State of Delaware v. Phillips.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
v. ) ID No. 1210013272
)
JEFFREY PHILLIPS, )
)
Defendant. )
September 2, 2015
SUPPLEMENTAL OPINION
John Downs, Esquire, Ipek Medford, Esquire, and Periann Doko, Esquire, Deputy
Attorney Generals, Delaware Department of Justice, Wilmington, Delaware.
Attorneys for the State of Delaware.
Kevin J. O’Connell, Esquire, Raymond D. Armstrong, Esquire, and Misty A.
Seemans, Esquire, Assistant Public Defenders, Public Defender’s Office,
Wilmington, Delaware. Attorneys for the Defendant.
SCOTT, J.
Introduction
Before the Court is Defendant Jeffrey Phillips’ (the “Defendant”) Motion in
Limine to Exclude Carl Rone’s (“Mr. Rone”) Expert Testimony. Due to the
proximity of the Daubert hearing to trial, the Court ruled from the bench on
October 20, 2014, to allow Mr. Rone to testify as an expert in firearm and toolmark
identification in this trial. Below is the Court’s supplemental opinion on the
admissibility of Mr. Rone as expert in this case. For the reasons set forth below,
Defendant’s Motion in Limine to Exclude Carl Rone’s Expert Testimony was
DENIED.
Statement of Facts
Mr. Rone became a police officer with the Philadelphia Police Department
in 1986.1 In January of 1990, Mr. Rone began his training in the field of firearm
and toolmark identification with the Philadelphia Police Department. 2 There, Mr.
Rone completed a program where we learned to identify the make, model and
caliber of firearms, and do microscopic identifications of evidence, such as
cartridge casings, bullet specimens, bullet fragments and shotgun shells that have
been fired.3 The program teaches examiners first about the history of firearms
identification and how generally guns are manufactured, and follows through to
1
Daubert Hearing Transcript at 11.
2
Id. at 12.
3
Id. at 10.
2
how to make the identifications and eliminations, or determine that the results are
inconclusive.4 Mr. Rone explained that the program is similar to an apprenticeship
in that trainees are taught by senior examiners in the department using a hands-on
approach. Over the course of approximately two and a half years, trainees begin
with simple identification assignments and progress to more complex identification
assignments. 5 While trainees gain more independence over the course of the
program, all their work is still supervised and checked by senior examiners. 6
Around November of 1992, Mr. Rone had completed his training in firearms
identification with Philadelphia Police Department and became Court qualified to
testify as an expert in the field in Pennsylvania. 7 While at Philadelphia Police
Department, Mr. Rone eventually graduated to instructing firearms identification to
new examiners in the department using the Association of Firearm Toolmark
Examiners (“AFTE”) training program, which the Philadelphia Police Department
follows.8 Mr. Rone retired from the Philadelphia Police Department in 2007.9
Mr. Rone has testified as an expert in the field of Firearm and Toolmark
Identification numerous times and in multiple jurisdictions, including Delaware,
4
Id. at 10-15. Mr. Rone noted that there is not always a positive identification.
5
See Id. at 16-20.
6
Id.
7
Id. at 20-21.
8
Id. at 23-24.
9
Id. at 22.
3
over the course of his approximately 22 years of work in the field. 10 Throughout
the course of his career, Mr. Rone has also been a member of several firearm and
toolmark identification related groups such as, Association of Firearm Toolmark
Examiners (“AFTE”), International Ammunition Association and International
Wound Ballistic Association.11 In addition to his experience at Philadelphia Police
Department, Mr. Rone has also done contract work and given lectures for other
jurisdictions. Mr. Rone both attends and has presented at annual AFTE
conferences 12 and has instructed on firearms identification for the ATF’s national
academy, Philadelphia College of Osteopathic Medicine and the Delaware State
Police.13 Over the years, Mr. Rone has also continued to take classes in firearms
and toolmark identification offered by AFTE, the ATF and the FBI. 14
Mr. Rone was certified by AFTE in firearms identification from 2007 to
2012, when his certification lapsed. 15 Mr. Rone was certified by AFTE in
toolmark identification in 2014. Mr. Rone explained that firearms and toolmark
10
See Id. at 22; Carl Rone’s CV.
11
Daubert Hearing Transcript at 25-26.
12
Validation studies are often among to material presented at AFTE conferences. Moreover, kits
that accompany the study are often given out, so that examiners may conduct the study at their
own laboratories after the conference. Id. at 30.
