On May 23, 1973, Sherri Jan Clark, fourteen, and her friend Alexis Ann Latimer, thirteen, went for a walk on Folly Beach, outside Charleston, and did not come back. Nearly eleven months later a former Navy sailor named Richard Valenti was arrested at his home on an unrelated charge of assault with intent to ravish, and on the way to the station he said he wanted to talk about his desire to bind and gag women. On tape he described taking two girls to a beach house, tying nooses around their necks to the water pipes in a shower stall and standing them on a chair, which fell as they struggled; he watched them die and buried them in the dunes. He took officers to the grave, and then to the shower stall, where pieces of rope still hung from the pipes. The South Carolina Supreme Court never names the girls in its opinion of October 6, 1975. It upheld the two consecutive life sentences, declined to replace the M’Naghten insanity rule, and found that the judge’s curative instruction had dealt with the solicitor’s claim to the jury that Valenti would go free if found insane. He also confessed to killing Mary Earline Bunch, sixteen, whose body was buried in the same sand, and was never tried for it. Under the parole law in force when he was sentenced he came up for release every two years and was refused twenty-one times. He died at a hospital on December 16, 2020, aged seventy-seven, still a prisoner.
Vincent Groves is in the second opinion, from the Colorado Court of Appeals on October 8, 1992. The woman he was convicted of murdering is not named: a prostitute who had been introduced to him the day before, was seen getting into his car, and was found strangled in a field in Aurora. A DNA test on a vaginal swab gave what the court calls a probable match. To prove identity the prosecution put three other episodes before the jury. The first was the strangling of his former girlfriend in 1981, to which he had confessed. The second was a 1982 attack on a hitchhiker he took for a prostitute, which left an electrical cord tied in a slipknot in his car and ended in dropped charges when she failed to appear. The third was the strangling of a young woman found in Douglas County in 1988, whose DNA an expert tied to Groves at odds of 8.4 billion to one. The court held that the Douglas County death should not have been admitted, since DNA identifies a man but says nothing about his method, and then found the error harmless. Groves died in custody on October 31, 1996, and DNA has since connected him to more killings, the most recent announced in December 2025.
The third is 313 words long. On March 1, 1999, the Appellate Division in Brooklyn affirmed the two Orange County judgments of May 26, 1993, convicting Nathaniel White of six counts of second-degree murder, one under Indictment No. 92-00431 and five under No. 92-00491. It found his confessions voluntary and rejected his claim that the police had held off his arraignment to question him without a lawyer; the delay, the court said, came from his own disclosure of several homicides whose details the police then had to get and verify. None of these three opinions is long, and none needed to be to settle the appeal in front of it.
None of the three opinions names a single victim, and each identification on this page comes from outside them. Sherri Clark and Alexis Latimer are named by the Post and Courier and Live 5 News in Charleston, which reported Valenti’s death and his parole hearings; the Clark family and the Post and Courier spell her first name Sherri, and several published lists have Sheri. The Aurora victim is harder. Groves was sentenced to life in 1990 for the first-degree murder of Juanita “Becky” Lovato, nineteen, but published accounts put her body east of Denver, in Adams County, or in an alley near East 48th Avenue and Brighton Boulevard, and none of them in a field in Aurora, so we have not written her name into the case the court describes. The same caution applies to the Douglas County woman. Diane Montoya Mancera, twenty-five, was found near the Surrey Ridge exit of Interstate 25 in Douglas County in July 1988, and Groves was later given twenty years for her second-degree murder, which fits the court’s statement that he had not been charged at the time of this trial. The opinion does not name her, though, and not every account places her body in Douglas County.
The Valenti opinion says the girls were taken to an abandoned beach house. Later press reports, relying on the prosecution, describe a shower stall at Valenti’s own home on East Arctic Avenue, and one says he forced the girls under his house at gunpoint. The two versions are not reconciled anywhere we have read. The court styles him Richard R. Valenti; the R is for Raymond. The description that came with this file calls May 26, 1993, the date of the White verdicts. The opinion calls it the date the judgments were rendered, and the jury had convicted him on April 14.
