Justia.com Opinion Summary: Defendant appealed from his convictions for Reckless Burning, Burglary in the Third Degree, two counts of Criminal Trespass in the Third Degree, and three counts of Arson in the Second Degree. At issue was the trial judge's decision allowing a latent fingerprint examiner, who had also been trained in tire track and shoeprint analyses, to testify as an expert that boot and tire tracks at arson scenes were consistent with defendant's boot and tire on his mountain bike. The trial judge found the examiner to be qualified by his knowledge, skill, training, experience or education under Rule 702 of the Delaware Rules of Evidence. The court found no abuse of discretion and affirmed the judgment.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
VICTOR RODRIGUEZ,
Defendant BelowAppellant,
v.
STATE OF DELAWARE,
Plaintiff BelowAppellee.
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No. 603, 2010
Court Below: Superior Court
of the State of Delaware in and
for Sussex County
ID No. 0904025840
Submitted: September 14, 2011
Decided: November 8, 2011
Before STEELE, Chief Justice, HOLLAND, and RIDGELY, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Santino Ceccotti, Esquire, of the Office of the Public Defender, Wilmington,
Delaware for Appellant.
Amy Adams, Esquire, of the Department of Justice, Georgetown, Delaware for
Appellee.
RIDGELY, Justice:
Defendant-Below/Appellant, Victor Rodriguez, appeals from his convictions
in Superior Court for Reckless Burning, Burglary in the Third Degree, two counts
of Criminal Trespass in the Third Degree, and three counts of Arson in the Second
Degree.
At issue is the trial judge’s decision allowing a latent fingerprint
examiner, who had also been trained in tire track and shoeprint analyses, to testify
as an expert that boot and tire tracks at arson scenes were consistent with
Rodriguez’s boot and the tire on his mountain bike. The trial judge found the
examiner to be qualified by his knowledge, skill, training, experience or education
under Rule 702 of the Delaware Rules of Evidence.
We find no abuse of
discretion and affirm.
Facts
On April 13, 2009, at approximately 5:30 a.m., the Milford Fire Company
responded to a fire reported at the Hampton Inn. Heavy flames were consuming
the first floor and extending to the second and third floors.
Approximately
twenty-five fire engines and one hundred firefighters were called to the scene.
Assistant Chief Fire Marshall Richard Ward determined that the Hampton Inn fire
had been set deliberately.
That same morning, at approximately 4:10 a.m., authorities responded to a
house fire at the intersection of Cedar Creek Road and Reynolds Pond Road in
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Milton. After investigation, Ward determined that this fire also had been set
deliberately.
A Milton police officer leaving the Reynolds Pond fire received a dispatch
regarding another house fire, this time at a model home in a new building site
called Milton Meadows. The 911 call regarding this fire came in at approximately
4:50 a.m. The officer arrived to find flames rolling out the back of the home and
along the siding. After investigation, authorities determined that this fire also had
been set deliberately. At the scene of the Milton Meadows fire, Deputy Fire
Marshall Harry Miller discovered and photographed two sets of fresh, undisturbed
bicycle tracks that led from the road to the area where the fire had originated.
On April 24, 2009, at approximately 3:50 a.m., another fire was reported at
the Heritage Creek Development.
Responders arrived to find 104 Heritage
Boulevard “engulfed in flames.”
Shortly after, the house at 102 Heritage
Boulevard caught fire. While searching the area for evidence, a fire marshal found
a third house fire, at 113 Arch Street.
Investigators found tire tracks and shoeprints in an alleyway between the
Heritage Boulevard house and the Arch Street house. Investigators took two
castings of the tracks, and Ward took pictures of the track impressions on his cell
phone. Tire tracks and shoeprints were also found at the rear of the Arch Street
house and by a nearby dumpster.
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Investigators determined that the April 13, 2009 fires followed a single line
of travel stretching sixteen miles from the Hampton Inn to Milton Meadows.
