From the Circuit Court of Cass County; Criminal Appeal From Felony Conviction - Murder Second Degree; Judge William M. Kimberlin; Reversed and Remanded
Motion for Rehearing or to Transfer to Court En Banc Denied April 10, 1972.
The opinion of the court was delivered by: Donnelly
Appellant, Jerry Lynn Stout, was convicted of murder in the second degree by a jury in the Circuit Court of Cass County, Missouri, and his punishment was assessed at a term of thirty-five years imprisonment. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.
In the early morning of July 17, 1968, an intruder entered the apartment of Gary Frieders and his wife, Judy, and beat them with a blunt instrument as they lay sleeping. Judy Frieders died on September 16, 1968, of injuries received from the beating.
During the investigation of the crime, Professor George Leddicotte, an analytical chemist, used the nuclear reactor facility at the University of Missouri at Columbia to compare, by the process of neutron activation analysis, the blood- stained floor mat of appellant's car, appellant's blood-stained tee shirt, the Frieders' blood-stained sheet, and a whole blood sample of Judy Frieders. As a result of his analysis, he testified:
"A That is right. I saw, with the greatest degree of scientific certainty, that there was a match of the materials; that is, *** [the blood on the tee shirt and the sheet] come from a common article.
"Q Did you form an opinion to the highest scientific certainty as to whether the spot you found on the floor mat had a common source of origin with that that you found --
Q. And what is that opinion?
A That *** [the blood on the floor mat and sheet] were of common origin.
Q Did you compare *** [the whole blood] with your tests on the sheet, and your tests of the tee shirt?
Q And I will ask you what the results of that test were?
A I considered, with my scientific knowledge, that they are the same.
Q So, the blood that you found on *** [the tee shirt], is the blood of Judy Frieders?
The determinative question on this appeal is whether this testimony, elicited from Leddicotte, and presented to the jury, was legally admissible.
In Frye v. United States, 293 F. 1013, 1014 (1923), the Court of Appeals of the District of Columbia said: "*** Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, 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."
In State v. Stevens, Mo. Sup., 467 S.W.2d 10, 22-24 (1971), this Court discussed the process of neutron activation analysis and affirmed a conviction involving its use to identify samples of hair. The question presented in this case is whether the application of neutron activation analysis to blood samples meets the Frye test.
The parties agree that blood samples present a unique challenge to identification by neutron activation analysis primarily because of the large amounts of sodium and chlorine in blood. Out of the hearing of the jury, Professor Leddicotte testified as to ...