State v. Carter

559 S.W.3d 92
Missouri Court of Appeals·Decided September 25, 2018·No. WD 80458·Published·Cited by 2 cases

Opinion

EDWARD R. ARDINI, JR., JUDGE

William Carter ("Carter") appeals his conviction entered by the Circuit Court of Jackson County for trespass in the first degree, a Class B misdemeanor. Carter alleges the trial court abused its discretion by prohibiting use of a report, Strengthening Forensic Science in the United States: A Path Forward ("NAS Report"), during the cross-examination of the State's fingerprint expert. Finding no abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 8:00 am on January 16, 2014, Michael Taylor ("Taylor") arrived home from work to find a mirrored closet door lying on his bedroom floor. An initial examination of the area revealed that guns were missing from the closet and an air conditioning unit had been removed from a window. After discovering his telephone lines had been cut, Taylor went to a neighbor's home and called police. Responding officers secured the house and allowed Taylor to inventory his belongings. He determined that a camera, tablet, and Xbox *94unit1 were also missing. In addition, investigators were able to lift fingerprints from the mirrored closet door.

During the course of the investigation, it was discovered that the Xbox unit had been pawned by Carter's uncle at a Cash America pawn shop in Kansas City approximately six days after the burglary. In addition, a fingerprint analyst, through use of the ACE-V method,2 determined that one of the fingerprints found on the mirrored closet door was a match to Carter. Despite being confronted with the report showing that his fingerprint had been found at the crime scene, Carter told police that he did not know Taylor, had never been in Taylor's home, and denied involvement in the burglary. Carter was charged with felony burglary in the second degree and felony stealing. A later-filed information in lieu of indictment reduced the second count to misdemeanor stealing.

Prior to trial, Carter filed a motion to exclude the evidence of the partial fingerprint comparison, using the NAS Report to argue that the scientific principles underlying fingerprint analysis are not reliable. The trial court denied the motion, finding that fingerprint comparison has long been recognized as reliable in the scientific community and admissible in the State of Missouri.3 See, e.g. , State v. Hightower , 511 S.W.3d 454, 459-60 (Mo. App. E.D. 2017) (holding that evidence from latent fingerprint examination using the ACE-V method was admissible under Frye as "sufficiently established to have gained general acceptance in the particular field in which it belongs" (citations and internal quotation marks omitted) ); see also State v. Phillips , 511 S.W.2d 841, 844 (Mo. 1974) (noting that evidence regarding the comparison of fingerprints is a matter for an expert witness and, "when testified to by an expert witness, is admissible to establish identity in criminal proceedings" (citation omitted) ).

The State thereafter filed a motion in limine , seeking to exclude reference to the NAS Report at trial because, the State argued, the report is not authoritative within the relevant scientific community. Defense counsel countered that the trial court was required to take judicial notice of the NAS Report under section 490.150,4 which provides that "[p]ublic documents, purporting to be edited or printed by authority of congress, or either house thereof, shall be evidence to the same extent that authenticated copies of the same would be." The trial court declined to take judicial notice of the report, noting that "[t]he document appear[ed] to be printed by or published by the National Research Council of the National Academies and the National Academies Press" rather than under the authority of congress as required by section 490.150. While refusing to take judicial notice of the NAS Report, the trial court agreed to allow defense counsel to voir dire the State's expert prior to her trial testimony for the purpose of establishing the foundational requirements for use of the report during the cross-examination of the expert.

*95During the trial, the State's fingerprint expert was questioned by defense counsel outside the presence of the jury. The expert confirmed familiarity with the NAS Report but made clear that it was not viewed as authoritative by any sanctioning body in her field. The expert further testified that, although other publications may provide recommendations and guidelines, standards within her field were established by the Federal Bureau of Investigation and Department of Justice. The trial court ruled that Carter had failed to establish the NAS Report was an authoritative writing in the field of fingerprint analysis and prohibited its use by Carter.5

Carter was found guilty of first-degree trespassing (a lesser-included offense of felony burglary in the second degree) and acquitted of the stealing charge. Carter moved for judgment of acquittal or, in the alternative, for a new trial, arguing that the trial court erred when it excluded reference to the NAS Report "in that this exhibit is a learned treatise under Missouri law and is a document edited or printed by the authority of Congress and therefore the court should have taken judicial notice [of the exhibit] under [section] 490.150." His motion was denied, and he was sentenced to six months in the Jackson County Department of Corrections. Execution of Carter's sentence was suspended, and he was placed on probation for two years.

PRESERVATION AND STANDARD OF REVIEW

Carter's sole point on appeal alleges the trial court abused its discretion by prohibiting use of the NAS Report, which he contends is a learned treatise, to cross-examine the State's fingerprint expert. Carter specifically claims that the trial court was required to take judicial notice of the report under section 490.150 because it is a "public document purporting to be edited or printed by authority of congress" and argues that the trial court's refusal to allow him to use the report was not harmless because he "would have likely successfully impeached the validity of the opinion of the fingerprint analyst[.]"

Prior to considering whether the trial court erred by not permitting use of the NAS Report, we must first determine whether the issue was preserved for our review. The State argues that Carter failed to preserve the claim of error because he never attempted to use the NAS Report at trial. See State v. Ryland , 533 S.W.3d 742, 751 (Mo. App. W.D. 2017) ("A ruling on a motion in limine is interlocutory and subject to modification at trial ...

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State v. Carter, 559 S.W.3d 92 (Mo. Ct. App. 2018).

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