Greta Bully Motion To Dismiss PDF

Case: 25CI1:20-cr-00220 Document #: 22 Filed: 10/08/2020 Page 1 of 18
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT
STATE OF MISSISSIPPI PLAINTIFF
VS. Criminal Action No. 20-00220
GRETA BULLY DEFENDANT
___________________________________________________________________________________
DEFENDANT'S MOTION FOR DISMISSAL OF INDICTMENT OR, IN THE ALTERNATIVE,

FOR SUPPRESSION OF EVIDENCE, WITH INCORPORATED
MEMORANDUM OF AUTHORITIES
___________________________________________________________________________________
COMES NOW the Defendant, Greta Bully, by and through undersigned counsel, and
respectfully files this Motion for Dismissal of Indictment or, In the Alternative, for Suppression of
Evidence, with Incorporated Memorandum of Authorities, and would show unto the Court the
following in support of said motion:
I. STATEMENT OF THE CASE
On June 30, 2020, Greta Bully (“Bully”) was indicted in a two page indictment on three (3)
counts, namely Murder by Deliberate Design, Drive By Shooting, and Evidence Tampering. (See
attached Exhibit “A” – Indictment). The indictment alleges in Count 1 that, on April 24, 2020, Bully
willfully, unlawfully, and feloniously, with deliberate design killed Larry Joe Lee (”Lee”) with a
firearm, in violation of Miss. Code Ann. § 97-3-19(1)(a). Count 2 of the indictment alleges that
Bully willfully, unlawfully, and feloniously, other than for lawful self-defense, attempted to cause
serious bodily harm to Lee, or caused serious bodily harm to Lee purposely, knowingly, or
recklessly under circumstances manifesting extreme indifference to the value of human life by
discharging a firearm while in or on a vehicle, in violation of Miss. Code Ann. § 97-3-109(1). The
indictment further alleges in Count 3 that Bully willfully, unlawfully, and feloniously intentionally
destroyed, mutilated, concealed, removed, or altered physical evidence with the intent to impair its
use, veracity, or availability in a pending criminal investigation, in violation of Miss. Code Ann. §
97-9-125(1)(a).
The heart of the Government’s case is that Bully purportedly killed Lee by deliberate design,
while on or in a vehicle, through the use of a firearm. As a matter of law, this is insufficient to charge
Bully with the crimes of murder and drive-by shooting. This is especially true considering the fact
that there is no evidence to support the proposition that Bully used a moving vehicle or engaged in a
deliberate design to procure the death of Lee. Further, there is substantial evidence to support the
assertion that the vehicle allegedly involved in the subject crime was contaminated prior to any
samples or evidence being extracted from said vehicle. (See attached Exhibit “B” – Crime Scene
Report and Jackson Police Department narratives). In that the subject indictment does not charge
credible offenses under either Counts 1 or 2, said offenses should be dismissed.
For these reasons, it is respectfully submitted, the indictment with regard to Counts 1 and 2
should be dismissed.
II. ARGUMENT
A. The Elements Of The Charged Offense – Count 1
The indictment, pursuant to Count 1, alleges that on April 24, 2020 the Defendant willfully,
unlawfully, and feloniously, with deliberate design killed Larry Joe Lee (”Lee”) with a firearm, in
violation of Miss. Code Ann. § 97-3-19(1)(a). Section 97-3-19(1)(a) provides in pertinent part --
1) The killing of a human being without the authority of law by any

