IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
MARK HASKIE, JR.,
Appellant.
No. CR-16-0327-PR
Filed August 15, 2017
Appeal from the Superior Court in Coconino County
The Honorable Jacqueline Hatch, Judge
No. CR2014-01006
AFFIRMED
Opinion of the Court of Appeals, Division One
240 Ariz. 269 (App. 2016)
VACATED IN PART
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Robert A. Walsh (argued), Assistant Attorney General, Capital Litigation
Section, Phoenix, Attorneys for State of Arizona
Coconino County Public Defender’s Office, Brad Bransky (argued), Deputy
Public Defender, Flagstaff, Attorneys for Mark Haskie, Jr.
David J. Euchner (argued), Assistant Public Defender, Tucson, Attorneys
for Amicus Curiae Pima County Public Defender’s Office
STATE V. HASKIE
Opinion of the Court
JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
TIMMER, BOLICK, GOULD, and BERCH (RETIRED)∗ joined.
JUSTICE BRUTINEL, opinion of the Court:
¶1 During Mark Haskie, Jr.’s trial on felony charges arising from
an incident of domestic violence, Dr. Kathleen Ferraro, testifying as an
expert witness, described general behavioral tendencies of adult victims of
domestic abuse. Haskie argues that Dr. Ferraro’s testimony should have
been excluded as impermissible profile evidence. Because the testimony
helped the jury understand the victim’s behavior and was more probative
than prejudicial, the trial court did not err in admitting it.
I. BACKGROUND
¶2 Haskie assaulted his girlfriend, P.J., at a Flagstaff motel after
searching through messages on her phone and threatening her, “I told you
I would kill you if you cheated on me.” That same day, P.J. wrote a
statement for the police explaining that Haskie had beaten and strangled
her. Physical evidence from the motel corroborated her statement. Haskie
was arrested nearly a year later. Shortly after his arrest, P.J. wrote two
letters to the prosecutor recanting her earlier statements to the police,
claiming instead that her injuries were from a bar fight she could not
remember and that Haskie was innocent.
¶3 Before trial, the State filed a motion in limine to admit
testimony by Dr. Ferraro as a “cold” expert on domestic violence to help
the jury understand why P.J. had “continued her relationship with the
defendant,” “given conflicting statements while the case [was] pending,”
and why she was “reluctant to testify.” The State’s motion was
accompanied by a list of questions the prosecutor intended to ask Dr.
Ferraro. Haskie objected to Dr. Ferraro’s proposed testimony, arguing it
would not assist the jury and that it would constitute improper profile
∗Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Rebecca
White Berch, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.
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STATE V. HASKIE
Opinion of the Court
evidence and vouching. Following a hearing, the trial court limited Dr.
Ferraro’s testimony to the list of questions.
¶4 At trial, the State presented recorded phone calls Haskie
made from jail, including several to P.J. before she recanted. In these
conversations, Haskie dictated to P.J. an exculpatory story for her to tell
police, apologized to her, and promised to marry her when he was released.
During one call, P.J. responded, “[W]ell maybe you shouldn’t have tried to
kill me. . . . You know exactly what you did.” At trial, however, P.J. testified
that she did not remember who had beaten her because she had been
drinking, and that although she initially blamed Haskie for her injuries
because she was jealous, she had in fact cheated on him.
¶5 At trial, Dr. Ferraro testified that she was a “cold” or “blind”
expert, meaning she had not reviewed any case-specific evidence and was
not going to testify about any of the events in the case. The prosecutor
asked her a series of questions regarding characteristics of domestic
violence victims to help the jury understand behaviors that might otherwise
seem counterintuitive to jurors unfamiliar with domestic violence. When
asked, “[I]s it unusual for someone who has been hurt by an intimate
partner to return to that relationship?” Dr. Ferraro responded, “It’s not
unusual. It is very common.” She continued, “There are many reasons
[why,] and they vary by the individual, of course, and the type of
relationship.” Dr. Ferraro explained that some victims of domestic violence
return to their abusers out of fear, retaliation, or threats, while others do not
leave their abusers because of pressure from extended family or the victim’s
own shame. Dr. Ferraro further testified that chemical dependency and
alcohol abuse complicate the decision to leave an abusive relationship.
¶6 The prosecutor then asked, “[D]o victims ever tend to blame
themselves for what happened?” Dr. Ferraro responded:
Yes. That’s a very common response of victims of domestic
violence.
....
