                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Bumgardner
Argued at Alexandria, Virginia


WILLIAM RICHARD HASSON, III
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0403-05-4                                   JUDGE JAMES W. HALEY, JR.
                                                                     MAY 23, 2006
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                               Rossie D. Alston, Jr., Judge

                 (Charles C. Maddox; Maddox, Hoppe & Hoofnagle, L.L.C., on
                 brief), for appellant. Appellant submitting on brief.

                 Stephen R. McCullough, Assistant Attorney General (Judith
                 Williams Jagdmann, Attorney General, on brief), for appellee.


       Convicted by jury of multiple offenses, William Richard Hasson, III asserts the trial court

erred in the following: 1) admitting testimony concerning the content of a court order in violation

of the best evidence rule; 2) admitting evidence of prior or contemporaneous unadjudicated bad acts

committed by appellant; and 3) admitting fingerprints made reproducible from a sticky surface,

alleging the method employed was scientifically untested and unreliable. We affirm.

                                                  I.

       Initially, we note:

                 The jury’s verdict will not be disturbed on appeal unless plainly
                 wrong or without evidence to support it. Upon familiar principles,
                 we view the evidence in the light most favorable to the
                 Commonwealth, granting to it all reasonable inferences fairly
                 deducible therefrom.

Ragland v. Commonwealth, 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993).

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 II.

        As the parties are conversant with the facts in this matter, we recite only those relevant to

the evidentiary issues presented on appeal.

        Appellant moved in with his godmother, Edna Hubbard, around September 2001.

Shortly thereafter, Hubbard was diagnosed with Alzheimer’s disease. In November 2001, the

Superior Court of Washington D.C. appointed Clarissa Thomas as Hubbard’s guardian ad litem.

Thomas recognized several questionable financial transactions in Hubbard’s accounts and had an

order freezing her accounts entered on November 1, 2001. In compliance with that order,

appellant surrendered two credit cards to Thomas.

        Thomas later learned that appellant had other credit cards in Hubbard’s name. The

Superior Court entered two orders, one on May 14, 2002 and another on May 21st, which

directed appellant to stop using these cards. The May 14 order also required appellant “to cease

from obtaining credit cards in her name and turn over her vehicle and to remove his name from

her deed in her annuity.” Thomas’s responsibilities ceased upon Hubbard’s death on June 15,

2003.

        In July 2003, the parts manager at Hendrick Jeep in Woodbridge received a telephone

call and an order for parts for a 2004 Jeep Grand Cherokee. The caller supplied an American

Express card and the name Hubbard for the order. On July 17th, appellant went to the dealership

and signed the name “Edna Hubbard” on two tickets, one for $245 and one for $89.87.

According to the cashier, appellant presented “the credit card number written on a piece of paper

and said it was his mother’s, that she had given him permission to use it.”

        On July 23, 2003, an associate at the Circuit City store in Manassas met with “a

gentleman [who] came in and wanted to get a system in his truck.” The “gentleman,” identified

at trial as appellant, said he had to leave for an appointment. Appellant later called the store,

                                                -2-
spoke to the associate, and asked to place the order over the phone. Appellant placed an order

for “two head rest monitors, DVD player, satellite radio, subwoofers, [and] new speakers.” He

placed the order under the name “Edna Hubbard” and provided a credit card number to the

associate over the phone. The associate informed him that he would have to bring the credit card

in for verification.

          Appellant thereafter dropped off a Jeep Grand Cherokee with Illinois tags, and Circuit

City installed the ordered equipment into the vehicle. Appellant returned to pick up the vehicle,

supplied a credit card to the associate, and signed the receipts “Edna Hubbard.” The associate

recognized a Discover card presented at trial as the card appellant presented and testified, “The

card says Edna Hubbard on it. That all matched up, but it didn’t help that a different credit card

number [] was taped onto the card.” The associate continued, “Well [appellant] had said that it

was his mother’s card and she couldn’t come in for some odd reason. I think he also gave some

other reason as to why he had the card, that it was his mother’s business and he was entitled to

use it.” The two orders were in the amount of $2,367.47 and $435.66.

          Upon presentation of the Discover card, the associate sought the advice of his manager.

This manager spoke to the store manager and attempted to arrange for another form of payment,

since “the embossed number on the charge card wasn’t the number [appellant] gave us.”

Appellant then attempted to pay by check; the check was declined. Appellant informed the

manager that “he was going to come back the next day with the card that would have the number

embossed on it so we could imprint that and get a signature on that card.” After appellant left the

store, the manager called the credit card company “to see if it was a legitimate transaction.” As a

result of the conversation with Discover, the store manager called the Prince William County

police.




