motion, the State offered testimony of three witnesses who were present in New Jersey at the time the defendant's confession was taken. Two of the witnesses were police officials, Detective McCabe from the Morgantown Police and Trooper Shade of the West Virginia State Police. The third was Allen Lesky, a certified court reporter from New Jersey.
Both of the police officials testified that prior to taking the defendant's formal statement before the court reporter, they had talked to the defendant for about an hour concerning the details of the crime. Before this questioning took place, both stated the defendant had been given his Miranda rights.
The controversy arises over the next step in the interrogation when the defendant's formal statement was obtained before the court reporter. At the beginning of this proceeding, the defendant was again given his Miranda rights. The defense attorneys contend that it was during the course of this dialogue that the defense attorneys contend that defendant evidenced a desire for counsel and was talked out of the request.
The State argues, however, that the defendant was fully informed of his right to remain silent and the right to counsel at the initial oral interrogation. The State points to the fact that at the in camera hearing the defendant did not offer any contrary evidence.
In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court established a defendant's Sixth Amendment right to counsel in a criminal case. Massiah dealt with the Government's interrogation of the defendant after he had been indicted and obtained counsel and ruled his inculpatory statements to be inadmissible. Escobedo held that the right to counsel applied at the time of a custodial criminal interrogation.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court elaborated on the constitutional right to have the assistance of counsel and to be informed of this right, and held that custodial questioning could not begin unless the defendant waived his right to counsel.
In Syllabus Point 1 of State v. Bradley, W.Va., 255 S.E.2d 356 (1979), we established, under our State constitution, this rule in regard to the effect of a request for counsel:
Much the same point was made in the first syllabus of State v. McNeal, W.Va., 251 S.E.2d 484 (1978):
What is at issue in this case is whether there has been an appropriate waiver of the right to counsel by the defendant. The United States Supreme Court has recognized in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), that even after counsel has been appointed, the defendant may make a knowing and intelligent waiver of his right to have counsel present when he makes an incriminating statement.
The Supreme Court's approach in Brewer that there is no absolute rule against waiving the right to counsel, once counsel is sought or obtained, parallels its conclusion on the other important right settled in Miranda-that against self-incrimination. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the court considered whether the Miranda stricture—"[i]f the individual indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease," 384 U.S. at 473-74, 86 S.Ct. at 1627, 16 L.Ed.2d at 723-should be made absolute in the sense that once the right
Brewer addressed the waiver of counsel standard in the following terms:
In its more recent holding in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the Court concluded that a specific waiver of Miranda rights was not necessary, but that a waiver could be implied from all of the circumstances surrounding the administration of the Miranda warnings and the defendant's conduct in relation to these warnings.
A distinction, however, must be made between Brewer and Butler. In Brewer the defendant already had counsel who had cautioned him not to discuss the crime with police officers who were transporting him to the city where the crime had been committed. The attorney had also advised the officers that they were not to instigate discussions with the defendant during the trip. During the journey, however, the officers brought up the crime and were able to trigger inculpatory statements. In Butler the defendant did not have counsel and was given his Miranda warnings concerning his right to have counsel. The issue was whether he had initially waived his right to counsel.
It is apparent that where the evidence is undisputed that the defendant sought or obtained his right to counsel and the State obtains a confession after this admitted fact, the State's burden to show a subsequent waiver in the face of the defendant's acknowledged assertion of his right becomes exceedingly heavy. This burden is much more onerous than in the case where the initial issue is whether, after receiving his Miranda warning, the defendant voluntarily and intelligently waived his right.