means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the
person killed, or of any human being, shall be first-degree
murder
Miss. Code. Ann.§ 97-3-19(1)(a). “Deliberate design” connotes an intent to kill. Wilson v. State, 936
So. 2d 357 (Miss. 2006).
B. Count 1 Of The Indictment Must Fail
A criminal offense usually consists of both a prohibited act (the “actus reus”) and a guilty mind
(the “mens rea”). Wayne R. Lafave, Substantive Criminal Law § 1.1(b) (2d ed. 2003). In order to
obtain a conviction, the prosecution must prove beyond a reasonable doubt that the defendant both
committed the harmful act and did so with the requisite mental state. One of the primary bases of
criminal law -- moral culpability -- can be found embedded within the concept of mens rea. That is,
an individual must have intended to commit the act in question to be blameworthy. This concept was
noted by United States Supreme Court Justice Robert Jackson –
The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent in
mature systems of law as belief in freedom of the human will and a consequent
ability and duty of the normal.
Morisette v. United States, 342 U.S. 246 (1952).
In the case sub judice, aside from Bully and the decedent, Lee, there are no eyewitnesses to the
crime alleged in Count l of the indictment. As alleged in the various narratives produced by officers
of the Jackson Police Department, Bully claims to have shot Lee as he approached her “aggressively.”
These narratives do not indicate where Lee was shot. However, based on information produced by
the Defendants, it appears that Bully acted in self-defense in the shooting of Lee.
The Government relies on purely circumstantial evidence in its attempt to obtain a conviction
of Bully as to Count 1 of the indictment. However, importantly, the Government possesses no
circumstantial evidence pointing to motive or intent. In fact, the circumstantial evidence reveals that
Bully was located at a place she had a right to be. Lee encroached on Bully’s private property with
no lawful purpose after Bully’s business had closed for the evening.
The “Castle Doctrine,” a category of justifiable homicide, is codified at Mississippi Code
Annotated section 97-3-15(3)-(4) (Rev. 2014). This statute provides in pertinent part that:
(3) A person who uses defensive force shall be presumed to have

reasonably feared imminent death or great bodily harm, or the
commission of a felony upon him or another or upon his
dwelling, or against a vehicle which he was occupying, or
against his business or place of employment or the
immediate premises of such business or place of employment,
if the person against whom the defensive force was used, was in
the process of unlawfully and forcibly entering, or had
unlawfully and forcibly entered, a dwelling, occupied vehicle,
business, place of employment or the immediate premises
thereof or if that person had unlawfully removed or was
attempting to unlawfully remove another against the other
person’s will from that dwelling, occupied vehicle, business,
place of employment or the immediate premises thereof and the
person who used defensive force knew or had reason to believe
that the forcible entry or unlawful and forcible act was occurring
or had occurred. This presumption shall not apply if the person
against whom defensive force was used has a right to be in or is
a lawful resident or owner of the dwelling, vehicle, business,
place of employment or the immediate premises thereof or is the
lawful resident or owner of the dwelling, vehicle, business, place
of employment or the immediate premises thereof or if the
person who uses defensive force is engaged in unlawful activity
or if the person is a law enforcement officer engaged in the
performance of his official duties.
(4) A person who is not the initial aggressor and is not engaged
in unlawful activity shall have no duty to retreat before using
deadly force under subsection (1)(e) or (f) of this section if the
person is in a place where the person has a right to be, and no
finder of fact shall be permitted to consider the person's failure
to retreat as evidence that the person's use of force was
unnecessary, excessive or unreasonable.
Miss. Code Ann. § 97-3-15(3)-(4) (emphasis added). The “Castle Doctrine” creates a presumption of
fear and dispenses with a duty to retreat in certain prescribed circumstances. Id. As applied to the
circumstantial evidence in the present case, and without conceding Bully shot Lee, Bully would have
been justified in the killing of Lee, pursuant to Section 97-3-15(3)-(4).
For these reasons, Count 1 of the indictment must be dismissed.
C. The Elements Of The Charged Offense – Count 2
The indictment, pursuant to Count 2, alleges that on April 24, 2020 the Defendant willfully,
unlawfully, and feloniously, other than for lawful self-defense, attempted to cause serious bodily
harm to Lee, or caused serious bodily harm to Lee purposely, knowingly, or recklessly under
circumstances manifesting extreme indifference to the value of human life by discharging a firearm
in or on a vehicle, in violation of Miss. Code Ann. § 97-3-109(1). Section 97-3-109(1) provides as
follows –
1) A person is guilty of a drive-by shooting if he attempts, other than

