Blasdell, Brandon Scott ( 2012 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1892-11
BRANDON SCOTT BLASDELL, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
MONTGOMERY COUNTY
P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, J OHNSON, K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. H ERVEY,
J., filed a concurring opinion in which K EASLER and C OCHRAN, JJ., joined. M EYERS,
J., did not participate.
OPINION
The only evidence against the appellant in his prosecution for aggravated robbery was
the identification testimony of the victim. The appellant offered testimony from a forensic
psychologist intended to educate the jury about the so-called “weapon focus effect.” The
trial court ruled that this expert testimony was not relevant, however, because it was
Blasdell — 2
insufficiently tied to the particular facts of the case, and the Ninth Court of Appeals affirmed
the appellant’s conviction in an unpublished opinion.1 We granted the appellant’s petition
for discretionary review in order to examine the court of appeals’s holding that the trial court
did not abuse its discretion to exclude the expert’s testimony for a lack of “fit.” We reverse.
FACTS AND PROCEDURAL POSTURE
Katy Hadwin had stopped to put gas in her car on the evening of February 11, 2007,
when a man approached her, pointed a gun at her face, and demanded her purse. Hadwin
fumbled to unlock her car door and reached across the driver’s seat to retrieve her purse from
the passenger seat as her assailant yelled, “Hurry up, bitch.” Once she gave the purse to her
assailant, he fled on foot to a nearby older model white truck that was “similar to a Toyota.”
Although it was close to dark, around 8:00 p.m., the scene was well lit.
Approximately a week later, Detective Juan Sauceda of the Conroe Police Department
called Hadwin down to the station to view a photo lineup. Because the appellant roughly fit
the description that Hadwin had given to the responding officers, and because he owned a
white truck (albeit a Dodge), he became a suspect in the crime, and Sauceda compiled the
photo lineup by taking the appellant’s photo and those of five others whom he thought looked
like the appellant. Before showing Hadwin the photo lineup, Sauceda asked her to fill out
1
Blasdell v. State, No. 09-09-00286-CR, 2010 WL 3910586 (Tex. App.—Beaumont 2010) (not
designated for publication). This Court granted the appellant an out-of-time petition for discretionary
review in 2011. Ex parte Blasdell, No. AP-76,697, 2011 WL 5903657 (Tex. Crim. App.—2011) (not
designated for publication).
Blasdell — 3
a suspect description form. There she described her assailant as having “light blue/green
eyes” and a “unibrow.” She described the gun that had been pointed at her face as a
“revolver.” When Sauceda showed her the photo lineup, Hadwin identified the appellant as
her assailant, writing on the lineup form that she was “100% sure that is the guy.”
At trial, Hadwin repeated her description of the robber as having “light colored eyes
and a unibrow[,]” which she described as “one eyebrow instead of two” and “thick.” She
repeated that she was “100% sure” of her identification in the photo lineup “[b]ecause I can’t
forget his face.” She also identified the appellant in the courtroom as the man who robbed
her. Although she was “not really” familiar with guns, she recognized that what had been
pointed at her face was a black revolver. She acknowledged that she had gotten a “good look
at” it, and that having it pointed at her face was “the scariest thing” she had ever been
through. Hadwin initially estimated that the robbery had spanned five minutes, but after
going over the events with defense counsel, she agreed it probably occurred over a period of
“a little longer than 20 seconds.” Though Hadwin ultimately expressed “no doubt” that the
appellant was the robber, the State presented no evidence to corroborate that identification.
Hadwin never recovered the purse or its contents, nor did she receive notification that anyone
ever tried to use her credit cards. None of these items was found in the appellant’s
possession when he was arrested, and no gun was found or even registered in his name.
After the State rested, the trial court conducted a hearing outside the jury’s presence
Blasdell — 4
to preview the testimony of Dr. Steven Rubenzer, a forensic psychologist whom the appellant
proposed to call as an expert witness with respect to the potential pitfalls with eyewitness
identification.2 Among other matters about which the appellant desired Rubenzer to testify
was a phenomenon known as the weapon focus effect, which he characterized as “a
tendency, when there is a weapon involved, particularly in brief encounters, for the weapon
to essentially attract attention away from the perpetrator’s face and, by doing so, result in
lesser accuracy for the identification.” Rubenzer had reviewed the offense report and had
talked with defense counsel about the facts of the case, but had interviewed neither Hadwin
nor Sauceda about the circumstances of the offense or the photo lineup. He was aware,
however, that the robber had pointed the revolver at Hadwin’s face during the brief robbery.
