No. COA 11-311 SIXTEEN-B DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA

v.

MYRON KEITH BRITT,

Defendant.

)))))))))

From Robeson County

* * * * * * * * * * * * * * * * *

DEFENDANT-APPELLANT’S BRIEF

* * * * * * * * * * * * * * * * *

INDEX

TABLE OF AUTHORITIES......................................................iiQUESTIONS PRESENTED......................................................1STATEMENT OF THE CASE..................................................2STATEMENT OF GROUNDS FOR APPELLATE REVIEW. 2STATEMENT OF THE FACTS................................................2ARGUMENT............................................................................13

I. ADMISSION OF SBI’S UNRELIABLE FIREARM IDENTIFICATION TESTIMONY VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND THE RULES OF EVIDENCE ...................13

II. TRIAL COURT’S ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR WRONGFUL ACTS CONSTITUTED IMPERMISSIBLE CHARACTER EVIDENCE.................................36

CONCLUSION.........................................................................40CERTIFICATE OF COMPLIANCE WITH RULE 28(J)........41CERTIFICATE OF FILING AND SERVICE.........................42APPENDIX INDEX.................................................................43

i

TABLE OF AUTHORITIES

Cases

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).............................................................................................24

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009)..........21, 26

Ramirez v. Florida, 810 So. 2d 836 (2001).......................................27

State v. al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002).............37

State v. Anderson, 175 N.C. App. 444, 624 S.E.2d 393 (2006)........24

State v. Baker, 109 N.C. App. 643, 428 S.E.2d 476 (1993)..............34

State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824 (2004)...................15

State v. Blackstock, 165 N.C. App. 50, 598 S.E. 2d 412 (2004).......36

State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)..................33

State v. Brown, No. COA1693, 2011 N.C. App. LEXIS 837 (May 3, 2011).................................................................................38

State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984).............25, 27

State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2006)................37

State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985)................27

State v. Felton, 330 N.C. 619, 412 S.E.2d 344 (1992)......................24

State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961)........................26

State v. Gainey, 355 N.C. 73, 558 S.E.2d 463 (2002).......................24

State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991)..........37

ii

State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990)..............25

State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).......................40

State v. Jordan, 149 N.C. 838, 562 S.E.2d 465 (2002).....................32

State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978)..........................34

State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005)...........................32

State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001)..........................33

State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967) .....................32

State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987)..........35, 36

State v. Morgan, 359 N.C. 131, 154-155, 604 S.E. 2d 886 (2004)...36

State v. Ray, 364 N.C. 272, 697 S.E.2d 319 (2010)..........................39

State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981)........................25

State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005)............15

State v. Williams, 156 N.C. App. 661, 577 S.E.2d 143 (2003).........39

State v. Ysaguire, 309 N.C. 780, 309 S.E. 2d 436 (1985).................31

Strickland v. Washington, 466 U.S. 668 (1984)..........................34, 35

United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005). . .26, 29

Statutes

N.C. Gen. Stat. § 15A-1443(a)....................................................32, 39

N.C. Gen. Stat. § 15A-1444(a)............................................................2

iii

N.C. Gen. Stat. § 8C-1, Rule 404(b).................................................37

N.C. Gen. Stat. §§ 7A-27(b)................................................................2

Other Authorities

1 Brandis & Broun on North Carolina Evidence § 113....................25

A.A. Biasotti, A Statistical Study of the Individual Characteristics of Fired Bullets, 4 J. FORENSIC SCI. 34 (1959)............................23, 24

A. A. Biasotti & Murdock, “Criteria for Identification” or “State of the Art” of Firearms and Toolmark Identification, 16(4) ASS’N FIREARMS & TOOL MARK EXAMINERS J. 16, 19 (1984)...............27

Daniel L. Cork, John E. Rolph, Eugene S. Meieran, and Carol V. Petrie, Editors, Committee to Assess the Feasibility, Accuracy and Technical Capability of a National Ballistics Database, National Research Council, p. 3 (2008)........................................................22

Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009).....................26

Joseph J. Masson, Confidence Level Variations in Firearms Identification through Computerized Technology, 29(1) ASS’N FIREARMS & TOOL MARK EXAMINERS J. 42 (1997).....................23

National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward at 42 (August 2009)...............22

Ronald G. Nichols, Firearms and Toolmark Identification Criteria: A Review of the Literature, 42 J. FORENSIC SCI. 466, 476, note 14 (1997).............................................................................................23

Schwartz, Adina. A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification. 6 COLUM. SCI. & TECH. L. REV. 1 (March 28, 2005)...................22, 23, 24, 27

No. COA 11-311 SIXTEEN-B DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA

v.

MYRON KEITH BRITT,

Defendant.

)))))))))

From Robeson County

No. 03 CRS 56540

QUESTIONS PRESENTED

I. DID ADMISSION OF SBI’S UNRELIABLE FIREARM IDENTIFICATION TESTIMONY VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND THE RULES OF EVIDENCE?

II. DID THE TRIAL COURT’S ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR WRONGFUL ACTS CONSTITUTE IMPERMISSIBLE CHARACTER EVIDENCE?

1

STATEMENT OF THE CASE

On 6 October 2003, a Robeson County Grand Jury indicted Myron Britt on

one count of first-degree murder. (Rp. 7) Britt’s first capital trial ended in a

mistrial on 16 June 2006 after the jury reported that it could not reach a unanimous

verdict. (Rp. 21)

Britt was again tried capitally at the 1 June 2009, criminal session of the

Superior Court of Robeson County before the Honorable Gregory Weeks. (Rp. 1)

The jury convicted Britt of first-degree murder and sentenced him to life without

parole. (Rpp. 167, 176) Britt gave Notice of Appeal in open court. (Rp. 178)

The printed record was mailed on 18 March 2011. After two extensions, this

Court ordered that Britt’s Brief be filed on or before 17 June 2011.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Britt appeals his convictions following a trial upon his plea of not guilty.

This is an appeal of right. N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a).

STATEMENT OF THE FACTS

Nancy Britt lived with her husband Myron and their two children in Cary.

(Tp. 6250) Myron and Nancy grew up together in Lumberton. Their families

became acquainted through church. (Tp. 6231) Since they were ten years old,

they participated together in choir, drama and other church activities. (Tp. 6232)

By the tenth grade, Nancy and Myron began to date. (Tpp. 4494) When they went

2

away to college – Myron to N.C. State and Nancy to E.C.U. – they remained

sweethearts. Though they gave one another permission to go out on other dates,

they opted not to do so. (Tpp. 4494, 6232) The couple moved back to Lumberton

and married in 1976. (Tp. 4451) Their first child, Brandon, was born four years

later. Their daughter, Lauren, was born in 1986. (Tp. 6255)

The Britt family moved to Cary in 1992 after Nancy got a job teaching in

Wake County. (Tp. 4452) While in Lumberton, Myron became a licensed general

contractor. In Cary, he started Britt Home Builders. (Tp. 6275) Nancy’s teaching

career thrived. She was named teacher of the year in Wake County. (Tp. 4882)

Meanwhile, Myron and Nancy planned their dream house together. Myron

built their four bedroom, five bathroom house in 1996. (Tpp. 6250, 6256) They

collaborated on the decorations and design. (Tpp. 6249, 6256-57) More than just

a comfortable place to live, their new home proved to be a prudent investment.

