State v. Culpepper

273 S.E.2d 686 (1981)

STATE of North Carolina v. Randy Anson CULPEPPER and Trevor Dale Gurganus.

No. 111.

Supreme Court of North Carolina.

January 27, 1981.

*687 Rufus L. Edmisten, Atty. Gen. by John R. B. Matthis, Sp. Deputy Atty. Gen. and Acie L. Ward, Asst. Atty. Gen., Raleigh, for the State.

Twiford, Trimpi, Thompson & Derrick by C. Everett Thompson, Elizabeth City, for defendants.

BRANCH, Chief Justice.

The sole question presented for review is whether the trial court erred in refusing to admit the testimony of defendants' expert witness.

The State contended throughout the trial, and its evidence tended to show, that the fire had three points of origin: the area behind the bar; the men's restroom; and an area on the second floor above the men's restroom. The State's expert witness, Mr. Floyd Douglas Allen, testified that, in his opinion, the fire on the second floor was caused by the ignition of vapors from a flammable liquid which was poured on the floor, "and that this flash fire, in return, ignited the flammable liquids, which in turn ignited the floor."

Defendants contended that the fire originated when a live cigarette was thrown into a large trash can behind the bar. As the fire spread, it ignited cans of paint thinner stored above the false ceiling in the men's restroom and caused them to explode. As a result, the false ceiling burned away, and cans of paint thinner fell to the floor of the restroom. In essence, defendants maintained that the fire began accidentally and had only one point of origin.

In support of their contention, defendants offered the testimony of Mr. Harley June, an expert in the causes of fires. Mr. June was qualified as an expert and, after testifying concerning his inspection of the burned premises, was asked the following question about the second-floor fire:

Mr. June, do you have an opinion, satisfactory to yourself, based upon your experience and training, as to whether or not and based on your observations of the hole, as to whether or not the charring around that hole you testified about, was caused by the use of an accelerant poured on the floor?

The court sustained the State's objection and permitted defendants to enter into the record what the witness would have responded had he been allowed to testify. Out of the hearing of the jury, Mr. June responded:

Based on my experience and observations, there was no evidence to indicate an accelerant was used.

Mr. June also would have testified that the fire had only one point of origin.

It is well settled that "an expert in a particular field may give his opinion, based on personal observation or in answer to a properly framed hypothetical question, that a particular event or situation could or could not have produced the result in question." Teague v. Power Co., 258 N.C. 759, 763, 129 S.E.2d 507, 510 (1963). We hold that it was error not to permit defendant to offer expert testimony to counter that introduced and relied upon by the State. See, State v. Moore, 262 N.C. 431, 137 S.E.2d 812 (1964) (reversible error to exclude expert evidence offered to refute State's theory of the origin of the fire).

The Court of Appeals held that there was no error in excluding the challenged testimony since no foundation had been laid. The court noted that Mr. June did not visit the premises until ninety-seven days after the fire. The court then stated that defendants had failed to offer evidence that "the condition of the building as he observed it, and upon which he based his opinion, was substantially the same as it was immediately after the fire." 47 N.C. App. at 635, 267 S.E.2d at 593. We disagree. Prior to offering the testimony of Mr. June, defendant Gurganus testified as follows:

I had an occasion to go in the building in January of 1979. I went in there with Mr. Harley June. When I went in there with Mr. June, it had not changed in any way since the fire. Other than a small amount of cleanup that we had done, that was very minor. The upstairs on the second floor had not altered or changed in any way. (Emphasis added.)

*688 We think that the testimony of defendant Gurganus suffices to lay an adequate foundation for Mr. June's expert testimony.

Even so, the State submits, and the Court of Appeals agreed, that any error in excluding the testimony amounted to harmless error since another expert witness, Mr. Donald Oglesbe, testified substantially in accordance with what Mr. June would have said, had he been permitted to give his opinion. However, on cross-examination, the impact of Mr. Oglesbe's expert testimony was severely diminished when he admitted that he was not an arson expert and had not "had the training in the investigation of arson and arson detection." He further admitted that he had never investigated the premises involved here. Under these circumstances, we cannot say that there is no "reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial...." G.S. 15A-1443(a).

The decision of the Court of Appeals finding no error in defendants' trial is reversed and the cause is remanded to that court for further remand to the Pasquotank Superior Court for a new trial.

NEW TRIAL.

MEYER, J., did not participate in the consideration or decision of this case.