# People v. Coleman > California Supreme Court · September 8, 1988 · 46 Cal. 3d 749 URL: https://www.frixlaw.com/law-library/cases/9564938 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. RUSSELL COLEMAN, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** September 8, 1988 - **Citations:** 46 Cal. 3d 749; 251 Cal. Rptr. 83; 759 P.2d 1260; 1988 Cal. LEXIS 209 - **Precedential status:** Published - **Opinion:** Dissent by Broussard - **Judges:** Lucas, Mosk, Broussard - **Cited by:** 118 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9564938 ## Opinion text BROUSSARD, J. I dissent. The trial court erred in admitting the evidence that defendant’s thumbprint was bloody. The court should have excluded the evidence for lack of reliability. The majority recognize the error. (Ante, at p. 775.) The evidence in this case to identify defendant as the perpetrator of the crime is so weak that the error must be held prejudicial. The evidence to connect defendant to the crime was the presence of his thumbprint and palm print in the bungalow, his false statement to the homicide inspector denying that he had been in the bungalow, and the sperm tests. In finding the error nonprejudicial, the majority omit a crucial item of the evidence, place undue weight on the sperm tests, and erroneously claim that the prosecution significantly undermined the alibi evidence. At the outset, it should be pointed out that the erroneously admitted evidence was not cumulative of other evidence. The inspector did not testify that the discoloration on the thumbprint appeared to be caused by blood. The record does not show whether his reason for testing for blood was merely that his testing equipment was handy or whether he had tentatively concluded the discoloration was blood before testing. In addition, the fact that the thumbprint was bloody was given substantial attention at the trial. The inspector had written the words “bloody print” on the back of the chair, and the back of the chair was received in evidence. In some cases, fingerprints may provide devastating evidence of guilt. But this is not one of them. The police officers found the victim’s prints, a thumbprint and a palm print of defendant, several smudged prints, and an unidentified fingerprint. The unidentified print was found on the same chair as the thumbprint. The unidentified print is not mentioned in the majority opinion. When we exclude from consideration the evidence that the thumb *790 print was bloody, the print evidence does not suggest that there is any greater likelihood that defendant was the killer than the donor of the unidentified print. Further, the crime involved substantial movement over a substantial period of time, so that one would expect that the killer would have left more prints unless he wore gloves or unless there were very few surfaces in the bungalow which would retain prints. The fact that only three prints for two people were found indicates a substantial possibility that others entered the bungalow as well as the victim, defendant, and the donor of the unidentified print. Defendant’s lie, although a circumstance to be considered, is not entitled to much weight. At the time defendant’s thumbprint was matched to the thumbprint on the chair, about four months after the homicide, defendant was in jail on other charges. A police inspector brought defendant from his cell to the offices of the homicide department. After being given Miranda admonitions (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]), he agreed to talk to the inspector. Defendant said he did not know Shirley Hill, the victim. He knew where Mission High School and Dolores Park were but had never been on the football field or in the bungalows. He categorically denied the thumbprint was his. When told he was thought to be responsible for Shirley Hill’s death and would be booked, he terminated the interview. Obviously, his statement that he had never been in the bungalow was false; defendant lied. However, the problem is not merely whether he lied. The question is whether his lie provides the basis for a strong or substantial inference that he committed the murder. While no doubt defendant would lie if he were guilty, we must also consider whether defendant would tell the truth if he were innocent or whether he would lie to avoid involvement in a homicide matter. On the record before us, I have little confidence in a conclusion that defendant, if innocent, would not lie to avoid involvement in a homicide matter and am unable to give much weight to his lie. The proper print evidence and the lie are not strong evidence of guilt; indeed there is some question whether they would be sufficient to sustain a conviction in view of the unidentified fingerprint and the possibility that someone who did not leave prints was the murderer. It seems clear that any conclusion that the error was nonprejudicial must be based on a conclusion that the sperm evidence was highly persuasive of guilt. However, it was not. Even viewing that evidence most favorably to the prosecution I have difficulty concluding that it is entitled to great weight. And viewing it on the basis of the whole record, I doubt whether it is entitled to any substantial weight. *791 Dr. Blake testified that he received a vaginal wash (a solution of loose cellular matter and spermatozoa in saline solution) obtained from decedent’s body, and he subjected it to phosphoglucomutase analysis (PGM) and a test for blood antigens. On the PGM test, he concluded that the vaginal wash contained type 2. Since the decedent was type 1/1, the donor of the sperm had to be either a type 2/1 or 2/2. Dr. Blake failed to find any antigens, so he concluded that decedent and the donor were nonsecretors, people who do not secrete their blood antigens into other body fluids such as saliva, urine, semen and vaginal secretions. Tests have showed that only 40 percent of the population are PGM type 2, and only 20 percent are nonsecretors. There is no preexisting