State v. Ellis

PLEICONES, Justice:

Appellant was convicted of murder and received a life sentence without the possibility of parole (LWOP). On appeal, he raises an evidentiary issue and a sentencing issue. We find no merit to the sentencing claim, but reverse and remand for a new trial because of an error in allowing a non-expert to give an opinion.

Facts

The victim was found in the street, near his bicycle and a knife. Appellant admitted shooting the victim three times, but contended he was acting in self-defense. He testified the victim dropped the bicycle and approached appellant in a menacing fashion holding the knife. Appellant verbally warned the victim to stop, but testified he instinctively shot when the victim jumped towards him, while holding the knife in a threatening position. The State sought to counter appellant’s self-defense claim by showing that the victim was shot while riding the bike.

Issues/Analysis

A. “Expert” Testimony

Appellant contends the trial court erred in permitting a police officer to testify that, in his opinion, the victim was astride the bike when shot. He contends the officer was not qualified as an expert in “crime scene reconstruction,” and that therefore he was not qualified to offer opinion testimony in that area. We agree, and find that the admission of this testimony, and the solicitor’s emphasis on this “scientific” conclusion, unduly prejudiced appellant’s self-defense claim.

Sergeant Walters was qualified as an expert in crime scene processing and fingerprint identification. As such, he was qualified to testify, as he did, to measurements taken at the scene, to the recovery of shell casings, and to the identification of blood stains. He exceeded the scope of his expertise ■ when he was permitted, over appellant’s objection, to impart *178to the jury his conclusion, drawn from these measurements and observations, regarding the location of the victim and the position of his body vis-a-vis the bicycle at the time of the shooting. In effect, Sergeant Walters was allowed to give his opinion on the ultimate issue: Whether appellant was acting in self-defense when he shot and killed the victim. This was error. See Rule 704, SCRE; State v. Wilkins, 305 S.C. 272, 407 S.E.2d 670 (Ct.App.1991) (opinion may be offered on ultimate issue only where witness is otherwise qualified).

In our opinion, the error in allowing Sergeant Walters to give his opinion on the position of the victim cannot be deemed harmless in light of appellant’s assertion that he was acting in self-defense. While the State was free to argue that the evidence supported an inference that the victim was astride the bicycle when shot, and while the jury could certainly have concluded that he was, Sergeant Walters was not qualified to give such an “expert” opinion. An officer’s improper opinion which goes to the heart of the case is not harmless. Fordham v. State, 254 Ga. 59, 325 S.E.2d 755 (1985); compare State v. Hogan, 2000 WL 641149, 2000 Tenn. Crim.App. Lexis 393 (2000) (officer’s testimony about the manner in which the shooting occurred and the position of the victim’s body exceeded permissible scope of lay witness testimony).

The error in allowing Sergeant Walters to testify to matters beyond the scope of his expertise was compounded by the solicitor’s closing argument. In his argument, the solicitor repeatedly'referred to the “scientific” testimony of Sergeant Walters, “an expert qualified by the judge.” The trial court’s imprimatur of Sergeant Walters as an ‘expert’ was exploited by the solicitor to the prejudice of appellant and his defense. See State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999) (defendant prejudiced where solicitor stressed improperly admitted evidence in closing argument).

We find appellant has established reversible error in the admission of Sergeant Walters’ “expert opinion” reconstructing the position of the victim’s body when he was shot. The effect of this error, compounded by the solicitor’s repeated references to this “scientific evidence,” was to impermissibly *179undermine appellant’s self-defense claim. This error entitles appellant to a new trial. State v. King, supra.

B. Sentencing

The State gave notice that it was seeking to have appellant sentenced to life without the possibility of parole (LWOP) under the recidivist statute, S.C.Code Ann. § 17-25-45 (Supp.2000). Apart from the recidivist statute, appellant was subject to a LWOP sentence under the murder punishment statute, which gives the trial judge the discretion to impose a LWOP sentence upon any person convicted of murder. S.C.Code Ann. § 16-3-20(A)(Supp.2000). We agree that appellant was not eligible for sentencing under the recidivist statute.

Appellant’s prior record consisted of two offenses:

(1) a 1988 juvenile adjudication of delinquency based upon a finding that he had committed voluntary manslaughter1; and
(2) a conviction for second-degree nonviolent burglary.

Under § 17-25-45(0, voluntary manslaughter and murder are “most serious offenses.” Pursuant to § 17-25-45(G), the solicitor is required to seek a mandatory LWOP sentence for a defendant with a prior conviction for a “most serious offense” who is charged with a second such offense. Upon conviction, the judge is required to impose a LWOP sentence for the second offense. § 17-25-45(A).

Appellant objected to the applicability of the recidivist statute, arguing that a prior juvenile adjudication was not a conviction for purposes of the statute. We agree. The statute itself defines conviction as “any conviction, guilty plea, or plea of nolo contendere.” § 17-25-45(C)(3). Since this criminal statute must be given a strict construction in favor of the defendant, and since juvenile adjudications are not among the list of qualifying events, appellant’s voluntary manslaughter adjudication cannot be used to invoke the mandatory LWOP provisions of the recidivist statute. Cf. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001) (where criminal statute specifically lists covered locations, those not mentioned are excluded *180applying maxim expressio unius est exclusio alterius). Further, the Children’s Code specifically provides “[n]o adjudication by the [family] court of the status of a child is a conviction.” S.C.Code Ann. § 20-7-7805(0) (Supp.2000).

Conclusion

Because an unqualified witness was permitted to offer an expert opinion on the ultimate issue in this case, appellant’s sentence and conviction are

REVERSED AND REMANDED.

TOAL, C.J., and MOORE and WALLER, JJ., concur. BURNETT, J., concurs in part and dissents in part in a separate opinion.

. Appellant was about thirteen years old at the time of this offense.