Opinion
Civil Action No. 98-D-68
May 23, 2001
ORDER GRANTING HABEAS CORPUS APPLICATION
Applicant Peggy Sue Saiz is in the custody of the Colorado Department of Corrections and was incarcerated at the Denver Reception and Diagnostic Center in Denver, Colorado, when she filed, through counsel, an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 2000). On November 25, 1998, I ordered the respondents to show cause why the application should not be granted and I granted the applicant's motion for oral argument. On December 14, 1998, the respondents timely filed their answer to the order to show cause. On March 16, 1999, the applicant filed a reply.
On March 31, 1999, I granted the applicant's motion to amend her first claim and the court filed the amended habeas corpus application, which the applicant had submitted on March 16 1999. On April 6, 1999, the respondents filed a response to the applicant's amended first claim. On December 22, 2000, I ordered a hearing and oral argument set for April 13, 2001, on the amended habeas corpus application. On March 29, 2001, I ordered the parties to provide me with supplemental briefing as to one of the asserted claims, i.e., that the applicant's Sixth Amendment right to confrontation was violated when the state trial court prohibited surrebuttal opinion testimony by two defense attorneys who had previous experience with Dr. Kathy Morall, the forensic psychiatrist who examined Ms. Saiz during the sanity phase of trial, and who would have testified as to Dr. Morall's character and reputation for truthfulness. On April 10, 2001, the parties submitted their supplemental briefs. On April 13, 2001, I held the hearing and oral argument, and took the matter under advisement. I have reviewed the supplemented record in this case and, for the reasons stated below, I will grant the habeas corpus application.
I. Background
Peggy Saiz was charged in the Adams County, Colorado, District Court with one count of first degree murder in the November 9, 1990, shooting death of her husband. She pleaded not guilty by reason of insanity and asserted a defense of impaired mental condition, claiming that she had been battered by her husband and that this had caused a mental imbalance. The court ordered a pretrial examination pursuant to Colorado statute. Dr. Morall was appointed to examine Ms. Saiz and issued two psychiatric reports, concluding in both that Ms. Saiz was not insane at the time of the homicide. After a lengthy sanity trial including the testimony of numerous mental-health professionals, a jury determined that Ms. Saiz had been sane at the time she shot and killed her husband.
At the commencement of the trial on the merits, Ms. Saiz withdrew the impaired mental condition defense and argued that she had acted in self-defense as a battered woman when she shot her husband. The defense then presented essentially the same experts who had testified at the sanity trial, each of whom again testified that Ms. Saiz was a battered woman who had killed her husband in self-defense.
The jury convicted Ms. Saiz of first degree murder. She was sentenced to life imprisonment without possibility of parole. Judgment of conviction was entered on October 22, 1993. Her conviction was affirmed on direct appeal, as modified on denial of rehearing. See People v. Saiz, 923 P.2d 197 (Colo.Ct.App. 1996). Her petitions for a writ of certiorari were denied by the state and the federal supreme courts on September 3, 1996, and on January 6, 1997, respectively. No postconviction motions were filed. On January 14, 1998, the applicant initiated the instant action.
Ms. Saiz asserts four broad claims for relief in this action. This order focuses on Ms. Saiz's claim that her Sixth Amendment right to confrontation was violated when the trial court restricted the cross-examination and impeachment of Dr. Morall by prohibiting surrebuttal opinion testimony as to the doctor's character and reputation for truthfulness. Respondents concede that Ms. Saiz has exhausted state remedies for this claim.
Ms. Saiz claims: (1) that her conviction and sentence were obtained in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because during voir dire examination the trial court permitted the prosecution systematically to exclude eight female and Hispanic-surnamed jurors during its use of the peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127 (1994); (2) that her conviction was obtained in violation of the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel because the trial court erred in allowing Dr. Morall, who had conducted a psychiatric examination of the defendant prior to the sanity trial, to testify in the merits trial as to opinions derived from communications obtained during that examination in violation of Colo. Rev. Stat. § 16-8-107(1) (1986); (3) that her conviction was obtained in violation of the Sixth Amendment right to confrontation because the trial court erred in restricting cross-examination and impeachment of Dr. Morall (a) by prohibiting cross-examination pertaining to Dr. Morall's involvement in the James King trial, a death penalty case, (b) by prohibiting cross-examination concerning a case in which Mr. Morall was found in contempt of court and derelict in her duties as a forensic expert, and (c) by prohibiting surrebuttal opinion testimony as to Dr. Morall's character and reputation for truthfulness; and (4) that her conviction was obtained in violation of her right to a fair trial under the Due Process clauses of the Fifth and Fourteenth amendments because the trial court refused to tender a jury instruction informing the jury that, if the applicant were convicted of first degree murder, the court would have no choice but to sentence her to life without the possibility of parole.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the standard in 28 U.S.C. § 2254 cases for reviewing state court judgments. AEDPA applies to the instant action. Ms. Saiz's application was filed on January 14, 1998, well after ADEPA's April 24, 1996, effective date.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Section 2254(e)(1) provides that the state court's factual determinations are presumed correct and that the applicant bears the burden of rebutting the presumption by clear and convincing evidence.
