State v. MabberlyState v. Mabberly
- Reporters:
- Before:
- Tucker
TUCKER, J.
{¶ 1} Defendant-appellant, Jerry A. Mabberly, appeals from his convictions for four counts of rape of a person under 13 years of age, first degree felonies pursuant to
{¶ 2} We find that the State introduced sufficient evidence to prove that Mabberly committed the charged offenses and that the jury did not clearly lose its way by returning verdicts of guilty in reliance on that evidence. We find further that Mabberly‘s defense counsel did not render ineffective assistance, and that the trial court did not refer to the
{¶ 3} The State raises a single cross-assignment of error in which it argues that the trial court abused its discretion by delivering an instruction to the jury regarding the limits of human memory. Although the basic principle articulated by the trial court may have been valid, we hold that the instruction as delivered arbitrarily incorporated critical concepts without defining them and effectively advised jurors to mistrust witnesses’ recollections, rather than neutrally cautioning jurors that witnesses’ memories can be inaccurate. By delivering the instruction and also allowing Mabberly to present expert testimony on the same subject, the trial court additionally risked giving jurors the impression that they should accept the expert‘s testimony as true, as opposed to determining for themselves whether, and to what extent, to credit the expert.
I. Facts and Procedural History
{¶ 4} On November 2, 2016, a Montgomery County grand jury issued an indictment against Mabberly charging him with seven violations of
{¶ 5} With Mabberly‘s trial date approaching, the trial court submitted its proposed jury instructions to the parties for their review on May 1, 2017. State‘s Motion in Limine Regarding Jury Instructions 1, May 3, 2017. The proposed instructions included a
{¶ 6} At a hearing on May 5, 2017, the trial court indicated that it would use the instruction over the State‘s objection and expressed its intention to call an expert as the court‘s witness to testify on the subject of memory during Mabberly‘s trial. See id. at 19:15-20:3. The State then filed a pair of motions on August 1, 2017, objecting in the first to the prospect of the court‘s witness testifying at the trial, and requesting in the second that the court not question the witness under any circumstances. On August 3, 2017, the court overruled the first of the motions as moot, noting that it had reversed course and already “assured [the parties] that [it], * * *, would not call [the witness] at trial,” and on August 8, 2017, it overruled the second.
{¶ 7} The trial court thus convened a somewhat unconventional deposition on August 16, 2017, for the purpose of consulting Dr. Craig Stark, a psychologist with expertise in the neuroscience of memory, about the text of the instruction. With the State and the defense present, along with Mabberly himself, the court examined Dr. Stark and afterward allowed the State and the defense to pose questions of their own. See id. at 58:2-58:19 and 87:9-118:17. Dr. Stark characterized the content of the instruction as scientifically accurate. See id. at 69:14-69:15 and 80:1-80:13.
{¶ 8} Mabberly‘s case proceeded to trial on August 21, 2017. Over the State‘s
II. Analysis
{¶ 9} We address Mabberly‘s first and second assignments of error together because they are closely related. For his first assignment of error, Mabberly contends that:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S RULE 29 MOTION AS TO EACH COUNT IN THE INDICTMENT.
And for his second assignment of error, Mabberly contends that:
APPELLANT‘S CONVICTIONS WERE ENTERED AGAINST THE WEIGHT OF THE EVIDENCE.
{¶ 10} Mabberly argues in his first assignment that the trial court erred by
{¶ 11} An appellate court reviews a trial court‘s ruling on a motion under
{¶ 12} By contrast, in a challenge based on the weight of the evidence, an “appellate court acts as a ‘thirteenth juror.’ ” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 49 (2d Dist.), quoting Thompkins at 387. The appellate court must therefore review the record; weigh the evidence and all reasonable inferences; consider the credibility of witnesses; and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice warranting a new trial. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A conviction “should be reversed as being against the manifest weight of the evidence ‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” See Hill at ¶ 8, quoting Martin at 175.
