Firearms Instructor Not Permitted to Testify as Expert Witness

Written on Tuesday, December 4th, 2018 by T.C. Kelly
Filed under: ExpertWitness

Carlos Jones was convicted of second degree murder for causing the death of his wife, Tabatha Smith. Jones testified that he woke up in the morning and got out of bed to check on the children. When he returned to the bedroom, his wife rolled over onto the gun he kept beneath his pillow. She said, “You and this gun” in an apparent reference to the discomfort it caused.

Jones testified that he removed the gun from beneath the pillow and assured Smith that it was not loaded. He put the gun in the back pocket of his jeans, but it fell through a hole and landed on the floor. He testified that when he picked it up, the gun fired two or three times. His wife said, “I told you.”

Jones could not say exactly how the gun fired, but testified that the shooting was accidental. He said he did not aim the gun and did not recall pulling the trigger.

When he realized that his wife had been shot, Jones rushed her to the hospital. She was still conscious at that point, but did not answer the questions posed to her by police investigators.

Jones spoke to an acquaintance at the hospital. He allegedly stated the gun had a hair trigger, that the trigger “stuck,” and that it fired multiple times.

At some later time, the police attempted to question Smith again, but she could not speak. When an investigator asked her whether Jones shot her, she lifted her hand slightly.

Smith died after fifteen days in the hospital. She was struck by two bullets, one of which damaged her jugular vein and struck the vertebrae in the back of her neck.

Prosecution Expert

Carl Fullilove, who is identified in the appellate opinion only as a “forensic scientist,” testified that he tested Jones’ gun to determine whether it would misfire. Fullilove was unable to make the gun fire without pulling the trigger, even after striking it with a rawhide hammer. Fullilove opined that it was necessary to pull the trigger once per shot to make the gun fire.

Defense Expert

Consumers of the news might recall the FBI agent whose gun fell out of his pocket while he was dancing. A video captures the gun firing accidentally as the FBI agent picked it up. That gun, however, fired only once. Jones’ problem was convincing the jury that he accidentally shot his wife twice.

The defense attempted to overcome that problem by calling Darrell Carey, a firearms instructor, as an expert witness. The trial court refused to admit him as an expert witness because his testimony was not “based on sufficient facts or data” or “based on reliable principles and methods.” The judge noted that Carey had not produced any written documentation or publication, and that “his testimony was strongly weighted or heavily weighted toward firearm shooting and not the mechanics of the firearm itself, i.e., the assembling, disassembling, [or] the methodology of how it operates.”

It isn’t clear why the judge thought that hitting the gun with a “rawhide hammer,” the methodology used by the prosecution expert, was any more reliable than Carey’s methodology. Nor is it clear why the assembling or disassembling of the gun is important in a case that did not involve taking a gun apart. The relevant question was whether the gun would fire accidentally, not how the gun operates.

The judge allowed Carey to testify about his personal observations as a lay witness. Carey testified that he was able to recreate an accidental discharge of the gun, as was shown on a video recording that was admitted into evidence. He found that by picking up the gun with a finger on the trigger, the weight of the gun against his hand could cause the gun to fire in quick succession.

Carey testified that the heavy weight of the slide caused the gun to bump against his trigger finger. He testified that one time the gun fired twice, and another time the gun fired three times, without consciously pulling the trigger.

Expert’s Qualifications

The Mississippi Court of Appeals affirmed the trial court’s decision not to allow Carey to provide expert testimony. The court noted that Carey did not hold an engineering degree and had never published any scholarly articles, although the relevance of that observation is doubtful.

Like most states, Mississippi law specifically allows an expert to base testimony on “technical, or other specialized knowledge,” which can be acquired from experience rather than academic training. Mechanics routinely testify as experts on the vehicle engines and parts, but few mechanics have published academic articles about their knowledge. The fact that Carey was not an engineer went to his credibility, not to his qualifications as an expert.

The appellate court also agreed with the trial court that Carey was unable to testify about the mechanics of a gun. Again, his testimony might have been stronger if he had measured the amount of pressure that was required to pull the trigger, but as someone who teaches firearm operation, Carey plainly had more knowledge of how firearms fire and misfire than a lay person.

The fact that he could not testify about handgun engineering went to Carey’s credibility, but he was plainly qualified to testify about handgun operation. Since the question was whether the firing mechanism was operated intentionally or accidentally, Carey was qualified to give the jury a helpful opinion based on knowledge that most jurors would not have.

Expert vs. Lay Testimony

Finally, the appellate court noted that Carey’s testimony “was largely contingent upon his own personal observations of the handgun’s functionality, in light of Jones’s theory of defense.” The relevance of that observation is unclear.

Any expert who performs tests and testifies about the result is relying on his or her personal observations. Carey tested the gun and explained the results of the tests to the jury. That’s what experts do. It is the expert’s experience in interpreting observations, not the fact that testimony is based on observations, that distinguishes expert from lay testimony.

While the court’s analysis is far from convincing, it isn’t clear that Carey would have testified any differently if the court had allowed him to testify as an expert. Nor is it clear whether the jury would have viewed his testimony in a different light if the court had identified him as an expert rather than a lay witness. The trial court’s error might have been harmless, but that is a question the appellate court did not address.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.