Ball v. State

CHAPEL, J.,

dissenting:

T1 I dissent to the resolution of this case. I fully agree that the trial court should have instructed the jury on excusable homicide and second-degree manslaughter. The majority finds these errors harmless. I would reverse and remand the case to allow a properly instructed jury to determine Ball's guilt or innocence.

T2 I also disagree with the majority's resolution of Proposition One. The medical examiner, Dr. Distafano, testified that Ball intentionally poured scalding water on the victim. The majority concludes that this was appropriate expert opinion testimony. An expert may offer an opinion on an ultimate issue if it would assist the trier of fact. 1 An expert may give an opinion on the cause of a child's fatal injuries, based on the expert's clinical observations and the victim's history as relevant to the medical examination, or based on a combination of expertise and - statistical - probabilities. 2 However, the expert testimony must focus on the cause of the child's injuries rather than the defendant's guilt. 3 An expert may not give an opinion on an ultimate issue which is not supported by the facts or data on which experts in his field reasonably rely. 4 An expert opinion cannot remove the inferential steps necessary to a jury's deliberations and undermine the jury's fact-finding duties by effectively telling jurors what result to reach. 5 Had Dr. Distefano simply testified that the evidence was not consistent with an accidental pour, I might agree that his testimony was proper. He did not.

13 Dr. Distefano's testimony is ultimately improper, as he reached a conclusion not based on the evidence, and told jurors what result to reach. Initially, he testified that the death was due to scalding, and said that his conclusion the death was a homicide was the result of the delay between the original injury and the time it was reported. I believe both these conclusions fall within the scope of expert opinion. They foeus on and are based on the nature and extent of the victim's injuries and surrounding facts, and suggest inferences jurors may draw without telling jurors what result to reach. However, he also testified that, in scalding the victim, Ball implicitly or explicitly intended to harm him. First, this suggests the witness was able to read Ball's mind. The physical evidence and history Dr. Distefano used in reaching his conclusions all clearly showed that the injuries were caused by scalding; however, nothing in his testimony suggested that he could determine Ball's mental state *98 from this evidence. This conclusion simply cannot be reached within the bounds of the science supporting Dr. Distefano's expert testimony.

{4 This improper testimony apparently stems from a misunderstanding of the law on the part of Dr. Distefano. This statement was in response to a question asking why he classified the victim's death as a homicide rather than an accident. The explanation above, which involved the nature of the injuries and delay in reporting, was sufficient to answer this question. However, Dr. Distefano also explained that he defined the category "homicide" as a death resulting from the act of another person "and that act had intent to harm, either implicitly or explicitly." While this may be Dr. Distefano's personal definition of homicide, it is not the legal definition. Homicide is no more nor less than the killing of one human being by another. 6 There is no intent requirement; indeed, if every homicide were an intentional killing there would be no need for separate murder and manslaughter statutes. By adding this explanation, Dr. Distefano told jurors that Ball intentionally caused the victim's death by sealding-that is, he told the jurors what result to reach. In doing so he also misstated the law. This misstatement was never corrected; jurors were only instructed on the elements of first degree child abuse murder.

1 5 Dr. Block reviewed the medical records and history and testified regarding the cause of the victim's injuries. He, too, gave his opinion that the victim died of scalding. Based on the nature of the injuries, he concluded that they were created by a pour rather than an instantaneous splash or spill. This conclusion is appropriate expert opinion testimony. Dr. Block testified that, based on the location and pattern of the burns and the absence of incidental splash marks, the injuries were not consistent with an accidental spill. This also was appropriate. He stated that the delay in treatment constituted very bad judgment and led to the victim's death; again, this is not improper. Nowhere in his testimony did Dr. Block state that Ball intentionally harmed the victim. The jury was free to draw that inference from his medical conclusions based on the evidence, but that is the jury's job.

T6 Dr. Block gave appropriate expert opinion testimony. Had Dr. Distefano similarly confined his opinion, I would have no objections to it. However, he went too far. The medical examiner told jurors that Ball intentionally scalded the victim, killing him. This is exactly the question jurors were to decide. I cannot conclude that this improper testimony, coming from the State's chief expert witness, had no effect on the jury's determination of guilt.

. Johnson v. State, 2004 OK CR 25 , 95 P.3d 1099, 1104 .

. Revilla v. State, 1994 OK CR 24 , 877 P.2d 1143, 1150-51 .

. Id.See also Schultz v. State, 1988 OK CR 17 , 749 P.2d 559, 562 (expert opinion that injury was not result of accident was based on nature and extent of injuries).

. McCarty v. State, 1988 OK CR 271 , 765 P.2d 1215, 1218 (expert testified that defendant was at scene of crime based on hair evidence, though science of hair comparison could not support that conclusion); see also Romano v. State, 1995 OK CR 74 , 909 P.2d 92, 109-110 (expert testified that defendant participated in murder based on blood spatter pattern).

. Romano, 909 P.2d at 109 .

. 21 0.S.2001, § 691.