McMullen v. State

• Decision Date: 09 April 1998
• Docket Number: No. 86684,86684
• Citation: 714 So.2d 368
• Parties: 23 Fla. L. Weekly S207 Scott E. McMULLEN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 368

714 So.2d 368

23 Fla. L. Weekly S207

Scott E. McMULLEN, Petitioner, v. STATE of Florida, Respondent.

No. 86684.

Supreme Court of Florida.

April 9, 1998.

Rehearing Denied June 10, 1998.

L. Martin Reeder, Jr. and Kim A. Prine of Steel, Hector and Davis, West Palm Beach, Margaret B. Reeder, Palm Beach Gardens, and Evelyn A. Ziegler, West Palm Beach, for Petitioner.

Robert A. Butterworth, Attorney General, Georgina Jimenez-Orosa, Bureau Chief, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for Respondent.

John F. Tierney, III of Tierney and Haughwout, West Palm Beach, for the Florida Association of Criminal Defense Lawyers, amicus curiae.

PER CURIAM.

We have for review McMullen v. State, 660 So.2d 340 (Fla. 4th DCA 1995), in which the

district court affirmed petitioner's conviction, upholding the trial court's denial of Scott E. McMullen's request to use an expert witness to testify regarding factors that affect the reliability of eyewitness identification. In so ruling, the district court certified the following question as one of great public importance:

WHEN THE SOLE ISSUE IN A CRIMINAL PROSECUTION IS ONE OF IDENTITY AND THE SOLE INCRIMINATING EVIDENCE IS EYEWITNESS TESTIMONY, SHOULD THE COURT ADMIT EXPERT TESTIMONY UPON THE FACTORS THAT AFFECT THE RELIABILITY OF EYEWITNESS IDENTIFICATION?

Id. at 342. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed, we decline to answer the certified question as worded. We hold that the admission of such testimony is within the discretion of the trial judge and that, in this case, the trial judge did not abuse that discretionary authority by refusing to allow the introduction of the expert testimony. Thus the district court's affirmance of petitioner's conviction is hereby approved.

MATERIAL FACTS ¹

Scott E. McMullen was charged by a three-count information for shooting into a dwelling, aggravated assault (with a firearm), and aggravated battery (with a firearm). On the night of the offenses, an assailant allegedly approached Sheron Grewal while she was sweeping the parking lot outside of the beer store she owned with her husband, Mohinder. After grabbing Sheron by the shoulder, the assailant tried to push her inside the store. When she resisted, he brandished a gun and shoved it into her side. Hearing noises outside, Mohinder, who was inside the store attending the cash register, walked toward the doorway. As he approached the doorway, he caught a glimpse of the assailant, who shot him and then turned and fled. Both Mohinder and Sheron identified McMullen as the assailant. We also note, as did Judge Farmer in his concurring opinion, that the assailant was of a different race than the witnesses and that McMullen was initially not among the police suspects. Further, the wife told the police detectives that she had never seen the assailant before the incident. Two months after the shooting, the witnesses' son called the police detectives and reported that his parents had seen the assailant in their drive-through window earlier that day. The police arranged a photographic lineup at the store. When the array of photographs was presented to the witnesses, the wife told the husband that McMullen was the one who had shot him. Contrary to her initial statement to the police after the incident, the wife testified at trial that she recognized the assailant as an occasional customer at the store. Both the husband and wife identified McMullen as the perpetrator. Alibi witnesses were presented by McMullen, and McMullen testified that he was not the person who accosted the wife and shot the husband.

