State v. Butler

PATRICIA BRECKENRIDGE, Chief Judge,

concurring.

I concur with Judge Lowenstein’s analysis that the State presented sufficient evidence from which a reasonable juror could find Mr. Butler guilty beyond a reasonable doubt. I write separately to note that I agree with Judge Stith’s dissent that Ms. Duvenci’s testimony that, to a reasonable degree of certainty, the hairs found on J.L.’s clothing were from Mr. Butler and that a match of hair from two body parts was “like double significance of evidence” was inadmissible because it was not based upon scientific principles that are generally accepted in the relevant scientific community. Unlike Judge Stith’s dissent, however, I believe this deficiency is an issue of lack of scientific foundation and that this court is precluded from considering any lack of scientific foundation for Ms. Duvenci’s improper testimony when ruling on the issue of submissibility, as Mr. Butler failed to preserve the issue of its admissibility by not objecting to it at trial. Moreover, because Mr. Butler’s reason for not objecting to the incompetent evidence was a matter of his counsel’s trial strategy, this court is precluded from conducting plain error review of its admissibility. As a result, Ms. Duvenci’s positive identification and quantification testimony must be considered in determining the submissibility of the State’s case. When the entirety of Ms. Duvenci’s testimony is considered with the other evidence in this case, I agree with Judge Lowenstein that it is sufficient to provide a reasonable juror with proof of Mr. Butler’s guilt beyond a reasonable doubt.

At trial, Ms. Duvenci presented testimony as to her qualifications and a detailed description of the methods she used for her examination and comparison. After demonstrating for the jury her comparison of the unknown hairs found on the victim’s clothing with the hair samples from Mr. Butler, Ms. Duvenci testified that the conclusion she reached from the comparison was that there were no major significant differences between the head and pubic hairs found on the victim’s clothing and the samples of Mr. Butler’s head and pubic hairs. She testified that “from her experience it’s very rare to find not only two head hairs, unknown head hairs that happen to match somebody else, but also two hairs from totally different body regions that match the individual” and that the spot in the medulla of the pubic hair from the victim’s clothing and from Mr. Butler struck her as “very unusual,” as she had not observed it before in the 1200 cases *36she has examined. She expressed her opinion that she was “one hundred percent certain” that the hairs “matched.”

Ms. Duvenci further testified that it was her opinion, within a reasonable degree of certainty, that the hairs found on the victim’s clothing came from Mr. Butler and her opinion that matching two hairs from two separate parts of the body was “like double significance of evidence.” Judge Lowenstein finds that Ms. Duvenci’s positive identification of a certain individual and her opinion of the significance of matching hairs from two body parts were based on logic and reason because Ms. Duvenci based her opinions upon her personal experience, in that she had not seen matching black spots on the medulla of pubic hairs or matching hairs from two different parts of the body in her examination of over 1200 cases in her 12 years of study and comparing hairs. Judge Low-enstein then cites Missouri law and cases from other jurisdictions to justify the admission of this evidence as probative of Mr. Butler’s guilt. Judge Lowenstein’s opinion obscures the lack of merit in his position by failing to identify, in his discussion of applicable law, the nature of Ms. Duvenci’s testimony which is challenged— her testimony that the hairs on the victim’s clothing came from Mr. Butler and that matching hairs from two body parts was “like double significance of evidence.” Instead, Judge Lowenstein often refers to Ms. Duvenci’s testimony simply as “Ms. Duvenci’s opinion” or her testimony “within a reasonable certainty.” While this discussion by Judge Lowenstein is dictum included to counter the arguments raised by Judge Stith’s dissent, Judge Lowen-stein is sanctioning the admission of positive identification and quantification testimony by a hair comparison expert. This would be the first time a Missouri court has approved the admission of this type of hair comparison testimony and such a holding is contrary to existing law requiring that an expert opinion be based on scientific principles and reasoning which are accepted by the relevant scientific community.

