People v. Williams

• Citation: 60 Cal.App.5th 191,274 Cal.Rptr.3d 242
• Decision Date: 26 January 2021
• Docket Number: A157283
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Malik WILLIAMS, Defendant and Appellant.

60 Cal.App.5th 191

274 Cal.Rptr.3d 242

The PEOPLE, Plaintiff and Respondent,

v.Malik WILLIAMS, Defendant and Appellant.

A157283

Court of Appeal, First District, Division 3, California.

Filed January 26, 2021

Office of Attorney General, Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General, for Plaintiff and Respondent.

First District Appellate Project, Jonathan Soglin, San Francisco, Lauren Dodge, and Deborah Rodriguez, for Defendant and Appellant.

Petrou, J. Defendant Malik Williams appeals from a judgment after a jury found him guilty of felony burglary of a home. The entire case against defendant was based upon latent fingerprints found at the crime scene and identified as a match to those of defendant. No witness identified defendant, there was no other evidence of defendant having been on the scene, defendant was not found to own a car consistent with the getaway car, and defendant was never found to be in possession or otherwise connected with items stolen from the home.

Defendant contends that the trial court committed prejudicial misconduct during the questioning of the prosecution's fingerprint expert witness by repeatedly interrupting the defense's cross-examination to cut off responses or ask its own questions and then, after redirect, asking a series of questions implying that the defense could have, but failed to, hire its own expert. For the reasons set forth below, we conclude that the trial court improperly aligned itself with the prosecutor in the minds of the jury by the manner and content of his questioning of the fingerprint expert, and that the questioning constituted prejudicial misconduct that warrants reversal.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with one count of felony burglary under Penal Code section 459.¹ The information alleged that defendant had entered "an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by M.T., with the intent to commit larceny and any felony."² Defendant was represented at trial by an assistant public defender.

M.T. testified at trial as follows. M.T. drove home from work on March 30, 2016 to find the back door of his house open and two men walking in the alley next to his house. He pursued the men in his vehicle but lost sight of them as they ran and got into a red Mustang. M.T. identified them as two black men, but "didn't really get a great look at them" and could only see their silhouettes as the sun was in his face. He called the police and then returned home to surveil the damage – jewelry, a cash box, and video game equipment had been stolen. M.T. had locked the back door when leaving his house, and concluded that the point of entry was his window as it had been pried open and the window lock was broken.

The police officer who responded to the scene testified as follows. He was able to lift fingerprints from the broken window and booked them into evidence. A fingerprint analyst then compared those latent fingerprints with defendant's fingerprints taken from an Automated Fingerprint Identification System (AFIS) report generated when defendant was arrested in 2014. The AFIS report was admitted into evidence. The officer testified that defendant's address as listed in the AFIS report was 0.3 miles from M.T.’s house. There was no evidence presented as to whether that was defendant's address on or about the time of the burglary.

Thereafter, the officer showed M.T. a photograph of defendant, but M.T. could not identify defendant as one of the two men he saw in the alley.

Defendant's home was not searched for the stolen property, and none of the property was otherwise located in defendant's possession. Finally, defendant did not have a red Mustang registered in his name.

In sum, there was no evidence tying defendant to the burglary other than the fingerprint evidence.

A. Evidence Code Section 402 Hearing

One of the prosecution's proposed trial witnesses was Department of Justice (DOJ) latent print analyst Vivian Zhang, who was to testify regarding her comparison of the latent fingerprints recovered from the broken window to defendant's known fingerprints. Defendant moved to preclude or limit the proposed testimony on the grounds that fingerprint analysis does not pass muster under Frye v. United States (D.C. Cir. 1923) 293 F. 1013 and People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, and requested a hearing under Evidence Code section 402 (402 hearing).³

At the 402 hearing, and before Zhang testified, the trial judge expressed dissatisfaction regarding defense counsel's failure to retain an expert witness: "So, we are here on the morning of trial, you're asserting this, and you're not backing it up with the traditional means by which attorneys come in and present evidence on which the Court can make such findings and that is expert testimony." The judge continued: "If she's going to offer bad science, that's why you bring in scientists to counter it. But apparently you're not doing that."

