State v. Florczak

• Decision Date: 24 October 1994
• Docket Number: No. 30185-3-I,30185-3-I
• Citation: 882 P.2d 199,76 Wn.App. 55
• Parties: The STATE of Washington, Respondent, v. Anthony P. FLORCZAK, Defendant, and Denise Terrell, Appellant.
• Court: Washington Court of Appeals

Page 55

76 Wn.App. 55

882 P.2d 199

The STATE of Washington, Respondent, v. Anthony P. FLORCZAK, Defendant, and Denise Terrell, Appellant.

No. 30185-3-I.

Court of Appeals of Washington,

Division 1.

Oct. 24, 1994.

Kathryn Miller, Washington Appellate Defender, Seattle, for appellant.

Lisa Johnson, Deputy Pros. Atty., Seattle, for respondent.

SCHOLFIELD, Judge.

Denise Terrell appeals the judgment and sentence entered against her for one count of first degree child molestation and one count of sexual exploitation of a minor. Terrell argues that the trial court erred by admitting child hearsay statements under the medical diagnosis and treatment exception of ER 803(a)(4) and that admitting that evidence violated her right to confrontation. She also contends the trial court erred by admitting expert testimony about post-traumatic stress syndrome because the witness was not qualified as an expert, the evidence did not satisfy the reliability requirements of Frye v. United States, 293 F. 1013, 1014, 34 A.L.R. 145 (D.C.Cir.1923), and the testimony constituted an impermissible opinion about Terrell's guilt. We affirm.

The following facts were presented during trial. On May 2, 1991, Seattle Police Officers Bacon and Radford stopped a car for a traffic violation. The driver gave his name as Gary Allen Raymond, but the passenger, Denise Terrell, informed Officer Radford that the man's true name was Anthony Florczak and he was wanted by the New Jersey police for a parole violation. Florczak denied he had given a false name and permitted Officer Bacon to search his wallet for additional identification showing his name was Gary Raymond.

While searching the wallet, Officer Bacon found a photograph of a nude adult woman and a nude young girl who were both kneeling and exposing their genitalia. Officer Bacon asked Terrell about the photograph, and she initially denied any knowledge about it. After additional questioning, however, Terrell admitted she was the adult in the photograph and her 3-year-old daughter, KT, was the child. According to Officer Radford, Terrell told him she lied at first about the photograph because she was worried it might affect a custody dispute she was having with KT's father, Joe Klein.

The officers verified that Florczak was a fugitive from New Jersey and arrested him. Terrell was not arrested at that time, but the police notified Child Protective Services (CPS) of the photograph.

Detective Lyon subsequently interviewed Terrell, who was living with KT at a shelter in Seattle. Terrell acknowledged again that she and her daughter were the figures in the photograph. She stated that Florczak had taken the photo as "a cute shot" and it was meant to be a joke.

CPS removed KT from Terrell's custody and placed KT with her father, Klein, and his wife, Debbie. CPS also referred the case to the Eastside Sexual Assault Center for Children and requested an opinion about whether the photograph caused any injury to KT and whether any other abuse had occurred. Molli Wilson, a master's level social worker at the Center, separately interviewed Joe Klein and KT. Over the course of five sessions from May 31, 1991, through June 17, 1991, KT disclosed to Wilson that both Florczak and Terrell had sexually abused her on numerous occasions. Based on those disclosures, the State filed an amended information charging Florczak with one count of "Possession [of] Depictions of Minors in Sexually Explicit Conduct" and two counts of first degree rape of a child. The same information charged Terrell with one count of first degree rape of a child, one count of first degree child molestation, and one count of sexual exploitation of a minor.

During a pretrial child hearsay hearing, the State sought to admit Molli Wilson's testimony about KT's out-of-court statements to her under ER 803(a)(4), the medical diagnosis or treatment exception to hearsay. Defense counsel argued that the hearsay exception was not available to the State because KT was too young to understand that her statements to Wilson were necessary for diagnostic or treatment purposes and because Wilson was performing an investigative function when she interviewed KT. Defense counsel also argued that under Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), Terrell's and Florczak's right to confrontation would be violated by admitting KT's statements into evidence. The trial court ruled as follows:

Well, first of all, I have examined the doctor's report and affidavit, and I am satisfied that it was indeed ongoing, the commencement, if you will, of ongoing therapy for the child; and the nature of that is I think precisely what [ER] 803(a)(4) covers.

