Farrell v. State

• Decision Date: 05 April 1993
• Docket Number: No. 79A02-9112-CR-560,79A02-9112-CR-560
• Citation: 612 N.E.2d 124
• Parties: John J. FARRELL, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 124

612 N.E.2d 124

John J. FARRELL, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 79A02-9112-CR-560.

Court of Appeals of Indiana,

Second District.

April 5, 1993.

Cynthia L. Garwood, Cooke Laszynski and Moore, Lafayette, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

John Farrell appeals his conviction of Kidnapping, a Class A felony. ¹ Upon appeal, Farrell presents six issues for our review. We restate them as follows:

I. Whether the trial court abused its discretion in excluding the testimony of Farrell's expert upon the subject of the reliability of eyewitness identification;

II. whether the photographic array from which the victim identified Farrell's photo was improper, and, if so, whether the victim's in-court identification of Farrell was improper;

III. whether the trial court improperly allowed the jury to continue its deliberations;

IV. whether the trial court improperly denied Farrell's motions for mistrial;

V. whether Farrell received ineffective assistance of trial counsel; and

VI. whether Farrell's sentence was manifestly unreasonable?

We affirm.

The facts most favorable to the judgment reveal that in the early morning hours of August 18, 1990, Gina Handley was driving her mother's automobile in Lafayette, Indiana. Handley drove to a pay phone in a lighted parking lot, got out of her car, and placed a phone call to a friend. After hanging up the telephone, Handley re-entered her car and was arranging items on the seat beside her when Farrell approached the car from behind, announced that he had a gun, and ordered Handley to move over. When Handley did not immediately comply with his demand, Farrell moved the gun close to Handley's face and she moved over into the front passenger seat. Farrell got into the driver's seat and ordered Handley to place her hands behind her head and to put her head down between her knees. As these events transpired, Handley was able to observe Farrell's face and appearance. After Handley complied with his demand, Farrell drove the car away.

While Farrell was driving the car, Handley would periodically attempt to raise her head. However, each time that she did, Farrell would point the gun at the side of her head and threaten to kill her. Nevertheless, she did manage several times to raise her head long enough to get a clear look at Farrell. Finally, when Farrell slowed the car at one point, Handley jumped from the car and escaped.

I. EXPERT TESTIMONY UPON EYEWITNESS IDENTIFICATION RELIABILITY

Handley's testimony identifying Farrell as her kidnapper supplied an important item of evidence against Farrell. Farrell therefore sought to introduce the testimony of an expert witness with extensive credentials on the subject of eyewitness identification, whose proposed testimony would have addressed the unreliability of such eyewitness identification. The State objected to such expert testimony on three grounds: 1) the reliability of eyewitness testimony is not a subject beyond the ken of the average juror; 2) the proposed testimony would unduly confuse the jury; and 3) such testimony has not been generally accepted by courts. The trial court excluded the testimony upon the grounds that it would not assist the jury, and that it had A trial court is granted discretion when ruling upon the admissibility of expert testimony, and we will not disturb the ruling absent a showing of abuse of discretion. Wissman v. State (1989) Ind., 540 N.E.2d 1209, 1212. Neither party to this appeal brings to our attention an Indiana case discussing this issue, nor does our research reveal any. However, much has been written, both in published opinions from other jurisdictions and in legal journals, upon the subject of expert testimony regarding the reliability of eyewitness identification.

                not gained acceptance in its field. 2  Farrell argues upon appeal that such testimony should have been permitted
                

The arguments offered by the parties in the instant case in support of, and against, the admission of such testimony are the same as those discussed and analyzed in the aforementioned opinions and journals. To summarize, the first part of the analysis concerns the admissibility of expert testimony in general. Included is an application of the so-called "Frye test" for admissibility of expert testimony concerning a scientific principle or procedure. This test was first enunciated in Frye v. United States (1923) D.C.Cir., 293 F. 1013, and requires that "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. ³ However, courts have applied the test unevenly because of the difficulty of resolving such questions as how to define the particular field and how to tell when the procedure or principle has been generally accepted.