The reason for this distinction rests on the basic concept of waiver of the Miranda rights. It is recognized in Butler and other
This is the distinction between State v. Bradley, W.Va., 255 S.E.2d 356 (1979), and our earlier cases of State v. Mason, W.Va., 249 S.E.2d 793 (1978); State v. Bragg, W.Va., 235 S.E.2d 466 (1977); and State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971). In these earlier cases we dealt with the problem of whether the defendant had initially made a voluntary waiver of his Miranda rights where this factual issue was in dispute. In this situation the primary problem is to resolve the factual dispute and to determine whether the State has sustained its burden of showing the waiver. This point was summarized in State v. McNeal, W.Va., 251 S.E.2d 484, 487 (1978):
In Bradley, however, it was undisputed that the defendant had initially requested counsel on several occasions; yet, no timely efforts were made to obtain counsel for him. Two days after his request for counsel, he was confronted by hostile media employees while returning from a magistrate office in custody of the police, and at this point made some inculpatory statements to the police. In holding these statements to be inadmissible because of the defendant's undisputed prior request for counsel, we stated:
A further legal question in connection with the present confession is the effect to be given to the fact that at the time the confession was taken the defendant already had counsel appointed on the unrelated crime that he had committed in New Jersey. Most courts which have considered this question have held that the fact that the defendant has counsel on an unrelated charge does not preclude police officials from obtaining a waiver of counsel for the present interrogation without notice to counsel appointed on the unrelated charge. E. g., Government of Canal Zone v. Sierra, 594 F.2d 60 (5th Cir. 1979); United States v. Brown, 569 F.2d 236 (5th Cir. 1978); United States v. Hall, 523 F.2d 665 (2nd Cir. 1975); United States v. Crook, 502 F.2d 1378 (3rd Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 808, 42 L.Ed.2d 823 (1975); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1977), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101; Rutledge v. State, 263 Ark. 781, 567 S.W.2d 283 (1978).
Indeed many courts do not appear to differentiate between the standard for waiver of counsel where the defendant has counsel on the charge which is the subject of the pending interrogation and where counsel exists on an unrelated charge. United States v. Cobbs, 481 F.2d 196 (3rd Cir. 1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224; United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125; Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974); State v. McLucas, 172 Conn. 542, 375 A.2d 1014 (1977); People v. Aldridge,
There is a need for such a differentiation. Where the defendant has sought or obtained counsel on a pending charge, it is apparent that he has initially exercised his right to counsel and waiver at that stage is not an issue. If Massiah and Miranda and their progeny are to have any meaning, the State should not be permitted to make subsequent overtures to the defendant to see if he wishes to abandon his already exercised right to counsel. To permit the State to subsequently test the defendant's resolve to have counsel by importuning him to waive counsel is to enable the State to wear away at the defendant in the hope of having him recant his earlier decision to have counsel.
This restriction does not mean that the defendant may not voluntarily decide to recant his right to counsel but any reconsideration must occur independently of overtures from the State. Under Bradley the State will bear an even heavier burden to show a voluntary waiver or recantation following an assertion of the right to counsel.
On the other hand, where counsel has been obtained on an unrelated charge, this fact has no particular bearing on whether the defendant is willing to waive counsel on the present charge. It cannot be said from either a constitutional or ethical standpoint that because a defendant has counsel on one criminal charge, the State is thereby foreclosed from making contact with the defendant on another matter. Government of Canal Zone v. Sierra, 594 F.2d 60 (5th Cir. 1979); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1977); Rutledge v. State, 263 Ark. 781, 567 S.W.2d 283 (1978); State v. Sahlie, 277 N.W.2d 591 (S.D.1979). The essential point is whether the defendant desires to have counsel on the present charge or whether he will voluntarily waive that right.
This decision is one that necessarily relates to the defendant's state of mind in regard to the present charge and we cannot conclude that an earlier decision to have counsel on an unrelated charge can be automatically assumed on the subsequent charge. Moreover, the State is still required before interrogation to give the defendant his Miranda warnings so that he may at this point make the decision to have counsel on the separate charge. To hold that his prior decision to have counsel on an unrelated charge forecloses further inquiry with the defendant on the new charge would result in an absolute presumption against waiver from a prior collateral occurrence. Apparently only one court has held that a defendant's retention of counsel on an unrelated charge forecloses the State from undertaking interrogation of the defendant on a separate charge without notice to his counsel. People v. Rogers, 48 N.Y.2d 167, 397 N.E.2d 709, 422 N.Y.S.2d 18 (1979).
In reviewing the circumstances of the present case under the foregoing law, we are of the view that the fact that the defendant had court-appointed counsel on the unrelated New Jersey charge did not preclude the State from interrogating him on the West Virginia murder charges.
The initial oral interrogation was preceded by his Miranda warnings which the defendant acknowledges and whereby he expressly waived his right to remain silent and his right to have counsel. When the defendant was subsequently interrogated before the court reporter, he was again given his Miranda warnings and agreed to waive his right to remain silent and to have counsel.
Here, we believe that the equivocation arises not simply because the defendant had on several prior occasions expressed a clear and unequivocal willingness to waive his right to counsel, but also because when he was asked if he wanted his attorney his response was equivocal, to the effect that "He won't come this late" and "I don't have his phone number". In reaching this conclusion, we rely not only on the dialogue developed at the time the transcript of the first confession was taken but also on the testimony of the officials present at the taking of the confession who testified at the in camera hearing as to the defendant's demeanor and willingness to waive his right to counsel. In summary, we do not believe the trial court erred in ruling the first confession to be voluntary.
