State v. Noel

HUMPHREYS, J.A.D.,

dissenting.

Antwan Hargrove died on his front porch in a hail of bullets. Two eyewitnesses identified the defendant as the killer. When arrested a few days later, the defendant had bullets in a bag in his locker at the State prison half-way-house. The bullets were of the same caliber as those used to shoot Antwan Hargrove. Tests by the State’s expert showed that some bullets in the defendant’s bag and some bullets at the crime scene were of identical composition, came from the same batch of lead and were manufactured by the same manufacturer, the Speer Company. The defendant did not offer any contrary expert testimony.

My colleagues reverse this conviction largely on “plain error” grounds, that is on issues not raised below. See R. 2:10-2. They consider this case to be “close.” They reverse because they are “persuaded” that the testimony of the State’s expert coupled with a one sentence proper comment by the prosecutor in his summation might have confused the jury as to the probative force of the test results on the bullets. They conclude that the “foundation” for the expert’s testimony was insufficient. They would require the trial judge to sua sponte fashion a charge “explaining to the jury ... the inherent probative limitations of the expert opinion.” *451Majority opinion, op. at 448, 697 A.2d at 164. I disagree with all of these conclusions and would affirm the defendant’s conviction.

I

The State’s case was strong, not close. The testimony of the female eyewitness to the shooting was clear and certain. She was subjected to extensive cross-examination. Her credibility is for the jury, not for an appellate court.

The other eyewitness had given the police a written statement under oath in which he said he saw the defendant shoot Antwan Hargrove. At trial, he claimed that he had lied to the police because five or six police officers beat him. A hearing was held outside the presence of the jury. The eyewitness testified at the hearing and admitted that the alleged beatings had left practically no marks and that he had not sought medical attention. A police officer testified at the hearing that the witness was not beaten in any way and that the witness’s statement was entirely voluntary.

At the end of the hearing, the trial judge ruled that the statement was admissible. The judge found that the witness’s written statement identifying the defendant as the killer was “inherently believable.” The judge said that he did “not believe the witnesses] testimony with respect to pressure placed upon him or any coercion placed upon him to make the statement. I believe the officer in that regard.”

The two eyewitnesses and the evidence of the defendant’s possessing bullets of the same caliber and manufacturer as those used to shoot Antwan Hargrove add up to strong evidence of the defendant’s guilt.

II

My colleagues state they are satisfied that “the State was entitled to have the jury apprised that its expert had concluded, for the reasons he explained, that the two sets of bullets [the ones from the shooting and the ones in the defendant’s bag] had the *452identical composition, and came from the same batch of lead.” Nonetheless, the majority finds that there were “prejudicial foundational omissions” to the introduction of this evidence. I disagree.

The expert’s testimony was well founded. He was a physical scientist employed by the Federal Bureau of Investigation. He had worked for the FBI for nearly seventeen years and was their chief chemist in bullet lead analysis.

He was well qualified on the subject. He had testified as an expert on bullet lead analysis on numerous occasions and had analyzed tens of thousands of bullets. He was a co-author of two papers that deal with bullet lead analysis. He was “familiar with the bullet manufacturing process.” He had toured the Speer manufacturing plant and had reviewed their manufacturing processes for bullets. This testimony provided ample support for the trial judge’s decision to permit the expert to testify on these subjects. See Dawson v. Bunker Hill Plaza Assoc., 289 N.J.Super. 309, 323, 673 A.2d 847 (App.Div.) (a proper foundation has been laid if the witness is in possession of such facts as will enable the witness to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture), certif. denied, 146 N.J. 569, 683 A.2d 1164 (1996); see also State v. Zola, 112 N.J. 384, 414, 548 A.2d 1022 (1988) (“The necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony, are judgments within the discretion of the court.”); Foley Mach. Co. v. Amland Contractors, Inc., 209 N.J.Super. 70, 76, 506 A.2d 1263 (App.Div.1986) (trial judge has broad discretion to determine whether expert testimony should be admitted); cf. Dinter v. Sears, Roebuck & Co., 252 N.J.Super. 84, 92, 599 A.2d 528 (App.Div.1991) (admission or exclusion of proffered evidence is within judge’s discretion; reversal is required only when an unjust result has occurred).

