Virginia Lawyers Weekly//September 6, 2023
Virginia Lawyers Weekly//September 6, 2023//
The trial court correctly refused to admit testimony from appellant’s firearms expert because the proffered testimony would attack the credibility of the prosecution’s firearms expert. His convictions for first-degree murder and firearm offenses are affirmed.
At issue in this case is whether tool markings on shell casings found at the double murder scene matched barrel markings of the gun used to kill the victims.
“[T]he Commonwealth’s expert witness, Cara McCarthy, testified at a pretrial hearing that her firearm identification methodology followed the AFTE [Association of Firearm and Toolmark Examiners] procedures – which are widely accepted by the Virginia Department of Forensic Science.
“While [appellant] Welsh attempted to discredit McCarthy’s method by questioning her on two controversial reports (the NAS [National Academy of Forensic Science Report] report and the PCAST [President’s Council of Advisors on Science and Technology Report] report), McCarthy responded by testifying that the PCAST had been rejected by the Department of Justice, AFTE, and the ATF [Bureau of Alcohol, Tobacco, Firearms, and Explosives].
“In addition, she testified that she has extensive experience in firearm and toolmark identification, having previously testified as an expert in many other courts throughout Virginia.
“Given the Supreme Court’s longstanding precedent allowing expert opinion testimony on firearm and toolmark identification and given that Cara McCarthy used a standard method in her field to analyze the Buck Mark .22 caliber pistol and shell casings found at the scene, we cannot say that the trial court erred by permitting Cara McCarthy to testify at trial as an expert witness in firearm and toolmark identification.
“In addition, the trial court did not err when it prohibited Welsh from cross-examining McCarthy on the NAS report and the PCAST report, given that she never acknowledged either study as a standard authority in her field.
“Under Virginia Rule of Evidence 2:706(b), ‘[w]here an expert witness acknowledges on cross-examination that a published work is a standard authority in the field, an opposing party may ask whether the witness agrees or disagrees with statements in the work acknowledged.’
“Here, McCarthy rejected the NAS report and the PCAST report as standard authorities in the firearm identification field at the pretrial hearing. Furthermore, when Welsh attempted to cross-examine McCarthy on the PCAST report during trial, McCarthy stated that ‘it has not been accepted. We don’t use the PCAST report or refer to it in any of our methods or examination.’
“Consequently, given that expert witness Cara McCarthy rejected both the NAS report and the PCAST report as standard authorities in the field of firearm identification, we cannot say that the trial court abused its discretion by limiting Welsh’s cross-examination of the expert witness under Rule 2:706(b) in the way that the trial court did.”
On the fourteenth day of trial in this case, the trial court precluded Welsh from having William Tobin testify as an expert in forensic metallurgy and material science.
“During one of his three proffers about Tobin’s testimony, Welsh’s counsel explained that Tobin ‘will opine on or discuss Ms. McCarthy’s worksheet and case file’ and that Tobin ‘will explain the flaws in the methodology used in this case as to draw a conclusion.’
“The trial judge then stated, ‘I think that the entirety of what you’re talking about is to attack the credibility of another witness, and that’s clearly not admissible.’
“The trial court then excluded Tobin as an expert witness because, under Virginia Rule of Evidence 2:702(b), expert ‘[t]estimony that is speculative, or which opines on the credibility of another witness, is not admissible.’
“However, the trial judge also said that he was willing to reconsider and gave counsel for Welsh the opportunity to speak with Tobin over a recess so that counsel for Welsh could talk with Tobin, after which the trial judge was willing to reconsider whether Tobin could testify or add any additional information to the proffer.
“After the recess, counsel for Welsh informed the trial court that he had sent Tobin home. …
“[A]ssuming without deciding that the trial court erred by excluding Tobin’s testimony, we review Welsh’s assignment of error under the statutorily required harmless error analysis. …
“Welsh certainly ‘had a fair trial on the merits,’ given that he was still able to extensively question Cara McCarthy’s conclusions on firearm and toolmark identification even without Tobin’s testimony. …
“Welsh proffered that Tobin would have discussed the topics of subclass characteristics, the lack of a rate of error in McCarthy’s methodology, and the influence of metallurgy on the shell casing and firearm manufacturing processes.
“However, McCarthy admitted in the earlier cross-examination of her that, unlike many other scientific disciplines, her methodology does not have a rate of error. Furthermore, counsel for Welsh cross-examined McCarthy on the topic of subclass characteristics.
“In addition, Welsh agreed that McCarthy had stated during cross-examination that ‘she did not take into consideration or she did not know how the shell casings were manufactured.’
“Finally, the jury also heard McCarthy limit her own testimony by stressing that her opinions were ‘not with 100 percent absolute certainty.’
“In short, the jury was made aware of the limitations in the Commonwealth’s expert witness Cara McCarthy’s testimony. The jury heard counsel for Welsh question McCarthy’s findings, and the jury even heard McCarthy limit her own testimony. However, the jury still found Welsh guilty beyond a reasonable doubt.”
“[T]he Commonwealth put on an overwhelming amount of evidence showing that Welsh had a motive to kill Rishi and Mala Manwani, proving that Welsh was at the crime scene on the morning of the murders, and demonstrating that Welsh showed a significant consciousness of guilt after the murders took place. …
“Therefore, even if the trial court erred in preventing William Tobin from testifying as an expert witness, any error was harmless.”
Welsh v. Commonwealth, Record No. 0860-21-4, Aug. 15, 2023. CAV (published opinion) (Beales) From the Circuit Court of Loudoun County. (Fisher) Meghan Shapiro for appellant. Katherine Quinlan Adelfio, Jason S. Miyares for appellee. VLW 023-7-322, 20 pp.