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Criminal Practice – Murder – Innocent Bystander – Evidence – Bullet Caliber

State v. Crandell. (Lawyers Weekly No. 10-07-1170, 16 pp.) (Sanford L. Steelman Jr., J.) Appealed from Edgecombe County Superior Court. (Cy A. Grant, J.) N.C. App. Click here for the full text of the opinion.

Holding: The state presented evidence that only two guns were fired; that defendant was one of the shooters; that Xavious Thomas, the other shooter, fired a .32 caliber pistol; that .40 caliber shell casings were found at the scene; that a .40 caliber pistol was seized from defendant after the incident; and that the bullet fragment retrieved from the victim’s head came from a weapon that was .38 caliber or larger. When viewed in the light most favorable to the state, there was ample circumstantial evidence that the fatal shot was fired by defendant’s .40 caliber pistol and that defendant was the perpetrator of the murder.

No error in defendant’s conviction of first-degree murder.

Even though the evidence showed defendant’s premeditation and deliberation were directed at Thomas, the fact that an innocent bystander was killed rather than Thomas is irrelevant under the doctrine of transferred intent: where one is engaged in an affray with another and unintentionally kills a bystander, his act shall be interpreted with reference to his intent and conduct towards his adversary.

There was sufficient evidence of defendant’s malice, premeditation and deliberation to warrant the submission of the charge of first-degree murder to the jury.

Police Detective Robert Rothrock’s testimony regarding the calibers of the bullets retrieved from the victim’s vehicle was testimony based on Rothrock’s personal experience and observations relating to various calibers of weapons, and was admissible under N.C. R. Evid. 701.

Even assuming arguendo that it was error for the trial court to admit Rothrock’s testimony, the same evidence was presented to the jury through the testimony of firearms expert, Christopher Tanner. Tanner testified without objection that the lead fragment retrieved from the victim’s head was “consistent with bullet core weights of nominal .38 caliber and larger projectiles.”

The trial court did not abuse its discretion in admitting Rothrock’s testimony concerning the caliber of the bullets found in the victim’s vehicle, and the caliber and location of shell casings recovered at the crime scene.

No error.

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