McCarty v. State, F-86-343

• Decision Date: 23 November 1988
• Docket Number: No. F-86-343,F-86-343
• Citation: 765 P.2d 1215,1988 OK CR 271
• Parties: Curtis Edward McCARTY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1215

765 P.2d 1215

Curtis Edward McCARTY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-86-343.

Court of Criminal Appeals of Oklahoma.

Nov. 23, 1988.

As Corrected Dec. 30, 1988.

Rehearing Denied Dec. 30, 1988.

An Appeal from the District Court of Oklahoma County; William R. Saied, District Judge.

Curtis Edward McCarty, appellant, was convicted of First Degree Murder in the District Court of Oklahoma County, Case No. CRF-85-2637, sentenced to death, and appeals. REVERSED and REMANDED for a NEW TRIAL.

David Autry, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

The appellant, Curtis Edward McCarty, was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S.Supp.1982, § 701.7(A), in Oklahoma County District Court, Case No. CRF-85-2637, before the Honorable William R. Saied, District Judge. The jury found three aggravating circumstances and sentenced appellant to death.

This case involved the stabbing and strangulation death of eighteen-year-old Pam Willis in a residence in Southwest Oklahoma City sometime during the early morning hours of December 10, 1982. The trial was conducted almost three and one-half (3 1/2) years later, on March 17-26, 1986. Appellant was convicted primarily on the basis of circumstantial evidence, and statements he made to police and third parties. A complete statement of facts is unnecessary, however, because the record is replete with error requiring that the appellant's conviction be reversed and remanded for a new trial.

I.

We first address the various issues surrounding the testimony of Joyce Gilchrist, a police forensic chemist, who testified for the prosecution at trial. Appellant asserts that the State's tardiness in disclosing the hair evidence and forensic report resulted in the defense expert being unable to adequately examine the physical evidence. We agree. The record reflects that Ms. Gilchrist began her forensic examination on December 15, 1982. She obtained additional scalp hairs from appellant on January 16, 1986. Defense counsel filed a motion for discovery and inspection on January 21, 1986, requesting all scientific and technical reports, and hair, fiber, fingerprint, and serology samples for independent evaluation by an expert to be named later. (O.R. 150) On Monday, March 10, 1986, defense counsel named John Wilson as defense expert. (O.R. 185) Ms. Gilchrist mailed the hair slides to the defense expert, John Wilson, Chief Forensic Chemist at the Regional Crime Laboratory in Kansas City, Missouri, on Friday, March 14, 1986. Mr. Wilson received the slides and forensic report at mid-day on March 17, 1986, the day the trial began. As requested, the slides were mailed back to Gilchrist on March 18, 1986.

While we do not condone defense counsel's delay in not naming an independent expert until Monday, March 10, 1986, we find that Ms. Gilchrist's delay and neglect in not completing her forensic examination and report until Friday, March 14, 1986, for a trial which was scheduled for and began on Monday, March 17, 1986, was inexcusable, since she began her forensic examination in December of 1982. Moreover, the State was given notice on January 21, 1986, that appellant had requested samples of physical evidence to be provided to an independent expert. (O.R. 150) Clearly, appellant was deprived of a fair and adequate opportunity to have critical hair evidence examined by an independent forensic expert. The procrastination of both the State and the defense, while equally deplorable, cannot justify ignoring due process notions of fundamental fairness guaranteed by the Fourteenth Amendment and Article II, Section 20 of the Oklahoma Constitution. While appellant was not entitled to a perfect trial, he was entitled to a fair one. See Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968); Jones v. State, 610 P.2d 818, 820 (Okla.Crim.App.1980). An accused is entitled to pretrial examination of physical evidence and technical reports. See Stafford v. State, 595 P.2d 797, 799 (Okla.Crim.App.1979); Wing v. State, 490 P.2d 1376, 1382 (Okla.Crim.App.1971); Layman v. State, 355 P.2d 444, 445 (Okla.Crim.App.1960). The foregoing right would be rendered meaningless unless an accused is afforded a fair and adequate opportunity to make a competent independent pretrial examination. See Moore v. State, 740 P.2d 731, 735 (Okla.Crim.App.1987).

