Page v. Zordan By and Through Zordan
| Decision Date | 11 May 1990 |
| Docket Number | No. 88-01571,88-01571 |
| Citation | 564 So.2d 500 |
| Court | Florida District Court of Appeals |
| Parties | 15 Fla. L. Weekly D1318 Gerald "Bud" PAGE, Appellant, v. Nicole M. ZORDAN, a minor, by and through her parents and natural guardians, Richard B. ZORDAN and Charmain M. Zordan; and Richard B. Zordan and Charmain M. Zordan, individually, Appellees. |
Claude H. Tison, Jr., and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
Roy L. Glass, St. Petersburg, for appellees.
The appellant (Page) was the defendant in this action for damages brought by Nicole M. Zordan, a minor, through her parents on her behalf and by her parents, individually, on their own behalf. Several theories of recovery were pleaded, but the essence of all theories was the allegation that Page, who at the time was married to Nicole's maternal grandmother, had on various occasions between 1977 (when Nicole was approximately seven years of age) and 1982 (when Nicole was approximately twelve) handled, fondled, and touched Nicole in a lewd, lascivious or indecent manner. The complaint, which was filed when Nicole was fourteen years of age, sought compensatory and punitive damages on behalf of both Nicole and her parents. Nicole was seventeen years of age when the case was tried before a jury. Based on the verdict in favor of the appellees returned by the jury, the trial court entered a final judgment against Page in the total amount of $53,000, consisting of $13,000 in compensatory damages plus $40,000 in punitive damages, together with costs in the amount of $22,507.35.
Page appeals from the final judgment, claiming that there were several evidentiary rulings by the trial court which were erroneous. We agree with Page on all issues which he raises on this appeal. We conclude that the trial was unfair to Page, and we reverse and remand for a new trial.
Page's first issue requires application of the rulings of the Florida Supreme Court in Tingle v. State, 536 So.2d 202 (Fla.1988), and in Glendening v. State, 536 So.2d 212 (Fla.1988). In Tingle the court held that an expert witness may not "directly" testify as to the truthfulness of the victim. The court went on to adopt the position taken by the Eighth Circuit Court of Appeals in United States v. Azure, 801 F.2d 336 (8th Cir.1986). It quoted with approval the language of the Azure court that, in cases involving child sexual abuse, some expert testimony may be helpful, but putting an impressively qualified expert's stamp of truthfulness on a witness's story goes too far. The court emphasized that the role of the expert witness is only to aid a jury in assessing the veracity of a victim of child sexual abuse, and not to usurp that function of the jury.
Glendening treats another aspect of expert witness testimony in a child sexual abuse case. There the court held that it is improper for an expert witness to testify that in his or her opinion the accused person is, in fact, the person who committed the sexual offense.
In the instant case, the appellees presented the testimony of five expert witnesses before Nicole herself took the stand. Reviewing the testimony of these experts, we are persuaded that Page is correct in arguing that the purpose of this testimony was to put before the jury expert opinion as to the credibility of Nicole and the culpability of Page. For example, Dr. Merin was questioned concerning character traits indicative of a person's being a child sexual molester. Dr. Merin testified that there were no such identifiable traits, but he went on to testify that the possession of pornographic magazines would be a "significant consideration." He then described possession of pornographic magazines as a "red flag" in the case of a man in his fifties or sixties as distinguished from a young man. Dr. Merin testified that Page related to...
To continue reading
Request your trial
-
State v. J.Q.
...Powell v. State, 527 A.2d 276, 279 (Del.1987), Wheat v. State, supra; Tingle v. State, 536 So.2d 202 (Fla.1988); Page v. Zordan, 564 So.2d 500, 502 (Fla.Dist.Ct.App.1990); Fuller v. State, 540 So.2d 182, 184 (Fla.Dist.Ct.App.1989); Smith v. State, 259 Ga. 135, 377 S.E.2d 158, cert. denied, ......
-
Flanagan v. State
...legitmacy scale" for the purpose of evaluating the report of a child victim that she had been sexually molested. Page v. Zordan, 564 So.2d 500, 502 (Fla. 2d DCA 1990). The court concluded that the test had neither been recognized nor accepted within the relevant scientific Because Frye is n......
-
State v. Malarney, s. 91-1003 and 91-1127
...the victim's credibility always lies with the jury, and an expert can not impermissibly intrude into that jury function. Page v. Zordan, 564 So.2d 500 (Fla. 2d DCA 1990); Rhue v. State, 603 So.2d 613 (Fla. 2d DCA 1992). State expert testimony, that the victim's behavior is consistent with t......
-
People v. Loomis
...the Frye rule held that Dr. Gardner's "Sex Abuse Legitimacy Scale" was not generally accepted and was inadmissible. Page v. Zordan, 564 So.2d 500 (Fla.Dist.Ct.App.). See also Sherman, Gardner's Law: A Controversial Psychiatrist and Influential Witness Leads the Backlash Against Child Sex Ab......
-
Parental alienation syndrome: an age-old custody problem.
...267 (Fam. Ct. 1991); In re Marriage of Wiederholt v. Fisher, 485 N.W. 2d 442 (Wis. Ct. App. 1992); Page v. Jordan by and through Jordan, 564 So. 2d 500 (Fla. 2d D.C.A. 1990); The Parental Alienation Syndrome: A Dangerous Aura of Reliability, Loy. L.A. L. REV. (spring 1994); Gardner's Law, N......