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are encouraged to bring typographical or other formal
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Courts:
303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LORENZO CHRISTOPHER CARTER,
Appellant, Court of Appeals No. A-10313
Trial Court No. 3AN-06-2396 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2268 June 18, 2010
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Sharon B. Barr, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
The question presented in this case is whether a police
officer (called as a | witness on behalf of the State | ) should have been allowed to testify concerning the physical indications that someone has been subjected to strangling. The argument against the admissibility of this testimony is that the officer was offering expert testimony but lacked the necessary qualifications to testify on these matters. |
| As explained more fully in our opinion, we conclude that the officers testimony was proper. Some of the officers challenged testimony was admissible as lay testimony under Evidence Rule 701 (that is, admissible without the need to show that the officer was an expert | ). And with regard to the other challenged portions of the officers testimony, the trial judge could properly find that the officer had the requisite expertise to give this testimony. Accordingly, we uphold the judgement of the superior court. |
Background facts
On March 8, 2006, Romanda Lee contacted the
police and reported that her then boyfriend, Lorenzo
Carter, had assaulted her by grabbing the back of her
head, hitting her, and choking her. Lees two daughters
told the police that they had witnessed the assault.
Based on this incident, Carter was charged with second-
degree assault (as well as interfering with a report of
domestic violence, for unplugging Lees telephone when
she initially tried to call 911).1
However, at Carters trial, Lee denied that
Carter had assaulted her. Lee testified that she and
Carter had argued, that they had accused each other of
infidelity, and that Lee became so angry that she told
her daughters to call 911 and falsely accuse Carter of
assault. Lee further testified that, when the police
arrived, she repeated her false story of assault
because she was afraid that she would be in trouble for
lying to the 911 operator.
Lees daughters testified that they did not
witness any argument between their mother and Carter,
and they did not remember any assault.
In the face of these recantations, the State
relied on the prior statements made by Lee and her
daughters, as well as the testimony of the Anchorage
police officers who responded to the scene. This
appeal concerns the testimony given by one of these
officers, Earl Ernest, concerning the signs of
strangulation that he observed when he contacted Lee.
Before Officer Ernest took the stand, Carters
attorney asked the trial judge to bar the prosecutor
from questioning any of the police officers about [the]
signs and symptoms of strangulation. The defense
attorney asserted that this would be expert testimony
that the officers were not qualified to give:
Defense Attorney: I dont think any of
the officers are qualified to give [this]
kind of testimony. ... [T]he experts that
the State typically [presents are] nurses
with various degrees and training
specifically in this area, and case histories
to back them up. The officers dont have this
kind of experience or training. They dont
know alternate signs and symptoms. And I
would ask that [the officers] just stick to
what they observed.
The prosecutor responded that he
only wanted the officers to testify (1) that
they were trained to look for certain
physical manifestations when they
investigated a report that someone had been
strangled; and (2) that they observed some of
these manifestations when they interviewed
Romanda Lee. The prosecutor declared that he
did not intend to ask the officers to offer
an opinion (based on their observations) as
to whether Lee had been strangled.
When the trial judge (Superior
Court Judge Philip R. Volland) asked the
defense attorney if this limitation satisfied
his concerns, the defense attorney responded
that it did not. The defense attorney told
the trial judge that, while he did not object
to having the officers describe their
observations of Lee, he did object to the
proposed testimony concerning what the
officers were trained to look for when they
investigated a report of strangling. The
defense attorney argued that this testimony
would essentially ... allow [the officers] to
testify as experts [under] the guise of just
talking about their training.
Judge Volland reserved his ruling
on this point until he had a chance to hear
the foundational testimony concerning the
officers training.
The next day, the prosecutor called
Officer Ernest to the stand. Ernest
testified that he had received training in
the investigation of domestic violence, both
at the police academy and in later training
sessions during his twelve years with the
Anchorage Police Department. Ernest also
testified that he had received training
specifically focused on the investigation of
stranglings. When the prosecutor asked
Ernest how many cases of domestic violence he
had investigated during his police career,
Ernest answered thousands.
