Beaulieu v. State, No. 95-605

CourtCourt of Appeal of Florida (US)
Writing for the CourtHARRIS
Citation671 So.2d 807
Parties21 Fla. L. Weekly D659 Richard BEAULIEU, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
Decision Date15 March 1996
Docket NumberNo. 95-605

Page 807

671 So.2d 807
21 Fla. L. Weekly D659
Richard BEAULIEU, Appellant/Cross-Appellee,
v.
STATE of Florida, Appellee/Cross-Appellant.
No. 95-605.
District Court of Appeal of Florida,
Fifth District.
March 15, 1996.
Rehearing Denied April 19, 1996.

Appeal from the Circuit Court for Orange County; John H. Adams, Sr., Judge.

William F. Jung, of Black & Jung, P.A., Tampa, for Appellant/Cross-Appellee.

Robert A. Butterworth, Attorney General, Tallahassee, and Steven J. Guardiano, Sr.

Page 808

Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.

HARRIS, Judge.

Richard Beaulieu was charged with and convicted of various sex acts against a minor. The incidents occurred during a one-month period while Sunni Beaulieu (the minor's natural mother) and Richard Beaulieu (the minor's stepfather) were living together in Orlando, Florida.

According to the child's natural father, he and Sunni were married in 1983 and their son was born in 1984. 1 After they divorced, Sunni had primary custody of the son until 1992. It was during this period that she met and married Beaulieu. After living with his mother and Beaulieu for a period of time, the boy moved to his father's home in 1992. Shortly thereafter he told his father that Beaulieu had sexually abused him. His stepmother, Elizabeth, testified that the boy's emotional state during his disclosure indicated that he was scared; he was trembling, crying and appeared to be in a lot of pain. He told both his father and his stepmother that it was "Rick" who abused him. The father and stepmother then spoke with a school counselor and contacted the police.

Sunni Beaulieu testified that she was unaware of any sexual abuse by Beaulieu and that in 1989 or 1990 her cousin, Douglas Diaz, resided with the Beaulieus but was asked to leave because of his drinking. Diaz had also been treated for drug addiction and had severe emotional problems. Beaulieu contends that if any sexual abuse occurred, it was committed by Diaz.

The only evidence in this case which indicated abuse was the boy's testimony, corroborated by his own hearsay statements to others and by expert opinion indicating that he fit the child abuse profile. The boy's testimony was, of course, disputed by Beaulieu's testimony. Beaulieu contends that the testimony offered by the state's expert witness was simply "psycho vouching" for the credibility of the minor child victim and, in any event, failed the stringent admissibility test outlined in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The state responds that the psychological evaluation was based on background interviews, records, two clinical interviews, and at least four separate tests and is admissible under the relevancy standard adopted by sections 90.702 and 90.703, Florida Statutes, as well as under Glendening v. State, 536 So.2d 212 (Fla.1988), cert denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989). The issue before us is whether, under current law, a psychologist may properly testify that the symptoms he observed in evaluating an alleged sexual abuse victim are consistent with symptoms of children who have suffered sexual abuse. 2

It is indeed deja vu all over again. We are faced with the same prosecutor, the same psychologist, similar testimony, the same appellate issue and substantially the same state of the law that perplexed this court in Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). Little has changed since Judge Griffin's analysis of the Florida law on syndrome evidence. As we did in Toro, we affirm the conviction herein.

The psychologist in our case was permitted to testify that her evaluation of the victim indicated that he met the profile of one who had been sexually abused. In its discussion of the problem, the Toro court concluded that such testimony, under then existing law, appeared to be admissible.

Before proceeding further, we wish to correct what appears to be a misapprehension of this court's earlier opinion in Toro. The Toro court did not approve the use of child abuse syndrome expert testimony to prove sexual abuse of the alleged victim. As noted in the opinion, the Toro trial took place before the Florida Supreme Court decided

Page 809

Flanagan. 3 In Toro there had been no objection raised at trial as to the admissibility of the expert's testimony on the basis of its reliability. The only objection ever raised in Toro was that the expert's testimony was beyond the scope of an earlier proffer, and it was that objection which we held did not warrant reversal.