After the fires, investigators canvassed the area for a bicycle with tires that
matched the tire tracks found at the Milton Meadows scene. On April 15, Miller
found a green mountain bike belonging to Victor Rodriguez outside of Allen
Family Foods, a facility located 1.9 miles from Milton Meadows. The width and
tread of the bike tires appeared similar to those indicated by the tracks at the
Milton Meadows fire.
Rodriguez worked at Allen Family Foods. On April 13, 2009, he clocked in
late to work at 4:59 a.m. Rodriguez’s roommate testified that Rodriguez used his
bike to get around and to work. Investigators calculated the distance between the
April 13, 2009 fires, and determined that someone travelling on a bicycle at fifteen
miles per hour could have set the three fires and arrived at Allen Family Foods by
5:00 a.m.
On April 23, 2009, Rodriguez was seen riding his bicycle on Route 5,
approximately one-half of a mile north of where the Heritage Creek fires would
occur one day later. Rodriguez’s most direct route from his residence in Milton to
Allen Family Foods would have taken him on Route 5 past the Heritage Creek
Development. On April 24, 2009, Rodriguez rode his bike to work. He arrived
between 4:05 a.m. and 4:10 a.m., and had bags with him. Ward estimated that the
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Heritage Boulevard fire had been set that morning between 3:00 and 3:15 a.m. and
that the Arch Street fire had been burning since approximately 3:15 a.m.
Based on comparisons of Rodriguez’s bike tires to the tire impressions found
at the Milton Meadows fire and the Heritage Creek fire, and knowledge of
Rodriguez’s route of travel between his residence and Allen Family Foods, Deputy
Ward decided to charge Rodriguez with setting the fires.
Officials awaited
Rodriguez at his residence in Milton to arrest him. Rodriguez arrived in a white
pickup truck driven by his coworker and roommate. Rodriguez’s mountain bike,
which had been observed at Allen’s earlier that day, was in the back of the truck.
Rodriguez was also wearing the same rubber boots he wore for work. Ultimately,
the boots and the mountain bike were seized as evidence for later analysis.
During a search of Rodriguez’s rented room with his consent, officials found
four to seven bags full of newspapers in the room and a laptop computer. No shoes
were found.
The newspapers appeared to have been discarded by stores and did
not appear to have been read. Later investigation of the laptop revealed that, prior
to April 23, 2009, a user of Rodriguez’s laptop had viewed an April 14, 2009
Milton Beacon article describing the Milton fires.
At trial, the State proffered Rodney B. Hegman as an expert whose
testimony would connect Rodriguez’s bicycle and boots to the tire tracks and
shoeprints found at the scenes of the Milton Meadows fire and the April 24 fires.
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Rodriguez objected to the presentation of Hegman as an expert and challenged
Hegman’s qualifications.
During voir dire outside the presence of the jury, Hegman testified that he
had been a Delaware State Police employee for thirty-five years. Since 1981, he
had worked in the Latent Print Section of the State Bureau of Identification.
Ninety percent of his cases involved testimony on fingerprints.
Hegman acknowledged that training for fingerprint analysis differed from
training for tire track and shoeprint analysis.
He explained that in 1981, he
completed a Scientific Crime Detection correspondence course through the
American Institute of Applied Science, which covered shoeprints. In 1991, he
participated in a three-week training from the Federal Bureau of Identification
Training Academy at Quantico, Virginia on “Latent Fingerprint Contemporary
Approaches.” The FBI course focused on “evidence processing, arson
investigations, footwear impressions, tire impressions, and ear identification; the
use of laser technology and courtroom testimony,” so only a portion of the course
covered tire tracks and shoeprints. Hegman also testified that he read the first and
second editions of “Footwear Impression Evidence” by William Bodziak, a former
member of the FBI who Hegman described as “one of the leaders of forensic
experts in the country for footwear impressions.”
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Hegman stated that he had previously testified in Superior Court as an expert
in tire print analysis in New Castle and Kent Counties, and as an expert in
shoeprint analysis in Sussex County.
He also worked recently as a certified
instructor for a crime scene investigation class at the Delaware State Police
Academy.