13
Id. at 25-27.
14
Id. at 29.
15
Mr. Rone’s AFTE certification in firearms identification will be renewed, pending his
submission of certain criteria. Id. at 31-33.
4
identification are very similar, and that a firearm would be the “tool” being
examined under toolmark identification. 16
Mr. Rone became a firearms and toolmark examiner for the Delaware State
Police Forensic Firearms Services Unit (“Unit”) in November of 2006.17 The Unit
consists of Mr. Rone, a Delaware State Trooper (the “Trooper”) and Robert Freese
(“Freese”), a contract examiner. 18 At the Daubert hearing, Mr. Rone testified as to
the procedure and methodology employed by the Delaware State Police forensic
laboratory. The Trooper receives the ballistics evidence from the agency that
collected it, which includes firearms, bullets and cartridge casings, at intake. He
then logs the evidence into the lab’s computer system and places it into the
evidence vault. When the Trooper logs the evidence into the computer system, he
also enters it into the NIBIN system. 19
The NIBIN system is a computer-based imaging system that assigns an
algorithm to each image it sees based on a topographical view. Ballistics evidence
is placed inside the system where it takes a photograph (i.e. digital image). It
assigns values to aspects of each image by looking down at the item and producing
a list of possibilities based on what it sees. The NIBIN system then searches its
database for images that the lab has already entered into the system, or may also be
16
Id. at 33-34.
17
Id. at 27.
18
Id. at 5.
19
Id. at 6.
5
sent out to different regions for comparison to their systems. 20 Based on
parameters entered by the examiner, the system limits and sends back a list of
possible matches found, if any. Those images from the list are then evaluated on
the screen to determine what items of evidence need to be physically examined.
From that list, Mr. Rone conducts physical examination of the necessary items. 21
Following the AFTE manual specified to the Unit, Mr. Rone physically
examined the ballistics evidence in this case, which included a 9mm and 40-caliber
handgun, as well as numerous cartridge casings of both calibers, from the crime
scenes. Mr. Rone separated the cartridge casings into two groups by caliber, and
began his examination with the 9mm casings. He compared the standard 9mm 22 to
the remaining 9mm cartridge casings. The casings were compared to the standard
until a set of the same cartridge casings was matched; this process was then
repeated with the remaining casings until all 9mm casings sets were identified.
This process was also used to identify the sets for the 40-caliber cartridge casings.
Mr. Rone identified three groups of 9mm casings and one group of 40-caliber
casings. 23
20
Id. at 7. Mr. Rone testified that these comparison regions generally include Pennsylvania, New
Jersey, Delaware and Maryland, since they are states closest to each other.
21
Id.
22
Mr. Rone used the first 9mm cartridge casing from the group as his standard to determine the
number of 9mm firearms that were involved.
23
Id. at 38-46.
6
Next, Mr. Rone compared those groups of cartridge casings to the two
firearms collected from the crime scene to pattern match 24 cartridge casings from
the groups to either firearm. 25 To do this, Mr. Rone produced a pure bullet
specimen (“standard”) for each firearm by test-firing into a water tank. Under the
microscope, he examined the standard cartridge casing from each firearm to the
casings in each group to determine if there were any matches. Mr. Rone concluded
that six of the 40-caliber cartridge casings matched the 40-caliber Sig Sauer in this
case and that 13 out of the 32 9mm cartridge casings matched the 9mm Taurus in
the case. Mr. Rone’s microscopic examinations in this case were peer review by
Freese.26
Parties’ Contentions
Defendant contends that Mr. Rone’s forensic analysis is inadmissible under
D.R.E. 401, 402, 703, and 702 because firearm and toolmark identification
methodology fails to satisfy reliability under Daubert v. Merrell Dow
Pharmaceuticals 27 and Kumho Tire Co. v. Carmichael.28 Defendant also contends
that the forensic analysis should be excluded under Daubert and D.R.E. 403, 702
24
Pattern matching is the comparison of the patterns on bullets or cartridge casings to see if the
patterns fall together.
25
One is a 9mm Taurus and the other is a 40-caliber Sig Sauer, both semiautomatic pistols.
26
Daubert Hearing Transcript at 46-48. The Unit’s standard policy since Mr. Rone started in
2007 is that approximately 10% of Mr. Rone’s microscopic examinations are subjected to peer
review. Mr. Rone estimates that that percentage has increased slightly since January of 2014
with Freese becoming a contract examiner for the Unit.
