State v. Lucero

• Decision Date: 28 October 1993
• Docket Number: No. 21054,21054
• Citation: 863 P.2d 1071,116 N.M. 450,1993 NMSC 64
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Bernie A. LUCERO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1071

863 P.2d 1071

116 N.M. 450

STATE of New Mexico, Plaintiff-Appellee, v. Bernie A. LUCERO, Defendant-Appellant.

No. 21054.

Supreme Court of New Mexico.

Oct. 28, 1993.

[116 N.M. 451] Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for appellee.

Sena & Couleur, P.C., Douglas Couleur, Santa Fe, for appellant.

OPINION

FROST, Justice.

In this opinion, we again address the subject of the admissibility of expert opinion testimony regarding post traumatic stress disorder (PTSD) pertaining to victims of sexual abuse. We accepted certification of this case from the Court of Appeals to review the defendant's appeal in light of our recent opinion in State v. Alberico, 116 N.M. 151, 861 P.2d 192 (1993). In this opinion, we have the opportunity to expound on the limitations of the admissibility of PTSD testimony that we outlined in Alberico. The defendant complains of other errors, but there is no need to address them because we reverse on the issue of the admission of improper expert testimony and remand for further proceedings consistent with this opinion.

FACTS

Bernie Lucero was convicted of five counts of criminal sexual contact of a minor. The alleged victim was his niece who was less than twelve years old at the time of the alleged abuse.

At trial, the State introduced the testimony of a clinical psychologist, Dr. Barbara Lenssen. Dr. Lenssen stated that she evaluated the complainant at the request of the district attorney's office to determine her competency. Lenssen's qualifications were not challenged.

Dr. Lenssen testified at trial that she first met with the complainant's parents and then interviewed the complainant twice, spending a total of about four hours with her. She also met with the complainant's therapist and viewed a videotaped interview of the complainant by an investigator from the district attorney's office. Dr. Lenssen testified that she diagnosed the complainant as suffering from post traumatic stress syndrome (PTSS).¹ She noted that the symptoms which she observed in the complainant fit very accurately into what the manual requires for a diagnosis of PTSS.² Dr. Lenssen stated that many of the complainant's symptoms were consistent with those in children who have been sexually abused. She also testified that the cause of the complainant's PTSS was the sexual molestation that she had been undergoing.

During her testimony at trial, Dr. Lenssen recounted several statements regarding sex abuse that the complainant had made to her during her evaluation to the effect that her uncle had "done it to her." For example, Dr. Lenssen testified that the complainant told her that the defendant "put his thing on my vagina ... almost every day." Dr. Lenssen also repeated the complainant's answer to a fill-in-the-blank question. During one interview, she asked the complainant to complete this sentence: "What really bothers me is ______;" Dr. Lenssen testified that her response was, "What my uncle did to me."

Dr. Lenssen also commented directly on the complainant's credibility. For example, she testified that the complainant "was consistent in saying that it was her uncle" and was consistent in referring to the rooms in which she was subjected to sexual abuse. Dr. Lenssen also commented on the complainant's demeanor, which she said changed when talking about the sex abuse that she endured. She stated that if the complainant were not telling the truth, she probably would have reacted differently than she did.

Trial counsel did not object to Dr. Lenssen's testimony except on hearsay grounds as to some of the complainant's statements that she repeated. Counsel did file a motion in limine, however, objecting specifically to Dr. Lenssen's testimony that the complainant had told her that she had been penetrated by Lucero. The trial judge apparently was concerned about whether Lenssen was reporting what the complainant had said, which might have been admissible as a hearsay exception, or whether she had drawn that conclusion based upon her evaluation, which troubled the trial judge. In any event, Lucero's appellate counsel concedes that his trial counsel did not pursue this objection, nor did he seek a definitive ruling on the motion in limine.

ISSUES

Lucero raises several issues on appeal. In addition to contesting the admission of Dr. Lenssen's testimony regarding PTSS, Lucero raises the issues of ineffective assistance of counsel, prosecutorial misconduct, newly discovered evidence warranting a new trial, the admission of improper impeachment evidence, and prejudice as a result of amending the indictment during the trial to conform with the evidence. In light of our reversal on the issue of the improper expert testimony, it is unnecessary to address these other errors about which Lucero complains.

