State v. Anderson

• Decision Date: 17 January 2006
• Docket Number: No. COA04-1537.,COA04-1537.
• Citation: 624 S.E.2d 393
• Parties: STATE of North Carolina v. Phillip Eugene ANDERSON, Defendant.
• Court: North Carolina Supreme Court

624 S.E.2d 393

STATE of North Carolina v. Phillip Eugene ANDERSON, Defendant.

No. COA04-1537.

Court of Appeals of North Carolina.

January 17, 2006.

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Appeal by defendant from judgment entered 29 April 2004 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of Appeals 8 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Stephen F. Bryant, for the State.

Massengale & Ozer, by Marilyn G. Ozer, Chapel Hill, for defendant-appellant.

GEER, Judge.

Defendant Phillip Eugene Anderson appeals from his conviction for first degree murder. Defendant argues primarily that the trial court erred in admitting expert ballistics testimony. Defendant's arguments are, however, based upon Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), even though our Supreme Court has held that the principles of Daubert do not apply in this State. See Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004). Under the test applicable in North Carolina, as set forth in State v. Morgan, 359 N.C. 131, 159, 604 S.E.2d 886, 903 (2004), cert. denied, ___ U.S. ___, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005), defendant failed to demonstrate at trial that the expert testimony at issue was unreliable. Defendant cannot, as he attempts in this appeal, challenge the witness' reliability by attempting to introduce on appeal scientific literature that was not first presented to the trial court. Since we find defendant's other arguments also to be unpersuasive, we conclude that defendant received a trial free of error.

Facts

The State's evidence tended to show the following. Prior to the fall of 2001, defendant and Teresa Adams had been dating in an on-again, off-again relationship. In the fall of 2001, both defendant and Adams were living in Durham, but Adams had started dating Matthew Jacobie, defendant's next door neighbor.

On a Sunday afternoon that fall, defendant came to Jacobie's house looking for Adams. Jacobie's roommate, Stacy Wong, told Adams that defendant was outside, and Adams went with defendant into his house. Subsequently, Adams told Wong and Jacobie that defendant had said that somebody was going to get hurt if she kept visiting Jacobie's house and that defendant had tried to choke her.

The following Tuesday, 2 October 2001, Adams told her roommate, Patricia Andrus, that she was going out for a few hours and if she was not back by midnight, to go ahead and put the alarm on. Andrus stayed awake until about 1:00 a.m., but Adams had not yet returned home. By lunchtime the next day, Andrus still had not seen Adams, and there was no indication that Adams had slept in her room. Three days later, on 5 October 2001, Andrus filed a missing persons report with the Durham Police.

Ramal Lowery, a friend of defendant's, testified that defendant called him several times on the night of 2 October and in the early morning hours of 3 October. During the last call, defendant asked Lowery to come to his house so that they could talk about something important. When Lowery arrived, defendant told him that he had killed Adams. Because Lowery did not believe him, defendant had Lowery drive the two of them to an area off Hillandale Road in Durham. Defendant told Lowery to park in a wooded area beyond a parking lot, and Lowery could see a body laying on the ground when he got out of his car. As Lowery drove back to defendant's home, defendant kept saying, "I'm a piece of shit, I shouldn't have done it."

Defendant also told Lowery that he needed to get rid of the gun used to kill Adams. Once they reached defendant's house, defendant went inside and came out with a duffle bag. They drove down Highway 751 to a bridge. Defendant took a brown paper bag out of the duffle bag and threw it over the bridge. Defendant told Lowery that a gun was inside the bag.

On 5 October 2001, the police received a call that there was a body on the side of the road near the intersection of Hillandale Road and Horton Road. Officers found Adams' body, which was already decomposing, in a ditch about five to 10 feet off the road. Adams had suffered two gunshot wounds, one to the right side of the back of the head and the other to her neck. The medical examiner estimated that the time of death was approximately two to three days before the body was discovered.

The Durham police subsequently found a gun near a creek that ran underneath Highway 751 in Chatham County. Teresa Powell, an agent with the State Bureau of Investigation, conducted tests on the gun found near the creek and the bullets removed from Adams' body. In Powell's opinion, the bullets were fired from the gun recovered near the creek.

