2006-669, STATE OF NH v. DAVID S. CONNOR

The defendant, David S. Connor, appeals his convictions on

and orally, for the defendant. James T. Brooks, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-669 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as opinion.

p. 2 his identification, Jackson is then able to generate a report and issue his These objections were overruled.

order to verify the findings of the first technician. Following the verification of independently analyzes, compares and evaluates the relevant fingerprints in this case, the defendant objected to each question on the grounds of hearsay. methodology requires an additional step, where a second technician

verification process and the opinion of Lisa Corson, the verifying technician in and evaluation of the latent print to the known print. However, the ACE-V fingerprint identification. However, when Jackson testified about the responded by asking several questions regarding the verification of Jackson’s inadmissible hearsay.

right to confrontation, citing strike Jackson’s entire testimony, arguing it was hearsay and also violated his

demonstrates the rulings are clearly untenable or unreasonable to the was not hearsay because it was not offered for the truth of her opinion, but The State first argues that Jackson’s testimony about Corson’s opinion

Jackson testified that his opinion is formed following the analysis, comparison, known as “ACE-V” – analysis, comparison, evaluation, and verification. there was insufficient foundation for his expert opinion without it. The State and the statements were offered for their truth, the disputed statements were fingerprint methodology utilized by the state lab follows a four-step procedure general rule applies. N.H. R. Ev. 802. Since no exception applies in this case, Ev. 801(c). In general, hearsay is not admissible unless an exception to the hearing, offered in evidence to prove the truth of the matter asserted. recessed for lunch. Following the luncheon recess, the defendant moved to N.H. R. statement, other than one made by the declarant while testifying at the trial or

unsustainable exercise of discretion standard, and reverse only if the defendant We review a trial court’s rulings on the admissibility of evidence under an

in failing to sustain his hearsay and Crawford objections. court denied the motion. On appeal, the defendant argues the trial court erred offering his opinion without first testifying about the verification step, arguing Crawford v. Washington, 541 U.S. 36 (2004). The fingerprints found on the pickle jar. According to his testimony, the latent

The State concluded its direct examination of Jackson and the court

During the State’s direct examination, the defendant objected to Jackson as an expert in latent fingerprint analysis, testified to his identification of the

At trial, Timothy Jackson, a criminalist at the state lab who was qualified

Street and 459 Beech Street. forensic lab for analysis. The two additional fires occurred at 291 Manchester resulted in the same conclusion, thus corroborating Jackson’s opinion.

p. 3 the truth of Corson’s opinion, that is, that her independent ACE procedure very nature, the purpose of this verification, as described by Jackson, lies in evaluation of the fingerprint, and ultimately forming her own opinion. By its

identification by undertaking an independent analysis, comparison and under an exception to the rule.

Connor.” finger from the individual whose name appears on the fingerprint card of David determination. Rather, it is clear that her task was to affirm Jackson’s circumstances, this evidence constitutes inadmissible hearsay unless it falls Jackson employed the correct number of comparison points in making his check that the equipment or procedure used by Jackson was proper or that

inferences upon the subject.

Thus, contrary to the State’s assertion, Jackson did not rely upon Corson’s

the latent print found on the pickle jar “[w]as, in fact, made by the left middle well beyond establishing Jackson’s compliance with procedure. Under these ensure he had followed the applicable procedures. Corson did not simply

reasonably relied upon by experts in the particular field in forming opinions or upon which an expert bases his opinion need not be admissible if of a type disagree. New Hampshire Rule of Evidence 703 provides that facts or data

but that he could not release this determination until after it had been verified. analysis was complete, and his opinion formed, prior to Corson’s verification, Jackson testified to Corson’s opinion, stating that she had also determined that verification as a basis for his opinion. In fact, Jackson testified that his go through the entire ACE methodology to render their opinion.” In addition, relating to the verification process and Corson’s independent opinion extends (2005). Here, there is no evidence that Jackson relied upon Corson’s have determined what they wanted to use for their comparison. . . .[T]hey will Jackson’s testimony clearly illustrates that the verification is not conducted to See State v. Fernandez, 152 N.H. 233, 244