When the Britts refinanced the house in 2002, it had an appraised value of

$825,000. (Tp. 5694)

Nancy Britt Shot at Sisters’ House in Lumberton

On the early morning of 24 August 2003, Myron Britt was awoken in his

home by Cary police. (Tpp. 5989-90) They notified him that his wife had been

shot and killed in Lumberton. Myron Britt was visibly shaken at learning the news

of Nancy’s death (Tpp. 5004, 5990, 6266)

3

The previous evening, Nancy had dinner with Lauren and Myron before

driving to Lumberton for the weekend. (Tp. 6416) One of her sisters – Donna

Madry – was severely disabled from complications following an aneurysm and

stroke. (Tpp. 4449, 4500) As a result, Ms. Madry was partially paralyzed, had

difficulty communicating, and required around the clock assistance. (Tp. 4496)

Nancy planned on staying with Donna so that their other sister, Judy Ivey,

could get away for her birthday. (Tpp. 4454-56) Judy left at about the time Nancy

arrived. (Tp. 4455) As she was leaving, she noticed that Nancy had left the door

open. (Tp. 4493) Judy spoke with Nancy on the phone at about 10:00 after

arriving at her destination. (Tp. 4456)

At some time after 3:00 a.m. on 23 August 2003, Lumberton 911 received a

call from Judy Ivey’s house. (Tpp. 4613-14) Donna called, but due to her

disability, could not communicate with the dispatcher. Officer Jacobs of the

Lumberton Police went to the house at 3:28 a.m. (Tpp. 4527-28, 4554) He went

to the rear entrance, which was open. He heard Ms. Madry inside saying “help,

hurt, help, hurt.” (Tp. 4530)

Jacobs went inside and discovered Nancy Britt’s body lying in the hallway.

(Tp. 4531) Sgt. Reaves arrived and the two policemen checked the rest of the

house for any possible intruders. They found no sign of a forced entry. (Tp. 4534)

The police found a spent shell casing in the bedroom where Nancy had been

4

staying. (Tp. 4533) Nothing was found missing from the home. (Tp. 4717)

Between EMS and Lumberton police officers responding to the scene, several

people entered the house before any crime scene investigators took control of the

scene to collect evidence. (Tpp. 4561-62)

Nancy Britt was shot in the abdomen with a single .25 Winchester

Expanding Tip bullet. (Tp. 4853) This bullet punctured Nancy’s iliac artery,

causing her to lose consciousness and die within moments. (Tpp. 4853, 4861) The

medical examiner concluded that she was probably laying down when she was

shot. (Tpp. 4854-55)

Judy Ivey told police that she had just recently seen some men begging for

change and drinking behind her house. When the police removed them from the

area, one of the men cussed her out and made a fuss. (Tpp. 4503-05) The police

did not complete a thorough canvass of the area – including the motel across the

street – later that morning. (Tp. 4695) After examining the crime scene and the

autopsy, law enforcement had no leads. (Tp. 4992)

Ellis Britt’s Old .25 Pistol

Myron became the sole suspect after SBI Agent Lacy Pittman spoke with his

childhood friend, Myron’s older brother Dickie Britt. (Tpp. 4895-96) Dickie told

Pittman that Myron had asked to borrow their father’s old pistol a few months

5

earlier. (Tp. 4880, 5007) When previously asked by the police if he owned a gun

or had a gun in his house, Myron had answered no. (Tp. 4994)

When confronted with information about the gun in a later police interview,

Myron acknowledged having borrowed his father’s old pistol from his brother. He

explained that his wife had demanded that he remove it from the house

immediately. (Tp. 5011)

Nancy knew the gun’s history. (Tpp. 4926, 6280) Myron’s father Ellis

almost shot off his ear when the pistol backfired in the 1950’s. (Tpp. 4917, 6223)

In 2001, Myron’s younger brother wanted to look at his father’s old gun during a

family visit to their mother’s house. Almost as soon as it was brought down, the

pistol accidentally misfired. (Tpp. 6224-25) After the misfire, Marjorie Britt –

Myron’s mother – demanded that the pistol be removed. Dickie then took the

pistol. (Tpp. 4877-79)

Dickie gave the gun to Myron after he told him about some intruders to the

house and concerns about protecting his family. Dickie did not know when the

attempted break-in occurred. (Tpp. 4923-24) A Cary police report documented an

occasion from the previous summer when the Britts reported potential intruders.

(Tp. 5502)

After Nancy demanded that he get rid of the gun, Myron told police that he

took the gun back to his car. The next day, he threw it out the sunroof of his car

6

and into Jordan Lake. (Tp. 5403) Myron told police that he did not feel like he

had the gun because it was in his possession for less than 24 hours. (Tpp. 5399-

406) A few weeks later, a local dive team performed a blind search in the murky

waters of Jordan Lake without results. (Tpp. 5424, 5482) Myron offered to show

police where he threw the gun, but they did not accept his offer. (Tpp. 5431-32)

Nothing Found in First Search of Myron Britt’s Explorer

During a second interview with law enforcement on 2 September 2003,

Myron consented to a search of his home. There, SBI and police seized computers,

hard drives, and other documents. (Tpp. 5063-64, 5387-94)

During the course of that search, Myron’s daughter Lauren needed to leave

to attend a tutoring session. (Tpp. 5391, 6432) Before Lauren left, Det. Sutton of

the Lumberton police conducted search of Defendant’s Ford Explorer. (Tpp. 5065,

5074, 6433-34) Det. Sutton thought he may have searched the Highlander. But

Sutton would have known that the Highlander had already been searched by the

Lumberton police soon after the crime. (Tp. 4733) He had no notes of the vehicle

search from six years before trial. (Tp. 5066) Lauren was sure that they searched

the Explorer – the only car she drove at that time. (Tpp. 6448, 6477, 6481-82)

Nothing was found in the search.

7

SBI Determines that Bullets Match

After learning about the misfiring of the old gun, the Hornady bullet that

lodged in Marjorie Britt’s wall in 2001 was retrieved by the Lumberton police.

(Tpp. 5023-25) SBI Agent Tanner was given the rush assignment to compare the

bullets. She concluded that the Hornady bullet and the Winchester bullet

recovered in the autopsy were fired from the same gun. (App. 6) Both this

particular identification and the general methodology underlying firearms toolmark

analysis were contested at trial. (App. 12-382) Experienced firearm examiners

retained by the defense concluded that there was insufficient corresponding detail

to make a positive identification. (App. 13-57)

Once the SBI concluded there was a match, police issued an arrest warrant

for Myron Britt and a search warrant for his home. These were served on 4

September 2003. (Tpp. 5419, 5422; 5887-89)

Immaculate Detection

Almost two weeks after the crime – and only two days after the Explorer had

been searched by the Lumberton police – SBI Agent Strickland found an

unfired .25 Winchester Expanding Tip cartridge in plain view under the driver’s

seat. (Tp. 5889) Agent Langley testified that the picture showing the open

driver’s side of the Explorer – State Ex. 74 – depicts what he saw when he arrived

at the car. (Tp. 5920; App. 1) The unspent cartridge is visible in the lower right-

8

hand corner, under the driver’s seat. The picture also depicts that the car is

extremely tidy, consistent with Lauren Britt’s testimony that it was always kept

clean. (6415-16) After placing the cartridge on the driver’s seat to photograph it

again, Agent Langley inventoried the cartridge.

