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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT SHEPARD, )
) Court of Appeals No. A-3604
Appellant, ) Trial Court No. 3KO-S88-538CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1283 - February 19, 1993]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Kodiak, Roy H. Madsen,
Judge.
Appearances: Blair McCune, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Robert Shepard was charged with two counts of first-
degree murder. Following a jury trial presided over by Superior
Court Judge Roy H. Madsen, Shepard was acquitted altogether on
one count and was convicted of the lesser-included offense of man
slaughter on the other. Shepard appeals, contending that the
trial court erred in barring an expert witness from testifying in
his defense. We reverse.1
FACTS
1. The offense
In the summer of 1988 Robert Shepard agreed to help
brothers Robbin and Daniel Nickerson at their set net site on a
remote part of Kodiak Island. On June 22, 1988, friends of the
Nickersons from a nearby fishing site, the Herzogs, visited the
Nickersons' cabin. Shepard told them that the Nickersons had
been drinking all night and were asleep. Several days later,
Shepard told the Herzogs that the Nickersons had not returned
from a boat trip. Soon afterwards, Edward Herzog spotted the
Nickersons' skiff overturned on a beach. The Herzogs filed a
report with the Alaska State Troopers. When interviewed by the
troopers in connection with the Nickersons' disappearance,
Shepard said that he had last seen the brothers on the morning of
June 23, when they left camp in their skiff to obtain more
alcohol.
The troopers undertook a search of the surrounding
area, but found no trace of the missing brothers. Shepard,
meanwhile, remained at the Nickerson cabin and continued to run
the fishing operation. He was soon joined by the Nickersons'
mother, who travelled to Kodiak from her home in Washington after
learning of her sons' disappearance.
During the weeks following her arrival at the cabin,
Mrs. Nickerson became increasingly suspicious that her sons had
been the victims of foul play. She reported to the troopers that
some rocks near the landing dock at the fish camp seemed to have
been moved recently. On August 9, 1988, the troopers discovered
the bodies of the Nickerson brothers buried in a crevice, beneath
the rocks. Autopsies established that both Daniel and Robbin had
been shot.
Shepard acknowledged shooting the Nickersons but
claimed to have acted in self-defense. He was subsequently
charged with first-degree murder as to both Daniel and Robbin
Nickerson.
2. The trial
As part of its case-in-chief at trial, the state
presented evidence concerning Shepard's numerous false statements
to authorities investigating the Nickersons' disappearance and
his elaborate efforts to conceal the shooting after it occurred.
The state's theory was that this evidence established Shepard's
consciousness of guilt, a circumstance inconsistent with his
claim of self-defense.
After the state rested its case, Shepard took the stand
in his own defense. He testified that the Nickerson brothers
were extremely violent and unstable people; Daniel, in
particular, always carried a gun and did not hesitate to use it
to frighten and shoot at people. Shepard claimed that on the
morning of June 23, 1988, he took the Nickersons' skiff out to
check the nets. Daniel and Robbin Nickerson had spent the prior
night drinking and were still asleep. Upon returning, Shepard
entered the cabin. Daniel Nickerson immediately confronted
Shepard; Nickerson was enraged at Shepard for taking the skiff
without permission. Shepard testified that Daniel had a pistol
and told Robbin to move out of the way so that he could "get a
clear shot."
Shepard claimed to have reacted by grabbing Robbin and
using him as a shield between himself and the pistol-wielding
Daniel. Shepard backed into an adjoining bedroom, where he
released Robbin, grabbed his rifle, and shot Daniel once, killing
him. Shepard turned back just in time to see Robbin coming at
him with a knife. Robbin lunged twice, forcing Shepard to shoot
him in the shoulder.
Shepard testified that as he went for water and a towel
to administer first aid to Robbin, he saw Robbin grab a nearby
shotgun. A struggle over the shotgun ensued. In the course of
the struggle, the gun discharged, killing Robbin.
Shepard presented a combination of physical evidence
and expert testimony to corroborate many of the details of his
story. This evidence, however, failed to explain Shepard's
coverup of the shooting. To shore up this aspect of his self-
defense claim, Shepard attempted to establish that his failure to
report the shooting and his efforts to cover it up had resulted
not from his consciousness of guilt, but rather from post
traumatic stress disorder (PTSD), a psychological condition
Shepard claimed to suffer as a result of the war in Viet Nam.
