How To Keep Out Expert Witness Testimony That On Paper Seems Admissible

People v. King, 2018 IL App (2d) 151112 (August). Episode 530 (Duration 16:26)

State’s expert witness who came in to plug the holes in their case got a little carried away.

Gist

The jury found defendant guilty of first-degree murder of his wife, and, the court sentenced defendant to 30 years’ incarceration.

Because defendant was prejudiced by the improper introduction of a former FBI profiler’s “crime-scene-analysis” testimony, we reverse and remand for a new trial.

Facts

A body of a women is discovered on the railroad tracks.

The head and neck were positioned over the northern rail.

A pink iPhone was placed against a couple of railroad spikes on the opposite side of the rail from the body. The body was clad in a gray top, black running shorts with no spandex liner, and black and pink running shoes. The shorts were loose, and there were no underpants beneath them.

A dried leaf was on the lower abdomen, just above the pubic area.

Her underwire bra was pulled up, half exposing the breasts. The woman’s running shoes were clean.

She Was Strangled

She died of asphyxiation.

Kathleen’s blood alcohol concentration was 0.15

She had markings on her neck and chin consistent with being strangled. They found petechial hemorrhages in the eyes and epiglottis mucosa and found focal hemorrhages at the base of the tongue. Those findings, she testified, indicate strangulation.

Who Was She?

The woman was later identified as 32-year-old Army reservist Kathleen King, defendant’s wife.

Their home was located 1200 to 1300 feet from where she was found. People who were in the general area of the railroad tracks between 6 and 6:30 a.m. on July 6 did not see anyone running or see any cars in nearby.

She Was Having An Affair?

Turns out she was having an affair with someone she met in the reserves and defendant knew about it.

The State’s Expert Witness

The State filed its motion in limine seeking leave to call Mark Safarik as an expert witness in crime-scene analysis.

The motion stated that Safarik was a “crime scene and behavioral analyst” for a private company known as Forensic Behavioral Services. The motion further stated that Safarik had 23 years’ experience with the FBI, including as a supervisor with the Behavioral Analysis Unit (BAU).

Safarik had been, in the vernacular, an FBI profiler.

The court granted the motion in limine over defendant’s objection.

The State’s Expert Witness’s Testimony

Safarik, a former police officer and FBI profiler with no medical training, testified, over objection, that the lividity on Kathleen’s body was inconsistent with her having died on the train tracks. Over objection, Safarik testified to his opinion that the cause of death was manual strangulation. He enumerated possible causes of asphyxiation, reiterated the cause of death as listed by the doctor and then eliminated all but manual strangulation as fitting the facts.

Safarik opined, over objection, that the death scene on the tracks was staged, that Kathleen was killed in her residence, and that someone close to her, not a stranger, staged the scene.

Safarik testified that, as director of Behavioral Services International, he conducts “analyses and interpretations” of complex violent crime scenes and violent crimes to “understand essentially what happened in the crime, how it happened[,] and why the events unfolded the way that they did.” Expert testimony such as Safarik’s falls under the general rubric of “crime scene analysis,” which involves the “gathering and analysis of physical evidence.” See Simmons v. State, 797 So. 2d 1134, 1151 (Ala. Crim. App. 1999). Here, the State also proffered Safarik as an expert in the cause and manner of death as well as the habits or characteristics of people who stage crime scenes.

Safarik testified that he also conducts “equivocal death evaluations” in cases where the “manner of death is not well established.”

According to Safarik, the Kane County State’s Attorney’s Office asked him to examine the evidence from the scene where Kathleen’s body was found, to determine

(1) whether the scene was staged,
(2) the offender’s risk level,
(3) a general offender motive, and
(4) the “behavioral manifestations at the scene,” meaning the offender’s modus operandi, ritual behavior, and staging behavior.

From his review of the case, Safarik concluded the following:

