Division of Corrections v. Wynn

• Decision Date: 19 September 1983
• Docket Number: No. AP-323,AP-323
• Citation: 438 So.2d 446
• Parties: DIVISION OF CORRECTIONS, a State Agency, State of Florida, Appellant, v. Mrs. H.W. WYNN, Appellee.
• Court: Florida District Court of Appeals

Page 446

438 So.2d 446

DIVISION OF CORRECTIONS, a State Agency, State of Florida, Appellant, v. Mrs. H.W. WYNN, Appellee.

No. AP-323.

District Court of Appeal of Florida,

First District.

Sept. 19, 1983.

Jerrold K. Phillips, Brooks, Callahan & Phillips, Tallahassee, for appellant.

Joel S. Perwin, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellee.

LARRY G. SMITH, Judge.

We affirm the judgment, pursuant to jury verdict, for damages sustained by appellee as the result of the crime of rape committed by Robert Lee White, a work release inmate under the supervision of the Florida Department of Corrections. Appellant asserts error in the trial court's rulings allowing certain testimony by plaintiff-appellee's medical expert, and in allowing appellee to introduce the tape-recorded "confession" given by White shortly following the commission of the crime. We conclude that there was no abuse of discretion in ruling on the expert's testimony, and that the error in admitting the tape recording was harmless. Appellant's third point, improper jury argument, was not preserved for review.

At the trial, plaintiff called as a witness Dr. Dorothy J. Hicks, M.D., who was qualified as an expert to testify concerning the "rape trauma syndrome." In her testimony Dr. Hicks pointed out that it is extremely important for the recovery of rape victims that they have the understanding of the people who surround them, and that others acknowledge that a rape victim is a victim of a violent crime, not a responsible party. She explained the pattern of recovery for rape victims and the different stages they go through. On cross-examination, defense counsel asked her if the victim's knowledge that the rapist was incarcerated would expedite the victim's recovery. On redirect examination, plaintiff's counsel asked the doctor whether it would "help or hurt" Mrs. Wynn to have the opposing lawyer in the case suggest that the rapist was going to appear in court and challenge the validity of the rape. There was no objection to this question, and Dr. Hicks answered it. After a few further questions, Dr. Hicks was asked the following question by plaintiff's counsel: "Let's get back specifically to the defense being structured and the witness being deposed right up until the eve of trial, with the idea that the existence of the rape is going to be challenged and that it was an issue whether or not the rape had even occurred, right up until the day of the trial." Defense counsel's objection to this question was overruled. Dr. Hicks then answered the question thusly:

That is a very traumatic set of circumstances, and maybe one reason that this lady has not begun to resolve this problem any better than she has, the fact that they don't believe her, she still has to face this, and that sort of thing. It is extremely important that the patient have understanding. The rape victim have understanding that rape is a crime and it is not one of those just off-hand sexual relationships. It is extremely important that the victim realizes that other people understand exactly how traumatic this has been, and what a shock this has been to her, and how it is going to affect her and everybody she comes in contact with.

We fail to find reversible error in the trial court's ruling allowing the above testimony. The question was relevant to the entire line of testimony, namely, the nature of the trauma suffered by a rape victim, and factors that may aid or retard recovery. The Department "opened the door" to this line of inquiry when it inquired of Dr. Hicks, on cross-examination, whether the fact of the rapist's incarceration would help speed up Mrs. Wynn's recovery. Only in that context did Mrs. Wynn's counsel then proceed to inquire whether her recovery might be undermined (that is, extended or prolonged) by the Department's contention during this litigation that the rapist had been wrongfully incarcerated, because she had consented to the act.

Furthermore, the record fully sustains the position taken by appellee's counsel that the Department had manifested an intention to defend the case on the grounds that rape did not occur. The fact that the Department did not allege this factual basis for its defense in its pleadings is immaterial. In answers to interrogatories filed by appellee the Department declared positively that it had information to the effect that no rape had taken place, that Mrs. Wynn knew the rapist before the alleged crime, and that Mrs. Wynn was not forcibly raped by the inmate. The Department further indicated that the source of all this evidence was the rapist himself. Mrs. Wynn also encountered questions suggestive of the same defense when deposed by the Department's counsel prior to trial. Three days before the commencement of the trial, the Department filed its answer to the amended complaint, admitting that the rape occurred.

We cannot agree with appellant's contention that this line of questioning in effect introduced a separate theory of recovery not raised by appellee's complaint. In our view, this testimony was closely related to the entire subject of Dr. Hicks' testimony, and as such was simply illustrative of how the psychic and emotional trauma experienced by a rape victim is influenced by events that occur thereafter. In any event, the admission of evidence is a matter within the sound judicial discretion of the trial judge, whose decisions in this regard must be viewed in the context of the entire trial. Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982).

Appellant next contends that reversible error occurred in the trial court's ruling allowing appellee to play to the jury the tape-recorded statement of Robert Lee White given to police officers shortly after his arrest on the rape charge. There was no showing that White was unavailable for his live testimony. We agree that the unsworn recorded statement was hearsay. However, appellant has pointed to no fact disclosed or mentioned in the statement that could or did have a prejudicial effect in its defense of the case. Other than establishing the fact of non-consensual intercourse, which the state in its eleventh-hour answer had already conceded, it is difficult to imagine anything in the recorded statement that could possibly have been prejudicial to the Department. In fact, certain portions of the statement could easily be viewed as adverse to appellee. Despite appellant's contentions to the...