for lawful self-defense, to cause serious bodily injury to another, or
causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life by discharging a firearm while in or on a vehicle.
Miss. Code Ann. § 97-3-109(1). Said statute is entitled “Drive-by shooting; drive-by bombing.” Id.
D. Count 2 Of The Indictment Must Fail
In the present case, the Government alleges that Bully violated Mississippi's Drive-By Statute
in the discharging of a weapon while on or in a vehicle. See Miss. Code Ann. § 97-3-109(1). Aside
from the fact that the Government possesses no reliable evidence to conclude that Bully discharged a
firearm in or on a vehicle, the statute in question clearly indicates that any offense of the same is
predicated on a “drive-by.” In fact, Section 97-3-109 is entitled “Drive-by shooting; drive-by
bombing.” Id.
“Drive-by” is defined by the Merriam-Webster Dictionary as “carried out from a moving
vehicle.” Drive-by, Merriam-Webster Dictionary, (2020) (emphasis added). The Cambridge
Dictionary similarly defines “drive-by” as “used to refer to something that someone does while
driving past in a vehicle, i.e a drive-by shooting.” Drive-by, Cambridge English Dictionary (2020)
(emphasis added). In addition, the Oxford English Dictionary defines “drive-by” as “(of a shooting or
other act) carried out from a passing vehicle.” Drive-by, Oxford English Dictionary (2020) (emphasis
added). In that undersigned counsel is unaware of any Mississippi case law defining “drive-by,” it can
only be reasonably asserted that a “drive-by” shooting involves a moving vehicle.
In applying the facts and evidence in the case sub judice, it is unlikely, if not impossible, for the
Government to prove beyond a reasonable doubt that Bully discharged a firearm while in a moving
vehicle. No credible evidence exists to support the Government's claim that Bully discharged a
firearm in a vehicle, much less a moving vehicle. There are no eyewitnesses to the subject shooting
incident who can confirm or deny that Bully discharged a firearm in a moving vehicle. Without more,
the Government will be unable to prove beyond a reasonable doubt that Bully shot Lee while in a
vehicle, much less a moving vehicle.
Should the Government intend to rely on the gunshot residue swabs taken from Bully’s vehicle
as proof that she was in or on her vehicle at the time of the subject shooting, this approach must also
fail. As discussed in further detail below, any evidence or tangible items retrieved from the crime
scene or Bully’s vehicle are products of contamination, with the chain of custody for the same being
irretrievably broken. According to various narratives produced by officers with the Jackson Police
Department, Bully’s vehicle was accessed and searched on at least three (3) separate occasions prior
to gunshot residue swabs being applied to Bully’s vehicle. (See attached Exhibit “B” – Crime Scene
Report and Jackson Police Department narratives). In addition, the entire crime scene was
contaminated prior to the arrival of homicide detectives. As stated by Jackson Police Department
Detective Sequerna Banks in her narrative, “As I approached the crime scene and was logged in by a
Precinct Three Officer, I then noticed several individuals that was (sic) inside the crime scene that
should not have been in the crime scene and I requested their removal back outside while JPD
Detectives and Crime Scene Investigator could process the scene for evidence.” (See attached Exhibit
“B” – Crime Scene Report and Jackson Police Department narratives).
It is also asserted by the Defendant that Mississippi's “Drive-by” statute is void for vagueness.
Criminal statutes that lack sufficient definiteness or specificity are commonly held “void for
vagueness.” Cantwell v. Connecticut, 310 U.S. 296 (1940). Statutes, such as Miss. Code Ann. § 97-3-
109, “may run afoul of the Due Process Clause because it fails to give adequate guidance to those
who would be law-abiding, to advise defendants of the nature of the offense with which they are
charged, or to guide courts in trying those who are accused.” Musser v. Utah, 333 U.S. 95 (1948).
“Men of common intelligence cannot be required to guess at the meaning of [an] enactment.” Winters
v. New York, 333 U.S. 507 (1948). Thus, the Supreme Court has required that a penal statute provide
the definition of the offense with “sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352 (1983).
Section 97-3-109(1), as promulgated by the State of Mississippi, is unreasonably vague in that
the subject statute is entitled “Drive-by,” but “drive-by” is not specifically mentioned in the body and
language of the statute. The Defendant, as well as a reasonable jury, would likely conclude that
“drive-by” refers to a moving vehicle. However, the body and language of the statute do not
specifically refer to moving vehicle, in spite of the statute's title. Further, the statute in question does
not give adequate guidance to the Defendant, much less any other member of the general public,
sufficiently clear to advise them of the nature of the offense encompassed in said statute, or to guide
this Court in trying the Defendant and members of the general public.
For the reasons stated above, Count 2 of the indictment must be dismissed.
E. Evidence Pertaining to Gunshot Residue (GSR) and Shell Casings

