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Widmer v. Warden, Correctional Reception Center

United States District Court, S.D. Ohio, Western Division

June 29, 2017

RYAN K. WIDMER, Petitioner,
v.
WARDEN, Correctional Reception Center, Respondent.

          Timothy S. Black District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 37) to the Magistrate Judge's Report and Recommendations[1] (“Report” ECF No. 35). As permitted by Fed.R.Civ.P. 72, the Warden has filed a Response to those Objections (ECF No. 39). District Judge Black has recommitted the case for reconsideration in light of the Objections and Response (ECF No. 38).[2]

         Standard of Review

         The Report was filed upon consideration of the Petition (ECF No. 1), the State Court Record (“SCR, ” ECF Nos. 17, 18, 19, 20, 21, and 30), the Return of Writ (ECF No. 22), the Reply (ECF No. 25), and oral argument (Tr. at ECF No. 31). 28 U.S.C. § 636(b)(1)(B) authorizes a District Judge to refer to a magistrate judge for hearing and submission of proposed findings of fact and recommendations for disposition “of applications for posttrial relief made by individuals convicted of criminal offenses. . . .” 28 U.S.C. § 636(b)(1)(C) provides that a party “may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Fed.R.Civ.P. 72(b) embodies the same procedure as the statute as far as prisoner petitions are concerned.

         No evidentiary hearing was held in this matter. All proposed findings of fact in the Report are based on review of the State Court Record. Thus there are no demeanor-dependent credibility findings in the Report which would be subject to clearly erroneous review. Compare United States v. Cofield, 272 F.3d 1303 (11th Cir. 2001).

         Failure to make objections to a specific point waives appeal on that point. Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999); Thomas v. Arn, 474 U.S. 140 (1985). A general objection has the same effect as a failure to file altogether. Howard v. Sec. of HHS, 932 F.2d 505 (6th Cir. 1991). The reason is that failure to focus the district court's attention on any specific issues makes the initial reference useless and undermines the purpose of the Magistrate's Act. Howard, 932 F.2d at 509.

         Analysis

         Petitioner has filed seventeen separate objections, often with several subparts. The Objections will be dealt with seriatim. Because of the length of the Report and Objections, the state court statement of facts and the procedural history, already recited in the Report, are not repeated here.

         Objection 1: The Report and Recommendations grossly mischaracterized Widmer's Ground 1 resulting in a flawed and off-point analysis of the state expert's body part impression testimony and its impact on Widmer's trial.

         As pleaded, Widmer's First Ground for Relief reads:

The state courts unreasonably determined the facts and ruled contrary to or unreasonably applied clearly established Supreme Court precedent concerning Widmer's constitutional rights to due process, a fair trial, and confrontation by permitting the admission of impermissible expert opinion testimony that: (1) reached beyond the expert's purported expertise; (2) lacked scientific foundation; and (3) was based on a methodology that has been proven unreliable.

(Petition, ECF No. 1-1, PageID 56.)

         In his first objection, Widmer characterizes his First Ground for Relief as being that the body part impression testimony given by William Hillard at trial

reached beyond the province of all legitimate evidence. No one - not Bill Hillard, not the modern-day Einstein of criminology, no human being - could reliably identify smudges [on a bathtub] as the impressions from specific body parts or assign gender (if the smudge is even from a human) or direction to those smudges.

(Objections, ECF No. 37, PageID 10660.)

         On direct appeal to the Ohio Twelfth District Court of Appeals, Widmer's Second Assignment of Error read:

WIDMER WAS DENIED A FUNDAMENTALLY FAIR TRIAL IN VIOLATION OF HIS DUE PROCESS RIGHTS THROUGH THE ADMISSION OF IMPERMISSIBLE EXPERT OPINION TESTIMONY THAT: (1) REACHED BEYOND THE EXPERT'S PURPORTED EXPERTISE; (2) LACKED SCIENTIFIC FOUNDATION; AND (3) WAS BASED ON A METHODOLOGY THAT HAS BEEN PROVEN UNRELIABLE. ACCORDINGLY, WIDMER WAS ALSO DENIED THE RIGHT TO ADEQUATELY CONFRONT THIS EVIDENCE IN VIOLATION OF THIS SIXTH AMENDMENT RIGHTS.

