KARIM ABDUL MUSTAFA (A/K/A JOSEPH N. BROWN, JR.), PETITIONER V. UNITED STATES OF AMERICA No. 86-143 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Military Appeals Brief for the United States in Opposition TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Argument Conclusion OPINIONS BELOW The opinion of the Court of Military Appeals (Pet. App. 1a-8a) is reported at 22 M.J. 165. The opinion of the Army Court of Military Review (Pet. App. 9a-10a) is unreported. JURISDICTION The judgment of the Court of Military Appeals was entered on June 2, 1986. The petition for a writ of certiorari was filed on July 31, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. (Supp. II) 1259(3). QUESTION PRESENTED Whether expert testimony regarding the characteristics of blood stains found at the crime scene was properly admitted into evidence. STATEMENT Petitioner, a member of the United States Army, was tried by a general court-martial in Wuerzburg, Germany. He was convicted of premeditated murder, felony murder, rape, forcible sodomy, aggravated assault, and unlawful entry, in violation of Articles 118, 120, 125, 128, and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 918, 920, 925, 928, and 934, and was sentenced to death. The convening authority reviewed the case and approved the sentence. The Army Court of Military Review dismissed petitioner's felony-murder conviction, but affirmed the remaining findings of guilty. In place of petitioner's capital sentence, the court substituted a dishonorable discharge, confinement for life, and total forfeitures of all pay and allowances (Pet. App. 9a-10a). The Court of Military Appeals affirmed (Pet. App. 1a-8a). 1. On the morning of February 13, 1982, the nude body of an 18-year-old German female was discovered in a stairwell in an American military housing area of Aschaffenburg, Germany (Tr. 220-221, 411-412; GX 48). The victim had been sexually assualted and repeatedly stabbed (Tr. 271-272, 276, 283). Petitioner was arrested three days later by special agents of the Army Criminal Investigation Division (CID). Petitioner admitted raping and sodomizing the victim on the night in question, but he denied stabbing her; he implicated his companion, Private Roy Gore, in the killing (Tr. 327, 331, 339; GX 34). /1/ 2. a. At trial CID Special Agent Herndon was called as a witness by the Government to testify concerning his observations of bloodstains that were discovered at the crime scene (Tr. 233-256). /2/ Testimony about Agent Herndon's qualifications and specialized training in the area of "blood spatter" analysis were presented to the trial judge. Agent Herndon testified that he attended a one-week seminar on the subject of blood spatter analysis (Tr. 234, 236). The course involved a number of experiments that used blood to study the different bloodstain patterns resulting from variations in the speed and angle of impact of blood striking a surface (Tr. 234-235, 239). Agent Herndon also testified that he had received training on the subject while attending the CID school and that he also relied on his practical experience as an investigator (Tr. 235). Agent Herndon also related a prior instance in which he used the same type of analysis successfully to solve a robbery (Tr. 243-244). Thereafter, he was subjected to extensive cross-examination concerning his qualifications as an expert (Tr. 236-242). /3/ Petitioner objected only to Agent Herndon's "qualification * * * as an expert" (Tr. 242), not to the subject matter of his testimony, and Agent Herndon was permitted to testify as an expert (Tr. 244-245). /4/ b. Using a chart of the crime scene (GX 30), Agent Herndon observed that the victim was most likely initially accosted and injured on a street near the place where her body was found. He based that opinion on bloodstains and disturbances to a coal-like material used to deice the roadway. Based on a trail of blood leading to the nearby stairwell where the body was found and on bloodstains found on the steps and walls of the stairwell, Agent Herndon concluded that the victim was led to the stairwell and assaulted on the way down the stairs (Tr. 246-247, 253-254). /5/ Referring to a photograph showing the victim lying at the bottom of the stairwell (GX 10), Agent Herndon testified that the victim was further injured at the bottom of the stairwell, but was still able to move about. According to Agent Herndon, the victim was stabbed repeatedly while she lay in the position in which the body was discovered (Tr. 249-254). Based on the three large pools of blood at the bottom of the stairs, Agent Herndon concluded that the victim's body had been no more than two feet above the bottom step at the time the blood pools were formed (Tr. 250). A bloody palm print found on the underside of the nearby handrail led Agent Herndon to point out that "somebody" had reached up for the railing (Tr. 252). Agent Herndon also identified several "cast-off" type bloodstains on the stairwell wall (Tr. 251). He explained that the stains were caused by blood being released by a bloodstained object as it was raised (ibid). The bloodstains on the wall behind the victim, coupled with the injuries to her back, led Agent Herndon to conclude that the victim had been repeatedly stabbed while she lay in the position in