Must be Suppressed or Excluded
“When a firearm is discharged, a backblast of gases escapes and gunshot residue (“GSR”) may
be deposited on the hand of the person firing the weapon or any other person or surface in the vicinity.
Both propellant (smokeless powder) and primer residues are discharged.” Scientific Evidence, Fourth
Edition, 2007:745.
Modern GSR tests focus on primer residues (antimony, barium, and lead), and the detection of
these elements in sufficient quantity to infer recent proximity to a discharging firearm or ammunition.
Id. at 746. GSR particles are generally composed of lead (Pb), barium (Ba) and antimony (Sb) and
commonly range in size from 0.5 to 10 microns. Forensic Magazine, October 2011. The particles that
a discharged firearm expends can be collected via adhesive procurement lifts and subsequently
analyzed using a technique known as SEM-EDS (Scanning Electron Microscope with associated
Energy Dispersive X-Ray Spectrometry). The Champion, 2005:36.
The scanning electron microscope (“SEM”), coupled with an X-ray microanalyzer, have been
used in the detection and identification of GSR particles on suspects’ hands and surfaces since the
1960's. Journal of Forensic Science, 1981:671. The SEM uses a high energy electron beam to produce
magnification significantly greater than that which is possible with an optical microscope. This
increases magnification, as well as greater depth of field, and permits the identification of gunshot
particles by their characteristic morphology. Id.
Recently, Energy Dispersive Spectrometers (“EDX”) have been developed that allow for
elemental analysis in the detection and identification of GSR. Forensic Magazine, October 2011.
Samples are collected using adhesive procurement lifts (tape) which the analyst loads into the sample
chamber. A predefined template is then loaded from the GSR analysis software. The defined area is
then scanned by an electronic beam that searches for particles that correspond to the atomic number
contrast of GSR particles. The results include a list of particles that denote their size, location, shape
and chemical make-up that are available for review by the analyst. Potential GSR particles are then
relocated for further imaging and X-ray microanalysis. Id. EDX can be coupled with several
applications including SEM, Transmission Electron Microscopy (“TEM”) and Scanning Transmission
Electron Microscopy (“STEM”). EDX, when combined with these imaging tools, can provide
elemental analysis on areas as small as nanometers in diameter. The impact of the electron beam on
the sample produces x-rays that are characteristic of the elements found on the sample. The measured
intensities yield quantitative information on the element composition and distribution. Id.
GSR analysis using SEM/EDX (as in this case) is highly subjective for the reason that there are
no standards for a lab analysis as to how many GSR particles are sufficient to confirm the presence of
GSR. “A potential problem in using SEM/EDX for GSR analysis is the variation between laboratories
in determining the minimum number of particles analyzed to confirm gunshot residue.” Journal of
Forensic Sciences, 1989:1090, 1092. In a recent study including a survey of 200 forensic science
laboratories in the United States, with a response rate of 71.5%, there was a range of responses to the
question as to how many GSR particles does the lab consider enough to confirm GSR. Those
responses ranged from 1 to 10 particles to confirm GSR on a subject. Journal of Forensic Sciences, at
1092.
The Mississippi Forensics Laboratory report produced by the Government in this matter
indicates that lab analysts utilized an SEM/EDX microscope in their analysis to test for GSR on swabs
purportedly obtained from inside Bully's vehicle. (See attached Exhibit “C” – Mississippi Forensics
Laboratory report(s)). However, problematically for the Government, the swabs purportedly obtained
from inside Bully's vehicle were obtained or lifted from a contaminated space. On the evening of the
shooting in question, April 24, 2020, Bully's vehicle was towed to the Jackson Police Department
Mobile Crime Scene Office. (See attached Exhibit “B” – Crime Scene Report and Jackson Police
Department narratives). Swabs from inside Bully's vehicle were subsequently produced and collected
some three (3) days later, on April 27, 2020. (See attached Exhibit “B” – Crime Scene Report and
Jackson Police Department narratives). During this three (3) day interim period of time, on no less
than three (3) occasions Bully's vehicle was entered into and items retrieved pursuant to orders from
Police Chief James Davis and Deputy Police Chief Deric Hearn. (See attached Exhibit “B” – Crime
Scene Report and Jackson Police Department narratives). The retrieved items included dog
medications, keys, and a garage door opener. It is unknown what portions of Bully's vehicle were
searched for the items in questions and where and by whom contact was made by third-parties. What
is known is that the inside of Bully's vehicle was disturbed and that outside contact was made on at