                                                 -3-
       On Monday July 28th, appellant returned to the store. As soon as he entered the store,

the store director telephoned the police. Appellant asked for the manager and informed him he

wanted to pay cash for the orders. While the manager was speaking with appellant, police

arrived and began to speak with appellant.

       Detective Joanie Jaeger responded to the situation, explained to the appellant “the issue []

at hand,” and asked if police could call Ms. Hubbard to verify that he was an authorized user on

the account. Appellant responded “that it was his mother’s account . . . and [] said she had just

flown out to Chicago that morning.” Thereafter, police seized both the 2004 Jeep Grand

Cherokee and a purple TransAm which appellant had arrived in earlier. In the TransAm, police

saw in plain view, “a credit card on the floor that looked like it had pieces of white paper taped

on the front of it in a similar fashion to one that had been taken from Mr. Hasson earlier in the

day.” Later, and pursuant to a search warrant, police found a copy of Edna Hubbard’s will, six

credit cards - two of which were in Hubbard’s name - with “a little small white strip of paper

with a series of numbers on them . . . highlighted in yellow,” a SunTrust checkbook in Hasson’s

name, a check from that account made out to Circuit City in the amount of $2,803.43, and an

Illinois driver’s license in Hasson’s name.

       Police impounded the 2004 Jeep Grand Cherokee. Thereafter, Detective Jaeger

“collected the VIN plate which had been attached on top of another VIN plate with some sort of

adhesive.” The old VIN number matched the Certificate of Origin from a Jeep Grand Cherokee

that had been reported stolen from Waldorf Chrysler Jeep in Maryland. Steven Clauser appeared

at trial and testified that the VIN plate found on top of the old one matched a VIN plate missing

from his 2003 black Jeep Grand Cherokee.

       At trial and during the testimony of Clarissa Thomas, Edna Hubbard’s guardian ad litem,

appellant objected to testimony concerning the orders entered by the Superior Court of

                                                -4-
Washington D.C.. Specifically, appellant objected to Thomas’s testimony about the May 14th

and 21st orders. Appellant’s counsel stated, “I guess my objection is that this is like a best

evidence thing if the document is available and present, rather than having her testify to the

recollection of it.” The trial court overruled the objection. When asked if she had a copy of the

order(s) with her, Thomas responded, “I have a copy of it in my bag.” The trial court permitted

defense counsel to “peruse the May 14th order.”

        Appellant also objected to the introduction of evidence found in the purple TransAm,

specifically three credit cards with Hasson’s name imprinted, the SunTrust checkbook, and the

check written to Circuit City. Appellant argued, “I think the prejudicial aspect of just

introducing them in as well . . . if [the Commonwealth] is not going to argue that there’s some

kind of common scheme or modality to this thing, then they’re irrelevant.” The trial court

overruled the objection.

        Finally, appellant objected to the method the police employed to lift fingerprints from the

VIN plate removed from the Jeep Grand Cherokee. Crime scene analyst Kenneth Warner

testified that he used a process developed by a colleague in order to obtain prints from the

adhesive on the back of the VIN plate. Warner explained “the prints can’t be recovered through

use of clear tape and applying that to a white card, which is most commonly done.” Warner

further testified that he used

                a mixture with equal parts of water, black fingerprint powder and
                clear Ivory dish soap that’s mixed together, applied to the adhesive
                strip and let sit for about thirty seconds or so and then rinse it off.
                And what is left behind, in this case, was a developed set of
                fingerprints, a ridge detail.

Warner testified that he then took photographs to record the result.

        In response, appellant’s counsel asserted, “I think that this has not been established as a

valid process for collecting fingerprints at this point anyway.” The trial court recognized the

                                                 -5-
process as a “new technique” and found “the evidence is admissible for the purpose as

suggested.” Shortly thereafter, Officer Leonard Holipski, a fingerprint expert with over 40 years

of experience in that field, testified that the prints taken from the adhesive matched the

fingerprints taken from appellant after his arrest.

       The jury convicted appellant on all counts, and he was sentenced to 24 years of

incarceration, with 17 of those years suspended. Appellant thereafter appealed to this Court.

                                                 III.

                                                 A.

                                     BEST EVIDENCE RULE

       “In Virginia, the best evidence rule provides that ‘where the contents of a writing are

desired to be proved, the writing [the primary evidence] itself must be produced or its absence

sufficiently accounted for before other evidence of its contents can be admitted.’” Bradshaw v.

Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 885 (1993) (quoting Randolph v.

