Hutt v. State, 964

• Decision Date: 01 September 1986
• Docket Number: No. 964,964
• Parties: William Henry HUTT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 711

70 Md.App. 711

523 A.2d 643

William Henry HUTT v. STATE of Maryland.

No. 964, Sept. Term, 1986.

Court of Special Appeals of Maryland.

April 10, 1987.

Laurie I. Mikva, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curren, Jr., Atty. Gen., Baltimore, Richard D. Warren, State's Atty. for Wicomico County, Sampson G. Vincent, Asst State's Atty. for Wicomico County, on the brief), Salisbury, for appellee.

Submitted before WILNER, GARRITY and ROBERT M. BELL, JJ.

WILNER, Judge.

The Circuit Court for Wicomico County, sitting without a jury, convicted appellant of three counts of daytime housebreaking and three counts of theft. These convictions rested upon a finding that, in company with one Jerry Adkins, appellant had broken into the homes of Marie Allen and Madge Mills on the afternoon of January 12, 1986; that he had broken into the home of David Blades on the afternoon of January 13; and that he had stolen certain property from each of those homes. Appellant never contested that the homes had been burglarized or that property had been taken. His defense was that he did not commit those acts.

The evidence against appellant, who was tried jointly with Mr. Adkins, consisted primarily of (1) testimony that, on January 14, 1986, he was in possession of property taken from the Allen home two days earlier, which he offered to give or sell to one Linda Jarman, (2) a statement given by appellant to the police, admitting that he had participated with Adkins in the Allen break-in, and (3) testimony and exhibits concerning shoeprints found at the Allen, Mills, and Blades properties as well as at the home of Mr. Adkins's parents, where appellant and Adkins had been seen around noon on January 13 and whose garage was broken into at about the same time. Appellant contends in this appeal that:

"I. The court below erred in admitting shoeprint evidence against appellant.

II. The evidence is insufficient to sustain appellant's convictions for daytime housebreaking of the Blades and Mills residences.

III. The evidence was insufficient to sustain appellant's convictions for theft of property worth less than $300.00."

Finding no reversible error, we shall affirm.

(1) Shoeprint Evidence

The shoeprint evidence was a bit confusing, but essentially it was as follows. Appellant was arrested on January 15, 1986. At the time, he was wearing workboots, which were eventually taken from him and offered into evidence. The boots had cleated soles. Adkins was arrested a day earlier--January 14. The police recovered from his residence a tennis shoe which also was placed into evidence. It had a herringbone print.

A number of police officers investigated the three housebreakings and the garage breaking at the home of Adkins's parents; most of them described two types of shoeprints they observed in the respective vicinities--one a herringbone print and one a workboot print with a cleat-type pattern around the outer edge. Photographs and a cast were made of the prints found at the Allen home; photographs were made of the prints found at the Adkins home; and a sketch was made of prints found at the Blades home. Over appellant's objection, the cast and the photographs were admitted into evidence; the sketch (State's Exhibit 19) is marked as an exhibit, but, although there was testimony concerning it, the transcript does not reflect its actual admission.

Corporal White, of the State Police, investigated the break-ins at all four locations (the three homes and the garage of Adkins' parents). Without objection, he testified that, "from a visual inspection," the workboot-type print that he observed at the Mills property was "identical to the one which I saw up there at the Allen residence" and that "[b]ased [o]n my visual inspection," the boot-type print he observed at the Adkins garage "appeared to be identical with those I found at the Allen residence ... and similar to the bootprint that was found at the Mills residence." Trooper Ferguson investigated the Mills and Allen break-ins. Without objection, he testified that a herringbone footprint that he observed at the Allen residence "was the same kind of design I had seen at the [Mills] residence."

There was no evidence that the prints observed at any of these locations--either the herringbone or the cleated workboot--were unique. Nor was there any expert testimony comparing any of the photographs or the cast to the boots appellant was wearing at the time of his arrest, and therein lies appellant's first complaint. The complaint is in two parts: he contends, first, that expert testimony is required in order to establish a comparison between prints found at the scene and his shoes, and, second, that, in any event, comparison evidence is not admissible unless there is something unique about the print--something to distinguish it from prints that could be made from other shoes of the same brand or type.

