dissenting. Because the majority has chosen to ignore the patent unfairness of convicting an accused person based on wholly unreliable and unsubstantiated opinion testimony, I must dissent. The inherent prejudice in this case is obvious. No witness saw appellant shoot the victim. No evidence was introduced tending to connect the weapon appellant admitted he fired into the air and the wound that caused the victim’s death. There was evidence that other weapons were fired around the time the victim was shot. Noticeably absent are ballistic evidence or other competent forensic evidence connecting the appellant and his gun to the crime.
Although the trial court based its admissibility ruling on the fact that the coroner was never qualified as an expert, he noted the coroner’s fifty years of experience when he decided to allow him to testify. The supreme court has recognized that in some instances, the rational basis for qualifying a lay opinion as reliable is litde different from the evidence requisite to showing that the witness is an expert in his field of knowledge. See Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), and Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982). It follows that it is not acceptable to “gloss-over” the reliability requirement by using Ark. R. Evid. 701 to admit unreliable expert testimony as a lay opinion. See Williams v. Southwestern Bell Tel. Co., 319 Ark 626, 893 S.W.2d 770 (1995).
As the majority writes, quoting from Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990), in addition to establishing the reliability of a lay opinion, the State must show that the opinion would be helpful to the trier of fact in understanding the witness’s testimony. The lay witness must be qualified by experience and observation as to the subject matter. Tallant v. State, 42 Ark. App. 150, 865 S.W.2d 24 (1993). And the testimony must not be overly prejudicial. Ark. R. Evid. 403.
In Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), the supreme court noted two limitations on lay opinions: (1) the witness must have firsthand knowledge, and (2) the testimony must help resolve some issue in the case. If attempts are made to introduce meaningless assertions which amount to little more than “choosing up sides,” exclusion is called for by the rule. Felty (citing Advisory Committee’s Notes to Federal Rule 701). The rule was deciphered more clearly in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). There, where the issue was whether the trial court erred in refusing to admit the results of DNA testing where the reliability of the testing process had not been established, the court adopted the “relevancy standard.” The relevancy approach requires that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. Id. at 186. Although Prater involved the admissibility of expert testimony, its rule should be applied in the present case, because the standard would be essentially the same for establishing the reliability of the coroner’s testimony if he were qualified as an expert. See Gruzen, supra.
Here, the coroner testified that he determined that the victim had been killed by a nine-millimeter bullet by a forensically novel process of placing several different-sized bullets in the fatal wound and eliminating all but one, based on the way the bullet fit the hole in the victim’s body. It cannot be argued that this process has ever been recognized as an accurate means of determining the instrumentality of death, and it in no way relates to the commonly used method of ballistic examinations. The trial court cited only the coroner’s fifty years’ experience in determining the cause of death, and made no inquiry as to whether the coroner had the ability to properly explain the ramifications of his “findings” or whether he could relate them to the disputed factual issue of whether appellant fired the bullet that killed the decedent. Because there was no evidence that any of the shooters at the scene except appellant possessed a nine-millimeter, the obvious conclusion that would be drawn from the coroner’s testimony in this particular case is that the appellant did, in fact, fire the fatal shot. The coroner’s opinion amounted to “little more than choosing up sides,” and therefore should have been excluded.
Some cases that further illustrate the error of the court’s ruling are Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995); Young v. State, 321 Ark. 225, 871 S.W.2d 373 (1994); Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994); and Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). In all of these cases, the court dealt with the issue of whether the results ofluminol testing, an unrecognized scientific test for the presence of blood, was admitted in error. The Supreme Court concluded in each that, because the procedure did not distinguish between human and other type blood, without additional test to confirm that the blood found was human blood, admitting the results were per se misleading and overly prejudicial. In Houston, in particular, the supreme court noted that luminol testing can return a “false positive,” and for that reason declared the results irrelevant without “additional factors that relate the evidence to the crime.” In the present case, the exact calibers of the weapons present at the murder scene were never established, but there was testimony that in addition to the nine millimeter, a .38, a .357 and a .45 were fired. It is widely recognized among firearm experts that the .38, .357, .380 and the .9 millimeter are all in the same class of weapons and the cartridges are substantially the same in diameter. In fact, the .380 and the .9 millimeter are exactly the same diameter. Because the coroner’s “ballistic testing” consisted only of inserting a bullet into the wound to determine the nature of the projectile that caused it, the similarity between bullets could just as easily result in a “false positive.” Without further testing to confirm his results, the possibility that the jury could have been misled by the coroner’s testimony is infinite. See also Ferrell v. State, supra (Arkansas Supreme Court recognized that difference between certain handgun barrel diameters are so slight that the difference can not be discerned by casual observation).
This case is somewhat different than Russell v. State 306 Ark. 436, 815 S.W.2d 929 (1991), upon which the majority relies for its decision. There, although, based upon his experience, an emergency medical technician was allowed to give his opinion that the victim’s wounds were caused by a screwdriver, the opinion was a general one with less potential to mislead the jury. He was not allowed to speculate as to what type screwdriver caused the wound and there was eyewitness testimony that the appellant had in fact stabbed the victim with a screwdriver. In the case at bar, the coroner was qualified, to give his opinion that the decedent’s wound was caused by a bullet, but he had no experience in ballistics that would provide an ample basis for his opinion that the bullet was of a particular caliber. Also, unlike the Russell case, there was no eyewitness testimony to corroborate the coroner’s conclusion.
In summation, the trial court’s decision to allow the coroner to give an opinion that the victim’s wound was caused by a nine millimeter bullet was erroneous because (1) the State failed to establish that the test procedure was reliable; (2) the testimony was overly prejudicial; (3) the coroner’s testimony was misleading; and (4) there was no evidence tending to link the coroner’s “findings” to appellant, and it was therefore irrelevant. See also Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989) (officer’s testimony fixing appellant’s alcohol level at specific level based on physical test held inadmissable and manifestly prejudicial).
I am authorized to state that Judge Crabtree joins in this dissent.