SBI Agent Strickland – who was alone in the garage before Agent Langley

arrived – died before testifying. By the time of this search, the SBI knew that the

crime was committed with a .25 Winchester expanding point bullet. (App. 11)

Agent Langley testified that the SBI firearms section has a box of this ammunition

in its reference collection. (Tpp. 5889-90)

Police Look for Evidence of Motive

By the time the SBI and Lumberton Police completed their second search of

Myron’s home, they seized hundreds of pages of documents, computers, hard

drives, and other evidence. In addition, they subpoenaed documents from the

Britt’s accountant and tax returns. The life insurance information introduced by

the State at trial was consistent with what Myron told the police on the day Nancy

was killed. (Tpp. 4996-97) They had taken out different policies over the years in

different amounts, concluding in 2003 with a $400,000 policy. (Tpp. 5896-902)

Myron Britt had a notebook in which he kept notes about his business and

other matters, including drafts of letters to send to friends after Nancy was killed.

(State Ex. 50) On one page were listed three gun shops in the area with phone

9

numbers. Agent Bullard could not recall whether he or anyone else followed up

with those gun shops to learn whether they sold .25 Winchester Expanding Point

ammunition or whether Myron had ever called or come to those stores. (Tpp. 5453-

54, 5462-70)

In addition, they found a piece of paper relating to stock trading and a letter

addressed to “Eric.” (State Ex. 101, 103) Though no evidence of stock losses were

revealed in Myron’s recent tax returns, accounts, or computers, the “Dear Eric”

letter suggests that he had lost money in the stock market at some time in the

1990’s, including money from his children’s college funds. The letter was

introduced over objection at trial. (App. 466-83)

In examining tax returns and mortgage refinance applications, the State

discovered evidence of mortgage fraud. Over objection, the State introduced

documents – including tax returns that had been cut and pasted to reflect a higher

income – which were part of a successful refinancing application. (App. 418-65)

Rebuttal of State’s Assertion of a Financial Crisis

Through cross-examination of the State’s witnesses and the testimony of

David Jackson, CPA, Defendant challenged the State’s portrayal of his financial

condition. (App. 3, 452-67) In 2003, the Britts had about $200,000 in equity in

their house and an untapped equity line of credit of $30,000. The monthly

mortgage payment was reduced as a result of the refinance from about $4,200 a

10

month to $1,900 a month. (Tp. 5694) The family maintained good credit. (Tp.

5695) By August of 2003, the Britts had around $34,000 in the bank. (Tp. 5696)

The Britts had not missed any payments on their loans, insurance, or any other

bills. (Tpp. 5696, 5785) CPA Jackson testified that the Britts carried a prudent

amount of life insurance. (Tpp. 6204-05)

Though Britt Home Builders had experienced some lean years, it was a

viable business that had earned a profit in all but two years from 1996 to 2004.

(Tp. 6197; App. 3) In 2002, Myron Britt’s business earned $122,225 in profit.

(Tp. 6198) In 2003, Britt Home Builders was nearing completion on additional

homes. Between Nancy’s regular income from teaching and Myron’s home

building business, the couple had enough income to meet all of their obligations.

(Tp. 6206)

Alibi – Neither Lauren nor Neighbors Notice Any Car Leave the Britt House

Lauren Britt had driven her father’s Ford Explorer that night to go babysit on

the night of 22 August 2003. She returned home at about 11:00 PM and spoke

with her father, who was watching the evening news. Both she and her father went

to sleep soon thereafter. She did not hear the garage door open or her father leave

after that. (Tpp. 6417-22)

Their next door neighbor’s teen daughter, Sarah Francis, was hosting a party

for her friends that same night. (Tpp. 6372-75) They were outside in the pool

11

until midnight; afterwards, they were inside the bonus room, which was right

across from the Britt’s garage. The jury was taken to view the Francis home and

the short distance between their bonus room and the Britt’s garage. (Tpp. 6343-56)

Sarah and her best friend were up all night, with the windows open. They did not

notice anyone come or go from the Britt household. Nor did they see or hear the

garage door open or close after Lauren came home at 11:00. (Tpp. 6380; 6390-96)

No Evidence of Problems Between Nancy & Myron

To all who were asked at trial, Myron and Nancy Britt had a happy marriage

and were in love (Tpp. 4495, 4913-16, 4996, 6257, 6412) They shared common

interests in church, music, sewing and design. (Tpp. 6257-58, 6413) In their last

summer together, Myron and Nancy took Lauren to see a performance of the Lost

Colony and go backstage to look at the costumes. (Tp. 6414) Nobody who was

close to Myron and Nancy – including their children –noticed anything out of the

ordinary between them in the summer of 2003 (Tp. 6300)

Despite looking, neither the Lumberton Police nor the SBI found any

evidence of marital discord, extramarital affairs, domestic violence, or any other

problems of any kind between Nancy and Myron Britt (Tp. 5455)

12

ARGUMENT

I. ADMISSION OF SBI’S UNRELIABLE FIREARM IDENTIFICATION TESTIMONY VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND THE RULES OF EVIDENCE

Assignments of Error Nos. 3, 4, 5, 6, 8, & 9

Rpp. 195-97

A. Introduction

Before trial, Myron Britt moved to exclude the firearm identification

testimony of SBI Special Agent Teresa Tanner (formerly Powell) and Ware. Britt

advanced two different theories for excluding expert SBI testimony: (1) the

testimony is based upon a methodology of identification that is unreliable as a

matter of law; and, in the alternative, (2) the particular identification in this case is

unreliable due to the qualifications of the primary examiner and other documented

deficiencies with the process. (Rp. 72; Tpp. 4062-63). Both issues were raised

under the state and federal Constitutions as well as Rule 702 of the North Carolina

Rules of Evidence. (Rpp. 72, 76)

The State’s case was built on the SBI’s bullet comparison. Without the

expert testimony of SBI Agents Tanner and Ware that the bullets matched, the

State would have had no evidence connecting the murder with the only gun known

to have been in Myron Britt’s possession.

13

The trial court expressed grave misgivings about allowing the SBI toolmark

testimony. But the court felt required to allow the testimony into evidence. (Tpp.

4379-80, 5111) “We should require more. But given [North Carolina] precedent,”

the trial court concluded that it had no choice but to admit the testimony. (Tp.

4380) But the court made its reservations plain:

But it’s a frightening prospect when you can’t testify to a statistical certainty under DNA analysis that a match is a certain match and you can do the exact same thing under ballistics testimony as subjective as that testimony might be. That’s concerning.

(Tp. 4381)

The trial court’s decision to admit the firearm toolmark testimony of Agents

Tanner and Ware was error because: (1) precedent did not require the admission of

the State’s firearm testimony; (2) defense counsel’s opening statement did not

justify reversing the trial court’s prior order limiting the State’s firearm testimony;

(3) in the alternative, if defense counsel’s opening statement did justify reversing

the court’s order, Britt received ineffective assistance of counsel. These arguments

will be addressed in turn, following a summary of the voire dire hearing.

