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State v. Hightower

Court of Appeals of Missouri, Eastern District, Second Division

February 28, 2017


         Appeal from the Circuit Court of St. Louis County Cause No. 15SL-CR01326-01 Honorable Michael D. Burton

          Colleen Dolan, Judge.

         I. Introduction

         David D. Hightower ("Defendant") appeals his conviction of one count of robbery in the first degree and one count of armed criminal action in violation of RSMo §§ 569.020 and 571.015 respectively.[1] Defendant received 18 years for the armed criminal action charge and 10 years for the robbery charge, with the sentences to run concurrently. Defendant alleges three points on appeal: (1) the trial court erred in finding testimony by the latent fingerprint examiner was admissible under the Frye standard; (2) the trial court erred in overruling Defendant's motion for judgment of acquittal because the State did not present sufficient evidence from which a rational trier of fact could have found Defendant guilty beyond a reasonable doubt; and (3) the trial court erred in not declaring a mistrial following the prosecutor's inappropriate comments during closing arguments.

         II. Factual and Procedural Background

         On January 15, 2014, Dephanie Gillespie was sitting in her car, in a driveway next to her mother's home, when a man banged on the driver's side window. Her mother was on her front porch and called to her, asking if she knew the man. As the man walked away, Ms. Gillespie stepped out of her car and responded that she did not know the man and told her mother to call the police. When Ms. Gillespie turned around she saw Defendant pointing a gun at her forehead. She could not see his face because his sweatshirt hoodie was pulled down. He threatened to shoot Ms. Gillespie and told her to get on the ground. He then reached into her car and removed something. As he walked away, Ms. Gillespie saw Defendant fire his gun into the air before climbing over a fence. Later on, Ms. Gillespie's purse and iPad were discovered in a neighboring yard. Both items had been inside her car prior to the robbery and both items were missing after Defendant left.

         Ms. Gillespie's mother testified that the police arrived five to ten minutes later. Detective Deidrick arrived soon after the initial police response to collect evidence. Detective Deidrick stated he could see the outline of a handprint on the driver's window of Ms. Gillespie's car. He used fingerprint powder and tape to "lift" the fingerprints and place them on a fingerprint card for analysis. He testified the fingerprints appeared to be relatively new and undisturbed in the light of his flashlight. On cross-examination, Detective Deidrick admitted he could not say beyond a reasonable doubt that the fingerprints were left at the time of the crime. Dan Stoecklin ("Mr. Stoecklin") was a latent fingerprint examiner with the St. Louis County Police Department ("the Department"). He analyzed the fingerprints using the ACE-V method required by the Department and found two acceptable fingerprints with sufficient ridge detail for analysis, comparison, and evaluation.[2]

         Mr. Stoecklin digitally scanned one of the acceptable fingerprints after marking the eight points for the computer system and submitted it to the Automated Fingerprint Identification System ("AFIS") maintained by the Missouri State Highway Patrol. The program returned a list of possible candidates, which included Defendant. Mr. Stoecklin compared the scanned fingerprint with Defendant's stock fingerprints on the computer screen. Then, he pulled Defendant's fingerprint card from a file and compared it against the actual fingerprint card made by Detective Deidrick. After evaluating the fingerprints side-by-side using a magnifying glass, Mr. Stoecklin testified that he determined the two fingerprints seized from Ms. Gillespie's car window were left by Defendant's left middle and ring fingers. He stated he did not see any discrepancies between the two samples. Mr. Stoecklin then provided his report to another member of the St. Louis County Fingerprint Unit ("the Unit") who verified that the lifted fingerprints matched Defendant's left middle and ring fingers with no discrepancies.[3]

         Prior to trial, defense counsel objected to the admission of Mr. Stoecklin's testimony on the grounds that the ACE-V method does not meet the Missouri standard for scientific evidence as laid out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) or Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Missouri courts follow the guidelines established in Frye when determining the admissibility of expert testimony in criminal cases. Dorsey v. State, 448 S.W.3d 276, 297 (Mo. banc 2014). Under Frye, to be admissible an expert's opinion must be based on scientific principles which are "generally accepted" in the relevant scientific field. Id. (quoting Frye, 239 F. at 1014).

         The trial court held a hearing on the admissibility of the evidence and Dr. Ralph Haber ("Dr. Haber") was presented by the defense as an expert witness. In discussing the composition of the scientific community in the field of fingerprint identification, he stated that the International Association for Identification ("International Association") certifies forensic examiners, accredits fingerprint labs, and promulgates guidelines for all their members to follow when conducting latent fingerprint identifications. According to Dr. Haber, their membership mainly consists of fingerprint examiners, although their membership makes up only about 10% of all working fingerprint examiners. The National Academy of Science ("National Academy") and National Institute of Standards and Technology ("National Institute") are comprised of leaders in different science fields and include members from a wider variety of scientific backgrounds but both organizations also form part of the scientific community surrounding fingerprint identification.[4]

         Dr. Haber testified that the National Academy and the National Institute have both decried the reliability and accuracy of fingerprint evidence adduced using the ACE-V method. Although he admitted that most examiners accept the current methods of fingerprint identification used by the Unit, he stated the National Institute found the idea that a person's fingerprints are unique was "specious and not ever demonstrated." Dr. Haber went on to testify that the ACE-V method was unreliable and violated the International Association's standards for its certified members. During cross-examination, Dr. Haber admitted that in every hearing he had been involved in to exclude fingerprint evidence the evidence had been deemed admissible, save one case from Maryland.[5] The trial court denied the motion to exclude Mr. Stoecklin's testimony, finding the evidence was admissible.

         At trial, Dr. Haber reiterated his testimony regarding the reliability of the methods used by Mr. Stoecklin to identify Defendant's fingerprints. He concluded that a person could not be identified with 100% certainty based on a fingerprint. On cross-examination, Dr. Haber admitted he had not looked at the actual fingerprints in the present case. The State called the supervisor of the Unit, Heather Burke, as a rebuttal witness. Ms. Burke testified that the Unit requires three years of on-the-job training to become a latent fingerprint examiner and St. Louis County requires all of their latent fingerprint examiners be accredited by the International Association. She stated the Unit uses the ACE-V method and is working toward accreditation under the International Organization for Standardization.

         During closing arguments, the prosecutor told the jury, "Remember, there are other experts out there, experts in latent fingerprint examinations who could have examined this but were not asked to." The court sustained defense counsel's objection that this comment shifted the burden of proof and ordered the jury to disregard the prosecutor's statement. The prosecutor later stated, "If somebody came in here and told you that's not a match…" to which defense counsel made the same objection, which was also sustained by the court. The court again instructed the jury to disregard the prosecutor's statement. The jury was instructed on robbery in the first degree and armed criminal action and found Defendant guilty of both counts. This appeal follows.

         III. Discussion

         a. Point I: The trial court did not err in finding the fingerprint evidence was admissible.

         i.Standard of ...

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