because Jackson relied upon Corson’s opinion in forming his own. We The State argues Jackson’s testimony is admissible under Rule 703

when it has no significance unless a true representation). Jackson’s testimony technician “would have been given the photograph and the lift. They could Simpkins v. Snow verification process, as described by Jackson, supports our conclusion., 139 N.H. 735, 737 (1995) (statement offered for its truth for its truth, as distinguished from mere satisfaction of procedure. The See

verification conducted here. Specifically, Jackson testified that the verifying followed. Instead, he described the verification process, and the results of the regarding the process undertaken and Corson’s ultimate opinion was offered Jackson did not merely testify that all four steps of this procedure had been Contrary to the State’s assertion, we conclude that Jackson’s testimony

showing his compliance with the ACE-V methodology. We do not agree. rather to aid the jury in evaluating the reliability of Jackson’s opinion by conclusion regarding the fingerprint. The opinion of the

p. 4 the witness could not have arrived at, and testified to, a final

not applicable.

sense.

without verification of his own opinion by another examiner clear that, under standard S.B.I. operating procedures, be verified . . . before it can be . . . mailed out.” It is thus

Jackson did not rely upon Corson’s opinion in forming his opinion, Rule 703 is

verification by a second technician performed in that case. already determined to be an identification of the defendant’s fingerprint.

final until verified and, therefore, the expert relies upon the verification in this

[The expert] specifically stated that his identification “has to

basis for the expert’s opinion. Id. at 848. It explained: The expert had come to his conclusion based upon own observations). Because Jones Court agreed, holding that the other examiner’s verification formed a appeal, the State argued this testimony was admissible under Rule 703. Id.

fingerprint expert utilizing a methodology similar to ACE-V testified to the his own. Rather, Corson’s verification simply corroborated what Jackson had See State v. Jones, 368 S.E.2d 844, 848 (N.C. 1988). In Jones, a

nontestifying colleagues.” under these circumstances, finding that the testifying expert’s opinion is not We acknowledge that some jurisdictions have held Rule 703 applicable

opinion; the corroborative opinion, however, is not the expert, such corroboration might reinforce the expert’s confidence in the colleague merely corroborates the opinion independently arrived at by the regarding other experts properly excluded; Rule 703 not applicable because Wilkie v. State, 715 P.2d 1199, 1204 (Alaska Ct. App. 1986) (testimony

Jackson’s testimony proves he did not rely upon Corson’s opinion in forming consultations with colleagues regarding the X-rays. Id. This rationale is equally applicable here. testimony to simply parrot the corroborative opinions solicited from upon his review of the patient’s X-rays. opinion.” Id. at 434. It further stated that Rule 703 does not allow “an expert’s

testimony was not permissible under Rule 703, concluding, “If the expert’s On appeal after a defendant’s verdict, the court held that the verification

Id. at 431, 432.

experts admitted to forming an opinion prior to distributing the X-ray films to

defense experts to testify, over the plaintiff’s objection, to the results of their

action involving the failure of a radiologist to properly diagnose an illness based 576 N.E.2d 427 (Ill. App. Ct. 1991). Kim concerned a medical malpractice The Illinois Appellate Court addressed a similar issue in Kim v. Nazarian,

the release of his already formed opinion. verification as a basis for his opinion; it was simply a necessary prerequisite to an overwhelming nature, quantity or weight, thereby amplifying the importance

p. 5 alternative evidence of the defendant’s guilt is largely circumstantial and not of

determination–a determination significant to the State’s case. Further, the Her opinion necessarily and improperly bolsters the reliability of Jackson’s evidence of Corson’s opinion affirming Jackson’s identification in this case.