Unlike her positive identification and quantification testimony, Ms. Duvenci’s testimony that the hairs found on the victim’s clothing “matched” sample hairs from Mr. Butler was admissible. In State v. White, 621 S.W.2d 287, 292 (Mo.1981), the Supreme Court considered whether microscopic hair comparison expert testimony has sufficient scientific acceptance to be admissible. The Court found that “a sufficient basis exists to support a finding of scientific reliability of [microscopic] hair comparisons.” Id. at 293. The Court stated that “[u]nder the circumstances of this case the state’s expert was properly qualified to express his opinion as to hair comparisons” and it upheld the admission in evidence of the expert’s testimony “that hair samples taken from the murder scene matched those taken from the defendant.” Id. at 292-93 (emphasis added).

It is agreed by the relevant scientific community that when two hairs “share common attributes,” they “match.” P.D. Barnett & R.R. Ogle, Probabilities and Human Hair Comparison, 27 J. FoRensic Sci. 272, 272-73 (1982). When conducting a hair comparison, a forensic scientist views the hairs microscopically to determine if there are any significant differences in the characteristics of the hairs being compared. As Ms. Duvenci testified, forensic scientists agree that there are only three possible conclusions a hair comparison expert can draw from this examination: (1) the hairs are not similar; (2) no conclusion can be reached; or (3) the hairs match based on microscopic characteristics and the hairs originated from the same person or another person whose hairs exhibit the same microscopic characteristics. Ms. Duvenci’s conclusion that the microscopic characteristics of the hairs found on the victim’s clothing “matched” the microscopic characteristics of Mr. Butler’s hair samples is consistent with conclusion (3), so it is a conclusion accepted by *37the scientific community and, therefore, proper expert opinion testimony.

The next portion of Ms. Duvenci testimony of significance is her testimony that “from [her] experience it’s very rare to find not only two head hairs, unknown head hairs that happen to match somebody else, but also two hairs from totally different body regions that match the individual” and that the spot in the medulla of the pubic hair from the victim’s clothing and from Mr. Butler struck her as “very unusual,” as she had not observed it before in the 1200 cases she has examined. This testimony is similar to evidence found admissible in State v. Jones, 777 S.W.2d 639, 641 (Mo.App.1989). In that case, an expert testified that he observed uncommon big black spots in the cortex of the unknown hair and the hair of the defendant and that, in his experience, he had seen this characteristic in only one or two percent of the hairs he examined. Id. Following the rule of Jones, it is permissible for a hair comparison expert, like Ms. Duvenci, to present factual testimony about characteristics the expert observes and the expert’s experience in observing such characteristics.

While these portions of Ms. Duvenci’s testimony are admissible, she offers additional expert opinions for which there is no scientific foundation. The opinions expressed by Ms. Duvenci which are not accepted by the scientific community are her positive identification testimony that, to within a reasonable degree of certainty, the hairs found on the victim’s clothing came from the defendant, and her quantification testimony that the matching of hairs from two different body parts has “double the significance.”

Specifically, Ms. Duvenci testified that the hairs found on the victim’s clothing were from Mr. Butler, as follows:

Q. And as I understand you can’t tell me with a hundred percent certainty, but the question is within a reasonable degree of certainty in the field of forensic serology or trace evidence, do you have an opinion as to whether or not the unknown hair samples collected from the victim match the Defendant’s?
A. I feel there is a very strong probability that those two hairs came from the Defendant.
Q. So within a reasonable degree of certainty you believe that the unknown hairs are in fact from the Defendant?
A. Yes.
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Q. But within a reasonable degree of certainty it’s your opinion that the foreign hairs were from the Defendant?
A. Yes.

As Ms. Duvenci acknowledged in her testimony, and as the authoritative articles confirm, there is no scientific basis for testifying that a hair comes from a particular individual. Ms. Duvenci testified that the characteristics of hairs are not unique like the ridges of fingerprints, and there are not enough individual features in hair in the human population in comparison to the number of people in the world, in contrast to the genetic trace of DNA comparisons. While a DNA comparison of hairs can identify the source of the hah*, the science of microscopic hair comparison is much less precise.1 Hairs from more than one individual can have matching characteris*38tics, and there is no scientific agreement as to how often that occurs. See Clive A. Stafford Smith & Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil?, 27 Colum. Hum. Rts. L.Rev. 227 (1996); Barnett & Ogle, supra, at 278. Therefore, the state of the science is such that an expert can determine only if an individual is a possible source of a hair, not that the hair came from any particular individual. See id. In White, the Supreme Court approved the admission of scientifically accepted hair comparison evidence. 621 S.W.2d at 292-93. Hair comparison testimony which purports to identify a specific individual as the source of the hair is contrary to accepted scientific principles and would not be authorized by White.