         The Twelfth District decided this Assignment as follows:

[*P62] In his second assignment of error, Widmer argues that the trial court erred by allowing Hillard to testify about "body part impressions" found on the bathtub. Widmer challenges the admission of Hillard's testimony regarding: (1) the adult male forearm on the front interior wall of the bathtub; (2) the forearm impression "overlaying" circular marks made on the bathtub by bath product bottles; and (3) the fingertip marks that were in a "downward position" and were made by a person of small stature, like a child, a female, or small male. Widmer contends that the admission of such testimony was in violation of Evid.R. 702 and his Sixth Amendment rights. Specifically, Widmer argues that "Hillard's testimony runs afoul of due process and the Confrontation Clause" as Hillard was permitted to testify beyond his area of expertise and into a realm of body part impressions for which he has "no training or consistent, methodologically based, non-anecdotal experience" and his testimony was "not based on [a] scientifically valid methodology."
[*P63] Prior to the commencement of the third trial, Widmer had filed a motion in limine seeking to limit Hillard's testimony by prohibiting him from testifying about the size and sex of the individuals who made the fingertip marks or the forearm impression. The motion in limine was not ruled on prior to trial and is therefore presumed to have been denied. Choate v. Tranet, Inc., 12th Dist. No. CA2003-11-112, 2004 Ohio 3537, ¶ 60. At trial, Hillard was offered as an expert in the areas of crime scene analysis, fingerprint analysis, and crime scene photography. Widmer did not seek to voir dire Hillard as to his qualifications as an expert in these fields. Rather, Hillard was admitted as an expert in the aforementioned areas without objection. Widmer did object, however, to Hillard's testimony that an adult male forearm impression was found on the bathtub, that this impression overlaid circular marks made on the bathtub by bath product bottles, and that the fingertip marks found in the bathtub were in a "downward position" and were made by a person of small stature, like a child, a female, or small male. Widmer's objections were overruled, and such testimony was deemed admissible by the trial court.
[*P64] We begin our analysis by determining whether Hillard's testimony was properly admitted pursuant to Evid.R. 702.
A. Evidence Rule 702
[*P65] "The determination of the admissibility of expert testimony is within the discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion." State v. Blankenburg, 197 Ohio App.3d 201, 2012 Ohio 1289, ¶ 107, 966 N.E.2d 958 (12th Dist.). An abuse of discretion implies more than an error of law or judgment; it suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. State v. Barnes, 12th Dist. No. CA2010-06-009, 2011 Ohio 5226, ¶ 23. A trial court's admission of expert testimony is not an abuse of discretion where the testimony is relevant and the criteria of Evid.R. 702 are met. Terry v. Caputo, 115 Ohio St.3d 351, 2007 Ohio 5023, ¶ 23, 875 N.E.2d 72.
[*P66] Evid.R. 702 provides that a witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. * * *
[*P67] With respect to Evid.R. 702, the trial court, as part of its gatekeeping function, must assess both the relevance of the expert's testimony and the reliability of the testimony prior to admitting such testimony into evidence. Caputo at ¶ 24. This gatekeeping obligation applies "not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). To determine the reliability of testimony, the trial court may consider one or more of the specific factors mentioned in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Kumho Tire Co., 526 U.S. at 141. The specific factors mentioned in Daubert include: (1) whether the theory or scientific technique has been tested; (2) whether the theory or technique has been subject to peer review or publication; (3) whether the method has a known potential rate or error; and (4) whether the theory has gained general acceptance in the scientific community. Caputo, 115 Ohio St.3d 351, 2007 Ohio 5023 at ¶ 25, 875 N.E.2d 72, citing Daubert at 593-594. While consideration of the Daubert factors is permitted, such consideration is not required to determine the reliability of the testimony. Kumho Tire Co., at 141. Rather, the test of reliability is "flexible" and Dauberts list of specific factors neither necessarily nor exclusively apply to all experts or in every case. Id. The trial court is given "broad latitude" in determining reliability. Id.
[*P68] Hillard testified that he had been employed by the city of Cincinnati as a senior criminalist for five years. Prior to holding that position, he served as a police officer for 28 years. Hillard testified that he had been examining crime scenes and processing evidence for over 30 years. Some of the specific activities that he does as a criminalist include securing the scene, collecting evidence, and processing the evidence for fingerprints or any other forensic evidence. Hillard explained that most of his criminalist education and training has been through on-the-job training and from the FBI Academy in Florida. He has been trained specifically in crime scene photography, evidence collection, interpreting patterns of evidence, and the processing and analyzing of fingerprints. Hillard testified that he has responded to "thousands" of crime scenes over the years, many of which were homicide scenes. He further explained that for 10 to 15 percent of these crime scenes, he has analyzed impressions of body parts other than "fingers, hands and feet." Based on the foregoing, it is clear that Hillard's testimony related to matters beyond the knowledge of a lay person and that he was qualified as an expert in the areas of crime scene analysis, fingerprint analysis, and crime scene photography by his knowledge, education, and experience. See Evid.R. 702(A) and (B).