Commonwealth, 145 Va. 883, 889, 134 S.E. 544, 546 (1926); Butts v. Commonwealth, 145 Va.

800, 816, 133 S.E. 764, 769 (1926)). “The best evidence rule . . . requires that the original of the

document be produced only where the contents of the document per se are to be proved.”

Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d 176, 179 (1991). See also

Carmody v. F.W. Woolworth Co., 234 Va. 198, 200, 361 S.E.2d 128, 129 (1987) (“While this

Court has long required proof of a case through the most reliable evidence available, [plaintiff]

has not challenged the content of the license agreement . . . .” (emphasis in original) (citations

omitted)).




                                                 -6-
       Here, the wording and content of the orders are not directly in issue.1 The actual content

- i.e., the “precise wording” - of the orders was not in dispute. In fact, defense counsel, during

his cross-examination of Thomas, viewed the May 14th order and did not dispute its contents or

effect. Also, on brief, appellant admits that the orders are “at best only tangentially related to the

charges for which the Appellant was on trial.” As such, court orders that are “at best only

tangentially related” cannot also be “directly in issue” in the case. Accordingly, the best

evidence rule does not apply.

                                                  B.

             PRIOR OR CONTEMPORANEOUS UNADJUDICATED BAD ACTS

       On brief, appellant argues the trial court “abuse[d] its discretion by permitting the

submission of evidence of prior or contemporaneous unadjudicated bad acts unrelated to the

charges in the case at bar.” At trial, counsel specifically objected to three other credit cards

(each imprinted with Hasson’s name), the checkbook in Hasson’s name, and the check from that

account made out to Circuit City. The trial court allowed Jaeger to testify “that in the car these

cards were found” but did not, however, allow her “to testify as to these credit[] [cards]

belonging to anybody else because [the Commonwealth] can’t make the link between these

people who you believe these cards belong to and the card itself.”

       Thus, this evidence, as offered, did not tend to prove any prior or contemporaneous

unadjudicated bad act. In fact, these items were in appellant’s name, not someone else’s, and the

Commonwealth did not plan to introduce evidence to the contrary. The seized items did have

probative value, however, because they linked appellant to the automobile driven to Circuit City.

Thus, these items were only “a factual circumstance” of the search, as they were merely found



       1
        We note that Thomas’s duties as guardian ad litem ceased upon Hubbard’s death. Thus,
any order(s) affecting Thomas’s duties as guardian no longer had any effect.
                                              -7-
alongside the other items in the TransAm. Thomas v. Commonwealth, 44 Va. App. 741, 757,

607 S.E.2d 738, 745 (2005). Accordingly, appellant’s argument on this point lacks merit.

                                                 C.

                                   FINGERPRINT ANALYSIS

       Initially, with respect to fingerprint evidence, we note, “‘[t]he accuracy of fingerprint

identification is a matter of common knowledge and no case has been cited, and we have found

none, where identification so established has been rejected.’” Avent v. Commonwealth, 209 Va.

474, 478, 164 S.E.2d 655, 658 (1968) (quoting Stevenson v. United States, 380 F.2d 590, 592

(D.C. Cir. 1967)).

       Appellant asserts that the trial court abused its discretion “in taking testimony from an

unqualified expert regarding a novel scientific method of obtaining evidence.” In essence,

appellant’s argument is two-fold: 1) that Officer Warner was “an unqualified expert”; and

2) that the procedure used to lift the fingerprints was new and thus unreliable.2

       As to the argument that Officer Warner was “an unqualified expert,” appellant never

challenged Warner’s qualifications at trial. Appellant only objected to the method Warner

employed to lift the fingerprints. Accordingly, we do not address appellant’s first point, as it was

not presented to the trial court. Rule 5A:18.

       With the respect to appellant’s second point, we recognize,

               When scientific evidence is offered, the court must make a
               threshold finding of fact with respect to the reliability of the
               scientific method offered, unless it is of a kind so familiar and
               accepted as to require no foundation to establish the fundamental
               reliability of the system, such as fingerprint analysis . . . .


       2
           On brief, appellant also suggests that Officer Warner’s testimony concerning the new
method “is on one hand hearsay, and on the other, lacking the best evidence as argued supra, in
the first question presented in this brief.” Appellant did not present either of these objections to
the trial court, and accordingly, we will not address them for the first time on appeal. Rule
5A:18.
                                                  -8-
Spencer v. Commonwealth (Spencer II), 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990) (citing

Avent, 209 Va. at 478, 164 S.E.2d at 658) (emphasis added).3 Moreover,

               Wide discretion must be vested in the trial court to determine,
               when unfamiliar scientific evidence is offered, whether the
               evidence is so inherently unreliable that a lay jury must be shielded
               from it, or whether it is of such character that the jury may safely
               be left to determine credibility for itself.

