#27194-a-SLZ

2016 S.D. 11

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

TROY LEE REINHARDT,                          Defendant and Appellant.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                      THE HONORABLE MARK SALTER
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


KRISTI JONES
Minnehaha County
 Public Advocates Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 11, 2016

                                             OPINION FILED 02/03/16
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ZINTER, Justice

[¶1.]        Troy Reinhardt was convicted of simple assault. He appeals the circuit

court’s refusal to give a definitive ruling, at the close of the State’s evidence, on his

request for a self-defense jury instruction. Reinhardt also contends that the

admission of certified copies of his fingerprint cards from prior arrests in Iowa and

Nebraska violated his Sixth Amendment right of confrontation in a subsequent

court trial on a habitual criminal information. We affirm.

                             Facts and Procedural History

[¶2.]        Reinhardt’s assault charge arose out of an incident in which he

punched another person while in the lobby of the Minnehaha County Jail. During a

two-day jury trial, the State elicited testimony from the victim, eyewitnesses, and

jail personnel. After the State rested its case, the court distributed its proposed jury

instructions. The court did not include Reinhardt’s requested self-defense

instruction. The following morning, the court inquired whether Reinhardt was

going to testify. Reinhardt’s counsel stated that if the court was still not inclined to

give a self-defense instruction, Reinhardt would testify. The court indicated the

State’s evidence was insufficient to support such an instruction. Reinhardt then

took the stand and testified that he was defending himself in the incident. He

alleged that he punched the victim in response to being pushed. At the conclusion

of all the evidence, the court gave the jury a self-defense instruction. The jury

returned a guilty verdict.

[¶3.]        A court trial was subsequently held on the habitual criminal

information. The information alleged that Reinhardt had been convicted of two


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prior assaults: one on August 12, 2003, in Woodbury County, Iowa; and another on

September 12, 2008, in Douglas County, Nebraska. During that trial, over

Reinhardt’s objection, the State introduced certified fingerpint cards it acquired

from Iowa and Nebraska agencies that had fingerprints relating to Reinhardt’s

convictions in those jurisdictions. Marc Toft, of the Sioux Falls Crime Laboratory,

testified that he compared the fingerprints on the fingerprint cards with the

fingerprints taken from Reinhardt following the assault in South Dakota. Toft

opined that all three sets of fingerprints were taken from Reinhardt. The circuit

court found that Reinhardt had been convicted of all three offenses, and the court

sentenced him as a habitual offender. This appeal followed.

                                        Decision

[¶4.]        Reinhardt first argues that the circuit court erred in denying his

request for a self-defense instruction at the close of the State’s evidence. He alleges

prejudice because, without a commitment to give the instruction at that time, he

had to testify thereby opening the door to evidence of his prior crimes of dishonesty.

[¶5.]        Reinhardt was not entitled to a determinative ruling on the self-

defense instruction at the close of the State’s case. “Instructions shall be settled out

of the presence of the jury at the close of the evidence but prior to final argument.”

SDCL 23A-25-4 (emphasis added). Reinhardt’s authorities do not address this rule.

Reinhardt received a self-defense instruction at the close of the evidence, and he

was not entitled to settlement of that instruction mid-trial. The circuit court did not

err in the manner in which it instructed on self-defense.




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[¶6.]         Reinhardt also argues that the admission of the fingerprint cards from

Iowa and Nebraska violated the Sixth Amendment’s Confrontation Clause.

Reinhardt contends he was entitled to confront and cross-examine Iowa and

Nebraska officials about the methodology and machinery used to collect the

fingerprints. The circuit court ruled that the fingerprint records were non-

testimonial, thus not subject to the Confrontation Clause. 1 We agree.

[¶7.]         The Sixth Amendment provides, “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”

U.S. Const. amend. VI. In Crawford, the Supreme Court held that the Sixth

Amendment prohibits the introduction of a statement by a non-testifying witness

“unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 54, 124

S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004). However, the prohibition only applies

to testimonial evidence, which “is typically a solemn declaration or affirmation

made for the purpose of establishing or proving some fact.” Id. at 51, 124 S. Ct. at

1364.

[¶8.]         Fingerprint cards are not a solemn declaration or affirmation made for

the purpose of establishing or proving some fact. They are physical evidence

generated primarily as an administrative step in the booking process as standard

practice incident to arrest. See Maryland v. King, ___ U.S. ___, 133 S. Ct. 1958,

1977, 186 L. Ed. 2d 1 (2013) (describing fingerprinting as a “routine administrative



1.      The circuit court admitted the fingerprint cards under SDCL 19-19-803(6),
        the business records exception to the rule against hearsay.

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#27194

step incident to arrest[.]”) Thus, fingerprint cards themselves do not serve a

prosecutorial function: absent analysis and testimony, a fingerprint card cannot

implicate a defendant. See id. at 1972 (analogizing DNA samples and fingerprints,

stating “Like a fingerprint, [DNA samples] are not themselves evidence of any

particular crime, in the way that a drug test can by itself be evidence of illegal

narcotics use.”). Additionally, the fingerprint cards in this case were taken in 2003

and 2008. They were not taken to prove some fact in this 2013 assault case.

Therefore, like other courts that have considered this question, we conclude that the

admission of fingerprint cards does not violate the Confrontation Clause because

they are not testimonial. See United States v. Williams, 720 F.3d 674, 699 (8th Cir.

2013) (holding that fingerprint cards are business records and the introduction of

the fingerprints into evidence does not violate the Confrontation Clause); United

States v. Dale, 494 Fed. App’x 317, 318 (4th Cir. 2012) (holding that a fingerprint

card is not testimonial and therefore does not implicate the Confrontation Clause);

United States v. Thornton, 209 Fed. App’x 297, 299 (4th Cir. 2006) (same). 2




2.    We also disagree with Reinhardt’s argument that fingerprint cards present
      the same Confrontation Clause concerns as the forensic analysis at issue in
      Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d
      314 (2009), and Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 180
      L. Ed. 2d 610 (2011). In each of those cases, evidence was analyzed and a
      conclusion was admitted for prosecution purposes. See Bullcoming, ___U.S.
      at ___, 131 S. Ct. at 2709 (involving admission of a forensic report
      determining the defendant’s blood alcohol level); Melendez-Diaz, 557 U.S. at
      308, 129 S. Ct. at 2527 (involving admission of a forensic report determining
      the chemical composition of a seized substance). In this case, the Iowa and
      Nebraska custodians of the fingerprints neither conducted analysis nor drew
      conclusions from the fingerprints. They simply provided copies of physical
      evidence (Reinhardt’s fingerprints) they had in their custody. Furthermore,
                                                              (continued . . .)
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#27194

[¶9.]        Affirmed.

[¶10.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




_____________________
(. . . continued)
         the person who conducted analysis of the fingerprints testified and was
         subject to cross-examination at trial.

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