People v. Williams

790 P.2d 796, 14 Brief Times Rptr. 464, 1990 Colo. LEXIS 266, 1990 WL 40246

• Court: Supreme Court of Colorado
• Decided: April 9, 1990
• Docket: 88SC302
• Status: Published

Opinions

Justice VOLLACK

announced the judgment of the Court and delivered an opinion

in which Justice ROVIRA and Justice LOHR join.

In People v. Williams, 761 P.2d 258 (Colo.App.1988), the court of appeals reversed the defendant Nancy Williams' second degree murder conviction. The court of appeals held that the district court abused its discretion in refusing to qualify a defense witness as an expert in firearms identification, and remanded for a new trial. Id. at 260-61. Because it ordered a new trial, the court of appeals did not consider the defendant’s argument that the trial court erred in denying her challenges for cause to prospective jurors. Id. at 261. We reverse the court of appeals judgment and remand with directions.

I.

On April 16, 1982, the defendant was charged in the District Court of Chaffee County with first degree murder after deliberation¹ in connection with her husband’s death. See Williams v. District Court, 700 P.2d 549, 551 (Colo.1985).² After a change of venue the defendant was convicted in the District Court of Fremont County of second degree murder.³ The defendant subsequently received a new trial based on newly discovered information from a witness who allegedly saw the victim alive after the day the prosecution alleged he was murdered by the defendant. Id. The case before this court involves a ruling by the district court in the defendant’s second trial.

The prosecution attempted to prove at trial that the defendant murdered her husband with a .250 caliber Ruger Model 77 rifle from her husband’s gun collection. The Ruger Model 77 was missing from the victim’s gun cabinet when his body was discovered. The Model 77 was discovered at the Buena Vista rodeo grounds approximately two weeks after' the murder. The Model 77 and a bullet recovered from a mattress at the crime scene were key pieces of evidence in both of the defendant’s trials. During the defendant’s second trial the prosecution, as it had in the first trial, called Cordell Brown, a Colorado Bureau of Investigations (CBI) lab agent, to testify. The district court recognized Brown as an expert in the fields of paint comparison, tool mark comparison, and firearms identification. Brown testified that he examined a smear of paint on the stock of the Model 77 and compared it to three paint samples he took from the defendant’s Ford Bronco. Brown concluded that all three samples matched the paint smear on the stock of the Model 77.

Brown testified in the first trial that the bullet recovered from the mattress was so badly damaged that it did not contain sufficient individual markings for identification purposes. At the second trial, however, Brown testified that between the first and second trial he used the Model 77 to fire a test bullet which he later expanded by using a vise to compress the bullet from its nose to its base. Brown testified that after performing this test he was able to match the test bullet with the bullet recovered from the mattress.

During her case the defendant called Robert Lantz to testify. After an initial voir dire, defense counsel asked the district court to qualify Lantz as an expert in the fields of analytical chemistry and firearms identification. The prosecution did not object to having the court qualify Lantz as an expert in the field of analytical chemistry, but the prosecution did object to the defendant’s request that the court qualify Lantz as an expert in firearms identification. Following a more extensive voir dire by the prosecution, defense counsel, and the court, the court qualified Lantz as an expert in the field of analytical chemistry but declined to qualify Lantz as an expert in the field of firearms identification.

The court of appeals held that the district court abused its discretion in refusing to qualify Lantz as an expert in firearms identification, and remanded the case for a new trial. Williams, 761 P.2d at 261.

II.

In this case we must decide whether the trial court abused its broad discretion to determine whether Lantz was qualified to testify as an expert in the field of firearms identification. We hold, based on the record of Lantz’ qualifications, that the trial court did not abuse its discretion in declining to qualify Lantz as an expert in the field of firearms identification.

A.

We begin our analysis with CRE 702, which is identical to Fed.R.Evid. 702 and provides that:

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.

The “crucial question” trial courts must answer when determining the admissibility of proffered expert testimony is: “ ‘On this subject can a jury from this person receive appreciable help?’ ” 3 J. Weinstein & M. Berger, Weinstein’s Evidence U 702[01], at 702-7 to 702-8 (1988) (emphasis in original) (quoting Wigmore, Evidence § 1923, at 21 (3d ed. 1940)). “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Fed.R.Evid. 702 advisory committee’s note (quoted in E. Cleary, et al., McCormick on Evidence § 13, at 33 n. 9 (3d ed. 1984)). As the Fifth Circuit stated in In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233 (5th Cir.1986), the “trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.” “A decision excluding expert testimony offered by a criminal defendant is perhaps somewhat more susceptible of reversal because of the courts’ sensitivity to the defendant’s need and lack of access to the personnel available to the state.” 3 J. Weinstein & M. Berger; Weinstein’s Evidence ¶ 702[04], at 702-47 to 702-48 (1988) (footnote omitted).

