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Carter v. State (6/18/2010) ap-2268

Carter v. State (6/18/2010) ap-2268

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
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                    Appellant,       Court of Appeals No. A-10313
                                    Trial Court No. 3AN-06-2396 Cr
STATE OF ALASKA,                         O  P  I  N  I  O  N
End of Caption                        No. 2268    June 18, 2010
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,

          Appearances:    Sharon  B.  Barr,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Tamara   E.  de  Lucia,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and Daniel S.  Sullivan,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          The question presented in this case is whether a police
officer (called as a 
witness on behalf of the State) should have been allowed to testify concerning the physical indications that someone has been subjected to strangling. The argument against the admissibility of this testimony is that the officer was offering expert testimony but lacked the necessary qualifications to testify on these matters.
As explained more fully in our opinion, we conclude that the officers testimony was proper. Some of the officers challenged testimony was admissible as lay testimony under Evidence Rule 701 (that is, admissible without the need to show that the officer was an expert). And with regard to the other challenged portions of the officers testimony, the trial judge could properly find that the officer had the requisite expertise to give this testimony. Accordingly, we uphold the judgement of the superior court.
Background facts
               On  March 8, 2006, Romanda Lee contacted  the
     police  and  reported that her then boyfriend,  Lorenzo
     Carter, had assaulted her by grabbing the back  of  her
     head, hitting her, and choking her.  Lees two daughters
     told  the  police that they had witnessed the  assault.
     Based on this incident, Carter was charged with second-
     degree assault (as well as interfering with a report of
     domestic  violence, for unplugging Lees telephone  when
     she initially tried to call 911).1
               However,  at  Carters trial, Lee denied  that
     Carter  had assaulted her.  Lee testified that she  and
     Carter had argued, that they had accused each other  of
     infidelity, and that Lee became so angry that she  told
     her daughters to call 911 and falsely accuse Carter  of
     assault.   Lee further testified that, when the  police
     arrived,  she  repeated  her  false  story  of  assault
     because she was afraid that she would be in trouble for
     lying to the 911 operator.
               Lees  daughters testified that they  did  not
     witness  any argument between their mother and  Carter,
     and they did not remember any assault.
          In  the face of these recantations, the State
relied  on  the prior statements made by  Lee  and  her
daughters,  as  well as the testimony of the  Anchorage
police  officers  who responded  to  the  scene.   This
appeal  concerns the testimony given by  one  of  these
officers,   Earl  Ernest,  concerning  the   signs   of
strangulation that he observed when he contacted Lee.
          Before Officer Ernest took the stand, Carters
attorney  asked  the trial judge to bar the  prosecutor
from questioning any of the police officers about [the]
signs  and  symptoms  of  strangulation.   The  defense
attorney  asserted that this would be expert  testimony
that the officers were not qualified to give:
          Defense Attorney:  I dont think  any  of
     the  officers  are qualified to  give  [this]
     kind  of testimony.  ...  [T]he experts  that
     the  State  typically [presents  are]  nurses
     with    various    degrees    and    training
     specifically in this area, and case histories
     to back them up.  The officers dont have this
     kind  of  experience or training.  They  dont
     know  alternate  signs and symptoms.   And  I
     would  ask that [the officers] just stick  to
     what they observed.
               The  prosecutor responded  that  he
     only  wanted the officers to testify (1) that
     they   were  trained  to  look  for   certain
     physical     manifestations     when     they
     investigated a report that someone  had  been
     strangled; and (2) that they observed some of
     these  manifestations when  they  interviewed
     Romanda Lee.  The prosecutor declared that he
     did  not intend to ask the officers to  offer
     an  opinion (based on their observations)  as
     to whether Lee had been strangled.
          When   the  trial  judge  (Superior
Court  Judge  Philip  R. Volland)  asked  the
defense attorney if this limitation satisfied
his  concerns, the defense attorney responded
that  it did not.  The defense attorney  told
          the trial judge that, while he did not object
to   having   the  officers  describe   their
observations  of Lee, he did  object  to  the
proposed   testimony  concerning   what   the
officers  were trained to look for when  they
investigated  a  report of  strangling.   The
defense  attorney argued that this  testimony
would essentially ... allow [the officers] to
testify as experts [under] the guise of  just
talking about their training.
          Judge  Volland reserved his  ruling
on  this point until he had a chance to  hear
the  foundational  testimony  concerning  the
officers training.
          The next day, the prosecutor called
Officer   Ernest   to  the   stand.    Ernest
testified  that he had received  training  in
the  investigation of domestic violence, both
at  the  police academy and in later training
sessions  during his twelve  years  with  the
Anchorage  Police  Department.   Ernest  also
testified  that  he  had  received   training
specifically focused on the investigation  of
stranglings.    When  the  prosecutor   asked
Ernest how many cases of domestic violence he
had  investigated during his  police  career,
Ernest answered thousands.
          The prosecutor then asked Ernest to
describe  [the] things ... to look  for  when
investigating  a  reported  strangling.   The
defense  attorney  did  not  object  to  this
question.    The   following  colloquy   then

     Ernest:    [T]he  evidence  that   would
probably  be  present in a strangulation  ...
are  [such  things  as] bruising,  petechiae,
raspy voice, or difficulty swallowing.  There
may be defensive wounds ... .
     .  .  .

