State v. Haskie , 240 Ariz. 269 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
Appellee,
v.
MARK HASKIE, JR.,
Appellant.
No. 1 CA-CR 15-0251
FILED 7-19-2016
Appeal from the Superior Court in Coconino County
No. S0300CR201401006
The Honorable Jacqueline Hatch, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
STATE v. HASKIE
Opinion of the Court
OPINION
Judge Patricia A. Orozco delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.
O R O Z C O, Judge:
¶1 Mark Haskie, Jr. (Defendant) appeals his convictions and
sentences for two counts of aggravated assault — domestic violence, five
counts of aggravated domestic violence, two counts of influencing a
witness, and one count of kidnapping. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Officer Jordheim of the Flagstaff Police Department
responded to a 911 call regarding domestic violence at a motel. At the
motel, Officer Jordheim met a female, P.J., whose “eyes were swollen, pretty
well bruised [with] various bruises and abrasions on her body and neck.”
P.J. told Officer Jordheim that Defendant caused her injuries after going
through her cell phone and threatening “I told you I would kill you if you
cheated on me.”
¶3 That same day, P.J. hand-wrote a statement at Officer
Jordheim’s invitation, explaining
[Defendant] . . . beat me so bad in the face and other places in
my body. He strangled me with a belt and also my [d]uffle
bag [strap]. . . . He hit me so hard he loosen[ed] my front
tooth. . . . When I was being strangled I couldn’t breath[e] at
all. . . . And this time I thought I was going to die and he kept
saying why don’t you just die.
Police also collected physical evidence from the motel room where P.J. and
Defendant had been staying, including a belt, luggage strap, bloodied
pillows and items belonging to Defendant.
1 “We view the evidence in the light most favorable to affirming the
jury’s verdicts.” State v. Ortiz, 238 Ariz. 329, 333, ¶ 2 (App. 2015).
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STATE v. HASKIE
Opinion of the Court
¶4 Defendant was arrested nearly a year later. Shortly after the
arrest, P.J. wrote two letters to the prosecutor recanting her earlier
statement to police. In those letters, P.J. explained that she was drinking
heavily at the time and suggested that her injuries occurred in a bar fight
that she could not remember. She said she lied to police and took “full
responsibility for [her] actions against [Defendant.]” She further stated that
Defendant was innocent, and she would not testify against him because the
charges were false.
¶5 Before trial, the State filed a motion in limine asking the court
to admit testimony by Dr. Ferraro, its expert witness on domestic violence.
The State intended to call Dr. Ferraro as a “cold” expert on domestic
violence to help the jury understand why “[P.J. had] continued her
relationship with the defendant, [had] given conflicting statements while
the case has been pending, and [was] reluctant to testify[.]” Defendant
objected to Dr. Ferraro’s testimony, arguing it would constitute improper
profile evidence and vouching. In reply, the State agreed to limit
Dr. Ferraro’s testimony to only “the victim’s behaviors and the common
reactions and coping strategies victims use in response to a violent
incident” that might be misunderstood by a jury. The State also proposed
a list of questions it intended to ask Dr. Ferraro at trial. Following a hearing,
the trial court permitted Dr. Ferraro’s testimony, but limited the
examination to the State’s proposed questions.
¶6 During its opening statement at trial, the State mentioned
Dr. Ferraro’s testimony, stating “you’re going to hear from Dr. Kathleen
Ferraro, who is an expert in domestic violence . . . [and she’ll] tell you that
it’s not unusual for a victim to later change their story or to even help make
a case go away.”
¶7 At trial, Officer Jordheim testified about responding to the 911
call, and the State presented photos of the motel room, items found in the
motel room and P.J.’s injuries. The State also presented recorded phone
calls Defendant made from jail, including to P.J. before she recanted. In
these conversations, Defendant dictated to P.J. an exculpatory story, and
asked P.J. and other family members to write statements corroborating the
story. Defendant also apologized to P.J., told her she was the only person
that could get him out of jail and promised to marry her when he was
released. Defendant suggested that if P.J. did not cooperate with police, the
charges against him would be dropped. During one call, P.J. said, “well
maybe you shouldn’t have tried to kill me. . . . You know exactly what you
did.”
