Irving v. State, s. 96-2972
| Decision Date | 06 February 1998 |
| Docket Number | 97-44,Nos. 96-2972,s. 96-2972 |
| Citation | 705 So.2d 1021 |
| Parties | 23 Fla. L. Weekly D436 Wordsworth IRVING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and Carolyn A. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
Appellant challenges his conviction and sentence for one count of sexual battery on a child under twelve years of age and one count of lewd assault on a child. Based on the authority of Hadden v. State, 690 So.2d 573 (Fla.1997), we reverse and remand for a new trial.
Appellant filed a motion in limine to suppress any expert testimony that the victim's behavior was consistent with that of a child who had been sexually abused, and requested that the expert testimony be Frye tested. 1 The motion was denied, and no Frye test was conducted. Dr. James Hord, a clinical psychologist, testified at trial that the victim exhibited symptoms that are consistent with a child who has been sexually abused. We conclude that the admission of Dr. Hord's testimony was reversible error because it was not pure opinion testimony, was not subjected to the Frye test, and would not pass Frye testing according to Hadden.
Dr. Hord was asked and answered:
The Florida Supreme Court in Hadden held that an expert's pure opinion testimony which is based solely on the expert's training and experience is not subject to the Frye test for admissibility of novel scientific evidence. Id. at 579-80. Hadden then requires an examination of whether the testimony was pure opinion testimony or scientific-expert testimony. The expert in Hadden testified based upon his experience and training in child sex-abuse cases that the child had been sexually abused. However, the Hadden court reviewed all of the expert testimony and found that "the expert's answer was based not only upon the expert's experiences but on syndromes such as posttraumatic stress disorder and related diagnostic criteria," Id. at 581 (emph.added). Because the expert's opinion was based upon diagnostic standards, it had to pass the Frye test. Id.
Dr. Hord used two projective tests that he testified were "generally viewed as being valid when conducted by an experienced psychologist." However, these are precisely the types of "diagnostic standards" that the Supreme Court held must pass the Frye test. Id. at 580-81. While Dr. Hord was careful to testify that his opinion was based solely upon his experience and training in child sex-abuse cases, as did the expert in Hadden, the Hadden court was clear that the reviewing court must look at the expert's entire testimony to determine whether that testimony was indeed pure opinion. Id. Dr. Hord's opinion was based upon diagnostic standards, which must pass the Frye test. Id.
Hadden further held that any "expert testimony offered to prove the alleged victim of sexual abuse exhibits symptoms consistent with one who has been sexually abused should not be admitted." Id. at 577. The court added:
[A]t the present time, a psychologist's opinion that a child exhibits symptoms consistent with what has come to be known as "child sexual abuse accommodation syndrome" (CSAAS) [footnote omitted] has not been proven by a preponderance of scientific evidence to be generally accepted by a majority of experts in psychology. Therefore, such opinions (which we will refer to as "syndrome testimony") may not be used in a criminal prosecution for child abuse.
Id. at 575. Even though Dr. Hord never used the magic words "syndrome" or "profile," his testimony may have been based upon CSAAS evidence, which was specifically found to be inadmissible in Hadden. However, even if his opinion was not based on syndrome evidence, it is still not excused from Frye testing, because it was (1) expert testimony, and (2) offered to prove the alleged victim of sexual abuse exhibits symptoms consistent with those of one who has been sexually abused.
The only question that remains is whether this finding of error requires reversal. The reviewing court must look at the context of the entire case and determine whether there is a reasonable probability that the error affected the verdict. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The evidence in this case consisted of a "swearing match" between Appellant and the victim, which was also the case in Hadden. Hadden v. State, 670 So.2d 77, 91-92 (Fla. 1st DCA 1996) (Ervin, J., dissenting). There was no medical evidence substantiating the abuse. The only direct evidence connecting Appellant to the crimes was the victim's testimony and the Appellant's "failed" lie-detector test. In Hadden, the only evidence was the victim's testimony and the defendant's actual confession. Hadden, 670 So.2d at 92 (Ervin, J., dissenting). The Supreme Court adopted Judge Ervin's dissenting opinion that the admission of the expert's opinion was not harmless. Hadden, 690 So.2d at 581. Accordingly, we hold that the admission of Dr. Hord's testimony was harmful error, and remand for a new trial.
REVERSED and REMANDED for a new trial.
The majority, in relying upon Hadden v. State, 690 So.2d 573 (Fla.1997), has transgressed the cautionary note in that case:
Nor should our decision here be read so broadly as to require Frye tests for psychological testimony which is not new or novel such as that pertaining to competency or intelligence quotient.
Id. at 580 n. 5 (...
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