Kennedy v. State, CR-03-1583.

• Decision Date: 29 April 2005
• Docket Number: CR-03-1583.
• Citation: 929 So.2d 515
• Parties: Brenda L. KENNEDY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

929 So.2d 515

Brenda L. KENNEDY v. STATE of Alabama.

CR-03-1583.

Court of Criminal Appeals of Alabama.

April 29, 2005.

Talitha Powers Bailey, Pinson, for appellant.

Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

COBB, Judge.

On March 4, 2004, Brenda L. Kennedy was convicted of child abuse, a violation of § 26-15-3, Ala.Code 1975. On June 3, 2004, the trial court sentenced Kennedy, as a habitual felony offender,¹ to 20 years in prison, but split the sentence and ordered Kennedy to serve 3 years in prison, to be followed by 5 years on supervised probation. On June 5, 2004, Kennedy filed a "Motion to Reconsider Sentence or in the Alternative Defendant's Objection to Sentence," which the trial court denied on June 22, 2004. On June 25, 2004, Kennedy filed a motion for a new trial, which the trial court denied on July 16, 2004. This appeal followed.

The facts adduced at trial indicate the following: On June 7, 2003, eight-year-old C.J. telephoned emergency 911 from the house he shared with, Kennedy, his mother.² C.J. called 911 because he was home alone and believed someone was trying to break into the house. When the police officer arrived, he found C.J. alone, naked and hungry, with his wrists and ankles bound with duct tape. C.J. told the officer that, early that morning, Kennedy had left C.J. alone and bound in the bathtub. According to C.J., this was not the first time this had occurred. On this particular day, C.J. had managed to work his hands loose, but his ankles were tightly bound, forcing him to hop to the telephone and to the door. Upon entering the house, the police officer covered C.J. with newspaper and, after ensuring there was no intruder in the house, cut the duct tape from C.J.'s ankles. C.J. was taken to the police station, where he was fed. At the time of Kennedy's sentencing, C.J. was still in the custody of the Department of Human Resources because no family member had appeared at his permanency hearing. See § 12-15-62(c), Ala.Code 1975.

Kennedy raises two issues on appeal. We address each in turn.

I.

Kennedy argues that the trial court erred in several ways by allowing the State's expert witness to testify. The witness, Emily Israel, was employed as a counselor and forensic interviewer at the Prescott House, a child advocacy center. At trial, the State questioned Israel, then moved to have her qualified as an expert witness. Kennedy objected on the following grounds:

"[Defense counsel]: I object. . . . I don't know if she should be qualified as an expert. I mean, the tape³ speaks for itself. The jury can look at that and make a determination based on what they've seen. So I object to her giving any inferences as to his statements on the tape.

". . . .

"THE COURT: I'm going to overrule your objection. She's qualified as an expert."

(R. 132-22.)

"[Prosecutor]: Ms. Israel, after talking to [C.J.], the young man on the tape, did you form an opinion as to whether or not he had been abused?

"[Defense counsel]: Objection, Your Honor. That's a question for the jury.

"THE COURT: I'm going to sustain that.

"[Argument by the prosecutor].

"THE COURT: I'm going to sustain at this time."

(R. 133-34.) Another witness, a social worker, testified that Kennedy at first had maintained that C.J. had tied himself up, then changed her story to blame a homeless woman, whom, Kennedy maintained, she had hired to take care of C.J. After that testimony, the trial court reconsidered its previous ruling that Israel could not offer her opinion as to whether C.J. had been abused, stating:

"Of course, now there are two ultimate issues: whether or not he was abused and whether or not this defendant, in fact, did that.

"I'm still not completely definite that it's proper. I would like to review the cases that we've sent [someone] to get. . . ."

"I believe that the courts are pretty clear as to the facts that — I don't know that `pretty clear' is right, but the courts definitely seem to be easing up on the restriction of an expert witness testifying as to something that may be seen by some as the ultimate issue.

". . . I am going to allow [the prosecutor] to pose that question to Ms. Israel.

"[Defense counsel]: We would like to object on the record, since that goes to the heart of the issue and what the jury is to decide in this case.

"THE COURT: I believe the cases bear me out that this is not the heart of the issue. This is not the ultimate issue. . . ."