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Opinion of the Court
¶8 Dr. Ferraro testified that she was a “cold or blind” expert,
meaning she had not reviewed any of the police reports in the case and was
not going to testify about any of the particulars of the events in the case.
The prosecutor asked a series of questions regarding characteristics of
domestic violence victims. When asked, “is it unusual for someone who
has been hurt by an intimate partner to return to that relationship[,]”
Dr. Ferraro responded, “[i]t’s not unusual. It is very common.” She
continued, “[t]here are many reasons [why,] and they vary by the
individual, of course, and the type of relationship.” Dr. Ferraro explained
that some victims of domestic violence return to their abusers out of fear,
retaliation, or threats. Other victims do not leave their abusers because of
pressure from extended family or the victim’s own shame. Dr. Ferraro
further testified that chemical dependency and alcohol abuse complicate
the decision about staying in an abusive relationship.
¶9 The prosecutor then asked “do victims ever tend to blame
themselves for what happened?” Dr. Ferraro responded:
Yes. That’s a very common response of victims of domestic
violence.
...
[P]art of it has to do with the manipulation of an abusive
partner themselves because that’s a very common dynamic of
domestic violence, is the abusive partner will turn the
violence around and say that if you hadn’t done this or you
had done that as I told you to do, this never would have
happened, so it’s your fault. And if you would just behave or
comply with my wishes and my commands, then this
wouldn’t happen.
¶10 The prosecutor asked “[i]s it unusual for victims to later
change their story?” Dr. Ferraro answered, “[n]o that is very
typical[,]”adding that occurs for many of the same reasons that a victim
would be reluctant to leave the relationship. In addition, she explained, the
victim may be afraid of violent repercussions, pressure from the abuser,
friends and extended family, intimidation to discontinue prosecution, and
emotional and psychological manipulation.
¶11 Then the following exchange took place:
Q. . . . Are there occasions when someone may initially tell
or give a report that isn’t true?
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STATE v. HASKIE
Opinion of the Court
A. Yes.
Q. . . . [I]s this incredibly common, more rare?
A. In my own research and experience, it’s very rare. But
I have seen it happen. I know that it happens. What’s much
more common is for victims to minimize and deny that it has
happened. That I see in almost every case. But the fabrication
of events I have seen that happen, but it’s unusual in the range
of cases.
Q. . . . [H]ave you ever seen efforts made to assist their
partner in terms of getting them out of trouble or trying to
make something go away, avoid accountability?
A. Yes, often.
Q. . . . Are those factors the same in terms of why women
do that?
A. They are very often the same. I’ve actually seen
women go to jail and take the responsibility for a crime that
their abusive partner has committed. And in part that is
related to the psychological manipulation . . . where the
abusive person will have them convinced that they’ll get a
much lighter sentence, that they maybe won’t get a sentence
at all.
¶12 P.J. was the State’s next witness. She testified that she was
still in a relationship with Defendant at the time of trial, she loved him and
wanted to marry him. P.J explained that she did not remember who beat
her up because she had been drinking at the time. P.J. testified that she
initially blamed Defendant for her injuries because she was jealous, but that
she in fact had cheated on him.
¶13 Before the jury began deliberations, the trial court instructed
the jurors that they were not bound by any expert opinion and should give
an opinion only the weight they believed it deserved. During closing
arguments, the prosecutor never mentioned Dr. Ferraro, nor compared any
aspect of her testimony to P.J. or Defendant.
¶14 The jury found Defendant guilty of two counts of aggravated
assault — domestic violence, five counts of aggravated domestic violence,
two counts of influencing a witness, and one count of kidnapping.
