State v. Clark , 101 Ohio App. 3d 389 ( 1995 )

I must respectfully dissent. The appellant's third assignment of error has merit, and this case should be reversed and remanded for a new trial. The trial court erred in admitting the testimony of the state's expert witness, James Wentzel, which was materially prejudicial to the appellant. The state failed to present any evidence to show that Wentzel's reconstruction of the crime scene using AutoCAD (computer-aided design) was definite enough to be of use to the jury or to show that he was qualified as an expert witness.

At trial, Wentzel testified that his responsibilities at the Cuyahoga County Coroner's Office included taking photographs, measuring crime scenes, reconstructions, imprint analysis, pattern transfer analysis, bullet projectory, flight characteristics, and blood spatterings. He stated that he completed no degree but briefly studied aeronautical engineering from 1979 to 1981 and industrial design at an art institute from 1982 to 1984. Although he is certified to teach in the Ohio Peace Officer Basic Training Program, there was no testimony that he taught any courses related in any manner to crime scene reconstruction.

Wentzel reconstructed the crime scene sub judice using AutoCAD software. Wentzel testified that this software is used in lieu of a drafting table and is used for building bridges and buildings. Wentzel testified that he has performed a total of twenty to thirty crime scene reconstructions, and only in ten to fifteen of those has he used the AutoCAD. Wentzel knows of no other person using this technology to reconstruct crime scenes, and prior to this case, he has never testified regarding reconstructions of criminal cases. Similarly, he testified he was unaware if it was accepted by the scientific community and further that this was the first time this type of testimony was proffered in a criminal case in Cuyahoga County.

Several assumptions were made by Wentzel in reaching his conclusions. Although he is not a doctor, and he cited no authority, Wentzel assumed that "it is fairly likely that the bullet went in a straight line" through the body because the coroner testified that probably no bones were struck as the projectile passed through the body. He testified that if the bullet did deflect, he would be unable to accomplish a reconstruction. Given that Wentzel cannot be certain that the bullet did not deflect, his determinations, by his own admission, have no validity.

Wentzel stated that the results of his reconstructions are only as accurate as the measurements given to him, but admitted that he neither visited this crime scene nor personally took any of the measurements used in the analysis. It was quite clear in the testimony that it was impossible for Wentzel to place the appellant and the victim in their exact positions at the time of the fatal shot. The best he was able to do was to eliminate areas of the bathroom from where the gun could not have been discharged and exclude various positions that the victim's body might have been in when she was shot.

The Rules of Evidence provide the standard for admitting expert scientific testimony. See Daubert v. Merrell DowPharmaceuticals, Inc. (1994), 509 U.S. ___, 113 S.Ct. 2786,125 L.Ed.2d 469. Evid.R. 702 sets limits on the admissibility of purportedly scientific evidence, and the trial judge is assigned the task of ensuring that an expert's testimony rests on a reliable foundation and is relevant. Here, an experienced trial judge stated that he would have preferred that the motion to exclude Wentzel's testimony be considered at a pretrial motion hearing so that more time would have been available to examine the law concerning opinion testimony. The trial court's misgivings were justified.

In State v. Tomlin (1992), 63 Ohio St.3d 724, 727-728,590 N.E.2d 1253, 1256, the court detailed the standard for qualifying a witness as an expert:

"Evid.R. 702 provides that `[i]f 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.' However, as a threshold to the introduction of expert testimony, the trial court must first determine if the expert is qualified under Evid.R. 104(A). SeeKitchens v. McKay (1987), 38 Ohio App.3d 165, 168-169,528 N.E.2d 603, 606; Wagenheim v. Alexander Grant Co. (1983),19 Ohio App.3d 7, 18, 19 OBR 71, 83, 482 N.E.2d 955, 968;State v. Wilson (1982), 8 Ohio App.3d 216, 220-221, 8 OBR 288, 292,456 N.E.2d 1287, 1292. `The qualification of an expert is a matter for determination by the court on the facts, and rulings with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion.' State v. Maupin (1975),42 Ohio St.2d 473, 479, 71 O.O.2d 485,488, 330 N.E.2d 708,713; see, also, Bostic v. Connor (1988), 37 Ohio St.3d 144, 148,524 N.E.2d 881, 886; State v. Williams (1983),4 Ohio St.3d 53, 4 OBR 144, 446 N.E.2d 444, syllabus; Frank v. Vulcan Materials Co. (1988), 55 Ohio App.3d 153, 155, 563 N.E.2d 339, 342.

"As was noted by this court in Alexander v. Mt. CarmelMedical Ctr. (1978), 56 Ohio St.2d 155, 159, 10 O.O.3d 332, 334,383 N.E.2d 564, 566, `It is a general rule that the expert witness is not required to be the best witness on the subject. * * * The test is whether a particular witness offered as an expert will aid the trier of fact in the search for the truth.'" (Citations and footnote omitted.)

Additionally, in State v. Jones (1981), 67 Ohio St.2d 244,252, 21 O.O.3d 152, 157, 423 N.E.2d 447, 452, the Supreme Court noted that the Sixth and Fourteenth Amendments to the United States Constitution do not compel a trial court to accept a witness as expert who is not qualified to give expert testimony.

In the case sub judice, Wentzel is clearly not an expert in crime scene reconstruction. When one considers his background, one must concede that there is not even the slightest indication that he qualifies by knowledge, skill, experience, training or education as an expert. He has performed only a minimal amount of reconstructions and has never before been qualified as an expert.

Specifically, Wentzel attended two years of college and two years of art school, but there is no mention of his use of any computer during those years, let alone AutoCAD software. In fact, nowhere in the testimony does Wentzel testify as to what, if any, coursework he took in the use of computers or any other type of computer training, how long he has used a computer, or his level of proficiency. He testified that AutoCAD is used in place of a drafting table but never informed the court whether he had even a single course in drafting. Wentzel possesses neither a junior college nor a four-year engineering or computer science degree. Although lack of a degree in and of itself does not preclude a witness from testifying as an expert, it was manifest that the witness had neither the experience nor the educational background to advance himself as an expert witness.

Finally, Wentzel primarily earns his living as a photographer. Although he performs other sundry tasks for the coroner's office, he does not have the requisite expertise to testify regarding the reconstruction of a crime scene. Wentzel has demonstrated at the very most that he may be a capable technician who has the ability to gather data, not that he is qualified to reach conclusions from that data.

I recognize that the witness underwent cross-examination, but that does not cure the deficiency of his being permitted to testify as an expert witness. I would reverse and remand this cause for a new trial since the testimony given by Wentzel was prejudicial to the appellant and the evidence of appellant's guilt is not otherwise overwhelming. This testimony did not aid the jury on its search for the truth but rather obfuscates the overarching issue: whether or not the appellant was guilty of murder.