DISCUSSION

Lucero argues that although his trial counsel failed to make a precise objection to Dr. Lenssen's expert testimony, the trial judge was alerted to the issue of the validity of PTSS testimony and erred in admitting it. The State argues that this issue was not preserved and should not be addressed on appeal. Lucero counters that even if the error was not preserved by a proper objection below, the admission of Lenssen's testimony constitutes fundamental or plain error.

Preservation of Error

The precise nature of the defense's objection at trial to Dr. Lenssen's testimony is unclear to us, but we can infer from the record that the objection was aimed at Lenssen's repetition of the complainant's statement that Lucero had penetrated her. The basis for this objection was that the crime charged was sexual contact, not rape. Thus, the defense's objection was based on relevancy grounds. The trial judge was not worried about relevancy because penetration would have been probative of sexual contact. The judge was concerned about whether Dr. Lenssen was "leaping from certain things to certain conclusions" or whether she was merely repeating a statement that the complainant made during the psychological evaluation, which might have been admissible under SCRA 1986, 11-803(D).

While the unclear record may be the result of imprecision by the trial judge, it is the responsibility of counsel at trial to elicit a definitive ruling on an objection from the court. It is also trial counsel's duty to state the objections so that the trial court may rule intelligently on them and so that an appellate court does not have to guess at what was and what was not an issue at trial. See State v. Casteneda, 97 N.M. 670, 674, 642 P.2d 1129, 1133 (Ct.App.1982). We conclude that trial counsel did not lodge an objection about the validity of Dr. Lenssen's testimony regarding her PTSS diagnosis. He only objected to a specific portion of her testimony. Thus, the issue concerning the validity of her testimony and diagnosis was not preserved for appeal. We will, however, review the admission of her testimony as plain error.

Fundamental and Plain Error

"Even if the defendant did not raise proper objections at trial, he may be entitled to relief if the errors of which he complains on appeal constituted plain error, Rule 11-103(D), or fundamental error, SCRA 1986, 12-216(B)(2). In either case, we must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict." State v. Barraza, 110 N.M. 45, 49, 791 P.2d 799, 803 (Ct.App.), cert. denied, 109 N.M. 704, 789 P.2d 1271 (1990). "The rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done." State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992). "The doctrine of fundamental error is to be applied only under exceptional circumstances and solely to prevent a miscarriage of justice." State v. Clark, 108 N.M. 288, 297, 772 P.2d 322, 331, cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989). "The doctrine of fundamental error is to be resorted to in criminal cases only for the protection of those whose innocence appears indisputably, or open to such question that it would shock the conscience to permit the conviction to stand." State v. Rodriguez, 81 N.M. 503, 505, 469 P.2d 148, 150 (1970).

The predicate for review on the basis of plain error is less stringent than for fundamental error. Unlike the situation in the case of fundamental error, to find plain error we need not determine that there has been a miscarriage of justice or a conviction in which the defendant's guilt is so doubtful that it would shock the conscience of the court to allow it to stand. Plain error, however, applies only to evidentiary matters. To establish plain error, the error complained of must have affected "substantial rights although [the plain errors] were not brought to the attention of the judge." SCRA 1986, 11-103(D). In State v. Hennessy, 114 N.M. 283, 837 P.2d 1366 (Ct.App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992), the Court of Appeals recently commented that

the supreme court has taken the position that plain error applies only to errors in evidentiary rulings of the trial court. See [State v.] Isiah, 109 N.M. at 23, 781 P.2d at 295 n. 1 [ (1989) ], see also State v. Wall, 94 N.M. 169, 171, 608 P.2d 145, 147 (1980). We are concerned with this interpretation of the plain error rule because we believe that the very point of the rule is to permit review of grave errors in the admission of evidence which have not been the subject of a ruling by the trial court because no objection was made at trial.

Id., 114 N.M. at 286-87, 837 P.2d at 1369-70 (emphasis in original). The Court in Hennessy was correct in its analysis of the purpose of the plain error doctrine in Rule 103(D), but its interpretation of this Court's "position that plain error applies only to errors in evidentiary rulings " is too restrictive....