least three (3) separate occasions thereby rendering the inside of Bully's vehicle contaminated and the
chain of custody broken. One is left to wonder whether the GSR found in Bully's vehicle was the
product of third-party contact and whether the shell casings found therein were in fact present at the
time Bully's vehicle was towed to the Mobile Crime Scene Office.
If that were not enough, issues pertaining to the testing and analysis of GSR arise when
consideration of how exactly the particles were transferred to the inside of Bully's vehicle and the
minimum requirements to confirm GSR. Generally, it is assumed that GSR is transferred in only one
way, by firing a gun. However, this assumption is incorrect and has been refuted. In the early 2000s,
when the Baltimore Police Department came under attack for their GSR testing methods, the highly
regarded Baltimore Sun reported, “…across the country it is under increasing scrutiny as defense
attorneys, prosecutors and police officials evaluate how easily suspects’ hands can be contaminated by
other items already covered in gunshot residue: handcuffs, car seats, even police officers themselves.”
Baltimore Sun, January 2005. Recent studies have shown that a non-shooter can become contaminated
with GSR without going near a firearm in that ‘unique’ particles may linger in the air for up to 8
minutes after a shot is fired, suggesting that someone entering the scene after a shooting could have
more particles on them than a shooter who flees a crime scene. Forensic Science International, vol.
153, p. 132.
There are known materials in our everyday lives that mimic GSR particles. These include, but
are not limited to:
(1) cigarette lighter flint particles – mimic GSR in morphology, but not in
composition. Scientific Evidence, Fourth Edition, 2007:753.
(2) industrial tools and fireworks – capable of producing particles with
a similar composition to GSR. NewScientist.com, 2005.
(3) brake dust – capable of producing particles with a similar composition to GSR.
NewScientist.com, 2005.
Aside from the issue of contamination of the inside of Bully's vehicle, several preeminent law
enforcement agencies no longer conduct GSR testing due to the unreliable and limited value of GSR
testing. The Federal Bureau of Investigation (“FBI”) discontinued its GSR testing in early 2006,
which it claimed was a result, “… ‘of a shift of priorities, not lack of confidence in the science.”
Baltimore Sun, May 2006. However, the FBI’s decision to close its GSR testing labs occurred after a
closed door summit on GSR policies and testing at its Quantico, Virginia crime lab. “The resulting
contamination study … documents the presence of hundreds of particles consistent with gunshot
residue in several areas of the lab. Such contamination could jeopardize criminal cases because it casts
doubt on the origin of the residue in a sample. Id. In addition, the Indiana State Police no longer
conduct gunshot residue tests, further proving that GSR analysis is an inexact, unreliable, and
ambiguous science that has no place in a criminal trial. South Bend Tribune, 1999.
The advisory committee’s note to Federal Rule of Evidence 702 counsels: “If the witness is
relying solely or primarily on experience, then the witness must explain how that experience leads to
the conclusion reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts. This Court’s gatekeeping function, pursuant to Daubert,
requires more than simply “taking the expert’s word for it.” See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993). The idea of the scientific method is that it can be examined and/or reviewed by
others, independently, and will have the same result. In this case, the scientific method employed by
the Government in conducting its GSR testing and producing results has not, and may not, be
reviewed by others with the same result. Therefore, any test results relating to GSR must be
suppressed or excluded in that such are unreliable and speculative.
For the foregoing reasons, any evidence pertaining to GSR or the presence and testing of shell
casings alleged to have been found in Bully's vehicle must be suppressed or excluded during or at trial.
F. Evidence Pertaining to Bullet and Firearm Identification
On May 7, 2020, two bullets (“Larry Lee Bullet 'A,'” and “Larry Lee Bullet 'B'”) recovered
from the body of Lee were transferred to the firearms and toolmarks section of the Mississippi
Forensics Laboratory. (See attached Exhibit “C” – Mississippi Forensics Laboratory report(s)). Such
bullets were submitted to the Mississippi Forensics Laboratory for comparison to Bully's Smith &
Wesson .38 caliber revolver and Glock Model 22 .40 caliber pistol. Shortly thereafter, Felicia
McIntire, an employee of the laboratory concluded that “Larry Lee Bullet 'A'” had “class
characteristics consistent” with those produced by Bully's Glock pistol. However, due to
“insufficient reproducible individual characteristics,” “Larry Lee Bullet 'A'” could not be
positively identified as having been shot by Bully's Glock pistol. “Larry Lee Bullet 'B'” was not
