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Ratliff v. State (4/15/2005) ap-1977
Ratliff v. State (4/15/2005) ap-1977
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM B. RATLIFF, )
) Court of Appeals No. A-8651
Appellant, ) Trial Court No. 1JU-03-132 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1977 ? April 15, 2005]
)
Appeal from the Superior Court, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: David D. Reineke, Assistant Public Defender,
and Barbara K. Brink, Public Defender, Anchorage, for the
Appellant. Terisia K. Chleborad, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MANNHEIMER, Judge.
In late December 2002, a burglar broke into the Alaska Laundry in Juneau
and stole almost $2000 from the safe. In the process of opening the safe, the burglar
strewed the safe?s powdery fireproofing material across the floor. The burglar left many
shoeprints in this powder. When the police arrived to investigate the burglary, they
?lifted? some of these shoeprints. The preserved shoe impressions revealed that the sole
of the burglar?s shoe had a waffle pattern, and that the sole was embossed with the letters
?t?, ?n?, ?i?, ?e?, and ?s?.
The police suspected that William B. Ratliff might have been involved in
this burglary. Ratliff had an appointment with his probation officer the next afternoon, so
a police officer was sent to interview Ratliff when Ratliff arrived for this appointment.
The officer asked Ratliff if he had been in the Alaska Laundry the day
before. Ratliff declared that he had never been in that laundry. The officer then asked
Ratliff to show him the bottoms of his shoes. The officer could see that the soles of
Ratliff?s shoes appeared to match the shoeprints found at the laundry, so the officer left
the interview room to make a telephone call. Ratliff took this opportunity to run from the
building. Ratliff was arrested the next day while he was purchasing new shoes at a
shopping mall.
Ratliff was subsequently tried and convicted of burglary, theft, and criminal
mischief. In this appeal, Ratliff challenges the admissibility of certain testimony offered
by the government at his trial.
Lesley Hammer, a criminologist employed at the State Crime Laboratory,
compared the shoeprints left at the laundry with the patterns on the bottom of Ratliff?s
shoes. Hammer ran side-by-side comparisons, and she also performed overlay
comparisons. She found that some of the shoeprints at the laundry were ?consistent? with
Ratliff?s shoes ? i.e., they were made by Ratliff?s shoes or by other shoes of the same
brand or similar manufacture. However, with respect to two of the shoeprints, Hammer
concluded that these prints were made by Ratliff?s particular shoes (not just shoes of the
same brand or similar manufacture).
In the superior court, Ratliff objected to Hammer?s testimony. He argued
that shoeprint comparison was not valid science under the test enunciated by the United
States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 and later
adopted by the Alaska Supreme Court in State v. Coon.2
Superior Court Judge Larry R. Weeks held an evidentiary hearing on this
issue. At this hearing, Hammer was questioned regarding her training and experience,
and also regarding the procedures and methods used by her and other shoeprint
examiners. Hammer described how shoeprints are taken and preserved, and she described
how these prints are then compared to particular shoes.
At the conclusion of this hearing, Judge Weeks concluded that the type of
shoeprint analysis performed by Ms. Hammer was not ?scientific? for purposes of the
Daubert-Coon rule. Alternatively, Judge Weeks found that the type of shoeprint analysis
described by Ms. Hammer met the Daubert criteria.3 Finally, Judge Weeks concluded
that Hammer?s testimony was admissible under Evidence Rule 702 because her
specialized knowledge and training in this area would assist the jury in understanding the
shoeprint evidence and assessing its significance.
In this appeal, Ratliff takes issue with Judge Weeks?s conclusion that the
Daubert-Coon test did not apply to Hammer?s testimony ? i.e., the judge?s conclusion
that shoeprint analysis does not depend on the sort of scientific methodology governed by
Daubert and Coon. Ratliff takes the position that the Daubert criteria apply, not just to
scientific testimony, but to all expert testimony that is based on technical training or
specialized knowledge. Accordingly, Ratliff contends that Judge Weeks abused his
discretion when he ruled that it was unnecessary to subject Hammer?s testimony to a
Daubert analysis. Ratliff asks us to vacate Judge Weeks?s ruling, to remand his case to
the superior court, and to direct Judge Weeks to conduct a Daubert analysis of Hammer?s
testimony.