{¶ 13} Although the appellate court “must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses,” the court “may determine which of several competing inferences suggested by the evidence should be preferred.” (Citation omitted.) State v. Cochran, 2d Dist. Montgomery No. 27023, 2017-Ohio-216, ¶ 6. A determination that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of the sufficiency of the evidence because “a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11; State v. Miller, 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, ¶ 48, citing McCrary at ¶ 11.
{¶ 14} As Mabberly concedes, the record includes no reference to a motion for acquittal, and we find accordingly that Mabberly‘s first assignment of error is not supported by the record and is overruled.4 We turn, then, to Mabberly‘s second assignment of error.
{¶ 16} To prove that Mabberly violated
{¶ 17} The State also presented the testimony of a psychologist who specializes in providing therapy “to children who‘ve experienced trauma or who have disclosed sexual abuse,” and the testimony of a gynecologist who examined the victim in connection with the allegations against Mabberly. Id. at 251:21-252:16 and 333:7-335:1. In her testimony, the psychologist discussed her therapeutic assessment of the victim‘s
{¶ 18} In response to the State‘s evidence, Mabberly called a clinical and forensic psychologist to testify about the reliability of the investigatory interviews of the victim, with a particular emphasis on appropriate forensic interviewing techniques, along with the limitations of memory and its susceptibility to external influences. See id. at 352:25-353:6, 363:1-363:6, 364:12-366:20, 373:13-377:5 and 380:12-388:5. The witness expressed his concern that the victim‘s account of events during such investigatory interviews suggested the possibility that “there might [have] be[en] * * * some external influences on what she had to say.” Id. at 391:6-391:18. Among other reasons, the witness noted that certain of the victim‘s statements “were actually quite vague.” Id. at 391:9-391:11. Similarly, Mabberly‘s counsel sought to cast doubt on the accuracy of the victim‘s allegations by attempting to illustrate supposed gaps and inconsistencies in her recollections, including her description of Mabberly‘s genital organs. See id. at 611:20-634:1. As well, Mabberly presented the testimony of four character witnesses, including
{¶ 19} On this record, we cannot conclude that the jury clearly lost its way in finding Mabberly guilty of rape of a person under 13 years of age and guilty of unlawful sexual conduct with a minor. The State adduced prima facie evidence of each of the elements of the offenses, and the collective testimony of the expert and character witnesses—the State‘s and Mabberly‘s alike—did not suffice to prove or to disprove the allegations against Mabberly. As a result, the jury essentially had to decide whether the victim‘s allegations were credible, and the record provides no indication that the jury‘s decision to credit the victim‘s testimony was unreasonable or unfounded. Mabberly‘s second assignment of error is overruled.
{¶ 20} Mabberly‘s third and fourth assignments of error are also closely related, so we address them together, as well. For his third assignment of error, Mabberly contends that:
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE STATE‘S EXPERT TESTIFYING [sic] TO THE DIAGNOSIS AND TREATMENT OF THE ALLEGED VICTIM.
And for his fourth assignment of error, Mabberly contends that:
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE STATE REFERENCING [sic] THE FACTS OF THE CASE IN VOIR DIRE.
{¶ 21} Mabberly argues in his third assignment that his defense counsel should have objected when the psychologist called by the State as an expert witness described
{¶ 22} To prevail on a claim of “ineffective assistance of counsel, a defendant must satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38 (2d Dist.). The Strickland test requires a showing that: “(1) defense counsel‘s performance was so deficient that [it did not fulfill the right to assistance of counsel] guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * * defense counsel‘s errors prejudiced the defendant.” Id., citing Strickland at 687. Judicial “scrutiny of counsel‘s performance must be highly deferential,” so “a [reviewing] court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, a defendant bears the burden to demonstrate “a reasonable probability that, but for counsel‘s unprofessional errors, the result of [a given] proceeding would have been different.” Id. at 694; State v. Southern, 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A failure “to make either showing defeats” the claim. Cardenas at ¶ 38.
