State v. Bickart

• Decision Date: 20 January 2009
• Docket Number: Docket: Yor-08-25
• Citation: 2009 ME 7,963 A.2d 183
• Parties: STATE of Maine v. Tina BICKART.
• Court: Maine Supreme Court

963 A.2d 183

2009 ME 7

STATE of Maine v. Tina BICKART.

Docket: Yor-08-25

Supreme Judicial Court of Maine.

Argued: September 16, 2008.

Decided: January 20, 2009.

Clifford B. Strike, Esq. (orally), Strike, Goodwin & O'Brien, Portland, ME, for Tina Bickart.

Mark W. Lawrence, District Attorney, Justina McGettigan, Asst. Dist. Atty., Anne Marie Pazar, Contract Brief Writer (orally), Prosecutorial District, Alfred, ME, for the State of Maine.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, MEAD, and GORMAN, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, LEVY, and GORMAN, JJ.

Dissent: CLIFFORD, and MEAD, JJ.

LEVY, J.

[¶ 1] Tina Bickart appeals from a judgment of conviction of gross sexual assault (Class A), and related sexual crimes, entered after a jury trial in the Superior Court (York County, Fritzsche, J.). Bickart asserts that the court erred by: (1) failing to exclude the testimony of the State's expert palm print identification witness; (2) admitting into evidence nude photographs of Bickart and her husband taken prior to the commission of the crimes; and (3) failing to exclude the testimony of her husband, Stephen, regarding marital communications. She also argues that there was insufficient evidence to support a conviction. We affirm the judgment.

I. BACKGROUND

[¶ 2] The circumstances giving rise to Bickart's indictment are particularly heinous and disturbing. Viewing the evidence in the light most favorable to the State as required by the applicable standard of review, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Pierce, 2006 ME 75, ¶ 16, 899 A.2d 801, 804.

[¶ 3] In April 2005, the victim, a two-year-old girl who lived next door to Bickart and her husband, spent the night at the Bickarts' apartment. On that night, after Bickart's husband, Stephen, returned home from his job, he and Bickart used marijuana and cocaine and drank alcohol. Bickart told her husband that she had a gift or present for him later on, and later that night she told him to go into the bedroom and "get ready." Stephen went into their bedroom and undressed; Bickart then entered the bedroom naked, carrying the two-year-old victim, who was also naked. Bickart and her husband had previously discussed their sexual fantasies involving children.

[¶ 4] Bickart put the victim on the bed or in a chair in the bedroom and then inserted her finger into the victim's vagina. Bickart then had Stephen join them on the bed, and assisted Stephen in having anal intercourse with the victim. Bickart and Stephen both took photographs throughout these assaults with their digital camera.

[¶ 5] Some weeks later, on June 11, 2005, Sanford Police Officer Richard Bucklin was dispatched to Bickart's apartment. Bickart had called the police to file a complaint against Stephen, from whom she was separated at the time, because he had been calling her all day. Officer Bucklin called Stephen and told him to stop calling Bickart and to handle their problems through divorce proceedings.

[¶ 6] Approximately an hour after Officer Bucklin left Bickart's apartment, Stephen arrived at the Sanford Police Department and told Bucklin that Bickart had threatened to go to the police and accuse him of sexually abusing Bickart's oldest daughter, who was twelve at the time. Stephen stated that this accusation was false, but that he had something else to tell the officer and handed him a floppy disk. Stephen told Bucklin that he had found the disk in his bag while packing to leave his and Bickart's apartment when they separated, and that the disk contained two pictures: one of his wife's finger penetrating the victim, and one of the victim laying with her head on a pillow and crying. Stephen mentioned at some point that he might have been involved in the events depicted in the photographs, and after waiving his Miranda rights, Stephen gave his account of the sexual abuse of the victim, including Bickart's role in the abuse. Stephen was thereafter arrested and eventually pled guilty to attempted gross sexual assault and two lesser offenses for his involvement in the abuse, resulting in a sentence of six and a half years in prison, and six and a half years of probation.¹ Bickart was also arrested.

