State v. Hutto

Decision Date08 January 1997
Docket NumberNo. 24573,24573
PartiesThe STATE, Respondent, v. Terry Lee HUTTO, Appellant. . Heard
CourtSouth Carolina Supreme Court

Lesley M. Coggiola, Assistant Appellate Defender, South Carolina Office of Appellate Defense, Columbia, for appellant.

Charles Molony Condon, Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, and Robert F. Daley, Jr., Assistant Attorney General, Columbia, and Donald V. Myers, Solicitor, Eleventh Judicial Circuit, Lexington, for respondent.

WALLER, Justice:

Appellant Terry Lee Hutto was convicted of murder, first degree burglary, and malicious injury to telegraph, telephone or electric utility system. The sole issue in this case is whether the trial judge properly admitted certain testimony of an expert witness regarding a match between a footprint found at the crime scene and Appellant's shoe. We affirm.

Two agents from South Carolina Law Enforcement Division ("SLED"), Thomas Darnell and John Christy, examined the crime scene on the night of the murder. They collected all of the evidence at the scene, including a business card, and took it to SLED. Agent Christy subsequently placed a chemical on the business card, raising a latent footprint. He then wrote out a report giving his opinion finding a match between this footprint and the sole of a shoe owned by Appellant. 1 The card then went to Agent Charles Counts, who also rendered his opinion finding a match. Agent Counts testified this was a completely independent determination. He also testified it was SLED's practice to have at least two agents separately examine evidence "to ensure the credibility of SLED by two agents and two independent experts examining the evidence and rendering an opinion." Of course, by the time he got the card the print had already been raised by Agent Christy and therefore did not need to be reprocessed.

During the course of Appellant's trial, the card was admitted into evidence. 2 Agent Christy did not testify because he was on extended medical leave. Instead, Agent Counts testified that he found a match between the print raised by Agent Christy and Appellant's shoe. He testified there was one certain procedure followed by all SLED agents when attempting to raise a latent print from a substance like the business card.

On a porous-type item such as paper or cardboard, which State's Exhibit 37 is cardboard or a piece of paper, business card, we would all treat this internationally alike. We would treat it with an inhydrant, a chemical that reacts with the amino acids. And your hands and your feet are constantly exuding perspiration. And a .15 to .5 percent of that perspiration is your amino acids. So we are looking for ridge detail exuded by the hands or the feet in order so that if their hands or feet come in contact with this particular card or anything with amino acids on it, when we treat it with an inhydrant the inhydrant dies [sic] the amino acids a deep purple where it makes it visible to the human eye.

Agent Counts testified that every SLED agent is trained to do this testing.

Appellant stipulated Agent Counts was an expert in footwear examination. However, Appellant argues Agent Counts's testimony violated his right to confront evidence against him 3 because Counts did not process the card himself and thus his opinion was based on "indirect hearsay." We disagree.

At the outset, we note it is well-settled that an exception to the rule prohibiting hearsay exists when it is used by an expert. 4 An expert may base his opinion on hearsay evidence so long as it is of a type reasonably relied upon by other experts in the field. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995) (psychiatrist who never examined defendant may base opinion on reports prepared by persons who did). 5 See also 31A Am.Jur.2d Expert and Opinion Evidence § 85 (1989) (type of information on which experts may rely is that on which they would customarily rely in the day to day decisions of their profession); 32 C.J.S. Evidence § 546(63) (1964) ("witness may base his judgment in part on the result of experiments made by himself or by others").

However, merely because testimony does not violate applicable rules of evidence does not necessarily mean it meets constitutional standards. "Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause's prohibitions with the general rule prohibiting the admission of hearsay statements." Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651 (1990). See also United States v. Williams, 447 F.2d 1285, 1288 (5th Cir.1971) (en banc), cert. denied 405 U.S. 954, 92 S.Ct. 1168, 31 L.Ed.2d 231 (1972) (Supreme Court's decision in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), made it clear that "the right of confrontation and the rule against hearsay present two distinct, albeit related questions"); Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982) (values of hearsay rule and Confrontation Clause are not identical; admission of certain evidence may be barred by one and not the other). In Ohio v. Roberts 6 the Supreme Court addressed the relationship between the Confrontation Clause and the hearsay rule with its exceptions:

The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.

448 U.S. at 62-63; 100 S.Ct. at 2537, 65 L.Ed.2d at 605-06 (internal citations omitted). Roberts recognized that an individual's right to confrontation is so important that "the absence of proper confrontation at trial calls into question the ultimate integrity of the fact-finding process." Id. at 64, 100 S.Ct. at 2538, 65 L.Ed.2d at 606. However, it also noted that "competing interests ... may warrant dispensing with confrontation at trial." Id. "Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings." Id. at 64, 100 S.Ct. at 2538, 65 L.Ed.2d at 607.

Roberts set out a general test to be used in weighing these competing interests. First, it found that when a hearsay declarant is not present at trial the Confrontation Clause "normally requires a showing that he is unavailable." Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. It emphasized, however, that unavailability is not always required, such as when "the utility of trial confrontation [is] so remote that it [would] not require the prosecution to produce a seemingly available witness." Id. at 65, 100 S.Ct. at 2538, 65 L.Ed.2d at 607 (n. 7). 7 Second, the hearsay statement must bear adequate indicia of reliability. Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. Regarding this element, the Court stated, "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Id.

Cases following in the wake of Roberts show that "[t]he confrontation clause of the sixth amendment to the Constitution does not forbid reliance at trial by experts upon material prepared by others." United States v. Smith, 869 F.2d 348, 355 (7th Cir.1989). For example, in Reardon v. Manson the Second Circuit Court of Appeals upheld the admission of an expert's drug identification testimony although it was based on tests run by others. Reardon v. Manson, 806 F.2d 39 (2nd Cir.1986), cert. denied sub nom. Reardon v. Lopes, 481 U.S. 1020, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987). In so doing the Court noted that the tests run by others were primarily "mechanically objective in nature," i.e. they did not require any qualitative analysis on which the expert was then relying. Id. at 41. It also rejected the argument that a showing of unavailability was required before the testimony could be admitted. Citing Roberts, it found that "[t]he confrontation clause is not necessarily violated by the prosecution's failure to produce a hearsay declarant for cross-examination at trial where the utility of trial confrontation would be remote and of little value to either the jury or the defendant." Id. (internal quotations omitted). Here, it based its finding of remote utility on the fact that the people who ran the tests would be most likely testifying from their notes and would not have an independent recollection of the tests performed. "Any testimony from the chemists bearing on the likelihood of error in the tests necessarily would have involved broad statements as to general practices and probabilities within the laboratory, matters concerning which [the expert] himself was well qualified to testify." Id. It also noted that the likelihood of a chemist admitting having made a mistake or having lied to the expert about results was very remote. Id. at 42. See also Minner v. Kerby, 30 F.3d 1311 (10th Cir.1994) (following Reardon in finding a showing of unavailability is not required).

Finally, the Court in Reardon noted that the defendants could have subpoenaed the chemists as their own witnesses. "[A]t least in those borderline cases where the likely utility of producing the witness is remote, the Sixth Amendment's guarantee of an opportunity for effective cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness." 806 F.2d at 42....

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