Evidence_glass comparison_expert testimony_admissible
The trial court did not abuse its discretion in a breaking and entering prosecution by
admitting expert testimony comparing glass fragments from the scene with fragments found in
the sole of defendant's boot. The trial court did not have precedent to determine the reliability of
the testing procedure, but there was extensive voir dire testimony supporting reliability, the
witness had an extensive background in trace evidence and experience in glass analysis, and
defendant made no argument about the relevancy of the evidence.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret P. Eagles, for the State.
J. Clark Fischer for defendant appellant.
McCULLOUGH, Judge.
Defendant was tried by a jury on the charges of felonious
breaking and entering, resisting or obstructing a public officer,
and having the status of an habitual felon. The State's evidence
tended to show the following: On or about 12 December 2001,
defendant entered a Circle K convenience mart and stole two bottles
of alcohol by placing them in his jacket. When the Circle K
employee asked him to return the bottles, defendant refused and
gave one to a white male that was with him. When the two men left
the Circle K, they headed in the direction of Morningside
Alternative School (“Morningside”). On the night in question, Paul
Agee (“Mr. Agee”) stepped outside to have a cigarette afterfinishing a band rehearsal. After hearing a loud crash coming from
Morningside, he observed two men crossing Independence Boulevard
(“Independence”) coming from the direction of the noise at the
school. After losing sight of the two men, Mr. Agee observed the
same two men running back across Independence, one wearing a white
shirt and the other wearing a dark shirt or jacket. He observed
one of the men enter Morningside. The police arrived less than a
minute later.
Officer W.C. Hastings (“Officer Hastings”) of the Charlotte
Police Department responded to a silent alarm at Morningside. When
he arrived, he observed a black male wearing dark clothing and a
white male in a t-shirt near a broken door or window. The two men
fled from the door and began running around the school building.
Officer Hastings yelled at the two men to stop, and when they did
not, he chased them into a small gully which led into a creek. The
creek led into a tunnel that ran underneath Independence.
Officers C.A. Scaccia (“Officer Scaccia”) and K.V. Swaney
(“Officer Swaney”) of the same department also responded to the
alarm, and were advised by Officer Hastings that two male suspects
were fleeing from Morningside in the direction of the creek and
Independence. Officers Scaccia and Swaney set up a perimeter in
order to apprehend the fleeing suspects whose description they had
been given by Officer Hastings. Officer Swaney positioned himself
in the adjacent apartment complex; Officer Scaccia positioned
himself on the side of Independence opposite Morningside and was
standing over the drainage tunnel. Defendant exited the tunnel in
which the fleeing suspects had last been seen entering. Defendant,a black male wearing dark clothing, matched the description given
by Officer Hastings.
Defendant did not comply with Officer Scaccia's instruction to
remove his hands from his pockets, and was detained at gunpoint
until the other officers arrived. When taken into custody and put
in the rear of Officer Swaney's squad car, defendant became
verbally and physically aggressive. After attempting to kick out
the window of the squad car, he had to be restrained.
Investigator Timothy A. French (“Investigator French”), a
criminalist with the Charlotte Mecklenburg crime lab, testified at
the trial concerning analysis of glass fragments found at the scene
of the crime, and glass fragments found in the sole of defendant's
boot. He compared samples taken from both the interior and
exterior panes at the school with those found in defendant's boot
sole, by way of visual, density, and refractive comparisons.
Defendant was found guilty of felonious breaking or entering,
resisting arrest or obstructing a public officer, and as having the
status of an habitual felon. He was acquitted of the charge of
felonious larceny.
Defendant's single issue raised in this appeal alleges the
trial court erred in allowing the State to present, as an expert,
the testimony of Investigator French concerning the glass fragments
found at the scene of the crime and in defendant's boot.