Defendant further contends that certain statements made by him to police officers, while he accompanied them on a visit to the Morgantown area three days after his first confession, were inculpatory and should not have been admitted without an in camera hearing to determine their voluntariness. This point was not raised below. We have held at least since State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966), that it is the mandatory duty of the trial court, whether requested or not, to make an in camera determination of the voluntariness of the defendant's inculpatory statements before they can be presented in evidence. The latest affirmation of the Fortner principle was given by Justice Neely in State v. Tomey, W.Va., 259 S.E.2d 16, 17 (1979), where he stated:
"Since our decision in State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966), a hearing on the voluntariness of a confession
See also State v. Lamp, W.Va., 254 S.E.2d 697, 698-699 (1979); State v. Sanders, W.Va., 242 S.E.2d 554, 556 (1978); State v. Johnson, W.Va., 226 S.E.2d 442, 445 (1976); Spaulding v. Warden, W.Va., 212 S.E.2d 619, 624 (1975); State v. Plantz, 155 W.Va. 24, 36, 180 S.E.2d 614, 622 (1971).
Because this case is reversed on the ground set out in the next section, we need not extensively consider this point except to make the following observations. First, where there is a failure to hold an in camera hearing on the defendant's inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that the case will not be reversed for a new trial on this basis alone. Instead, it will be remanded for a voluntariness hearing before the trial court. See State v. Lawson, W.Va., 267 S.E.2d 438, 439-40 (1980); State v. Brewster, W.Va., 261 S.E.2d 77, 82-83 (1979). If the trial court finds the statements are voluntary the verdict will stand. If, on the other hand, he finds the statements to be involuntary, the verdict will be set aside unless the trial court determines that this constitutional error is harmless beyond a reasonable doubt.
II. Admissibility of Photographs
The defendant asserts that the trial court committed reversible error when it admitted ten color photographs of the victims' bodies as they appeared on the pathologist's autopsy table. The defendant argues that these photographs were not relevant to a single issue that was disputed in the case and served only to prejudice and inflame the jury.
All ten of the autopsy pictures admitted were 8" × 10" color glossy prints. The first seven photographs comprise exhibits 5A to 5G and portray the body of the victim who was found in the upper portion of the grave. The remaining three photographs, exhibits 6A-6C, are of the body of the second victim, who was found in the lower portion of the grave.
It is difficult to describe a scene as gruesome as that depicted in these photographs. For three months these human remains had lain in the forest decomposing. The flesh over much of the body in Exhibit 5 is torn and missing. The investigators at trial suggested the flesh was eaten away by animals. Exhibit 5A portrays the body as it appeared when delivered to the autopsy room, clothed in blood-soaked garments. The right leg contains remnants of flesh and tattered clothing that taper to the point where the lower leg is eaten to bare bone. The right foot is missing altogether. Exhibit 5C is a color close-up of the same view with the clothing removed.
Exhibits 5B and 5D are close-up photographs of the headless torso, clothed only in a brassiere. The photographs are centered on the severed neck in a view through the opening of the wound into the partially hollowed chest cavity. The remaining three photographs in Exhibit 5 are post-autopsy photographs, after the chest cavity had been sawed apart and the remaining internal organs removed. The pictures are color close-ups of the dried and decomposed remnants of the disemboweled pelvic region.
The three photographs comprising Exhibit 6 portray a different, though equally gruesome condition. Since the victim in Exhibit 6 was found in the lower portion of the grave, the body, with the exception of the head, appears to be intact. The three photographs portray only the unclothed upper torso, in color close-ups of the headless shoulders. Although the skin is blood-soaked and discolored, it is unbroken so that the body fluids have been retained.
It is apparent that the photographs in Exhibits 5 and 6 were not of essential evidentiary value. They depict nothing that was not otherwise thoroughly established by competent expert evidence. The defense did not dispute the existence of two decapitated bodies. Two pathologists testified in detail to the condition of the corpses. The state of the bodies after three months of decomposition and after autopsy procedures had been performed was such that there was no relevance to their condition at the time the crime was committed. The only practical effect of the photographs was the shock value of their grisliness.
