Erickson v. State

• Decision Date: 13 June 1990
• Docket Number: No. 88-0242,88-0242
• Citation: Erickson v. State, 565 So.2d 328 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D1579 Daniel Ray ERICKSON, a/k/a John William Dickey, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 328

565 So.2d 328

15 Fla. L. Weekly D1579

Daniel Ray ERICKSON, a/k/a John William Dickey, Appellant, v. STATE of Florida, Appellee.

No. 88-0242.

District Court of Appeal of Florida Fourth District.

June 13, 1990.

Rehearing Denied August 8, 1990.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.

Daniel Ray Erickson, Florida City, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.

ESQUIROZ, MARGARITA, Associate Judge.

Following a non-jury trial, the defendant was convicted of indecent assault on a child under sixteen, pursuant to section 800.04(1), Florida Statutes (1987), and sentenced to fifteen years in the state penitentiary. He raises several points on appeal, challenging both his conviction and sentence. We affirm the conviction, but vacate the sentence and remand for resentencing.

ADMISSION OF PSYCHIATRIC TESTIMONY

The defendant claims that the trial court erred in admitting, over his objections, irrelevant and prejudicial expert psychiatric testimony in the state's case in chief. Dr. Mandri, a psychiatrist who examined the defendant on the day following his arrest, testified that his diagnosis of the defendant's condition was pedophilia and antisocial behavior, and that it was his belief that the defendant was not truthful during the psychiatric interview. Dr. Perfilio, who examined the defendant several months later solely to determine the defendant's competency to stand trial, disclosed certain factual admissions concerning the events of the crime made by the defendant in the course of the psychiatric interview. Dr. Perfilio also testified that the defendant told him that he had long had sexual fantasies about female children, including oral, anal, and vaginal fantasies. ¹

The state argues that such testimony is relevant and therefore admissible in the state's case in chief to establish criminal intent by rebutting the defendant's claim that he only playfully touched the ten-year-old victim, and to establish the defendant's capacity to understand and voluntarily waive his Miranda rights as a predicate for the admission of his statement to a police detective. ² In response, the defendant asserts that he has not contested the voluntariness of his statement to the detective, and that he never raised insanity as a defense or otherwise placed his mental condition in issue throughout the trial.

We agree with the defendant's position and hold that the trial court erred in admitting such expert testimony. In Francis v. State, 512 So.2d 280 (Fla. 2d DCA 1987), the defendant appealed his conviction and sentence for capital sexual battery and battery upon his three female nieces, ages eleven and younger. The district court of appeal held that the trial judge erred in permitting a child psychologist, called as an expert by the state, to render his opinion that the defendant had a personality characteristic of being attracted to children. In so ruling, the court cited the familiar principle that evidence of a person's character or a trait of character is inadmissible to prove that he acted in conformity with it on a particular occasion, except when such evidence is offered by the accused, or by the prosecution to rebut the trait. § 90.404(1)(a), Fla.Stat. (1987); Francis v. State, 512 So.2d at 282.

Even relevant evidence is inadmissible if its sole purpose is to show the defendant's bad character or propensity to commit the crime charged. Coler v. State, 418 So.2d 238, 239 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983); Harris v. State, 183 So.2d 291 (Fla. 2d DCA 1966). ³ It is also well established that expert testimony may not be offered to vouch for the credibility of a witness. Tingle v. State, 536 So.2d 202, 205 (Fla.1988); Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), dismissed, 507 So.2d 588 (1987). It logically follows that expert testimony should not be allowed in a criminal trial to attack the credibility of the accused, who has a right not to become a witness in the first place.

Additionally, a court-appointed psychiatrist may testify as to his opinions or conclusions regarding the defendant's mental condition where such mental condition is in issue. But he may not disclose incriminating statements made to him by the defendant, or directly divulge facts about the crime that he may have elicited from the defendant in the course of the examination, unless the defendant first opens the door to such inquiry by his own presentation of evidence. See Parkin v. State, 238 So.2d 817, 820-22 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); McMunn v. State, 264 So.2d 868, 870 (Fla. 1st DCA 1972). See also Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Fla.R.Crim. P. 3.211(e). Thus, the defendant's Fifth Amendment rights are violated where the state is allowed to use the substance of his unwarned disclosures or statements made during a pretrial psychiatric examination as affirmative evidence against him at trial. Estelle v. Smith, 101 S.Ct. at 1874- 75. ⁴

In the present case, the defendant did not introduce any psychiatric evidence, nor did he ever indicate that he might do so. He did not place his mental condition in issue at trial, ⁵ nor did he challenge the knowing and voluntary nature of his statement, which was admitted at trial virtually without objection through the interrogating detective's testimony. Therefore, because the challenged psychiatric testimony was not truly relevant to any issue at trial, the trial court erred in admitting it.

