Hadden v. State, No. 93-436

CourtCourt of Appeal of Florida (US)
Writing for the CourtAn appeal from the Circuit Court for Escambia County, Nickolas P. Geeker; MINER; BENTON; WOLF; ERVIN, J., dissents with opinion, in which ZEHMER; ZEHMER; WOLF; ERVIN
Citation670 So.2d 77
Decision Date14 February 1996
Docket NumberNo. 93-436
Parties21 Fla. L. Weekly D405 Timothy Ray HADDEN, Appellant, v. STATE of Florida, Appellee.

Page 77

670 So.2d 77
21 Fla. L. Weekly D405
Timothy Ray HADDEN, Appellant,
v.
STATE of Florida, Appellee.
No. 93-436.
District Court of Appeal of Florida,
First District.
Feb. 14, 1996.
As Corrected Feb. 20, 1996.

Page 79

An appeal from the Circuit Court for Escambia County, Nickolas P. Geeker, Judge.

Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; James W. Rogers, Senior Assistant Attorney General, Thomas Falkinburg, Assistant Attorney General, Tallahassee, for Appellee.

EN BANC

MINER, Judge.

Appellant, Timothy Ray Hadden seeks review of his convictions and sentences on three counts of lewd and lascivious acts on a child under twelve years of age. Hadden's appellate counsel filed an initial brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and pursuant to State v. Causey, 503 So.2d 321 (Fla.1987), this court reviewed the record on appeal and ordered supplemental briefing on two issues: (1) whether the trial court's findings were sufficient to permit the introduction into evidence of the alleged child victim's hearsay statements; and (2) whether reversible error occurred when the trial court admitted expert testimony that the alleged child victim exhibited symptoms consistent with those of a child who had been sexually abused. Having considered the record and the responses to the Court's briefing order, we hold that the trial court's findings were sufficient to permit introduction of the child's hearsay statements and affirm on this point without further comment. Although we also affirm as to the second issue supplementally raised, we find that some further discussion is warranted.

Hadden was charged by amended information with three counts of sexual battery on a person under twelve years of age by vaginal penetration with his finger between November of 1990 and March of 1992 in violation of section 794.011(2), Florida Statutes. During the course of trial, the state proffered, out of the jury's presence, opinion testimony from veteran mental health counselor and school psychologist, Doug Jones, concerning the symptoms and diagnostic criteria typically associated with sexually abused children. Although Hadden accepted Jones as an expert in child abuse, he objected to this testimony, arguing that it lacked scientific reliability and that Mr. Jones failed to identify enough diagnostic criteria to give an adequate description of the child's condition. The state responded by citing to Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988),

Page 80

wherein this court held that testimony similar to Jones' was admissible as circumstantial evidence that the child had been sexually abused. The trial court overruled Hadden's Frye 1 objection and permitted Jones to testify before the jury, without objection, that the alleged victim exhibited symptoms similar to those of a child who had been sexually molested.

Before addressing this case on its merits, we deal first with whether objection to the subject testimony was both timely and sufficient as required by Correll v. State, 523 So.2d 562 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988). In that case, the prosecution sought to introduce the results of a blood test obtained using the electrophoresis method of testing. The defense raised a Frye objection at trial which was overruled. The supreme court agreed with the trial court that the defense objection was not timely or sufficient:

[W]e hold that when scientific evidence is to be offered which is of the same type that has already been received in a substantial number of other Florida cases, any inquiry into its reliability for purposes of admissibility is only necessary when the opposing party makes a timely request for such an inquiry supported by authorities indicating that there may not be general scientific acceptance of the technique employed.

Correll, 523 So.2d at 567. Because it was clear from the record before the court in Correll that the electrophoresis method at issue had been routinely admitted throughout Florida, and the state's expert had testified more than 70 times concerning such testing, the court concluded that the defense could not surprise the state at trial with what, under the circumstances, must be deemed an unexpected Frye objection.

By contrast, the record in the case at bar contains nothing to indicate that evidence of the type here in question has regularly been admitted in Florida courts or was deemed routinely scientifically reliable at the time of Hadden's 1992 trial. Even if the timeliness of the defense objection in this case were disregarded, we believe that Correll is inapplicable to the instant facts.

Turning next to the merits, the pertinent parts of counselor/psychologist Jones' jury testimony are set out, as follows:

DIRECT EXAMINATION BEFORE THE JURY

Q. Mr. Jones, based upon your experience and training in sexual abuse cases, is it normal for say a child of ten who is the victim of sexual abuse to initially only reveal part of the sexual abuse and then as time goes on to reveal more of what occurred in the sexual abuse?

A. That is common.

* * * * * *

Q. It would not be usual then based upon what you've testified to or would it be unusual or not for the--child to initially say there had only been fondling and then move on to indicate that there had [been] a penetration by the finger?

A. That is not uncommon.

Q. And have you had occasion to see T.H., the victim in this case?

A. Yes, I have, on May 13th was the initial visit.

Q. And how many times have you seen her since then?

A. Since that time it has been ten times.

Q. And for what purpose were you seeing T.H.?

A. Seeing her because of emotional adjustment type of issues at home and at school and related to an incident of alleged sexual molestation.

Q. Now, based upon your experience and training in this area, does she exhibit any of the symptoms of a child who has been sexually abused?