The expert’s statement on cross-examination that he was not an “expert in the manufacturing process” goes to the weight not the admissibility of his testimony. See State v. Frost, 242 N.J.Super. *453601, 615, 577 A.2d 1282 (App.Div.), certif. denied, 127 N.J. 321, 604 A.2d 596 (1990). (“The credibility of the expert, and the weight to be accorded his or her testimony, is assessed by the trier of fact; any testimonial or experience weaknesses in the testimony may be exposed by cross-examination.”); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 2798, 125 L.Ed.2d 469, 484 (1993) (“Vigorous 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.”).

Furthermore, the expert’s testimony about the test results and the manufacturing process was virtually undisputed. Defense counsel in his summation did not question the accuracy of the testimony of the State’s expert. Nor does defense counsel in his appellate brief appear to seriously question the accuracy of the expert’s testimony. My colleagues also do not appear to question the accuracy of his testimony. Their challenge to the expert’s testimony centers on the strength of its probative force, but this is an issue which the jury should determine.

The expert’s testimony was balanced and fair. Basically, the expert testified that the initial source of bullets is a pot of lead sometimes called a batch. A manufacturer orders a billet of lead. A billet is a seventy pound cylinder of lead taken from a batch. Bullets are then extruded from the billet. Bullets from the same billet would have the same composition, i.e. the same amount of trace metals. It is not unusual, the expert testified, to find bullets in a box of ammunition which have several compositions. This is because, the expert testified, “what we have in between bullets being made, they’re being stored and some mix occurs and that is why in a box of ammunition we’ll get several compositions of bullet lead.” However, “if you find several of these compositions within bullets, it suggests that they came from that box of ammunition or a box that was manufactured or packaged around that date.”

The expert tested nine bullets from the defendant’s bag and six spent bullets from the crime scene. The tests were for trace *454metals. The bullets were all nine millimeter and all manufactured by Speer. The tests showed that all but one of the bullets could be divided into four different groups. The bullets in each of the four groups were “analytically indistinguishable” from each other, i.e., each bullet in that group had the same amount of trace metals. Each group contained bullets from the defendant’s bag and a spent bullet or bullets from the crime scene.

Thus, some bullets from the crime scene and some bullets from the defendant’s bag came from the same batch and billet used at Speer. That does not mean that the bullets used to shoot Antwan Hargrove necessarily came from the defendant’s bag. The expert readily conceded on cross-examination that over 4,300 bullets could be manufactured from one billet; that there could be many billets with the same lead composition; and that there were many thousands of bullets, “at least 50,000”, with the same composition as those he had tested.

The expert was forthright and candid in his testimony. Defense counsel and the judge agreed that the expert had not significantly hurt the defense. At a side bar conference, the judge said: “Doesn’t sound to me like he’s done anything you’re afraid of.” Defense counsel responded: “He certainly had not. He’s been pretty straight.”

The expert’s testimony was clearly admissible under N.J.R.E. 702 which provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
[Ibid.; see also Biunno, Current N.J. Rules of Evidence, cmt. to N.J.R.E. 702 (“Rule 702 follows F.R. Evid. 702 verbatim.....”).]

The rule permitting expert testimony is a liberal one. See State v. Berry, 140 N.J. 280, 290-93, 658 A.2d 702 (1995) (expert evidence is admissible if it will assist the jury in comprehending the evidence and determining issues of fact); see also Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997) (Iowa’s Rule 702, which is exactly the same as N.J.R.E. 702, is a “liberal rule on the *455admission for expert testimony”); Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196, 210 (1994) (Neeley, J., concurring) (“... Rule 702 adopts a liberal stance on admitting expert testimony and favors admissibility by investing trial judges ... with broad discretion to admit expert testimony.”); State v. Glidden, 459 N.W.2d 136, 140 (Minn.Ct.App.1990) (“The evidentiary rule regarding admission of expert testimony [Rule 702] is liberal.”); State v. Kersting, 50 Or.App. 461, 623 P.2d 1095, 1100 n. 2 (1981), (“Rule 702 of the Federal Rules of Evidence [which New Jersey follows verbatim] adopts a liberal approach to the admission of expert testimony. ...”), aff'd, 292 Or. 350, 638 P.2d 1145 (1982); cf. State v. Long, 119 N.J. 439, 495, 575 A.2d 435 (1990) (noting that the Third Circuit has a “‘liberal test’ for admission of expert testimony” under F.R. Evid. 702).

