Clifford v. U.S., 85-319.

Decision Date30 September 1987
Docket NumberNo. 85-319.,85-319.
PartiesJohn P. CLIFFORD, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

J. Herbie DiFonzo, Washington, D.C., for appellant.

Joan C. Barton, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before PRYOR, Chief Judge, and FERREN and ROGERS, Associate Judges.

FERREN, Associate Judge:

John P. Clifford appeals his conviction for assault with intent to commit a sexual act. D.C.Code § 22-501 (1981). He contends the trial court wrongly excluded expert testimony about his psychological condition and the likelihood that he was under the influence of drugs when he committed the acts for which he was convicted. He also argues the trial court abused its discretion by instructing the jury that, in weighing Clifford's testimony, it "may consider the fact that the defendant has a vital interest in the outcome of this trial." We conclude the trial court did not abuse its discretion in forbidding Clifford's expert witness to testify. The court correctly excluded the expert evidence because defense counsel refused to disclose the results of psychological tests that substantially provided the basis for the expert's opinion. Furthermore, although we do not favor singling out a defendant for a special bias instruction, we also find no reversible error in giving the "vital interest" instruction in this case. We therefore affirm Clifford's conviction.1

I

The complainant was a female patient at St. Elizabeths Hospital. Clifford was a housekeeper for the building in which she lived. According to the complainant's testimony, on the morning of May 10, 1984, Clifford found her in the day room of her building and asked her to follow him out of the room. She followed him down a hall until they came to a door opening onto stairs to the basement. Clifford began to walk down. When the complainant did not follow, he took her by the arm and pulled her down the stairs. She called out for help. As Clifford forced her down into the basement he asked the complainant to have sex with him, but she said she would not. Clifford pulled the complainant into a basement storage room and locked the door behind them. He showed her magazine photographs of women performing oral sex on men and said he wanted her to do the same for him. She refused. Clifford then reached up under the complainant's skirt and began to pull down her panties and stockings; she began again to scream for help and to bang on the wall. Two members of the hospital staff, Frank Lynch and Wiley Trimmier, opened the storage room door, and Clifford ceased the assault.

Clifford testified on his own behalf. He gave a very different account of the events leadings to his being found in the basement room with the complainant, but this part of Clifford's defense is not the subject of his appeal. Instead, his primary argument on appeal relies on the premise that he was involuntarily intoxicated or drugged during the events at issue. The evidence consisted of several elements.

First, Clifford testified that during the morning of May 10 he had bought a candy bar from Trimmier. He stated that after eating most of the candy bar he had begun to feel "hyper," with "a distorted feeling of dizziness," and "in a daze;" he recalled that his vision became intermittently blurred and that he felt "abnormal." Second, the defense drew on testimony by four women employed at St. Elizabeths Hospital. Each recounted separate incidents during the morning of May 10 in which Clifford unexpectedly touched her in a sexual manner; for example, in one incident, Clifford had brushed his face against the woman's cheek, then smiled at her and rubbed his face against her from her shoulder down to her breast. All four women stated that in their experience Clifford had never before behaved in this manner. In addition, a female detective testified that, as she prepared paperwork on Clifford at the police department's Sex Offense Branch office, Clifford, who was seated next to her desk, ran his right hand up along her leg, beneath her dress as high as her knee, until she stopped him. The detective also testified that as he sat in the office, Clifford would leer at any woman walking nearby.

The third element of evidence with which Clifford hoped to persuade the jury of his intoxication theory was the expert testimony of a clinical psychologist, Dr. Michael Smith. During a recess in the trial, the defense and government attorneys questioned Dr. Smith about his qualifications and the testimony he would give. Dr. Smith testified that he had conducted "a psychological evaluation interview" of Clifford since his arrest and had reviewed psychological tests administered by another psychologist, Dr. Gibbs, under Dr. Smith's supervision. Thus, Dr. Smith explained that he based his opinion in part on his own interview of Clifford and in part on "test protocols," that is, the written notes Dr. Gibbs took while subjecting Clifford to a series of standard psychological tests. Dr. Smith stated that in seeking an explanation for Clifford's behavior, "based on my interview with Mr. Clifford and my review of the test protocol, the only thing I could come up with is possibly a drug induced state; either self-ingested or involuntary." In Dr. Smith's opinion the interview and test protocols showed Clifford not to have the personality traits of a person who would likely engage in "that kind of bizarre or antisocial or inappropriate behavior." The court, however, ruled Dr. Smith's testimony inadmissible.