     Prosecutor:   Let  me ...  talk  to  you
[about]  specifics.  You [said that]  one  of
the  things  you  all look for  is  bruising.
What sort of bruising?  ...

     Ernest:  Well, in a strangulation  case,
the  primary  place to look for  bruising  is
going to be the neck area.

     Prosecutor:   ...  In your twelve  years
as  a  patrol  officer, ...  [d]id  you  ever
respond    [to]    and    investigate     any
strangulation cases ... ?
     .  .  .

     Ernest:  Probably, in my career, in  the
30s  [or] 40s ... for the number of times Ive
investigated strangulation.

     Prosecutor:   All right.   And  ...  how
frequently    do   you   see   bruising    in
[strangulation] cases ... ?

     Ernest:  Well, ... not as often  as  you
would  think.  The fairer the skin, the  more
likelihood  that  youll be able  to  see  red
marks, at least.  Bruising tends to show up a
little  bit later, depending on how long  its
been since ...

          At this point, the defense attorney
objected.   The defense attorney  told  Judge
Volland that the officer was now embarking on
the   kind  of  testimony  that  the  defense
attorney   previously   objected    to     in
particular, the mechanisms of bruising,  [and
the]  conclusions  [the officer]  would  draw
from [the presence or absence of] bruising.
          Judge   Volland   overruled    this
objection.   The judge noted that,  according
to   Ernests   foundational  testimony,   the
officer   had  responded  to  several   dozen
strangulation  cases.  Based on  this,  Judge
Volland  concluded that Ernest had sufficient
experience  to  talk  about  when   he   sees
bruising and when he doesnt in the context of
strangulation investigations.  Judge  Volland
further  concluded that, to  the  extent  the
defense   attorney   had   raised   questions
regarding the quantity or quality of  Ernests
experience, these matters went to the  weight
of   Ernests   testimony  rather   than   its
          After  Judge Volland overruled  the
defense   attorneys  objection   to   Ernests
testimony  about  bruising, Ernest  testified
(without   further  objection)   that,   when
investigating  a  case of strangulation,  one
would often see red marks or scratches in the
area  of  the  throat as well  as  petechiae,
which Ernest described as a star-burst of red
dots created by the bursting of blood vessels
within the eyeball ... [or] sometimes in  the
fairer  part  of a persons skin, like  around
the  eye  or  behind the  ear.   Ernest  also
testified that one would look to see  whether
the   victim  had  a  raspy  voice,  or   was
experiencing  difficulty in  swallowing,  and
whether  there were defensive wounds  on  the
victims body.
          The prosecutor then asked Ernest to
describe  Romanda Lees physical condition  at
the  time  of  the reported assault.   Ernest
testified that Lee had blood on her  forehead
(from  an  injury to her forehead), petechiae
in  both of her eyes, and fresh scratch marks
on her neck and lower face.
          At the conclusion of Carters trial,
when  the  prosecutor delivered his summation
to  the  jury,  he argued that Lees  physical
injuries   in particular, the fresh scratches
on  her  neck and face, and the petechiae  in
her  eyes   corroborated the truthfulness  of
her  initial  statements to the 911  operator
and  to  the  police.  In  other  words,  the
prosecutor argued that the presence of  these
physical  injuries  corroborated  the  States
allegation that Lee was strangled.

Carters contention that portions of Ernests testimony
were inadmissible expert testimony

