State v. Malarney, s. 91-1003 and 91-1127

• Decision Date: 07 April 1993
• Docket Number: Nos. 91-1003 and 91-1127,s. 91-1003 and 91-1127
• Citation: 617 So.2d 739
• Parties: 18 Fla. L. Week. D906 STATE of Florida, Appellant/Appellee, v. John MALARNEY, Appellee/Appellant.
• Court: Florida District Court of Appeals

Page 739

617 So.2d 739

18 Fla. L. Week. D906

STATE of Florida, Appellant/Appellee, v. John MALARNEY, Appellee/Appellant.

Nos. 91-1003 and 91-1127.

District Court of Appeal of Florida,

Fourth District.

April 7, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, Melynda L. Melear and Melvina Flaherty, Asst. Attys. Gen., West Palm Beach, for the State of Fla.

Jack A. Fleischman, Palm Beach, for John Malarney.

PER CURIAM.

We reverse Malarney's conviction and remand for a new trial. On his appeal, defendant has raised six issues dealing with the exclusion or admission of evidence. We agree with him as to two separate categories.

The exclusion of the testimony of several witnesses from Texas was error. The proposed testimony about procedures used in Texas regarding the investigation of sexual abuse complaints was directly relevant and was in rebuttal of direct testimony given by the alleged victim as to a previous 1985 abuse complaint in Texas. Similarly, the proffered testimony from the witnesses in Texas as to the victim's relationship with her family was also directly relevant and in response to testimony from the alleged victim. There was no basis to exclude the evidence.

We also reverse because of the exclusion of defendant's expert psychological testimony. His psychologist would have testified that the techniques used in interviewing the alleged victim were unreasonably suggestive and that the victim's "affect" was inconsistent with sexual abuse. A critical issue was the credibility of the complaining witness. The defense should be allowed broad leeway in offering contrary evidence on the subject of an alleged victim's credibility. While it might not be proper for the state to bolster its case in chief with psychological expert testimony to the effect that the victim's story is psychologically credible or believable, see Glendening v. State, 536 So.2d 212 (Fla.1988), it is not necessarily equally improper for a defendant to show that the interviewing techniques and procedures of the abuse treatment experts played a role in planting a story into a young, impressionable child's mind.

The reversal of defendant's conviction renders moot the state's appeal on the sentencing issue.

REVERSED AND REMANDED FOR NEW TRIAL.

WARNER and FARMER, JJ., concur.

FARMER, J., specially concurs with opinion.

DIMITROULEAS, WILLIAM P., Associate Judge, specially concurs and dissents with opinion.

FARMER, Judge, specially concurring.

I agree with the court's disposition and write only to respond to Judge Dimitrouleas's comments on the sentencing issue. The state raised no objection at the sentencing hearing to the reduction from the capital charge to the life felony charge. It failed to object because it did not even bother to attend the sentencing hearing. I do not believe that the state should be allowed, any more than a defendant is, to voluntarily absent itself from a hearing and later be heard to object to something that occurred at the hearing--especially if a timely objection might have avoided the error. I regard this circumstance as the functional equivalent of a waiver.

DIMITROULEAS, WILLIAM P., Associate Judge, concurring and dissenting.

I concur in the reversal of appellant's conviction for sexual battery upon a child under the age of twelve. However, I would also hold that the trial court's reduction of the charge to a life felony was improper, and I would remand this cause for a new trial on the original capital sexual battery charge.

I agree that the exclusion of the Texas defense witness testimony was error. See Sec. 90.803(10), Fla.Stat. (1989); Terranova v. State, 474 So.2d 1206 (Fla. 2d DCA 1985); Williams v. State, 406 So.2d 86 (Fla. 1st DCA 1981); Jones v. State, 577 So.2d 606 (Fla. 4th DCA 1991).

However, I can not agree that the trial court erred in excluding testimony of the defense psychologist. In the proffered testimony, the defense psychologist testified that, in his opinion, the interviewing process and procedures utilized with the victim in this investigation were flawed. Additionally, the psychologist testified that the child's affect was not consistent with that of a victim of sexual abuse.