III. Six Amendment Confrontation Clause Claim
As previously stated, this order focuses on Ms. Saiz's claim that her Sixth Amendment right to confrontation was violated when the trial court restricted the cross-examination and impeachment of Dr. Morall by prohibiting surrebuttal opinion testimony as to the doctor's character and reputation for truthfulness.
The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him [or her]." U.S. CONST. amend. VI. Confrontation means more than being allowed to confront a witness physically. Davis v. Alaska, 415 U.S. 308, 315 (1973). Confrontation secures the right of cross-examination, the principal means available to test the believability of a witness and the truth of his or her testimony. Id. at 315-16. The partiality of a witness and his or her motivation to testify are subject to exploration at trial and always are relevant in discrediting a witness and affecting the weight of his or her testimony. Id. at 316-17. Thus, the rights of confrontation and cross-examination are essential and fundamental requirements for a fair criminal trial. Pointer v. Texas, 380 U.S. 400, 405 (1965). To deprive a defendant of the right to cross-examine the witnesses against him or her is a denial of the Fourteenth Amendment right to due process. Id.
However, the Confrontation Clause does not prevent a trial court from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Rather, a trial court has wide latitude to place reasonable limits on cross-examination based upon concerns about harassment, prejudice, confusion of issues, witness' safety, or interrogation that is repetitive or only marginally relevant. Id. "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. (citation and internal quotation marks omitted).
"[T]he focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial." Id. at 680. The constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to the harmless-error analysis set forth in Chapman v. California, 386 U.S. 18 (1967). Van Arsdall, 475 U.S. at 684. Constitutional errors do not require reversal if the error is harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24. The Constitution entitles a criminal defendant to a fair trial, not a perfect one. Van Arsdall, 475 U.S. at 681. "[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Id. (citations omitted).
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
Id. at 684 (citations omitted).
Ms. Saiz argues that her Sixth Amendment right to confrontation was violated when the trial court prohibited surrebuttal opinion testimony by two defense attorneys who had previous experience with Dr. Morall and who would have testified as to her character and reputation for truthfulness. The Colorado Court of Appeals agreed that the trial court erred in sustaining the prosecution's objection to the surrebuttal opinion testimony, but found the error to be harmless beyond a reasonable doubt:
The credibility of a witness may be attacked by evidence in the form of opinion or reputation testimony. This evidence may refer only to the witness' character for truthfulness or untruthfulness. CRE 608(a).
Here, defendant sought to introduce evidence pertaining to the psychiatrist's character of untruthfulness. The evidence was to be in the form of opinion and reputation testimony by two criminal defense lawyers who had worked with the witness in the past.
The trial court ruled that the evidence was not relevant because the psychiatrist's truthfulness was not at issue since she was merely testifying as to her expert opinion and was not a fact witness. However, because CRE 608(a) makes no exception for expert witnesses, we conclude that the trial court's ruling was erroneous.
An error that infringes upon a defendant's rights under the confrontation clause of the Sixth Amendment requires reversal unless it is harmless beyond a reasonable doubt. Merritt v. People, supra. Likewise, when a trial court improperly prevents the defendant from calling a witness to impeach a prosecution witness with testimony that the witness' reputation for truthfulness is poor, the reviewing court must determine whether the error is harmless. Honey v. People, 713 P.2d 1300 (Colo. 1986).
Here, the psychiatrist's testimony was not crucial to the prosecution's case because other expert witnesses also testified that the results of defendant's psychiatric tests suggested that she did not suffer from battered woman's syndrome or post traumatic-stress disorder. Also, the trial court had permitted extensive cross-examination of the psychiatrist. Moreover, there was other evidence overwhelmingly supporting the verdict and overcoming defendant's theory of self-defense, including evidence that defendant shot her husband while he was sleeping, tried to cover up the homicide instead of reporting it, and stood to receive a large amount of insurance money upon his death. See Honey v. People, supra.
For these reasons, we conclude that the error was harmless beyond a reasonable doubt.
Saiz, 923 P.2d at 204 (emphasis added).
