Cotton v. Commonwealth

451 S.E.2d 673, 19 Va. App. 306, 1994 Va. App. LEXIS 723
CourtCourt of Appeals of Virginia
DecidedDecember 6, 1994
DocketNo. 2475-92-2
StatusPublished
Cited by7 cases

This text of 451 S.E.2d 673 (Cotton v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotton v. Commonwealth, 451 S.E.2d 673, 19 Va. App. 306, 1994 Va. App. LEXIS 723 (Va. Ct. App. 1994).

Opinions

Opinion

WILLIS, J.

On appeal from his convictions in a jury trial of robbery and the use of a firearm in the commission of robbery, Joseph Cotton, Jr., contends that the trial court erred: (1) in receiving fingernail comparison evidence, (2) in rejecting as evidence an expert’s paper, (3) in refusing to strike the expert’s testimony, (4) in denying Cotton’s request to introduce into evidence [308]*308the expert’s cautionary language concerning the use of full width fingernail cuttings for comparison, (5) in permitting a witness to testify as to the victim’s statement as the assailant left the store, (6) in rejecting as evidence a plastic bag found on the store’s floor after the robbery, and (7) in denying Cotton’s motion for a mistrial based on the sheriffs alleged contact with the jury. Cotton also contends that the evidence was insufficient to prove he committed the robbery. We agree, in part, and disagree, in part, with Cotton’s points of contention.

On March 24, 1991, a man wearing a ski mask and brandishing a sawed-off shotgun entered a Wakefield convenience store operated by Chong Johnson. He yelled “nobody move, nobody move.” Barbara Neal and David Robinson were in the store as patrons. The robber laid the shotgun on the counter and reached over to open the cash register. Ms. Johnson resisted him, shutting the register drawer on his hand. He knocked her back, took money from the register, and fled with approximately $700. Ms. Neal testified that as the robber left the store, Ms. Johnson exclaimed, “I know him, that’s not a real gun. I know him, that’s not a real gun.” Ms. Neal said that she. did not know whether Ms. Johnson was trying to calm her patrons or whether she actually knew the identity of the robber.

Ms. Johnson testified that the robbery occurred just after 1:00 p.m. She identified Cotton as the robber. She testified that she recognized him because the ski mask had large open areas, which exposed much of his face, and that she had seen him before as a customer. She denied making any statement as the robber left the store. She also testified that shortly after the robber left, she found a plastic bag on the floor near the cash register and that the bag had not been there before the robbery. The forensics lab found a palm print, not Cotton’s, on the bag.

Darryl Turner, who knew Cotton, had paid for gas and was leaving the store when a man entered wearing a ski mask. He heard a man say “hold it” and “give me your money.” Turner ran to the rear of the store where he noticed a two-toned blue car, which he thought was a 1983 Buick Regal, with its door open. Turner had previously seen this car in and around Wakefield and identified it as Cotton’s. He called the police.

[309]*309Detective Tommy Cheek responded to the scene. He recovered “a portion of a fingernail” from the cash register. Ms. Johnson told him that the fingernail had not been in the drawer before the robbery. Several days later, Cheek clipped Cotton’s fingernails and submitted those clippings for comparison with the fingernail found in the cash drawer.

Ann Davis Jones, a forensic scientist with the Division of Forensic Science, described her training and experience regarding fingernail ridge comparison as a type of tool mark evidence.1 She described her method of scientifically processing and examining the submitted fingernail pieces and her conclusion that the nail found in the cash register drawer matched a nail clipped from Cotton’s left ring finger. Ms. Jones obtained a second sample from Cotton’s left ring finger and found that this sample also matched the nail found in the cash register. Consequently, she concluded that the fingernail recovered from the cash register drawer came from Cotton’s left ring finger.

On cross-examination, Cotton challenged Ms. Jones’s identification because the fingernail fragment found in the cash register drawer did not represent a full nail width. Ms. Jones stated that although the optimum situation would involve comparing full length samples, a half fingernail can be correctly identified.

Cotton testified that he and Corey White purchased gas at Johnson’s store about 11:45 a.m. and then went to White’s girlfriend’s house. Finding no one at home, they drove to Alice Norman’s house. He denied committing the robbery. Corey White’s testimony supported this account. Alice Norman testified that Cotton arrived at her house around 12:00 or 12:30 p.m. She left with White in Cotton’s car. When she returned, Cotton was still at her house and did not leave until 1:00 or 1:30 p.m. Another witness, Mary Alice Norman Parker, testified that Cotton came to the house about 12:00 and stayed until 1:30 p.m.

After the jury returned its verdicts, Cotton moved for a mistrial, alleging misconduct by the sheriff. He complained that the sheriff had entered the jury room on several occasions, for several minutes on each occasion, and had polled the jury. The trial court [310]*310conducted a hearing on this assertion.

The sheriff testified that he had entered the jury room on four occasions. The first time, he carried exhibits into the room and told the jury that if they had any questions they should knock on the door for assistance. This encounter lasted thirty seconds. The second time, the jury knocked and said they had a question. The sheriff had them write the question on a piece of paper, which he took to the judge. This encounter lasted three to four minutes. The third time, the sheriff returned to the jury room and read the judge’s written answer to the jury’s question.2 This encounter lasted three to four minutes. The final time, he responded to a knock on the door. The jury informed him that they had reached a verdict. He checked the verdict form and asked the jury if this was their verdict. He denied polling the jurors individually. This encounter lasted a minute. The sheriff testified that he was never present during the jury’s deliberations and denied that he told them to do anything. The trial court ruled that the sheriff had acted properly and denied Cotton’s motion for a mistrial.

FINGERNAIL COMPARISON EVIDENCE

Cotton first contends that the trial court erred in receiving fingernail comparison evidence as a reliable means of personal identification. He urges that we employ the criteria of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Supreme Court of Virginia has expressly declined to adopt the Frye test. Spencer v. Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621, cert. denied, 498 U.S. 908 (1990). See also O’Dell v. Commonwealth, 234 Va. 672, 696, 364 S.E.2d 491, 504, cert. denied, 488 U.S. 871 (1988). The Supreme Court has set forth explicitly the standard for determining the competence of scientific evidence.

When scientific evidence is offered, the court must make a threshold finding of fact with respect to the reliability of the scientific method offered, unless it is of a kind so familiar and accepted as to require no foundation to establish the fundamental reliability of the system, such as fingerprint analysis; or unless it is so unreliable that the considerations requiring its exclusion have ripened into rules of law, such as [311]

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630 S.E.2d 340 (Court of Appeals of Virginia, 2006)
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459 S.E.2d 527 (Court of Appeals of Virginia, 1995)
Cotton v. Com.
451 S.E.2d 673 (Court of Appeals of Virginia, 1995)

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Bluebook (online)
451 S.E.2d 673, 19 Va. App. 306, 1994 Va. App. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotton-v-commonwealth-vactapp-1994.