State v. Black

• Decision Date: 05 November 1987
• Docket Number: No. 53603-1,53603-1
• Citation: 109 Wn.2d 336,745 P.2d 12
• Parties: , 56 USLW 2297 STATE of Washington, Petitioner, v. Michael Earl BLACK, Respondent.
• Court: Washington Supreme Court

Page 336

109 Wn.2d 336

745 P.2d 12, 56 USLW 2297

STATE of Washington, Petitioner, v. Michael Earl BLACK, Respondent.

No. 53603-1.

Supreme Court of Washington En Banc.

Nov. 5, 1987.

Donald C. Brockett, Spokane County Pros., Salvatore F. Cozza, Deputy Pros., Spokane, for petitioner.

Allen & Hansen, P.S., David Allen, Richard Hansen, Seattle, for respondent.

CALLOW, Acting Chief Justice.

--Quaere: May the State, in a rape case, offer expert testimony on "rape trauma syndrome" to prove that the alleged victim did not consent to sex with the alleged assailant?

The trial court held such evidence admissible, and the defendant was convicted of third degree rape. The Court of Appeals reversed. We hold that expert testimony on rape trauma syndrome is inadmissible because it lacks scientific reliability and unfairly prejudices a defendant accused of rape. We affirm the Court of Appeals and remand for a new trial.

The conviction arose from an incident in August 1984 involving the defendant and R.J., a close family friend and neighbor. R.J. was 16 at the time of the incident. Both parties essentially related the same version of events leading up to sexual intercourse. R.J. testified that the defendant offered to hug and touch her for $100, she attempted to leave, but he then locked the door and forced her to have both oral sex and sexual intercourse, after which he permitted her to leave and pleaded with her not to turn him in. The defendant admitted that he made the alleged $100 offer, but said he did so jokingly in response to her statement that "I don't do anything for free." The defendant also admitted that the two did later engage in both oral sex and sexual intercourse, but he asserts that the encounter was entirely consensual and that no force was involved.

At the trial, R.J's mother and friends testified as to their observations of R.J. after the incident. They stated that she was emotionally distraught and had had nightmares of the incident for several days thereafter. This testimony was admitted over the objection that it was hearsay, its admission was deemed proper by the Court of Appeals, and its propriety has not been challenged in the present appeal.

The testimony at issue here was given by Kelleen Bermensolo, a counselor for the Lutheran Social Services Rape Crisis Network in Spokane. Bermensolo testified that she had a master's degree in social work and 4 years' experience working with 150 to 200 victims of rape and sexual assault. She stated that she had counseled R.J. on a weekly basis for several months "after the rape."

The prosecutor asked Bermensolo whether R.J. was "suffering emotional trauma" and Bermensolo replied "[y]es". Defense counsel then objected to this testimony "based on the foundation laid." The court sustained the objection, following which the prosecutor further questioned Bermensolo about her experience in dealing with rape victims. She stated:

In every rape victim that I have seen they exhibit consistent symptoms ... For example, body soreness, guilt, shame, feelings about the trial, nightmares, flashbacks, these are common symptoms that rape victims experience. There is a specific profile for rape victims and [R.J.] fits in.

(Italics ours.) In response to defense counsel's questions as to whether trauma can come from sources other than rape, Bermensolo later explained that she relied on "what the symptoms show according to the rape trauma syndrome." She also stated that this syndrome was developed by Ann Burgess and Lynda Holmstrom. See Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J. Psychiatry 981 (1974).

Defense counsel then again questioned Bermensolo: "[T]he bottom line that I am asking, it is possible ... [that] symptoms that are manifested by rape crisis victims could also be manifested for some other reason than rape; isn't that true?" Bermensolo replied: "My training is in the area of sexual assault and when the symptoms are apparent that fit the sexual assault with the rape trauma syndrome, I can't say ... what a reaction would be in another area."

The trial court admitted Bermensolo's testimony over the objection of defense counsel. The court found the defendant not guilty of second degree (forcible) rape but guilty of third degree (nonconsensual) rape. The trial court considered Bermensolo's testimony in reaching its decision.

The Court of Appeals reversed, holding that an inadequate foundation had been laid for the introduction of testimony on rape trauma syndrome. The State appealed. We accepted review.

Two issues are presented:

First, did the defendant at trial properly raise his objection to the admissibility of expert testimony on rape trauma syndrome, to preserve this question for appeal?