(1) Kathleen did not usually run on the railroad tracks;
(2) defendant’s statement to police that Kathleen left the house to go running at 6:30 a.m. was inconsistent with the lividity present on her body less than half an hour later, when the death-scene photographs were taken, which indicated that she died prior to 6:30 a.m.;
(3) the lividity on Kathleen’s right leg was inconsistent with her position on the railroad tracks;
(4) if she had been running, her shorts would have been tied and not loose;
(5) the absence of an undergarment or a liner in Kathleen’s running shorts was inconsistent with her being out for a run;
(6) because Kathleen had “fairly large” breasts, running in an underwire bra would have been painful;
(7) Kathleen had a large selection of sports bras, so she would not have been running in an underwire bra;
(8) the presence of the underwire bra was inconsistent with defendant’s statement that Kathleen possessed running gear;
(9) Kathleen’s twisted bra strap would have been “very uncomfortable” and was inconsistent with the way she would have put on the bra;
(10) there was no sexual motive to the crime, because Kathleen’s bra was covering half her breasts;
(11) it was unlikely that Kathleen would have put on her left sock with the heel twisted toward the top of her foot;
(12) a clump of hair in her right sock was inconsistent with the way a person would dress herself;
(13) Kathleen was not wearing an armband, which was inconsistent with witnesses’ statements that she wore one when running;
(14) the absence of earbuds was inconsistent with witnesses’ statements that Kathleen listened to music while running;
(15) the leaf material on Kathleen’s body was inconsistent with that in the area where the body was found;
(16) Kathleen’s iPhone was placed on the tracks by someone;
(17) a trail of dried saliva mixed with blood running down Kathleen’s cheek was inconsistent with the way her head was positioned on the tracks, indicating that she was on the tracks after the saliva had dried;
(18) Kathleen was moved onto the tracks after she died in a different location;
(19) Kathleen died as a result of manual strangulation;
(20) a red mark on Kathleen’s neck was consistent with hands having been around her neck; (21) a bruise under Kathleen’s chin was consistent with someone having strangled her;
(22) every form of asphyxiation except manual strangulation was ruled out;
(23) Kathleen’s injuries were inconsistent with a fall on the tracks;
(24) scrapes on Kathleen’s shins were postmortem because there was no blood;
(25) Kathleen was incapacitated by alcohol and did not see the attack coming;
(26) the attack came on very quickly;
(27) strangers do not stage crime scenes;
(28) a staged crime scene indicates that the killer was someone close to the victim;
(29) the offender attempted to make Kathleen’s death look like an accident;
(30) the leaf material found on Kathleen’s body was from her residence; and
(31) based on the timeline defendant gave to the police, Kathleen was killed in her residence.

Judge Let’s It In

The court found that Safarik’s “specialized knowledge” was “reliable” and “relevant” and that the general subject matter of his testimony would assist the jury to understand the evidence and to determine the facts.

Specifically, the court found that the positioning of Kathleen’s body on the railroad tracks was “a matter beyond the common experience of most jurors and is [a] subject of difficult comprehension.”

The Defendant’s Medical Expert

The defense called a forensic pathologist, who testified that Kathleen died of a cardiac event brought on by stress, alcohol intoxication, lack of sleep, and caffeine consumption. Dr. Blum opined that Kathleen was running on the railroad tracks, became unwell, sat down on the rail, and expired.

According to Dr. Blum, her bruises and lividity were consistent with that scenario.

Dr. Blum acknowledged Dr. Kalelkar’s findings of petechial hemorrhages in the eyes and focal hemorrhages at the base of the tongue, but he opined that those findings, standing alone, did not support a conclusion that Kathleen was manually strangled.

Issue

Defendant argues that the state expert was improperly allowed to give an opinion as to the cause of death in a close case where the cause and manner of death were contested by two well-qualified, board-certified, forensic pathologists.

Defendant additionally contends that Safarik improperly opined on matters that were within the ken of the jurors when he testified that the death scene was staged. Defendant asserts that Safarik essentially gave the State’s closing argument.

Profiling Evidence Was Admitted

Profiling evidence usually involves a witness describing common practices, habits, or characteristics of a group of people. People v. Vasser, 331 Ill. App. 3d 675, 687 (2002). Thus, Safarik also proffered profiling evidence.

At oral argument, we asked the State what was Safarik’s area of expertise. That question was perspicacious, because the State could not readily answer it. Indeed, Safarik’s opinions ranged from forensic pathology, to botany, to the sartorial.

Safarik ventured beyond “crime scene analysis” into profiling when he testified to the characteristics of persons who stage crime scenes. In Mertz, our supreme court declined to opine on the admissibility of such evidence, holding that any error in admitting a profiler’s testimony comparing three distinct crime scenes, with a view as to whether they could be connected, was harmless because police officers had testified to the similarities that they had observed. People v. Mertz, 218 Ill. 2d 1, 72-74 (2005). The court emphasized that the profiler did not explicitly opine that the defendant committed the uncharged offenses that the profiler had studied. Here, in testifying that a staged scene indicates that the killer is someone close to the victim, Safarik indirectly, but pointedly, identified defendant as Kathleen’s killer, because, under the circumstances, no one else fit that profile.

The Expert’s Opinion

Under the guise of expert “crime scene analysis,” Safarik basically offered his subjective opinion that the State’s evidence was sufficient to convict defendant.

As the State admitted at oral argument, the purpose of Safarik’s testimony was to “plug the holes” in the State’s case.

Illinois Rule of Evidence 702

Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that,

“[i]f 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.” “

No Frye Hearing Required

Crime-scene analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d at 1151; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized knowledge” and offers “subjective observations and comparisons based on the expert’s training, skill, or experience.” Simmons, 797 So. 2d at 1151.

