Judges： Humphreys, Pressler
Filed Date： 7/22/1997
Status： Precedential
Modified Date： 11/11/2024
The opinion of the court was delivered by
This appeal raises novel questions respecting scientific expert testimony that matches bullets by their composition and, more particularly, the conditions precedent to the admissibility of that evidence and the instructions that must be given the jury to aid in its evaluation thereof.
Following a trial by jury, defendant Judel Noel was found guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1); possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and possession of a handgun with intent to use it unlawfully against another, N.J.S.A. 2C:39-4a. After the jury’s verdict was re
In challenging the judgment of conviction, defendant makes the following arguments:
I. THE TRIAL COURT’S REFUSAL TO CONDUCT AN INDIVIDUALIZED VOIR DIRE OF JURORS PARTICIPATING IN PREMATURE DISCUSSIONS OF THE CASE DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 9 OF THE NEW JERSEY CONSTITUTION.
II. THE ADMISSION OF THE TESTIMONY OF CHARLES A PETERS DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
III. THE TRIAL COURT’S INSTRUCTIONS ON REASONABLE DOUBT DIMINISHED THE STATE’S BURDEN OF PROOF IN VIOLATION OF THE DEFENDANT’S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATÍES CONSTITUTION AND ARTICLE 1 PARAGRAPHS 1, 9 AND 10 OF THE NEW JERSEY CONSTITUTION. (Not raised below)
IV. THE TRIAL COURT’S DENIAL OF THE DEFENDANT’S REQUEST TO CHARGE AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE VIOLATED THE DEFENDANT’S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1, 9 AND 10 OF THE NEW JERSEY CONSTITUTION.
We have carefully reviewed this record in the light of the applicable law and the arguments of counsel. We agree with
The victim of this senseless, brutal and tragic killing was a young man who was shot repeatedly on his front porch as he was returning to his home on Sanford Avenue in Newark in the early evening. There was no suggestion of any motive for the murder. No robbery was involved and there was no evidence at all suggesting any reason for this attack on the victim. According to the police testimony, on information received, neither the source nor content of which was disclosed, the police believed there might be a suspect at a house at 43 Silver Street, close to the intersection of Sanford Avenue and Silver Street. They went to that house in the early hours of the next morning and surrounded it with guns drawn. As they took up their positions, a bag of cocaine was thrown out of an upstairs window. The officers gained admission to the house and were given consent to search. The search took them eventually to the two-room attic, on whose landing they found another bag of cocaine containing some thirty vials. Four young people were sleeping in the attic rooms, among whom were Lamar Brown, who lived in the house, and his fifteen-year old girlfriend, Malika Williams, who frequently slept there. The four young people were taken to police headquarters for interrogation. Brown and Williams, in separate interviews, both said that they had witnessed the shooting and that defendant, with whom both were acquainted, was the gunman. Neither Williams nor Brown was ever charged with drug offenses.
Based on the information received from Brown and Williams, the police tracked down defendant and found him several hours later. He was asleep in the pre-parole halfway house in which he
Before we address the expert-testimony problems, we note that without that testimony, the State’s proofs consisted entirely of the two eyewitness identifications and defendant’s possession of nine-millimeter Speers bullets. There was no evidence linking defendant in any way with the victim prior to the shooting. With respect to the eyewitness identifications, we point out first that Brown had recanted, asserting at trial that he had identified defendant as the gunman at the police station both because he had been beaten by the police and had been threatened with drug charges. He testified that he had not even been in Newark on the day of the shooting but had been visiting a friend in another city. His prior inconsistent statement identifying defendant was admitted pursuant to N.J.R.E. 808(a)(1) following a hearing as mandated by State v. Gross, 121 N.J. 18, 577 A.2d 814 (1990).
