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Harrell v. State

Court of Appeals of Arkansas, Division IV

January 10, 2018



          Hodge Calhoun Giattina, PLLC, by: Robert E. Hodge III, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          DAVID M. GLOVER, Judge

         Terrell Harrell was tried by a jury and found guilty of the offenses of second-degree battery, aggravated robbery, kidnapping, theft of property, fraudulent use of a credit or debit card, and residential burglary. He was sentenced to thirty years in the Arkansas Department of Correction on the aggravated-robbery charge, with all other sentences to run concurrently. In this appeal, he 1) challenges the sufficiency of the evidence supporting his convictions and 2) asserts an abuse of discretion in the trial court's admission of fingerprint evidence because it was not properly authenticated. We affirm.

         Robert Birmingham was the victim in this case. He testified that on the night in question, he was awakened when two men came crashing through his back door yelling, "Where's the money, mother fucker?" He did not recognize either of them at the time. One man jumped on him and started hitting him in the face, and then they dragged him from his bed and tied him up in the computer room. One tried to get him to open his safe while the other was cutting him with a knife. They then rolled the safe out of the house and loaded it on Birmingham's truck. Birmingham crawled across the hall to his wheelchair, called 911, and went to the back of the house. The men returned, saw the phone, asked whom he had called, and started cutting him again. They then dragged him outside, stuffed him in the floorboard of his truck, and started driving to Little Rock.

         Birmingham testified he was blindfolded; they took him to what he guessed was an apartment; they unloaded his guns and safe; and they got back into the truck and went to an apartment complex. The men told him they were going inside and would come back and take him home. He realized they had left the keys in the truck; he crawled to the front driver's seat and locked the doors; he drove out of the complex across at least four lanes of traffic into a parking lot; and he asked a lady to call the police. Shortly afterward, the Little Rock police showed up. He told the officers to contact Mississippi County because he knew they would be looking for him, and he was placed in an ambulance and taken to the VA Hospital.

         Birmingham described the contents of his safe; he said the men kept telling him they were going to kill him if he did not open the safe; he had the combination written on a piece of paper, but the intruders were not able to open the safe; so they just took the safe with them. He said he did not know either of the men in the truck, but he had an idea who one of them was; he believed one of them knew him because that intruder called him "Rob"; and they passed a cigarette around in his house.

         Brice Hicks, a general investigator with the Mississippi County Sheriff's Department, testified he was called to the Birmingham residence; he processed the scene and took photographs; he noticed a footprint and blood on the back of the wheelchair; the kitchen was a mess; he took several DNA swabs from the scene, including four from the back door and two DNA blood samples from the wheelchair; he retrieved a piece of paper with the safe combination written on it; and he recovered a cigarette butt in the computer room. Hicks testified he interviewed Birmingham a few days later when he got out of the hospital, and he photographed him and his injuries at that time.

         Rachel Carver, who was a member of the crime-scene search unit of the Little Rock Police Department, testified about the manner in which she collected evidence from Birmingham's truck in March 2015. She described in detail the evidence-collection process for the crime scene. In particular, she explained about the four DNA swabs she obtained and also about the fingerprint evidence she collected. She testified she obtained four possible latent fingerprints from the vehicle; initialed the cards, showing the time, location, vehicle description, and license plate number; and then placed them in a sealed envelope, tagged it, and secured it in a storage locker.

         Katy Kinkaid, a latent-print examiner with the Little Rock Police Department, testified the crime-scene search unit turns fingerprint evidence over to her, and it is stored in property lockers. She explained she did an analysis on some latent fingerprint submissions from Specialist Rachel Carver; two of the four "lifts" collected by Specialist Carver had no value; the other two "lifts, " however, contained fingerprints her unit determined would be sufficient to "individualize" someone; and she entered those two fingerprints into the Automated Fingerprint Identification System (AFIS).

         Defense counsel called for a bench conference and objected, arguing the State needed testimony from someone who had taken Harrell's prints. Counsel stated that the database only provided the fingerprint analysts with information to go get his client's print and compare it; that the AFIS is a database filled with fingerprints; but that there was no way to authenticate that the print in the system actually came from Harrell. The trial court sent the jury out and questioned Ms. Kinkaid extensively about the AFIS system, allowing the State and defense counsel to contribute to the discussion. At the conclusion, the trial court ruled that Ms. Kinkaid had followed the standard operating procedure and that any issue that might be raised concerning whether the AFIS print was, in fact, Mr. Harrell's print card, could be developed and addressed in cross-examination.

         Kinkaid subsequently testified that two prints were determined to be sufficiently detailed in this case and were identified as belonging to Terrell Harrell. She explained that the two prints were located on the latent-lift cards taken from the interior of the vehicle on the inside of the driver-side rear window. She further explained that before a report was finalized, another examiner always reviewed it.

         Mary Simonson, a forensic DNA examiner with the Arkansas State Crime Lab, testified as an expert witness about the cigarette butt that was retrieved from Birmingham's house. She explained that there was a mixture of DNA from more than one individual on the cigarette butt, but that the major DNA contributor to ...

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