State v. Sheehan, 20090913–CA.

• Decision Date: 01 March 2012
• Docket Number: No. 20090913–CA.,20090913–CA.
• Citation: 703 Utah Adv. Rep. 33,2012 UT App 62,273 P.3d 417
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert Michael SHEEHAN, Defendant and Appellant.
• Court: Utah Court of Appeals

2012 UT App 62

273 P.3d 417

703 Utah Adv. Rep. 33

STATE of Utah, Plaintiff and Appellee,

v.Robert Michael SHEEHAN, Defendant and Appellant.

No. 20090913–CA.

Court of Appeals of Utah.

March 1, 2012.

Debra M. Nelson, Salt Lake City, for Appellant.

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.

Before Judges ORME, THORNE, and CHRISTIANSEN.

OPINION

CHRISTIANSEN, Judge:

¶ 1 Defendant Robert Michael Sheehan challenges his jury convictions for aggravated burglary, see Utah Code Ann. § 76–6–203 (2008), and aggravated assault, see id. § 76–5–103 (current version at id. (Supp. 2011)). Sheehan argues that the trial court abused its discretion when it failed to hold a Rimmasch or rule 702 hearing to determine whether to admit the State's expert testimony that a palm print found at the scene matched Sheehan's palm print. See generally Utah R. Evid. 702; State v. Rimmasch, 775 P.2d 388 (Utah 1989). We affirm the trial court's decision in this matter. Sheehan also argues that the trial court erred by excluding his expert's testimony and limiting Sheehan's cross-examination of the State's experts. We determine that the trial court erred in this regard, and therefore, we reverse and remand for a new trial.

BACKGROUND

¶ 2 On December 11, 2006, the victim was attacked and seriously injured in her house. When the police arrived, the victim claimed that her attacker was a co-worker whom she had invited into her house earlier that night and who was in her house at the time of the attack. Based on the evidence at the scene, the police eventually eliminated that individual as a suspect despite the victim's initial identification of him as the attacker. During the initial investigation, an officer asked the victim if Sheehan could have assaulted her. The victim responded in the negative. However, during subsequent interviews in the days following the attack, the victim began to implicate Sheehan.

¶ 3 The only evidence that allegedly tied Sheehan to the scene of the attack was part of a bloody palm print found on a pillow case from the victim's bed. Before trial, Sheehan filed a motion requesting a hearing pursuant to State v. Rimmasch, 775 P.2d 388 (Utah 1989), to challenge the reliability and admissibility of the State's print evidence.¹ Alternatively, he requested that the jury be instructed “that fingerprint identifications are opinions not facts and are not infallible.” Also, in the alternative, Sheehan requested that “testimony of individualization” be excluded. Sheehan argued that

[b]ecause the reliability and accuracy of fingerprint and palm print identification evidence can be reasonably questioned and ha[d] never been evaluated under the more stringent test now imposed upon novel scientific evidence, a Rimmasch hearing [wa]s necessary to determine the admissibility of the partial palm print identification evidence at issue in this case.

¶ 4 On July 2, 2008, the trial court conducted a hearing at which the parties argued about the necessity of a Rimmasch hearing. Sheehan attempted to present the testimony of Dr. Simon A. Cole to dispute the reliability of the State's proposed print evidence. The court concluded that, based on Utah law as established by State v. Quintana, 2004 UT App 418, 103 P.3d 168 (mem.), cert. denied, 123 P.3d 815 (Utah 2005), Sheehan was not entitled to a Rimmasch hearing to challenge the admissibility of the State's print evidence. Based on this conclusion, the court refused to allow Dr. Cole to testify at the hearing and did not allow the defense to make a record of Dr. Cole's testimony, even though Dr. Cole had traveled from California to attend the hearing. Nevertheless, the court indicated that it might allow Dr. Cole to testify at trial.

¶ 5 Sheehan subsequently filed a motion requesting the court's permission for Dr. Cole to testify at trial. Sheehan asserted that the court should allow him “to present [expert] testimony challenging both the reliability of the methods employed by the State's expert in reaching her conclusions and the reliability of palm print evidence generally.” Sheehan argued that, pursuant to Utah Rule of Evidence 702, “[d]ue process [allowed] Sheehan to attack the State's direct evidence against him, including the reliability of the specific methods used to determine a ‘match’ of his palm print to a partial print found at the scene of the alleged crime.”