{¶ 23} Regarding Mabberly‘s third assignment of error, an expert witness may not offer a direct opinion on whether a child is telling the truth. (Citation omitted.) State v. Rosas, 2d Dist. Montgomery No. 22424, 2009-Ohio-1404, ¶ 42. Nevertheless, the “rules of evidence permit an expert to offer an opinion on an ultimate issue,” and “this includes
{¶ 24} In her testimony, the State‘s expert psychologist carefully avoided expressing a direct opinion on the truthfulness of the victim‘s statements. The psychologist, instead, testified to her diagnosis and treatment of the victim, noting among other things that the victim did “not present as traumatized by the events that have occurred.” Trial Transcript 276:24-277:3. Mabberly complains that in the absence of physiological evidence confirming that the victim suffered sexual abuse, the psychologist‘s testimony was impermissibly based solely on statements made to her by the victim. Yet, we have “held that only expert testimony directly commenting on [a] child‘s veracity is improper, and that testimony indirectly bolstering a child‘s credibility is permissible,” even if the testimony is offered in the absence of corroborating physiological evidence. (Emphasis added.) See State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 97 (2d Dist.).6
{¶ 25} The psychologist gave her most potentially objectionable testimony on cross-examination. After the psychologist observed that the precise details of the sexual
{¶ 26} Moreover, the psychologist made the remark while being cross-examined, specifically in the midst of an exchange during which Mabberly‘s counsel sought to convince the jury that the psychologist‘s diagnosis and treatment of the victim should not be perceived as circumstantial validation of the victim‘s allegations; this line of questioning invited the remark. See id. at 297:21-300:10. For that matter, even if the psychologist indirectly indicated that she believed the victim, she simultaneously conceded the possibility that the victim had been deceiving her. This hardly qualifies as a direct comment on the victim‘s veracity.
{¶ 27} We find that the psychologist‘s testimony was not inadmissible, and by extension, that the trial court would not have erred by overruling an objection to the testimony. Consequently, Mabberly cannot demonstrate that he suffered prejudice in the absence of an objection, and he therefore has not established that counsel rendered ineffective assistance in this respect. Mabberly‘s third assignment of error is overruled.
{¶ 28} Regarding Mabberly‘s fourth assignment of error, although “fairness requires that jurors be impartial, prospective jurors need not be totally ignorant of the facts and issues involved [in a case] to be qualified [to serve] as jurors” at trial. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 38; see also State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 51. The comments Mabberly challenges reflected only the most basic facts of the case, such as the victim‘s age, the offenses with which Mabberly was charged, the years in which the offenses were alleged to have occurred, and the nature of Care House. Trial Transcript 86:7-91:2, 93:16-94:5, 99:13-99:17 and 105:2-105:4. In making these comments, the State was exercising its right to refer to the facts of the case in order to determine which of the prospective jurors were suitable for service on the jury, and which might not be. See Jackson at ¶ 50-51.
{¶ 29} The “scope of voir dire falls within [a] trial court‘s sound discretion and varies depending on the circumstances of a given case.” Id. at ¶ 48. On this record, we cannot find that the trial court would have committed an abuse of discretion by allowing the foregoing comments over an objection from Mabberly‘s counsel. As a result, Mabberly cannot demonstrate that he suffered prejudice because his counsel did not object, meaning that he cannot establish that his counsel thereby failed to render effective assistance. Mabberly‘s fourth assignment of error is overruled.
{¶ 30} Mabberly‘s fifth assignment of error and the State‘s single cross-assignment of error implicate the same standard of review, so we address these assignments of error together. For his fifth assignment of error, Mabberly contends that:
APPELLANT WAS PREJUDICED BY THE TRIAL COURT LISTING [sic] THE INDICTED SEXUAL CONDUCT AS SEQUENCES [sic].
