Bond v. State Of Ind.

• Decision Date: 02 September 2010
• Docket Number: No. 71A03-0910-CR-457.,71A03-0910-CR-457.
• Parties: Darmon D. BOND, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

925 N.E.2d 773

Darmon D. BOND, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.

No. 71A03-0910-CR-457.

Court of Appeals of Indiana.

April 21, 2010.

Rehearing Denied June 29, 2010.

Transfer Denied Sept. 2, 2010.

COPYRIGHT MATERIAL OMITTED

Anthony V. Luber, South Bend, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Arturo Rodriguez, II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Darmon D. Bond appeals his convictions for Class C felony altering an original identification number and Class D felony auto theft. We hold that (I) the absence of African-Americans from the jury venire did not violate Bond's Sixth Amendment jury trial rights, (II) the admission of expert fingerprint analysis did not violate Bond's Sixth Amendment confrontation rights, even though the verifying print examiner did not testify at trial, and (III) there is sufficient evidence to sustain Bond's convictions. We affirm.

Facts and Procedural History¹

Richard Lesiuk lived in South Bend and owned a 1992 blue Plymouth Acclaim. On January 11, 2008, Lesiuk brought his car to mechanic Louis Bueno to have a new muffler installed. Bueno took the car to Rainbow Mufflers. At some point Lesiuk was informed that his car was missing from Rainbow. He reported the vehicle stolen to South Bend Police on January 14.

Two days later Officer Anthony Ieraci spotted Lesiuk's Plymouth parked outside Bond's residence. The license plate was missing, and a temporary paper tag had been placed in the rear window. Officer Ieraci checked the Vehicle Identification Number (VIN) displayed on the dashboard. The VIN did not match the car. Officer Ieraci impounded the vehicle.

Law enforcement inspected the Plymouth and found that a false VIN plate had been duct-taped underneath the dashboard panel. Police verified that both the VIN plate and the temporary paper tag had been taken from other cars.

Forensic lab technician Jillian Frick processed Lesiuk's vehicle for fingerprints. She found two prints on the duct tape used to fasten the VIN plate to the dashboard. She also lifted a print from the temporary paper tag. Frick turned her findings over to examiner Lacie Klosinski. Klosinski conducted fingerprint comparisons. She identified a print on the duct tape as Bond's right thumbprint and the print on the temporary license plate as Bond's left thumbprint.

The State charged Bond with Class C felony altering an original identification number and Class D felony auto theft. He was tried in St. Joseph Superior Court.

At trial, the jury pool contained no African-Americans. Bond moved to strike the entire venire because it did not represent a fair cross-section of the community. The trial court denied the motion. The trial court explained that the jury panel selection process was entirely random:

The procedure utilized by the Court is in accordance with the jury rules. We use a one tier system, pursuant to local rule. The names that are provided to the Court, are provided by the Indiana Judicial Center, State Court Administration, based upon the list that is provided by them. The list is then inserted into the computer, then names are randomly drawn from that list.

Every time a judge asks for a jury pool, there is no weighting of numbers of jurors who are selected from a particular area or zip code within St. Joseph County. It's done completely randomly.

That's just my Record as to how jurors are selected.

As a matter of fact, the jurors are even seated in the jury box and numbered randomly without any input by the Court.

And so the motion to strike the entire panel is denied.

Tr. p. 75.

The State called both Frick and Klosinski to testify to the results of their fingerprint analyses. Klosinski explained that fingerprint examiners use a methodology called “ACE-V,” which stands for “Analyze,” “Compare,” “Evaluate,” and “Verify”:

During the “analyze” phase, we look at the overall print as a whole, the ridge flow of the print, and decide whether that print is actually going to be of value for comparison.

During the “comparison” phase, we actually would look at three levels of detail in the print; level one, being the actual pattern, which would be an arch, loop or a whirl; level two, would be ... the ridge endings or bifurcations and their relative positions to each other or their arrangement within the friction ridge skin; and level three, is ridgeology, which is actually the shape of each individual ridge.