27
509 U.S. 579 (1993).
28
526 U.S. 137 (1999).
7
and 703 because the Delaware State Police Firearm and Toolmark Identification
Laboratory fails to use a testing method recognized by an authorized organization,
is not accredited by a recognized scientific accreditation agency and no outside
recognized accreditation body or authority has determined it to be a reliable lab
using recognized methods and protocols. Finally, Defendant contends that Mr.
Rone’s testimony should be excluded under D.R.E. 702 and 703 because his
qualifications as a firearms and toolmark examiner do not satisfy the requirements
under Daubert. Defendant argues that Mr. Rone’s qualifications do not satisfy the
Daubert requirements because Mr. Rone’s post-secondary education is unrelated to
firearms and toolmark identification, his formal training in firearms and toolmark
identification is insufficient, and he is not certified as a firearms examiner.
The State presented Mr. Rone to testify in the trial of Jeffrey Phillips, in an
expert capacity, concerning his forensic analysis of the ballistics evidence collected
in connection with this case. The State contends that Mr. Rone’s training and
experience exceeds that which is required to qualify him as an expert in the field of
firearms and toolmark identification. The State also contends that the evidence to
which Mr. Rone would testify about is relevant, Mr. Rone’s opinion is within his
field of expertise and his testimony will assist the trier of fact to understand
evidence or determine a fact in issue. The State further contends that the process
Mr. Rone used to make the comparisons is the same one reasonably relied upon by
8
experts in this particular field. Finally, the State contends that Mr. Rone’s
testimony will not create unfair prejudice or confuse or mislead the jury because
his testimony is limited to the matching of the casings at the scene with the firearm
located on the Delaware Memorial Bridge.
Discussion
I. CARL RONE IS QUALIFIED AS AN EXPERT IN FIREARM AND
TOOLMARK IDENTIFICATION UNDER D.R.E. 702
Rule 702 of the Delaware Rules of Evidence governs the admissibility of
expert testimony. It states:
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, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.29
The trial judge’s role is merely to determine “whether the proponent of the
evidence has demonstrated that scientific conclusions have been generated using
sound and reliable approaches.”30 Proponents of expert testimony must
“demonstrate by a preponderance of the evidence that their opinions are reliable.” 31
The court’s function under Daubert “is not intended to supplant the adversarial
29
D.R.E. 702.
30
State v. McMullen, 900 A.2d 103, 114 (Del. Super. 2006).
31
Id. (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994)).
9
system or the role of the jury.” 32 So long as the basis of the expert’s testimony
satisfies Rule 702, “vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate
means of attacking … admissible evidence.” 33
The Court finds that Carl Mr. Rone is qualified as an expert in firearms and
toolmark identification under the requirements of D.R.E. 702. As discussed above,
Rule 702 permits one to be qualified as an expert through various means, including
but not limited to, training, experience and study of the literature relating to a
field.34 Foremost, Mr. Rone has been admitted as an expert in the field of firearms
and toolmark identification in several trials in this State, as well as many trials in
other jurisdictions. 35 Mr. Rone has also been a regular member of the AFTE since
32
Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999).
33
Daubert, 509 U.S. at 596.
34
United States v. Otero, 849 F. Supp. 2d 425, 436 (D.N.J. 2012).
35
At trial, the State objected to defense counsel’s cross examination of Mr. Rone regarding an
instance where a Virginia District Court declined to admit Mr. Rone as an expert. In U.S. v.
Fultz, the Virginia District Court declined to admit Mr. Rone to testify as an expert in the field of
crime scene reconstruction. 2014 WL 1870785, at *8 (E.D. Va. May 9, 2014) (holding that “after
accepting Rone's qualifications [in firearms, ballistics, and shooting scene reconstruction], and
reviewing the expert report, defense counsel's summary of his report, and proffered expert
opinion testimony…, the Court found that Rone provided insufficient information on the
methodology he used to reach his opinion on the location of the Bushmaster shooter as well as
insufficient evidence and no degree of the probability of his findings to support the reliability of
his opinion…. Accordingly, the Court excluded that portion of Rone's opinion testimony which
related to the position of the Bushmaster shooter….”).
Despite the fact that the State had cited this case in its brief submitted before the Daubert
hearing held for Mr. Rone in this case, defense counsel failed to address the issue at the hearing.