However, any question raised in this respect is severely undermined by

made in the process of a fingerprint identification and its general reliability. The defense’s cross-examination of Jackson focused upon errors that could be evidence physically linking the defendant to the fire at 295 Amherst Street.

the error. determined, beyond a reasonable doubt, that the verdict was not affected by a reasonable doubt. Jackson’s opinion was crucial to the State’s evidence of cannot conclude that the admission of Corson’s opinion was harmless beyond have been admitted even if the trial court had not erred, given the record, we

fingerprint evidence, the error was harmless. An error is harmless only if it is

examiner forms a part of the basis for the testifying expert’s opinion. Although Jackson’s identification of the defendant’s fingerprint would

of guilt. Id. is merely cumulative or inconsequential to the strength of the State’s evidence of an overwhelming nature, quantity or weight and if the inadmissible evidence beyond a reasonable doubt if the p. 5 alternative evidence of the defendant’s guilt is burden of proving the error was harmless. Id. An error may be harmless the verification.” State v. Pseudae, 154 N.H. 196, 202 (2006). The State bears the

The State contends that even if the trial court erred in admitting the

fingerprint without verification, it does not follow that the opinion of the other grounds, however, we need not address this issue. Because we agree with the defendant that the trial court erred on hearsay The defendant also objects to Jackson’s testimony based upon Crawford.

based upon it. Thus, Rule 703 is not applicable. that his expert opinion was formed independent of Corson’s verification, not

Id. (Webb, J., dissenting). Jackson’s testimony demonstrates

him more confident that he was right but he did not form his opinion based on opinion at the time the verification was made. The verification may have made (Webb, J., dissenting). As is the case here, “[t]he witness had formed his

the expert may not have been able to testify to his conclusions regarding the without any contribution from Corson. As the dissent in Jones noted, while However, this rationale fails to recognize that Jackson formed his opinion

Id.

the opinion to which the witness testified . . . . other examiner thus necessarily forms a part of the basis for subsequent conduct.

p. 6 fingerprint evidence. information he had as bearing on the reasonableness of his reasonableness of his subsequent conduct” in rendering his opinion on the

of the person to whom the statement is made or to show the 6 ACE-V protocol is admissible for the non-hearsay purpose of showing “the hearer for the purpose of proving circumstantially the state of mind example is where an utterance is offered to show the effect on the

made.” Thus, testimony regarding Jackson’s receipt of verification under the agency on my findings until they are verified if an identification has been examiner is of little use in court or out unless it is verified. Accordingly, When this is done, the hearsay rule is not a bar. A common to standard operating procedures I’m not even allowed to brief the submitting fingerprint impressions”). As Jackson’s testimony indicates, an opinion of an Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),] for footwear and federal courts have favorably analyzed the ACE-V method under Daubert [v. falsity. United States v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006) (noting that “other The ACE-V protocol is accepted in a number of jurisdictions. See, e.g.,

for a variety of purposes other than to prove the facts asserted. The State’s fingerprint expert, Timothy Jackson, testified that “according

defendant’s convictions on all three indictments. Ellsworth v. Watkins, 101 N.H. 51, 53 (1957) (citations omitted). of this evidence was not limited to the 295 Amherst Street fire, we reverse the examiner is simply to show the effect on the hearer, independent of its truth or

Many relevant oral expressions made out of court may be offered

Corson’s opinion, and that this error was not harmless. Because consideration purpose for the admission of the fact of verification by an independent had a non-hearsay purpose, I respectfully dissent. To me, the non-hearsay HICKS, J., dissenting. Because I think that the verification testimony beyond a reasonable doubt. J., dissented. BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred; HICKS,

Accordingly, we hold the trial court erred in allowing Jackson to testify to

that Corson’s opinion did not affect the verdict, and was harmless error, of the jury’s acceptance of Jackson’s opinion. Therefore, we cannot conclude p. 7 7

affirm. protocol. As the defendant failed to request such an instruction, I would explaining how Jackson was able to render his opinion under the ACE-V

testimony was not to be considered for its truth but for the limited purpose of

which the testimony was admitted, none was requested”). “may have been entitled to a limiting instruction regarding the purpose for

request, and the trial court to give, an instruction that the verification

although defendants challenging evidence admitted for a non-hearsay purpose Cf. State v. W.J.T. Enterprises, 136 N.H. 490, 494 (1992) (noting that

In this case, the proper procedure would have been for the defendant to

instruction. verification evidence should be admissible in some limited form with a limiting