tested in Bully's Glock. In that the test results involving “Larry Lee Bullet 'B'” and Bully's Smith
& Wesson revolver were not mentioned in the conclusion portion of the laboratory report, it is
assumed that a positive identification could not be determined.
In that evidence relating to the bullet and firearm identification requires specialized
knowledge, the Government is required to have an expert witness testify as to such results. Rule
702 of the Mississippi Rules of Evidence 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." Miss. R. Evid. 702. A trial court must conduct a three-step inquiry
when considering whether to admit expert testimony pursuant to Rule 702 -- (1) whether the expert's
proffered method of proof is reliable, (2) whether the witness presenting the evidence qualifies as
an expert in that area, and (3) whether the evidence is relevant. Daubert, 509 U.S. at 580.
When a gun is fired, the inner barrel of the gun imparts "rifling" on the bullet. The barrel
of a gun is manufactured to impart a twist on a bullet as it travels, to ensure firing accuracy. U.S. v.
Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006). The inside of a gun barrel is imprinted with “cuts”
running the length of the barrel. Monteiro, 407 F. Supp. 2d at 353. The cuts within the barrel are
called "grooves" and the raised surfaces are called "lands." Id. Those rifling characteristics create
marks on the bullet as it travels down the barrel. The raised lands cut into the surface of the bullet.
Simultaneously, the bullet surface expands to fill the recessed grooves. The corresponding
impressions left on the bullet as it travels through the barrel are depressed "land impressions" and
raised "groove impressions." Id. The twist imparted on a bullet can be either left or right, depending
on the direction of the lands and grooves. Id.
There are three (3) types of characteristics observed by examiners – class, subclass, and
individual characteristics. Id. Class characteristics on a spent bullet allow an examiner to narrow the
firearm possibilities to certain types of guns made by certain manufactures. For a spent bullet, the
class characteristics are the weight or caliber of the bullet, the number of lands and grooves, the
twist of the lands and grooves, and the width of the lands and groove. Id.
Once the firearm possibilities are narrowed by class, the examiner looks for individual
characteristics. Monteiro, 407 F. Supp. 2d at 353. The range of possibilities can be further
narrowed by individual characteristics – microscopic, random imperfections in the barrel created
by the manufacturing process. These intended characteristics are caused by changes in the tool as it
makes each barrel on the production line. Id. Individual characteristics typically fall into two
(2) categories: (1) striated marks made by movement of the bullet within the gun (typically
appearing as scratches), and (2) impressed marks that are pressed into a surface. A spent bullet
usually has striated marks, created as it moves through the barrel of the gun. Id. A third type of
characteristic straddles the line between class and individual characteristics. These are subclass
characteristics. These characteristics can exist, for example, within a particular production cycle of a
brand of firearm. They arise due to imperfections in the manufacturing tool that persist during the
manufacture of multiple firearm components. They cannot be considered class characteristics because
they are not common to all units of a particular make, and model of firearm. Nor are they individual
characteristics because they persist throughout a period of manufacturing. Id.
Since the 1930's, firearm identification has assumed a forensic discipline, being a subset of
the broader forensic discipline called toolmark identification. Toolmark examiners are trained to
examine the marks left by tools on any variety of surfaces in an attempt to "match" a toolmark to
the particular tool that made the mark. Firearms are a subset of tools that impart marks on bullets.
A qualified examiner can purportedly determine whether two bullets or two cartridge cases were
fired by the same gun. This can be achieved based on an examiner's expertise, experiments, and
daily practice.
A conclusion that two cartridge components have a "common origin" can be reached
when the examiner concludes that sufficient similarity exists between the patterns on the
components. See Theory of Identification as it Relates to Toolmarks, 30 AFTE J. 86 (1998). When
determining whether "sufficient agreement" of toolmarks exists on a bullet, for example, the
examiner will look for special relations of the striations, along with the depth and width of the
striations. If there is significant similarity between those marks, the examiner can conclude that
the bullets were fired by the same firearm. Id. There need only be "sufficient agreement" between
the marks based on the examiner's training and experience. This inspection is done under a split-
screen comparison microscope. Importantly, there are three conclusions an examiner can make,
namely (1) an "identification" of the components, concluding that they came from the same
