Hall v. Commonwealth

• Decision Date: 21 October 2011
• Docket Number: NO. 2010-CA-001878-MR,2010-CA-001878-MR
• Parties: STEVEN HALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

STEVEN HALL APPELLANT

v.COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010-CA-001878-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: OCTOBER 21, 2011

TO BE PUBLISHED

APPEAL FROM BOYLE CIRCUIT COURT

HONORABLE DARREN W. PECKLER, JUDGE

ACTION NO. 09-CR-00101

OPINION

AFFIRMING

BEFORE: CAPERTON, COMBS AND THOMPSON, JUDGES.

THOMPSON, JUDGE: Steven Hall was operating a pontoon boat when he struck and killed his wife, Isabel. He was convicted of second-degree manslaughter and sentenced to five-years' imprisonment. Four narrow issues are presented for our consideration: (1) whether expert testimony was admissible for the purpose of attacking the credibility of a police officer's in-court testimony; (2) whetherevidence that Hall had a romantic interest in a woman other than Isabel was properly admitted; (3) whether it was error to permit testimony that Hall intentionally accelerated the boat toward Isabel; and (4) whether the Commonwealth failed to give defense counsel witness statements in violation of RCr 7.26 We conclude that there was no reversible error and affirm.

Although Hall's trial continued over a span of six days, Hall and the Commonwealth have provided brief statements of the case. Because the issues presented are narrowly argued, we likewise chose brevity.

On May 29, 2009, Hall was operating a pontoon boat on Herrington Lake when the boat struck and killed Isabel. That same evening, Hall was arrested and charged with murder. During questioning by Detective Collins and Detective Short of the Kentucky State Police, he made lengthy statements which he unsuccessfully moved to suppress.

At the time Isabel was killed, a Northpoint prisoner, Wayne McMullen, was fishing on the shoreline approximately one hundred feet from Hall's boat and witnessed the boat strike Isabel. He testified that he heard Isabel scream for help and believed she was drowning. He then observed Hall look directly at Isabel, turn the boat in her direction, accelerate and strike Isabel. At that point, Hall stopped the boat with Isabel underneath and stood nonchalantly. McMullen testified that Hall made no effort to look under the boat and became concerned about Isabel only when a second pontoon boat approached. Based onhis observations, McMullen testified that Hall intentionally accelerated the boat causing it to strike Isabel.

Four passengers on another pontoon boat also witnessed Isabel's death: Tara Silbersdorf, Dan Merriman, Kenneth Bradshaw, and April Buehllar. Although the witnesses' estimates regarding their distance from Hall's boat ranged from three hundred to nine hundred feet, all testified that Isabel was screaming in the water, "Help me, please help me! He's going to kill me." The passengers on the second boat began to move toward Isabel to offer assistance.

Silbersdorf testified that she watched Hall turn his boat toward Isabel and accelerate ten to twenty feet. Shortly after Hall's boat stopped, the second pontoon boat approached and the passengers inquired if everything was all right. Hall assured them that there was no problem. When asked about the woman in the water, Hall responded that the woman was his wife and she was swimming under the boat. At that point, Silbersdorf saw Isabel floating under the boat face down. At some point, Hall jumped into the water and pulled Isabel's lifeless body from the water. Silbersdorf testified that Hall then waived his wife's dead hand at the passengers on the second boat.

The remaining testimony recited by the parties to this Court includes that of Dr. Richard Ofshe and Lori Devine, an employee in Hall's office. Hall sought to call Dr. Ofshe as an expert witness to testify that despite Detective Collin's testimony to the contrary, Collins improperly used the "Reid"interrogation method.¹ After the trial court excluded the testimony on the basis of relevancy, it was entered by avowal.

Dr. Ofshe gave a general description of police interrogation tactics and reviewed the interrogation of Hall. He testified that Officer Collins used the Reid technique. He further opined that the technique should not have been used in Hall's case and used only after other interrogation methods had been exhausted.

Devine was permitted to testify that Hall told her that he loved her and would divorce Isabel when the children were older. Further, he and Isabel provided financial assistance to Devine, who denied that she had a romantic relationship with Hall and testified that Hall had no reason to believe that if he killed Isabel, he could be with her. Additional testimony relating to the relationship between Devine and Hall was introduced through co-workers who testified that Hall spent more time with Devine than other women in the office but that they did not witness inappropriate behavior. The office workers also testified that during the months prior to Isabel's death, Hall had been losing weight, wearing new clothes, and generally tended more to his personal appearance.

Hall's first argument concerns the denial of Dr. Ofshe's testimony. We begin with our standard of review. When reviewing a trial court's decisionpertaining to the admissibility of evidence, this Court reviews for abuse of discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

Because Dr. Ofshe was offered as an expert, the trial court was required to determine whether he was proposing to testify to scientific, technical, or other specialized knowledge that would assist the trier of fact to understand a fact in issue. Id. at 578. "In order to meet the above standard, proffered expert testimony must be relevant and reliable." Id.

Dr. Ofshe is not a stranger to the role of expert. His credentials were summarized in United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), where he was described as a social psychologist expert in the field of coercive police interrogation techniques and the phenomenon of false or coerced confessions. It was further noted that he had been on the faculty of the University of California at Berkeley since 1962, had a Ph.D. in psychology from Stanford University, was widely published and worked extensively with law enforcement officials and defense counsel. Id. at 1341.

In Hall, the Court held it was error to exclude Dr. Ofshe's testimony because the defense hinged on evidence that his confession was coerced. It reasoned:

The (district) court indicated that it saw no potential usefulness in the evidence, because it was within the jury's knowledge. This ruling overlooked the utility of valid social science. Even though the jury may have had beliefs about the subject, the question is whether thosebeliefs were correct. Properly conducted social science research often shows that commonly held beliefs are in error. Dr. Ofshe's testimony, assuming its scientific validity, would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried.

The district court's conclusion therefore missed the point of the proffer. It was precisely because juries are unlikely to know that social scientists and psychologists have identified a personality disorder that will cause individuals to make false confessions that the testimony would have assisted the jury in making its decision. It would have been up to the jury, of course, to decide how much weight to attach to Dr. Ofshe's theory, and to decide whether they believed his explanation of Hall's behavior or the more commonplace explanation that the confession was true.

Id. at 1345. The Court's reasoning in Hall has not been universally accepted and there exists a divergence of opinion as to whether expert testimony concerning coerced confession is admissible. See State v. Free, 351 N.J. Super 203, 798 A.2d 83 (N.J.Super A.D. 2002)(discussing the views of other jurisdictions and holding that an expert could not testify on the subject of coerced confession because his testimony would not assist the trier of fact to understand the evidence or determine a fact in issue).

Recently, in Terry v. Commonwealth, 332 S.W.3d 56 (Ky. 2010), our Supreme Court held that where the defendant testified that the police interrogation was coercive and his confession was involuntary, expert testimony was admissible to aid the trier of fact in determining whether the confession was coerced. WhileTerry appears to align this Commonwealth with the reasoning expressed in Hall, the facts in this case render it inapplicable.

The issue was not Dr. Ofshe's qualifications as an expert. The challenge by the Commonwealth was to the relevancy of his testimony.² Hall argued that the purpose of Dr. Ofshe's testimony was to disprove Detective Collin's testimony that he did not use the Reid technique. However, Hall did not testify at trial and presented no evidence that his statements to the officers were coerced. With this significant fact in mind, we test the relevancy of Dr. Ofshe's testimony.

"Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702." Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997).

Relevancy is defined in KRE 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." There is no precise test and it is a determination which "rests largely in thediscretion of the...