People v. Roscoe

• Decision Date: 04 June 1985
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nelson J. ROSCOE, Defendant and Appellant. Crim. F002466.

Page 45

215 Cal.Rptr. 45

168 Cal.App.3d 1093

The PEOPLE, Plaintiff and Respondent, v. Nelson J. ROSCOE, Defendant and Appellant.

Crim. F002466.

Court of Appeal, Fifth District, California.

June 4, 1985.

[168 Cal.App.3d 1094] Frank O. Bell, Jr., State Public Defender, Sacramento, under appointment by the Court of Appeal, and Harvey R. Zall, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

TUTTLE, Associate Justice. ^*

Defendant appeals from his March 9, 1983, conviction (following a jury trial) of violation of Penal Code sections 288a, subdivision (b)(2) (oral copulation with a person under 16) and 286, subdivision (b)(2) (sodomy with a person under 16).

The sole question before us is whether or not the trial court violated the rule of People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, in permitting the jury to hear Dr. Cotton, a clinical psychologist, give his diagnosis of the complaining witness as a victim of child molestation. We hold the court erred, but affirm the judgment because it is not reasonably probable that exclusion of the evidence would have resulted in a different verdict.

STATEMENT OF FACTS

In 1981, the victim, James H., was 15 years old and lived with his parents in Bakersfield, California. The following summary is based largely upon James' testimony. During the summer of his fifteenth year, he struck up a relationship with appellant who was his neighbor. The relationship began when James visited appellant in his yard to apologize for swearing at him. Appellant invited James into his home, but James refused. Appellant asked James to come visit him again. James returned and then started visiting appellant regularly. After initially refusing, James finally accepted appellant's invitation to go into the house.

Inside the house James found appellant smoking marijuana. Appellant showed James the house describing one of the rooms as the "whore room." In this room James observed mirrors on the wall and over the bed and "lubricants" up on the bedboard. In the dining room area, James observed various salacious magazines such as Penthouse, Hustler, Oui and Playboy. James looked at some of these magazines.

In August of 1981, James began visiting appellant's home almost every evening. James viewed his relationship with appellant as one of trust and growing friendship.

Appellant first made sexual overtures toward James in September of 1981 when he attempted to touch James' penis. Appellant attempted to take off James' clothing, but James recoiled and left the house.

The following day, James returned to appellant's residence whereupon appellant tried to unzip James' pants. James resisted but permitted appellant to touch his penis through his pants. Sometime thereafter, James smoked marijuana with appellant. Appellant then proceeded to orally copulate James.

In September or October, appellant and a female guest invited James to watch appellant and the woman having intercourse in the "whore room." James then had intercourse with the woman.

James kept returning to appellant's residence where he was orally copulated by appellant on a number of different occasions. Appellant asked James to engage in sodomy. After initially refusing, James agreed and sodomized appellant. On about five separate occasions James orally copulated appellant. James eventually agreed to let appellant sodomize him. It hurt, and James did not return to appellant's house after that incident.

Sometime thereafter, James was contacted at his school by Sergeant Fredenburg, a Kern County deputy sheriff specializing in child abuse and sex crimes. Fredenburg was led to James by an anonymous tip. When questioned about appellant, James first denied even knowing him. Later in the conversation James admitted knowing appellant but denied any sexual contact. After further questioning, James admitted some sexual contact with appellant. Due to shame and embarrassment, however, James did not tell Sergeant Fredenburg everything. A more complete description of these events was provided at the preliminary hearing and pursuant to stipulation all of James' preliminary hearing testimony was read to the jury.

Shortly after talking with James, Sergeant Fredenburg executed a search warrant on appellant's residence. Appellant's house was extremely dirty and cluttered. One of the bedrooms had a sign which said "whore room." Another room was labeled "lesbian den" and had a wall covered with a variety of sexually explicit photographs. The search uncovered pornographic material and sexual devices including an artificial penis; no pedophile material was found. Appellant admitted knowing James but denied any sexual involvement; he described James as weird, and something of a nuisance. Appellant admitted that he was bisexual. Additional investigation led the police officers to two other young boys from the victim's neighborhood who had been approached by appellant and invited into his home "to look at pictures or be his friend."

