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Relevancy: Weapons

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Recently, I’ve been posting about relevancy issues that arise with some frequency in North Carolina criminal cases. A final topic in that vein is the relevancy of evidence pertaining to weapons allegedly used in the crime. Suppose for example that the State seeks to introduce evidence of a knife allegedly used in an assault. The knife was found on the defendant’s property. There are no fingerprints on the knife and no other physical evidence links the knife to the crime. However, the State’s medical expert will testify that the depth and width of the victim’s wounds are consistent with the dimensions of the knife and that they could have been caused by the knife. The defendant objects, asserting that because there is no evidence conclusively linking the knife to the crime, any evidence regarding the knife is irrelevant. How should the judge rule on the Rule 401 objection?

The cases hold that that for evidence of a weapon allegedly used in a crime to be relevant, the State need not conclusively connect the weapon to the crime. The courts say that the lack of evidence establishing such a conclusive connection goes to weight, not admissibility. Thus, in a fact pattern very similar to my example, evidence of a weapon was held to be relevant. State v. DeCastro, 342 N.C. 667 (1996) (evidence of a knife found three months after the murder in a pond some distance from the scene was relevant; although the knife had no bloodstains and was not tested for fingerprints, the medical examiner opined “that some of the fatal knife wounds found on both victims were consistent with the length and width of the knife and that the knife could have been one of the murder weapons;” the lapse in time in finding the knife and its distance from the scene affected weight, not admissibility); see also State v. Grooms, 353 N.C. 50 (2000) (evidence regarding a pocketknife carried by the defendant and a hacksaw frame and blades was relevant in a murder prosecution; any variance in size between the defendant’s knife and the medical examiner’s description of the wounds affected weight, not admissibility; based on the proximity of the hacksaw frame to the victim’s severed hand and evidence that the hand was severed by a blade similar to those at issue, the items were relevant; the lack of fingerprints on the hacksaw frame, lack of evidence that the blades fit into the frame, and the common availability of such blades affected weight, not admissibility); State v. Felton, 330 N.C. 619 (1992) (the failure of State’s expert to conclusively match bullets to the murder weapon affected weight, not admissibility); State v. Lytch, 142 N.C. App. 576 (2001) (bullets found two days after the murders by the manager of a trailer park where the defendant lived were relevant; the lack of evidence conclusively showing where in the trailer park the bullets were discovered impacted weight, not admissibility; the brief time lapse between the crimes and discovery of the bullets, the proximity of the bullets to defendant’s residence, and the fact that one of the bullets was at one time in the murder weapon established relevancy), aff’d, 355 N.C. 270 (2002).

Of course, there must be a sufficient connection between the weapon and the crime, or the evidence is irrelevant. Thus, in my example, if the assault was committed with a firearm, evidence of the knife would be irrelevant unless that weapon was connected to the crime in some other way. See, e.g., State v. Bodden, 190 N.C. App. 505 (2008) (nine-millimeter bullet found near a murder scene was irrelevant where the bullets used to shoot the victim were .38 or .357 caliber); State v. Grant, 178 N.C. App. 565 (2006) (testimony that the defendant possessed a pistol was irrelevant where the pistol was not connected to the shooting of the victim); State v. Patterson, 59 N.C. App. 650 (1982) (when the robbery was committed with a small handgun, admission of a sawed-off shotgun was error). In drug cases, this rule has been relaxed somewhat. Our courts have held that evidence regarding gun possession generally is relevant in drug cases, reasoning that there is a common sense connection between guns and drugs. See, e.g., State v. Boyd, 177 N.C. App. 165 (2006) (fact that a shotgun was found in a closet in the defendant’s home was relevant to drug possession and trafficking charges). And finally, defense lawyers shouldn’t forget about Rule 403 as a potential basis for excluding evidence of weapons where there the State hasn’t established a strong connection between the weapon and the crime.

One comment on “Relevancy: Weapons

  1. I went and read Bodden carefully. Please note that the bullet recovered was not matched to the weapon that shot the deceased but its erroneous entry into evidence was held harmless.

    That said, lets talk about recovered bullets (the projectile only). The unfired nominal diameter of a lead or jacketed 9 mm bullet is .355 inch. The nominal diameter for a bullet to be used in a .38 Spl or .357 Magnum round will be either .357 or .358 inch. Some of the variant calibers close in size, for example, .38 Super, use a .356 inch nominal diameter.

    Back to Bodden a moment. The Court states the 9 mm bullet came from a semi-auto but the deceased was shot three times with a revolver. No gun was ever recovered and there is no recited testimony about any eye witness describing the firearm used. One might argue that the Court “assumed” a 38 Spl./.357 Mag. bullet could only be fired from a revolver and the 9 mm bullet only from a semi-auto. (Or there may have been more definitive testimony not cited.)

    Here are several points that affect relevancy:

    (1) Revolvers are manufactured to use semi-auto rounds, specifically the 9 mm, .38 Super, 40 S&W, 10 mm & 45 ACP. The 9 mm and 45 ACP revolvers are readily available while the models for other calibers tend to be less-seen products. There is a revolver design that periodicly re-surfaces at the annual SHOT Show and has allegedly been produced from time to time. The cylinder design allows the interchangeable use of 5 or more pistol or revolver rounds in approximate .38 caliber without any modifications, typically .380, 9 mm, .38 Super, .38 Spl and .357 Mag. Ruger produces single action revolvers with extra cylinders (45 ACP for a .45 Colt revolver and 9 mm for a .357 Mag revolver).

    (2) Semi-autos are manufactured to use revolver rounds. These tend to be specialized and/or “high dollar” products. For example, the Desert Eagle in .357 Mag and .44 Mag remains in production and there are many various out-of-production target pistols by Colt and S&W that shoot .38 Spl “wadcutter” rounds. The popularity of pistols and revolvers for the WWII .30 Carbine round comes and goes.

    (3) And back to the quoted measurements. 9 mm bullets can be easily hand-loaded into .38 Spl or .357 Mag cases as well as into .38 Super cases. Using lead bullets a hand-loader might well be able to get a slightly larger .356 or .357 bullet to function in a 9 mm case, especially if one of the larger (9×21, 9×23) caliber pistols was available instead of one chambered for the more common 9 mm (9×19) NATO or “Luger” round.

    And returning to Bodden. Yes, the particular 9 mm bullet recovered near the crime scene was irrelevant. But it was irrelevant because there was no ballistic match to the bullets recovered from the deceased, not because the bullets in the deceased might have come from a revolver and not because those bullets were consistent with .38 Spl or .357 Mag use.

    I submit that one cannot assume that a particular bullet was fired from a revolver, a semi-auto or even a rifle (I left out the discussion of hangun caliber rifles and rifle caliber pistols, and the discussion of commonly availabe sub-caliber devices to allow smaller rounds to be fired from a weapon chambered for a larger round, i.e. .22 LR in .223 Rem., .32 ACP in .308 Win., there are plenty more) based soley on the original caliber of the projectile.

    In the appropriate case there could well be circumstances supporting relevance of the admission of a bullet of one caliber together with bullets of another caliber or the admission of a bullet of one caliber and a weapon not usually associated with that caliber.

    B M Brogden Jr

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