In this New Hanover County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss for lack of evidence he was the perpetrator; (2) overruling his objection that the trial court did not make necessary findings on reliability for expert testimony; (3) denying his post-conviction motion for appropriate relief (MAR) based upon newly-discovered evidence; (4) admitting evidence of his prior removal of an electronic monitoring device; and (5) overruling his objections to the State’s closing argument. The Court of Appeals found no error. 

In January of 2016, officers responded to a call about a fourteen-year-old being shot. While accompanying the ambulance to the hospital, they received a report of additional shots fired, and diverted to the scene, where the officers found defendant running from the area. After arresting defendant, officers found he was carrying a 9mm handgun. The State Crime Laboratory later matched the bullet that killed the victim to this handgun. Defendant was subsequently convicted and appealed. 

Taking up defendant’s argument (1), the Court of Appeals explained that because the evidence that defendant was the perpetrator was circumstantial, proof of motive, opportunity, and means were necessary to support the inference that defendant committed the crime. Here, the State admitted evidence that the shooting was in retaliation for a previous shooting two weeks prior, and that the shell casing found at the scene, the bullet in the victim, and defendant’s statements to police all tied him to the murder. As a result, “[a] reasonable juror could find Defendant had the opportunity and means to commit the murder.” Slip Op. at 8. 

Turning to (2), the court noted that trial courts enjoy wide latitude when determining admissibility of expert testimony. Here, defendant argued that the State’s firearm expert did not utilize “reliable principles and methods” in violation of Rule of Evidence 702, as the State’s expert utilized a micro-analysis test instead of a lands and grooves test on the projectile, a method disputed by the defense’s expert. Id. at 10. The court found no abuse of discretion as “[t]he superior court made supported findings to resolve purported contradictions between the competing experts.”

Reviewing (3), the court explained defendant’s newly discovered evidence concerned the history of the State’s expert receiving a complaint from a superior court judge as well as a mistake during a firearm examination in a previous case. The court noted that the State was not in possession of the expert’s personnel records and was not aware of the purported mistake, and under Brady v. Maryland, 373 U.S. 83 (1963), the State had not suppressed material evidence. The court further noted that defendant was not entitled to a new trial as the newly discovered evidence “merely questions the expert witness’ past, not the State’s evidence at this trial.” Id. at 14. 

Arriving at (4), the court explained that the trial court’s decision to admit evidence of defendant removing his electronic monitoring device fifteen days before the shooting under Rule of Evidence 404(b) was not error. Defendant “disabled his electronic monitoring device approximately an hour after another murder was committed two weeks earlier in the same area of Wilmington . . . [t]he evidence and timing of these incidents and Defendant’s actions are part of the chain of events that contextualize the crime.” Id. at 16. 

Finally, the court dispensed with (5), explaining that the prosecutor’s closing argument did not shift the burden onto defendant, as the statements merely referenced defendant’s failure to refute the evidence admitted at trial. Likewise, the prosecutor’s reference to a link between the murder and retaliation for a previous murder was not an improper reference to “gangs” and was supported by evidence and testimony admitted at the trial. 

The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location. 

(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.

(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.

The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.

The trial court did not abuse its discretion by reversing its ruling on the defendant’s motion in limine and allowing the State’s expert witnesses’ firearm identification testimony. The trial court initially had ruled that it would limit any testimony by the experts to statements that the bullets were “consistent,” rather than that they had been fired from the same weapon. However, after defense counsel stated in his opening statement that defense experts would testify as to their “opinion that you cannot make a match, that there [are] simply not enough points of comparison on the two bullets,” the trial court reversed its earlier ruling and permitted the State’s experts to testify to their opinions that both bullets were fired from the same gun. (1) Citing case law, the court held that forensic toolmark identification is sufficiently reliable. (2) The court rejected the defendant’s argument that the State’s experts were not qualified to testify based on a lack of evidence verifying one of the expert’s training and a shared lack of credentials. The State presented evidence of both experts’ qualifications and experience. Although the State did not present verification of one of the expert’s training and neither expert was a member of a professional organization, both experts explained how firearm toolmark identification works and how they conducted their investigations such that they were better qualified than the jury to form an opinion in the instant case.