These are published opinions of the Supreme Court of South Carolina (265 S.C. 380), the Colorado Court of Appeals (854 P.2d 1310) and the Appellate Division of the New York Supreme Court, Second Department (259 A.D.2d 508), public records that anyone may reproduce. They are printed in full from the Harvard Law School Library’s digitization of the reporters, with the Valenti court’s single footnote set out after its opinion. The only private people they name are lawyers and judges, so nothing has been redacted. Two stray marks came through the digitization, a black square after the attorney general’s name in the Valenti caption and an accent in “dénied” in the Groves opinion, and both are left as they arrived.
20100
The STATE, Respondent, v. Richard VALENTI, Appellant
(218 S. E. (2d) 726)
Messrs. Coming B. Gibbs, Jr., and Mark C. Tanenbaum, of Charleston, for Appellant, cite:
Messrs. Daniel R. McLeod,■ Atty. Gen., and .Joseph R. Barker, Asst. .Atty. Gen., of Columbia, and Robert B. Wallace, Sol., and Arthur Rosenblum, Asst. Sol., of Charleston, for Respondent, cite:
October 6, 1975.
[OPINION BY Littlejohn, Justice: type=majority]
Littlejohn, Justice:
Richard R. Valenti, appellant, was tried before the Honorable Clarence E. Singletary on charges of murdering two teenaged girls. The jury found him guilty on both counts. He was sentenced to two life imprisonments — the two sentences to run consecutively.
Appellant now asks this Court for a new trial, alleging that the trial court erred in five particulars:
1. in refusing to grant motions for a change of venue and a continuance;
2. in refusing to sustain challenges for cause against ten jurors;
3. in admitting into evidence the confessions and admissions of appellant;
4. in charging the M’Naghten Rule relating to insanity instead of charging the test adopted by the American Law Institute; and
5. in refusing to declare a mistrial, or in the alternative, to charge the jury the law governing the disposition of a person found insane, after the solicitor, in his closing argument, said that appellant would be set free if he were found insane.
A review of the facts is necessary to an understanding of the issues. Appellant was arrested at his home on a charge of assault with intent to ravish, unconnected with this case. He was given the Miranda warnings and did not ask to have counsel present. En route to the police station, he expressed a willingness to discuss his desire to bind and gag females.
At the station house, appellant said that he wanted to make a statement. His statement and interrogation were recorded on a tape, with his permission. During the interrogation, appellant confessed to the abduction and strangulation of the two girls, for which he has now been convicted. He stated that he had taken the two girls to an abandoned beach house, had bound and gagged them, and had tied a noose around their necks. The noose was tied to water pipes in a shower stall.
Appellant stated that the girls, by struggling to free themselves, caused the chair on which they were standing to fall, and that the girls died by strangulation. Appellant watched the girls until they died and then buried them in nearby sand dunes.
After his interrogation, appellant agreed to take the police officers to the grave site. While the bodies were being exhumed, appellant took the authorities to the shower stall in which he had hung the girls. Pieces of rope were still hanging from the water pipes.
The remains of the two bodies were found in the grave site pointed out by appellant. The remains were little more than skeletons, making immediate identification difficult. Personal effects (a necklace, a ring and a pair of earrings) later identified as belonging to the girls were found in the grave.
Ten days prior to trial, appellant moved for a change of venue, or in the alternative for a continuance, on the ground that there had been extensive pretrial publicity prejudicial to a fair trial. After hearing oral arguments and reviewing the publicized materials, Judge Singletary denied the motion. Appellant argues that the denial of this motion was prejudicial to his trial.
In State v. Swilling, 249 S. C. 541, 155 S. E. (2d) 607, this Court held that the moving party has the burden of showing that prospective jurors have been prejudiced by pretrial publicity. Further, we have held that the decision of the trial judge will not be disturbed absent a showing of abuse of discretion. State v. Lytchfield, 230 S. C. 405, 95 S. E. (2d) 857 (1957); State v. Fuller, 227 S. C. 138, 87 S. E. (2d) 287 (1955).
A review of the record fails to reveal that the trial judge abused his discretion. All of the news media witnesses testified that their coverage was factual in nature, and the one editorial published merely extended sympathy to the families of the victims. Additionally, the voir dire examination (discussed in detail in the next issue) revealed that all prospective jurors, with the exception of one who was excused by the court, said that they could give appellant a fair and impartial trial.