Id. at 98, 393 S.E.2d at 621.

       In People v. Webb, 862 P.2d 779, 798 (Cal. 1993), the California Supreme Court

addressed an objection to a method which obtained fingerprints from duct tape by, “in an

enclosed tank, expos[ing] it to heat, superglue and dye, and then view[ing] and photograph[ing]

the item through an orange filter with the aid of a laser beam.” There, the defendant maintained

the prosecution had not demonstrated this method of reproducing fingerprints had been accepted

by the scientific community or by other courts. That court held:

               The reliability of the laser procedure in producing an image
               commonly recognizable only as a human fingerprint was manifest
               at trial. The photographic result of [the analyst’s] method was seen
               by the jury, and there was no dispute that the method produced this
               result without tampering or alteration of any kind. Since the laser
               process produced a directly recognizable image of defendant’s
               fingerprint, it is unreasonable for defendant to suggest that the
               process might somehow have captured a fingerprint which did not
               exist, transformed some other image into a fingerprint, or changed
               the fingerprint of another person into one which matched
               defendant’s.

                  Where, as here, a procedure isolates physical evidence whose
               existence, appearance, nature, and meaning are obvious to the
               senses of a layperson, the reliability of the process in producing




       3
         The Virginia Supreme Court has not yet determined whether Virginia courts should
employ the test for scientific evidence articulated by the United States Supreme Court in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See John v. Im, 263 Va. 315, 316,
559 S.E.2d 694, 697-98 (2002).
                                                 -9-
               that result is equally apparent and need not be debated under the
               standards [of admitting new scientific methods].

Id.

       As applied to the instant facts, we find the dissent’s interpretation of Spencer II

unpersuasive. In that case, the Court addressed whether the evidence supported the conclusion

that DNA testing itself, then a novel scientific technique, was a reliable scientific method. And,

as quoted above, such evidence is necessary unless the method “is of a kind so familiar and

accepted as to require no foundation to establish the fundamental reliability of the system, such

as fingerprint analysis . . . .” Spencer II, 240 Va. at 97, 393 S.E.2d at 621 (citation omitted).

       The dissent fails to recognize the distinction between a scientific technique, such as

fingerprint (or DNA) analysis, and a method of collecting the material to be analyzed.

Moreover, here the accuracy and reliability of the method of collecting and recording the latent

fingerprints is in essence self-proving; that is, the collected and recorded fingerprints match those

of appellant’s on record. And, as the California Supreme Court opined, “it is unreasonable for

defendant to suggest that the process might somehow have captured a fingerprint which did not

exist, transformed some other image into a fingerprint, or changed the fingerprint of another

person into one which matched defendant’s.” Webb, 862 P.2d at 798. For example, the use of a

digital camera, as opposed to a traditional one, is not a novel scientific method. Rather, it is

merely a new way of photographing an image.

       Here, the trial court, in overruling the objection and leaving the question of credibility for

the jury, found this method “of such character that the jury may safely be left to determine

credibility for itself.” Spencer II, 240 Va. at 98, 393 S.E.2d at 621. Accordingly, we hold the

trial court did not abuse its discretion in admitting the fingerprint evidence and properly left the

question of weight for the jury.



                                                - 10 -
                                        IV.

In light of the foregoing, appellant’s convictions are affirmed.

                                                                   Affirmed.




                                       - 11 -
Benton, J., concurring, in part, and dissenting, in part.

        I concur in the holding the trial judge did not err in allowing limited testimony about the

altered credit cards, the checkbook, and check written to Circuit City found in William Hasson’s

car. I dissent, however, from other parts of the opinion. I would hold that the trial judge erred in

overruling Hasson’s best evidence objection to testimony about the contents of the protective

order, but I would hold that the error was harmless. I would also hold that the trial judge erred in

allowing testimony about the novel fingerprint retrieval method employed by the police officer

in this case.

                                                  I.

        We have explained the best evidence rule as follows:

                    In Virginia, the best evidence rule provides that “where the
                contents of a writing are desired to be proved, the writing [the
                primary evidence] itself must be produced or its absence
                sufficiently accounted for before other evidence of its contents can
                be admitted.” Randolph v. Commonwealth, 145 Va. 883, 889, 134
                S.E. 544, 546 (1926); Butts v. Commonwealth, 145 Va. 800, 816,
                133 S.E. 764, 769 (1926). Thus, if the purpose is to prove the truth
                of the contents of a writing, the primary evidence must be
                produced, if available. It is only when sufficient evidence
                discloses that the primary evidence is not available that secondary
                evidence may be admitted for that purpose. Id.

Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 884 (1993).

        At trial, the prosecutor sought to prove the existence of a protective order barring

Hasson’s use of Edna Hubbard’s credit card. Hubbard’s former guardian ad litem testified as

follows:

                Q: Was there some time when a protective order was awarded
                regarding Mr. Hasson’s control or use of Ms. Edna Hubbard’s
                accounts or property?

                A: Yes. Once I learned about the additional credit cards, I filed a
                motion asking the Court to ask them to turn over the credit cards or
                stop using the credit cards.


                                                - 12 -
               And I believe on May the 14th of 2002 and May the 21st of 2002,
               the Court issued an order indicating that the credit cards or any use
               of the credit cards by Mr. Hasson would cease, and any personal
               property of Ms. Hubbard’s would remain in the house.

               I’m trying to think of what else. And I believe there was also an
               issue of whether --

       The trial judge overruled Hasson’s objection that the best evidence rule required the

order’s contents to be proved by the document. The witness then continued to testify about the

order’s contents.

               Q: And what was the limitation of what he was -- or the order of
               the Court regarding his use of those certain credit cards and
               property?

               A: Basically that he should turn over anything pertaining to the
               First Union bank account to me and that the tags and the vehicle
               that was owned by Ms. Hubbard should be also transferred to the
               Department of Motor Vehicles.

               Then he was to return any personal property to Ms. Hubbard’s
               residence. . . .

               Q: Was there also a later order in November of 2001?

               A: I’m sorry?

               Q: There was a request on November 1st, 2001, for Ms. Edna
               Hubbard’s accounts to be frozen; is that correct?

               A: I think there was an order pertaining to that. I believe that was
               -- I don’t know if I had been appointed at that time.

                         *       *       *       *      *       *       *

               Q: This order was regarding Ms. Edna Hubbard’s accounts?

               A: Right. After I subpoenaed the bank records when I first
               learned about it, I saw that monies had been -- it was just sort of
               suspect, so I had some concerns. So I made my representations to
               the Court and what they did was freeze all the bank accounts and
               any credit cards until further investigation could be done.

                         *       *       *       *      *       *       *

                                               - 13 -
                Q: And on those days, that was when the additional orders were
                entered by the Court directing Mr. Hasson to turn over certain
                account information regarding use of Ms. Edna Hubbard’s
                property?

                A: Actually the May 14th one was an order where . . . he was to
                cease from obtaining credit cards in her name and turn over her
                vehicle and to remove his name from her deed in her annuity.

This testimony was offered to prove, and did prove, the contents of the orders. Thus, I would

hold that the trial judge erred in overruling the objection.

        A review of the record establishes, however, that the error was harmless. “In a criminal

case, it is implicit that, in order to determine whether there has been ‘a fair trial on the merits’

and whether ‘substantial justice has been reached,’ a reviewing court must decide whether the

alleged error substantially influenced the jury. If it did not, the error is harmless.” Clay v.

Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). To implement this analysis, the

Supreme Court has adopted the following test for non-constitutional harmless error:

                    “If, when all is said and done, the conviction is sure that the
                error did not influence the jury, or had but slight effect, the verdict
                and the judgment should stand . . . . But if one cannot say, with
                fair assurance, after pondering all that happened without stripping
                the erroneous action from the whole, that the judgment was not
                substantially swayed by the error, it is impossible to conclude that
                substantial rights were not affected . . . . If so, or if one is left in
                grave doubt, the conviction cannot stand.”

Id. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65

(1946)).

        Hasson argues on brief that the evidence was “highly prejudicial” as to all the charges

because it “strongly suggested malfeasance [by Hasson] to the extent that the court intervention

was required against him even before the acts for which he was then on trial.” I believe the

circumstances of these charges suggest the error only had slight effect on the jury.




                                                 - 14 -
       Hasson acknowledges that this evidence was “at best only tangentially related to the

charges for which [he] was on trial.” Indeed, he was not charged with theft of Hubbard’s card.

The credit card theft charge was related to his use of Joan Renner’s credit card number. All of

the indictments concerning Hubbard or her property were for crimes Hasson committed after

Hubbard’s death. At that time, Hasson had no colorable claim that he was authorized to use

Hubbard’s credit card. His fraudulent uses of the credit card then were only marginally related

to the protective order. I concur, therefore, in affirming the seven convictions related to

Hasson’s use of the credit cards (i.e., attempted false pretenses, attempted credit card fraud,

credit card theft, and four counts of credit card forgery).