[P]art of it has to do with the manipulation of an abusive
partner themselves because that’s a very common dynamic of
domestic violence, . . . the abusive partner will turn the
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STATE V. HASKIE
Opinion of the Court
violence around and say that if you hadn’t done this or you
had done that as I told you to do, this never would have
happened, so it’s your fault. And if you would just behave or
comply with my wishes and my commands, then this
wouldn’t happen.
The prosecutor also asked, “Is it unusual for victims to later change their
story?” Dr. Ferraro answered, “No, that is very typical,” adding that
victims recant or change the details of their account for many of the reasons
that might also make a victim reluctant to leave the relationship. In
addition, she explained, the victim may be afraid of violent repercussions;
may feel pressure from the abuser or friends and extended family; may be
intimidated to discontinue prosecution; and may be emotionally and
psychologically manipulated.
¶7 Then the following exchange took place:
Q. [H]ave you ever seen efforts made to assist their
partner in terms of getting them out of trouble or trying
to make something go away, avoid accountability?
A. Yes, often.
Q. . . . Are those factors the same in terms of why women
do that?
A. They are very often the same. I’ve actually seen
women go to jail and take the responsibility for a crime
that their abusive partner has committed. And in part
that is related to the psychological manipulation . . .
where the abusive person will have them convinced
that they’ll get a much lighter sentence, that they
maybe won’t get a sentence at all.
¶8 During closing arguments, the prosecutor did not mention
Dr. Ferraro or compare any aspect of her testimony to the facts of Haskie’s
case. Before jury deliberations began, the trial court instructed the jurors
that they were not bound by any expert opinion and should give an opinion
only the weight they believed it deserved. The jury found Haskie guilty of
two counts of aggravated assault (domestic violence), five counts of
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STATE V. HASKIE
Opinion of the Court
aggravated domestic violence, two counts of influencing a witness, and one
count of kidnapping.
¶9 The court of appeals affirmed, holding that Dr. Ferraro’s
testimony did not constitute impermissible profile evidence. State v. Haskie,
240 Ariz. 269, 273 ¶ 18, 276 ¶ 34 (App. 2016).
¶10 We granted review to consider whether Dr. Ferraro’s
testimony constituted impermissible offender profiling.1 We have
jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution
and A.R.S. § 12-120.24.
II. DISCUSSION
¶11 We review a trial court’s admission of evidence for an abuse
of discretion, which can include errors of law. State v. Ketchner, 236 Ariz.
262, 264 ¶ 13 (2014); see also State v. Cheatham, 240 Ariz. 1, 2 ¶ 6 (2016). We
review interpretation of court rules de novo. State v. Salazar-Mercado, 234
Ariz. 590, 592 ¶ 4 (2014).
¶12 Initially, we note that in Salazar-Mercado, a case involving
child victims, we held that Arizona Rule of Evidence 702 permits the
admission of “cold” expert testimony that educates the fact-finder about
general principles without applying those principles to the particular facts
of the case. 234 Ariz. at 591 ¶ 1. Salazar-Mercado’s rationale applies equally
to cases involving adult victims.
¶13 In Ketchner we precluded testimony that “implicitly invited
the jury to infer criminal conduct based on the [cold expert’s descriptions
of] characteristics,” relying on Ryan v. State, 988 P.2d 46, 56-57 (Wyo. 1999).
236 Ariz. at 265 ¶¶ 17, 19 (holding that the cold expert’s testimony
constituted impermissible profile evidence). We now elaborate.
1 The court of appeals held that certain portions of Dr. Ferraro’s testimony
constituted impermissible vouching, State v. Haskie, 240 Ariz. 269, 274–75
¶¶ 24–28 (App. 2016), but concluded that admitting those statements
amounted to harmless error, and affirmed Haskie’s convictions and
sentences. Id. at 276 ¶¶ 33–34. We did not grant review of that issue.
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STATE V. HASKIE
Opinion of the Court
¶14 “Profile evidence tends to show that a defendant possesses
one or more of an informal compilation of characteristics or an abstract of
characteristics typically displayed by persons engaged in a particular kind
of activity.” Id. at 264 ¶ 15 (internal quotation marks and citations omitted).
Describing evidence as “profile” evidence is a shorthand way of saying that
the evidence is offered to implicitly or explicitly suggest that because the
defendant has those characteristics, a jury should conclude that the
defendant must have committed the crime charged.
¶15 The state may not offer “profile” evidence as substantive
proof of the defendant’s guilt. See id. at 264–65 ¶¶ 15–19. The rationale for
this rule is evident: “[P]rofile evidence may not be used as substantive proof
of guilt because of the ‘risk that a defendant will be convicted not for what
he did but for what others are doing.’” Id. ¶ 15 (quoting State v. Lee, 191
Ariz. 542, 545 ¶ 12 (1998)).
