State Of Washington v. S.k.

• Court: Court of Appeals of Washington
• Decided: September 23, 2013
• Docket: 68653-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTOg g| CO

STATE OF WASHINGTON, ™ No. 68653-4-1 ^ ^>: Respondent, a*, wr; DIVISION ONE ^ ^~ v.

UNPUBLISHED OPINION & °^ S.K.,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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