MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 14 2019, 9:23 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Marietto V. Massillamany Curtis T. Hill, Jr. Thomas W. Blessing Attorney General of Indiana Latoya T. Highsaw Fishers, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark Adrian Hughes, May 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1007 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Jonathan M. Appellee-Plaintiff Brown, Judge Trial Court Cause No. 29D02-1510-F5-9122
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 1 of 20 Case Summary1
[1] In 2015, Mark Adrian Hughes was charged with two counts of burglary as
Level 5 felonies and two counts of theft as Level 6 felonies stemming from the
2014 breaking and entering of two newly-constructed homes in Carmel and the
theft of stainless-steel appliances installed therein. The matter proceeded to a
jury trial. During trial, and over Hughes’s objection, the trial court permitted
the State to introduce evidence that in 2006 Hughes had been convicted of
burglary and theft of stainless-steel appliances from newly-constructed homes in
the Carmel area to show identity, common scheme or plan, or motive. The jury
found Hughes guilty as charged, 2 and the trial court subsequently determined
him to be a habitual offender. The trial court then sentenced Hughes to an
aggregate term of ten years, with two years suspended. On appeal, Hughes
presents four issues for our review, one of which we find dispositive: Did the
trial court abuse its discretion in admitting evidence of Hughes’ prior
convictions? Because we find in Hughes’s favor on this issue and remand for a
new trial, we address Hughes’s challenge to Final Instruction 15.
[2] We reverse and remand.
1 We held oral argument at Ivy Tech Community College - Lafayette on April 11, 2019, as part of our Appeals on Wheels program. We thank the staff for our warm reception and the students for their professionalism and attentiveness throughout the argument. We also commend counsel on the quality of their written and oral advocacy. 2 The trial court merged the theft convictions with the burglary convictions.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 2 of 20 Facts & Procedural History
[3] In July 2014, Pulte Homes was finishing construction on a new spec home
located on Repass Drive in Carmel. On July 10, a resource planning manager
for Pulte went to check on the Repass Drive house and discovered that the
house had been broken into and that the stainless-steel appliances, including a
cooktop, microwave, dishwasher, and refrigerator, had been removed. He
reported the burglary to the Carmel Police Department (CPD).
[4] CPD officers secured the scene. During their investigation, they learned that a
wooden barrier placed across the driveway had been removed, the front door
had been kicked in or pried open, the interior door between the house and the
garage had been taken off its hinges, and the garage door had been released
from its tracks. The officers also noted muddy shoeprints on the hardwood
floors throughout the first floor. John Elliott, a civilian evidence technician
with CPD, collected electrostatic lifts and photographs of the shoeprints. Based
on the visible tread design and Jumpman logo, Elliott determined the
shoeprints were made by a pair of size 10 ½ or 11 Nike Air Jordan athletic
shoes.
[5] On July 21, 2014, CPD officers responded to another reported burglary on
President Street in Carmel. A construction manager for Fischer Homes went to
check on the home at this address and discovered that the stainless-steel
appliances, including the refrigerator, dishwasher, cook top, double oven,
washer, and dryer, had been removed. At this home, there was no forced entry
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 3 of 20 because the construction manager left finished homes unlocked. However, as
with the Repass Drive home, there were muddy footprints throughout and the
door between the house and the garage had been removed from its hinges.
Elliott also responded to this burglary scene. He noted that there were fewer
shoeprints and documented them with electrostatic lifts and photographs. The
shoeprints were similar to those found in the Repass Drive home in that they
were made by a size 10 ½ or 11 shoe that had a Jumpman logo molded into the
sole.
[6] Elliott, who had over thirty years of experience with CPD, noticed what he
considered to be similarities between these recent burglaries and two other
burglaries he had investigated in 2006 that were within the same area of
Carmel. 3 One of the prior burglaries was committed at a newly-constructed
home on Montcalm Street in Carmel on January 10, 2006. During that
burglary, forced entry into the home was made through an exterior garage door
and the stainless-steel wine cooler and oven were removed. The stainless-steel
refrigerator had been moved from the kitchen but was left in the passageway
between the kitchen and the garage after it became stuck. Also, the stainless-
steel oven had been pried from the cabinetry, but was left behind.
