People v. Oddone

• Decision Date: 12 December 2013
• Citation: People v. Oddone, 2013 NY Slip Op 8291, 22 NY3d 369, 3 N.E.3d 1160, 980 N.Y.S.2d 912 (N.Y. 2013)
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony ODDONE, Appellant.
• Court: New York Court of Appeals Court of Appeals

22 N.Y.3d 369

3 N.E.3d 1160

980 N.Y.S.2d 912

2013 N.Y. Slip Op. 08291

The PEOPLE of the State of New York, Respondent,

v.Anthony ODDONE, Appellant.

Court of Appeals of New York.

Dec. 12, 2013.

Wachtell, Lipton, Rosen & Katz, New York City (Marc Wolinsky, Bernard W. Nussbaum, George T. Conway, III, Charles D. Cording, Scott M. Danner, Dana J. Brusca and David Zhou of counsel), and Sarita Kedia Law Offices, P.C. (Sarita Kedia of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead (Anne E. Oh of counsel), for respondent.

Karen Newirth, New York City, and M. Chris Fabricant, and Dechert LLP (James M. McGuire, Steven A. Engel and Matthew L. Mazur of counsel), for Innocence Project, Inc., amicus curiae.

Sharon McCarthy, New York City, and Dorothy Heyl, for New York City Bar Association, amicus curiae.

OPINION OF THE COURT

SMITH, J.

Defendant was convicted of manslaughter in the first degree for causing the death of a man by holding him in a headlock. The duration of the headlock was an important issue at trial. Defendant argues that several of the trial court's rulings in admitting and excluding evidence related to that issue were mistaken. As to one of those rulings—the court's refusal to permit defendant to refresh his witness's recollection with a statement the witness had previously given—we agree with defendant, and order a new trial.

I

The victim, Andrew Reister, was a bouncer in a bar. On the night in question, defendant and a young woman were in the bar, dancing on a table. Reister asked defendant to get off the table, defendant refused, and Reister pushed him off. There followed a fight. In short order, defendant got behind Reister and put his arms around his neck; one of defendant's hands was grasping the other. After an interval, Reister fell to the floor and defendant fell on top of him, not releasing his grip, though Reister seemed to onlookers to be unconscious. Several people screamed at defendant to let Reister go, and some tried without success to pull defendant away. Finally, defendant let go and ran out of the bar, leaving Reister unconscious on the floor. Reister was declared brain dead two days later.

Defendant was indicted for murder and relied on a defense of justification (self-defense). At his trial, the People asked seven of their witnesses to estimate the duration of the headlock. The estimates varied, but most put the total time, beginning when defendant's arms first went around Reister's neck and ending when he released him, at somewhere near three minutes. Two defense witnesses gave shorter estimates; by their telling, the headlock may have lasted less than a minute.

The jury acquitted defendant of murder, but convicted him of manslaughter in the first degree (causing death with the intent to cause serious physical injury [Penal Law § 125.20(1) ] ) as a lesser included offense. The Appellate Division affirmed ( People v. Oddone, 89 A.D.3d 868, 932 N.Y.S.2d 149 [2d Dept.2011] ). A Judge of this Court granted leave to appeal (20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536 [2013] ), and we now reverse and order a new trial.

II

Of the issues raised by defendant on this appeal, we find three—all related to what witnesses were or were not allowed to say about the duration of the headlock—that call for discussion. Defendant challenges the following evidentiary rulings:

(1) James Wilson, the doctor who performed an autopsy on Reister's body, was permitted to testify that in his opinion Reister's neck had been compressed for “something in the range of 2, 3, 4 minutes.”

(2) When Megan Flynn, a defense witness, testified that the duration of the part of the incident she observed “could have been a minute or so,” defense counsel was not allowed to refresh her recollection with a prior statement that put the same interval at “maybe 6 to 10 seconds.”

(3) Steven Penrod, an expert in eyewitness observation, was not permitted to testify that eyewitnesses routinely overestimate, by a large margin, the duration of relatively brief events.

We reject defendant's attack on Wilson's testimony. We agree with defendant that the restriction placed on his questioning of Flynn was error requiring a new trial. Whether the exclusion of Penrod's testimony was an abuse of discretion is a close question that we do not need to decide, but we offer some observations about it for the guidance of the court at a retrial.

