Brief Bank # B-674 (Re: F 2.40 n1 [Character Evidence: Right to Expert Testimony].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and County of
Respondent, San Joaquin
No. SCO00000
vs.
JOHN DOE,
Defendant and
Appellant.
__________________________________________/
APPELLANT’S OPENING BRIEF
APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT OF THE STATE OF
CALIFORNIA, ENTERED SEPTEMBER 23, 1993.
HONORABLE NELS B. FRANSEN, JUDGE.
DALE DOMBKOWSKI
State Bar No. 99613
3145 Geary Blvd., No. 604
San Francisco, CA 94118
(415) 759-8 555
Attorney for Appellant
John Doe
By appointment of the
Court of Appeal under the
Central California
Appellate Program’s
Independent Case System.
I.
APPELLANT’S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL
COURT COMMITTED PREJUDICIAL ERROR IN EXCLUDING DR. HANNON’S
EXPERT OPINION TESTIMONY THAT APPELLANT WAS NOT LIKELY TO HAVE
COMMITTED CHILD ABUSE.
A. The Trial Court Erred In Excluding Dr. Hannon’s Expert Opinion Testimony That Appellant Was Not Likely To Have Committed Child Abuse.
Appellant offered Dr. Hannon’s expert testimony that based on the MMPI, the Rorschach test, the clinical examinations of appellant, the knowledge he has in the field of child abuse, the literature he’s read, and the evaluation of appellant’s wife Mr.s Doe, his opinion was that appellant was not likely to have committed child abuse. (RT 1529-1531, 1534.)
After lengthy foundational hearing testimony by Dr. Hannon (RT 1545-1585), the trial court immediately ruled, “I’ll not allow him to testify as to whether this defendant is one whols likely to commit or not commit child abuse. Keep that out.” (RT 1586.) [Footnote 1]
The trial court clearly erred.
In People v. Stoll, supra, 49 Cal.3d 1136, the defendants Grafton and Palomo, charged with sex offenses against children, offered expert opinions based on the results of personal interviews and psychological testing, including the MMPI. Among the opinions excluded by the trial court was the expert’s opinion’s conclusion “‘that it is unlikely . . . she would be involved in the events she’s been charged with.’” (Id., at p. 1149, italics in Stoll.) Stoll held that the trial court prejudicially erred in excluding “expert opinion testimony that neither Grafton nor Palomo was the ‘type of person’ to commit the charged acts.” (Id., at p. 1162.)
The Supreme Court has summarized the holding of Stoll very clearly: “[T]he defendant may be permitted to introduce expert character evidence, based on standardized tests and personal interviews, to the effect that his personality profile does not include a capacity for deviant behavior against children. (See People v. Stoll (1989) 49 Cal.3d 1136, 1161.)” (People v. Jones (1990) 51 Cal.3d 294, 320.)
Thus, “[i]t is now settled that psychological opinions based upon personal examination and an analysis of accepted psychological tests, such as the MMPI and MCMI, may be admitted as character evidence tending to show that an individual was or was not likely to have committed a particular act”. (People v. Ruiz (1990) 222 Cal.App.3d 1241, 1244.)
Here, the trial court excluded appellant’s proffered psychological opinion that, based upon personal examination and an analysis of accepted psychological testing, including the MMPI and Rorschach 8 [Footnote 2] test, appellant was not likely to have committed child abuse. The ruling was clearly contrary to “settled” authority.
B. Appellant’s Convictions Should Be Reversed Because The Erroneous Exclusion Of Dr. Hannon’s Opinion That Appellant Was Not Likely To Have Committed Child Abuse Was Prejudicial Error.
1. The Exclusion of Defense Evidence Violated The Due Process Clause And The Sixth Amendment Right To Present A Complete Defense, Which Requires Reversal Unless The Error Was Harmless Beyond A Reasonable Doubt.
People v. Stoll, supra, 49 Cal.3d 1136, 1163, reversed because the Court considered it reasonably probable that the erroneous exclusion of the proffered testimony affected the judgment. (People v. Watson [1956] 46 Cal.2d 818, 836.)”