Shepard testified that he had been a Marine in Viet Nam
during the war and, as a result, had been exposed to severe
combat-related stress. Shepard described as particularly
traumatic a period of several weeks that he spent confined in the
Marine brig at Da Nang. Shepard claimed that he was subjected to
brutal mistreatment in the brig, including an incident in which a
guard sexually assaulted him with a nightstick. Shepard also
claimed that at one point the brig came under enemy attack and
the prisoners were left defenseless. Shepard stated that
prisoners lived in constant fear of being overrun by the enemy.
According to Shepard, his Viet Nam experiences had
left him profoundly distrustful of police and other authority
figures. Shepard testified that the shooting incident with the
Nickersons rekindled the emotions of his war-time trauma, leaving
him powerless to do anything beyond attempting to restore his
life to normal, as if nothing had happened. He felt certain that
the police would refuse to listen and would attack him if he
attempted to report the incident.
To support the theory that his post-shooting conduct
resulted from PTSD rather than from a consciousness of guilt,
Shepard attempted to call Dr. Raymond Scurfield, director of
psychiatric treatment for the Post Traumatic Stress Treatment
Program at the American Lakes Veterans Administration Medical
Center in Tacoma, Washington. Scurfield held a doctorate in
psychiatric clinical social work, had served as a psychiatric
social work officer with the Army in Viet Nam, and had thereafter
pursued a career with the Veteran's Administration, specializing
in the treatment of veterans suffering the effects of PTSD. In
the course of his career, Scurfield worked extensively with Viet
Nam veterans, published numerous articles, lectured widely, and
was invited to testify before Congress on the topic of PTSD; he
had received numerous awards recognizing his work in the field.
Shepard proposed to call Scurfield to lay the
groundwork for a second expert witness, Dr. Robert Alberts, an
Anchorage psychiatrist who had examined Shepard and diagnosed him
as suffering from PTSD. Although the state did not oppose
Alberts' testimony, it did object to Scurfield's. The state
raised two primary grounds: first, that Scurfield had not
personally examined Shepard, and, second, that his proposed
testimony amounted to the type of psychological "profile"
evidence this court had recently deemed inadmissible in the
context of child sexual abuse cases. The trial court tentatively
agreed with the state, indicating that, although Alberts could
testify because he had actually examined Shepard, Scurfield could
not. The court nevertheless allowed Shepard to make a formal
offer of proof by questioning Scurfield out of the presence of
the jury.
After reciting his academic and professional
background, Scurfield testified that PTSD is a generally accepted
medical condition that received formal recognition by the medical
profession in approximately 1980. Scurfield explained the manner
in which the condition became recognized in the years after the
Viet Nam war. Drawing on his extensive experience with PTSD in
the Veterans Administration, Scurfield discussed the technical
definition of PTSD, described its common symptoms, and gave
examples of the types of battlefield trauma that could cause the
condition and the manner in which the condition can continue to
affect people who suffer from it for many years.
Scurfield testified that avoidance, denial, and fear or
distrust of authority figures are common reactions among persons
who have been exposed to extraordinarily traumatic experiences,
such as hand-to-hand combat or sexual assault. Scurfield also
stated that the Viet Nam war had resulted in a particularly high
incidence of PTSD, and he discussed various reasons why this had
occurred. He testified that PTSD is a chronic condition, which
is not necessarily debilitating but can have profound effects
long after the traumatic event that causes it. According to
Scurfield, events or conditions that remind a PTSD sufferer of an
earlier traumatic episode can bring on an immediate, overwhelming
emotional response similar to that caused by the original
episode.
With regard to the present case, Scurfield indicated
that the events Shepard claimed to have experienced in Viet Nam
were typical of the types of trauma that resulted in PTSD.
Scurfield noted in particular that the Marine brig in Da Nang had
been notorious for its brutal treatment of inmates, and he
testified that members of his hospital staff had treated a number
of patients whose PTSD was evidently brought on by mistreatment
in the Da Nang brig. According to Scurfield, the shooting
incident in the present case was the type of sudden, traumatic
event that is capable of precipitating a recurrence of PTSD
symptoms. Scurfield believed that Shepard's conduct in the
aftermath of the shooting exemplified avoidance, denial, and
distrust of authority. He thought it plausible that Shepard's
efforts to cover up the shooting and mislead authorities had
resulted from PTSD rather than from a consciousness of guilt.