In addition to Ms. Duvenci’s positive identification of Mr. Butler based upon the hair comparison, the other opinion of Ms. Duvenci which is without scientific foundation is her testimony that the matching of two hairs from two different body parts is like “double the significance of evidence.” Once again, no scientific authority supports this quantification of the significance of a “match” in hair comparison. In Jones, where the court affirmed the admission into evidence of the expert’s testimony that he had only seen big black spots in the cortex of hairs in one or two percent of the hairs he examined, the court found that the expert “did not testify to any probability, or percentage of probability” that the hair came from the defendant. Jones, 777 S.W.2d at 641. The expert in Jones did not attempt to attach a quantified significance to the observation of a rare characteristic. That is what was improper about Ms. Duvenci’s opinion testimony. The scientific community does not accept a hair comparison expert utilizing personal experience to estimate probabilities since it is generally accepted that even controlled scientific studies cannot sufficiently determine reliable probabilities.

Nevertheless, Judge Lowenstein, purporting to rely upon State v. Kleypas, 602 S.W.2d 863, 869 (Mo.App.1980), states that “[ajlthough Duvenci’s opinion may not be supported by statistical studies, such data is not an absolute necessity in order for an expert to render an opinion within a reasonable certainty.” Judge Lowenstein’s discussion of the facts and holdings of Kleypas is misleading, however.2 In Kleypas, the expert witness testified, after describing his qualifications and the methods he used for his examination and comparison, that “the bite marks were ‘consistent with marks made by the mouth of the defendant.’ ” During cross-examination, *39however, the expert went beyond saying that the bite marks were consistent, stating that, “ ‘It’s my opinion that within a reasonable scientific certainty the bite marks were made by the defendant.’ ” When questioned further, the expert admitted “that statistics relative to the number of people with very similar bite marks had not been accepted by the forensic dental field;” but the expert stated his own opinion that “the number would be very, very low.” The defendant then moved to strike the entire testimony of the expert because it had not been shown that there was a recognized science of bite comparison. The court overruled the objection and, on appeal, the defendant challenged the admission in evidence of the expert witness’s opinion that the bite marks on the victim’s body were made by the defendant.

In determining the admissibility of the expert’s bite comparison testimony, the court in Kleypas first noted that the rule concerning the acceptance of scientific tests as set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), governed. The court in Frye stated:

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 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.

Frye, 293 F. at 1014. Thus, pursuant to Frye, expert testimony must be based upon principles which are generally accepted within the particular field of science. The court in Kleypas then discussed the Frye rule in the context of expert comparison testimony, stating the following:

[One] aspect of identification by comparison in which a scientific principle may be involved is a determination of whether or not the established points of similarity (used in the sense of being the same) are so unique that it may be said, within a required degree of certainty, the mark or trace was made by a specific person or by a specific object. This in turn may depend upon the state of the science of statistics in the field in question. The statistical science as applied to the points of similarity may produce varying degrees of probability. A varying number of points of similarity may lead to different degrees of certainty of identification. One point of dissimilarity may eliminate a connection of a mark or trace with the defendant. In some circumstances the similarities may establish a high degree of probability in the absence of statistics.

Kleypas, 602 S.W.2d at 869.

Judge Lowenstein relies upon the language that, under certain circumstances, the similarities found in a comparison may establish a high degree of probability in the absence of statistics, to support his holding that Ms. Duvenci could testify that the hairs came from Mr. Butler, in the absence of statistics permitting such an opinion. Using this language, Judge Low-enstein concludes that Kleypas allowed Ms. Duvenci to give positive identification and quantification testimony because Ms. Duvenci based her opinion upon her observance of unusual similarities which she believed created a high degree of probability that the hairs came from Mr. Butler. In drawing such a conclusion, however, Judge Lowenstein takes the language of Kleypas out of context and ignores the Kleypas court’s application of the language to the expert’s testimony. Judge Lowen-stein’s discussion also fails to even mention that the expert’s opinion being challenged in Kleypas was that the bite marks were made by the defendant, and refers to the challenged opinion as testimony of “the source of the bite marks on the body” and *40the fact that the expert stated his opinion “within a reasonable medical certainty.” The fact that the challenge was to positive identification testimony was the crux of the Kleypas case.

