                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0588
                               Filed June 11, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HILLARY TYLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



      Hillary Tyler appeals her conviction for second-degree murder, challenging

the district court’s denial of her motion in limine concerning the medical

examiner’s opinion of the victim’s cause and manner of death. REVERSED AND

REMANDED FOR A NEW TRIAL.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller and Laura Roan,

Assistant Attorneys General, Ricki L. Osborn, County Attorney, and Cori Kuhn

Coleman, Assistant County Attorney, for appellee.



      Heard by Doyle, P.J., and Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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DOYLE, P.J.

       Hillary Tyler appeals her conviction for second-degree murder for the

death of her newborn son.       She contends the district court erred in denying

several of her trial motions, including her motion in limine that sought to exclude

the State from soliciting testimony from the medical examiner on his opinion of

the cause and manner of the victim’s death. Tyler asserts the doctor’s opinion,

based solely upon Tyler’s statements to law enforcement officers and not his

medical expertise, invaded the province of the jury to decide credibility and

factual issues. Because we agree with Tyler, we reverse her conviction and

remand for a new trial.

       I. Background Facts and Proceedings.

       From the evidence presented at trial, the jury could have found the

following relevant facts. In early 2011, Hillary Tyler became pregnant with her

boyfriend’s child. As time progressed, Tyler began showing, but she denied she

was pregnant to those who inquired.              On September 19, 2011, Tyler,

unbeknownst to others, gave birth to a baby boy in a hotel room. Sometime after

giving birth, she placed the baby, who was deceased at that time, in the trashcan

of the hotel room, and she left the hotel.

       The hotel’s staff found blood in Tyler’s room the next day and contacted

law enforcement officers. Officers searched the room and discovered the baby in

the trashcan. The officers learned Tyler was the prior occupant of the room and

went to her home.         She was ultimately taken to the police station and

interviewed.
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       Tyler’s three-hour interview was video recorded.        She initially told the

officers that after she gave birth to the baby, he made no sounds and did not

move, and she immediately placed him in the trashcan. Later in the interview,

after an officer asked Tyler hypothetical questions about what the baby’s autopsy

would show, Tyler’s story changed. Tyler stated the baby had moved and cried

after she gave birth. She stated she then put the baby in the bathtub face down,

and she filled the tub with enough water to drown the baby. She told the officer

she later put her deceased child in the trashcan and left the hotel.

       After her interview, Tyler was transported to the emergency room of a

local hospital where she was examined and admitted. The next day, officers

went to Tyler’s hospital room for a follow-up interview, which was audio recorded,

and the officers discussed with Tyler her prior statements. Tyler stated she knew

the baby would drown when she put the baby in the tub face down in the water.

       An autopsy was performed on the baby by the Associate State Medical

Examiner (ME), and the ME issued a report. The ME opined in his report that the

infant “died of bathtub drowning.” The report stated:

       According to investigative reports, the decedent was found dead in
       a trash receptacle at a motel . . . . The mother claimed she had
       given birth the previous day in the motel room and then placed the
       infant in a bathtub partially filled with water shortly after the birth.
       The baby reportedly moved and cried after birth.

The ME opined the manner of the infant’s death was homicide.

       Tyler was charged with first-degree murder for the baby’s death, and Tyler

entered a plea of not guilty. Prior to trial, the ME was deposed by Tyler. There,

the ME testified that prior to issuing his autopsy report in the case, he watched

Tyler’s video-recorded interview. Based upon Tyler’s statements in the video, he
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concluded the baby’s cause of death was drowning and the manner of death was

homicide. The doctor explained that in listening to a witness’s statement, “you

always consider whether the witness statement—whether you feel they can be

truthful or whether you feel that they are making something up.” He testified that

“everything that was stated within [Tyler’s] statement [was] consistent with the

autopsy, so in my opinion, I felt [Tyler] was being truthful.” Nevertheless, he

conceded that, based on the autopsy alone, there was no way medically or

scientifically he could give an opinion or conclusion as to whether the baby was

born alive. He also testified that, based only on his autopsy findings, he could

not say the baby drowned nor could he say the baby ever took a breath.

      Based upon the ME’s report and his deposition testimony, Tyler filed a

motion in limine requesting, among other things, the State be prohibited

      from soliciting or introducing any evidence from the [ME] as to
      scientific or medical opinions on the cause or manner of death in
      this case and his conclusion the death was a “homicide.” Any
      testimony from the [ME] related to these topics would not be based
      on any scientific or medical knowledge, scientific standards, or
      technical training, but merely from the witness adopting the
      statements and conclusions of law enforcement.

