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State v. Clifton3/4/1997
those prevailing at the time of the occurrence in controversy. State v. Phillips, 228 N.C. 595, 598, 46 S.E.2d 720 (1948); State v. Wright, 52 N.C. App. 166, 173-74, 278 S.E.2d 579, 585, disc. review denied, 303 N.C. 319, 281 S.E.2d 658 (1981). The requirement of substantial similarity does not require precise reproduction of circumstances to be admissible. Id. The trial court must consider whether there are dissimilarities in conditions likely to distort the results of the experiment, and whether the dissimilarities may be adjusted or explained so that their effects can be understood by the jury. State v. Jones, 287 N.C. 84, 97-98, 214 S.E.2d 24, 33-34 (1975); Wright, 52 N.C. App. at 174, 278 S.E.2d at 585. If the differences in the conditions are explainable by the expert witness, precise reproduction of the circumstances is not required. Id. Candid acknowledgement of dissimilarities and limitations of the experiment are enough to insulate the testimony from prejudice great enough to warrant reversal. Wiles v. N.C. Farm Bureau Insurance Co., 85 N.C. App. 162, 165-66, 354 S.E.2d 248, 250, disc. review denied, 320 N.C. 517, 358 S.E.2d 533 (1987). Whether an experiment was conducted under substantially similar conditions is a question of law and is reviewable by the appellate courts. Wright, 52 N.C. App. at 173, 278 S.E.2d at 585 (citing State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975)).
The experiments were conducted by firing .22 caliber and .44 caliber revolvers through blood soaked sponges and by slapping a blood source by hand. White paper and a tee shirt were placed in close proximity to the sources of blood to record the blood spray patterns. The State's expert testified that these methods of experimentation were standard procedure conducted by his agency, that the results obtained were indicative of or similar to blood patterns observed in other actual shootings, and that the results seen in the experiment were consistent with the stains actually found on defendant's blouse in evidence.
While there were differences between the circumstances of the experiments and of the shooting, the expert witness acknowledged the dissimilarity of the sponge used in the experiments from human flesh and that his experiments could not identify who held the weapon at the moment of firing. He also stated that variables of caliber, muzzle velocity, and other factors could influence the result. He clearly communicated his limited Conclusion: "Based on the blood stain analysis detailed in this report, the blood splatter on the right shoulder of the [defendant's blouse] is the result of the person wearing the [blouse] being in close proximity to a source of blood at the time it was being acted upon by a force."
Defendant also argues that the experiments were not relevant pursuant to N.C. Rule Evid. 401 which provides, "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." However, the experiments demonstrated that it was more probable that defendant was in close proximity to James Clifton at the time the gun was fired because of the back splatter blood stains on the right shoulder of her blouse. Furthermore, the experiments cast doubt on the credibility of defendant's statements to Chief Deputy Beckham that she did not remember being close to her husband at the time of the shooting and that she did not see the shooting. Accordingly, we conclude that the trial court properly admitted the results of the experiments.
The second issue is whether the trial court committed reversible error by denying defendant's motion to dismiss for
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