Various federal cases have concluded that the Frye test has been superseded by the Federal Rules of Evidence, particularly Rules 702 and 703. See U.S. v. Williams (1978) 2d Cir., 583 F.2d 1194. Some jurisdictions seem to apply a test even more stringent than Frye, at least with respect to evidence involving laboratory testing. See U.S. v. Two Bulls (1990) 8th Cir., 918 F.2d 56; People v. Minori (1980) N.Y., 51 N.Y.2d 930, 434 N.Y.S.2d 985, 415 N.E.2d 973. The Seventh Circuit, however, continues to adhere to the Frye rule. See U.S. v. Smith (1989) 7th Cir., 869 F.2d 348. Nevertheless, as noted in U.S. v. Jakobetz (1992) 2d Cir., 955 F.2d 786, cert. denied, --- U.S. ----, 113 S.Ct. 104, 121 L.Ed.2d 63, the crucial factor might well be whether the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue. This premise underlies the decision in Summers v. State (1986) 1st Dist. Ind.App., 495 N.E.2d 799, trans. denied.

Less than one year later a subsequent case was decided by the very same panel and, despite an extensive separate opinion by Chief Judge Ratliff, the author of Summers, refused to follow the Summers test. Hughes v. State (1987) 1st Dist. Ind.App., 508 N.E.2d 1289, trans. denied. Hughes instead reverted to the traditional standard requiring that the subject matter of the expert testimony be beyond the knowledge of the average juror. Still later, on February 19, 1990, the First District panel returned to the Summers test in Rubin v. Johnson (1990) 1st Dist. Ind.App., 550 N.E.2d 324, trans. denied. Only nine days later, February 28, 1990, Chief Judge Ratliff, participating with the Fourth District in Brinegar v. Robertson Corp. (1990) 4th Dist. Ind.App., 550 N.E.2d 812, trans. denied, felt compelled to point out the distressingly unsettled state of the law:

"Our supreme court appeared to have adopted the Summers test in Mihay v. State (1987), Ind., 515 N.E.2d 498. Unfortunately 'Expert testimony is inappropriate and may be excluded when it concerns matters within the common knowledge and experience of ordinary persons and which the jury may determine as well as the expert. Grimes v. State (1983), Ind., 450 N.E.2d 512. However, even if evidence is not beyond the knowledge and expertise of the average juror, the expert may nevertheless testify concerning his special knowledge of the subject. Summers v. State (1986), Ind.App., 495 N.E.2d 799.'

as pointed out by Judge Miller in Estate of Hunt v. Board of Commissioners of Henry County (1988), Ind.App., 526 N.E.2d 1230, our supreme court in Brooke v. State (1987), Ind., 516 N.E.2d 9, reverted to the old rule. Again, in Henson v. State (1989), Ind., 535 N.E.2d 1189, the court reiterated the traditional rule. However, in Wissman v. State (1989), Ind., 540 N.E.2d 1209, 1213, our supreme court stated:

Therefore, I remain steadfast in my belief that the rule announced in Summers is the proper test for the admissibility of expert testimony. My opinion is buttressed further by the recognition of the holding in Summers in Justice Givan's opinion in Wissman." 550 N.E.2d at 819-820.

See also Peavler v. Board of Commissioners of Monroe County (1990) 1st Dist. Ind.App., 557 N.E.2d 1077, trans. denied, approving the Summers test, as compared with Spaulding v. State (1989) 1st Dist. Ind.App., 533 N.E.2d 597. trans. denied. The state of the law is no less unsettled today. See Pedrick v. State (1992) 5th Dist. Ind.App., 593 N.E.2d 1213, 1218, 1221; Hampton v. State (1992) 1st Dist. Ind.App., 588 N.E.2d 555, 559-60, trans. denied.

Our Supreme Court has also appeared to both accept and reject the Summers test. In July of 1987, in Reichard v. State (1987) Ind., 510 N.E.2d 163, the Court held that expert testimony is inappropriate unless the matters are beyond the common knowledge and experience of the ordinary juror. This is the traditional test; yet, the court cited Summers for the proposition. In November of the same year, the Court decided Mihay v. State (1987) Ind., 515 N.E.2d 498 and, citing Summers, adopted its criterion and held that the evidence is admissible if it "would aid the jurors in understanding the facts". 515 N.E.2d at 500.

The second part of the analysis necessary in the case before us involves application of the Frye test, specifically to the field of eyewitness reliability testimony. The parties to the instant appeal offer cases in support of both propositions: that is, that eyewitness reliability testimony should be accepted, and that it should not. This reflects that the current state of the law upon this issue is in flux. Some jurisdictions require that such testimony be allowed, see, e.g., United States v. Downing (1985) 3d Cir., 753 F.2d 1224, and some deem it properly excludable, see, e.g., United States v. Fosher (1979) 1st Cir., 590 F.2d 381. Our review of the literature and relevant case law reveals that the question is by no means resolved. However, if there is an identifiable trend, it is in favor of allowing the...