Franco v. State

¶1concurring.

¶2While I concur that the trial court’s failure to conduct a Kelly hearing was harmless error, I find myself in disagreement with the majority’s discussion of Points of Error Four and Five. Accordingly, I write separately to express the reasons for my disagreement.

¶3The State’s Alleged Concession of Error

¶4I initially question whether the majority has correctly construed the State’s concession of error made in response to these points of error. In Point of Error Four, Appellant contends that the trial court erred by allowing expert testimony without first conducting a Kelly hearing outside the presence of the jury. In Point of Error Five, he argues that the trial court erred in allowing expert blood spatter testimony without proof that the testimony is relevant and rehable under standards established in Kelly. The State concedes, and I agree, that the trial court erred in failing to conduct a Kelly hearing outside of the presence of the jury. The State maintains, however, that the failure to conduct the hearing is harmless under Tex. R.App.P. 44.2(b) because the expert witness explained the principles of blood spatter analysis and testified regarding his proper application of these principles to the crime scene. In other words, the witness established in the -presence of the jury that the expert testimony is relevant and reliable for purposes of Tex.R.Crim.Evid. 702 and Kelly. While the State conceded error with respect to the fourth point of error, its argument may not be fairly read as a concession of error with regard to the fifth point. Accordingly, I believe we must conduct an independent analysis of the latter issue.

¶5Rule 702, Kelly, Jordan, and Daubert

¶6Rule 702 of the Texas Rules of Criminal Evidence, which governs the admission of expert testimony, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

¶7Tex.R.Crim.Evid. 702.1

¶8In Kelly, the Court of Criminal Appeals established the threshold requirements for admissibility of expert testimony under Rule 702. See Kelly, 824 S.W.2d at 572-73. A trial court’s task under Rule 702 is to determine whether the proffered scientific expert testimony is “ ‘sufficiently reliable and relevant to help the jury in reaching accurate results.’ ” Jordan v. State, 928 S.W.2d 550, 553 (Tex.Crim.App.1996); Kelly, 824 S.W.2d at 572. In order to meet that reliability standard, the evidence must meet three criteria: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. Kelly, 824 S.W.2d at 573. Kelly listed several non-exclusive factors that *33could affect a trial court’s determination of reliability.2 Relying on Tex.R.CRIm.Evid. 104(a) and (c) and Rule 702, Kelly further required that prior to the receipt of expert testimony into evidence, the proponent must satisfy the trial court by clear and convincing evidence in a preliminary hearing outside the presence of the jury that the evidence meets all three criteria. Id. at 573. If the trial court is so persuaded, then the evidence should be admitted for the jury’s consideration, unless the trial court determines that the probative value of the evidence is outweighed by some factor identified in Rule 403. Id. The standard adopted in Kelly applies to all scientific evidence offered under Rule 702. Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim.App.1997).

¶9In Daubert v. Merrell Dow Phamaceuticals, Inc., 509 U.S. 579, 591-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993), the United States Supreme Court set forth a two-pronged reliability and relevance standard virtually identical to the Kelly standard. Hartman, 946 S.W.2d at 62; Jordan, 928 S.W.2d at 554. While Rule 702 involves the dual inquiry of relevance and reliability, the Supreme Court emphasized that the “overarching subject” of Rule 702 is the scientific validity of the evidence at issue. Jordan, 928 S.W.2d at 554-55, citing Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2797. The Supreme Court explained “[tjhis entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. The Texas Supreme Court followed suit in E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995), adopting the tests enunciated in Kelly and Daubert. Hartman, 946 S.W.2d at 62.

¶10The focus of the courts in Kelly, Daubert, and Robinsonwas on assessing the scientific reliability of the evidence at issue rather than its relevance. Jordan, 928 S.W.2d at 555. Because reliability depends upon whether the evidence has its basis in sound scientific methodology, this demands a certain technical showing. Id.Accordingly, it is upon the reliability inquiry that trial courts can weed out testimony pertaining to so-called “junk science.” Id.In sorting the untested or invalid theories from those that are grounded in “good science,” trial judges are called upon to serve as “gatekeepers.” Daubert, 509 U.S. at 595-99, 113 S.Ct. at 2798-99; see Jordan, 928 S.W.2d at 555.