Our holding in the recent case of State v. Crowe, 258 S. C. 258, 188 S. E. (2d) 379, cert. denied, 409 U. S. 1077, 93 S. Ct. 691, 34 L. Ed. (2d) 666 (1972), is equally applicable here. In Crowe, the factual setting was almost identical. We said in part:
“The trial judge conducted a careful voir dire examination of the jurors to determine the existence of any bias, prejudice, or adverse influence from newspaper publicity and prior discussions of the case in the community. The jurors selected to try the case stated under oath that they were not biased or prejudiced and could give the defendant a fair and impartial trial. It was apparent from the examination of the jurors that the claimed prejudice from newspaper publicity and discussions of the case in the community was not established.”
The second issue raised by appellant is that the trial judge ered in refusing to excuse for cause ten jurors, who stated that they had concluded from the news media that the two girls had died as a result of unlawful means. Appellant argues that since the State had the burden of proving that the two girls were in fact dead and that the girls had in fact died by unlawful means, it was prejudicial to seat jurors who had already formed an opinion adverse to appellant relating to these questions.
A review of the record reveals, to the exclusion of all other reasonable inferences, that the two bodies of the girls exhumed from the grave pointed out by the appellant were those of the two girls with whose wrongful death the appellant was charged. It further reveals, beyond debate, that they died by strangulation. Accordingly, the information which the jurors had attained from the news media concerned uncontradicted facts. The real issue in the case was not whether these girls were dead; and not whether they had been wrongfully killed. The question was whether the appellant was the person who did the deed and whether he was insane at the time. It can hardly be logically argued that the fact that some jurors had information relative to facts not really in dispute, denied the accused a fair trial.
As noted above, the trial judge conducted a thorough vow dire examination. Although several jurors indicated that they had formed an opinion that the two girls had, died by unlawful means, each stated that he could give appellant a fair and impartial trial. In State v. Fuller, supra, we held that although a juror may have formed an opinion, he could properly serve if (1) he were free of any bias or prejudice; (2) he could give the accused a fair and impartial trial; and (3) he would be uninfluenced by any opinion previously formed. The trial judge is allowed a broad discretion in dealing with matters of this type.
Appellant thirdly argues that the trial judge erred in admitting into evidence his confession and admissions. During the trial the solicitor offered into evidence a tape recording and a written statement containing the confession and admissions of the appellant. Both the tape and the statement apparently contained references to other crimes, but only those portions which referred to the killing of the two victims involved in this case were presented to the court. Before ruling on the confession and admissions, the trial judge held an extensive hearing out of the presence of the jury. There was ■ presented to the judge (1) testimony of the police officers, (2) the contents of the tape and the statement, and (3) the testimony of the appellant.
The testimony of the officer's, which appeared credible, would clearly indicate that the appellant was given Miranda warnings on several occasions; that he understood his rights, waived the same, and gave statements freely and voluntarily. The appellant signed the written statement and admitted that the voice on the tape sounded like his own.1
The appellant’s own testimony, given in opposition to the admission of the confession and admissions, may be characterized as “I don’t remember specifically” testimony. He denied little, but averred that he well'remembered being promised psychiatric care if he would give a statement.
