APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HYDE COUNTY, SOUTH DAKOTA. HONORABLE JAMES W. ANDERSON Judge.
The opinion of the court was delivered by: Zinter, Justice
[¶1.] A jury found Kenneth C. Huber (Huber) guilty of first degree murder in connection with the shooting death of his wife, Pam Huber. The only dispute was whether the shooting was accidental or intentional. The State's theory was that Huber, a former chief of police, was an expert marksman who was too well-trained in the safe-handling of handguns for the shooting to have been an accident. Over Huber's Daubert objection, the circuit court admitted the State's expert's testimony that the shooting was inconsistent with an accidental act because well-trained officers do not accidentally discharge their firearms. On the other hand, the court refused Huber's expert's testimony that well-trained officers do accidentally discharge their firearms when certain conditions occur. Huber appeals these rulings. He also appeals: the circuit court's refusal to admit rebuttal evidence of a deputy sheriff who accidentally discharged a handgun; the court's admission of Pam's out-of-court statements; and, the court's admission of other acts evidence. We reverse and remand for new trial on the circuit court's refusal to allow Huber's expert to testify. We affirm the circuit court on all other issues.
Facts and Procedural History
[¶2.] We restate the facts in a light most favorable to the jury's verdict. Huber and Pam married in 1993. They had two daughters who were residing in the home: Kari (thirteen years old) and Stephanie (eleven years old). Pam was the City Finance Officer for Highmore, South Dakota. Shortly before the incident, Huber had been Highmore's Chief of Police.
[¶3.] At the time of the shooting, Huber and Jennifer Lowrie, the Hyde County State's Attorney, were involved in an extramarital affair that began in July 2007. Huber also had a previous extramarital affair with Cindy Erwin. Huber's affair with Erwin started in the spring of 2005, and Erwin ended the affair in September 2005. According to Lowrie, Huber said he still loved Erwin, and Huber was obsessed over the way the relationship with Erwin had ended. Lowrie testified that in mid-October 2007, Huber was still discussing Erwin with both Pam and Lowrie.
[¶4.] Huber resigned as Highmore's Chief of Police in August 2007 to take a job with the Miller Police Department. While working in Miller, Huber met Tiffany Joy. Joy had asked the Miller police department to help with harassment she was receiving from her ex-husband. Joy testified that Huber would stop by her residence to check on Joy and her children. Toward the end of August 2007, Huber purchased a new car and took Joy and two of her children for a ride. At some point after this incident, Huber attempted to kiss Joy, but Joy rebuffed his attempt. When Joy's ex-husband found out about the car ride, he filed a grievance with the city commission and petitioned for a protection order against Huber. The city commission asked Huber to resign. Huber submitted his resignation on September 28, 2007.
[¶5.] Huber's resignation left him unemployed and under considerable stress. Huber unsuccessfully attempted to find a new law enforcement position. In September 2007, Pam e-mailed Lowrie telling her that Huber was drinking himself to sleep every night. Huber was also taking sleeping pills. Lowrie testified that in mid-October, she witnessed a fight between Huber and Pam over financial matters.
[¶6.] On Sunday evening, October 28, 2007, at approximately 10:00 p.m., Huber made a fifty-minute phone call to Lowrie. Sometime after the phone call, Stephanie entered her parents' bedroom and joined Huber on the bed to watch television. Pam subsequently joined Stephanie and Huber on the bed, where the three watched television together.
[¶7.] Stephanie testified that shortly thereafter, Huber walked to a dresser on Pam's side of the bed and retrieved his duty firearm, a .40 caliber Glock Model 22 handgun. The handgun was loaded with Smith and Wesson Black Talon ammunition. A tactical light (a laser/flashlight device) was attached to the rail of the gun. Stephanie testified that the previous night, Huber had taken the Glock out of his duty-belt and checked the tactical light before replacing the gun in the belt.
