United States District Court, S.D. Ohio, Western Division
RYAN K. WIDMER, Petitioner,
WARDEN, Correctional Reception Center, Respondent.
Timothy S. Black District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
habeas corpus case is before the Court on Petitioner's
Objections (ECF No. 37) to the Magistrate Judge's Report
and Recommendations (“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).
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.
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).
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.
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.
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.
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
(Petition, ECF No. 1-1, PageID 56.)
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.)
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.
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
[*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
[*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
[STATE]: And how is such a fingerprint formed, how is it
[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
[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
[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
[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
[*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
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
[*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
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
seems to acknowledge this point of law in the way he pleads
his First Ground for Relief: he asserts the state court's
decision is contrary to or an unreasonable
application of Supreme Court precedent. However, Objection 1
cites only the following Supreme Court precedent for the
Elec. Co. v. Joiner, 522 U.S. 136 (1997), cited at
PageID 10663 for the proposition that “personal
observations are insufficient to establish
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.”
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
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
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).
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 ...