The details of the rather full hearing on the admissibility of the confession and admissions need not be recited. Suffice it to say, the same have been reviewed by this Court and found to be without merit. It is not unusual for evidence to be in conflict relative to the voluntariness of a confession. When this is true, the trial judge must make the determination. The determination which he made in this case is abundantly supported by the record, and we find no error. Pursuant to § 10 of Rule VIII of this Court, counsel sought and was granted permission to attack our ruling in State v. Cannon, 260 S. C. 537, 197 S. E. (2d) 678 (1973), wherein we adhered to the M’Naghten Rule where insanity was pled as a defense. In argument, counsel asked this Court to review, modify and/ or overrule cases which adhere to the M’Naghten Rule, applied by this Court in cases wherein insanity had been pled as a defense. They would have us adopt the American Law Institute definition of insanity. After considering argument of counsel, we conclude that the rule should not be modified or overuled. Accordingly, we adhere to the test traditionally applied in this State, to-wit, the M’Naghten Rule. At appropriate stages of the trial, counsel for the appellant requested the judge to charge the jury§§ 32-969 and 32-970 of the South Carolina Code (now repealed). These sections provided that the trial judge may order a person who has been charged with a criminal offense and adjudged mentally ill, or regarding whom there is question as to the relation of mental illness to the alleged crime, to the State Hospital for treatment. The judge refused the request because, under his view, what becomes of an accused person after conviction or acquittal is of no concern to the jury. We find no error in the refusal to charge. During the solicitor’s final argument to the jury, defense counsel interrupted him to object to his argument relative to the disposition of the defendant in case he was found not guilty by reason of insanity. Counsel moved the judge “either for an instruction by the court or a mistrial.” Obviously, a mistrial was not required. The judge adequately and skillfully gave a curative charge. At the end of the curative charge and before the solicitor continued his argument, no further objection on the part of defense counsel was indicated. At the end of the judge’s final charge of all the law on the entire case, counsel was again given an opportunity to object to charges already made, and/or to request additional charges. Apparently counsel was satisfied with the curative charge which had been given; no further request, relative to the improper argument, was made. A review of the entire record convinces this Court that the trial judge handled this matter properly, and no grounds for a new trial have been shown. Affirmed. Moss, C. J., and Lewis, Bussey and Ness, JJ., concur.
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vincent Darrell GROVES, Defendant-Appellant.
No. 90CA1049.
Colorado Court of Appeals, Div. IV.
Oct. 8, 1992.
Rehearing Denied Dec. 24, 1992.
Certiorari Denied July 6, 1993.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Laurie A. Booras, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for defendant-appellant.
[OPINION BY Judge TURSI. type=majority]
Opinion by
Judge TURSI.
Defendant, Vincent Darrell Groves, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder. We affirm.
The victim was a prostitute who was found dead in a field in Aurora after having disappeared overnight. The autopsy report indicated that she had been strangled and sexually assaulted and that she had ingested cocaine before her death.
Contested evidence presented at trial indicated that defendant had been introduced to the victim the day before the murder, that she had intended to make money by prostitution on the day in question, and that she had been seen entering defendant’s car the night of her death. Further, a witness testified that defendant admitted to him that he had choked the victim to death after she tried to steal his drugs. And, a pendant, at least similar to one owned by the victim, was found in defendant’s vehicle after the murder.
Defendant dénied committing the murder. However, upon his arrest, he admitted that he had picked up prostitutes on Colfax Avenue several times a month. He stated that he usually gave them money and drove them to a location to buy drugs, after which they drove to a place off of Colfax to have sex in his car.
A DNA vaginal swab from the victim was forwarded to Forensic Science Associates for polymerase chain reaction testing. The results indicated that there was a probable match with defendant’s DNA.
I.
Certain of defendant’s contentions of error on appeal relate to the trial court’s admission of three similar transactions at trial. This evidence was introduced by the prosecution for purposes of proving defendant’s identity and modus operandi. Defendant challenges the court’s ruling because of certain dissimilarities of the transactions, including differing racial backgrounds of the victims therein.
The first transaction involved the murder of defendant’s former girlfriend in 1981, to which he confessed. Defendant committed this homicide by strangling the young woman, after they had ingested cocaine and had engaged in sexual intercourse.
The second transaction concerned the sexual assault of another young woman in 1982. This woman testified at trial that she was hitchhiking and that defendant mistook her for a prostitute when he picked her up on East Colfax Avenue. She agreed to have a drink with him in his truck, whereupon he drove to a remote area by the airport and parked. The defendant then threatened to kill her with a knife and gag her with his socks, and he attempted to rape her. The victim struggled and escaped to a nearby car.
Defendant’s license plate number was recorded by onlookers, and the victim identified defendant as her assailant. A search of his car yielded two knives, an opened liquor bottle, a pair of women’s underwear, and a piece of electrical cord with a slip knot tied on one end of it.