Because Stoll reversed by application of the Watson test, the Court did not reach the question of whether the error violated the federal constitution. An analysis of the error shows that the error here violated the federal constitution and triggers the closer scrutiny of whether the error was harmless beyond a reasonable doubt.
In holding that the trial court had erred in foreclosing a defendant’s efforts to introduce testimony about the environment in which the police secured his confession, the United States Supreme Court held: “Whether rooted directly in the Due Process Clause of The Fourteenth Amendment, (Chambers v. Mississippi [(1973) 410 U.S. 284], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, (Washington v. Texas, 388 U.S. 14, 23 (1967) Davis v. Alaska, 415 U.S. 308 (1974)), the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ (California v. Trombetta (1984] 467 U.S.[479], at 485; cf. Strickland v. Washington, 466 U.S. 668, 684-685 (1984) (‘The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment.’) We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. (In re Oliver, 333 U.S. 257, 273 (1948); Grannis v. Ordean, 234 U.S. 385, 394 (1914).” (Crane v. Kentucky, supra, 476 U.S. 683, 690.)
“As we noted just last Term, ‘[o]ur cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.’ Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). Few rights are more fundamental than that of an accused to present witnesses in his own defense, see, e.g., Chambers v. Mississippi, supra, 410 U.S. 284, 302. Indeed, this right is an essential attribute of the adversary system itself.
“‘We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.’ (United States v. Nixon 418 U.S. 683, 709 (1974).)
“The right to compel a witness’ presence in the courtroom could not protect the integrity of the adversary process if it did not embrace the right to have the witness’ testimony heard by the trier of fact.” (Taylor v. Illinois (1988) 485 U.S. .983, 408-409 [emphasis added].)
“The right of the defendant to present evidence ‘stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.’ (Washington v. Texas, supra, 388 U.S. 14), at 18.” (Id., at 409.)
Our state Supreme Court has interpreted Crane v. Kentucky, supra, 476 U.S. 683, 690, to find a Due Process or Sixth Amendment violation when the trial court erroneously excludes evidence “central to the defendant’s claim of innocence.”‘ (People v. Roberts (1992) 2 Cal.4th 271, 302.)
That is exactly what happened here. The trial court violated appellant’s Due Process and Sixth Amendment rights to present a complete defense and to undergo a fair trial by excluding evidence central to appellant’s claim of innocence.
Appellant sought to argue a defense that he was not guilty of the crimes the prosecution sought to prove solely by circumstantial evidence, because the commission of the charged acts was entirely inconsistent with his character, and indeed, was consistent with the character of his wife, Mrs. Doe. (See RT 1852, 1857, 1880, where appellant argued to the jury that the prosecution had presented solely a circumstantial evidence case; RT 1853, 1855-1856, where appellant referred to the evidence of his character; RT 1853, where appellant noted that the evidence of appellant’s personality evaluation was limited; RT 1853-1880, where appellant argued that Mrs. Doe did it; RT 1855, where appellant argued that appellant was covering up for her.)
Although appellant was permitted to call numerous lay character witnesses, the excluded expert testimony would have carried far more weight with the jury than the lay opinions of appellant’s family and friends. Not only could the jury discount the value of appellant’s lay witnesses as biased, but the California Supreme Court recognizes that expert opinion testimony on character such as that excluded here carries more weight with a jury than does lay opinion on character. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1312: “In addition, it is not unlikely that the jury would have given less weight to the lay testimony excluded here than to the expert opinion excluded in Stoll and Jones [ [Footnote 3]/]; while that difference does not affect its admissiblilty, it may affect its weight for purposes of prejudice analysis”.)
Thus, the erroneous exclusion of Dr. Hannon’s opinion that appellant was not likely to have committed the abuse was entirely central that defense, and thus to appellant’s claim of innocence. He had to defend against the circumstantial evidence who-done-it case without that essential defense evidence that an expert psychologist had tested and examined him and considered him unlikely to have committed the abuse. [Footnote 4]
Since the record convincingly demonstrates that the erroneously excluded expert opinion that appellant was unlikely to have committed the abuse was central to appellant’s claim of innocence, the erroneous exclusion of the evidence violated appellant’s Fourteenth Amendment Due Process and Sixth Amendment rights to present a complete defense and to undergo a fair trial.