A trial court has broad discretion to determine the admissibility of expert testimony, and appellate courts may not overturn a trial court’s ruling unless it is manifestly erroneous. Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590 (1974); In re Air Crash Disaster, 795 F.2d at 1233; People v. DeLuna, 183 Colo. 163,165, 515 P.2d 459, 460 (1973). In United States v. Bermudez, 526 F.2d 89, 98 (2d Cir.1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976), the Fifth Circuit stated that the trial court’s “quite wide discretion in determining the qualifications and competency of a witness to express an opinion as an expert” should not be disturbed unless there is a clear showing of abuse of discretion. See also King v. People, 785 P.2d 596, 603-04 (Colo.1990); People v. Hampton, 746 P.2d 947, 952-53 (Colo.1987); People v. District Court, 647 P.2d 1206, 1209 (Colo.1982). “This deference reflects the superior opportunity of the trial judge to gauge both the competence of the expert and the extent to which his opinion would be helpful to the jury.” In re Air Crash Disaster, 795 F.2d at 1233.

B.

The record in the present case contains substantial support for the district court’s ruling that Lantz was not qualified to testify as an expert in the field of firearms identification.

Lantz testified that the only instruction he received in firearms identification consisted of one course he audited on the subject in 1971 or 1972 at Michigan State University. Lantz was unable to remember the name of the course, and he admitted that in earlier testimony he had been unable to remember the name of the instructor of the course. Lantz testified that he did not receive a grade in the course and that he could not remember taking any examinations in the course.

Defense counsel asked Lantz: “What is your experience and training in the area [of comparing a bullet] to the weapon it may have been fired from?” Lantz replied that he had “done a great deal of research work in the area[,] particularly starting with my work at the University of Michigan where I did a goodly amount of work in.the area of electron microscopy.” Lantz testified that this research involved “finding out whether or not the old work on much of the ballistics, much of the ballistics comparison was done now was indeed valid using much more modern techniques.” Lantz testified that at Michigan State University he received a grant “from the university electron-optics committee to use scanning electron-microscopy to work out newer techniques for bullet and cartridge case comparison to see whether those bullets are indeed the same.” Lantz testified that he “wanted to see whether or not we could still differentiate bullets really well or were we going to get confused because of much more modern steels and much more modern rifling techniques, and for that matter the use of much more modern electron-microscopic comparison techniques.”

Lantz’ descriptions of his research did not establish that it involved identifying particular bullets as having been fired from particular weapons. Lantz’ descriptions of his electron microscope research fairly suggest that the research involyed determining whether differences in bullets which were apparent under an optical microscope were also detectable with an electron microscope.

Lantz admitted that part of his academic research involved elemental composition analysis, which does not involve comparing certain bullets with test bullets fired from a particular gun. Lantz agreed with the district attorney’s characterization that “[elemental composition analysis [involves] comparing one bullet to [determine whether it has] the same trace elements ... [as] another set or box of bullets.” Lantz stated that “[t]hat is one of the things we were trying to do, to see whether or not we could identify a particular bullet as having come from a particular lot of lead or copper.” The district attorney asked Lantz: “[Elemental composition analysis] won’t do any good with regard to a comparison of a test bullet with a bullet pulled from a body, would it?” Lantz answered: “No, sir.” Lantz did not explain how much of his research at Michigan State University involved elemental composition analysis. Thus Lantz’ testimony did not clarify how much, if any, of Lantz’ research involved determining whether a particular bullet was fired from a particular rifle.

Lantz testified that in the previous ten or twelve years he had done close to 100 comparisons of test bullets with bullets claimed to have been fired from a particular weapon. However, Lantz did not indicate in what context he performed these comparisons. He simply referred to the comparisons as “non-research work.”

Lantz testified that in about ten cases he had testified as an expert in court about the comparisons he had done. However, Lantz testified that the last time he qualified as an expert in firearms identification was in either 1979 or 1980, approximately five years before Lantz attempted to qualify as an expert in the present case.⁴ Lantz did not identify in which states or in which courts he had qualified as an expert in firearms identification, and he admitted that “prior to this ease” he had never been qualified in Colorado as an expert in firearms identification.⁵ Lantz admitted that no one supervised the comparisons he did, including the comparisons he reported in trial testimony. Lantz did not identify the cases in which he gave expert testimony as criminal or civil cases, and he did not explain the substance of his testimony. In response to defense counsel’s request that Lantz give the court “some idea of the percentage of time your conclusions turned out to be the same as the prosecution’s,” Lantz testified that “every time I agreed with the prosecution, that is I did my experiments, reported to the defense attorney, or just got the report from the C.B.I. by one means or another and I agree.”

