Appeal by defendant from judgment entered 29 April 2004 by
Judge Donald W. Stephens in Durham County Superior Court. Heard in
the Court of Appeals 8 June 2005.
Attorney General Roy Cooper,
by Assistant Attorney General
Stephen F. Bryant
, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for defendant-
Defendant Phillip Eugene Anderson appeals from his conviction
for first degree murder. Defendant argues primarily that the trial
court erred in admitting expert ballistics testimony. Defendant's
arguments are, however, based upon Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), even
though our Supreme Court has held that the principles of Daubert do
not apply in this State. See Howerton v. Arai Helmet, Ltd., 358
N.C. 440, 597 S.E.2d 674 (2004). Under the test applicable in
North Carolina, as set forth in State v. Morgan, 359 N.C. 131, 159,
604 S.E.2d 886, 903 (2004), cert. denied, __ U.S. __, 163 L. Ed. 2d
79, 126 S. Ct. 47 (2005), defendant failed to demonstrate at trial
that the expert testimony at issue was unreliable. Defendant
cannot, as he attempts in this appeal, challenge the witness'
reliability by attempting to introduce on appeal scientificliterature that was not first presented to the trial court. Since
we find defendant's other arguments also to be unpersuasive, we
conclude that defendant received a trial free of error.
The State's evidence tended to show the following. Prior to
the fall of 2001, defendant and Teresa Adams had been dating in an
on-again, off-again relationship. In the fall of 2001, both
defendant and Adams were living in Durham, but Adams had started
dating Matthew Jacobie, defendant's next door neighbor.
On a Sunday afternoon that fall, defendant came to Jacobie's
house looking for Adams. Jacobie's roommate, Stacy Wong, told
Adams that defendant was outside, and Adams went with defendant
into his house. Subsequently, Adams told Wong and Jacobie that
defendant had said that somebody was going to get hurt if she kept
visiting Jacobie's house and that defendant had tried to choke her.
The following Tuesday, 2 October 2001, Adams told her
roommate, Patricia Andrus, that she was going out for a few hours
and if she was not back by midnight, to go ahead and put the alarm
on. Andrus stayed awake until about 1:00 a.m., but Adams had not
yet returned home. By lunchtime the next day, Andrus still had not
seen Adams, and there was no indication that Adams had slept in her
room. Three days later, on 5 October 2001, Andrus filed a missing
persons report with the Durham Police.
Ramal Lowery, a friend of defendant's, testified that
defendant called him several times on the night of 2 October and in
the early morning hours of 3 October. During the last call,defendant asked Lowery to come to his house so that they could talk
about something important. When Lowery arrived, defendant told him
that he had killed Adams. Because Lowery did not believe him,
defendant had Lowery drive the two of them to an area off
Hillandale Road in Durham. Defendant told Lowery to park in a
wooded area beyond a parking lot, and Lowery could see a body
laying on the ground when he got out of his car. As Lowery drove
back to defendant's home, defendant kept saying, "I'm a piece of
shit, I shouldn't have done it."
Defendant also told Lowery that he needed to get rid of the
gun used to kill Adams. Once they reached defendant's house,
defendant went inside and came out with a duffle bag. They drove
down Highway 751 to a bridge. Defendant took a brown paper bag out
of the duffle bag and threw it over the bridge. Defendant told
Lowery that a gun was inside the bag.
On 5 October 2001, the police received a call that there was
a body on the side of the road near the intersection of Hillandale
Road and Horton Road. Officers found Adams' body, which was
already decomposing, in a ditch about five to 10 feet off the road.
Adams had suffered two gunshot wounds, one to the right side of the
back of the head and the other to her neck. The medical examiner
estimated that the time of death was approximately two to three
days before the body was discovered.
The Durham police subsequently found a gun near a creek that
ran underneath Highway 751 in Chatham County. Teresa Powell, an
agent with the State Bureau of Investigation, conducted tests onthe gun found near the creek and the bullets removed from Adams'
body. In Powell's opinion, the bullets were fired from the gun
recovered near the creek.
Defendant was indicted for the first degree murder of Teresa
Adams. At trial, defendant did not present any evidence. The jury
found defendant guilty of first degree murder, and defendant was
sentenced to life imprisonment without parole.
 Defendant contends that the trial court erred under Rule
702 of the Rules of Evidence by admitting Powell's ballistics
(See footnote 1)
Defendant argues that Agent Powell did not comply with
"normally accepted scientific methodology" and that "Ms. Powell's
results should not have been accepted under Daubert
further objects that "[f]or scientific evidence to be admissible,
the expert must point to external sources that validate the
methodology," citing Daubert v. Merrell Dow Pharms.
, 43 F.3d 1311
(9th Cir.), cert. denied
, 516 U.S. 869, 133 L. Ed. 2d 126, 116 S.
