United States v. Harry

• Decision Date: 05 May 2014
• Docket Number: No. CR 10–1915 JB.,CR 10–1915 JB.
• Citation: 20 F.Supp.3d 1196
• Parties: UNITED STATES of America, Plaintiff, v. Myron Jim HARRY, Defendant.
• Court: U.S. District Court — District of New Mexico

20 F.Supp.3d 1196

UNITED STATES of America, Plaintiff

v.Myron Jim HARRY, Defendant.

No. CR 10–1915 JB.

United States District Court, D. New Mexico.

Filed May 5, 2014.

Kenneth J. Gonzales, United States Attorney, Kyle T. Nayback, Assistant United States Attorney, David Adams, Special Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.

John F. Samore, Albuquerque, NM, for the Defendant.

UNSEALED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

You can't hide your lyin' eyes

And your smile is a thin disguise

I thought by now you'd realize

There ain't no way to hide your lyin' eyes

The Eagles, Lyin' Eyes (1975 Cass County Music & Red Cloud Music).

THIS MATTER comes before the Court on: (i) Defendant Myron Harry's Motion in Limine to Exclude Testimony of Sane Nurse and Supporting Memorandum, filed January 24, 2013 (Doc. 108)(“SANE MIL”); and (ii) the United States' Motion to Exclude Expert Testimony of Samuel Roll, filed March 26, 2013 (Doc. 129)(“Roll MIL”). The Court held hearings on March 29, 2013, and April 10, 2013. The primary issues are: (i) whether the Court should exclude the testimony of Julie Kysar, R.N., a Sexual Assault Nurse Examiner (“SANE nurse”) in Farmington, New Mexico, because it is irrelevant, unfairly prejudicial, will include opinion testimony that lacks a reliable basis in scientific or medical knowledge, or will include hearsay that is not within an exception; and (ii) whether the Court should exclude Dr. Samuel Roll from testifying at trial because his proffered expert opinion lacks a reliable basis in psychological knowledge or is irrelevant. The Court will deny the SANE MIL and grant the Roll MIL. The Court concludes that Kysar's factual testimony is relevant to the charges against Harry, any hearsay within her testimony falls within rule 803(4)'s exception to hearsay for statements made to a medical provider, and Kysar has a basis in reliable medical knowledge to provide her opinion regarding Jane Doe's injuries, an opinion that is relevant to the jury's determination whether Doe and Harry engaged in consensual intercourse. The Court will not allow Dr. Roll to testify, because he has not provided the Court with an article, resource, or other basis of knowledge in the field of psychology that supports his proffered testimony.

FACTUAL BACKGROUND

The United States accuses Harry of sexually assaulting Doe during a party the night of May 5–6, 2010, in Shiprock, New Mexico. See Indictment at 1, filed June 24, 2010 (Doc. 14). The Court previously made findings of fact for Harry's Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75). See Memorandum Opinion and Order at 2–16, filed February 19, 2013 (Doc. 114). The Court incorporates those findings of fact by reference herein.

The morning after the incident, Doe asserted that Harry sexually assaulted her at the party. See SANE MIL at 1. Doe visited Kysar for an examination. SANE MIL at 1. During the SANE examination, Kysar noted that Doe's demeanor was tearful, calm/cooperative, and she made poor eye contact. See Sexual Assault Exam at 1, 3, filed March 26, 2013 (Doc. 128–5).

Harry initially denied having sexual contact with Doe. DNA evidence revealed Harry's DNA on vaginal swabs taken from Doe. See Response to Motion in Limine to Exclude Expert Testimony ¶ 1, at 1, filed January 31, 2013 (Doc. 112)(“SANE Response”).

