United States v. Hill

41 M.J. 596, 1994 CCA LEXIS 3, 1994 WL 679981
CourtArmy Court of Criminal Appeals
DecidedOctober 18, 1994
DocketACMR 9300891
StatusPublished
Cited by6 cases

This text of 41 M.J. 596 (United States v. Hill) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hill, 41 M.J. 596, 1994 CCA LEXIS 3, 1994 WL 679981 (acca 1994).

Opinion

OPINION OF THE COURT ON RECONSIDERATION

GONZALES, Judge:

Contrary to his pleas, the appellant was found guilty, by a general court-martial composed of officer members, of attempted unpremeditated murder, two specifications of presenting a false official document, housebreaking, solicitation to commit graft, and obstruction of justice in violation of Articles 80, 107, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 907, 930, and 934 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for one year, and reduction to Private El.

Before this court, the appellant asserts, inter alia, that the military judge erred by admitting the opinion testimony of the government’s expert witness on the results of a luminol test for hidden blood without a showing that the test was sufficiently rehable. We hold that the military judge erred in admitting the scientific opinion testimony because the government failed to establish the evidentiary reliability of luminol tests for the purpose for which the government sought to use it. However, we further find that the appellant was not prejudiced by this error. We initially issued an opinion in this case on 29 July 1994. We vacated that decision, United States v. Hill, ACMR 9300891 (A.C.M.R. 23 Aug. 1994) (order) (unpub.), on our own motion so that we might more clearly articulate the reasons for our decision.1

I. The Facts

Specialist (SPC) Robinson, the victim of the attempted unpremeditated murder, lived in an apartment in Lawton, Oklahoma, adjacent to Fort Sill. He was scheduled to testify against the appellant in a special court-martial concerning the two specifications of presenting a false official document of which the appellant was found guilty in this case. On 1 December 1992, a few weeks before the appellant’s trial, SPC Robinson was attacked in his off-post apartment when he returned from his unit’s morning physical training (PT). His attacker was a man with a stocky build wearing an Army winter PT uniform, a black wool cap with two small eye slits over his face, and a pair of black leather work gloves. During the incident, the assailant removed both of his gloves to tie SPC Robinson’s hands behind his back with a telephone cord and to tape SPC Robinson’s black wool cap over his mouth.

After SPC Robinson’s hands were tied, the assailant stabbed him once on the right side of his back with such force that the knife broke. He obtained another knife from the kitchen and sliced the left side of SPC Robinson’s neck. The assailant then ran out of the apartment, leaving his gloves behind. Specialist Robinson observed his assailant drive away in a blue Chevrolet Camaro IROC with black louvers and “ground effects” and “IROC” written on the side of the car. This matched the description of the appellant’s car. An examination of the gloves left behind by the assailant revealed the initials “N.H.” inside the right glove and “N. Hill” or “V. Hill” inside the left glove. Based on his observations, SPC Robinson told the Lawton police that he suspected that his attacker was the appellant, Sergeant Norman Hill.

On the evening of the attack, pursuant to a search warrant, the Lawton police seized the appellant’s complete PT uniform from the dryer in the laundry room of his residence. The appellant’s wife indicated that her husband had worn the uniform that morning and that it had been washed. No trace of blood [598]*598or blood stains were visible on the uniform. The uniform items were sent to a criminal laboratory for hidden blood testing.

At the appellant’s court-martial, the defense moved to exclude all references to alleged hidden blood or blood stains on the appellant’s PT uniform-on the basis that such evidence was irrelevant and highly prejudicial under Military Rules of Evidence 402 and 403 [hereinafter Mil.R.Evid.]. Specifically, the defense moved to exclude the testimony of Mr. Darwin Hormann, a senior criminologist with the Oklahoma State Bureau of Investigation. Mr. Hormann performed a luminol test on the appellant’s PT uniform and the result was a “presumptive positive” for blood. However, he was unable to perform a follow-up test confirming the presence of human blood because of the absence of blood crystals or crystalline residue.

The trial counsel, responding to the motion to exclude the results of the luminol test, argued that under Mil.R.Evid. 401, the luminol testimony was relevant. The victim’s wounds were on the left side of his neck and right side of his back. The left cuff of the appellant’s sweatshirt and the right knee of his sweatpants tested presumptive positive for blood. Thus, the luminol test would support an important part of the prosecution: that the blood stains on the appellant’s PT uniform were consistent with the location of blood stains on clothing worn by SPC Robinson’s attacker.

The military judge, in an Article 39(a), UCMJ, session, previewed Mr. Hormann’s testimony to determine whether his testimony and photographs would “contribute to the panel’s understanding of this case” and whether it would be “more prejudicial than probative in this issue.”2 Although no confirmatory test was performed, he ruled that Mr. Hormann’s testimony on the presumptive positive luminol test was admissible to show that there was blood on the appellant’s PT uniform. This included his determination that the testimony’s probative value was not. substantially outweighed by the danger of unfair prejudice.

-II. The Law

Several state courts have mentioned luminol testing, beginning with State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977). There, the North Carolina Supreme Court reversed a trial court’s denial of a defendant’s motion for dismissal of his case, in part because the blood found on the carpet by luminol testing had not been further tested for blood type or otherwise. Id. 235 S.E.2d at 57. Since then, reported cases show that trial judges have admitted testimony on luminol tests with and without evidence of a confirmatory test. In the majority of these eases, including one federal circuit court of appeals case, such testimony has been admitted without any evidence that a confirmatory test had also been performed. See United States ex rel. Savory v. Lane, 832 F.2d 1011, 1013 (7th Cir.1987); Thompson v. State, 768 P.2d 127, 128 (Alaska App.1989); State v. Bible, 175 Ariz. 549, 562, 858 P.2d 1152, 1165 (1993); Zinger v. State, 313 Ark. 70, 852 S.W.2d 320, 322 (1993); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695, 698 (1993); Larimore v. State, 309 Ark. 414, 833 S.W.2d 358, 361 (1992); Johnston v. State, 497 So.2d 863, 870 (Fla.1986); People v. Henne, 165 Ill.App.3d 315, 116 Ill.Dec.

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Bluebook (online)
41 M.J. 596, 1994 CCA LEXIS 3, 1994 WL 679981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hill-acca-1994.