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State v. Donna MacDonald
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 212
Docket:	Ken-97-101
Submitted
 on Briefs:	June 29, 1998
Decided:	August 17, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

STATE OF MAINE

v.

DONNA MacDONALD

DANA, J.

	[¶1]  Donna MacDonald appeals from the judgment entered in the
Superior Court (Kennebec County, Alexander, J.) after a jury trial convicting
her of arson (Class A) pursuant to 17-A M.R.S.A. § 802 (1983 & Supp.
1997).{1}  MacDonald contends that the court erred by excluding the
testimony of her expert witness, that the prosecutor made inappropriate
comments during closing argument, and that the sentence imposed upon
her is excessive.  Finding no error with respect to the court's handling of
the evidentiary issue and concluding that the prosecutor's comments were
not inappropriate, we affirm the judgment of conviction.  We do find,
however, that the court exceeded the bounds of it discretion by not
considering MacDonald's conduct immediately after she set the fire as
mitigating factors when individualizing her sentence, and therefore vacate
the sentence.
	[¶2]  MacDonald was indicted for arson in August 1994 in connection
with a fire in her residence in May of that year.  The fire caused extensive
damage to her apartment and several other apartments in the building. 
MacDonald did not testify at her trial.  The State, however, introduced in
evidence her affidavit made the day after the fire.  In the affidavit MacDonald
admitted that she set fire to a bed in one of the apartment's bedrooms.  She
also stated that she attempted to put the fire out, she did not intend to
harm anyone, and she was sorry.
	[¶3]  Sharon Dolloff, who lived in the apartment with MacDonald and
MacDonald's adolescent son, testified that both she and MacDonald had
been drinking and had a disagreement prior to the fire.  She also testified
that she was asleep in the bed when it was ignited.  She awoke to
MacDonald attempting to pull her out of the bed and telling her that there
was a fire.  Dolloff stated that she, MacDonald, and MacDonald's son,
attempted to put the fire out.  MacDonald's son testified that MacDonald
alerted him to the fire.
	[¶4]  Dr. Donald Devine, MacDonald's proposed expert witness, was
examined outside the presence of the jury.  He testified that MacDonald
suffered from a form of post-traumatic stress disorder (PTSD) he called
"adult children of alcoholics syndrome," that he believed made it more
likely MacDonald would confess to a crime she did not commit, especially to
protect other people about whom she cared.{2}  He stated that MacDonald
told him that she wanted to protect Dolloff and her son.  Devine
acknowledged that the adult children of alcoholics syndrome is not
recognized in the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV), that he had not conducted any studies on people with PTSD or
adult children of alcoholics syndrome to determine whether they were more
likely than most people to make false confessions, and that he was aware of
no studies by other mental health professionals that would support that
contention.  Rather, he stated that his conclusion concerning the likelihood
that MacDonald would lie to protect others was based on his clinical
experience as a counselor in an in-patient substance abuse program.  He
acknowledged, however, that it was not unusual for people to lie to protect
others they cared about, and that such behavior was not indicative of mental
illness.
	[¶5]  The court sustained the State's objection to the admission of
Devine's testimony, noting that it was questionable whether the adult
children of alcoholics syndrome existed.  Further the court acknowledged
the absence of any studies that would support Devine's contention that
people afflicted with PTSD or adult children of alcoholics syndrome would
be more likely to confess falsely.  The court reasoned that Devine's
testimony would not be helpful to the jury in assessing the credibility of
MacDonald's confession and that it was within the jurors' common
knowledge that someone might falsely confess to protect a loved one.  The
court concluded that Devine's testimony was not "sufficiently based in
expertise that could be helpful to the jury to justify its admission under 702
where there are no studies to support this claim and where the tie to
P.T.S.D. . . . is very tenuous."{3}
	[¶6]  The jury found MacDonald guilty of arson.  The prosecution
recommended a sentence of "twenty years with all but eighteen suspended
and a period of probation."  At the sentencing hearing several people spoke
on her behalf.  Dolloff spoke, noting the efforts MacDonald made to stop the
fire and crediting MacDonald with saving her life.  Following the hearing,
the court stated, "I think this is one of the most heinous types of arson that
could be committed, a crime involving an act designed to essentially light a
person on fire while they were sleeping by lighting the bed in which they
were either sleeping or passed out."  The court set MacDonald's basic
period of incarceration at 25 years.  Turning to the second sentencing step
the court concluded that aggravating and mitigating factors specific to
MacDonald were in equipoise, leaving the sentence individualized at 25
years.  Noting that this was not a situation when a defendant had set several
fires, and that Dolloff had come forward to support MacDonald, the court
suspended all but 15 years, to be followed by six years of probation.