PROCEDURAL BACKGROUND

On June 24, 2010, a grand jury indicted Harry for having knowingly engaged in a sexual act with Doe, who was physically incapable of declining participation and could not communicate her unwillingness to engage in the sexual act, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(A). See Indictment at 1. Trial in this matter is set for May 6, 2013, at 9:00 a.m. See Agreed Order to Vacate and Reset Trial and Extend the Time for the Filing of Pre–Trial Motions at 4, filed February 28, 2013 (Doc. 12). On September 28, 2012, Plaintiff United States of America informed the parties that it intends to call Kysar, a “certified Sexual Assault Nurse Examiner with the Sexual Assault Services of Northwest New Mexico” to testify regarding the conclusions in Doe's SANE examination report. Sealed Notice of Intention to Offer Expert Testimony ¶ 3, at 2, filed September 28, 2012 (Doc. 95)(“SANE Notice”). The United States asserts that Kysar's testimony will be mostly factual, and not “expert” in nature, but notifies the Court that it has, “out of an abundance of caution,” listed her as a potential expert witness, because “she may include her expert opinions or specialized knowledge regarding this matter and derived from her education, training, and professional experience as a sexual assault nurse examiner.” SANE Notice ¶ 3, at 2. On January 24, 2013, the United States notified the Court and Harry that it intends to call Kysar as an expert at trial. See Sealed First Amended Notice of Intention to Offer Expert Testimony ¶ 3, at 2, filed March 26, 2013 (Doc. 128)(“Second SANE Notice”). The United States intends to call Kysar to testify regarding the “contents of her report and examination of Jane Doe,” the medical questions she asked Doe, and Doe's responses to Kysar's questions. Second SANE Notice ¶ 3, at 2. Additionally, the United States intends for Kysar to testify regarding the SANE examination, the tools and instruments Kysar used during the examination, “what the examination entailed,” and which areas of Doe's body Kysar examined. Second SANE Notice ¶ 3, at 2. The United States intends for Kysar to testify that she took swabs from Doe's genitalia and anus for serology and DNA examination, and that Kysar identified injuries and tearing on Doe's genitalia. The United States states that Kysar “may testify that she cannot conclude that the injuries and tearing are indicative of non-consensual or consensual intercourse.” Second SANE Notice ¶ 3, at 2–3. The United States states that Kysar may testify that Doe's injuries are “consistent with injury by blunt force trauma, which could have been caused by a penis during attempted penetration of the vagina.” Second SANE Notice ¶ 3, at 3. The United States maintains that Kysar's testimony will be “largely factual but does contain some opinion testimony.” Second SANE Notice ¶ 3, at 3.

Harry intends to call Dr. Roll, a “psychologist of forty (40) years' experience ... an associate psychology professor at University of New Mexico, widely-published and recognized as a speaker,” as an expert at trial. Second Amendment to Rule 702, 703, 705 Notice of Intent to Call Expert Witness at 1, filed March 15, 2013 (Doc. 122)(“Roll Notice”). Harry states that he may call Dr. Roll to testify

that no known treatise or empirical findings support the existence of any constellation of psychological symptoms or behavior that are observable or measurable which might indicate to a greater or lesser certainty that a person who claims to be a victim of non-consensual intercourse has or has not been such a victim.

Roll Notice at 1. Harry further informs the parties that Dr. Roll will “address to what extent and whether any of the subjective observations by a SANE nurse have empirical support or scientific basis, known in any reliable, verified research, that may be reproduced or verified through scientific or empirical means.” Third Amendment to Rule 702, 703, 705 Notice of Intent to Call Expert Witness at 1, filed March 25, 2013 (Doc. 127)(“Second Roll Notice”).

1. The SANE MIL.

Harry asserts that a SANE examination is “not for law enforcement purposes,” and, rather, state law requires that individuals alleging that they have been sexually assaulted receive a SANE examination. SANE MIL at 2. Harry asserts that his counsel interviewed Kysar and that Kysar informed Harry's counsel: “I'm not able to differentiate between nonconsensual and consensual injury caused by nonconsensual or consensual sex. I'm not able to differentiate those.” SANE MIL at 2. Harry contends that neither his identity nor Doe's capacity to consent are at issue, and, therefore, Kysar need not testify regarding her findings on those matters. Harry asserts that Kysar will have no expert opinion or specialized knowledge to offer to this matter, and that her testimony may be irrelevant and touch on impermissible character evidence. See SANE MIL at 2. Harry asserts that Kysar found “no admissible evidence of injury, representation of no injury, no evidence of forceable [sic] penetration,” and that he will not contest that a rape kit was used to obtain samples from Doe which the United States then tested. SANE MIL at 4. Harry contends that Kysar cannot offer an opinion whether her findings indicate consensual or nonconsensual intercourse occurred. Harry contends, therefore, that Kysar's testimony lacks any probative value under rule 403. He asserts that “[t]o even permit the SANE nurse to take the stand as a fact witness would be reversible error for several reasons,” including that her testimony would serve no medical purpose and only bolster the testimony of the United States' other witnesses. SANE MIL at 5. Harry argues that Kysar's testimony does not fall within any exception for medical testimony. See SANE MIL at 5. Harry requests that the Court, therefore, preclude Kysar from testifying. See SANE MIL at 6.

The United States requests the Court to admit both Kysar's factual and expert testimony “regarding the victim's statements provided to Ms. Kysar during the victim's sexual assault exam.” SANE Response at 1. The United States asserts that the SANE MIL is without merit. See SANE Response ¶ 3, at 2. The United States first asserts that rule 803(4) of the Federal Rules of Evidence's exception to the hearsay prohibition allows the Court to admit the SANE nurse's testimony regarding Doe's statements, because her statements were “ ‘made for the purposes of medical diagnosis or treatment.’ ” SANE Response ¶ 4, at 2–3 (quoting Fed.R.Evid. 803(4) ). The...