Lantz also testified that he was appointed by the National Rifle Association to serve on a committee of technical experts concerned with firing range safety. Lantz testified that the N.R.A. often investigates claims that bullets are escaping the confines of firing ranges. Lantz testified that the N.R.A. committee wanted to determine whether bullets which were discovered outside the range were fired from particular weapons used in target matches.⁶

Finally, Lantz testified that he was not recognized by the only national organization which recognizes qualified experts in the field of firearms identification.

The district court concluded that there was no indication that anyone had ever verified Lantz’ firearms identification research methods or the accuracy of his classroom and research work. The district court stated that Lantz could

cite no organization, group or entity that sets standards that should be used by experts in this field and which standards he subscribes to[,] and can’t show that if he subscribed to any such standard he’s been demonstrated or proved to be capable of operating within those standards. So it really leaves me in a vacuum in terms of how I should analyze whether he’s good at what he does, whether he’s bad at what he does.

C.

Whether or not Lantz is qualified to offer an expert opinion in this case is a preliminary question of fact to be determined by the trial court pursuant to CRE 104(a). The trial court as the trier of fact has broad discretion to rule on the competency of Lantz to testify as an expert in firearms identification. See United States v. Huber, 603 F.2d 387 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); United States v. King, 532 F.2d 505 (5th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976); People v. Tidwell, 706 P.2d 438 (Colo.App.1985). In Huber, 603 F.2d at 399, the Second Circuit sustained a federal district court’s refusal to certify a proffered expert in psychoanalysis who had studied psychoanalysis at the Boston Psychoanalytic Institute, was certified by the American Psychoanalytic Institute, and had treated people regularly without supervision for a number of years. Huber, 603 F.2d at 399. The Second Circuit stated that “[wjhile we do not say that all of us would have ruled the same way, we hold that the district judge did not abuse his broad discretion in deciding that this witness was not qualified in this case.” Id.

In United States v. King, 532 F.2d at 509, the Fifth Circuit upheld the trial court’s refusal to qualify a witness as a handwriting expert. The witness was employed by the Social Security Administration in a job unrelated to handwriting, had taken a correspondence school course on handwriting analysis, had no laboratory, and had not trained under anyone. Id.

In People v. Tidwell, 706 P.2d 438, the court of appeals upheld a trial court ruling refusing to recognize a defense witness as an expert in document examination. The court of appeals based its holding on the ground that the witness could not provide an understandable explanation of her qualifications, she was not certified by the American Board of Document Examiners, her actual experience was not defined, and she had never before been qualified as an expert witness. Id.

We reverse the court of appeals judgment and remand to the court of appeals for consideration of the issues not addressed in the defendant’s appeal.

QUINN, C.J., specially concurs. ERICKSON, J., dissents. KIRSHBAUM, J., dissents, and ERICKSON and MULLARKEY, JJ., join in the dissent.

1 . § 18-3-102(l)(a), 8 C.R.S. (1978).

2 . Williams v. District Court was an original proceeding in which we held that the district court’s refusal to quash subpoenas against the defendant's attorney and others was an abuse of discretion. 700 P.2d at 550.

3 .§ 18-3-103(l)(a), 8 C.R.S. (1978).

4 . In response to a question from the court, Lantz stated: "I have worked on several cases since [January of 1984], but I haven’t been called to testify to a great extent because I agreed with the prosecution.”

5 . The record suggests that Lantz may have been qualified as an expert in firearms identification at the defendant’s first trial. The record contains the following question and answer:

Q: Prior to this particular case, have you ever been qualified as an expert in firearms identification in the state of Colorado?

A: I don’t believe so prior to this case, no.

Before the district court ruled on whether to qualify Lantz as an expert in firearms identification, defense counsel argued that Lantz "qualified as an expert the last time the case was tried, never did the methods he used come into question.” Lantz did not testify that he qualified as an expert in firearms identification at the defendant’s first trial.

6 . Lantz testified that the N.R.A. committee “was particularly concerned with firearms, firearms violations, range safety, how could you, for example, really compare particularly we are concerned, at least I was concerned, with damage to bullets. One of the problems the National Rifle Association often has is someone will claim that a particular bullet escaped from a particular otherwise safe firing range in an attempt by, for example, a land developer to close down an IRA [sic] sponsored range. What we wanted to do was see whether or not we really could show that bullet came from a particular rifle or particular type of weapon that was used in target matches."