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State v. Andrews3/14/2001
ive additional witnesses, previously unnoticed. One of these five witnesses, Detective Parsons, of the Rapid City Police Department, had performed tests on the shotgun used to kill Davis. In one of the tests, Parsons had dropped the gun from various heights and positions to determine a pattern, if any, for accidental discharge. Parsons also tested the trigger-pull to determine the amount of pressure necessary to fire the weapon. These tests were performed November 30, 1999 and results were not reduced to written form at the time of the December 2 motion hearing. The testing was described at the hearing. SDCL 19-15-5.2 and 19-15-6 provide that a written report prepared by an expert must be noticed with a copy of the report to the adverse party within a reasonable time before trial.
[ .] Andrews' objection that Parsons was an expert witness, not a lay witness, was sustained by the trial court. Later in the hearing, however, the court clarified that it only denied Parsons as an expert witness and that if he testified at trial to the facts of his test, and a proper foundation were laid, the court would not consider that to be expert testimony:
Court: I only denied him as an expert witness. If he is involved in any other way with this matter as a witness - - I didn't know that he was. I was only referencing the expert witness portion.
State: I guess here's the question I have, Judge. The fact that he fired the gun from various distances and there is results of that, does the Court consider that expert testimony or not?
Court: Absolutely.
State: I can't think of anything that I would, in terms of pounds of pressure on the trigger, as to how much needs to be applied?
Court: If that's all you are showing is how many pounds of pressure and if he used a reliable scale; you can make your foundation. I guess I don't consider that an expert opinion, but if you are going to extrapolate from that any place, then you are getting into expert testimony.
Defendant: My opinion is, pounds per pressure on testing of a gun is all within the purview of the expertise. He doesn't have any other involvement in this case, other than what he's done with that gun.
Court: If he testifies that if you pushed the lever over and the barrel tips up, do you consider that expert testimony? That's just handling the gun.
Defendant: Right. But if he gets into the pull on the trigger, I think it's at that point you are getting into the purview of the expert testimony.
Court: I guess it depends how they put, how he figured out what the poundage was. There is a regular instrument that you read, just like when you step on your kitchen scale, that will tell you what the pull is. If that's all he did and he sat down and did that, I don't have any problem with that. I don't think that's expert testimony.
State: We will submit Detective Parsons' report to the defense today, even though we can't use it, so they have it, but I understand that we can't use it.
[ .] Despite this pretrial statement by the State, at trial, Parsons testified that he fired the gun approximately sixteen times on the afternoon of November 30 and tested the shotgun for "potential, accidental discharge." He displayed the gun to the jury and explained his examination of the weapon and his testing procedures. He testified that he could not get the gun to accidentally discharge and stated " his gun cannot be accidentally fired unless your finger is completely on the trigger and held back." Andrews failed to object to this testimony at trial but now claims, on appeal, that this was expert testimony admitted in violation of the trial c
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