Essentially, Tyler argued the medical examiner’s anticipated testimony that the

infant’s death was a homicide was based upon his belief Tyler was truthful in her

interview, not his medical expertise, and that “allowing the [ME] to so opine

allowed him to address the credibility of [Tyler] and her statement,” which was

the province of the jury. The State resisted, and following a hearing, the court

overruled her motion.

      A jury trial commenced in February 2013. Tyler’s presented defense was

essentially that her statements to law enforcement officers about drowning the
                                         5


baby were not truthful and the result of coercion combined with her need for

medical care. Her emphasis was on the fact it was medically impossible to show

the baby drown, while the evidence did demonstrate it was possible the baby

was stillborn or died immediately after birth. Tyler’s credibility was the central

issue of the case.

       The ME testified on behalf of the State, and he testified that after he

reviewed the related case history, scene findings, and witness statements,

including Tyler’s statements to the officers, his opinion was that the baby’s cause

of death was drowning. For those same reasons, he opined that the manner of

the baby’s death was homicide. He noted the baby “had several regions where

the lungs were still collapsed and then focal regions where . . . the alveolar

spaces were expanded,” and he opined, “[g]iven the history that [the baby] cried

and moved, to me that suggests that [the baby] probably took a few breaths.”

However, he admitted that the autopsy findings alone, by themselves, did not

medically or scientifically support a finding of drowning as the cause of death.

       After hearing all the evidence, including the video and audio recordings of

her interviews, the jury found Tyler guilty of the lesser-included offense of

second-degree murder, in violation of Iowa Code sections 707.1 and .3 (2011).

After the denial of her posttrial motions, including motions for a new trial, Tyler

was sentenced to an indeterminate term not to exceed fifty years.

       Tyler now appeals, contending the court erred in denying several of her

motions.    Among other things, she contends the ME’s opinion testimony

amounted to inadmissible evidence concerning the credibility of her statements
                                          6


to police. Because we find her argument concerning the medical examiner’s

opinion testimony to be dispositive, we need not address her other claims.

       II. Scope and Standards of Review.

       Evidentiary rulings, such as rulings on motions in limine, are reviewed for

an abuse of discretion. State v. Eliott, 806 N.W.2d 660, 667 (Iowa 2011). “An

abuse of discretion occurs when the district court exercises its discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014) (internal citations and quotation

marks omitted). “A ground or reason is untenable when it is not supported by

substantial evidence or when it is based on an erroneous application of the law.”

State v. Redmond, 803 N.W.2d 112, 117 (Iowa 2011) (internal citations and

quotation marks omitted).

       III. Discussion.

       A. ME’s Opinion Testimony.

       Iowa is committed to a liberal view on the admissibility of expert testimony,

and this court is deferential to the discretion of the district court in this area. See

Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999). “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.” Iowa R. Evid. 5.702. However, “[e]xpert

testimony directly expressing an opinion on the credibility of a witness is not

admissible.” State v. Allen, 565 N.W.2d 333, 338 (Iowa 1997). “‘There is a fine

but essential line between testimony that is helpful to the jury and an opinion that
                                         7

merely conveys a conclusion concerning the defendant’s guilt.’”        Id. (quoting

State v. Pansegrau, 524 N.W.2d 207, 210 (Iowa Ct. App. 1994)).

      Whether a pathologist’s testimony concerning the cause and manner of

death is admissible over an objection that the testimony is not based on the

medical examination of the victim but rather on witness statements appears to be

an issue of first impression in Iowa. Nevertheless, this issue is not unique, and

both parties rely on a number of cases from other jurisdictions in arguing their

respective positions. See generally State v. Sosnowicz, 270 P.3d 917, 922-24

(Ariz. Ct. App. 2012) (and cases collected therein); Baraka v. Commonwealth,

194 S.W.3d 313, 318 (Ky. 2006) (same). For example, in State v. Commander,

721 S.E.2d 413, 415 (S.C. 2011), the pathologist in that case

      testified the autopsy did not uncover any evidence of violence or
      trauma to [the v]ictim’s body or any other evidence of injury. A later
      toxicology report was similarly indefinite. However, using the
      anecdotal history relayed by officers at the scene, together with the
      lack of normal indicators of physical violence, [the pathologist]
      opined that the cause of death was asphyxiation, which would not
      leave physical marks, and that the manner of death was homicide
      due to the suspicious nature of [the v]ictim’s death.