Ct. 189 (1995), the Ninth Circuit's decision on remand from Daubert
v. Merrell Dow Pharms., Inc.
, 509 U.S. 579, 125 L. Ed. 2d 469, 113
S. Ct. 2786 (1993). Defendant has, however, argued the wrong
standard. As our Supreme Court confirmed in State v. Morgan
, 359N.C. 131, 159, 604 S.E.2d 886, 903 (2004) (citing Howerton v. Arai
, 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004)),
"North Carolina is not a Daubert
Instead of evaluating expert witnesses under the standard set
out in Daubert
, courts in this State must conduct a three-step
inquiry when considering whether to admit expert testimony pursuant
to Rule 702 of the Rules of Evidence: "(1) whether the expert's
proffered method of proof is reliable, (2) whether the witness
presenting the evidence qualifies as an expert in that area, and
(3) whether the evidence is relevant." Morgan
, 359 N.C. at 160,
604 S.E.2d at 903-04. When making determinations about the
admissibility of expert testimony, the trial court is given wide
latitude and "rulings under Rule 702 will not be reversed on appeal
absent an abuse of discretion." Id.
, 604 S.E.2d at 904.
Defendant does not argue that Agent Powell was not qualified
as an expert or that the evidence was not relevant. Defendant
challenges only the reliability of Agent Powell's testimony.
Reliability in this State is "a preliminary, foundational inquiry
into the basic methodological adequacy of an area of expert
testimony. This assessment does not, however, go so far as to
require the expert's testimony to be proven conclusively reliable
or indisputably valid before it can be admitted into evidence."
, 358 N.C. at 460, 597 S.E.2d at 687.
In order to assess reliability, a trial court may look to
expert testimony regarding reliability, may take judicial notice,
or may use a combination of the two approaches. Id.
at 459, 597S.E.2d at 687. The Supreme Court has indicated that the trial
court should first review precedent "for guidance in determining
whether the theoretical or technical methodology underlying an
expert's opinion is reliable." Id.
"[W]hen specific precedent
justifies recognition of an established scientific theory or
technique advanced by an expert, the trial court should favor its
admissibility, provided the other requirements of admissibility are
likewise satisfied." Id.
If no precedent exists, such as when an expert is proposing
"novel scientific theories, unestablished techniques, or compelling
new perspectives on otherwise settled theories or techniques," the
trial court is required to focus on "indices of reliability" to
determine reliability, including the expert's use of established
techniques, the expert's professional background in the field, the
use of visual aids before the jury, and independent research
conducted by the expert. Id.
at 460, 597 S.E.2d at 687. These
indices are not, however, exclusive. Id.
Our Supreme Court has previously upheld the admission of
similar firearms or ballistics testimony. See State v. Gainey
N.C. 73, 88-89, 558 S.E.2d 463, 473-74 (holding that the trial
court did not err in admitting testimony of SBI agent regarding
rifling characteristics of particular bullets based on his
experience and the fact that he had tested the bullets upon which
he based his opinion), cert. denied
, 537 U.S. 896, 154 L. Ed. 2d
165, 123 S. Ct. 182 (2002); State v. Felton
, 330 N.C. 619, 638, 412
S.E.2d 344, 356 (1992) (upholding admissibility of SBI agent'stestimony regarding rifling characteristics of particular bullets).
Defendant does not address this precedent, but rather argues that
the State did not meet its burden because "[t]he State presented no
evidence substantiating the scientific validity" of Agent Powell's
comparisons of the bullets and the gun.
(See footnote 2)
establish, however, the State was not necessarily required to do
In challenging Agent Powell's methodology at trial, defendant
did not offer any expert testimony or scientific literature. On
appeal, however, defendant relies upon a series of journal articles
that he contends establish that Agent Powell improperly failed to
use photographs to document her work and that her methodology
failed to comply with accepted scientific methods. Those articles
were not, however, presented to the trial judge. A defendant
cannot establish an abuse of discretion by the trial judge based on
scientific literature never provided to that judge. Defendant's
literature review thus does not demonstrate that the trial judge
abused his discretion in making his preliminary determination that
Agent Powell's testimony was sufficiently reliable to meet the
requirements of Rule 702 of the Rules of Evidence.
