State v. Lente

• Decision Date: 07 September 2005
• Docket Number: No. 23,934.,23,934.
• Citation: 2005 NMCA 111,119 P.3d 737
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jesse Lawrence LENTE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 737

119 P.3d 737

2005 NMCA 111

STATE of New Mexico, Plaintiff-Appellee, v. Jesse Lawrence LENTE, Defendant-Appellant.

No. 23,934.

Court of Appeals of New Mexico.

June 7, 2005.

Certiorari Denied, No. 29,365, August 18, 2005.

Corrected, September 7, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Chief Judge.

{1} Defendant was convicted, after a jury trial, of ten counts of criminal sexual penetration of a minor (CSPM), sixteen counts of criminal sexual contact of a minor (CSCM), one count of interference with communications, two counts of bribery of a witness, and one count of resisting, evading, or obstructing an officer. Defendant raises three issues on appeal: (1) whether the testimony by the physician who examined Victim was more prejudicial than probative, was unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (interpreting the requirements of Rule 702 of the Federal Rules of Evidence), and constituted improper vouching for Victim's testimony; (2) whether the court erred in not permitting the jury to be instructed on the lesser included offense of CSCM for four allegations of digital penetration; and (3) whether the court erred in not permitting defense counsel to fully confront a witness by impeaching her with prior acts of dishonesty. Because we determine that no error occurred, we affirm Defendant's convictions.

Expert Testimony

{2} Victim testified that Defendant had been molesting her in various ways since she was in second or third grade and that on the morning of the most recent incident, Defendant had made her perform fellatio on him. Victim also testified that she subsequently told a police officer what had happened and was taken first to the hospital, where she was examined and interviewed, and was then sent to the Safe House where she was also interviewed. Following a hearing on the permissible limits of the testimony, Dr. Renee Ornelas, the physician who examined Victim at the hospital, testified that the examination of Victim's genitalia was normal and that this was consistent with what Victim had reported. Defendant was convicted, and this appeal followed.

{3} Defendant asks us to review whether the physician's testimony constituted improper vouching, was unreliable under the standard first set forth in Daubert, and was more prejudicial than probative under Rule 11-403 NMRA. "[T]he admission of expert testimony or other scientific evidence is peculiarly within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion." State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993). "[T]he threshold question of whether the trial court applied the correct evidentiary rule or standard is subject to de novo review on appeal." State v. Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20. A trial court abuses its discretion when it exercises its discretion based on a misunderstanding of the law. See State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209. As our Supreme Court summarized in Torres, after the United States Supreme Court issued its opinion in Daubert, New Mexico also determined that under Rule 11-702 NMRA "it is error to admit expert testimony involving scientific knowledge unless the party offering such testimony first establishes the evidentiary reliability of the scientific knowledge." Torres, 1999-NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20.

{4} Defendant argues at some length that this Court should also adopt the reasoning of subsequent federal cases, such as Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), that all expert testimony, not just scientific testimony, should be subject to the Daubert-Alberico test. We note, initially, that our Supreme Court has not yet incorporated the holding of Kumho Tire Co. into New Mexico law. See Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 19, 134 N.M. 421, 77 P.3d 1014 (stating, within the context of a workers' compensation case, that "after Kumho Tire Co., we apply Daubert somewhat differently than do the federal courts"). But see Lopez v. Reddy, 2005-NMCA-054, ¶ 13, 137 N.M. 554, 113 P.3d 377 (2005) (limiting the holding in Banks, that Daubert-Alberico does not apply to the testimony of a health care provider under the Workers' Compensation Act, to cases "in which the use of experts is subject to particular statutory standards"). Currently, therefore, New Mexico law requires only that the trial court establish the reliability of scientific knowledge, and does not apply the Daubert-Alberico standard to all expert testimony. Torres, 1999-NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20.

{5} Before trial, Defendant filed a motion in limine to exclude the physician's testimony. In his motion, Defendant stated that he anticipated that the physician would testify that she (1) recorded a patient history, (2) conducted a physical examination of Victim's genital area, (3) found the examination to be normal, (4) found that it could be that of someone who had not been penetrated, (5) found that tests for disease and pregnancy were negative, (6) found the examination to be completely consistent with the history, and (7) concluded sexual abuse had occurred. Defendant argued that under Kumho Tire Co. and United States v. Velarde, 214 F.3d 1204 (10th Cir.2000), the trial court must make a determination that all expert testimony, not just scientific testimony, is reliable before it is admitted. In Kumho Tire Co., the Supreme Court made clear, however, that a trial court retains "discretionary authority needed both to avoid unnecessary `reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167.

{6} Even assuming Kumho Tire Co. and Velarde apply in New Mexico, we find the trial court did not abuse its discretion in this case. In Velarde, the physician concluded that the victim had been sexually abused, even though the physical examination was normal, and stated that when examinations provided normal results she would "base that diagnosis on the child's statements about what had happened to them." Velarde, 214 F.3d at 1209. The Tenth Circuit observed that although the trial court appeared to assume that this testimony "fell within the category of testimony in `ordinary' cases where courts may `avoid unnecessary `reliability' proceedings ... where the reliability of an expert's methods is properly taken for granted[,]'... the court gave no indication why this case could be viewed as such an `ordinary' case." Id. The Tenth Circuit took particular note that the physician relied completely on the victim's allegations in concluding abuse had occurred and stated that such testimony was "problematic." Id. at 1210. The court emphasized that if a conclusion that abuse had occurred was based on the victim's allegations, the physician would be impermissibly vouching for the victim's credibility. Id. at 1210, 1211 n. 6.

{7} In this case, before the physician testified, the trial court heard arguments on Defendant's motion. Defense counsel explained that the "concern with respect to any of this testimony is that [the physician's] statement, that the examination of [Victim] and the seeing [of] no kind of indication of sexual penetration, that that is consistent with abuse. I believe under Daubert that there would be no medical basis for giving that opinion." Relying on Velarde, counsel argued that relying on a victim's testimony to form a conclusion is simply vouching for the victim's credibility. In ruling on Defendant's motion in this case, the court first asked defense counsel to agree that the physician was permitted to testify about the history Victim gave. Defense counsel agreed that this was permissible. The following interchange then took place:

Court: Okay. Let me ask, I have ruled on this several times, I see no problem with the doctor saying that the history is consistent with the findings. Do you — are you asking for anything more that the doctor testified to? For instance, I'm not going to let the doctor say, "I believe the patient" or anything like that, but I think she can say that her findings are consistent with the history that she obtained.

Defense counsel: Certainly, Your Honor, and we understand that for her to present to the jury that she believes such and such occurred because of what the alleged victim told to her would be impermissible vouching and that's what we're asking the Court to not allow.

Defense counsel asked for clarification that the court was ruling that the physician could testify that "a normal exam is consistent with the allegations that were made[.]" The court responded: "With the history that the patient gave, for instance, it's pretty obvious. If it was fellatio, they wouldn't find anything." Defense counsel then asked if the court was "going to allow the doctor to testify as to a diagnosis of child sex abuse[,]" to which the court responded, "No. I'm saying with an — I'm not going to go any farther than that, but I think any doctor can testify whether the finding is consistent with the history."

{8} The record reveals, therefore, that Defendant objected to the admission of a diagnosis of sexual abuse based on a normal examination and Victim's reported history and agreed with the trial court that the physician could testify that the examination was consistent with the findings. The court made clear that the physician's testimony was to be limited to a statement that the...