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   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

STATE OF WASHINGTON,                                No. 70429-0-I

                      Respondent,



JAHADV.D. HILL,                                     UNPUBLISHED OPINION
B.D. 04/18/95,

                      Appellant.                    FILED: July 21, 2014


       Verellen, A.C.J. — Based on expert testimony that fingerprints at the scene

of a burglary were Jahad Hill's, the juvenile court found him guilty of residential

burglary. Hill appeals, arguing that the reliability of latent fingerprint identification is

suspect and that this court should reconsider its holding in State v. Lucca that such

identifications can be sufficient, standing alone, to support a criminal conviction.1

Because this argument was not adequately preserved below and because the record

is insufficient to warrant a departure from Lucca in any event, we affirm.

                                           FACTS

       On September 14, 2012, someone burglarized the home of Chester and

Therese Pasternak in Des Moines, Washington. The burglar took jewelry and other

personal property.




       1 56 Wn. App. 597, 784 P.2d 572 (1990).
No. 70429-0-1/2



       Officer Langhofer of the Des Moines Police Department investigated the

burglary. Most of the window screens on the backside of the house had been

removed and a window was open. Officer Langhofer found a hand impression on the

open window. When he had difficulty lifting fingerprints from the window, he

contacted a detective and the automated fingerprint identification system (AFIS) lab.

The detective suggested Officer Langhofer take a photograph of the prints, and the

AFIS technician suggested that he use more fingerprint powder. Officer Langhofer

eventually recovered two latent prints: one on the inside and another on the outside

of the window.

       Bolney Wade Anderson, a King County latent print examiner, did a computer

search of known prints with one of the latent prints from the Pasternak's home. The

search disclosed a match between the latent print and Hill's prints.

       Anderson then obtained Hill's known prints and performed his own

comparison. He enlarged the known and latent prints and then compared the two by

looking at ridges in the prints. He determined that the window prints matched Hill's

left middle and little fingers. His comparison procedure and results were reviewed

and verified by a verifier and a quality control person.

       Based on the fingerprint evidence, the State charged Hill with residential

burglary. At trial, Officer Langhofer and Bolney Anderson testified to the facts set

forth above. On cross-examination, Anderson testified that no verifier had ever

disagreed with his conclusions. He admitted, however, that other examiners in his

office had made at least two misidentifications that were discovered by a verifier. He

also conceded that there is no minimum number of details required before he can
No. 70429-0-1/3


declare a match between prints. Defense counsel did not ask the expert about the

reliability of latent fingerprint analysis or call an expert for the defense. The defense

rested without calling witnesses.

       During closing argument, the prosecutor argued that under this court's

decision in Lucca, the fingerprint evidence was sufficient, by itself, to support a

conviction. Hill countered that the reliability of fingerprint evidence had been called

into question since Lucca. He argued that a 2009 report from the National Academy

of Sciences (NAS report) "critiqued fingerprint evidence as not being scientifically-

based, [but] simply being a matter of matching pictures as preschoolers do in their

assignments."2 The following colloquy ensued:

       COURT:        Mr. McGuire, I don't have any evidence of the National Academy
                     of Sciences study. Can I consider it?

       MCGUIRE:      I think the court can take judicial notice of it, yes. I don't think it's
                     evidence, no, but I think it certainly is part of the prism through
                     which the court can as an educated, modern jurist consider the
                     framework with which to consider evidence.

                     I don't think it's at all out of line for the court to educate
                     oneself in terms of evidence. That isn't to say that I'm
                     asking you to believe a certain finding from any study. I'm
                     not suggesting that. I'm simply saying that the National
                     Academy of Sciences has raised a number of critical
                     questions about fingerprint evidence and about the quality
                     of that evidence for court purposes, and I think it certainly
                     is fair to consider where that is the only evidence that
                     identifies Jahad Hill as being involved in any way with this
                     crime. I think it is important that the court consider all
                     viewpoints] that would permit an overall objective viewing
                     of the evidence that has been proffered.