[7] The second of the prior burglaries occurred on December 15, 2006, at a newly-
constructed home on Salamone Way in Carmel. Forced entry was made
3 All four burglaries occurred within a three-to-five-mile radius of Carmel.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 4 of 20 through a rear door off of the deck. Inside the house, the kitchen island had
been broken loose from the floor and several appliances had been removed,
except for the stainless-steel oven, which was found in the garage. Footprints
on the hardwood floor led to the garage, where the door between the house and
the garage had been removed from its hinges. A fingerprint was recovered
during the investigation of this burglary and identified as belonging to Hughes.
Hughes was charged with and ultimately pled guilty to burglarizing the
Montcalm Street and Salamone Way houses.
[8] Having identified Hughes as a suspect in the Repass Drive and President Street
burglaries, police attempted to locate him and learned that he was incarcerated
in the Hendricks County Jail. In October 2014, police obtained a warrant for
Hughes’s personal property that was being held by the jail and obtained the
shoes Hughes was wearing when he was arrested on July 26, 2014. The shoes
were size 11 Nike Air Jordan athletic shoes with a Jumpman logo molded into
the soles. Hughes’s shoes were sent to the Indiana State Police (ISP) laboratory
for examination.
[9] Sean Matusko, a forensic scientist with the ISP laboratory’s latent-print unit,
had undergone in-house training in shoeprint identification and had taken a
class and attended eight conferences on the subject. Matusko explained in
detail the four-step process he used in positively identifying seven shoeprints left
at the Repass Drive house and one shoeprint left at the President Street house
as being made by Hughes’s shoes.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 5 of 20 [10] On October 13, 2015, the State charged Hughes with two counts of burglary as
Level 5 felonies and two counts of theft as Level 6 felonies. The State also
alleged Hughes was a habitual offender. On February 12, 2016, the State filed a
notice of intent to introduce 404(b) evidence, generally alleging that Hughes
had committed other similar burglaries. Hughes objected. The trial court held
a hearing on the matter of 404(b) evidence, and on May 13, 2016, the court
ruled that the State could introduce evidence of Hughes’s 2006 convictions to
show identity and plan. 4
[11] On February 7, 2018, Hughes filed a motion to exclude evidence that the
shoeprints found at the scenes of the two burglaries matched his shoes. On
February 14, 2018, Hughes filed a notice of discovery stating his intent to offer
into evidence at trial a publication by The President’s Council of Advisors on
Science and Technology (PCAST) that cast doubt on the scientific reliability of
shoeprint analysis when offered in court to prove that a shoeprint was made by
a particular shoe. The State filed a motion in limine to exclude the PCAST
publication from evidence. The court held a hearing on these pending motions
on March 2, 2018. At this hearing, Hughes argued that the PCAST publication
was admissible and cross-examined Matusko regarding the contents thereof.
The State argued that the PCAST publication was inadmissible because it was
hearsay. The State also argued that because Matusko was a witness with
4 Thereafter, Hughes filed a motion to exclude the evidence of his prior convictions pursuant to Ind. Evid. R. 403, which motion the trial court denied. The trial court granted Hughes’s request to certify the matter for interlocutory appeal. This court, however, declined to accept jurisdiction.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 6 of 20 specialized knowledge whose testimony was governed by Ind. Evidence Rule
701, rather than an expert witness under Evid. R. 702, the PCAST publication
could not be used to cross-examine him about the scientific reliability of the
process he utilized.
[12] At the conclusion of the hearing, the trial court determined that Matusko was a
skilled witness and therefore ruled that the PCAST publication would not be
admissible at trial and that Hughes would not be permitted to cross-examine
Matusko regarding the contents of the publication. The trial court also denied
Hughes’s motion to exclude the shoeprint evidence, in particular Matusko’s
testimony that shoeprints found at both crime scenes were made by Hughes’s
[13] A jury trial was held on March 14 and 15, 2018. During opening statements,
the State told the jury that Elliott, who had responded to both crime scenes,
“recognize[d] these burglaries as being very similar to ones committed in the
past by Mark Hughes.” Transcript Vol. 3 at 85. Hughes objected. At the close
of the State’s evidence, Hughes moved for a directed verdict, which the trial
court denied. Over Hughes’s objection, the trial court provided the jury with
Final Instruction 15, which states:
Generally, a witness may not express an opinion. However, one who follows a profession or special line of work is permitted to express an opinion because of his knowledge, skill, experience, training, or education of the witness. The purpose of such testimony is to help you in arriving at a just verdict.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 7 of 20 You should judge the testimony of an expert witness in the same manner as you do the testimony of any other witness. In deciding its weight, you may take into consideration the expert’s skill, experience, knowledge, veracity, familiarity with the facts of the case, and the general rules for deciding the credibility of witnesses.