14

B. Standard of Review

Where a trial court admits evidence over objection, it creates a question of

law that is reviewable de novo. State v. Bell, 164 N.C. App. 83, 87-88, 594 S.E.2d

824, 827 (2004). A claim of constitutional error is a question of law that is

reviewable de novo. State v. Thorne, 173 N.C. App. 393, 396, 618 S.E.2d 790, 793

(2005).

Britt preserved this issue for appellate review by filing the pretrial motion to

exclude and objecting to the admission of the evidence at trial. (Rpp. 72-87; Tpp.

4378-79, 5084, 5111, 5137, 5143, 5155, 5242, 5285)

C. Voire Dire Hearing on Admissibility of Firearm Toolmark Evidence

Before the start of trial, the court heard Defendant’s Motion to Exclude

State’s Firearm Testimony. (Rpp. 72-87; Tpp. 4060-381). The trial court heard

testimony from the State’s SBI witnesses, defense expert witnesses, and reviewed

caselaw and journal articles.

1. Testimony of SBI Agents Tanner and Ware

The court first heard testimony from Agents Tanner and Ware. (App. 65-

210) SBI Agent Tanner was selected by Special Agent in Charge (“SAC”) Peter

Ware to complete a rush examination of two bullets recovered during the

investigation into Nancy Britt’s homicide. (Tpp. 4086, 4121-22)

15

At the time of this examination, it had been less than two years since Tanner

had completed her SBI firearm examination training. (Tpp. 4076, 4092, 4103)

Agent Tanner has never been a member of any professional association of firearms

and toolmark examiners. (Tp. 4082)

Two fired bullets were recovered in the investigation: (1) “Q-2” – the copper

washed lead Winchester Expanding Point that was recovered from the autopsy –

SBI Item No. 5; and (2) “Q-3” – the Hornady copper jacketed hollow point that

was recovered from the baseboard of Myron Britt’s mother’s kitchen – SBI Item

No. 7. Tanner could not say how many times she had been asked to compare

bullets of different compositions without a suspect firearm prior to this case. (Tpp.

4142-43) Nor did the SBI materials documenting Tanner’s proficiency testing

reveal that she had ever been specifically trained in this kind of examination.

(Tpp. 5095-98)

Tanner could not recall what she was told about the nature of the case, other

than that this analysis was imperative to the murder investigation. (Tpp. 4122,

4139) Soon thereafter, she retrieved the Hornady bullet directly from Det. Sutton,

rather than allowing the bullet to be delivered by a lab tech, the preferred protocol.

(Tpp. 4119, 4124-25) The transfer was made at about 10:53 a.m. (Tp. 5166; App

6)

16

In the course of her examination of the bullets, Ware came by her office to

inquire about her progress. Ware informed Tanner that he had received several

calls from investigative officers and agents asking about the status of the

examination. (Tpp. 4140-41)

Tanner examined the bullets under a comparison microscope. She found

that both projectiles contained six lands and six grooves with a left hand direction

of twist. (Tp. 4077) According to Tanner, the width of the lands and grooves were

identical on both bullets. (Tp. 4078) She then concluded that there were

sufficient agreeing characteristics in both of the projectiles to determine that they

were fired from the same gun. (Tpp. 4078-79) She testified that whether there is

“sufficient” corresponding detail to make an identification is a subjective judgment

call. (Tp. 4142)

Tanner took no photographs and made no diagrams of the areas of the

bullets exhibiting these supposed agreeing characteristics. (Tp. 4134) Tanner

made no contemporaneous hand-written notes of her examination. In her

worksheet – typed after her examination – Agent Tanner’s description of the

observed similarities consists of the following:

Q-2 and Q-3 also exhibit matching gross and fine striated detail in the land and groove impressions from base to nose, therefore, Q-2 and Q-3 were fired from the same firearm. Detail was indexed with a black dot at the nose and viewed with the nose mounted to the left.

17

(App. 12) Though not reflected in her worksheet, Agent Tanner agreed at the

hearing that the bullets were of different metallic compositions. (Tpp. 4143, 4229;

App 11-12 (Tanner mistakenly identifies both bullets as jacketed on her

worksheet); cf. App. 46). She did not believe that comparing bullets of different

compositions made the examination more challenging. Likewise, she denied that

not having a suspect firearm raised any difficulties for her examination. (Tp. 4118)

Ware performed the technical review. Rather than wait to receive the

evidence from Tanner, he came to her office and viewed the bullets on her

comparison microscope. (Tp. 4136) Tanner had already completed her review and

thus, had already “indexed” the detail she found compelling with a black dot. She

could not recall whether she told Ware that she made a positive identification

before he conducted his review. (Tpp. 4085, 4136-37) Ware testified that she did

not tell him her conclusion. (Tpp. 4164-65) SBI protocol dictates that an

examiner’s notes be made available for the technical review, but because she had

not made contemporaneous notes, those were not available to Ware. (Tp. 4131)

Ware concurred with Agent Tanner’s conclusion. (Tp. 4164)

Det. Sutton testified that he received a call directly from Agent Tanner at

about 1:30 on 3 September 2003. She told him “it’s a match – go get him.” (Tp.

5071) The entire exam, including review, took about two and a half hours.

18

2. Forensic Firearm Analysts William Conrad and John Dillon, Jr.

The defense presented the expert testimony of John Dillon, Jr. and William

Conrad. (App. 215-351) Dillon and Conrad independently concluded that there

was insufficient corresponding detail to make an identification of these bullets.

Dillon and Conrad had about sixty years of forensic firearm experience

between them. Dillon first underwent training in firearms toolmark analysis in

1976 at the FBI. After completing his training, he served in the firearms and

toolmark section of the FBI lab. (Tpp. 4275-81; App. 17) In addition to taking on

duties as a forensic instructor, Dillon wrote the first training manual for the FBI

Firearms Unit. From 1988 to 1994, Dillon served as Chief of the FBI Firearms

Unit. He is an active member and former president of AFTE and has authored

numerous publications in the field.

William Conrad began his career in forensic toolmark analysis at about the

same time as Dillon. Conrad was a criminal investigator in the United States Army

when he joined the crime lab as a forensic firearm examiner in 1977. After five

years, Conrad left to become a forensic supervisor for the Western Regional Lab

for the Commonwealth of Virginia, a position he held for twelve years. Conrad

and Dillon then worked together to design and implement a new training program

19

for firearm identification for the Washington Metro Police. (App. 54) Conrad is

also an active member of AFTE (Tp. 4223)

Dillon’s and Conrad’s procedure for examining the evidence differed from

Agent Tanner’s in significant respects. Dillon and Conrad each took handwritten,

contemporaneous notes to document their analyses. (Tpp. 4305, 4312, 4234-35)

Any interruption from observation to documentation – or “doing the exam to get a

result and then addressing taking notes” is “fraught with peril as far as

completeness and as far as the potential for making a mistake when jotting down

your data or entering your data on a word processor.” (Tp. 4345)

When analyzing bullets without a suspect weapon, Dillon enters the

observed general rifling characteristics into the national database to determine

what possible weapons could have fired the bullet. Dillon’s measurements of the

lands and grooves was slightly different than Tanner’s – and not identical for each

bullet. (App. 11-12; 37-41; 46) This difference resulted in Dillon generating a list

of potential firearms that could have fired each bullet that was larger than the list

generated by Tanner. (Tpp. 4322-23) Conrad also found slight differences in the

measurements between the lands and grooves between the two bullets – which he

attributed to the difference in composition. (Tp. 4229)

Dillon found that the microscopic markings on Q-2 were of limited value

and that the markings on Q-3 were of very limited value. (Tp. 4313; App. 46)

20

Dillon – like Tanner – observed that each bullet had the same number of lands and

groves and the same direction of twist. (Tp. 4314) But after spending hours

reviewing the surface of the bullets under the comparison microscope, he

concluded that there was insufficient corresponding marks present to make any

positive identification. (Tpp. 4314-15, 4324) Millions of different guns could

have fired bullets with characteristics like the ones observed by Dillon. (Tp. 4325)

Though he found there was nothing there, Dillon took several photographs

of the bullets under the microscope to document the lack of corresponding detail.

