COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Beales and Senior Judge Willis Argued at Salem, Virginia

WESLEY BRIAN EARNEST OPINION BY v. Record No. 0366

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- 3 JUDGE JERE M.H. WILLIS, JR. DECEMBER 4, 2012 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BEDFORD COUNTY James W. Updike, Jr. , Judge Joseph A. Sanzone (Sanzone & Baker, P.C. , on brief) , for appellant. Eugene Murphy , Senior Assistant Attorney General (Kenneth T. Cuccinelli, II , Attorney General, on brief), for appellee.

On appeal from his convictions of first

- degree murder in violation of Code § 18.2

- 32 and
the use of a firearm in the commission of first

- degree murder in violation of Code § 18.2

- 53.1, Wesley Brian Earnest contends the trial court erred (1) in refusing t o allow Dr. Jennifer Mnookin to testify as an expert witness in fingerprint methodology , and (2) in refusing to allow Dr. Mnookin to offer an opinion contradicting the testimony of an expert witness for the Commonwealth

. We affirm the judgment of the tria l court. Background Earnest and the victim, his wife, were undergoing a contentious divorce. On December 20, 2007, the victim ’ s body was found on the floor in her home. She had died from a gun shot
wound to her head. Officers recovered a firearm lying o n the sleeve of the coat th at she was wearing. They also found a typewritten note located several feet from her body. The victim ’ s fingerprints were not found on the note . However, Kenneth Riding, a retired forensic scientistPUBLISHED- 2

- who specialized in analyzin g latent fingerprints, testified that two latent fingerprints found on t he

note were Earnest’s fingerprints

. Andrew Johnson , a forensic scientist specializing in fingerprint analysis and impression analysis, confirmed Riding ’ s fingerprint examination and identification

. Like Riding, Johnson opined that the latent prints on the note were made by Earnest.
Earnest tendered Dr. Jennifer Mnookin as an expert witness in “ fingerprint identification
methods and the history ” and “ the use of fingerprint identifica tion methods. ” The Commonwealth objected , arguing that Dr. Mnookin was not a “ fingerprint examiner ” and should not be permitted to opine regarding the fingerprint an alyses performed in the case. Upon voir dire to determine her qualifications , Dr. Mnookin testified that she has an undergraduate degree in social science, a law degree, and a Ph

. D

. in the history and social study of science and technology. She teaches evidence at UCLA School of Law. She testified that she has
numerous affiliations with work groups and committees and has published article s related to “ the adequacy of the research foundation and scientific basis for latent fingerprint identification. ” She
stated sh e w as acquainted with the comparisons conducted in Earnest ’ s case, but she test ified, “ I am not a fingerprint examiner and .

. . would not ever make a statement about whether or not two prints did or did not match. That is outside of my expertise. ” She also acknowledged she had never performed a fingerprint analysis.
Earnest proff ered that Dr. Mnookin would testify that there was no statistical or clinical
bas i s for the claim that a partial latent fingerprint can be matched to a known fingerprint using the methods testified to by the Commonwealth ’ s expert fingerprint witness es. He proffered that she would testify that studies are ongoing but incomplete in this area and that she would testify concerning an unrelated case (the Mayfield case) and a report (the Galton r eport)

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- T he trial court ruled that expert witness testimony would be admissible if offered by a qualified expert who c ould testify “ regarding the methodology employed in this particular case or has an opinion as to the particular analysis conducted by [ the Commonwealth’s] experts who have
testified or an expert who has i ndependently conducted his or her own examination, but I don’t see it yet.” It held that despite Dr. Mnookin ’ s extensive education and expertise in certain areas, she was not qualified as an expert in the field of fingerprint analysis. It noted that it a ppeared th at the purpose of her testimony was to discuss other cases and studies which would involve inadmissible hearsay

. Earnest sought to have Dr. Mnookin refute a reference by Johnson to the Galton report

. I n addressing the history of fingerprint ana lysis as a form of identification, Johnson had refer r e d to the Galton report , noting it s assertion that “ the chances of any two people having the same fingerprint are one in sixty

- six billion. ” Earnest did not object to this testimony. The trial court no ted that
Johnson ’ s re ference to the Galton report was “ not relied upon as a basis for any opinion, ” but rather

w as background or a matter of history concerning fingerprint analysis

. The trial court refused to
allow Dr. Mnookin to testify about the Galton report, ruling that this would involve inadmissible hearsay

. Earnest sought to refute Johnson ’ s testimony that “ nobody has ever found two different
individuals on the planet with the same fingerprint. ” He proffered that he wanted to question
Dr. Mnookin about an unrelated incident , referred to at trial as the “ Mayfield case.” The trial court
ruled that discussion of the Mayfield case would be rejected as hear say. A nalysis Whether to permit a witness to qualify as an expert on a given subject matter is an issue submitted to the discretion of the trial court, and on appeal we will not reverse the trial court ’ s ruling in- 4

- this regard unless it plainly appears that the w itness was not qualified. Conley v. Commonwealth , 273 Va. 554, 560, 643 S.E.2d 131, 134 ( 2007).