¶16 Conversely, expert testimony that explains a victim’s
seemingly inconsistent behavior is admissible to aid jurors in evaluating the
victim’s credibility. See State v. Moran, 151 Ariz. 378, 381 (1986) (citing State
v. Lindsey, 149 Ariz. 472, 474 (1986)). Although expert testimony about
victim behavior that also describes or refers to a perpetrator’s
characteristics has the potential to be “profile” evidence, it is not
categorically inadmissible. Rather, its admissibility is determined by the
rules of evidence. The burden of establishing admissibility lies with the
proponent of the testimony — in this case, the State. Like all evidence, such
testimony must be relevant to be admissible. See Ariz. R. Evid. 401
(“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”); Ariz. R. Evid. 402 (“Relevant
evidence is admissible unless any of the following provides otherwise: the
United States or Arizona Constitution; an applicable statute; these rules; or
other rules prescribed by the Supreme Court. Irrelevant evidence is not
admissible.”).
¶17 If relevant, such evidence may still be excluded if the
prejudice created by its admission substantially outweighs its probative
value. See Ariz. R. Evid. 403 (“The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative
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STATE V. HASKIE
Opinion of the Court
evidence.”). Thus, evidence of offender characteristics may be admissible,
subject to a Rule 403 analysis, if it is relevant for a reason other than to
suggest that the defendant possesses some of those characteristics and
therefore may have committed the charged crimes. See Lee, 191 Ariz. at 546
¶ 19 (“[T]here may be situations in which drug courier profile evidence has
significance beyond the mere suggestion that because an accused’s conduct
is similar to that of other proven violators, he too must be guilty.”).
¶18 The outcome of this analysis will, of course, vary from case to
case. “Deciding whether expert testimony will aid the jury and balancing
the usefulness of expert testimony against the danger of unfair prejudice
are generally fact-bound inquiries uniquely within the competence of the
trial court.” Moran, 151 Ariz. at 381. The more “general” the proffered
testimony, the more likely it will be admissible. See State v. Chapple, 135
Ariz. 281, 292 (1983), superseded by statute on other grounds as stated in State v.
Goudeau, 239 Ariz. 421, 459 ¶ 154 (2016). In addition, the more the testimony
is tied to the defendant’s characteristics, rather than to those of the victim,
the more likely the admission of such testimony will be impermissibly
prejudicial. See id.
¶19 The danger of “cold” evidence describing the interaction
between offenders and victims is that it may stray into prejudicial and
potentially improper profile evidence. Ketchner provides an example of
such evidence. The expert witness (also Dr. Ferraro) in Ketchner testified
about “characteristics common to domestic violence victims and their
abusers,” and “described risk factors for ‘lethality’ in an abusive
relationship.” 236 Ariz. at 264 ¶ 14. This Court held the testimony was
inadmissible because, in addition to explaining victim behavior that
otherwise might be misunderstood by a jury, it described an abuser’s
reaction to loss of control in a relationship, inviting a comparison with the
defendant’s actions. Id. at 265 ¶ 19. Importantly, in Ketchner, the victim’s
actions were not at issue and the expert’s testimony did not explain victim
behavior: “There was no reason to elicit this testimony except to invite the
jury to find that Ketchner’s character matched that of a domestic abuser
who intended to kill or otherwise harm his partner in reaction to a loss of
control over the relationship.” Id. In other words, the expert testimony in
Ketchner was simply not relevant to explaining the victim’s behavior.
¶20 Here, the victim’s behavior and inconsistent statements were
squarely at issue. Dr. Ferraro’s testimony was limited to questions
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STATE V. HASKIE
Opinion of the Court
designed to help the jury understand the sometimes counterintuitive
behaviors of domestic violence victims. Although a few of her general
statements referred to an abuser’s characteristics, such as, “the abusive
partner will turn the violence around and say that if you hadn’t done this
or you had done that as I told you to do, this never would have happened,
so it’s your fault,” each statement primarily served the purpose of
explaining victim behavior. Thus, the testimony was relevant to help the
jury understand P.J.’s behavior.
¶21 The trial court considered the admissibility of Dr. Ferraro’s
testimony at the hearing on the State’s motion in limine. At that hearing,
Haskie neither objected to Dr. Ferraro’s testimony on Rule 403 grounds nor
argued prejudice. The trial court found that the testimony was relevant and
granted the motion.
