People v. Berrios

• Decision Date: 13 March 1991
• Citation: 568 N.Y.S.2d 512,150 Misc.2d 229
• Parties: The PEOPLE of the State of N.Y. v. Louis BERRIOS, Defendant.
• Court: New York Supreme Court

Page 512

568 N.Y.S.2d 512

150 Misc.2d 229

The PEOPLE of the State of N.Y. v. Louis BERRIOS, Defendant.

Supreme Court, Criminal Division Bronx County, Part 58.

March 13, 1991.

Robert T. Johnson, Dist. Atty., Lawrence Maloff, of counsel, for plaintiff.

Justin Levine of Seijas and Levine, New York City, for defendant.

JOSEPH FISCH, Justice.

The defendant was indicted for the crimes of Rape in the First Degree (two counts) and Sexual Abuse in the First Degree (two counts). The alleged victim is the nine-year-old niece of the defendant's "common-law wife".

During the trial of this matter, defense counsel sought to call Angel C. Martinez, Ph.D. ["Martinez"], as a purported expert in the field of sexual abuse of children. The defense claimed that Martinez, as an expert in "child abuser profiles", could testify "that he has examined this particular defendant on more than one occasion, and ... is prepared to give an opinion as to this defendant's profile in contrast to that of the accepted child abuser profile." Furthermore, the defense argued, Martinez could "give his opinion that he believes that this man cannot be a child abuser or child rapist" and would "state the facts upon which he bases that opinion." The defense also submitted to the court a report prepared by Martinez. The report described what Martinez termed the "child molester psychological profile", his interview with the defendant, the results of four standardized tests administered to the defendant, ¹ and his conclusion determining the defendant's nonconformity to the profile. The Court sustained the People's objection and precluded the introduction of such testimony. The basis for the Court's ruling is as follows:

The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court. (People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983]; People v. Mooney, 76 N.Y.2d 827, 560 N.Y.S.2d 115, 559 N.E.2d 1274 [1990]. Formerly, the standard for the admission of expert testimony required that such testimony be necessary to the trier of fact in evaluation of evidence. (Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757; Richardson on Evidence, Prince 10th Ed., § 367; Fisch on New York Evidence, 2d Ed., § 412). Recent decisions have expanded the boundaries of admissibility beyond the requirement of "necessity". At present, "[t]he guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge possessed by the expert and beyond the ken of the typical juror." (DeLong v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983]; see also, Richardson on Evidence, Prince 10th Ed., 1972-1985 Cumulative Supp., § 367; Fisch on New York Evidence, 2d Ed., 1990-1991 Cumulative Supp., § 412).

Research reveals only one New York case addressing the admissibility of "profile" expert testimony, per se. A defendant charged in Broome County with Criminally Negligent Homicide and Endangering the Welfare of a Child sought to introduce expert testimony by Dr. Michael Baden, a nationally renowned pathologist and former New York City Medical Examiner, to establish that the defendant did not fit the profile of a "typical child batterer". The proffered evidence was barred by the trial court. Upholding that ruling, the Appellate Division, Third Department, stated, "Even assuming that Baden could be qualified as an expert on the profile of a typical child batterer, we are unconvinced that it was an abuse of discretion for County Court to determine that the issue of whether defendant could have committed the alleged criminal acts or omissions was more properly left to the jury's ordinary training and intelligence." (People v. Neer, 129 A.D.2d 829, 830, 513 N.Y.S.2d 566 [3d Dept., 1987], app. den. 70 N.Y.2d 652, 518 N.Y.S.2d 1045, 512 N.E.2d 571 [1987]. ²

In exercising its discretion in the current matter, this Court notes People v. Taylor and People v. Banks, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131 (1990). In these companion cases, the Court of Appeals found expert testimony concerning rape trauma syndrome admissible to explain particular reactions of the victim and her delay in reporting the defendant as the perpetrator. The court held that patterns of victims' response to rape were outside the ordinary understanding of jurors. In contrast, though, admission of such testimony was held improper "when it inescapably bears solely on proving that a rape had occurred ..." (Taylor, Banks, at 293, 552 N.Y.S.2d 883, 552 N.E.2d 131).

Profile type testimony has been considered in other jurisdictions and almost universally precluded. ³ Research by this court has disclosed seventeen states and the District of Columbia, as well as federal appellate courts, which have ruled on this question. The only possible exception to universal preclusion among the jurisdictions which have considered the matter is California, which this Court will address infra. In a 1989 Oregon case, the Court stated, "... The essence of the testimony would have been that the expert had determined that the defendant was not a sex abuser and, therefore, was not guilty. That question is for the jury ..." (State v. Gallup, 98 Or.App. 211, 215-216, 779 P.2d 169, 172 [1989]; see, State v. Person, 20 Conn.App. 115, 564 A.2d 626 [1989]; State v. Fitzgerald, 382 N.W.2d 892 [Minn.App., 1986]; State v. Tucker, 165 Ariz. 340, 798 P.2d 1349 [Ct.App., 1990]; People v. Watkins, 176 Mich.App. 428, 440 N.W.2d 36 [1989]; Pendleton v. Commonwealth, 685 S.W.2d 549 [Ky., 1985]; Williams v. State, 649 S.W.2d 693 [Tex.App. 7 Dist., 1983]; Kanaras v. State, 54 Md.App. 568, 460 A.2d 61 [1983]; United States v. St. Pierre, 812 F.2d 417 [8th Cir.1987]; see, also, State v. Cavallo, 88 N.J. 508, 443 A.2d 1020 [1982].) When used by the prosecution to prove a defendant's guilt, reversal has resulted. Thus, where a trial court admitted testimony matching a defendant to a "guilty" profile, the Alaska Court of Appeals held, "... the prosecution may not introduce a profile to show that the defendant is more likely to have committed an offense because the defendant fits within that profile." (Haakanson v. State, 760 P.2d 1030, 1036 [Alaska App., 1988].) The Supreme Court of Kansas, discussing Hall v. State [15 Ark.App. 309, 692 S.W.2d 769 (1985) ]; State v. Maule [35 Wash.App. 287, 667 P.2d 96 (1983) ]; andState v. Percy [146 Vt. 475, 507 A.2d 955 (1986) ], stated, "we find the reasoning of these cases persuasive on the issues before us.... that (1) evidence which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question; and (2) the only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one." (State v. Clements, 244 Kan. 411, 420, 770 P.2d 447, 454 [1989]; see also,Sloan v. State, 70 Md.App. 630, 522 A.2d 1364 [1987]; State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 [1984]; People v. Bradley, 172 Ill.App.3d 545, 122 Ill.Dec. 523, 526 N.E.2d 916 [4th Dist., 1988]; Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 [1983]; Douglas v. United States, 386 A.2d 289 [D.C.App., 1978]; United States v. Gillespie, 852 F.2d 475 [9th Cir., 1988]; see, State v. Hansen, 304 Or. 169, 743 P.2d 157 [1987]; see, also, United States v. Quigley, 890 F.2d. 1019 [8th Cir., 1989], cert. den., 493 U.S. 1091, 110 S.Ct. 1163, 107 L.Ed.2d 1066 [1990]; United States v. Jones, 913 F.2d 174 [4th Cir., 1990]; United States v. Miller, 874 F.2d 1255 [9th Cir., 1989]; United States v. Hernandez-Cuartas, 717 F.2d 552 [11th Cir., 1983].

While California allows expert psychological testimony to demonstrate that a defendant displays no signs of "deviance or abnormality", such testimony is admissible as character evidence by specific statutory provision. ⁴ (People v. Stoll, 49 Cal.3d 1136, 265 Cal.Rptr. 111, 783 P.2d 698 [1989]; Cal. Evidence Code § 1102.) California's admission of profile evidence, per se, is unclear at present. (People v. Stoll, supra; People v. Ruiz, 222 Cal.App.3d 1241, 272 Cal.Rptr. 368 [1st Dist., 1990]; People v. Ruiz, 220 Cal.App.3d 537, 269 Cal.Rptr. 465 [1st Dist., 1990]. Where disputed testimony was held admissible pursuant to its statute, the majority of the California court in Stoll "carefully limited its holding, emphasizing that the psychiatrist in that case indicated that 'no psychological "profile" entered into his diagnosis.' " (Ruiz, 222 Cal.App. at 1245, 272 Cal.Rptr. 368, at 371).

The jurisdictions precluding such evidence...