Although the South Carolina Supreme Court ultimately concluded that any error

as to the pathologist’s testimony was harmless, the court chose to address the

expert-testimony issue anyway. See Commander, 721 S.E.2d at 418. The court

found that, “[b]ecause the anecdotal history is an essential component of any

autopsy,” the pathologist’s “testimony concerning findings based on this

information falls within the umbrella of the expert’s specialized knowledge.” Id. at

419-20. Under the facts of that case, the court determined “[t]he information
                                         8


gleaned from the police investigation formed merely one aspect of [the

pathologist’s] examination.” Id. at 420. Nevertheless, the court recognized

       that, in certain circumstances, expert medical testimony of this type
       has the potential to invade the province of the jury. [Commander]
       urges that “[t]he line is crossed where the physician gives an
       opinion outside of his medical expertise where he is in reality only
       enhancing the circumstantial evidence available to the jury with the
       prestige of a forensic pathologist.” While we agree with the spirit of
       [Commander’s] contention, no such line was crossed in this case.

Id. (internal citations omitted).

       The Arizona Court of Appeals was recently presented with this issue, and

under the facts of its case, it determined the pathologist’s testimony was

inadmissible, “[a]s have courts in other jurisdictions under similar circumstances.”

Sosnowicz, 270 P.3d at 922-23. The court explained that, in its case,

       it does not appear that [the pathologist] relied on any “specialized
       knowledge” to classify the death as a “homicide” rather than an
       “accident.” Under cross-examination, [the pathologist] agreed with
       defense counsel that he based his conclusion that the death was a
       homicide on the circumstances reported to him by the police.
       Indeed, [the pathologist] was in no better position to determine the
       manner of death than was the jury who heard the actual trial
       testimony of witnesses and had the opportunity to evaluate their
       credibility.

Id. The court recognized an opposite result was reached in Commander, but it

noted that it did not disagree with the result reached in Commander, nor did it

find Commander inconsistent with the result it reached. Id. at 924. The court

observed that

       [t]he history relied on by the pathologist in Commander, which
       consisted of objectively verifiable data, was, as the court noted, “of
       a type reasonably relied upon by experts” in determining the cause
       and manner of death. . . . Insofar as the record suggests here,
       however, the history relied on by [the pathologist in this case] was
       comprised of the statements by, for the most part, interested
       witnesses whose accuracy and credibility were necessarily subject
                                         9

      to question. Indeed, had the court in Commander been faced with
      circumstances similar to those in this case, it may well have
      reached a different result.

Id. Nevertheless, that court did not reverse on the issue, finding the admission of

the testimony was harmless under the facts of that case. Id. at 926.

      Another court, in summarizing the state of the law on this subject,

observed that the consensus seemed to be

      that an expert [pathologist] or forensic pathologist can express an
      opinion not only as to the cause of death, but also that the manner
      of death was homicide, i.e., by the act or omission of another
      person, where such would not be readily ascertainable by a
      layperson, thus would assist that trier of fact in determining a fact in
      issue. However, the expert cannot express an opinion as to the
      mental state of the accused which would constitute an expression
      as to guilt or innocence, and cannot base the opinion solely on
      facts that are just as easily understood by a layperson.

Baraka, 194 S.W.3d at 318 (emphasis added).

      In the present case, the district court permitted the State to solicit the ME’s

opinion testimony, concluding:

      The ME bases his opinion on the autopsy performed upon the
      deceased infant coupled with a direct statement coming from [Tyler]
      that strongly suggests a live birth. Such reliance is permissible as
      this is no different than a physician relying on a patient’s history in
      reaching a diagnosis. Further, here . . . the statement relied upon
      that formulates a part of the basis for reaching a learned, expert
      opinion comes directly from [Tyler] and not the “investigatory
      acumen of police.” Further, generally, questions of medical
      causation normally require expert testimony. . . .
              Further, as indicated by the Iowa case law, “we reiterate, the
      weight to be given an expert’s opinion is for the trier of fact.” See
      Lithcote v. Ballenger, 471 N.W.2d 64, 66 (Iowa Ct. App. 1991). In
      addition, “[a]n expert’s lack of absolute certainty goes to the weight
      of this testimony, not to its admissibility.” See Williams v. Hedican,
      561 N.W.2d 817, 823 (Iowa 1997). Also, in Iowa, the courts are
      committed to a liberal rule on the admission of expert testimony.
      See DeBurkarte v. Louvar, 393 N.W.2d 131, 138 (Iowa 1973).
              Here, the issue is whether there was a “live birth” and the
      cause and method of death are questions of fact. The jury, and not
                                             10


       this court, will be the one to decide these issues. Accordingly,
       [Tyler’s] motion in limine as it attempts to limit the testimony and
       opinions of the [ME] is overruled, subject to [Tyler’s] right to
       vigorously and thoroughly cross-examine.

We respectfully disagree.