During the “evaluation” phase, we would make our determination of whether or not the fingerprint would be an individualization or a match.

And then during the “verification” phase, if the print was identified to be a suspect or person, that whole process would be ... the whole ACEV process would be repeated again by a second qualified examiner.

Id. at 196-97. Klosinski testified that she used the ACE-V methodology in this case. She detailed the course of her analysis and testified that Bond's fingerprints matched those found on the duct tape and paper license plate.

The State rested after Klosinski testified. Bond then moved to strike Klosinski's testimony because the examiner responsible for the “verification” phase did not appear and testify. The trial court denied the motion. The court acknowledged that forensic labs follow verification procedures, but it did not consider independent verification a condition for the admissibility of Klosinski's testimony.

The jury found Bond guilty as charged. He now appeals.

Discussion and Decision

Bond raises three issues which we reorder and restate as follows: (I) whether the absence of African-Americans from the jury pool violated his Sixth Amendment jury trial rights, (II) whether the admission of the fingerprint test results violated his Sixth Amendment confrontation rights, and (III) whether there is sufficient evidence to sustain his convictions.

I. Absence of African-American Members from the Jury Pool

Bond first argues that the absence of African-Americans from the jury venire violated his rights to an impartial jury.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The United States Supreme Court has long held that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To show a prima facie violation of the fair-cross-section requirement, the defendant must show that: (1) the group being excluded is a distinctive group in the community; (2) the representation of this group in jury pools from which juries are being selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is caused by systematic exclusion. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Berghuis v. Smith, --- U.S. ----, ----, 130 S.Ct. 1382, 1384, 176 L.Ed.2d 249 (2010); Ewing v. State, 719 N.E.2d 1221, 1226 (Ind.1999).

Here Bond offers no evidence that an underrepresentation of African-Americans in the jury venire was caused by systematic exclusion. Accordingly, he concedes that his claim cannot prevail under Duren. Appellant's Br. p. 18; see also Wilder v. State, 813 N.E.2d 788, 793 (Ind.Ct.App.2004) (holding that although African-Americans may have been underrepresented in the jury pool, the defendant's claim failed because he did not provide evidence that the selection process systematically excluded African-Americans) trans. denied.

Bond nonetheless asks us to “alter the criteria for determining whether the jury selection procedure is actually producing juries that are representative cross-sections of the community. The criterion should be that when no member of an acknowledged distinctive group is present in a jury venire that the venire be excused and another summonsed.” Appellant's Br. p. 19. “This remedy would not be available if there was a showing, using valid and recognized statistical and sampling methods, that the groupings from which jury pools are selected do include these distinctive groups, particularly racial and ethnic minorities, in numbers reasonably proportional to their presence in the community.” Id. at 19-20.

We are bound by Duren and Ewing and are not at liberty to adopt Bond's proposed standard. We are sensitive to Bond's concerns, however, for two main reasons. First, Indiana jury selection procedures have changed in recent years. The lists compiled for jury selection used to be generated at the local county level but are now created by the state Judicial Center. This migration as a practical matter makes the collection of jury-selection information more difficult for defendants who are attempting to establish their fair-cross-section prima facie cases.

Second, in other race or gender-based Constitutional jury challenges, the burden shifts more easily to the State to establish the legitimacy and neutrality of its procedures. See Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court set forth a three-step process for challenging the State's allegedly discriminatory exercise of peremptory strikes. Jeter v. State, 888 N.E.2d 1257, 1263 (Ind.2008) cert. denied, --- U.S. ----, 129 S.Ct. 645, 172 L.Ed.2d 626 (2008). The party raising the Batson challenge must first make a prima facie showing that the other party exercised a peremptory challenge on the basis of race. Id. (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). The burden then shifts to the party exercising the peremptory strike to present a race-neutral explanation for striking the juror. Id. (citing Batson, 476 U.S. at 97, 106 S.Ct. 1712). Finally, the trial court must decide whether the party making the Batson challenge...