Malika Williams, Brown’s girlfriend, testified that she had spent most of the day “hanging out” at a store at the corner of Sanford Avenue and Silver Street with a group of other young people, including her boyfriend Brown, whom she claimed to be a drug dealer operating at the corner. She had seen defendant in the area during the latter part of the afternoon, and, in fact, had gone into the house at 43 Silver Street to make two telephone calls for him at his request, reporting to him that there had been no answer. Not long after the second telephone call and after she
Thus, with respect to the eyewitnesses, both of whom were found in the house where a suspect was believed to be and both of whom were evidently involved with drugs, one recanted and the testimony of the other was contradicted by an apparently disinterested witness. We think it plain that without the expert bullet evidence, the State’s case, so heavily dependent on the prior inconsistent statement of Lamar Brown and the testimony of Williams, was a close one, and we further note that the jury was also obviously concerned since it had asked for a read-back of Williams’ testimony. Nor do we think that the evidence that defendant possessed bullets of the same calibre and manufacture as those used in the shooting tipped the scales overwhelmingly. It was surely a link, but in view of the ready availability of such bullets, hardly a conclusive one. In our view, the bullet match, without the expert testimony, had much the same effect as a suspect’s possession of a shoe of the same manufacture and wide distribution as one that had left an incriminating footprint. It is
We consider the expert testimony, to whose admission defendant objected, in this context. The State produced Charles A. Peters, a physical scientist employed for some twenty years by the F.B.I. in its material analysis unit. Peters is highly experienced in lead bullet analysis, which, as he explained to the jury, is now performed by a complex process called coupled plasma atomic emission spectroscopy (ICP analysis), a process whose theory and application he also explained to the jury in excruciating technical detail complete with charts. The import of his testimony was that lead bullets are made from an initial source of molten lead. The source is also referred to as a batch or a pouring. It was his opinion that there is variation in each batch of the presence and percentage of trace elements, including antimony, bismuth, silver, tin, copper, and arsenic, and it is highly improbable that any two batches could have the identical composition. Since his spectroscopic analysis of the nine-millimeter bullets found in defendant’s possession had the identical composition to those that killed the victim, the expert opined that the bullets had all come from the same batch. Peters also testified that in the bullet-manufacture process, the molten lead constituting the source is poured into seventy-pound blocks called billets and that the bullets are made out of the billets. It was his opinion that about 43,000 nine-millimeter bullets could be made from a single billet. Although he opined that a single batch would produce “many” billets, he was unable to quantify the number of identical billets any more specifically. It was, however, clear that at least hundreds of thousands of identical nine-millimeter bullets could be produced from the same batch. We further note that Peters expressly disavowed expertise in the manufacturing or marketing process, a disavowal no doubt accounting for his inability to quantify the number of billets produced by a batch. Nor was any testimony offered as to marketing, that is, whether, as seems likely, bullets from the same billets would be shipped together by the manufacturer and hence that there would be a concentration of such
Obviously, the prosecutor’s purpose in offering the testimony of Mr. Peters was to persuade the jury that the identical composition of the two sets of bullets significantly enhanced the strength of the link between defendant and the crime, that is, the link that had already been established by the identity of calibre and manufacture. That is clear from his summation, by which he attempted to impart scientific certainty to an implied conclusiveness of that link, bolstering that argument with a patently improper voucher for the credibility of his witness. This is what he said:
Finally Mr. Charles Peters of the FBI. I realized that was some sophisticated testimony and I know I personally had trouble following it. But I hope the conclusions are what came clear.
It is a very precise, scientific process that has been used for, I believe, he said about, about 30 years to test these bullet leads and his testimony is critical to this ease because it completely blows away the murder theory advanced by the defense that Malika and Lamar somehow engineered the murder.
Now do you think Mr. Peters was a liar? He’s not a cop. He’s not even an FBI agent. Challes Peters is a scientist and he looked like a scientist; didn’t he? You could almost see him in a white lab coat. You could see him in math class in a high school in the back. He had all the answers.
He’s a straight shooter. Did not testify beyond what the results of his examination were. Didn’t try to make it out to be more than what it was but it is something very critical in this ease.
Basically what he told us was that an examination of bullets, whenever a manufacturer is going to run a line of bullets, they order a source of lead from a lead smelter.
I asked him if that was like a “batch.” He said it was. The scientists like using the word “source.” I think it is easier to conceive of as a batch of lead and he said that there are millions, literally millions of these batches of lead out in circulation. And from those millions of batches of lead out in circulation, there are billions of bullets produced each year.
The key, I submit to you, is not what Mr. Roberts said it is, not about the number of billets produced — the number of bullets produced, the key is the number of sources of lead; the number of batches. Millions of batches; each one unique like a snowflake; like a fingerprint.
[Emphasis added.]
