State v. Ericson

• Decision Date: 03 March 2011
• Docket Number: Docket No. Aro–10–283.
• Parties: STATE of Mainev.Eric A. ERICSON.
• Court: Maine Supreme Court

13 A.3d 777

2011 ME 28

STATE of Maine

v.Eric A. ERICSON.

Docket No. Aro–10–283.

Supreme Judicial Court of Maine.

Submitted on Briefs: Dec. 1, 2010.Decided: March 3, 2011.

Jeffrey M. Silverstein, Esq., Bangor, ME, for Eric Ericson.Neale T. Adams, District Attorney, Todd R. Collins, Asst. Dist. Atty., Caribou, ME, for the State of Maine.

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

JABAR, J.

[¶ 1] Eric Ericson challenges three separate rulings issued by the Superior Court (Aroostook County, Cuddy, J.) during the course of his trial, each of which limited the evidence he was able to present in his defense. He contends that the court erred in excluding the testimony of his expert witness, in determining that he had waived his right to testify, and in limiting the scope of his cross-examination of the victim. Finding no error or abuse of discretion in the trial court's actions, we affirm the judgment.

I. BACKGROUND

[¶ 2] In April 2010, a jury convicted Eric Ericson of gross sexual assault (Class A), 17–A M.R.S. § 253(1)(B) (2010), unlawful sexual contact (Class C), 17–A M.R.S. § 255–A(1)(E) (2010), and sexual abuse of a minor (Class C), 17–A M.R.S. § 254(1)(A–2) (2010). These convictions were supported by the testimony of the victim and her mother,¹ Ericson's former girlfriend. They described the terms of a “game” that began when Ericson came to live with them in 2002, when the victim was around eleven years old. In this “game,” Ericson would complete household chores upon the order of the victim or her mother in exchange for sexual gratification. The victim's mother recalled Ericson rubbing his penis against the victim's stomach and genitals on two separate occasions.² The victim testified that Ericson sexually abused her on a regular basis throughout the period that he lived at her mother's home.

[¶ 3] Both witnesses also testified that Ericson and the victim's mother quarreled over parenting practices, which eventually created a dysfunctional home environment. Ericson based his defense on the theory that the victim fabricated the allegations of sexual abuse because she wanted to be removed from the tension-filled home she shared with Ericson and her mother. He further theorized that, now that the victim had been removed from the home and placed with a foster family, she refused to admit to her lies because she preferred living with the foster family to her own family.

[¶ 4] To support his theory, Ericson elicited testimony from the victim that her foster home was a supportive and fun environment, and she wanted to remain there. Ericson's cross-examination then turned toward a conversation in which the victim allegedly told her foster mother that she should not be transferred from the foster home to her father's home because he used to tie her by her wrists to a pole in the basement. The State objected and, to preserve the issue, Ericson made the following offer of proof:

[Rule] 608 allows inquiry into specific instances that are probative of truthfulness and untruthfulness. And this witness made a particular allegation that is fantastic in nature—that would be denied by [the father]—that she was tied around the wrists around a pole ... in the basement. And if the motive was so she would not be placed elsewhere and to stay in the [foster home], [that] is the same motive we allege ... is the reason why she continues with these allegations as part of the defense's theory.

The court excluded this evidence, finding that it addressed a collateral matter and that Ericson had already exposed the victim's preference for her foster home.

[¶ 5] Ericson testified in his own defense. In response to a question asking him to explain his earlier statement that “[the victim] was manipulative,” Ericson injected inadmissible evidence into his testimony.³ The State objected to Ericson's answer, and the court sustained the objection, but Ericson continued to describe the inadmissible evidence over the court's and the court officer's orders that he stop. He also informed the jury, “[T]hey won't show you all sorts of things. It's a censored court. It's not an open court.” The court then excused the jury.

[¶ 6] The court addressed Ericson and told him that he would need to control himself and testify in a manner that was consistent with the court's direction. When asked if he understood the court's instruction, Ericson expressed that he understood the words but did not agree with the rules. In chambers, the court requested that Ericson's attorney meet with Ericson to learn whether Ericson could control himself if he resumed testifying. The court stated: “[I]f [Ericson] is not prepared to represent that [he can control himself] ... then I'm in a position of deciding whether or not to treat him as having waived his right to testify by his conduct.” Ericson's attorney reported back to the court that Ericson “believe[d] in an open court,” and that he intended to be honest and truthful.