Ratliff relies on the Supreme Court?s decision in Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Kumho Tire, the
Supreme Court concluded that the admissibility of all expert testimony, not just scientific
expert testimony, is dependent upon a showing of relevance and reliability.4 The Court
suggested that the Daubert criteria for evaluating the validity of scientific evidence might
be pertinent outside a scientific context ? although the Court conceded that other factors
(i.e., factors not mentioned in Daubert) might also have a bearing on the reliability of
testimony based on technical or other specialized knowledge.5
In rejecting a fixed dividing line between ?scientific? evidence and other
evidence based on technical or other specialized knowledge, the Court noted:
[I]t would prove difficult, if not impossible, for judges to
administer evidentiary rules under which a gatekeeping
obligation depended upon a distinction between ?scientific
knowledge? and ?technical? or ?other specialized?
knowledge. There is no clear line that divides the one from
the others [, and] conceptual efforts to distinguish the two are
unlikely to produce clear legal lines capable of application in
particular cases.
Kumho Tire, 526 U.S. at 148, 119 S.Ct. at 1174.
At the same time, however, the Supreme Court
emphasized that it was not saying that all of the Daubert
factors necessarily applied to all kinds of expert analysis.
6 The ultimate question is whether the offered evidence is
based on valid principles and methodology.7 In answering
this question, the Supreme Court declared, trial judges must
have leeway in analyzing whether the Daubert factors, or
some of the Daubert factors, are pertinent to the assessment
of the methodological validity of the particular evidence being
offered in each case.8
Our supreme court has not yet decided whether
to adopt the rule of Kumho Tire as a proper interpretation of
Alaska evidence law. But even if we were to follow the rule
of Kumho Tire, that rule would not support Ratliff?s position
in this appeal.
Ratliff is wrong when he asserts that trial judges
are obliged to apply the Daubert criteria to all expert
testimony. The Supreme Court carefully worded Kumho Tire
to avoid this result. What Kumho Tire requires trial judges to
do is evaluate whether the Daubert factors are pertinent to
assessing the methodological validity of the particular
challenged evidence in their case.
The record shows that Judge Weeks fulfilled this
duty. When Ratliff raised his Daubert objection, Judge
Weeks held a hearing so that Lesley Hammer could explain
the principles and methods used by forensic examiners to
preserve shoeprints and conduct shoeprint comparisons.
Ratliff offered no competing testimony (or any other
evidence) on these matters. At the end of this hearing, Judge
Weeks concluded that he could adequately assess the
methodological validity of the proposed shoeprint testimony
without conducting a formal Daubert analysis.
Kumho Tire holds that a judge?s decision on this
issue is to be upheld unless it constitutes an abuse of
discretion.9 Here, we find no abuse of discretion.
Hammer?s explanation of shoeprint comparison
and analysis did not rest on arcane scientific principles, or on
the results of experiments or tests that could only be
understood and interpreted by experts. Instead, her analysis
rested on visual comparisons of physical samples: shoeprints
?lifted? from the scene of the crime, the shoes obtained from
Ratliff, and shoeprint transparencies made from Ratliff?s
shoes.
Hammer explained how these physical examples
were created and how they were compared. She
acknowledged that a lay person might be able to recognize the
salient similarities or differences between a given shoe and a
given shoeprint. She explained that her expertise lay in being
able to spot small physical abnormalities that might escape a
lay person?s eye, and in being able to identify (through
training and experience) which physical traits were
characteristic of a class or group of shoes, as opposed to the
physical traits unique to a particular shoe (e.g., individual
manufacturing defects or patterns of wear).
Indeed, at the conclusion of Hammer?s
testimony, when Judge Weeks asked Ratliff?s attorney if she
had any argument to present regarding the scientific validity
(or lack of validity) of Hammer?s analysis, the defense
attorney had nothing to say. She simply responded, ?Your
Honor, as far as whether the general techniques [of shoeprint
analysis] are acceptable or not, I will just let the Court rule on
that.?