The prosecutor then asked Ernest to
describe [the] things ... to look for when
investigating a reported strangling. The
defense attorney did not object to this
question. The following colloquy then
ensued:
Ernest: [T]he evidence that would
probably be present in a strangulation ...
are [such things as] bruising, petechiae,
raspy voice, or difficulty swallowing. There
may be defensive wounds ... .
. . .
Prosecutor: Let me ... talk to you
[about] specifics. You [said that] one of
the things you all look for is bruising.
What sort of bruising? ...
Ernest: Well, in a strangulation case,
the primary place to look for bruising is
going to be the neck area.
Prosecutor: ... In your twelve years
as a patrol officer, ... [d]id you ever
respond [to] and investigate any
strangulation cases ... ?
. . .
Ernest: Probably, in my career, in the
30s [or] 40s ... for the number of times Ive
investigated strangulation.
Prosecutor: All right. And ... how
frequently do you see bruising in
[strangulation] cases ... ?
Ernest: Well, ... not as often as you
would think. The fairer the skin, the more
likelihood that youll be able to see red
marks, at least. Bruising tends to show up a
little bit later, depending on how long its
been since ...
At this point, the defense attorney
objected. The defense attorney told Judge
Volland that the officer was now embarking on
the kind of testimony that the defense
attorney previously objected to in
particular, the mechanisms of bruising, [and
the] conclusions [the officer] would draw
from [the presence or absence of] bruising.
Judge Volland overruled this
objection. The judge noted that, according
to Ernests foundational testimony, the
officer had responded to several dozen
strangulation cases. Based on this, Judge
Volland concluded that Ernest had sufficient
experience to talk about when he sees
bruising and when he doesnt in the context of
strangulation investigations. Judge Volland
further concluded that, to the extent the
defense attorney had raised questions
regarding the quantity or quality of Ernests
experience, these matters went to the weight
of Ernests testimony rather than its
admissibility.
After Judge Volland overruled the
defense attorneys objection to Ernests
testimony about bruising, Ernest testified
(without further objection) that, when
investigating a case of strangulation, one
would often see red marks or scratches in the
area of the throat as well as petechiae,
which Ernest described as a star-burst of red
dots created by the bursting of blood vessels
within the eyeball ... [or] sometimes in the
fairer part of a persons skin, like around
the eye or behind the ear. Ernest also
testified that one would look to see whether
the victim had a raspy voice, or was
experiencing difficulty in swallowing, and
whether there were defensive wounds on the
victims body.
The prosecutor then asked Ernest to
describe Romanda Lees physical condition at
the time of the reported assault. Ernest
testified that Lee had blood on her forehead
(from an injury to her forehead), petechiae
in both of her eyes, and fresh scratch marks
on her neck and lower face.
At the conclusion of Carters trial,
when the prosecutor delivered his summation
to the jury, he argued that Lees physical
injuries in particular, the fresh scratches
on her neck and face, and the petechiae in
her eyes corroborated the truthfulness of
her initial statements to the 911 operator
and to the police. In other words, the
prosecutor argued that the presence of these
physical injuries corroborated the States
allegation that Lee was strangled.
Carters contention that portions of Ernests testimony
were inadmissible expert testimony
On appeal, Carter acknowledges that Officer
Ernest could properly testify concerning his
observations of Lees physical condition for
example, the fresh scratches to her neck and face,
and the petechiae in her eyes. But Carter
contends that it was improper to allow Ernest to
testify concerning the significance of these
observations that these were some of the signs or
symptoms he was trained to look for as part of any
investigation into a potential strangling.
Carter argues that, even though it might be
true that police officers are trained to look for these
things when they investigate a strangling, telling a
jury that the police are trained to look for petechiae,
or for fresh scratches on the neck or face, is
tantamount to telling the jury that these things are,
indeed, signs or symptoms of a strangling. Carter
further argues that Officer Ernest did not have the
requisite expertise to offer an opinion as to whether
petechiae or fresh scratches are truly symptomatic of a
strangling.
