Com. v. Christie

• Decision Date: 19 December 2002
• Docket Number: No. 2000-SC-0702-DG.,No. 2000-SC-0694-DG.,2000-SC-0694-DG.,2000-SC-0702-DG.
• Citation: 98 S.W.3d 485
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Arionne D. CHRISTIE, Appellee. Arionne D. Christie, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 485

98 S.W.3d 485

COMMONWEALTH of Kentucky, Appellant, v. Arionne D. CHRISTIE, Appellee.

Arionne D. Christie, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 2000-SC-0694-DG.

No. 2000-SC-0702-DG.

Supreme Court of Kentucky.

December 19, 2002.

Rehearing Denied March 20, 2003.

A.B. Chandler III, Attorney General of Kentucky, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Commonwealth of Kentucky.

Daniel T. Goyette, Chief Jefferson District Public Defender, J. David Niehaus, Office of the Public Defender for Jefferson District Public Defender, Louisville, for Arionne D. Christie.

Opinion of the Court by Justice JOHNSTONE.

Arionne Christie was convicted by a Jefferson Circuit Court jury of first-degree robbery and first-degree burglary and was sentenced to two concurrent terms of ten years' imprisonment. On appeal to the Court of Appeals, Christie argued that the trial court erred in excluding expert testimony on the reliability of eyewitness identification, which the trial court had excluded on two alternative grounds: (1) the testimony was per se inadmissible; and (2) the testimony was not admissible under KRE 702 because such testimony was within the common knowledge of jurors. The Court of Appeals affirmed Christie's conviction on the grounds that the trial court did not abuse its discretion in excluding the testimony under KRE 702. But the Court of Appeals held that the trial court erred in ruling that the testimony was inadmissible per se.

On discretionary review, Christie argues that, while the Court of Appeals correctly held that expert testimony on the reliability of eyewitness identification is not inadmissible per se, it erred in holding that the trial court abused its discretion in excluding the testimony under KRE 702. The Commonwealth argues that such testimony never "assists a trier of fact to concretely assess the reliability of real-world eyewitness identifications." Therefore, the Commonwealth argues that the evidence is per se inadmissible under KRE 702. For the reasons set forth below, we agree with Christie and, therefore, reverse and remand with instructions.

I. Facts and Procedural History

On the morning of February 11, 1997, Jill Faith entered her apartment building on the way to her residence. A black man wearing a bandana over the lower part of his face approached Faith, brandished a knife in her face, and demanded her money. She threw her wallet in the air and fled to the safety of her apartment. The entire exchange took less than ten seconds. The next day, an off-duty police officer working as an apartment security guard, Ronald Russ, spotted Christie, who was wearing a wig, on apartment premises. Christie was known to Russ from a prior occasion in which Russ had discovered Christie loitering on apartment premises and had warned him not to trespass again. Aware of the crimes against Faith, Russ promptly arrested Christie for criminal trespass. A search of the car owned by Christie's companion, Mike Cash, uncovered a knife resembling the one used to commit the crimes. Cash said that, though he was not certain, the knife probably belonged to Christie. That evening, Faith identified Christie as the perpetrator from a picture in a police photo pack. Faith's boyfriend, Jason Bennett, who had seen a suspicious person loitering in the apartment complex shortly before the crimes, independently identified Christie from the photo pack. Faith and Bennett — who are both white — also gave matching physical descriptions of Christie's apparel and appearance on the day of the crimes.

Over a year prior to trial, Christie moved to retain at the county's expense an "expert in the field of eyewitness identification" to assist Christie's defense of mis-identification. The trial court granted the motion, and the defense retained an expert in eyewitness identification, Dr. Baker.

The day before trial, the Commonwealth filed a written motion to exclude Dr. Baker's testimony. At the conclusion of the Commonwealth's case, the trial court heard arguments on the motion. In granting the motion, the trial court concluded that expert eyewitness-identification testimony was per se excluded under Pankey v. Commonwealth, Ky., 485 S.W.2d 513 (1972), and Gibbs v. Commonwealth, Ky. App., 723 S.W.2d 871 (1986). Alternatively, the trial court cited United States v. Curry, 977 F.2d 1042 (7th Cir.1992), cert. denied sub nom., Holland v. United States, 507 U.S. 947, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993), as authority for excluding the testimony based on its findings in this case that the problems with mis-identification were within the common knowledge of the jury.