Investigator French testified that the glass found at the point of
broken entry at Morningside was “consistent” with that found in
defendant's boot. For the reasons set forth below, we find this
expert testimony was properly admitted by the court. Defendant cites this Court's opinion in Howerton v. Arai
Helmet, Ltd., 158 N.C. App. 316, 581 S.E.2d 816, disc. review
allowed, 357 N.C. 459, 585 S.E.2d 757 (2003), for his contention
that North Carolina has adopted the federal standard for a trial
court's discretionary ruling on the admissibility of expert
testimony under N.C. Gen. Stat. § 8C-1, Rule 702 (2003) of the
North Carolina Rules of Evidence (“Rule 702”). In setting the
federal standard, the Supreme Court articulated a five-step inquiry
a district court must consider to measure the reliability of
scientific expert testimony. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 594-95, 125 L. Ed. 2d 469,
483-84 (1993). However, in its review of Howerton, our Supreme
Court overruled this Court's blanket adoption of Daubert, holding
that admissibility under Rule 702 has proven to be more liberal in
North Carolina than that of the federal standard. Howerton v. Arai
Helmet, Ltd., 358 N.C. 440, 463, 597 S.E.2d 674, 689 (2004).
Instead, our Supreme Court held that admissibility of expert
testimony under North Carolina's Rule 702 is governed by the
factors set out in State v. Goode, 341 N.C. 513, 461 S.E.2d 631
(1995). Howerton, 358 N.C. at 458, 461 S.E.2d at 686-87.
Under Rule 702(a), in order for expert testimony to be
admitted, the expert must be qualified by “knowledge, skill,
experience, training, or education[.]”
The Supreme Court in Howerton reaffirmed the principle that
“trial courts are afforded 'wide latitude of discretion when making
a determination about the admissibility of expert testimony.'” Id.
at 458, 597 S.E.2d at 687 (quoting State v. Bullard, 312 N.C. 129,140, 322 S.E.2d 370, 376 (1984)). Thus, “a trial court's ruling on
. . . the admissibility of an expert's opinion will not be reversed
on appeal absent a showing of abuse of discretion.” Id. An abuse
of discretion occurs where a “'ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result of
a reasoned decision.'” State v. Miller, 142 N.C. App. 435, 444,
543 S.E.2d 201, 207 (2001) (citations omitted). The Supreme Court
in Howerton held that the standard framing the discretion of the
trial court's admission of expert testimony is composed of the
following three-step inquiry as established in Goode:
(1) Is the expert's proffered method of proof
sufficiently reliable as an area for expert
testimony? (2) Is the witness testifying at
trial qualified as an expert in that area of
testimony? (3) Is the expert's testimony
relevant?
Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (citations omitted);
see Goode, 341 N.C. at 527-29, 461 S.E.2d at 640-41.
With respect to the first step of Goode, “[i]nitially, the
trial court should look to precedent for guidance in determining
whether the theoretical or technical methodology underlying an
expert's opinion is reliable.” Howerton, 358 N.C. at 459, 597
S.E.2d at 686. Howerton goes on to set out that if “the trial court
is without precedential guidance or faced with novel scientific
theories, unestablished techniques, or compelling new perspectives
on otherwise settled theories or techniques,” the trial court must
look to other “'indices of reliability' to determine whether the
expert's proffered scientific or technical method of proof is
sufficiently reliable[.]” Id. at 460, 597 S.E.2d at 687 (quoting
State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 853 (1990)).Such indices may include “the expert's use of established
techniques, the expert's professional background in the field, the
use of visual aids before the jury so that the jury is not asked
'to sacrifice its independence by accepting [the] scientific
hypotheses on faith,' and independent research conducted by the
expert.” Id. (citations omitted).
In the case at bar, the trial court conducted voir dire
examination to determine whether Investigator French was an expert
and whether the substance of his testimony would be admissible. The
trial court did not have any precedent before it to determine the
reliability of the testing procedure conducted by Investigator
French. Thus, the court heard evidence on indicia of the evidence's
reliability. Investigator French's testimony revealed in detail
his testing methods as performed under controlled circumstances.
The standard for the tests was the broken glass samples taken from
Morningside, and the unknown was the glass removed from defendant's
boot. He first conducted a visual test comparing the glass samples
for the following: any color coating or tinted sheet on the glass,
if the glass was colored when it was made, the thickness of the
glass, and if there was any texture to it. An ultraviolet test was
taken for any fluoresces. He then tested the density of the glass
in a test tube by varying the density of a solution in which the
samples were placed. He then observed whether the standard and the
unknown stayed suspended at the same level as each other in the
varying densities of solution. And lastly, under a microscope, he
tested and graphed the refractive indexes of the standard and the
unknown by heating the samples separately at various temperaturesin an oil for which the refractive indexes at varying temperatures
were known. Using the known index of the oil, Investigator French
was able to compare the indexes of the standard and the unknown at
different heats. Finding the standard and the unknown to be
consistent, he stated that “[he] [could] not rule out that the
particle did not come from that source.”
