Court of Appeals No. A-8424.
November 3, 2004.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-98-1131 Cr.
Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Carl E. Brown of first-degree murder and tampering with evidence for killing Judy Burgin and then covering up the homicide. Brown appeals, arguing that the superior court improperly allowed the prosecutor to preempt a juror in violation of Batson v. Kentucky. Because the superior court found that the State exercised the peremptory challenge in a race-neutral manner, this argument fails.
AS 11.41.100(a)(1) AS 11.56.610(a)(1), respectively.
Brown also argues that the court improperly admitted a pathologist's testimony about the likely state of mind of the person inflicting the injuries that killed Burgin. We conclude that even if the superior court erred, the error is harmless. Therefore, we affirm Brown's conviction.
Background facts and proceedings
We discussed the facts of Brown's case in an earlier decision reversing Brown's convictions. As described in that opinion, Burgin lived with Brown in a combative relationship. Burgin disappeared from Anchorage in April 1993. A body, later identified as Burgin's remains, was found at the end of August 1993 near Grey's Creek at mile 81.5 of the Parks Highway. In 1998, after a long investigation, the grand jury indicted Brown for first-degree murder and tampering with evidence. Brown was convicted of both charges at his retrial.
Brown v. State, Alaska App. Memorandum Opinion and Judgment No. 4369 at 2-6 (April 4, 2001), 2001 WL 322199 at *1-3.
Discussion Brown's Batson challenge
During jury selection, the State announced that it wished to peremptorily challenge a potential juror who was black. Brown objected, arguing that the court should refuse to allow the challenge. Brown claimed that the prosecutor's challenge was based on the juror's race.
Superior Court Judge Michael L. Wolverton reserved ruling on the issue until the parties had briefed and argued the claim. Ultimately, Judge Wolverton found that the prosecutor had exercised the peremptory challenge for race-neutral reasons.
In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution bars a prosecutor from challenging a juror on the basis of the juror's race. In Gottschalk v. State, we discussed the three steps involved in resolving a Batson challenge: first, the defendant must make a prima facie case of racial discrimination; second, (if the requisite showing has been made) the party defending the challenge must provide a race-neutral explanation for the decision to challenge the juror in question; and third, the trial judge must decide whether the explanation offered by the party is valid. We noted that the ultimate question for the trial judge is not whether the party's reasons for the challenge are objectively reasonable; rather, the question is whether the articulated reasons are the attorney's true reasons for the challenge or whether they are "an invention to mask the attorney's discriminatory intent." If the trial judge finds that the attorney is acting in good faith, the Batson challenge should be denied even if the party's reasons for exercising the challenge are "not . . . persuasive or even plausible."
36 P.3d 49 (Alaska App. 2001).
Id. at 53-55.
Id. at 55.
In this case, the prosecutor offered several reasons for challenging the juror. In an oral ruling, Judge Wolverton discussed two of the reasons — that the prosecutor thought that the juror's facial expression showed hostility to the prosecutor when the prosecutor asked the juror about domestic violence, and that the juror's union involvement suggested that the juror would be "anti-establishment" and "anti-government." Judge Wolverton found that these two reasons were race-neutral and that the prosecutor had exercised the peremptory challenge for those reasons in good faith. When Judge Wolverton announced his ruling, he asked if there was anything else to take up, and neither party requested anything else from the judge.
We have examined the record and conclude that Judge Wolverton's findings are not clearly erroneous. We thus affirm the denial of Brown's Batson challenge.
Brown also argues that the superior court must be reversed because Judge Wolverton did not address each of the specific reasons that the prosecutor offered for exercising the peremptory challenge. But Judge Wolverton addressed the ultimate issue of whether the prosecutor's challenge was intentionally discriminatory. He found that there had been no racially discriminatory intent by the prosecutor in this case.
Finally, because we uphold Judge Wolverton's ultimate ruling rejecting the Batson challenge, we need not address the State's claim that Brown failed to establish the first prong of Batson — a prima facie case of discrimination.