In Curry, the district court excluded similar expert eyewitness-identification testimony on grounds that the jury was "generally aware of the problems with identification." Id. at 1051. The Seventh Circuit concluded that the "district court's focus on what the jury is `generally aware' of could be a finding that [the expert's] testimony would not assist the trier of fact under Rule 702, or it could be considered a finding that her testimony would be unduly confusing or a waste of time under Rule 403." Id. Because of the trial court's reliance on Curry, the similarity of its "common-knowledge" finding with the district court's "generally aware" finding, and the similarity between the applicable federal Rules of Evidence and the Kentucky Rules of Evidence, the trial court's alternative ruling also can be construed as excluding the testimony under either KRE 403 or KRE 702.

Christie appealed his convictions to the Court of Appeals which held, contrary to the trial court, that KRE 702 — and not prior case law — controls the issue, and that the rule does not mandate a per se exclusion of expert testimony on eyewitness identification. The Court of Appeals, however, affirmed Christie's convictions on the grounds that the trial court did not abuse its discretion in excluding Dr. Baker's testimony under KRE 702. In this consolidated appeal, both Christie and the Commonwealth seek relief from the Court of Appeals' decision. We reverse and remand.

II. Discussion

Courts have taken three different approaches to the issue of expert-witness testimony regarding the reliability of eyewitness identification: (1) the admission of the testimony is left to the sound discretion of the trial court, (2) the testimony is inadmissible per se, and (3) it is an abuse of discretion to exclude the testimony where there is no substantial evidence corroborating the eyewitness identification ("limited admissibility"). McMullen v. State, 714 So.2d 368, 370 (Fla.1998) (citing cases). The vast majority of courts that have addressed the issue have adopted the first approach. Id. More importantly, the discretion vested in the trial court in the first approach is consistent with Kentucky's approach to the admissibility of expert testimony under KRE 702. See, e.g., Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 578 (2000). Therefore, we hold that trial courts in the Commonwealth have the discretion under KRE 702 to admit expert-witness testimony regarding the reliability of eyewitness identification, and we overrule Pankey, supra, and Gibbs, supra, to the extent that those cases hold otherwise. We now turn to the question of whether the trial court abused its discretion in excluding Dr. Baker's testimony.

KRE 702 Analysis

When faced with a proffer of expert testimony under KRE 702, the trial judge's task is to determine "whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Goodyear Tire, 11 S.W.3d at 578 (internal quotation marks omitted), quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469, 482 (1993). This calls upon the trial court to assess whether the proffered testimony is both relevant and reliable. Id. This assessment does not require a trial court to hold a hearing on the admissibility of the expert's testimony. Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir.2000), cert. denied, 531 U.S. 1044, 121 S.Ct. 644, 148 L.Ed.2d 549 (2000). But a trial court should only rule on the admissibility of expert testimony without first holding a hearing "when the record [before it] is complete enough to measure the proffered testimony against the proper standards of reliability and relevance." Jahn v. Equine Services, P.S.C., 233 F.3d 382, 393 (6th Cir.2000).

Usually, the record upon which a trial court can make an admissibility decision without a hearing will consist of the proposed expert's reports, affidavits, deposition testimony, existing precedent, and the like. See, e.g., In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124, 1139 (9th Cir.2002); Oddi v. Ford Motor Co., 234 F.3d 136, 151 (3rd Cir.2000), cert. denied, 532 U.S. 921, 121 S.Ct. 1357, 149 L.Ed.2d 287 (2001). Such a record is necessary in order to give a trial court an adequate basis for making its decision on the relevancy and reliability of the proposed expert's testimony and to allow for appellate review of the trial court's decision. Clay, 215 F.3d at 667. Failure to make a determination on the admissibility of expert testimony without an adequate record is an abuse of discretion by the trial court. See United States v. Smithers, 212 F.3d 306, 314 (6th Cir.2000); see also United States v. Hearst, 412 F.Supp. 893, 894 (N.D.Cal.1976) (A "trial court must exercise its discretion in evaluating an expert's qualifications and the relevance and materiality of his or her testimony.").

In this case, the trial court did not hold a hearing to determine the admissibility of Dr. Baker's testimony. Rather, after noting that the jury had been voir dired extensively on the question of mis-identification and the potential for inaccurate...