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Samaniego v. City of Kodiak (11/14/2003) sp-5751
Samaniego v. City of Kodiak (11/14/2003) sp-5751
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JULIA SAMANIEGO, )
) Supreme Court No. S-10378
Appellant, )
) Superior Court No.
v. ) 3KO-95-00450 CI
)
CITY OF KODIAK, KODIAK ) O P I N I O N
POLICE DEPARTMENT, )
SERGEANT WILLIAM D. MARSH, ) [No. 5751 - November 14, 2003]
and OFFICER MILTON BOHAC, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Sharon L. Gleason, Judge.
Appearances: Jeffrey A. Friedman and Kenneth
R. Friedman, Friedman, Rubin & White,
Anchorage, for Appellant. Frank S. Koziol,
Law Office of Frank S. Koziol, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Julia Samaniego sued the City of Kodiak, Kodiak Police
Sergeant William D. Marsh, and Officer Milton Bohac, alleging
that Sergeant Marsh and Officer Bohac used excessive force in
arresting her. At trial, one of Kodiak's psychiatric experts,
Dr. Stephen M. Raffle, was permitted to testify about his
diagnosis of Samaniego. The superior court prohibited Samaniego
from questioning Sergeant Marsh about a possible bias stemming
from a settled employment dispute with the City of Kodiak.
Samaniego appeals from the judgment entered on the jury verdict
in favor of Kodiak, Sergeant Marsh, and Officer Bohac, claiming
that the trial court erred in its evidentiary rulings concerning
Dr. Raffle's testimony and Sergeant Marsh's settled employment
dispute. We affirm the trial court's evidentiary rulings.
II. FACTS AND PROCEEDINGS
A. Factual History
This appeal arises out of an excessive force claim
brought by Julia Samaniego against the City of Kodiak, Kodiak
Police Sergeant William Marsh, and Officer Milton Bohac. In
April 1994 Marsh responded as back-up to a traffic stop conducted
by Officer Bohac and two Immigration and Naturalization Service
(INS) agents. Bohac and the INS agents were investigating
whether the individuals in the car had documentation proving that
they were in the United States legally. While the INS agents and
Bohac questioned the individuals, Julia Samaniego drove up and
stopped at the scene because she knew the individuals under
investigation. She was driving with four of her children and a
friend. One of the INS officers approached Samaniego's car and
asked her for identification, which Samaniego did not have.
Sergeant Marsh followed the INS agent to Samaniego's car. At
this point, Sergeant Marsh's and Samaniego's accounts of what
happened diverge.
According to Samaniego, Sergeant Marsh told her "get
out of the car or I do it for you" and proceeded to pull her by
the arm out of the car. According to Sergeant Marsh, he asked
Samaniego to step out of her car and offered his arm to her to
help her. Samaniego exited the car and had a conversation with
Marsh. While they were talking, Martha Samaniego, Samaniego's
daughter, started to walk away. It is uncontested that Marsh
grabbed Martha. Samaniego then pulled Martha behind her and
stood between Martha and Sergeant Marsh. According to Samaniego,
Marsh tried to grab her hands, told her she was under arrest, and
then shocked her repeatedly with a stun gun. Sergeant Marsh
tells a different story. According to Marsh, Julia Samaniego
repeatedly hit him in the chest after he grabbed Martha. He
alleges that Samaniego resisted arrest and he employed
restraining techniques on her so that he could handcuff her.
Also according to Sergeant Marsh, Samaniego grabbed, squeezed,
and pulled his testicles. Samaniego maintains that she never
grabbed Sergeant Marsh during the incident.
B. Procedural History
Samaniego sued Officer Bohac, Sergeant Marsh, the
Kodiak Police Department, and the City of Kodiak, alleging that
the officers used excessive force when they arrested her.1 In
their answer the defendants alleged, among other defenses, that
the force used to arrest Samaniego was justified. Sergeant Marsh
counterclaimed that Samaniego committed an assault and battery on
him when she allegedly grabbed and pulled his testicles. He also
counterclaimed for intentional infliction of emotional distress.