According to our Supreme Court, "once the trial court makes a
preliminary determination that the scientific or technical area
underlying a qualified expert's opinion is sufficiently reliable
(and, of course, relevant), any lingering questions or controversyconcerning the quality of the expert's conclusions go to the weight
of the testimony rather than its admissibility." Howerton
N.C. at 461, 597 S.E.2d at 688. Questions of weight are for a jury
to determine, id.
at 460, 597 S.E.2d at 687, and "'[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence,'"
at 461, 597 S.E.2d at 688 (quoting Daubert
, 509 U.S. at 596,
125 L. Ed. 2d at 484, 113 S. Ct. at 2798).
Defendant's arguments regarding the discoloration of the
bullets resulting from the bodily fluids of the victim, the
corrosion of the gun, and the subjective nature of Agent Powell's
examination go to the weight of Agent Powell's testimony and not
its admissibility. See Felton
, 330 N.C. at 638, 412 S.E.2d at 356
(holding that uncertain length of time the bullets had been in an
abandoned water heater and the fact that several types of guns
could have produced the rifling characteristics at issue "impact
the weight of the evidence, not its admissibility"). Defendant
cross-examined Agent Powell about the accuracy of her methods and
also questioned the witness about whether ballistic evidence was a
scientific certainty. It was for the jury to decide how to weigh
Agent Powell's testimony. See Howerton
, 358 N.C. at 468, 597
S.E.2d at 692 ("[W]e are concerned that trial courts asserting
sweeping pre-trial 'gatekeeping' authority under Daubert
unnecessarily encroach upon the constitutionally-mandated function
of the jury to decide issues of fact and to assess the weight ofthe evidence."). We, therefore, hold that the trial court did not
abuse its discretion in admitting the expert testimony.
 Defendant next argues that the trial court erred in
admitting 15 photographs taken of the victim's body at the crime
scene and taken during the autopsy because the photographs were
minimally probative, highly prejudicial, and meant to inflame the
passions of the jury to the detriment of defendant. Defendant
objected at trial, but the trial court found that "all of the
photographs that are before the Court show separate and distinct
views of the body, or of items of evidence close to the body, or in
proximity to the body, or on the body. They're all different.
They are not unduly duplicative. They are not unfairly
prejudicial, and their probative value outweigh any prejudice in
Pictures of a victim's body may be introduced "even if they
are gory, gruesome, horrible or revolting, so long as they are used
for illustrative purposes and so long as their excessive or
repetitious use is not aimed solely at arousing the passions of the
jury." State v. Hennis
, 323 N.C. 279, 284, 372 S.E.2d 523, 526
(1988). While noting that there is no bright line test to
determine what is an excessive amount of photographs, Hennis
instructs that courts should examine the "content and the manner"
in which the evidence is used and the "totality of circumstances"
comprising the presentation. Id.
at 285, 372 S.E.2d at 527. The
decision as to whether evidence, including photographic evidence,is more probative than prejudicial under Rule 403 of the Rules of
Evidence and what constitutes an excessive number of photographs
lies within the sound discretion of the trial court. State v.
, 297 N.C. 227, 232, 254 S.E.2d 579, 583 (1979).
After reviewing the photographs at issue and the other
evidence in the record, we conclude that the trial court did not
abuse its discretion in allowing the jury to view the 15 photos.
The photographs were illustrative of and relevant to testimony of
the crime scene investigator and the medical examiner.
Additionally, even though some of the pictures looked similar, the
individual photographs each show a different view of the body, a
different injury inflicted, and different pieces of evidence found
around the body. We cannot say that the trial judge abused his
discretion in determining that the pictures were not unduly
duplicative, unfairly prejudicial, or of limited probative value.
See State v. Trull
, 349 N.C. 428, 509 S.E.2d 178 (1998) (allowing
the use of multiple, gory photographs of victim's body that were
admitted for different illustrative purposes), cert. denied
U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999); State v. Wynne
329 N.C. 507, 406 S.E.2d 812 (1991) (holding there was no abuse of
discretion in admitting multiple pictures and testimony regarding
decomposition of the body).
Defendant also argues that the photographs were not properly
explained to the jury. He contends that a witness should have
walked through and explained each photograph. Defendant, however,
failed to make this argument to the trial court: "As has been saidmany times, 'the law does not permit parties to swap horses between
courts in order to get a better mount,' . . . meaning, of course,
that a contention not raised and argued in the trial court may not
be raised and argued for the first time in the appellate court."
Wood v. Weldon
, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003)
(quoting Weil v. Herring
, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934)), disc. review denied
, 358 N.C. 550, 600 S.E.2d 469 (2004).
Moreover, this argument cannot be reconciled with defendant's
contention that these photographs were so prejudicial that they
should have been excluded under Rule 403. We cannot see how
defendant would have benefitted from having the photographs
displayed to the jurors over a more prolonged period of time, such
as would be required to provide the more detailed explanation
sought by defendant on appeal. Accordingly, this assignment of
error is overruled.
