State v. Foret

• Citation: 628 So.2d 1116
• Decision Date: 30 November 1993
• Docket Number: No. 93-K-0246,93-K-0246
• Parties: STATE of Louisiana v. Hypolite FORET.
• Court: Louisiana Supreme Court

Page 1116

628 So.2d 1116

STATE of Louisiana v. Hypolite FORET.

No. 93-K-0246.

Supreme Court of Louisiana.

Nov. 30, 1993.

Concurring Opinion of Justice

Lemmon Dec. 7, 1993.

Christopher J. Boudreaux, Boudreaux & LaRose, Thibodaux, for applicant.

Richard P. Ieyoub, Atty. Gen., New Orleans, Walter Naquin, Jr., Dist. Atty., Camille A. Morvant, II, Peltier & Morvant, Thibodaux, for respondent.

HALL, Justice. ¹

On October 11, 1991, a jury found Hypolite Foret, who was charged with molestation of a juvenile when the offender has control or supervision over the juvenile, guilty of attempted molestation of a juvenile (when the offender does not have control or supervision over the juvenile), a violation of LSA-R.S. 14:81.2 and LSA-R.S. 14:27. The trial court sentenced him to serve a term of three years imprisonment at hard labor. Foret appealed on several grounds, all of which were rejected by the court of appeal. The conviction was affirmed, with the sentence amended to give credit for time served. State v. Foret, 612 So.2d 1070 (La.App. 1st Cir.1992) (unpublished).

Chief amongst defendant's claims was that the trial court erred in allowing, over objection, a psychologist who had examined the victim to testify, as his report, which had been in the State's possession for over a week, was only made available to the defendant on the morning of trial. The court of appeal held that the defendant failed to make the requisite showing of prejudice as a result of the delinquent disclosure of the report and, consequently, refused to grant the defendant any relief.

Defendant applied for writs of certiorari to this court, which were granted. 620 So.2d 821 (La.1993). Upon review, this court reverses the court of appeal in its holding that the tardy delivery of the psychologist's report was not prejudicial, especially given the questionable scientific basis and highly influential nature of his testimony. As this alone is grounds for reversal of the conviction and a remand for a new trial, we will pretermit consideration of the other assignments of error.

I.

The defendant, Hypolite Foret, was convicted of attempting to molest his step-daughter over a one-and-a-half to two-year period, when the victim was twelve to fourteen years old. The victim testified that the repeated incidences of abuse took place at the family residence when her mother was asleep or not at home. The alleged initial acts of molestation involved hugging, kissing, and rubbing the victim's breasts, culminating with the defendant rubbing under the victim's clothes and inserting his finger into her vagina.

These alleged acts of abuse were discovered upon the return of the victim after she ran away from the family home. The victim had been having problems with both the defendant and her mother, namely that they were strict and steadfastly refused to allow her to date an older (by approximately eight years) boyfriend. Upon her return home, she was interviewed by a child protection worker, Cindy Ordoyne, and, during that interview, she detailed molestations allegedly made by her stepfather. The interview set forth a series of events that resulted in the court-ordered removal of the victim from the family home and the defendant being charged with molestation of a juvenile.

At trial, the defendant denied that he had abused the victim, but believed that she might have been abused by someone else. He admitted that he may have touched the victim's private parts, but maintained that the touching occurred accidentally during horseplay or tickling. The victim's mother, siblings, and a family friend all testified that they had never seen any indication that the victim was molested by the defendant. They also testified that the victim had said many times that she wanted to get out of the house, which the victim denied ever saying. The victim also admitted that she told her mother, after her removal from the home, that "I want to come home now. I think I'm going to tell the D.A. and the judge that I lied about everything." She also claimed that these statements were made solely to comfort her mother.