See State’s Response to Defendant’s Motion in Limine to Exclude Testimony of Carl Rone, at 11
n. 48. Moreover, at sidebar on the State’s objection, both parties failed to recognize that the case
had been cited before the hearing. In fact, when the Court questioned the parties about this
oversight, defense counsel asserted that they had only just found the case. See Oct. 31, 2014 Trial
10
1997. 36 Moreover, Mr. Rone passed the AFTE written portion of the Certification
Examination in Firearms Identification in 2001. 37 He also passed the AFTE
written portion of the Certification Examination in Toolmark Identification in
2003. 38 Mr. Rone was certified in Firearms Evidence Examination and
Identification from 2007-2012 and was certified in Toolmarks Evidence
Examination and Identification in 2014. 39 Furthermore, Mr. Rone has over 20
years of experience in the field.40
It is based on this extensive experience and training that the Court finds that
Carl Rone is qualified to testify as an expert in the field of firearms and toolmark
identification. Importantly, any issue Defendant takes with Mr. Rone’s credibility
as an expert in this field should be handled by “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof
Transcript at 56, 70. The Court sustained the State’s objection to the use of the Virginia District
Court case to impeach Mr. Rone’s credibility as a firearms and toolmark identification expert
because the Virginia case was not relevant to Mr. Rone’s expert testimony in this case.
Furthermore, introduction of the Virginia case for the purpose of challenging Mr. Rone’s
qualification as an expert in firearms and toolmark identification would be confusing to the jury
because the Virginia District Court’s decision was limited to the field of crime scene
reconstruction only. At no time in this case did Mr. Rone testify regarding crime scene
reconstruction; his testimony was limited to firearms and toolmark identification. Accordingly,
defense counsel’s use of another jurisdiction’s decision not to admit Mr. Rone to testify as an
expert in an entirely unrelated field was not relevant to Mr. Rone’s testimony in this case and
would have unduly confused the jury. However, the Court did note that the Virginia case may be
relevant for the narrow purpose of impeachment.
36
Carl Rone’s CV.
37
Def. Mot. in Limine to Exclude the Testimony of Carl Rone and Mot. for Daubert Hearing at
Ex. 9.
38
Id.
39
Id.; Carl Rone’s CV.
40
See Carl Rone’s CV.
11
[which] are the traditional and appropriate means of attacking…admissible
evidence.”41
II. THE AFTE FIREARMS AND TOOLMARK METHODOLOGY IS
RELIABLE UNDER DAUBERT
All that is in controversy when a Daubert challenge is made is whether an
expert’s conclusions are reliable. The test of reliability remains flexible. 42
Reliability under Daubert means that the conclusions are a product of an
intellectually rigorous application of knowledge and experience appropriate to the
field of expertise.43 In Daubert, the United States Supreme Court held that
scientific testimony, if questioned, must be subjected to a reliability assessment
and found to be sound. Daubert sets forth five factors that are suggested for trial
courts to rely upon when evaluating the reliability of proposed expert testimony,
including:
(1) whether a theory or technique has been tested;
(2) whether it has been subjected to peer review and publication;
(3) whether a technique had a high known or potential rate of error;
(4) whether there are standards controlling its operation; and
(5) whether the theory or technique enjoys general acceptance within
a relevant scientific community. 44
41
Daubert, 509 U.S. at 596.
42
Kumho Tire, 526 U.S. at 141.
43
Rodriguez v. State, 30 A.3d 764, 769 (Del. 2011).
44
Daubert, 509 U.S. at 509-94; Kumho Tire, 526 U.S. at 145, 149-50.
12
These factors are not to be used as a “definitive checklist or test” where they may
not be pertinent to the facts of a given case, the nature of an expert’s particular
expertise or the subject of his or her testimony. 45
The Court in United States v. Otero 46 is one of the few courts in the Third
Circuit to address a Daubert motion focusing on firearms and toolmark
identification. The Otero Court analyzes the methodology employed by the AFTE
theory under Daubert standards. This Court reproduces that analysis here as a
basis for the reliability of the methodology for the AFTE firearms and toolmark
identification, generally.
1. Whether the Theory Can be or Has Been Tested
The AFTE is the leading international organization for firearms and
toolmark examiners. The AFTE theory of toolmark comparison permits an
examiner to conclude that two bullets or two cartridges are of common origin (i.e.
fired from the same gun) when the microscopic surface contours of their toolmarks
are in “sufficient agreement.” The “sufficient agreement” standard under the
AFTE theory is defined as:
This sufficient agreement is related to the significant duplication of
random toolmarks as evidenced by a pattern or combination of
patterns of surface contours. Significance is determined by the
comparative examination of two or more sets of surface contour
patterns comprised of individual peaks, ridges and furrows.
