Willie v. State
| Decision Date | 06 November 2018 |
| Docket Number | NO. 2016-KA-01416-COA,2016-KA-01416-COA |
| Citation | 274 So.3d 934 |
| Parties | James Douglas WILLIE, Sr. a/k/a James Douglas Willie a/k/a South Memphis, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JACKSON
BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
BARNES, J., FOR THE COURT:
¶ 1. James Willie Sr. was convicted of murder, possession of a firearm by a felon, and possession of a stolen firearm. For the murder conviction, the Tunica County Circuit Court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). He was sentenced to ten years for possession of a firearm by a felon, with the sentence to run consecutively to his life sentence. For possession of a stolen firearm, the court sentenced Willie to five years, which was to run consecutively to the other sentences.
¶ 2. Willie filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, alleging that the court erred in "allowing the State['s] witness Bryon McIntire to be qualified and testify as an expert witness in the area of firearms and toolmark identification." The court denied his motion. On appeal, Willie renews his claim concerning McIntire's expert testimony. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 3. On May 11, 2012, Lori Ann Carswell was found dead near her car on Highway 713 in Tunica County. The cause of death was a distant gunshot wound to the head. Law enforcement recovered a shell casing a few feet from her vehicle. On May 15, the Tunica County Sheriff's Department received information linking Willie to Carswell's murder. It obtained a search warrant for Willie's apartment and a maroon Equinox SUV belonging to Willie's girlfriend, Latoya Lewis. A 9-millimeter handgun was found in the SUV's glove compartment, and a loaded magazine with nine rounds was located above the sun visor. It was later determined that the gun was stolen a month previously from a home in Coahoma County. The gun was sent to the Mississippi Crime Laboratory for ballistics testing.
¶ 4. Law enforcement officers interviewed Willie on May 15. He told them he had bought the gun in Memphis on May 9 for protection and had taken it to Arkansas with him. His girlfriend, Lewis, initially told the sheriff's department that she, Willie, and their children had been in Arkansas that weekend and were in Memphis at the time of the murder. Several hours later, she changed her story, saying they had returned to Tunica from Arkansas late on May 10. She had been asleep in the SUV but awoke to see Willie flagging down a vehicle. The woman driving the car pulled over, and Willie pulled a gun on the woman. Lewis then heard a "pow." When Willie returned to the SUV, he told her not to say anything or he would kill her.
¶ 5. On August 13, 2012, a Tunica County grand jury indicted Willie of Count I, deliberate-design murder; Count II, possession of a firearm by a felon; Count III, aggravated assault; Count IV, kidnapping; Count V, rape; and Count VI, possession of a stolen firearm. Willie moved to sever Counts III-V as those counts involved a separate set of circumstances, and the trial court granted the motion. A jury trial was held September 6-8, 2016, on Counts I, II, and VI.1 The State offered McIntire "as an expert in the field of toolmarking and firearm examination." Although defense counsel objected to his testimony, claiming it failed to meet the Daubert standard,2 the trial court ruled that McIntire was qualified as an expert in firearm and toolmark identification and allowed his testimony.3 McIntire testified that based on a "reasonable degree of scientific certainty," the shell casing found at the murder scene was fired from the 9-millimeter found in Lewis's SUV.
¶ 6. Lewis testified, reiterating that she had seen Willie flag down a car, get out of the car to speak to a woman, and she heard a "pow." On cross-examination, Lewis admitted that she gave inconsistent statements, but she said Willie had asked her to lie for him. Although he had originally told investigators he bought the gun on May 9, Willie testified at trial that he bought the gun "off the streets" in Memphis on May 13. Willie admitted that he had a prior conviction for house burglary and knew he was not allowed to possess a firearm, but he denied killing Carswell. When asked about Lewis's testimony, Willie stated that she was mad at him for sleeping with her coworkers.