which she was found (Tr. 251, 253-254). Agent Herndon pointed out several palm prints and a footprint on the victim's body and testified that impressions of what appeared to be tennis shoe soles were found in the pool of blood where the victim lay (Tr. 252-253). Petitioner's cross-examination of Agent Herndon was brief and did not address the substance of Agent Herndon's testimony (Tr. 255-256). Notably, defense counsel did not object when Agent Herndon was asked to state his theory of how the murder occurred (Tr. 253-254). The court members had no questions of Agent Herndon concerning his observations and conclusions (Tr. 256). /6/ c. The prosecution introduced a variety of other types of evidence at trial that accorded with Agent Herndon's description of the murder. /7/ Finally, petitioner's confession to the rape and sodomy of the victim and his other statements, /8/ physical evidence, and the testimony of several witnesses /9/ directly linked petitioner to the murder. Petitioner did not offer a defense at trial to the charges of rape and sodomy; his defense at trial to the murder charge was that Gore killed the victim (Tr. 489-491, 496, 501-502). ARGUMENT Petitioner claims that the trial court erred in admitting expert testimony regarding the blood stains found at the murder scene, because that testimony did not satisfy the requirements for admission under the test adopted in United States v. Frye, 293 F. 1013 (D.C. Cir. 1923). The decision below is correct, and it does not conflict with any decision of this Court or of any other court of appeals. Accordingly, review by this Court is not warranted. 1. It is well established that a "trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Salem v. United States, 370 U.S. 31, 35 (1962); accord Hamling v. United States, 418 U.S. 87, 108 (1974); see also United States v. Abel, 469 U.S. 45, 54 (1984). Military Rule of Evidence 702 provides that "(i)f 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." Agent Herndon's testimony was clearly admissible under any natural reading of the Rule. His knowledge was of a "specialized" nature, it was of "assist(ance)" to the trier of fact, and he was "qualified as an expert" by the trial court. The Court of Military Appeals' conclusion that the admission of Agent Herndon's testimony was within the trial judge's discretion (Pet. App. 6a) is fully consistent with the terms of the rule. There is also no realistic possibility that Agent Herndon's testimony could have prejudiced petitioner in the slightest. Agent Herndon's testimony was a minor part of the trial. His testimony covered only ten pages (Tr. 245-254) of a trial that lasted several days, and the prosecutor did not refer to his testimony during the remainder of the trial or in his closing argument (see Tr. 502-519). /10/ Agent Herndon also did not testify that petitioner committed the crime; rather, he simply described the likely sequence of events on the night of the murder. There was no dispute at trial on this issue, as defense counsel admitted during her closing argument (Tr. 487). The photographs of the victim and the murder scene (GXs 10, 14-16, 18-19, 22-23; see also GX 30), the testimony of the forensic pathologist who performed the autopsy on the victim and whose trial testimony the defense did not contest (Tr. 269-279, 282-283), /11/ petitioner's own sketch of the crime scene (GX 35), and his detailed confession to the sex offenses (GX 34), established beyond doubt that the victim was initially accosted on the street and was then forced down the stairwell, where she was killed. In light of petitioner's confession (GX 34) and his sketch of the crime scene (GX 35), the only issue at trial was whether petitioner or Private Gore actually murdered the victim. The most probative evidence on that issue was the testimony of Private Robinson, who twice overheard petitioner say "I think I killed her" and who also saw large blood stains on petitioner's underwear and spots of blood on petitioner's face (Tr. 300-301, 303). Additional evidence on that issue included an incriminating statement made by petitioner within earshot of Specialist Baker, as well as other physical evidence unrelated to Agent Herndon's testimony. There is, in sum, no realistic possibility that Agent Herndon's testimony could have influenced the verdict against petitioner. 2. Petitioner argues, however, that review by this Court is necessary to resolve a conflict among the courts of appeals on the continued validity of the Frye standard for the admission of novel scientific testimony. In Frye, the court held that polygraph evidence was inadmissible. The court stated that "(t)he courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery," but it added that "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." 