(Tpp. 4315-20) Conrad likewise documents every examination with photographs

because the “visual record is much, much clearer.” (Tp. 4234)

Both Conrad and Dillon found it very unusual to disagree with another

examiner. (Tpp. 4329-30) Dillon called Conrad to perform a review of his work.

(Tpp. 4226, 4326) Conrad was later retained by counsel to further analyze the

bullets and testify. He followed the same routine as Dillon; Conrad came to the

same conclusion that there was “nothing there for an identification.” (Tpp. 4227-

30)

3. Defense Presents Compelling New Perspectives on the Uneliability of Firearm Toolmark Analysis

The defense also presented the court with case law and articles discussing

the unreliability of firearm and toolmark evidence. (Rpp. 80, 82-86; Tpp. 4371-79)

21

The landmark National Academy of Sciences Report on Forensic Science–

cited by the United States Supreme Court – highlights some of the fundamental

problems with the reliability of toolmark evidence. Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2537-38 (2009) (citing the Report’s discussion of

“problems of subjectivity, bias, and unreliability of common forensic tests such

as…toolmark and firearms analysis”). “The fact is that many forensic tests—such

as those used to infer the source of toolmarks…—have never been exposed to

stringent scientific scrutiny.” National Research Council of the National Academy

of Sciences, Strengthening Forensic Science in the United States: A Path Forward

at 42 (August 2009). The NAS report documents problems with the lack of a

defined process, subjective determinations, and risk of bias in firearms toolmark

analysis. (App. 484).

A National Research Council Committee found that “[t]he validity of the

fundamental assumptions of uniqueness and reproducibility of firearms-related

toolmarks has not yet been fully demonstrated.” Cork et al, Committee to Assess

the Feasibility, Accuracy and Technical Capability of a National Ballistics

Database, National Research Council, p. 3 (2008).

The Schwartz article – cited in Britt’s Motion to Exclude Firearm

Identification Testimony (Rpp. 83-84) – addresses additional problems with the

reliability of toolmark identifications. Schwartz, A Systemic Challenge to the

22

Reliability and Admissibility of Firearms and Toolmark Identification, 6 COLUM.

SCI. & TECH. L. REV. 1, 14-15 (March 28, 2005). First, “just as parts of each

individual’s fingerprints and nuclear DNA are the same as that of another, the

individual characteristics of toolmarks are comprised of non-unique marks.”

Schwartz, p. 7.

In the most exhaustive statistical analysis of firearm testing published to

date, “15 to 20% of the striae on bullets fired from different .38 Special Smith &

Wesson revolvers matched.” Schwartz, p. 7 (citing Biasotti, A Statistical Study of

the Individual Characteristics of Fired Bullets, 4 J. FORENSIC SCI. 34 (1959) and

Nichols, Firearms and Toolmark Identification Criteria: A Review of the

Literature, 42 J. FORENSIC SCI. 466, 476, note 14 (1997)).

A 1997 study found that as the national firearms toolmark database grew

“for guns of a particular caliber, increasing similarities were discovered in the

individual characteristics of toolmarks on ammunition components known to have

been fired by different guns of that caliber.” Schwartz, p. 7 (citing Masson,

Confidence Level Variations in Firearms Identification through Computerized

Technology, 29(1) ASS’N FIREARMS & TOOL MARK EXAMINERS J. 42 (1997)).

“The similarities between known non-matching toolmarks were sometimes so great

that even under a comparison microscope, it was difficult to tell the toolmarks

apart and not erroneously attribute them to the same gun.” Scwartz, pp. 7-8.

23

Second, subclass characteristics shared by more than one gun may be

confused with individual characteristics unique to one gun. “A tool may also be

wrongly identified as the source of a toolmark it did not produce if an examiner

confuses subclass characteristics shared by more than one tool with individual

characteristics unique to one and only one tool.” Schwartz, p. 8.

Third, in contrast to fingerprints or DNA – “individual characteristics of the

marks made by a particular tool change with time.” Schwartz, p. 11. “The

significance of the possible changes in the toolmarks made by individual tools is

shown by Biasotti’s finding that only 21% to 38% of the striae on pairs of bullets

fired from the same .38 Special Smith & Wesson revolver matched.” In the

absence of a suspect firearm and two bullets of different compositions, the ability

to control for any of these pitfalls is dramatically diminished. Schwartz, p. 10.

D. The Trial Court Erred in Concluding that North Carolina Precedent Would not Allow Excluding the Firearms Toolmark Testimony

North Carolina courts have upheld the admissibility of firearm toolmark

testimony as a general matter. See, e.g., State v. Anderson, 175 N.C. App. 444,

449, 624 S.E.2d 393, 398 (2006) (citing State v. Gainey, 355 N.C. 73, 88-89, 558

S.E.2d 463, 473-74 (2002) & State v. Felton, 330 N.C. 619, 638, 412 S.E.2d 344,

356 (1992)). But it was incorrect for the trial court to conclude that it was thus

required to admit the SBI firearm identification testimony on this record.

24

When presented with “compelling new perspectives on otherwise settled

theories or techniques,” a trial court can look beyond precedent to determine

whether an expert’s area of testimony is sufficiently reliable. Howerton v. Arai

Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004). The trial court looks to

precedent for initial guidance, but that need not be the end of the inquiry. Id.

This court has stressed that the key inquiry is whether the method in

question is reliable.

The expert’s scientific technique on which he bases his opinion must be such that its ‘accuracy and reliability has become established and recognized.’ However, the focus is on the reliability of the scientific method ‘rather than its establishment and recognition.’

State v. Huang, 99 N.C. App. 658, 663, 394 S.E.2d 279, 282 (1990) (citing State v.

Temple, 302 N.C. 1, 12, 273 S.E.2d 273, 280 (1981) and State v. Bullard, 312 N.C.