Finally, Scurfield testified that he had reviewed
Shepard's military service records, had consulted with Dr.
Alberts concerning Alberts' evaluation of Shepard, and had also
consulted with a Veterans Administration official from Anchorage
who was actively involved in PTSD treatment and was familiar with
Shepard's case. Scurfield indicated that he had found "nothing
there that's inconsistent with a diagnosis of PTSD, if there has
been a valid pre-military, military, and post-military assessment
. . . ruling out other factors. And it appears that Dr. Alberts
has done a conscientious job in -- in arriving at his decision
about that."
After hearing Scurfield's proposed testimony, the trial
court confirmed its initial decision to exclude the evidence.
Although finding that Scurfield's "expertise in the field was
documented and acknowledged and the court qualified him as an
expert," the court adopted the state's view that the proposed
testimony amounted to questionable psychological profile
evidence. The court noted that Scurfield had not examined
Shepard, that the state was not disputing "the existence of a
condition such as PTSD," and that Dr. Alberts would be testifying
about his evaluation of Shepard's condition. Commenting that
"this case is not about the morality or immorality of the Viet
Nam War," the court concluded that the probative value of
Scurfield's testimony did not outweigh its potential to cause
prejudice by "induc[ing] a decision by the jury on a purely
emotional basis."
Shepard was left with Dr. Alberts to support his PTSD
claim. Alberts was able to cover much of the groundwork touched
upon in Scurfield's proposed testimony: he testified that PTSD
is a generally recognized form of anxiety disorder that can be
experienced by a broad range of persons who are exposed to
extraordinarily traumatic events, including military combat; he
said that he had treated many patients who suffered from PTSD as
a result of their experiences with the military in Viet Nam; he
confirmed that the effects of PTSD are long-lasting and can be
triggered by the renewed occurrence of a traumatic incident.
Alberts further confirmed that avoidance, denial, and distrust of
authority were common symptoms experienced by persons suffering
from PTSD.
Based on his psychiatric examination in the present
case, Alberts expressed the opinion that Shepard suffered from
PTSD, and that his post-shooting conduct was consistent with what
might be expected of a PTSD victim who had acted in self-defense.
The state rebutted Shepard's claims of PTSD with two
witnesses: Major Felipe Torres, a Marine Corps corrections
specialist, and Dr. Francis Criswell, a forensic psychiatrist
with the Alaska Psychiatric Institute.
After being qualified as an expert in the Marine Corps
corrections system, Torres testified that the Marine Corps
traditionally enforced strict policies assuring humane treatment
of marines confined in its brigs. Although Torres had never
served as a corrections officer in Viet Nam and had never visited
the brig in Da Nang, he was allowed to express his expert opinion
-- based on recent conversations with two officers who had worked
in the Da Nang brig during the war -- that prisoners in the brig
had not been mistreated by their guards.
Criswell testified that he had served in Viet Nam
during the war as an Air Force flight surgeon. He stated that he
was well acquainted with PTSD and had treated veterans suffering
from the condition. Criswell emphasized his own expertise
working as a forensic psychiatrist with criminal defendants,
insisting that professionals who do not deal regularly with
criminal defendants "tend to be rather naive and gullible when
they are faced with the evaluation of criminal defendants."
Although recognizing that PTSD is a generally accepted medical
condition, Criswell expressed the view that the condition was
difficult to diagnose accurately because the diagnostic category
has been criticized as "so broad that it is difficult to say a
person does not have it. Almost impossible." According to
Criswell, the condition was difficult to prove and equally
difficult to disprove. Criswell believed that, due to its
broadly defined nature, PTSD had become "a fad in legal
defenses."
Criswell further testified that he performed a
psychiatric evaluation of Shepard pursuant to a court order
issued at the state's request. Describing Shepard as not
particularly cooperative during the examination, Criswell stated
that he had observed nothing to convince him that Shepard
suffered from PTSD. Although indicating that he could not
entirely rule out PTSD, Criswell stated that he did not believe
Shepard's account and did not think that he had PTSD. Criswell
criticized Dr. Alberts as naive and gullible in accepting
Shepard's version of events.
