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State v. Thomas2/27/2004
and Bond assert two challenges to Dr. Smith's testimony: (1) Dr. Smith is not qualified to render opinions as to a living person, and (2) Dr. Smith should not have been qualified as an expert in ballistics.
(1) Living person
Dr. Smith was asked to render an opinion as to the cause of death of the victim and whether it related to the gunshot fired by Defendant Thomas two and one-half years earlier. Determining the cause of death is the type of opinion a medical examiner is called upon to make. Dr. Smith's review of the treatment records, including assessments of James Day's injuries, was necessary to the formation of that opinion. In this regard, Dr. Smith is a licensed medical doctor in the State of Tennessee and board certified in forensic pathology, anatomical pathology, and clinical pathology. Based upon his training as a medical doctor, Dr. Smith was qualified to testify regarding the gunshot wound inflicted upon the victim, the likely results of such an injury , and the course of treatment to the victim. The trial court did not abuse its discretion in admitting this testimony. This claim is without merit.
(2) Ballistics expert
During voir dire of Dr. Smith, Dr. Smith stated that he has previously testified as a ballistics expert. Defendant Bond objected, stating that the testimony of a ballistics expert was not relevant to the victim's cause of death. The objection was overruled. The trial court determined that a ballistics expert could "shed some light on the gunshot wound," recognizing that "the state is attempting . . . to demonstrate that the gunshot is the cause - the initial event that caused his death; and to that end, I think if this witness can be qualified as a ballistics expert, his opinion may be very helpful in shedding some light on the facts of the case[.]" Dr. Smith then continued to explain the role of a ballistics expert and the training necessary to become a forensic firearms examiner. He stated that he received training in forensic firearms examination by R.A. Stindler. Objection was again made by both Defendant Bond and Defendant Thomas, on the basis that such testimony was not relevant. On appeal, Defendants complain that the qualifications of Dr. Smith as a ballistics expert were irrelevant in that no knowledge of firearms identification and analysis was introduced with his opinion as to the cause and manner of death.
Defendants are correct that there was no direct challenge to the fact that the victim was wounded by a bullet. However, the effect of the shot was crucial to the defense and the State had the burden of proving beyond a reasonable doubt that the victim's death was the result of a gunshot wound inflicted during the robbery. Dr. Smith's training in forensic firearm identification, specifically his military training involving traumatic injuries, permitted him to make the determination as to whether the shot was likely to be fatal. We cannot conclude that the trial court abused its discretion in permitting Dr. Smith to be qualified as a firearms expert. This claim is without merit.
IV. Lesser-included Offenses of Felony Murder
At the close of proof, Defendant Bond asked that the jury be instructed as to the lesser-included offenses of first degree murder, those being second degree murder, reckless homicide, and criminally negligent homicide. Defendant Bond also asked for an instruction on facilitation of a robbery. Defendant Thomas requested instructions on second degree murder and the appropriate lesser-included offenses of murder or homicide. The trial court denied all requests for instructions on lesser-included offenses of first degree felony murder. In denying the requests, the trial co
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