Transcript Vol. 5 at 135 (emphasis supplied).
[14] The jury found Hughes guilty on all charges. Hughes waived his right to a jury
with respect to the habitual offender phase. The trial court then found Hughes
to be a habitual offender. The trial court entered convictions on only the
burglary counts and sentenced Hughes to an aggregate sentence of ten years,
with two years suspended to probation, to be served consecutively to the
sentence imposed in an unrelated case. Hughes now appeals. Additional facts
will be provided as necessary.
Discussion & Decision
1. 404(b) Evidence
[15] In assessing the admissibility of evidence under Evid. R. 404(b), the trial court
must: (1) determine whether the evidence is relevant to a matter at issue other
than the defendant’s propensity to commit the charged act; and (2) balance the
probative value of the evidence against its prejudicial effect pursuant to Indiana
Evidence Rule 403. Ceaser v. State, 964 N.E.2d 911, 915 (Ind. Ct. App. 2012),
trans. denied. We review evidentiary decisions for an abuse of discretion and
will reverse only when the decision is clearly against the logic and effect of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 8 of 20 facts and circumstances before the trial court. Nicholson v. State, 963 N.E.2d
1096, 1099 (Ind. 2012). “A claim of error in the exclusion or admission of
evidence will not prevail on appeal unless the error affects the substantial rights
of the moving party.” McCarthy v. State, 749 N.E.2d 528, 536 (Ind. 2001).
[16] Our Supreme Court recognized long ago:
The notion that the State may not punish a person for his character is one of the foundations of our system of jurisprudence. Evidence of misconduct other than that with which one is charged (“uncharged misconduct”) will naturally give rise to the inference that the defendant is of bad character. This, in turn, poses the danger that the jury will convict the defendant solely on this inference.
Exceptions to this rule must be applied with caution. Evidence of uncharged misconduct is generally inadmissible if its sole relevance is to show that the defendant's general character is bad and that he therefore has a tendency to commit crimes.
Penley v. State, 506 N.E.2d 806, 808 (Ind. 1987) (internal quotations and
citations omitted).
[17] As a general rule, evidence of prior crimes may not be used as evidence “to
prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Evid. R. 404(b)(1). The well-
established rationale behind this rule is that the jury is precluded from making
the “forbidden inference” that the defendant had a criminal propensity and
therefore engaged in the charged conduct. Hardin v. State, 611 N.E.2d 123, 129
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 9 of 20 (Ind. 1993). Such evidence, however, may be admissible “for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Evid. R. 404(b)(2). Here, the
trial court admitted Hughes’s prior convictions as proof of identity and plan.
[18] The identity exception was carved out primarily for crimes “so nearly identical
that the modus operandi is virtually a ‘signature.’” Allen v. State, 720 N.E.2d
707, 711 (Ind. 1999) (citing Thompson v. State, 690 N.E.2d 224, 234 (Ind. 1997)).
In considering whether identity evidence constitutes a signature crime, the focus
is on whether “the crimes, or means used to commit them, were so similar and
unique that it is highly probable that the same person committed all of them.”
Thompson, 690 N.E.2d at 234 (citing Lockhart v. State, 609 N.E.2d 1093, 1097
(Ind. 1993)). “[T]he repeated commission of similar crimes is not enough to
qualify for the exception to the general rule. The acts or methods employed
must be so similar, unusual and distinctive as to earmark them as the acts of the
accused.” Willis v. State, 374 N.E.2d 520, 522 (Ind. 1978).
[19] In Allen, supra, this court identified circumstances between two crimes that were
so strikingly similar as to qualify as a signature crime. In that case, the victim
(Jackson) had been bound with duct tape around her arms, legs and from ear to
ear, sexually assaulted, and strangled to death. Police recovered a note from
the victim’s bedroom with the defendant’s pager number and the name “Play.”
During the investigation into the victim’s murder, the defendant was arrested
for raping another woman (Franklin), who said that the defendant introduced
himself to her as “Play”, had given her his pager number, bound her hands with
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 10 of 20 duct tape, threatened to bind her mouth and legs with duct tape, and raped her.
