Hicks v. Scurr, 81-1621

• Decision Date: 05 February 1982
• Docket Number: No. 81-1621,81-1621
• Parties: Gentric HICKS, Appellant, v. David SCURR, Warden of the Iowa State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 255

671 F.2d 255

Gentric HICKS, Appellant, v. David SCURR, Warden of the Iowa State Penitentiary, Appellee.

No. 81-1621.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1981.

Decided Feb. 5, 1982.

Robert Bartels, Sara Megan, argued, Iowa City, Iowa, for petitioner-appellant.

Thomas J. Miller, Atty. Gen. of Iowa, Des Moines, Iowa, Thomas D. McGrane, Asst. Atty. Gen., argued, for respondent-appellee.

Before HENLEY and ARNOLD, Circuit Judges, and HARRIS, ^* Senior District Judge.

OREN HARRIS, Senior District Judge.

Gentric Hicks was found guilty by an Iowa jury of first degree murder and received a sentence of life imprisonment. The Iowa Supreme Court affirmed the conviction on direct appeal and also affirmed the denial of post-conviction relief. State v. Hicks, 277 N.W.2d 889 (Iowa, 1979). Hicks then sought habeas corpus relief in federal court pursuant to 28 U.S.C. § 2254. The District Court for the Southern District of Iowa ¹ denied the petition. This appeal ensued.

Hicks predicates his entitlement to federal habeas corpus relief on four grounds: (1) the testimony of a prosecution witness concerning mathematical probabilities associated with fingerprint evidence and the prosecutor's use of this testimony violated his rights under the Sixth and Fourteenth Amendments; (2) the admission of testimony concerning pretrial and in-court identification violated his rights to due process; (3) the refusal to permit defense counsel to correct misleading testimony violated his right to due process; and (4) the failure of the prosecutor to disclose favorable evidence to the defense violated his right to due process. For reasons stated below, we affirm the trial court's denial of the petition for a writ of habeas corpus.

I.

Early on the morning of May 23, 1976, two black men attempted to rob the Hillcrest Motel in Fort Madison, Iowa. While one of the men, Kenneth Lawrence, waited in a car in the motel parking lot, the other man rang the office doorbell, under the pretense of renting a room, and was admitted by Lorraine Foster. After a brief conversation with Mrs. Foster, the man pulled a gun and demanded money. Mrs. Foster's husband, Jimmie, who was asleep in the adjoining apartment, was awakened by the man's voice. He grabbed a rifle, let himself out the back door and woke their son, Jerry. After instructing Jerry to call the police, Mr. Foster circled to the front of the motel where he apprehended Kenneth Lawrence.

In the meantime, the other man had pushed Mrs. Foster through the various rooms of the apartment looking for money. Upon their return to the kitchen, they encountered Jerry. The robber and Jerry scuffled and Jerry was fatally shot. The man fled.

Shortly thereafter, the sheriff and the police arrived. Mrs. Foster gave the police a description of her son's killer. Kenneth Lawrence informed Mr. Foster, and later the police, that the assailant was Willie Jefferson, the half-brother of the petitioner.

Later, on the morning of the murder, Kenneth Lawrence changed his story and stated that the petitioner, not Willie Jefferson, was the perpetrator. That same morning, Mrs. Foster, while viewing a photo display, identified the petitioner as her son's murderer.

A second pretrial identification was made eighteen days later. A physical line-up was conducted and Mrs. Foster identified the petitioner as the perpetrator.

At the trial, the prosecution relied heavily upon Mrs. Foster's pretrial and in-court identifications of the petitioner and the testimony of Kenneth Lawrence who testified pursuant to a plea agreement. Further, there was testimony by a fingerprint expert regarding latent prints found at the motel.

The petitioner testified he had been with Kenneth Lawrence but that he had consumed a large amount of alcohol and had smoked several marijuana cigarettes. He stated he had passed out and that his next memory was of awakening in the hallway of an apartment building the next morning.

II.