(R. 149-53.) Upon being recalled to the stand, Israel testified that she had interviewed more than 400 children. She also testified that, in her opinion, C.J. had been abused.

A. Assisting the Trier of Fact

First, Kennedy argues that the admission of the expert's testimony was erroneous because the State did not first establish that her testimony was necessary under Rule 702, Ala. R. Evid. Rule 702 provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

The State argues that Kennedy has not preserved this argument for appellate review. We agree with the State. Kennedy objected: "[T]he tape speaks for itself. The jury can look at that and make a determination based on what they've seen." However, the trial court did not rule on this issue. The trial court ruled that the witness was qualified as an expert; the trial court did not, however, rule on Kennedy's assertion that the witness's testimony was not necessary under Rule 702. "[T]he trial court must first have the opportunity to rule on an issue before it can be preserved for appellate review. See Woodberry v. State, 625 So.2d 1159 (Ala.Cr.App.1993); Ross v. State, 581 So.2d 495 (Ala.1991)." Sotto v. State, 701 So.2d 309, 312 (Ala.Crim.App.1997). Because the trial court did not rule on Kennedy's argument that the expert's testimony should have been disallowed as not assisting the trier of fact in understanding the evidence or in determining a fact in issue, we do not invade the province of the trial court by addressing this issue for the first time on appeal. See Pace v. State, 714 So.2d 332, 334 (Ala.1997) (holding that absent a timely objection and an adverse ruling nothing is preserved for appellate review) (citing Biddie v. State, 516 So.2d 846 (Ala.1987)).

B. Qualifying the Witness

Kennedy also argues that the State did not lay a proper foundation to establish that the witness was an expert. As noted above, Kennedy objected on this ground at trial, and her objection was overruled.

A witness may be qualified as an expert by evidence of that person's "knowledge, skill, experience, training, or education" in the area of expertise. Rule 702, Ala. R. Evid. The determination of whether a person is qualified to testify as an expert is well within the discretion of the trial court; we will not disturb the trial court's ruling on that issue unless there has been an abuse of that discretion. See Bailey v. State, 574 So.2d 1001, 1003 (Ala. Crim.App.1990). Moreover, a challenge to the qualifications of an expert go to the weight, not the admissibility, of the expert's testimony. See Smoot v. State, 520 So.2d 182, 189 (Ala.Crim.App.1987).

In this case, Israel testified that, at the time she interviewed C.J., she was employed as a counselor at the Prescott House. She testified that she had an undergraduate degree in education with a double major in psychology and English. She testified that she had a Master of Science degree in special education and a Master of Science degree in counseling. She testified that she was registered as a "play therapist" and had been "trained at the national academy in investigative interviewing," where, for a week, she was schooled in how to conduct interviews with small children without suggesting an answer or using leading questions while interviewing. (R. 129.) Kennedy argues that Israel nonetheless was not qualified to testify as an expert because she "never taught, was not licensed by the state ..., [was] not published, and had only one year of experience when she interviewed the child in this case." (Kennedy's brief, p. 8.) Kennedy does not in any way explain how these additional qualifications would have aided in the expert's testimony or how her testimony was flawed because of these alleged deficiencies. We cannot say that the trial court abused its discretion by allowing Israel to testify as an expert. Therefore, this issue is without merit.

C. The Ultimate Issue

Kennedy argues that the trial court erred by allowing Israel to testify as to the ultimate issue — whether C.J. had been abused.

"The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). Rule 704, Ala. R. Evid., provides that "[t]estimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact."

Whether C.J. had been abused was not at issue. Kennedy did not dispute the fact that C.J. was bound, naked, and alone without food when the officer found him. The fact at issue was whether Kennedy was responsible for C.J.'s state. As stated above, Kennedy first told a social worker that C.J. had tied himself up and later told the social worker that a homeless woman had done it. Therefore, Israel's opinion testimony that C.J. had been abused did not address a fact at issue in this case.

Moreover, even if an issue had been made of whether C.J. had been abused, we would nonetheless hold this argument to be without merit.

"`"... [I]n the case of expert testimony, enforcement of [Rule 704] has been lax. C. Gamble, Gamble'...