       Here, it is true the ME based his opinion on Tyler’s direct statements and

not the opinions of the officers in the case. Nevertheless, Tyler’s defense was

that her statements to the officers were the products of coercion along with her

lack of medical care. The veracity of Tyler’s statements were the very issue

before the jury. Without her statements, the ME testified that he would not be

able to give any opinion as to the infant’s cause and manner of death. Permitting

the ME to give his opinion, based only on Tyler’s statements and not his medical

expertise, allowed him to provide the jury his opinion of Tyler’s credibility. This

crossed the very fine line into impermissible expert testimony.

       Although the district court attempted to distinguish this case from State v.

Vining, 645 A.2d 20 (Me. 1994), we find the analysis and result in that case to be

spot-on.1 In Vining, a pathologist was permitted to testify at trial that her opinion

was that the victim’s death was a homicide. 645 A.2d at 20. However, the

doctor based her opinion “solely on her discussions with the police investigators,”

not her medical expertise. Id. at 21. The Supreme Judicial Court of Maine

reversed Vining’s conviction, concluding the pathologist’s opinion “amounted to



       1
            Although the State asserts Vining is not good law, Vining was merely
distinguished in Rollins v. State, 897 A.2d 821, 852 (Md. 2006): “Two cases that [Rollins]
cites, [including] State v. Vining, 645 A.2d 20 (Me. 1994) . . . are distinguishable from the
present case. In both [cases], the [pathologists] based their opinions on the respective
causes of death of the victims solely on information given to them by police detectives.”
Rollins has since been abrogated on other grounds. See Derr v. State, 29 A.3d 533,
549 (Md. 2011) cert. granted, judgment vacated.
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an assessment of the credibility and investigatory acumen of the police,” which

was within “the exclusive province of the jury.” Id. The court explained:

      It is appropriate for the [pathologist] to testify, as she did, that the
      damage to the [victim’s] skull shows that severe force was applied.
      It is another thing entirely, however, to testify that although the
      physical evidence was insufficient for her to distinguish whether
      [the victim] fell or was pushed, the police investigators have
      convinced her that Eaton’s death was a homicide. That is not an
      expert medical opinion.

Id. The same is true here; only in this case, the ME was essentially permitted to

testify he believed Tyler’s statements, and therefore, the cause of the baby’s

death was drowning, and the manner of death was a homicide. Without his

reliance upon her statements, he admitted he could not medically or scientifically

opine whether the baby died in utero, immediately after its birth, or later via

drowning. The ME’s opinion was simply not an expert medical opinion, and his

opinion could not be of assistance to the jury under the limited facts of this case.

As another court explained:

      An expert witness should distinguish between what he knows as an
      expert and what he may believe as a layman. His role is to
      contribute the insight of his specialty. He is not an advocate; that is
      the role of counsel. Nor is he the ultimate trier of the facts; that is
      the role of the jury or the judge, as the case may be. The trier of
      the facts may be misled if the expert goes beyond what he can
      contribute as an expert.

State v. Jamerson, 708 A.2d 1183, 1194-95 (N.J. 1998) (citation omitted).

Moreover, his opinion could “mislead the jury into thinking that he knows

something that they do not know.” See id. at 1195. The jury in this case was as

competent as the ME to analyze the facts and determine whether the baby died

as a result of natural causes versus Tyler’s actions.        See, e.g., Stringer v.

Commonwealth, 956 S.W.2d 883, 889-90 (Ky. 1997) (“Presumably, jurors do not
                                        12


need assistance in the form of an expert’s opinion that the defendant is guilty or

not guilty.”). The ME’s opinion as to the infant’s cause and manner of death

should have been excluded, and the district court abused its discretion in

allowing the opinion into evidence.

       B. Error.

       “A trial court’s erroneous admission of evidence is only reversed on

appeal if a substantial right of the party is affected.” Redmond, 803 N.W.2d at

127 (citation and quotation marks omitted). If evidence is admitted erroneously

but does not cause the defendant prejudice, the evidence’s admission is deemed

harmless and reversal is not warranted.         Id.   However, if the evidence’s

admission causes the party to be “injuriously affected by the error” or to suffer “a

miscarriage of justice,” the non-constitutional error is not harmless, and the case

must be reversed. Id.

       We adhere to the view that error in the admission of expert opinion may

be harmless when other evidence of guilt is overwhelming. See id. This is not

that type of case. Aside from Tyler’s statements, there was little corroborating

evidence in the case. Here, we believe the expert’s opinion, recorded in his

report and reaffirmed in his oral testimony, may have been the decisive factor in

the jury’s finding that the baby’s death was the result of Tyler’s action. Error was

not harmless in this case.

       IV. Conclusion.

       For the foregoing reasons, we reverse Tyler’s conviction for second-

degree murder, and we remand the case for a new trial.

       REVERSED AND REMANDED FOR NEW TRIAL.