The court in Kleypas, after stating that, under certain circumstances the similarities found in a comparison may establish a high degree of probability in the absence of statistics, went on to state that questions regarding the acceptable range of probabilities a witness may express, “and the extent to which an expression of a degree of probability must be supported by statistics!,]” are crucial “when, over objection, a witness is permitted to express a degree of probability, or when the sufficiency of the evidence to support a conviction is dependent upon the degree of certainty established.” Id. at 869. For purposes of admissibility, however, the statistical basis for a comparison expert’s testimony that a mark or trace could have come fi-om the defendant is not as critical, so long as the points of similarity are not so common as to lack relevance. Id. Such evidence constitutes circumstantial evidence of guilt, and thus is admissible. Id. The court in Kleypas noted as an example of such admissible expert testimony “evidence that a microscopic examination revealed that hair could have come from the head of the defendant.” Id. Applying this principle to the bite comparison expert’s testimony, the court in Kleypas concluded that the expert’s testimony “that the bite marks were compatible with or could have been made by the defendant’s bite was relevant and was admissible.” Id. at 870 (emphasis added).

The court in Kleypas then distinguished the expert’s testimony that the bite marks could have been made by the defendant from the expert’s cross-examination testimony that the bite marks actually had been made by the defendant. Id. The court stated that when the expert “stated with reasonable medical certainty the bite marks in question had been made by the defendant ... the statistical aspect of the state of the science of forensic odontology [became] critical.” Id. Because the defendant in Kleypas objected to the admission of all of the bite mark comparison expert’s testimony, however, and not simply that part in which the expert expressed his opinion that, to a reasonable degree of medical certainty, the bite marks were made by the defendant, the court in Kley-pas ruled that the trial court was correct in overruling the defendant’s motion to strike. Id. Furthermore, the court found that the defendant suffered no prejudice by the admission of the positive identification testimony because the trial court, in finding the defendant guilty, “clearly indicated that it considered only the testimony that the bite marks were consistent and compatible with the defendant’s teeth.” Id. Contrary to the impression created by Judge Lowenstein’s opinion, Kleypas, if read in its entirety, does not support the admission of Ms. Duvenci’s testimony that, within a reasonable certainty, the hairs found on the victim’s clothing came from Mr. Butler or her testimony that matching hairs from two parts of the body was “like double significance of evidence” without a statistical basis upon which to quantify those probabilities. The current state of the science is that there is no statistical basis for the quantification of such probabilities which is accepted by experts in the field of hair comparison.

Judge Lowenstein also cites State v. Maxie, 513 S.W.2d 338, 344-45, (Mo.1974), a fiber comparison case, to support the admission of Ms. Duvenci’s testimony. In Maxie, the trial court found that the opinion of the expert was sufficiently supported by a factual basis. Id. There is no indication in the case that the expert opinion that a fiber came from the victim’s shirt was contrary to the state of the science of fiber comparison, so I do not think it supports the admission of Ms. Duvenci’s opinions which are contrary to the state of the science of hair comparison. I am also concerned with Judge Lowenstein’s citing of four cases from other jurisdictions in *41footnote 4, which he characterizes as “persuasive that hair evidence is positive evidence linking the defendant to the crime.” In truth, these cases affirm a trial court’s admission into evidence of expert testimony that unknown hair came from a particular individual. Despite the fact that the defendants’ claims of improper admission of the evidence appear to be properly preserved, in three of the cases, the courts do not address the lack of scientific foundation for the expert opinions. See Padilla v. People, 156 Colo. 186, 397 P.2d 741, 743 (1964); People v. Buie, 238 Ill.App.3d 260, 179 Ill.Dec. 447, 606 N.E.2d 279, 287 (1992); State v. Earley, 118 R.I. 205, 373 A.2d 162, 165 (1977). Because the expert opinions permitted in those cases are contrary to the state of the science of microscopic hair comparison and not generally accepted by the scientific community, this court should not approve them. In the fourth case, State v. Hunt, 53 Wis.2d 734, 193 N.W.2d 858, 868 (1972), the court found that it was sufficient that the defendant could cross-examine the expert on the lack of scientific foundation for his opinion that the hair came from a particular individual. This is contrary to Missouri law. See Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 616 (Mo. banc 1995) (finding that the question of sufficiency of the scientific foundation supporting an expert’s opinion is one of admissibility determined by the trial court). Thus, Hunt should also not be cited with approval by this court.