A. Procedural Background and Trial

[¶ 7] Bickart was charged by indictment with six offenses for her involvement in the sexual abuse of the victim: (1) unlawful sexual contact (Class B); (2) gross sexual assault (Class A); (3) endangering the welfare of a child (Class D); (4) sexual exploitation of a minor (Class B); (5) possession of sexually explicit materials (Class C); and (6) conspiracy to commit gross sexual assault (Class B).²

[¶ 8] Prior to trial, Bickart filed a motion to exclude the testimony of the prosecution's expert witness, Edgar (Ron) Smith. Smith was expected to testify that, utilizing palm print analysis techniques, he concluded that it was Bickart's hand penetrating the victim in the photograph of the assault. In an evidentiary hearing, Bickart argued that this testimony was unreliable, as this was the first time Smith or anyone else had attempted an identification using only palm creases (the lines that develop across the palm) without the accompanying friction ridges (the detailed patterns on a person's palm and fingers used in fingerprint identification), and where the medium was a photograph and not a latent print. Bickart also presented her own expert, Gregory Michaud, who testified that crease-only identification was not a generally accepted technique in the relevant scientific field and was not aware that it had ever been subject to peer-reviewed research. The court, applying the standard from State v. Williams, 388 A.2d 500 (Me.1978), found that Smith's testimony was sufficiently reliable and that it should be left to the jury to decide the weight to be given to his conclusions. Both experts subsequently testified at trial.

[¶ 9] Initially Bickart also moved to exclude nude photographs depicting her, and separately her husband, in erotic poses that they had taken of one another prior to the incident at issue. At trial, she did not object to the admission of nude photographs she had taken of her husband. She argued that the photographs of her constituted improper character evidence and that the danger of unfair prejudice outweighed any possible probative value. The court determined that the photographs were admissible as relevant evidence that Bickart and her husband were involved in taking photographs of their sexual practices, and that they were probative of whether Bickart had participated in the taking of the photographs of the incident in question. Further, the court found that any danger of unfair prejudice was minimized by limiting the number of photos to be admitted.

[¶ 10] At the same hearing, Bickart also argued that the testimony of her husband should be excluded based on the marital privilege. In denying this motion, the court found that the privilege did not extend to ongoing criminal activity.

[¶ 11] After a jury trial, Bickart was found guilty of all counts. She was sentenced to concurrent terms of imprisonment resulting in an ultimate sentence of eighteen years, with all but fifteen years suspended, and four years of probation. This appeal followed.

II. DISCUSSION

A. Expert Testimony

[¶ 12] Bickart contends that Smith's testimony should not have been admitted at trial because it represented a novel application of a methodology, normally utilized to analyze friction ridges in latent prints for fingerprint and palm print identification, to instead analyze palm creases in a photograph. This application allowed Smith to make an identification of a hand using only its creases. Friction ridges are the tiny ridges found throughout the hand, the imprint of which can be used to identify a person depending on the level of detail available. Creases are similarly found throughout the underside of the hand, and can be used by examiners of friction ridges to help orient the print (i.e. to determine the correct up and down position and spatial relationship of the ridges). Bickart asserts that the use of creases for identification purposes without accompanying ridge detail is not generally accepted and has not been subject to peer-reviewed research. It is undisputed that this approach has never been previously recognized as a basis for an expert opinion in a published decision from an appellate court in any jurisdiction. Our analysis begins by: (1) defining the standards that govern a trial court's decision whether to admit expert opinion testimony and our appellate review of the same; and then turns to consider (2) the record evidence pertaining to the palm print analysis at issue in this case; (3) the trial court's evaluation of that evidence; and (4) our appellate review of the trial court's discretionary decision to admit the expert's opinion.

1. Applicable Standard

[¶ 13] The standard governing the admission of an expert witness's opinion is grounded in the Maine Rules of Evidence. Rule 402 provides that "[a]ll relevant evidence is admissible," except as otherwise limited by the Rules. "`Relevant evidence' means 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." M.R. Evid. 401. In addition, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." M.R. Evid. 702.

[¶ 14] The genesis of the test for determining whether expert testimony is admissible was our decision in State v. Williams, 388 A.2d 500 (Me.1978). We held that the "proponent of expert testimony must establish that (1) the testimony is relevant...