On cross examination, Hegman acknowledged that (1) he had not been
certified by the FBI with respect to shoeprint and tire track identification; (2) he
had no special education or degree regarding shoeprint or tire identification; (3) he
did not belong to any professional association regarding shoeprint and tire marks;
and (4) he has not authored any papers or books in those specific fields. Hegman
also admitted that he was not familiar with how many types of bicycle tracks there
are or the companies that make bicycle tires.
At the conclusion of the voir dire, defense counsel renewed his objection to
Hegman’s testimony on grounds that he was not qualified to render an opinion
about tire tracks and shoeprints.
The trial judge overruled the objection and
relevantly explained:
The witness is offering an opinion that the boot and the tire
tracks are consistent with, probably made by the boot and bike
belonging to the defendant. The witness cannot say it’s a match
because of the absence of such distinctive characteristics for
which such an opinion would be made, by way of example a
DNA opinion.
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I am finding that the witness is certainly qualified as an expert
by knowledge, skill, training, experience, or education under
Delaware Rules of Evidence 702. He has for well over 30 years
been involved as a forensic-type examiner, that he has testified
many times in the field of fingerprints, and he has also offered
opinions on footprint and bicycle comparisons, certainly not as
often as the fingerprints but certainly he has done it, been
recognized to be an expert by the courts in this State.
From what the witness has testified to, I am satisfied that he has
the training and experience to make an opinion. He is even an
instructor, and to be an instructor, it just doesn’t come to
anyone. He has a defined trained eye in making these kind of
comparisons that there is the trained eye is a standard way that
this is done from his experience that he is applied to other cases
as well as this case as well, and that in the field there is a peer
review.
I am finding that evidence is otherwise admissible, relevant,
and reliable as to the kind of information that should reasonably
be relied upon in this profession considering everything that he
has shared with us. I don’t believe this would create unfair
prejudice or mislead the jury. This is fairly similar to the lay
opinion offered under Rule 701, and I am finding the probative
value of the evidence substantially outweighs the risk of the
prejudice under Rule 703.
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Shoeprint testimony satisfied with reliability of doubt or offered
testimony comparison of the print required a trained eye.
Techniques were generally accepted in the forensic community,
and methodology is subject to peer review, and the witness has
provided information that satisfies these concerns as well. So
all in all, I believe that enough has been raised to have him be
admitted as an expert so the defense objection is overruled.
Hegman testified before the jury that investigators brought him casts of
footwear and tire impressions, as well as physical evidence in the form of a pair of
rubber work boots and two bicycle tires. He “examined the bottom of each boot to
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determine or look for any unusual characteristics or individual characteristics that
would be unique to each boot.” The only distinctive characteristic or mark on the
boots that Hegman could detect was excessive wear on the left boot. He opined
that “the impression on the cast was made by a boot similar or almost similar” to
Rodriguez’s boot. Hegman also opined that Rodriguez’s bike tire and boots were
“consistent” with the prints left in the casting, but not a definitive match.
On cross-examination, defense counsel elicited that ninety percent of
Hegman’s work focused on fingerprints, that he had testified only four to five
times on tire tracks, that his 1981 class was by correspondence, and that the FBI
training class he attended in 1991 also covered other impression evidence. When
questioned, Hegman agreed that weight, force, and pace may affect shoeprint
analysis. He also agreed that “the condition of the soil, the nature of the soil, and
the pressure” could affect the cast made from an impression.
The fire marshals who responded to and investigated the fires also testified
at trial. Miller provided a lay opinion that the tire tracks he found at Milton
Meadows appeared similar to the tread of Rodriguez’s bike tires. Rodriguez did
not testify.
Rodriguez moved for a judgment of acquittal on three counts of arson and
two counts of trespass, all of which related to the April 13, 2009 fires. The trial
judge granted the motion as to two counts of arson and one count of trespass
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relating to the Hampton Inn fire and the Reynolds Pond Road fire, in part because
there was nothing to identify Rodriguez as present at the scenes of those fires. The
trial judge denied the motion in all other respects.
