Sanderson v. Com., No. 2007-SC-000537-MR.

• Decision Date: 21 May 2009
• Docket Number: No. 2007-SC-000537-MR.
• Citation: 291 S.W.3d 610
• Parties: David Paul SANDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

291 S.W.3d 610

David Paul SANDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000537-MR.

Supreme Court of Kentucky.

May 21, 2009.

As Modified on Denial of Rehearing October 1, 2009.

Mark P. Bryant, Emily M.W. Roark, Bryant Law Center, Bryant Shannon Roark, Paducah, KY, for appellant.

Jack Conway, Attorney General, Bryan Darwin Morrow, Office of the Attorney General, Frankfort, KY, for appellee.

Opinion of the Court by Justice NOBLE.

After a jury trial, Appellant was convicted of two counts of Second-Degree Sodomy and three counts of First-Degree Sexual Abuse, and was sentenced to thirty-five years in prison and five years of conditional discharge. He raises five claims of error on appeal. Because Appellant's Child Sexual Abuse Accommodation Syndrome claim constitutes reversible error, his conviction is reversed and the case is remanded for a new trial. However, because other errors are likely to recur on retrial, they are also addressed.

I. BACKGROUND

Appellant met Mendy Terrell and her daughter, B.T., in the late 1990s and he married Mendy in December 2000. Appellant and B.T. appeared to have a close relationship. They moved into Appellant's house, and Appellant built a garage on the property where he could watch television and play poker with friends.

B.T. testified that after moving into Appellant's house, he sexually abused her on a weekly basis for six years, as much as two to three times per week while Mendy was at work or sleeping. He told B.T. that he would hurt her if she ever said anything about the abuse, which took place in the garage until the three of them moved to another house. At the new house, the abuse took place in the garage, in B.T.'s room, and in Mendy's room.

Several years after her marriage to Appellant, Mendy became pregnant. They began experiencing marital problems after she gave birth to the child, and a divorce action was filed on January 6, 2006. Appellant moved out of the house on February 25, 2006, but allegedly continued to abuse B.T. until about a week before he left.

About two months after Appellant left, the mother of a child who had spent the night with B.T. several years earlier told Mendy that when her daughter spent the night there, she watched a pornographic movie with B.T. and Appellant. According to B.T.'s friend, B.T. instigated the viewing. When Mendy first confronted B.T., she denied that it happened. Mendy then called Appellant, and told him that she knew about the pornographic movie he had watched with the girls. B.T. overheard the last part of the conversation and left, but later confessed to having watched the movie and told Mendy about the abuse that had taken place.

Appellant was indicted, convicted by a jury, and sentenced to thirty-five years in prison. His appeal to this Court, therefore, is a matter of right. Ky. Const. § 110(2)(b).

II. ANALYSIS

A. Compliance with CR 76.12.

The Commonwealth contends that Appellant's brief should be stricken for failure to comply with CR 76.12(4)(c)(v), which requires the brief to refer to the point in the record where each error was preserved. However, a careful review of Appellant's brief reveals that all but one alleged error was preserved or argued to be palpable. Therefore, Appellant has in fact substantially complied with the provisions of CR 76.12, that issue can be determined from the record, and this Court will exercise its discretion not to strike the brief. Simmons v. Commonwealth, 232 S.W.3d 531, 533 (Ky.App.2007) ("While [Appellant's] brief did not fully comply with [CR 76.12(4)(c)(v)], dismissal for failure to comply with the provisions of CR 76.12 is discretionary rather than mandatory."); Baker v. Campbell County Bd. of Ed., 180 S.W.3d 479, 482 (Ky.App.2005) ("[Dismissal based upon a failure to comply with CR 76.12 is not automatic").

B. Testimony Related to Child Sexual Abuse Accommodation Syndrome.

Appellant claims the trial court improperly admitted testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS) from Mendy, Brian Terrell (B.T.'s father), and Lori Brown, a clinical psychologist. Though Mendy and Terrell both testified about B.T.'s physical and psychological "symptoms," the most damaging testimony came from Brown, a clinical psychologist who counseled B.T. and gave testimony that B.T.'s addition of new allegations of sexual abuse is normal.

