State v. Alberico

• Decision Date: 26 September 1991
• Docket Number: No. 12368,12368
• Citation: 861 P.2d 219,1991 NMCA 112,116 N.M. 178
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ralph ALBERICO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 219

861 P.2d 219

116 N.M. 178

STATE of New Mexico, Plaintiff-Appellee, v. Ralph ALBERICO, Defendant-Appellant.

No. 12368.

Court of Appeals of New Mexico.

Sept. 26, 1991.

Rehearing Denied Dec. 6, 1991.

[116 N.M. 179] Tom Udall, Atty. Gen., Max Shepherd, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Winston Roberts-Hohl, Santa Fe, for defendant-appellant.

OPINION

HARTZ, Judge.

Once again we confront the issue of the admissibility of expert testimony relating to rape trauma syndrome (RTS). In State v. Bowman, 104 N.M. 19, 715 P.2d 467 (Ct.App.1986), we assumed, but did not decide, that expert testimony on RTS is admissible. We affirmed the trial judge's exercise of his discretion in refusing to permit the testimony in the circumstances of that case. In State v. Barraza, 110 N.M. 45, 791 P.2d 799 (Ct.App.1990), we affirmed a conviction in which testimony regarding RTS was admitted, but we did not address various challenges to the testimony raised on appeal because they had not been preserved at trial. In this case we hold that the expert testimony was improperly admitted. Because we reverse defendant's conviction on this ground, we need not address the other issues raised by defendant on appeal, although we note our concern as to the relevance of the prior statement by defendant's girlfriend.

I. FACTS

Defendant was convicted of two counts of criminal sexual penetration (CSP) and one count of kidnapping. The alleged victim was fifteen years old at the time of the incident. Defendant did not dispute that he had intercourse with her. The issue at trial was whether the intercourse was consensual.

The complainant's testimony was as follows: She knew defendant prior to the incident. On the night in question she entered his car after he invited her to come in out of the cold. Defendant told her he would drive her home, but instead drove out of Santa Fe, saying that they were going for a ride. Somewhere in the Tesuque area defendant stopped the car and forced her to touch his penis with her mouth. He then forcibly lowered her pants and raped her. She was able to escape after the rape by jumping out of the car when he slowed the vehicle upon re-entering Santa Fe. She immediately went to a friend's house and told the friend what had happened. The police and the rape crisis center were contacted and she went to the hospital for an examination.

The complainant's version of the events occurring after she returned to Santa Fe was corroborated by her friend, the examining physician at the hospital, an investigating officer from the Santa Fe police department, and two officers from the Santa Fe County sheriff's office. The complainant, her mother, and a psychologist, Dr. Barbara Lenssen, who saw the complainant several times after the incident, testified concerning the deleterious effects of the incident on the complainant's psychological health. She experienced behavioral changes, including withdrawal from her normal activities, inability to sleep, increased anger, loss of weight, and excessive nervousness.

Defendant testified that the intercourse was consensual. He stated that after he had intercourse with the complainant, she asked him for cocaine or money and he gave her $25. The defense theory, as developed in the closing argument, was that the complainant fabricated the rape story to cover up for the fact that she had left her younger brother alone while she was out late at night with defendant. The defense attributed her behavior after the incident to feelings of guilt arising from the consensual intercourse and to her involvement with alcohol and drugs.

The evidence that we find to have been inadmissible was opinion testimony by Dr. Lenssen. Her opinions were based on two sessions with the complainant (the first of which was approximately five weeks after the incident) and an interview with the complainant's mother. Dr. Lenssen had substantial experience and training with respect to rape and sexual abuse; her expertise is not challenged on appeal. The gist of defendant's objection at trial to Dr. Lenssen's testimony was that she should not be permitted to give an opinion regarding what happened on the night in question because there was not a sufficient scientific showing of the reliability of such a determination. Defense counsel cited State v. Rimmasch, 775 P.2d 388 (Utah 1989), in which the Utah Supreme Court held that error had been committed in admitting expert testimony that, based on a psychological profile and the experts' subjective impressions gained through interviews, the alleged victim had been sexually abused.¹

