Burnett v. State

• Citation: 815 N.E.2d 201
• Decision Date: 28 September 2004
• Docket Number: No. 02A04-0404-CR-221.,02A04-0404-CR-221.
• Parties: Daryl BURNETT, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

815 N.E.2d 201

Daryl BURNETT, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A04-0404-CR-221.

Court of Appeals of Indiana.

September 28, 2004.

P. Stephen Miller, Fort Wayne, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Daryl Burnett, Jr., appeals his convictions, following a jury trial, for Kidnapping, a Class A felony, and Robbery, as a Class B felony. Burnett presents two issues for review:

1. Whether the trial court abused its discretion under Indiana Evidence Rule 702 when it allowed the State's fingerprint expert to testify as an expert at trial.

2. Whether the State presented sufficient evidence to sustain Burnett's convictions.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 6, 2003, an African American male approached Vicki Quilhot as she was getting out of her vehicle in the parking lot of the Glenbrook Mall in Fort Wayne. The perpetrator ordered Quilhot to get back into her car and showed her his gun. He then sat in the back seat directly behind Quilhot and adjusted the rear-view mirror so that she could not see him. The man told Quilhot that he wanted $500 and went through her purse. He took $250 in cash out of the purse and then told Quilhot that he would kill her if she did not give him more money.

Next, the man gave Quilhot her checkbook and had her write two checks, one for $250 and another for $500. He then ordered her to drive to Bank One and cash the $500 check. At some point, the man moved into the front passenger seat. En route to the bank, the man reclined the front seat and ordered Quilhot to drive in the drive-through lane farthest from the building. After she cashed the check at the drive-through window, Quilhot drove back to the mall parking lot, where the man searched her trunk and then ordered her to walk toward the J.C. Penney store. Quilhot complied and asked the first person she saw to call the police.

Quilhot described the perpetrator as a small, young, African American male with no facial hair who had a small black gun. A Fort Wayne police officer prepared a six-person photograph array, but Quilhot could not make a positive identification. She did point to one man whom she thought "might be" the perpetrator, Transcript at 190, but that man was not Burnett.¹

During their investigation, police officers lifted a partial latent fingerprint from the rear-view mirror of Quilhot's vehicle. At trial, Eric Black, a latent fingerprint examiner with the Fort Wayne Police Department, testified, over Burnett's objection, that the partial fingerprint lifted from Quilhot's vehicle matched Burnett's fingerprint. The fingerprint evidence was the only evidence at trial that linked Burnett to the crime. The jury found Burnett guilty as charged, and the trial court sentenced him to a total term of thirty years. Burnett now appeals.

DISCUSSION AND DECISION

Issue One: Fingerprint Evidence

Burnett asserts that the trial court abused its discretion when it allowed Black to give his opinion that Burnett's fingerprint matched the partial latent print that police found on Quilhot's rear-view mirror. Specifically, Burnett contends, "Not only did Black lack the credentials and experience to be deemed an expert, but there was a complete failure to establish the reliability of the methodology used to properly compare known and unknown fingerprints." Brief of Appellant at 7 (footnote omitted). We address those arguments in turn.

A trial court has broad discretion in ruling on the admissibility of evidence, and absent an abuse of discretion, we will not disturb the trial court's decision. Schmid v. State, 804 N.E.2d 174, 181 (Ind.Ct.App.2004), trans. denied. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Further, a claim of error in the admission or exclusion of evidence will not prevail on appeal unless a substantial right of the party is affected. Id.

A. Qualified Expert under Rule 702(a)

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Ind. Evid. R. 702(a). Our supreme court has stated, "Under this rule, a witness may be qualified as an expert by virtue of `knowledge, skill, experience, training, or education.' "Kubsch v. State, 784 N.E.2d 905, 921 (Ind.2003) (quoting Evid. R. 702). And only one characteristic is necessary to qualify an individual as an expert. Id. As such, a witness may qualify as an expert on the basis of practical experience alone. Id. It is within the trial court's sound discretion to decide whether a person qualifies as an expert witness. Id. On appeal, we will not substitute our judgment for that of the trial court. See id.

