Opinion
No. 5-634 / 04-1421
Filed March 1, 2006
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
Ethan Palmer appeals from his conviction and sentence for first-degree robbery. REVERSED AND REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson and Shellie L. Knipfer, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Hecht, J., and Schechtman, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Ethan Palmer appeals from his conviction and sentence for first-degree robbery. We conclude the district court abused its discretion in precluding Palmer's expert witness from testifying about the results of a study performed regarding the photographic lineup shown to witnesses of the crime. We therefore reverse and remand for a new trial.
Background Facts and Proceedings.
On December 10, 2003, Rebecca Parkhurst was working at the front desk of a Holiday Inn Express in Waterloo. Around 10:30 p.m. an individual walked into the lobby and asked to speak to John Johnson. Parkhurst checked the guest registry and found no person registered under that name at the hotel. The man then asked whether the hotel had a payphone. Parkhurst directed him to the phone around a corner in a hallway. Around this time, a guest of the hotel, Jose Garcia, entered the area and saw the individual at the phone.
The individual returned to the hotel desk and asked Parkhurst to make change for the telephone and asked Parkhurst whether there was another Holiday Inn in the area. Parkhurst called another Holiday Inn and was informed no John Johnson was staying there either. Upon the man's request, Parkhurst gave him a phone book.
Shortly thereafter, Parkhurst heard the man say "Don't say anything, don't touch anything." Parkhurst looked up to see the man pointing a gun at her. He demanded money and she quickly handed him the cash drawer. She then backed away, and the man continued to repeat, "Don't say anything, don't touch anything." He proceeded to take the cash out of the drawer and ran out of the hotel.
Parkhurst immediately ran to Jose Garcia's room and told him she had just been robbed. Garcia ran out, looking for the robber, but did not find him. The two then returned to the front desk, where they called police and gave them a description of the robber. Several minutes later, police officers brought a suspect to the hotel, but Parkhurst concluded that person was not the robber.
Less than one hour later, Waterloo police officer Kerry Devine showed an array of six photographs to Parkhurst who chose the third photograph in the array as the one that resembled the robber. The individual shown in photograph number three was Ethan Palmer. Garcia was shown the same photographic array, but he was unable to identify a suspect from it.
The State charged Palmer with first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (2003). Prior to trial, he moved to suppress Parkhurst's identification by photographic lineup, contending the lineup was impermissibly suggestive and constitutionally unsound. The trial court denied the motion. During trial, Palmer called Dr. Otto MacLin to provide expert testimony on the subject of eyewitness identifications generally, and to testify about the results of a study he conducted using the photographic array that was shown to Parkhurst and Garcia. The court granted the State's motion in limine and precluded Palmer from questioning MacLin about the study. Following trial, the jury returned a verdict of guilty and the court sentenced Palmer to an indeterminate term of twenty-five years. Palmer appeals, arguing the court erred when it excluded the expert's testimony.
Scope and Standard of Review.
We review for abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 245 (Iowa 2001).
Expert Testimony About Study.
Dr. MacLin is a professor at the University of Northern Iowa and founder of the Eyewitness Laboratory within the University's Department of Psychology. He performed a study in which twenty-eight participants were provided the physical descriptions of the robber provided by Parkhurst and Garcia and the photographic lineup assembled by Officer DeVine. When asked to select from the array of the photographs matching the eyewitnesses' descriptions of the suspect, seventeen participants selected photo number three, which, as noted above, was Palmer's picture. Palmer offered Dr. MacLin's testimony tending to establish that the study results demonstrated the photographic lineup was unduly suggestive and biased against Palmer.
The State's motion in limine asserted the danger of unfair prejudice from the admission of the study results would substantially outweigh their probative value. The court granted the motion, concluding MacLin's study "is one that crosses that line between testimony that is helpful to the jury and an opinion that conveys a conclusion." However, the court's ruling noted that MacLin would be permitted to testify more generally "regarding psychological factors that bear on eye witness identification." At trial, Dr. MacLin did testify extensively as to the general problems inherent in the use of photo arrays, but he was not permitted to inform the jury of the findings from his study of the suggestiveness of the particular array used in this case.
On appeal, Palmer contends the court abused its discretion in excluding Dr. MacLin's testimony about the results of the study. We begin our analysis with Iowa Rule of Evidence 5.702 which sets the standard for admission of expert testimony. It provides 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, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion. . . ." Our supreme court has further characterized the standard of admissibility as follows:
We have a liberal tradition in the admission of opinion evidence under this rule. The trend of our cases . . . has been towards broadening the scope of admissibility of expert testimony. The question is whether the proffered evidence will assist the jury in resolving an issue. That determination necessarily requires a threshold finding of reliability because unreliable evidence cannot assist a trier of fact. . . . The district court has discretion to determine the admissibility of expert opinion testimony and reversal is justified only when the court has abused its discretion.
State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994) (citations and quotation marks omitted).
Having reviewed the broad principles controlling the admissibility of expert testimony generally, we now turn to a discussion of the authorities which set the parameters for admission of the specific kind of evidence offered here — expert testimony bearing upon the reliability of eyewitness identifications. Our supreme court has rejected a per se rule excluding all expert testimony on eyewitness identifications, and has instead held the "exclusion of expert testimony is a matter committed to the sound discretion of the trial court. . . ." State v. Schutz, 579 N.W.2d 317, 320 (Iowa 1998).
