IV

IV. EXPERT TESTIMONY*

Next, Steven contends that the trial court abused its discretion when it admitted expert testimony from Dr. Arnold Josselson about strangulation. He argues that the erroneous admission of this evidence was prejudicial. In the trial court, the prosecution filed a motion in limine seeking to admit evidence of the medical effects of strangulation. It argued that it was not within the common knowledge of jurors that strangulation can cause someone to lose consciousness in short period of time with the application of very little pressure.[18] A foundational hearing was conducted outside the presence of the jury, leading the trial court to determine that the evidence was admissible.[19] (See Evid. Code, § 402.) Dr. Josselson—a forensic pathologist who was an expert in strangulation—was permitted to and ultimately told the jury that strangulation could cause a loss of consciousness—even death—if as little as 10 pounds of pressure to key blood vessels cut off oxygen from the brain for as little as 10 or 15 seconds. He explained that a person who had been strangled or choked often had bruises, redness or fingernail scratches on the neck. It was also possible to suffer internal injuries without external bruising to the neck.

On appeal, Steven argues that this evidence was common knowledge about which no expert opinion testimony was needed. The subject of expert opinion testimony is limited to matters sufficiently beyond common experience such that the expert opinion would assist the trier of fact. (See Evid. Code, § 801, subd. (a); People v. Valdez (1997) 58 Cal.App.4th 494, 506.) If the subject of the evidence is one of such common knowledge that ordinary people could reach the conclusion as intelligently as an expert, then the evidence is not a proper subject of expert testimony. (See People v. Hernandez (1977) 70 Cal.App.3d 271, 280; see also People v. Valdez, supra, 58 Cal.App.4th at p. 506.) However, this question is often one of degree. The jury need not be wholly ignorant of the subject matter of an expert opinion in order to justify its admission. If that were the test of admissibility, little expert opinion testimony would ever be admitted. Instead, section 801 of the Evidence Code provides that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. It will be excluded only if it would add nothing at all to the jury’s common fund of knowledge. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.)

The trial court’s determination whether proffered evidence relates to a matter sufficiently beyond common experience that expert evidence would assist the trier of fact falls within its wide discretion. On appeal, we will only reverse that exercise for a clear abuse of that discretion. (People v. Valdez, supra, 58 Cal.App.4th at p. 506; see People v. Sanders (1995) 11 Cal.4th 475, 508; People v. McAlpin, supra, 53 Cal.3d at p. 1299.) With this standard of review in mind, we turn to the issue that Steven raises on appeal.

Steven characterizes Dr. Josselson’s expert opinion as irrelevant, arguing that the fact that strangulation can cause death is a fact within a juror’s common knowledge.[20] He also argues that this evidence was unnecessary, that it lacked foundation and that it was admitted in violation of section 801 of the Evidence Code. We disagree. This argument might have some force if the issue was whether strangulation could cause death, but the crucial inquiry was whether choking might cause serious injury. In order to prove beyond a reasonable doubt that Steven committed the two offenses that were alleged against him, the prosecution had to show a traumatic injury and the application of force likely to produce great bodily injury. (See §§ 245, subd. (a)(1), 273.5, subd. (a).) Steven understood at trial that this was the purpose of Dr. Josselson’s testimony when he challenged its admission.

The physical evidence in the case was slight—Jamilah suffered a small cut, some scratches and little apparent bruising that could have been the result of choking. She refused medical treatment.[21] Her voice seemed low. Given the lack of physical evidence of serious injury, we find that the trial court did not abuse its discretion in allowing Dr. Josselson to offer his expert opinion that even a little pressure applied for a short time to Jamilah’s neck could cause serious injury. Steven argues that this evidence is not relevant because there was no evidence of how long he choked Jamilah or how much pressure he applied. However, we are satisfied that Jamilah’s testimony that she felt she was about to lose consciousness while he was choking her combined with the slight pressure and short time necessary to cause such a loss of consciousness renders the evidence relevant to the jury in this matter.

Dr. Josselson also testified that it was possible to suffer serious internal injuries without obvious external signs of choking or strangulation. Without his expert opinion, the jury might have found that the slight physical injuries Jamilah suffered were inconsistent with strangulation or choking sufficient to cause traumatic or great bodily injury. Thus, we conclude that the trial court did not abuse its discretion in concluding that this evidence was both related to a subject beyond the common experience of the jurors and likely to assist the jury in determining whether key elements of the charges had been established by the prosecution. (See Evid. Code, § 801; People v. McAlpin, supra, 53 Cal.3d at pp. 1299-1300.)

People v. Price 6/30/04 A101668CA1/4-Hearsay/Battered Womens Syndrome

Jun 30 2004

A101668
[PDF] [DOC]

P. v. Price 6/30/04 A101668CA1/4

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