Opinion
Court of Appeals No. A-10629.
October 5, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Donald D. Hopwood, Judge, Trial Court No. 3AN-08-9784 Cr.
David K. Allen, Sechelt, British Columbia, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Jerry Lewis Blueford Jr. appeals his convictions for first-degree robbery and second-degree assault (reckless infliction of serious physical injury). The sole question presented on appeal is whether the State presented sufficient evidence to support the jury's finding that Blueford inflicted "serious physical injury" on the victim of the robbery and assault.
AS 11.41.500(a)(3) and AS 11.41.210(a)(2), respectively.
The State's evidence, viewed in the light most favorable to the jury's verdict, showed that Blueford hit the robbery victim in the head with a cement brick. This blow was sufficiently forceful to break the brick. The victim, Joseph Pride, testified that, shortly after this assault, he began experiencing severe pain in his head, and blood dripped from his ears. Pride experienced a loss of consciousness, and he developed abnormalities in his vision and hearing.
Pride sought medical attention, and the ensuing medical examination showed that he had suffered a traumatic brain injury and skull fracture within the previous twelve hours ( i.e., during the time when the robbery and assault occurred).
Pride testified that, due to the severity of his symptoms, he was unable to drive, and he did not begin to feel normal again until six weeks after the assault.
At Blueford's trial, the State alleged (based on this evidence) that Pride suffered "serious physical injury" as defined in AS 11.81.900(b)(56) — either under subsection (A) of the statute, "physical injury caused by an act performed under circumstances that create a substantial risk of death", or under subsection (B) of the statute, "physical injury that causes . . . protracted impairment of health [or] protracted loss or impairment of the function of a body member or organ".
O n appeal, Blueford argues that the above-described evidence is not legally sufficient to support the jurors' finding of "serious physical injury". Blueford notes that the State did not present a medical expert to testify that the victim's prolonged head pain, and the visual and auditory abnormalities that the victim experienced, could reasonably be attributed to the blow that the victim received to his head. Blueford argues that, without such expert testimony, the State's case was legally deficient because the jury would have no reasonable basis for concluding that the impairment of the victim's health was caused by Blueford's conduct (Blueford's act of striking the victim with the cement brick).
This claim was not presented to the trial judge, so Blueford must show plain error. In other words, Blueford must show that all competent judges would realize that the State's case was insufficient in the absence of expert medical testimony.
As we explained in Carter v. State, 235 P.3d 221 (Alaska App. 2010), "expert" medical testimony is testimony that "rests on specialized medical knowledge that is likely not shared by the trier of fact". Id. at 225. Thus, in Blueford's case, the question is whether lay jurors could draw a reasonable conclusion about the cause of the symptoms that Pride experienced following the robbery and assault — or whether, instead, the jurors would have no reasonable way of assessing the cause of Pride's symptoms unless they were given "background information about facts and principles that are generally known only to members of the medical profession." Ibid.
Given the facts of Blueford's case, we conclude that, even without expert testimony, the jurors could reasonably conclude that Blueford's act of striking the victim in the head with a cement brick — a blow forceful enough to break the brick itself — was the cause of the victim's skull fracture, his prolonged head pain, and his prolonged visual and auditory impairments.
We confronted a similar issue in Callahan v. State, 769 P.2d 444 (Alaska App. 1989). The defendant in Callahan was charged with refusal to submit to a breath test. He wished to present a witness who would have testified that, at the time of the breath test, the defendant had recently suffered injuries to his chest, back, and ribs — injuries that might have interfered with his ability to blow into the testing machine's tube. Id. at 446.
The trial judge excluded this proposed testimony on the ground that the defense witness was not medically trained, but this Court held that the witness's testimony was admissible as lay opinion under Evidence Rule 701. Id. at 446-47. The rationale of our ruling was that (1) Callahan's injuries were the type of injuries that a lay person could observe and understand, and (2) ordinary jurors were capable of understanding the relationship between Callahan's injuries (as described by the witness) and Callahan's potentially diminished ability to blow into the breath-test machine. Because specialized medical knowledge was not needed to understand these matters, the witness should have been allowed to testify. (See our explanation of this point in Carter, 235 P.3d at 225.)
We reach the same conclusion in Blueford's case. Given the nature of Blueford's assault on Pride, given the nature of the symptoms that Pride experienced following this assault, and given a lay person's typical knowledge of, or experience with, blows to the head and their consequences, we believe that the jurors did not need to hear expert medical testimony in order to reach a reasonable conclusion as to whether Blueford's act of striking Pride in the head with a brick was the cause of Pride's subsequent impairment of health.
Moreover, to the extent that the conclusion stated in the preceding paragraph might be debatable, we would still reject Blueford's argument on appeal. As we noted earlier, Blueford raises this argument as a claim of plain error. This means that, even if some judges might conclude that the State needed to present expert medical testimony in Blueford's case, Blueford would still have failed to show plain error — for "[if] reasonable judges could disagree as to whether error was committed, then the purported error is not `plain'." Cook v. State, 36 P.3d 710, 722 (Alaska App. 2001).
For these reasons, the judgement of the superior court is AFFIRMED.