Ms. Duvenci’s testimony that, within a reasonable degree of certainty, the hairs found on the victim came from Mr. Butler, and her opinion that matching two hairs from two separate parts of the body was “like double significance of evidence,” are statements for which there is no scientific basis and that such evidence should have been excluded if a proper objection had been lodged, and that without said evidence there would not have been sufficient evidence to make a submissible case. Proof from which a reasonable juror could find guilt beyond a reasonable doubt is not established by the evidence that Mr. Butler was a resident of the trailer park who fit the general description of the assailant; that the hairs found on the victim’s clothing matched Mr. Butler’s head hair and unusual pubic hair, and the hairs could have come from Mr. Butler or another individual whose hairs exhibited the same microscopic characteristics; that Mr. Butler lacked an alibi; and that his defense theory of transference of hair to the victim’s clothing was questionable. This evidence raises only a suspicion or conjecture that Mr. Butler was the perpetrator of the crimes and does not prove such beyond a reasonable doubt. See State v. Scott, 177 Mo. 665, 76 S.W. 950, 952 (1903). See also State v. Stallings, 77 N.C.App. 189, 334 S.E.2d 485, 486-87 (1985). Nevertheless, defense counsel did not object to the admissibility of Ms. Duvenci’s positive identification and quantification testimony, so that evidence is properly considered in determining whether a submissible case was made. When considering all the evidence that was before the jury without objection, I believe there was sufficient evidence of Mr. Butler’s guilt beyond a reasonable doubt.

Judge Stith’s dissent disagrees with my conclusion that there is a submissible ease if Ms. Duvenci’s improper testimony is considered. She relies on the Supreme Court’s opinion in Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993), as authority for its assertion that Ms. Duvenci’s testimony was so lacking in weight and probative value that no reasonable juror could find that it meets the reasonable doubt standard, so a submissi-ble case was not made. In Callahan, the defendant challenged the sufficiency of the evidence to support the judgment because there was no evidence that the plaintiffs expert witnesses’ testimony was based on scientific principles that are generally accepted in the relevant scientific community as required by Frye, 293 F. 1013. Callahan, 863 S.W.2d at 860. The Supreme Court noted that the issue raised was one *42concerning admissibility rather than sub-missibility, and since there was no objection to the testimony of the plaintiffs experts, there was no issue of admissibility presented or preserved for appeal. Id. The Supreme Court stated that it had found no case “that permits a party to blissfully ignore the requirement to object to evidence based on the Frye doctrine and then ‘back-door’ the Frye issues into the lawsuit under the guise of a sufficiency of the evidence argument.” Id.

When the Supreme Court proceeded to address whether there was sufficient evidence on the element of causation, the Court stated that “inadmissible evidence received without objection may properly be considered in determining the sufficiency of the evidence.” Id. at 863. The Court then noted that the defendant was “reduced to arguing that the testimony of plaintiffs experts is so deficient in weight and credibility that it has little or no value on the issue of causation.” Id. In its subsequent analysis of the weight to be given plaintiffs experts’ testimony, however, the Court considered the scientific information that was the basis for the opinions, and the education and experience of the experts. Id. at 863-64. From the Court’s discussion, it is clear the Supreme Court looked at the issues relevant to admissibility, i.e., the scientific foundation for the experts’ opinions, when deciding the issue of sub-missibility. If Callahan was the last word on this issue by the Supreme Court, I would agree with Judge Stith’s assertion that Mr. Butler’s conviction should be reversed.

