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United States v. Fultz

United States District Court, E.D. Virginia, Newport News Division

May 9, 2014


Page 749

For Ryan Christopher Fultz, Defendant: Jennifer Tope Stanton, LEAD ATTORNEY, J. T. Stanton, P. C., Norfolk, VA.

For USA, Plaintiff: Timothy R. Murphy, LEAD ATTORNEY, United States Attorney's Office, Newport News, VA.


Page 750



This matter is before the Court on Defendant Ryan Christopher Fultz's (" Defendant" or " Fultz" ) Motion for New Trial, Doc. 81. (" Motion" ). For the reasons explained herein, Defendant's Motion is DENIED.


Defendant was named in a three-count Indictment, charging him with: (1) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Doc. 1. The charges were made in connection with a shooting that occurred in the parking lot of a Wal-Mart in Hampton, Virginia on December 27, 2011. Defendant was identified as a suspect, but was not arrested until December 2, 2012. Defendant made his initial appearance on September 26, 2013, where he entered a plea of not guilty, and demanded trial by jury. Doc. 12. Trial commenced on February 4, 2014.

The evidence presented during the trial consisted of physical evidence recovered from the Wal-Mart parking lot (" Primary Crime Scene" ), surveillance video from the Wal-Mart, evidence from the vehicles involved in the shooting recovered at secondary crime scenes, and testimony from Defendant's alleged co-conspirators. The following physical evidence was recovered at the Primary Crime Scene: eleven (11) nine millimeter (9mm) bullet casings, nine (9) .357 casings, three (3) .223 casings, various bullet fragments, a nine millimeter (9mm) handgun, and a .45 caliber handgun. The cars that were involved in the shooting, a silver Dodge Charger (" Charger" ) and a green Ford Taurus (" Taurus" ), were recovered that night at secondary crime scenes and processed by the same technician that processed the Primary Crime Scene. A fourth .223 casing was recovered inside the front passenger side of the Charger, near the doorjamb.

The Government created diagrams showing the relative positions of the vehicles involved and the physical evidence recovered from the Primary Crime Scene.[1] See Gov't Exs. 1, 1A, 2. The Charger was parked closer to the Wal-Mart; looking from the Wal-Mart, a van was parked to the left of the Charger and there was a tree to the right. See Gov't Ex. 1A; Def. Ex. 1. The Taurus was parked in the row immediately across from the Charger, one parking spot to the right of the Charger. Id. As shown on the surveillance video, the shooting began at around 5:26 p.m. Def. Ex. 1. The surveillance video then shows Defendant fleeing from the parking lot towards the Wal-Mart entrance. Id. Shooting continued, and the Taurus left the scene about one minute later. Id. At around 5:30 p.m., Defendant left the Wal-Mart,

Page 751

re-entered the Charger, and the Charger left the scene. Id. Hampton Police then arrived at approximately 5:33 p.m. Id.

The Government offered the testimony of Defendant's alleged co-conspirators to establish that Defendant was the shooter of the rifle, identified as a Bushmaster AR15 (" Bushmaster" ), that discharged the .223 casings. Robert Murphy (" Murphy" ) and Christopher Vinson (" Vinson" ) testified that they arrived at the Wal-Mart in the Taurus. David Andrews (" Andrews" ) testified that he, Randall Woods (" Woods" ) and Defendant arrived in the Charger. Murphy testified that he saw Defendant firing a rifle out of the passenger side of the Charger. Murphy further testified that he drove away as soon as Defendant fired a shot that shattered the front windshield of the Taurus. Vinson testified that he fired shots from a 9mm gun. Vinson, while unable to identify who was shooting out of the passenger side, corroborated Murphy's statement by testifying that he too saw a person shooting out of the passenger side of the Charger.[2] Andrews testified that he used a .357 Glock, and that he disposed of the gun behind a Target store. Andrews also testified that Fultz had the Bushmaster in his possession, and was on the front passenger side of the Charger at the time of the shooting. Andrews further testified that Fultz fired the Bushmaster from the passenger side of the Charger towards the passenger side of the Taurus, and that one of his shots went through the windshield of the Taurus.

Of the three .223 casings found at the Primary Crime scene, two were found in the parking space vacated by the Charger (on what would have been the passenger side of the Charger), while the third was found in front of the van (on what would have been near the driver's side of the Charger). See Doc. 2. A fourth was recovered from the front passenger side of the interior of the Charger. The Government's experts William Banks and Courtney Etzelmiller, as well as Defendant's proffered expert Carl Rone, agreed that the Bushmaster was the only weapon identified as being at the scene which used .223 caliber ammunition.

On February 5, 2014, the Government rested its case. After the jury was dismissed, defense counsel indicated her desire to open her case with the testimony of Mr. Rone, Defendant's firearms, ballistics, and shooting scene reconstruction expert. The Court had previously reviewed defense counsel's Notice of Expert Opinion Testimony (" Notice" ), Doc. 39, regarding the admissibility of Rone's expert testimony as to the location of the shooter of the Bushmaster. The Court advised counsel that it foresaw problems with the admissibility of portions of the potential expert testimony. Accordingly, defense counsel was given the opportunity to proffer the proposed expert opinion testimony. Defense counsel presented the Court with the Notice and Mr. Rone took the stand out of the presence of the jury.

The Court assumed, for purposes of the proffer, that Rone was qualified as an expert in the areas of firearms identification, ballistics, and shooting scene reconstruction.[3] The Court then focused its ...

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