State v. Richard Langill.

• Decision Date: 30 November 2010
• Docket Number: No. 2009–373.,2009–373.
• Citation: 13 A.3d 171,161 N.H. 218
• Parties: The STATE of New Hampshirev.Richard LANGILL.
• Court: New Hampshire Supreme Court

161 N.H. 218

13 A.3d 171

The STATE of New Hampshire

v.Richard LANGILL.

No. 2009–373.

Supreme Court of New Hampshire.

Argued: June 10, 2010.Opinion Issued: Nov. 30, 2010.

Michael A. Delaney, attorney general (Jacqueline J. Rompre, assistant attorney general, on the brief and orally), for the State.Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.BRODERICK, C.J.

The defendant, Richard Langill, appeals his conviction on one count of burglary, RSA 635:1 (2007). This is the second time that this case has been before us. See State v. Langill, 157 N.H. 77, 945 A.2d 1 (2008). In the present appeal, the defendant contends that the Superior Court ( Lewis, J.) erred when it: (1) denied his motion to strike the testimony of the State's expert witness identifying the defendant's fingerprint; (2) admitted into evidence a photograph of the latent fingerprint; and (3) denied his motion to dismiss. We reverse and remand.

I

The record supports the following facts. Karen Katz lived with her two children in a first-floor apartment with a balcony. She had stored $1,200, including ten $100 bills, in a locked box in the top drawer of her bedroom dresser. When she left her home on the morning of March 25, 2004, she took $20 from her lockbox. She returned home that afternoon and discovered that all of the money in her lockbox was missing. In addition, $5 was missing from a plastic bottle that her daughter used as a bank. There was no evidence of forced entry into the apartment. The apartment manager testified that she had misplaced a set of master keys to the apartment building sometime during the summer of 2003.

At the time of the burglary, the defendant lived in an apartment in the same building as Katz, which he shared with Justine DeCotis and her two children. Katz testified that she did not know the defendant, but that prior to the burglary, she occasionally saw him outside late at night or with the children, and noticed that “when he would walk by your door, if your blinds were open, he would like stare in.”

On the day Katz discovered that her money was missing, Derry police officer James Belanger arrived at her apartment. He took the lockbox and the plastic bottle to be processed for fingerprints. He also spoke with several tenants in the building, including the defendant. The defendant initially told Officer Belanger that he was ill and had not left his apartment all day. However, he then corrected himself and said that he left his apartment to retrieve his mail, which was in the same building as his apartment. Belanger testified at trial that the defendant was nervous and responded to questions slowly.

The next day, Christina Piccirilli, who worked for a salvage yard, sold a 1992 Ford Taurus to an individual whom she identified only as DeCotis's boyfriend. Piccirilli testified that the car was purchased with two $100 bills. On March 30, Detective Joseph Bennett processed the lockbox and the plastic bottle for fingerprints. He found four sets of latent fingerprints on the lockbox and five on the bottle. He lifted the prints using lifters and placed the lifters in sealed evidence bags that could not be opened without being cut. The lifters were tagged and later transported to the New Hampshire Department of Safety Forensic Laboratory (state lab) for further testing.

On April 1, Derry police officer Mike Houle went to Katz's apartment to process Katz's bedroom dresser. He found one latent fingerprint on top of the dresser close to the drawers, which he lifted with a two-by-four inch clear lifter. He then placed the lifter into a plastic evidence bag, and completed a transmittal form requesting further analysis from the state lab.

Lisa Corson, a criminalist at the state lab testified at trial about her examination of certain fingerprints. She explained how fingerprint comparison is conducted using the ACE–V methodology, and that ACE–V is an acronym standing for Analysis, Comparison, Evaluation and Verification. Corson testified that the fourth step of the ACE–V process requires that another qualified examiner complete the first three stages of the ACE–V methodology to determine whether the verifying examiner arrived at the same result as the primary examiner.