     On  appeal, Carter acknowledges that  Officer
Ernest  could  properly  testify  concerning   his
observations  of  Lees  physical  condition    for
example, the fresh scratches to her neck and face,
and   the  petechiae  in  her  eyes.   But  Carter
contends  that it was improper to allow Ernest  to
testify  concerning  the  significance  of   these
observations  that these were some of the signs or
symptoms he was trained to look for as part of any
investigation into a potential strangling.
          Carter  argues that, even though it might  be
true that police officers are trained to look for these
things  when they investigate a strangling,  telling  a
jury that the police are trained to look for petechiae,
or  for  fresh  scratches  on  the  neck  or  face,  is
tantamount  to telling the jury that these things  are,
indeed,  signs  or  symptoms of a  strangling.   Carter
further  argues that Officer Ernest did  not  have  the
requisite  expertise to offer an opinion as to  whether
petechiae or fresh scratches are truly symptomatic of a
          The State responds that Ernests testimony was
not  expert testimony, but rather lay testimony  simply
a  description of his own observations of Lees physical
condition,  coupled with a description of the  training
he  received as a police officer.  The State points out
that the prosecutor at Carters trial never asked Ernest
to  offer  an  opinion  as  to  whether  Lees  physical
condition  was  consistent with  her  report  of  being
strangled, or tended to show that her report  of  being
strangled was truthful.
          But even though the prosecutor may never have
asked  such  questions  of the  officer,  the  officers
testimony  implicitly rested on the  premise  that  the
things  he had been trained to look for were, in  fact,
signs  or  symptoms  of  a  strangling.   Without  this
foundational  premise,  Ernests  testimony  about   his
training would have had no relevance.
          Indeed,  as  we  have already explained,  the
prosecutor  explicitly relied on this  premise  in  his
summation  to  the jury.  The prosecutor openly  argued
that  the fresh scratches and the petechiae were  signs
or symptoms that Lee had been strangled  and, thus, the
presence  of  these  injuries corroborated  the  States
allegation that Carter strangled Lee.
          The  real  questions presented here  are  (1)
whether  the  prosecutors  premise  was  the  type   of
assertion  that  needed  to  be  supported  by   expert
testimony;  and  (2)  if  so, whether  Ernest  had  the
requisite expertise to offer that testimony.

Lay testimony versus expert testimony

          The  distinction  between lay  testimony  and
expert testimony is set forth in Alaska Evidence  Rules
701 and 702.  The relevant portion of Evidence Rule 701
states  that  if  a  witness is not  testifying  as  an
expert, the witnesss testimony ... is limited to  those
opinions  [and]  inferences which  are  ...  rationally
based  on  the perception of the witness.  The relevant
portion of Evidence Rule 702 states that if scientific,
technical,  or other specialized knowledge will  assist
the  trier  of  fact to understand the evidence  or  to
determine  a  fact  in issue, then  a  witness  who  is
qualified as an expert by knowledge, skill, experience,
training,   or   education  may  testify   about   this
specialized  knowledge and, based on  this  specialized
knowledge, may render an opinion concerning the matter.
           One  bedeviling  aspect of the  relationship
between  Rules 701 and 702 is that, for many witnesses,
both rules apply to their testimony.
          For  example,  emergency room physicians  and
nurses might physically examine an arriving patient and
then  attempt  to  diagnose  the  patients  injury   or
illness.  As the Alaska Supreme Court has noted,  these
doctors  and nurses testimony concerning their personal
observations  of  a patients physical condition  (e.g.,
shortness  of breath, dilated pupils, etc.) is  lay  or
fact  testimony:  it is the witnesses account of  their
own personal observation of events or circumstances.2
          On  the  other hand, these doctors and nurses
move  into  the  realm  of expert testimony  when  they
testify  about  why  they were looking  for  particular
symptoms  (or  the absence of particular symptoms),  or
why  they  concluded that particular observations  were
important  in  reaching  their  diagnosis.   On   these
topics,  the testimony is covered by Rule 702   because
          the doctors and nurses are relying on scientific,
technical, or other specialized knowledge.
          Seemingly, this latter testimony falls within
Rule  701  as  well, because the testimony consists  of
opinions  [and]  inferences which  are  ...  rationally
based  on  the  perception of the witness.    But  this
testimony is treated as expert testimony because,  even
though  the  diagnosis may be rationally based  on  the
doctors  or nurses personal perception of the  patients
physical  condition, the chain of  inference  that  the
doctor  or  nurse  has  relied on (when  reaching  this
diagnosis) rests on specialized medical knowledge  that
is  likely not shared by the trier of fact.   In  other
words,  this testimony is expert testimony because,  in
order  for  the jurors to understand or assess  whether
the  diagnosis  is rationally based on the  doctors  or
nurses observations of the patient, the jurors must  be
given background information about facts and principles
that are generally known only to members of the medical
          Compare  Callahan  v.  State,  769  P.2d  444
(Alaska  App. 1989), a case in which the defendant  was
convicted  of refusing to take a breath test  following
his  arrest for driving while intoxicated.  This  Court
held  that  the  trial court committed  error  when  it
prevented  the defendant from presenting a witness  who
would  have  testified that the defendant had  recently
suffered   injuries  to  his  chest,  back,  and   ribs
injuries that might have interfered with his ability to
blow into the Intoximeter tube.  Id. at 446-47.
          The   trial  court  excluded  this   proposed
testimony  on  the  ground that  the  witness  was  not
medically  trained,  but  this  Court  held  that   the
witnesss testimony was admissible as lay opinion  under
Evidence  Rule 701.  Id. at 446.  Although we  did  not
expressly  say  this,  it appears that  the  underlying
rationale of our ruling was (1) that Callahans injuries
were  the  type  of  injuries that a lay  person  could
observe  and  understand, and (2) ordinary jurors  were
capable   of  understanding  the  relationship  between
Callahans  injuries (as described by the  witness)  and
Callahans  potentially diminished ability to blow  into
the  breath-test machine.  Because specialized  medical
knowledge  was not needed to understand these  matters,
the witness should have been allowed to testify.