                                                  II.

       I would also hold that the trial judge erred in permitting a police officer to testify about a

novel scientific technique his colleague developed for lifting an image of a fingerprint from

adhesives. Our Supreme Court requires an inquiry into the question of reliability when a party

offers scientific evidence.

                   When scientific evidence is offered, the court must make a
               threshold finding of fact with respect to the reliability of the
               scientific method offered, unless it is of a kind so familiar and
               accepted as to require no foundation to establish the fundamental
               reliability of the system, such as fingerprint analysis, Avent v.
               Commonwealth, 209 Va. 474, 478, 164 S.E.2d 655, 658 (1968); or
               unless it is so unreliable that the considerations requiring its
               exclusion have ripened into rules of law, such as “lie-detector”
               tests, Robinson v. Commonwealth, 231 Va. 142, 156, 341 S.E.2d
               159, 167 (1986); or unless its admission is regulated by statute,
               such as blood-alcohol test results, Code §§ 18.2-268(O), -268(Y).

Spencer v. Commonwealth (Spencer II), 240 Va. 78, 97, 393 S.E.2d 609, 621 (1990).4 In Avent,

the Court relied upon a federal case to support the finding that, “‘[f]ingerprint identification has



       4
         The use of Spencer I and Spencer II as short forms of citations is limited to this opinion
and not to be confused with citations used in other cases.
                                               - 15 -
long been recognized by the courts as [an] entirely appropriate [scientific method].’” Avent, 209

Va. at 478, 164 S.E.2d at 658 (emphasis added) (quoting Stevenson v. United States, 380 F.2d

590, 592 (D.C. Cir. 1967)).

       Fingerprint evidence is frequently used to establish identity or prove that an individual

touched a particular surface. David A. Stoney, Fingerprint Evidence: Scientific Status, in 4

Modern Scientific Evidence: The Law and Science of Expert Testimony § 34:21, at 247 (David

L. Faigman et al. eds., 2005). Through a process called fingerprint development, chemicals or

powders are used to make latent fingerprints visible. Id. After latent fingerprints have been

developed, the prints are recorded and then analyzed for identification. Id. “The issue is not the

finding of two fingerprints that are alike, but rather the finding of prints from two different

fingers that can be mistakenly be judged to be alike.” Id. § 34:47, at 265-66. Here, the

Commonwealth sought to establish that Hasson altered the vehicle identification number on the

Jeep by introducing a latent fingerprint developed through a novel, experimental method. Thus,

the scientific evidence offered in this case did not concern fingerprint analysis and identification,

but instead related to an experimental means of latent fingerprint development as a means of

accurately exposing the print.

       A police officer, who had been a patrol officer for sixteen years and “a crime scene

analyst” for one year, testified that the plate containing the vehicle identification number was

removed from the interior of the Jeep Hasson possessed. When he examined the back of the

plate, he found “a thin layer of foam adhesive.” Over objection, the trial judge permitted the

officer to testify that he lifted a fingerprint from that adhesive using a technique developed by

another police officer in the department. He explained the process as follows:

               The back of this VIN plate is -- there’s a very thin layer of foam,
               foamy type adhesive, which allows it to stick to a surface. Simply
               spreading black powder on this would be ineffective because it
               would stick to the entire surface.
                                                - 16 -
                    A colleague of mine, through research, developed a technique
                by which water, black powder and clear soap, dish soap, is mixed
                together in equal portions. And this is then spread on the surface
                of -- in this case, this adhesive. It could work on most any sticky
                surface, duct tape, electrician’s tape and that sort of thing.

                   The mixture then is rinsed off gently. And if there is any ridge
                detail on the sticky surface, the powder will stick to that while
                rinsing off the surface where there are no prints present.

He testified that the process exposes “ridge details of prints that are visible.” When those “ridge

details” are photographed, the photographs are then compared to a fingerprint database.

        The development process employed by the officer was not shown to be either valid or

reliable. These foundational omissions invalidate the process. Thus, it can hardly be said that

the technique represented a scientific method “so familiar and accepted as to require no

foundation to establish the fundamental reliability of the system.” Spencer II, 240 Va. at 97, 393

S.E.2d at 621 (citation omitted).