source, (2) an "elimination" of the components, concluding that they did not come from the same
source, and (3) “inconclusive,” meaning that there is not enough evidence to identify whether the
components either do or do not come from the same source. Id.
Rule 702 of the Mississippi Rules of Evidence dictates that this Court must assume the
role of gatekeeper to assure that expert testimony rests on a reliable foundation and that
witnesses are actually experts before being permitted to offer opinion evidence. Miss. R. Evid.
702. It has been recognized that there are issues or problems pertaining to absolute testability in
firearms identification. Id. Because the accepted practice in the field is based on a subjective
assessment, it is impossible, or nearly impossible, to conclusively state that an examiner's findings
are correct or incorrect. Monteiro, 407 F. Supp. 2d at 353. Due to this element of subjective
assessment, most laboratories require examiners to thoroughly document their results and
findings. Any identifications made should be photo-documented. Examiners must indicate the
primary areas on which they base identifications. Id.
In a 1957 study by Alfred A. Biasotti, A Statistical Study of the Individual Characteristics of
Fired Bullets, 4 J. Forensic Sci. 34 (1959), the author found that only 21%-38% of ballistic marks will
match up on bullets fired from the same gun. Moreover, when bullets fired by two different .38 caliber
Smith & Wesson revolvers of the same make and model were compared, 15%-20% of the lines or
marks matched-up. Therefore, there can be a pattern of matching marks on bullets fired from
different guns. The conclusion that a recovered bullet matches a test-fired bullet is based on a
subjective “threshold currently held in the minds eye of the examiner and … based largely on
training and experience in observing the difference between known matching and known non-
matching impression toolmarks.” Richard Grzybowski, et al., Firearm/Toolmark Identification:
Passing the Reliability Test Under Federal and State Evidentiary Standards, 35 Am. Forensics J.
209 (2003).
Another recent article highlighted the complexity of comparing patterns because of the
difficulty in distinguishing between class, subclass and individual characteristics, noting that a
firearm “may 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.” Adina Schwartz, A Systemic Challenge to the Reliability and
Admissibility of Firearms and Toolmark Identification, 6 Sci. & Tech. L. Rev. 2 (2005). Thus, the
examiner's conclusions are not based on any quantitative standard for how many striations or
marks need to match or line-up. Instead, they are based on a holistic assessment of what the
examiner sees. See Grzybowski et al., at 214.
The advisory committee's note to Rule 702 of the Federal Rules of Evidence counsels:
“ If the witness is relying solely or primarily on experience, then the witness must explain how that
experience leads to the conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the facts.” This Court's gatekeeping
function requires more than simply "taking the expert's word for it." See Daubert, 509 U.S. at
580. Part and parcel of that function requires this Court to determine the reliability of both the
underlying science and its application in this case. In that same vein, several jurisdictions have
expressed concerns and serious doubts as to the reliability of toolmark identification evidence.
See United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005) (expressing “serious concerns”
for the reliability of toolmark evidence); see also, Sexton v. State, 93 S.W. 3d 96 (Tex. Crim. App.
2002) (rejecting the matching of cartridge cases based on magazine marks alone without recovery of
underlying magazine); Ramirez v. State, 810 So. 2d 836 (Fla. 2001) (excluding toolmark analysis
matching knife to fatal stab wounds).
In the case sub judice, the Government's evidence relating to toolmark identification
analysis fails to pass the necessary test of reliability, as espoused in Daubert. Aside from being
unable to independently reproduce their test results, the conclusion offered by the Government as
to the similarity between the bullets removed from Lee's body and the characteristics associated
with Bully's firearms is inconclusive. For the above-mentioned reasons, any and all evidence
relating to the identification or testing of bullets removed from Lee's body and the firearms
purportedly owned by Bully must be suppressed or otherwise excluded from evidence to be
offered at trial.
III. CONCLUSION
For the foregoing reasons, the Defendant, Greta Bully, respectfully asks for entry of an Order
dismissing the indictment as to Counts 1 and 2. Further, should this Court decline to dismiss either
Counts 1 or 2, the Defendant requests in the alternative that any evidence pertaining to gunshot
residue and toolmark identification analysis of any bullets and/or firearms be suppressed or excluded
from any evidence to be offered at trial.
Respectfully submitted this, the 8th day of October, 2020.
GRETA BULLY
BY:/s/Dennis C. Sweet, III

