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Carter v. State

Court of Appeals of Alaska

June 18, 2010

Lorenzo Christopher CARTER, Appellant,
v.
STATE of Alaska, Appellee.

Page 222

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.

OPINION

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 officer's testimony was proper. Some of the officer's 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 officer's 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. Lee's 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 Lee's telephone when she initially tried to call 911). [1]

However, at Carter's 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.

Lee's 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, Carter's 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 don't 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 don't have this kind of

Page 223

experience or training. They don't 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 ...


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