And for its cross-assignment of error, the State contends that:
THE TRIAL COURT ABUSED ITS DISCRETION BY GIVING JURY
INSTRUCTIONS REGARDING THE UNRELIABILITY AND FALLACIES OF MEMORY THAT REPRESENTED OPINION RATHER THAN LAW.
{¶ 31} Mabberly argues that the “trial court may have erred” in its instructions to the jury by labeling each of the charges against him with “an official sounding sequence number.” Appellant‘s Br. 16. He worries that “the jurors might very well have [interpreted the labels] to mean that the trial had come to a point [at which] the allegations had become so solid that they * * * no longer needed to be discussed as [though they were] allegations,” rather than established facts. Id.
{¶ 32} The trial court further included a nonstandard instruction addressed to the fallibility of human memory. Trial Transcript 194:3-195:15. According to the State, the trial court thus abused its discretion because the instruction was “biased” in favor of a skeptical assessment of the accuracy of witnesses’ memories, and because the instruction was not warranted by the evidence. See Appellee‘s Br. 22 and 24.
{¶ 33} In a criminal case being tried to a jury, the trial court has a statutory obligation to instruct the jury on “all matters of law” that the jury must consider in reaching a verdict, which includes “inform[ing] the jury that [it] is the exclusive judge of all questions of fact” and cautioning the jury that “it must not consider the punishment” that could be imposed on a defendant following a verdict of guilty.7 See
{¶ 34} The formalized practice of instructing juries is a relatively modern development, and “the movement toward drafting and publishing * * * pattern instructions by committees of judges and lawyers began [as recently as] the 1930s.” Rich, The Most Grotesque Structure of All: Reforming Jury Instructions, One Misshapen Stone at a Time, 24 Geo.J.Legal Ethics 819, 821-822 (2011); Tiersma, The Rocky Road to Legal Reform: Improving the Language of Jury Instructions, 66 Brook.L.Rev. 1081, 1082-1084 (2001). In fact, even the seemingly a priori principle of the “separation of the functions of [trial] court[s] and jur[ies],” by which “the duty of [a trial] court [is] to expound the law, and that of [a] jury [is] to apply the law as thus declared to the facts,” was not affirmed by the United States Supreme Court until 1895. See Sparf v. United States, 156 U.S. 51, 64-65 and 106, 15 S.Ct. 273, 39 L.Ed. 343 (1895); Tiersma, 66 Brook.L.Rev. at 1083. Before the advent of pattern instructions, judges and lawyers had to prepare instructions themselves
{¶ 35} Under Ohio law, the drafting or compilation of jury instructions is still left almost entirely to a trial court‘s discretion in the first instance.8 Standard 16 of the Ohio Trial Court Jury Use and Management Standards states that “trial judge[s]” should “[p]repare and deliver instructions which are readily understood by [persons] unfamiliar with the legal system,” and the official comment adds that “[r]eference may be made to Ohio Jury Instructions.” (Emphasis added.) Sup.R., Appendix B; see also State v. Martens, 90 Ohio App.3d 338, 343, 629 N.E.2d 462 (3d Dist.1993) (noting that the “instructions found in Ohio Jury Instructions are not mandatory“). Yet, other than guidance of this kind, neither Standard 16 nor
{¶ 36} In his fifth assignment of error, Mabberly argues that the “trial court may have erred” by “list[ing] the indicted instances of sexual conduct, not as ‘first charged [fill in] encounter, or first alleged [fill in] encounter, but rather gave each indicated count an official sounding sequence number.” Appellant‘s Br. 16. He posits that the jurors might have interpreted these labels to mean that Mabberly‘s guilt had already been proven.
{¶ 37} Mabberly‘s argument is utterly without merit. The trial court used the labels, without objection, simply to distinguish each of the four counts of rape from the others, and each of the two counts of unlawful sexual conduct from the other. Trial Transcript 782:13-783:19. Furthermore, the record belies virtually any possibility that the jury could have interpreted the labels as a suggestion of Mabberly‘s guilt, because for each of the six counts submitted to the jury, the trial court provided one verdict form for the jury to indicate a verdict of guilty, and a separate verdict form for the jury to indicate a verdict of not guilty. Id. at 926:20-930:21. Mabberly‘s fifth assignment of error is overruled.