2. The Erroneous Exclusion of The Evidence Was Not Harmless Beyond A Reasonable Doubt.
Since the error violated appellant’s federal constitutional rights, appellant’s conviction should be reversed unless the error can be shown to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23.) The burden is on the beneficiary of the error “either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” (Ibid., see also People v. Spencer (1967) 66 Cal.2d 158, 168.)
The question is not whether there was sufficient evidence on which to convict appellant. The question is whether there is a reasonable possibility that the error might have contributed to the conviction. (Fahy v. Connecticut (1963) 375 U.S. 85, 86-87.)
Here, the erroneous exclusion of Dr. Hannon’s opinion that appellant was not likely to have committed child abuse, evidence central to appellant’s defense, was not harmless beyond a reasonable doubt because the record demonstrates (1) that the prosecution’s circumstantial evidence case was relatively balanced by the remaining defense case, (2) that the jury and the trial court found the case close and (3) that the prosecutor used the erroneous exclusion of the evidence to misrepresent the truth to the jury and to persuade them to find appellant guilty on entirely deceitful grounds.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and County of
Respondent, San Joaquin
No. SCO00000
vs.
JOHN DOE,
Defendant and
Appellant.
_________________________________/
APPELLANT’S REPLY BRIEF
APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT OF THE STATE OF
CALIFORNIA, ENTERED SEPTEMBER 23, 1993.
HONORABLE NELS B. FRANSEN, JUDGE.
DALE DOMBKOWSKI
State Bar No. 99613
3145 Geary Blvd., No. 604
San Francisco, CA 94118
(415) 759-8555
Attorney for Appellant
John Doe
By appointment of the
Court of Appeal under the
Central California
Appellate Program’s
Independent Case System.
B. Appellant’s Convictions Should Be Reversed Because The Erroneous Exclusion Of Dr. Hannon’s Opinion That Appellant Was Not Likely To Have Committed Child Abuse Was Preiudicial Error.
1. The Exclusion Of Defense Evidence Violated The Due Process Clause And The Sixth Amendment Right To Present A Complete Defense, Which Requires Reversal Unless The Error Was Harmless Beyond A Reasonable Doubt.
As explained at pages 43-47 of appellant’s opening brief, the trial court violated appellant’s Due Process and Sixth Amendment rights to present a complete defense and to undergo a fair trial by excluding evidence central to appellant’s claim of innocence. (People v. Roberts (1992) 2 Cal.4th 271, 302.)
Appellant sought to argue a defense that he was not guilty of the crimes the prosecution sought to prove solely by circumstantial evidence, because the commission of the charged acts was entirely inconsistent with his character, and indeed, was consistent with the character of his wife, Mrs. Doe. (See RT 1352, 1857, 1880, where appellant argued to the jury that the prosecution had presented solely a circumstantial evidence case; RT 1853, 1855-1856, where appellant referred to the evidence of his character; RT 1853, where appellant noted that the evidence of appellant’s personality evaluation was limited; RT 1853-1880, where appellant argued that Mrs. Doe did it; RT 1855, where appellant argued that appellant was covering up for her.)
Although appellant was permitted to call numerous lay character witnesses, the excluded expert testimony would have carried far more weight with the jury than the lay opinions of appellant’s family and friends. Not only could the jury discount the value of appellant’s lay witnesses as biased, but the California Supreme Court recognizes that expert opinion testimony on character such as that excluded here carries more weight with a jury than does lay opinion on character. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1312: “In addition, it is not unlikely that the jury would have given less weight to the lay testimony excluded here than to the expert opinion excluded in Stoll and Jones [Footnote 6] while that difference does not affect its admissiblilty, it may affect its weight for purposes of prejudice analysis”.)