At the conclusion of the prosecution's rebuttal case,
Shepard requested the trial court to allow Scurfield to testify
on surrebuttal in response to the testimony given by Torres and
Criswell. Finding that the right to present surrebuttal was
limited and did not extend to evidence that was merely
cumulative, the trial court denied Shepard's request.
The jury acquitted Shepard of all charges stemming from
the death of Daniel Nickerson and of the first-degree murder
charge stemming from the death of Robbin Nickerson; on the count
involving Robbin Nickerson, however, the jury convicted Shepard
of the lesser-included offense of manslaughter.
DISCUSSION
On appeal, Shepard contends that the trial court erred
in precluding Dr. Scurfield from testifying as a defense expert.
1. Standard of review
The trial court is vested with broad discretion to
regulate the admission of expert testimony. See, e.g., Beagel v.
State, 813 P.2d 699, 707 (Alaska App. 1991); Cox v. State, 805
P.2d 374 (Alaska App. 1991). A trial court's decision excluding
expert testimony is subject to reversal for abuse of discretion.
Beagel, 813 P.2d at 707. We will find an abuse of discretion
only "when we are left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred in its
ruling." Dura Corp. v. Harned, 703 P.2d 396, 409 (Alaska 1985).
2. Exclusion of Scurfield's testimony
Admission of expert testimony is governed by Alaska
Rule of Evidence 702, which provides, in relevant part:
(a) 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.
The standard established by this rule is not rigid; the
Alaska Supreme Court has construed it to require "simply that the
witness' special knowledge must assist the trier of fact to
understand the evidence or determine a fact in issue." Norris v.
Gatts, 738 P.2d 344, 350 (Alaska 1987).
Here, in excluding the disputed evidence, the trial
court relied primarily on the prosecution's claim that
Scurfield's proposed testimony was the type of psychological
"profile" evidence that should rarely be admitted.2 Although the
state abandons this theory on appeal, tacitly conceding error,
the theory's prominence as a basis for the trial court's ruling,
and the tacit nature of the state's concession require us to
address it.
This court has had several occasions to consider expert
testimony concerning psychological "profiles" -- testimony identi-
fying characteristic traits shared by persons who have had
similar experiences (for example, victims of sexual abuse) or who
are predisposed toward certain conduct (for example, pedophilia).
Compare, e.g., Haakanson v. State, 760 P.2d 1030 (Alaska App.
1988), with Rodriguez v. State, 741 P.2d 1200, 1203-06 (Alaska
App. 1987).
We have recognized a special danger when an expert is
allowed to apply a novel psychological profile to identify a
person as a member of a certain group or class in order to prove
that that person testified truthfully or acted unlawfully. See,
e.g., Anderson v. State, 749 P.2d 369 (Alaska App. 1988).
Because the expert in effect assumes the role of a human
polygraph in such cases, we have indicated a need for trial
judges to exercise caution by requiring the proponent of the
evidence to demonstrate that the psychological profile involved
in the case has been generally accepted as valid and that the
expert's testimony concerning the profile has particularized
relevance to issues actually in dispute:
[W]e have never authorized expert testimony
seeking to establish that a person is a
member of a particular class or group, i.e.,
battered women or sexually abused children,
by showing that they exhibit behavioral
characteristics common to that group. We
agree . . . that before such testimony is
admitted, the proponent should establish, in
a hearing out of the presence of the jury,
that the probative value of the testimony
outweighs its prejudicial effect. The
[Alaska] [S]upreme [C]ourt has suggested that
in cases such as this, compliance with
[Alaska Rule of Evidence] 403 should be
virtually the equivalent of compliance with
the Frye rule [Frye v. United States, 293 F.
1013 (D.C. Cir. 1923)].
Anderson v. State, 749 P.2d at 373; Haakanson v. State, 760 P.2d
at 1036.
In contrast, we have never expressed similar
reservations about psychological evidence whose purpose is merely
to establish that certain testimony is not necessarily untruthful
or that certain conduct is not necessarily indicative of guilt;
because the more modest aim of psychological testimony in such
cases is to assist the jury in reaching its own interpretation of
the evidence, we have recognized that the issue of admissibility
is governed by the normal standard specified in A.R.E. 702(a),
that is, whether the expert testimony would "assist the trier of
fact":
Testimony by an expert witness that
purports to establish by scientific
principles that another witness is telling
the truth treads on dangerous legal ground.
