Newkirk v. Com.

• Decision Date: 29 August 1996
• Docket Number: No. 95-SC-172-MR,95-SC-172-MR
• Citation: 937 S.W.2d 690
• Court: United States State Supreme Court — District of Kentucky
• Parties: Wendell Eugene NEWKIRK, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 690

937 S.W.2d 690

Wendell Eugene NEWKIRK, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 95-SC-172-MR.

Supreme Court of Kentucky.

Aug. 29, 1996.

Rehearing Denied Feb. 27, 1997.

Ann T. Eblen, Louisville, for appellant.

A.B. Chandler, III, Attorney General, Michael L. Harned, Lana Grandon, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.

Michael M. Losavio, Nancy Gall-Clayton, Louisville, for amicus curiae, National Association of Counsel for Children.

LAMBERT, Justice.

In an unbroken line of decisions rendered from time to time throughout the last decade, this Court has repeatedly expressed its distrust of expert testimony which purported to determine criminal conduct based on a perceived psychological syndrome. ¹ In general our reasons have been the lack of diagnostic reliability, the lack of general acceptance within the discipline from which such testimony emanates, and the overwhelmingly persuasive nature of such testimony effectively dominating the decision-making process, uniquely the function of the jury. In the instant case we must determine whether the trial court properly allowed rebuttal testimony from Dr. John Sullivan, a psychiatrist, by which he explained in general terms victim recantation of accusations of sexual abuse leveled at family members. ²

Appellant was convicted of the rape and sodomy of his ten-year-old niece and sentenced to concurrent terms of twenty years imprisonment. From the evidence it appears that while baby-sitting for his niece and her eleven-year-old brother, appellant committed the crimes charged. On the parents' return to the home, the child victim's distress was discovered and she was taken for a medical examination which revealed recent sexual intercourse.

The child victim named appellant as the perpetrator and criminal charges were brought. However, in an interview with an Assistant Commonwealth's Attorney two days later, the child recanted her accusation and denied that appellant had committed the crimes against her. Nevertheless, at trial she testified to appellant's acts of rape and sodomy and on cross-examination, admitted that she had told the Assistant Commonwealth's Attorney that the acts had not occurred.

Over appellant's objection and after an extensive hearing, the trial court determined that a psychiatrist should be permitted to testify concerning the "phenomenon" of recantation in child sex abuse cases. Prior to the testimony the trial court admonished the jury that the evidence was for "the limited purpose of explaining the psychological dynamics surrounding a recantation following an accusation of sexual abuse. This evidence is not offered for the purpose of proving whether [the child] was or was not sexually abused." Thereafter, Dr. Sullivan testified that while he had not seen the child and had no opinion as to whether or not she had been sexually abused, recantation was a common occurrence among sexually abused children. He stated various reasons therefor which included threats, imposition of blame, fear of loss of home, and fear of the legal system. The undeniable effect of Dr. Sullivan's testimony was to diminish or eliminate any doubt the recantation might otherwise have raised in the minds of the jurors.

As stated before, this Court has previously confronted various facets of this issue. We reversed the conviction in Bussey v. Commonwealth, Ky., 697 S.W.2d 139 (1985), on grounds that the Child Sexual Abuse Accommodation Syndrome (CSAAS) was not generally accepted in the medical community, and that the expert was unable to connect the victim's symptoms with the appellant rather than some other person. Id. at 141. The Court indicated that even if one accepted the validity of the syndrome, its existence would not help with the identification of the perpetrator. Id.

We next confronted CSAAS in Lantrip v. Commonwealth, Ky., 713 S.W.2d 816 (1986), in which admission of the evidence was held to be prejudicial for the reason, inter alia, that "there would remain the question of whether other children who had not been similarly abused might also develop the same symptoms or traits." Id. at 817. The principal point in Lantrip was the lack of diagnostic reliability of a positive CSAAS finding because children who had not been sexually abused might well exhibit similar traits. Id. Our decisions in Bussey and Lantrip broadly rejected admission of CSAAS testimony.

