         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-01416-COA

JAMES DOUGLAS WILLIE, SR. A/K/A JAMES                                        APPELLANT
DOUGLAS WILLIE A/K/A SOUTH MEMPHIS

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          09/15/2016
TRIAL JUDGE:                               HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:                 TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                         BRENDA FAY MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED: 11/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       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


                                                2
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.



       1
        A jury trial on Counts I, II, and VI was previously held on March 31, 2014, but it
resulted in a mistrial when Willie became belligerent and had to be detained by law
enforcement in front of the jury. The trial court subsequently granted Willie’s motion to
change venue to Bolivar County.
       2
           Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).
       3
        We note that although the trial court granted Willie’s motion for funds to hire his
own firearm and toolmark expert, no expert witness testified for the defense.

                                             3
¶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


                                                 4
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 1269 (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, 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,


         4
             McIntire was also the forensic expert witness at Willie’s other trial.

                                                  5
asserting it was unreliable and attaching a 2008 National Academy of Science (NAS) report.

Id. 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 1269, this Court found the claim was

procedurally barred due to defense counsel’s failure to object to the testimony. Parker, 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:

       (a) the expert’s scientific, technical, or other specialized knowledge will help
       the trier of fact to understand the evidence or to determine a fact in issue;

       (b) the testimony is based on sufficient facts or data;

       (c) the testimony is the product of reliable principles and methods; and

       (d) the expert has reliably applied the principles and methods to the facts of the
       case.



       5
         Although Parker was a 5-5 opinion, the dissent in Parker objected to the case’s
disposition on grounds unrelated to the expert-testimony issue.

                                               6
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 applicability of these factors depends on the nature of the
       issue, the expert’s particular expertise, and the subject of the testimony. The
       Daubert Court emphasized that the reliability inquiry contemplated by Rule
       702 “is a flexible one.”

Id. at 36-37 (¶13) (citations omitted).

¶13.   Willie argues McIntire was not qualified under Daubert and Rule 702. Specifically,

he claims the validity of McIntire’s testimony has been called into question by “recent

developments in the scientific community,” citing a 2008 NAS report (as discussed in

Parker), a 2009 NAS report of forensic science, as well as a 2016 report from the President’s


                                                7
Council of Advisors on Science and Technology. The 2008 report cautioned:

       Conclusions drawn in firearms identification should not be made to imply the
       presence of a firm statistical basis when none has been demonstrated.
       Specifically, . . . examiners tend to cast their assessments in bold absolutes,
       commonly asserting that a match can be made to the exclusion of all other
       firearms in the world.” Such comments cloak an inherently subjective
       assessment of a match with extreme probability statement that has no firm
       grounding and unrealistically implies an error rate of zero.

The 2016 report stated:

       Whether firearms analysis should be deemed admissible based on current
       evidence is a decision that belongs to the courts. If firearms analysis is
       allowed in courts, the scientific criteria for validity as applied should be
       understood to require clearly reporting the error rates seen in one appropriately
       designed black-box study. Claims of higher accuracy are not scientifically
       justified.

Willie contends that the State treated McIntire’s opinion “as merely a conclusion” and “did

not cache [his] conclusion in terms of a ‘reasonable degree of certainty.’” Willie cites United

States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008), in which the district court considered

whether to admit testimony of a ballistics expert. The district court reasoned that “ballistic

examination . . . lacks the rigor of science [and] suffers from greater uncertainty than many

other kinds of forensic evidence.” Id. at 574. But the court also acknowledged that such

testimony had “garnered sufficient empirical support as to warrant its admissibility.” Id.

Therefore, it ruled that the expert would be allowed to testify only that the “firearms match

was ‘more likely than not,’” which would satisfy Federal Rule of Evidence 401 “without

overstating the capacity of the methodology to ascertain matches.” Id. at 574-75.

¶14.   During direct examination of McIntire, the State asked:

                                              8
       Q.            Okay. And what determination did you reach, to a reasonable
                     degree of scientific certainty, as to the class characteristics of
                     the particular gun as it relates to the casing? So 7A to State’s
                     Exhibit 8, what conclusion or opinion did you reach, to a
                     reasonable degree of scientific certainty, as it relates to that?

       [Defense]:    For the record, we’ll renew our objection.