A. Wilson

Wilson, a deputy medical examiner, inferred a 2–4 minute duration for the headlock principally from two facts: his own observation at the autopsy of “petechiae”—red spots caused by bursting of blood vessels—on and around Reister's eyes; and the observations of several witnesses that, by the time the incident ended, Reister's face had turned purple. As to the petechiae, Wilson testified:

“Q. Could you tell us, Doctor in your experience how long it would take for this type of petechia to be present in Mr. Reister's—around his eyes, in the skin surrounding his eyes?

“A. Well, in my experience and understanding of how this process occurs an injury of this sort would take matter of a few minutes, 2, 3 perhaps 4, with neck compression on type some kind of a struggle. So there may be slight variations in the pressure from time to time, but matter of a few minutes, something in the range of 2, 3, 4 minutes.”

Similarly, as to the discoloration of Reister's face, Wilson testified:

“Q. In your opinion, Doctor, how long would it take for the blood in the veins that is not able—that is being squeezed and kept in the head, how long would it take in order for that purple cast or coloration to occur in Mr. Reister's face?

“A. Well, in my opinion and experience the blood that is built up over a period of time, then loss of oxygen, to get very dark it would be a matter of a few minutes minimum, something in the order of 2, 3, 4 minutes.”

Defendant attacks this testimony as lacking a scientific basis. He does not dispute that petechiae and purple coloring can result from neck compression, but he says—and the People do not dispute—that no scientific studies have been published to show how lengthy a compression is required to produce those results. Thus, defendant argues, Wilson was advancing a scientific principle that had not gained general acceptance in its field, in violation of the rule of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which is followed by the courts of New York ( People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ).

The flaw in defendant's reasoning is that Wilson did not claim to rely on any established scientific principle. He made clear that his testimony was based on his personal “experience”—meaning what he had observed, heard and read about particular cases. Such evidence is not barred by Frye ( see Johnson v. State, 933 So.2d 568, 570 [Fla.App.2006] [“An expert opinion based on personal training and experience is not subject to a Frye analysis”]; Commonwealth v. Devlin, 365 Mass. 149, 155, 310 N.E.2d 353, 357 [1974] [“Dr. Sosman's medical opinion ... was not the product of a ‘scientific theory’ but was, rather, the product of years of experience”] ).

Defendant argues in substance that an expert who is a scientist can express no opinion based on his own experience, but must rely only on published studies or texts. We reject the argument. It is true that an opinion based on experience alone is ordinarily less reliable than one based on generally accepted science. An expert may well overvalue his own experience, or even exaggerate or fabricate it. But these flaws can be exposed by cross-examination, and by the opinions of opposing experts—as the alleged flaws in Wilson's testimony were in this case. There will ordinarily be no unfairness as long as the jury is not misled into thinking that the expert's opinion reflects a generally accepted principle ( see Flanagan v. State, 625 So.2d 827, 828 [Fla.1993] [an expert's reliance on “some scientific principle or test ... implies an infallibility not found in pure opinion testimony”] ).

We acknowledge that it may not be possible to draw a neat line between scientific principles and experience-based testimony. Indeed, it has been observed that the many cases applying Frye to evidence based on scientific principles shed little light on exactly what a “scientific principle” is ( see22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5168.2 [2d ed Apr. 2013] ). We do not imply that an expert is allowed to say anything he or she likes to a jury if the statement is prefaced by the words “in my experience.” To allow an expert to say, based only on his or her alleged experience, that smoking does not cause lung cancer or that baldness is related to the phases of the moon would be to tolerate the admission of junk science and to undermine the basic purpose of Frye.

But Wilson's testimony in this case does not trigger a concern of that kind. The parties here appear to agree that petechiae and discoloration are caused by neck compression; how long the neck must be compressed is a question that scientific studies do not seem to have answered. To allow a pathologist who has examined many dead bodies, and heard and read many accounts of how victims met their deaths, to express an opinion on the subject accords with common sense, and does not open the door to every expert's flight of fancy.

B. Flynn

Flynn, a waitress at the bar where the fatal event took place, saw part of the incident and later told an insurance company investigator that the part she saw lasted “for maybe 6 to 10 seconds.” The People interviewed her before trial but decided not to call her as a witness. The defense did call her, and asked essentially the same question the insurance investigator had asked: “[F]rom the time that you walked in to the time you saw the guy let go how long of a period of time was it?” On the witness stand, Flynn gave a different answer: “I didn't have a watch. I...