[¶8.] Stephanie observed Huber walk around the foot of the bed. Huber carried the Glock in his right hand with his finger off the trigger. He then placed the gun on the corner of the bed while he used a stool to search the shelves in the bedroom closet. He stepped down from the stool, picked up the gun, and walked into the hallway. Huber had a gun safe in the hallway immediately adjacent to the bedroom door. A person could stand facing the gun safe and, by looking to the right, see into the bedroom.
[¶9.] Stephanie heard clicks and beeps coming from the hallway, which indicated an attempt to open the gun safe.*fn1 Stephanie testified that she then drifted off to sleep. About three to five minutes later, around 11:30 p.m., Stephanie awoke to the sound of a gun shot. She immediately observed that Pam had been shot in the forehead.
[¶10.] Huber came rushing into the room. Stephanie testified, "I seen my dad running over to my mom and saying, 'it's an accident.'" Huber told Stephanie to get Kari, to call 911, and to call Lowrie. When Kari arrived in the bedroom, Huber (who was a certified emergency medical technician) told Kari and Stephanie to retrieve his EMT bag. Huber began administering first aid.
[¶11.] Huber also called 911, but the call was disconnected. Kari then called Lowrie and told her to come to the house. After the Lowrie call, the 911 operator called back and spoke with Stephanie. While Stephanie was speaking with the 911 operator, Lowrie arrived at the Huber home. Lowrie took the phone from Stephanie and spoke with the 911 operator until an ambulance arrived.
[¶12.] The 911 call was recorded, and Huber can be heard in the background speaking with the 911 operator, stating that the shooting was an accident.
Huber: My wife has been shot. I'm here, it was me, it was an accident. (Huber in the background talking to his girls) Hang on dial, Jennifer. . . . She was shot in the head -- she was shot in the head, it ain't good.
Huber in background: Right above the left eye. . . Right above the right eye.
911: What was she shot with?
Huber in background: Glock 40 with black talon.
911: Was he cleaning his gun?
Stephanie: Were you cleaning?
Huber in background: Moving it from the safe over to here.
[¶13.] Emergency responders were dispatched by the 911 operator. An emergency medical technician testified that Huber said the shooting had occurred accidentally while he was moving his gun. The ambulance transported Pam and Huber to a medical facility in Miller.
[¶14.] Law enforcement subsequently took Huber from Miller to the Hyde County Courthouse in Highmore. Highway Patrolman Randi Erickson administered a breath test, which indicated there was no alcohol in Huber's system.*fn2 Huber, who knew Erickson through his work in law enforcement, said: "I'm sorry, Randi. It was an accident."
[¶15.] Pam died on November 2, 2007. Huber was arrested four days later. Prior to trial, both parties made motions relating to the admission of evidence. The circuit court allowed the State's proposed use of Pam's out-of-court statements and Huber's other acts. Both types of evidence related to domestic abuse and the tenuous nature of the marital relationship. The circuit court also allowed the State's expert to give an opinion that the shooting was inconsistent with an accidental act of a well-trained police officer. The court finally ruled that Huber's expert could neither opine that law enforcement officers accidentally discharge their firearms nor give examples of possible causes of accidental discharges.
[¶16.] Huber raises the following issues on appeal:
1. Whether the circuit court abused its discretion in allowing the State's expert to testify that the events were inconsistent with an accidental act of a well-trained police officer.
2. Whether the circuit court abused its discretion in excluding Huber's expert's testimony that (1) law enforcement officers accidentally discharge their firearms, and (2) there are possible causes of accidental discharges.
3. Whether the circuit court abused its discretion in excluding Huber's rebuttal evidence of another law enforcement officer who accidentally discharged a Glock handgun.
4. Whether the circuit court abused its discretion in admitting Pam's out-of-court statements and Huber's other acts evidence.