       A.            The class characteristics that Mr. Williams described, they are
                     the same. The firearm in State’s Exhibit 7A is a 9-millimeter
                     Ruger caliber, and the cartridge case that’s in State’s Exhibit 8
                     is a 9-millimeter Ruger caliber cartridge casing.

       Q.            And to a reasonable degree of scientific certainty, did you reach
                     a conclusion as to the individual characteristics as it relates to
                     the casing in State’s Exhibit 8, as well as the gun in State’s
                     Exhibit 7A?

       A.            Yes, I did.

       Q.            And what was that conclusion, to a reasonable degree of
                     scientific certainty, that you reached?

       [Defense]:    We will renew our objection.

       [COURT]:      Overruled.

       A.            That the cartridge case that’s in State’s Exhibit 8 was fired in the
                     gun that’s in State’s Exhibit 7A.

(Emphasis added). Thus, it is evident that McIntire determined that the casing and gun

matched to a “reasonable degree of scientific certainty.”

¶15.   Willie further argues, however, that if such science “is inherently unreliable, what

does a reasonable degree of scientific certainty even mean?” Willie particularly takes issue

with McIntire’s failure to provide a margin-of-error rate related to the method he utilized.


                                              9
When asked by defense counsel about the margin of error, McIntire replied: “I understand

what you’re talking about with ‘margin of error,’ but we do not have a reporting procedure

for a margin of error.” But McIntire also clarified that he was not saying “there was not a

margin of error in the field.”

¶16.   We do not find McIntire’s failure to cite any margin of error warrants reversible error

as asserted by Willie. The United States Supreme Court noted in Daubert:

       The inquiry envisioned by [Federal] Rule [of Evidence] 702 is, we emphasize,
       a flexible one. Its overarching subject is the scientific validity and thus the
       evidentiary relevance and reliability of the principles that underlie a proposed
       submission. The focus, of course, must be solely on principles and
       methodology, not on the conclusions that they generate.

Daubert, 509 U.S. at 594-95. Since Glynn, other courts have supported the admissibility of

such testimony and upheld an examiner’s determination that a bullet or casing came from the

defendant’s gun to within a “reasonable degree of scientific certainty.” In United States v.

Otero, 849 F. Supp. 2d 425, 435 (D.N.J. 2012), the district court denied a defendant’s motion

to exclude a firearms and toolmark expert’s testimony, finding it both relevant and reliable

under Rule 702. The court noted: “Even courts which have criticized the bases and

standards of toolmark identification have nevertheless concluded that [The Association of

Firearm and ToolMark Examiners (AFTE)] theory and its identification methodology is

widely accepted among examiners as reliable and have held the expert identification evidence

to be admissible, albeit with limitations.” Otero, 849 F. Supp. 2d at 435; see also United

States v. Ashburn, 88 F. Supp. 3d 239, 247 (E.D.N.Y. 2015) (“Although some commentators


                                             10
have questioned the assumptions and subjectivity inherent in toolmark and firearms

identification, . . . the AFTE methodology remains a primary approach in the field, and even

after the publication of the NAS Report, courts have viewed the methodology as accepted

by the field.”); People v. Rodriguez, 79 N.E. 3d 345, 356-57 (Ill. Ct. App. 2017) (stating the

2009 NAS report did not “so undermine[] the reliability of ballistics evidence that it has

ceased to be ‘generally accepted’ in the scientific community”).

¶17.   The Louisiana Court of Appeals recently considered this issue in State v. Lee, 217 So.

3d 1266 (La. Ct. App. 2017). Like McIntire, the expert witness had years of experience, was

certified by the AFTE, and had routinely passed proficiency tests. Id. at 1273. The expert

witness also testified that he “was not aware of any error rate with respect to the type of

testing he performed.” Id. at 1274. Addressing Daubert and Rule 702, the appellate court

found the testimony offered by the expert to be “relevant” and “reliable,” stating:

       Based on the foregoing, it cannot be said that the jurisprudence supports
       Defendant’s assertion that the scientific community has rejected the
       methodology and theory of firearms identification. To the contrary, even after
       publication of the [2009] NAS Report, courts have addressed, in detail, the
       reliability of such testimony and ruled it admissible, although to varying
       degrees of specificity.

Id. at 1275-78.

¶18.   We conclude that the trial court did not err in qualifying McIntire as an expert and

allowing his testimony. Consequently, Willie’s harmless-error argument is moot. We affirm

Willie’s convictions and sentences.

¶19.   AFFIRMED.

                                             11
    LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




                               12