      2 Report of Proceedings (Apr. 2, 2013) at 136 (referring to National Research Council
Strengthening Forensic Science in the United States: A Path Forward (Nat'I Academy of
Sciences 2009J, available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.
No. 70429-0-1/4


                     Whether one fingerprint as in Lucca would be sufficient
                     today, I think is another question. Hopefully, we don't
                     have to address that question in this case, but whether
                     fingerprint evidence alone is sufficient in today's world
                     with the evolution of science is a much larger question.



       STATE:        ... Mr. McGuire's request of Your Honor, the trier of fact,
                     to do your own independent research on something that
                     has not been testified to or admitted into evidence
                     regarding some study that I'm not quite even sure what
                     the result of that study was is absolutely inappropriate... .

                     Now, the prints on the inside portion of this window track
                     that is up in State Exhibit No. 10, Mr. Anderson noted that
                     [Hill's] prints, he found that his middle left finger and also
                     his left little finger were a match. On each of those
                     fingers, he said that there were multiple bifurcations that
                     were the same, multiple end points that were the same.
                     This is—fingerprint analysis, your Honor, is a science. Mr.
                     Anderson is an expert. He said that no two people have
                     the same fingerprints. He pointed out that even identical
                     twins don't have the same fingerprints. Mr. Hill's
                     fingerprints, no one else's, were found on this window
                     here.[3]

       In its oral ruling, the court noted that the only disputed questions were whether

the prints were Hill's and what weight the court should give them. The court found

that the prints were Hill's and that, under Lucca, that fact was alone sufficient to

prove Hill's guilt beyond a reasonable doubt. Hill appeals.

                                        DECISION


       The sole issue on appeal is whether the fingerprint evidence was sufficient, by

itself, to support Hill's adjudication of guilt. Hill acknowledges our prior holding that

"[fingerprint evidence alone is sufficient to support a conviction where the trier of fact



       3 Id. at 137-40.
No. 70429-0-1/5



could reasonably infer from the circumstances that it could only have been impressed

at the time the crime was committed."4 He argues, however, that the NAS report and

various documented incidents of erroneous fingerprint identification "prove that

findings of guilt resting only on latent fingerprint analysis pose an unacceptable risk

of erroneous identification."5 Noting that Washington courts have not allowed

convictions to rest solely on dog tracking evidence or confessions due to their

fallibility,6 Hill asks us to make the same categorical determination regarding latent

fingerprint evidence.7 We decline to do so for several reasons.

       First, Hill did not adequately preserve or support this argument below. He did

not argue, as he does on appeal, for a categorical change to the status of latent

fingerprint evidence. He simply argued that the NAS report had "raised a number of

critical questions about fingerprint evidence," and that the trial court could consider

the NAS report in weighing the evidence. He also did not offer the NAS report into

evidence. Nor did he offer any evidence of false positive rates associated with latent

fingerprint identification.8 Because there may be fact questions regarding the degree


       4 Lucca, 56 Wn. App. at 599.
       5Appellant's Br. at 19.
       6 See State v. Loucks. 98 Wn.2d 563, 656 P.2d 480 (1983) (dog tracking evidence);
State v. Dow, 168 Wn.2d 243, 227 P.3d 1278 (2010) (confessions).
      7 Fingerprints can be patent or latent. United States v. Herrera, 704 F.3d 480, 482-
87 (C.A.7 2013) ("Patent fingerprints are made by pressing a fingertip covered with ink on a
white card or similar white surface, and are visible. Latent fingerprints are prints, usually
invisible, left on a smooth surface when a person touches it with a finger or fingers.
Laboratory techniques are employed to make a latent fingerprint visible so that it can be
compared with other fingerprints.").
       8 In a decision filed earlier this year, the Massachusetts Supreme Court stated that
"preliminary statistical evidence has begun to emerge" showing a small false positive error
rate for fingerprint analysis. However, the court suggested that changes to the status of
such evidence not be made until research on error rates and populations frequencies "reach
No. 70429-0-1/6


of the alleged unreliability of latent fingerprint evidence, it was incumbent on Hill to

present evidence of unreliability to the trial court. Hill's failure to preserve or create a

