United States v. Richard Junior Frazier

322 F.3d 1262, 60 Fed. R. Serv. 1120, 2003 U.S. App. LEXIS 3511, 2003 WL 480129

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 26, 2003
• Docket: 01-14680
• Status: Published

Opinions

BIRCH, Circuit Judge:

Richard Junior Frazier was convicted of kidnaping in violation of 18 U.S.C. § 1201(a)(1), and accused of sexually assaulting his eighteen-year-old victim, Lori Kimsey. On appeal, Frazier contests two evidentiary rulings made by the district court during his trial. First, Frazier appeals the district court’s decision to exclude expert testimony from forensic investigator Robert Tressel. Tressel would have testified that neither Frazier’s hair nor his bodily fluids were found on Kim-sey’s person or in the car where the assault allegedly occurred, and that the absence of forensic evidence did not support Kimsey’s claim of sexual assault. Second, Frazier appeals the district court’s decision to allow the prosecution to rebut the inference Tressel was not allowed to make. We conclude that the district court abused its discretion in excluding Tressel’s testimony, and in so doing violated a substantial right of the defendant. Accordingly, we VACATE the judgment of the district court and REMAND for a new trial.

I. BACKGROUND

At trial, two explanations of the events of 31 October 2000 emerged. Kimsey claimed that Frazier abducted her by knife-point, forced her to drive to a dark wooded area, and committed multiple sexual assaults against her. Frazier, on the other hand, claimed that Kimsey offered him a ride, and that the young woman manufactured the allegations of sexual assault to explain the reason she missed her curfew. Frazier’s defense was based on a strategy of discrediting Kimsey: if Frazier could establish that Kimsey lied about the sexual assaults, then Frazier could undermine the credibility of Kimsey’s kidnapping claim.

The jury which convicted Frazier made no particular findings of fact. Based on testimony, it is clear that Kimsey stopped by the Walmart in Cornelia, Georgia on the evening of 31 October 2000. As recorded by a video camera trained on the Walmart parking lot, Kimsey exited the store and got into her car, with Frazier getting into the backseat directly behind her. The video does not show that Frazier used a knife to force Kimsey into her car.

According to Kimsey, Frazier forced her to drive to a wooded area off a dirt road. Frazier moved to the front seat of the car, then forced Kimsey through the threat of his knife to take off her clothes. R7-154-55. Frazier removed his clothes as well. Over the next two hours, according to Kimsey, Frazier committed 11 acts of sexual assault, including rape, in the front seat and the back seat of Kimsey’s car. Id. at 191-95. Frazier accounts for these two hours differently. He claims that Kimsey offered him a ride to an old girlfriend’s house in Silva, North Carolina, and that the two hours were spent driving. Id. at 215-16.

It is clear that Kimsey and Frazier stopped off at a Circle K in Clarkesville, Georgia. A video camera recorded both of them entering the store, with Kimsey unrestrained, and Frazier buying cigarettes. Frazier then took the wheel and drove north on U.S. Highway 365. During this time, Kimsey’s parents grew concerned about the fact that their daughter had missed her midnight curfew. Kimsey’s father, Larry Kimsey, started driving around in search of her, and saw his daughter’s vehicle pass him headed north on U.S. Highway 365. When Larry Kim-sey saw that his daughter’s vehicle did not take the turn necessary to get home, he sped up. Larry Kimsey saw that his daughter was not driving, and tried to flag the vehicle over to the side of the road. When his attempts were unsuccessful, Larry Kimsey attracted the attention of law enforcement, which pursued Frazier at-high speeds into North Carolina. The chase ultimately ended when Frazier ran Kimsey’s car into a power pole.

Both Frazier and Kimsey were removed from the vehicle in handcuffs and taken to the hospital. Kimsey claimed that she had been sexually assaulted, so a nurse examined Kimsey using a rape kit, removing loose hair and swabbing for fluids. R8-272. After laboratory testing, it became clear that the nurse’s examination of Kim-sey produced no hair or bodily fluid matching Frazier. A sweep of Kimsey’s vehicle was conducted, and law enforcement found none of Frazier’s hairs or his bodily fluids at the scene of the alleged assault.