Rodriguez presented one alibi witness at trial and also argued there was
insufficient evidence to convict him. He did not testify. The jury found Rodriguez
guilty of Reckless Burning, Burglary in the Third Degree, two counts of Criminal
Trespass in the Third Degree, and three counts of Arson in the Second Degree.
After a presentence investigation, the trial judge sentenced Rodriguez as an
habitual offender. On each of the arson convictions he was sentenced to life
imprisonment. This appeal followed.
Discussion
Rodriguez contends that the trial judge committed reversible error by
allowing Hegman to testify as an expert in tire track and shoeprint analysis.
Rodriguez argues that tire track and shoeprint analysis are part of a “separate and
distinct forensic science discipline” as compared to fingerprint analysis and that
“as experienced as Hegman may be in many aspects of fingerprint analysis, he was
not qualified to be an expert in the field of footprint and tire track identification.”
Rodriguez also challenges the trial judge’s description of Hegman as having a
“trained eye.”
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Delaware Rule of Evidence 702 governs the admission of expert witness
testimony. “If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training or education may
testify thereto in the form of an opinion or otherwise.”1 We have adopted the
interpretation of Rule 702 set forth by the United States Supreme Court in Daubert
and Kumho Tire for Federal Rule of Evidence 702.2 Thus, we recognize that the
trial judge has a responsibility to “ensure that any and all scientific testimony . . . is
not only relevant, but reliable.”3 Daubert identified four factors that the trial judge
may consider in exercising this gatekeeping function: “testing, peer review, error
rates, and ‘acceptability’ in the relevant scientific community.”4
The purpose of the trial judge’s gatekeeping role “is to make certain that an
expert, whether basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.”5
When the foundation of an expert’s
opinion is challenged, the trial judge must decide if the expert’s testimony “has a
1
D.R.E. 702.
See M.G. Bancorporation v. Le Baue, 737 A.2d 513, 522 (Del. 1999).
3
Id. at 521 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct.
2786 (1993)).
4
M.G. Bancorporation v. Le Baue, 737 A.2d at 521 (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. at 593–94, 113 S. Ct. 2786)).
5
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167 (1999).
2
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reliable basis in the knowledge and experience of [the relevant] discipline.”6 We
review a trial judge’s decision to admit expert testimony for abuse of discretion
“because trial judges, as gatekeepers, ‘must have considerable leeway in deciding
in a particular case how to go about determining whether particular expert
testimony is reliable.’”7
Here, the record shows that Hegman participated in an FBI course of
instruction that covered tire track and shoeprint analysis, independently studied a
leading treatise on the discipline, and previously testified on the analysis of tire
tracks and shoeprints in Delaware courts. Hegman also demonstrated knowledge
of the variables that could affect impressions, including the type of surface and
degree of tire inflation.
Rodriguez relies upon Reynolds v. State8 to support his argument that
Hegman’s qualifications were insufficient. In Reynolds, this Court held that a
chief investigating officer could not testify as a fingerprint expert where the officer
had never worked with fingerprints or classified them and cross-examination of the
officer “demonstrated scant knowledge at best.”9 Reynolds is distinguishable.
Unlike the witness in Reynolds, Hegman had both training and actual field
6
M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 523 (Del. 1999) (quoting Daubert, 509
U.S. at 589, 113 S. Ct. 2786)).
7
Rivera v. State, 7 A.3d 961, 972 (Del. 2010) (quoting Garden v. State, 815 A.2d 327, 338 (Del.
2003)).
8
424 A.2d 6 (Del. 1980).
9
Id. at 8.
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experience in tire track and shoeprint analysis, demonstrated his knowledge of the
variables that would affect the creation of impression evidence, and he had testified
as an expert before on both tire track and shoeprint analysis.