        The Supreme Court of Virginia has specifically held that “[t]he ‘Frye test’ has generated

considerable criticism” and has declined to adopt it. O’Dell v. Commonwealth, 234 Va. 672,

696, 364 S.E.2d 491, 504 (1988). Though the Court has not described in detail the inquiries to

be made or factors to be considered when testing whether the reliability of the scientific method

has been established, it has alluded to them. For example, in Spencer v. Commonwealth

(Spencer I), 238 Va. 275, 384 S.E.2d 775 (1989), the Court observed that the witnesses who

were experts in their fields testified the technique at issue was reliable, that false positive results

were eliminated by using a sufficient number of probes, that the testing was conducted in a

reliable manner, that the technique is generally accepted, and that the technique is used in

thousands of laboratories. Id. at 289, 384 S.E.2d at 782-83.

        While it is true that our Supreme Court has not adopted all the features of Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as the controlling test in Virginia, the

                                                 - 17 -
Court has noted that “[p]rior to Daubert, . . . [it] discussed the trial court’s role in making a

threshold finding of scientific reliability when unfamiliar scientific evidence is offered.” John v.

Im, 263 Va. 315, 322 n.3, 559 S.E.2d 694, 698 n.3 (2002) (citations omitted). Thus, while not

dispositive as a test in Virginia, the Daubert discussion concerning the factors that comprise an

analysis of scientific reliability certainly is instructive. They are:

                   Ordinarily, a key question to be answered in determining
                whether a theory or technique is scientific knowledge that will
                assist the trier of fact will be whether it can be (and has been)
                tested. “Scientific methodology today is based on generating
                hypotheses and testing them to see if they can be falsified; indeed,
                this methodology is what distinguishes science from other fields of
                human inquiry.” Green 645. See also C. Hempel, Philosophy of
                Natural Science 49 (1966) (“[T]he statements constituting a
                scientific explanation must be capable of empirical test”); K.
                Popper, Conjectures and Refutations: The Growth of Scientific
                Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific
                status of a theory is its falsifiability, or refutability, or testability”)
                (emphasis deleted).

                    Another pertinent consideration is whether the theory or
                technique has been subjected to peer review and publication.
                Publication (which is but one element of peer review) is not a sine
                qua non of admissibility; it does not necessarily correlate with
                reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as
                Policymakers 61-76 (1990), and in some instances well-grounded
                but innovative theories will not have been published, see Horrobin,
                The Philosophical Basis of Peer Review and the Suppression of
                Innovation, 263 JAMA 1438 (1990). Some propositions,
                moreover, are too particular, too new, or of too limited interest to
                be published. But submission to the scrutiny of the scientific
                community is a component of “good science,” in part because it
                increases the likelihood that substantive flaws in methodology will
                be detected. See J. Ziman, Reliable Knowledge: An Exploration
                of the Grounds for Belief in Science 130-133 (1978); Relman &
                Angell, How Good is Peer Review?, 321 New Eng. J. Med. 827
                (1989). The fact of publication (or lack thereof) in a peer reviewed
                journal thus will be a relevant, though not dispositive,
                consideration in assessing the scientific validity of a particular
                technique or methodology on which an opinion is premised.

                   Additionally, in the case of a particular scientific technique, the
                court ordinarily should consider the known or potential rate of
                error, see e.g., United States v. Smith, 869 F.2d 348, 353-354
                                                  - 18 -
               (CA7 1989) (surveying studies of the error rate of spectrographic
               voice identification technique), and the existence and maintenance
               of standards controlling the technique’s operation, see United
               States v. Williams, 583 F.2d 1194, 1198 (CA2 1978) (noting
               professional organization’s standard governing spectrographic
               analysis), cert. denied, 439 U.S. 1117 (1979).

                  Finally, “general acceptance” can yet have a bearing on the
               inquiry. A “reliability assessment does not require, although it
               does permit, explicit identification of a relevant scientific
               community and an express determination of a particular degree of
               acceptance within that community.” United States v. Downing,
               753 F.2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp.
               702-41 to 702-42. Widespread acceptance can be an important
               factor in ruling particular evidence admissible, and “a known
               technique which has been able to attract only minimal support
               within the community,” Downing, 753 F.2d at 1238, may properly
               be viewed with skepticism.

Daubert, 509 U.S. at 593-94.

       Indeed, these factors arguably are merely an expansive discussion of the factors

considered in Spencer I, 238 Va. at 289, 384 S.E.2d at 782-83. As exemplified by Spencer I,

these factors manifest a concern, not limited to federal jurisprudence, that the principles and

methodology which underlie a proffered technique be based upon “a reliable scientific

technique.” 238 Va. at 289, 384 S.E.2d at 782.