¶11Bloodstain Pattern Analysis

¶12With no analysis of Sgt. Pippins’ testimony or of relevant case law from this jurisdiction or others, or of treatises and published materials on a remarkably well-established forensic science, the majority summarily questions the entire basis of bloodstain pattern analysis evidence and dismisses it out-of-hand, suggesting that it is neither reliable nor relevant. Since I rely, in part, on Sgt. Pippins’ testimony to establish the validity of bloodstain pattern analysis, and because his qualifications as an expert in this field are important to the reliability determination, I begin by addressing his qualifications. In 1991, he attended a basic bloodstain pattern analysis school in San Francisco, California, followed in that same year by an advanced bloodstain pattern analysis and crime scene reconstruction school in Orlando, *34Florida. He is a full member of the International Association of Bloodstain Pattern Analysts (IABPA). Sgt. Pippins reviews the IABPA’s quarterly newsletter as well as other pertinent literature, including books written by recognized authorities in the field. Further, as part of a 40-hour bloodstain pattern analysis course which Sgt. Pippins teaches to other police officers, he has written a manual on the subject. In addition to this case, he has qualified as an expert witness on bloodstain pattern analysis on two other occasions in the district courts of Ector County.3

¶13Validity of the Underlying Scientific Theory

¶14What is bloodstain pattern analysis? Sgt. Pippins defined it as the study of blood and motion after a violent incident of bloodshed. Because blood is a liquid, it acts in predictable fashion when force or pressure is exerted upon it. Through analysis of the patterns caused by cast off staining, blood transfer, impact spatter, including medium-velocity and high-velocity impact spatter, as well as splashed blood and projected blood, an expert may be able to reconstruct the crime scene, including the relative positions of the bodies during the course of the assault. Despite the majority’s skepticism, Sgt. Pippins’ definition comports with that given by a number of other experts and associations of experts in the field. According to the IAB-PA:

When liquid blood is acted upon by physical forces, bloodstains and bloodstain patterns may be deposited on various surfaces, including the clothing of the individuals present at the crime scene. These bloodstain patterns can yield valuable information concerning the events which led to their creation when examined by a qualified analyst. The information gained can then be used for the reconstruction of the incident and the evaluation of the statements of the witnesses and the crime participants.4

¶15Validity of the Technique Applying the Theory

¶16The notion that bloodstain pattern analysis may be used in precisely the fashion described by Sgt. Pippins and other experts in the field has been judicially recognized. In a recent American Law Report article discussing the admissibility of “blood splatter” evidence, the author provided the following description of blood splatter interpretation:

[I]ncludes the process of examining blood that has struck a surface, and applying knowledge regarding the characteristics of blood and the shapes or patterns made by its impact, in order to determine matters such as the direction, angle, and speed of its flight prior to impact, and, ultimately, to assist in reconstructing events occurring in connection with an alleged crime.

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Expert testimony regarding the analysis and interpretation of “blood splatters” examined during criminal investigations may be a valuable part of the evidence used by prosecutors, and at times defense attorneys, to reconstruct the events occurring at the time of the alleged crime. By considering facts such as the shape or pattern made by the blood upon impact, the location of the blood splatters, and the mathematical correlation between the length and width of the splatters, experts have been able to make a variety of determinations relating to the reconstruction of crimes by applying general principles of physics, chemistry, biology, and mathematics. Frequently, blood splatter interpretation *35has been used to establish the location of the victim or the attacker during a homicide. Blood splatter analysis has also provided evidence regarding facts such as the cause of death, the amount of force used against the victim, the number of blows struck, the assailant’s infliction of the blows, and the assailant’s presence during the attack.