“ The record must show that the proffered expert possesses sufficient knowledge, skill, or experience to render h im competent to testify as an expert on the sub ject matter of the inquiry. ” King v. Sowers , 252 Va. 71, 78, 471 S.E.2d 481, 485 (1996)

. Earnest contends the trial court abused its discretion in rejecting Dr. Mnookin as an expert
witness. He did not propose her as an expert in fingerprint analysis. Indeed, Dr. Mnookin testified
that she would not undertake to perform, confirm, or refut e a fingerprint analysis. Rather, her expertise lay in an academic evaluation of various studies on the subject of fingerprint analysis

. Her proffered testimony would not have addressed or rebutted the actual analyses performed by the
Commonwealth ’ s expe rts , but would merely have addressed generally the “ statistical or clinical
bases ” for the assertion that a latent fingerprint can be m atched to a known fingerprint. The law in Virginia is well settled that fingerprint analysis by a qualified examiner is

c ompetent evidence. See , e.g. , Avent v. Commonwealth , 209 Va. 474, 478, 164 S.E.2d 655, 658 (1968) ( “‘ The accuracy of fingerprint identification is a matter of common knowledge and no case has been cited, and we have found none, where identification so est ablished has been rejected. ’” (quoting Stevenson v. United States , 380 F.2d 590, 592 (D.C. Cir. 1967))). To the extent that Dr. Mnookin’s proffered testimony was relevant, as going to the weight to be given to the fingerprint analyses, the proffer set for th no foundation showing the proposed testimony to be other than hearsay. T he trial court did not abuse its discretion in rejecting that proffer.
Earnest also contends the trial court erred in not allowing Dr. Mnookin to refute Johnson ’ s statements that “ the chances of any two people having the same fingerprint are one in sixty

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- billion ” and “ nobody has ever found two different individuals on the planet with the same fingerprint. ”

“‘ The admissibility of evidence is within the broad discretion of the t rial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion. ’” Bell v. Commonwealth , 49 Va. App. 570, 576, 643 S. E.2d 497, 500 (2007) (quoting Blain v. Commonwealth , 7 Va. App. 10, 16 , 371 S.E.2d 838, 842 (1988)).
Ea rnest did not object to the admission of Johnson’s statements, but he elicited on

cross
- examination that Johnson had read only sections of the Galton report

. However, according to
Earnest’s proffer, the most Dr. M nookin could have stated was that she knew of no documentation supporting Johnson’s assertions

. This would have been hearsay. Earnest proffered that
Dr. Mnookin would address details about the Galton report and the Mayfield case

. This also would
have involved hearsay

. “‘ [E] xperts in criminal c ases must testify on the basis of their own personal
observations or on the basis of evidence adduced at trial. ’” Wright v. Commonwealth , 245 Va. 177 , 197 , 427 S.E.2d 3 79, 392 (1993 ) (quoting Buchanan v. Commonwealth , 238 Va. 389, 416, 384 S.E.2d 757, 773 (1989) ).
In Simpson v. Commonwealth , 227 Va. 557, 566, 318 S.E.2d 386, 391 (1984), we noted that Code § 8.01

- 401.1, which permits “ an expert to base his opinion on facts made known or perceived by him at or before trial, whether admissible in themselves o r not, provided they are facts of a type normally relied on by other experts in the field, ” is limited by the express language of th e statute to civil cases. In Simpson , we declined the Commonwealth ’ s invitation to judicially expand this r ule to criminal prosecutions. Id. Sanders v. Commonwealth , 282 Va. 154, 159 n.1, 711 S.E.2d 213, 215 n.1 (2011). The proposed t estimony by a witness unqualified as an expert in the field concerning reports or cases unrelated to the fingerprint analyses at issue in the case did not tend to establish
or rebut a fact at issue

. I t would not have refute d the conclusions reached by the two expert- 6

- fingerprint analysts. Accordingly, the trial court did not abuse its disc retion in refusing to allow
Dr. Mnookin to testify as to the Mayfield case and the Galton report.
W e affirm the judgment of the trial court.
Affirmed.