Before trial, Frazier gave notice to the Government that he intended to offer the testimony of Robert Tressel, a forensic investigator and former police officer. Tressel would testify that in the absence of head hair, facial hair, pubic hair, blood, saliva, or seminal fluid matching Frazier, “there is no forensic evidence to substantiate the claim of rape.” Def. Ex. 2. The prosecution made a motion in limine to exclude Tressel’s testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). During the Daubert hearing, it became clear that Tressel’s expertise was based on his experience: for ten years, Tressel worked as an investigator in Cobb County’s unit on Crimes Against Persons, a unit which investigates homicides, rapes, other sexual assaults, and armed robberies. R5-5-6. Tressel estimated that he worked on as many as 250 sexual assault cases during his tenure. Id. at 9. In addition, Tressel spent thirteen years as chief investigator in the Cobb County Medical Examiner’s Office, id. at 10, and currently owns and operates a private forensic investigation service. Def. Ex. 1. Based on Tressel’s background, the district court deemed him “a very qualified criminal investigator.” R5-66.

Nevertheless, the district court tightly circumscribed the limits of Tressel’s proposed testimony. The district court ruled that Tressel would be allowed to testify regarding the standard procedures in investigating the site of an alleged sexual assault, and to testify that no hair or fluid matching Frazier was found. See R5-65-66. The district court would not, however, allow Tressel to draw any inferences based on the absence of evidence supporting Kimsey’s allegations of sexual assault. See id at 65. So while Tressel could testify that “[t]he forensic evidence most commonly found during the analysis of a rape investigation is the transfer of hairs,” Def. Ex. 2 at 2, Tressel could not testify that “it is my professional opinion that there is no forensic evidence to substantiate the claim of rape in this case.” Id. at 3.¹ Frazier’s defense attorney chose not to place Tressel on the stand, and elicited the fact that neither Frazier’s hair nor his bodily fluids were found from two laboratory technicians at the Federal Bureau of Investigation (“FBI”).

On rebuttal, the prosecution used the same FBI laboratory technicians to testify as experts. Frazier’s attorney objected, arguing that the prosecution had failed to communicate its intention to call experts and in so doing violated the notice provisions of Federal Rule of Evidence 16. The district court overruled the objection, reasoning that Rule 16 only requires notice when the prosecution calls an expert during its case in chief. The court permitted the technicians to testify as experts regarding “the import of the fact that there was nothing found.” R9-363.

The prosecution was then free to place technician Karen Lanning on the stand, and she testified that the absence of Frazier’s hair did not necessarily lead to the conclusion that no sexual contact occurred. R9-371. She based her opinion on a study published in the Journal of Forensic Sciences. Then the prosecution called Anthony James Onorato, the second FBI lab technician, to testify that the absence of sperm did not necessarily lead to the conclusion that Frazier did not assault Kim-sey. Id. at 387. Onorato did not base his opinions on scientific research, but on his own experience. In his words, “I guess that maybe three quarters of the cases we receive in the lab have alleged sexual assault components,” id. at 384, and “I would estimate ... that [in] 20 to 25 percent of those cases I don’t identify semen.” Id. at 386.

Frazier appeals the district court’s decisions (1) to exclude Tressel’s expert testimony on the implications of the absence of forensic evidence linking Frazier to the alleged assault, and (2) to allow the prosecution’s expert testimony on the same point.

II. DISCUSSION

We review the district court’s decision to admit or exclude expert testimony for the abuse of discretion. United States v. Paul, 175 F.3d 906, 909 (11th Cir.1999). As for the district court’s interpretation of Federal Rule of Evidence 702, the rule which governs the admission of expert testimony, our review is plenary. Id. No error regarding the admission or exclusion of evidence is reversible “unless a substantial right of the party is affected.” Fed. R.Evid. 103(a). To determine whether the district court abused its discretion, we turn to Rule 702 and two decisions of the Supreme Court: Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Rule 702 provides:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. Rule 702, as interpreted by the Supreme Court in Daubert, “assign[s] to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. at 2799. Daubert’s gatek-eeping requirement was the reason cited by the district court for excluding Tressel’s testimony. R5-66.

The transcript of the Daubert hearing reveals that the district court treated a scientific background as a prerequisite to expert status. The court explained that Tressel’s testimony would not be excluded if it were based in scientific research: “if there is any scientific evidence that shows that in 99 percent of the time you find pubic hair, I would have no problem with that.” Id. at 68. The court reiterated:

If you have any scientific evidence that would indicate you should [find hair or bodily fluid], I have no problem, as I said, with his testifying that’s what they look for, but when you start trying to prove that there is no case because they didn’t find [hair or fluid], you have got to have something more than just his opinion. You need something showing some study.