The defendants moved for summary judgment on a
qualified immunity theory and Superior Court Judge Donald D.
Hopwood granted their motion. This court, however, reversed
Judge Hopwood's ruling and remanded the case for trial.2 We
reasoned that the superior court did not portray the facts in the
light most favorable to Samaniego and that the court based its
analysis of the officers' conduct upon the officers' subjective,
rather than objective, beliefs as to the reasonableness of the
force used.3 On remand, the superior court consolidated this
case with Martha Samaniego v. City of Kodiak because the cases
involve common issues of law and fact.
Before trial, Samaniego filed a motion in limine to
prevent and limit the use at trial of psychiatric and
psychological testing results that Kodiak wanted to introduce.
The newly assigned superior court judge, Judge Sharon L. Gleason,
denied the motion. Samaniego also filed a request to question
Marsh at trial about possible emotional distress or bias stemming
from settlement of an employment dispute with the City of Kodiak.
The trial court denied this request.
The case was tried in July and August 2001, and the
jury returned a verdict in favor of the City of Kodiak, Sergeant
Marsh, and Officer Bohac. The court entered final judgment
against Samaniego for $82,475.99 in attorney's fees and costs.
Samaniego appeals the superior court's pretrial evidentiary
determinations.
III. STANDARD OF REVIEW
We review a trial court's evidentiary decisions for
abuse of discretion.4 "We will find that a trial court abused
its discretion only when we are left with the definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling."5
IV. DISCUSSION
A. The Trial Court Did Not Err in Declining To Apply
the Daubert/Coon Reliability Factors to Dr. Raffle's
Testimony.
Before trial, Samaniego filed a motion in limine
seeking to limit the proposed psychological and psychiatric
testimony that defendants wished to introduce at trial to show
that Samaniego was malingering with regard to the effects that
she allegedly experienced from the April 1994 incident.
Samaniego argued that under the United States Supreme Court's
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,6 our
decision in State v. Coon,7 and Alaska Rule of Evidence 702,8 the
City of Kodiak had not demonstrated the reliability of Dr.
Stephen M. Raffle's expert testimony and that it should therefore
be excluded. Specifically, she asserted that Dr. Raffle should
not be able to present evidence of medical or psychiatric
diagnoses.
Rejecting Samaniego's Daubert/Coon challenge to Dr.
Raffle's testimony, the trial court took judicial notice "that
psychological and psychiatric evaluations, including clinical
interviews . . . are long-recognized techniques that have been
empirically tested, subject[ed] to extensive peer review and
publication, and generally accepted in the psychological
community." Consequently, the court permitted Dr. Raffle to
testify, subject to appropriate objections at trial, as to
whether Samaniego suffers from a personality disorder and to the
cause of her depression and her loss of self-esteem.
On appeal, Samaniego argues that the trial court erred
in admitting Dr. Raffle's testimony because Kodiak had not
established its reliability.9 Samaniego does not contend that
Dr. Raffle's methodology or any portion of his testimony was
unreliable; she simply asserts that Kodiak should have subjected
Raffle's testimony to the four reliability factors outlined in
Daubert and mentioned by this court in Coon. Samaniego concludes
that without proof of reliability, the trial court should have
excluded Dr. Raffle's testimony under Alaska Rule of Evidence
702. Before Dr. Raffle testified, Samaniego made a standing
objection to Dr. Raffle's testimony on this basis.
Dr. Raffle is a psychiatrist who specializes in
forensic psychiatry. He graduated from the University of Chicago
medical school and has treated patients for thirty years. He has
testified in civil and criminal proceedings. Dr. Raffle
conducted two clinical interviews with Samaniego, one in 1997 and
the other in 2001. The defense offered Dr. Raffle as an expert
in psychiatry without objection from Samaniego. The court
accepted Dr. Raffle as an expert.