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STATE v. HASKIE
Opinion of the Court
Defendant timely appealed and we have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(A.R.S.) sections 12-120.21.A.1, 13-4031, and -4033.A.1 (West 2016).2
DISCUSSION
¶15 Defendant contends that Dr. Ferraro’s testimony constituted
impermissible offender profiling and vouching. After objecting to the
State’s motion in limine to allow Dr. Ferraro to testify, Defendant did not
object to Dr. Ferraro’s testimony at trial. “[W]here a motion in limine is
made and ruled upon, the objection raised in that motion is preserved for
appeal, despite the absence of a specific objection at trial.” State v. Burton,
144 Ariz. 248, 250 (1985). Accordingly, Defendant’s objection was
preserved for appeal, and we review the trial court’s decision to permit
Dr. Ferraro’s testimony for abuse of discretion. See State v. Ketchner, 236
Ariz. 262, 264, ¶ 13 (2014).
¶16 “[A]n expert witness may testify about the general
characteristics and behavior of [a defendant] and victim[] if the information
imparted is not likely to be within the knowledge of most lay persons.”
State v. Tucker, 165 Ariz. 340, 346 (App. 1990). Dr. Ferraro only offered
general testimony to help the jury understand the evidence. She was
unfamiliar with the facts of the case and did not offer an opinion regarding
this case. See State v. Salazar-Mercado, 234 Ariz. 590, 591, ¶¶ 2, 6 (2014).
I. Offender Profiling
¶17 Defendant argues that Dr. Ferraro’s testimony constituted
impermissible offender profiling. “Profile evidence tends to show that a
defendant possesses one or more of an ‘“informal compilation of
characteristics” or an “abstract of characteristics” typically displayed by
persons engaged in a particular kind of activity.” Ketchner, 236 Ariz. at 264,
¶ 15 (quoting State v. Lee, 191 Ariz. 542, 544-45, ¶ 10 (1998)). Profile evidence
cannot be “used as substantive proof of guilt because of the ‘risk that a
defendant will be convicted not for what he did but for what others are
doing.’” Id. at 264-65, ¶ 15 (quoting Lee, 191 Ariz. at 545, ¶¶ 11-12).
¶18 Dr. Ferraro’s testimony did not constitute impermissible
profile evidence. The Arizona Supreme Court addressed the issue of profile
evidence in the context of domestic violence for the first time in Ketchner,
2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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STATE v. HASKIE
Opinion of the Court
236 Ariz. at 264, ¶ 13. In Ketchner, an expert witness3 testified about
“characteristics common to domestic violence victims and their abusers[.]”
Id. at 264, ¶ 14. Specifically, the expert testified regarding “separation
assault” and “described risk factors for ‘lethality’ in an abusive
relationship.” Id. The Arizona Supreme Court held that the testimony was
inadmissible profile evidence because it went beyond “explain[ing]
behavior by [the victim] that otherwise might be misunderstood by a jury.”
Id. at 265, ¶ 19. Rather, the testimony “predicted an abuser’s reaction to loss
of control in a relationship.” Id. The Court found “[t]here was no reason to
elicit this testimony except to invite the jury to find that Ketchner’s
character matched that of a domestic abuser who intended to kill or
otherwise harm his partner in reaction to a loss of control over the
relationship.” Id.
¶19 Dr. Ferraro’s testimony in this case is distinguishable from
Ketchner because here, the testimony did not tend to show that Defendant
possessed one or more of an informal compilation of characteristics
typically displayed by domestic violence abusers. Instead, her testimony
was confined to the general counterintuitive behaviors of victims, and the
factors that cause such behaviors. In particular, Dr. Ferraro testified about
victims returning to an abusive relationship, and victims taking
responsibility for their abuse.