The State responds that Ernests testimony was
not expert testimony, but rather lay testimony simply
a description of his own observations of Lees physical
condition, coupled with a description of the training
he received as a police officer. The State points out
that the prosecutor at Carters trial never asked Ernest
to offer an opinion as to whether Lees physical
condition was consistent with her report of being
strangled, or tended to show that her report of being
strangled was truthful.
But even though the prosecutor may never have
asked such questions of the officer, the officers
testimony implicitly rested on the premise that the
things he had been trained to look for were, in fact,
signs or symptoms of a strangling. Without this
foundational premise, Ernests testimony about his
training would have had no relevance.
Indeed, as we have already explained, the
prosecutor explicitly relied on this premise in his
summation to the jury. The prosecutor openly argued
that the fresh scratches and the petechiae were signs
or symptoms that Lee had been strangled and, thus, the
presence of these injuries corroborated the States
allegation that Carter strangled Lee.
The real questions presented here are (1)
whether the prosecutors premise was the type of
assertion that needed to be supported by expert
testimony; and (2) if so, whether Ernest had the
requisite expertise to offer that testimony.
Lay testimony versus expert testimony
The distinction between lay testimony and
expert testimony is set forth in Alaska Evidence Rules
701 and 702. The relevant portion of Evidence Rule 701
states that if a witness is not testifying as an
expert, the witnesss testimony ... is limited to those
opinions [and] inferences which are ... rationally
based on the perception of the witness. The relevant
portion of Evidence Rule 702 states that if scientific,
technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to
determine a fact in issue, then a witness who is
qualified as an expert by knowledge, skill, experience,
training, or education may testify about this
specialized knowledge and, based on this specialized
knowledge, may render an opinion concerning the matter.
One bedeviling aspect of the relationship
between Rules 701 and 702 is that, for many witnesses,
both rules apply to their testimony.
For example, emergency room physicians and
nurses might physically examine an arriving patient and
then attempt to diagnose the patients injury or
illness. As the Alaska Supreme Court has noted, these
doctors and nurses testimony concerning their personal
observations of a patients physical condition (e.g.,
shortness of breath, dilated pupils, etc.) is lay or
fact testimony: it is the witnesses account of their
own personal observation of events or circumstances.2
On the other hand, these doctors and nurses
move into the realm of expert testimony when they
testify about why they were looking for particular
symptoms (or the absence of particular symptoms), or
why they concluded that particular observations were
important in reaching their diagnosis. On these
topics, the testimony is covered by Rule 702 because
the doctors and nurses are relying on scientific,
technical, or other specialized knowledge.
Seemingly, this latter testimony falls within
Rule 701 as well, because the testimony consists of
opinions [and] inferences which are ... rationally
based on the perception of the witness. But this
testimony is treated as expert testimony because, even
though the diagnosis may be rationally based on the
doctors or nurses personal perception of the patients
physical condition, the chain of inference that the
doctor or nurse has relied on (when reaching this
diagnosis) rests on specialized medical knowledge that
is likely not shared by the trier of fact. In other
words, this testimony is expert testimony because, in
order for the jurors to understand or assess whether
the diagnosis is rationally based on the doctors or
nurses observations of the patient, the jurors must be
given background information about facts and principles
that are generally known only to members of the medical
profession.3
Compare Callahan v. State, 769 P.2d 444
(Alaska App. 1989), a case in which the defendant was
convicted of refusing to take a breath test following
his arrest for driving while intoxicated. This Court
held that the trial court committed error when it
prevented the defendant from presenting a witness who
would have testified that the defendant had recently
suffered injuries to his chest, back, and ribs
injuries that might have interfered with his ability to
blow into the Intoximeter tube. Id. at 446-47.