129, 149, 322 S.E. 2d 370, 381 (1984); 1 Brandis & Broun on North Carolina

Evidence § 113 (1998) (North Carolina courts stress the “reliability of the

scientific method and not its popularity within a scientific community”)

The trial court here was presented with the record that was lacking in

Anderson, supra. (Tp. 4371) The trial court found that the general problems that

plague the reliability of toolmark testimony were prevalent here. The articles and

cases presented to the trial court demonstrate the pitfalls of relying on an

examiner’s subjective sense of what constitutes “sufficient” agreement between

25

striae on different bullets to make a match. North Carolina courts prohibit the

admission of polygraph testing in part because such tests were not considered

reliable – “the lie detector tests prove correct in their diagnosis in about 75% of the

instances used.” State v. Foye, 254 N.C. 704, 708, 120 S.E.2d 169, 172 (1961).

The State has no evidence of possible error rates for examinations of two bullets of

different composition absent a suspect firearm.

The trial court also noted the increased risk of wrongful convictions from

allowing the admission of invalid forensic testimony. Melendez-Diaz, 129 S. Ct. at

2537 (noting a study of exonerations that concluded “invalid forensic testimony

contributed to the convictions in 60% of the cases”) (citing Garrett & Neufeld,

Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1,

14 (2009). (Tp. 4374)

The trial court had grave concerns about particulars of the SBI examination

– such as the lack of contemporaneous notes and photographic documentation:

lack or absence of any notes, the argument being that reproducibility is the hallmark of scientific inquiry, and that if an examiner down the road can’t come back and find out what was the basis for an earlier examiner’s opinion, then that takes away from the credibility of that evidence.

(Tp. 4376) (citing United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005))

The problem of reproducibility is fundamental to firearm toolmark analysis:

“when identifications are based solely on an individual examiner’s subjective

26

judgment, ‘[t]he basis for forming a pattern recognition conclusion cannot be

explained to anyone else.’” Schwartz, pp. 14-15 (Citing Biasotti & Murdock,

“Criteria for Identification” or “State of the Art” of Firearms and Toolmark

Identification, 16(4) ASS’N FIREARMS & TOOL MARK EXAMINERS J. 16, 19

(1984)) (Rpp. 83-84)

Testimony of a match “fundamentally mislead[s] judges and juries …by

claiming to be able to single out a particular firearm …as the source of an evidence

toolmark, to the exclusion of all other tools in the world.” Schwartz, p. 13; see

also Ramirez v. Florida, 810 So. 2d 836, 853 (2001) (though not a firearms case,

the Florida Supreme Court ruled that the state’s toolmark evidence was

inadmissible because it is an inherently “subjective, untested, unverifiable

identification procedure that purports to be infallible”)

The trial court recognized that the Daubert standard does not apply. (Tpp.

4372-76) Instead, its analysis focused on the reliability of firearm toolmark

analysis – the first prong of Goode and Howerton. “The technique must have

achieved general acceptance in the relevant scientific community and provide

scientific assurance of accuracy and reliability.” State v. Catoe, 78 N.C. App. 167,

169, 336 S.E.2d 691, 692 (1985) (citing Bullard, supra).

The State offered no evidence in rebuttal that the techniques relied upon by

the SBI has achieved general acceptance in the scientific community or that they

27

provide “scientific assurance of accuracy and reliability.” Id. Instead, the State

argued that this evidence is routinely accepted in North Carolina courts and courts

of other jurisdictions. (Tp. 4370)

On the other hand, the defense offered compelling new perspectives on the

lack of any scientific assurances of accuracy or reliability in toolmark evidence.

The trial court agreed with the analysis offered by Defendant, but felt constrained

by precedent to admit the firearm toolmark testimony. The trial court need not

have been so constrained. On this record, the trial court could have excluded the

firearms toolmark testimony as unreliable.

E. The Trial Court Erred in Reversing its Prior Decision Limiting the State’s Expert Firearm Toolmark Testimony

After denying Myron Britt’s Motion to Exclude the Firearm Toolmark

Evidence under the first Goode prong, the trial court turned to its authority under

Rule 702 to limit expert testimony. (Tp. 4376) Because of specific problems with

how the State’s analysis proceeded here, the trial court prohibited the State from

offering testimony that the two bullets were “fired by the same weapon to the

exclusion of all other weapons in this world.” (Tp. 4377). Instead, SBI Agents

Tanner and Ware could testify to the kinds of similarities that exist between the

two bullets. (Tpp. 4376-77)

The trial court made the following findings of fact that supported its ruling:

28

[1] no firearm was submitted for examination or was examined in connection with any testing of either [bullet]. [2] the bullets in question…have different…metallic composition.[3] there were no contemporaneous detailed notes subject to reproducibility provided by the agent or agents conducting the examination. [4] no photographs were taken of any aspect of the … examination in this case.[5] neither of the tendered State’s experts is certified in the field. [6] neither of the experts tendered by the State in this case have membership in any professional organization. [7] the rushed nature of the examination itself. [8] the lack of any detailed documentation in support of the conclusions reached in the report ultimately issued by the State’s expert witness. [9] lack of any documentation [regarding] any [relevant] proficiency testing, training, or court testimony by Agent Tanner.

(Tpp. 4377-78) For these reasons and the “potential for misleading the jury,” the

trial court excluded any testimony “that the bullets in question were fired from the

same weapon.” (Tp. 4378)

In assessing the particular flaws in the State’s purported identification under

its authority under Rule 702, the trial court found persuasive the reasoning in a

recent federal case. See United States v. Green, 405 F. Supp. 2d 104, 124 (D.

Mass. 2005) (the Government’s expert was not allowed to offer his opinion that a

particular firearm was the source of recovered shell casings.).

29

But following opening statements, the State requested that the trial court

reverse its ruling. (Tpp. 4437-38 & 4442) In his opening statement, Britt’s

attorney forecast that defense experts would testify that no match of the bullets

could be made because of a lack of corresponding detail. (Tp. 4436) The State

claimed the use of the word “match” put it at a disadvantage (Tpp. 4638-39)

But the only disadvantage to the State was from the court’s original ruling.

The contested sentence in defense’s opening statement was consistent with the

testimony presented at the pretrial hearing. (Tpp. 4229-30, 4266, 4314-15, 4324,

4436) Nothing in the court’s Order limiting the State’s firearm experts had any

bearing on the defense experts. The opening statement had no bearing on any of

the factors given by the court for its ruling. (Tpp. 4377-78) The opening statement

was not evidence and the defense experts would be subject to cross examination by

the State. The State failed to lodge a contemporaneous objection. (Tp. 4436)

Yet the trial court reversed course. (Tp. 4650) The court ruled that, in light

of defense counsel’s statement, the State’s experts could testify without limitation.

(Tpp. 4651-52)

The trial court’s ruling was an abuse of discretion in light of the trial court’s

earlier findings:

it’s fundamentally unfair and prejudicial to the defendant based on the totality of the information before the Court and the testimony involved in this case to allow the expert or experts for the State to testify to a

30

certainty…that either of those bullets were fired from the same weapon

(Tp. 4379) (emphasis supplied) Part of the testimony that formed the basis for this

order was that of two experienced forensic firearms examiners who concluded that

no match could be made here because of a lack of corresponding detail. Informing

the jury that such testimony would be introduced was not unfair to the State.