 Defendant next challenges certain statements made by the
prosecutor during closing arguments. Defendant argues that the
trial court erred in overruling his objection to two remarks that
he contends went beyond the evidence offered at trial. Defendant
further argues that the trial court erred in not acting ex mero
when the prosecutor expressed a personal opinion regarding
(See footnote 3)
During closing arguments, trial counsel is allowed "wide
latitude" in his remarks to the jury and may argue the law, all the
facts in evidence, and any reasonable inference drawn from the law
and facts. State v. Craig
, 308 N.C. 446, 454, 302 S.E.2d 740, 745,
, 464 U.S. 908, 78 L. Ed. 2d 247, 104 S. Ct. 263
(1983). N.C. Gen. Stat. § 15A-1230(a) (2003) sets forth the
boundaries that counsel must adhere to during a closing argument:
[A]n attorney may not become abusive, inject
his personal experiences, express his personal
belief as to the truth or falsity of the
evidence or as to the guilt or innocence of
the defendant, or make arguments on the basis
of matters outside the record except for
matters concerning which the court may take
judicial notice. An attorney may, however, on
the basis of his analysis of the evidence,
argue any position or conclusion with respect
to a matter in issue.
The propriety of counsel's argument is left largely to the control
and discretion of the trial judge, and we review any ruling by the
trial court only for abuse of discretion. State v. Roache
N.C. 243, 301, 595 S.E.2d 381, 418 (2004).
Defendant first points to the following argument as
unsupported by the evidence:
[Prosecutor]: So that Tuesday night,
when [the victim] got a phonecall, put on her
old sandals, old skirt, threw on a jacket,
picked up her keys and her cell phone,
probably going to meet outside and talk. I'm
going to settle this once and for all
. Go out
there and talk.
[Defense counsel]: There's no evidence
of that, Your Honor.
THE COURT: Overruled.
(Emphasis added.) Subsequently, the State made the second argument
challenged by defendant as not supported by the evidence:
[Prosecutor]: What do you think Mr.
Anderson was doing? He didn't just bring his
keys and his cell phone, did he? What did he
bring? A loaded .357. What kind of love is
that? In his mind it was until death do us
part. See, if he couldn't have her, nobody
would. And he drove her out right down the
street from her house. You all saw that blood
on the side of the road over here. Shot her
there and drug her in the woods
[Defense counsel]: There's no evidence
of that either, Your Honor. Objection.
THE COURT: She may argue any inference
from the evidence.
(Emphasis added.) We believe that the State's suggestion that
Adams met defendant to settle matters with him and that defendant
shot Adams on the side of the road before dragging her into the
woods are inferences that reasonably can be drawn from the evidence
presented. Even if that were not the case, in light of the
evidence, any error from the statements was harmless.
Defendant also points to the prosecutor's expression of
opinion on defendant's possible theory of the case:
Now, I'm going to sit down and let you
all listen to [the defense attorney]. And
he'll bring up a lot of things that Ramal said
that were different, not a hundred percent
like he likes them. He may even try to throw
out there maybe Ramal killed him. I mean that
is just crazy
. He might do that.
(Emphasis added.) Defendant argues this is an impermissible
expression of the prosecutor's personal beliefs. We agree that
this remark was improper under N.C. Gen. Stat. § 15A-1230 becauseit expressed a personal belief as to the truth or falsity of
Because, however, defendant did not object to this comment at
trial, he "must establish that the remarks were so grossly improper
that the trial court abused its discretion by failing to intervene
ex mero motu
." State v. Braxton
, 352 N.C. 158, 202, 531 S.E.2d
428, 454 (2000), cert. denied
, 531 U.S. 1130, 148 L. Ed. 2d 797,
121 S. Ct. 890 (2001). To establish such an abuse, "defendant must
show that the prosecutor's comments so infected the trial with
unfairness that they rendered the conviction fundamentally unfair."
State v. Davis
, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert.
, 526 U.S. 1161, 144 L. Ed. 2d 219, 119 S. Ct. 2053 (1999).
After reviewing the record, we cannot conclude that this comment
rises to the level of fundamental unfairness given the evidence
presented at trial. Accordingly, this assignment of error is
 Finally, defendant argues that the trial court erred in
denying his request for a jury instruction on voluntary
manslaughter. Any possible error in failing to give this
instruction was, however, harmless. "It is well-settled law in
this state that when a jury is properly instructed on both
first-degree and second-degree murder and returns a verdict of
guilty of first-degree murder, the failure to instruct on voluntary
manslaughter is harmless error." State v. East
, 345 N.C. 535, 553,
481 S.E.2d 652, 664, cert. denied
, 522 U.S. 918, 139 L. Ed. 2d 236,118 S. Ct. 306 (1997). In this case the court instructed the jury
on first degree and second degree murder, and the jury returned a
guilty verdict on first degree murder. This situation is identical
, and accordingly this assignment is overruled.
Judges CALABRIA and ELMORE concur.