On appeal from the Superior Court, Appellate Division, opinion is reported at 303 N.J. Super. 435 (1997).
The opinion of the court was delivered by: Pollock, J.
Argued September 29, 1998
The primary issue is whether, in the absence of statistical probability evidence, the trial court erred in admitting expert testimony concerning the similarity in composition of lead bullets found at the crime scene, in the victim's body, and among defendant's belongings. Finding that statistical evidence was essential, a majority in the Appellate Division reversed the conviction of defendant, Judel Noel, for purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. One Judge Dissented, reasoning that the absence of statistical evidence affected the weight, not the admissibility of the expert testimony. The State appealed as of right. R. 2:2-1(a)(2).
We reverse the judgment of the Appellate Division and reinstate the convictions. We hold that statistical probability evidence is not a prerequisite to the admission of expert testimony concerning the composition of lead bullets.
As Antoine Hargrove was returning to his home in Newark, he was shot in the back. He died at University Hospital several hours later. Two bullets were recovered from his body. At the crime scene, police recovered six 9mm shell casings made by Speer, a cartridge manufacturer, and four spent bullets. Two witnesses saw defendant flee from the scene.
The police arrested defendant at a pre-parole halfway house. A search of defendant's locker revealed a pouch containing eighteen 9mm bullets, nine manufactured by Speer.
At the request of the police, Charles Peters, a physical scientist with the materials analysis unit of the Federal Bureau of Investigation, examined fifteen bullets: four collected at the crime scene, two recovered from the decedent's body, and the nine Speer bullets found among defendant's personal belongings.
Peters analyzed the bullets using a process known as inductively coupled plasma atomic emission spectroscopy (ICP). ICP determines the proportions of six elements other than lead: copper, antimony, bismuth, arsenic, tin, and silver. The bullet manufacturer adds these elements to each batch of lead. From one batch to another, the proportions in bullets of the six elements vary. Thus, the chemical composition of a bullet from one batch may match that of another bullet from the same batch, but not the composition of a bullet from another batch.
Peters divided the bullets into five compositional groups. Within each group, the bullets were of the same composition. Four of the five groups contained both a bullet from defendant's pouch and one recovered either from the crime scene or from the victim's body. For example, Group One included six bullets that were analytically indistinguishable:
one bullet from the crime scene, one from the victim's body, and four from defendant's pouch. Group Four, which consisted of a solitary bullet found at the crime scene, did not match any other bullets.
At trial, Peters testified that, in his experience and that of his unit, "bullets that come from the same box have the same composition of lead and bullets that come from different boxes . . . will have different compositions." He explained that the manufacturer fills a given box with bullets from a single batch of lead. Consequently, those bullets will possess the same chemical composition. Because mixing may occur during storage, however, bullets of different compositions may be found in the same box. Peters concluded that he would not expect random batches of lead to produce the match that existed among the subject bullets.
Before conducting his analysis, Peters had visited the Speer manufacturing plant in Lewiston, Idaho. He limited his testimony on the manufacturing process to an explanation that each bullet is extruded from a "billet," or seventy-pound cylinder of lead. Each batch of lead produces a number of billets. A billet yields approximately 4,300 bullets. About five billion bullets are manufactured in the United States each year, and at least fifty thousand bullets may have the same composition.
The Appellate Division found that the trial court had committed reversible error in allowing Peters to testify, absent foundation evidence of statistical probability, about the identical composition between the bullets recovered from the crime scene and the victim's body and those found in defendant's pouch. 303 N.J. Super. 435, 445 (1997). As the Appellate Division perceived the issue, Peters's testimony depended on the statistical probability that the two sets of bullets would have the same composition. Ibid. According to the Dissent, however, the absence of a statistical foundation affected the weight, not the admissibility, of Peters's testimony. Id. at 453. The Dissent pointed out that Peters's testimony was not that the bullets at the crime scene came from defendant's bag, but that some of the bullets from the crime scene and defendant's pouch came from the same batch. Id. at 458.
In addition, the Appellate Division was split on the issue the influence exerted by the expert's testimony. The majority believed that the expert's "extensive and impressive credentials" resulted in an "unwarranted enhancement of probative weight." Id. at 445, 448. The Dissent, by contrast, noted defense counsel's "probing and able cross-examination of the expert," id. at 458, and concluded that the expert's testimony "merely added another link to the chain of evidence," id. at 455.
Historically, statistical evidence has not been a prerequisite to the admission of matching samples. For example, in cases involving matching blood samples, statistical evidence of the probability of a match has not been required to establish a blood stain as a link in the chain of evidence. State v. Beard, 16 N.J. 50, 58-59 (1954); State v. Kelly, 207 N.J. Super. 114, 121-22 (App. Div. 1986). Similarly, expert testimony about matching soil and hair samples has been deemed admissible, with the weight of the evidence left to the jury. State v. Baldwin, 47 N.J. 379, 392 (1966). Finally, expert testimony about matching carpet fibers has been admitted in the absence of statistical evidence about the probability of the match. State v. Koedatich, 112 N.J. 225 (1988); State v. Hollander, 210 N.J. Super. 453, 467-68 (App. Div. 1985).
In Koedatich, a capital case, the State presented evidence of matching fibers from the defendant's automobile carpet and seat covers. Koedatich, supra, 112 N.J. at 242. The defense attacked the weight of the evidence by showing that manufacturers produced hundreds of thousands of yards of such fibers in a given year. Id. at 245. We upheld the admission of the evidence of the matching fibers, observing that the quantity of the fibers went to the weight, not the admissibility of the evidence.
Similarly, in the present case, the expert's testimony established a match among the bullets found in defendant's belongings, at the crime scene, and in the victim's body. Defendant contends that the large quantity of bullets produced by the manufacturer renders the match among the bullets inconclusive. As with the matching fiber samples, however, the production of a large quantity of comparable samples affects the weight, not the admissibility of the evidence.
In reversing defendant's conviction because of the lack of statistical evidence regarding the incidence and frequency and distribution of bullets, the Appellate Division relied on our decision in State v. Spann, 13 ...