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Limiting Cross Examination By Defense Counsel Warrants Reversal

People v. Oddone

New York Court of Appeals

Decided December 12, 2013

2013 NY Slip Op08291

The error in limiting counsel’s cross-examination of the witness was important enough to justify reversal where the issue of how long the defendant was choking the victim was central to the issue of culpability.  

Issue: three evidentiary issues were presented to the Court:

Defendant challenges the following evidentiary rulings of the trial court:

  1. the doctor who performed an autopsy on Reister’s body, was permitted to testify that in his opinion Reister’s neck had been compressed for “something in the range of 2, 3, 4 minutes.”
  2. A defense witness, testified that the duration of the part of the incident she observed “could have been a minute or so,” defense counsel was not allowed to refresh her recollection with a prior statement that put the same interval at “maybe 6 to 10 seconds.”
  3. An expert in eyewitness observation, was not permitted to testify that eyewitnesses routinely overestimate, by a large margin, the duration of relatively brief events.

Holding: the Court of Appeals held that the conviction must be reversed and remanded because during the testimony of a witness that was not sure of the duration of the choke hold on the victim, the defense was not permitted by the trial court to refresh the recollection of that witness with the same witness’s previous contradictory statement.  Because the length of the choke hold was an important issue, the Court found that the trial court’s exclusion of this warranted a new trial.

Facts: Defendant was convicted of manslaughter in the first degree for causing the death of a man by holding him in a headlock. The duration of the headlock was an important issue at trial.

Andrew Reister, was a bouncer in a bar. On the night in question, defendant and a young woman were in the bar, dancing on a table. Reister asked defendant to get off the table, defendant refused, and Reister pushed him off. There followed a fight. In short order, defendant got behind Reister and put his arms around his neck; one of defendant’s hands was grasping the other. After an interval, Reister fell to the floor and defendant fell on top of him, not releasing his grip, though Reister seemed to onlookers to be unconscious. Several people screamed at defendant to let Reister go, and some tried without success to pull defendant away. Finally, defendant let go and ran out of the bar, leaving Reister unconscious on the floor. Reister was declared brain dead two days later.

Defendant was indicted for murder and relied on a defense of justification (self-defense). At his trial, the People asked seven of their witnesses to estimate the duration of the headlock. The estimates varied, but most put the total time, beginning when defendant’s arms first went around Reister’s neck and ending when he released him, at somewhere near three minutes.

The jury acquitted defendant of murder, but convicted him of manslaughter in the first degree (causing death with the intent to cause serious physical injury as a lesser included offense. The Appellate Division affirmed. We now reverse and order a new trial.

Wilson, a deputy medical examiner, inferred a 2-4 minute duration for the headlock principally from two facts: his own observation at the autopsy of “petechiae” — red spots caused by bursting of blood vessels — on and around Reister’s eyes; Wilson testified:

“ In my experience and understanding of how this process occurs an injury of this sort would take matter of a few minutes, 2, 3 perhaps 4, with neck compression on type some kind of a struggle”.

Flynn, a waitress at the bar where the fatal event took place, saw part of the incident and later told an insurance company investigator that the part she saw lasted “for maybe 6 to 10 seconds.” The defense did call her, and asked essentially the same question the insurance investigator had asked: On the witness stand, Flynn gave a different answer: “I didn’t have a watch. I wasn’t keeping track of time. But it could have been a minute or so. I don’t know.” Defense counsel tried to show Flynn her previous statement to refresh her recollection, but was not permitted to do so. The trial court ruled that Flynn had “given no indication she needs her memory refreshed.”

Legal Analysis: The trial court erred when it did not allow defense counsel to refresh the witness’ recollection with the prior statement. When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one. The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection.  The Court of Appeals concluded that the error in limiting counsel’s examination of her was important enough to justify reversal.

The Court of Appeals found that the flaw in defendant’s reasoning with regard to the medical testimony was that the defense tried to exclude expert medical testimony because there were no scientific studies, articles or books to support that testimony.  However, Wilson did not claim to rely on any established scientific principle. He made clear that his testimony was based on his personal “experience”. Such evidence is not barred by Frye, “An expert opinion based on personal training and experience is not subject to a Frye analysis” and is admissible testimony.

Defendant sought to call Penrod, a psychology professor, “as an expert on the issue of eyewitness observations,” explaining in a detailed offer of proof, accompanied by an affidavit from Penrod, what he would testify to. Penrod said in his affidavit:

“It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less.”

“Theoretical and empirical investigation of duration estimations date back to the nineteenth century with Vierordt’s (1868) discovery that short intervals tend to be overestimated and longer ones under-estimated. Commonly referred to as ‘Vierordt’s Law.’

Defendant argues that the exclusion of expert testimony about “Vierordt’s Law” was error.

We must assume on this record that “Vierordt’s Law” is a generally accepted scientific principle. The proposition that estimates of the duration of brief incidents tend to err significantly on the high side is not one within the ken of the average juror. And the accuracy of witnesses’ estimates of duration was undoubtedly relevant to this case.

The People chose to put in much evidence of duration, from fact and expert witnesses, and relied on it heavily. This might well have justified the trial court in allowing Penrod to give the testimony defendant proffered. Whether it was an abuse of discretion to exclude that testimony is now — since we reverse the conviction on other grounds — an academic question.