{¶ 38} In its cross-assignment of error, the State challenges the trial court‘s instruction pertaining to the evaluation of witnesses’ credibility; the State objected to the instruction before and during Mabberly‘s trial. Trial Transcript 182:21-184:4. The instruction incorporated the most generally applicable components of the pattern instruction on credibility, Ohio Jury Instructions, CR Section 409.05 (Rev. Aug. 15, 2012), but the trial court also advised the jurors, in its own words, that when evaluating the testimony of a witness, they
should understand that imperfect memory is the norm. Memory can be
imperfect and susceptible to distortion and loss because human memory does not work like a video camera, simply accurately recording events we see and hear, so that we need only recall them later. Rather, memory is an adaptive process based upon reconstruction. Errors in memory can be driven by bias and experience because human brains are geared to look for regularities in the world. For example, a person may actually remember nonexistent information based upon their [sic] expectations. Witnesses, jurors and judges are not immune to this reality. This is not abnormal. If a witness believes an event should have happened in a certain way, based upon the witness‘s previous experiences, the witness may think the event happened in that way, even if it did not. Previously learned information including experiences in [sic] bias, [sic] can influence the learning of new information, such that whatever happens in an event can become associated, not just with elements actually present in the event, but also what is expected to be present based upon past experiences and biases.
We have known for decades that the passage of time between experiencing an event and later recalling it, [sic] can adversely affect accurate recall of the memory, because recent memories compete with older memories at the time of retrieval.
Simply retrieving a memory can subject it to alteration or even elimination. Memory distortions can unconsciously occur merely with retelling. Slight variations in the wording of questions can result in memory
distortion. For example, asking “how fast was the black car going, [sic] when it slammed into the white car?” can result in a memory for increased speed as opposed to asking “how fast was the black car going when it contacted the white car?” The general belief that confident [sic] detailed memories are always accurate and reliable is contrary to research suggesting that the opposite is possible, that confidently recalled memories can be inaccurate and that real memories are not always highly confident [sic] or detailed.
Trial Transcript 194:3-195:15.
{¶ 39} Maintaining that the instruction was “biased,” inasmuch as it was “directed exclusively at the unreliability of memory,” and that it was “entirely irrelevant” under the circumstances, the State argues that the trial court‘s decision to give the instruction should be reviewed for abuse of discretion. See Appellee‘s Br. 21-22 and 24. Mabberly replies to the State‘s arguments with an unpersuasive defense of the content of the instruction, but he takes no position on the appropriate standard of review. See generally Appellant‘s Reply 1-11, Oct. 25, 2018. The amici curiae contend, incorrectly, that jury instructions are “reviewable only for abuse of discretion,” to which they add that ” ‘the plain error rule should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice.’ ”10 (Emphasis added.) Brief of Amici Curiae 20, quoting an unattributed source.
{¶ 41} Regarding the instruction itself, the text comprises two basic propositions of fact: (1) human memory is imperfect for a number of reasons, such as the passage of time; and (2) a witness‘s expression of confidence in the accuracy of a memory is not a reliable indicator of actual accuracy. Trial Transcript 194:3-195:15. We accept the former proposition as axiomatic, and the latter proposition appears to reflect a broad consensus among experts. See, e.g., Krist v. Eli Lilly & Co., 897 F.2d 293, 296-297 (7th Cir.1990); United States v. Smith, 736 F.2d 1103, 1105-1107 (6th Cir.1984); State v. Williams, 8th Dist. Cuyahoga No. 58549, 1991 WL 95061, *3 (May 30, 1991); State v. Mahmoud, 2016 ME 135, 147 A.3d 833, ¶ 12-13; Commonwealth v. Gomes, 470 Mass. 352, 369-376, 22 N.E.3d 897 (2015); State v. Guilbert, 306 Conn. 218, 234-237, 49 A.3d 705 (2012); State v. Lawson, 352 Or. 724, 739-740, 291 P.3d 673 (2012); State v. Henderson, 208 N.J. 208, 245-247, 253-254 and 267, 27 A.3d 872 (2011); State v. Long, 721 P.2d 483, 488-490 (Utah 1986); Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility, 64 Am.U.L.Rev. 1331, 1340-1343 and 1355-1360 (2015).