Defendant admitted that he picked the victim up and that he wanted to have sex with her, but he denied assaulting or threatening her. Charges were filed against defendant regarding this incident, but they were subsequently dropped when the victim failed to appear.
The third transaction relates to the homicide of a young woman in 1988. This woman left her friend’s house near East Colfax late at night after becoming intoxicated and having had a lover’s quarrel. The next morning she was found in Douglas County, dead from strangulation.
DNA testing was conducted on seminal fluid found on the latter victim’s underwear. An expert witness gave testimony, disputed by the defendant, that, based on this testing, she was able to identify defendant as the assailant, with odds against his misidentification gauged at 8.4 billion to one.
A fresh oil stain was also located on the pavement near this victim’s body, and defendant admitted that his vehicle had an oil leak during the pertinent time frame. However, the oil was not connected to defendant’s vehicle. Defendant was not charged with or convicted for commission of this homicide, and there was no other evidence connecting defendant with the crime.
Before trial, defendant sought to exclude the introduction of the similar transaction evidence by filing a motion in limine. Over defendant’s objection, the trial court ruled that it would determine the admissibility of this evidence by its review of offers of proof rather than by evidentiary hearing.
The trial court found that the three transactions were similar enough to the crime charged to warrant their admission into evidence at trial. The defendant subsequently filed a motion to strike the second transaction evidence and a motion to reconsider admission of the remaining similar transaction evidence owing to contradictory evidence which had been uncovered. Defendant was permitted to present this evidence in an offer of proof, after which the trial court again ruled that the transactions were similar enough to the circumstances underlying the crime charged to warrant their admission as evidence of defendant’s modus operandi.
A.
Defendant contends that the trial court erred when it relied upon offers of proof to determine, by a preponderance of the evidence, that defendant committed a crime in the second transaction and that he committed the third homicide. He specifically contends that the trial court was obligated to hold an evidentiary hearing to address these issues. We disagree.
When determining preliminary questions concerning the admissibility of other crime evidence, the trial court is required to consider all of the evidence in the case and apply the preponderance of the evidence standard to decide whether it is more likely than not that the other crime occurred and that the defendant committed the crime. People v. Garner, 806 P.2d 366 (Colo.1991); CRE 104(a). The trial court possesses the discretion to make this determination in any reasonable manner. See Crim.P. 12.
The record reflects that the trial court gave each party the opportunity to present all of the evidence in the case in offers of proof and that the trial court considered all of the evidence. The record also establishes that the trial court admitted the other crime evidence after making the requisite findings pursuant to People v. Garner, supra and People v. Spoto, 795 P.2d 1314 (Colo.1990). Under these circumstances, we conclude that its determination by review of offers of proof was not an abuse of discretion.
B.
Defendant also challenges the admission of the second transaction evidence on the basis that it is remote in time and is not distinctively or sufficiently similar to the. crime charged to justify its admission. We disagree.
CRE 404(a) precludes the admission of evidence of the accused’s character for the purpose of proving that he acted in conformity therewith. However, relevant evidence that the accused committed a similar crime may be admissible for purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b).
Before admitting such evidence for the limited purposes permitted by CRE 404(b), the trial court must be satisfied by a preponderance of the evidence that: (1) the evidence relates to a material fact; (2) the evidence is logically relevant and tends to make the existence of the material fact more or less probable than it would be without the evidence; (3) its logical relevance is independent of the prohibited inference that defendant has a bad character; and (4) its probative value substantially outweighs the danger of unfair prejudice. People v. Garner, supra; People v. Spoto, supra.
For such evidence to be admissible, it is not essential that the crimes replicate each other. People v. Garner, supra. However, the trial court should consider the remoteness of the other crime evidence to the crime charged, see People v. Geller, 189 Colo. 338, 540 P.2d 334 (1975), and if other crime evidence is specifically introduced for the purpose of proving modus operandi, the trial court should determine whether the methods used in the similar transactions are distinctive and dissimilar from the methods generally used in such offenses. People v. Crespin, 631 P.2d 1144 (Colo.App.1981).
The trial court has substantial discretion when determining the admissibility of other crime evidence, and we will not overturn its determination absent an abuse of discretion. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).
