Bird v. State

• Decision Date: 23 February 1990
• Docket Number: 3 Div. 938
• Parties: Terry BIRD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 644

594 So.2d 644

Terry BIRD v. STATE.

3 Div. 938.

Court of Criminal Appeals of Alabama.

Feb. 23, 1990.

Rehearing Denied March 30, 1990.

Jeffery C. Duffey, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Terry Bird was indicted for the capital murder of Charles Williams in violation of Ala.Code 1975, § 13A-5-40, subsection (a)(2) (murder during a robbery), (a)(4) (murder during a burglary, two counts), and (a)(14) (murder of a witness). His trial was consolidated with that of Jacob Warner. See Warner v. State, 594 So.2d 664 (Ala.Cr.App.1990). Both defendants were convicted. The trial judge accepted the recommendation of the jury and sentenced Bird to life imprisonment without the possibility of parole. Bird presents nine issues on this appeal from his conviction.

I

Although Bird is white, he alleges a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Bird claims standing to object to the alleged racial exclusion of blacks from the jury venire because co-defendant Warner is black and because Bird's wife is black, he frequently consorts with blacks, he lives in a relatively black neighborhood, and has many black relatives. Bird claims that through his associations and relationships he is, in fact, a member of the black community.

In order to establish a prima facie case of racial discrimination in the selection of a petit jury under Batson, "[t]he defendant must first prove that he is a member of a cognizable minority and that peremptory challenges were used to remove members of his race from the jury." Harrell v. State, 555 So.2d 263, 265 (Ala.1989). Nonblack defendants cannot rely on Batson to challenge the prosecutor's use of peremptory challenges to exclude black venire members from the jury. United States v. Rodriquez-Cardenas, 866 F.2d 390, 392 (11th Cir.1989); Bui v. State, 551 So.2d 1094, 1114 (Ala.Cr.App.1988), affirmed, 551 So.2d 1125 (Ala.1989); Smith v. State, 515 So.2d 149, 150 (Ala.Cr.App.1987).

In United States v. Townsley, 843 F.2d 1070, 1083-84 (8th Cir.1988), a majority of a panel of the Eighth Circuit Federal Court of Appeals held that two white defendants had standing to join in a black defendant's Batson challenge where all three defendants were tried together. On rehearing, the Court of Appeals, sitting en banc, reversed that holding and held that the two white defendants did not have standing and were not entitled to join in the black defendant's Batson challenge. United States v. Townsley, 856 F.2d 1189, 1190-91 (8th Cir.1988). On this authority, we find that the trial judge properly concluded that Bird did not have standing to raise the Batson objection. Moreover, in the companion case of Warner v. State, supra, this Court found that the prosecutor's use of peremptory challenges in this case did not violate the principles of Batson and Ex parte Branch, 526 So.2d 609 (Ala.1987).

II

We find that the trial judge did not commit error in finding that defense witness Irving Miller was not qualified as an expert on the particular type of shoeprint evidence offered in this case. This issue involves the evidentiary requirements for the admission of expert testimony regarding novel techniques in shoeprint comparison and identification.

The State suspected that three individuals were involved in this offense: defendant Bird, co-defendant Jacob Warner, and Lee Lewis, who was not indicted. An investigator made photographs of bloody shoeprints at the scene of the crime. Later, the State seized shoes from each of the three suspects.

The State sent the photographs and the shoes to Dr. Barbara Louise Robbins, a physical anthropologist at the University of North Carolina, for examination and comparison. Dr. Robbins died before she could complete her examination. Apparently, her preliminary finding was that the shoeprints found at the scene of the crime were made by Lewis.

After learning of Dr. Robbins' unavailability, defense counsel arranged to have the photographs and shoes submitted to Dr. Irving Miller. Dr. Miller was a practicing podiatrist in Atlanta, Georgia. He stated that he had four days training by the F.B.I. in footprint identification and had had "an awful lot of training in footwear," apparently acquired in his practice of podiatry in examining and treating patients. Dr. Miller testified that he had been able to "develop [his] own system of identification, or develop a logical approach to identification. * * * Well, maybe not system is the correct word, but I have developed a feel for being able to identify footwear, shoewear, shoe patterns, wear patterns, et cetera."

