State Of Louisiana VS Louis Lamonica
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 1366 STATE OF LOUISIANA n VERSUS J LOUIS LAMONICA J On Appeal from the 21st 7udicial District Court Parish of Tangipahoa Louisiana Docket No 502 Division H 220 Honorable Zorraine M Waguespack Judge Presiding Scott M Perrilloux Attorneys for District Attorney Patricia Parker State of Louisiana AssisWnt District Attorney Amite LA Frank Sloan Louisiana Appellate Project Mandeville LA Attorney for Appellant Defendant Louis Lamonica BEFORE PARRO KUHN AND McDONALD JJ JUL 2 9 2010 udgment rendered PARRO The defendant Louis Lamonica was charged by grand jury indictment with one count of aggravated rape of M from January 1 1992 to December 31 1992 L count 1 one count of aggravated rape of M from January 1 1994 to L December 31 1994 count 2 one count of aggravated rape of S from anuary L 1 1999 to December 31 1999 count 3 and one count of aggravated rape of S L from January 1 2000 to December 31 2000 count 4 all violations of LSA S R 42 14 The defendant pled not guilty to the charges and following a jury trial was found guilty as charged on all counts On each count he was sentenced to life imprisonment at hard labor without benefit of parole probation or suspension of sentence with the sentences to run concurrently The defendant now appeals designating one assignment of error We affirm the convictions and sentences FACTS The defendant was the father of two sons M born July 27 1986 and L L S born April 10 1990 At the time of the alleged offenses the defendant was the pastor of Hosanna Church formerly The First Assembly of God Church on Louisiana Highway 51 in Tangipahoa Parish The defendanYs wife R and his L sons were members of the church In the late 1990s Lois Mowbray became associate pastor of Hosanna Church and in 2001 she became co of the pastor church By 2003 the defendanYs involvement in the church including his involvement as a preacher declined considerably Lois along with her husband Jesse Mowbray and R began handling the finances of the church According to L the defendant Lois began to take over as the person running the church In 2002 the defendant and R began having marital problems In March L of 2003 the defendant separated from R and began living at the church For the L next two years the defendant lived at the church In 2002 or 2003 Dr Milton Anderson a psychiatrist began treating M and L L S Dr Anderson saw the boys on a regular basis for medication management and 2 general supportive therapy Both boys had A anxiety and Tourette H D s syndrome In March 2005 R contacted Dr Anderson and told him it was urgent L that he see the boys Over the course of two sessions M and S revealed to L L Dr Anderson that for years they had been forced to have sex with adults a very young girl A and each other S also had a stack of pictures he had drawn B L graphically illustrating the abuse he and his brother had suffered According to M L and S they were threatened by church member N to disclose to Dr Anderson L B all of the sexual incidents in which they were involved As a result of these sessions Dr Anderson contacted Child Protective Services According to Thomas Tedder an FBI Special Agent working on the case when the defendant and Bernard as well as some other adult church members began living at the church there were no longer any church services and the building had in effect ceased functioning as a church In late March 2005 Dr Adrienne Atzemis a pediatric forensic medicine specialist saw M and S for therapy Dr Atzemis also performed a full physical L L examination on each boy Dr Atzemis testified at trial that M and S told her L L that they were forced to perform sexual acts on the defendant and others L M said he had oral and anal sex with the defendant at home and at the church L S also said he had oral and anal sex with the defendant In April 2005 Jennifer Thomas a forensic interviewer with the Child Advocacy Center CAC interviewed M and S in Hammond At trial Thomas L L indicated that M was eighteen years old when he was interviewed and as such L his interview could not be used in court The videotaped interview of S who was L almost fifteen years old at the time was played for the jury In the interview S L listed at least half a dozen adult church members including the defendant who took part in the sexual abuse According to S sexual incidents occurred at his L B N was the mother of A and the wife of Trey Bernard who was also living at the church B because of marital problems See State v Bernard 08 La App ist Cir 2 1322 09 13 unpublished opinion 5 So 317 table writ denied 09 La 12 23 So 910 3d 0680 09 11 3d 3 I I house s Bernard house and the church L S told Thomas that he also had sex with a dog and with A who was about one year old S and Thomas also went B L over S drawings of various sexual acts involving certain people including s L and himself M L the defendant L S indicated to Thomas that some of his drawings depicted actual events while other drawings were products of his imagination or based on what he and the defendant talked about According to L S of about 55 drawings approximately 22 of them depicted actual events