Expert Testimony on Extreme Emotional Disturbance in Criminal Proceedings

Melissa K. Poole; Raymond K. Molden; Robert P. Forrest

Kentucky Supreme Court's Refusal to Admit Expert Testimony Regarding Extreme Emotional Disturbance (EED) or EED Instruction, When Evidence Was Based Solely on the Defendant's Out-of-Court Statements, Did Not Compel the Defendant's Testimony in Violation of His Fifth Amendment Rights

Mark Padgett was convicted in the Campbell Circuit Court of criminal attempt to commit first-degree manslaughter, second-degree assault, and violation of an emergency protective order. In Padgett v. Commonwealth of Kentucky, 312 S.W.3d 336 (Ky. 2010), Mr. Padgett appealed to the Supreme Court of Kentucky, raising five issues, most notably that he was compelled to incriminate himself to raise a defense of extreme emotional disturbance (EED).

Facts of the Case

On June 29, 2007, Mr. Padgett searched for his two teenage sons in Fort Thomas, Kentucky. Unable to locate either by phone, he drove to places they frequented, searching for them. After giving up his search to return home, he noticed a nearby church hosting a festival. He parked his truck and looked for friends. He heard one of his teenage sons call for him. He testified that he observed his son carelessly cross the street in front of oncoming traffic and that he yelled at his son to stop as he watched a car pass in front of him. Mr. Padgett's son told him that his mother, Susan Padgett, was supervising him and that she was across the street in a laundromat. Following their divorce, Ms. Padgett had an emergency protective order issued against Mr. Padgett, requiring him to stay 500 feet away from her.

Intending to avoid violating the protective order, Mr. Padgett returned to his truck to leave. He testified that he then again saw his son cross the street in front of oncoming traffic, causing him to become extremely upset. He testified that his eyes were blinking, he was having trouble breathing, and he could not feel the ground beneath his feet. Apparently, to show Ms. Padgett that her failure to supervise their son was unacceptable, he parked his truck near the laundromat, grabbed a rifle from the back of his truck, and went inside to scare her. Mr. Padgett testified that he left his truck's motor running so that he could easily flee after he had frightened her. Inside the laundromat, a fight ensued between the two that led to a struggle over the gun. Mr. Padgett testified that he never intentionally hit Ms. Padgett but that she was hit as a result of their mutual struggle over the rifle.

Ms. Padgett testified she felt an impelling force approach her and upon turning around observed a rifle pointed at her head. She testified that he beat her several times with the butt of his rifle as she attempted to deflect the blows and flee. Two witnesses corroborated her testimony. One witness stated that Mr. Padgett entered the laundromat, declared “It's show time,” and attempted to fire his rifle. After the gun failed to fire, he beat Ms. Padgett with it.

Ms. Padgett escaped and ran down the street, screaming for help. Fireworks in Mr. Padgett's truck inexplicably exploded, setting his truck on fire and alerting police and additional witnesses to the scene. Witnesses, including a nearby police officer, testified that Mr. Padgett pointed his rifle in a “firing-type” or “ready-fire” pose at Ms. Padgett as she ran down the street. The officer also testified that he saw Mr. Padgett pull the trigger on his rifle, and when it did not fire, adjust its bolt action. Mr. Padgett eventually dropped his rifle and was arrested as he ran. Ms. Padgett was treated for injuries to her head and hand.

During the case, Mr. Padgett claimed he acted under extreme emotional disturbance (EED) triggered by seeing his son carelessly cross the street. To support his theory, he planned to call an expert witness to testify. The trial court ruled the expert's testimony would be inadmissible without further evidence, because his opinion was based solely on Mr. Padgett's out-of-court statements. After the ruling, Mr. Padgett took the stand to testify to the triggering event that gave rise to his EED. The trial court then allowed the expert to testify. The jury convicted him of criminal attempt to commit first-degree manslaughter, second-degree assault, and violation of an emergency protective order, sentencing him to 20 years' imprisonment.

Ruling

In a unanimous decision, the Supreme Court of Kentucky affirmed the trial court's decision and determined that the refusal to admit expert EED testimony or to give an EED instruction with evidence based solely on the defendant's out-of-court statements did not compel Mr. Padgett's testimony in violation of his Fifth Amendment rights.

Reasoning

Quoting Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky. 2003), the court noted that an EED instruction must be supported by “some definite, non-speculative evidence.” Furthermore, the court cited the previously affirmed case, Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998), in which the defendant attempted to prove the presence of her extreme emotional disturbance with expert testimony based primarily on her out-of-court statements, but the trial court refused to permit the expert testimony, and without any other evidence, refused to instruct the jury on EED. In the Padgett case, the Supreme Court of Kentucky found that the trial court's statements were clear that it did not require Mr. Padgett to testify, but was excluding inadmissible evidence, as in Talbott, because such testimony would be supported only by out-of-court statements.

The court ruled that the trial court properly refused to let the attempt to substantiate EED be submitted into evidence, since to permit the expert's testimony would have improperly allowed the defendant to testify by proxy. In addition, the court found that Mr. Padgett's right to avoid self-incrimination was not implicated by the trial court's ruling as the trial court did not require him to testify but asked that he produce “some” admissible evidence to support the EED instruction. Citing Hilbert v. Commonwealth, 162 S.W.3d 921.925 (Ky. 2005), the court applied the reasoning that the choice between self-incrimination and presenting a defense was not considered an “invasion of the privilege” found in the Fifth Amendment.

Discussion

Previous cases have established the requirement that admissible evidence to substantiate a defendant's out-of-court statements regarding EED be “definite, non-speculative evidence.” This case confirmed that a defendant's decision to testify to substantiate his argument was not required of an EED defense, but that the defense must provide definite evidence to allow an expert to testify about the defendant's out-of-court statements in regard to said defense. The court required the defendant to provide some admissible evidence to support the EED instruction. That the defendant may have been able to support this instruction only by testifying did not implicate the Fifth Amendment.

To the forensic expert, this case signifies the necessity of incorporating collateral information into an opinion regarding EED as the defendant's out-of-court report alone would be considered inadmissible and insufficient to support the defense. Collateral information could include witness statements regarding observed behaviors, official police accounts, victim interviews, and medical or mental health records that document emotional disturbance. Several sources of collateral information were potentially available to the forensic expert in this case. Since the evidence must show that some triggering event caused the defendant to have EED, testimony from the son P.J. might have confirmed the alleged triggering event; however, P.J. testified that he looked both ways and did not cross in front of oncoming traffic. If attendees of the festival had observed P.J. carelessly walking in front of traffic or had heard Mr. Padgett yell at his son from his truck, their observations might have provided enough supporting evidence to allow the expert to testify about Mr. Padgett's alleged EED without Mr. Padgett's testifying. Moreover, witness observations of Mr. Padgett's reaction following the episode in which P.J. allegedly carelessly crossed the street may have revealed Mr. Padgett's emotional response to the event as enraged, inflamed, or disturbed. Other potential witnesses who may have observed his emotional reaction may have included officers who arrived at the scene and subsequently interviewed him and witnesses who may have observed his repetitive blinking and difficulty breathing. The court's statement that only some evidence must be present to support a claim of EED to allow an expert to testify about the triggering event and emotional disturbance seems to indicate that the threshold is relatively low for allowing the expert to testify, but may indeed prove difficult, such as in this case, when the defendant does not testify.