After Zhang testified regarding her analysis and her understanding of the error rates associated with fingerprint analysis, the trial judge denied defendant's motion to exclude or limit her testimony at trial. In so doing, the trial judge shared its views that the Public Defender's office was providing inadequate representation as a matter of course: "[T]his is just not how you should operate here. I am struggling with whether or not -- I have complained in this courtroom several times over the last month whether or not defendants are getting fair trials or not because of a lack on the part of your office to adequately resource cases. I'm struggling here now because it seems to me that everything that you are trying to do here, if you are, is one of two things. [¶] One, either you're inadequately resourced and didn't spend the money to hire your own expert [to] flesh these things out. Or secondly is just smoke and mirrors on day two of trial. At this point I'm not finding you're going anywhere near a basis for me to preclude this witness from testifying or to limit her testimony."

B. Trial Testimony of Fingerprint Expert Zhang

Zhang testified on direct examination that she received the latent fingerprints lifted from the broken window, scanned them into her computer system, and then conducted a search to compare the latent fingerprints to known fingerprints using the automatic latent print system (ALPS) database. She set the parameters of her search to yield 100 results, which returned results automatically ranked by strength of the comparison; defendant's known fingerprints were ranked as the first result. She then analyzed the latent fingerprints visually with a magnifying glass, compared them with defendant's known fingerprints, and determined there were sufficient points of commonality to conclude they were a match. There were sixteen points of commonality, but only eight were needed to make a match under DOJ policy. Zhang also testified that she was not aware of defendant's address when she conducted her comparison of the fingerprints. She did not know the error rate associated with fingerprint analysis, but stated that she had never made an erroneous identification. She further stated that her conclusions were always verified by a second examiner.

On cross-examination, Zhang confirmed she only reviewed defendant's known fingerprints, and not any of the other 99 results from the database search. The trial judge interjected to ask whether the system keeps a record of those other 99 results, and Zhang replied it is kept electronically only for three days; she had not printed it out. When defense counsel asked if she had even opened the files of the other results, Zhang did not have the chance to answer before the trial judge responded: "She has said a couple different ways now she thought they got a positive finding on the first one and she stopped looking at the other images after that."

Zhang testified, in response to defense counsel's questions, that her written report did not document her visual comparison of the fingerprints, but rather only her final conclusion that the fingerprints contained sufficient points of commonality. When asked how a second evaluator could verify her conclusion if only the conclusion, and not her actual analysis, was in the report, the trial judge made a sua sponte objection: "That's argumentative and speculative. She didn't document it." When Zhang was questioned about not documenting the reasoning for her conclusions, the trial judge responded: "That was argumentative." After Zhang testified that the second evaluator does not see the commonality markers that she identifies to make a fingerprint match, the trial judge asked Zhang: "So the person who verifies the fingerprint, do they look at the fingerprint?" When Zhang answered yes, the trial judge asked: "They do the same thing you do?" When Zhang answered yes again, the trial judge stated: "So both of you looking at the fingerprint, that is the primary basis for both of you to opine whether or not there's a match?" Zhang then testified, in response to questions from defense counsel, that the second evaluator sees her conclusion before verifying that conclusion; in other words, the second evaluation is not blind. The trial judge again interjected, this time to ask Zhang: "But everyone's looking at the fingerprint? You look at a fingerprint, you make an opinion?" Zhang answered yes.

Zhang was questioned by defense counsel regarding whether there were any studies regarding points of commonality between fingerprints. She was unaware of any study that determined how many sets of fingerprints have eight points in common, and was then asked if she knew whether any two people's fingerprints share eight points in common. The trial judge made a sua...