involving sex In July and August 2005 S had several therapy sessions with Dr Allison L McCain a clinical psychologist Dr McCain testified at trial that she found S to L have a lot of depression some anxiety and guilt and feelings of worthlessness L S told Dr McCain that he tried to cope with his feelings with distraction and repression L S told Dr McCain that he had been using these coping mechanisms for years to try to not think about the molestation S also indicated that after his L parents separated the molestation stopped In May 2005 the defendant walked into the Livingston Parish Sheriff sOffice and asked to speak to Detective Bonita Sager In a taped interview with Detective Sager the defendant confessed to raping his sons The defendant stated that at his home in Springfield Livingston Parish he performed oral sex on M when he L was four or five years old The defendant began having anal sex with both M L and S when they were five or six years old The defendant further indicated that L sexual activity involving several people including A occurred at Hosanna Church B Based on this information Detective Sager contacted the Tangipahoa Parish s Sheriff Office Detective Reginald Bryant with the Tangipahoa Parish Sheriff s Office met with Detective Sager in Livingston Parish and Detective Sager interviewed the defendant for a second time on the same day In this second interview the defendant provided detailed accounts of various sexual encounters at the church He described orgies at the church involving his sons A and B 4 teenaged members of the church all having sex with several adult members of the church including the defendant The defendant stated that most of the time he had sex with his sons at home but that he had sex with them at the church as well The defendant did not mention Lois Mowbray in either of his statements to the police Police searched the defendanYs house and found a notebook containing writings by the defendant Handwritten by the defendant ostensibly in 2004 these pages detailed the repeated instances of his orally and anally raping M and S L L The defendant wrote about having sex with his dog forcing his sons to have sex with each other and raping S starting from the age of three up until the age of L twelve The defendant wrote that he used money toys threats and physical abuse to control and rape his sons In late 2005 Dr Angela Mayfield owner of New Beginnings Behavioral Healthcare in Hammond began counseling S L L S told Dr Mayfield that his father mother and other people at church sexually molested him The defendant and R his wife were in jail when S was being treated by Dr Mayfield so S L L L lived with his grandmother the defendanYs mother Dr Mayfeld testified at trial that within two months of moving in with his grandmother S changed his L account of his being sexually abused S told Dr Mayfield that he made up all of L the allegations of abuse and that someone at the church had forced him to say that he was abused and molested Dr Mayfield testified that in late 2005 or early 2006 S said he made it all up but that despite his recantation she continued L to treat him until September 2007 because he still had problems Dr Mayfield testified that after S recanted he still had the symptoms that were consistent L with his history of sexual abuse Dr Mayfield felt S symptoms in fact got s L worse and S began using illegal drugs L L M and S testified at trial They both had written about the sexual abuse L that occurred and S had drawn pictures of the abuse They both claimed at L 5 trial however that the sexual abuse had never occurred and that they were forced by N to make these false allegations B They also both claimed that all of the allegations of sexual abuse they had written about were not true and that their mother told them what to write L M stated that N also told him what to write B L S stated that ois Mowbray also told him what to write as well as to draw the pictures M explained that N told him that if he did not come forward with the L B allegations of sexual abuse including the abuse to her daughter A N would B B press charges against him and he would go to jail The defendant testified at trial that none of the sexual allegations he had confessed to or written about were true He testified that when he was the pastor of the church he made Lois Mowbray his spiritual advisor that R and Lois were L very close and that they were close to N He believed that Lois was a prophet B and spoke to God The defendant claimed that he made these false confessions because Lois had control over him and forced him to speak and write about things he never actually did but may have thought about According to the defendant the notion of spiritual thought preached by Lois meant that if you think something then it happened The defendant claimed that R also made him write about sexual acts that never occurred and that if he did not write as instructed she would divorce him and he would never see his sons In his testimony the defendant suggested that Lois made him remain at the church and work very long hours each day with little sleep for no money at Integrity Electric a business operating within the church He