Defendant did not testify; through his attorney he denied any sexual acts with James, argued that the boy was unreliable because of brain damage, and presented an expert witness in support of this contention. The testimony of the prosecution psychologist, Dr. Cotton, will be considered below when we analyze its legal significance.

DISCUSSION

In determining whether the trial court erred in permitting Dr. Cotton's testimony over defendant's objections we shall (1) analyze Bledsoe; (2) determine whether the Bledsoe rule applies here; (3) consider whether this case falls within the Bledsoe exception permitting rehabilitation of a victim's credibility; and (4) consider Evidence Code section 352 as an independent ground of decision.

1. Analysis of Bledsoe

We first examine the Bledsoe reasoning, so that we may test the doctor's testimony against the rule stated by the court. The prosecution called as an expert the rape counselor who had assisted the 14-year-old victim, to testify that she suffered from rape trauma crisis syndrome. Such testimony was held inadmissible to prove that a rape had occurred, although the court noted that expert testimony on after effects of rape "may be admitted for a variety of purposes." (People v. Bledsoe, supra, 36 Cal.3d at p. 238, 203 Cal.Rptr. 450, 681 P.2d 291.)

The function of rape counselors "is to help their clients deal with the trauma they are experiencing" and "the historical accuracy of the client's descriptions of the details of the traumatizing events is not vital in their tasks"; the counselors "are taught to make a conscious effort to avoid judging the credibility of their clients." (Id., at p. 250, 203 Cal.Rptr. 450, 681 P.2d 291.)

The diagnosis, while scientifically acceptable for treatment purposes, is not the product of a rigorous process the goal of which is determining truth or falsity (unlike fingerprints, lie detector, or blood tests). To admit the diagnosis to prove what events occurred leading up to the therapeutic treatment would be to misuse it for a purpose never intended by those in the discipline who developed the concepts. "Because the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred, we conclude that it may not properly be used for that purpose in a criminal trial." (Id., at p. 251, 203 Cal.Rptr. 450, 681 P.2d 291.) ¹

Permitting a qualified expert " 'to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness.' " (Ibid.) This is true even though no opinion is given on the ultimate question of guilt or innocence. Merely stating the diagnosis in psychological terms "is likely to mislead the jury into inferring that such a classification reflects a scientific judgment that the witness was, in fact, raped." (Id., at p. 251, fn. 14, 203 Cal.Rptr. 450, 681 P.2d 291.)

Recognizing that rape defendants often attack the victim's credibility by inferring falsity from delay in reporting the incident, the court notes that "evidence on rape trauma syndrome has been introduced to rebut such an inference by providing the jury with recent findings of professional research on the subject of a victim's reaction to sexual assault." (Id., at p. 247, 203 Cal.Rptr. 450, 681 P.2d 291.) Such expert testimony "may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths." (Id., at pp. 247-248, 203 Cal.Rptr. 450, 681 P.2d 291.)

2. Does Bledsoe apply here?

Much of the Bledsoe reasoning applies here. Instead of testimony that complainant suffers from rape trauma crisis syndrome, we have testimony that he is a victim of child molestation. Dr. Cotton, like the counselor in Bledsoe, had a professional duty to help the victim; he spent some 15 or more sessions with him, just as the Bledsoe counselor met with the 14-year-old victim in that case. Under examination by the prosecutor, Dr. Cotton agreed that certain tests corroborated his "clinical findings that he [i.e., James] was diagnosed as a victim of child molest." ²

Respondent argues that Bledsoe is inapplicable because: (1) "The subject of rape trauma syndrome was not an issue in this matter" (true, but the reasoning seems to apply to diagnosis as a victim of child molestation); (2) "The subject of child molest syndrome was not the basis of Dr. Cotton's testimony" (perhaps not in those precise words, but the whole import of his testimony was that James was a molestation victim); (3) "Dr. Cotton's testimony was utilized for the purpose of showing why the victim's testimony...