293 F. at 1014. From that passage arose the requirement that novel scientific evidence be generally accepted in its particular field before it can be admitted into evidence. While that rule has been applied somewhat differently in different circuits, petitioner's claim of conflict does not warrant review by this Court, for several reasons. First, there is no conflict among the circuits on the question whether expert testimony may be admitted on blood-flight characteristics. The only court of appeals decision cited by petitioner that considered this type of evidence did not address the question whether such expert testimony was admissible under the federal rules. The court held only that the admission of such testimony violates no constitutional right of a defendant. Hall v. Iowa, 705 F.2d 283, 287 (8th Cir.), cert. denied, 464 U.S. 934 (1983). Moreover, even if the question presented by petitioner would warrant review by this Court in a proper case, /12/ this is not an appropriate vehicle to resolve that question. The premise of petitioner's argument is that the agent's testimony involved novel scientific evidence, but that premise is wrong. As the court below explained (Pet. App. 5a-6a), blood-flight analysis is "grounded in established laws of physics and common sense" and "is certainly capable of quantification." In fact, petitioner concedes (Pet. 8) that the principle underlying blood-flight testimony is scientifically valid. That concession is dispositive in this case, because the underlying theory of blood-flight analysis is the only scientific aspect of Agent Herndon's testimony. Although petitioner claims (Pet. 8-12) that the process of reconstructing a crime scene from blood spatters has not been scientifically verified, Agent Herndon's description of the sequence of events involved nothing more than the kind of ordinary deductions that are performed by police on a daily basis. His testimony itself makes that clear. Agent Herndon's testimony (Tr. 245-254) consisted mostly of ordinary observations, combined with the terminology he learned during his training. It required no arcane scientific expertise for Agent Herndon to conclude that the trail of blood that began near the street and ended where the victim's body was discovered indicated that the victim had initially been accosted and wounded near the street and then led to the stairwell (Tr. 246-247, 253). Likewise, his conclusion that somebody reached for the railing in the stairwell where a bloody palm print was found (Tr. 252) is hardly speculative, and his opinion that a further struggle occurred on the way down the stairs is the only logical explanation for the blood on the steps and walls of the stairwell (Tr. 248). That testimony, which was based on a visual observation of the scene, was not "of such a complex nature as to require a more detailed scientific foundation" or "a foundation in the science of physics" (People v. Knox, 121 Ill. App. 3d 579, 584, 459 N.E.2d 1077, 1081 (1984)), because "a layman or a member of the jury, after hearing and seeing a description of the blood stains, using common knowledge and experience, could have arrived at the same conclusion (as the witness)" (Jordan v. State, 464 So. 2d 475, 486 (Miss. 1985), vacated and remanded on other grounds, No. 84-1783 (May 5, 1986)). See also State v. Hall, 297 N.W.2d 80, 85-86 (Iowa 1980), cert. denied, 450 U.S. 927 (1981) (applying a modified Frye standard, the court held that an expert could testify as to events of the crime based on blood splatter evidence, because of the uncomplicated subject matter of his testimony). /13/ To the extent that petitioner faults the trial judge for not adequately determining, in advance of Agent Herndon's testimony, that his opinion was "scientifically" valid, petitioner has waived that claim. Petitioner was given the opportunity to question Agent Herndon as to whether the agent's proposed testimony had been scientifically verified (Tr. 234-242), but he did not do so. Petitioner did not object to the admission of Agent Herndon's testimony on that ground; he claimed only that the agent was not qualified to testify as an expert (Tr. 242). Petitioner therefore cannot fault the trial judge for admitting Agent Herndon's testimony without first determining whether the agent's proposed explanation of the sequence of events at the murder scene had a scientific foundation. CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General NORMAN G. COOPER Col., JAGC, USA GARY F. ROBERSON Lt. Col., JAGC, USA SAMUEL J. ROB Capt., JAGC, USA PATRICK A. HEWITT Capt., JAGC, USA KAREN L. TAYLOR Capt., JAGC, USA Appellate Government Counsel Government Appellate Division United States Army Legal Services Agency OCTOBER 1986 /1/ According to petitioner, Gore held a knife to the victim's chest when they initially accosted her (GX 34). During the rape, Gore accidently cut petitioner on the leg (ibid). Petitioner responded by pushing Gore (who was sitting on the victim's chest at the time), at which time petitioner heard the victim yell something that sounded like "Erp" (ibid.). Petitioner surmised that the victim may have been stabbed at that time (ibid.). He did not explain, however, how the victim received the other fifteen stab wounds that were found in her body. /2/ In addition to his testimony on the flight patterns of blood, Agent Herndon testified concerning his participation in petitioner's apprehension and subsequent confession (Tr. 326-359; GX 34). Agent Herndon also identified for the court a sketch of the crime scene prepared by petitioner (Tr. 330-331; GX 35). /3/ On cross-examination Agent Herndon acknowledged that he held no educational degrees relating to the subject of bloodstain analysis and had not written on the topic (Tr. 236-237). When asked if he considered