¶ 6 On August 4, 2008, the court conducted a hearing on Sheehan's motion. During the hearing, Sheehan argued that it was “important that [he] have [his] own expert to come in and testify about the shortcomings of fingerprint identification,” especially given the expected testimony from the State's expert that “there is a zero error rate” in making print identifications. Defense counsel stated, “[T]he [c]ourt determines admissibility, and ultimately the jury is going to decide the weight to give the evidence. We're not asking you to exclude the fingerprint evidence. We just want a fair chance to respond to the [State's] expert with our own expert.” The State responded by arguing that Quintana established that fingerprint evidence was reliable and that Sheehan should not be allowed “to have a Rimmasch hearing during the trial [because] it circumvents [the court's] prior ruling.” The State further addressed the procedure used by its expert to analyze prints and argued that, while that procedure could be challenged at trial, Sheehan was not “entitled to bring in a Ph.D. to talk about the fact that he studied this and there have been mistakes in the past.” Finally, the State asserted that its expert was “not going to say that there is a zero error rate.”

¶ 7 In denying Sheehan's motion, the court first addressed the weight of the evidence issue and stated that Sheehan could cross-examine the State's expert on whether mistakes can be made in fingerprint analysis. Sheehan responded to this ruling by arguing that, although he could cross-examine the State's expert on her response that the error rate is zero, he needed his own expert and that he was “entitled to under Rule 702 to come in and say, well, that's just simply not true; that's simply not accurate.” In addressing the admissibility issue, the court once again relied on this court's decision in Quintana to exclude Dr. Cole's testimony.

¶ 8 Because the court excluded Dr. Cole's testimony, Sheehan's only option at trial was to attack the print evidence through cross-examination of the State's experts. The State called two experts to testify at trial, Trenton Gary Grandy and Elisa Macken–Farmer.

¶ 9 Grandy, who worked at the Utah Bureau of Forensic Services (the State Crime Lab), initially processed and photographed the print taken from the victim's house, and then, after another State Crime Lab employee, Macken–Farmer, identified the print as matching Sheehan's print, Grandy verified it. During cross-examination, Grandy admitted that he was a member of the International Association for Identification (IAI) and initially admitted that he was aware of IAI's recommendation that its members not assert a 100% infallibility or zero error rate when addressing the reliability of fingerprint comparisons. However, the court, in response to the State's objection, limited defense counsel's questioning of Grandy to whether he was aware of the IAI recommendation and limited Grandy to a yes or no response. When asked again, Grandy stated that he could not “really answer yes or no ... because [he was] not sure exactly what [the IAI report meant] by zero error rate.” The court then stated, “Then let's stop.... Get on to something else.” Defense counsel then asked Grandy if he was familiar with an organization called the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), to which Grandy responded affirmatively. Defense counsel continued, “Are you aware that they've reported that they acknowledge that errors do occur, and furthermore that claims of zero error rate in the discipline are not scientifically plausible?” Grandy responded, “No, I'm not aware of that.” When defense counsel began the next question, the court interrupted by saying, “Wait a minute, don't argue with him. He said he's not aware of it. Leave it alone.” On redirect examination, the State then asked Grandy if he had ever erred in analyzing prints and making comparisons; Grandy responded, “To my knowledge, I've never made an error, no.”

¶ 10 Following the limits the court imposed on Sheehan's cross-examination of Grandy and in anticipation of the court similarly limiting the defense during its cross-examination of Macken–Farmer, defense counsel asked the court, outside the jury's presence, to revisit its prior ruling that the defense could not introduce into evidence certain reports that questioned the reliability of print analysis. Defense counsel argued that by excluding the reports the court had “limited what [defense counsel was] able to say on the record” and limited “the exhibits that [defense counsel] intended to use ... to cross examine.” The court made clear that it was not going to revisit its prior ruling and was not going to allow the defense to introduce the reports.

¶ 11 With the jury still excused, defense counsel then proffered the evidence that would have been introduced during cross-examination had the court allowed it. Defense counsel discussed the 2009 report from the National Research Council (the NAS report) and stated that the NAS report specifically addresse[d] fingerprint analysis, fingerprint evidence and concerns about how testimony has been introduced and admitted in cases and talk[ed] about the zero error rate. It talk[ed] about subjectivity, the two items that Ms. Macken[-Farmer] had previously written a report about, and so [defense counsel] was going to use those sections to impeach her on those two issues.

Defense counsel also discussed the SWGFAST report dated August 3, 2009. This report addressed the “subjectivity...