In Weatherford v. State, 561 So.2d 629 (Fla. 1st DCA 1990), the court held that an expert in the field of investigation and interviewing allegedly sexually abused children should not have been allowed to testify because he was, in effect, performing a test of credibility not unlike that of a polygraph examination, and since cross-examination can perform the same function, it was held to be error to allow him to testify for the state. Where the testimony of an expert is not beyond the common understanding of the average layman, it is not an abuse of discretion to exclude that testimony. See Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987); Sea Fresh Frozen Products, Inc. v. Abdin, 411 So.2d 218 (Fla. 5th DCA), rev. denied, 419 So.2d 1195 (1982). In Way v. State, 496 So.2d 126 (Fla.1986), it was held that the trial court did not err in excluding a defense expert's testimony about a person's emotional reaction at a crime scene. The subject of that testimony was not beyond the understanding of the average person. Furthermore, it has been held that a general critique of proper police practice is not proper if it presents no probative evidence of guilt or innocence. See Huff v. State, 495 So.2d 145 (Fla.1986). The trial court certainly has broad direction concerning the admissibility of expert opinion evidence, and absent a showing of an abuse of discretion, that ruling should not be disturbed on appeal. Jent v. State, 408 So.2d 1024 (Fla.1981). I would find that no such showing has occurred here.

Regarding the second aspect of the excluded expert testimony, in Glendening v. State, 536 So.2d 212 (Fla.1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989), the supreme court held it was proper for an expert to express an opinion as to whether a child had been the victim of abuse. However, it is improper for the expert to go on and say that the defendant was the person who did the abusing. In Tingle v. State, 536 So.2d 202 (Fla.1988), the supreme court allowed that some expert testimony may be helpful to the jury, but that putting an expert's stamp of truthfulness on a witness' story goes too far; it invades the province of the jury. See Rowles v. State, 613 So.2d 1335 (Fla. 2d DCA 1993). The ultimate conclusion as to the victim's credibility always lies with the jury, and an expert can not impermissibly intrude into that jury function. Page v. Zordan, 564 So.2d 500 (Fla. 2d DCA 1990); Rhue v. State, 603 So.2d 613 (Fla. 2d DCA 1992). State expert testimony, that the victim's behavior is consistent with that of a sexually abused child has been held admissible. Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. denied, 529 So.2d 693 (Fla.1988); Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988); Brown v. State, 523 So.2d 729 (Fla. 1st DCA 1988). Here, Malarney contends that the defense expert's testimony that the victim's behavior is inconsistent with that of a sexually abused child should be equally admissible. However, that defense expert's conclusion of inconsistency goes to the heart of the issue being tried, and it means that the expert is saying that, in his opinion, the victim was not abused and, therefore, the defendant is not guilty. A witness should not be allowed to offer an opinion as to the guilt or innocence of an accused person. See Spradley v. State, 442 So.2d 1039 (Fla. 2d DCA 1983); Farley v. State, 324 So.2d 662 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976); Turtle v. State, 600 So.2d 1214 (Fla. 1st DCA 1992). We should not hold that a trial court abuses its discretion when it excludes that type of testimony. Here, we do not have a situation where the state utilized expert psychological testimony in their case-in-chief, and then the defense sought to rebut that testimony. In that situation, fairness would demand that the defense be allowed to rebut the testimony of a state expert. See e.g., State v. Rhone, 566 So.2d 1367 (Fla. 4th DCA 1990), but see Wyatt v. State, 578 So.2d 811 (Fla. 3d DCA), rev. denied, 587 So.2d 1331 (Fla.1991). Where the state utilizes expert psychological testimony to explain characteristics of sexually abused children, it would be an abuse of discretion to deny the defendant the same opportunity in rebuttal. However, that did not happen in this case, and it cannot be said that the trial court abused its discretion in deciding to exclude the expert's opinion that the victim's actions were inconsistent with that of an abused child. Although it has already been decided that this whole type of testimony is the proper subject matter of expert testimony, perhaps that issue should be revisited. Normally, the admissibility of evidence relating to a relatively new scientific or medical test lies largely within the discretion of the trial court. See Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984). For example, expert testimony regarding the reliability of eyewitness identification evidence can be disallowed. See Johnson v. State, 438 So.2d 774 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984). Perhaps the supreme court should revisit the Glendening opinion to see if this type of testimony satisfies the requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), see Flanagan v. State, 586 So.2d 1085, 1108 (Fla. 1st DCA 1991) (Judge Ervin dissenting); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992). In any...