In State v. Coon, we adopted the Daubert standard to
determine the admissibility of scientific evidence.10 Daubert
requires trial courts to determine "that scientific evidence is
both relevant and reliable."11 We noted that the factors
identified in Daubert provide useful guidance in assessing
whether proffered scientific evidence is relevant and reliable.12
These factors are:
(1) whether the proffered scientific theory
or technique can be (and has been)
empirically tested . . . ; (2) whether the
theory or technique has been subject to peer
review and publication; (3) whether the known
or potential error rate of the theory or
technique is acceptable, and whether the
existence and maintenance of standards
controls the technique's operation; and (4)
whether the theory or technique has attained
general acceptance.[13]
These factors are flexible, and as the United States
Supreme Court has noted, they "may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the
expert's particular expertise, and the subject of his testimony."14
The Court concluded that "we can neither rule out, nor rule in,
for all cases and for all time the applicability of the factors
mentioned in Daubert."15 In the same vein, we noted in Coon that
trial courts may take judicial notice of the admissibility of
expert testimony when "an area of expertise is well-known and has
been fully considered by the courts."16
Psychiatric testimony need not be subjected to analysis
under the Coon factors when the testimony is simply a diagnosis
stemming from a typical psychiatric examination. A bare claim
that psychiatric evidence is unreliable does not subject forensic
psychiatry to a mini-trial in every case. We have repeatedly
recognized the validity of independent psychological and
psychiatric exams and forensic psychological and psychiatric
exams in civil and criminal contexts.17 Additionally, Alaska's
statutes and court rules recognize the legitimacy of this type of
testimony.18
It was not an abuse of discretion for the trial court
to take judicial notice of the admissibility of Dr. Raffle's
psychiatric testimony. Because the Daubert/Coon factors are not
mandatory, and because we have endorsed the trial court's ability
to take judicial notice of the admissibility of expert testimony
in well-known areas of expertise, we affirm the trial court's
decision to admit Dr. Raffle's testimony concerning his diagnosis
of Samaniego.
B. The Trial Court Did Not Err in Admitting Dr.
Raffle's Testimony that Samaniego Was Malingering.
Before trial, Samaniego filed a motion in limine
seeking to limit Dr. Raffle's testimony, arguing that he should
not be permitted to testify that Samaniego feigned, falsified, or
exaggerated her symptoms. Samaniego contended that Raffle's
testimony to that effect amounted to an attack on her
credibility. She argued that under Alaska law, expert witnesses
may not give opinions as to whether a witness is being honest.
Samaniego concluded that the court "should exclude any and all
evidence from expert witnesses that states or suggests that [her]
statements are false or exaggerations." The superior court
partially denied Samaniego's motion. Judge Gleason ruled that
Dr. Raffle could testify "as to whether he believes Mrs.
Samaniego has accurately described to him her mental health
status and her symptoms." However, the trial judge proceeded to
prohibit Dr. Raffle from testifying about any party's credibility
regarding the events of April 1994. The trial court explicitly
stated that the parameters of the ruling would have to be further
delineated with specific objections to specific questions at
trial: "The plaintiffs can raise objections to specific
questions in this regard at trial as warranted."
Samaniego renews her objections to Dr. Raffle's
testimony on appeal. In response, the City of Kodiak argues that
Dr. Raffle's attack on Samaniego's credibility came as a
diagnosis of malingering. "To malinger is `to pretend to be ill
or otherwise physically or mentally incapacitated so as to avoid
duty or work' or `to deliberately induce, protract, or exaggerate
actual illness or other incapacity so as to avoid duty or work.'
"19
We conclude that Dr. Raffle testified within the bounds
of the trial court's order when he gave his opinion that
Samaniego was malingering. Dr. Raffle's diagnosis of malingering
stemmed in part from his analysis of conversion disorders that
Samaniego allegedly experienced after her arrest in April 1994.