relationship between PGM types and nonsecretors, and based on this fact the frequencies may be multiplied so that only 8 percent of the male population could have donated the sperm. Tests of defendant showed he was within the 8 percent. Dr. Blake emphasized that these tests can never demonstrate that a particular sample came from a particular person, although they may show that it absolutely did not come from a particular person. The absence of antigens in the instant case excluded the victim’s former husband as a suspect. California and a majority of other states have long admitted blood-typing evidence. (See Evid. Code, §§ 891-897; People v. Poggi (1988) 45 Cal.3d 306, 324 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ]; People v. Brown (1985) 40 Cal.3d 512, 536, fn. 6 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ]; People v. Lindsey (1978) 84 Cal.App.3d 851, 863-866 [ 149 Cal.Rptr. 47 , 2 A.L.R.4th 485 ]; People v. Vallez (1978) 80 Cal.App.3d 46, 56 [ 143 Cal.Rptr. 914 ].) While such testing in general has been approved, controversy has arisen where the sample is not secured in the laboratory but obtained from a dried stain exposed to drying, aging, temperature, and contamination (particularly with bacteria or other organic substances), and where the composition of the test sample is unknown. (People v. Brown, supra, 40 Cal.3d 512, 530 .) Recently, the Court of Appeal after an eight-day trial court hearing upheld the admissibility of electrophoretic typing of dried bloodstain evidence. (People v. Reilly (1987) 196 Cal.App.3d 1127, 1135 [ 242 Cal.Rptr. 496 ]; but cf. People v. Young (1986) 425 Mich. 470 [ 391 N.W.2d 270, 284 ].) In determining prejudice, the issue in the present case is not admissibility but the weight to give to the evidence. Nevertheless, cases dealing with the issue of admissibility point out the difficulty in determining the proper weight to be given to the evidence. As pointed out in People v. Kelly (1976) 17 Cal.3d 24, 30-31 [ 130 Cal.Rptr. 144 , 549 P.2d 1240 ], scientific evidence may in some cases assume a quality of infallibility, and care must be espec *792 ially exerdsed when the sdentific technique is used to identify the perpetrator of crime. Under the Kelly/Frye rule, the proponent of the scientific evidence must establish (1) the generally accepted reliability of the method usually by expert testimony, (2) that the witness furnishing such testimony is properly qualified as an expert to give an opinion on the subject, and (3) that correct scientific procedures were used in the particular case. (People v. Kelly, supra, 17 Cal.3d 24, 30-32 ; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013, 1014 [ 54 App.D.C. 46 , 34 A.L.R. 145 ]; People v. Brown, supra, 40 Cal.3d 512, 530 .) Although the defense requested a hearing pursuant to Evidence Code section 402, the prosecution did not attempt to provide a foundation for the evidence or meet the Kelly/Frye rule. 1 Thus there was no showing of the generally accepted reliability of the method used. Neither was there a showing that correct scientific procedures were used. Dr. Blake testified that he received a vaginal wash from Dr. Stephens of the coroner’s office, and that a vaginal wash is obtained by inserting a saline solution into the cavity and then withdrawing it into a syringe. However, Dr. Sisson testified that he obtained the sample by using a swab. There is nothing to indicate that the latter method was correct. The primary objection to giving substantial weight to the test is the unreliability of the results secured by the test. In People v. Reilly, supra, 196 Cal.App.3d 1127, 1141-1146 , which involved in part electrophoretic testing for PGM, the witnesses appear to have recognized that a small error rate affects the reliability of results. 2 It does not appear whether Dr. Blake used electrophoretic testing for PGM, whether he used some other method, or whether such other method would also involve a recognized rate of error. If there was a rate of error, it becomes very difficult to evaluate the evidence that the donor of the semen was donated by a person in the 40 percent of the population having PGM 2. In other words, a slight margin of error which would fail to exclude the other 60 percent means that the evidence that the donor was limited to the 40 percent group cannot be given much weight. While the possibilities that the swab method of obtaining the sample is improper and that there is a recognized rate of error in the PGM test may *793 be matters of speculation, Dr. Blake’s testimony itself limits the value of the testimony as to the ABO antigens. His result, it will be recalled, was that there were no antigens found, a negative result. The absence of antigens, he concluded, established that the victim and defendant were nonsecretors, who comprise only 20 percent of the population. Dr. Blake recognized that the absence of antigens could also be caused by the fact that the donor was a low-level secretor or by the destruction of the antigens. He stated that the possibility that the donor was a low-level secretor was not a “consideration” in this case because the sample was sufficiently concentrated for even a low-level secretor to be detected. In contrast, however, to his total rejection of the possibility that the donor was a low-level secretor, he never ruled out the possibility that the antigens were destroyed. Indeed, the plain implication of his testimony was that there was a possibility that there were antigens present but they were destroyed, although he doubted this occurred. He started out by stating that the possibility that antigens were destroyed was difficult to assess. He acknowledged that correct procedures in securing the sample, including its freezing, could destroy them. He testified that antigens in general were very stable, that if destruction had occurred in this case 99.9 percent of the antigen material would have had to be destroyed, and that if destruction had taken place, he would “expect” to see acid phosphotase and PGM destroyed or damaged. The latter results were clear-cut. He concluded that his “assessment” was that it was “likely” and “reasonable” that destruction did not occur and “unlikely” that destruction occurred. His lack of complete certainty as to whether destruction occurred and his reasoning in reaching his assessment preclude any substantial weight being given to the antigen evidence. The test results obtained by him were apparently relatively rare results under his own testimony. Only 20 percent of the population are nonsecretors so it seems to follow that tests on couples, if accurate, would result in a finding of no antigens in only 4 percent of the cases. (.20 X .20 = .04.) A direct correlation between clear-cut acid phosphotase and PGM results and lack of destruction of antigens should result in finding antigens 96 percent of the time. If his tests or scientific literature indicated that antigens were present in as many as 90 percent of the cases where acid phosphotase and PGM were clear—a high correlation—his assessment still would not be entitled to any weight but would indicate destruction was more likely than accuracy. His statement that he would “expect” a correlation seems far short of a direct correlation. Further, his *794 use of “likely,” “reasonable,” and “unlikely” concede that his prior tests and prior information did not show a direct correlation. 3 Absent a direct correlation, or at least a precise correlation, any attempt to give weight to the failure to find antigens involves pure speculation. Thus any use of the 20 percent figure to reduce the 40 percent figure to 8 percent would be improper. The 40 percent figure, which may also be suspect, does not by itself furnish substantial evidence of guilt, and when combined with the print evidence and the lie does not provide a strong case of guilt. Not only was the prosecution’s guilt case weak, but there was substantial alibi evidence. The victim attended classes at a school some distance from City College of San Francisco from noon to 3 p.m., and around 3:30 p.m. a friend saw her at a shopping center. The scene of the crime is a few blocks from the bus route she was expected to take to return home after school. Defendant testified that he was at City College of San Francisco until 3:30 p.m. on the date of the murder, that he met Pastor McAllister and that they went to the home he shared with his former wife. His wife and her two children were home and Pastor McAllister stayed until early evening, five or six o’clock. Pastor McAllister, who was pastor at defendant’s wife’s church, testified that he met defendant around two or three o’clock in Cloud Hall after he attended Mr. Lindsey’s math class. They went by bus to defendant’s house which required between 30 minutes and an hour. He stayed a couple of hours, and defendant was there when he left. On cross-examination Pastor McAllister said that to the best of his recollection the meeting occurred on September 5, which was the first day of classes, but it could have occurred during the first week of classes. Defendant’s former wife confirmed Pastor McAllister’s visit and said defendant did not leave the house until the following morning. The prosecution in rebuttal showed that Pastor McAllister attended Mr. Lindsey’s class on the first day of class but defendant did not attend on that day or the rest of the week. Mr. Lindsey had marked “excused” on the first day but not the others. The “excused” entry meant that at some time after the class either the same day or later defendant had attempted to excuse his absence. Both Pastor McAllister and defendant dropped the class the following week in favor of another class. Defendant was not charged with the murder until four months after it occurred, and it does not appear when Pastor McAllister learned of the date of the crime or whether he recognized the coincidence of dates and volun *795 teered his testimony or the defense contacted him. Given the passage of at least four months, his failure to be absolutely certain of the date is understandable. So far as appears, the most likely time that decedent met her murderer, assuming Pastor McAllister’s best recollection was correct, was during the period when defendant was with him. Since defendant missed the math class for the whole week, the prosecution evidence on rebuttal does not impeach the pastor’s testimony. Viewing the whole record of the guilt trial, this has to be one of the weakest cases to identify defendant as the perpetrator of the crime that I have seen. Further, there is substantial unimpeached alibi evidence. The evidence that defendant’s thumbprint was bloody was erroneously admitted, as the majority recognize. That error gave weight to defendant’s thumbprint as establishing defendant as the perpetrator of the crime, and it is reasonably probable that a result more favorable to him would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].) Accordingly the judgment should be reversed. Appellant’s petition for a rehearing was denied November 3, 1988, and on November 2, 1988, the opinion was modified to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted. The majority conclude that because defendant did not make the proper objection to admission of the evidence, he may not challenge it on appeal for lack of foundation. The failure to object does not preclude our analyzing the evidence for probative value in determining whether another error was prejudicial. Apparently erroneous results are not uncommon under the evidence in Reilly . However, the scientists and technicians have methods to detect the erroneous results, and this may serve to reduce the rate of error. The record does not disclose whether Dr. Blake’s view (that, if antigens were destroyed, acid phosphotase and PGM would be expected to be destroyed or damaged) is based on his experience or scientific tests. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564938. Public record. Not legal advice.