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State v. Eggleston9/14/2001
inciples had achieved general acceptance in the appropriate scientific community. Riker, 123 Wn.2d at 362.
{T}he gatekeeping function of Frye requires both an accepted theory and a reliable method of applying that theory to the facts of the case. Without studies documenting the effect, if any, that prior battering relationships will have on a person's functions and reactions outside of those relationships, the expert's opinion amounts to no more than an unsupported guess. Riker, 123 Wn.2d at 363-64.
Although the general concept of hypervigilance is accepted as a learned response to stress and perhaps even as a sudden response to unexpected trauma, neither expert demonstrated the general acceptance of the theory that gun battles may result in a degree of hypervigilance that includes the conditions of tunnel vision, diminished sound, perseverance, and amnesia. It is true that an expert may cite well-founded statistics to establish some fact that will be useful to the trier of fact. State v. Briggs, 55 Wn. App. 44, 63, 776 P.2d 1347 (1989). The only statistics cited here, however, were from a study of 72 individuals that had not been tested or replicated. Neither expert pointed to more than a nascent understanding of the effects of stress during a gunbattle such as the one at issue in this case, and Dr. Harris disagreed with the fundamental premise behind both experts' opinions--that is, that there are common responses caused by situations of extreme stress that can be predicted without examining the individuals subjected to that stress.
Two murder cases have been found, however, in which expert testimony regarding hypervigilance was admitted. In one, when the defendant argued with his father, the father held a gun to the defendant's head, threatened to kill him, and left with his girlfriend. State v. Foster, 967 P.2d 852, 854 (N.M. App. 1998), cert. denied, 972 P.2d 352 (N.M. 1998). Forty minutes later, the defendant went to the girlfriend's house and the two argued. The defendant left, slamming the door shut, but the girlfriend immediately opened it and startled him. He shot her six times. At trial, a defense expert explained that having a parent hold a gun to one's head would create a high degree of stress, with the result being hypervigilance, Swhich is characterized by a narrowing of focus and functioning in a 'fight or flight' survival mode.' Foster, 967 P.2d at 855. The expert opined that by opening the door suddenly, the victim may have especially startled the defendant if he was in a hypervigilant state. Foster, 967 P.2d at 855.
In the second case, which bears no factual similarity to the instant case, the defendant smoked cocaine for several hours one night and then took a Quaalude. People v. Reed, 462 N.E.2d 512, 517 (Ill. App. 1984). He went to his girlfriend's house at noon the next day and asked if he could take a nap. She admitted him and he fell asleep on the couch. About two hours later he awoke to the sounds of the television and shower and panicked. He grabbed his gun, went to the bathroom, pushed open the door and fired, only then realizing that he had just killed his girlfriend. A psychiatrist testified that the combination of drugs and medication could cause a person to become hypervigilant, which he defined as a heightened state of awareness of danger, or a readiness to respond to potential danger at a moment's notice. Reed, 462 N.E.2d at 517. The appellate court reversed the defendant's conviction because his confession was coerced without discussing the hypervigilance testimony. Reed, 462 N.E.2d at 520.
Neither case involved an exchange of gunfire and the extent to which that might cause the participants to become hypervigi
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