also had to do work cleaning the church According to the defendant he was told the money he earned was being sent to his family The defendant claimed that the room in which he was staying inside the church was locked at night from the outside with padlocks to ensure he was locked in The defendant testified that other members of the church hit him He also claimed that they shaved his head and made him wear a dress and two snakes 6 presumably rubber toy snakes while he worked L R saw the defendant dressed this way and it made him feel very small The defendant claimed that Lois did not allow him to see his wife and sons and that if he confessed and wrote about the sexual abuse that never occurred Lois would allow him to go home to his family Also the defendant claimed that Lois told him to go to the police and to confess about the church cult involving sexual abuse of children and Satanic rituals He further claimed that Lois told him that he would have to ask the police for a deal and that he would walk out of the police station Karen Bushey who was twenty years old testified at trial that she was four a member of the Hosanna Church youth group for several years when she was a teenager She testified that she told the FBI and the police there was no cult activity the at church She never saw any children being molested animal sacrifices or Satanic rituals She also told them she was never forced to have sex Karen described it as a culY only in the sense that Lois basically had church control over everything and controlled what everyone did On cross examination Karen testified that while Lois had control of everything Lois never convinced Karen that she had had sex with the defendant or to write about or draw pictures of sexual abuse of herself or anyone else Desiree Louque who was twenty years old testified at trial that she three was a member of the Hosanna Church youth group for several years when she was a teenager She testified that she told the FBI and the police that she was never forced to have sex with anyone at the church She also told them there were no Satanic rituals or a cult involving sexual abuse of children at the church Desiree further testified that no one at the church ever asked her to write about having sex with people she never had sex with or draw any pictures of sexual activity 7 ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues the trial court erred by excluding the testimony of his expert witness which denied him his constitutional right to a meaningful opportuniry to present a complete defense Specifically the defendant contends that his expert witness Dr Richard Ofshe should have been allowed to testify at trial about false confessions and the influence of high control groups or cults Preliminary questions concerning the competency or qualification of a person to be a witness or the admissibility of evidence shall be determined by the court E C LSA art 104 Although relevant evidence may be excluded if its probative A value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury E C LSA art 403 The trial court is vested with wide discretion in determining the competency of an expert witness and its ruling on the qualification of the witness will not be disturbed absent an abuse of discretion State v Trahan 576 So 1 8 1990 2d La Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony and provides 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 See State v Higgins 03 La 4 898 So 1219 1239 cert denied 1980 05 1 2d 546 U 883 126 S 182 163 L 187 2005 Notably the supreme court S Ct 2d Ed has placed limitations on this codal provision in that e testimony while not xpert limited to matters of science art or skill cannot invade the field of common knowledge experience and education of inen State v Stucke 419 So 939 2d 945 La 1982 see State v Young 09 La 4 35 So 1042 1046 1177 10 5 3d 47 8 I In State v Foret 628 So 1116 La 1993 the Louisiana Supreme Court 2d adopted the test set forth in Daubert v Merrell Dow Pharmaceuticals Inc 509 U 579 113 S 2786 125 L 469 1993 regarding proper standards S Ct 2d Ed for the admissibility of expert scientific testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable State v Chauvin 02 1188 La 5 846 So 697 701 To assist the trial courts in their preliminary 03 20 2d assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue the United States Supreme Court suggested the following general observations are appropriate 1 whether the theory or technique can be and has been tested 2 whether the theory or technique publication has been subjected to peer review and 3 the known or potential rate of error and 4 whether the methodology is generally accepted by the relevant scientific community Daubert 509 U at 592 Thus Louisiana has adopted Daubert requirement that in S 94 s order for technical or scientific expert testimony to be admissible under LSA E C art 702 the scientific evidence must rise to a threshold level of reliability s Daubert general gatekeeping applies not only to testimony based upon scientific knowledge but also to testimony based on technical and other specialized knowledge Kumho Tire Co Ltd v Carmichael 526 U 137 S 141 119 S 1167 1171 143 L 