State v. Williams, 46742
| Decision Date | 30 August 1983 |
| Docket Number | No. 46742,46742 |
| Citation | 659 S.W.2d 309 |
| Parties | STATE of Missouri Plaintiff-Respondent, v. Ernest Cornelius WILLIAMS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Dennis N. Smith, Clayton, for defendant-appellant.
John Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant Ernest Williams appeals from a capital murder conviction for the shooting death of Renee Williams (no relation) in her home January 8, 1981. That evening appellant and his brother Darnell Williams went to the victim's home, where appellant confronted the victim's brother Kirk Mischeaux about an alleged debt Mischeaux owed appellant. An argument ensued culminating in Mischeaux being shot three times with a .45 caliber weapon. Mischeaux testified that after he fell from the shots he saw the defendant still holding the gun and going to another part of the house. Ms. Williams was shot in her bedroom while talking on the telephone to the Berkeley Police Department. Appellant denied shooting the victim, claiming that he dropped his gun while wrestling with Mischeaux, and that his brother Darnell shot the victim with appellant's gun. The jury returned a verdict of guilty of capital murder, from which this appeal is taken. Since appellant was sentenced to life imprisonment, this court has jurisdiction.
The first point on appeal is whether the trial court erred in admitting the testimony of Dr. Robert Briner, director of the crime laboratory at Southeast Missouri State University, regarding the results of a gunshot residue test performed on samples taken from the hands of both Darnell and the appellant. Dr. Briner testified that the test data were consistent with appellant "having fired a .45 caliber weapon," and with Darnell "just having handled the weapon and not necessarily firing it." Appellant objects to the admission of this testimony on the ground that the particular test employed here has not been generally accepted by the scientific community as reliable.
"[T]he determination of admissability of expert testimony vests largely in the discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless an abuse of such discretion is shown." State v. Sager, 600 S.W.2d 541, 572 (Mo.App.1980). Expert opinions based on scientific tests are admissible if the scientific principle involved is generally considered by the scientific community as reliable. State v. Johnson, 539 S.W.2d 493 (Mo.App.1976). Appellant cites no authority suggesting that the scientific principle upon which this test was based is not generally accepted as reliable. On the contrary, appellant's brief admits that the basic principle of chemically analyzing samples taken from suspects' hands to determine the presence of trace metals emitted by the discharge of a firearm, has been generally accepted in this jurisdiction since 1975. State v. Ross, 523 S.W.2d 841 (Mo.App.1975). Ross held that "firearm residue testing by neutron activation analysis has crossed a line between the experimental and demonstrable stages and the evidential force of the principle must be recognized." State v. Ross, 523 S.W.2d at 845.
The test at issue is based on the same scientific principle as the neutron activation analysis. That is, it involves chemical analysis of samples from suspects' hands to determine the presence of trace metals. It differs from the Ross test in that is uses a different laboratory process for the chemical identification of the trace elements. Dr. Briner testified that this process, known as electroplating or stripping voltammetry is commonly used in environmental industries to detect the presence of metallic materials, and that the procedure has been applied to "the analysis of metallic residues off of gunshot swabs" for over three years at the crime laboratory under Dr. Briner's direction.
Dr. Briner testified to his own credentials, including a B.S. in Chemistry and a PhD in Biochemistry. He also testified that he had prepared and chemically analyzed "several hundred [gunshot residue kits] over the past eight to nine years we have been doing gunshot residues." Dr. Briner testified that he was co-authoring an article at the time of the trial "correlating ... the electroplating procedure with other procedures that have been used in gunshot residue [testing] in the past." See Briner and Couchoiy, An Inexpensive Approach to Inorganic Gunshot Residue Analysis Using Anodic Stripping Voltammetry, (1982).
The record clearly supports the trial court's admission of the gunshot residue evidence as expert testimony based on a scientific principle generally accepted as reliable. 1 "Objections to the manner in which the analysis was conducted go to the weight rather than the admissibility of the evidence." State v. Johnson, 539 S.W.2d at 501.
The record also supports the reliability of the samples from which the test results were produced. Sargeant Hoffmeister of the Berkeley police testified about the circumstances in which the appellant's and Darnell's hands were swabbed to obtain the test sample. He stated that the swabs were taken according to step-by-step instructions on the kit, and to his knowledge neither appellant nor Darnell had an opportunity to wash his hands or to do anything else prior to the taking of the samples that would have interfered with the results. Dr. Briner testified concerning the control built into the sample collection kits used by the investigating officers.
The test employed here is subject to the same limitations as neutron activation analysis in that:
State v. Ross, 523 S.W.2d 841, 845-46 (Mo.App.1975), quoting State v. Spencer, 298 Minn. 456, 216 N.W.2d 131, 134-35 (1974).
On this record we hold that it was within the trial court's discretion to admit the results of the gunshot residue test into evidence.
Appellant's second point is that the trial court erred in refusing to exclude testimony of officer Hunt concerning the defacement of the serial number on the gun used to kill Renee Williams. Appellant contends that this testimony was irrelevant and constituted evidence of a separate crime, since possession of a weapon without a serial number violates § 571.130 RSMo. 2 Although evidence concerning the defacement had been admitted earlier without objection or motion to strike, appellant contends that the prosecution attempted to prejudice appellant before the jury with this evidence after it was admitted, and seeks review for plain error.
The plain error rule is to be used sparingly and is limited to cases with a clear showing of manifest injustice. State v. Sammons, 640 S.W.2d 488, 490 (Mo.App.1982). The plain error rule is inapplicable here. It is unlikely the jury was prejudiced, since the defacement was never referred to as a crime and since it is doubtful that any jurors were aware of the criminality of mere possession of such a defaced weapon. Certainly there is no evidence of manifest injustice.
Had the point been properly preserved for appeal it would have been denied. The general rule that evidence of a separate crime is...
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