State v. Bullock, No. 870053

• Court: Supreme Court of Utah
• Writing for the Court: HALL; ZIMMERMAN; STEWART; HOWE, Associate Chief Justice, concurs in parts I and II and in the result of part III of the dissenting opinion of STEWART
• Citation: 791 P.2d 155
• Docket Number: No. 870053
• Decision Date: 18 October 1989
• Parties: STATE of Utah, Plaintiff and Appellee, v. Arden Brett BULLOCK, Defendant and Appellant.

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791 P.2d 155 STATE of Utah, Plaintiff and Appellee,
v.
Arden Brett BULLOCK, Defendant and Appellant. No. 870053. Supreme Court of Utah. Oct. 18, 1989.
Rehearing Denied Nov. 20, 1989.
Certiorari Denied June 28, 1990. See --- U.S. ----, 110 S.Ct. 3270.

Craig S. Cook, Salt Lake City, for appellant.

David L. Wilkinson, David B. Thompson, Salt Lake City, for appellee.

HALL, Chief Justice:

Defendant appeals his convictions of three counts of aggravated sexual abuse of a child ¹ and three counts of sodomy upon a child. ² The issue presented is whether defendant was convicted on the basis of inadmissible evidence which deprived him of a fair trial. Defendant does not challenge the sufficiency of the evidence. Rather, he contends that the manner in which the case was investigated so tainted the evidence that it was rendered inadmissible at trial, that the trial court committed plain error in admitting the child victims' out-of-court statements and the opinions of the expert witnesses into evidence, and that trial counsel was ineffective in failing to raise the admissibility issue and in not seeking to suppress the evidence prior to trial. Thus, the relief sought on appeal is reversal of the trial court and dismissal of the charges.

One of defendant's former neighbors learned of her four-year-old son's purported involvement in sexual activity. This prompted her to seek an evaluation of her son by Dr. Barbara Snow, a social worker in the Intermountain Sexual Abuse Treatment Center. The child disclosed to Dr. Snow that defendant's son and another young male friend in the neighborhood had touched his penis and performed fellatio on him. Dr. Snow notified the Division of Family Services, which in turn referred the matter to the Bountiful Police Department. Dr. Snow interviewed one of the boys, who

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acknowledged that he and defendant's son had abused the four-year-old in a manner they and two of their neighborhood friends had learned from defendant while playing a "game" with him at his home. Dr. Snow did not interview defendant's son, but in subsequent interviews of the other three boys, each related that defendant had touched their penises and performed fellatio on all four of them. Also, defendant had each of them touch his penis and perform fellatio on him. And defendant threatened to harm them, their families, or their pets if they told anyone about it. Dr. Snow also made this information available to the Bountiful Police Department.

The three boys were thereafter individually interviewed by Dr. Ann Tyler, a psychologist and the executive director of the Family Support Center, an organization devoted to the prevention and treatment of child abuse and neglect. The interviews conducted by Dr. Tyler produced disclosures of sexual abuse and threats by defendant similar to those disclosures made to Dr. Snow.

Following the Tyler interview, the county attorney held a meeting in his office attended by the three boys, their parents, two deputy county attorneys, and a member of the police department. At this meeting, two of the boys recounted the sexual abuse perpetrated by defendant, but the third denied that anything had happened to him.

Prior to trial, the testimony of the three boys was videotaped for use at trial. ³ Their testimony was presented to the court, and each party had the opportunity to examine the witnesses through counsel. Defendant viewed the proceedings from a location out of the presence of the witnesses. The testimony of each of the boys detailed the sexual abuse perpetrated by defendant and the threats he made against them if they should tell anyone about his acts. The boy who previously denied that the abuse had occurred explained his denial by stating that he was no longer afraid of defendant's threats to him, his family, and his pet dog. At trial, the videotapes were received into evidence and were viewed by the jurors. ⁴

Also at trial, Dr. Snow was questioned extensively regarding her credentials and interviewing techniques. She testified that she holds doctorate and masters degrees in social work and that she has had considerable training and experience concerning the area of child sexual abuse. Her employment is in the therapeutic field, and her interests are directed toward the healing of children instead of investigation for the purpose of criminal prosecution. She testified that the interviewing techniques she utilizes differ from those of the police, whose interests are directed toward proving the elements of a crime. Indeed, her "intervention with children is not from a neutral position," as she is "a child's advocate." She described herself as an ally of such children and explained that her "purpose in gathering information from them is to only gather that information that helps them heal." As such, she remains "relatively indifferent to what happens with the perpetrator." She testified that her concern is to determine the truth, and she relies upon specific criteria for assessing the truthfulness of a child's statements concerning sexual abuse.