Police believed that the two crimes were similar in that both victims were
bound with duct tape, sexually assaulted, and both had defendant’s pager
number and knew him as “Play.” The defendant was charged for the Franklin
incident and found not guilty of robbery and criminal deviate conduct and the
jury hung on the rape and confinement charges.
[20] At the jury trial for the murder of Jackson, the State was permitted to introduce
evidence of the rape of Franklin to prove defendant’s identity as the perpetrator
of the murder and sexual assault of Jackson. Our Supreme Court considered
the similarities in the crimes, noting that both victims were African-American
teenage girls, both crimes occurred in the same neighborhood within two
months of each other, one victim had her assailant’s beeper number and knew
him as “Play” and a piece of paper found in the murder victim’s bedroom had
the defendant’s beeper number and the name “Play” written on it, both victims
were bound with duct tape, in both cases the duct tape was removed after the
attack, and both incidents involved some sort of anal probing or penetration. In
light of the striking similarities in the crimes, the Supreme Court held that the
trial court did not abuse its discretion in admitting the evidence of the rape of
Franklin under the identity exception of Evid. R. 404(b).
[21] The Court further concluded that because such evidence was substantially
probative as to the identity of the decedent’s attacker, such outweighed the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 11 of 20 danger of unfair prejudice. 5 Cf. Manuel v. State, 793 N.E.2d 1215 (Ind. Ct. App.
2003) (holding that child victim’s testimony about prior uncharged molestations
her father committed against her was not admissible to prove identity where
victim’s testimony was extremely vague and only purpose was to establish
defendant’s propensity to commit the crime); Berry v. State, 715 N.E.2d 864
(Ind. 1999) (holding that similarities between two crimes—perpetrator of each
crime was wearing a blue jacket and used a shotgun—were not sufficiently
distinctive to make evidence of the second crime admissible under Evid. R.
404(b)).
[22] Hughes argues that, unlike in Allen, the circumstances giving rise to his prior
convictions were not so strikingly similar to the current offenses as to establish a
signature. Hughes asserts that eight years passed between commission of the
offenses and that “the only apparent similarity” between the 2006 burglaries
and the current offenses is that they both involve theft of stainless-steel
appliances from newly-constructed homes in Carmel, circumstances which
Hughes claims are not unique. Appellant’s Brief at 17. Hughes also points out
the differences in the burglaries, including that in the prior burglaries an
appliance was left at the scene while all were taken in the recent burglaries and
that the manner of entry for each burglary was different. Hughes asserts that
many burglaries and thefts will have rough parallels. He admits that his prior
5 In Caldwell v. State, 43 N.E.3d 258, 265 (Ind. Ct. App. 2015), trans. denied, this court referred to the Allen case as “illustrat[ing] just how similar two crimes must be in order to constitute a ‘virtual signature.’”
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 12 of 20 burglaries are similar to the current offenses, but maintains that they are not so
strikingly similar or unique as to constitute a signature for purposes of
establishing identity.
[23] In response, the State asserts that the time period between the burglaries is not
essential to our analysis and that such detracts from the “significant
commonalities” between the 2006 and 2014 burglaries that establish the modus
operandi, including that the past and present burglaries involved the theft of
stainless-steel appliances from newly-constructed homes, the appliances were
removed through the garage, in three of the four burglaries the door between
the house and the garage was removed from its hinges, and all four burglaries
were in close proximity. Appellee’s Brief at 18.
[24] We agree with Hughes that the similarities between the 2006 burglaries and the
current burglaries present only a “loose common denominator.” Appellant’s
Brief at 18. The circumstances and the manner in which the burglaries were
carried out are not so unique or strikingly similar that it is highly probable that
the same person committed all of them. Indeed, with regard to the similarities,
the State observes that stainless-steel appliances are common fixtures. Further,
appliances, unlike copper wiring, plumbing, or pipes, are more readily movable
from a home that is near the end of the construction process. Finally, the fact
that the door between the kitchen and the garage was removed from its hinges
is not particularly unique given that the nature of the items taken—i.e., bulky,
heavy appliances.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 13 of 20 [25] By definition, many burglaries and thefts will have rough parallels. Here, a
comparison of the circumstances surrounding the 2006 burglaries and the 2014
burglaries demonstrate that the offenses were generally similar. We, however,
find nothing so strikingly similar or unique about the circumstances as to
constitute a signature. Rather, the admission of evidence pertaining to
Hughes’s prior convictions for burglary eight years prior served only to prove
that he had a propensity to commit burglary. This is not permissible. See Willis,