A review of the record on appeal establishes that the trial court did not abuse its discretion in permitting the entry of the second transaction into evidence at the trial.
The totality of the evidence before the trial court established that the other crime evidence related to defendant’s identity as the perpetrator of the crime charged and to the method of its commission, both of which constitute material facts in the case.
For instance, in the first and second instances the evidence demonstrated that defendant picked up young women on East Colfax Avenue who, he presumed, were prostitutes. After driving them to a remote area in each instance, defendant sexually assaulted his victims. Each of these assaults was accompanied with or preceded by the victim’s ingestion of an intoxicant.
Although one of the women escaped strangulation after threat of death, the presence of an electrical cord with a slipknot in defendant’s vehicle is significant inasmuch as it establishes a similar and distinct method to accomplish a homicide. Finally, the remoteness of this similar transaction evidence is rendered less significant by the showing that defendant had been incarcerated during most of the intervening years. See Adrian v. People, 770 P.2d 1243 (Colo.1989).
Therefore, inasmuch as the totality of the evidence demonstrates that the other crime evidence is significant to the material issues of identity, we cannot say that the trial court erred by determining that its probative value was not substantially outweighed by the danger of unfair prejudice to the defendant.
C.
We conclude, however, that the trial court did abuse its discretion by admitting the third homicide evidence as a similar transaction.
The similar circumstances underlying this homicide and the crime at issue are confined to the facts that the two victims were young women who were murdered by strangulation, bore the effects of sexual assault, and may have been in the vicinity of East Colfax Avenue before their murders. However, there is no indication that the victim had ever acted as a prostitute. Further, her body was found clothed in Douglas County. Finally, there was no evidence, prior to the DNA testing, that the victim had ever encountered the defendant.
While limited circumstances may tend to make the existence of defendant's identity through modus operandi probable, we conclude that, in significant part, absent the testing conducted because of the intermediate and prohibited inference that the defendant has a bad character and acted in conformity therewith, there was insufficient evidence of similar modus operandi. However, we do not wish to imply that if otherwise admissible, the testing would not be admissible in a prosecution involving this homicide.
In support of the prosecution’s allegation that defendant committed the latter homicide, the trial court relied upon evidence extrapolated from DNA analysis. Although DNA evidence may be useful to show identification, it is not the type of evidence used to establish modus operandi. Thus, the remaining evidence of strangulation and sexual assault, under the totality of the circumstances here, was insufficient to establish the existence of a similar transaction by a preponderance of the evidence.
Hence, inasmuch as the evidence of this transaction necessarily implicates the bad character and propensities of the defendant, it should not have been admitted by the trial court as a similar transaction. See People v. Garner, supra; People v. Spoto, supra.
However, when viewed in light of the remaining evidence which overwhelmingly supports defendant’s conviction, we conclude that this error is harmless.
Here, defendant’s conviction was gained by properly admitted circumstantial evidence, including unchallenged results of DNA testing conducted on defendant’s blood sample and the blood sample and vaginal swabs taken from the victim, the pendant identified as victim’s which was found in defendant’s vehicle, defendant’s confession to a witness, the testimony of two witnesses placing defendant in the company of the victim on the night of the crime, and evidence of the other two similar transactions.
Under these circumstances in which overwhelming evidence independent of the erroneously admitted similar transaction evidence established defendant’s guilt, we cannot say that the error substantially influenced the verdict or impaired the fairness of the trial. See People v. Gaffney, 769 P.2d 1081 (Colo.1989); Callis v. People, 692 P.2d 1045 (Colo. 1984).
II.
Defendant next contends that the trial court abused its discretion by refusing to grant him a continuance to obtain the presence of a subpoenaed witness. We are not persuaded.
An informant who was available to testify at trial allegedly informed the subpoenaed witness that someone other than defendant had murdered the victim. However, when the informant indicated before trial that he would deny his story if called upon to testify, defense counsel subpoenaed the witness to impeach the informant’s denial at trial. When the subpoenaed witness failed to appear to testify, defendant sought a continuance, which the trial court denied.
The decision whether to grant a continuance is a matter within the sound discretion of the trial court, People v. Garcia, 690 P.2d 869 (Colo.App.1984), and we will not overturn its decision absent an abuse of discretion. People v. Staten, 746 P.2d 1362 (Colo.App.1987).