After the arrest, Samaniego complained of spells that involved
disorientation and fluctuating consciousness. Dr. Raffle gave
the opinion that the first spell suffered by Samaniego was
authentic. However, he stated his belief that Samaniego
fabricated all subsequent spells, noting that the symptoms were
different and that Samaniego appeared to have control over the
later spells, a trait which is inconsistent with a conversion
disorder. Specifically, Dr. Raffle testified:
At a later time, she has a series of symptoms
which do not resemble the first [episode].
They're marked with a rather sudden onset of
impaired consciousness, staring, tearfulness,
. . . all of which lasts for a minute or two,
abruptly subsides and then her consciousness
is clear. There's no paralysis, there's no
numbing as [there] was in the first incident,
there's no confusion afterwards. In the
subsequent events, she is able to control
their onset, as she says, by withdrawing from
certain stimuli, certain external events.
Dr. Raffle gave the opinion that Samaniego intentionally faked
these later lapses in consciousness. He testified that all
neurological and psychological explanations for this behavior had
been ruled out, leaving him to conclude that Samaniego was
malingering.
Although this testimony was appropriately within the
scope of the trial court's ruling, other aspects of Dr. Raffle's
testimony were less so. Dr. Raffle also testified at some
length about inconsistencies in Samaniego's recounting of the
history of the arrest. He gave the opinion, for example, that
"[h]er story about touching Officer Marsh changes over time. In
the criminal court . . . she swore under oath that she hadn't
touched Officer Marsh. In my re-exam, she says [she did push
him]." Similarly, Dr. Raffle gave an opinion about Samaniego's
truthfulness concerning the bruises she received from Officer
Marsh's stun gun. Dr. Raffle testified that although Samaniego
told him that the bruises remained for over six months, "[a]s a
physician, I know that bruises resolve in two weeks." This
testimony was inadmissible under the trial court's ruling because
it reached the validity of Samaniego's story regarding the facts
of her arrest. The superior court's ruling concerning Dr.
Raffle's testimony explicitly prohibited testimony about any
party's credibility with regard to these events. Yet despite
Judge Gleason's invitation to "raise objections to specific
questions . . . at trial as warranted," Samaniego did not object
to this testimony as beyond the scope of the court's ruling at
trial, nor did Samaniego move to strike the testimony.20
We conclude that Judge Gleason's ruling was
appropriate. It drew the line in the proper place - Dr. Raffle
could testify as to whether he believed that Samaniego accurately
described her mental health status and symptoms to him but could
not testify about any party's credibility regarding the arrest.
The ruling left it up to Samaniego to object at trial to specific
questions that went beyond the limits of the ruling. Samaniego
did not object, and therefore failed to preserve the issue for
appeal.21 We hold that the superior court did not err in its
ruling on the scope of Dr. Raffle's testimony.
C. The Trial Court Did Not Err in Excluding Testimony
of Sergeant Marsh's Alleged Bias in Favor of the City
of Kodiak.
In 1998 allegations of wrongful conduct culminated in
Officer Marsh's separation from the Kodiak Police Department.
Following administrative and superior court proceedings, Marsh
and the City of Kodiak reached a settlement agreement whereby
Marsh left the Kodiak Police Department. Samaniego filed a
motion to introduce evidence of the allegations against Marsh and
of the settlement. She put forth two arguments in her motion.
Samaniego asserted that the facts surrounding these
events were relevant to Marsh's counterclaim against Samaniego
for intentional infliction of emotional distress. Samaniego
argued that because the jury would have to decide whether she
caused Marsh distress, the issue of other competing stressors in
his life was relevant. The trial court agreed, ruling: "To the
extent that Mr. Marsh would be asserting that the emotional
distress from the incident in 1994 continued in 1998, then I will
allow inquiry into the 1998 event, but it's going to be limited."