374 N.E.2d at 522.
[26] The State also asserts, and the trial court found, that aside from identity, the
evidence of Hughes’s prior convictions was admissible to establish Hughes’s
plan to gain by stealing stainless-steel appliances from newly-constructed homes
in a narrowly-targeted area. Evid. R. 404(b)(2). The State further points out
that the trial court admonished the jury at the time the evidence was
introduced 6 and instructed the jury as part of final instructions 7 that Hughes’s
6 The trial court admonished the jury as follows:
All right. I have an instruction for you with regards to that document. Okay? So the evidence has been introduced that the Defendant was involved in crimes other than those charged in the information. This evidence has been received solely on the issue of Defendant’s identity and plan. This evidence should be considered by you only for that limited purpose. Transcript Vol. 4 at 176. 7 Final Instruction No. 14 provided:
Evidence has been introduced that the Defendant was involved in crimes other than those charged in the information. This evidence has been received solely on the issue of Defendant’s identity and plan. This evidence should be considered by you only for that limited purpose. Transcript Vol. 5 at 134-35.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 14 of 20 2006 convictions were to be considered solely on the issue of Hughes’s identity
or plan.
[27] The plan exception of Evid. R. 404(b), permits “proof of an uncharged crime as
evidence of a preconceived plan which included the charged crime.” Lannan v.
State, 600 N.E.2d 1334, 1339 (Ind. 1992). “The crimes must, therefore, be so
related in character, time and place of commission as to establish some plan
which embraced both the prior and subsequent criminal activity and the
charged crime.” Id. (quoting Malone v. State, 441 N.E.2d 1339, 1347 (Ind.
1982)). In addition to finding only general similarities between the 2006 and
2014 burglaries, we note that eight years passed between the two sets of
burglary offenses. Given these circumstances, Hughes’s prior convictions were
not relevant to establishing a plan.
[28] More importantly, we have long observed that evidence of a prior conviction is
as prejudicial as evidence can get, and admission of such evidence requires a
strong showing of probative value. See Evid. R. 403. Hughes’s prior
convictions were not admissible to prove identity or plan and served only to
establish a propensity to commit burglary. The probative value of such prior
convictions does not even come close to outweighing the prejudice Hughes
suffered from admission of such evidence. Our cases have long admonished
that “one crime cannot be proved in order to establish another distinct crime
even though they be of the same kind. Such evidence is highly prejudicial.”
Loveless v. State, 166 N.E.2d 864, 866 (1960) (in prosecution for burglary,
erroneous admission of defendant’s alleged involvement in prior burglaries
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 15 of 20 required new trial). The admission of evidence relating to Hughes’s prior
burglary convictions affected his substantial rights, and the trial court’s
admonishment and instructions to the jury to consider such evidence only for
the limited purpose of Hughes’s identity and plan did not negate the substantial
prejudice he suffered.
[29] We also reject the State’s suggestion that such error was harmless. Errors in the
admission of evidence are harmless when “the conviction is supported by
substantial independent evidence of guilt so as to satisfy the reviewing court
that there is no substantial likelihood the questioned evidence contributed to the
conviction.” Messel v. State, 80 N.E.3d 230, 232 (Ind. ct. app. 2017), trans.
denied. Without the evidence of Hughes’s prior convictions, the State’s case
consisted of the shoeprint evidence, which established only his presence at the
crime scenes at some point. 8 There were no eyewitnesses, no other physical
evidence placing Hughes at the crime scenes, and no evidence linking him to
the missing appliances. The State’s meager evidence only confirms that the
erroneous admission of Hughes’s prior convictions contributed to his
convictions.
[30] Because we reverse Hughes’s convictions and remand for further proceedings,
we address two additional issues presented by Hughes that might arise on
remand. First, Hughes argues the trial court erred in finding that Matusko was
8 “[M]ere presence at the crime scene with opportunity to commit a crime is not a sufficient basis on which to support a conviction.” Brink v. State, 837 N.E.2d 192, 194 (Ind. Ct. App. 2005), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 16 of 20 a skilled witness, as opposed to an expert witness, thereby allowing Matusko to
give expert opinion testimony without requiring the State to demonstrate the
reliability of the scientific principles upon which Matusko’s opinion were based.