{¶ 42} Nevertheless, in the form it was delivered to the jury, the instruction omits definitions for several significant concepts and terms. For instance, the instruction describes “memory [as] an adaptive process based upon reconstruction.” See Trial Transcript 194:8:194:9. Neither the term “adaptive process” nor the term “reconstruction” is precisely defined, however, and the use of these terms thus detracts from the clarity of the fundamental premise that “human memory does not work like a video camera, simply [generating] a recording [of] events” that can afterward be stored indefinitely and retrieved repeatedly with absolute fidelity. Id. at 194:4-194:8. Similarly, the instruction states that “[i]f a witness believes an event should have happened in a certain way, based upon the witness‘s previous experiences, [then] the witness may think the event happened in that way, even if it did not.” Id. at 194:15-194:18. Yet, this statement could mean that preconceived notions adversely affect a witness‘s ability to perceive an event accurately, or that preconceived notions adversely affect the accuracy of a witness‘s memory of an event. Likewise, the instruction states that the passage of time “can adversely affect [the accuracy of a] memory” because “recent memories compete with older memories at the time of retrieval.” Id. at 194:224-195:2. The meaning of the word “compete” in this context is somewhat uncertain, and the reference to competition among old and new memories specifically “at the time of retrieval” adds ambiguity to the otherwise straightforward concept that the accuracy of a memory is likely
{¶ 43} By introducing such ambiguity, the trial court distanced the instruction from the core principle on which even experts cannot disagree—that memory is imperfect or, in the words of the instruction, that “human memory is not like a video camera.” Trial Transcript 194:6. A number of other assertions included in the instruction also appear to reflect a broad consensus among experts, but the court‘s arbitrary emphasis on certain aspects of contemporary memory research results in the arbitrary exclusion of others, further removing the instruction from solid scientific ground. Though the instruction notes that personal “bias[es] and experience[s]” can produce “[e]rrors in memory,” it makes no mention, for example, of the reliability of memories formed during “[e]motionally charged events“; the distinction between long-term and short-term memory, and the various types of each; or the possible effects of individual physiology or substance abuse. Id. at 194:9-10; see, e.g., Jerome, The Biology of Memory, Time (Dec. 21, 2018) 10-13.
{¶ 44} Perhaps counterintuitively, a more concise instruction, focused tightly on the basic idea that memory is imperfect, would have better informed the jurors and, simultaneously, obviated the need to present the jurors with concepts and terms that require a far more detailed analysis than is appropriate or helpful in the context of jury instructions. The instruction‘s relative prolixity, on the other hand, might mislead jurors. More importantly, the instruction diverges from Ohio precedent with respect to the statement that a witness‘s confidence is not a reliable indication of the accuracy of the witness‘s memory. The apparent expert consensus notwithstanding, this statement directly conflicts with one factor of the Manson test for the evaluation of eyewitness identifications, which the Ohio Supreme Court adopted in its decision in State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d 682 (1988).11
{¶ 45} Furthermore, the instruction effectively counsels jurors to discount the accuracy of witnesses’ memories, as opposed to cautioning jurors objectively that witnesses’ memories might be incorrect. The text of the instruction consists of 346 words arranged into 15 sentences. Thirteen out of the 15 sentences either refer to the fallibility of memory, or explain why a given memory might be unreliable.12 For the purpose of reminding jurors that witnesses’ memories are subject to imperfections, the instruction is needlessly repetitive, and it consequently verges on advocacy, rather than neutral guidance.13 An instruction “must be balanced and neutral” to constitute an appropriate exercise of discretion. See, e.g., Howard, 42 Ohio St.3d at 24, 537 N.E.2d 188.