Therefore, such testimony is not subject to the test outlined in Frye v. United States, 239 F. 1013 (D.C. Cir 1923). Simmons, 797 So. 2d at 1151.

(Only) Medical Expertise Was Required

Here, medical evidence of the cause of Kathleen’s death was necessary, because a lay person of average intelligence would not know what killed her. She was found lying on the railroad tracks, not breathing or moving. There were no gunshot wounds or stab wounds. The body was warm, and there was no immediate evidence of foul play.

Consequently, Safarik—no matter how many crime scenes he had attended as a police officer, how much study he had done on violent crime scenes as an FBI profiler, or how many courses he had attended—was not qualified by knowledge, skill, experience, training, or education to opine on the cause and manner of Kathleen’s death. See Snelson, 204 Ill. 2d at 24 (expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education to render an opinion).

For the court to allow Safarik to opine that Kathleen died of manual strangulation was especially egregious where defendant disputed Dr. Kalelkar’s conclusion as to Kathleen’s cause of death and presented his own equally well-qualified forensic pathologist to testify that she died of natural causes.

Holding

We hold that Safarik’s opinion as to the cause of death was so highly prejudicial that we must reverse defendant’s conviction. We also note that it was beyond Safarik’s expertise to opine on the effects of lividity.

Trial courts are obliged to balance the probative value of expert testimony against its prejudicial effect. Lerma, 2016 IL 118496, ¶ 23.

The evidence of guilt in the present case was not overwhelming. Dr. Blum questioned Dr. Kalelkar’s methodology and conclusions. There was no eyewitness, no confession, and no forensic evidence connecting defendant to the crime. Consequently, we hold that it was prejudicial error to grant the State’s motion in limine No. 1 and to permit the testimony at defendant’s trial

Analysis

Through Safarik’s inadmissible testimony, the State essentially “broke the tie” by presenting a second opinion to corroborate Dr. Kalelkar’s.

As a veteran of violent-crime-scene investigations, Safarik could doubtless identify the presence of lividity. However, whether it was consistent or inconsistent with the position of Kathleen’s body on the railroad tracks was appropriate testimony for a forensic pathologist, as lividity correlates to the cause and manner of death. See People v. Legore, 2013 IL App (2d) 111038, ¶ 6 (forensic pathologist pinpointed time of death in part by analyzing lividity on victim’s body). In the same vein, Safarik should not have been permitted to testify that the vegetation on Kathleen’s body came from her home, because such an opinion was beyond his expertise and the State presented no evidence of such a correlation.

To be admissible, an expert’s opinion must have an evidentiary basis, or else it is nothing more than conjecture and guess. City of Chicago v. Concordia Evangelical Lutheran Church, 2016 IL App (1st) 151864, ¶ 72.

The Jury Didn’t Need This Kind Of Expert

Next, we consider defendant’s contention that the remainder of Safarik’s testimony was prejudicial because it consisted of conclusions that the jurors could draw for themselves. A requirement of expert testimony is that it will assist the trier of fact in understanding the evidence. Snelson, 204 Ill. 2d at 24.

Expert testimony addressing matters of common knowledge is not admissible unless the subject matter is difficult to understand and explain. People v. Lerma, 2016 IL 118496, ¶ 23. Evidence is beyond the ken of the average juror when it involves knowledge or experience that the juror lacks. People v. Mertz, 218 Ill. 2d 1, 72 (2005).

Here, Safarik testified to conclusions that the ordinary juror could draw: an experienced runner would not have dressed in the garments in which the body was found; Kathleen would not have left her contacts, earbuds, and armband at home when she went running; she would not have been running on the railroad tracks when her habit was to run in the park; and she would not have put on a sock with the heel twisted to the top of her foot.

None of this type of testimony should have been admitted. Crime-scene-analysis testimony is not scientific.

The Profiling Evidence Was Also Prejudicial

Our case is more like People v. Brown, 232 Ill. App. 3d 885 (1992), than Mertz.

In Brown, the First District held that the defendant, who was charged with possession of a controlled substance with intent to deliver, was prejudiced by profiling testimony regarding the violent habits of drug sellers. Brown, 232 Ill. App. 3d at 898. The court noted that the testimony “consisted of a complete profile of a drug dealer which corresponded to the circumstances surrounding [the] defendant’s arrest.” Brown, 232 Ill. App. 3d at 899-900.

Trial Court Tried To Limit The Evidence But In Practice The Expert Still Got Carried Away

Here, the court performed this analysis in ruling on the State’s motion in limine No. 1, as it precluded Safarik from directly identifying defendant as the killer or giving profiling testimony. Yet, at trial, Safarik was permitted to say indirectly what he could not say directly.

We follow Brown and hold that such profiling evidence is inadmissible.

Reversed

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and the cause is remanded for a new trial.

Kane County Nuggets

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