The medical examiner's testimony
Dr. Michael Propst was the pathologist who performed the autopsy on Burgin's remains. Dr. Propst testified that Burgin died as a result of multiple blows to her head. Based on the number and pattern of the blows, and on the apparent force of those blows (judging from the severity of the resulting injuries to Burgin's skull), Propst testified in response to the prosecutor's questions that the pattern of injury was "consistent with homicidal intent."
At trial, Brown's defense was that he had had no role in Burgin's death — that Burgin had left their residence without telling Brown where she was going, and that Burgin later died at the hand of some unknown person. Nevertheless, Brown filed a motion in limine to prevent Propst from testifying about his conclusion that Burgin had been the victim of an intentional homicide.
In support of this motion in limine, Brown argued that any testimony about the mental state of the person who attacked Burgin was "outside a medical examiner's scope of knowledge":
Dr. Propst has no information as to whether the person who committed this crime was so intoxicated or drugged out that he believed he was chopping down a tree [when the person attacked Burgin]. [Dr. Propst] has no information to suggest that the person who killed Ms. Burgin was in his or her right mind. Accordingly, he cannot opine what [that] person's intent might [have been].
Judge Wolverton denied Brown's request, ruling that the proposed testimony was within the "potential knowledge of a forensic pathologist" and that the testimony would not be unfairly prejudicial to Brown.
During direct examination, Propst refrained from expressly asserting that whoever had attacked Burgin had acted with an intent to kill. Instead, Propst testified only that the physical injuries to Burgin's skull were "consistent" with an intent to kill:
Prosecutor: Based on your observations, what kind of force would be required to make the kinds of injuries you observed on her skull?
Dr. Propst: The magnitude of force is large here, such as an adult swinging a baseball bat at this person.
Prosecutor: And was the magnitude of force in this case such that you could make any determination about the intent of the person inflicting the blows?
Dr. Propst: The pattern of injury, when coupled with the magnitude of force, is consistent with homicidal intent.
After this exchange, the prosecutor moved on to other areas.
It was during the ensuing cross-examination, prompted by questions from Brown's attorney, that Dr. Propst directly asserted that Burgin's injuries indicated that her assailant had acted with an intent to kill.
Defense Attorney: Can you tell whether [the assailant] was angry at Judy Burgin?
Dr. Propst: This blow was inflicted with homicidal intent.
Defense Attorney: Okay, but homicidal intent — homicide means man killing man, correct?
Dr. Propst: Or woman. [It could be] killing a woman.
Defense Attorney: Sure, sorry. ["Man"] in the broad sense of the word. That's what homicide means, right?Dr. Propst: [One] person killing another.
Defense Attorney: Okay. And can you tell me whether that person who inflicted this damage was just completely so crazy that they thought they were, you know, opening up a cantaloupe?Dr. Propst: I cannot.
Defense Attorney: Can you tell me whether this person was so high on drugs that they thought that, you know, somebody else was coming at them?Dr. Propst: I cannot.
Defense Attorney: Okay. Can you tell me whether the person who did this was so afraid because they thought this person was a burglar?Dr. Propst: I cannot.
Defense Attorney: Okay. So you really don't know what the person's intent was, do you?
Dr. Propst: The intent was to make this person dead.
The defense attorney then questioned Propst about some reference books on forensic pathology. In particular, the defense attorney challenged Propst to "point to any chapter in these books where it talks about the medical examiner's ability to tell what [a person's intent] was[.]" Propst responded:
Dr. Propst: [T]he first chapter of each of these books [discusses at length] the role of the medical examiner in determining the manner of death, whether homicide, accident, suicide, natural, or undetermined. . . . [A]nd it's that knowledge and background that I use in making [that] determination[.] [A]nd in this case, . . . I used [that knowledge and training to form] my opinion that this person died of . . . homicidal violence.