{¶ 46} The trial court compounded this problem by delivering the instruction at a trial during which it also allowed the defense to present expert testimony on the
{¶ 47} For all of the foregoing reasons, we find that the trial court abused its discretion by delivering the instruction on memory. The instruction arbitrarily incorporated critical concepts and terms without defining or adequately explaining them; moreover, irrespective of the lack of adequate explanation, these concepts and terms were redundant elaborations on the basic proposition that a witness‘s memory might not be accurate to the last detail. As a result of this redundancy, the tone of the instruction approached that of an editorial essay, in contrast to that of a detached, cautionary notification. Although the facts of this case were sufficient to warrant either an instruction on memory, or the presentation of expert testimony on memory, the trial court invested the subject with an inappropriate, arbitrary degree of prominence by delivering the instruction and also allowing the defense‘s expert to testify. The State‘s cross-assignment of error is sustained.
III. Conclusion
{¶ 48} We find that the jury‘s verdicts were not contrary to the weight of the evidence; that Mabberly‘s defense counsel was not ineffective for either of the reasons
{¶ 49} Regarding the State‘s cross-assignment of error, we find that the trial court‘s instruction on memory constituted an abuse of discretion with respect to the content of the instruction, and with respect to the use of the instruction under the circumstances of this case. Although we sustain the State‘s cross-assignment of error, the State is not entitled to any relief in this case.
{¶ 50} Finally, we note that this appeal is one of three pending appeals dealing with the trial court‘s use of an instruction concerning the fallibility of human memory. See also State v. Rac, 2d Dist. Montgomery No. 27536 (Montgomery C.P. No. 2016-CR-04002); State v. Pettiford, 2d Dist. Montgomery No. 27490 (Montgomery C.P. No. 2016-CR-02713). Each opinion confronts a distinct instruction, albeit differing only slightly from the others, delivered within the context of a distinct record; nonetheless, each opinion, though based upon somewhat different reasoning, holds that the trial court erred by delivering the instruction. Collectively, the opinions can support the following three conclusions.
{¶ 51} First, unless the Ohio Supreme Court rules otherwise, information concerning memory and identification may be presented through expert testimony subject to the adversarial process. In cases in which such expert testimony is presented, however, a corresponding jury instruction-whether preliminary or final-would be inappropriate if it appears either to endorse or to reject the testimony.
{¶ 52} Second, a concise, limited and neutral instruction on memory or identification that accords with presently controlling precedent may be appropriate.
{¶ 53} Third, evaluated pursuant to either of the foregoing conclusions, none of the three iterations of the trial court‘s memory instruction was appropriate. In the instant case specifically, the instruction was an abuse of discretion by both measures.
FROELICH, J., concurs.
WELBAUM, P.J., concurring:
{¶ 54} I disagree with the language in the majority opinion regarding the State‘s Cross Assignment of Error to the extent it suggests that, in the absence of Ohio Supreme Court precedent, trial courts may instruct juries in enhanced detail about the science of memory. As set forth in State v. Pettiford, 2d Dist. Montgomery No. 27490, I believe that at this stage of development in Ohio, the science of witness memory relating to identification or otherwise, is the proper subject of expert testimony rather than the use of fortified jury instructions.
{¶ 55} Furthermore, where expert testimony on the subject has been provided to the jury, trial courts should confine the jury instructions to general statements about witness credibility. Experts are simply witnesses like any others, and to specifically instruct juries in detail on what an expert has said improperly emphasizes the testimony.
{¶ 56} I believe the trial court committed an error of law and also abused its discretion in giving the enhanced jury instructions on the subject of witness memory in the absence of controlling authority from the Ohio Supreme Court.
{¶ 57} Otherwise, I agree with the decision to sustain the State‘s Cross-Assignment of Error.
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