Thus, the erroneous exclusion of Dr. Hannon’s opinion that appellant was not likely to have committed the abuse was entirely central to that defense, and thus to appellant’s claim of innocence. He had to defend against the circumstantial evidence who-done-it case without that essential defense evidence that an expert psychologist had tested and examined him and considered him unlikely to have committed the abuses. [Footnote 7]
Since the record convincingly demonstrates that the erroneously excluded expert opinion that appellant was unlikely to have committed the abuse was central to appellant’s claim of innocence, the erroneous exclusion of the evidence violated appellant’s Fourteenth Amendment Due Process and Sixth Amendment rights to present a complete defense and to undergo a fair trial.
Respondent, without addressing Roberts and appellant’s argument that the error violated appellant’s constitutional rights by excluding testimony central to appellant’s defense, declares that “if appellant’s theory were correct, due process would reach out to incorporate virtually any rejected evidence proffered by a defendant.” (RB 23.) Respondent thereby misrepresents appellant’s argument by failing to address appellant’s application of the Roberts boundaries to show that here, unlike many other cases, appellant’s constitutional rights were violated because here, unlike many other cases, evidence central to appellant’s defense was excluded erroneously.
2. The Erroneous Exclusion Of The Evidence Was Not Harmless Beyond A Reasonable Doubt.
At pages 47 to 62 of appellant’s opening brief, appellant explained in detail that the error was not harmless beyond a reasonable doubt because (a) the circumstantial prosecution case against appellant was relatively balanced by the remaining defense case, (b) the jury and the trial court demonstrated that they considered the question of appellant’s culpability close, (c) the prosecutor used the erroneous exclusion of the evidence to prejudicially misrepresent the truth to the jury and to persuade them to find appellant guilty on entirely deceitful grounds.
Respondent ignores this argument and proclaims the prosecution evidence “overwhelming” and the error harmless. Appellant submits that respondent’s callow reliance on conclusionary descriptions and failure to address appellant’s detailed argument demonstrates respondent’s inability to show that the error was harmless beyond a reasonable doubt. Consequently, appellant’s convictions should be reversed. (Chapman v. California (1967) 386 U.S. 18, 23.)
3. Even If The Erroneous Exclusion Of Evidence Did Not Constitute Federal Constitutional Error, Appellant’s Convictions Should Be Reversed Because It Is Reasonably Probable That Appellant Would Have Received More Favorable Verdicts Absent The Erroneous Exclusion Of The Evidence.
Relying on appellant’s analysis of the prejudicial effect of the error under the Chapman standard in appellant’s preceding argument, appellant contends that the error was also prejudicial under the less stringent People v. Watson (1956) 46 Cal.2d 818, standard because it is reasonably probable that appellant would have received more favorable verdicts absent the erroneous exclusion of the evidence. (See pages.62 to 63 of appellant’s opening brief.)
Appellant submits that respondent’s callow reliance on conclusionary descriptions and failure to address appellant’s detailed argument demonstrates that respondent finds it impossible to dispute appellant’s argument that the error was prejudicial.
FOOTNOTES:
Footnote 1: The trial court also excluded Dr. Hannon’s opinion that Mrs. Doe’s character was more consistent with one who would have inflicted the injuries. See Argument II, post.
Footnote 2: See People v. Stoll, supra, 49 Cal.3d 1136, 1154.
Footnote 3: People v. Jones (1954) 42 Cal.2d 219.
Footnote 4: Also central to the defense was Dr. Hannon’s opinion that Mrs. Doe was more likely to have committed the abuse than was appellant. This was also erroneously excluded. The issue is raised in argument II, post.
Footnote 5: Here appellant cites primarily to the prosecutor’s argument to the jury. In appellant’s statement of the facts, all of the testimony relating to this argument is detailed in as chronological an order as possible.
Footnote 6: People v. Jones (1954) 42 Cal.2d 219.
Footnote 7: Also central to the defense was Dr. Hannon’s opinion that Mrs. Doe was more likely to have committed the abuse than was appellant. This was also erroneously excluded. The issue is raised in argument II, post.