[*P69] The issue in this case, however, is whether Hillard went beyond his expertise when testifying about the fingertip marks and forearm impression found on the bathtub. Essentially Widmer attacks the reliability of Hillard's testimony. He contends that Hillard's testimony lacked a scientific foundation as it was based on the Bertillon system of using body measurements to identify individuals, which Hillard himself admitted is unreliable. The state contends that Hillard's testimony was permissible as it was not based on the Bertillon system but rather on the methodology underlying latent fingerprint analysis. The state further argues that Hillard was qualified to testify about the forearm impression and fingertip marks based on Hillard's "many years of experience" analyzing "other" body part impressions as he had done so in 10 to 15 percent of the thousands of crime scenes he had investigated.
[*P70] The Bertillon system is defined as "a system for the identification of persons by a physical description based on anthropometric measurements, standardized photographs, notation and classification of markings, color, bodily anomalies, thumb line impressions, and other data that has been largely superseded by fingerprinting." Webster's Third New International Dictionary 207 (1993). [FN 7 Anthropometry is defined as “the science of measuring the human body and its parts and functional capacities [especially] as an aid to the study of human evolution and variation.” Webster's Third New International Dictionary 93 (1993).] At trial, Hillard testified that he was familiar with the Bertillon system of identification that was based on body measurements and that such method had been proven unreliable. Contrary to Widmer's argument, however, Hillard never testified that he relied on the Bertillon system in finding or identifying the forearm impression or fingertip marks on the bathtub. Rather, Hillard testified that a body part impression is made the same way a latent print is made, by touching an object and leaving a residue behind, and the impression can be discovered using a chemical or dusting powder. Specifically, Hillard testified as to this process as follows:
[HILLARD]: Usually when we go process a crime scene, exactly what's documented, taking pictures and analyzing what we're going to do at the crime scene, when we dust an object we use dusting powder to try to bring out a fingerprint or any other material that might be on that surface that we're processing.
With fingerprint powder it helps you see a latent print which normally can't be seen with the naked eye, latent means invisible and you use a chemical or dusting powder to bring out that fingerprint.
[STATE]: And Mr. Hillard you used the term latent print. Can you explain what latent print is in your line of work?
[HILLARD]: Latent print is usually a print that is invisible, is usually a print that is not visible to the naked eye, with the naked eye. You have to use some type of enhancing procedure.
[STATE]: And how is such a fingerprint formed, how is it made?
[HILLARD]: Yes. If you look at your fingers you have the friction skin ridges, and on these ridges you have pores and they sweat and whenever you touch something you leave a residue, a water residue and you touch something that leaves a latent print there.
[STATE]: Now for example you were talking about the fingerprints?
[HILLARD]: Yes.
[STATE]: Is that true of other parts of the body as well?
[HILLARD]: Yes. You have the same process with your feet also. You have the friction of your skin ridges on your feet.
[STATE]: And beyond the feet and the fingertips does the body in general produce those kinds of oils or things that would form impressions?
[HILLARD]: Yes. If you took the back of your hand and did the same thing you'd still have that impression. You'd dust it or anything you would have that impression as you dust it with a powder. And nonporous items gets treated with a chemical and you can develop that impression also.
[STATE]: And Mr. Hillard in your experience and you[r] years as a Criminalist, based on your training and experience, do you have any experience in interpreting impressions that are left, that are formed that way other than fingerprints and the feet?
[HILLARD]: Yes.
[STATE]: Have you responded to crime scenes where you had to interpret impressions that were formed by other parts of the body besides the feet and hands?
[HILLARD]: Yes sir.
* * *
[STATE]: Have you received any specific training in how to interpret impressions other than fingerprints?
[HILLARD]: Again, this comes along with experience.