45
Bowen v. E.I. DuPont de Nemours & Co. Inc., 906 A.2d 787, 794-95 (Del. 2006).
46
849 F. Supp. 2d 425, aff’d, 557 Fed. Appx. 146 (3d Cir. 2014).
13
Specifically, the relative height or depth, width, curvature, and spatial
relationship of the individual peaks, ridges and furrows within one set
of surface contours are defined and compared to the corresponding
features in the second set of surface contours. Agreement is
significant when it exceeds the best agreement demonstrated between
toolmarks known to have been produced by different tools and is
consistent with agreement demonstrated by toolmarks known to have
been produced by the same tool. The statement that “sufficient
agreement” exists between two toolmarks means that the agreement is
of a quantity and quality that the likelihood another tool could have
made the mark is so remote as to be considered a practical
impossibility. 47
The theory acknowledges that there is a subjective component to the determination
of “sufficient agreement,” which must necessarily be based on the examiner’s
training and experience. 48
This Court finds that the AFTE theory is testable and has been tested.
Studies have been conducted to test the validity of the AFTE theory. The literature
shows that many studies demonstrating the uniqueness and reproducibility of
firearms and toolmark identification have been conducted.49
Pursuant to the AFTE theory of identification, when an examiner
concludes that a particular, individual firearm's toolmarks have
produced the markings on an examined bullet or shell, he or she “is
47
Id. at 431 (quoting Theory of Identification, Range of Striae Comparison Reports and Modified
Glossary Definitions – An AFTE Criteria for Identification Committee Report, AFTE Journal,
Vol. 24, No. 3, 1992, at 337).
48
Id. at 432.
49
Id. See, e.g., Ronald G. Nichols, Firearms and Toolmark Identification Criteria: A Review of
the Literature, J. Forensic Sci., Vol. 42, No. 3, 1997, at 466; Ronald G. Nichols, Firearm and
Toolmark Identification Criteria: A Review of the Literature, Part II, J. Forensic Sci., Vol. 48,
No. 2, 2003, at 1; Richard Grzybowski, et al., Firearm/Toolmark Identification: Passing the
Reliability Test Under Federal and State Evidentiary Standards, AFTE Journal, Vol. 35, No. 2,
Spring 2003, at 213.
14
basing this opinion on the fact that the nature of toolmark agreement,
whether impressed or striated, exceeds the best known non-matching
agreement that has ever been personally observed, seen in the
literature, or discussed with other examiners.” Grzybowski at 213.
Though the methodology of comparison and the AFTE “sufficient
agreement” standard inherently involves the subjectivity of the
examiner's judgment as to matching toolmarks, the AFTE theory is
testable on the basis of achieving consistent and accurate results. Id.
The literature in the field of firearms and toolmark identification
documents that the theory has been repeatedly tested. Industry
standard, moreover, dictates that one examiner's findings must be
reviewed by another examiner to confirm, or possibly disagree, with
those findings…. [T]his process is known as “peer review.” 50
This Court finds that the literature, validity studies and peer review process
of confirming identifications demonstrate that the AFTE firearms and toolmark
identification theory is testable and has been tested.
2. Peer Review and Publication of AFTE Theory
The Otero Court evaluated the peer review and publication factor as applied
to the AFTE theory as follows:
AFTE theory is subject to peer review through submission to and
publication by the AFTE Journal of validation studies which test the
theory. The AFTE Journal publishes articles, studies and reports
concerning firearm and toolmark evidence. It has a formal process for
the submission of articles, including “specific instructions for writing
and submitting manuscripts, assignment of manuscripts to other
experts within the scientific community for a technical review,
returning of manuscripts to authors for clarification or re-write, and a
final review by the Editorial Committee.” Grzybowski, at 220. There
is also a formal post-publication peer review process, allowing AFTE
members and any other interested individuals to comment on
previously published articles. The validation studies discussed above
50
Otero, 849 F. Supp. 2d at 433.
15
in Section 1, which the Government has submitted to demonstrate the
testability and viability of AFTE identification theory, were published
in the AFTE Journal.51
Following the Otero Court’s analysis, this Court finds that the AFTE theory
satisfies the peer review and publication factor under Daubert.
3. Known or Potential Rate of Error
This Court also adopts the conclusions of the Otero Court that the AFTE
theory satisfies the known or potential rate of error factor under Daubert. The
Otero Court’s analysis of the known or potential rate of error factor is as follows:
Commenting on other researchers' analyses of data supplied by the
Collaborative Testing Service (“CTS”) on international proficiency
testing in the firearm and toolmark identification discipline,
Grzybowski's 2003 AFTE Journal article summarized error rate
calculations derived from the CTS proficiency testing results. He
reported that CTS data for the period 1978 to 1997 (firearms) and
1981 to 1997 (toolmarks) demonstrated that false-identification error
rates were 0.9% for firearms and 1.5% for toolmarks, and for the
period 1998 to 2002, were 1.0% for firearms and 1.2% for toolmarks.
Grzybowski at 217. These percentages, he noted, do not include false
eliminations or an examiner's determination of “inconclusive.”
Grzybowski's article also points out that there are other limitations to
using the proficiency testing data to calculate an error rate, such as the
inherent motivation in such a test for the examiner, whose proficiency
is being evaluated, to tend toward conservative results and the lack of
peer review or other quality control measure applied to such
examinations.
The Court nevertheless finds that, while a definitive error rate has not
been calculated, the information derived from the proficiency testing
is indicative of a low error rate. The Court further finds that the error
rate for false positives, as reported by the Grzybowski article, is
51
Id.
16
pertinent to its assessment of the expert testimony in this case, as the
proffered testimony would make such a positive identification of the
guns recovered from Defendants as the origin of the bullet and shells
recovered from the crime scene. Indeed, for purposes of utilizing
toolmark identification in legal proceedings, the critical validation
analysis has to be the extent to which false positives occur. Virtually
by definition, any situation in which the examiner concludes that the
comparison is inconclusive means that the examination will have no
probative value and will thus not be considered by the trier of fact. 52
The studies presented in Otero showed that the error rates for false identifications
made by trained examiners are low, specifically around 1 to 2 percent. 53
Accordingly, this Court finds that the AFTE theory satisfies the known or potential
rate of error factor under Daubert.
4. Existence and Maintenance Standards Controlling
Technician’s Operation
In Otero, the Court analyzed the existence and maintenance of standards
controlling the technique’s operation factor applied to the AFTE theory as follows:
As discussed above, the AFTE standard of “sufficient agreement” is
the established standard controlling firearms and toolmark
identification. The New Jersey State Police (“NJSP”) Laboratory,
under the purview of which Deady conducted the examination of the
evidence involved in this case, maintains a Firearms and Toolmarks
Procedures Manual (the “Manual”) which follows the AFTE standard.
It provides that “[a] sufficient correspondence of individual
characteristics will lead the examiner to conclude that both items
(evidence and tests) originated from the same source (Positive).” The
Manual details procedures for the analysis of evidence bullets and
shells for comparison with test specimens utilizing a comparison
microscope, which “allows the examiner to place the evidence and a
52
Id. at 433-34.
53
Id. at 434.
17
test standard simultaneously on a microscope for comparison
purposes.” Among other steps it outlines, the Manual requires the
examiner to compare test-fired components against each other first
under the comparison microscope to establish reproducibility of class
and individual characteristics. The examiner may then proceed to
compare the discharged evidence in question to a test fired shot
known to have originated from a particular firearm. The Manual
requires that the entire evidence surface be considered. The Manual
also provides for a peer review of each examination to be conducted
by another firearms examiner to ensure the integrity of the
examination process and accurate results. 54
Adopting the reasoning of the Otero Court, this Court finds that the AFTE
theory satisfies the existence and maintenance of standards controlling the
technique’s operation factor under Daubert.
5. General Acceptance of the Theory
The court in Otero held that the AFTE theory is generally accepted among
professionals in the field of firearm and toolmark identification.
Courts have observed that the AFTE theory of firearms and toolmark
identification is widely accepted in the forensic community and,
specifically, in the community of firearm and toolmark examiners. See
United States v. Diaz, No. CR 05–167 WHA, 2007 WL 485967, at
*11 (N.D.Cal. Feb. 12, 2007). Even courts which have criticized the
bases and standards of toolmark identification have nevertheless
concluded that AFTE theory and its identification methodology is
widely accepted among examiners as reliable and have held the expert
identification evidence to be admissible, albeit with limitations.