“Whether a witness has the requisite skill to qualify as an expert in a given

area is chiefly a question of fact.” State v. Goodwin, 320 N.C. 147, 150, 357

S.E.2d 639, 641 (1987) (holding that the trial court abused its discretion because

the State’s expert “testimony was improperly admitted”). Based on a careful

review of these facts, the trial court had already determined that it was essential to

limit the State’s expert firearms testimony. Nothing in counsel’s opening

compromised the jury’s “ability to listen anew to and fairly judge the evidence in

defendant’s case.” State v. Ysaguire, 309 N.C. 780, 784, 309 S.E. 2d 436, 439

(1985).

On the other hand, admitting testimony of a match rendered Mr. Britt’s trial

fundamentally unfair and violated his constitutional rights to trial by an impartial

jury, due process and freedom from cruel and unusual punishment under United

States and North Carolina Constitutions. As the trial court earlier recognized,

“[w]hen liberty hangs in the balance and in the case of the defendant’s facing the

31

death penalty, life itself, the standards should be higher than were met in this

Case.” (Tp. 4379-80)

Myron Britt must be granted a new trial because, with respect to the

constitutional error, the State cannot show that the error was harmless beyond a

reasonable doubt or that the error did not contribute to the verdict. State v. Lewis,

360 N.C. 1, 28, 619 S.E.2d 830, 847 (2005). Furthermore, there is a reasonable

possibility that a different result would have been reached at the trial. N.C. Gen.

Stat. § 15A-1443(a). The State’s case was contested. Evidence of motive was

tenuous, at best. Though not airtight, Britt presented alibi testimony for his

whereabouts on the night of the crime. The gun the State believes was used in the

crime was known to be erratic and unreliable – making it an unlikely choice for a

murder weapon. There was no evidence of any discord or animosity between

Nancy and Myron. Instead, they appeared to all to be in love. The other most

damning piece of evidence, the .25 bullet found in the Explorer, was also contested

by trial counsel.1 The first jury heard the State’s SBI firearms testimony and

deadlocked without reaching a verdict, suggesting room for reasonable doubt. (Rp.

21)

1 State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967) is instructive: “evidence which is…in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury.” While the round of ammunition purportedly found by the SBI in the Explorer does not rise to this level – it is extremely suspect given the prior search of the car.

32

Even the abuse of discretion standard – appropriate for review in the absence

of constitutional considerations – would be met. “Abuse of discretion occurs when

a trial court’s ruling was manifestly unsupported by reason and thus could not have

been the result of a reasoned decision.” State v. Jordan, 149 N.C. 838, 842, 562

S.E.2d 465, 467-468 (2002). The exercise of discretion thus requires a trial court

to reach a “reasoned decision.” It cannot be a reasoned decision to admit evidence

the court itself views as fundamentally unfair and prejudicial.

F. In the Alternative, Trial Counsel was Ineffective for Opening the Door to Otherwise Inadmissible Testimony

If it trial court’s rulings were not in error, then, in the alternative, trial

counsel was ineffective for opening the door to what was otherwise damaging,

inadmissible testimony.

Typically, ineffective assistance of counsel claims are not ripe for review on

direct appeal. State v. Long, 354 N.C. 534, 539-40, 557 S.E.2d 89, 93 (2001). But

here, counsel’s deficient performance and the resulting prejudice are apparent on

the record.

1. Standard of Review

To demonstrate a constitutional claim of ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance fell below an objective

standard of reasonableness; and (2) the error committed was so serious that a

reasonable probability exists that the trial result would have been different.

33

Strickland v. Washington, 466 U.S. 668 (1984); State v. Braswell, 312 N.C. 553,

561-63, 324 S.E.2d 241, 248 (1985).

2. No Strategic Reason to Risk Undoing the Court’s Order

Counsel’s action was not the product of strategic decisionmaking. Myron

Britt maintained his innocence. Central to counsel’s strategy for defending him

from the charge of first-degree murder was excluding or limiting the SBI’s firearm

toolmark testimony. Trial counsel was partially successful. With the limitation on

the State’s experts, the State would have no evidence to prove that there was a link

between the gun borrowed by Britt and the murder of his wife. The State’s case

would have been much more circumstantial, resembling other cases in which North

Carolina appellate courts have found insufficient evidence. See, e.g., State v. Lee,

294 N.C. 299, 240 S.E.2d 449 (1978).

With the trial court’s ruling in hand, there was no longer any reason to call

the defense’s firearm experts. Once the SBI experts were foreclosed from making

an identification, the defense expert testimony would have essentially echoed the

State’s testimony; both sets of experts would have testified to inconclusive

similarities between the bullets. There was nothing to be gained from testimony

that there was insufficient corresponding detail to make a match. But there was

much to lose.

34

This Court has ruled that defendant received ineffective assistance of

counsel in a similar circumstance. State v. Baker, 109 N.C. App. 643, 648, 428

S.E.2d 476, 479 (1993). In Baker, defense counsel said in opening that his client

did not have a criminal record. But this was not so. The State then moved to

introduce defendant’s otherwise inadmissible record. This Court ruled that

counsel’s actions constituted ineffective assistance of counsel: “[c]learly, defense

counsel’s statements led directly to introduction of evidence which, as the trial

court recognized, would not have been otherwise admissible during the trial.” Id.

Such was the case here. Trial counsel’s opening statement risked creating a

false impression and led directly to the introduction of otherwise inadmissible

evidence of a definitive identification between the bullets. All that was at stake in

Baker was trial counsel’s credibility with the jury and the admission of his client’s

record of old, unrelated convictions. See also State v. Moorman, 320 N.C. 387,

402, 358 S.E.2d 502, 511-12 (1987) (holding that counsel was ineffective in part

for failing to deliver evidence promised in opening statements). Much more was at

stake here.

3. There is a Reasonable Probability of a Different Outcome

Strickland and Braswell, supra, do not place on “defendant the burden of

proving that the trial outcome would have been different. Rather, defendant must

show that ‘there is a reasonable probability that, but for counsel’s ineffective

35

performance, the result of the proceedings would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’”

Moorman, 320 N.C. at 399, 358 S.E.2d at 510 (quoting Strickland, 466 U.S. at

694).

There is a reasonable probability, that, but for counsel’s opening statement, a

trial without evidence of a match between the two bullets would have concluded

differently. See Defendant-Appellant’s Brief, p. 32, supra.

II. THE TRIAL COURT’S ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR WRONGFUL ACTS CONSTITUTED IMPERMISSIBLE CHARACTER EVIDENCE

Assignments of Error Nos. 17-25

Rpp. 199-201

A. Standard of Review

Whether evidence was improperly admitted is a matter of law and is

reviewed by this Court de novo. State v. Morgan, 359 N.C. 131, 154-155, 604 S.E.

2d 886 (2004); State v. Blackstock, 165 N.C. App. 50, 62-67, 598 S.E. 2d 412, 420-

23 (2004).

B. Improper Character Evidence

Over objection, the State was allowed to introduce evidence of prior

wrongful acts committed by the Defendant. The trial court allowed introduction of

documents to show that Britt had committed mortgage fraud – including the loan

36

applications, copies of altered tax returns, and the copies of tax returns that had

been cut out to create the altered returns.

