PEOPLE v. WESLEY, 103 Mich. App. 240

Per Curiam. Defendant was convicted as charged of felony murder, MCL 750.316; MSA 28.548, and kidnapping, MCL 750.349; MSA 28.581 by a jury. He was sentenced to life in prison for felony murder and received no sentence for the kidnapping conviction. The defendant appeals as of right. This prosecution arose from an incident in a bar parking lot in Flint. Two men approached each side of a car in which two women sat with the car windows rolled down. The men grabbed the women through the windows. One woman escaped and ran for help.

The other was driven five blocks from the bar by the two men, a struggle ensued, a shot was fired, and the victim was found dead. Defendant asserts several claims of error which he contends require reversal. We do not agree. The trial court determined at the defendant’s Walker hearing that the statement the defendant gave implicating himself was voluntary.

Upon an examination of the whole record, we do not find that the court’s determination was clearly erroneous and so will "give deference to the trial court’s findings, especially where demeanor of the witnesses [here, two police officers and the defendant] is important, as where credibility is a major factor”. People v Terlisner, 96 Mich App 423, 431; 292 NW2d 223 (1980), People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969). The corpus delicti of the crime was clearly established independently of and prior to the admission of the defendant’s statement into evidence.

The prosecution had proven that the victim had been shot and had died prior to the admission of the statement. Defendant next claims error in the trial judge’s admission of expert evidence relating to identification of the defendant by means of a fingernail analysis and comparison. A fingernail was found in the back seat of the car where the crime occurred. The court held a hearing out of the presence of the jury to determine the admissibility of evidence of the comparison of this fingernail with fingernail samples taken from the defendant.

The admissibility of a fingernail analysis is an issue of first impression in Michigan and, indeed, in the United States. The Supreme Court in People v Barbara, 400 Mich 352, 364; 255 NW2d 171 (1977), in discussing the admissibility of evidence of results of polygraph tests stated: " '[Testimony [must be] offered which would indicate that there is at this time a general scientific recognition of such tests.

Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.’ People v Davis, 343 Mich 348, 370; 72 NW2d 269 (1955), quoting People v Becker, 300 Mich 562, 566; 2 NW2d 503 (1942).” Several expert witnesses in Barbara, had had a great deal of personal experience with polygraph operation and analysis, years of personal involvement with polygraph examinations, and testified that results obtained by use of a polygraph were a respected form of evidence.

But the Supreme Court held that the testimony of polygraph examiners themselves was not enough. "While the special record before us establishes that the polygraph is accepted as reliable by polygraphers, it does not establish that polygraph analysis is accepted as reliable by the scientific community. Credentials of the witnesses, although outstanding for polygraph technicians, are not those of scientists.

Therefore, unless we depart from the standard Davis/Frye [v United States, 54 US App DC 46; 293 F 1013 (1923)] test for admissibility, defendant has failed to convince us that the polygraph should be admitted into evidence at trial in our State.” Id., 377. The Court in People v Tobey, 401 Mich 141, 146; 257 NW2d 537 (1977), refused to accept voiceprint evidence despite the testimony of experts (a professor of audiology and a police officer experienced in the area of audiology who had been a student of the professor’s).

The Tobey Court was not persuaded that these witnesses "whose reputations and careers have been built on their voiceprint work, can be said to be impartial or disinterested”. The expert in the instant case is a civilian employee of the Michigan State Police with a specialty in human hair comparisons. This expert testified that he had read of the fingernail identification technique in five forensic journals (two were English and another was German). There were no cases cited where such a technique was admitted as evidence.

In a response to questioning about the technique’s general acceptance in the scientific community, the expert responded: "I personally have talked to a number of people that I know at meetings. My boss, Lieutenant Nassar went to the meeting of the American Society of Crime Laboratory Directors which is a national meeting of all crime directors asking them to examine them, asking the same questions, and the two things arose.

One is that everybody — everybody there seemed to be in general agreement within this forensic science community that fingernails were indeed unique and individual, and could be used as evidence. But that no one had ever had a case involving one.” The expert’s own experience in analyzing and comparing fingernail specimens has consisted of studying his own nail clippings, those of his boss which had been collected since 1972, and those of three other individuals with a "number of samples from each”.

We do not find that this expert’s testimony was sufficient to establish "a general scientific recognition of the fingernail identification procedure” or the "degree of certainty” from the use of the fingernail technique that would warrant admissibility. Barbara, supra. The admission of the testimony regarding the identification of the defendant by use of the fingernail analysis and comparison was error where the evidence did not show a recognition and acceptance of the technique in the forensic community.

We find, however, that this error was "harmless beyond a reasonable doubt” based on the overwhelming proofs, not touched by the taint of error, upon which all reasonable jurors could find guilt beyond a reasonable doubt. People v Christensen, 64 Mich App 23; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976). As to the defendant’s contention that he was denied his right to confront witnesses because his codefendant was found to be incompetent to stand trial, causing the trial court to rule that he was incompetent to testify, we affirm the trial court’s ruling.

After testimony by an expert witness that clearly demonstrated the codefendant’s incompetency to stand trial, the trial court determined that the codefendant would not have the capacity to knowingly and intelligently waive his Fifth and Fourteenth Amendment rights against self-incrimination. Accordingly, the codefendant was not allowed to testify. The trial court did not abuse its discretion in determining whether the codefendant was competent to testify, MRE 601. This Court on appeal will not disturb the trial court’s findings in the absence of an abuse of discretion.

People v Eugene Johnson, 30 Mich App 284; 186 NW2d 94 (1971), lv den 384 Mich 838 (1971), People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975), lv den 399 Mich 866 (1977). Defendant contends that the trial court abused its discretion in denying a motion for a directed verdict on the kidnapping charge because there was not sufficient "asportation” to support the charge. There was sufficient proof that defendant and his friend got into the victim’s car and drove her five blocks against her will. A rational trier of facts could find the elements of kidnapping were proven beyond a reasonable doubt.

MCL 750.349; MSA 28.581, People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), appeal to the United States Supreme Court pending. There was no showing that the asportation of the victim was merely incidental to the murder which occurred at the end of the five-block journey. Nor was it shown to be incidental to any other offense. People v Jones, 92 Mich App 100; 284 NW2d 501 (1979), People v Otis Adams, 34 Mich App 546; 192 NW2d 19 (1971).

The defendant charges that the instructions given to the jury on the element of asportation did not make it clear to the jury that the requisite asportation for kidnapping must be determined to be independent of any underlying crime. Although one sentence of the instruction indicates "if the underlying crime involves murder, movement incidental to that is generally sufficient to establish a valid statutory kidnapping”, several sentences of the instructions clearly indicate that the asportation had to be separate from the crime of murder.

Taken as a whole, we find that the instructions would leave the jury with the correct impression that asportation must be found to have been independent of the underlying offense. Jones, supra, 109. Finally, the trial court recognized on the record that People v Wilder, 82 Mich App 358, 364; 266 NW2d 847 (1978), prohibited the court from sentencing the defendant for convictions of both felony murder and kidnapping, the underlying felony.

"[When] the latter is a necessary element of the former under the prosecution’s theory of the case, [the underlying felony] must be vacated.” This Court is satisfied that the trial court sentenced the defendant for the first-degree murder conviction only, however, the trial court did not expressly vacate the kidnapping conviction. We remand for an express vacation of the kidnapping charge in accordance with Wilder, supra. As to all other issues raised by defendant on appeal, we affirm. Affirmed in part, and remanded. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).