Toward the end of the hearing, the trial court questioned Rubenzer with respect to this topic:
2
It is not entirely clear from the record whether this hearing was conducted under the auspices
of Rule 705(b) of the Texas Rules of Evidence, to allow the State to preview the underlying facts or
data supporting Dr. Rubenzer’s expert testimony, or under Rule 702, so that the appellant could make
a threshold showing of admissibility by establishing the reliability and relevance of the psychological
principles involved. Compare T EX. R. E VID. 705(b) (“Voir dire. Prior to the expert giving the
expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered
upon request in a criminal case shall . . . be permitted to conduct a voir dire examination directed to
the underlying facts or data upon which the opinion is based. This examination shall be conducted out
of the hearing of the jury.”), with T EX . R. E VID . 702 (“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.”), and Jordan v. State, 928 S.W.2d 550, 553 (Tex.
Crim. App. 1996) (construing Rule 702 as placing a burden on the proponent of expert psychological
testimony with respect to eyewitness identification to establish reliability and relevance of that
evidence). Presumably it was the latter, since it was defense counsel who conducted the initial
examination of Rubenzer.
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THE COURT: Okay. Then that’s – weapon focus issue. Do you have
any specific opinion that that happened in this case, the weapon distracted or
reduced the focus on the person’s –
[Rubenzer]: Yes.
THE COURT: – face?
[Rubenzer]: Yes.
THE COURT: Do you have an opinion? Tell me about that.
[Rubenzer]: Well, she identified that – the weapon on the description
sheet as a revolver.
THE COURT: And that – and that alone, you’re saying, based on your
studies, et cetera, would indicate that –
[Rubenzer]: It tells me that she did look at the gun.
THE COURT: Well, but ultimately we’re talking about
misidentification or bias or whatever you want to call it, with respect to a
photo spread and her identification as to the photo spread. Do you have an
opinion that that played a role in this case or just that it could because we
know generally that’s something that happens?
[Rubenzer]: I’d say it would have to be a “possibly.”
THE COURT: “Possibly.” Okay.
While the trial court allowed Rubenzer to testify about certain aspects of the procedure that
Sauceda utilized in conducting the photo lineup, he prohibited the appellant from asking
Rubenzer any questions designed to educate the jury about the weapon focus effect.
In his only point of error on appeal, the appellant argued that the trial court erred in
excluding Rubenzer’s expert testimony regarding the weapon focus effect. Setting aside the
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question whether the appellant had established the validity of the science that purportedly
establishes the weapon focus effect, and hence, its reliability for purposes of Rule 702,3 the
court of appeals affirmed the trial court’s ruling on another basis. Because Rubenzer “did
not commit to an opinion that the ‘weapon focus effect’ had impacted [Hadwin’s]
identification of” the appellant, the court of appeals held, any expert testimony on that topic
3
See Blasdell, supra, at *2 n.2 (“Because it is not necessary to the resolution of this appeal, we
need not address whether the ‘weapon focus effect’ is based on valid science. See T EX. R. A PP. P.
47.1.”). From our review of the record, it does not appear that the trial court harbored any particular
reservations about Rubenzer’s qualifications to testify as a forensic psychologist with expertise on the
general subject of the reliability of eyewitness identification. Even so, the State invites us to affirm
the court of appeals’s judgment on the grounds that the appellant failed to offer evidence at the hearing
to establish the reliability of any expert opinion with respect to the weapon focus effect. We have
elsewhere noted that, at least as of 2001, a substantial portion of the relevant community of forensic
psychologists has regarded the weapon focus effect to be a sufficiently well-established phenomenon
to merit expert testimony. See Tillman v. State, 354 S.W.3d 425, 436-37 (Tex. Crim. App. 2011)
(citing New Jersey v. Henderson, 27 A.3d 872, 911-12 (N.J. 2011), which in turn cites Saul M. Kassin
et al., On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts,
56 A M. P SYCHOLOGIST 405, 407 (2001)). Indeed, more or less general acceptance of the weapon focus
effect within the community of forensic psychologists may have had its genesis in a seminal study
conducted as early as 1992. See Nancy M. Steblay, A Meta-Analytic Review of the Weapon Focus
Effect, 16 LAW & H UM. B EHAV. 413, 421 (1992) (“The weapon effect does reliably occur, particularly
in crimes of short duration in which a threatening weapon is visible. * * * [T]he weapon focus effect
provides a good example of a phenomenon that may be viewed differently at this time compared to its
status as a hypothesis just a few years before.”). But see George Vallas, Article: A Survey of Federal
and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 A M.
