United States v. Rodella

UNITED STATES OF AMERICA, Plaintiff, v. THOMAS R. RODELLA and THOMAS R. RODELLA, JR., Defendants.

No. CR 14-2783 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

November 18, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) Defendant Thomas R. Rodella's Notice of Intention to Offer Expert Testimony, filed September 8, 2014 (Doc. 42)("Notice"); and (ii) the United States' Objection to Defendant Thomas R. Rodella's Notice of Intention to Offer Expert Testimony (Doc. 42), filed September 12, 2014 (Doc. 69)("Objection"). The Court held an evidentiary hearing on September 16, 2014. The primary issues are: (i) whether Harvey Stanford Sanders, M.D., is qualified to testify about the length of time it takes for a bruise to manifest after an injury; (ii) whether Dr. Sanders is qualified to testify whether the booking photograph of Michael Tafoya, the alleged victim, from the Rio Arriba County Jail, taken on March 11, 2014, shows evidence of facial bruising; (iii) whether Dr. Sanders' testimony about the time it takes a bruise to manifest after an injury would assist the jury; (iv) whether Dr. Sanders' testimony whether Tafoya's booking photograph shows evidence of facial bruising would assist the jury; (v) whether Dennis L. O'Brien's testimony about the acceleration differences between Tafoya's Mazda and Defendant Thomas R. Rodella's Jeep would assist the jury; and (vi) whether O'Brien's testimony reconstructing the scene of the accident would assist the jury. Because Dr. Sanders has practiced reconstructive and plastic surgery for forty years, because much ofDr. Sanders' practice involved traumatic facial injuries, and because Dr. Sanders used photographs regularly during his medical practice, Dr. Sanders is qualified offer opinion testimony about the amount of time it takes for a bruise to manifest and about whether a photograph shows evidence of bruising. Additionally, because an ordinary jury would not likely know how long it takes for a bruise to manifest after an injury, Dr. Sanders' testimony regarding the amount of time it takes for a bruise to manifest would assist the jury. Also, because a juror can observe from the booking photograph whether Tafoya's face is bruised without the assistance of expert testimony, Dr. Sanders' testimony that Tafoya's booking photograph does not show evidence of bruising would not assist the jury. Finally, because the events surrounding the incident on March 11, 2014, are in dispute, and because O'Brien's testimony is based on reliable information, O'Brien's testimony would assist the jury. The Court will sustain the Objection in part and overrule it in part. The Court will permit Dr. Sanders to testify about the time that it takes a bruise to manifest after an injury, but the Court will exclude Dr. Sanders' testimony that Tafoya's booking photograph shows no evidence of a facial injury. Additionally, the Court will permit O'Brien's testimony.

FACTUAL BACKGROUND

The Superseding Indictment, filed September 9, 2014 (Doc. 55)("Indictment"), alleges that, on March 11, 2014, in Rio Arriba County, New Mexico, Rodella, while acting under color of state law, subjected a person -- Tafoya -- to "unreasonable seizure by a law enforcement officer." Indictment at 1. Specifically, Rodella allegedly used unreasonable force and caused an "unlawful arrest by deputies of the Rio Arriba County Sheriff's Office." Indictment at 1. "This offense resulted in bodily injury" to a person, and included the "use and threatened use of a dangerous weapon." Indictment at 1. The Indictment further alleges that Rodella carried andbrandished a firearm "during and in relation to a crime of violence for which the defendant may be prosecuted in a court of the United States," and that, "in furtherance of such crime, possessed and brandished said firearm." Indictment at 1-2.

PROCEDURAL BACKGROUND

On September 8, 2014, Rodella gave notice, pursuant to rule 16(b)(1)(a) and the Scheduling Order, filed August 15, 2014 (Doc. 8), that he intends to introduce expert testimony at trial. See Notice at 1. Rodella notified the Court of his intention to call at trial Dr. Sanders and O'Brien as expert witnesses. See Notice ¶¶ 1-2, at 1-2. The United States objects to the testimony of both witnesses. See Objection at 1.