The trial court excluded this proposed
testimony on the ground that the witness was not
medically trained, but this Court held that the
witnesss testimony was admissible as lay opinion under
Evidence Rule 701. Id. at 446. Although we did not
expressly say this, it appears that the underlying
rationale of our ruling was (1) that Callahans injuries
were the type of injuries that a lay person could
observe and understand, and (2) ordinary jurors were
capable of understanding the relationship between
Callahans injuries (as described by the witness) and
Callahans potentially diminished ability to blow into
the breath-test machine. Because specialized medical
knowledge was not needed to understand these matters,
the witness should have been allowed to testify.
The testimony at issue in this case
In this appeal, Carter claims that Ernest was
improperly allowed to give expert opinion on three
subjects: (1) Ernests testimony that the fresh
scratches on Lees neck and lower face were indications
that she had been strangled; (2) his testimony that the
petechiae in Lees eyeballs were also an indication that
strangulation had occurred; and (3) his testimony that,
often, the victim of a strangling will not exhibit
bruising until later.
With regard to the first aspect of Ernests
testimony (the significance of the fresh scratches on
Lees neck and face), this was lay opinion. The jurors
did not need specialized training or experience to
understand the basis for this inference.
With regard to the second aspect of Ernests
testimony (the significance of the fact that Lee
exhibited petechiae), we agree with Carter that this
was expert testimony. Most jurors would likely not be
aware of the tie between petechiae and strangulation;
in other words, it would require scientific, technical,
or other specialized knowledge to understand the
significance of this observation in the context of an
investigation into a reported strangling.
However, Judge Volland concluded (based on
Ernests foundational testimony) that Ernest had
sufficient experience investigating cases of strangling
to be aware of the connection between petechiae and
strangulation, and thus to offer an opinion that the
presence of petechiae was an indication that a
strangling had occurred. Based on our review of the
record, we conclude that Judge Vollands ruling on
Ernests level of expertise was reasonable, and not an
abuse of discretion.
As this Court has previously observed,
[t]here is no requirement that a witness possess a
particular license or academic degree ... to qualify as
an expert. The criterion ... is whether the fact-
finder can receive appreciable help from that
[witness].4 Officer Ernest may not have had the
expertise to offer a meaningful opinion on the precise
physiological mechanism that causes petechiae, and he
may not have been aware of all the potential alternate
causes of petechiae. But Judge Volland found that
Ernest had sufficient experience in criminal
investigations to be aware that strangling victims
often exhibit petechiae. Thus, Ernest could validly
offer an opinion that the presence of petechiae tended
to corroborate Lees initial report that she had been
strangled.
As we explained earlier, Ernest himself did
not explicitly offer this opinion. But his testimony
concerning his training in particular, the fact that
he was trained to look for petechiae when investigating
a reported strangling implicitly relied on the
assertion that petechiae are an indication of
strangling. And the prosecutor expressly relied on
this assertion when he discussed the evidence of
petechiae during his summation to the jury. Because
the trial judge found that Ernest had the requisite
experience to draw this connection between petechiae
and strangulation, it was not error for the prosecutor
to rely on this inference, nor was it error for Ernest
to tell the jury about this aspect of his training.
For much the same reasons, we conclude that
it was not error for Ernest to testify that strangling
victims often will not exhibit bruising until later.
Again, Judge Volland found that Ernest had sufficient
experience investigating cases of strangling to be
aware of this fact; and we conclude, based on our
review of the record, that Judge Vollands ruling on
this question was reasonable, and not an abuse of
discretion.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.210(a)(2) and AS 11.56.745(a), respectively.
2 See Getchell v. Lodge, 65 P.3d 50, 56 (Alaska 2003); Miller
v. Phillips, 959 P.2d 1247, 1250 (Alaska 1998).
3 See the discussion of this point in Stephen A. Saltzburg,
Michael M. Martin, and Daniel J. Capra, Federal Rules of
Evidence Manual (9th ed. 2006), Vol. 3, pp. 70111 through
70118 (discussing the scope of Federal Evidence Rule 701),
and pp. 7028 through 70211 (discussing the scope of Federal
Evidence Rule 702).
4 Dymenstein v. State, 720 P.2d 42, 45 (Alaska App. 1986)
(citations omitted).
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