Criminal Practice – Burglary – Fingerprint & Witness ID – Constitutional – Effective Assistance

State v. Hoff (Lawyers Weekly No. 12-07-1170, 13 pp.) (Donna S. Stroud, J.) Appealed from Person County Superior Court (Paul C. Ridgeway, J.) N.C. App.

Holding: Even though the victim’s testimony as to his identification of defendant as the burglar was convoluted and self-contradictory, he had a clear opportunity to see the intruder, and his testimony that defendant was the man he saw in his house is not inherently incredible. Therefore, the victim’s in-court identification of defendant as the intruder constitutes some evidence other than defendant’s fingerprints (found on a window of the victim’s house) identifying him as the perpetrator. Taken in the light most favorable to the state, the eyewitness identification, the victim’s testimony that defendant had never been permitted access to the home, and the fingerprint evidence together constitute substantial evidence identifying defendant as the perpetrator.

We find no error in defendant’s conviction of first-degree burglary.

Defendant argues that he was provided ineffective assistance of counsel because defense counsel did not cross-examine the state’s fingerprint expert based on a report by the National Academy of Science questioning the reliability of the “ACE-V” methodology. However, given our Supreme Court’s longstanding acceptance of the reliability of fingerprint evidence, defendant would not have been entitled to exclude the expert testimony, and defendant cannot show prejudice from the failure of trial counsel to object to its admission. Further, decisions on how to conduct cross-examination are the exclusive province of the lawyer after consultation with his client. We cannot say that failure to cross-examine an expert using one particular report constitutes ineffective assistance of counsel.