A. She does.

Q. And what symptoms are those?

A. Primary things are an unemotional recounting when asked specifically about this incident, flat affect, difficulty describing sometimes very specific details about when and where, those kinds of

Page 81

issues, a sense of guilt, sense of responsibility in ways, number of issues that have to do with a child's reaction to an adult perpetrator.

* * * * * *

A. Now, would it be consistent or not consistent for a child who had been a victim of sexual abuse to continue to go over to the place where she has been sexually abused if she were going over there to see someone other than the person who had abused her such as a friend or something?

A. That's not unusual.

CROSS EXAMINATION

Q. So, doctor, what you're saying is that it's your opinion that this girl was sexually abused?

A. She has the symptoms of a child who has been molested.

(Emphasis added).

In his supplemental brief, appellant cites to the supreme court's decision in Flanagan v. State, 625 So.2d 827 (Fla.1993), as support for the proposition that this court's opinion in Ward, supra, is no longer viable and thus cannot support the trial court's ruling regarding the disputed evidence in the case at hand. We find this argument to be without merit. Ward involved testimony by a clinical psychologist relating to symptoms generally exhibited by children who are sexually abused and that psychologist's opinion that the child-victim in that case displayed symptoms typically seen in sexually abused children.

In Ward, the defendant had unsuccessfully objected to such testimony, arguing that it was unreliable because the field of child sexual abuse had not been adequately explored and developed to such a point as to permit a reasonable opinion in the premises, that the expert's conclusion lent creditability to the child's testimony and that the subject of the expert's testimony required no expertise not already possessed by the jury.

In affirming the trial court's ruling admitting this evidence, this court applied the three-point test contained in Hawthorne v. State, 408 So.2d 801 (Fla. 1st DCA), rev. den., 415 So.2d 1361 (Fla.1982), 2 when it found (1) that the expert was qualified to express an opinion in the matter; (2) that the subject area of child abuse was developed well enough to permit an expert to express an opinion; and (3) that child abuse is not so understandable that lay persons know as much about it as a properly qualified expert.

Subsequent to Ward, this court has had occasion to re-affirm the admissibility of expert testimony similar to that involved in Ward and the case at hand. See Calloway v. State, 520 So.2d 665, 668 (Fla. 1st DCA), rev. den., 529 So.2d 693 (Fla.1988); Brown v. State, 523 So.2d 729 (Fla. 1st DCA 1988). While suggesting that the time may be right to re-examine the use in Florida courts of expert testimony in child sex abuse cases, the Fifth District has also upheld the admissibility of such evidence. Toro v. State, 642 So.2d 78 (Fla. 5th DCA 1994). By contrast, the Second District has rejected such expert opinion testimony in cases involving older children on the ground that its primary purpose and effect is to bolster the credibility of the alleged victim. Ball v. State, 651 So.2d 1224 (Fla. 2d DCA 1995); Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994); J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994); Drawdy v. State, 644 So.2d 593 (Fla. 2d DCA 1994).

In Flanagan, supra, the case on which appellant relies to support his contention that Ward is no longer good law, the Supreme Court addressed two issues pertaining to the admissibility of pedophile profile testimony which concerned traits generally associated with perpetrators of child sexual abuse rather than victims of such abuse. The court made clear that it was concerned with the expert's testimony "about common characteristics of the home environment where...

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9 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...of panel decision, then withdrawn and replaced by en banc decision of full court), approved by 739 So.2d 77 (Fla.1999); Hadden v. State, 670 So.2d 77 (Fla. 1st DCA 1996) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 690 So......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...of panel decision, then withdrawn and replaced by en banc decision of full court), approved by 739 So.2d 77 (Fla.1999); Hadden v. State, 670 So.2d 77 (Fla. 1st DCA 1996) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 690 So......
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • 6 Febrero 1997
    ...Daytona Beach, for Respondent. WELLS, Justice. We have for review the decisions of the First District Court 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 th......
  • Berry v. CSX Transp., Inc., Nos. 95-3131
    • United States
    • Court of Appeal of Florida (US)
    • 3 Marzo 1998
    ...in Hadden was not based upon scientifically accepted methodology. As Judge Ervin opined in his dissenting opinion in Hadden v. State, 670 So.2d 77, 89 (Fla. 1st DCA 1996)(en banc), approved by the supreme court, the diagnosis of sexual abuse through a syndrome analysis is not a generally ac......
  • Request a trial to view additional results
9 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...of panel decision, then withdrawn and replaced by en banc decision of full court), approved by 739 So.2d 77 (Fla.1999); Hadden v. State, 670 So.2d 77 (Fla. 1st DCA 1996) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 690 So......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...of panel decision, then withdrawn and replaced by en banc decision of full court), approved by 739 So.2d 77 (Fla.1999); Hadden v. State, 670 So.2d 77 (Fla. 1st DCA 1996) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 690 So......
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • 6 Febrero 1997
    ...Daytona Beach, for Respondent. WELLS, Justice. We have for review the decisions of the First District Court 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 th......
  • Berry v. CSX Transp., Inc., Nos. 95-3131
    • United States
    • Court of Appeal of Florida (US)
    • 3 Marzo 1998
    ...in Hadden was not based upon scientifically accepted methodology. As Judge Ervin opined in his dissenting opinion in Hadden v. State, 670 So.2d 77, 89 (Fla. 1st DCA 1996)(en banc), approved by the supreme court, the diagnosis of sexual abuse through a syndrome analysis is not a generally ac......
  • Request a trial to view additional results

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