After Callahan, however, the Missouri Supreme Court revisited the issue of admissibility versus submissibility in Washington by Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995), a medical malpractice case. In Washington, the plaintiffs claimed that the defendant hospital and doctors were negligent in failing to timely diagnose a placental abruption and timely perform a cesarean section. Id. at 612. After a jury verdict in favor of the plaintiffs, the hospital and doctors appealed, arguing, inter alia, that the plaintiffs failed to make a submissible case on the elements of negligence and causation. Id. at 615. The defendants contended that the opinion of the plaintiffs’ expert, Dr. Hummer, was speculative and not supported by the evidence in the record. Id. The defendants argued that Adams v. Children’s Mercy Hosp., 848 S.W.2d 535, 548 (Mo.App.1993), and Pippin v. St. Joe Minerals Corp., 799 S.W.2d 898, 904 (Mo.App.1990), “stand as authority for disregarding Dr. Hummer’s testimony, even though admitted into evidence without objection, because lack of evidentiary foundation for an expert’s opinion may be considered when determining submissibility.” Id.

The Supreme Court rejected the defendants’ argument. The Court stated that the defendants had confused the issue of the admissibility of the expert’s opinion with the issue of the submissibility of the plaintiffs’ case. Id. at 616. The Court also stated that it had discussed this issue in Callahan, and that “[i]f a question exists as to whether the proffered opinion testimony of an expert is supported by a sufficient factual or scientific foundation, the question is one of admissibility.” Id. Any question regarding the factual or scientific foundation of an expert’s opinion must be raised by a timely objection or a motion to strike. Id. Once the expert’s opinion has been admitted, it can be relied upon to determine the submissibility of the plaintiffs case. Id. The jury determines the probative effect of the opinion. Id. Because the defendants did not challenge the scientific or factual foundation of Dr. Hummer’s opinion at any time while he was testifying, the Court held that they waived any issue they had regarding the admissibility of his opinion and were foreclosed from raising the issue “under the guise of submissibility.” Id. The Court then stated that “[t]o the extent that they indicate to the contrary, Adams and Pippin should not be followed.” Id.

*43To appreciate the implications of the Court’s overruling of Adams and Pippin, a discussion of Adams and Pippin is necessary. This court decided Adams in 1993. Adams was a medical malpractice case which arose out of a patient receiving excessive amounts of anesthesia prior to undergoing surgery. 848 S.W.2d at 588. One of the plaintiffs’ theories of recovery was that the hospital was negligent because it assigned anesthesia cases on the day of the surgery to its doctors serving residencies. Id. at 546. The plaintiffs’ negligence theory was that the hospital had a duty to post the assignments prior to the day of the surgery, and that its failure to do so caused or contributed in the injury. Id. At trial, the plaintiffs had relied on the expert opinions of two doctors to establish the hospital’s duty to assign anesthesia cases the day before the surgery, and to establish that the hospital’s failure to do so caused or contributed to the injury. Id. at 547. After a jury verdict in favor of the plaintiffs, the defendant hospital claimed on appeal that the plaintiffs failed to make a submissible case on the issue of its negligence in the way it made the anesthesia assignments. Id. at 546.

In ruling on this issue, this court examined the factual bases of the two experts’ opinions. This court found that the plaintiffs had presented “no competent evidence” that the doctors involved in the case would have done anything differently had the hospital notified them earlier that they were assigned to the surgery. Id. at 548. Thus, this court concluded that the two experts’ opinions that the hospital’s failure to post the surgery schedule prior to the day of the surgery contributed to or caused the plaintiffs’ injuries were speculative, and not supported by the evidence. Id. Citing Pippin, this court stated that “[a] medical expert’s opinions must be supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence,” and that this principle holds true even where the expert’s opinion is received without objection. Id. This court found that because the two experts’ opinions lacked sufficient factual bases, they were “not sufficient to create a submissible case or to sustain a judgment.” Id. Therefore, even though the two experts’ opinions were admitted without objection, this court reviewed the factual bases for the experts’ opinions when it reviewed the submissibility of the plaintiffs’ case.