[¶ 7] Still seeking assurance from Ericson that he would comply with evidentiary and procedural rules, the court questioned Ericson on the record about whether he understood that there would be limitations on his testimony. The court informed him that the “right to testify carries with it a responsibility ... that involves your complying with my directions.” When asked if he understood, Ericson responded, “No.” The court twice more asked Ericson if he was prepared to follow the court's directions, and when Ericson failed to acknowledge that he would, the court concluded that Ericson had waived his right to testify.

[¶ 8] As his final witness, Ericson offered the deposition testimony of Dr. Joseph Plaud, a licensed clinical psychologist who evaluates accused and convicted sex offenders. Plaud evaluated Ericson's “psychological and psychosexual interest patterns and behavior” through a battery of tests, including the Abel Assessment for Sexual Interest. The Abel Assessment comprises two parts. One part measures and records the length of time that the test taker views slides of different types of sexual behavior and of partially clothed males and females of various ages, premised on the belief that there is a correlation between sexual interest and the length of time spent viewing the sexual stimuli. The other part is a questionnaire in which the test taker reports his level of attraction to each image. The data collected is transmitted to a research team that uses formulas to generate a graph of sexual interest patterns. Based in part on the results of the Abel Assessment, Plaud concluded that Ericson did not have “deviant sexual preferences,” meaning that he did not show a sexual interest in children or violence.

[¶ 9] The State moved to exclude Plaud's deposition on the grounds that it was unreliable, because (1) the formulas used to generate the graph of sexual interest were proprietary, and therefore had not been subject to general peer review; (2) the test is a psychological instrument to be used in treating sex offenders and in evaluating future risk of sexual abuse, not in determining whether an individual has committed sexual abuse; (3) the Abel Assessment had been tested only on admitted sex offenders; and (4) even when tested on admitted sex offenders, the test had a potential error rate of between 21% and 32%. The court determined that the testimony was neither reliable nor relevant, and therefore was inadmissible.

[¶ 10] After the jury found Ericson guilty on all counts, he was sentenced to concurrent terms of imprisonment resulting in an ultimate sentence of seventeen years, with all but twelve years suspended, and four years probation.

II. DISCUSSION

A. Admissibility of the Expert Witness Testimony

[¶ 11] Maine Rule of Evidence 702, which governs the admission of expert witness testimony, provides, “[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.” Before admitting evidence pursuant to this Rule, the trial court must determine that the testimony (1) is relevant in accordance with M.R. Evid. 401, and (2) “will assist the trier of fact in understanding the evidence or determining a fact in issue.” Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94, ¶ 21, 878 A.2d 509, 515–16 (citing State v. Williams, 388 A.2d 500, 504 (Me.1978)). The testimony must also meet a threshold level of reliability. State v. Bickart, 2009 ME 7, ¶ 14, 963 A.2d 183, 187.

[¶ 12] For proffered evidence to meet the threshold level of reliability, the court need not find that the expert's methods are generally accepted. Id. Instead, the court must satisfy itself “that the proffered evidence is sufficiently reliable to be held relevant” by considering indicia such as

(1) whether any studies tendered in support of the testimony are based on facts similar to those at issue; (2) whether the hypothesis of the testimony has been subject to peer review; (3) whether an expert's conclusion has been tailored to the facts of the case; (4) whether any other experts attest to the reliability of the testimony; (5) the nature of the expert's qualifications; and (6) if a causal relationship is asserted, whether there is a scientific basis for determining that such a relationship exists.

Id. ¶ 15, 963 A.2d at 187–88 (quotation marks omitted). We review a court's refusal to admit expert testimony for an abuse of discretion. Id. ¶ ¶ 15, 27, 963 A.2d at 188, 191.

[¶ 13] Ericson argues that the court abused its discretion by excluding Plaud's testimony because there was sufficient evidence that the Abel Assessment produced reliable results. However, we agree with the trial court that there are significant concerns with the reliability of the Abel Assessment, including that (1) it has not been subject to...