Here, Black testified that he was currently employed with the Fort Wayne Police Department in the Police Laboratory as a full-time latent fingerprint examiner. Black stated that he had held that position for "a little over two years." Transcript at 266. In response to the State's question regarding what has prepared him for his current position as a latent fingerprint examiner, Black stated in relevant part:

Prior to coming to the laboratory in 2001, I was a commissioned police office [r] for the Fort Wayne Police Department for twenty years. The last six years of that I spent as a crime scene manager, as a Sergeant in the crime scene management division. I was certified as a senior crime scene analyst. I'm certified as a medical death investigator for the State of Indiana.... The other training I had when I came into the laboratory was such that it was a two [-]year training program. For the first year I dealt with classification and the filing of fingerprints. I looked at a lot of fingerprints, studied them, ridge detail, forscopy (phonetic), things like that. I studied powdering and lifting of fingerprints[,] [c]hemical methods of developing fingerprints[,] and then in the second year I went into a supervised probation of my work, working in the laboratory with two ... latent print examiners.

Id. at 266-67. In addition, Black testified that he has attended various schools and conferences regarding fingerprints, including the following: three annual conferences of the International Association for Identification ("IAI"); a course in basic fingerprint identification through the Bureau of Criminal Identification in Ohio; a course in chemical processing of fingerprints through the Public Agency Training Council; and a course in Advanced Latent Fingerprint Procedures through IAI in Battlecreek, Michigan. Black also stated that he has testified in court as an expert in fingerprint comparison on one previous occasion.

At that point, the State moved the trial court to certify Black as an expert in fingerprints and fingerprint identification. Burnett's counsel sought and received permission to ask preliminary questions of Black, during which he established in relevant part that: (1) Black was not certified as a latent fingerprint examiner because he had not read certain books necessary to take the examination, nor had he been in the field for the requisite period of time to sit for the examination; and (2) during the previous trial in which he testified as a fingerprint expert, he testified that there were no fingerprints on a weapon.

Additionally, as we discuss more fully in subsection B, infra, Burnett's counsel asked Black questions about the methodology he used to identify the fingerprint in this case, namely, the ACE-V method, which is an acronym for "analysis, comparison, evaluate, and verify." Transcript at 304. Specifically, Black stated that he learned the ACE-V method during the courses he took from the Bureau of Criminal Identification in Ohio and the Advanced Latent Fingerprint Procedures course in Michigan. But Black did not know whether the Federal Bureau of Investigation utilizes the ACE-V method, nor did he know the error rate for the ACE-V method. Burnett argued that Black was not a qualified expert, and the trial court disagreed. In particular, the trial court certified Black as an expert and explained its ruling as follows:

Alright. I'll find that based upon his extensive experience and broad based training, including two specialized trainings on identification of fingerprints, together with a number of other educational programs that would supplement that effort to identify fingerprints, that is ... his training and experience in collecting fingerprints, classifying fingerprints all tend to supplement the ultimate issue of identification, in spite of great efforts that counsel made during cross[-examination] of the witness to discount those are all necessary supplements to his training and experience such that he is entitled to testify as an expert.

Transcript at 306-07.

To support his assertion that the trial court abused its discretion when it certified Black as an expert, Burnett focuses primarily on testimony he elicited from Black while his attorney asked preliminary questions at trial. For example, he claims the trial court erred when it certified Black as an expert because: (1) Black is not a certified latent fingerprint examiner; (2) when Black previously testified as a fingerprint expert, he was not required to identify or compare prints; and (3) Black could not answer certain questions about the ACE-V methodology. But the trial court heard all of that evidence and determined that based on his experience and training, Black was a qualified expert in fingerprint identification. Again, we will not substitute our judgment for that of the trial court on this matter of discretion. See...