On the other hand, testimony by an expert
which provides useful background information
to aid the jury in evaluating the testimony
of another witness is admissible.
Rodriguez v. State, 741 P.2d 1200, 1204 (Alaska App. 1987). See
also Bostic v. State, 772 P.2d 1089 (Alaska App. 1989) (upholding
admissibility, in a case of child sexual abuse, of testimony
generally describing characteristic behavior that was offered to
negate the inference that the victim's behavior was inconsistent
with a truthful claim of abuse), remanded on other grounds, 805
P.2d 344 (Alaska 1991).
In the present case, Scurfield did not purport to use a
psychological profile to diagnose Shepard as suffering from PTSD.
His testimony was offered to corroborate Dr. Alberts' conclusion
that Shepard suffered from PTSD.3 Scurfield was called chiefly
to provide the jury with a more complete understanding of PTSD
and a better appreciation of the manner in which the disorder
affects those who suffer from it. The purpose of the disputed
evidence was not to prove that PTSD had caused Shepard to act in
self-defense or to testify truthfully. Rather, its purpose was
to help rebut the state's claim that Shepard's conduct in the
aftermath of the shootings established his consciousness of
guilt.
Under the circumstances, we conclude that the trial
court erred in characterizing Scurfield's testimony as
psychological profile evidence and in concluding that, as such,
it was subject to a particularly stringent standard of
admissibility.
The state nevertheless contends that the trial court
properly excluded Scurfield's testimony. Pointing out that
Scurfield never personally examined Shepard and that Alberts, who
did, was allowed to testify, the state challenges the relevance
of Scurfield's testimony, asserts that it was largely cumulative,
and contends that the trial court correctly found that its proba
tive value failed to outweigh its potential for prejudice. These
arguments are unpersuasive.
The fact that Scurfield had not personally examined
Shepard is hardly determinative. It is well established that
expert testimony need not be based on first-hand knowledge in
order to "assist the trier of fact," as required under A.R.E.
702(a). In this regard, Alaska Rule of Evidence 703 expressly
provides:
The facts or data in the particular case
upon which an expert bases an opinion or
inference may be those perceived by or made
known to him at or before the hearing. Facts
or data need not be admissible in evidence,
but must be of a type reasonably relied upon
by experts in the particular field in forming
opinions or inferences upon the subject.
See also Broderick v. King's Way Assembly of God, 808 P.2d 1211,
1217 (Alaska 1991); Wilson v. State, 669 P.2d 1292, 1297 (Alaska
1983).
Nor did the trial court's decision to allow Alberts to
testify justify it in excluding Scurfield's proposed testimony as
cumulative. We are aware of no rule restricting a party to a
single expert witness on a given issue. In this regard, A.R.E.
702(b) states:
No more than three expert witnesses may
testify for each side as to the same issue in
any given case, unless the judge permits an
additional number of witnesses to testify as
experts.
By providing that "[n]o more than three expert witnesses may
testify for each side as to the same issue," A.R.E. 702(b)
strongly suggests that a fair degree of overlapping testimony
from experts should usually be tolerated and that mutually
corroborating testimony from two expert witnesses should not
ordinarily be precluded as cumulative.
In Colt Indus. v. Frank W. Murphy Mfr., 822 P.2d 925
(Alaska 1991), the Alaska Supreme Court, under circumstances
functionally analogous to the present case, expressly rejected
the notion that overlapping expert testimony may routinely be
excluded as cumulative. The trial court in Colt precluded one of
Colt's experts, Brown, from expressing an opinion, finding his
expertise lacking on the subject. On appeal, the supreme court
disagreed, finding Brown's qualifications sufficient to allow him
to testify as an expert. Murphy nevertheless argued that
exclusion of Brown's testimony did not amount to an abuse of
discretion, since the trial court had allowed another Colt expert
to give an opinion similar to the one Brown would have given.
The supreme court disagreed with this argument, stating:
We reject this argument as well.