On voir dire outside the presence of the jury Dr. Lenssen testified extensively about post-traumatic stress syndrome (PTSS) and its subcategory RTS. For our purposes it is not necessary to describe these syndromes in detail. Dr. Lenssen noted that post-traumatic stress disorder (PTSD) is a diagnosis for a psychological condition that may result when an individual experiences an event that is outside the range of usual human experience and that would be markedly distressing to anyone. She pointed out that PTSD is a diagnosis accepted by the national organizations for both psychiatrists and psychologists. She testified that among the experiences that can cause PTSD is rape, and PTSS caused by rape is described as RTS. She stated that victims of rape show many symptoms of PTSD, including flashbacks, memory loss, diminished interest in activities (such as dropping out of school), suicidal ideation, inability to fall asleep, and irritability. She stated that RTS is accepted as a diagnosis by the community of psychiatrists and psychologists.

In her testimony before the jury Dr. Lenssen did not use the term "rape trauma syndrome." She testified that she interviewed the complainant's mother and also interviewed the complainant on two occasions. In addition, two psychological tests--the Rorschach Ink Blot Test and the Minnesota Multiphasic Personality Inventory--were administered to the complainant. Dr. Lenssen described how her scoring of the Rorschach test was objective, independent of the examiner. She stated that the MMPI scales are established scientifically and an examiner can determine if the subject is telling the truth in responding to the questions. She explained how she checks the validity of the complainant's account of the alleged assault by looking at such features as its coherence and logical order, as well as by noting her mental state when telling the story. Dr. Lenssen then concluded by stating her diagnosis--"which is from a manual used by all psychologists and psychiatrists"--of PTSD. She said that this diagnosis is consistent with a person who has suffered sexual abuse or rape and added that this is the most common diagnosis of victims of sexual assault. On cross-examination Dr. Lenssen was asked if there was any possibility that the complainant was lying. She stated that she could not make such a determination, although the information she had was consistent with one who has suffered sexual assault. Also in response to cross-examination, Dr. Lenssen stated that there did not appear to be any factors other than the assault that could have contributed to the complainant's symptoms. We note that we do not predicate reversal on answers that were invited by defense counsel's cross-examination.

II. ADMISSIBILITY OF TESTIMONY REGARDING RAPE TRAUMA SYNDROME

To reach our conclusion in this case we must consider (1) the purpose for which Dr. Lenssen's testimony was offered, (2) general limitations on the admissibility of expert testimony, and (3) the application of those limitations to Dr. Lenssen's testimony. We emphasize that our holding regarding the admissibility of Dr. Lenssen's testimony should not be taken as a reflection on her expertise or integrity.

A. Purpose of the Expert Testimony.

There are a variety of purposes that can be served by a psychologist's testimony in a case involving alleged sexual assault. To clarify what is at issue here, we first discuss what is not at issue by noting various purposes of psychological testimony that would generally be admissible in litigation involving alleged rape.

One purpose would be to establish that the alleged victim was suffering from a psychological ailment. That may be relevant in prosecutions under some criminal codes. For example, in New Mexico criminal sexual penetration in the third degree becomes criminal sexual penetration in the second degree if the crime results in personal injury to the victim. See NMSA 1978, Sec. 30-9-11(B), (C). We have held that "personal injury" encompasses mental anguish and have upheld the admission of expert testimony of mental anguish to establish that element of the crime. State v. Barraza, 110 N.M. 45, 791 P.2d 799 (Ct.App.1990); cf. Alphonso v. Charity Hosp. of La. at New Orleans, 413 So.2d 982 (La.Ct.App.1982) (RTS testimony admitted to prove damages). We note that in this case the prosecutor specifically stated that she was not offering Dr. Lenssen's testimony to prove mental anguish. Moreover, even if a psychologist's testimony is admissible to establish mental anguish, it does not follow that the trial court must permit the expert witness to include in the testimony terms such as "rape trauma syndrome" or "post-traumatic stress disorder."

A second possible purpose of psychological testimony is to rehabilitate the credibility of the alleged victim when that credibility may be called into question because of behavior by the alleged victim that could seem inconsistent with having been sexually assaulted. Psychiatrists, psychologists, social workers, and others with experience in the field have repeatedly observed that victims of rape often act in ways contrary to what lay persons would expect, such as by failing to report the assault promptly or by continuing an association with the assailant. For an expert to testify that such conduct is consistent with rape is to...