At that point defense counsel objected to the characterization. The judge’s response was “[mjetaphor; overruled,” and the prose
To begin with, we have no doubt that ICP analysis of lead bullets is a process adequately accepted by the scientific community and producing sufficiently reliable results to warrant the admission of expert testimony regarding the test and the test results. Although the issue has not been addressed in a reported opinion in this State, we reach that conclusion based on Peters’ testimony and the rationale employed in those jurisdictions so holding in respect of both ICP bullet analysis and predecessor, less sophisticated tests. See, e.g., Bryan v. Oklahoma, 935 P.2d 338 (Okla. Crim.App.1997); U.S. v. Davis, 103 F.3d 660 (8th Cir.1996), cert.
denied, — U.S. —, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997); State v. Freeman, 531 N.W.2d 190 (Minn.1995); State v. Strain, 885 P.2d 810 (Utah.Ct.App.1994); State v. Grube, 126 Idaho 377, 883 P.2d 1069 (1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1828, 131 L. Ed.2d 749 (1995); People v. Johnson, 114 Ill.2d 170, 102 Ill.Dec. 342, 499 N.E.2d 1355 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1618, 94 L. Ed.2d 802, reh’g denied, 481 U.S. 1060, 107 S.Ct. 2205, 95 L. Ed.2d 860 (1987); State v. Ware, 338 N.W.2d 707 (Iowa 1983); Jones v. State, 425 N.E.2d 128 (Ind.1981) (Hunter, J. dissenting). See also Erwin S. Barbre, Annotation, Admissibility of Evidence of Neutron Activation Analysis, 50 A.L.R.3d 117 (1973) and supplemental service.
Consequently, we 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 had the identical composition and came from the same batch of lead. We are
Our essential difficulty with the evidence is this. As we have noted, defendant’s possession of the same calibre bullets of the same manufacture as those that killed the victim constitutes a link between defendant and the crime, but of limited, or at least potentially limited, probative weight. Establishment of the fact that the two sets of bullets came from the same source of lead clearly enhances the probative weight that a jury would be inclined to accord to mere similarity of calibre and manufacture. The problem is in what we regard to have been an unwarranted enhancement of probative weight inherent in the expert’s testimony and the prosecutor’s comment thereon.
We think it plain that the enhancement value to be placed on the same-batch conclusion must be basically a statistical probability exercise, that is, an assessment by the trier of fact of how much more likely it is that both sets of bullets were defendant’s because they not only matched in calibre and manufacture but also in composition. That assessment must necessarily depend on how many nine-millimeter bullets could have been produced from a single batch, what the likelihood is that those same bullets wound up for sale in the same geographical area, and what percentage of nine-millimeter bullets marketed in the Newark area came from Speers. Obviously, the strength of the link created by identical composition is a factor of how many bullets of identical composition were simultaneously available for sale in the Newark area, and, just as obviously, the statistical probability of defendant having possessed both sets of bullets declines as the number of identical bullets increases.
The critical significance of affording the jury a statistical basis upon which to evaluate inconclusive scientific evidence has been recognized by at least one scholar. Thus, as explained by Professor Margaret A. Berger in Procedural Paradigms For Applying the Daubert Test, 78 Minn. L.Rev. 1345,1356-1358 (1994):
Prior to Daubert [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct 2786, 125 L. Ed.2d 469 (1993) ], courts admitted scientific evidence without noticing that, in some instances, the probative value of the evidence depends on background statistical information. If, for example, the samples of tape to which a defendant had access at his place of work match samples of tape used to manufacture a bomb sent through the mails from an unknown location, the probative value of that evidence is virtually non-existent if thousands of identical rolls of tape were distributed throughout the world. The crucial scientific inquiry in these cases is not only whether the technique is capable of producing matches, but also the probability that other matches exist.
It is true of course that when a test can reliably match two samples, such as samples of a defendant’s blood, hair, drugs, or bullets, with samples taken at the crime scene, the resulting evidence passes the basic Rule 401 relevancy test. A match does have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable ... than it would be without the evidence.” We allow eyewitnesses to testify that the person fleeing the scene wore a yellow jacket and permit proof that a defendant owned a yellow jacket without establishing the background rate of yellow jackets in the community. Jurors understand, however, that others than the accused own yellow jackets. When experts testify about samples matching in every respect, the jurors may be oblivious to the probability concerns if no background rate is offered, or may be unduly prejudiced or confused if the probability of a match is confused with the probability of guilt, or if a background rate is offered that does not have an adequate scientific foundation.
[Footnotes omitted.]
In sum, the consequence of Peters’ expertise in bullet lead composition but his lack of expertise in bullet manufacturing and marketing deprived the jury of a fair basis on which to evaluate
The lack of certainty in Agent Riley’s ultimate conclusion is further emphasized by his testimony that as many as 100,000 bullets are produced from the same batch of lead, that 200 boxes of bullets of similar composition would in turn result, and that all retailers in a particular geographic area might consequently market bullets of similar composition. Furthermore, Agent Riley stated that “there are other leads that are going to be manufactured some place along the way that can be very close to this composition, if not the same.” In stating that the bullets “could have come” from the same source, he offered little more than an educated guess ____
See also, directly addressing the type of bullet-match scientific evidence here involved, Andre A. Moenssens, et al., Scientific Evidence In Criminal Cases, 541 (3d Ed.1986) noting:
that while courts have admitted neutron activation analysis, to match bullets and to link the accused to a crime involving the use of a firearm, “the number of bullets manufactured with similar elemental characteristics by the same manufacturer may be so numerous as to make the likelihood of the accused’s link to the evidence bullet statistically tenuous.”