The State suggests that Rowe changed our law in regard to the admissibility of gruesome photographs, and that since Rowe had not been decided at the time of the defendant's trial, it should not be applied. It may be true that prior to Rowe our law in regard to the admissibility of gruesome photographs did not contain some of the detailed standards set in Rowe. Even prior to Rowe, however, we required photographs to accurately depict the victim's condition at the time of the commission of the crime and to be relevant to some issue in the case. State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946); State v. Goins, 120 W.Va. 605, 199 S.E. 873 (1938). Even if the photographs are tested by these modest standards, they would not be admissible.
The most obvious reason for their inadmissibility is the fact that they do not depict the condition of the victims at the time of the offense but some three months later after they had decomposed and had been eaten by wild animals. Even more appalling is that some of the photographs were taken after the chest cavity was cut apart by the pathologist and the internal organs were eviscerated. Courts have been almost universal in their condemnation of admitting photographs depicting the victim's body after it has been subject to autopsy procedures. People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880 (1956); People v. Landry, 54 Ill.App.3d 159, 11 Ill.Dec. 588, 368 N.E.2d 1334 (1977); People v. Jackson, 9 Ill.2d 484, 138 N.E.2d 528 (1956); Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958); State v. Clark, 218 Kan. 18, 542 P.2d 291 (1975); State v. Morris, 245 La. 175, 157 So.2d 728 (1963); State v. Bischert, 131 Mont. 152, 308 P.2d 969 (1957); Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271 (1968); State v. Poe, 21 Utah.2d 113, 441 P.2d 512 (1968). Other courts have held photographs to be inadmissible as excessively gruesome where the victim's body was mutilated by causes other than the crime or in a decomposed state when discovered. Commonwealth v. Richmond, 371 Mass. 563, 358 N.E.2d 999 (1976) (victim's face mutilated by dog after murder); Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977) (photograph of decomposed body of victim pulled from lake).
The State argues that the photographs had some probative value in demonstrating that the bodies were so badly deteriorated and decomposed that it was impossible for the State's pathologist to determine if there
Even under the harmless error rule in State v. Atkins, W.Va., 261 S.E.2d 55, 59 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980), we cannot dismiss the introduction of the photographs as harmless. In Syllabus Point 2 of Atkins we summarized our nonconstitutional harmless error rule as follows:
Following this formulation, we find that absent the pictures the State still had sufficient evidence to prove its case, but it cannot be said that the quality of the State's proof was overwhelming. This point was emphasized in Atkins when we stated, "If the case contains a number of substantial key factual conflicts ... there is an increased probability that the error will be deemed prejudicial." 261 S.E.2d at 63. See also, State v. Haverty, W.Va., 267 S.E.2d 727 (1980).
Although the State's case included several confessions from the defendant which were its strongest evidence, the confessions contained a number of factual inconsistencies with the physical evidence. These inconsistencies had caused two members of the West Virginia State Police, who had investigated the crime, to conclude that the defendant's confessions were fabrications. Their testimony tended to support the defendant's story that he had obtained the details in his confession from a magazine article published in the December 1975 issue of Detective Cases entitled "The Case of the Headless Coeds" which described in some detail the results of the investigations surrounding the crime.
The record demonstrates that the prosecution also utilized the photographs in closing argument. In the beginning portion of the State's closing argument the jury was shown Exhibit 5G which the State characterized as "a consumed evacuated hunk of flesh and bone." During the remaining portions of the State's closing arguments
The fundamental rationale barring the introduction of gruesome photographs is that their impact on the jury is such that it will become so incensed and inflamed at the horrible conditions depicted that it will not be able to objectively decide the issue of the defendant's guilt. This point has been frequently stated by other courts and perhaps best expressed by the Indiana court in Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899, 905 (1958):
We conclude that the photographs designated as Exhibits 5 and 6 had no probative value and were clearly gruesome and their introduction created reversible error.
III. Change Of Venue
Since this case must be reversed, the question of whether the defendant was entitled to a change of venue is not as significant since the motion may be renewed, if warranted, before the next trial. A few observations are perhaps worthwhile. In State v. Sette, W.Va., 242 S.E.2d 464 (1978), we discussed some of our principles surrounding the grounds for a change of venue. There, as here, the prosecutor had disclosed a considerable portion of his case to the media in advance of trial, which had given the disclosures widespread publicity. This practice violates the Code of Professional Responsibility, DR 7-107 which precludes both prosecution and defense attorneys from trying their case through the public media.