Id. at 69. During rebuttal, the district court again explained to the defense that “you could not use Mr. Tressel as an expert, [because] I had concerns there about his qualifications in scientific areas.” R9-365.

The district court’s decision to exclude Tressel’s testimony is based on an incomplete understanding of the background required of an expert witness. Rule 702 is broadly scoped and provides that a witness may be qualified by virtue of “knowledge, skill, experience, training, or education.” At most, the district court evaluated two of the five possible grounds for expert status: knowledge and education. The defense, however, did not claim that Tressel’s expertise was based in knowledge or education. Instead, the defense claimed that Tressel’s expertise was based in experience. This is not a situation in which the district court evaluated Tressel’s experience and found it wanting. On the contrary, the district court found Tressel to be very experienced, R5-66, but refused to qualify him as an expert in the absence of some scientific basis for his opinions.

Qualification as an expert does not depend on a scientific background. In Kumho Tire, the Supreme Court extended Daubert’s application from “scientific testimony” to “all expert testimony.” Kumho Tire, 526 U.S. at 147, 119 S.Ct. at 1174. After Kumho Tire, science is no longer the sine qua non of analysis under Daubert.2 The text of Rule 702 supports this analysis. Rule 702 is written in the disjunctive-expert status may be based on “knowledge, skill, experience, training, or education” — so a district court may base its decision on any one of the five grounds listed. See Fed.R.Evid. 702 (emphasis added). This interpretation of the rule is confirmed by reading the Advisory Committee Notes, which specifically address witness experience: “Nothing in this amendment is intended to suggest that experience alone — or experience in conjunction with other knowledge, skill, training or education — may not provide a sufficient foundation for expert testimony.” Rule 702 cmt. at 290.

In addition to Rule 702, the common law provides authority for the conclusion that expert status may be based on witness experience. In United States v. Paul, our court ruled that 30 years of experience qualified a witness as an expert in handwriting analysis. Paul, 175 F.3d at 910-11. We reached a comparable decision in Maíz v. Virani when we ruled that the district court was correct to grant expert status to a witness with extensive experience — but no formal education — in the patterns and practices of Mexican immigration. Maiz, 253 F.3d 641, 669 (11th Cir.2001). In United States v. Majors, we concluded that experience alone was sufficient for a district court to grant expert status to a financial analyst who was not a certified public accountant. Majors, 196 F.3d 1206, 1215 (11th Cir.1999). We reasoned that expert status was appropriate because the analyst “possessed special knowledge and skill not available to the ordinary witness.” Id.

Furthermore, our court has recognized expert status where a government agent or a forensic investigator has experience with a particular type of crime. United States v. Thomas, 676 F.2d 531, 538 (11th Cir.1982). Such investigators have been qualified as experts in a number of criminal contexts, including international drug smuggling, United States v. Chastain, 198 F.3d 1338, 1348-49 (11th Cir.1999); crack cocaine distribution, United States v. Robinson, 870 F.2d 612, 613 (11th Cir.1989) (per curiam); counterfeiting, United States v. Burchfield, 719 F.2d 356, 358 (11th Cir.1983) (per curiam); and arson, United States v. Marler, 614 F.2d 47, 49-50 (5th Cir.1980). Even after Kumho Tire required the application of Daubert, experience-based expertise in investigating a particular type of crime has been deemed admissible. See Majors, 196 F.3d at 1215 (concluding that the district court was correct to admit expert testimony from an FBI analyst with substantial experience in investigating evidence of money laundering, mail fraud, and bank fraud.)

We conclude that district court should have admitted Tressel’s testimony that Kimse/s allegation of sexual assault was not substantiated by forensic evidence. Tressel and his testimony survive the test for admissibility:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert-, and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa v. Harcros Chem., Inc., 158 F.3d 548, 562 (11th Cir.1998) (footnote omitted). With respect to the first prong, Tressel is qualified as an expert based on 20 years of experience in forensic analysis, including the investigation of hundreds of alleged sexual assaults.³ With respect to the second prong, we note initially that “the nature of the issue, the expert’s particular expertise, and the subject of his testimony” shape the reliability inquiry. Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175 (quotation omitted). In expert testimony based on experience, it is unlikely that reliability will be established through statistics. Reliability in this particular case is established by Tressel’s precision and logic. Tressel recounted the methodical and painstaking work necessary to gather forensic evidence. He then analyzed the findings in Frazier’s case, reasoning that (1) the most common forms of forensic evidence found at the scene of a sexual assault are the hairs and fluids of the perpetrator, and (2) no evidence of Frazier’s hair or fluid were found inside Kimsey’s vehicle or on her person, so (3) Kimsey’s allegations of sexual assault are not substantiated by the most likely forms of forensic evidence.⁴ Tressel’s analysis is not based on the examination of evidence; his analysis is based on reason and experience.⁵ Reliability is established. With respect to the third and final prong of the Daubert analysis, Tressel has developed specialized and relevant knowledge in an area unknown to most lay people. Such expertise would help a jury reach a conclusion about Kimsey’s allegations of sexual assault.

