State v. Fitzgerald

• Decision Date: 11 January 1985
• Docket Number: No. 13476-1-I,13476-1-I
• Citation: 39 Wn.App. 652,694 P.2d 1117
• Parties: STATE of Washington, Respondent, v. Vincent M.R. FITZGERALD, Appellant.
• Court: Washington Court of Appeals

Page 652

39 Wn.App. 652

694 P.2d 1117

STATE of Washington, Respondent, v. Vincent M.R. FITZGERALD, Appellant.

No. 13476-1-I.

Court of Appeals of Washington,

Division 1.

Jan. 11, 1985.

Publication Ordered Jan. 25, 1985.

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

Norman K. Maleng, King County Pros. Atty., Michael Schwartz, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

The defendant, Vincent Michael Reginald Fitzgerald, was found guilty by a jury of two counts of statutory rape. Fitzgerald appeals, arguing that a single verdict on duplicitous counts deprived him of a unanimous jury verdict and that the trial court made several evidentiary errors. We reverse and remand for a new trial.

Fitzgerald frequently traveled to India for business purposes. In 1977 he visited an orphanage in Bombay. This was the first of many visits. A girl, "A", born January 23, 1973, and a resident in the orphanage, was adopted by Fitzgerald and his wife. She was brought to the United States in 1980.

While "A" was at the orphanage she met another girl, "B", and they became friends. "B", born March 19, 1974, was adopted by a couple in the Seattle area. In India, Fitzgerald took both children from the orphanage for overnight trips. At trial the children stated that Fitzgerald fondled them and placed objects in their anal and vaginal areas during these trips. While the children's testimony conflicted on some incidents, they each testified that this abuse continued after they arrived in Washington.

Fitzgerald denied any wrongdoing. He explained that in India he helped the children get accustomed to western style toilets and put ointments on the children for skin problems but did nothing improper. He admitted that after coming to Washington he may have touched "A" 's vaginal area by accident while she was on his lap listening to him read a book.

THE JURY VERDICT

The jury was instructed that in order to find Fitzgerald guilty on count one they must find that he had sexual intercourse with "A" between November 8, 1981, and November 8, 1982. To find Fitzgerald guilty of count two, the jury had to find that he had sexual intercourse with "B" between May 1, 1981, and January 2, 1982. The jury returned a verdict finding Fitzgerald guilty of both counts without specifying which underlying acts of intercourse constituted the statutory rapes. The children had testified they had been raped on several occasions. Fitzgerald argues that each act constituted a separate offense, requiring a unanimous verdict as to each separate crime described. The State responds that Fitzgerald did not preserve the error for appeal, or alternatively, the error is harmless.

A defective verdict which deprives the defendant of a unanimous verdict invades the fundamental constitutional right to a trial by jury. The issue may, therefore, be raised for the first time on appeal. State v. Russell, 101 Wash.2d 349, 678 P.2d 332 (1984).

The Supreme Court recently addressed the issue of jury unanimity in State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984). In Petrich, the defendant was accused of molesting his 13-year old granddaughter who testified to several incidents of sexual abuse. The jury returned a general verdict of guilty without specifying which underlying acts were relied upon in reaching the decision. The Supreme Court held this was error and reversed; conceding, however, that "[u]nder appropriate facts, a continuing course of conduct may form the basis of one charge in an information." Petrich, at 571, 683 P.2d 173. Here, as in Petrich, the only connection between the incidents of rape is that the victims are the same. This connection is not enough to find that the offenses contained in each count constitute a single transaction. Petrich, at 571, 683 P.2d 173. When, as here, a defendant is charged with a single count of criminal behavior, encompassing several distinct acts, jury unanimity must be protected.

To insure jury unanimity, the Supreme Court stated:

The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the State chooses not to elect, this jury instruction must be given to ensure the jury's understanding of the unanimity requirement.

Petrich, at 572, 683 P.2d 173.

No election was made by the State in the present case, and the trial court did not give an appropriate instruction. While the trial court instructed the jury that it had to decide counts one and two separately, this instruction was insufficient because the evidence indicated multiple instances of conduct which could have been the basis for each count. See Petrich, at 573, 683 P.2d 173.

