U.S. v. Turner

• Decision Date: 02 April 2002
• Docket Number: No. 01-3049.,01-3049.
• Citation: 285 F.3d 909
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

285 F.3d 909

UNITED STATES of America, Plaintiff-Appellee, v. Robert TURNER, Defendant-Appellant.

No. 01-3049.

United States Court of Appeals, Tenth Circuit.

April 2, 2002.

Paul S. McCausland of Young, Bogle, McCausland, Wells & Blanchard, P.A., Wichita, KS, for Defendant-Appellant.

Alan G. Metzger, Assistant United States Attorney (James E. Flory, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before TACHA, Chief Judge, PORFILIO and BRISCOE, Circuit Judges.

JOHN C. PORFILIO, Senior Circuit Judge.

A jury convicted Robert Turner of interference with commerce arising from two robberies in violation of 18 U.S.C. § 1951 and for using or carrying a firearm during and in relation to these two crimes of violence in violation of 18 U.S.C. § 924(c)(1)(A). A partial latent left thumbprint found at the scene of the second robbery was the only physical evidence linking Mr. Turner to the two crimes. At sentencing, the court determined Mr. Turner had two prior felony convictions for "crimes of violence," as defined in the United States Sentencing Commission Guidelines Manual (USSG) § 4B1.2(a) (2000), and therefore sentenced him as a career offender under USSG § 4B1.1 (2000). We have jurisdiction over Mr. Turner's appeal pursuant to 28 U.S.C. § 1291. Our jurisdiction to review Mr. Turner's sentence arises under 18 U.S.C. § 3742(a).

Mr. Turner raises two issues in this court. First, he contends the district court erred in admitting Detective McNutt's fingerprint identification evidence without making on-the-record Daubert findings on the reliability of the underlying science and methods employed by Detective McNutt. Second, Mr. Turner argues the district court erred in finding his prior conviction for aggravated escape a "crime of violence" for purposes of the career offender guideline, USSG § 4B1.1 (2000). For the reasons set forth below, we affirm.

BACKGROUND

After midnight on September 1, 1998, two men entered a Food 4 Less supermarket in Wichita, Kansas; one of the two carried a handgun. They demanded money, received it, and fled. On September 4, 1998, two men ate dinner at a Furr's Cafeteria in Wichita, Kansas. They were the only remaining customers when the restaurant closed. Shortly thereafter, these two men, this time both armed with handguns, robbed Furr's.

Officer Patrick Cunningham, a Wichita Police Department lab scene investigator, responded to Furr's reported robbery. He employed the powder-and-brush method to lift and preserve, for later examination, a smudged partial latent left thumbprint from a "greasy plate with chicken crust." Officer Cunningham retrieved the plate from a busman's cart containing dishes cleared from the booth where the two robbers ate.

During discovery, the government produced a fingerprint identification report matching the partial latent left thumbprint lifted by Officer Cunningham to a known left thumbprint of Mr. Turner. Mr. Turner subsequently filed a pretrial motion for a Daubert hearing and to exclude the fingerprint identification evidence. He attached to his motion two submissions: a Model Brief questioning the uniqueness of fingerprints, prepared by the Federal Public Defender's Office for the Eastern District of Pennsylvania, and a National Institute of Justice Solicitation, issued in March 2000, seeking proposals for fingerprint research studies.¹ At a pretrial hearing on Mr. Turner's Daubert motion, and after reviewing the two submissions, the district court denied the motion and overruled Mr. Turner's objection to the admission of fingerprint evidence at trial.

Detective Jim McNutt, a latent fingerprint examiner for the Sedgwick County Sheriff's Department, testified at trial on behalf of the government.² He indicated he has compared fingerprints on "probably thousands" of occasions. Detective McNutt described the two basic premises underlying a fingerprint examiner's identification opinion: that fingerprints are unique to an individual and are permanent. He also testified about the physical characteristics of fingerprints and what he called the "three levels of detail" he examines in comparing a latent print to a known print. Detective McNutt explained he and a Wichita Police Department fingerprint examiner "always verify each others' work," and they did so in this instance.