As explained in Toro, it is the supreme court's decision in Flanagan v. State, 625 So.2d 827 (Fla.1993), that appears to have undone the relevancy test of Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), on which the later decisions approving the use of such expert testimony was based. Judge Griffin's analysis attempted to show that the supreme court's decision in Flanagan permits, and perhaps even requires that the issue of reliability of this type of testimony be reexamined. The purpose of our lengthy discussion in Toro was to encourage a proper reexamination to be done at the trial court level at the earliest possible time in order to resolve, under Frye, whether this type of testimony any longer has any place in the courts of our state. Judge Griffin did point out the reference in State v. Townsend, 635 So.2d 949 (Fla.1994), to Glendening, but never implied that this reference was designed to carve out a unique exception to the Frye test of scientific reliability reaffirmed in Flanagan for this type of testimony, the reliability of which has come under increasingly broad and persuasive attack.

Toro did point out, however, the apparent inconsistency between Flanagan, which held that "profile" evidence is inadmissible because it does not meet the Frye test, and Townsend where, apparently relying on the "relevance" standard (section 90.702, Florida Statutes), the court stated that "if relevant, a medical expert witness may testify as to whether, in the expert's opinion, the behavior of a child is consistent with the...

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3 practice notes
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • 6 Febrero 1997
    ...of Appeal in Hadden v. State, 670 So.2d 77 (Fla. 1st DCA 1996) (en banc), and the Fifth District Court of Appeal in Beaulieu v. State, 671 So.2d 807 (Fla. 5th DCA 1996), certifying the following question to be of great public IN VIEW OF THE SUPREME COURT'S HOLDING IN TOWNSEND V. STATE, DOES......
  • Smith v. State, No. 94-962
    • United States
    • Court of Appeal of Florida (US)
    • 3 Mayo 1996
    ...irrelevant, it was inadmissible regardless of whether or not the Frye 2 test should be applied in cases like this. See Beaulieu v. State, 671 So.2d 807 (Fla. 5th DCA, 1996). To the extent the testimony was intended to show a propensity on the part of the child to be victimized, it was inadm......
  • Beaulieu v. State
    • United States
    • United States State Supreme Court of Florida
    • 6 Septiembre 1996
    ...421 680 So.2d 421 Richard A. Beaulieu v. State; Hadden v. State NO. 87,918 Supreme Court of Florida. Sept 06, 1996 Appeal From: 5th DCA, 671 So.2d 807; 1st DCA, 670 So.2d 77 Disposition: Rev. gr. ...
3 cases
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • 6 Febrero 1997
    ...of Appeal in Hadden v. State, 670 So.2d 77 (Fla. 1st DCA 1996) (en banc), and the Fifth District Court of Appeal in Beaulieu v. State, 671 So.2d 807 (Fla. 5th DCA 1996), certifying the following question to be of great public IN VIEW OF THE SUPREME COURT'S HOLDING IN TOWNSEND V. STATE, DOES......
  • Smith v. State, No. 94-962
    • United States
    • Court of Appeal of Florida (US)
    • 3 Mayo 1996
    ...irrelevant, it was inadmissible regardless of whether or not the Frye 2 test should be applied in cases like this. See Beaulieu v. State, 671 So.2d 807 (Fla. 5th DCA, 1996). To the extent the testimony was intended to show a propensity on the part of the child to be victimized, it was inadm......
  • Beaulieu v. State
    • United States
    • United States State Supreme Court of Florida
    • 6 Septiembre 1996
    ...421 680 So.2d 421 Richard A. Beaulieu v. State; Hadden v. State NO. 87,918 Supreme Court of Florida. Sept 06, 1996 Appeal From: 5th DCA, 671 So.2d 807; 1st DCA, 670 So.2d 77 Disposition: Rev. gr. ...

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