Dorsey v. State

• Decision Date: 25 November 1992
• Docket Number: A92A2088,Nos. A92A1354,s. A92A1354
• Citation: 206 Ga.App. 709,426 S.E.2d 224
• Parties: DORSEY v. The STATE (Two Cases).
• Court: Georgia Court of Appeals

Page 224

426 S.E.2d 224

206 Ga.App. 709

DORSEY v. The STATE (Two Cases).

Nos. A92A1354, A92A2088.

Court of Appeals of Georgia.

Nov. 25, 1992.

Reconsideration Denied Dec. 14, 1992.

Certiorari Denied Jan. 15, 1993.

Robert E. Andrews, Gainesville, for appellant.

C. Andrew Fuller, Dist. Atty., Anne M. Bishop, Lee Darragh, Asst. Dist. Attys., for appellee.

COOPER, Judge.

In separate trials, appellant Marilyn Dorsey ("Mrs. Dorsey") was convicted on six counts of rape, aggravated sodomy, aggravated sexual battery and simple battery and appellant James Dorsey ("Mr. Dorsey") was convicted on four counts of rape, aggravated sodomy and sexual battery. These convictions arose out of appellants' relationship with a young woman suffering from a mental disease. In Case Nos. A92A2088 and A92A1354, Mr. and Mrs. Dorsey respectively appeal from their convictions and sentences on numerous grounds.

At Mrs. Dorsey's trial, the evidence revealed that, as the result of childhood sexual abuse by her grandfather ("Pawpaw"), the victim developed a dissociative disorder in which she has at least two distinct personalities--"Big Wendy" and "Little Wendy." When subjected to upsetting situations or memories, the victim's primary or host personality, Big Wendy, retreats and Little Wendy takes over. Such an occurrence is called by the experts a "dissociative state." When the victim goes into a dissociative state, she takes on the voice and personality of a five- to nine-year-old child. There was expert testimony that in this condition the victim can easily be taken advantage of by adults and would be "extremely vulnerable to any manipulation, especially sexual." Little Wendy is aware of most of Big Wendy's activities, but Big Wendy has no personal knowledge of what happens to Little Wendy; for Big Wendy, the time spent in a dissociative state as Little Wendy is a blackout or "lost time." Although the experts said the victim's dissociation is easily triggered, they also testified that an individual with dissociative disorder can appear normal to others as long as circumstances triggering the dissociation are avoided.

During the victim's junior year of high school, she realized she was having problems and sought help from a school counselor. Concerned about the seriousness of the victim's problems, that counselor consulted Mrs. Dorsey, the lead school counselor. For a short time the victim was seeing Mrs. Dorsey and two other counselors on a regular basis, as well as attending classes. Eventually, however, Mrs. Dorsey convinced the victim and her mother that she alone could best help the victim. Consequently, the victim stopped seeing the other counselors and started spending more time with Mrs. Dorsey, often missing classes. The victim and Mrs. Dorsey spent long periods of time in Mrs. Dorsey's office with the door closed and the windows covered. The victim would also often drive home with Mrs. Dorsey, to babysit for the Dorseys' children and then spend the night at their house. The overnight visits became increasingly frequent over the victim's last two years of high school, and after graduation the victim moved in with the Dorseys. When appellants moved to a new town, the victim moved with them. During the period of approximately five years that the victim lived with the Dorseys, she worked, dated and had many aspects of an apparently normal life.

In the fall of 1990, the victim was beginning to doubt whether living with the Dorseys was helping her. She went into a dissociative state while with a family friend and revealed that she was having sexual relations with the Dorseys. With that friend's encouragement, the victim moved out and sought professional help. In her sessions with psychologists and psychiatrists, the victim as Little Wendy described how Mrs. Dorsey (whom Little Wendy called "Mommy") would talk about Pawpaw and tell her that Pawpaw was coming to get her but that he would stay away as long as she was engaging in various forms of sexual activity with Mrs. Dorsey. These activities, including kissing, touching, oral sex and intercourse with the use of a dildo, occurred in Mrs. Dorsey's office and in her van on deserted dirt roads, as well as in appellants' homes and boat. At some point Mr. Dorsey ("Papa" to Little Wendy) joined the activities occurring at home, engaging in oral, vaginal and anal sex with the victim.

