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

JAHADV.D. HILL, B.D. 04/18/95, Appellant. No. 70429-0-I

UNPUBLISHED OPINION
FILED: July 21, 2014 

### Verellen, A.C.J.

— Based on experttestimony thatfingerprints at the scene of a burglary were Jahad Hill's, thejuvenile courtfound him guilty ofresidential burglary. Hill appeals, arguing that the reliability oflatentfingerprint 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 argumentwas not adequately preserved below and because the record is insufficientto warrant a departure from Lucca in any event, we affirm. FACTS On September 14, 2012, someone burglarized the home ofChester and Therese Pasternak in Des Moines, Washington. The burglartookjewelry and other personal property.



### 156 Wn. App. 597, 784 P.2d 572 (1990). ^4No. 70429-0-1/2 

### Officer Langhofer of the Des Moines Police Department investigated the burglary. Most ofthe window screens on the backside ofthe house had been removed and a window was open. Officer Langhoferfound a hand impression on the open window. When he had difficulty liftingfingerprints from the window, he contacted a detective and the automated fingerprint identification system (AFIS) lab. The detective suggested Officer Langhofertake a photograph ofthe 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 ofthe window. Bolney Wade Anderson, a King County latent print examiner, did a computer search of known prints with one ofthe 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 inthe prints. Hedetermined thatthe 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. Attrial, OfficerLanghofer and BolneyAnderson 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 otherexaminers in his office had made at least two misidentifications that were discovered by a verifier. He also conceded that there is no minimum number ofdetails required before he canNo. 70429-0-1/3 

### declare a match between prints. Defense counsel did not ask the expert about the reliability oflatentfingerprint analysis or call an expertforthe defense. The defense rested without calling witnesses. 

### During closing argument, the prosecutorargued that underthis court's decision inLucca, the fingerprint evidence was sufficient, by itself, to support a conviction. Hill countered thatthe reliability offingerprint evidence had been called 

### into question since Lucca. He argued that a 2009 reportfrom the National Academy ofSciences (NAS report) "critiqued fingerprint evidence as not being scientificallybased, [but] simply being a matter ofmatching pictures as preschoolers do intheir 

### assignments."2 The following colloquyensued: COURT: Mr. McGuire, Idon't have any evidence ofthe National Academy of Sciences study. Can Iconsider it? MCGUIRE: Ithink the court can takejudicial notice of it,yes. Idon't think it's evidence, no, but Ithink itcertainly is part of the prism through which the court can as an educated, modernjurist considerthe framework with which to consider evidence. I don't think it's at all out of line for the court to educate oneselfinterms ofevidence. That isn'tto 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 ofthat evidence for court purposes, and Ithink itcertainly is fair to considerwhere that is the only evidence that identifies Jahad Hill as being involved in any way with this crime. Ithink it is important thatthe court consider all viewpoints] that would permit an overall objective viewing ofthe evidence that has been proffered.



### 2Report ofProceedings (Apr. 2, 2013) at 136 (referring to National Research Council Strengthening Forensic Science in the UnitedStates: A Path Forward(Nat'IAcademy 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, Ithink is another question. Hopefully, we don't have to address that question in this case, butwhether fingerprint evidence alone is sufficient intoday's world with the evolution of science is a much larger question.

STATE:
... Mr. McGuire's request of Your Honor, the trier offact, 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 ofthat study was is absolutely inappropriate...
. Now, the prints on the inside portion ofthis 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 littlefinger were a match. On each ofthose 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 outthat 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 thatthe onlydisputed questions were whether 

### the prints were Hill's and what weight the court should give them. The court found thatthe prints were Hill's and that, under Lucca, thatfact was alone sufficient to prove Hill's guiltbeyond a reasonable doubt. Hill appeals.
DECISION 

### The sole issue on appeal is whetherthe fingerprint evidence was sufficient, by 

### itself, to support Hill's adjudication ofguilt. Hill acknowledges our prior holding that 

### "[fingerprintevidence 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, thatthe NAS report and various documented incidents oferroneous fingerprint identification "prove that findings of guilt resting only on latentfingerprint analysis pose an unacceptable risk 

### oferroneous identification."5 NotingthatWashington 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 fingerprintevidence.7 We decline to do so forseveral reasons. First, Hill did not adequately preserve or supportthis 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 thatthe NAS report had "raised a number of critical questions about fingerprint evidence," and that the trial court could consider the NAS report inweighing the evidence. He also did not offer the NAS report into evidence. Nor did he offer any evidence offalse positive rates associated with latent 

### fingerprint identification.8 Because there may be fact questions regarding the degree
4Lucca, 56 Wn. App. at 599. 

### 5Appellant's Br. at 19. 6See 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). 

### 7Fingerprints can be patentor latent. UnitedStates v. Herrera, 704 F.3d 480, 482- 87 (C.A.7 2013) ("Patentfingerprints are made by pressing a fingertip covered with ink on a white card or similarwhite 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 latentfingerprint visible so that it can be compared with otherfingerprints."). 

### 8In a decision filed earlierthis year, the Massachusetts Supreme Court stated that 

### "preliminarystatistical evidence has begun to emerge" showing a small false positive error 

### rate forfingerprint analysis. However, the courtsuggested that changes to the status of such evidence not be made until research on error rates and populations frequencies "reachNo. 70429-0-1/6 ofthe alleged unreliability oflatent fingerprint evidence, itwas 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 ifwe were to address the argumentfor the first time on appeal, the record is insufficientto even consider a categorical change to the status oflatent fingerprint evidence. As previously noted, the record contains no evidence oferror rates in latentfingerprint analysis. Nor does Hill cite a single case from any jurisdiction holding that latentfingerprint evidence is insufficient, standing alone, to support a conviction. And while the NAS report does raise questions regarding the reliability oflatentfingerprint evidence, courts have found itinsufficientto warrant 

### changes to the status ofsuch evidence.10 Astatement in the report itselfcautions against giving ittoo 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). 9Cf. State v. Woo, 84 Wn.2d 472, 475, 527 P.2d 271 (1974) (noting that 

### "[t]here is nothing inthe records, by way oftestimony or exhibit, concerning the trustworthiness ofthe most modern polygraph equipment. The type ofequipment 

### proposed to be used inthe instant cases and its reliability are not disclosed.
... Ifwe 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 

### specificitythatwould justify a conclusion that itprovides 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 relevantscientific community, has a verylow 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 suggestthat the existence of the NAS [r]eport alone will require the conductof.
. . hearings as to the general reliability ofexpert opinions concerning fingerprintidentifications").No. 70429-0-1/7 The committee decided early in its work that it would not be feasible to develop a detailed evaluation ofeach discipline interms of its scientific underpinning, level ofdevelopment, and ability to provide evidence to address the major types ofquestions raised in criminal 

### prosecutions and civil litigation.111' Inaddition, the report "does not appearto 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 overa person's life."12 In short, the record is inadequate to contemplate the categorical change Hill requests. Finally, it is important to remember thatWashington 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 ofsuch 

### evidence.13 That is not the case with latentfingerprint 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 ofsuch 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 offingerprint evidence still find itmore probative than 

### eyewitness identification of a stranger, which Washington courts consideralone sufficientto 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 

### Forthese 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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