¶20 First, Dr. Ferraro testified that “[i]t’s not unusual” for
someone who has been hurt by an intimate partner to return to that
relationship. Dr. Ferraro opined “[t]here are many reasons [why,] and they
vary by the individual, of course, and the type of relationship.” She further
opined as to some of the factors that cause such behavior, such as fear,
retaliation, threats, pressure from extended family, alcohol abuse and the
victim’s own shame. Far from creating an informal compilation of
characteristics of abusers, Dr. Ferraro’s testimony helped explain
counterintuitive behavior of victims that the jury may have misunderstood.
This was especially helpful for the jury here because the nature of P.J.’s
relationship with Defendant was squarely in question. Cf. Ketchner, 236
Ariz. at 265, ¶ 19 (noting that expert testimony was not helpful to the jury
because the nature of the abusive relationship was not in question).
¶21 Second, Dr. Ferraro testified that domestic violence victims
tend to blame themselves, take responsibility for the abuse, or help their
abusive partner avoid accountability. She opined that these behaviors are
3 Dr. Ferraro was also the expert who testified in Ketchner. See 236
Ariz. at 264, ¶ 13.
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STATE v. HASKIE
Opinion of the Court
a result of manipulation by the abuser. Defendant argues that this
testimony “epitomizes the domestic violence offender profiling . . .
absolutely prohibited in Ketchner,” particularly because evidence in this
case matched Dr. Ferraro’s testimony about how abusers manipulate
victims.
¶22 Defendant highlights that some evidence the State offered
matched Dr. Ferraro’s testimony. Indeed, evidence showed that Defendant
manipulated P.J. by “turning the violence around” and convincing P.J. to
help him get acquitted. Before the attack, Defendant went through P.J.’s
phone and threatened to kill her if she ever cheated on him. Later, P.J.
blamed herself for the attack, asserting that she, not Defendant, was the
cheater. In phone calls from jail after his arrest, Defendant told P.J. that she
was the only person that could get him released and that he needed P.J. to
write a statement corroborating his exculpatory story. Then, in her letters
to the prosecutor, P.J. changed her story and took “full responsibility” for
the violence and her injuries. P.J. also blamed herself at trial.
¶23 The purpose of expert testimony such as Dr. Ferraro’s is to
explain counterintuitive behaviors commonly seen in a victim of domestic
violence. For that reason, it is not surprising — indeed it is expected — that
the jury will hear evidence that the victim has behaved to a greater or lesser
extent in accord with the testimony of a “cold” and “blind” expert such as
Dr. Ferraro. Even though this evidence echoed some of Dr. Ferraro’s
testimony, her testimony did not tend to show that Defendant possessed
“one or more of an informal compilation of characteristics” typically
displayed by domestic violence abusers. See Ketchner, 236 Ariz. at 264, ¶ 15.
Nor did the testimony “implicitly invite[] the jury to infer criminal conduct
based on the described” conduct. Id. at 265, ¶ 17 (citing with approval Ryan
v. State, 988 P.2d 46, 56-57 (Wyo. 1999)). Rather, Dr. Ferraro’s testimony
properly described general behaviors that were not likely to be within the
knowledge of most lay persons. See Tucker, 165 Ariz. at 346. Accordingly,
Dr. Ferraro’s testimony did not constitute impermissible profile evidence.
II. Vouching
¶24 Defendant also argues that Dr. Ferraro’s testimony
impermissibly vouched for P.J.’s credibility. Evidence that explains “why
recantation is not necessarily inconsistent with the crime having occurred”
helps the jury evaluate a victim’s credibility. State v. Moran, 151 Ariz. 378,
384 (1986). But an “expert may neither quantify nor express an opinion
about the veracity of a particular witness or type of witness.” Tucker, 165
Ariz. at 346; see also State v. Lindsey, 149 Ariz. 472, 474 (1986) (noting that an
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STATE v. HASKIE
Opinion of the Court
expert should not be “allowed to go beyond the description of general
principles of social or behavioral science which might assist the jury in their
own determination of credibility”).4 “Nor may the expert’s opinion as to
credibility be adduced indirectly by allowing the expert to quantify the
percentage of victims who are truthful in their initial reports despite
subsequent recantation.” Moran, 151 Ariz. at 382.