Prior to trial, McMullen filed a motion to appoint an expert witness on eyewitness identification. The trial judge granted the motion, but the order did not address the admissibility of that expert's testimony. Subsequently, the State filed a motion in limine to exclude the defense expert on eyewitness identification. The State argued that the expert testimony should not be admitted because it was invading the province of the jury. McMullen's counsel proffered the testimony of Dr. John Brigham, a professor of psychology at Florida State University, regarding psychological factors believed to affect the reliability of eyewitness identification. According to Dr. Brigham, countless scientific studies have been conducted indicating that psychological factors, which are largely unknown to laypersons, can affect the accuracy of eyewitness identifications. Specifically, Dr. Brigham stated that he could testify about the following six issues at trial: (1) eyewitness identifications are incorrect much more often than the average person thinks; (2) a witness's confidence or certainty in an identification is unrelated to the accuracy of the identification; (3) cross-racial identifications are more difficult than same-race identifications; (4) "unconscious transference," As noted, the State objected to the introduction of Dr. Brigham's testimony, arguing that the substance of his testimony did not require any special knowledge or experience to assist the jurors in reaching their conclusions. During the argument on the motion in limine, the State argued that under this Court's decision in Johnson v. State, 438 So.2d 774 (Fla.1983), the admission of Dr. Brigham's testimony was within the discretion of the trial court. McMullen's counsel agreed, stating:

i.e., it is easier for a person to remember a face than to remember the circumstances under which the person saw the face; (5) the accuracy of facial identifications decreases in stressful situations; and (6) the accuracy of identification decreases as the interval between the event and the time when the witness attempts to retrieve the memory increases.

No, I think the State's case also stands for the proposition that the decision to allow expert testimony is subject to discretion of the trial court and probably not subject to review absent a review of discretion. And I believe, Judge, that that is the case, but that also stands for the proposition that you could either decide to allow it and not allow it and it would be clearly this court's decision but you could admit it.

The State responded:

I would agree with [McMullen's counsel]. As he pointed out to the court, this is clearly something within Your Honor's discretion to let in or not let in.

Relying on the discretionary authority enunciated in Johnson, the trial judge excluded the testimony, finding:

This Court is of the opinion that the facts testified to by Dr. Brigham are not of such a nature as to require special knowledge in order for a jury to reach a decision. In Johnson v. State, the Florida Supreme Court, in affirming the trial court's refusal to allow the testimony of an expert witness in the field of eyewitness identification, held:

"[A] jury is fully capable of assessing a witness' ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony."

660 So.2d at 341 (citation omitted).

Subsequently, the jury found McMullen guilty of all charges.

On appeal, the Fourth District Court of Appeal affirmed on the authority of our decision in Johnson but certified the above question to this Court.

OTHER JURISDICTIONS

At the outset, it must be understood that there are three differing views as to the admissibility of an expert witness's testimony regarding the reliability of eyewitness identification. The first is the "discretionary" view, which provides that the admission of expert testimony regarding eyewitness identification is in the discretion of the trial judge. An overwhelming majority of both federal ² and state ³ courts that have addressed this issue have adopted this view.

The second view is the "prohibitory view," which expressly prohibits the use of this type of expert testimony. The Eleventh Circuit Court of Appeals has adopted a per se rule prohibiting the introduction of expert testimony with regard to the credibility of eyewitness identification testimony under any circumstances. United States v. Holloway, 971 F.2d 675 (11th Cir.1992). ⁴ That holding means, of course, that such expert testimony cannot be used in any federal court in our jurisdiction. A few other courts appear to have adopted this view. See State v. Goldsby, 59 Or.App. 66, 650 P.2d 952 (1982); Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995), cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996); State v. Wooden, 658 S.W.2d 553 (Tenn.Crim.App.1983).

Finally, some jurisdictions have adopted the "limited admissibility" view, finding it to be an abuse of discretion to exclude this type of expert testimony in cases where there is no substantial corroborating evidence. Apparently, only two courts have adopted this view: United States v. Downing, 753 F.2d 1224 (3d Cir.1985), and People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984). This last decision by the California Supreme Court reversed a conviction where an expert was not allowed to testify, reasoning:

When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully understood by the jury, it will ordinarily be error to exclude that testimony.

Id., 208 Cal.Rptr. at 253-54, 690 P.2d at 727. ⁵ It also could be argued that the Supreme Court of Massachusetts in Commonwealth v. Santoli agrees with this view by its holding that, when corroborating evidence is available, the exclusion of expert testimony is not an abuse of discretion. 424 Mass. 837, 680 N.E.2d 1116 (1997).

FLORIDA

We have adopted the majority "discretionary" view in this state. In Johnson, we stated:

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