The testimony at issue in this case

          In this appeal, Carter claims that Ernest was
improperly  allowed  to give expert  opinion  on  three
subjects:    (1)  Ernests  testimony  that  the   fresh
scratches  on Lees neck and lower face were indications
that she had been strangled; (2) his testimony that the
petechiae in Lees eyeballs were also an indication that
strangulation had occurred; and (3) his testimony that,
          often, the victim of a strangling will not exhibit
bruising until later.
          With  regard to the first aspect  of  Ernests
testimony  (the significance of the fresh scratches  on
Lees  neck and face), this was lay opinion.  The jurors
did  not  need  specialized training or  experience  to
understand the basis for this inference.
          With  regard to the second aspect of  Ernests
testimony  (the  significance  of  the  fact  that  Lee
exhibited  petechiae), we agree with Carter  that  this
was expert testimony.  Most jurors would likely not  be
aware  of  the tie between petechiae and strangulation;
in other words, it would require scientific, technical,
or   other  specialized  knowledge  to  understand  the
significance of this observation in the context  of  an
investigation into a reported strangling.
          However,  Judge Volland concluded  (based  on
Ernests   foundational  testimony)  that   Ernest   had
sufficient experience investigating cases of strangling
to  be  aware  of the connection between petechiae  and
strangulation,  and thus to offer an opinion  that  the
presence  of  petechiae  was  an  indication   that   a
strangling  had occurred.  Based on our review  of  the
record,  we  conclude  that Judge  Vollands  ruling  on
Ernests level of expertise was reasonable, and  not  an
abuse of discretion.
          As   this   Court  has  previously  observed,
[t]here  is  no  requirement that a witness  possess  a
particular license or academic degree ... to qualify as
an  expert.   The  criterion ... is whether  the  fact-
finder   can   receive  appreciable  help   from   that
[witness].4   Officer  Ernest  may  not  have  had  the
expertise to offer a meaningful opinion on the  precise
physiological mechanism that causes petechiae,  and  he
may  not have been aware of all the potential alternate
causes  of  petechiae.  But Judge  Volland  found  that
Ernest    had   sufficient   experience   in   criminal
investigations  to  be  aware that  strangling  victims
often  exhibit  petechiae.  Thus, Ernest could  validly
offer  an opinion that the presence of petechiae tended
to  corroborate Lees initial report that she  had  been
          As  we explained earlier, Ernest himself  did
not  explicitly offer this opinion.  But his  testimony
concerning his training  in particular, the  fact  that
he was trained to look for petechiae when investigating
a   reported  strangling   implicitly  relied  on   the
assertion   that   petechiae  are  an   indication   of
strangling.   And  the prosecutor expressly  relied  on
this  assertion  when  he  discussed  the  evidence  of
petechiae  during his summation to the  jury.   Because
the  trial  judge found that Ernest had  the  requisite
experience  to  draw this connection between  petechiae
and  strangulation, it was not error for the prosecutor
to  rely on this inference, nor was it error for Ernest
          to tell the jury about this aspect of his training.
          For  much the same reasons, we conclude  that
it  was not error for Ernest to testify that strangling
victims  often will not exhibit bruising  until  later.
Again,  Judge Volland found that Ernest had  sufficient
experience  investigating cases  of  strangling  to  be
aware  of  this  fact; and we conclude,  based  on  our
review  of  the record, that Judge Vollands  ruling  on
this  question  was reasonable, and  not  an  abuse  of


          The  judgement  of  the  superior  court   is

  1 AS 11.41.210(a)(2) and AS 11.56.745(a), respectively.

2 See Getchell v. Lodge, 65 P.3d 50, 56 (Alaska 2003); Miller
v. Phillips, 959 P.2d 1247, 1250 (Alaska 1998).

3  See the discussion of this point in Stephen A. Saltzburg,
Michael  M.  Martin, and Daniel J. Capra, Federal  Rules  of
Evidence  Manual (9th ed. 2006), Vol. 3, pp.  70111  through
70118  (discussing the scope of Federal Evidence Rule  701),
and  pp. 7028 through 70211 (discussing the scope of Federal
Evidence Rule 702).

4  Dymenstein v. State, 720 P.2d 42, 45 (Alaska  App.  1986)
(citations omitted).

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