Both Sette and State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967), as well as other of our cases
A further factor that may be accorded some significance in Sette is that "almost fifty percent of the jurors summoned for jury duty were disqualified because they had formed a conclusion concerning the case which they were unable to discard." 242 S.E.2d at 468. Compare Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), with Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Here seven out of the original panel claimed disqualification, but the record does not disclose the precise reasons beyond the inference that they had formed an opinion. Obviously, where it is determined during voir dire that an unbiased jury panel cannot be assembled, a change of venue can be granted at this point. Double jeopardy does not attach until the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Adkins v. Leverette, W.Va., 264 S.E.2d 154 (1980); Brooks v. Boles, 151 W.Va. 576, 153 S.E.2d 526 (1967).
From the record, it is apparent that much of the change of venue problem was triggered by the prosecutor's divulging his case to the media in advance of trial. It is hoped that on the retrial such matters will not reoccur.
IV. Admissibility of Hair Analysis
The State introduced testimony from a State Police chemist who testified about certain hair retrieved from animal nests that were located in an abandoned underground mine. The mine was beneath the crevice where the defendant allegedly threw the severed heads. The chemist performed a microscopic examination of these hairs in comparison with hair taken from a pocketbook and clothing belonging to the victims. He testified that the hairs contained some characteristics in common, although he was unable to form an opinion from his examination as to whether the nest hair was actually that of the victims. The defendant asserts that it was error to admit the chemist's testimony as to hair comparison in view of the fact that the chemist admitted that he did not possess sufficient known samples from the victims to give an ultimate opinion, based on a reasonable degree of scientific accuracy, that the hair samples found in the nest were the same as those taken from the personal possessions and clothing of the victims.
Part of the problem lies in the fact that the record does not adequately disclose the scientific basis for determining how comparison is made with regard to hair samples. We are aware that other courts have permitted expert testimony in regard to comparison of hair samples, but in these cases there was no question raised as to the absence of a sufficient quantity of known samples and consequently this point was not discussed. Most of the cases seem to assume that a sufficient scientific accuracy has been demonstrated and, without any extensive discussion of the evidentiary basis for admitting such testimony, hold that such testimony is admissible. United States v. Brady, 595 F.2d 359 (6th Cir. 1979), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84; United States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977), cert. denied, 434 U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107; United States v. Haskins, 536 F.2d 775 (8th Cir. 1976), cert. denied, 429 U.S. 898, 97 S.Ct. 263, 50 L.Ed.2d 182; People v. Allen, 41 Cal.App.3d 196, 115 Cal.Rptr. 839 (1974); Padilla v. People, 156 Colo. 186, 397 P.2d 741 (1964); People v. Di Giacomo, 71 Ill.App.3d 56, 27 Ill.Dec. 232, 388 N.E.2d 1281 (1979); Commonwealth v. Tarver, 369 Mass. 302, 345 N.E.2d 671 (1975); People v. Watkins, 78 Mich.App. 89, 259 N.W.2d 381 (1977); State v. Carlson, 267 N.W.2d 170 (Minn.1978); State v. Vargus, 118 R.I. 113, 373 A.2d 150 (1970); State v. Batten, 17 Wn.App. 428, 563 P.2d 1287 (1977). In at least one case, People v. Roff, 67 A.D.2d 805, 413 N.Y.S.2d 43 (1979), the court struck down hair comparison testimony because the expert stated only that the hair could have come from the same person:
It is generally recognized that scientific tests that are relevant to some issue may be admitted into evidence. However, in order for an expert to testify concerning the results of such tests several initial facts must be shown. The first relates to what is commonly called the Frye test which is derived from the following statement in Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013, 1014 (1923):
Most courts have adopted this rule that there must be general acceptance of the scientific principle which underlies the test. United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977) (ion microprobic test for hair identification); United States v. Alexander, 526 F.2d 161, 163-164 (8th Cir. 1975) (polygraph); United States v. Baller, 519 F.2d 463, 466 (4th Cir. W.Va.1975), cert. denied, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (spectrograph analysis); United States v. Addison, 162 U.S.App.D.C. 199, 498 F.2d 741, 743 (1974) (spectrograph analysis); United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971) (neutron activation analysis); Marks v. United States, 260 F.2d 377, 382 (10th Cir. 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 (1959) (polygraph); United States v. Hearst, 412 F.Supp. 893 (N.D.Cal. 1976) (psycholinguistic analysis); People v. Kelly, 17 Cal.3d 24, 30-31, 130 Cal.Rptr. 144, 148-49, 549 P.2d 1240, 1244-45 (1976) (spectrogram); Reed v. State, 283 Md. 374, 385-89, 391 A.2d 364, 368-72 (1978) (spectrogram); Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671, 674, 677-78 (1975) (spectrogram); State v. Andretta, 61 N.J. 544, 296 A.2d 644 (1972) (spectrogram); see Comment, 64 Corn.L.Rev. 875 (1979).