238 1999 Independent Fire Ins Co Ct 2d Ed v Sunbeam Corp 99 La 2 755 So 226 234 The trial court 2181 00 29 2d may consider one or more of the four Daubert factors but that list of factors neither necessarily nor exclusively applies to all experts or in every case Kumho 526 U at 141 Rather the law grants a trial court the same broad latitude when S it decides how to determine reliability as it enjoys with respect to its ultimate reliability determinations Kumho 526 U at 142 The purpose of a Daubert S hearing is to determine the reliability of an expert methodology not whether the s 9 l expert has the proper qualifications to testify Cheairs v State ex rel Dep of t Transp Dev 03 La 12 861 So 536 541 see State v 0680 03 3 2d Vidrine 08 La App 3rd Cir 4 9 So 1095 1106 writ denied 1059 09 29 3d 07 1179 09 La 2 28 So 268 10 26 3d At the conclusion of the defendant testimony the defense called Dr s Richard Ofshe a sociology professor at the University of California at Berkeley Dr Ofshe testified his area of concentration was social psychology In the last thirty years his work had been focused on three areas The first area of focus was high control organizations or cult groups and how they manipulate people into doing things He also focused on interrogation and confession a setting built to influence people to do something extraordinary His third area of focus unrelated to this case was on the misuse of influence in psychotherapy Dr Ofshe described the type of research he had performed in these areas such as interviews archival research studying transcripts videotapes and audiotapes of interrogations and studying records of high groups control With respect to these three areas of study Dr Ofshe testified he had written seven or eight books and about fifty articles Also his work had been accepted by his peers li ce n sed because he was not a clinician require licensure He stated he was not and what he did P rofessionall Y did not He stated over the years he had been a consultant for law enforcement agencies in several states and cities Regarding all of his areas of study Dr Ofshe testified as an expert witness 341 times in more than thirty four states On the subject of interrogation he testified as an expert witness 308 times in thirty states including Louisiana four case involved reviewing numerous Dr Ofshe preparation for the instant s documents He stated that his anticipated testimony for the instant case would be on what it is that can lead someone to give a false confession and on the nature and structure of the mechanisms of influence that are used in high groups He further stated he did not intend to offer control testimony as to whether statements made by the defendant were true or false 10 Defense counsel tendered Dr Ofshe as an expert in the field of false confessions and influence in high organizations control The prosecutor cross Dr Ofshe on his qualifications as an expert examined witness The prosecutor asked Dr Ofshe about several published decisions where Dr Ofshe was either limited in his testimony or not allowed to testify about false confessions At the conclusion of the cross a sidebar conference was examination held at the bench The prosecutor challenged the legitimacy of the science of false confessions and influence of high groups The trial court retired the jury control and conducted a Daubert hearing At the conclusion of the Daubert hearing the trial court ruled that Dr s Ofshe testimony was inadmissible stating First of all Dr Ofshe I do believe that you are an expert in the field I believe that this is a new field The problem that I have with it is I tknow how it aids the jury The jury has heard testimony not don only not from Mr Lamonica but from M and S They have L L heard Mr Lamonica allegations that he suffered a deprivation of s freedom that he was forced to wear a dress and snakes and they were chanting that people ostracized him gave him a new name he had forced labor at a bunch of these companies for ten dollars a week And if the jury believes these allegations if they believe that those are true then certainly they wouldn tquestion whether or not the confession is false or not They could on their own figure that if a person was truly subjected to this type of stress and this treatment then certainly they would do whatever it was they could do to get themselves out of it As far as are there false confessions I don t think there anybody that believes that there are not false s confessions The example that you gave about false confessions given by persons with feelings of grandiosity they want to make themselves the notoriety they want to make themselves get their fifteen minutes of fame or whatever I think thaYs true too I think s that very true But I don think that that something that they t s need an expert to tell them And if I wrong I wrong But I have m m to do what I think is right Therefore I going to exclude your m testimony We find no reason to disturb the trial court s ruling At the Daubert hearing Dr Ofshe testified that for the past fifteen years or so the area he had been researching and writing about was confessions Dr Ofshe explained at the hearing that there were two types of