We doubt that such a response is sufficient to
preserve a challenge to Judge Weeks?s ruling.10 But even
assuming that this issue was properly preserved for appeal,
the fact remains that Ratliff has pointed to nothing in the
record that casts doubt on the methodological validity of
Hammer?s shoeprint comparison and analysis ? nothing to
suggest that Judge Weeks abused his discretion when he
concluded that he could adequately assess the validity of the
challenged testimony without going through a formal Daubert
analysis.
We note that other courts have likewise
concluded that the test for evaluating the validity of scientific
evidence does not apply to shoeprint analysis. In People v.
Perryman, the Colorado Court of Appeals held that the older
test for evaluating scientific evidence (the Frye test) did not
apply to shoeprint analysis because the comparison of the
defendant?s shoes to the prints found at the scene ?involve[d]
no manipulation of physical evidence? and because ?the
expert?s techniques [were] readily accessible to the jury and
not dependent upon familiarity with highly technical or
obscure theories?.11 Similarly, in Belton v. State, the Georgia
Supreme Court held that ?the comparison of shoe prints to the
external physical characteristics of particular shoes is not a
matter of scientific principle or technique?.12 The court
explained that the challenged expert testimony ?did not deal
with scientific principles[,] but with observation and
comparison of physical objects, with matters not of science
but of skill and experience?.13 The Supreme Court of Maine
reached the same conclusion in State v. Boobar.14
Moreover, as we explained above, Judge Weeks
also ruled (in the alternative) that the testimony presented at
the hearing satisfied the Daubert inquiry. Ratliff does not
address this alternative ruling, much less offer any reasons for
believing that this ruling was wrong.
We note that other courts have concluded that
the type of shoeprint analysis conducted in Ratliff?s case
meets the Daubert test for methodological validity. See
United States v. Allen, 390 F.3d 944, 949-950 (7th Cir. 2004),
and see the extended discussion of this issue in United States
v. Mahone, 328 F.Supp.2d 77, 87-92 (D. Me. 2004).
For these reasons, we conclude that Judge
Weeks committed no error when he overruled Ratliff?s
objection to the shoeprint evidence.
The judgement of the superior court is
AFFIRMED.
1509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (construing the federal
evidence rules governing expert testimony).
2974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper interpretation of
Alaska?s rules governing expert testimony).
3On page 275 of the transcript, Judge Weeks?s finding is rendered: ?I think that
Ms. Hammer ... has also testified to things that ... meet the Daubert criteria as expressed by
Professor Engleride.? [sic] We assume that Judge Weeks actually said, ?Professor
Imwinkelried?. Professor Edward J. Imwinkelried is the author of numerous articles on
Daubert and scientific evidence.
4526 U.S. at 141, 119 S.Ct. at 1171.
5526 U.S. at 147-49, 119 S.Ct. at 1174-75.
6Id., 526 U.S. at 149-150, 119 S.Ct. at 1175.
7Guerre-Chaley v. State, 88 P.3d 539, 542 n. 4 (Alaska App. 2004); Cf. State v. Coon,
974 P.2d 386, 395 (Alaska 1999) (?[scientific] testimony [must] be derived by the scientific
method [or] based on scientifically valid principles?).
8Kumho Tire, 526 U.S. at 150-52, 119 S.Ct. at 1175-76.
9Id., 526 U.S. at 152-53, 119 S.Ct. at 1176.
10See Hohman v. State, 669 P.2d 1316, 1325-26 (Alaska App. 1983) (holding that
when an attorney responded to a relevance objection by simply stating, ?I?ll accept the ruling
from the court?, the attorney could not challenge the court?s ruling on appeal). See also
Willis v. State, 57 P.3d 688, 691-92 (Alaska App. 2002) (defense attorney failed to advance
any grounds to support a request for a mistrial); Petersen v. State, 930 P.2d 414, 434 (Alaska
App. 1996) (defense attorney declined to argue the point or provide any rationale for giving a
requested jury instruction); Cornwall v. State, 915 P.2d 640, 653 n. 11 (Alaska App. 1996)
(same).
11859 P.2d 263, 267 (Colo. App. 1993).
12512 S.E.2d 614, 617 (Ga. 1999).
13Id.
14637 A.2d 1162, 1167 (Me. 1994).
?10? 1977