¶ 7. Willie was convicted on all three counts. The trial court sentenced him to life imprisonment in the custody of the MDOC for Count I; ten years for Count II, to run consecutively to his life sentence in Count I; and five years for Count VI, to run consecutively to the other sentences. Willie filed a motion for a JNOV or, in the alternative, for a new trial, which the trial court denied.
¶ 8. Willie argues on appeal that the court abused its discretion in qualifying McIntire as an expert and in admitting his testimony.
DISCUSSION
¶ 9. At trial, defense counsel objected to the qualification of McIntire as an expert. The trial court overruled the objection, finding: "[B]ased on the witness's experience and training, which was adequate and standard, I think, across the state, with regard to our forensic scientists with the sub[-]specialty of toolmark identification and firearm examination, I also find he has ... utilized reliable methods that are standard in practice." On appeal, Willie argues that the trial court erred in qualifying McIntire as an expert witness and in allowing him to testify that the casing found at the murder scene matched the gun recovered in Willie's possession. He claims McIntire's testimony was conclusory, and the scientific methods used by the expert were "questionable," particularly noting McIntire's failure to provide a margin-of-error rate regarding the science of firearm identification and to take any photographs. He also contends any error in the admissibility of McIntire's testimony "cannot be deemed harmless."
¶ 10. Willie raised this issue in another case, Willie v. State , 204 So.3d 1268 (Miss. 2016), which involved his conviction for a murder in Panola County. However, because defense counsel in that case failed to make any objections to the expert's testimony, the Mississippi Supreme Court found the issue was procedurally barred and made no findings as to the merits of the claim.4 However, the supreme court did determine that counsel's failure to object was not ineffective assistance because it fell "within the scope of trial strategy." Id. at 1275 (¶ 19).
¶ 11. In a recent case, Parker v. State , 2016-KA-1502-COA, 277 So.3d 1, 2018 WL 1602585 (Miss. Ct. App. April 3, 2018), reh 'g denied (Sept. 4, 2018), this Court considered Shannon Parker's claim that the trial court erred in allowing the testimony of a forensic expert on firearm and toolmark identification. Parker filed a pretrial motion to exclude the expert's testimony, asserting it was unreliable and attaching a 2008 National Academy of Science (NAS) report. Id. at ––––, 2018 WL 1602585, at *3 (¶ 13). The trial court deferred ruling on the motion until after counsel had an opportunity to question the expert during voir dire; however, defense counsel subsequently stated at trial that he had no objection to the expert's testimony. Id. On cross-examination, the expert was questioned about the 2008 NAS report, and he acknowledged that an examiner "should not testify in ‘absolute’ terms but rather should testify to a ‘reasonable degree of scientific certainty.’ " Id. Citing Willie , 204 So.3d 1268, this Court found the claim was procedurally barred due to defense counsel's failure to object to the testimony. Parker , 277 So.3d at ––––, 2018 WL 1602585 at *3 (¶ 14).5
¶ 12. Here, however, defense counsel made strenuous objections to McIntire's testimony for the reasons cited by Willie on appeal. Therefore, we will address the merits of Willie's claims. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony, allowing a witness qualified as an expert to testify in the form of an opinion if:
M.R.E. 702. Being "mindful that ‘the admission of expert testimony is within the discretion of the trial court[, w]e will not reverse [a] trial court's decision to admit expert testimony unless the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ " Gray v. State , 202 So.3d 243, 256 (¶ 46) (Miss. Ct. App. 2015) (quoting Bateman v. State , 125 So.3d 616, 625 (¶ 28) (Miss. 2013) ). In Mississippi Transportation Commission v. McLemore , 863 So.2d 31 (Miss. 2003), the Mississippi Supreme Court adopted the Daubert standard for determining the admissibility of expert witness testimony, stating:
The [United States Supreme] Court in Daubert adopted a non-exhaustive, illustrative list of reliability factors for determining the admissibility of expert witness testimony. The focus of this analysis "must be solely on principles and methodology, not on the conclusions they generate." These factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community. The...
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