The expert was not asked and did not give any opinion about the probability that the bullets from the crime scene came from the defendant’s bag. His testimony was not, as the majority says, a “statistical probability exercise.” Majority Opinion, at 445, 697 A.2d at 162. In essence, he testified that his tests showed that some of the bullets from the crime scene and some of the bullets found in the defendant’s bag had the identical amount of trace metals. His testimony merely added another link to the chain of evidence.

Such evidence is eminently proper. See State v. Baldwin, 47 N.J. 379, 391-92, 221 A.2d 199 (1966) (Weintraub, C.J.) (expert testimony on soil composition and hair particles is admissible over an objection that it was “too speculative;” jury would determine “[h]ow much it was worth”); State v. Beard, 16 N.J. 50, 59, 106 A.2d 265 (1954) (human blood stains found on defendant’s clothing were a link in the chain of evidence forged by the State and were entitled to be weighed, with the other evidence presented, by the jury in arriving at its conclusion); State v. Porambo, 226 N.J.Super. 416, 430, 544 A.2d 870 (App.Div.1988) (blood analysis testing which showed a statistical probability that defendant was a participant in the crime had sufficient probative value to justify admission into evidence); State v. Kelly, 207 N.J.Super. 114, 121-22, 504 *456A.2d 37 (App.Div.1986) (blood analysis testing is not conclusive as to source of blood specimens found in defendant’s track but were admissible as showing desired inference more probable than it would have been without the evidence); State v. Hollander, 201 N.J.Super. 453, 480, 493 A.2d 563 (App.Div.1985) (fiber tests which showed that fibers on victim’s body and fibers from defendant’s home had a common source were admissible, even though it was not certain that “an evidential fiber belongs to a particular known sample.”); see also State v. Freeman, 531 N.W.2d 190, 195 (Minn. 1995) (the evidence included results of bullet tests showing close compositional association between bullets found in defendant’s gun cabinet and bullets found at crime scene); People v. Johnson, 114 Ill.2d 170, 102 Ill.Dec. 342, 353-54, 499 N.E.2d 1355, 1366-67 (1986) (bullet lead analysis, while not conclusive, is admissible as clearly importing “more than a possibility of common origin;” lack of certitude in results or inconclusiveness of test results goes to weight not admissibility); Bryan v. State, 935 P.2d 338, 358-59 (Okla.Crim.App.1997) (circumstantial evidence included evidence that bullets in defendant’s possession and bullet fragments in victim’s head were all manufactured by the same company and appeared to be from the same source or batch).

Scientific evidence need not be conclusive to be admissible. State v. Marcus, 294 N.J.Super. 267, 287, 683 A.2d 221 (App.Div. 1996) (“For scientific evidence to be admissible, we only require that the scientific technique or procedure be accepted as scientifically reliable, not that it produce results which are beyond all legitimate debate.”). In State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974), the State introduced the results of bullet lead analysis to establish that the fatal bullet could have come from the same batch of metal as the group of bullets taken from the defendant’s home. The Supreme Court of Oregon upheld the trial judge’s admission of the test results notwithstanding the defendant’s contentions that it had not been shown the bullets came from a particular batch and that there was insufficient evidence of the total number of batches of similar bullets manufactured by that company. Id., 523 P.2d at 1017. The Oregon Supreme Court *457said that the defendant’s contentions “go to the evidence’s convincing power rather than to its admissibility.” Ibid.; see also State v. Dreher, 302 N.J.Super. 408, 464, 695 A.2d 672 (App.Div.1997) (“Expert testimony should not be excluded merely because it fails to account for some condition or fact that the opposing party considers relevant. That party may on cross-examination, supply the omitted conditions or facts and ask the expert if his or her opinion would be changed by them.”).