       In this case, the Commonwealth failed to establish that the police officer’s method was a

“reliable scientific technique.” Id. On further voir dire examination, the officer testified:

               [My colleague,] through various experimentation, came up with
               this formula or this mixture, which she found very effective in her
               experiments.

                  I tried it on an experimentational basis myself with duct tape
               and other sticky sides and met with success. And that’s the
               process I used on this.

               Q: Did you use -- has that technique been used -- that technique of
               analysis been admitted into evidence in previous cases that you’re
               aware of or any you have been involved in?



                                               - 19 -
                 A: None that I’ve been involved in and I’m not aware of others if
                 there have or not.

                 Q: Even though it was similar, are you aware of any periodicals or
                 publications that would say that that is a valid type of material to
                 use to take fingerprints with?

                 A: No official documentation that I’ve seen.

                 Q: Were you able to -- when you said you did it on various
                 surfaces to try to see the results, were you able to do that particular
                 mixture of whatever it was with the more commercial ones or ones
                 that had been used in the past to see if there was any difference in
                 the results?

                 A: No.

                 Q: Based on this solution?

                 A: Correct. No.

The officer testified that his training in this area has been “[j]ust through experience and work

and the experimentation that [he has been] referring to.”

        The officer’s testimony failed to establish reliability of the technique or to provide a basis

to support a finding that the technique he used was either scientifically reliable or valid. Spencer

II, 240 Va. at 97, 393 S.E.2d at 621. As he indicated, the technique was developed by one of his

colleagues through experimentation. This testimony merely described random anecdotal

observations without reference to any recognized system or theory. The officer testified that the

mixture he used on the adhesive produced results when he conducted an experiment with duct

tape. He testified that he was not aware of any documentation or use by other persons

concerning this mixture or technique. In short, this testimony did nothing to establish

refutability, falsity, error rates, or validity. These qualities implicate the reliability

determination.

        The majority looks to the California Supreme Court opinion in People v. Webb, 862 P.2d

779 (Cal. 1993), to support their decision that the novel development technique employed by the
                                                  - 20 -
police officer in this case was properly admitted. In Webb, the California Supreme Court ruled

that “[t]he reliability of the laser procedure in producing an image commonly recognizable only

as a human fingerprint was manifest at trial . . . [and] was seen by the jury.” 862 P.2d at 798.

This ruling does not support a conclusion that the technique used in this case was reliable, and it

does not satisfy the Spencer II standard that the trial judge “must make a threshold finding of fact

with respect to the reliability of the scientific method offered.” 240 Va. at 97, 393 S.E.2d at 621.

Simply put, it is not unreasonable to require that Virginia’s evidentiary standards for

admissibility be satisfied in this case.

        “Expert testimony founded upon assumptions that have no basis in fact is not merely

subject to refutation by cross-examination or by counter-experts; it is inadmissible.” Vasquez v.

Mabini, 269 Va. 155, 160, 606 S.E.2d 809, 811 (2005) (citations omitted). Likewise, expert

testimony that demonstrates the “expert has not considered all variables bearing on the

inferences to be drawn from the facts presented” is inadmissible. Forbes v. Rapp, 269 Va. 374,

381, 611 S.E.2d 592, 596 (2005). The trial judge has no discretion to admit unreliable evidence

and leave to the jury the decision how much weight to accord it. Id. The trial judge’s failure “to

strike such testimony upon a motion timely made is error subject to reversal on appeal.”

Vasquez, 269 Va. at 160, 606 S.E.2d at 811. I would hold, therefore, that the officer’s testimony

concerning the technique he used to lift fingerprints from the adhesive surface was not based

upon evidentiary proof that the technique was scientifically reliable and that the results he

achieved were not proved to be valid. I would reverse the convictions for receiving stolen

property (Code § 18.2-108) and for knowingly possessing a motor vehicle that had an altered

identification number (Code § 46.2-1075), and I would remand for a new trial on those charges.




                                               - 21 -
                                               III.

       For these reasons, I would affirm the convictions for credit card theft (Code § 18.2-192),

attempting to obtain money by false pretenses (Code § 18.2-178), attempting to commit credit

card fraud (Code § 18.2-195), and four counts of credit card forgery (Code § 18.2-193).5 I would

reverse the other two convictions and remand for a new trial.




       5
          Hasson’s sentencing order contains an error. The jury convicted Hasson of four counts
of credit card forgery in violation of Code § 18.2-193 and of other offenses. The final sentencing
order lists four convictions for credit card forgery but indicates that one of those convictions
(CR56890) is for violation of Code § 18.2-192, which pertains to credit card theft. I would
remand this order for correction.
                                                 - 22 -