We start our consideration of this complaint with the general observation that "the correspondence of footprints found in connection with a crime with the print made by the shoe of the accused, is admissible in evidence to identify the accused as the guilty person." Graham v. State, 239 Md. 521, 529, 212 A.2d 287 (1965); Palmer v. State, 10 Md.App. 152, 268 A.2d 582 (1970).

As to the first prong of appellant's argument, the general rule seems to be that expert testimony is not necessary in order to establish this correspondence--that "lay opinion" will suffice. See State v. Walker, 319 N.W.2d 414 (Minn.1982); State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981); D'Antignac v. State, 238 Ga. 437, 233 S.E.2d 206 (1977); Johnson v. State, 177 Ind.App. 501, 380 N.E.2d 566 (1978); State v. Drake, 298 S.W.2d 374 (Mo.1957); State v. Cullen, 591 S.W.2d 49 (Mo.App.1979); Irvin v. State, 66 So.2d 288 (Fla.1953), cert. denied 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419 (1954); White v. State, 375 So.2d 622 (Fla.Dist.App.1979); People v. Lomas, 92 Ill.App.3d 957, 48 Ill.Dec. 377, 416 N.E.2d 408 (1981); State v. Hairston, 60 Ohio App.2d 220, 396 N.E.2d 773 (1977); State v. Curry, 103 Idaho 332, 647 P.2d 788 (Ct.App.1982); Annot., Footprints As Evidence, 31 A.L.R. 204 (1924); Annot., Footprints As Evidence, 35 A.L.R.2d 856, 881 et seq. (1954); 3 Wharton's Criminal Evidence § 610, at 181-82 (13th ed. 1973). We agree with that view. As the Hairston Court indicated, shoeprint patterns are often "readily recognizable and well within the capabilities of a lay witness to observe. No detailed measurements, no subtle analysis or scientific determination is needed." State v. Hairston, supra, 396 N.E.2d at 775. When, as here, there is both physical evidence of the print, such as a photograph or cast, and the shoe itself, the trier of fact is ordinarily as capable as any witness of examining the evidence and noting any similarities or dissimilarities.

The second prong--the requirement of uniqueness--is, to some extent, subsumed in the first, but it has an independent quality that has been addressed separately. It relates to the nature and quality of the evidence itself rather than to the expertise of the person making the comparison. Where the evidence is offered to show criminal agency--that the defendant was at the scene of the crime--will a general comparison of the print with the defendant's shoe suffice, or must the State show some uniqueness so as to exclude the possibility that the print could have been made by someone else wearing a similar kind of shoe?

That very possibility was present in McDonnell v. United States, 455 F.2d 91 (8th Cir.1972), and it led the Court into articulating a somewhat strict standard for admitting shoeprint evidence. The defendant was accused of bank robbery. The primary evidence linking him with the robbery came from one Danny Ward, who claimed to be an accomplice and who clearly was in the bank at the time of the robbery. Photographs of footprints found at the scene were admitted into evidence, as were the shoes allegedly worn by both Ward and McDonnell. Ward's shoes were "almost identical to the shoes of McDonnell"; an FBI report indicated that the prints shown in the photographs "were the same design as the shoes taken from both Danny Ward and McDonnell" and that "it was not possible to definitely associate the shoe prints with [McDonnell's] shoes." Id. at 94. On that record, the appellate Court concluded:

"It is competent to present to the jury the character of footprints and shoes only where it has been established that the footprints and shoes are distinctive enough to afford reliable comparison.... Such comparison is essential to show a connection between the defendant and the prints, thereby providing the relevancy required for admission into evidence. Here, such proof was not offered, and in light of the additional distinct possibility of a similar shoe making the print, it was error to admit McDonnell's shoes and the photographs of the footprints into evidence."

Id. at 95 (citations omitted; emphasis added).

Appellant seizes upon the emphasized language in McDonnell and similar language in some other cases as support for the notion that some uniqueness in the print must be shown before this kind of evidence can be admitted to prove criminal agency. We think that he reads too much into that type of language, however. A careful reading of McDonnell, the cases the McDonnell Court cited for that statement, and other cases using similar language reveals a concern not over the mere lack of some unique characteristic in the print, but rather the failure of the prosecutor to establish a reasonable connection between the print and the shoe. ¹ In State v. Palmer, 230 N.C. 205, 52 S.E.2d 908, 913 (1949), the Court observed that:

"In the nature of things, evidence of shoeprints has no legitimate or logical tendency to identify an accused as the perpetrator of a...