On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication July 22, 1997.
Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d. Humphreys, J.A.D., Dissenting.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
This appeal raises novel questions respecting scientific expert testimony that matches bullets by their composition and, more particularly, the conditions precedent to the admissibility of that evidence and the instructions that must be given the jury to aid in its evaluation thereof.
Following a trial by jury, defendant Judel Noel was found guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1); (2) possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and (3) possession of a handgun with intent to use it unlawfully against another, N.J.S.A. 2C:39-4a. After the jury's verdict was returned, defendant pleaded guilty to a severed fourth count of the indictment charging possession of another handgun and to the severed fifth count of the indictment charging the unlawful possession of hollow nose bullets. Defendant was sentenced to life imprisonment subject to a thirty-year parole ineligibility term on the murder conviction, a consecutive five-year term on the conviction of one count of possession of a handgun without a permit, and a concurrent three-year term on the conviction of the second count of possession of a handgun without a permit. The hollow-nose bullet charge was dismissed and the charge of possession of a handgun with the purpose of using it unlawfully was merged into the murder conviction. Appropriate VCCB and SNSF penalties were also imposed.
In challenging the judgment of conviction, defendant makes the following arguments:
I. THE TRIAL COURT'S REFUSAL TO CONDUCT AN INDIVIDUALIZED VOIR DIRE OF JURORS PARTICIPATING IN PREMATURE DISCUSSIONS OF THE CASE DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 9 OF THE NEW JERSEY CONSTITUTION.
II. THE ADMISSION OF THE TESTIMONY OF CHARLES A. PETERS DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
III. THE TRIAL COURT'S INSTRUCTIONS ON REASONABLE DOUBT DIMINISHED THE STATE'S BURDEN OF PROOF IN VIOLATION OF THE DEFENDANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPHS 1, 9 AND 10 OF THE NEW JERSEY CONSTITUTION. (Not raised below)
IV. THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S REQUEST TO CHARGE AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1, 9 AND 10 OF THE NEW JERSEY CONSTITUTION.
We have carefully reviewed this record in the light of the applicable law and the arguments of counsel. We agree with defendant that he was prejudiced by the combination of the testimony of the State's expert witness, Charles A. Peters, an F.B.I. physical scientist, and the references made to that testimony by the prosecutor in his summation, and, in the circumstances, the court's failure to give the jury adequate instructions to assist it in dealing with that testimony. Accordingly, we reverse and remand for a new trial.
The victim of this senseless, brutal and tragic killing was a young man who was shot repeatedly on his front porch as he was returning to his home on Sanford Avenue in Newark in the early evening. There was no suggestion of any motive for the murder. No robbery was involved and there was no evidence at all suggesting any reason for this attack on the victim. According to the police testimony, on information received, neither the source nor content of which was disclosed, the police believed there might be a suspect at a house at 43 Silver Street, close to the intersection of Sanford Avenue and Silver Street. They went to that house in the early hours of the next morning and surrounded it with guns drawn. As they took up their positions, a bag of cocaine was thrown out of an upstairs window. The officers gained admission to the house and were given consent to search. The search took them eventually to the two-room attic, on whose landing they found another bag of cocaine containing some thirty vials. Four young people were sleeping in the attic rooms, among whom were Lamar Brown, who lived in the house, and his fifteen-year old girlfriend, Malika Williams, who frequently slept there. The four young people were taken to police headquarters for interrogation. Brown and Williams, in separate interviews, both said that they had witnessed the shooting and that defendant, with whom both were acquainted, was the gunman. Neither Williams nor Brown was ever charged with drug offenses.
Based on the information received from Brown and Williams, the police tracked down defendant and found him several hours later. He was asleep in the pre-parole halfway house in which he then resided. *fn1 Defendant was awakened and placed under arrest. A bag containing eighteen bullets was found in his locker. Nine of the bullets were nine-millimeter bullets stamped with the manufacturer's name, Speers. The police had also recovered spent bullets and bullet casings at the crime scene. The shell casings were also stamped with the same manufacturer's name. Defendant also told the police that he had a handgun in his bed. The police seized that weapon, which was not, however, the murder weapon.
Before we address the expert-testimony problems, we note that without that testimony, the State's proofs consisted entirely of the two eyewitness identifications and defendant's possession of nine-millimeter Speers bullets. There was no evidence linking defendant in any way with the victim prior to the shooting. With respect to the eyewitness identifications, we point out first that Brown had recanted, asserting at trial that he had identified defendant as the gunman at the police station both because he had been beaten by the police and had been threatened with drug charges. He testified that he had not even been in Newark on the day of the shooting but had been visiting a friend in another city. His prior inconsistent statement identifying defendant was admitted pursuant to N.J.R.E. 803(a)(1) following a hearing as mandated by State v. Gross, 121 N.J. 18, 577 A.2d 814 (1990).