himself an expert in the field, Agent Herndon replied, "That's a hard question to answer" (Tr. 241). /4/ The military judge informed the court members that he would allow the witness to testify "with regard to his experience and training in this area," and that it was for the members "to evaluate and assess the weight to be given his testimony based on his experience and training" (Tr. 245). /5/ Agent Herndon concluded from the large number of small diameter bloodstains on two steps and the adjacent wall that the victim had been further injured at that point (Tr. 248). Agent Herndon believed that the bloodstains had been produced by a "medium-velocity" impact as opposed to a "high-velocity" impact, such as a gunshot wound, which results in a spray of blood (Tr. 249). /6/ Mil. R. Evid. 614 allows court-martial members to question witnesses subject to objection by the respective parties and a ruling by the military judge on the propriety of the questions. /7/ Dr. Schulz, a forensic pathologist, testified that the stab wounds to the victim's back were inflicted while she lay in the position that her body was found (Tr. 272-274). Dr. Schulz further concluded that the victim had been undressed prior to the infliction of the fatal wounds (because there were no cuts in her clothing) and was still alive when she was stabbed in the back (Tr. 270-272). Dr. Schulz stated that the stab wound to the heart would not have been instantly fatal and that the victim would still have been capable of movement (Tr. 278, 281). Examination of the wounds revealed that the wounds were inflicted from different angles, sometimes by a downward stabbing motion, sometimes by an upward motion (Tr. 281). Dr. Schulz concluded that the blood trail leading from the street to the stairwell resulted from wounds to the victim's hands inflicted during the victim's efforts to defend herself (Tr. 276-277). /8/ Petitioner's confession to the rape and sodomy of the victim, his sketch of the crime scene, and his statement that Gore used a knife during the commission of the offenses, mirrored, in large part, the government's theory of the case (GXs 34, 35). After he was arrested and questioned about the crime, petitioner told a fellow servicemember (Tr. 407): "Well, I guess you heard what has happened to me, but somehow or another I'll get out of it. * * * For raping a person you get life. For killing a person you'll get death. I guess I'll end up getting both life and death." /9/ Private Tyrone Robinson, a roommate of Gore's, testified that on the night of the murder, petitioner came into his barracks room and said: "Gore, that bitch is crazy. She tried to kill me. I think I killed her" (Tr. 300). Robinson observed that petitioner had "big spots" of blood on his underwear and spots of dried blood on his face (Tr. 300-301, 303). Petitioner asked Gore for some bandaids and again said, "I think I killed her" (Tr. 300-301). Shortly thereafter, Robinson saw petitioner leave his room carrying a pair of tennis shoes and a bottle of bleach and run down the stairs (a laundry room was located in the barracks basement) (Tr. 301-302). Specialist Anthony Baker, another roommate of Gore's, testified that on the night in question, petitioner came into the room and spoke to Gore (Tr. 321). Baker overheard petitioner tell Gore, "She cut me and I had to -- " (ibid.). Petitioner than began to whisper, and Baker was unable to hear the rest of the conversation (ibid.). Baker also saw dark spots on petitioner's underwear (Tr. 322). /10/ Defense counsel referred to Agent Herndon's testimony in her closing argument (Tr. 488). She summarily dismissed Agent Herndon's testimony about the blood stains, noting that it was not at all helpful in determining who actually committed the murder (ibid.). /11/ See Tr. 489 (referring to Dr. Schulz: "The defense does not contest his evidence. He is obviously a very experienced man."). /12/ As we explained in our brief in opposition (at 4-9) in Ferri v. United States, cert. denied, No. 85-6536 (June 10, 1986) (a copy of which has been provided to petitioner's counsel), the different standards adopted by the courts of appeals in deciding whether to accept novel scientific evidence have not led to material differences in the outcome of the decided cases. The courts of appeals have all emphasized that the trial judge must be afforded discretion on this matter, and that a showing of reliability and a weighing of the risk of confusion and prejudice is necessary in each case. In addition, there is a substantial overlap in the approaches of the various courts of appeals to the issue whether expert evidence must satisfy the Frye test before being admitted. /13/ Other courts that recognize the continued validity of Frye or apply a modified Frye standard have refused to exclude similar evidence that involves only a visual comparison, rather than some intermediate mechanical steps, and is based on accepted scientific principles. See, e.g., Commonwealth v. Cifizzari, 397 Mass. 560, 492 N.E.2d 357, 363-364 (1986) (bite-mark evidence) (collecting cases); State v. Bullard, 312 N.C. 129, 322 S.E.2d 370, 379-384 (1984) (footprint analysis); cf. People v. Columbo, 118 Ill. App. 3d 882, 455 N.E.2d 733, 789-790 (1983), cert. denied, 467 U.S. 1208 (1984) (handprint impression).