Kruse v. State

Decision Date05 February 1986
Docket NumberNo. 83-2364,83-2364
Citation483 So.2d 1383,11 Fla. L. Weekly 333
Parties11 Fla. L. Weekly 333 Frank KRUSE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Gwendolyn Spivey, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.

ANSTEAD, Judge.

This is an appeal by Frank Kruse from his convictions and sentences on two counts of lewd, lascivious, or indecent assault upon a child. We reverse and remand for a new trial because we believe errors were committed at trial that cannot be deemed harmless.

It is initially contended that the trial court erred by admitting the opinion testimony of Dr. Donna Holland, an expert in child and adolescent psychiatry, that the child-victim was suffering from a condition known as Post Traumatic Stress Syndrome. It is agreed by the parties that there was no demonstrable physical evidence of an assault on the alleged victim and that Kruse, who denied the allegations, and the victim were the only direct witnesses on the issue of whether an assault occurred. The child was seven years of age at the time of the alleged assault. Dr. Holland was allowed to describe the condition known as Post Traumatic Stress Syndrome and to correlate her observations of the victim's behavior with commonly observed behavior patterns of other Syndrome patients. She testified to the details of the victim's and the victim's parents' statements to her, including the victim's identification of Kruse as the assailant. This same information was revealed in testimony presented by the parents and victim at trial. Dr. Holland concluded that, in her opinion and based upon her psychiatric examination and the history of the child's behavior before and after the alleged assault, the child had suffered a sexual trauma.

The Florida Evidence Code became effective in criminal cases in 1979. Sections 90.401 and 90.402, Florida Statutes (1983), set out a general relevancy standard for the admission of evidence. Sections 90.702 and 90.703 deal specifically with expert testimony:

90.702 Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

90.703 Opinion on ultimate issue.--Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.

In addition, section 90.403 provides:

90.403 Exclusion on grounds of prejudice or confusion.--Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible.

Section 90.702 contains three requirements: (1) that the opinion evidence be helpful to the trier of fact; (2) that the witness be qualified as an expert; and (3) that the opinion evidence can be applied to evidence offered at trial. These provisions embody a liberal policy on the admission of expert evidence, generally rendering such evidence admissible to the extent that it is helpful to the trier of fact. Section 90.403 adds a fourth test barring evidence that, although technically relevant, presents a substantial danger of unfair prejudice that outweighs its probative value.

In Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983), Judge Ervin discussed the evolution in Florida decisions, from a rigid test of admissibility of evidence relating to new scientific procedures, to the more generous relevancy standard contained in the evidence code. Id. at 85-90; see also Fay v. Mincey, 454 So.2d 587, 593-94 (Fla.2d DCA 1984), and Hawthorne v. State, 470 So.2d 770 (Fla. 1st DCA 1985) (Ervin, J., concurring in part and dissenting in part). The more rigid standard evolved from the decision in Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923), which barred the admission of the results of a lie detector test because the test had not been generally accepted by the scientific community. Hence, the requirement of general acceptance was imposed. As Judge Ervin noted in his partial dissent in Hawthorne, the evidence code contains no reference to general acceptance in regard to the receipt of expert opinion evidence.

With some qualification, we believe the relevancy approach set out in the evidence code is the appropriate standard for determining the admissibility of expert testimony on child sexual abuse. The statutory relevancy standard also comports with the holdings of the Florida Supreme Court in the area of expert testimony. The court has stated that while trial courts have broad discretion in determining the range of subjects on which an expert may testify, such testimony should usually be received only where the disputed issue for which the evidence is offered, is beyond the ordinary understanding of the jury. Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980). This view is consistent with the first requirement of section 90.702, that the opinion evidence be helpful to the trier of fact, as well as the provisions of section 90.403, that the danger of prejudice may outweigh the value of the evidence.

The highest courts of other states have cited evidence code provisions similar to section 90.702 in support of the admissibility of expert testimony on child sexual abuse; see State v. Myers, 359 N.W.2d 604, 609 (Minn.1984); and State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1219 (1983). In Terry v. State, 467 So.2d 761 (Fla. 4th DCA 1985), we cited the evidence code in support of our holding that evidence relating to battered women's syndrome was relevant to a defendant's claim of self defense in a prosecution for manslaughter. 467 So.2d at 764. In so holding, we noted that such evidence would be helpful to the jury in interpreting the circumstances surrounding the incident as they affected the reasonableness of the defendant's belief that she was in danger. Id. A similar rationale was employed by the Nevada Supreme Court when it held, in a factual context similar to this, that expert testimony on child sex abuse was admissible to explain the behavior of the victim after the incident. Smith v. State, 688 P.2d 326, 327 (Nev.1984). We do not believe the issue presented here is much different than that decided in Terry, and we conclude that the trial court did not err in ruling that the opinion evidence on the Post Traumatic Stress Syndrome met the requirements of the evidence code.

Initially, in view of the absence of physical evidence of assault and the age of the victim-witness, it appears that testimony about the syndrome would be helpful to the jury in providing more information from which to decide whether the child had been a victim of sexual abuse. The expert's testimony connected the alleged victim's change in behavior, which was described by the victim's parents, to the trauma of the sexual assault, which was described by the victim. Dr. Holland initially indicated, and then affirmed on cross-examination, that her opinion was predicated on the validity of the history given to her by the child and the parents. Accepting the validity of the testimony of the victim and the parents, she stated that the happening of the trauma would explain the change in behavior. Hence, the change of behavior could be utilized by the trier of fact as relevant evidence that the trauma did occur. While we also believe that jurors would have some ability to decide for themselves whether the child's behavioral changes may be related to the trauma, we do not believe that the implications are so easily understood as to bar the receipt of a psychiatric expert's analysis thereof. Cf. Johnson v State. Accordingly, in our view the first requirement of section 90.702, that of helpfulness to the trier of fact, was met here.

We also believe Dr. Holland's testimony, which outlined her formal training and experience, and her licensing as a physician in two states, with a specialty in child and adolescent psychiatry, established her qualifications to render an opinion, the second requirement of section 90.702. The third requirement, that of relating the opinion evidence to other evidence offered at trial, was met because Dr. Holland's opinion was predicated upon and intended to explain the evidence offered at trial of the victim's change in behavior and the victim's claim of trauma at the hands of the appellant.

The fourth test for admissibility contained in the provisions of section 90.403 presents a more difficult issue: Is the probative value of Dr. Holland's testimony substantially outweighed by its potential prejudicial effect? We have already discussed to some extent the probative value of Dr. Holland's testimony in assessing its helpfulness as required by section 90.702. We must also examine its costs. We are aware, for example, of the danger that the trier of fact may place undue emphasis on evidence offered by an expert, simply because of the special gloss placed on that evidence by reason of the witness' status as an expert. A similar concern is that the jury may infer that the expert, simply by virtue of his appearance for one party, is vouching for the credibility of that party. These are dangers present in every case involving an expert and should perhaps be the subject of instructions to the jury. However, they are not themselves sufficient reasons to exclude opinion testimony. We have already noted that Dr. Holland predicated her opinion on the reliability of the history...

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