Brown's testimony went to a material issue of
Colt's case. Although he reached the same
conclusion as did Colt's other expert, the
mere fact that another witness has already
testified as to a certain issue does not
foreclose a litigant's right to introduce
substantiating testimony. Juries may find
one witness more compelling than another, or
they may attribute greater weight to a
finding if more than one expert reaches the
same conclusion.
Id. at 932-33.
In the present case, even assuming Scurfield would have
testified only as to matters that Alberts could also have
covered, the jury could well have found Scurfield's description
of PTSD and of the ways in which it manifests itself more helpful
than the description given by Alberts, since Scurfield had
considerably greater experience in dealing with Viet Nam veterans
who suffer from PTSD. And given Scurfield's particularized
expertise with PTSD patients, his status as a leading expert in
the field, and his greater claim to impartiality in Shepard's
case, the jury could well have deemed his views more credible
than Alberts'.
The trial court would of course have been well within
the bounds of permissible discretion had it limited the scope of
expert testimony by eliminating duplication between Alberts and
Scurfield as to matters that were truly undisputed. In the
present case, however, even though the state acknowledged the
existence of PTSD as a medical condition and conceded that, as a
licensed psychiatrist, Alberts was theoretically qualified to
diagnose it, the state hotly disputed the accuracy of Alberts'
conclusion that Shepard suffered from PTSD.
Through Criswell's testimony, the state questioned both
the usefulness of PTSD as a medical diagnosis and the competence
of Alberts' actual diagnosis of the condition. On the one hand,
Criswell suggested that PTSD was at best a semi-legitimate
diagnostic category, describing it as a condition that had become
a fad among criminal defendants because it was impossible to
prove or disprove. On the other hand, Criswell held himself out
to have special competence in dealing with criminal defendants
and, on that basis, characterized Alberts as gullible and naive
in his diagnostic efforts.
Furthermore, through Torres' testimony, the state
expressly attempted to impeach Shepard's claim that his PTSD had
resulted primarily from his war-time incarceration in the Marine
brig at Da Nang. Although Torres lacked any specific experience
with or first-hand knowledge of conditions in the brig at Da
Nang, the trial court allowed him to testify, as an expert on the
Marine Corps corrections system, that Shepard's claims of
mistreatment in the brig were likely false.
Considering the state's approach to Shepard's claim of
PTSD, Scurfield's proposed testimony plainly did not warrant
exclusion as being cumulative of Alberts' testimony.4
Scurfield's testimony was corroborative in precisely those areas
where Alberts' was arguably weakest. Had Scurfield testified, he
could well have led the jury to reject the notion that PTSD was
merely an irrelevant fad; had he been allowed to state his
opinion that Alberts had done a conscientious job in evaluating
Shepard, Scurfield might have convinced the jury that Alberts had
been neither naive nor gullible. Moreover, Scurfield's proposed
testimony that his hospital had treated numerous PTSD patients
who had apparently been the victims of mistreatment in the Marine
brig at Da Nang would have refuted Torres and might have prompted
the jury to give credence to Shepard's testimony on the issue --
an issue that Alberts had no knowledge of and was incapable of
addressing.
In determining whether exclusion of Scurfield's
testimony amounted to an abuse of discretion under these
circumstances, we consider it significant that the accused's
right to present evidence at trial finds expression in the due
process and compulsory process clauses of the United States
Constitution. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct.
2704, 2708-09, 97 L.Ed.2d 37, 46-47 (1987). The fundamental
nature of the right counsels strongly against its grudging and
parsimonious application. The state concedes, and in fact has
never disputed, that as an aspect of his defense case, Shepard
was entitled to present evidence that he suffered from PTSD. We
see no basis here for restricting Shepard to skeletal evidence of
his PTSD theory. Although the trial court was certainly entitled
to exclude purely cumulative testimony, it should have allowed
Shepard a fair opportunity to flesh out his defense.
Because the trial court determined that Scurfield was
qualified as an expert in his field and because Scurfield's
testimony could unquestionably have assisted the jury in
understanding and evaluating a significant aspect of Shepard's
defense, the disputed evidence complied with the standard of
admission set out in A.R.E. 702(a). Although the trial court
expressed concern that "this case is not about the morality or
immorality of the Viet Nam War . . . ," the record contains no
indication that Shepard offered the disputed evidence to divert
the jury's attention from the facts legitimately at issue in his
case or that the jury was likely to be unduly influenced by it.