Moreover, Hegman’s expertise in fingerprint analysis was relevant to his
experience with impression evidence. While tire track and shoeprint analysis may
be viewed as a distinct forensic discipline from fingerprint analysis because it
involves mass-produced items, the analytic process is similar. Specifically, tire
tracks, shoeprints, and fingerprints are all forms of impression evidence.10
Forensic analysis of fingerprints “consists of experience-based comparisons of
impressions left by the ridge structures” of hand surfaces.11
Tire track and
shoeprint analysis, like fingerprint analysis, seeks to identify the source of the
impression by identifying and comparing particular characteristics.12
Hegman
compared castings of the tracks and prints found at the fires to direct physical
evidence: Rodriguez’s boots and bike tires. He explained his process of measuring
and then comparing specific characteristics between the impressions and the
physical evidence. Thus, while Hegman’s substantial experience in fingerprint
analysis does not alone support his admission as an expert in other forms of
10
See Hon. Donald E. Shelton, Forensic Science in Court: Challenges in the Twenty-First
Century, at 40 (2011); National Research Council of the National Academies, Strengthening
Forensic Science in the United States: A Path Forward, at 136, 145 (2009) (“NAS Report”).
11
NAS Report, at 136.
12
NAS Report, at 146.
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impression analysis, the trial judge did not abuse his discretion in considering that
experience and training as relevant.
Finally, the defense had the opportunity to cross-examine Hegman on the
stand regarding his background, experience, and methodological approach.
“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”13 “Like expert witnesses generally, an
analyst’s lack of proper training or deficiency in judgment may be disclosed in
cross-examination.”14 By probing Hegman on his particular experience in tire
track and shoeprint analysis, defense counsel challenged his credibility before the
jury and the weight to be given the impression evidence. Once Hegman had been
qualified under Rule 702 and his testimony met the threshold for admissibility, it
was for the jury to determine the weight to be given his testimony.
We find no abuse of discretion by the trial judge in finding Hegman
qualified as an expert in tire track and shoeprint analyses by knowledge, skill,
training, experience or education under Rule 702 of the Delaware Rules of
13
Daubert, 509 U.S. at 595–96.
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2537 & n.6 (U.S. 2009) (rejecting suggestion
that forensic evidence is uniquely reliable and cross-examination of forensic analysts futile).
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Evidence.
This conclusion is also consistent with that of other jurisdictions
addressing the admissibility of expert testimony regarding impression evidence.15
Conclusion
The judgment of the Superior Court is AFFIRMED.
15
See Wade v. State, 490 N.E.2d 1097, 1104–05 (Ind. 1986) (holding that trial court did not
abuse its discretion in qualifying witness as expert in shoeprint identification where witness was
“assigned to laboratory work on ‘trace evidence,’ including physical comparisons”);
Commonwealth v. Cortez, 777 N.E.2d 1254, 1258 (Mass. 2002) (holding trial court did abuse its
discretion in allowing officer to provide expert testimony that shoeprints found at scene were
“consistent with” defendant’s shoeprints where officer was recognized as fingerprint expert, and
had received training and testified as an expert in shoeprint analysis); Doisher v. State, 632 P.2d
242, 256 (Alaska Ct. App. 1981) (concluding lab technician with expertise in fingerprint analysis
was qualified to testify on shoeprint analysis and stating that “a witness need not devote full time
to an area of knowledge in order to qualify as an expert[;] it suffices if the witness has the
requisite intelligence and reasonable contact with the subject matter to demonstrate expertise
with reasonable skill”); State v. Jeter, 609 So.2d 1019, 1022–23 (La. Ct. App. 1992) (holding
that trial court did not abuse its discretion in qualifying witness as expert in shoeprint
identification where witness worked “for seven years in crime scene detection, which included
processing the crime scene, lifting fingerprints, collecting evidence, taking photographs, and
other types of analysis such as shoe prints”); Rodgers v. State, 205 S.W.3d 525, 533 (Tex. Crim.
App. 2006) (finding fingerprint expert qualified in shoeprint and tire track analysis and noting
jury’s ability to weigh evidence). See generally E. LeFevre, Footprints as Evidence, 35
A.L.R.2d 856 (originally published in 1954); United States v. Ford, 481 F.3d 215, 217–21 (3d
Cir. 2007).
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