At the conclusion of his testimony, Detective McNutt stated the partial latent print found on the Furr's plate contained sufficient detail to make a conclusion, beyond any doubt, the latent print matched Mr. Turner's left thumbprint. Counsel for Mr. Turner cross-examined Detective McNutt. Mr. Turner did not offer his own fingerprint expert. The jury found Mr. Turner guilty of using or carrying a firearm during and in relation to the Food-4-Less and Furr's Cafeteria robberies.

I.

We review for abuse of discretion both the denial of a Daubert hearing, United States v. Nichols, 169 F.3d 1255, 1262-63 (10th Cir.1999), and the district court's decision whether to admit or exclude expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing General Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). "An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances." Wright Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1233 (10th Cir.2001) (citing Deters v. Equifax Credit, 202 F.3d 1262, 1268 (10th Cir.2000)).

At the time of the district court's pretrial ruling, July 5, 2000, Fed.R.Evid. 702 provided: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."³ Under Rule 702, the district judge must act as a gatekeeper to ensure proffered expert testimony is relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).⁴

"Daubert challenges, like other preliminary questions of admissibility, are governed by Fed.R.Evid. 104." Nichols, 169 F.3d at 1263 (citing Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 603 (10th Cir.1997)).⁵ The district court has "no discretion regarding the actual performance of the gatekeeper function," Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir.2000) (citing Kumho Tire Co., 526 U.S. at 158-59, 119 S.Ct. 1167 (Scalia, J., concurring) and United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir.2000) (Anderson, J.)). However, the district court possesses "latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability." Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167. "The most common method for fulfilling [the gatekeeper function] is a Daubert hearing, although such a process is not specifically mandated." Goebel, 215 F.3d at 1087 (citations omitted).

In this case, the transcript from the pretrial hearing on Mr. Turner's Daubert motion suggests the district court considered fingerprint evidence an "ordinary case[] where the reliability of an expert's methods is properly taken for granted." Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167. In denying the motion, the court explained:

[W]ith respect to the fingerprint evidence and Daubert, I'm not going to have a ... hearing.... I have reviewed your brief ... as well as the model brief... and fingerprint evidence, as far as I can tell, has always been upheld as reliable and appropriate. If there are any problems with it, those can be raised in cross examination of the government's witness.... [T]he Tenth Circuit has found, albeit in dicta, that fingerprint evidence is reliable.... But a Daubert hearing is discretionary with the court. I have reviewed your motion and brief and I'm denying that motion.

In so stating, the district court relied on our observation in Williamson v. Ward: "It is undisputed that hair analysis, unlike fingerprint identification and DNA analysis, is not conclusive." 110 F.3d 1508, 1520 n. 13 (10th Cir.1997). The district court also instructed Mr. Turner's counsel he could cross-examine the government's fingerprint expert at trial to determine if there was "some problem with the way [fingerprint identification] was done in this case." In conducting our review on appeal, this colloquy is all with which we have to work. The district court did not make any detailed findings concerning the admissibility of Detective McNutt's opinion Mr. Turner's fingerprint was on the Furr's plate.

Having reached this point, however, we believe resolution of whether the district court properly carried out its gatekeeping function would be merely academic. This is because the consequence of error in the admission of Detective McNutt's testimony is, at worst, harmless, and Mr. Turner's conviction can be affirmed. See Kinser v. Gehl Co., 184 F.3d 1259, 1272 (10th Cir.1999) (holding improper admission of expert testimony "ultimately was harmless"), abrogated on other grounds, Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000); cf. Velarde, 214 F.3d at 1211-12 (finding admission of expert testimony without fully considering Daubert factors not harmless because "little other evidence" suggested sexual abuse had occurred).

When conducting a harmless error analysis, the appellate court must review the record as a whole. United States v. McVeigh, 153 F.3d 1166, 1204 (10th Cir.1998) (citations omitted). "The question is not whether, omitting the inadmissible [expert testimony] the record contains sufficient evidence for a jury to convict the defendant." United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.1995). Rather, an error is harmless "unless a substantial right of...