United States v. Taylor, 663 F. Supp. 2d 1170, 1178 (D.N.M. 2009);
United States v. Monteiro, 407 F. Supp. 2d 351, 372 (D.Mass. 2006);
United States v. Green, 405 F. Supp. 2d 104, 122-24 (D.Mass. 2005).
54
Id. at 434-35. (Citations omitted).
18
Deady testified that he followed all NJSP laboratory procedures in
conducting the subject examinations. He documented his
observations and findings with detailed notes and explanations in his
report, which not only gave his conclusions as to a positive match but
also stated the reasons for that conclusion. For example, the report
states that Deady's comparison of the test 9 mm shells he fired with
the evidence 9 mm shell results in a positive identification of the
origin weapon because he found pattern matching according to the
CMS method as to breechface marks, firing pin drag and firing pin
aperture shearing and a match as to the firing pin impression (where
CMS is not applicable). Deady also took a number of photographs,
known as photomicrographs, of the side-by-side microscopic images
of the evidence and test specimens as compared for agreement
regarding various types of toolmarks, such as striations made by
impact of the cartridge against the breech face of the 9 mm's firing
chamber and impressions left by the firing pin. Additionally, Deady's
report, and his testimony, reflect that the peer review procedure was
followed in his examination. 55
Based on this reasoning, this Court finds that the AFTE theory is generally
accepted among professional examiners as a reliable method of firearms and
toolmark identification.
Adopting the Otero Court’s analysis, this Court finds that the AFTE
methodology for firearms and toolmark identification is reliable under the Daubert
requirements. As discussed in each section above, the AFTE methodology can be
and has been tested, and it has been subjected to peer review and publication. The
AFTE methodology also has a low error rate of approximately – 1 to 2 percent –
for false identifications when employed by trained examiners. Moreover, the
AFTE provides an extensive manual that dictates the standards for examiners to
55
Id. at 435.
19
adhere to while conducting their examinations. Finally, the AFTE methodology is
generally accepted among professional examiners as a reliable method of firearms
and toolmark identification. Importantly, Defendant even concedes that the AFTE
methodology is reliable.56 Accordingly, the Court finds that the AFTE
methodology for firearms and toolmark identification is reliable under Daubert.
III. CARL RONE’S EXPERT TESTIMONY IS ADMISSIBLE
The trial court must determine the admissibility of an expert witness using a
five factor test:
(a) The expert witness is qualified (D.R.E. 702);
(b) The evidence is otherwise admissible, relevant, and reliable
(D.R.E. 401 and 402);
(c) The bases for the opinion are those reasonably relied upon by
experts in the field (D.R.E. 703);
(d) The specialized knowledge being offered will assist the trier of
fact to understand the evidence or determine a fact in issue (D.R.E.
702); and
(e) The evidence does not create unfair prejudice, confuse the issues,
or mislead the jury (D.R.E. 403).57
Thus, the admissibility of expert testimony is based first on whether the witness is
qualified as an expert under D.R.E. 702 and whether the methodology employed
by the expert was reliable under Daubert. If those two thresholds are met, the
court must still determine whether the proposed expert testimony is otherwise
56
“These statements make it clear that Mr. Rone is using a methodology that differs from the
more standardized and presumably validated method recommended by the AFTE, his
professional organization.” Def. Mot. in Limine to Exclude the Testimony of Carl Rone and Mot.
for Daubert Hearing. (emphasis added).
57
Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 842-43 (Del. Super. 2000).
20
admissible and relevant, whether it will assist the trier of fact to determine an issue,
and whether it would not create unfair prejudice.
As discussed above, the Court has found that Mr. Rone is qualified to testify
as a firearms and toolmark identification expert under D.R.E. 702. The Court has
also found that the AFTE firearms and toolmark identification methodology is
reliable under Daubert. The issues left to be resolved to determine whether Mr.
Rone’s expert testimony is admissible in this case are whether: (1) Mr. Rone
employed the AFTE methodology in his examination of the ballistics evidence in
this case,58 (2) the testimony is otherwise admissible, relevant,59 and will assist the
trier of fact to understand the evidence or determine a fact in issue, 60 and (3) the
evidence would create unfair prejudice, confuse the issues, or mislead the jury. 61
1. Mr. Rone employed the AFTE methodology in his examination of
the ballistics evidence.