The court in Adams relied on Pippin. Pippin was a 1990 Southern District workers’ compensation case. 799 S.W.2d 898. In Pippin, the claimant was the wife of an employee of St. Joe Minerals Corporation. Id. at 899. After the claimant’s husband died, it was discovered that he had the occupational disease silicosis. Id. The Labor and Industrial Relations Commission denied the claimant’s claim for workers’ compensation benefits after finding that there was insufficient proof that the claimant’s husband was exposed to the hazard of the disease in the course of his employment with St. Joe Minerals. Id. In determining whether the claimant had, in fact, sustained her burden of showing a reasonable probability that her husband had been exposed to silicosis in the course of his employment, the court reviewed all of her evidence. The court found significant the opinion of one of the claimant’s medical experts as to the causal connection between her husband’s working environment at St. Joe Minerals and the silicosis. Id. at 903. The expert had proffered this opinion in response to a hypothetical question posed by the claimant’s attorney. In reviewing the expert’s opinion, the court noted that at no time did the employer object to the hypothetical question or make a motion to strike the question or the expert’s response. Id. at 904. The court stated that despite the employer’s failure to object, the hypothetical question still had to be “predicated on facts in evidence and must not assume facts not in evidence.” Id. This is so because “[a] medical expert’s opinion must have in support of it reasons and facts supported by *44competent evidence which will give the opinion sufficient probative force to be substantial evidence.” Id. The court found that all but one of the hypothesized facts propounded to the claimant’s expert had a sufficient factual basis. Id. The absence of a factual foundation for one of the hypothesized facts did not deprive the expert’s opinion of its probative value, however, because that fact was not necessary to establish a claim under the applicable statute. Id. Thus, the expert’s opinion provided “sufficient substantial evidence” to support the claimant’s claim. Id.

According to Adams and Pippin, an expert’s opinion, although admitted without objection, which lacks a factual foundation does not have sufficient probative force to constitute substantial evidence. Adams and Pippin stand for the proposition that even where an expert’s opinion is admitted without objection, an appellate court can review the factual foundation of the expert’s opinion in reviewing the submissibility of the case. This is directly contrary to the Supreme Court’s holding in Washington that questions as to the factual or scientific foundation of an expert’s opinion are questions of admissibility, and if not raised in a timely objection or a motion to strike, these issues are waived and cannot be raised on appeal in a submissibility claim. 897 S.W.2d at 616. The Court in Washington made a point of stating that Adams and Pippin should not be followed to the extent that they indicate anything contrary to its holding. Id.

Judge Stith says this case is different because, here, in Ms. Duvenci’s own testimony, she admitted the state of scientific knowledge did not allow her to identify an individual, yet she nonetheless identified Mr. Butler as the source of the hairs found on the victim. She asserts that Ms. Du-venci’s own testimony so undercut her opinion that it was entitled to no weight. While I understand Judge Stith’s position, I do not agree. The true defect in Ms. Duvenci’s positive identification and quantification testimony is its lack of a scientific foundation, not that it is so inherently contradictory that it is entitled to ■ no weight. Washington, by its overruling of Adams and Pippin, prohibits consideration of the fact that Ms. Duvenci’s positive identification testimony is unreliable, i.e. lacking in scientific foundation, in determining whether such evidence has sufficient probative force to constitute substantial evidence of Mr. Butler’s guilt.

It should also be noted that unlike the Court in Callahan, the Court in Washington did not even mention the reliability or the scientific basis of the expert’s opinion in reviewing the submissibility of the plaintiffs’ case. Id. at 616-17. The Court in Washington simply set out Dr. Hummer’s opinion, apparently taking it at face value, and relied on it to find that plaintiffs had made a submissible case. Id. While Callahan would allow the analysis and result the dissent desires to reach, I believe Washington, the last word from the Supreme Court, compels a contrary result. The precedent of Washington compels a finding that the evidence, including Ms. Duvenci’s positive identification testimony, is sufficient to provide a reasonable juror with proof of Mr. Butler’s guilt beyond a reasonable doubt.

Normally when there is no error preserved, an appellate court has discretion to consider, “[wjhether briefed or not, plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of. justice has resulted therefrom.” Rule 30.20. For example, in State v. Smith, 944 S.W.2d 901, 915-16 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997), the Supreme Court conducted plain error review when a defendant failed to challenge an expert witness’s qualifications or object to his testimony. However, an appellate court will not review for plain error inadmissible evidence to which a defendant intentionally failed to object as a matter of trial strategy. State v. Yager, 416 S.W.2d 170, 172 (Mo.1967); State v. Martin, 852 S.W.2d 844, 851 (Mo.App.1992). See also *45State v. Meanor, 863 S.W.2d 884, 892 (Mo. banc 1993) (Judge Robertson, in his concurring and dissenting opinion, argued for plain error review of the erroneous admission of the trooper’s opinion testimony, but agreed that Rule 30.20 is not an invitation for appellate courts to rummage through trial transcripts in search of unpreserved error, and that Rule 29.15 is sufficient to address a trial counsel’s failure to object to the admission of inadmissible evidence.).