[31] A skilled witness does not have the “scientific, technical, or other specialized
knowledge” of experts and their testimony is based on their perceptions alone,
not necessarily established scientific principles. Satterfield v. State, 33 N.E.3d
344, 352-53 (Ind. 2015). An expert witness is “qualified . . . by knowledge,
skill, experience, training, or education” and “may testify in the form of an
opinion or otherwise.” Evid. R. 702(a). “Expert scientific testimony is
admissible only if the court is satisfied that the expert testimony rests upon
reliable scientific principles.” Evid. R. 702(b). Whether a witness qualifies as
an expert witness is a matter within the trial court’s sound discretion. Kubsch v.
State, 784 N.E.2d 905, 921 (Ind. 2003). In the area of shoeprint identification,
witnesses have been treated as both skilled and expert witnesses.
[32] In Stroud v. State, 809 N.E.2d 274 (Ind. 2004), our Supreme Court upheld the
admission of a police officer’s testimony comparing the size for Reebok and
Nike shoes from his personal experiences under Evid. R. 701. In West v. State,
755 N.E.2d 173 (Ind. 2001), the State specifically offered, and the trial court
admitted, testimony from a shoeprint examiner under Evid. R. 702. The Court
noted that the witness described his duties at the crime lab, the process of lifting
and comparing shoeprints, and testified that footwear examination is “generally
accepted within the scientific community.” West, 755 N.E.2d at 181. The
Court also noted that the witness testified he had participated in an
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 17 of 20 international symposium on recovery and enhancement techniques for
shoeprint analysis and described the procedure he used in comparing the
shoeprint found at the scene with a particular brand. The Court noted that the
testimony provided by the shoeprint examiner was “on the margins of
testimony governed by Rule of Evidence 702(b),” but noted that “[t]o a great
extent, it [wa]s simply a matter of observations of persons with specialized
knowledge.” Id. 9 The Court held that the trial court did not abuse its discretion
in admitting the testimony of the shoeprint examiner under Evid. R. 702.
[33] Hughes challenges the trial court’s treatment of the State’s shoeprint examiner,
Matusko, as a skilled witness. Here, Matusko did not simply testify based on
his personal experience as did the police officer in Stroud. Rather, like the
shoeprint examiner in West, Matusko identified himself as a forensic scientist
assigned to the latent print identification unit of the Indiana State Police, set out
his academic background, detailed his training with regard to shoeprint
identification, and explained in detail the process he used to identify shoeprints
at both crime scenes as being made by Hughes’s shoes. With its decisions in
Stroud and West, our Supreme Court has indicated that it is not inclined to
consider all testimony relating to shoeprint identification to be opinion
testimony governed by Evid. R. 702. In light of such precedent and our
9 See also Turner v. State, 953 N.E.2d 1039, 1053 (Ind. 2011) (noting that firearm identification, like shoeprint identification, can “straddle[] the line” between evidence admissible under Evid. R. 701 and 702).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 18 of 20 standard of review, we cannot say that the trial court abused its discretion in
admitting Matusko’s testimony under Evid. R. 701.
[34] We are troubled, however, by the trial court’s giving of Final Instruction 15,
which twice refers to testimony of an expert witness. Matusko is the only State
witness who could have been perceived by the jury to have been such an expert.
Final Instruction 15 is problematic for two reasons. In so instructing the jury,
the trial court essentially identified Matusko as an expert and enhanced his
credibility. See Turner v. State, 953 N.E.2d 1039, 1054 n.7 (Ind. 2011)
(acknowledging the risk that a jury will attach greater weight to an expert
witness due to the expert’s background and approach); see also Ruiz v. State, 926
N.E.2d 532, 535 (Ind. Ct. App. 2010), trans. denied. Second, the trial court’s
determination that Matusko was not an expert served as the basis for limiting
Hughes’s cross-examination of him regarding the scientific reliability of the
process on which he based his opinion. 10 On retrial, if the court reaches the
same conclusion that Matusko is not an expert, what is delineated as Final
Instruction 15 in this case would not be a proper instruction to be given to the
jury.
[35] Judgment reversed and remanded for further proceedings.
10 As set out above, Hughes sought but was denied the opportunity to cross-examine Matusko with findings set out in the PCAST publication concerning reliability of shoeprint identification. Although we did not reach the merits of the admissibility of the PCAST publication, cross-examination regarding the findings therein was permissible regardless of whether Matusko was an expert or a skilled witness.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 19 of 20 Baker, J. and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019 Page 20 of 20