false confessions namely voluntary and driven interrogation The interrogation false confession would arise during driven 11 an interrogation where a subject is accused of committing a crime A voluntary false confession is not interrogation Such a confession can occur because driven of pressure brought on an individual by his environment including a high control group to do something In the instant matter there was no interrogation confession driven The defendant simply entered the police station on his own accord without having been summoned and told the police what he had done to his sons and others Thus the type of false confession applicable to this case for purposes of discussion by Dr Ofshe would have been a voluntary false confession that much of what Dr Ofshe discussed Accordingly it would seem at the Daubert hearing namely driven interrogation false confessions would have little relevancy to this case Clearly Dr Ofshe current area of focus was on interrogation confessions s driven as indicated by his discussions of U v Hall and the West Memphis Three case S In fact Dr Ofshe testified at the Daubert hearing that he no longer studied the area of influence of control high groups After a discussion on interrogation techniques that cause false confessions the following colloquy between defense counsel and Dr Ofshe took place Q Now the same question as it relates to influence of high control groups A I don know what standing is in that There was a time when I t worked more extensively in that area I was more active in that area But I shifted my focus to interrogation and really don do much these t days with respect to that So what my status is there I don know t Q All right But the criteria that you will now find with respect to the definition of high groups or components of high groups control control would remain the same is that correct A I don know what people you know t since just I don work in the area actively you know these days I have no t Oh sure IYs idea what people think of the work that I haven been doing t basical ly Dr Ofshe discussed U v Hall 93 F 1337 7th Cir 1996 where Dr Ofshe expert S 3d s testimony on false confessions was accepted by the court In Hall the defendant was allegedly coerced by police to falsely confess Dr Ofshe also discussed the West Memphis Three case where one of the suspecks for murder was allegedly coerced by the police into making a false confession 12 Dr Ofshe noted however that he had worked in that area in the past and had been recognized as an expert Later in the Daubert hearing when the prosecutor asked Dr Ofshe if he was no longer working in the area of high techniques Dr Ofshe responded I control m not actively involved in researching in that area subject of interrogation these days All of my effort goes to the Dr Ofshe continued that he had not been doing research in the area of high techniques for more than ten years control When asked by the prosecutor how long it had been since he was qualified and allowed to testify in the area of high techniques by any religious or other control cult Dr Ofshe responded that it had been as much as ten years ago When asked about the methodology he used with respect to false confessions and to the influence of high groups Dr Ofshe responded that it control consisted of observations of confessions and interviews of those who gave a false confession or were involved in control high groups He also stated that the testimony he was going to give was based on what had been observed in high control groups Dr Ofshe further explained that he did not use laboratory studies because his conclusions were based on the study of real interrogations in the real world When asked if an error rate was applicable in his field Dr Ofshe responded that error rate was only applicable if a number was involved He explained What m I talking about does not get to the point of saying the probability is such and such that this will happen Therefore the mention of error rate is premature Dr Ofshe further explained that error rates were appropriate for techniques and that he would not be testifying about applying a particular technique On the testability of false confession theory the following colloquy between the prosecutor and Dr Ofshe took place Q How can you test that short of happened 13 examining cases where it I A Test what I don understand your question t Q Your conclusions that certain techniques might lead to false confessions I I A Well one way to test that one way to demonstrate that is to look at false confession cases and find out what it is that led to that And know for example that false confession is if not the number one the number two leading cause of miscarriages of justice from all the studies that have been done of miscarriages of justice We don t know how often it happens but we do know that it is a major contributor to the American criminal justice system reaching the wrong result Q But iYs impossible to test how often or whether a particular in a particular case your theory works A No IYs not impossible to test it It prohibitively expensive and s prohibitively laborious even assuming you could do it It would take a methodology that is