[*P71] Hillard did not claim that there was a recognized scientific process establishing forearm comparison as a science. Rather than trying to identify Widmer or any other individual as the source of the forearm impression through comparison, Hillard limited his testimony to the identification of the impression as one made by an adult male. Hillard did not speculate as to who specifically left the forearm impression or when the impression had been left on the bathtub. Instead, Hillard testified only as to how such an impression was made, the identification of the impression by body part, and the general characteristics of the person who left the impression (an adult male). Given his experience in analyzing crime scenes and body part impressions, for which an understanding of the science behind the transfer and discovery of latent prints or impressions is required, Hillard was more than qualified to testify as to the existence of the forearm impression. Therefore, the trial court did not abuse its discretion in admitting such testimony into evidence.
[*P72] Furthermore, we do not find that the court abused its discretion in allowing into evidence Hillard's testimony that the forearm impression overlaid circular marks left on the bathtub by bath products. Hillard testified he has more than 30 years of experience observing crime scenes and interpreting patterns of evidence. Hillard was more than qualified to testify as to his observation that the forearm impression came second in time to the circular marks. If Widmer wanted to cast doubt on the accuracy of Hillard's observations, he had the opportunity to do so during cross-examination.
[*P73] Finally, we do not find the trial court abused its discretion in admitting Hillard's testimony about the fingertip marks found on the bathtub. Hillard testified that latent prints were discovered after dusting powder was used on the bathtub, but the prints lacked minutiae details and therefore could not be used to identify the source of the prints. Although the print lacked identifying characteristics or minutiae details, Hillard was able to determine that the print was left after someone pulled his or her fingers downward using just the fingertips.
[HILLARD]: These impressions here are the ones I was looking at. It tells you they were fingerprints but I couldn't make a positive identification as to who they belonged to. I could just tell they were in the downward position.
* * *
These are the tips of the fingerprints right here and on the tips usually when you're pulling down on something you very seldom leave minutiae points there and those impressions [sic].
From his testimony, it is clear that Hillard did not rely on the Bertillon system to identify the source of the fingertip marks. Rather, Hillard utilized his training and experience in analyzing fingertip markings to determine that the markings were made by a "person of small stature, like a child, [a] female, or a small male." Although Hillard's training and experience allowed him to draw such an observation from the size and the shape of the markings, Hillard was explicit in stating that he could not identify the specific individual who made the markings, that person's gender, or when the markings had been left on the bathtub. Hillard's testimony was therefore limited to those findings and observations he was qualified to make given his 30 years of experience in analyzing crime scenes, fingerprints, and body part impressions.
[*P74] For the aforementioned reasons, we do not find that the trial court abused its discretion in admitting Hillard's testimony about the forearm impression and fingertip markings. Hillard's testimony was relevant, reliable, and permissible pursuant to Evid.R. 702. Any questions or doubts Widmer had regarding the accuracy of Hillard's observations and testimony about the forearm impression and fingertip markings were capable of being addressed during cross-examination. Furthermore, we find that such questions about the accuracy or reliability of Hillard's testimony in this case go to the weight of the evidence rather than its admissibility.
B. Due Process and the Confrontation Clause
[*P75] We further find that the admission of Hillard's testimony did not violate Widmer's due process rights or his constitutional rights under the Sixth Amendment.
[*P76] "The Sixth Amendment to the United States Constitution made applicable to the States via the Fourteenth Amendments] [due process clause] * * * provides that '[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.'" Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009). The Amendment guarantees a defendant the right to confront those who "bear testimony" against him. Id., citing Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). "A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Id., citing Crawford at 54.
[*P77] In the present case, Hillard was called as an expert witness at trial. His testimony about the forearm impression and fingertip markings he found on the bathtub were subject to cross-examination by Widmer. Widmer was given the express opportunity to challenge and cast doubt on Hillard's conclusions about the forearm impression and the fingertip marks. Accordingly, we do not find that Hillard's testimony was in violation of Widmer's Sixth Amendment right to confront those who bear witness against him.
[*P78] Widmer's second assignment of error is hereby overruled.