Samaniego also argued that cross-examining Marsh about
these events was "essential to probe any potential bias Marsh
might have to testify [favorably] to the City . . . ." According
to Samaniego, Marsh might have felt compelled to testify
favorably for the City because the terms of the settlement were
favorable to him. In response to this argument, the City pointed
to the fact that by the time the allegations were made against
Marsh, Marsh had already provided testimony about the incident
with Samaniego a number of times. The City asserted that it was
"ludicrous to think there was anything to buy," because Marsh's
testimony had crystallized before his later issues with the
police department arose. The City also argued that introduction
of these issues would prolong the trial and possibly confuse the
jury.
The superior court analyzed the evidence under Alaska
Rule of Evidence 403 and ultimately prohibited any reference to
these issues for the purpose of showing bias.22 The court
reasoned that although the alleged wrongful conduct and the
issues surrounding the allegations might have some marginal
relevance to whether Marsh would be biased in Kodiak's favor, the
"very low probative value" of the testimony would be outweighed
by a "substantial degree of prejudice."
On appeal, Samaniego argues that the trial court erred
in precluding questioning about the allegations against Marsh and
his settlement with the Kodiak Police Department to show his
potential bias in favor of Kodiak. Specifically, she contends
that "Marsh obtained a significant benefit from . . . Kodiak at a
time when Kodiak needed his favorable testimony. Jurors could
reasonably view this favorable treatment as a quid pro quo for
his favorable trial testimony."
Samaniego's argument is not persuasive. Marsh is a
named defendant in this case and brought a counterclaim of his
own against Samaniego. His status as a party gave him ample
incentive to testify favorably for himself and for his co-
defendant, the City of Kodiak. Marsh's involvement in an
employment dispute with the City of Kodiak, and the subsequent
settlement of that dispute years after Marsh first testified
about the incident with Samaniego, cannot be viewed as critical
to the issue of bias. The superior court's determination whether
to admit evidence under Rule 403 is discretionary,23 and we hold
that the court did not abuse its discretion in this instance.
Douglas v. Owens,24 a Third Circuit case that Samaniego
cites to support her argument, is inapposite. Douglas, a state
prisoner, alleged that prison guards beat him in the aftermath of
a riot.25 An Islamic chaplain at the prison testified on
Douglas's behalf that he observed abrasions or bruises on Douglas
around the time of the riot.26 On cross-examination, the prison
guards sought to show the chaplain's potential bias by
establishing that the department of corrections had terminated
the chaplain for his involvement with rioting inmates and his
failure to cooperate with an investigation of the riots. The
district court prevented this line of questioning, allowing the
jury to learn only that the department of corrections had
terminated the chaplain.27 The Third Circuit held that it was an
abuse of discretion to prevent the guards from questioning the
chaplain about the circumstances of his termination.28 To convey
effectively that the chaplain was potentially biased against the
guards and in favor of Douglas, the court reasoned that the
inquiry had to go beyond the fact that the chaplain was simply
"terminated" to inquire about the circumstances of that
termination.29
Douglas is distinguishable from the instant case
because in Douglas the chaplain could have appeared to the jury
as a disinterested witness had the guards not been able to cross-
examine him about the circumstances of his termination. In
contrast, in this case there was no danger that the jury would
view Marsh as disinterested because he was not simply a witness;
he was a named defendant and was also pursuing his own
counterclaim. Therefore, his status as a party whose interests
were aligned with the City's was not in dispute.
We hold that the superior court performed the
appropriate balancing test under Alaska Rule of Evidence 403 and
did not err in precluding questioning of Marsh regarding the
allegations against him or his employment dispute with the City
of Kodiak. Accordingly, we affirm the trial court's ruling on
this issue.
V. CONCLUSION
Because the trial court did not err in declining to
apply the Daubert/Coon reliability factors to Dr. Raffle's
testimony, we AFFIRM the trial court's admission of the
testimony. Also, because the trial court did not err in its
ruling concerning the admissibility of Dr. Raffle's testimony
about Samaniego's alleged malingering, we AFFIRM that ruling.