Dr. Snow's interviews of the boys were not taped, with the exception of a videotaped session with one boy and an audiotaped session with another boy and his father. She acknowledged that videotaping a child's initial interview is recommended by some in the field of diagnosing and treating child sexual abuse. However, she noted that it was not her practice to record the sessions because, in her experience, the use of a tape recorder or video machine is disconcerting to children and inhibits their responses. Accordingly, her

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testimony at trial concerning her interviews of the boys was based primarily on memory.

At trial, Dr. Tyler was questioned extensively regarding her qualifications and the procedures she followed in conducting her interviews with the boys. She testified that she is a licensed psychologist with substantial training and experience in the field of child sexual abuse. As such, she performed individual "corroborative assessments" of the three boys and reached the conclusion that each had been sexually abused. Her training emphasized the importance of data collection and good record keeping, including the use of tapes.

In response, defendant presented three expert witnesses who were critical of Dr. Snow's techniques and the validity of Dr. Tyler's corroborative assessments because of the asserted contamination of the victims' testimony occasioned by Dr. Snow's interviewing process. Specifically, Dr. Monica Christy testified that it was important to tape the initial interviews of the children, not only to record the answers, but also to understand how the questions were asked and to be able to remember the fine details of the interview. Dr. Christy challenged the objectivity of Dr. Snow's interviewing techniques of ignoring the child's response until the child learned to give the answer she expected and of rewarding answers that she liked by making such comments as "good boy." Dr. Christy was critical of Dr. Snow's practice of "shaping" the testimony of a child by confronting an undesired response with the statement that the child must tell the truth, thereby implying that the truth had not been told. She was also critical of the fact that at the meeting held in the office of the county attorney, the boys were permitted to "cross-contaminate" each other by sharing their versions of the sexual abuse incidents.

Dr. Michael DeCaria was similarly critical of Dr. Snow's interviewing procedures. He testified that when interviewing children, the questions must be "open-ended." That is, a question cannot have the answer already contained within it. The interviewer must also be neutral and impartial from the outset and not make prejudgments as to what has occurred. Additionally, Dr. DeCaria explained that there is a danger in having children repeat allegations to different people since the more an event is discussed, the more real the event may seem to become. He emphasized the need to record the interviews of the children. It was his ultimate opinion that by the time the boys were interviewed by Dr. Tyler, they were irretrievably contaminated by their previous contacts with Dr. Snow, their parents, and the other children.

Dr. Stephen Golding testified that one who interviews a child in such cases must remain completely neutral and that when Dr. Snow conceded that she was a child advocate looking for sexual abuse, she missed the forensic mental health standards "by a mile." It was his conclusion that once the boys had been contaminated by the interviewing methods of Dr. Snow, it was impossible for Dr. Tyler or anyone else to know what had actually happened.

Defendant contends that he was denied due process because the initial interviews of the child victims conducted by Dr. Snow so contaminated the investigative process through suggestive questioning and inadequate recording practices that the evidence of sexual abuse that surfaced during her interviews and the subsequent interviews of the victims by other persons, including their parents, rendered all of the evidence inadmissible.

Defendant also claims that he was denied effective assistance of counsel because trial counsel (1) failed to raise the due process challenge to the admissibility of the State's evidence of child sexual abuse; (2) failed to challenge the admissibility of the child victims' out-of-court statements; (3) failed to object to the competency of the children, parents, and experts to testify; (4) failed to object to the "syndrome" evidence; (5) failed to object to the videotaping procedures employed; (6) failed to object to the expert witness testimony that the children in this case were victims of sexual abuse; and (7) failed to make an opening statement or file post-trial motions. Defendant

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concedes that the claims raised on appeal were not raised in the court below.

It is apparent from the record that it was...