record supporting the argument he makes on appeal precludes review.9

       Second, even if we were to address the argument for the first time on appeal,

the record is insufficient to even consider a categorical change to the status of latent

fingerprint evidence. As previously noted, the record contains no evidence of error

rates in latent fingerprint analysis. Nor does Hill cite a single case from any

jurisdiction holding that latent fingerprint evidence is insufficient, standing alone, to

support a conviction. And while the NAS report does raise questions regarding the

reliability of latent fingerprint evidence, courts have found it insufficient to warrant

changes to the status of such evidence.10 A statement in the report itself cautions

against giving it too much weight:



a point that permits more reliable conclusions." Commonwealth v. Jovner, 467 Mass. 176,
4 N.E.3d 282, 289-92 nn.7, 11 & 12 (2014).
        9 Cf. State v. Woo, 84 Wn.2d 472, 475, 527 P.2d 271 (1974) (noting that
"[t]here is nothing in the records, by way of testimony or exhibit, concerning the
trustworthiness of the most modern polygraph equipment. The type of equipment
proposed to be used in the instant cases and its reliability are not disclosed. ... If we
are to consider a departure from a virtually unanimous rule against the admissibility
of polygraph examinations ... we must be furnished with a record sufficiently
adequate to permit review of the subject."); State v. Pleasant, 21 Wn. App. 177,184,
583 P.2d 680 (1978) (accord).
       10 See Johnston v. State, 27 So.3d 11,21 (Fla. 2010) (NAS report "lacks the
specificity that would justify a conclusion that it provides a basis to find the forensic
evidence admitted at trial to be infirm or faulty"); United States v. Rose. 672 F. Supp.
2d 723, 726 (D.Md. 2009) (despite NAS report, "fingerprint identification evidence . . .
is generally accepted in the relevant scientific community, has a very low incidence of
erroneous misidentifications, and is sufficiently reliable to be admissible under Fed.
R. Ev. 702"); Commonwealth v. Gambora, 457 Mass. 715, 933 N.E.2d 50, 55-61 &
n.22 (2010) ("nothing in this opinion should be read to suggest that the existence of
the NAS [r]eport alone will require the conduct of. . . hearings as to the general
reliability of expert opinions concerning fingerprint identifications").
No. 70429-0-1/7


               The committee decided early in its work that it would not be
       feasible to develop a detailed evaluation of each discipline in terms of
       its scientific underpinning, level of development, and ability to provide
       evidence to address the major types of questions raised in criminal
       prosecutions and civil litigation.111'

In addition, the report "does not appear to question the underlying theory which

grounds fingerprint identification evidence; as the report states, there is scientific

evidence supporting the theory that fingerprints are unique to each person and do not

change over a person's life."12 In short, the record is inadequate to contemplate the

categorical change Hill requests.

      Finally, it is important to remember that Washington cases prohibiting

convictions based solely on dog tracking evidence and confessions are different in

one very significant respect, i.e., both were based on a historical distrust of such

evidence.13 That is not the case with latent fingerprint evidence. On the contrary,

"the reliability of fingerprint identification has been tested in our adversarial system for

over a century" and has long been accepted by both the scientific community and

Washington courts.14 Accordingly, given the long-standing acceptance of such

evidence, any change to its status must be based on a solid scientific foundation that

is not presented here.15




       11 NAS report at 7.
       12 Gambora, 933 N.E.2d at 58.
       13 See Loucks, 98 Wn.2d at 566-67; Dow, 168 Wn.2d at 249.
       14 State v. Pigott,     Wn. App.       , 325 P.3d 247, 250 (2014).
       15 We note that even critics of fingerprint evidence still find it more probative than
eyewitness identification of a stranger, which Washington courts consider alone sufficient to
support a conviction. Jovner, 4 N.E.3d at 291-92; State v. Delker, 35 Wn. App. 346, 351,
666 P.2d 896 (1983) (eyewitness testimony alone sufficient to establish identity).
No. 70429-0-1/8


      For these reasons, we adhere to our decision in Lucca. The juvenile court's

adjudication of guilt is supported by sufficient evidence.

     Affirmed.




WE CONCUR:




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