Brown's attorney did not attack Propst's answer. Instead, the defense attorney returned to her earlier theme that it was impossible to know whether Burgin's assailant might have been suffering from a mental illness that could provide an alternative explanation of the assailant's mental state:
Defense Attorney: Okay, and, again, homicide is person killing person[?]Dr. Propst: That's correct.
Defense Attorney: And you've already testified that you don't know whether the person who killed Judy Burgin was out of their mind[,] thinking that they were going after a cantaloupe, correct?Dr. Propst: I have testified to that effect.
Defense Attorney: Okay. And so you do not know by looking at the skelet[al] remains whether that person intended to kill, correct?
Dr. Propst: The blow was inflicted with such intensity that the manner of death is clearly homicide in this case.
Defense Attorney: . . . ["homicide"] meaning that somebody intended to kill another person[?]Dr. Propst: That's correct.
On appeal, Brown renews his argument that Propst's testimony on this point — his conclusion that Burgin's assailant had acted with intent to kill — was an improper expression of opinion on a matter outside a medical examiner's expertise. Brown concedes that Propst could properly testify concerning "the nature and extent of Burgin's injuries," and that Propst could also "extrapolate from [these] facts and render . . . opinion[s] on . . . issue[s] in the case." But Brown argues that Propst could not properly give an opinion concerning the assailant's homicidal intent (or lack of homicidal intent).
According to Brown, this opinion did not rest on Propst's expertise. Rather, Brown asserts, Propst's opinion about whether Burgin's assailant acted with an intent to kill rested on deductions that any lay person might draw equally well from the nature of Burgin's injuries. Therefore, this issue should have been left to the jury, and Propst should have been barred from expressing an opinion on this matter.
See Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 780-81 (Alaska 1995).
We consider this issue to be close. As Dr. Propst noted in his testimony, one of a medical examiner's main jobs is to determine whether a death is attributable to natural causes or to accident, suicide, or homicide. Thus, expert testimony from pathologists and other doctors is commonly received on the issue of whether a victim's injuries were inflicted by an assault as opposed to having been received in a fall or caused by some other type of accident or misadventure.
See, e.g., Dague v. State, 81 P.3d 274, 275-76 (Alaska 2003); Armstrong v. State, 502 P.2d 440, 443 n. 4 (Alaska 1972); Sipary v. State, 91 P.3d 296, 302 (Alaska App. 2004); Brodine v. State, 936 P.2d 545, 547 (Alaska App. 1997); Sharp v. State, 837 P.2d 718, 720 (Alaska App. 1992). Both the prosecution and the defense have made use of such evidence. See Phillips v. State, 70 P.3d 1128, 1140 (Alaska App. 2003) (defense offered a pathologist's testimony that the victim's injuries were superficial and inconsistent with the State's theory of death by smothering or strangling).
In addition, pathologists or medical examiners frequently are allowed to testify that any one of a series of blows or wounds would have proved fatal, or that the first (or first few) in a series of blows would have incapacitated the victim (thus indicating that the assailant continued to inflict injury on the victim after the victim was helpless). Depending on the circumstances of the case, such testimony can be essentially equivalent to an assertion that the assailant acted with premeditation or with the intent either to kill or to inflict great bodily harm.
See, e.g., Segura v. United States, 261 F. 12, 15 (9th Cir. 1919); Hill v. Commonwealth, unpublished, 2004 WL 1123868 at *2 (Ky. May 20, 2004); State v. Manning, ___ So.2d ___, 2004 WL 2340145 at *43 (La. Oct. 19, 2004); Davis v. State, unpublished, 2004 WL 1932781 at *4 (Tex.Crim.App. Aug. 31, 2004); State v. Arnold, unpublished, 2004 WL 22995687 at *3 (Wash.App. Dec. 22, 2003).