J. C RIM. L. 97, 104 (Fall 2011) (observing that most empirical studies of the weapon focus effect
involve laboratory simulations and remarking that “[t]he results of studies attempting to detect the
effects of weapon focus in the field are somewhat mixed”). Be that as it may, we decline the State’s
invitation to resolve the issue of the scientific validity of the weapon focus effect today, since we do
not ordinarily address issues on discretionary review that have not been first decided by the
intermediate courts of appeals. E.g., Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007) (in
its discretionary review capacity, this Court does not review issues not decided by the court of appeals,
but the court of appeals could consider the State’s alternative argument on remand). In view of our
ultimate disposition today, the question of the admissibility of Rubenzer’s proposed testimony as a
function of its reliability becomes a necessary issue for the court of appeals to address on remand.
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was not “sufficiently tied to the pertinent facts of the case[.]”4 “Without tying the general
background on the topic to an opinion pertinent to [Hadwin’s] identification of” the
appellant, the court of appeals summarized, “the trial court could have reasonably concluded
that Dr. Rubenzer’s testimony concerning the ‘weapon focus effect’ would not assist the trier
of fact.”5 In essence, the court of appeals concluded that Rubenzer’s testimony failed to “fit”
the weapon focus effect to the facts of the case and was therefore not relevant to aid the jury
under Rule 702. We granted the appellant’s petition to examine this holding.
LAW AND ANALYSIS
Since the court of appeals decided this case, this Court has issued an opinion in
Tillman v. State, containing a fairly comprehensive discussion of the admissibility of expert
testimony, specifically with respect to eyewitness identification.6 There, we reiterated that,
for such expert testimony to be admissible under Rule 702, the party offering it must prove
by clear and convincing evidence that it is sufficiently reliable and that it is relevant in the
sense that it will help the jury reach an accurate result.7 That is to say, the proponent must
establish both that the expert opinion testimony enjoys a reliable scientific foundation and
4
Id. at *3 (internal quotation marks omitted).
5
Id.
6
354 S.W.3d 425 (Tex. Crim. App. 2011).
7
Id. at 435.
 Blasdell — 8
that it will assist the trier of fact to resolve an issue of consequence in the case. 8 As with
other determinations regarding the admissibility of evidence, a trial court’s ruling with
respect to both the reliability prong and the relevance prong is subject to an abuse of
discretion standard on appeal, and a reviewing court may not reverse those rulings unless
they fall outside the zone of reasonable disagreement.9
Because the court of appeals in this case found it unnecessary to address the reliability
prong, we focus our attention today on Tillman’s treatment of the relevance prong. We
observed in Tillman that, to be relevant, an expert’s opinion with respect to eyewitness
identification need not take account of every available fact underlying a particular
identification or identification procedure, but only “enough of the pertinent facts to be of
assistance to the trier of fact on a fact in issue.”10 We also recognized that, as with any other
expert witness, sufficient information to support an informed expert opinion with respect to
the reliability of eyewitness identification may be supplied in the form of facts that the expert
learns for the first time in the courtroom, including facts that are embraced within a
8
Id.
9
Id.
10
Id. at 438. See also Jordan, supra, at 556 (“The question under Rule 702 is not whether there
are some facts in the case that the expert failed to take into account, but whether the expert’s testimony
took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in
issue.”).
Blasdell — 9
hypothetical question posed to the expert during his testimony.11 If a hypothetical question
fails to echo any particular “event” that “occurred in that particular case[,]” it would result
in expert testimony that is not relevant for purposes of Rule 702 because it does not “fit” the
facts of the case and therefore cannot help the jury.12
Finally, and of particular significance to our analysis today, we note that, at more than
one point in Tillman, we observed that expert testimony with respect to the reliability of
eyewitness identification will be deemed “relevant” so long as it illustrates how particular
identification procedures “might be affected” by various “factors” or “circumstances,” 13 or
“how various factors in eyewitness-identification processes can contribute to dissociation in
eyewitnesses.”14 Consistent with these observations, we concluded on the facts of Tillman
itself that “it was imperative that the jury be exposed to the full spectrum of possible
implications resulting from [the suggestive identification procedure at issue there] in order
11
Id. at 439. We specifically observed that hypothetical questions posed to the eyewitness expert
in Tillman that “mirrored” the particular identification procedure that was used was sufficient to tie
his expert opinion to the facts of the case, inasmuch as they “exposed the expert to the pertinent facts
of the specific case.” Id. See also Jordan, supra, at 556 n.8 (expert opinion with respect to eyewitness
identification may be predicated on facts or data made known to the expert during trial, including via
hypothetical questions).
