Hutton v. State

Decision Date01 September 1993
Docket NumberNo. 151,151
Citation663 A.2d 1289,339 Md. 480
PartiesSteven Clarence HUTTON v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.


BELL, Judge.

We granted certiorari in this case to consider whether expert testimony that the alleged victim of child sexual abuse was suffering from Post Traumatic Stress Disorder (hereinafter, PTSD) 1 as a result of being sexually abused, was admissible to prove that the sexual abuse occurred and whether an expert's testimony that the victim's PTSD is "not in any way faked," was, in effect, a comment on the credibility of the victim and, as such, invaded the province of the jury. 2 Stephen Clarence Hutton, the petitioner, was convicted by a jury in the Circuit Court for Prince George's County of two counts each of second degree rape, second degree sexual offense, and child abuse, based, in part, upon such testimony. In an unreported opinion, the Court of Special Appeals affirmed the trial court's allowance of such testimony, holding that State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986) and Acuna v. State, 332 Md. 65, 629 A.2d 1233 (1993) were controlling. We now reverse.

The facts relevant to the resolution of this case are not in dispute, the parties having agreed to proceed on an agreed statement of facts, pursuant to Maryland Rule 8-501(g). 3 The petitioner is the victim's stepfather, having married her mother in 1984, when the victim was five years old. At the time of trial, the victim was 14 years old and in the 9th grade.

According to the victim, the sexual abuse consisted of sexual intercourse and fellatio, which was initiated by the petitioner when she was 7 years old, while the family was living in Virginia. It continued, under threat by the petitioner to spank her if she told her mother, she said, until she was in the 7th grade, after the family had moved to Prince George's County. The victim testified that, while she was in the 2nd grade, the petitioner would place a scarf over her eyes, put vaseline between her legs and sometimes on his penis and engage in vaginal intercourse with her. During that year, she reported that she told a classmate about the abuse, who in turn told the principal of her school. In the fall of 1990, when she was in the 7th grade, the victim reported that the petitioner had vaginal intercourse with her and made her perform fellatio on him, two or three times a week. This behavior occurred, she said, when she came home from school.

In her testimony, the victim related that on several occasions she told her mother that she was being abused by the petitioner. She stated that she also reported the abuse to her mother on the day that it last occurred and the police were called four days later. She denied having engaged in sexual activity with anyone other than the petitioner or that her vaginal area had been otherwise injured. The victim testified that, starting at the age of four or five, she had frequent vaginal infections, and sometimes it would be necessary for the petitioner or her mother to put vaseline on her.

To corroborate the victim's testimony, the State called, in its case in chief, Gail Jackson, a clinical social worker, whose specialty was working with sexually abused children, and Dr. Nancy Davis, a psychologist with whom Jackson practiced, among others. 4 Although she was found qualified as an expert in behavioral science relative to the therapeutic treatment of children, 5 Jackson was not allowed to offer a diagnosis of, or give an opinion with regard to, PTSD. Instead, she was permitted to enumerate, over the petitioner's objection, the behavioral characteristics of children who have been sexually abused. Having indicated that she had seen at least 600 victims of child sexual abuse in her career, she testified, in particular, that victims of child sexual abuse usually have sleep disorders--disturbances--usually nightmares and "feelings of shame, of guilt, a sense of responsibility." She also characterized them as being prone to anger and being emotionally detached, "being flat in their affect," and having poor relationships. She stated that such children "get very confused about time" and many of them have fears, especially of the alleged perpetrator. Further, Jackson noted that victims of sexual abuse may experience physical ailments, "complaints of headaches, stomach aches in which a lot of it is anxiety." Another characteristic to which Jackson testified was the avoidance of relationships with peers and activity at school. Many times according to Jackson, this behavior is indicative of shame. "Either they will be totally withdrawn from someone of the opposite sex or they will be promiscuous." Poor school performance is another characteristic to which Jackson referred--"This stems from the child being preoccupied." Finally, she testified that while many may appear to be somewhat aloof and detached from their feelings, "many of them are hyper vigilant, which means that they are startled very easily. Always on guard, taking in their whole surrounding because they had to be on guard."

Jackson was then allowed to relate the behavioral characteristics she identified as common to child sexual abuse victims to her client, the victim in this case, whom she had seen in one-hour sessions approximately 30 to 35 times during a period of a little more than a year. In that regard, Jackson testified that the victim was very depressed, withdrawn, fearful, and sad. In addition, she had a lot of guilt and was "emotionally very detached." She had, Jackson reported, a "significant number of nightmares. Dreaming of someone chasing her, not being able to see their face and that is very, very common among victims I have worked with of all ages." The victim, according to Jackson, exhibited "a lot of ambivalence" toward her stepfather and was quite confused. Moreover, she had poor grades and was having difficulty getting along with the other children at school and, Jackson added, she was afraid of men.

Jackson conceded, on cross-examination, that these characteristics were consistent not only with sexual abuse but with the existence of other kinds of "stress disorders," as well. She also admitted that, in the therapeutic setting, the "credibility of the person [who is] talking to you is probably of the utmost importance ... that is whether the person is telling a lie or has a reason to be in there making up a story, something like that[.]" Thereupon, on redirect examination, the State inquired into how Jackson assessed the credibility of alleged victims of sexual abuse Q. How is it that you as [the victim's] therapist assess not with regard to her but in any case how do you assess credibility? How can you tell malingering?

A. The consistency for which they give me the basic information. An individual who is able to consistently give me that something happened, I don't so much look for times as I look for the consistency with what happened and over time there is that consistency. I believe that that particular individual is telling me the truth.

Dr. Davis was called as an expert in clinical psychology with a specialty in child sexual abuse. Dr. Davis did no psychological testing of the victim. Her conclusions were reached on the basis of having spoken to the victim when she came into the office to see Ms. Jackson, having reviewed Ms. Jackson's notes and records and the medical report from the Prince George's Sexual Assault Center, and having discussed the case with Ms. Jackson. She opined, over the petitioner's objection, 6 that the victim was suffering from PTSD. In support of that diagnosis, she explained what PTSD is, during the course of which she further opined that the traumatic event triggering the disorder was child sexual abuse.

Dr. Davis' description of PTSD is consistent with that contained in APA, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980). Among the symptomology she identified were the following:

1) "a severely traumatic event ... outside the range of normal human experience that anybody would find to be traumatic, and these include a wide variety of things, but very severe trauma, [like] [s]eeing somebody murdered;"

2) "re-experienc[ing] this event in their mind," often in dreams;

3) numbing oneself to one's feelings; displaying a flat affect; "they look almost like a robot when you talk to them;"

4) "increased arousal"--characterized "by problems such as sleep, problems staying asleep, problems concentrating, problems in school learning, and being very startled when you walk up on them ...;"

5) the symptoms must last over a month.

Dr. Davis noted the following symptoms she observed in the victim: a flat affect--"there was no expression on her face and no feeling in her voice;" the victim was ambivalent toward her mother and the petitioner; the victim felt responsible for what happened; the victim had poor grades, and problems getting along with other children at school; and the victim had sleep problems. With respect to the conclusion that the traumatic event triggering the disorder was child sexual abuse, Dr. Davis pointed to the consistency in the victim's story, stating: "She's been extremely consistent in her story from age five on, despite the fact that numerous people have tried to knock holes in her story by asking her again and again. She's been consistent in what she said, and that is another thing that I look for.... She's told a variety of people, she's told principals, she's told counselors. She's told all kinds of people...." Dr. Davis also mentioned the medical evidence--the lack of a hymen, the fact "that she is enlarged." Like...

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