Dennis C. Sweet, III
Dennis C. Sweet, III (MSB #8105)

Sweet & Associates
158 East Pascagoula Street
Jackson, Mississippi 39201
Telephone: (601) 965-8700
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of October, 2020, a true and correct copy of the
foregoing MOTION FOR DISMISSAL OF INDICTMENT OR, IN THE ALTERNATIVE, FOR
SUPPRESSION OF EVIDENCE was served on all counsel of record via the Court's MEC/ECF
electronic filing system.
/s/Dennis C. Sweet, III

Dennis C. Sweet, III
Case: 25CI1:20-cr-00220 Document #: 22-1 Filed: 10/08/2020 Page 1 of 3

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Case: 25CI1:20-cr-00220 Document #: 22 Filed: 10/08/2020 Page 1 of 18

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI PLAINTIFF

VS. Criminal Action No. 20-00220

GRETA BULLY DEFENDANT

DEFENDANT'S MOTION FOR DISMISSAL OF INDICTMENT OR, IN THE ALTERNATIVE,

following in support of said motion:

I. STATEMENT OF THE CASE

credible offenses under either Counts 1 or 2, said offenses should be dismissed.

A. The Elements Of The Charged Offense – Count 1

1) The killing of a human being without the authority of law by any

So. 2d 357 (Miss. 2006).

B. Count 1 Of The Indictment Must Fail

noted by United States Supreme Court Justice Robert Jackson –

Morisette v. United States, 342 U.S. 246 (1952).

of Bully as to Count 1 of the indictment. However, importantly, the Government possesses no

The “Castle Doctrine,” a category of justifiable homicide, is codified at Mississippi Code

(3) A person who uses defensive force shall be presumed to have

been justified in the killing of Lee, pursuant to Section 97-3-15(3)-(4).

For these reasons, Count 1 of the indictment must be dismissed.

C. The Elements Of The Charged Offense – Count 2

in or on a vehicle, in violation of Miss. Code Ann. § 97-3-109(1). Section 97-3-109(1) provides as

1) A person is guilty of a drive-by shooting if he attempts, other than

D. Count 2 Of The Indictment Must Fail

predicated on a “drive-by.” In fact, Section 97-3-109 is entitled “Drive-by shooting; drive-by

“Drive-by” is defined by the Merriam-Webster Dictionary as “carried out from a moving

vehicle.” Drive-by, Merriam-Webster Dictionary, (2020) (emphasis added). The Cambridge

only be reasonably asserted that a “drive-by” shooting involves a moving vehicle.

vehicle, much less a moving vehicle.

“B” – Crime Scene Report and Jackson Police Department narratives).

enforcement.” Kolender v. Lawson, 461 U.S. 352 (1983).

Section 97-3-109(1), as promulgated by the State of Mississippi, is unreasonably vague in that

E. Evidence Pertaining to Gunshot Residue (GSR) and Shell Casings

Energy Dispersive X-Ray Spectrometry). The Champion, 2005:36.

particles by their characteristic morphology. Id.

are not limited to:

composition. Scientific Evidence, Fourth Edition, 2007:753.

(2) industrial tools and fireworks – capable of producing particles with

a similar composition to GSR. NewScientist.com, 2005.

suppressed or excluded in that such are unreliable and speculative.

F. Evidence Pertaining to Bullet and Firearm Identification

assumed that a positive identification could not be determined.

on the direction of the lands and grooves. Id.

narrowed by individual characteristics – microscopic, random imperfections in the barrel created

characteristics because they persist throughout a period of manufacturing. Id.

components. See Theory of Identification as it Relates to Toolmarks, 30 AFTE J. 86 (1998). When

components either do or do not come from the same source. Id.

assessment, it is impossible, or nearly impossible, to conclusively state that an examiner's findings

primary areas on which they base identifications. Id.

In a 1957 study by Alfred A. Biasotti, A Statistical Study of the Individual Characteristics of

matching impression toolmarks.” Richard Grzybowski, et al., Firearm/Toolmark Identification:

examiner sees. See Grzybowski et al., at 214.

matching knife to fatal stab wounds).

purportedly owned by Bully must be suppressed or otherwise excluded from evidence to be

from any evidence to be offered at trial.

Respectfully submitted this, the 8th day of October, 2020.

BY:/s/Dennis C. Sweet, III

Dennis C. Sweet, III (MSB #8105)

foregoing MOTION FOR DISMISSAL OF INDICTMENT OR, IN THE ALTERNATIVE, FOR

electronic filing system.

/s/Dennis C. Sweet, III

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