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State v. Andrews3/14/2001
ourt's previous ruling.
[ .] SDCL 19-15-2 provides the rule governing expert witnesses in this state:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
A lay witness, on the other hand, "may give an opinion if he has personal knowledge of the matter. Non-expert testimony . . . requires no foundation[.]'" Atkins v. Stratmeyer, 1999 SD 131, , 600 NW2d 891, 897 (citations omitted). Lay witness testimony is limited to "those opinions or inferences which are 1) rationally based on the perception of the witness and 2) helpful to a clear understanding of his testimony or the determination of a fact in issue." SDCL 19-15-1. The admissibility of a claimed expert's opinion is within the discretion of the trial court. The trial court's ruling will be disturbed only in case of a clear abuse of discretion. State v. Moeller, 1996 SD 60, , 548 NW2d 465, 483. Here, the trial court denied State's motion, brought only five days before trial, to admit Parsons' testimony as an expert witness. We are not asked to review the propriety of this ruling, but whether the trial court abused its discretion in allowing Parsons' testimony at trial.
[ .] Examination of Parsons' trial testimony shows he clearly had no knowledge of the matter at trial based on his own perceptions. His knowledge was gained through his independent testing of Andrews' shotgun, and his opinion based on the results of those tests. His testimony went beyond the statutory and the trial court's limitations of a lay witness. The subject of his testimony was beyond the knowledge and experience of the average layperson. State v. McCord, 505 NW2d 388, 391 (SD 1993); State v. Hill, 463 NW2d 674, 676 (SD 1990). During Parsons' explanation of the tests he performed, the test results, and the mechanics of this gun's firing system, he also testified that he had sixteen years of experience with law enforcement, was a firearms instructor for the police department, was certified on various firearms and had in fact handled many firearms. His testimony was that of an expert, not a lay person. See Campos v. State, 538 SE2d 447, 448 (Ga 2000) (testimony that weapon required eight pounds of pressure on the trigger to fire and had no potential for accidental discharge provided by expert witness); State v. Bledsoe, 2000 WL 1717539, *1 (TennCrimApp 2000) (testimony that cylinder of gun would not rotate when gun was set with malfunctioning chamber under its hammer provided by expert witnesses).
[ .] Admission of Parsons' testimony that exceeded the trial court's order and the statutory limitations of lay witness testimony was error, which will not be tolerated by this Court in the future. However, Andrews made no objection at trial to this testimony. Failure to object at trial constitutes a waiver of the issue on appeal. State v. Henjum, 1996 SD 7, , 542 NW2d 760, 763. We further note that the majority of information regarding Parsons' background and experience with firearms was elicited by Andrews during cross-examination. As this issue is waived from our consideration, we write to preclude this type of end-run tactic in the future which resulted in error, but make no inquiry into the effect of prejudice, if any, resulting from Parsons' testimony.
[ .] 3. Whether the trial court erred in failing to instruct the jury on the lesser included offense of second degree manslaughter.
[ .] Andrews claims there was support for a second degree manslaughter instruction b
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