The case of State v. Spann, 130 N.J. 484, 617 A.2d 247 (1993), relied on by the majority is clearly distinguishable from the present case. In Spann, the defendant was convicted of sexual assault. A child resulted from the assault. The State’s expert testified that based on blood and tissue tests, the “probability” of the defendant’s “paternity was 96.55%.” The Court pointed out that the expert knew “absolutely nothing about the facts of the case except those revealed by the blood and tissue test of defendant, the victim, the child and that the defendant was the accused.” Id. at 489, 617 A.2d 247. The Court noted that this type of mathematical probability opinion testimony is highly prejudicial because if, for example, it could be conclusively proven that the defendant was out of the country at the time when conception could have occurred, the “expert still would have concluded that the probability defendant was the father was 96.55%.” Id. at 495, 617 A.2d 247.

The problem arose, the Court said: “when a mathematical computation is added to the [evidence] mix, one that purports precisely to calculate the probability of the ultimate issue.” Id. at 504, 617 A.2d 247. Further evidence is required, the Court said, before such mathematical probability opinion testimony is admissible. Id. at 498-99, 617 A.2d 247.

The Court in Spann carefully distinguished mathematical probability opinion testimony from the admission into evidence of the blood test results. The Court pointed out that the results of the test are admissible not to prove paternity conclusively but as a link in the chain of evidence. The Court said:

*458Even though insignificantly probative, it [the test result] nevertheless was admissible as “a link in the chain of evidence" in criminal trials, just as the alleged assailant’s blond hair is used against a blond defendant. See State v. Beard, 16 N.J. 50, 58-59, 106 A.2d 265 (1954) (holding type 0 — the victim’s blood type and also the most common type — blood stains on defendant’s clothing admissible as “link in the chain of evidence”); see also State v. Alexander, 7 N.J. 585, 593-94, 83 A.2d 441 (1951) (allowing evidence of defendant’s blood type at murder trial for purpose of showing it was of the same type as blood found on the murder weapon), cert. denied, 343 U.S. 908, 72 S.Ct 638, 96 L. Ed, 1326 (1952).
[Spann, supra, 130 N.J. at 490, 617 A.2d 247 (emphasis added).]

In the present case, the expert did not present any mathematical formula nor express any conclusion based on such a formula. Furthermore, he gave no opinion as to the probability that the bullets from the crime scene came from the defendant’s bag. His opinion was that some of the bullets in the defendant’s bag and some of the bullets from the crime scene came from the same batch or source of metal from which the seventy pound billet was made and from which bullets were extruded. Such evidence is simply a link in the chain of evidence and thus clearly admissible in criminal trials. See ibid.; see also Andre A. Moenssens et al.; Scientific Evidence in Criminal Cases § 4.21 at 246 (3d ed. 1986) (“The use of various instrumental techniques to analyze the trace elements in bullet lead has enabled an expert to identify a bullet as having come from a particular batch of bullets. If bullets having trace elements similar to a crime bullet are found in a defendant’s possession, this may be significant circumstantial evidence of guilt.” (emphasis added)).

Moreover, the defendant had the opportunity to conduct and did conduct a probing and able cross-examination of the expert. The defendant also had the opportunity to produce his own expert witnéss if he seriously challenged the testimony of the State’s expert.

Further, if the expert’s testimony was misleading or prejudicial, the defendant could have asked the judge for a specific charge. The defendant did not ask for such a charge, perhaps agreeing with Justice Hunter’s statement in Elza v. Liberty Loan Corp.: ‘We entrust juries to evaluate the degree of reliability which *459should be attached to testimony in such highly technical matters as the nuances of [bullet] neutron activation analysis.” 426 N.E.2d 1302, 1311 (Ind.1981) (Hunter, J., dissenting).

In any event, there is no sound basis for my colleagues’ conclusion that the trial judge was required in this case to sua sponte fashion a charge for the jury. The charge the judge gave contained the usual instructions regarding the testimony of an expert. The defendant had no objection to the charge. The failure to object bars any later challenge to either the charge or any omission therefrom unless the charge or the omission is clearly capable of prejudicing a substantial right. See R. 1:7-2; R. 1:7-5; R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333, 273 A.2d 1 (1971) (Weintraub, C.J.) (a court may infer from a party’s failure to object at trial that “in the context of the trial, the error was actually of no moment”).