Accordingly, we conclude that the trial court abused its
discretion in finding the probative value of the disputed
evidence to be outweighed by its potential for prejudice.
3. Harmless Error
The state argues, lastly, that any error in excluding
Scurfield's testimony was necessarily harmless, since the jury
acquitted Shepard altogether with respect to the shooting of
Daniel Nickerson, while convicting only on the lesser-included
offense of manslaughter as to the shooting of Robbin Nickerson.
It seems possible, as the state argues, that the jury's
verdict reflects its acceptance of Shepard's PTSD claim.
However, an alternative explanation of the jury's verdict also
seems possible. The strong physical evidence Shepard offered in
support of his version of the shooting could in itself have
prompted the jury to acquit Shepard as to Daniel Nickerson and to
convict only on a lesser-included offense as to Robbin Nickerson;
viewing Shepard's efforts to conceal the shooting as evidence of
his awareness of at least some wrongdoing, the jury may have
convicted him of manslaughter as to Robbin when it would
otherwise have been inclined to acquit outright.
Because the circumstances of the case do not afford any
basis for determining the precise manner in which the jury
arrived at its verdict, it would be wholly speculative to
conclude that exclusion of Scurfield's testimony did not have an
appreciable effect on the jury. See, e.g., Williamson v. State,
692 P.2d 965, 970 (Alaska App. 1984). We are accordingly unable
to find that the error in this case was harmless.
CONCLUSION
For the foregoing reasons, Shepard's conviction is
REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Shepard separately argues that his sentence is
excessive. In light of our decision reversing Shepard's
manslaughter conviction, we need not address Shepard's sentencing
argument.
2. In objecting to Scurfield's testimony, the state relied
on Haakanson v. State, 760 P.2d 1030 (Alaska App. 1988). In that
case, a trooper was allowed to testify at trial that certain
characteristics were common to persons who sexually abused
children; the trooper referred to these as a profile of a "sex
offender syndrome." The trooper was also permitted to express
his opinion that Haakanson fell within the profile. The state
presented this evidence to prove that Haakanson had in fact
engaged in the alleged abuse. On appeal, we reversed, concluding
that the legitimacy of the disputed sex offender profile had
never been established and that the state had failed to show that
the disputed evidence had any particularized relevance. Id. at
1035-37.
In ruling Scurfield's testimony inadmissible, the trial
court relied not on Haakanson, but rather on Anderson v. State,
749 P.2d 369 (Alaska App. 1988), a case that this court had
relied on in deciding Haakanson. In Anderson, another case of
child sexual abuse, we disapproved of expert testimony that the
alleged victim exhibited certain traits falling within a
"profile" for child sexual abuse victims; the evidence was
presented to establish that the victim's claim of sexual abuse
was truthful. In reversing the conviction in Anderson, we noted
that the disputed evidence amounted to the equivalent of a human
polygraph examination. We concluded that this type of profile
evidence would be admissible, if at all, only upon a specific
showing that the purported "profile" had been generally accepted
as valid by the medical community, and, further, upon a stringent
review to assure that the evidence had particularized relevance
outweighing its strong tendency to unduly influence the jury.
Id. at 373-74.
3. Indeed, Scurfield expressly disclaimed any intention to
diagnose Shepard's condition as PTSD, recognizing that the issue
of diagnosis was properly a matter for Dr. Alberts. Alberts, in
turn, did not base his diagnosis of PTSD on the mere application
of a questionable psychological profile. The undisputed evidence
at trial established that PTSD is generally accepted in the
medical profession as a psychiatric disorder. Alberts' testimony
made it clear that his diagnosis of PTSD was based on traditional
methods of psychiatric evaluation. For a helpful distinction
between psychological profile evidence and expert testimony based
on traditional methods of psychiatric evaluation, see People v.
Stoll, 783 P.2d 698, 707-15 (Cal. 1989)(in bank).
4. The state further suggests that Scurfield's testimony
was also cumulative of testimony offered by another defense
witness, Kenneth Jones. Jones, however, testified only as to
other aspects of Shepard's self-defense claim. Although Shepard
attempted to have Jones testify as an expert on PTSD, the court
did not permit him to do so.
