State v. Connor
| Citation | 156 N.H. 544,937 A.2d 928 |
| Decision Date | 14 December 2007 |
| Docket Number | No. 2006–669.,2006–669. |
| Court | Supreme Court of New Hampshire |
| Parties | The STATE of New Hampshire v. David S. CONNOR. |
Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
James T. Brooks, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, David S. Connor, appeals his convictions on three counts of arson, see RSA 634:1 (2007), following a jury trial in Superior Court (Mangones, J.). We reverse and remand.
The record supports the following. The defendant's convictions stem from three separate fires, all occurring in the early morning hours of August 19, 2004. The first fire was started at an apartment building at 295 Amherst Street in Manchester. It was later determined that the fire originated from a pickle jar containing flammable liquid, found on a shelf in a first floor community closet. Fingerprints were lifted from the jar and sent to the state forensic lab for analysis. The two additional fires occurred at 291 Manchester Street and 459 Beech Street.
At trial, Timothy Jackson, a criminalist at the state lab who was qualified as an expert in latent fingerprint analysis, testified to his identification of the fingerprints found on the pickle jar. According to his testimony, the latent fingerprint methodology utilized by the state lab follows a four-step procedure known as "ACE–V"—analysis, comparison, evaluation, and verification. Jackson testified that his opinion is formed following the analysis, comparison, and evaluation of the latent print to the known print. However, the ACE–V methodology requires an additional step, where a second technician independently analyzes, compares and evaluates the relevant fingerprints in order to verify the findings of the first technician. Following the verification of his identification, Jackson is then able to generate a report and issue his opinion.
During the State's direct examination, the defendant objected to Jackson offering his opinion without first testifying about the verification step, arguing there was insufficient foundation for his expert opinion without it. The State responded by asking several questions regarding the verification of Jackson's fingerprint identification. However, when Jackson testified about the verification process and the opinion of Lisa Corson, the verifying technician in this case, the defendant objected to each question on the grounds of hearsay. These objections were overruled.
The State concluded its direct examination of Jackson and the court recessed for lunch. Following the luncheon recess, the defendant moved to strike Jackson's entire testimony, arguing it was hearsay and also violated his right to confrontation, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The court denied the motion. On appeal, the defendant argues the trial court erred in failing to sustain his hearsay and Crawford objections.
We review a trial court's rulings on the admissibility of evidence under an unsustainable exercise of discretion standard, and reverse only if the defendant demonstrates the rulings are clearly untenable or unreasonable to the prejudice of his case. State v. Hammell, 155 N.H. 47, 48, 917 A.2d 1267 (2007). Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. N.H. R. Ev. 801(c). In general, hearsay is not admissible unless an exception to the general rule applies. N.H. R. Ev. 802. Since no exception applies in this case, and the statements were offered for their truth, the disputed statements were inadmissible hearsay.
The State first argues that Jackson's testimony about Corson's opinion was not hearsay because it was not offered for the truth of her opinion, but rather to aid the jury in evaluating the reliability of Jackson's opinion by showing his compliance with the ACE–V methodology. We do not agree. Jackson did not merely testify that all four steps of this procedure had been followed. Instead, he described the verification process, and the results of the verification conducted here. Specifically, Jackson testified that the verifying technician In addition, Jackson testified to Corson's opinion, stating that she had also determined that the latent print found on the pickle jar "[w]as, in fact, made by the left middle finger from the individual whose name appears on the fingerprint card of David Connor."
Contrary to the State's assertion, we conclude that Jackson's testimony regarding the process undertaken and Corson's ultimate opinion was offered for its truth, as distinguished from mere satisfaction of procedure. The verification process, as described by Jackson, supports our conclusion. Jackson's testimony clearly illustrates that the verification is not conducted to ensure he had followed the applicable procedures. Corson did not simply check that the equipment or procedure used by Jackson was proper or that Jackson employed the correct number of comparison points in making his determination. Rather, it is clear that her task was to affirm Jackson's identification by undertaking an independent analysis, comparison and evaluation of the fingerprint, and ultimately forming her own opinion. By its very nature, the purpose of this verification, as described by Jackson, lies in the truth of Corson's opinion, that is, that her independent ACE procedure resulted in the same conclusion, thus corroborating Jackson's opinion. See Simpkins v. Snow, 139 N.H. 735, 737, 661 A.2d 772 (1995) (). Jackson's testimony relating to the verification process and Corson's independent opinion extends well beyond establishing Jackson's compliance with procedure. Under these circumstances, this evidence constitutes inadmissible hearsay unless it falls under an exception to the rule.
The State argues Jackson's testimony is admissible under Rule 703 because Jackson relied upon Corson's opinion in forming his own. We disagree. New Hampshire Rule of Evidence 703 provides that facts or data upon which an expert bases his opinion need not be admissible if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. See State v. Fernandez, 152 N.H. 233, 244, 876 A.2d 221 (2005). Here, there is no evidence that Jackson relied upon Corson's verification as a basis for his opinion. In fact, Jackson testified that his analysis was complete, and his opinion formed, prior to Corson's verification, but that he could not release this determination until after it had been verified. Thus, contrary to the State's assertion, Jackson did not rely upon Corson's verification as a basis for his opinion; it was simply a necessary prerequisite to the release of his already formed opinion.
The Illinois Appellate Court addressed a similar issue in Kim v. Nazarian, 216 Ill.App.3d 818, 159 Ill.Dec. 758, 576 N.E.2d 427 (1991). Kim concerned a medical malpractice action involving the failure of a radiologist to properly diagnose an illness based upon his review of the patient's X-rays. Id. at 429. The trial court allowed two defense experts to testify, over the plaintiff's objection, to the results of their consultations with colleagues regarding the X-rays. Id. at 431–33. Both experts admitted to forming an opinion prior to distributing the X-ray films to colleagues. Id. at 431, 432.
On appeal after a defendant's verdict, the court held that the verification testimony was not permissible under Rule 703, concluding, "If the expert's colleague merely corroborates the opinion independently arrived at by the expert, such corroboration might reinforce the expert's confidence in the opinion; the corroborative opinion, however, is not the basis of the expert's opinion." Id. at 434. It further stated that Rule 703 does not allow "an expert's testimony to simply parrot the corroborative opinions solicited from nontestifying colleagues." Id. This rationale is equally applicable here. Jackson's testimony proves he did not rely upon Corson's opinion in forming his own. Rather, Corson's verification simply corroborated what Jackson had already determined to be an identification of the defendant's fingerprint. See Wilkie v. State, 715 P.2d 1199, 1204 (Alaska Ct.App.1986) (). Because Jackson did not rely upon Corson's opinion in forming his opinion, Rule 703 is not applicable.
We acknowledge that some jurisdictions have held Rule 703 applicable under these circumstances, finding that the testifying expert's opinion is not final until verified and, therefore, the expert relies upon the verification in this sense. See State v. Jones, 322 N.C. 406, 368 S.E.2d 844, 848 (1988). In Jones, a fingerprint expert utilizing a methodology similar to ACE–V testified to the verification by a second technician performed in that case. Id. at 846. On appeal, the State argued this testimony was admissible under Rule 703. Id. The Jones Court agreed, holding that the other examiner's verification formed a basis for the expert's opinion. Id. at 848. It explained:
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