There is some divergence among courts as to how generally accepted the scientific principle must be and the fact that the test is not completely infallible will not bar its acceptance. United States v. Brown, 557 F.2d 541 (6th Cir. 1977); People v. Allweiss, 48 N.Y.2d 40, 396 N.E.2d 735, 421 N.Y.S.2d 341 (1979).
Undoubtedly there are certain scientific tests that have been widely used over a long period of time, such that their general acceptance in the scientific community can be judicially noticed. This point was recently made in Reed v. State, 283 Md. 374, 391 A.2d 364, 367 (1978):
Much the same reasoning was followed in our first fingerprint case, State v. Johnson, 111 W.Va. 653, 658-59, 164 S.E. 31, 34 (1932), where we quoted this passage from an Illinois decision holding that:
"... there is a scientific basis for the system of finger print identification, and that the courts are justified in admitting this class of evidence; that this method
As the Maryland court points out in Reed, supra, where the reliability of the scientific test cannot be judicially noticed, its reliability must be demonstrated before the expert can testify concerning the test:
This is much the same approach that we followed in State v. Frazier, W.Va., 252 S.E.2d 39, 43 (1979), where we reviewed at length the literature and court opinions in regard to the admissibility of a polygraph test and concluded that such tests are not admissible in criminal trials in this State because of several problems, one of which is its questionable scientific reliability.
We do not reach the question in this case as to whether the hair analysis comparison test should have been initially subjected to a determination of its scientific accuracy and reliability. This is because at trial no objection was raised on this point and the expert after giving his general background as a chemist and his training in hair analysis was permitted to testify about the examination that he made in regard to the hair samples. Ordinarily where evidence is introduced at trial without an objection, we will not consider such matters on appeal. State v. Burton, W.Va., 254 S.E.2d 129, 140 (1979); State v. Starkey, W.Va., 244 S.E.2d 219, 227 (1978); State v. McGee, W.Va., 230 S.E.2d 832, 836 (1976), overruled on other grounds, State v. McAboy, 236 S.E.2d 431 (1977); First National Bank v. Bell, W.Va., 215 S.E.2d 642 (1975); State v. Pietranton, 137 W.Va. 477, 492, 72 S.E.2d 617, 625 (1952).
Beyond the initial issue of the accuracy and reliability of the scientific test is the question of whether accepted test procedures were followed by qualified personnel in making the test. In State v. Hood, 155 W.Va. 337, 342, 184 S.E.2d 334, 337 (1971), we made this general statement about the necessary foundation for the admissibility of the test results:
"The parties agree generally that admissibility of expert testimony based
As we have earlier noted the hair analysis expert had conceded that because of the lack of sufficient known samples of the victims' hair he was unable to determine whether the hair found in the nests matched the victims' hair. His testimony essentially was that the hair from the nests was human hair and that it came from two separate sources. He was also able to state from microscopic examination that as to two groups of nest hair there were certain similarities with the hair found in one of the victim's pocketbook and on the clothing belonging to both victims by way of natural color and dye characteristics.
Because this case is reversed on other grounds, we need not determine whether the expert's testimony on hair comparison should have been presented to the jury. One of the dangers inherent in expert testimony in regard to scientific tests is that the jury may not understand the exact nature of the test and the particular methodology of the test procedure and accord an undue significance to the expert testimony. This problem was discussed at some length in People v. Kelly, supra:
One of the significant problems in the record in the present case is that at no time was the expert asked to describe how comparison characteristics of hair are scientifically determined. In the Federal Bureau of Investigation publication entitled "Microscopy of Hair, A Practical Guide and Manual" (Issue 2, 1977), 11 et seq., there is a list and discussion of some fifteen comparison points.
It is apparent that the trial court confronted with this problem should require some in camera disclosure of the test results and methodology in order to make an initial determination of whether the expert's testimony should be admitted.
For the foregoing reasons the judgment of the circuit Court of Monongalia County will be reversed and the case remanded for a new trial.
Reversed and remanded.