¶17Danny R. Veilleux, J.D., Annotation, Admissibility, In Criminal Prosecution, Of Expert Opinion Evidence As To “Blood Splatter” Interpretation, 9 A.L.R. 5th 369, 379 & 381 (1993).

¶18Similarly, in Farris v. State, 670 P.2d 995, 997 (Okla.Crim.App.1983), cited with approval in State v. Rodgers, 119 Idaho 1047, 812 P.2d 1208, 1210 (1991), the Oklahoma Court of Criminal Appeals stated:

[Gjeometric Blood Stain Interpretation is a method used to reconstruct the scene of the crime. Blood stains are uniform in character and conform to the laws of inertia, centrifugal force and physics. Study of the blood pattern along with its size and shape helps determine the source of the blood and any movement that might have occurred after the bloodshed began, including subsequent violent attacks upon the victim.

¶19Finally, in State v. Moore, 458 N.W.2d 90, 97 (Minn.1990), the Minnesota Supreme Court quoted from a portion of the expert witness’s testimony explaining the blood splatter interpretation technique:

During bloodsplattering interpretation we look at the actual droplets of blood that have been shed on a crime scene. Blood has characteristics that abide by the law of physics when blood is shed, whether it is from a stabbing, bludgeon or gunshot wound. When a drop of blood is shed it undergoes certain patterns. If it is dropped straight up and down and lands on a surface, it will leave a perfectly round pattern. As the angle increases the blood splatter or droplets of blood as they strike something will become longer or narrower. There is a mathematical correlation between the length and the width of these blood splatters that can be measured. We can then determine what angle they came in at and by using a set of strings and thumbtacks and large protractor we are able to reconstruct the scenes of crimes many times and actually place people where they were at the time they were injured ... or shot.

¶20Consistent with Sgt. Pippins’ testimony, numerous cases hold that by identifying “medium-velocity,” “high-velocity,” or “impact” blood spatters, expert analysts may determine that given blood patterns resulted from the victim being struck with a particular amount of force, consistent with a beating, stabbing, or shooting. See “Blood Splatter” Evidence, 9 A.L.R. 5th at 387 n. 23. In addition to providing proof of the defendant’s proximity to the victim at the time blood was shed, expert testimony concerning blood spatter patterns on the defendant’s clothing may help the prosecution establish the defendant’s participation in the attack. “Blood Splatter” Evidence, 9 A.L.R. 5th at n. 24-26.