1. Dr. Sanders' Curriculum Vitae.

Dr. Sanders graduated from Rhodes College at Memphis, Tennessee, in 1963, with majors in Biology and English. See Harvey Stanford Sanders, M.D., Curriculum Vitae at 1, filed September 8, 2014 (Doc. 42-1)("Sanders CV"). See also Transcript of Evidentiary Hearing at 38:3-9 (taken September 16, 2014)(Sanders, Gorence)("Tr.").¹ Dr. Sanders attended medical school at the Tennessee School of Health Sciences in Memphis, Tennessee, and graduated in 1967. See Sanders CV at 1. From 1967 to 1972, Dr. Sanders completed his general residency at the Ochsner Clinic and Foundation in New Orleans, Louisiana, and from 1972 to 1974, Dr. Sanders completed residencies in plastic surgery at the University of Chicago Pritzker School of Medicine in Chicago, Illinois, and at Vanderbilt University in Nashville, Tennessee. See Sanders CV at 1. Dr. Sanders began serving in the Army Medical Corps during his time in medical school until 1978. See Sanders CV at 1. From 1974 to 2001, Dr. Sanders practiced reconstructive and plastic surgery at a number of hospitals in the Nashville Metropolitan Area.See Sanders CV at 1. Dr. Sanders was in a car accident near the end of his private practice. See Tr. at 41:15-20 (Sanders). Dr. Sanders suffered a torn rotator cuff, as a result of the accident, and he was forced to retire in 2001. See Tr. at 41:15-42:8 (Gorence, Sanders). Dr. Sanders has been a member of the American Medical Association, the Tennessee Medical Association, the Nashville Academy of Medicine, the American Society of Plastic and Reconstructive Surgery, the University of Chicago Surgical Society, and the Alton Ochsner Alumni Association. See Sanders CV at 2.

2. Dr. Sanders' Testimony.

Dr. Sanders has reviewed Tafoya's booking photograph, photographs of Rodella's sheriff badges, and Rodella's current badge. See Notice ¶ 1, at 1. Dr. Sanders will testify about facial bruising and the time periods in which a bruise becomes visible after trauma. See Notice ¶ 1, at 1. Dr. Sanders will testify that there is no evidence of trauma on Tafoya's neck and face area from either an anterior or posterior view as reflected in Tafoya's booking photograph from the Rio Arriba County jail, which was taken on March 11, 2014. See Notice ¶ 1, at 1. Specifically, Dr. Sanders will testify that there is no evidence of any abrasions, scratch marks, lacerations, or imbedded debris on Tafoya's facial area or neck. See Notice ¶ 1, at 1-2. Dr. Sanders will also testify that, had Tafoya suffered an injury more than four hours earlier, either marks or debris would be visible in the booking photograph. See Notice ¶ 1, at 1-2. Dr. Sanders will testify that Tafoya did not have an injury to his eye or eye socket, and that he did not have a black eye. See Notice ¶ 1, at 2. Dr. Sanders will also testify that there is no evidence of any physical damage to Tafoya's skin. See Notice ¶ 1, at 2. Rodella argues that Dr. Sanders' testimony will rebut the testimony of Special Agent John W. Howard of the Federal Bureau of Investigation ("FBI"),who opined in his affidavit that there is evidence that Tafoya suffered a facial injury. Notice ¶ 1, at 2.

The United States responds to this proffered testimony by arguing that "it does not appear that Sanders is qualified to give an opinion as to the aging of bruises or other superficial injuries." Objection at 3. The United States specifically argues that Dr. Sanders has not conducted any research or written any publications in the area of his proposed testimony, and that "he has not practiced any form of medicine for at least 13 years." Objection at 3. The United States contends that, even if Dr. Sanders were qualified to "render opinions on aging of bruises, his testimony should be disallowed because of his methodology or lack thereof." Objection at 3 (internal quotation marks omitted). The United States argues that the "entire basis of Sanders' opinion is his review of a single, grainy photograph taken of the victim by the detention facility after his arrest" and that this "opinion of what the picture depicts could not possibly assist the trier of fact." Objection at 3. The United States contends that there is no apparent methodology "involved in Sanders' analysis that would permit the court to assess the reliability" of Dr. Sanders' testimony and that, if "the reliability of an expert's methodology cannot be demonstrated, his testimony should be excluded." Objection at 3 (citing United States v. Foghorn, No. CR 03-2365 JB, 2005 WL 6136334 at *4-5 (D.N.M. June 15, 2005)(Browning, J.)).

The United States further argues that Dr. "Sanders' description or opinion of what the picture depicts lacks any relevance because it cannot assist the jury," and because "the jury is just as capable of drawing its own conclusions from what they see in the detention facility photograph." Objection at 4. The United States contends that Rodella is attempting "to usurp the jury in determining the victim's credibility" regarding Tafoya's testimony that "Rodellasmacked him on the right cheek with his badge on March 11, 2004." Objection at 4. The United States argues that the jury should be able to "listen to the victim's testimony, view the detention facility photograph, and draw its own conclusion." Objection at 4. The United States argues that Dr. Sanders' testimony "not only invades the province of the jury, but would lead to confusion and should be disallowed under" rules 403 and 702 of the Federal Rules of Evidence. Objection at 4.

The United States also filed several medical journal articles that concern the ability to age bruises. See Email re Medical Journal Articles, filed September...