¶25 The majority of Dr. Ferraro’s testimony discussed only the
social and behavioral factors bearing on a domestic violence victim’s
recantation, which does not constitute impermissible vouching. However,
citing Lindsey, Defendant argues that Dr. Ferraro quantified P.J.’s credibility
and “in no uncertain terms, told the jury that P.J.’s original accusatory
report was true and her recantation false.” But Dr. Ferraro did not testify
that P.J.’s original report was true. She only testified in general terms that
she “often” sees domestic violence victims assist their partners in avoiding
accountability, and that it “is very typical” for victims to later change their
stories.
¶26 Moran recognized that expert testimony “explaining why
recantation is not necessarily inconsistent with the crime having occurred
aid[s] the jury in evaluating the victim’s credibility.” 151 Ariz. at 384. In
that case, a child sex abuse victim recanted after reporting numerous times
that abuse was occurring. Id. at 380. An expert witness properly explained
factors that could lead a child sex abuse victim to recant. Id. at 383-84.
However, the expert impermissibly testified that the child’s statements
were truthful and her “behavior, including recantation, was typical of
molested children.” Id. at 379.
¶27 In Lindsey, an expert impermissibly testified about a victim’s
credibility, stating “most people in the field feel that it’s a very small
proportion [of incest victims] that lie.” 149 Ariz. at 474. The expert opined
that “the likelihood [of abuse] is very strong . . . I feel there’s a
preponderance of the evidence here.” Id. The effect of this testimony was
to “tell the jury who [was] correct or incorrect” and to opine on the question
of guilt. Id. at 475 (internal quotation omitted). Thus, the testimony was
improper. Id.¶28 Although Moran and Lindsey involve child victims of sexual
abuse rather than adult victims of domestic violence, those cases are
4 “[O]pinions about witness credibility are nothing more than advice
to jurors on how to decide the case.” State v. Boggs, 218 Ariz. 325, 335 (2008)
(internal quotation marks omitted).
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STATE v. HASKIE
Opinion of the Court
instructive here. The State concedes that Dr. Ferraro’s testimony went
beyond that permitted by Moran, and ventured into that prohibited by
Lindsey, when she opined that “it’s very rare” for a victim to give a false
initial report, but that it is “much more common . . . for victims to minimize
and deny that it has happened. That I see in almost every case.”
That statement by Dr. Ferraro did not just explain why a victim’s
recantation was not necessarily inconsistent with abuse having occurred;
instead, it commented directly on a victim’s credibility. Accordingly, we
find this portion of Dr. Ferraro’s testimony constituted impermissible
vouching.
¶29 On the other hand, to the extent Dr. Ferraro testified in
general terms about domestic violence victims, we find that testimony was
admissible. In contrast to Lindsey, Dr. Ferraro’s testimony stated general
information in relative terms that the jury could use to determine
credibility. See Lindsey, 149 Ariz. at 474 (quoting State v. Chapple, 135 Ariz.
281, 292 (1983) (“We believe that the ‘generality’ of the testimony is a factor
which favors admission.”) (overturned on other grounds by statute)). Dr.
Ferraro did not tell the jury who was correct or incorrect, nor did she opine
as to Defendant’s guilt. Cf. Lindsey, 149 Ariz. at 474. Furthermore, Dr.