See, e.g., State v. Beard, 46 P.3d 1185, 1189 (Kan. 2002); People v. Duyst, unpublished, 2003 WL 21921163 at *1 (Mich.App. Aug. 12, 2003); Mann v. State, unpublished, 2003 WL 22319581 at *5 (Tenn.Crim.App. Mar. 8, 2003); Hill v. State, unpublished, 2002 WL 1997915 at *1 (Tex.Crim.App. Aug. 30, 2002). See also People v. Griffin, 815 N.E.2d 52, 60 (Ill.App. 2004); State v. Gallant, 847 A.2d 413, 415 (Me. 2004) (medical experts testifying that, although an asphyxiation victim would lose consciousness within a minute, the victim would not die unless the pressure was maintained for a significantly longer period of time).
Nevertheless, there are court decisions which support Brown's argument that a pathologist should not be allowed to express an opinion as to whether an assault was committed with a particular culpable mental state. See State v. Deal, 802 So.2d 1254, 1261-62 (La. 2001) (finding error to allow a pathologist to give an opinion as to whether the defendant acted with intent to kill or inflict great bodily harm); State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999) (finding error to allow a medical examiner to testify that he believed the victim's assailant intended to kill her rather than merely assault her); State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993) (finding error to allow a pathologist to testify that eight stab wounds and an incision severing the jugular vein "`were meant to cause the [victim's] death'"); State v. Howard, 637 P.2d 15, 17 (Mont. 1981) (finding error to allow a doctor to give an opinion about the defendant's intent, based on the injuries to the victim).
But see State v. Moseley, 449 S.E.2d 412, 439 (N.C. 1994), in which the court ruled there was no error in allowing a pathologist to testify that the victim's wounds indicated that the victim was tortured, even though this conclusion was directly relevant to the ultimate issues of whether the defendant had acted with premeditation and deliberation.
Given this case law, it may indeed have been error to allow Dr. Propst to express a direct opinion as to whether the person who had assaulted Burgin had acted with an intent to kill. We conclude, however, that even if it was error to allow Propst to give this testimony, the error was harmless.
First, as we noted earlier, Brown's defense was alibi; he claimed that he had had no role in assaulting Burgin and causing her death. Thus, the central issue in this case was to determine the identity of Burgin's assailant, not to determine the assailant's intent when committing the assault.
Second, the injuries to Burgin's skull were indisputably consistent with the conclusion that whoever perpetrated the assault had acted with an intent to kill Burgin. During the defense attorney's cross-examination of Propst, the defense attorney never suggested that it was unreasonable to infer an intent to kill from the number and nature of Burgin's injuries. Rather, the defense attorney suggested that there were other potential scenarios in which the assailant might have inflicted these injuries without intending to kill Burgin. Specifically, the defense attorney suggested the assailant might have been mentally ill or intoxicated on drugs to such an extreme degree that the assailant was unable to recognize that Burgin was a human being.
(The defense attorney also suggested that the assailant might have been so mentally ill or so intoxicated on drugs as to irrationally believe that Burgin was about to launch a murderous attack on him. However, this was not a suggestion that the assailant lacked an intent to kill; rather, it was a suggestion that the assailant's intent to kill was explainable by mental aberration.)
Third, the defense attorney's cross-examination of Propst alerted the jury to the problems involved in having a pathologist or medical examiner give an opinion concerning someone's mental state. During that cross-examination, Propst conceded that his findings regarding the injuries to Burgin's body did not rule out various different possibilities affecting the assailant's mental state — possibilities relevant to assessing the assailant's degree of legal responsibility for the homicide.
And finally, the jurors were expressly instructed that they, and not the witnesses or the attorneys, were the ultimate judges of the facts of the case — and that one of the crucial factual issues entrusted to them was to determine the culpable mental state of the person who committed this homicide.
For all of these reasons, we conclude that even if it was error to allow Dr. Propst to testify that Burgin's assailant had acted with intent to kill, this error did not appreciably affect the jury's verdict. Conclusion
See Love v. State, 457 P.2d 622, 629-32 (Alaska 1969) (in cases of non-constitutional error, the test for reversal is whether the error "appreciably affect[ed] the jury's verdict").
The judgment of the superior court is AFFIRMED.