The evidence at Mr. Dorsey's trial was similar, but by that time--approximately eight months after Mrs. Dorsey's trial--the victim's doctors had discovered additional personalities. In particular, a third personality called "Trouble" was identified. Trouble comes out when Little Wendy or any of the others are being physically hurt because she feels no pain. Mr. Dorsey testified at his trial and admitted having sexual relations with the victim but stated that their activities were consensual.

1. The victim testified against the Dorseys in a dissociative state, and both appellants challenge the admissibility of such testimony. Specifically, appellants argue that a dissociative state is like a hypnotic trance, and since "[s]tatements made by a person while in a hypnotic trance are inadmissible, as 'the reliability of hypnosis has not been established' [Cits.]," Bobo v. State, 254 Ga. 146, 148(3a), 327 S.E.2d 208 (1985), testimony from a person while in a dissociative state should also be inadmissible. See also Harper v. State, 249 Ga 519(1), 292 S.E.2d 389 (1982) (statement made by person taking "truth serum" not admissible because it was not established that persons taking the drug will in fact tell the truth while under its influence). Although appellants call our attention to expert testimony that a dissociative state is similar to hypnosis or a trance state in that all three involve alterations in consciousness, the same expert testified that, beyond that, they are "not at all the same thing." Another expert testified that there was no real correlation between a dissociative disorder that is a multiple personality disorder and hypnosis. The most important difference for our purposes is that hypnosis is a process a person voluntarily chooses to engage in yet which is externally imposed, while a dissociative state is involuntary and, although triggered by external stimuli, comes solely from within. We believe the non-volitional nature of a dissociative state itself makes statements made while in such a state inherently more reliable than statements made in a hypnotic trance. Moreover, unlike the statements made in the hypnosis and truth serum cases relied on by appellants, in both of these trials the victim's testimony in a dissociative state could be tested for reliability. In the cases cited by appellants for the proposition that statements made in a hypnotic trance are inadmissible, the statements at issue were hearsay: the question presented was whether someone should be allowed to testify at trial regarding what was recalled and said by himself or another while in an artificially induced altered state of consciousness at an earlier time. Thus, in addition to concerns about the inherent reliability of the statement, whose cases also involved concerns about the impossibility of testing that reliability due to the jury's inability to see the declarant in the altered state making the statement and the opposing party's inability to cross-examine the declarant in the state he was in at the time the statement was made. See United States v. Swanson, 572 F.2d 523, 527-528 (5th Cir.1978). In the instant cases, these concerns do not arise because the victim actually testified in a dissociative state, giving the jury the opportunity to see and evaluate her demeanor, and, as will be discussed further below, appellants were given the opportunity to cross-examine the victim in a dissociative state. We therefore conclude that, for purposes of the cases under consideration, the line of cases holding that statements made by a person in a hypnotic state are inadmissible does not control the admissibility of the victim's testimony in a dissociative state.

Perhaps not surprisingly, we could find no law in any jurisdiction regarding the admissibility of testimony from a witness in a dissociative state. We start with a presumption, however, that because the goal of a trial is to ascertain the truth, "[a]ny evidence is admissible which logically tends to prove or disprove any material fact which is at issue in the case." Westerfield v. State, 176 Ga.App. 195, 196(2), 335 S.E.2d 702 (1985). Furthermore, " '[a]dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court.... (Cit.)' [Cit.]" Johnson v. State, 204 Ga.App. 277(1), 419 S.E.2d 118 (1992). With these principles in mind, we conclude that the challenged testimony was sufficiently reliable to be admissible. There was undisputed expert testimony at both trials that the victim in a dissociative state would not lie. The reliability of the victim's statement in a dissociative state was also supported in both trials by numerous prior consistent statements. Furthermore, the jury was able to observe the victim while she testified, and appellants had the opportunity to test the reliability of her testimony through cross-examination. The trial court properly recognized that if testimony from a person in a dissociative state is never admissible, even if sufficient indicia of reliability are present, persons aware of someone's dissociative disorder will be able to take advantage of that condition with impunity. This we cannot allow. We therefore conclude that the trial court did not abuse its discretion in admitting the testimony of the victim in a dissociative state.

We have twice alluded to appellants' opportunity to cross-examine the witness in each dissociative state in which she testified. At Mrs. Dorsey's trial, the victim went into a dissociative state when the prosecutor began to ask her about sexual activity and...