This type of error is harmless only if a rational trier of fact could have found each incident proved beyond a reasonable doubt. Petrich, at 573, 683 P.2d 173. In light of the conflicting testimony of the children as to the various incidents of sexual abuse, a rational trier of fact could have entertained a reasonable doubt as to one or more of the incidents of abuse. Thus, we must reverse and remand for a new trial.

EVIDENTIARY RULINGS

Because the same issues may arise upon retrial, we review Fitzgerald's other assignments of error.

1. MEDICAL OPINION

During the State's case in chief, Dr. Griffith, a pediatrician, testified that based on her interviews with the children she believed that they had been molested. Fitzgerald contends that Dr. Griffith's opinion was improperly admitted because the results of the physical examinations of the victims were inconclusive. He also argues that the effect of her opinion testimony is to tell the jury that she believes the children were truthful, invading the jury's responsibility to make credibility determinations. The State responds that Dr. Griffith is a board certified pediatrician who has worked extensively with sexually abused children, and as an expert may testify about an ultimate issue of fact.

Although generally expert witnesses may give an opinion on an ultimate issue of fact, State v. Alden, 73 Wash.2d 360, 438 P.2d 620 (1968), many jurisdictions do not allow an opinion based on the credibility of the rape victim. In similar factual circumstances as this case, other jurisdictions have held it was reversible error for a pediatrician or a psychiatrist to testify that they believed that children were sexually abused based on their interviews of the children. See State v. Taylor, 663 S.W.2d 235, 240-41 (Mo.1984); State v. Keen, 309 N.C. 158, 305 S.E.2d 535, 537-38 (1983); Commonwealth v. Carter, 9 Mass.App. 680, 403 N.E.2d 1191 (1980); aff'd 383 Mass. 873, 417 N.E.2d 438 (1981).

Credibility is a crucial issue because the children's and Fitzgerald's testimony directly conflict. It is improper for an expert to base an opinion about an ultimate issue of fact solely on the expert's determination of a witness's veracity. The physical evidence does not show whether sexual abuse of the children occurred. Dr. Griffith's opinion is based solely on her evaluation of the children's version of the events. "An expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility." 5A K. Tegland, Wash.Prac., Evidence, § 292 n. 4 at 39 (2d ed. 1982), United States v. Samara, 643 F.2d 701, 705 (10th Cir.1981), cert. denied, 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981). The trial court erred in permitting Dr. Griffith to state her opinion that the children had been molested.

2. ER 803(a)(4)

The trial court, relying on ER 803(a)(4), the medical history exception to the hearsay rule, also permitted Dr. Griffith to repeat statements made to her by the children. Fitzgerald contends that ER 803(a)(4) does not apply because the children's statements were not necessary or reasonably pertinent to the diagnosis of Dr. Griffith.

Former Washington law was liberalized by ER 803(a)(4). Bertsch v. Brewer, 97 Wash.2d 83, 640 P.2d 711 (1982). Statements may be admitted under ER 803(a)(4) if they are:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

A qualified physician, whether treating the patient or examining a person solely to enable the doctor to testify at trial, may relate what the patient told her regarding the nature or cause of the injury insofar as it pertains to treatment or diagnosis and not fault. Kennedy v. Monroe, 15 Wash.App. 39, 47, 547 P.2d 899 (1976).

Several United States Circuit Courts of Appeals have held testimony similar to that of Dr. Griffith's admissible under the parallel federal evidence rule 803(4). United States v. Nick, 604 F.2d 1199 (9th Cir.1979); United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980); cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981), United States v. Iron Thunder, 714 F.2d 765 (8th Cir.1983). ¹

In the present case Dr. Griffith was concerned with the physical and mental well-being of the children. The children's statements were consistent with the purpose of promoting diagnosis and treatment. The statements are also relevant to rule out treatment, which brings them within ER 803(a)(4). Iron Shell, at 84. The trial court properly admitted the testimony.

Fitzgerald also asserts that even if some of the statements are related to a medical diagnosis, this would not include statements attributing fault to Fitzgerald. Statements concerning who assaulted a victim would seldom, if ever, be sufficiently related to diagnosis or treatment to be admissible. Iron Shell, at 84. Though such statements are not admissible under 803(a)(4),...