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Payne v. State

Alabama Court of Criminal Appeals

February 10, 2017

Eric Payne
v.
State of Alabama

         Appeal from Talladega Circuit Court (CC-14-104)

          WELCH, JUDGE.

         The appellant, Eric Payne, was indicted for the intentional murder of his eight-month-old daughter, J.P., an offense defined as capital by § 13A-5-40(a)(15), Ala. Code 1975. He was convicted of the lesser-included offense of intentional murder, a violation of § 13A-6-2, Ala. Code 1975, and was sentenced to life imprisonment.

          The State's evidence tended to show the following. At around 4:30 p.m. on June 11, 2013, paramedics were dispatched to Eric Payne's apartment off Old Shocco Road in Talladega in response to a 911-emergency telephone call. David White, a paramedic with NorthStar Emergency Services, testified that when he and fellow paramedic Ken Jones arrived at the apartment two police officers were performing CPR on a small child, J.P., in the living-room area of the apartment. One officer handed J.P. to him. J.P., he said, was in cardiac arrest, was not breathing, and had no pulse. White testified that Payne told him at the scene that J.P. had fallen off a bed earlier that day, that Payne had given J.P. Motrin brand pain reliever, and that J.P. then stopped breathing. White testified that CPR was performed on J.P. until the ambulance arrived at Citizens Hospital. J.P. was then transported via a helicopter to the Children's Hospital in Birmingham and was later pronounced dead. The coroner testified that J.P. died of blunt-force trauma to her head and neck, that she had a skull fracture, that she had multilayered retinal hemorrhages, and that she had injuries to her ribs.

          Debbie Hurst testified that she lived in an apartment next to Payne and Payne's girlfriend, Kyeandrea Barclay, and that they all became friends. Early on the morning of June 11, 2013, at around 9:00 a.m., Payne and Hurst's boyfriend, Terry Spratlin, and Darnell Huddleston, Hurst's former sister-in-law, came to her apartment. Hurst said that they talked and smoked marijuana. Several times during the day, Hurst said, she asked Payne where J.P. was and Payne told her that she was in his apartment asleep. She also asked Payne to check on J.P., Hurst said, and Payne left her apartment and came back about five minutes later and said that J.P. was asleep. Hurst testified that Payne was acting strange that day. At around 3:45 p.m., Hurst said, Payne said that he had to get ready for work, and he went back to his apartment. He came back shortly thereafter, she said, and told her that "something was wrong with his baby." (R. 177.) Hurst testified that she and Spratlin went to Payne's apartment. She testified:

"J.P. was laying on the couch, and her head was swollen, and her eyes [were] like protruded out of her head. I lifted her eyelid because I worked for an ophthalmologist. She was not breathing. She had no air in or out. I could not find a pulse, and I told them to call 911."

(R. 177.) She talked to the 911 operator, Hurst said, and put the baby on the floor and tried to perform CPR. Hurst further testified that she saw J.P. the day before and that J.P. had been happy and laughing that day.

         Vickie Walker, an emergency-room nurse at Citizens Hospital, testified that she was working on the afternoon that J.P. was brought into the emergency room and that she took J.P. to the critical-care unit. She said that J.P. was lifeless, that she had no pulse, that she had no respirations, and that she was showing no signs of life. (R. 212.) Walker testified that hospital personnel tried to shock J.P.'s heart "but we were unable to get a heart rate back at that initial shock. And we continued CPR again to try to circulate the blood through the body. Shocked again, and finally that baby got a little pulse, and we began to work with that." (R. 214.) J.P. was then transferred to Birmingham. Walker testified that she spoke to Payne about what happened and he told her that "the baby was lying on his lap and fell on the floor and hit her head" and that Payne had given J.P. ibuprofen. (R. 215.)

         The State presented the testimony of five physicians who had treated or performed the autopsy on J.P. All testified that J.P.'s injuries were not consistent with falling from a bed because, they said, the injuries were too severe.

         In his defense, Payne presented the testimony of Dr. Peter Stephens, a doctor certified in anatomic pathology, clinical pathology, and forensic pathology. Dr. Stephens testified that J.P. died as a result of falling off a bed and that her injuries were consistent with a vitamin D deficiency. (R. 619.)

         Eric Payne testified in his own defense. He said that he arrived at his apartment from work at around 5:00 a.m. on the morning of June 11, 2013, and that J.P. was restless and that he tried to calm her down. He said that he fell asleep in his bed with J.P. on his chest and that when he woke J.P. was on the floor crying. Payne said that he did not notice that J.P. had any injuries and that he gave her some ibuprofen. He said that, when she started to fall asleep, he put her in her playpen and started doing "little things around the house." (R. 692.) A little while later he heard his neighbor's nephew, Britton, pull up outside because the music in his car was loud.

"I went out there with Britton, and we were talking about music, and I don't know how much time had passed because I was not looking at the clock; neither do I have a clock in my house. So some time had passed by before Britton had asked me -- he was like, 'Hey, man, where is the baby?' I said, 'Hold on, let me go check on her, ' proceeded in to check on her as I always do, and I went in. I just rubbed her on the back, and she moved a little bit like she normally do, and I went back outside, I said, 'Man, she asleep.'"

(R. 693.) He talked some more with Britton, Payne said, and then went back to check on J.P. a second time.

"Okay. After the second time when I checked on [J.P.], then we were all talking, and we eventually ended up walking into Deb's [Hurst's] house following the conversation. I left my door open, as I always do just in case [J.P.] starts crying, I can come back home and check on her. Because me and Deb's house is so close together, it is kind of no need for a baby monitor because I can be my own baby monitor because I can hear just fine and I can hear when my baby wakes up. So I left the door open, and I left Deb's door open, and Deb fed me hot dogs."

