State v. LeBlanc, 89-2956

• Court: Florida District Court of Appeals
• Writing for the Court: Before SCHWARTZ; NESBITT
• Citation: State v. LeBlanc, 558 So.2d 507 (Fla. App. 1990)
• Decision Date: 20 March 1990
• Docket Number: No. 89-2956,89-2956
• Parties: 15 Fla. L. Weekly D760 The STATE of Florida, Petitioner, v. Grover LeBLANC, Respondent.

Page 507

558 So.2d 507

15 Fla. L. Weekly D760

The STATE of Florida, Petitioner, v. Grover LeBLANC, Respondent.

No. 89-2956.

District Court of Appeal of Florida Third District.

March 20, 1990.

Robert A. Butterworth, Atty. Gen., and Janet Reno, State Atty., and Lisa Berlow-Lehner, Asst. State Atty., for petitioner.

Ronald S. Guralnick, Miami, for respondent.

Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.

NESBITT, Judge.

Respondent is charged with the sexual battery of his minor stepdaughter, C.A., and his two minor children, B.L.B. and A.L.B. The alleged offenses occurred on July 4, 1987. The respondent is currently charged with four counts of sexual battery, four counts of lewd assault, and three counts of sexual performance by a child in violation of sections 800.04, 794.011(2), and 827.071(2), Florida Statutes (1987). The state seeks the issuance of a writ of certiorari quashing the trial court's order compelling the three minor children to undergo a psychological evaluation. We grant certiorari and quash the trial court's order because the order constitutes a violation of clearly established principles of law resulting in a miscarriage of justice. See State v. Pettis, 520 So.2d 250 (Fla.1988).

Pursuant to a dependency proceeding, apart from the instant cause, a trial court had ordered that the three children, their mother, her boyfriend, and the respondent be evaluated by a child psychologist. That psychologist conducted evaluations of these individuals in December 1987 and January and February 1988. His findings were detailed in nine written reports, all of which were provided to the respondent.

As to the offenses alleged to have occurred on July 4, 1987, the psychologist concluded that all three children's descriptions of the events were similar. C.A. displayed symptoms consistent with sexual victimization and appeared to be a seriously affected sexual abuse victim. B.L.B. provided a detailed history of sexual victimization by the respondent, dating back three years including acts occurring with his siblings. A.L.B. appeared to fear the respondent and manifested symptoms consistent with sexual abuse. The psychologist concluded that the alleged sexual abuse had actually occurred.

Additionally, as part of the state's investigation of the charges stemming from the July fourth incident, interviews were conducted at the Children's Center, a branch of the State Attorney's office. The state thereafter provided the respondent with access to videotaped interviews of each child. Also, written reports of the Children's Center interviews were furnished to the respondent. ¹ The respondent moved to compel that each victim submit to psychological evaluation by a doctor of respondent's choice. That doctor was not in fact a child psychologist. The trial judge granted respondent's motion, reasoning that if the state was calling the prior court-appointed psychologist to testify that the children manifested sexual abuse symptoms, this was a compelling reason to provide the respondent with a similar opportunity. The trial court ruled that the sole purpose of the defense examination would be to determine whether the children manifested symptoms of sexual abuse.

The state moved for rehearing and proposed that the court hear testimony from two child psychologists and the guardian ad litem concerning the harm which might follow compelling the children to undergo these additional evaluations. The examining child psychologist testified that additional examination would force the children to reexperience the trauma two years after the alleged incident and thus hamper their therapy. The psychologist analogized re-examining the child victims to "an individual who had surgery and this would be reopening the wounds, re-breaking the healed fractures...." The state proffered that the guardian ad litem would also testify that further examinations were not in the children's best interest. This evidence concerning the detriment to the children was uncontroverted.

The trial court ruled that the respondent would be deprived due process if denied the right to have his psychologist examine each victim. We disagree. Before the denial of a psychological examination can rise to the level of a due process violation, there must be strong and compelling evidence of the victim's mental or emotional instability. See Dinkins v. State, 244 So.2d 148, 150 (Fla. 4th DCA 1971). Absent such evidence, a court should not subject the victim to examination. The court, in Dinkins, expressly discouraged trial courts ordering psychiatric examinations of complaining witnesses, limiting the practice to "the most extreme instances." Id.

In State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988), the defendant...