Ferraro did not give specific opinions regarding P.J.’s credibility, or opine
as to whether P.J.’s behavior was consistent with abuse having occurred. In
fact, Dr. Ferraro testified that she had no knowledge of this case, and
therefore could not testify about P.J. specifically. See State v. Herrera, 232
Ariz. 536, 551, ¶ 36 (App. 2013) (permitting expert testimony and
distinguishing Lindsey in part because expert “testified she had no
knowledge of the particular facts and circumstances of the case”). 5
5 The State urges us to apply fundamental error review to Dr. Ferraro’s
testimony concerning whether domestic victims tend to lie, citing State v.
Lichon, 163 Ariz. 186, 189 (App. 1989), because Defendant did not object at
trial. In Lichon, a pretrial motion in limine did not preserve the issue on
appeal because the motion was perfunctory, summarily ruled upon, and
the judge who tried the case was different from the judge who ruled on the
motion. See id. Here, the State’s motion in limine was thoroughly briefed
and argued, the judge made a substantive ruling, and the judge who ruled
on the motion also tried the case. The cited testimony was not among the
subject matters that the trial court ruled in limine that the State could
inquire into at trial. Thus, Defendant’s failure to object to Dr. Ferraro’s
testimony at trial did not “deprive[] the court of a meaningful opportunity
to consider the issue he now raises.” Id.10
STATE v. HASKIE
Opinion of the Court
III. Harmless Error
¶30 To the extent Dr. Ferraro’s testimony was improper, we will
not reverse Defendant’s convictions and sentences if the error was
harmless. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). “Harmless
error review places the burden on the [S]tate to prove beyond a reasonable
doubt that the error did not contribute to or affect the verdict or sentence.”
Id.¶31 Although a small portion of Dr. Ferraro’s testimony vouched
for the credibility of domestic violence victims, her testimony did not invite
the jury to conclude that Defendant was a domestic violence abuser.
Cf. Ketchner, 236 Ariz. at 266, ¶ 19. At no point during trial did the
prosecutor compare Dr. Ferraro’s testimony to Defendant or P.J. Nor did
the prosecutor implicitly ask the jurors to find that Defendant or P.J. acted
in conformity with Dr. Ferraro’s testimony. The only time the prosecutor
mentioned Dr. Ferraro’s testimony was during her opening statement,
when she said Dr. Ferraro would testify “it’s not unusual for a victim to
later change their story or to even help make a case go away.” However,
the prosecutor did not emphasize this testimony.
¶32 Furthermore, Dr. Ferraro’s “testimony was not the only
information upon which the jury could rely to assess [P.J.’s] credibility.”
Herrera, 232 Ariz. at 552, ¶ 47. Indeed, overwhelming evidence established
Defendant’s guilt. See State v. Anthony, 218 Ariz. 439, 446, ¶ 41 (2008) (“We
can find error harmless when the evidence against a defendant is so
overwhelming that any reasonable jury could only have reached one
conclusion.”). Cf. Moran, 151 Ariz. at 386 (holding that improper testimony
was prejudicial because “[n]either physical evidence or any other direct
evidence showed that [defendant] committed the crime. The only evidence
was the out-of-court statements, later recanted at trial”).
¶33 Numerous witnesses testified during three days of trial in this
case. P.J. identified Defendant as her attacker on the 911 recording and in
her initial statement. The jury saw photos of P.J.’s injuries and her motel
room. Witnesses testified about physical evidence found in the motel room
corroborating P.J.’s initial statement, including DNA evidence. The jury
heard phone conversations between Defendant and P.J., and in one
recording P.J. stated “well maybe you shouldn’t have tried to kill me. . . .
You know exactly what you did.” Finally, the trial court instructed the jury
regarding expert witnesses, and we presume the jury followed that
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Opinion of the Court
instruction. See State v. LeBlanc, 186 Ariz. 437, 439 (1996). We conclude
beyond a reasonable doubt that the jury would have convicted Defendant
absent Dr. Ferraro’s testimony. See State v. Crane, 166 Ariz. 3, 7 (App. 1990).
CONCLUSION
¶34 For the foregoing reasons, we affirm Defendant’s convictions
and sentences.
:AA
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