1. The State's Expert Testimony
[¶17.] At a Daubert hearing, Huber unsuccessfully objected to the testimony of the State's firearms training expert, John Farnam. Thus, Farnam was permitted to testify: that people like Huber, who are certified firearms instructors and "Glock Armorers" (persons who have completed Glock Armorers training), are instructed to keep their fingers off the trigger and outside the trigger guard until they intend to fire; that keeping one's finger in this "register" position prevents the vast majority of accidents; and, that Farnam's well-trained students never accidentally discharged their firearms when their fingers were in the register position. Farnam opined that if the trigger finger is in the register position, it is not possible in a "practical sense" for a gun to discharge accidentally. He testified: "It may be possible in an astronomical sense. But among trained people whose finger is where it belongs, it's rare enough where I can say it's not going to happen in a practical sense." Farnam ultimately opined that the facts of this case were inconsistent with an accidental shooting.
[¶18.] Huber did not challenge Farnam's qualifications as an expert or the relevance of Farnam's testimony. Rather, Huber objected to the reliability of Farnam's testimony. Huber reasserts that objection on appeal, arguing that the circuit court failed to (1) analyze the foundation upon which Farnam's opinion was based, (2) evaluate the methodology used by Farnam to arrive at his opinion, and (3) make any findings regarding the reliability of the conclusion Farnam reached. "We review a circuit court's decision to admit or deny an expert's testimony under the abuse of discretion standard." Burley v. Kytec Innovative Sports Equip., Inc., 2007 SD 82, ¶ 12, 737 NW2d 397, 402.
[¶19.] The admission of expert testimony is governed by SDCL 19-15-2 (Rule 702), which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
South Dakota courts determine the admissibility of expert evidence in accordance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 SCt 2786, 125 LEd2d 469 (1993). State v. Weaver, 2002 SD 76, ¶ 25, 648 NW2d 355, 364-65. The Daubert standard requires that the circuit court ensure an expert's testimony "rests on a reliable foundation[.]" State v. Hofer, 512 NW2d 482, 484 (SD 1994)) (quoting Daubert , 509 US at 597, 113 SCt at 2799). "The burden of demonstrating that the testimony is . . . reliable rests with the proponent of the testimony. . . . The proponent . . . must prove . . . admissibility by a preponderance of the evidence." State v. Lemler, 2009 SD 86, ¶ 23, 774 NW2d 272, 280 (citation omitted). A circuit court has "'considerable leeway' in deciding in each case 'how to go about determining whether particular expert testimony is reliable.'" Burley , 2007 SD 82, ¶ 25, 737 NW2d at 406 (citation omitted).
[¶20.] Huber argues that Farnam's testimony was not reliable because the foundation was inadequate for his ultimate conclusion that the shooting was inconsistent with an accidental act. Relying on State v. Guthrie , 2001 SD 61, 627 NW2d 401, Huber contends that because Farnam testified that the events were inconsistent with an accidental act , Farnam was required to compare the facts of this case with the known characteristics of accidental shootings . Huber asserts that Farnam's opinion was foundationally deficient because it was based on Farnam's specialized knowledge of the safe gun-handling characteristics of well-trained police officers rather than the characteristics of accidental shootings.
[¶21.] Guthrie involved specialized knowledge of syndromes and psychological autopsies in cases involving suicide. Id . ¶¶ 40-42, 627 NW2d at 418-19. We stated, "[i]n allowing experts with specialized knowledge to testify, courts applying Daubert generally permit these experts to describe the symptoms or behaviors of known victims, report the symptoms or behaviors observed in the victim in the present case, and give an opinion that the victim's symptoms or behaviors are 'consistent with' those of known victims." Id . ¶ 42, 627 NW2d at 419.
Although Guthrie involved an opinion based on the known characteristics of suicide victims, Guthrie did not adopt a "known characteristics of similar victims" test as the sole foundation for all comparative opinions. On the contrary, Guthrie left the foundational basis for expert opinion open, stating:
The factual basis for an expert opinion is given wide latitude. Under SDCL 19-15-3 [(Rule 703)], experts may base their opinions on facts perceived by or made known to them at or before the hearing, if of a type reasonably relied on by experts in the field in ...