The Court does not agree with defense’s assertion that Mr. Rone’s
“statements make it clear that Mr. Rone is using a methodology that differs from
the more standardized and presumably validated method recommended by the
AFTE, his professional organization.” 62 Mr. Rone’s statements during previous
trials in which he has testified that the AFTE manual does not need to be followed
58
D.R.E. 703.
59
D.R.E. 401.
60
D.R.E. 702.
61
D.R.E. 403.
62
Def. Mot. in Limine to Exclude the Testimony of Carl Rone and Mot. for Daubert Hearing.
21
word for word and that it can be used as it best suits the examiner 63 do not prove
that Mr. Rone deviates from the AFTE manual generally, or more importantly, that
Mr. Rone deviated from the AFTE manual in this case.
Under D.R.E. 702 the proffered testimony of an expert must provide
relevant and reliable principles and methodology. This rule does not require that
the conclusions derived from those principles and methods be scientifically valid.
When the expert’s application of his principles and methods to the facts is
challenged, the Court must determine that the expert “has a reliable basis in the
knowledge and experience of [the relevant] discipline.”64 The Delaware Supreme
Court has previously held Mr. Rone’s expert testimony in the field of firearms and
toolmark identification to be reliable because Mr. Rone explained at trial the
principles and methods that he employed in his examination, and applied those
principles and methods to the facts. 65 As the Supreme Court stated, “we require
the principles and methods – not the conclusions to be scientifically valid.” 66
Moreover, the Supreme Court reasoned that the defendant was able to cross-
examine Mr. Rone on those principles and his methodology. 67
63
Id.
64
McNally v. State, 980 A.2d 364, 370 (2009) (citations omitted).
65
Id.
66
Id.
67
Id.
22
At the Daubert hearing, Mr. Rone clarified his statements referenced by
defense counsel from trials that Mr. Rone has previously testified at.68 Mr. Rone
explained that the deviation from the AFTE manual suggested by those statements
is limited to the application of updated procedures and replacement of outdated
equipment that are implemented in the field.69 As Mr. Rone noted, the last
published version of the AFTE manual is from approximately 1998. 70 Therefore,
examiners in the field supplement the AFTE manual with updated methods and
equipment as technology and testing procedures evolve.71 Moreover, at the
Daubert hearing Mr. Rone outlined the methods he used in the examination of the
ballistics evidence in this case.72 Furthermore, Mr. Rone testified that these
methods follow those set out in the AFTE manual.
The Court is satisfied by Mr. Rone’s testimony at the Daubert hearing that
Mr. Rone employed the AFTE methodology, including any updated procedures
and equipment generally accepted in the field, in his examination of the ballistics
evidence in this case. 73 Accordingly, the Court finds that Mr. Rone’s conclusions
in this case are based on the application of reliable principles and methods in the
field of firearms and toolmark identification.
68
Daubert Hearing Transcript at 39-40.
69
Id. at 40.
70
Id. at 41.
71
Id. at 41.
72
See Otero, 849 F. Supp. 2d at 435 (As discussed above, the examiner in Otero described the
lab’s procedures and those he followed in conducting his examination of the ballistics evidence.).
73
Id. at 42.
23
2. The evidence is otherwise admissible, relevant and will assist the
trier of fact to understand the evidence or determine a fact in
issue.
At the time of the Daubert hearing, the State was offering Mr. Rone’s
testimony at trial with regard to his examination and analysis of the ballistics
evidence collected from Eden Park and other crime scenes relevant to the case.
The defendants here were alleged to have been involved in the Eden Park
shootings, as well as other crime scenes encompassed in this case. In making its
determination on this factor, the Court found Mr. Rone’s testimony was relevant
because it would help explain the ballistics evidence introduced against the
defendants, which is direct evidence of the defendants’ involvement in the Eden
Park shooting on July 8, 2012. Therefore, Mr. Rone’s testimony would assist the
jury to determine a fact in issue.
3. The evidence will not create unfair prejudice, confuse the issues,
or mislead the jury.
In addition to the reasons discussed above, Mr. Rone’s testimony would be
limited to the analysis of the ballistics evidence collected at the Eden Park crime
scene and other at crime scenes related to this case. Therefore, Mr. Rone’s
testimony would not create unfair prejudice or confuse or mislead the jury.
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Conclusion
For the reasons set forth above, Defendant’s Motion in Limine to Exclude
Carl Rone’s Expert Testimony was DENIED.
IT IS SO ORDERED.
/s/Calvin L. Scott
Judge Calvin L. Scott, Jr.
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