We remind the district court that “[t]he gatekeeper role ... is not intended to supplant the adversary system or the role of the jury.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311 (11th Cir.1999). As the Supreme Court pointed out in Dau-bert, “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. In this case, the prosecution’s objections were more properly directed at the weight and .sufficiency, rather than the admissibility, of Tressel’s testimony. See Maiz, 253 F.3d at 669.

By excluding Tressel’s testimony, the district court violated “a substantial right” of defendant Frazier. See Fed. R.Evid. 103(a). As determined by the Supreme Court, “an essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence.... ” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636 (1986) (internal citation omitted). The heart of the defense case was attacking the credibility of Lori Kimsey. By excluding the essence of Tressel’s testimony, the district court eviscerated Frazier’s defense.

With the conclusion that the district court committed -reversible error by excluding Tressel’s testimony, we need not analyze Frazier’s second allegation of error. We note, however, that by allowing F.B.I. laboratory technicians Lanning and Onorato to testify for the prosecution, the district court compounded the harm already done to Frazier’s defense by allowing the prosecution to .rebut an inference that the defense was not allowed to make.

III. CONCLUSION

Daubert’s requirement that the district court serve as an evidentiary gatekeeper has been extended by the Supreme Court. After Kumho Tire, a district court should address the reliability and relevancy of all expert testimony, not just that testimony based in science. Kumho Tire, 526 U.S. at 147, 119 S.Ct. at 1174. It follows, therefore, that reliability and relevancy may be established through expertise that is not scientific. Indeed, Rule 702 explicitly provides that expertise may be based on “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. In this case, the defense offered expertise based on experience. We conclude that the district court abused its discretion in excluding the essence of Robert Tressel’s proposed testimony, and in so doing violated a substantial right of defendant Frazier. We VACATE the judgment of the district court, and REMAND for a new trial.

VACATED and REMANDED.

1 . The district court excluded any testimony based on the following text from Tressel’s forensic report:

With the amount of sexual activity described in the search warrant affidavit, it would be expected that some transfer of either hairs or seminal fluid would occur in this case.

The resulting laboratory findings in this case [] do not substantiate the claim of rape through forensic evidence. All findings of the samples that were taken, all of which are essentially routine rape investigation procedures, were negative in finding a transfer of seminal fluid or hair from the defendant in this case. The medical examination of the victim only shows evidence of sexual activity on the part of the victim at some time prior to the examination taking place. The documented finding of bruising around the labia major indicates that the bruising may be substantially older than only a few hours.

Based on my review of the available documents, it is my professional opinion that there is no forensic evidence to substantiate the claim of rape in this case. The only indication that any type of sexual activity occurred is the redness around the labia major and the redness of the cervix. These two injuries, in and of themselves, can occur during routine normal sexual activity. Ms. Kimsey’s medical records indicate that she had sexual intercourse on 10/29/2000.

Def. Ex. 2 at 2-3.

2 . Pursuant to Kumho Tire, the 2000 Advisory Committee Notes to Rule 702 provide that "[s]ome types of expert testimony will be more objectively verifiable, and subject to the expectations of falsifiability, peer review, and publication, than others. Some types of expert testimony will not rely on anything like a scientific method....” Fed.R.Evid. 702 cmt. at 290.

3 . As of the Daubert hearing in Frazier’s case, Tressel had served as an expert witness in state and federal courtrooms across Georgia, Alabama, Florida, and North Carolina. R5-20.

4 . We note that Tressel did not reach the more controversial conclusion that Frazier did not sexually assault Kimsey.

5 . The distinction between the expertise prong and the reliability prong are blurred in the case of experience-based expert testimony. The expert’s experience — assuming a certain degree of success — supports the reliability of his or her conclusions. Because of Tressel’s success, see Def. Ex. 1, the reliability of his analysis is bolstered.