I find that the Colorado Court of Appeals' decision that Dr. Morall's testimony was not crucial to the prosecution's case is factually incorrect. I base my finding on the fact that other expert witnesses did not also testify that the results of defendant's psychiatric tests suggested that she did not suffer from battered woman's syndrome or post-traumatic stress disorder. Further, I find that the error was not harmless beyond a reasonable doubt.
The state appeals court decided that the five factors under the Chapman harmless error analysis — the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case — favored the prosecution. However, for the reasons discussed below, the appeals court's findings based upon factors one, two, and three are incorrect. Dr. Morall's testimony was critical to the prosecution's case. Her testimony was not cumulative. Other expert witnesses did not corroborate Dr. Morall's testimony by also testifying that the results of Ms. Saiz's psychiatric tests suggested that she did not suffer from battered woman's syndrome or post-traumatic stress disorder.
The parties agree and I concur that Dr. Morall was the only prosecution witness to offer a medical opinion that Ms. Saiz did not suffer from battered woman's syndrome or post-traumatic stress disorder. Therefore, her testimony was critical to the prosecution's case and could not have been cumulative.
William Hansen, Ph.D., was the only other mental-health professional besides Dr. Morall to testify for the prosecution and he only testified as to the results of the tests administered to Ms. Saiz by other psychologists. Therefore, no other expert witnesses also testified for the prosecution as to the results of the defendant's psychiatric tests.
A psychologist qualified as an expert in the field of psychological testing, Dr. Hansen testified that his expertise was in the administration of psychological tests, including the Minnesota Multiphasic Physical Inventory (MMPI) and other tests administered to Ms. Saiz. He made clear at trial that he never examined or tested Ms. Saiz and that he made no diagnosis of her. His sole role was to "analyze the psychological testing" administered to Ms. Saiz (trial tr., Vol. 38, October 15, 1993, at 180, lines 14-18), including the MMPI test conducted by Drs. Lenore Walker, Joseph McElhinney, and Susan B. Cave, the three psychologists who administered the test to Ms. Saiz. He testified as to his analysis of the results from Ms. Saiz's tests, as well as the methods used to score the tests.
The record reveals that at least two of the psychologists who interviewed and tested Ms. Saiz found her to be a battered woman with post-traumatic stress disorder. (Trial tr., October 15, 1993, Vol. 38, at 48-49, 69-70, and 161-163.) However, Dr. Hansen testified that, in his opinion, Ms. Saiz's test results were inconsistent with a conclusion of battered woman's syndrome. He testified that no conclusion that Ms. Saiz suffered from battered woman's syndrome could be made solely from doing an MMPI test. His ultimate conclusion was that he had "no conclusion about her being a battered woman or not a battered woman." (Trial tr., Oct. 15, 1993, Vol. 38 at 186, lines 13-14.)
Even the respondents agree that the appeals' court finding that "other expert witnesses also testified that the results of defendant's psychiatric tests suggested that she did not suffer from battered woman's syndrome or post traumatic-stress disorder," Saiz, 923 P.2d at 204, "may have been somewhat less than completely accurate in its indication that multiple rebuttal experts discussed Ms. Saiz's psychiatric tests." Respondents' April 10, 2001, Supplemental Brief at 13.
Respondents contend, however, that "multiple expert witnesses testified that Ms. Saiz's mental and physical profiles were not consistent with a battered woman diagnosis." Id. At the April 13, 2001, hearing, the respondents urged me to consider testimony of eight additional witnesses who testified in rebuttal, the three doctors and five physical therapists listed in footnote four on page eleven of respondent's April 10 supplemental brief. Respondents contend these experts testified that nothing in Ms. Saiz's emotional affect, presentation, or physical symptoms indicated that Ms. Saiz may have been a victim of battered woman's syndrome, and maintain that their testimony made Dr. Morall's testimony cumulative.
I disagree. Having examined the totality of the testimony by these doctors and physical therapists, no one offered an opinion as to whether Ms. Saiz suffered from battered woman's syndrome. The other medical providers who testified for the prosecution were orthopedic surgeons Dr. Timothy J. Birney and Dr. Frederic Teal and Dr. Rachel Basse of Spalding Rehabilitation Center, an expert in physical medicine and rehabilitation. They testified as to their examination and treatment of Ms. Saiz's physical injuries as a result of an accident that occurred when the Regional Transportation District (RTD) bus she was driving on September 21, 1989, was hit by an automobile. However, Drs. Birney and Teal offered no opinion as to whether she suffered from battered woman's syndrome. The record of their testimony reveals that they did not observe any injuries on Ms. Saiz that did not appear related to the motor vehicle accident, that Ms. Saiz did not raise with them any prior injuries she may have received, and that the issue never arose as to whether any of the injuries she suffered could have occurred as the result of battering.