At the close of the evidence, Clifford sought a jury instruction on the lesser included offense of simple assault, basing his request on Clifford's description of his state of mind and on the circumstantial evidence that he had acted out of character. The government objected that the intoxication theory was too speculative to permit an instruction, since Clifford presented no direct evidence that he actually had ingested a drug, and that the suggestion he had eaten a spiked candy bar was highly implausible. With considerable reservation, however, the court agreed to give the instruction and to allow the defense to argue the drug theory. The court went on to tell the jury it should convict Clifford of simple rather than aggravated assault if it found he was so far under the influence of drugs that he was "incapable of forming the specific intent to commit a sexual act" The jury, however, found Clifford guilty of the greater offense of assault with intent to commit a sexual act.

II.

Clifford argues he was erroneously deprived of the benefit of Dr. Smith's expert opinion that he was probably acting under the influence of drugs. The decision whether to admit expert testimony lies within the "broad discretion" of the trial court and will be reversed only if "manifestly erroneous." Adams v. United States, 502 A.2d 1011, 1020 (D.C. 1986); Harris v. United States, 489 A.2d 464, 470 (D.C. 1985); Taylor v. United States, 451 A.2d 859, 866 (D.C. 1982), cert. denied, 461 U.S. 936, 103 S.Ct. 2105, 77 L.Ed.2d 311 (1983).2 We conclude that the trial court did not abuse its discretion because defense counsel refused to produce, for examination by government counsel, the test protocols on which Dr. Smith in part based his opinion.

A.

"The defense should be free to introduce appropriate expert testimony." Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973); see also Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C. 1979); Fennekohl v. United States, 354 A.2d 238, 240 (D.C. 1976).3 Expert opinion evidence generally should be admitted whenever it will not mislead the jury and will prove useful in understanding the facts in issue. Dyas v. United States, 376 A.2d 827, 831 (D.C.) (stating that "expert testimony is admissible if it is `likely to aid the trier in the search for truth.'") (quoting Jenkins v. United States, 113 U.S.App.D.C. 300, 306, 307 F.2d 637, 643 (1962) (en banc)), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977); Douglas v. United States, 386 A.2d 289, 295 (D.C. 1978) (stating that "even relevant and material information must be excluded if its admission would create a substantial danger of undue prejudice or would mislead the jury"). In order to further the policy of bringing useful expert testimony before the jury, courts in this jurisdiction have long permitted psychological and other medical experts to base their evaluations on tests and reports prepared by others. See, e.g., In re Samuels, 507 A.2d 150, 152 & n. 3 (D.C. 1986); Jenkins v. United States, 113 U.S. App.D. C. 300, 303-05, 307 F.2d 637, 640-42 (1962). Even though a report itself is hearsay, a psychologist may rely on it in arriving at an opinion if he or she "customarily relies" on such reports "in the practice of [the] profession." Jenkins, 113 U.S.App.D.0 at 304, 307 F.2d at 641; see also FED.R.EVID. 703 ("If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data Ion which the witness bases an opinion] need not be admissible in evidence."); E. CLEARY, ET AL., McCORMICK ON EVIDENCE § 15 (3d ed. 1984). Thus, as the trial court recognized, the fact that Dr. Smith grounded his psychological evaluation of Clifford in large part on test results written by Dr. Gibbs could not by itself justify excluding his testimony.

Courts traditionally have required the party presenting opinion evidence to lay a foundation for it—that is, to make clear the facts upon which an opinion was based—by presenting the facts through direct testimony of the expert, or by introducing independent evidence showing the facts, or, most commonly, by posing hypothetical questions which, in theory, set out all the facts needed to justify the...

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