State v. Jones

777 S.W.2d 639, 1989 Mo. App. LEXIS 1233, 1989 WL 99487
CourtMissouri Court of Appeals
DecidedAugust 29, 1989
DocketNo. WD 40793
StatusPublished
Cited by4 cases

This text of 777 S.W.2d 639 (State v. Jones) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jones, 777 S.W.2d 639, 1989 Mo. App. LEXIS 1233, 1989 WL 99487 (Mo. Ct. App. 1989).

Opinion

TURNAGE, Judge.

Daniel 0. Jones was found guilty of forcible rape, § 566.030, RSMo 1986, by a jury and the court sentenced Jones to ten years imprisonment pursuant to the jury’s verdict. Jones contends there was error in admitting expert evidence relating to hair, in cross-examination of Jones, and in failing to quash the jury panel. Affirmed.

May 20, 1987, was the last day of school for seniors at Raytown South High School. At about 10:30 a.m. on that day, the victim, a teacher, entered a class room to prepare for a class which was to begin in a few minutes. The victim rearranged the desks, and because the room did not have any windows, she opened double doors which led on to the stage of a theater. She stated as she opened the doors a hand reached out from behind the doors, grabbed her, and pulled her on to the stage. The stage was dark, but there was some light, and after the victim’s eyes adjusted to the light, she was able to observe her attacker. She described him as a black male wearing bluejeans and a light colored T-shirt.

The victim stated her attacker threw her to the floor on to her back, threatened to kill her, and proceeded to rape her.

After about fifteen minutes the victim was able to free herself and ran into her classroom screaming. Her screams attracted a number of people and the stage and auditorium were searched soon thereafter. It was discovered that there were two unlocked steel doors, which led to the outside, and apparently these were open and were the source of light on the stage. All of the other doors were locked, except doors which led to the interior of the school.

There was evidence that a teacher was in a classroom which faced the doors leading to the exterior. She did not observe anyone leave the auditorium by those doors until Coach Lathrop came out, as a part of his search of the auditorium.

A student testified that while he was walking in a hall inside the school he observed Jones coming out of the auditorium. This occurred at about the same time as the victim was screaming.

The victim gave a description of the man who had raped her to the police officers. One of the officers gave her a school yearbook to determine if she could identify anyone. From this book she identified Jones who was a senior at the time of the rape.

Jones was arrested, placed in a lineup, and the victim identified Jones from a video tape of the lineup. During the trial the victim also identified Jones in the court room as her attacker.

[641]*641The victim went to Research Hospital where she was examined and her pubic hairs were combed. This produced an unknown hair. Jones was arrested and hair samples were taken from his pubic area.

John Wilson, from the Regional Crime Laboratory, testified that he had examined many thousands of hairs, and had lectured and written extensively on the subject of hair identification. He stated that he had compared the hair found on the victim with a hair taken from Jones and found the two to be indistinguishable. Wilson further testified that both the hair found on the victim and the sample taken from Jones contained a number of big black spots in the cortex, which he referred to as voids. Wilson testified that these voids were not common and in his experience he had only found this condition in one or two percent of the hairs he had examined. Wilson did not testify that the hair found on the victim came from Jones.

Jones testified and admitted that he was in the auditorium at the time of the rape, but was asleep on the steps leading from the stage to the auditorium. He said that he awoke when he heard a woman screaming and immediately ran from the auditorium because he was afraid he would get into trouble with the school administration since he was not supposed to be in the auditorium at that time. Jones admitted that he had told the police five or six different versions of what he had been doing just prior to, and during, the time the rape took place.

Jones produced an expert on hair identification who stated that he found some common features between the hair taken from the victim and those taken from Jones, but testified that he could not say the hairs were indistinguishable. He found several dissimilarities and also stated he did not observe the black spots which Wilson had found. Jones also produced evidence of his good character.

Jones first contends that the court erred in admitting Wilson’s testimony that Wilson had only found black spots in one or two percent of the hairs which he had examined. The contention is that this testimony did not meet the test set out in Frye v. United States, 293 F. 1013 (DC Cir.1923). Jones contends Wilson’s observation of the black spots was not recognized by the scientific community as a basis of identifying hair, thus the testimony of Wilson concerning this aspect of his comparison was inadmissible.

This argument miseharacterizes the testimony of Wilson by stating that Wilson gave an opinion of probabilities of the unknown hair found on the victim as coming from Jones, when Wilson did not testify to that fact. Wilson did not testify in terms of a percentage of probabilities of the hair found on the victim as coming from Jones, but only testified as to his observation of hairs in his own experience. There is no contention as to Wilson’s being a qualified expert, nor to his extensive experience in examination of hair, thus it was proper to allow Wilson to testify to what, in his experience, he had observed.

Evidence of hair comparisons is accepted in Missouri. State v. Hoard, 715 S.W.2d 321, 325[6, 7] (Mo.App.1986). Jones relies on State v. Kleypas, 602 S.W.2d 863 (Mo.App.1980). There the court discussed statistical science as applied to the points of similarity between items being compared and the application of such information to produce varying degrees of probability. Id. at 869. The probability referred to is that the items examined match a known item. That case is not applicable here because, as noted, Wilson did not testify to any probability, or percentage of probability, that the hair came from Jones. There was no error in admitting Wilson’s testimony concerning the existence of voids in the cortex of the hairs compared.

Jones next contends the court erred in allowing the State to cross-examine Jones concerning Jones' specific acts of conduct at Raytown South. After Jones had testified on direct that he ran from the auditorium when he heard a woman scream because he was afraid he would get into trouble for being in the auditorium, the State cross-examined him on the fact that he had been in trouble at school for disruptive behavior, excessive tardiness, and [642]*642roaming the halls without passes. The cross-examination sought to elicit from Jones the fact that fear of violating school rules had not kept him from violating those rules in the past and, therefore, he would have had no fear of being in the auditorium when he was not supposed to be. Thus, running from the auditorium was not attributed to being afraid of getting into trouble for violating school rules.

Jones contends that the cross-examination violated the rule stated in State v. Earvin, 510 S.W.2d 419

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24 S.W.3d 21 (Missouri Court of Appeals, 2000)

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Bluebook (online)
777 S.W.2d 639, 1989 Mo. App. LEXIS 1233, 1989 WL 99487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jones-moctapp-1989.