Second, should such testimony be deemed inadmissible because (1) "rape trauma syndrome" is a theory which has not gained general acceptance within the scientific community, and (2) such testimony constitutes an opinion as to the guilt of the defendant, thereby invading the exclusive province of the finder of fact?

I

The State argues that at trial defense counsel did not specifically object to the scientific reliability or acceptance of "rape trauma syndrome", and is thereby precluded from raising this issue on appeal. We disagree.

ER 103(a)(1) provides:

Error may not be predicated upon a ruling which admits ... evidence unless ...

(1) ... a timely objection or motion to strike is made, stating the specific ground of objection, if the specific ground was not apparent from the context ...

(Italics ours.) Defense counsel at trial objected to Bermensolo's qualifications to testify on rape trauma syndrome, "based on the foundation laid." Although counsel did not specifically raise a challenge to the reliability of rape trauma syndrome as a means of proving rape, this ground for objection is readily apparent from the circumstances. On voir dire, defense counsel repeatedly asked whether trauma or emotional distress can come from sources other than rape or sexual assault. When Bermensolo specifically stated that she was relying on rape trauma syndrome, he again inquired whether this syndrome was unique to rape. Defense counsel's questions were more than adequate to apprise the trial court of his objection to the use of rape trauma syndrome as a fact-finding method in a rape case.

The State alternatively argues that any possible error concerning testimony on rape trauma syndrome was self-invited by defense counsel and is therefore not subject to appellate review. See State v. Kaiser, 34 Wash.App. 559, 565, 663 P.2d 839, review denied, 100 Wn.2d 1004 (1983). The State relies on the fact that Bermensolo used the term "rape trauma syndrome" only in response to defense counsel's questions. We deem this circumstance immaterial when viewed in light of the entire course of questioning.

The prosecutor originally asked Bermensolo if, in her opinion, R.J. was suffering from "emotional trauma". When defense counsel objected to this testimony, the prosecutor questioned her further. Bermensolo responded by describing symptoms commonly found in rape victims and added, "[t]here is a specific profile for rape victims and [R.J.] fits in." Such testimony, elicited from the prosecutor, was tantamount to an assertion that R.J. suffered from "rape trauma syndrome", even though Bermensolo did not use that precise term until later in the proceedings. Defense counsel did not invite any possible error precluding judicial review.

II

The defendant contends that the trial court erred in admitting into evidence, and relying upon, expert testimony on "rape trauma syndrome". We agree.

The admissibility of expert testimony is governed by ER 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Under this rule, (1) the witness must be qualified as an expert; (2) the opinion must be based upon an explanatory theory generally accepted in the scientific community, and (3) the expert testimony must be helpful to the trier of fact. State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312 (1984). Kelleen Bermensolo's qualifications as an expert have not been challenged on appeal. Thus, we address only the second and third prongs of this 3-prong test.

A. Scientific reliability of "rape trauma syndrome" as a means of proving rape.

In Washington, expert testimony based on new scientific theories is admissible only if it meets the standard enunciated in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Under this standard, the scientific principle from which deductions are made must be sufficiently established to have gained general acceptance in the scientific community. State v. Canaday, 90 Wash.2d 808, 812, 585 P.2d 1185 (1978) (citing Frye ). This standard has frequently been applied to determine the admissibility of scientific evidence. See Allery ("battered woman syndrome" evidence admissible); State v. Martin, 101 Wash.2d 713, 719, 684 P.2d 651 (1984) (hypnosis evidence inadmissible); State v. Woo, 84 Wash.2d 472, 473-75, 527 P.2d 271 (1974) (polygraph evidence inadmissible in the absence of stipulation by both parties); State v. Maule, 35 Wash.App. 287, 295-96, 667 P.2d 96 (1983) (court disallowed expert testimony regarding characteristics of sexually abused children when no scientific basis for such testimony was cited); State v. Steward, 34 Wash.App. 221, 223-24, 660 P.2d 278 (1983) (court disallowed expert testimony regarding alleged propensity of babysitting boyfriends to inflict child abuse); State v. Mulder, 29 Wash.App. 513, 514-15, 629 P.2d 462 (1981) ("battered child syndrome" evidence admissible).

Here, the question is whether rape trauma syndrome has been generally established as a scientifically reliable...