Although Appellant objected three separate times to Brown's testimony during the Commonwealth's case-in-chief, the Commonwealth contends this issue is improperly preserved for appellate review. Indeed, it does not appear that Appellant specifically used the term CSAAS in his objections. However, we reject the Commonwealth's contention that Appellant is presenting a new theory of relief on appeal, having conceded the admissibility of Brown's testimony. To the contrary, Appellant objected first to "any" of Brown's testimony before she began testifying and objected again two more times during her testimony. These three objections adequately informed the trial court of the patent inadmissibility of Brown's CSASS-related testimony. Hardin v. Commonwealth, 428 S.W.2d 224, 226 (Ky.1968) ("While the objections were not sharply to the point we think they adequately alerted the trial judge to the proposition ...."). Appellant repeatedly raised hearsay as a basis for his objections; and CSAAS testimony is inadmissible, at least in part, because it is hearsay. Hellstrom v. Commonwealth, 825 S.W.2d 612, 614 (Ky.1992) ("Mr. Veltkamp listed the symptoms but refrained from classifying them directly as the `child sexual abuse syndrome.' Avoiding the term `syndrome' does not transform inadmissible hearsay into reliable scientific evidence.") We conclude that Appellant's repeated objections, although not precisely articulated, were sufficient to preserve this issue for our review. It should also be noted that Sanderson's convictions are being reversed on another independent ground, making this preservation issue largely irrelevant.

In Kurtz v. Commonwealth, 172 S.W.3d 409 (Ky.2005), this Court quoted the basic rule against CSAAS testimony:

[W]here a victim had delayed reporting of abuse, we held improper the testimony of a seasoned child sex abuse investigator stating that it was common, in her experience, for sexually abused victims to delay reporting of the abuse.... We held that "a party cannot introduce evidence of the habit of a class of individuals either to prove that another member of the class acted the same way under similar circumstances or to prove that the person was a member of that class because he/she acted the same way under similar circumstances."

Id. at 414 (quoting Miller v. Commonwealth, 77 S.W.3d 566, 571-72 (Ky.2002)).

In Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky.1992), this Court reversed a conviction based on testimony similar to the testimony in this case. In Hellstrom, the director of the Child Abuse Center at the University of Kentucky Medical Center (who had a Masters degree in clinical social work) testified that "`delayed disclosure' is common in these types of cases." Id. at 613. The Court noted that "[b]oth sides recognize that we have reversed a number of cases because of trial error in permitting the use of testimony regarding the so-called `child abuse accommodation syndrome' to bolster the prosecution's case." Id. Further, it does not matter that the social worker "listed the symptoms but refrained from classifying them directly as the `child sexual abuse syndrome.' Avoiding the term `syndrome' does not transform inadmissible hearsay into reliable scientific evidence." Id. at 614.

In Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky.1996), this Court applied the rule against CSAAS testimony to experts. Newkirk first noted that "[i]n an unbroken line of decisions ... this Court has repeatedly expressed its distrust of expert testimony which purported to determine criminal conduct based on a perceived psychological syndrome." Id. at 690-91. The multiple rationales for the specific rule against CSAAS testimony include "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." Id. at 691. Newkirk contains a lengthy discussion of CSAAS cases, and it concludes:

[T]he cases 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.

Id. at 693.

This Court further noted that even if it were to "`become accepted by the scientific community that a child who had been sexually abused is likely to develop certain symptoms or personality traits, there would remain the question of whether other children who had not been similarly abused might also develop the same symptoms or traits.'" Id. (quoting Lantrip v. Commonwealth, 713 S.W.2d 816, 817 (Ky. 1986)). And finally, this Court "expressed grave concern that the expert may invade the province of the jury by unduly influencing its assessment of credibility." Id. "This Court has previously stated there is no such thing as expertise in the credibility of children." Id. at 694. This Court has "embraced the view that mental health professionals are not experts at discerning the truth; they are trained to accept facts provided by their patients without critical examination of those facts." Id.

In this case, Brown testified that it is normal for child victims of sexual abuse, like B.T., to add details about their abuse after they...