In his briefs and his oral argument before this court en banc, Mr. Butler’s counsel expressly stated that his failure to object to Ms. Duvenci’s positive identification and quantification testimony was part of his trial strategy. Mr. Butler’s counsel mistakenly believed that the proper challenge to the lack of foundation for Ms. Duvenci’s testimony was to object that the evidence was not sufficiently reliable to permit submission of the case to the jury. He did not believe that it was necessary to dispute the admissibility of the evidence. Therefore, Mr. Butler’s counsel decided not to object to Ms. Duvenci’s testimony because he did not want it to look as though he was trying to hide something by objecting, and he thought he could discredit Ms. Duvenci’s testimony on cross-examination.

Since Mr. Butler’s counsel did not object to Ms. Duvenci’s positive identification testimony, the issue of whether to admit that testimony was never presented to the trial court. It was not error, plain or otherwise, for the trial court to fail to reject, sua sponte, that evidence. Once the opinion testimony was in evidence, the trial court was correct, under the holding of Washington, in considering all of the evidence when determining the submissibility of the case.

By following the rule of law established by the Supreme Court in Washington, the result is an affirmance of the conviction based upon all of the evidence because there was no objection to the incompetent evidence, as a matter of trial strategy. Mr. Butler argues that a conviction upon evidence which was incompetent to prove guilt beyond a reasonable doubt violates Mr. Butler’s rights. As Judge Robertson noted in his concurring and dissenting opinion in Meanor, 863 S.W.2d at 892, however, the constitutional rights of a defendant, such as Mr. Butler, are adequately protected by the availability of post-conviction relief under Rule 29.15. Under this rule, Mr. Butler has the ability to assert a claim of ineffective assistance of his trial counsel for failing to object to the admissibility of Ms. Duvenci’s testimony. Any determination of whether Mr. Butler would have a valid claim for post-conviction relief, should such motion be filed, is properly left to future proceedings. Accordingly, I concur with Judge Lowen-stein’s conclusion that the evidence, including that admitted without objection, is sufficient to support a finding by a reasonable juror that Mr. Butler is guilty beyond a reasonable doubt.

. Ms. Duvenci testified that it was possible to perform a mio-chondral DNA comparison on the hairs found on the victim’s clothing and the hairs from Mr. Butler, but such a test was not performed because it was "not being done locally.” If Mr. Butler had been identified as the source of the hairs on the victim’s clothing through DNA analysis, I would not question the admissibility of the positive identification testimony because the state of the science of DNA comparison permits identification of a particular individual as the source of the hair.

. Judge Lowenstein's opinion states that, "As in the case before this court, there was evidence of Kleypas’ guilt, which put the defendant at the back door of the victim's house at or near the time of the crime.” There is no comparison between the evidence establishing guilt in Kleypas and this case. In Kleypas, there was no challenge to the sufficiency of the evidence, and the court recited only a brief summary of the facts as "required to cast the background of the two points of error asserted by the defendant.” Kleypas, 602 S.W.2d at 865. The facts were that the victim was a 78-year-old woman who lived alone. She was known to be alive on the evening of January 23, 1977. Her body was discovered the next morning at 8;00 a.m. There was fresh snow on the ground and only one set of footprints leading to and going away from the back door of the victim’s home. The footprints were made by boots that left a distinctive track in the snow. The sheriff followed the footprints to the back door of the house where defendant lived with his parents. Along the route, the sheriff found a vodka bottle, which the defendant admitted was his. The sheriff also found that defendant's boots were damp and the soles of his boots were compatible with the footprints in the snow. Id. There was additional evidence that the defendant was drinking orange juice and vodka the night before when his parents went to bed. Id. The defendant testified at trial that "although he awoke in the morning in his bed, he did not recall going to bed that night.” Id. The defendant's hair samples were shown to match hairs taken from the victim’s body. Id. In my opinion, this is overwhelming evidence of the defendant’s guilt, without any reliance on the bite mark comparison testimony. This is different from our case, where the hair comparison evidence is necessary to make a submissible case.