State v. Ellis

¶1(concurring in part and dissenting in part):

¶2I agree with the Court’s conclusion on the sentencing issue in Part B of the majority opinion. However, I respectfully dissent from the majority’s holding in Part A.

¶3Sergeant Walters was qualified as an expert in crime scene processing. He testified there was a bullet hole in the left pedal of the victim’s bicycle. He also testified that the bullet holes in the victim’s right pants leg and the ace bandage worn on that leg did not line up with the two superficial wounds in that leg unless the victim’s leg had been bent when he was shot. Over appellant’s objection, Sergeant Walters testified that the leg wounds, the holes in the pants and the ace bandage, and the bullet hole in the left pedal were consistent with the victim having been shot while on the bicycle.

¶4The majority concludes Sergeant Walters was not qualified to offer his opinion on the victim’s position at the time he was shot, and the admission of this testimony prejudiced appellant’s self defense claim. I disagree.

¶5First, I disagree with the majority’s conclusion this testimony exceeded the scope of Sergeant Walters’ expertise. Walters was qualified as an expert in “crime scene processing,” which he defined as “analyzing [evidence] to see where it fits in relationship to the crime that’s being investigated.” Recog*181nizing that bullet holes in the victim’s clothing and leg brace would only line up with the leg in a bent position was a relatively simple task within the purview of Sergeant Walters’ expertise. In my opinion, the trial court did not abuse its discretion in admitting the testimony. See State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996) (admission of expert testimony is within trial court’s discretion).

¶6Second, assuming for the sake of argument that the testimony did exceed the scope of Walters’ expertise, I do not believe the trial court abused its discretion in admitting it. It does not take an expert to observe the way bullet holes in a victim’s body can be aligned with bullet holes in his clothing. On the contrary, the conclusions to be drawn from such observations are a matter of common sense. In State v. Sullivan, 43 S.C. 205, 21 S.E. 4 (1895), this Court held it was error for the trial court to refuse to allow a medical expert to state his opinion as to how the victim was standing when shot. The Court noted that any person would be competent to express such an opinion: “It was not ‘expert testimony’ in the strict sense of the term, but a statement of a conclusion of fact, such as men who use their senses constantly draw from what they see and hear in the daily concerns of life.” Id. at 209, 21 S.E. at 6 (quoting Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708 (1887)). In my opinion, Walters should have been allowed to render his opinion on the victim’s position regardless of his status as an expert.2

¶7Third, even if the testimony was improper, any error was harmless beyond a reasonable doubt. In addition to the testimony the majority finds improperly admitted, Walters testified without objection that the chest wound trajectory was consistent with the victim having been seated on the bicycle when shot and that the location of the body and bloodstains at the scene were consistent with the victim having fallen back*182wards off the bicycle after being shot. This evidence, along with evidence of a bullet hole in the left bicycle pedal, was all consistent with the victim having been shot while astride the bicycle. There is no reversible error when the objected-to testimony is merely cumulative to other evidence. State v. Gilchrist, 342 S.C. 369, 373, 536 S.E.2d 868, 870 (2000) (no reversible error where improperly admitted evidence is merely cumulative).

¶8Finally, I wish to address the majority’s interpretation of Rule 704, SCRE, concerning opinions on the ultimate issue. The majority cites Rule 704 and State v. Wilkins, 305 S.C. 272, 407 S.E.2d 670 (Ct.App.1991)3 for the proposition that an opinion may be offered on the ultimate issue only where the witness is otherwise qualified. However, Rule 704 makes no mention of the witness’ qualification. Rule 704 provides that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Nothing in the text of Rule 704 restricts its application to experts.4 On the contrary, the rule plainly applies to any opinion testimony and states that there is nothing inherently objectionable about opinion testimony on the ultimate issue. If, as I believe, Sergeant Walters’ opinion was properly admitted either as expert or lay testimony, then the fact that his opinion embraced the ultimate issue in the case did not make it objectionable.

¶9I would affirm appellant’s murder conviction.