Ironically, the State not only used the tardiness of its disclosure to deny a defense expert a fair and adequate opportunity to conduct a competent independent examination, but also took advantage of its own tardiness to discredit whatever examination was made by the defense expert. Ms. Gilchrist testified that Mr. Wilson could not have made a competent forensic examination in the length of time he had the hair slides. (Tr. VI, 174-75) Furthermore, the forensic report was at best incomplete, and at worst inaccurate and misleading. Mr. Wilson testified that Gilchrist's forensic report reflected that none of the pubic hairs found on the victim were consistent with appellant. (Tr. VIII, 22) Ms. Gilchrist admitted at trial, however, that she failed to include her conclusion that a pubic hair found on the victim was consistent with appellant's pubic hair in the forensic report given to Mr. Wilson. (Tr. VI, 156-58, 211-12) This significant omission, whether intentional or inadvertent, resulted in a trial by ambush, as defense counsel was deprived of an accurate forensic report, which is essential to intelligent cross-examination. See Layman, 355 P.2d at 450-51.

Next, in response to Assistant District Attorney Barry Albert's question based on her expertise and examination of the forensic evidence as to whether Ms. Gilchrist had "an opinion as to whether Mr. McCarty was physically present during the time violence was done to Miss Willis," Gilchrist replied "he [McCarty] was in fact there." (Tr. VI, 176-77) We find that the admission of this opinion testimony was error, because Ms. Gilchrist did not, and could not, testify that such opinion was based on facts or data "of a type reasonably relied upon by experts in the particular field" in forming such an opinion. See 12 O.S.1981, § 2703. Ms. Gilchrist herself testified that forensic science techniques had not advanced to the point where a person could be positively identified through blood types, secretor status, or hair examination. (Tr. VII, 159) We find it inconceivable why Ms. Gilchrist would give such an improper opinion, which she admitted she was not qualified to give. While defense counsel attempted to demonstrate the impropriety of Gilchrist's opinion through the testimony of John Wilson, we cannot say this was sufficient to overcome the devastating impact of improper identification testimony by a police forensic expert. "[W]ithin the context of a criminal trial, '[s]cientific or expert testimony particularly [invites] the ... danger [of unfair prejudice, of confusing the issues, or misleading the jury] because of its aura of special reliability and trustworthiness.' " United States v. Green, 548 F.2d 1261, 1268 (6th Cir.1977) (quoting United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973)).

Appellant argues that Ms. Gilchrist's opinion amounted to an expression of the appellant's guilt, because she "in effect told the jury that Mr. McCarty had murdered Pamela Willis." Supp. Br. of Appellant, at 4. "Testimony in the form of an opinion ... otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." 12 O.S.1981, § 2704 (emphasis added). The "otherwise admissible" language means that Section 2704 must be read together with Sections 2701-2703 and 2403 of the Oklahoma Evidence Code. 1 L. Whinery, Guide to the Oklahoma Evidence Code 247 (1985). The so-called "ultimate issue" rule which prohibited expressions of expert opinions on ultimate issues was intended to be abolished by Section 2704. Id. at 254 (evidence subcommittee note). It has been recognized, however, that in spite of this rule of evidence, "[a]n opinion as to the defendant's guilt is an improper lay or expert opinion because the determination of the defendant's guilt or innocence is solely a question for the trier of fact." State v. Carlin, 40 Wash.App. 698, 700 P.2d 323, 325 (1985) (citations omitted). Similarly, reversible error has been found where expert witnesses testified in effect that the testimony of two complaining witnesses in a child molestation case could be believed. United States v. Binder, 769 F.2d 595, 602 (9th Cir.1985). Bolstering the credibility of complaining witnesses through expert testimony usurps the jury's fact-finding function, because it is the sole responsibility of the jurors to assess the credibility of witnesses in light of their own experience, and no expert assistance is necessary. Id. Expert testimony should not be permitted if it invades the province of the trier of fact. United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973).

Whether or not Ms. Gilchrist's opinion constituted an improper personal expression of the appellant's guilt, her opinion that appellant was in fact present when violence was done to the victim was an improper expert opinion, because it was beyond the present state of the art of forensic science, and certainly beyond Gilchrist's personal knowledge, as testified to by both Ms. Gilchrist and Mr. Wilson. Our conclusion is buttressed by the fact that on December 14, 1987, Max Courtney, President of the Southwestern Association of Forensic Scientists, Inc., issued a prepared statement of the Board of Directors concerning allegations of professional misconduct lodged against Ms. Gilchrist. A certified copy of this statement, which was filed with this Court on January 4, 1988, concluded that Ms. Gilchrist had violated the...