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State v. Dixon6/3/2005
of each death was homicide.
Dixon's principal argument on appeal is that, although the pathologist was qualified by his medical training and his performing the autopsy to render an opinion on the cause of death, Mitchell was not qualified to determine the cause of the explosion and fire in order to form the opinion that the deaths were homicides. Citing State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), and Cimarron Feeders v. Bolle, 28 Kan. App. 2d 439, 17 P.3d 957, rev. denied 271 Kan. 1035 (2001), which involve opinion testimony of experts on an ultimate issue, Dixon also argues that Mitchell's classification of the deaths invaded the province of the jury.
In Bressman, the defendant was charged with the rape of Mrs. T. All the tests customarily made to determine whether sexual acts had taken place were negative, and there was no evidence of trauma. The doctor who examined Mrs. T at the hospital was erroneously allowed to testify that in her opinion Mrs. T. was raped. The opinion testimony of an expert on the ultimate issue is admissible only if it will aid the jury in interpreting technical matters or in understanding the evidence. The opinion testimony of an expert also must be based on the witness' expertise. Even though the doctor was not trained in psychiatry, her opinions were based on Mrs. T's story rather than on the physical examination. The Bressman court concluded that the normal experiences of jurors would permit them to draw proper conclusions from the evidence without the aid of the doctor's opinion testimony. 236 Kan. at 303-04. In Cimarron Feeders, an accounting expert testified that a revised operating agreement and promissory note, from which the dispute arose, was "probably fair." 28 Kan. App. 2d at 449. The Court of Appeals concluded that the accountant's opinion invaded the province of the jury because the "fairness" of the agreement and note was a matter within the normal experience possessed by jurors. 28 Kan. App. 2d at 449. The Court of Appeals believed that the erroneous expert testimony may have been harmless as an isolated instance but that the totality of circumstances and cumulative trial court errors required reversal. 28 Kan. App. 2d at 451.
The State generally takes the position that there is a split of authority on this issue and, if Mitchell's opinion on the manner of death was erroneously admitted, it is harmless error. The 1976 annotation cited by the State, 71 A.L.R.3d 1265, discusses the admissibility of testimony of coroners and morticians as to the cause of death in homicide prosecutions at a time, it appears, when coroners tended to lack medical training. The State also mentions that Dr. Mitchell is a coroner and that he was required by K.S.A. 2004 Supp. 22a-232 to investigate and report on the cause of death. The State cites State v. Mondaine, 655 S.W.2d 540 (Mo. App. 1983), for the proposition that Mitchell was qualified to testify as to the manner of death. Mondaine does not support the State's position. The issue in Mondaine was the sufficiency of the evidence of the cause of death. The coroner's testimony established death by asphyxiation, and eyewitness testimony established that the victim had been strangled. The combined testimony of those witnesses along with evidence of the condition of the victim's body, established strangulation as the cause of death. The Missouri court concluded that opinion testimony as to causation was admissible despite its not going beyond mere possibility as long as it was corroborated. 655 S.W.2d at 543.
The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion.
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