Harrison v. State Of Fla.
Citation | 33 So.3d 727 |
Decision Date | 25 March 2010 |
Docket Number | No. 1D08-4366.,1D08-4366. |
Parties | Tommy Jack HARRISON, Appellant,v.STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Edgar Lee Elzie, Jr., Assistant Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
On direct appeal from convictions for lewd and lascivious molestation of a victim less than twelve years of age, Tommy Jack Harrison argues that the trial court erred in excluding a defense expert and the opinion testimony he would have given. We reverse and remand for a new trial.
We will not disturb a trial court's decision on the admissibility of expert testimony absent an abuse of discretion. See Doctors Co. v. State, Dep't of Ins., 940 So.2d 466, 469 (Fla. 1st DCA 2006) . But we find an abuse of discretion here.
Our supreme court has explained that “in cases such as this, ‘some expert testimony may be helpful,’ ” Tingle v. State, 536 So.2d 202, 205 (Fla.1988) (quoting United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986)), and has made clear that “an expert may properly aid a jury in assessing the veracity of a victim of child sexual abuse ‘without usurping their exclusive function by generally testifying about a child's ability to separate truth from fantasy.’ ” Id. (quoting Azure, 801 F.2d at 340). See Quintero v. State, 889 So.2d 1013, 1014 (Fla. 1st DCA 2004).
At trial, the alleged victim, then eleven years of age, testified that the appellant twice “rubbed” her “private” seven or eight years earlier, when she was three or four years old. She testified she did not remember whether he touched her outside or underneath her clothing. The prosecution's case rested entirely on these accusations, accusations which the alleged victim had made less than a year before trial (although her mother and a social worker, echoing the same belated accusations, also recounted them for the jury).
Appellant's trial counsel defended by questioning the reliability of an eleven-year old child's memory of events that occurred when the child was three or four years old. The trial court excluded the defense's only expert, however, disallowing his testimony on grounds that (1) the expert's name was disclosed late and (2) “the Court does not find that this proffered specialized knowledge by Dr. Larson is something that is necessary for the trier of fact to understand in interpreting the evidence or determining a fact in issue.”
The trial court's decision not to permit the expert to testify because of defense counsel's failure to list him as a witness until 13 days prior to trial was a clear abuse of discretion: The State made no objection on this basis, and the trial court failed to conduct a hearing of the kind required by Richardson v. State, 246 So.2d 771 (Fla.1971). See Curry v. State, 1 So.3d 394, 398 (Fla. 1st DCA 2009) ; Grace v. State, 832 So.2d 224, 226-27 (Fla. 2d DCA 2002) ( . In the absence of a Richardson hearing, the trial court was in no position to make-and did not make-a determination that there was no other adequate remedy for the discovery violation the trial court spontaneously ruled had taken place.
On the second ground, even though it denied defense counsel's request to allow Dr. Larson to testify on proffer see Fehringer v. State, 976 So.2d 1218, 1220 (Fla. 4th DCA 2008) ; Rozier v. State, 636 So.2d 1386, 1387-88 (Fla. 4th DCA 1994), the trial court ruled that Dr. Larson's testimony would not assist the jury in understanding the evidence or determining a fact in issue. See § 90.702, Fla. Stat. (2007) (). The prosecution did not question Dr. Larson's psychological expertise or object on grounds other than relevance. See generally Ramirez v. State, 651 So.2d 1164 (Fla.1995); Daniels v. State, 4 So.3d 745, 748-49 (Fla. 2d DCA 2009).
Trial counsel defended not on the theory that the child was lying-defense counsel told the jury she believed the child thought she was telling the truth-but by suggesting that memories from early childhood are unreliable and susceptible to distortion by external factors. One such external influence, the defense contended, could have been a “Law and Order” television program that portrayed a boy assaulting his sister sexually, a program the child testified that she watched the night before she made the molestation allegations to her mother. In closing argument, defense counsel argued that “personal experience ... [a]ffects a person's memory, and certainly a child's memory.” Defense counsel emphasized the “suggestibility” or suggestiveness of “things outside the child, like the movie she saw, like the sexually charged atmosphere in our society, like the great emphasis that our society is now putting on this whole field of child sexual abuse.”
It was in an effort to establish this defense that Mr. Harrison's trial counsel sought to call Dr. Larson as an expert witness. The trial court reasoned that the expert testimony would not assist the jury because jurors already “understand[ ] the basic premise that children are children, that sometimes they will create things that are fantasies that may or may not be true....” (What the trial court meant by “fantasies that may or may not be true” is unclear.) The trial court seemed not to acknowledge that the defense sought to raise a reasonable doubt by proving that a truthful child might mis-remember seven- or eight-year old events, and that the defense had the right to try to do so.
At issue here is testimony significantly different from an “expert's general testimony as to eyewitness fallibility.” Rodriguez v. State, 413 So.2d 1303, 1305 (Fla. 3d DCA 1982). See McMullen v. State, 714 So.2d 368, 372 (Fla.1998) ( ). Nor would Dr. Larson's testimony have been “a conclusion on an ultimate issue of fact based solely on [the defendant's] self-serving statements.” Mitchell v. State, 965 So.2d 246, 251 (Fla. 4th DCA 2007). An unusually lengthy interval separated the child's allegations from the alleged acts.
The defense sought to debunk common misconceptions regarding the formation and accuracy of children's memories. Only if the reliability of accusations leveled by an eleven-year-old child-of sexual misconduct occurring seven or eight years earlier, accusations made in the same conversation in which she reports seeing, the night before, a television program about child sexual activity-can be said to be within the ordinary understanding of jurors, could it be argued that Dr. Larson's testimony could have served no purpose. Compare Jordan v. State, 694 So.2d 708, 717 (Fla.1997) ( ); Lewis v. State, 572 So.2d 908, 911 (Fla.1990); Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980) . But see Boyer v. State, 825 So.2d 418, 419 (Fla. 1st DCA 2002) () .
The present case involves a child's allegations of sexual abuse in the distant past. We also ruled that excluding expert testimony was an abuse of discretion in Boyer, where we said: ...
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