not worth the effort The methodology thaYs used within the social sciences is to look at established proven cases in which miscarriages have occurred study what happened in those cases and therefore isolate the power of false confession to produce a miscarriage of justice That doesn tell us how many miscarriages t happen annually and it doesn ttell us how many false confessions happened annually But it does tell us that false confession is a major contributor to innocent people going to prison There is little case law in Louisiana on false confessions in a police interrogation setting There is no known case law in this state on false confessions in the context of high groups rather than coercive police interrogation The control law in other jurisdictions suggests that there is support both for and against the admissibility of expert testimony on false confessions Various courts have found it inappropriate to admit this testimony See United States v Griffin 50 M a e J 278 285 U 1999 State v Cobb 43 P 855 869 Kan App 2002 F A S 3d State v Tellier 526 A 941 944 Me 1987 State v Davis 32 S 603 2d 3d W 09 608 Mo App 2000 State v Free 798 A 83 95 N Super Ct 2002 2d 96 J Green v State 55 S 633 640 Tex App 2001 cert denied 535 U 958 3d W S 122 S 1366 152 L 360 2002 see also Vent v State 67 P 661 669 Ct 2d Ed 3d 37 n Ak App 2003 Other courts have permitted expert testimony on false confessions See e United States v Shay 57 F 126 132 lst Cir 4 3d 34 1995 Callis v State 684 N 233 239 Ind App 1997 State v Buechler 2d E 14 572 N 65 72 Neb 1998 State v Baldwin 482 S 1 5 Ct 2d W 74 2d E C N App 1997 see also Vent 67 P at 669 n 3d 36 Of the aforementioned cases that have upheld the admissibility of expert testimony on false confessions all are concerned with false confessions in a police interrogation setting None of the cases are about voluntary false confessions allegedly caused by the internal and external pressures of a high group or control which is the issue in the instant matter insofar as Dr Ofshe testimony is s concerned Based on some of the testimony from Dr Ofshe at the Daubert hearing it appears to this court that had he been allowed to testify he would likely have or would have come exceedingly close to having testified to the ultimate issue of the case The testimony is troubling because it appeared to assume two unresolved issues as facts which would have invaded the province of the jury as factfinder The first issue was whether the group of church members could even be defined as agroup The second issue was whether the defendant control high falsely confessed or truthfully confessed In the following colloquy where the prosecutor asks Dr Ofshe what he could add to the jury understanding Dr Ofshe s seemed to have predetermined that the church members were a high group control and that the defendant falsely confessed Q Mr Thiel defense counsel a minute ago ran through a long list of circumstances that might affect one ability to make a voluntary s confession You know being kept up all night being occasionally beaten not by the police but by others made to wear a dress and all these other things He already brought all of that out to the jury s So what assistance can you give a jury on factors that he already s brought before the jury that these are factors that affeded his ability to make a confession or a false confession How can you go beyondthat A By educating the jury as to how these kinds of techniques when organized have in the past elicited extremes of conduct not only false confessions but literally murders repeatedly as well as extremes of conduct based on the applications of these techniques There are Q Well he already brought out the techniques and he already s s told the jury what it led to In other words his walking in and making a confession that wasn true What do you have to add beyond that t 15 A That these techniques are routinely used routinely observed in situations in which people are gotten to engage in extremes of conduct far more extreme than what Mr Lamoni did That a c these are very powerful techniques Illustrate that this is not just a laundry list Illustrate that these things have a tremendous impact and that it is not unique to whaYs going on in this courtroom Q Well if iYs if it doesn thave anything to do with whaYs going on in this courtroom iYs not relevant to this case is it A I didn say it wasn t t it didn have anything to do with it I said t IYs not unique Meaning that these similar kinds of things which are at issue in this courtroom are not unique to this courtroom but in fact have been observed repeatedly in other situations in which people have done things that are extraordinary and apparently incomprehensible until you come to appreciate the power of the techniques being used to manipulate them Q I not claiming to be an expert sir you are What techniques do m you intend to testify about that were used in this case that will help this jury decide whether his confession should be considered valid by them or not A Well first of all there are at least three separate statements that need to be considered by this jury There are the statements made by Mr Lamoni and there are also the