[Berger, supra, at 1357 n. 71.]
The New Jersey Supreme Court, in State v. Spann, 130 N.J. 484, 617 A.2d 247 (1993), has addressed the problem of expert opinion, whose significance, as here, is necessarily affected by variables that are not explicated. The issue in Spann involved bloodtesting to establish paternity. As the Court there noted, traditionally available modes of bloodtesting were sufficient to exclude the conclusion of paternity but not to prove paternity. But although only evidence of exclusion was admissible in a civil action to establish paternity, non-exclusion evidence was admissible in a criminal trial despite its light probative weight, because, as the Court explained, even though such evidence was “insignificantly probative,” it 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.” Id. at 490, 617 A.2d 247. In Spann, the expert, using HLA (human leukocyte antigen) testing, concluded that based on Bayes’ Theorem, a mathematical probability formula, the probability of defendant’s paternity was 96.55%. Employment of that formula was predicated
We appreciate that Spann dealt with probability testimony expressed in percentages and that the expert testimony here did not quantify the probability of the ultimate conclusion, namely, that defendant had possessed both sets of bullets. But we think the principle is the same, and that principle, as we understand it, is that when the probative significance of expert testimony is dependent on statistical probabilities and the testimony is likely to be misleading out of the context of the relevant variables determining the statistical probabilities, the jury must be given sufficient guidance, either by additional foundation testimony or by the court’s instruction, to be able to understand and assess the true import of the testimony. This necessity is obviously further compelled by the well-recognized phenomenon, as stated by Justice Hunter in his Jones dissent, that “extensive and impressive credentials such as those revealed here, together with the testimony of a sophisticated technological nature far beyond the average layman’s understanding, may impress a jury and influence inordinately the weight which is attached to the expert’s testimony.” 425 N.E.2d at 137. And when that expert is an F.B.I. agent, inappropriately vouched for by the prosecutor, that eventuality is exaggerated.
In our view, the expert testimony here had a clear capacity to confuse the jury and mislead it into ascribing significantly more probative weight to the identical-composition expert opinion than it warranted. This problem could have been avoided by requiring the State to submit foundation evidence of the nature we have suggested and by instructions from the court explaining to the jury the inherent probative limitations of the expert opinion. Nor would we exclude the necessity of a hearing-under N.J.R.E. 403 in the event no curative foundation evidence were proffered for the
Finally, Rule 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury____” Judge Weinstein has explained: “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.” Weinstein, 138 F.R.D., at 632.
See also Berger, supra, at 1358.
Beyond the inherent problems with the expert testimony itself, we are also persuaded that the prosecutor’s “snowflake or fingerprint” comment during closing must necessarily have further misled the jury in its task of assessing the probative value of Peters’ identical-composition testimony. We recognize that to some extent the comment did not actually mischaracterize the testimony that the batches were most likely unique, although there was no real evidential basis for the “millions of batches” comment. The point, of course, is that the relationship of batches to billets to bullets was already confusing enough and insufficiently developed by the expert testimony. Thus, the clear import of the fingerprint and snowflake comparison was to suggest to the jury a scientific certainty in the inference that defendant had possessed both sets of bullets and to suggest to the jury a conclusiveness of that inference that clearly was not warranted. We conclude, therefore, that no matter how indulgently we might view the problems with the expert testimony itself, the prosecutor’s summation, uncorrected by the court on defendant’s objection, injected a high degree of prejudice into this trial.
We recognize that to some extent, the defense could have dealt with some of the problems we have identified by way of cross-examination and summation. But it had no opportunity to correct the prosecutor’s summation. And the fact remains that the ex
We have carefully considered defendant’s remaining contentions and have concluded that they are without sufficient merit to warrant disposition by written opinion. R. 2:11-3(e)(2). The judge did not mistakenly exercise his discretion in dealing with the agitated juror; the reasonable doubt charge, read in context, was entirely correct; and there was no reasonable basis in the record to charge aggravated manslaughter. This was an assassination.
We reverse and remand for a new trial.
The jury, of course, was not made aware of the nature of that communal residence.