State v. Lawhorn, 70549

• Decision Date: 13 December 1988
• Docket Number: No. 70549,70549
• Parties: STATE of Missouri, Respondent, v. Courtney L. LAWHORN, Appellant.
• Court: Missouri Supreme Court

Page 820

762 S.W.2d 820

STATE of Missouri, Respondent, v. Courtney L. LAWHORN, Appellant.

No. 70549.

Supreme Court of Missouri,

En Banc.

Dec. 13, 1988.

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

A jury convicted Courtney L. Lawhorn, appellant, of first-degree burglary. He was sentenced as a prior offender to a term of seven years. The Court of Appeals, Western District, affirmed. We granted transfer to consider two issues of general importance: First, whether a jury may consider the testimomy of an expert witness on the subject of the reliability of eye witness identification, and second, whether Section 558.019, RSMo 1986, as applied in this case, violates the prohibition against ex post facto laws found in Mo.Const. art. I, § 13. We have jurisdiction. Mo.Const. art. V, § 10. Conviction affirmed. Remanded for sentencing.

I.

On November 28, 1986, Eric Jensen was the only occupant of a fraternity house at the University of Missouri-Columbia, all other members of the fraternity having left for the Thanksgiving vacation. Jensen was asleep in his room on the second floor of the fraternity house. Prior to retiring, Jensen had propped a metal chair against his door. At approximately 12:00 noon, the sound of the chair scraping across the hardwood floor awakened Jensen. Jensen saw a black man poke his head and shoulders into the room and inquired as to the man's purpose in the fraternity house. The man backed quickly out of the room; Jensen followed him into a well-lighted hallway and again asked why he was there. The visitor said that he had come to pick up the cook. Jensen informed him that the fraternity house was closed and that the cook was not there.

The conversation and Jensen's opportunity to observe the intruder lasted between two and one-half and five minutes. As the two talked, Jensen noticed some stereo components missing from the room next to his and told the man, later identified by Jensen as appellant, to stay there while he notified the authorities about the missing items. At that point, appellant ran out of the front door of the fraternity house. Jensen climbed out on the roof of the fraternity house and watched appellant get into a maroon Honda automobile. Jensen noted the license plate number and immediately called the police giving a description of the intruder and the car and providing the license number.

An officer of the Columbia Police Department heard the police broadcast regarding the burglary and soon located the described vehicle. In the officer's presence, appellant came out of the house with several other individuals. When asked about the car, appellant indicated that it belonged to his father and had not been moved from that spot all day. The police officer felt the car's hood; it was warm. Appellant started to walk away. The officer informed appellant that he matched the description of a suspect in a burglary. Appellant immediately donned glasses and placed a hood over his head.

Meanwhile, another police officer had picked Jensen up. The two drove by the area in which the car had been found. While there Jensen had an opportunity to observe appellant. Jensen tentatively identified appellant as the burglar but indicated he could not be sure because of the glasses and the hood.

The officers arrested appellant and took him to the police station; he was photographed without the hood and glasses. Jensen was shown a photographic array which included appellant's photograph. Jensen positively identified appellant as the fraternity home intruder.

II.

In the argument upon which appellant places his greatest emphasis, appellant urges that the trial court erred in refusing to admit testimony by defense witness, Alvin G. Goldstein, a proffered expert on the subject of the reliability of eyewitness identification. Appellant contends that he was entitled to have the jury consider the opinions of Goldstein which, according to the offer of proof made at trial, were to the effect that there is inherent difficulty in cross-racial eyewitness identification, that post-confrontation events affect the witness' perception of what has occurred and that no correlation exists between a witness' confidence in his identification and the correctness of the identification.

Two reported cases in Missouri have previously considered the admissibility of expert testimony on the reliability of eyewitness identification. Neither case ruled the question authoritatively and unequivocally. In State v. Bullington, 680 S.W.2d 238 (Mo.App.1984), the Court of Appeals, Western District, indicated in dicta that expert evidence as to the reliability of eyewitness identification is generally inadmissible because it invades the function of the jury in assessing the credibility of the witnesses. Bullington turned, however, on failure of the defense to make a sufficient offer of proof.