In Hester v. Commonwealth, Ky., 734 S.W.2d 457 (1987), we encountered facts and circumstances which are quite similar to those which prevail here. The appellant was accused of sexually abusing his step-daughters. Id. The children informed their teacher and an investigation was undertaken. Id. During the investigation, a videotaped statement was taken in which the children detailed incidents of sodomy and sexual abuse. Id. At trial, however, the children flatly denied the occurrence of the acts and stated that they had made up the story in hopes of having appellant removed from the home so that they could see their natural father. Id. Over appellant's objection, a social worker was permitted to testify that when children have given specific details of sexual matters, generally, the acts have occurred. Id. at 457-58. She continued: "One of the reasons children often will say later it didn't happen is because the family has put pressure on them either verbally, or by their actions to be loyal to the family." Id. at 458. Holding the admission of the expert testimony to be reversible error, we stated: "The admission of expert opinion was improper as it, in effect, told the jury to believe the story the children had initially told and disbelieve the testimony given in open court." Id. We relied in part on Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985), which held that a clinical psychologist should not be permitted to testify that the defendant lacked the state of mind to commit the crimes. Id. at 553. "An opinion as to whether the accused had the ability or propensity to commit such an act is improper because it is an opinion on the ultimate fact, that is, innocence or guilt. Consequently it invades the proper province of the jury." Id.

Aside from the qualifications of the expert witnesses, there is no substantial distinction between the testimony in Hester and that which was given here. In each case, the accusation was made and recanted and in each case the expert was permitted to give the jury a psychological basis for disregarding the recantation.

Our decision in Mitchell v. Commonwealth, Ky., 777 S.W.2d 930 (1989), relied on the authority cited hereinabove, but also emphasized that children who have not been sexually abused often exhibit one or more symptoms of the CSAAS. Id. at 932. As such, the symptoms were deemed to lack probative value of the existence of sexual abuse and to be irrelevant as to the guilt or innocence of a particular person. Id. at 932-33. In Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612 (1992), we focused on "delayed disclosure," which, like recantation, is regarded as one of the elements of CSAAS, and held admission of such evidence to be error. Id. at 613-14. The Court noted that "[n]either the syndrome nor the symptoms that comprise the syndrome have recognized reliability in diagnosing child sexual abuse as a scientific entity." Id. at 614. We quoted with approval from State v. Rimmasch, 775 P.2d 388 (Utah 1989), as follows: "Psychologists and psychiatrists are not ... experts at discerning the truth. Psychiatrists are trained to accept facts provided by their patients, not to act as judges of patients' credibility." Hellstrom, 825 S.W.2d at 614 (quoting Rimmasch, 775 P.2d at 406). We concluded by holding that the expert "testimony was not probative of whether sexual abuse occurred and [the expert] invaded the province of the jury by determining witness credibility and expressing his unqualified opinion on the ultimate issue." Hellstrom, 825 S.W.2d at 614.

Our most recent decision on point, Hall v. Commonwealth, Ky., 862 S.W.2d 321 (1993), repeats many of the familiar principles from the cases cited and discussed hereinabove. Hall made the further point that it was improper for the expert witness to express her opinion as to the accuracy of the child victim's testimony.

It was also clearly improper for Ms. Ballou to testify that in her opinion T.H.'s testimony was most likely accurate. Even had Ms. Ballou been a licensed psychologist at the time she examined the children, she would "not have qualif[ied] as an expert on the credibility of the child and the reliability of statements she made while she was evaluating her." Hellstrom, Id. at 614. In Hellstrom, we embraced the view of the Utah Supreme Court on this specific question: "[These witnesses] are not.... experts at discerning the truth. [They] are trained to accept facts provided by their patients, not to act as judges of patient's credibility." State v. Rimmasch, 775 P.2d 388 (Utah 1989). Furthermore, the prosecutor emphasized this testimony in his closing argument by stating that, "Miss Ballou, the psychologist who interviewed T.H. on a couple of occasions, told you that what T.H. told you was the truth." The majority of this court has held that the admission of this type of testimony is reversible error. Hellstrom, Id. Therefore, we reverse on this issue.

Id. at 323.

The foregoing authorities demonstrate unmistakably that this Court has not accepted the view that the CSAAS or any of its components has attained general acceptance in the scientific community justifying its admission into evidence to prove sexual abuse or the identity of the perpetrator. Moreover, such evidence has been rejected on grounds that it lacks relevancy for failure to make the existence of any fact of consequence more probable or less probable than it would have been without the evidence. KRE 401. In the language of Lantrip v....