My colleagues’ reliance on Justice Hunter’s dissent in Jones v. State, 425 N.E.2d 128, 135 (Ind.1981) (Hunter, J., dissenting), is misplaced. In Jones, the State’s expert compared the bullets taken from the defendant’s pocket with a portion of the bullet removed from the victim. The expert testified that based on his testing, the bullet taken from the victim’s body “could have come” from the box of ammunition which contained bullets seized from the defendant. Id. at 131. Justice Hunter viewed this evidence as lacking “reasonable scientific certainty to imbue it with probative value.” Id. at 135 (Hunter, J., dissenting). In contrast, the expert in the present case did not testify that in his opinion the bullets from the crime scene could have, or did, come from the defendant’s bag. Instead, the expert presented to the jury the results of his scientific analysis of the bullets.

Authorities in other jurisdictions almost uniformly permit bullet lead analysis to be introduced into evidence. In Johnson, supra, the FBI agent testified that the absence of a particular element in the samples prevented him from ultimately designating a match between the bullets found in the defendant’s home and the bullets recovered from the victim. 102 Ill-Dec. at 353, 499 N.E.2d at 1366. *460The expert testified, however, that there was a “significant correlation” and that the samples he tested “would commonly be expected to be found among bullets in the same box of cartridges with compositions just like these and____could best be found from the same type and manufacture packaged on the same day.” Ibid.

The Court found in Johnson that the testimony of the FBI agent “while not conclusive, clearly supports more than a possibility of common origin.” Ibid. The Court therefore found the evidence admissible stating that “any lack of certitude in a qualified expert’s testimony, or inconclusiveness in the results of an otherwise reliable neutron-activation analysis goes to the weight and not to the admissibility of such evidence.” Id. at 354, 499 N.E.2d at 1367. The Court said: “[cjlearly the. test results were relevant in establishing, as more probable, the material fact that the bullets from the ... murder were from the same box as the cartridges found in defendant’s home.” Ibid.

In Bryan, swpra, the court found as proper circumstantial evidence that bullet fragments in the victim’s head were manufactured by the same company and “appeared to be from the same source or batch” as those found in the defendant’s possession. 935 P.2d at 359. The court said that the FBI agent’s testimony “provides more than speculation that the bullets came from the same box, and did not invade the province of the jury.” Id. at 360. The court explained that the evidence assisted the jury “in understanding the evidence suggesting that the bullets in this case came, not only from the same manufacturer, but from the same metallurgical source and were probably found in the same box.” Ibid.; see also Freeman, supra, 531 N.W.2d at 195 (permitting this evidence to be considered by the jury); Jones, supra, 425 N.E.2d at 131 (same); Krummacher, supra, 523 P.2d at 1017 (same).

Ill

The prosecutor did not make a misstatement in his summation. The prosecutor said that there are “[mjillions of batches; each one *461unique like a snow flake; like a fingerprint.” Defense counsel objected, saying that was not the testimony as to “batches or billets.” The judge responded, “[mjetaphor; overruled.” The prosecutor continued saying:

[the expert! said they were unique and all could be distinguished. I’m giving you an example, like snowflakes could be distinguished. Use your own recollection, of course, but that’s the key to the examination. They could take any two batches of lead and they could distinguish them, based on the amount of the various elements in them.

The prosecutor’s statement was not incorrect. The statement was fair comment based on the evidence presented by the expert.

In sum, my colleagues have spun out of gossamer threads a chimera of an unfair trial. See Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L. Ed. 674, 687 (1934) (Cardozo, J.) (“gossamer possibilities of prejudice” should not “set the guilty free.”). The reality is quite different. No error was committed in this trial, plain or otherwise. The rulings of the experienced trial judge were sound and well within his discretion. No “novel questions” are presented in this case. See majority opinion, at 437, 697 A.2d at 158. The testimony of the State’s expert was unexceptionable and patently admissible. His testimony was not crucial or highly prejudicial evidence of a type which would sway a jury. Indeed, the jury here focused not on the testimony of the expert but rather on the testimony of the eyewitnesses as shown by the jury asking for a read-back of the eyewitness testimony but not for the expert’s testimony. The prosecutor’s statement in summation was a fair comment on the evidence. The State’s case was strong.

The defendant received a fair trial. The jury having heard the evidence and having been properly charged on the law decided that the defendant murdered Antwan Hargrove. The jury’s verdict should stand.