We believe the extensive voir dire testimony of Investigator
French was sufficient to support the trial court's discretionary
determination to admit the evidence of the consistency of the glass
samples pursuant to the reliability of the tests. This is true
especially in light of Investigator French's professional
qualifications, a factor supporting both the indicia of reliability
of his tests and qualifying him as an expert for purposes of his
testimony. See below. Finally, we find support in our determination
in a previous decision of this Court, and decisions of other
jurisdictions. In State v. Bell, 22 N.C. App. 348, 206 S.E.2d 356
(1974), the defendant contended that there was no evidence from
which the jury could infer that defendant wrongfully broke or
entered the building in question. Id. at 349, 206 S.E.2d at 357.
We held the evidence was sufficient to survive a nonsuit of
defendant's charges where, among other evidence, an expert
“analysis of glass particles removed from defendant's clothing
revealed they had the same refractive and density qualities as the
glass found inside Little Hardware.” Id. at 349, 206 S.E.2d at 357.
Other jurisdictions have allowed similar testimony. See also
Wheeler v. State, 255 Ind. 395, 400 (1970) (where the court allowed
expert testimony to establish a strong likelihood that the sliverof glass found in defendant's shoe sole came from the broken
eyeglasses belonging to the victim); State v. Wright, 619 S.W.2d
822, 823 (Mo. Ct. App. 1981) (where a glass shard found in
defendant's trousers matched the refractive indexes and density of
a piece of broken glass from the broken door, and could be used to
show there was a reasonable possibility that the glass shard came
from the same source as the glass from the scene).
In applying “the second step of analysis under Goode, the
trial court must determine whether the witness is qualified as an
expert in the subject area about which that individual intends to
testify.” Howerton, 358 N.C. at 461, 597 S.E.2d at 688. Relied on
by the Court in Howerton, our Supreme Court set out the following
standard for this determination in State v. Goodwin, 320 N.C. 157,
357 S.E.2d 639 (1987):
Whether a witness has the requisite skill
to qualify as an expert in a given area is
chiefly a question of fact, the determination
of which is ordinarily within the exclusive
province of the trial court. Under N.C.G.S. §
8C-1, Rule 702 a witness may be qualified as
an expert if the trial court finds that
through “knowledge, skill, experience,
training, or education” the witness has
acquired such skill that he or she is better
qualified than the jury to form an opinion on
the particular subject.
Id. at 150-51, 357 S.E.2d at 641.
At the time of trial, Investigator French had an extensive
background in trace evidence. He had been employed by the
Charlotte Mecklenburg Police Department as a criminalist for
approximately five years, and prior to that by the Syracuse, New
York Police Department crime lab as a forensic chemist for nine
years. His duties as a criminalist included testing and analyzingtrace evidence such as hair, fiber, paint, glass, gunshot residue,
tape, cordage, and match filaments. He received a bachelor's
degree in chemistry and biology. Relating to trace evidence, he
received internal training at two police departments and external
training at the FBI Academy at Quantico and Brunswick College.
Relating specifically to glass, he has performed several hundred
tests for glass analysis during his career; he conducted a research
project and made a presentation concerning conventional glass
analysis versus elemental analysis to the American Academy of
Forensic Scientists. In light of Investigator French's clear
expertise in the area of trace evidence, and his experience in
glass analysis, we cannot say the trial court abused its discretion
in finding Investigator French to be more qualified to formulate an
opinion on trace glass evidence than the jury. Additionally, we
note that during the voir dire examination, defendant stated the
following:
I believe that _ I mean, it sounds that - from
what Mr. French testified, this is a commonly
used process to compare glass. I don't know if
I have much argument about whether or not he
is an expert. I think I do have a good
argument about whether this evidence is more
prejudicial than probative of the defendant's
guilt.
(See footnote 1)
Finally, pursuant to the third step in Goode, defendant made
no argument as to whether this evidence, if otherwise admissible,
was relevant. We hold that it was.
After close review of the record and the briefs, we conclude
defendant received a trial free from reversible error. No error.
Judges TIMMONS-GOODSON and HUNTER concur.
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