12
Id. at 440.
13
Id. at 438 & 439 (emphasis added).
14
Id. at 441 (emphasis added).
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to have a full understanding of the subject.”15 Thus we made it clear in Tillman that, for the
testimony of an eyewitness identification expert to be relevant for purposes of Rule 702, it
is enough that he is able to say that a particular identification procedure, or the facts or
circumstances attending a particular eyewitness event, has been empirically demonstrated to
be fraught with the potential to cause a mistaken identification.
Rubenzer was not in the courtroom to hear Hadwin’s testimony, and he never
interviewed her or Sauceda about the circumstances of the robbery. But he had read the
offense report and been told about the robbery by the appellant’s counsel before trial, and he
was made aware before he testified that the man who robbed Hadwin had pointed a gun at
her face and that, even though the robbery was brief, she recognized that the gun was a
revolver. This was sufficient information to lead him to the conclusion, consistent with his
expert knowledge about the weapon focus effect, that there was a real “possibility” that her
ability to make a reliable identification of the robber had been compromised. No expert
could testify with significantly greater certainty that an eyewitness’s perception was in fact
impaired by the threatening presence of a gun, but it is no less valuable to educate a jury of
the realistic potential, if that has been empirically shown to exist. Consistent with Tillman,
we hold that even the “possibility” of distorted perception under the circumstances was
sufficient to establish a “fit” with the facts of the case, and hence, the relevance of
15
Id. at 442 (emphasis added).
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Rubenzer’s expert testimony. Particularly given that Hadwin’s testimony comprised the vast
bulk of the State’s case to establish the appellant’s guilt,16 we believe that, as in Tillman, it
was outside the zone of reasonable disagreement to prevent the appellant from informing the
jury about this viable possibility.
This is not to suggest that a trial court will abuse its discretion in any case in which
a phenomenon such as weapon focus effect might apply. Not all expert testimony that is
logically “relevant” will invariably serve to “assist” a jury for purposes of Rule 702. As we
have remarked before:
A judicious application of the Rule 702 helpfulness standard and Rule 403
balancing factors is necessary. * * * Such determinations must necessarily be
resolved on a case-by-case basis, as they will depend upon factors such as the
content of the testimony, the context in which it is offered, and the state of the
evidence.17
As the quantity and quality of evidence establishing a defendant’s identity as the perpetrator
of the charged offense increases, the possibility that expert testimony will facilitate the jury’s
resolution of that issue will decrease concomitantly. At some point, a trial court may decide
that the expert testimony is, on balance, insufficiently helpful to the jury’s resolution of the
16
Other than Hadwin’s identification of the appellant as the robber, the only evidence connecting
him to the offense was the fact that he generally fit the description she gave to the police of the
perpetrator, and that he drove a white truck, albeit of American rather than Japanese make.
17
Ortiz v. State, 834 S.W.2d 343, 347 (Tex. Crim. App. 1992) (quoting Steven Goode, Olin Guy
Wellborn III & Michael Sharlot, 1 T EXAS P RACTICE: G UIDE TO THE R ULES OF E VIDENCE: C IVIL AND
C RIMINAL § 702.2 (1 st ed. 1988)).
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issue to justify the time and resources it would take to present it at trial. Such a decision
under Rule 702 would fall squarely within the zone of reasonable disagreement. In the
instant case, however, given the content of the Rubenzer’s expert testimony, the context in
which it was offered, and, most pertinently, the paucity of other evidence to establish the
appellant’s identity as Hadwin’s assailant, we hold that the court of appeals erred in
concluding that Rubenzer’s weapon focus effect testimony was not relevant to the issues in
this case.
CONCLUSION
Accordingly, we reverse the judgment of the court of appeals and remand the cause
to that court for further proceedings consistent with this opinion.18
DELIVERED: December 5, 2012
PUBLISH
18
See note 3, ante. Concluding that the evidence is relevant is only part of the Rule 702 inquiry.
Rule 702 also requires that the expert be qualified to testify about the matter and that the evidence
satisfy the reliability requirements. And even if admissible under Rule 702, evidence may be excluded
under Rule 403. See T EX. R. E VID. 403 (“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.”). To the extent that any of these issues are involved in this appeal, the court of appeals
should address them, as necessary, on remand. T EX. R. A PP. P. 47.1. If the court of appeals
determines that the evidence is admissible, it would then need to conduct a harm analysis. See T EX.
R. A PP. P. 44.2(b). We express no opinion with respect to these issues today.