¶21Bloodstain pattern analysis is not a novel scientific technique; rather, it is a narrower application of techniques borrowed from the established fields of chemistry, physics, mathematics, and biology. Lewis v. State, 737 S.W.2d 857, 860 (Tex.App.— Houston [1st Dist.] 1987, pet. refd). See State v. Proctor, 94 Or.App. 720, 723, 767 P.2d 453, 455 (1989)(observing that only the method by which the blood spatter was collected is novel, all other aspects of the pathologist’s investigation are well known in the field of blood spatter analysis). It is a forensic science recognized by the Federal Bureau of Investigation, New Scotland Yard, and other law enforcement agencies throughout the United States. See Farris, 670 P.2d at 996. Most states, including Texas, consider this type of expert testimony as having an inherent understandability. See Rodgers, 812 P.2d at 1211; Lewis, 737 S.W.2d at 860; State v. Hall, 297 N.W.2d 80, 86 (Iowa 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 *36L.Ed.2d 359 (1981); Robinson v. State, 574 So.2d 910, 918-19 (Ala.Crim.App.1990); People v. Clark, 5 Cal.4th 950, 22 Cal. Rptr.2d 689, 857 P.2d 1099 (1993). Further, and contrary to the majority’s conclusion, bloodstain pattern analysis does not carry a misleading aura of scientific infallibility. See People v. Samayoa, 15 Cal.4th 795, 64 Cal.Rptr.2d 400, 938 P.2d 2, 38 (1997); Clark, 22 Cal.Rptr.2d 689, 857 P.2d at 1142. My review of the available case authority, literature, and other relevant materials reveals that there are recognized authorities in bloodstain pattern analysis as well as numerous publications on the subject. See e.g., ViRgil Thomas Bevel and Ross M. GARDNER, Bloodstain Pattern Analysis: With an Introduction to Crime Scene Reconstruction (1997); William G. Eckert and Stuart H. James, Interpretation of Bloodstain Evidence at Crime Scenes (Elsevier Series in Practical Aspects of Forensic and Criminal Investigations) (1989); Herbert Leon MacDonnell, Bloodstain Pattern Interpretation, (Laboratory of Forensic Science, Corning, NY: 1993); Herbert Leon MacDonnell, Flight Characteristics and Stain Patterns of Human Blood, (DOJ, Washington, D.C.: 1971).5 The authors of these books have testified as experts in bloodstain pattern analysis not only before Texas courts but courts throughout the United States on numerous occasions. See e.g., Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Ex parte Mowbray, 943 S.W.2d 461, 462-65 (Tex.Crim.App.1996); Horinek v. State, 977 S.W.2d 696, 702 (Tex.App.— Fort Worth 1998, pet. refd); Lewis, 737 S.W.2d at 860-61; Hall, 297 N.W.2d at 85; Romano v. State, 909 P.2d 92, 109-110 (Okla.Crim.App.1995); Farris, 670 P.2d at 997-98. Moreover, the field is taught through seminars and courses throughout North America, such as those attended by Sgt. Pippins. Courts from other jurisdictions considering the merits of bloodstain pattern analysis have found it to be reliable. See also Hogan v. State, 877 P.2d 1157 (Okla.Crim.App.1994). All of these facts indicate both that the scientific theories underlying bloodstain pattern analysis and the techniques applying the theory are valid.

¶22Judicial Notice

¶23Because the techniques involved in the analysis are based on the well-settled sciences of chemistry and physics, the reliability of the technique is an appropriate topic for judicial notice. See Moore, 458 N.W.2d at 97 n. 6; People v. Knox, 121 Ill.App.3d 579, 76 Ill.Dec. 942, 459 N.Ed.2d 1077, 1080 (1984). Thus, in passing on Appellant’s fifth point of error, I believe we should inquire into the reliability of bloodstain pattern analysis pursuant to the doctrine of judicial notice as authorized by Emerson v. State, 880 S.W.2d 759, 764 (Tex.Crim.App.1994). See Ochoa v. State, 994 S.W.2d 283, 284 n. 10 (Tex.App. — El Paso 1999, no pet.)(acknowledging intermediate appellate court’s ability to take judicial notice of scientific fact for purposes of determining reliability under Rule 702).

¶24We are authorized to take judicial notice of any scientific fact which “ ‘is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ ” Emerson, 880 S.W.2d at 764. The concept of judicial notice extends to scientific techniques and principles:

Once a scientific principle is sufficiently established, a court may take judicial notice of the validity of that principle. Similarly, a court may take judicial notice of the validity of the technique applying that principle. In either case the effect is the same: judicial notice relieves the offering party of the burden of producing evidence on these issues.

¶25Id. at 764.

¶26In conducting our inquiry into the reliability of the theory underlying the blood*37stain pattern analysis and the technique, we take judicial notice of both legislative facts and adjudicative facts. Id. at 764-65. Legislative facts include the facts stated in scientific articles outside of the record. Id.Adjudicative facts, on the other hand, are “ ‘facts about the particular event which gave rise to the lawsuit and, like all adjudicative facts ... [help] explain who did what, when, where, how, and with what motive and intent.’ ” Id. at 765.

¶27The majority questions whether, as stated by Sgt. Pippins in his testimony, bloodstain pattern analysis can be utilized to “determine the aftermath of a violent incident of bloodshed and to try to determine the location of individuals before, during and after bloodshed and to try to determine, perhaps, a sequence of events that occurred based upon the bloodstain evidence available at the scene.” (Majority Op., at 30). It further suggests that such testimony would lead the jury to draw conclusions based more upon speculation than scientific evaluation. When considered in light of the relevant scientific, legislative, and adjudicative facts, none of these observations is valid or supportable.