Defendant was indicted for the first degree murder of Teresa Adams. At trial, defendant did not present any evidence. The jury found defendant guilty of first degree murder, and defendant was sentenced to life imprisonment without parole.

I

Defendant contends that the trial court erred under Rule 702 of the Rules of Evidence by admitting Powell's ballistics testimony.¹ Defendant argues that Agent Powell did not comply with "normally accepted scientific methodology" and that "Ms. Powell's results should not have been accepted under Daubert." Defendant further objects that "[f]or scientific evidence to be admissible, the expert must point to external sources that validate the methodology," citing Daubert v. Merrell Dow Pharms., 43 F.3d 1311 (9th Cir.), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995), the Ninth Circuit's decision on remand from Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant has, however, argued the wrong standard. As our Supreme Court confirmed in State v. Morgan, 359 N.C. 131, 159, 604 S.E.2d 886, 903 (2004) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004)), "North Carolina is not a Daubert state."

Instead of evaluating expert witnesses under the standard set out in Daubert, courts in this State must conduct a three-step inquiry when considering whether to admit expert testimony pursuant to Rule 702 of the Rules of Evidence: "(1) whether the expert's proffered method of proof is reliable, (2) whether the witness presenting the evidence qualifies as an expert in that area, and (3) whether the evidence is relevant." Morgan, 359 N.C. at 160, 604 S.E.2d at 903-04. When making determinations about the admissibility of expert testimony, the trial court is given wide latitude and "rulings under Rule 702 will not be reversed on appeal absent an abuse of discretion." Id., 604 S.E.2d at 904.

Defendant does not argue that Agent Powell was not qualified as an expert or that the evidence was not relevant. Defendant challenges only the reliability of Agent Powell's testimony. Reliability in this State is "a preliminary, foundational inquiry into the basic methodological adequacy of an area of expert testimony. This assessment does not, however, go so far as to require the expert's testimony to be proven conclusively reliable or indisputably valid before it can be admitted into evidence." Howerton, 358 N.C. at 460, 597 S.E.2d at 687.

In order to assess reliability, a trial court may look to expert testimony regarding reliability, may take judicial notice, or may use a combination of the two approaches. Id. at 459, 597 S.E.2d 674, 597 S.E.2d at 687. The Supreme Court has indicated that the trial court should first review precedent "for guidance in determining whether the theoretical or technical methodology underlying an expert's opinion is reliable." Id. "[W]hen specific precedent justifies recognition of an established scientific theory or technique advanced by an expert, the trial court should favor its admissibility, provided the other requirements of admissibility are likewise satisfied." Id.

If no precedent exists, such as when an expert is proposing "novel scientific theories, unestablished techniques, or compelling new perspectives on otherwise settled theories or techniques," the trial court is required to focus on "indices of reliability" to determine reliability, including the expert's use of established techniques, the expert's professional background in the field, the use of visual aids before the jury, and independent research conducted by the expert. Id. at 460, 597 S.E.2d at 687. These indices are not, however, exclusive. Id.

Our Supreme Court has previously upheld the admission of similar firearms or ballistics testimony. See State v. Gainey, 355 N.C. 73, 88-89, 558 S.E.2d 463, 473-74 (holding that the trial court did not err in admitting testimony of SBI agent regarding rifling characteristics of particular bullets based on his experience and the fact that he had tested the bullets upon which he based his opinion), cert. denied, 537 U.S. 896, 123 S.Ct. 182, 154 L.Ed.2d 165 (2002); State v. Felton, 330 N.C. 619, 638, 412 S.E.2d 344, 356 (1992) (upholding admissibility of SBI agent's testimony regarding rifling characteristics of particular bullets). Defendant does not address this precedent, but rather argues that the State did not meet its burden because "[t]he State presented no evidence substantiating the scientific validity" of Agent Powell's comparisons of the bullets and the gun.² As Howerton and Morgan establish, however, the State was not necessarily required to do so.

In challenging Agent Powell's methodology at trial, defendant did not offer any expert testimony or scientific literature. On appeal, however, defendant relies upon a series of journal articles that he contends establish that Agent Powell improperly failed to use photographs to document her work and that her methodology failed to comply with accepted scientific methods. Those articles were not, however, presented to the trial judge. A defendant cannot establish an abuse of discretion by the trial judge based on scientific literature never provided to that judge. Defe...