Corson testified that in May 2004 the state lab received two separate exhibits from the Derry Police Department, one containing five fingerprint lifts and one containing a single fingerprint lift. Corson performed an analysis of the prints in 2005. Regarding the exhibit containing five lifts, Corson testified that none of these lifts contained identifiable latent prints. Regarding the exhibit containing a single lift, Corson determined that it was an identifiable fingerprint, which she was able to further analyze.

At trial, the jury was shown State's Exhibit 1, a chart Corson had prepared which compared a photograph of the single latent print and a known print. Corson testified that the known print belonged to the defendant. Corson described how she examined the single latent print along with the known print using the ACE–V methodology. The initial step of the examination involved an analysis of the latent print. Based upon her analysis, Corson concluded that the latent and known prints had sufficient quality and enough detail to permit her to continue with the second and third steps of the examination, which involve a comparison and evaluation of the latent print and the known print. Using Exhibit 1, Corson testified about the various similarities she found between the latent print and the known print, and stated that she was able to make an identification between the latent print and the known print.

When the prosecutor asked Corson if her work had been verified, the defendant objected, arguing that the statement was hearsay and that it violated his right to cross-examine witnesses against him. The State argued that the testimony was admissible because it would be based upon Corson's review of documentation from the state lab reflecting that her work had been verified. The trial court agreed that the verification testimony was hearsay, but overruled the defendant's objection, relying upon the business records exception to the hearsay rule, and allowed the State to present evidence that Corson's opinion had been verified. The trial court stated:

[S]he doesn't have to testify to ... how well the verification was performed, does she, for her to be able to say that she believes, looking at the business records and looking at what she understands, that her conclusion is okay under her methodology, then you can cross-examine her on that. And maybe the State ... creates a problem for itself if it doesn't produce the verification person....

The trial court instructed the prosecutor to rephrase her questions to “deal[ ] with the business record exception.”

Thereafter, the prosecutor asked Corson to review State's Exhibit 5, consisting of Corson's laboratory worksheets with her analysis of the latent print. Corson testified that in 2005, it was the practice of the state lab for the person verifying the work to note that fact in the records, and that “there was a worksheet where they would sign off.” In describing the worksheet, Corson testified that “[t]he last column is where the other examiner who is given the latent for verification puts their initials and the date that they do their ACE to the case.” She testified that the initials of the verifying examiner were Timothy Jackson's, and also stated, “In this case my work was verified by Timothy Jackson.” On cross-examination, Corson agreed that she did not actually know how Jackson conducted his verification, and that she could not speak to the quality of his verification. On redirect, she testified that Jackson was certified by the International Association of Identification (IAI) when he verified her work. Jackson did not testify.

The court then permitted State's Exhibit 5 to be received into evidence, over the defendant's objection. At a chambers conference regarding the court's evidentiary ruling on State's Exhibit 5, the trial court stated:

[I]t was allowed to be introduced as a business record through the foundation that it was regularly maintained in the course of business, etcetera. And it was introduced for the purpose of showing that a verification occurred. How good it was, whatever was not the point here, but the business reflects that a verification occurred.

That, as I understand it, under the methodology that was described, would allow the witness here, Ms. Corson, to testify as to her opinion under the methodology we're dealing with. And therefore I allowed it in.

....

The only disturbing aspect of it I have here is that obviously by just the—telling the jury that there was some verification here, there is a kind of [sub silentio] implication that the verification is consistent with what Ms. Corson said. And I—that's a major concern I have. And I would entertain arguments as to whether I should be giving them some sort of limited instruction regarding that later on....

....

It's only being introduced for the fact that someone reputable, in a position to do so marked on this paper verification which triggers the ability of Ms. Corson to give her opinion under this methodology.

Ultimately, the court refused to strike Corson's testimony, but gave the jury two limiting instructions regarding Corson's testimony and Jackson's verification.

At the close of the evidence, the defendant objected to State's Exhibit 1, the chart Corson had prepared that compared a photograph of the single latent print and a known print, being admitted into evidence. The defendant also moved to strike Corson's testimony that the latent print matched the defendant's print, and to dismiss the case on the grounds that the evidence was legally insufficient to support a conviction. The court allowed State's Exhibit 1 to be admitted into evidence and denied both...