State v. Richards

804 P.2d 109, 166 Ariz. 576, 67 Ariz. Adv. Rep. 65, 1990 Ariz. App. LEXIS 261
CourtCourt of Appeals of Arizona
DecidedAugust 7, 1990
Docket2 CA-CR 90-0236
StatusPublished
Cited by22 cases

This text of 804 P.2d 109 (State v. Richards) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Richards, 804 P.2d 109, 166 Ariz. 576, 67 Ariz. Adv. Rep. 65, 1990 Ariz. App. LEXIS 261 (Ark. Ct. App. 1990).

Opinion

OPINION

HOWARD, Judge.

Jon Michael Richards appeals from a jury verdict finding him guilty of second-degree murder. He was sentenced to an enhanced term of life imprisonment.

FACTS

On the evening of April 11, 1988, appellant and the victim were seen driving to a convenience store for beer. A witness testified that they had shown signs of physical affection towards one another. At 2:00 a.m. on April 12, the victim was last seen alive walking with appellant away from the house of a friend. At 2:30 a.m., a witness heard a woman yell and called the police. When they arrived, the police found appellant standing in the bushes and a short distance away, the victim’s naked body. The police found the victim’s clothes and appellant’s hat near the body.

A bite mark was found on the victim’s breast. Dr. Homer Campbell, an expert in forensic odontology, testified that the police had sent him appellant’s dental cast from which he made wax exemplars to replicate appellant’s dental profile. He received photographs showing the bite mark to scale. Then, the dental cast and wax exemplars were photographed beside a fixed scale. The resulting photographs were presented to the jury by Dr. Campbell. He demonstrated that the bite was human and identified the four teeth that marked the victim’s skin. Dr. Campbell testified that the exemplar showed unique markings, some of which corresponded with the markings on the victim’s skin. He concluded that the bite mark was consistent with appellant’s dentition.

The jury found appellant guilty of second-degree murder. The court imposed an enhanced sentence of life imprisonment. This appeal followed.

ISSUES

Appellant contends that the trial court violated his right to a fair trial by admitting the bite mark evidence. He also asserts that his sentence was enhanced without sufficient evidence.

DISCUSSION

1. Bite Mark Evidence

Appellant contends that the trial court erred in admitting evidence linking his dental profile to the bite mark found on the victim’s breast. He argues that the evidence is unreliable because it lacks general scientific acceptance. Also, he asserts that Dr. Campbell’s expert testimony was inappropriate for two reasons. First, he was unqualified as an expert and second, his opinion was unhelpful to the jury.

Arizona follows the Frye rule. State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Under Frye, the proponent of scientific evidence must show the evidence’s underlying reliability. The test is whether the methods employed in producing the evidence have gained general scientific acceptance and recognition. Id. Scientific evidence meeting this criterion is admissible if presented by a qualified expert. Id.

Appellant acknowledges that each jurisdiction that has considered the issue of whether bite mark evidence is admissible has accepted its use. See State v. Stinson, 134 Wis.2d 224, 228 n. 2, 397 N.W.2d 136, 137 n. 2 (App.1986). See also State v. Sager, 600 S.W.2d 541 (Mo.App.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). Arizona has implicitly recognized the reliability of bite mark evidence. In State v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978), the supreme court *578 found that an expert in forensic odontology could properly testify that there was an eight in one million probability that the bite marks found on the victim were not made by the accused. The court held that the expert’s statement was admissible because it was capable of being supported by adequate medical authority. Coincidentally, Dr. Campbell testified as the expert in Garrison. The issue of whether the bite mark comparison itself was admissible, however, was neither raised nor decided. Here, the prosecution did not attempt to quantify the probability that Richards inflicted the bite mark on the victim. Compare, State v. Garrison, supra (Gordon, J., dissenting); People v. Collins, 68 Cal.2d 319, 438 P.2d 33, 66 Cal.Rptr. 497 (1968).

Some jurisdictions have admitted bite mark evidence without the prerequisite of a Frye-type hearing. Handley v. State, 515 So.2d 121 (Ala.Crim.App.1987); Bundy v. State, 455 So.2d 330 (Fla.1984); People v. Marsh, 177 Mich.App. 161, 441 N.W.2d 33 (1989); State v. Armstrong, 369 S.E.2d 870 (W.Va.1988). These cases have held that the Frye rule is inapplicable when “expert evidence is in the nature of physical comparisons as opposed to scientific tests or experiments.” Handley v. State, supra, at 130. In rejecting the applicability of Frye, the Bundy court reasoned:

The evidence in question is based on the examination of impressions made by human teeth and their comparison with models of known human teeth for the purpose of determining whether the impressions were or probably were or could have been made by a particular individual. Bite mark comparison evidence differs from many other kinds of scientific evidence such as blood tests, “breathalyzer” tests, and radar (as well as from inadmissible techniques such as the polygraph and voice-print analyses) in that these various techniques involve total reliance on scientific interpretation to establish a question of fact. With bite marks evidence, on the other hand, the jury is able to see the comparison for itself by looking directly at the physical evidence in the form of photographs and models.

455 So.2d at 349.

The method or techinique of making a comparison varies among forensic odontologists. However, all comparisons are made from similar and sound procedures by a skilled expert. See People v. Marsh, supra; State v. Sager, supra. We note that appellant does not challenge the method of producing or the resulting accuracy of the dental casts or exemplars. The presentation of comparative evidence by a qualified expert without a Frye hearing is commonplace in criminal trials. See State v. Dixon, 153 Ariz. 151, 735 P.2d 761 (1987) (shoe prints compared to tracks); State v. Blazak, 114 Ariz. 199, 560 P.2d 54 (1977) (hair identity); State v. Watson, 114 Ariz. 1, 559 P.2d 121 (1976), cert. denied, 430 U.S. 986, 97 S.Ct.

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Bluebook (online)
804 P.2d 109, 166 Ariz. 576, 67 Ariz. Adv. Rep. 65, 1990 Ariz. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richards-arizctapp-1990.