Malika Williams, Brown's girlfriend, testified that she had spent most of the day "hanging out" at a store at the corner of Sanford Avenue and Silver Street, with a group of other young people, including her boyfriend Brown, whom she claimed to be a drug dealer operating at the corner. She had seen defendant in the area during the latter part of the afternoon, and, in fact, had gone into the house at 43 Silver Street to make two telephone calls for him at his request, reporting to him that there had been no answer. Not long after the second telephone call and after she had returned to the corner, she heard the sound of shooting. Although all the other people at the corner ran away, she ran into the middle of the street to see what was happening. She saw the gunman shooting the victim and then running away past her. She testified that although the gunman was masked, the mask slipped down as he ran past her and she was able to identify him as the defendant. The police conceded that none of the other young people who had been standing at the corner had been interviewed regarding the shooting although Williams had given them the names of a number of them. One of them testified for the defense, asserting that she too had been at the corner, heard the shooting, and ran away. She also testified that she had seen Williams and another young woman leave the corner prior to the shooting and asserted that Williams was not present when the shooting took place. Finally, this defense witness also testified that Williams had admitted to her that she, Williams, had lied in making her identification of defendant and that the identification was false.
Thus, with respect to the eyewitnesses, both of whom were found in the house where a suspect was believed to be and both of whom were evidently involved with drugs, one recanted and the testimony of the other was contradicted by an apparently disinterested witness. We think it plain that without the expert bullet evidence, the State's case, so heavily dependent on the prior inconsistent statement of Lamar Brown and the testimony of Williams, was a close one, and we further note that the jury was also obviously concerned since it had asked for a read back of Williams's testimony. Nor do we think that the evidence that defendant possessed bullets of the same calibre and manufacture as those used in the shooting tipped the scales overwhelmingly. It was surely a link, but in view of the ready availability of such bullets, hardly a conclusive one. In our view, the bullet match, without the expert testimony, had much the same effect as a suspect's possession of a shoe of the same manufacture and wide distribution as one that had left an incriminating footprint. It is evidence to be considered, but it does not carry great probative weight. In sum, the State's case was adequate but not strong.
We consider the expert testimony to whose admission defendant objected, in this context. The State produced Charles A. Peters, a physical scientist employed for some twenty years by the F.B.I. in its material analysis unit. Peters is highly experienced in lead bullet analysis, which, as he explained to the jury, is now performed by a complex process called coupled plasma atomic emission spectroscopy (ICP analysis), a process whose theory and application he also explained to the jury in excruciating technical detail complete with charts. The import of his testimony was that lead bullets are made from an initial source of molten lead. The source is also referred to as a batch or a pouring. It was his opinion that there is variation in each batch of the presence and percentage of trace elements, including antimony, bismuth, silver, tin, copper, and arsenic, and it is highly improbable that any two batches could have the identical composition. Since his spectroscopic analysis of the nine-millimeter bullets found in defendant's possession had the identical composition to those that killed the victim, the expert opined that the bullets had all come from the same batch. Peters also testified that in the bullet-manufacture process, the molten lead constituting the source is poured into seventy-pound blocks called billets and that the bullets are made out of the billets. It was his opinion that about 43,000 nine-millimeter bullets could be made from a single billet. Although he opined that a single batch would produce "many" billets, he was unable to quantify the number of identical billets any more specifically. It was, however, clear that at least hundreds of thousands of identical nine-millimeter bullets could be produced from the same batch. We further note that Peters expressly disavowed expertise in the manufacturing or marketing process, a disavowal no doubt accounting for his inability to quantify the number of billets produced by a batch. Nor was any testimony offered as to marketing, that is, whether, as seems likely, bullets from the same billets would be shipped together by the manufacturer and hence that there would be a concentration of such bullets in a specific geographical region. Mr. Peters did, however, opine that bullets manufactured from the same billet are ordinarily immediately boxed and hence shipped together.
Obviously, the prosecutor's purpose in offering the testimony of Mr. Peters was to persuade the jury that the identical composition of the two sets of bullets significantly enhanced the strength of the link between defendant and the crime, that is, the link that had already been established by the identity of calibre and manufacture. That is clear from his summation, by which he attempted to impart scientific certainty to an implied conclusiveness of that link, bolstering that argument with a patently improper voucher for the credibility of his witness.
Finally Mr. Charles Peters of the FBI. I realized that was some sophisticated testimony and I know I personally had trouble following it. But I hope the Conclusions are what came clear.
It is a very precise, scientific process that has been used for, I believe, he said about, about 30 years to test these bullet leads and his testimony is critical to this case because it completely blows away the murder theory advanced by the defense that Malika and Lamar somehow engineered the murder.
Now do you think Mr. Peters was a liar? He's not a cop. He's not even an FBI agent. Charles Peters is a scientist and he looked like a scientist; didn't he? You could almost see him in a white lab coat. You could see him in math class in a high school in the back. He had all the answers.
He's a straight shooter. Did not testify beyond what the results of his examination were. Didn't try to make it out to be more than what it was but it is something very critical in this case.
Basically what he told us was that an examination of bullets, whenever a manufacturer is going to run a line of bullets, they order a source of lead from a lead smelter.
I asked him if that was like a "batch." He said it was. The scientists like using the word "source." I think it is easier to conceive of as a batch of lead and he said that there are millions, literally millions of these batches of lead out in circulation. And from those millions of batches of lead out in circulation, there are billions of bullets produced each year.
The key, I submit to you, is not what Mr. Roberts said it is, not about the number of billets produced//--the number of bullets produced, the key is the number of sources of lead; the number of batches. Millions of batches; each one ...