statements made by his a c children All of them were produced out of particular social settings Mr Lamonica perhaps was exposed to the most extreme of these by his being isolated from his normal social context isolated from his family isolated from his children threatened with loss of his family threatened with loss of his children manipulated in his economic life by becoming an employee of an organization controlled by the group by being subjected to a variery of particular pressure sessions that were designed to get him to comply and admit the things that he had been previously saying he simply had not done he had in fact done These pressures were brought to bear on him to get him to do that in the context of the group long before this came to the attention of the police He was manipulated over a long period of time He was harangued He was assaulted He was essentially kept prisoner by the threat that if he left he would lose his children All of these techniques I can show you are used in other groups in which otherwise law people go out and commit crimes ing d abi because ultimately the leader of the group demands that of them Q Now Doctor you just went through all these fact circumstances all these things that happened to this man He already testified to s that What do you got to add to that A An understanding for the jury that what he talking about is not s unique to him That what he talking about is understood by people s who study this area That what he talking about are the kinds of s things that appear in other well researched groups that lead to extraordinary behavior behavior far more extraordinary than simply walking into a police station and giving a confession repeating a confession that you given before with the promise that this will ve have no negative consequences for you that you will get a deal 16 I when you start analyzing the circumstances under which he first gave these statements and you understand the setting in which this So happens and you understand the significance of it then you are in a I to judge how how thaYs easily extended to position to take it seriously get If you then understand somebody to walk in and repeat essentially the same confessions to agents of the state when they have been promised that they will receive absolute leniency they will receive no punishment if they do this and they will be able to rejoin I I their family if you begin to apply that context to it an understanding of whaYs really going on then perhaps you in a better position to re make a judgment about what weight to give his statements Then the same things can be applied to the circumstances under which the initial now repudiated statements of his children were elicited ThaYs what the jury has to decide The jury I would think has to appreciate the totality of the circumstances that led to all three of the statements at issue Q So the correlation you going to draw between the facts that re have already been presented and whether the jury should believe him is what A m I not going to draw that correlation m I simply going to show the jury that the circumstances that have been testified to about his manipulation and the manipulation of his children are circumstances that appear elsewhere and are correlated when they appear I elsewhere with other kinds of extreme conduct I jury I Then iYs up to the to evaluate that I Q Basically you telling the jury though that re things occur the confession cannot be reliable when these I types of A I not telling them that m Q Well essentially you are You A Q Am R may not think you so sic s But that the way it sounds to me A Well thaYs because you don like that possibility But I not t m Q Well I don t A telling them that Dr Ofshe testimony at the Daubert hearing suggested that there was no s methodology about false confessions that could be tested or that would permit an error rate to be determined In this area of research the result of the lack of any reliable testing format to establish predictors of when a false confession might occur is a methodology consisting of analyzing false confessions only after a confession has been determined to be false While we appreciate the ostensible ll I validity of the research area of false confessions in a police interrogation setting we find the area of research on false confessions caused by high groups to be control vague and speculative at best and such research does not satisfy the standard of Daubert particularly in light of the fact that Dr Ofshe had not studied or worked on any cases in this particular area for more than ten years See Tellier 526 A 2d at 944 Such testimony at trial by Dr Ofshe of high groups and how they control can cause people to do extraordinary things they would not normally do including murder would have had little if any relevance or probative value and would have added nothing to enhance the jury understanding of the facts but would only s have confused the issues The trial court did not err in finding Dr Ofshe proposed trial testimony s inadmissible under Daubert Accordingly the assignment of error is without merit CONVICTIONS AND SENTENCES AFFIRMED I 18
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