To no avail, Murphy challenges the circuit court’s decision to exclude her expert’s testimony and its decision to allow certain testimony from the state’s expert.
Murphy shot Dammen, her on-again, off-again boyfriend, and was charged with homicide and reckless endangering safety. She wanted to call a firearms expert named Steven Howard to support her assertion that Dammen had thrust the gun into her hand and then discharged accidentally while Dammen was still holding the barrel. Howard reenacted the shooting based on Murphy’s statements to him, and she proposed to have Howard testify about the results of the reenactments. She also proposed to have him testify about the high rate of accidental discharges of the gun involved (a Glock 23). (¶¶3-6, 21-22). The circuit court properly exercised it discretion when it excluded Howard from testifying under § 907.02.
First, Howard’s opinion based on the reenactment was not supported by sufficient facts or data, as required by § 907.02(1):
¶25 The circuit court found that Howard’s written report, and materials from the defense, conceded that Howard’s interview of Murphy was the source of the factual support for Howard’s attempted reenactments, and Murphy does not dispute this finding. The circuit court then determined that, because the court was not informed what Murphy told Howard, she failed to meet her burden to show that there were sufficient facts or data to support Howard’s opinion. Murphy argues that was an erroneous exercise of the court’s discretion. We disagree.
¶27 …. The information Murphy gave to Howard during the interview, the purported factual support for Howard’s opinion, was not presented to the circuit court, and the circuit court found that to be a roadblock to admitting Howard’s opinion. Specifically, no affidavit, transcript, summary of the interview, or recitation of Murphy’s anticipated testimony was presented to the circuit court. The circuit court determined that the dearth of information regarding what Murphy told Howard was dispositive because, without that information, there was no showing of “sufficient facts or data” to support Howard’s opinions as required under Wis. Stat. § 907.02(1). The court stated:
Since the Court is required under 907.02 to evaluate whether the expert’s opinions are based on sufficient facts or data, and as part of the gatekeeper function of the Court, the Court cannot perform its gatekeeper function if the facts or data upon which the expert bases his opinion are not available for the Court to review.
The court held: “The burden of providing this information is on the defense, and [Murphy] failed to meet that burden.” The circuit court also stated that this, alone, was reason enough to exclude Howard’s opinion.
Second, Howard’s opinion about the flaws in the Glock 23 also lacked a sufficient factual basis:
¶37 …. Even accepting Howard’s assertion that a high percentage of accidental discharges he investigates concern Glock firearms, that does not reasonably support his conclusion about the relative safety of Glock firearms. While he asserted that seven to eight out of every ten accidental discharges that he has investigated involved a Glock pistol, he did not explain what sample size this represented, and a small sample size is generally unreliable. Also, there is no information about the number of Glock pistols sold as compared to other brands of pistols so as to allow a comparison of the absolute number of accidental discharges to a relative percentage of accidental discharges by brand. Without at least that information, Howard’s opinion is conjecture because of insufficient facts or data.
The rebuttal testimony of Dr. Stier, the state’s forensic pathologist, was properly admitted, however. Stier was recalled after Murphy testified in her defense that Dammen thrust the gun into her hands. Over objection by the defense as to his qualifications to render an opinion on the topic, he testified that the injuries on Dammen’s body couldn’t have resulted from the gun being handed to him because there would have been soot or powder burns on his hands or arms. (¶¶10, 43-45). (Howard’s excluded reenactments of the shooting as described by Murphy showed there were no soot or powder burns. (¶21).) The circuit court properly overruled Murphy’s objection:
¶56 The circuit court correctly rejected Murphy’s attempts to minimize Dr. Stier’s qualifications to answer this question. …. [B]ecause of his medical knowledge, his expertise regarding the discharge of firearms (including the Glock 23 pistol), his expertise regarding injuries from firearms, and his autopsy of Dammen [¶¶51-52], the circuit court could reasonably conclude that Dr. Stier had the required expertise, and a sufficient basis for the opinions, asked for in the question.
Murphy also complains about a second question Stier was asked regarding what injuries one would expect to see if the gun had discharged in Dammen’s hands. She didn’t contemporaneously object to this question, so her challenge to it is forfeited. (¶¶11, 58-66).