The State's motion in limine claimed Professor MacLin's study was inherently unreliable and therefore properly excluded from evidence. First, the study participants were not given the choice to find none of the six photographs consistent with the descriptions of the suspect, an option that was given to Parkhurst and Garcia when they viewed the array. Second, while the study participants were provided only the substance of Parkhurst's and Garcia's verbal descriptions of the robbers, the State posits that Parkhurst's selection of Palmer's photograph was based on the entire body of her impressions and memories gained during the course of the robbery. Thus, because the study participants' selections of photographs from the array were based only on Parkhurst's and Garcia's verbal descriptions of the suspect, the State contended in the district court that Dr. MacLin's testimony about the results of the study should be excluded from evidence because the experience of the study participants did not "parallel the real life situation that existed for Ms. Parkhurst."
In our view, the State's challenge to Dr. MacLin's testimony about the results of the study was appropriately directed to the weight of the evidence, but not its admissibility. We believe the evidence could have assisted the jury as they decided what weight should be given to Parkhurst's selection of Palmer's photo from the array. Because Parkhurst's identification was the only evidence linking Palmer to the robbery, the question of whether Parkhurst's selection of Palmer's photograph from the array and her subsequent in-court identification of Palmer were tainted by the unfairly suggestive nature of the array was a crucial aspect of the defense.
Our decision is significantly affected by the fact that the accuracy of Parkhurst's identification of Palmer was the crucial fighting issue in the case. The State offered no admissions, DNA evidence, seized stolen cash, clothing, or other inculpatory evidence linking Palmer to the robbery. Palmer's conviction relied exclusively on uncorroborated eyewitness testimony.
In People v. McDonald, 690 P.2d 709, 726 (Cal. 1984), a case cited favorably by our supreme court in Schutz, the California Supreme Court held it was an abuse of discretion for the trial court to exclude expert testimony as to various psychological factors that may affect the reliability of eye witness testimony. That court stated:
[w]hen an eye witness identification of the defendant is a key element of the prosecution's case but it is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.
McDonald, 709 P.2d at 727 (emphasis added). Palmer has also cited this court to cases from other jurisdictions admitting expert testimony regarding eyewitness identifications when those identifications were a central or exclusive part of the State's case. See, e.g., State v. Chapple, 660 P.2d 1208, 1224 (Ariz. 1984) (holding it was an abuse of discretion to exclude expert testimony where "identification [was] the one issue on which the guilt or innocence of defendant hinged"); People v. Campbell, 847 P.2d 228, 235 (Colo.Ct.App. 1992) (deeming the expert testimony admissible where, other than the eyewitness identification, there "was no other evidence linking defendant to the robbery"); State v. Whaley, 406 S.E.2d 369, 372 (S.C. 1991) ("[A]n expert's testimony is admissible where, as here, the main issue is the identity of the perpetrator, the sole evidence of identity is eyewitness identification, and the identification is not substantially corroborated by evidence giving it independent reliability."). Due to the absence of other evidence corroborating Parkhurst's identification, we believe Professor MacLin's testimony addressing the suggestiveness of the photographic array shown to Parkhurst when she first inculpated Palmer was of extraordinary importance to the defense.
As we have already noted above, the district court excluded Dr. MacLin's testimony on the specific ground that it "crosse[d] that line between testimony that is helpful to the jury and an opinion that conveys a conclusion." Expert testimony directly expressing an opinion on the credibility of a witness is, of course, not admissible. State v. Allen, 565 N.W.2d 333, 338 (Iowa 1997). We do not share the same concern as the district court in this case. In MacLin's offer of proof, he did not comment directly on Parkhurst's identification, and did not mention her by name. Rather, his testimony focused on the results of his study and its findings tending to show the suggestiveness of the photographic lineup.
Accordingly, in consideration of Iowa's liberal tradition in the admission of expert testimony, the expanding body of case law allowing the introduction of such expert testimony bearing upon the reliability of eyewitness identifications, and the fact that the only evidence implicating Palmer was Parkhurst's eyewitness identification, we conclude the district court abused its discretion in excluding Dr. MacLin's testimony about the study. The importance of such evidence to the defense and the prejudice resulting to Palmer as a consequence of its exclusion were great, while the likelihood of unfair prejudice to the State as a consequence of its admission was small. The State's claims as to the unreliability of Dr. MacLin's study may be thoroughly explored on retrial through cross-examination and responsive expert testimony.
Finally, we believe our resolution of this issue is consistent with the rationale of State v. Folkerts, 703 N.W.2d 761(Iowa 2005). Although the specific issue presented there was whether a defendant is required to be present at the deposition of an eyewitness to a crime when an eyewitness is questioned about the identity of the perpetrator of a crime, our supreme court noted the developing scholarship and judicial experience calling into question the reliability of eyewitness identifications. Folkerts, 703 N.W.2d at 765. Studies have shown the primary cause for the conviction of innocent people in our criminal justice system is mistaken eyewitness identification. Id., citing Gary L. Wells, Eyewitness Identification Evidence: Science and Reform. Courts are consequently properly cautioned to ensure that identifications are not the product of unnecessarily suggestive identification procedures. Id. Where unfair suggestiveness of an identification procedure is alleged, we believe defendants should be given appropriate latitude to explore and expose suggestiveness through the adversarial process. Under the circumstances of this case, the challenged testimony of Dr. MacLin should have been received subject to the right of the State to vigorously cross-examine the witness and otherwise respond on rebuttal. We therefore reverse and remand for a new trial.