(R. 696.) Payne said that he went back to his apartment at around 4:00 p.m. and found that J.P. was unresponsive and was limp. He tried CPR and then went to Hurst's apartment for help. Hurst came over, he said, and he telephoned 911.

         Payne raises only one issue on appeal to this Court. He argues that the circuit court erred in allowing five physicians to testify concerning the cause of J.P.'s injuries and that the circuit court erred in not applying the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), standard of admissibility to the five physicians's testimony. In essence, Payne challenges the reliability of that testimony and not its relevance.

         The record reflects that Payne moved in limine that the State be "barred from entering any evidence, or eliciting any testimony from physicians or other witnesses, regarding the scientific probability of certain injuries sustained by the alleged victim. ..." (C. 103.) The circuit court considered and denied the motion after each doctor was questioned by defense counsel on voir dire. (R. 368, 411, 447, 490, and 519.)

         In Alabama, the admission of expert testimony is governed by Rule 702, Ala. R. Evid. Effective January 1, 2012, the Alabama Supreme Court amended Rule 702, Ala. R. Evid., to mirror the comparable Federal Rule of Evidence.[1] Rule 702, Ala. R. Evid., now reads:

"(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
"(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
"(1) The testimony is based on sufficient facts or data;
"(2) The testimony is the product of reliable principles and methods; and
"(3) The witness has applied the principles and methods reliably to the facts of the case."

         Section 12-21-160, Ala. Code 1975, also provides:

"(a) Generally. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
"(b) Scientific evidence. In addition to requirements set forth in subsection (a), expert testimony based on a scientific theory, principle, methodology, or procedure is only admissible if:
"(1) The testimony is based on sufficient facts or data,
"(2) The testimony is the product of reliable principles and methods, and
"(3) The witness has applied the principles and methods reliably to the facts of the case."

         The Alabama Court of Civil Appeals, in discussing the 2012 amendment to Rule 702, Ala. R. Evid., stated:

"The intent of the amendment was to provide additional criteria for a trial court to consider when an opposing party properly challenges the qualifications of a proposed expert witness by applying a process and procedure similar to the process and procedure established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)."

Colbert Cty. Northwest Alabama Health Care Auth. v. Regional Care Hosp. Partners, Inc., 195 So.3d 948, 960 (Ala. Civ. App. 2015). "The amendment requires trial judges to act as 'gatekeepers' and determine whether the scientific evidence is both 'relevant and reliable.' See Daubert [v. Merrell Dow Pharmaceuticals, Inc.], 509 U.S. [579] at 597 [(1993)]." Advisory Committee's Notes to Amendment to Rule 702 Effective January 1, 2012.

"To assist courts in evaluating the reliability of expert testimony, Daubert [v. Merrell Dow Pharmaceuticals, Inc.], 509 U.S. 579 (1993), ] set forth a non-exclusive list of factors. Daubert, 509 U.S. at 593, 113 S.Ct. 2786. The specific factors articulated by Daubert are: (1) whether the expert's theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique or theory is generally accepted within the relevant scientific community; (4) the known or potential rate of error of the technique or theory when applied; and (5) the existence and maintenance of standards controlling application of the technique. Id. at 593-94, 113 S.Ct. 2786.
"No single Daubert factor is dispositive of the reliability of an expert's testimony, and not all of the Daubert factors will apply to 'all experts or in every case.' Kumho Tire [Co., Ltd. v. Carmichael], 526 U.S. [137] at 141-42, 152, 119 S.Ct. 1167 [(1999)]; Fed.R.Evid. 702, advisory committee's notes, 2000 amendments; [State v.] Bernstein, 234 Ariz. [89] at 95, ¶ 12, 317 P.3d [630] at 636 [(2014)]; see e.g., Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996) (stating that the Daubert factors did not precisely apply to the proffered sociologist's expert testimony). Moreover, courts since Daubert have identified other factors for judges to consider in determining reliability, including whether: (1) the expert's testimony is prepared solely in anticipation of litigation, or is based on independent research; (2) the expert's field of expertise/discipline is known to produce reliable results; (3) other courts have determined that the expert's methodology is reliable; and (4) non-judicial uses for the expert's methodology/science. Fed.R.Evid. 702, advisory committee's notes, 2000 amendments; Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167; Oddi v. Ford Motor Co., 234 F.3d 136, 156 (3rd Cir. 2000); Daubert II [v. Merrell Dow Pharmaceuticals, Inc.], 43 F.3d [1311] at 1317 [(9th Cir. 1995)]."

State ex rel. Montgomery v. Miller, 234 Ariz. 289, 299, 321 P.3d 454, 464 (2014).

         However, "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one." Daubert, 509 U.S. at 594-95. "In some cases, the relevant reliability concerns may focus upon personal knowledge or experience of the Daubert factors and scientific foundation. Kumho Tire [Co., Ltd. v. Carmichael], 526 U.S. [137] at 150, 119 S.Ct. 1167');">119 S.Ct. 1167');">119 S.Ct. 1167');">119 S.Ct. 1167');">119 S.Ct. 1167');">119 S.Ct. 1167');">119 S.Ct. 1167');">119 S.Ct. 1167 [(1999)]." Smart v. BNSF Ry., 52 Kan.App.2d 486, 495, 369 P.3d 966, 973-74 (2016).

         As one court has stated:

"The United States Supreme Court has clarified the import of the Daubert ...

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