Exclusion of Proffered Expert Testimony

	[¶7]  We review the trial court's decision to exclude evidence for an
abuse of discretion or clear error.  State v. Mazerolle, 614 A.2d 68, 71 (Me.
1992).  The trial judge "may exclude an expert's opinion under M.R. Evid.
702 if he finds that it would not be within the expert's specialized
knowledge or would not be helpful to the jury."  State v. Tellier, 526 A.2d
941, 943 (Me. 1987); see also Field & Murray, Maine Evidence § 702.1 at
336 (4th ed. 1997) ("the trial judge must make a discretionary
determination that there is sufficient scientific basis to the proposed expert
testimony so that hearing it would be helpful to the jury").  Construing the
identical federal counterpart to the Maine rule,{4} the Supreme Court of the
United States has stated, "The subject of an expert's testimony must be
'scientific . . . knowledge.'  The adjective 'scientific' implies a grounding in
the methods and procedures of science.  Similarly, the word 'knowledge'
connotes more than subjective belief or unsupported speculation."  Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589-90 (1993) (footnote
omitted).
	[¶8]  Devine acknowledged that his adult children of alcoholics
syndrome diagnosis was not recognized by the definitive treatise on
psychological diagnoses, the DSM-IV.  Further, his proffered opinion
concerning the likelihood of false confessions was, by his own admission,
based only on his empirical observations.  He acknowledged both the
complete lack of published studies by other mental health professionals
supporting his false confession hypothesis and the fact that he had not
conducted any studies on the subject.
	[¶9]  Although the lack of published studies is not a dispositive
consideration when assessing the validity of a proffered scientific theory, it
is a relevant consideration.  Id. at 594.  The Daubert Court stated,
"[S]ubmission to the scrutiny of the scientific community is a component of
'good science,' in part because it increases the likelihood that substantive
flaws in methodology will be detected."  Id. at 593 (citation omitted).  Thus,
the court could reasonably have concluded that Devine's proffered testimony
had little value as scientific knowledge because, having not been derived
through the methods and procedures of science nor subjected to peer
review, it amounted to little more than Devine's subjective opinion.
	[¶10]  Further, as we have noted previously, "Impressions gleaned
from clinical experience or individual case studies concerning the possibility
of false [testimony], offer no inherent advantage over the knowledge
possessed by ordinary lay people."  State v. Gordius, 544 A.2d 309, 311 (Me.
1988) (citations omitted); see also State v. Mazerolle, 614 A.2d at 71 (jurors
in a gross sexual misconduct case capable of drawing their own conclusions
about the believability of children's accusations without an expert's
testimony that children might fabricate such accusations); State v. Fernald,
397 A.2d 194, 197 (Me. 1979) (jury capable of making its own assessment of
the reliability of eyewitness testimony without the need of expert testimony
concerning the effect of stress on perception).  Given the dubious scientific
basis for Devine's proffered testimony, the court could reasonably have
concluded that this testimony would do little more than reinforce a concept
already well within the jurors' grasps, namely, that people sometimes lie to
protect others close to them.  That testimony, therefore, would not be
helpful to the jury.  See Field & Murray § 702.1 at 335 ("The judge must
consider whether the matter is beyond common knowledge so that the
untrained layperson will not be able to determine it intelligently and
whether a person with specialized knowledge can give a helpful opinion.")
	[¶11]  The court neither erred nor acted outside its discretion in
excluding Devine's testimony pursuant to Rule 702.  Moreover, given the
dearth of scientific support for and the questionable value to the jury of
Devine's proffered testimony, the court performed appropriately the role
imposed upon it by that Rule.

Closing Argument

	[¶12]  MacDonald contends that the prosecutor made improper
remarks during closing argument.   Our review of the record discloses no
merit to this contention.  MacDonald did not object to the prosecutor's
remarks at trial, and, reviewing for obvious error, we cannot say that the
allegedly inappropriate comments were "so highly prejudicial that [they]
taint[ed] the proceedings and virtually deprive[d] the defendant of a fair
trial."  State v. Weisbrode, 653 A.2d 411, 415 (Me. 1995) (citation omitted).