Here, defendant sought a continuance to impeach the testimony of a witness whom he had failed to call to testify. Under circumstances in which this witness’ testimony was unnecessary and speculative absent the informant’s testimony, we conclude that the trial court did not abuse its discretion when denying the continuance. See People v. Keelin, 39 Colo.App. 124, 565 P.2d 957 (1977).
III.
We also reject defendant’s contention that the trial court committed reversible error by denying his motion for continuance to interview the former counsel of an adverse witness for impeachment material.
During trial, the adverse witness waived his right to his attorney-client privilege before testifying. Defendant then moved for a continuance to interview the public defender for purposes of impeaching her former client’s credibility. The trial court denied the request when he learned that the attorney had not been subpoenaed to appear at trial.
The record here establishes that the possibility of confidences existing between the witness and his former attorney was speculative. Moreover, defendant failed to make an offer of proof establishing the manner in which counsel’s possible information would serve to impeach the witness.
When the absence of such a record is coupled with defendant’s failure to subpoena the witness, we conclude that the trial court did not abuse its discretion by denying defendant’s motion for a continuance. See People v. Dillon, 633 P.2d 504 (Colo.App.1981).
IV.
As his final contention of error, defendant urges that the trial court committed reversible error when it did not conduct a hearing to determine whether the DNA probability methods utilized by prosecution witnesses in the 1988 murder case were generally accepted by the scientific community.
In People v. Fishback, 829 P.2d 489 (Colo.App.1991) (cert, granted May 11, 1992), this court recently held that the results of DNA testing are admissible both as opinion evidence which is founded on a well-recognized scientific principle which has gained general acceptance in the particular field in which it belongs and as scientific evidence which will assist the jury in understanding the evidence or determining a fact at issue. See Frye v. United States, 293 F. 1013 (D.C.Cir.1928) and CRE 702.
Here, however, we need not determine whether this DNA evidence satisfies either the Frye test, see People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (Sup.Ct.1989), or CRE 702. The challenged DNA evidence relates solely to the similar transaction evidence the admission of which was harmless error. Accordingly, under the totality of the evidence properly admitted, we conclude that any 'error resulting from the trial court’s failure to conduct a preliminary Frye test on that evidence is likewise harmless. Crim.P. 52(a).
The judgment is affirmed.
METZGER and PLANK, JJ., concur.
The People of the State of New York, Respondent, v Nathaniel White, Appellant.
[687 NYS2d 166]
Appeal by the defendant from two judgments of the County Court, Orange County (Berry, J.), both rendered May 26, 1993, convicting him of murder in the second degree (one count under Indictment No. 92-00431 and five counts under Indictment No. 92-00491), upon jury verdicts, and imposing sentences. The appeals bring up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress statements made by him to law enforcement officials.
Ordered that the judgments are affirmed.
The hearing court properly found that the totality of the circumstances supported the conclusion that the defendant’s confessions were voluntarily made and not precipitated by psychological coercion on the part of law enforcement officials (see, People v Tarsia, 50 NY2d 1; cf, People v Yarter, 50 AD2d 1019). In addition, the defendant’s contention that the delay in his arraignment was for the sole purpose of depriving him of his right to counsel is meritless. As a general rule, “ ‘an unnecessary delay in arraignment, without more, does not cause the accused’s critical stage right to counsel to attach automatically and, absent extraordinary circumstances, a delay in arraignment is but one factor to consider in assessing the voluntariness of a confession’ ” (People v Quartieri, 171 AD2d 889, 891; People v Mosely, 135 AD2d 662, 663-664; see also, People v Hopkins, 58 NY2d 1079; People v Holland, 48 NY2d 861). The delay in the defendant’s arraignment was not designed to enable him to be questioned outside the presence of counsel, but rather was due to the defendant’s disclosure of his role in serious and multiple homicides about which the details had to be obtained and verified by the police (see, People v Beckham, 174 AD2d 748; People v Smith, 161 AD2d 817, cert denied 498 US 1100). O’Brien, J. P., Sullivan, Joy and Krausman, JJ., concur.