ADMISSION OF TESTIMONY CONCERNING OTHER CRIMES

The defendant also claims that the trial court erroneously admitted evidence of collateral crimes through the testimony of one Mr. Conicelli and his nine-year-old daughter, who revealed their observations of acts committed by the defendant on another little girl named Sarah at the Parents Without Partners picnic, where it is claimed that the acts committed on the ten-year-old victim herein occurred. In particular, Mr. Conicelli explained that while in the water, the defendant lifted Sarah, held her with his hand touching her private parts for about one or two minutes, and then threw her up in the air and into the water. The defendant argues that such testimony is inadmissible because (a) the state did not provide him with a notice of intent to offer evidence of other criminal offenses as required by section 90.404(2)(b), Florida Statutes (1987), and (b) such testimony lacks relevancy because the acts committed on Sarah are dissimilar to the acts claimed to have been committed on the victim, thereby serving only to show bad character and propensity to commit the crime charged. The state takes issue with the defendant's characterization of the evidence, asserting that it is admissible as inseparable crime evidence under Tumulty v. State, 489 So.2d 150 (Fla. 4th DCA), rev. denied, 496 So.2d 144 (Fla.1986), and other cases following the same logic.

We agree with the state's position. Both Sarah and the victim were allegedly assaulted in the course of the day's activities at the Parents Without Partners beach picnic they both attended. The manner in which the defendant touched young Sarah in her private parts by lifting her up in the water, holding her, and then throwing her, as described by Mr. Conicelli, is remarkably similar to the way in which the defendant allegedly lifted the ten-year-old victim while in the water, holding her with his hand on her buttocks area, as she described it. Additionally, the testimony of Mr. Conicelli and his nine-year-old daughter is somewhat cumulative to a portion of the account given by the victim, who at one point disclosed, without objection, that she later returned to the water accompanied by the defendant, by Sarah and another girl, who "wanted to be picked up and they were diving off. They were just jumping off." Indeed, the incident with Sarah led directly to the defendant's apprehension at the scene, for immediately after observing the defendant touch Sarah, the Conicellis alerted Sarah's mother, who in turn summoned another member in charge of the group, who in turn confronted, chased, and apprehended the defendant a short distance away.

Accordingly, we hold that the testimony concerning the defendant's touching of Sarah's private parts is admissible because that act is inseparably linked in time and circumstances to the evidence of defendant's acts upon the ten-year-old victim herein. Such testimony is simply relevant evidence which is "inextricably intertwined" in the scenario of the crime charged, it all having occurred in the course of the beach day at the Parents Without Partners picnic. See Kelly v. State, 552 So.2d 1140, 1141-42 (Fla. 5th DCA 1989); Tumulty v. State, 489 So.2d at 153. See also Austin v. State, 500 So.2d 262 (Fla. 1st DCA 1986), rev. denied, 508 So.2d 13 (Fla.1987). This court has held that the characteristics of inseparable crime evidence are distinct from those of collateral crime evidence, and such evidence is admissible for different reasons and under a different section of the Evidence Code, section 90.402, Florida Statutes (1987). Therefore, the state need not comply with the ten-day notice provision of section 90.404(2)(b) as a prerequisite to offering inseparable crime evidence. Platt v. State, 551 So.2d 1277 (Fla. 4th DCA 1989); Tumulty v. State, 489 So.2d at 153. The trial court did not err in admitting such testimony.

ADMISSION OF DEFENDANT'S STATEMENT TO THE VICTIM

The defendant challenges the trial court's admission of a statement claimed to have been made by him to the victim some six hours after the actual conduct charged--fondling the victim's buttocks--allegedly occurred, on the basis that such statement injects into the trial evidence of criminal conduct not charged in the information. As...