I would further find that the [ER] 803(a)(4) exception ... is a firmly-rooted one....

And I do not think, as we discussed yesterday, that Idaho against Wright controls for the simple reason that it is dealing with an exception that is not firmly-rooted [the residual hearsay exception], one that apparently came into being when the federal rules were promulgated a few years ago, and it therefore does not control. I am for that reason going to permit the state to introduce the testimony.

. . . . .

... I think it is a firmly-rooted exception, and, therefore, there is no need to further establish reliability. It is established if it fits that exception. I think it does.

At trial, Wilson testified about her extensive training and experience as a family therapist working with abused children and emphasized that she was a therapist, not an investigator. When Wilson interviewed Klein, he told her that KT occasionally had complained that her "peepee" hurt, and on those occasions he had noticed redness in her vaginal area. Klein also described behavior problems KT had exhibited. For example, KT "had poor impulse control, aggression with toys, some sleep problems, seemed real distractible, seemed fearful, anxious, [had] stomach aches, headaches." Wilson testified that "[s]ome of those symptoms ... could be correlated with a child who has been sexually abused."

After interviewing Klein, Wilson met with KT alone. Wilson testified that during the initial session she tried

to familiarize the child with not only myself, because it is a relationship, but the office and the toys, and to ask her ... why she's there, to which--

. . . . .

... [KT] responded that she didn't know. Later she indicated she had a sense it was to talk about her mother, Denise, but she was very vague.

... I also explain[ed] that ... the agency is a safe place for children and that she could talk about whatever she wanted to talk about, whether it's, if she had any pets or toys or school or whatever it was, that this was what we were going to spend our time doing.

Wilson testified that after several sessions she concluded KT knew the difference between the truth and a lie and was not "suggestible". Wilson also determined that KT had not been "scripted", that is, had not been prompted by someone to make her disclosures.

During the first session, KT seemed to Wilson "very fearful, very anxious, and ... somewhat depressed." At the second session, Wilson told KT she knew about the photograph, and KT became very frightened and did not want to talk about it or about her mother. KT was "very, very fearful" whenever Wilson spoke about Terrell and Florczak, but she did not have the same reaction when Wilson spoke about the Kleins. At the third session, when Wilson presented KT with pre-school, anatomically-correct drawings of a boy and a girl, KT spontaneously said she "had a bad secret", which was that she and her mother were naked in some photographs. KT told Wilson that "next time I will talk about all the bad secrets about Denise and Tony [Florczak]."

At that next session, while drawing pictures, KT told Wilson she was drawing "mommy's privates" which she had seen "lots of times". KT said "mommy touches my privates and makes me touch her privates ... she puts her fingers in my privates". KT also indicated that had happened "lots of times". After becoming very upset, running around the room, and hiding under the table, KT said her mother told her she would hurt her pets and kill Joe and Debbie Klein if she told anyone. During that session, KT also drew a picture which she said showed "Tony's private" which she had seen "lots of times". She said Florczak "touches [my] privates a lot and he puts his fingers in [my] private ... and puts his penis in my private." KT recalled that her mother was present when that happened and took pictures. She also said that Florczak touched her "back private", possibly with some part of a toy or a doll. Wilson testified that after KT revealed that information, the child "immediately was very worried" about the safety of her father and Debbie, and she even worried about Wilson's safety. At the final assessment session, KT said that Terrell often "made [me] touch her butt and private parts with [my] naked private parts and rub herself on me", and Terrell pulled her hair and punched her in the stomach. Wilson concluded that KT had post-traumatic stress syndrome and needed ongoing treatment, which she provided.

In addition, the State questioned Wilson as follows:

Q. ... Were you, in the evaluation phase, were you apprised of nightmares and things that [KT] was suffering that would relate to your diagnosis? [Florczak's counsel]: Objection, leading.

THE COURT: Overruled.

A. Yes. In order to substantiate my diagnosis, given what the parents had indicated, Mr. Klein and [his wife], based on that and the checklist, the child had several symptoms of anger, aggression, issues with trust, nightmares, had indicated her sense of betrayal, problems with self-esteem, events that represented incidents of the trauma, irritability, wetting.

Q. And, Ms. Wilson, you did make a clinical diagnosis of [KT]?

A. Yes.

Q. And the basis of that diagnosis being?

A. I took my diagnosis out of the DSM-3R, [ ¹ which I...