As heretofore stated, the petitioner's first ground to support his petition for a writ of habeas corpus deals with the admission of testimony concerning mathematical probabilities pertaining to certain fingerprint characteristics found at the murder scene and those of the petitioner. Darwin Chapman, "a criminalist" (sic), testified that he found there to be ten points of similarity between the prints of two of petitioner's fingers (the right middle and ring fingers) and a set of latent prints found in the kitchen of the motel. He also stated he found no points of dissimilarity although he was unable to make a positive identification in the "classical" sense. Mr. Chapman also noted that on the latent print of a right ring finger, there was an impression of a scar; Gentric Hicks also has a scar on the right ring finger. He states this scar was not used as one of the ten points of similarity. Chapman opined that the prints found were those of the petitioner, Gentric Hicks.

The troublesome aspect of Mr. Chapman's testimony arises in the following questions and answers:

Q. Do you have a numerical opinion as to the probabilities that these prints are that there might be another print available or another print identical that would make these impressions?

A. Yes, I do.

Q. Would you indicate to the jury what that opinion is, as a matter of an opinion, and also how you arrived at it?

A. Yes, I will. It is my opinion that the possibility of another individual having the same minutia or individual characteristics that I found in the latent fingerprints of Mr. Hicks, the chances of another individual having those, not only those same individual characteristics but the same number of them, would be one in approximately seven million.

Mr. Chapman then went on to explain the method he utilized to arrive at this figure. ² Counsel for the defendant objected to this testimony on the basis that it called for an opinion and conclusion. This objection was overruled by the state trial court.

The prosecutor utilized the one in seven million figure in his closing argument. He stated the odds were extremely high that the latent fingerprint belonged to Gentric Hicks.

Counsel for the petitioner has submitted the affidavit of Professor Johannes Ledolter which states the "factorial" method used by Mr. Chapman was not an appropriate method. He further states the correct method would yield a figure of 1 in 30,240. We, like the trial court, do not doubt the validity of Professor Ledolter's conclusions that the one in seven million figure is substantially incorrect. The admission of this probability testimony alone, however, is not per se a violation of due process.

While the petitioner's trial counsel did make an objection to the mathematical probability, it was not based upon due process grounds. This failure to object precludes federal habeas corpus relief unless the standards enunciated by the United States Supreme Court are met. Absent compliance with an applicable state contemporaneous objection rule, a state prisoner can assert alleged trial errors in a federal habeas corpus proceeding only after showing "cause" for not making a contemporaneous objection and "prejudice" from the alleged error. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). We believe this case comes within the purview of Wainwright, and hence, petitioner must demonstrate both "cause" and "prejudice" relating to the omitted objection.

We have no trouble finding the petitioner has established "cause" under the Wainwright standard. Both of his trial counsel have filed affidavits stating they did not anticipate Mr. Chapman's probability testimony and were unaware he utilized an erroneous method in computing the probability. Further, they were both unaware there was a possible due process objection to the probability testimony and the subsequent use of it. Finding the mathematical calculations complex and very technical, this Court has no problem in sustaining the trial court's decision that adequate "cause" has been demonstrated with regard to the failure to object.

Finding sufficient cause for the failure to object, the Court must next determine whether the admission and use of the fingerprint probability testimony rendered the trial so unfair as to deprive the petitioner of fundamental due process. Before federal courts are afforded jurisdiction to review these claims, alleged errors must be so egregious and so erode procedures that the fundamental fairness of the trial is affected. Batten v. Scurr, 649 F.2d 564, 571 (8th Cir. 1981). This is true of both errors in admission of evidence and prosecutorial comments. Maggitt v. Wyrick, 533 F.2d 383 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). Cobb v. Wainwright, 609 F.2d 754 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980).

In a habeas corpus action, the petitioner must establish an error which demonstrates a violation of due process. This burden is much greater than that required on direct appeal and is even greater than the showing of plain error on direct appeal. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977).

The admission of statistical evidence is sanctioned. Problems occur, however, when the statistics are used to demonstrate or prove guilt beyond a reasonable doubt. Petitioner relies heavily upon U.S. v. Massey, 594 F.2d 676, 680 (8th Cir. 1979), and People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33 (1968).

In U.S. v. Massey, supra, this Court reversed the bank robbery conviction of Massey because of the misuse of misleading mathematical odds. An expert in microscopic analysis had testified that three hairs found in a ski mask were similar to hair samples taken from Massey. The expert further stated that he had examined samples in some 2000 cases and on only two...