¶28Application of the Technique

¶29Since the majority assumes that bloodstain pattern analysis evidence is generally unreliable, it fails to address whether Sgt. Pippins applied the technique correctly on this occasion. The evidence shows that he did. Sgt. Pippins conducted his bloodstain pattern analysis directly at the crime scene where he was able to view the bloodstain patterns and the victim still within the crime scene. In drawing his conclusions, Sgt. Pippins additionally relied on photographs of the victim from the autopsy, Appellant, the victim’s vehicle, and the autopsy report. Sgt. Pippins testified extensively from the photographs and explained in detail the basis for his conclusions. Based upon this same testimony, I would further find that the trial court did not abuse its discretion in finding that the evidence would assist the trier of fact and is sufficiently tied to the facts of the case. See Jordan, 928 S.W.2d at 555. With the three Kelly reliability factors thus established, I turn now to a consideration of whether, despite its reliability and relevance, the probative value of the evidence was outweighed by some factor identified in Rule 403.

¶30Rule J/.03 Analysis

¶31The majority concludes that the bloodstain pattern analysis evidence was unhelpful and therefore inadmissible under Tex.R.CRIm.Evid. 403 because Sgt. Pippins was permitted to testify that there was no evidence that the victim acted as the aggressor during the fatal assault. First, Appellant never made this specific objection in the trial court and he certainly does not raise this issue on appeal. Therefore, it is waived. Tex.R.App.P. 33.1. Second, this opinion comprised only a portion of Sgt. Pippins’ testimony. The bulk of his testimony concerned an explanation of where the assault began, where it traveled, and the relative positions of the bodies during the assault, all of which was based on bloodstain pattern analysis. This portion of his testimony was clearly admissible and within the scope of his field of expertise. Therefore, even assuming that bloodstain pattern analysis does not lend itself to rendering an opinion as to whether one of the parties acted as an aggressor during the assault, that fact would not render Sgt. Pippins’ testimony inadmissible in its entirety. Finally, Sgt. Pippins mentioned on several occasions that no physical evidence, including the relative positions of the bodies during the assault and the absence of any wounds on Appellant, existed to show that the victim acted as the aggressor. In my view, these are proper inferences which may be drawn by an bloodstain pattern analysis expert. He readily admitted that he could not definitively state that the victim did not grab Appellant first or otherwise act as the aggressor at some point during the as*38sault. Consequently, I would find that the trial court did not abuse its discretion in refusing to exclude the testimony under Rule 403. For all of these reasons, I would overrule Point of Error Five.

¶32Harm Analysis

¶33Having determined that the trial court erred in fading to conduct a Kelly hearing outside the presence of the jury, we must conduct a harm analysis. Because this is not constitutional error, we apply Tex. R.App.P. 44.2(b) which requires us to disregard the error and affirm unless harm is affirmatively shown in the record. Villalobos v. State, 999 S.W.2d 132, 136 (Tex. App. — El Paso 1999, no pet.); Merritt v. State, 982 S.W.2d 634, 636 (Tex.App.— Houston [1st Dist.] 1998, pet. ref'd untimely filed). The effect of this is to place the burden on the defendant to show actual harm. Villalobos, 999 S.W.2d at 136.6

¶34Even though the court’s error of law improperly relieved the State of its burden to show that the evidence was admissible, sufficient evidence was presented to support the admission of the scientific evidence at trial. Thus, the evidence itself was properly before the jury, and the error of law did not affect a substantial right of the accused. Chisum v. State, 988 S.W.2d 244, 251 (Tex.App. — Texarkana 1998, pet. ref'd); Brawn v. State, 881 S.W.2d 582, 588 (Tex.App. — Corpus Christi 1994, no pet.). Because the error is harmless, I would overrule Point of Error Four.