¶22 Based on this record, the trial court did not abuse its
discretion in admitting Dr. Ferraro’s testimony. Any prejudice from her
testimony was minimal and did not outweigh the testimony’s probative
value. The evidence revealed some characteristics of domestic violence
abusers mentioned by Dr. Ferraro. As the court of appeals recognized, “[I]t
is not surprising — indeed it is expected — that the jury will hear evidence
that the victim has behaved to a greater or lesser extent in accord with the
testimony of a ‘cold’ and ‘blind’ expert such as Dr. Ferraro.” Haskie, 240
Ariz. at 274 ¶ 23. Our case law has recognized that “just because expert
testimony about behavioral characteristics is exceedingly persuasive does
not mean it is unfairly prejudicial.” Moran, 151 Ariz. at 384 (emphasis in
original) (holding that the trial judge did not abuse his discretion in
admitting such testimony under Rules 403 and 702). Dr. Ferraro’s
testimony was not directed at establishing that Haskie possessed “one or
more of an informal compilation of characteristics” typically displayed by
domestic violence abusers; rather, it was introduced to explain the impetus
for the victim’s counterintuitive behavior. Ketchner, 236 Ariz. at 264 ¶ 15.
She neither explicitly nor implicitly invited the jury to infer criminal
conduct based on the described conduct. See id. at 265 ¶ 17 (citing with
approval Ryan, 988 P.2d at 55 (warning that even testimony that only
implicitly invites the jury to infer criminal conduct on the part of the
defendant based on described characteristics demands close scrutiny under
the character evidence rules)). Dr. Ferraro never made comparisons
between general characteristics of an abusive relationship and the facts of
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STATE V. HASKIE
Opinion of the Court
this case. During closing arguments, the prosecutor never mentioned Dr.
Ferraro or related any aspect of her testimony to P.J. or Haskie.
¶23 The State proposes a standard for identifying when profile
evidence is impermissibly prejudicial. It argues that to violate the
prohibition against using profile evidence as substantive proof of guilt, the
prosecution must offer testimony (1) establishing the existence of a common
profile for perpetrators of a certain criminal activity, (2) enumerating the
profile’s component characteristics, and (3) expressly comparing the
defendant against each component characteristic to establish guilt by
showing that he “matches” the profile in most or all respects. But requiring
an explicit mention of a “profile” or a direct comparison of the defendant
with the expert’s testimony leaves too much room for prejudice and ignores
the real possibility that an expert could create a profile without ever
explicitly describing it as such.
¶24 We conclude that the trial court should consider the
prejudicial effect of the expert’s testimony as a whole, as well as that of each
individual statement offered. See State v. Steinle, 239 Ariz. 415, 419 ¶ 14
(2016) (stating that Rule 403 issues “are highly contextual — they
necessarily depend on assessments of not only the evidence in question, but
also the other evidence in the case”). But piecing together statements, none
of which make direct comparisons to the defendant’s conduct and all of
which are relevant to explaining a victim’s behavior, does not necessarily
establish that the evidence is more prejudicial than probative.
¶25 Although admission of Dr. Ferraro’s testimony in this case
was not error, we note that trial courts should exercise great caution in
screening, admitting, and limiting this type of evidence. Evidence
describing the characteristics of offenders, even as part of a description of
victim behavior, could imply that a defendant is guilty. This potential for
undue prejudice requires that trial courts carefully scrutinize such
evidence.
¶26 If such testimony is admitted, the defendant is entitled to a
limiting instruction under Rule 105 of the Arizona Rules of Evidence to
explain to the jury the limited purpose and scope of such testimony. Cf.
Woodson v. State, 30 Ariz. 448, 455 (1926) (“[W]hen evidence [that when
considered as a whole is highly prejudicial and is bound to engender
hostility toward the defendant] is admitted it is the duty of the trial court to
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STATE V. HASKIE
Opinion of the Court
use extraordinary care in instructing the jury and in seeing that no improper
matter is allowed to get before it.”). Additionally, although testimony
about offender or victim characteristics from a “cold,” “blind” expert is not
categorically inadmissible, that does not mean a trial court should
automatically admit it. Rather, trial courts should filter such proffered
evidence through the screens of Rules 401, 402, 403, and 702 of the Arizona
Rules of Evidence. Furthermore, we caution trial courts to limit “cold” and
“blind” testimony from expert witnesses to matters within the scope of their
expertise. Such experts should not be allowed to speak in broad, categorical
terms about supposedly “common” or “usual” occurrences without
empirical support.
III. CONCLUSION
¶27 We vacate paragraphs seventeen through twenty-three of the
court of appeals’ decision and affirm Haskie’s convictions and sentences.
10