Dr. Miller testified that there were textbooks in the area of footwear identification, but that none of them recognized his system. He recognized the State's expert, Dr. Lovejoy, as an expert in footwear identification. Dr. Miller had taught at the F.B.I. academy on three occasions and had taught at Scotland Yard. He stated that his work was "basically" the same as that of Dr. Lovejoy and Dr. Robbins. He had not made any measurements of the feet of the three suspects, but maintained that "those accurate measurements of the foot are always reflected in the shoewear." He admitted that the acceptance of the theories of Dr. Robbins depended on "who you talked to." Dr. Miller had never testified or been qualified as an expert witness. He candidly admitted that although wear pattern analysis is recognized as an acceptable method of footprint examination, his "system" was not.

At one point Dr. Miller testified that he would not be able to testify "whether or not any of those people wore the shoe that made the print in the photograph." However, he also stated that, in his opinion, the "predominant wearers of the known shoes" were not the "predominant wearers of the unknown shoe." He could only testify to the wear pattern of the shoes he examined from Bird, Warner, and Lewis as compared to the wear pattern of the prints that were photographed at the scene of the crime. Dr. Miller stated that he examined the shoes allegedly worn by Bird, Warner, and Lewis and compared the wear marks on those shoes to the wear marks on the photographs of the shoeprints found at the scene of the crime. His conclusion was that the shoeprints found at the scene were not made by shoes normally worn by the three suspects.

The prosecution filed a motion in limine to suppress the testimony of Dr. Miller. In support of that motion, the State presented the testimony of Dr. Claude Owen Lovejoy, a professor of biological anthropology at Kent State University, Ohio. Dr. Lovejoy had examined the same shoes and photographs examined by Dr. Robbins and Dr. Miller.

Dr. Lovejoy stated that he had testified as an expert on footprints and shoeprints "at least seven times." He testified that Dr. Robbins' theories were not generally accepted in the scientific community. According to Dr. Lovejoy, the theory that Dr. Miller proposed to apply in this case, that is the taking of known shoes and the photograph of a shoeprint and determining whether or not the wearers of the known shoes wore the unknown shoe that made the print, was not a generally recognized and accepted principle in the scientific community: "To my knowledge, no one has proposed in the literature, or in a formal way, a technique by which one can take a print, a shoeprint, for which there's no known suspect shoe, and make significant conclusions about that, other than general characteristics as to its size."

Dr. Lovejoy testified at the suppression hearing that the evidence in this case was "just not sufficient" to exclude any of the three suspects from having worn the shoe that made the print. He stated that there was "no evidentiary value, in [his] opinion, as to any particular wear pattern in the evidence presented." He testified that an identification could not be made from the shoeprints without the known shoe and that he could "make an almost infinite number of hypothetical reasons why these prints appear as they do." He stated that he could not give any testimony on behalf of either the State or the defendant with any reasonable scientific certainty at all.

At the conclusion of the hearing on the admissibility of the testimony of Dr. Miller, the trial judge granted the State's motion in limine and suppressed Dr. Miller's testimony. The trial judge found that the issue in this case "borders between a scientific experiment ... and ... something in the nature of a physical comparison." The trial judge found that, under the test in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), Dr. Miller's testimony was not "deduced from a well-recognized scientific principle or theory" and his theory had not "gained general acceptance in the particular field in which it belongs."

In Alabama, the general rule is that any witness may testify to the correspondence between shoeprints or bare footprints and expert testimony is not required to make a comparison. Young v. State, 68 Ala. 569, 574-75 (1881). See also Cunningham v. State, 14 Ala.App. 1, 5-6, 69 So. 982, 984-85 (1915); Annot., 45 A.L.R.4th 1178 (1986); 43 Am.Jur.P.O.F.2d Footprint Identification 217 (1985). However, a lay witness may not positively state that a particular shoe or foot made the shoeprint or the footprint.

"The character of footprints, found where the crime is discovered, leading to or from the place of the crime, and their correspondence with the feet of the accused, or with shoes worn by him, or found in his possession, we have held, are admissible in evidence to identify him as the guilty agent. Young v. State, 68 Ala. 569. A witness may be allowed to state that he measured the tracks at the place where the crime was committed, and compared them with tracks made by defendant the next day, and they corresponded; but he will not be allowed to say that a particular shoe which he saw on defendant's foot would make...