Assigned on Briefs October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 12-04580 Chris Craft, Judge
Stephen Bush and Phyllis Aluko (on appeal); William Yonkowski and Samuel Christian (at trial), Memphis, Tennessee, for the appellant, Anthony Draine a.k.a. Anthony Draine-Love.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General, and Mariane Bell and Chris Lareau, Assistant District Attorneys General, for the appellee. State of Tennessee.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed. NORMA McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and timothy l. Easter, jj., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
The appellant's charge stemmed from a break-in that occurred at a residence in Memphis. At trial, the victim, Valencia Yvette Woodin testified that on Saturday, April 7, 2012, she was driving home when a neighbor called to inform her that someone had broken into her apartment. The victim arrived home between 2:00 and 3:00 p.m. When she entered the residence, she saw that a living room window had been broken. She walked outside to examine the window and noticed that the screen had been removed. She saw the screen in a nearby ditch.
The victim walked through her apartment and noticed that several items were missing: three children's Easter baskets, candy, food, a television, a DVD player, a "suitcase rolling [school] bag, " Social Security cards, and other forms of identification. The victim estimated that the total value of the items taken was around $500 or $600. The victim said that she did not give anyone permission to enter her apartment and remove items that day. The victim called the police, who came to the apartment, searched, and dusted for fingerprints.
The victim denied that she had ever invited the appellant to her apartment. She said that she had a conversation with the appellant at a store in the neighborhood and that she had invited him to the church where she was a minister. The appellant gave her his telephone number, but she was not aware that he knew where she lived. The victim's neighbor told her that the appellant had been at her neighbor's apartment "earlier."
On cross-examination, the victim said that she and her children had left the apartment that morning at 10:30 a.m. and that they returned between 2:00 and 3:00 p.m. She had not given anyone else access to her apartment. The victim said that the intruder had attempted to take a picture, but it was too big to fit through the window. The victim said that the intruder would have had to walk through her entire apartment to obtain all of the items.
When the victim examined her apartment, the window was the only damage to an "entry point" that she noticed. The victim explained that just outside the window was a "walk path" that was for use by the tenants. The window had been broken so that someone could reach in and unlock it. The victim said that someone could enter the apartment easily through the window.
The victim said that she watched the police dust the window for fingerprints; however, she did not notice the officers looking for fingerprints anywhere else. The victim acknowledged that she had met the appellant at a Cricket store where he worked and that he had tried to pursue a relationship with her "as far as trying to invite himself." However, the victim did not encourage him, stating that she "never kn[e]w him long enough to even be in a relationship." The victim said that the appellant gave her his telephone number and that he called her on his brother's telephone.
Memphis Police Officer Mujahed Abdellatif testified that on April 7, 2012, he went to the victim's apartment to dust for fingerprints. He dusted inside and outside the apartment and found a "possible print" on the window the intruder used to access the apartment.
On cross-examination, Officer Abdellatif said that the bottom half of the window was broken and that he found the fingerprint outside on the bottom of the window. He was unable to find any other viable prints. Officer Abdellatif said that the area surrounding the window was not an area to which the public had access. He explained, "[I]t's a bunch of trees back there. So I think if you didn't live there you didn't have no reason being back there." He acknowledged that he did not know how long the fingerprint had been on the window.
Officer Larry Preston, a latent print examiner with the Memphis Police Department, was qualified to testify as an expert in latent fingerprint analysis. Officer Preston testified that he entered the fingerprint lifted from the scene into a database and determined that the fingerprint matched the appellant. When asked how many points of comparison were necessary to make a positive identification, Officer Preston responded, "There's really no set number that you really need. It depends, the quality of the print, the type of print it is. But generally you would want, you know, a minimum of seven or eight good points." In the instant case, he identified more than fifteen matching points of comparison.
On cross-examination, Officer Preston said that any given fingerprint could have at least fifty points of comparison but that a match could be made by comparing as few as seven or eight points. In the instant case, Officer Preston found more than fifteen matching points of comparison between the fingerprint found at the scene and the appellant's fingerprint. Nevertheless, he examined the entire fingerprint. He stated, "When I feel like the print is identical I stop usually but I may look at the whole print. But there's no point in looking at a . . . a hundred or fifty points. . . . [I]t's just a ...