State v. Widmer, 2012-Ohio-4342, 2012 Ohio App. LEXIS 3801 (12th Dist. Sep. 24, 2012)(“Widmer I”).

         When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

         Widmer seems to acknowledge this point of law in the way he pleads his First Ground for Relief: he asserts the state court's decision[3] is contrary to or an unreasonable application of Supreme Court precedent. However, Objection 1 cites only the following Supreme Court precedent for the propositions noted:

         General Elec. Co. v. Joiner, 522 U.S. 136 (1997), cited at PageID 10663 for the proposition that “personal observations are insufficient to establish reliability.”

         Chambers v. Mississippi, 410 U.S. 284 (1973), cited at PageID 10671 for the proposition that “trial errors must not ‘defeat the ends of justice' or otherwise deprive a defendant of his right to a fair trial.”

         The gravamen of the First Objection is that Hillard's testimony had no scientific basis and its admission therefore deprived Widmer of due process, a fair trial, and his right to confront his accusers. There is no United States Supreme Court precedent holding that admission of testimony without a scientific basis deprives a state court defendant of any one of those rights. Joiner is not a constitutional case at all. Applying the standard first enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held in Joiner that a federal district court's admission or exclusion of proposed expert testimony should be reviewed for abuse of discretion.

         Chambers held that it was a denial of due process for Mississippi to enforce the common law vouching rule as to a person Chambers called to the stand who admitted the murder for which Chambers was on trial, then repudiated his confession. Justice Powell noted that the vouching rule had been severely criticized by leading evidence experts McCormick, Morgan, and Wigmore and rejected altogether in the then-pending Federal Rules of Evidence. 410 U.S. at 297, n. 8 and 9. While Chambers is constitutional precedent, it does not hold that evidence without a scientific basis is constitutionally inadamissible.

         Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

         The Supreme Court itself has recently said

AEDPA's standard is intentionally “‘ “difficult to meet.” '” White v. Woodall, 572 U.S.___, ___, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698, 704 (2014) (quoting Metrish v. Lancaster, 569 U.S.___, ___, 133 S.Ct. 1781, 1786, 185 L.Ed.2d 988, 996 (2013)). We have explained that “‘clearly established Federal law' for purposes of §2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions.” White, 572 U.S., at___, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698, 704 (some internal quotation marks omitted). “And an ‘unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Id., at___, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698, 704 (same). To satisfy this high bar, a habeas petitioner is required to “show that the state court's ruling on the claim being presented in federal court was so ...

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