Finally, we AFFIRM the trial court's decision to exclude
testimony concerning allegations against Sergeant Marsh and the
settlement of his employment dispute with the City of Kodiak.
_______________________________
1In a related criminal proceeding, the police charged Samaniego
with assault, disorderly conduct, and forcibly resisting or
interfering with an arrest. Samaniego v. City of Kodiak, 2 P.3d
78, 82 (Alaska 2000). A jury convicted her of resisting or
interfering with an arrest but acquitted her of assault and
disorderly conduct. Id.
2Id. at 88.
3Id. at 85 & 88.
4Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).
5Id. (internal quotations and alteration omitted).
6509 U.S. 579 (1993).
7974 P.2d 386 (Alaska 1999).
8The relevant text of Alaska Rule of Evidence 702 states:
(a) If scientific, technical, or
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,
expertise, training, or education, may
testify thereto in the form of an opinion or
otherwise.
9Samaniego asserted in the heading of her first argument that the
trial court erred in not holding an evidentiary hearing to
determine whether psychiatric evidence was admissible. She does
not discuss this argument in the text of her first argument.
Because Daubert hearings are not mandatory, because Samaniego did
not request a hearing, and because our case law does not mandate
an evidentiary hearing in every instance, see State v. Coon, 974
P.2d 386 (Alaska 1996), it was not error for the trial court not
to hold one.
10974 P.2d at 402.
11Id. at 390
12Id. at 395.
13Id.
14Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)
(quotations omitted).
15Id.
16Coon, 974 P.2d at 398.
17See, e.g., Fardig v. Fardig, 56 P.3d 9, 14 (Alaska 2002)
(recognizing that psychologist's testimony that children would be
best served by supervised contact with mother provided support
for superior court's decision to require supervised visitation);
J.S. v. State, 50 P.3d 388, 392 (Alaska 2002) (recognizing expert
therapists' testimony concerning whether children would be harmed
if transitioned back into father's custody in parental
termination case); In re S.H., 987 P.2d 735, 740-41 (Alaska 1999)
(recognizing psychiatric testimony in affirming superior court's
determination of conservatee's inability to manage his property
and affairs effectively under AS 13.26.165); Nelson v. State, 874
P.2d 298, 303 (Alaska App. 1994) (ruling under AS 12.47.070 that
trial judge has authority to order criminal defendant to submit
to independent psychiatric evaluation).
18See AS 12.47.070 (requiring psychiatric or psychological exam
and report if criminal defendant files notice of intent to rely
upon insanity defense); AS 12.47.100 (requiring psychiatric or
psychological examination and report concerning criminal
defendant's competency to understand proceedings or assist in own
defense); Alaska R. Civ. P. 35 (authorizing court to order party
whose mental condition is in controversy to submit to
examination).
19Glamann v. Kirk, 29 P.3d 255, 258 n.4 (Alaska 2001) (quoting
Webster's Third New International Dictionary of the English
Language Unabridged 1367 (1993)).
20See Alaska R. Evid. 103(a)(1) providing:
(a) Effect of Erroneous Ruling. Error
may not be predicated upon a ruling which
admits or excludes evidence unless a
substantial right of the party is affected;
and
(1) Objection. In case the ruling is
one admitting evidence, a timely objection or
motion to strike appears of record, stating
the specific ground of objection, if the
specific ground was not apparent from the
context.
21Id.; Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d
1093, 1102 (Alaska 2002).
22Alaska Rule of Evidence 403 provides:
Although relevant, evidence may be
excluded if its probative value is outweighed
by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
23Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).
2450 F.3d 1226 (3d Cir. 1995).
25Id. at 1228.
26Id. at 1229.
27Id.
28Id. at 1231.
29Id. at 1231-32.