In State v. Cooper, 708 S.W.2d 299 (Mo.App.1986), the Court of Appeals, Eastern District, identified the emergence of a "modern trend" favoring the admissibility of such expert testimony, but did not reach the issue of admissibility directly. The court found that evidence other than the eyewitness identifications was sufficient in that case to affirm the conviction.

This case squarely presents the issue whether the defendant in a criminal case is entitled to present expert opinion testimony on the reliability of eyewitness identification. The State's case and appellant's guilt or innocence depend upon the identification of appellant by Jensen. Further, appellant's counsel made a full offer of proof on the record regarding the expert's proposed testimony. This is an issue of first impression for this Court.

In his argument, appellant urges that the "modern trend" favors admission of expert testimony to aid the jury in evaluating eyewitness identification evidence. That "trend" limits the admissibility of such evidence only by the condition that the expert not particularize his opinion in terms of any actual witness at the trial. The leading cases are State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (banc 1983), and People v. McDonald, 37 Cal.3d 351, 690 P.2d 709, 208 Cal.Rptr. 236 (banc 1984). Chapple holds that under the particular facts of that case, eyewitness identification evidence was sufficiently suspect so as to warrant admission of the expert's testimony to aid the jury. 660 P.2d at 1223-24. McDonald cites Chapple and concludes that the decision to admit or exclude expert testimony remains primarily a matter within the trial court's discretion. However, where (1) identification is a key element of the prosecution's evidence, (2) the guilt of the accused is not substantially corroborated by other evidence, and (3) the evidence by a qualified expert would supply information not likely to be known to the jury, McDonald holds it is an abuse of discretion to refuse to admit such evidence. 690 P.2d at 727.

Neither McDonald nor Chapple have been widely followed. In State v. Poland, 144 Ariz. 388, 698 P.2d 183, 193-4 (1985), the Arizona Supreme Court limited Chapple to its facts, stating, "The peculiar facts of Chapple were not present in the instant case." 698 P.2d at 194.

Generally, expert testimony is admissible if it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence. State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984). "The theory upon which expert testimony is excepted from the opinion evidence rule is that such testimony serves to inform the court [and jury] about affairs not within the full understanding of the average man." Farris v. Interstate Circuit, 116 F.2d 409, 412 (5th Cir.1941). Therefore, proffered expert testimony should be excluded if it does not assist the jury, or if it unnecessarily diverts the jury's attention from the relevant issues. Taylor, 663 S.W.2d at 239. Expert testimony is also inadmissible if it relates to the credibility of witnesses, for this constitutes an invasion of the province of the jury. Id.

Almost uniformly, state and federal courts have upheld the trial court's exercise of discretion to exclude expert testimony on eyewitness identification, primarily on the ground that jurors may rely on their own experience to reach a judgment on what weight to give eyewitness evidence. People v. Beaver, 725 P.2d 96 (Colo.App.1986); State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986); Taylor v. United States, 451 A.2d 859 (D.C.1982), cert. denied, 461 U.S. 936, 103 S.Ct. 2105, 77 L.Ed.2d 311 (1983); Johnson v. State, 438 So.2d 774 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984); State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983); People v. Johnson, 97 Ill.App.3d 1055, 53 Ill.Dec. 402, 423 N.E.2d 1206 (1981); State v. Wheaton, 240 Kan. 345, 729 P.2d 1183 (1986).

Appellant argues, however, that he should have been permitted to explain that research indicates the existence of "the other race effect," which causes persons to have difficulty identifying individuals of a different race, and that the effects of the passage of time, stress at the time of the crime, and the retrieval level in facial recognition memory of the human brain, all combine to diminish a witness' ability to make an accurate identification. We believe, however, that such matters are within the general realm of common experience of members of a jury and can be evaluated without an expert's assistance. State v. Kemp, 199 Conn. 473, 507 A.2d 1387, 1389 (1986). The Supreme Judicial Court of Massachusetts recently stated:

[O]ne may fairly contend that the jury would be aided by expert testimony. But [expert testimony on eyewitness identification], ... deals with general principles, such as the fact that memories fade over time, that people...