The state offered two expert witnesses to support its case-in-chief. The first was a physician qualified as an expert in the field of family medicine, who testified that, although an examination of the victim after the abuse was reported yielded no positive physical evidence of abuse, the lack of positive physical evidence of abuse was not unusual in this type of case. The second witness was a child psychologist, Dr. William Janzen, Ph.D., who was qualified as an expert in the field of psychology with expertise in child sexual abuse. Defendant objected to Dr. Janzen being allowed to testify, claiming that his not being given Dr. Janzen's report until the morning of trial when the state had possessed it for a week prior to trial was a prejudicial discovery violation, as there was insufficient time to prepare an effective cross-examination of the expert. This objection was overruled. ²

Dr. Janzen testified that he interviewed the victim on three separate occasions and concluded that, in his expert opinion, she was telling the truth about being the victim of sexual abuse. He based his conclusions on the following: the victim gave detailed accounts of the acts of abuse and conversations she had with the defendant; the victim described common feelings of disgust and sadness; the victim claimed that the defendant was possessive of her and did not want her to be with other boys; the victim felt that she had done something wrong; and, finally, the defendant told her to keep the molestations a secret.

Dr. Janzen explained his methods for evaluation of sexual abuse allegations, focusing on questioning the victim:

And then on the basis of what I get from the child, the type of detail that I get from the child to make some conclusions about whether or not what she is telling me suggests that she has been sexually abused, or another way of putting it, on the basis of what I get from the child I make some conclusions about whether or not what she is telling me is consistent with what we know about the dynamics of sexual abuse.

He stated that, in this case, he gave the victim some emotional tests, but added that such tests "do not tell me anything about the allegations." The doctor observed that the victim's manner was "flat" and that she had "some sadness and unhappiness." Without regard to his previous caveat that these tests could not indicate sexual abuse, Dr. Janzen opined that her "attempts to hide her sadness" were caused by "embarass[ment] about the entire situation and she really prefers for people not to know about this."

He then went into specific details of the allegations made by the victim and, with the court's permission, named the defendant as the person whom the victim identified as her abuser. Dr. Janzen described the progression from touching on the outside of the victim's clothes to eventual fondling under the clothes. He then observed that "[t]his kind of progression is one thing that we look for in cases of sexual abuse." He further noted (in what is referred to as the "progressive" dynamic) that

many perpetrators will begin the sexual abuse process by doing casual things at first, sometimes making things appear to be an accident and then progress to more involved kind of activity such as placing their finger in the girl's vagina.

He next went into what he called the "secrecy" dynamic, "that is being told not to tell someone", to wit, her mother. He followed this by a description of the "jealousy" dynamic, whereby the unabusing spouse becomes jealous of the attention the abusing spouse is giving the abused child.

Finally, he noted the "recantation" dynamic. According to Dr. Janzen, children become concerned about the effect they are having on the family and begin to regret having revealed the abuse because they have been removed from the family and because they realize that a family member may be sentenced to prison. The victim "seemed to be very distressed about what was happening to her mother," and "was upset about being in foster care and missed her mother, and so in those kinds of cases they feel very guilty and they may recant." The doctor proffered that even if a child has been sexually abused by a parent, that child can still "love" that person.

The State then posed the following question Doctor, after the interviews you had with [the victim], the testing and the conversations and so on that you had with her, is it your opinion that she was sexually abused?

The defendant objected, claiming that the State was asking the expert to comment upon "the fact and [sic] issue here", but the trial court allowed the question to be answered, simply cautioning the doctor not to "identi[fy] ... any person who may be responsible." Dr. Janzen then answered:

The details that she gave me are consistent with the dynamics of sexual abuse and so my conclusion would, therefore, be that she has been sexually abused and should be in counseling to help her cope with that.

Later summing up his direct examination, Dr. Janzen noted that, given the details related to him by the victim and considering the various dynamics of sexual abuse, his "only conclusion" was that the victim had "been sexually abused."

Based largely on the testimony of the victim, as bolstered by Dr. Janzen, the jury returned a verdict of guilty of attempted molestation.

II.

Prior to trial, defendant moved for discovery of all reports of examinations and tests that were made by the State, pursuant to La.C.Cr.P. art. 719:

Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy ... any results or reports ... of physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney...