U.S. v. Taylor

• Decision Date: 09 October 2009
• Docket Number: Case No. CR 07-1244 WJ.
• Citation: 663 F.Supp.2d 1170
• Parties: UNITED STATES of America, Plaintiff, v. Donald Scott TAYLOR, Defendant.
• Court: U.S. District Court — District of New Mexico

Page 1170

663 F.Supp.2d 1170

UNITED STATES of America, Plaintiff, v. Donald Scott TAYLOR, Defendant.

Case No. CR 07-1244 WJ.

United States District Court, D. New Mexico.

October 9, 2009.

Brian A. Pori, Inocente, P.C., Albuquerque, NM, Lori Tiffany Flowers, Michael N. Burt, San Francisco, CA, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE FIREARM IDENTIFICATION EVIDENCE

WILLIAM P. JOHNSON, District Judge.

THIS MATTER comes before the Court on Defendant Taylor's Motion to Exclude Firearm Identification Evidence [Doc. 277]. The Court held a Daubert hearing on this motion on September 2nd and 3rd, 2009, at which the Court heard the testimony of Defense expert Adina Schwartz, Ph.D. (Dr. Schwartz), and Government expert Ron G. Nichols (Mr. Nichols). Having considered the parties' written and oral arguments, the testimony of Dr. Schwartz and Mr. Nichols, and the applicable law, the Court finds that Defendant's motion is not well taken and shall be DENIED. However, the Court will limit certain parts of Mr. Nichols' opinion testimony, as described below.

INTRODUCTION

On July 8, 2005, deputies were dispatched to the Causey, New Mexico home of Jimmy S. "Bo" Chunn when they discovered that Mr. Chunn had been killed by a gunshot wound to the head fired from a high-powered rifle. The bullet believed to have killed Mr. Chunn ultimately lodged in his refrigerator door. The preliminary investigation revealed that Defendant had contact with Mr. Chunn shortly before his death. Thus, Defendant became a person of interest. Investigating officers learned that Defendant had a meeting scheduled with his probation officer and decided to attend. During that meeting Defendant denied having any contact with Mr. Chunn since his release from prison in April, 2005. After the meeting, the probation authorities searched Defendant's car and found a knife, beer, and ammunition. Taylor was arrested for violating his probation and placed in state custody.

While in the custody of the New Mexico Department of Corrections, Defendant developed a relationship with Donnie Wilson, an Aryan Brotherhood member who had begun cooperating with the FBI and who had been placed, at the request of the FBI, in a cell adjacent to the cell where Defendant was being housed. Wilson was asked to determine whether Defendant had any involvement in the murder of Mr. Chunn. Defendant eventually admitted to Wilson that he killed Mr. Chunn, and told him that he used a .30-.30 caliber rifle in the murder. Defendant also told Wilson that a number of weapons, including the murder weapon, were hidden and needed .to be disposed of. Wilson told Defendant about another Aryan Brotherhood member on the outside who could dispose of the weapons. In reality, this other Aryan Brotherhood member was an undercover law enforcement officer. Thereafter, without any prompting from Wilson, Defendant drew Wilson a map showing the location of the hidden weapons. The FBI used that map to obtain a search warrant for the abandoned house where Defendant said he hid the weapons. When the warrant was executed, the officers found, along with other weapons, a .30-.30 caliber rifle matching the description Defendant gave Wilson of the weapon he used to kill Mr. Chunn.

The recovered rifle and the projectile removed from Mr. Chunn's refrigerator door were presented to Steve Guerra, a firearms examiner with the New Mexico Department of Public Safety, for firearms identification analysis. On April 20, 2009, the Government filed an Amended Notice of Expert Testimony [Doc. 235], declaring its intent to call Mr. Guerra to offer expert opinion testimony based on the results of his analysis. However, the Government subsequently withdrew Mr. Guerra as a witness and instead, on August 5, 2009, notified Defendant of its intent to offer the expert opinion testimony of Ronald G. Nichols, a firearm and toolmark examiner with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, who also performed an examination of the recovered rifle and the bullet believed to have killed Mr. Chunn [Doc. 425]. Mr. Nichols will testify that in his opinion there is a match between the recovered bullet and the recovered rifle. In the instant motion Defendant seeks to have all firearms identification evidence excluded, arguing that it is unreliable, invalid, and does not meet the requirements for admissibility of expert testimony. See Deft. Brf. [Doc. 277] at 1.

I. Mr. Nichols' Qualifications

Mr. Nichols is currently employed as a firearm and toolmark examiner with the Bureau of Alcohol, Tobacco, Firearms, and Explosives in Walnut Creek, California. He graduated from the State University of New York at Buffalo with a bachelor of science degree in forensic science. He was employed with the Oakland, California Police Department from approximately 1999 to 2000, where he received extensive inservice training with regard to firearm and toolmark identification, which included a number of training exercises as well as becoming familiar with the pertinent literature in the field. This training culminated in Mr. Nichols taking and passing a series of proficiency tests. He holds several certifications in the field of firearm and toolmark identification, including one with the American Board of Criminalistics and three with the Association of Firearm and Toolmark Examiners (AFTE). The three certifications with AFTE are in firearm evidence examination, toolmark evidence examination and identification, and gunshot residue evidence examination and identification. He regularly attends training conferences and participates in ongoing proficiency testing. Mr. Nichols has also published several articles on the topic of firearm and toolmark identification.

II. Applicable Legal Standard

The admissibility of expert opinion testimony is governed by Federal Rule of Evidence 702, which codified the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact on 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.

See also United States v. Baines, 573 F.3d 979, 985 (10th Cir.2009) (quoting Fed. R.Evid. 702). It is the duty of the trial court to ensure that any expert testimony admitted "rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597, 113 S.Ct. 2786. The burden of proof is on the proponent of the expert. Baines, 573 F.3d at 985. In Daubert, the Supreme Court set out a nonexhaustive set of factors that trial courts may consider in determining whether proposed expert testimony is based on reliable methods and principles: (1) whether the particular theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique has achieved general acceptance in the relevant scientific or expert community. 509 U.S. at 593-94, 113 S.Ct. 2786.

Daubert itself was limited to scientific evidence, see Baines, 573 F.3d at 985, but in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court made clear that the gatekeeping obligation of the district courts described in Daubert applies, not just to scientific testimony, but to all expert testimony. Id. at 141, 119 S.Ct. 1167. While a district court may consider the Daubert factors in determining the admissibility of non-scientific expert testimony to the extent they are relevant, id. at 150, 119 S.Ct. 1167, "the test of reliability is flexible, and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 141-42, 119 S.Ct. 1167. Many courts have recognized that the list of factors the Supreme Court outlined in Daubert "may not perfectly fit every type of expert testimony, particularly technical testimony based primarily on the training and experience of the expert." United States v. Monteiro, 407 F.Supp.2d 351, 357 (D.Mass. 2006) (compiling cases).

Should the trial court find that the general methodology underlying the proposed expert testimony is both relevant and sufficiently reliable, it must then evaluate the proposed vehicle for that testimony: the expert himself. The court must determine whether the expert is qualified by knowledge, skill, experience, training, or education to be a proponent of the specialized methodology. Fed.R.Evid. 702. The court must further determine whether the witness has reliably applied that methodology to the facts of the particular case. Id.

The United States District Court for the District of Massachusetts has clearly articulated the competing policy interests that must be balanced in the evaluation of proposed expert testimony; "The Court's vigilant exercise of this gatekeeper role is critical because of the latitude given to expert witnesses to express their opinions on matters about which they have no firsthand knowledge, and because an expert's testimony may be given greater weight by the jury due to the expert's background and approach." Monteiro, 407 F.Supp.2d at 358. "The Court must, however, keep in mind the Supreme Court's admonition that, `vigorous...