Dr. Basse testified that, as part of her typical evaluation, she referred Ms. Saiz to Dr. McElhinney for an evaluation. The purpose of this evaluation was to determine if Ms. Saiz had any psychological problems that would exacerbate her physical symptoms. Dr. Basse relied on Dr. McElhinney's report and her conversation with him to assist her in her overall evaluation of Ms. Saiz. During her trial testimony, Dr. Basse expressed no opinion as to whether Ms. Saiz suffered from battered woman's syndrome or post-traumatic stress disorder.
Physical therapists Carol Whorton, Barbara Long, Diane Brunsdon, Amy Hilgers, and Cheryl Olivio, who treated Ms. Saiz's complaints purportedly resulting from the September 21, 1989, bus accident and other alleged accidents, also testified for the prosecution. They did not, however, testify as to whether Ms. Saiz suffered from battered woman's syndrome or post-traumatic stress disorder. The issue never arose as to whether any of the injuries she suffered could have occurred as the result of battering, except that Ms. Hilgers, when asked, did testify that Ms. Saiz never told her anything about abuse. The record simply does not support the respondent's contention that multiple expert witnesses testified that Ms. Saiz's mental and physical profiles were not consistent with a battered woman diagnosis.
A federal habeas court must make as the starting point of its analysis the state court's determination of fact. Williams v. Taylor, 529 U.S. 362, 386 (2000). As previously stated, a state court's factual determinations are presumed correct and the applicant bears the burden of rebutting the presumption by clear and convincing evidence. I find that Ms. Saiz has rebutted by clear and convincing evidence under 28 U.S.C. § 2254(e)(1) the state appeals court's determination that Dr. Morall's testimony was not crucial to the prosecution's case "because other expert witnesses also testified that the results of defendant's psychiatric tests suggested that she did not suffer from battered woman's syndrome or post traumatic-stress disorder." Saiz, 923 P.2d at 204.
The state court record indicates that Dr. Hansen was the only other mental-health professional besides Dr. Morall to testify for the prosecution and that he testified as to his analysis of the test results of other psychologists. He testified that no conclusion that Ms. Saiz did suffer from battered woman's syndrome could be based solely on the MMPI test and that he had no conclusion as to whether Ms. Saiz did or did not suffer from battered woman's syndrome. No other expert witness also testified for the prosecution as to the results of defendant's psychiatric tests. No expert witness other than Dr. Morall testified for the prosecution that Ms. Saiz did not suffer from battered woman's syndrome or post-traumatic stress disorder.
IV. Conclusion
Dr. Morall's testimony was critical to the prosecution's case and other expert witnesses did not corroborate Dr. Morall's testimony that Ms. Saiz did not suffer from battered woman's syndrome or post-traumatic stress disorder. The Colorado Court of Appeals in reaching its decision made factual assumptions not supported by the evidence. The state appeals court's finding "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(2). I find that this factual determination was erroneous.
I also find that this error was not harmless beyond a reasonable doubt under the harmless-error analysis set forth in Chapman. See Van Arsdall, 475 U.S. at 673. Therefore for the reasons noted above, i.e., that Dr. Morall's testimony was critical to the prosecution's case and other expert witnesses did not corroborate her testimony, I will grant the application for a writ of habeas corpus. Because I find that Ms. Saiz's Sixth Amendment right to confrontation was violated when the trial court prohibited surrebuttal opinion testimony by two defense attorneys who would have testified as to Dr. Morall's character and reputation for truthfulness, I need not reach the merits of the remaining claims. For the reasons stated above, I conclude that the Colorado Court of Appeals' decision was based on an unreasonable determination of the facts pursuant to 28 U.S.C. § 2254(d)(2). I also conclude that Ms. Saiz has met her burden to rebut by clear and convincing evidence pursuant to 28 U.S.C. § 2254(e)(1) the state appeals court's determination that Dr. Morall's testimony was not crucial to the prosecution's case. Accordingly, it is
ORDERED that the habeas corpus application is GRANTED and the case is REMANDED to the state court for the commencement of a new trial or further proceedings not inconsistent with this order within sixty (60) days from the entry of judgment on this order. It is
FURTHER ORDERED that Peggy Sue Saiz be released unconditionally from custody if no further proceedings have been commenced within sixty (60) days from the entry of judgment on this order. It is
FURTHER ORDERED that each party shall bear his or her costs and attorney's fees.
BY THE COURT: