State Of Washington v. S.k. ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTOg g|
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STATE OF WASHINGTON, ™
No. 68653-4-1 ^ ^>:
Respondent, a*, wr;
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UNPUBLISHED OPINION & °^
S.K.,
Appellant. FILED: September 23, 2013
Appelwick, J. — S.K. appeals his conviction for residential burglary. He argues
that he was deprived of his right to present a defense when the trial court excluded the
testimony of his expert witness. We affirm.
FACTS
James Nguyen returned home on September 9, 2011 to find his home
burglarized. Several rooms were ransacked, and many of his family's possessions
were gone. Nguyen had a television in his basement that was normally mounted to the
wall, but that he found lying on the floor. King County Sheriffs Deputy Jeremy Davy
inspected the television and found latent prints. Because the prints were visible to the
naked eye and developed quickly, Deputy Davy determined that they were recent. He
was able to collect six prints from the television.
King County Print Examiner Cynthia Zeller analyzed the prints, and compared
them to a list of candidates produced by the Automated Fingerprint Identification
System (AFIS). S.K. was among the candidates. To compare the prints, Zeller
conducted a friction ridge analysis. Friction ridge skin is a raised section on the
underside of the hand that creates a unique pattern in every individual. The friction
ridge analysis of S.K.'s AFIS prints and the prints from the television resulted in a
No. 68653-4-1/2
match. Zeller then took new prints from S.K., and compared them to the prints from the
television. They were again a match.
S.K. moved for a Frve1 hearing on the admissibility of friction ridge analysis and
sought to exclude Zeller's testimony. In his motion, S.K. relied on the literature of Dr.
Simon Cole, a criminology professor with a Ph.D. in science and technology studies.
The court denied the motion, concluding that friction ridge analysis is accepted in the
relevant scientific community. The court further noted that Dr. Cole was not a member
of that community.
S.K. sought to call Dr. Cole to testify at trial. When the court inquired about the
nature of his testimony, S.K. responded that Dr. Cole would "assess the weight" of
Zeller's conclusions and whether they were supported by scientific validation. S.K.
conceded that Dr. Cole would not testify about the specifics of Zeller's performance of
the analysis. The court excluded Dr. Cole's proffered testimony, finding that S.K. was
merely renewing his Frve challenge. The court found S.K. guilty of residential burglary.
S.K. timely appealed.
DISCUSSION
S.K. argues that, because the excluded evidence went "to the heart of the
defense case," its exclusion had constitutional implications. As a general rule, when a
defendant claims a denial of constitutional rights, our review is de novo. State v.
Iniquez. 167 Wn.2d 273, 280, 217 P.3d 768 (2009). However, when the defendant
claims a violation of his right to present a case by offering expert testimony, Washington
courts have "repeatedly followed" an abuse of discretion standard. State v. Lewis, 141
1Frve v. Unite States. 293 F. 1013, 1014 (D.C. Cir. 1923).
No. 68653-4-1/3
Wn. App. 367, 385, 166 P.3d 786 (2007). CI State v. Jones. 168 Wn.2d 713, 719, 230
P.3d 576 (2010) (reviewing de novo where defendant alleged violation of right to testify
or cross-examine witnesses).
In addition, he contends that the trial court's exclusion of the expert testimony
was an abuse of discretion. An abuse of discretion occurs when no reasonable person
would take the view adopted by the trial court. State v. Casteilanos, 132 Wn.2d 94, 97,
935 P.2d 1353 (1997). S.K. argues that the trial court erred when it found Dr. Cole's
proposed testimony irrelevant. He contends that the testimony was in fact relevant,
because it would have questioned Zeller's specific methods in this case and
demonstrated the fallibility of latent print analysis in general.
A witness with scientific, technical, or other specialized knowledge may testify
thereto if the testimony will be helpful to the trier of fact and the witness is qualified as
an expert by knowledge, skill, experience, training, or education. ER 702. Practical
experience is sufficient to qualify a witness as an expert. State v. Ortiz, 119 Wn.2d 294,
310, 831 P.2d 1060 (1992). An otherwise qualified witness may not testify about an
issue that lies outside the witness's area of expertise. State v. Weaville, 162 Wn. App.
801,824, 256 P.3d 426 (2011).
Testimony must be relevant to be admissible. ER 402. Evidence is relevant if
(1) it tends to prove or disprove the existence of a fact and (2) that fact is of
consequence to the outcome of the case. ER 401; Davidson v. Municipality of Metro.
Seattle, 43 Wn. App. 569, 573, 719 P.2d 569 (1986). A defendant has no right to have
irrelevant evidence admitted in his or her defense. State v. Darden, 145 Wn.2d 612,
624,41 P.3d 1189(2002).
No. 68653-4-1/4
When the court denied S.K.'s motion for a Frve hearing, it expressly found that
friction ridge analysis is accepted in the relevant scientific community. That decision
has not been appealed. Dr. Cole's opinion about whether such analysis is reliable is
thus no longer relevant.
The remaining question was whether Dr. Cole was competent to question the
reliability of Zeller's specific process. When the court inquired on this point, S.K.
admitted that Dr. Cole "would not testify that he did his own comparison or that they
specifically did this comparison wrong. He can only testify to what their conclusion can
mean." The trial court concluded Dr. Cole was not qualified to draw his own
conclusions about the accuracy of Zeller's print analysis. We agree.
The trial court did not err when it excluded his testimony. S.K. has not suffered a
constitutional violation.
We affirm.
WE CONCUR:
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