In addition, the State was allowed to introduce the “Dear Eric” letter over

objection. This unsigned and undated letter was found among Britt’s papers. The

letter put Britt in a very negative light, creating the impression that he had gambled

away his family’s savings, that he would not be able to support his mother, and that

he had depleted his children’s college fund. Based on the age given for Myron’s

mother, the letter appears to have been written in 1998. (Tpp. 5966, 6222)

The State argued that this evidence was admissible to prove (1) motive – by

demonstrating financial distress – and (2) the ability to plan. But more than

anything, this evidence put Myron Britt’s character at issue.

N.C. Gen. Stat. § 8C-1, Rule 404(b) states that: “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show that he acted in conformity therewith.” The North Carolina Supreme Court

has held that “Rule 404(b) evidence…should be carefully scrutinized in order to

adequately safeguard against the improper introduction of character evidence

against the accused. State v. al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120,

122-23 (2002).

“Both similarity and temporal proximity are required for the evidence to be

admissible under Rule 404(b) as ‘proof of motive…intent, preparation, plan,

37

knowledge, identity….’” State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105,

110 (2006).

“Even if offered for a proper purpose under Rule 404(b), evidence of prior

‘crimes, wrongs, or acts’ must be relevant, and such evidence is not relevant unless

it ‘reasonably tends to prove a material fact in issue’ other than the character of the

accused.” State v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991).

“Rule 404(b) is ‘a specialized rule of relevancy’….Logic governs relevancy.”

State v. Brown, No. COA1693, 2011 N.C. App. LEXIS 837, slip op at 42 (Hunter,

J., dissenting) (internal citations omitted).

The evidence of mortgage fraud was not relevant to prove a material fact in

issue. The State’s theory was that Myron Britt was on the verge of financial ruin in

the summer of 2003 and that nothing could save him other than killing his wife to

collect the insurance money. (Tp. 5559) Myron Britt contested this evidence.

But the mortgage fraud evidence was not relevant to the State’s theory.

Instead, it tends to show that Defendant broke the law when refinancing his house.

It casts doubt on his truthfulness. It puts the Defendant’s character in a bad light.

But it is too attenuated to help prove that Defendant was experiencing a financial

crisis of a magnitude that would motivate him to kill his wife. In fact, the resulting

refinancing put Britt in a better financial situation.

38

It was unnecessary to introduce evidence of this prior uncharged act in order

for the State to paint a factually accurate picture of Britt’s finances. The State was

able – without including evidence of mortgage fraud – present evidence of Britt’s

debts, assets, and income to prove Britt’s finances in the summer of 2003.

Nor is the “Dear Eric” letter – from at least five years prior – relevant for

painting an accurate picture of Britt’s finances in 2003. Whatever is or is not true

in that letter is reflective of a different time. The State’s own evidence showed that

many of the factors listed in that letter were no longer true at the time of the crime.

In 2003, The Britts had $34,000 in the bank, an untapped $30,000 home equity line

of credit, low monthly payments on their mortgage, no evidence of frequent stock

trades in the preceding few years, and no delinquent loans. They were paying

Brandon’s tuition and living expenses at ECU.

In order to admit evidence under the exception for motive, the prior act must

“‘pertain[] to the chain of events explaining the context, motive and set-up of the

crime’ and ‘form[] an integral and natural part of an account of the crime . . .

necessary to complete the story of the crime for the jury.’“ State v. Williams, 156

N.C. App. 661, 664, 577 S.E.2d 143, 145 (2003) (internal citations omitted).

Such was not the case here. The mortgage fraud did not constitute an

integral part of the crime of murder. But in the midst of a deep recession that was

39

triggered by a financial crisis rooted in the housing market, such evidence would

tend to inflame the passions of the jury in 2009.

C. There is a Reasonable Probability of Prejudice

There is a reasonable possibility that, had the improper evidence concerning

mortgage fraud and the “Dear Eric” letter not been admitted, a different result

would have been reached at trial. N.C.G.S. § 15A-1443(a). State v. Ray,

364 N.C. 272, 278, 697 S.E.2d 319, 322 (2010). Given the testimony , there is a

risk that the jury “convict[ed] defendant because of the kind of person he is, rather

than because the evidence discloses, beyond a reasonable doubt, that he committed

the offense charged.” State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 824

(1988). See Defendant-Appellant’s Brief, p. 32, supra

CONCLUSION

For the reasons stated herein, Myron Britt’s conviction for first-degree

murder should be vacated and the matter remanded.

Respectfully submitted, this the 17th day of June, 2011.

/s/ David Neal

David L. NealN.C. Bar No. 27992Attorney for Defendant-AppellantPost Office Box 968Hillsborough, NC 27278(919) 732-2156

40

(919) 246-9112(fax)David.L.Neal@gmail.com

41

CERTIFICATE OF COMPLIANCE WITH RULE 28(J)

Undersigned hereby certifies that the foregoing brief was written in Times

New Roman proportional type, 14 point font, and contains no more than 8,750

words (as reported by the word-processing software’s word count feature),

exclusive of covers, indexes, table of authorities, certificates, and appendixes.

This the 17h of June 2011.

/s/ David L. Neal David L. Neal

42

CERTIFICATE OF SERVICE AND FILING

I hereby certify that Defendant-Appellant’s Brief and Appeal Information

Statement has been filed by hand delivery to the North Carolina Court of Appeals.

I further certify that a copy of the above and foregoing has been served on

the State by electronic mail, addressed to:

John G. BarnwellAssistant Attorney GeneralPO Box 629Raleigh, NC 27602

jbarn@ncdoj.gov

This, the 17h of June 2011.

/s/ David L. Neal David L. Neal

43

No. 11-311 DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA

v.

Defendant.

)))))))))

From

*******************************APPENDIX TO DEFENDANT-APPELLANT’S BRIEF

*******************************

INDEX

State Ex. 74 – copy of photograph of interior of Britt’s Explorer.............................1

Def. Ex. 15 – David Jackson, CPA, Opinion of Britt Finances.................................3

State Ex. 47 – Report and Worksheet of SBI Agent Tanner.....................................6

Def. Ex. 11 (Pre-trial Ex. 13) – Report of John Dillon............................................13

Def. Ex. 14 (Pre-trial Ex. 9) – Report of William Conrad......................................15

Def. Ex. 4 (Pre-trial Ex. 12) – Curriculum Vita of John Dillon, Jr. .......................17

Excerpts from Def. Ex. 10 (Pre-trial Ex. 14) – Dillon’s Notes...............................35

Def. Ex. 12 (Pre-trial 7) – Curriculum Vita of William Conrad.............................54

44

Transcript – Hearing on Admissibility of Firearm Toolmark Testimony, Tpp. 4060-4381 (July 1-2, 2009).....................................................................................58

Transcript – Defense Opening Statement & State’s Motion, Tpp. 4430-44 (July 6, 2009).........................................................................................................383

Transcript – Hearing on State’s Motion and Order Rescinding Limitation on State’s Experts, Tpp. 4636-53 (July 7, 2009)........................................................400

Transcript – 404(b) Hearing on Mortgage Fraud Evidence, Tpp. 5586-5634 (July 15, 2009).......................................................................................................418

Transcript – Hearing on “Dear Eric” Letter, Tpp. 5846-53 (July 16, 2009).........466

Transcript – Ruling on “Dear Eric” Letter and related testimony, Tpp. 5960-68 (July 17, 2009).......................................................................................................475

Excerpts from National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward at 42 (August 2009)......................................484