State v. McCoy
| Decision Date | 23 February 1988 |
| Docket Number | No. 17487,17487 |
| Citation | 366 S.E.2d 731,179 W.Va. 223 |
| Parties | STATE of West Virginia v. Virgil McCOY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Expert testimony that helps the jury to understand the evidence or determine a fact in issue is admissible under West Virginia Rule of Evidence 702.
2. Qualified expert testimony regarding rape trauma syndrome is relevant and admissible in a prosecution for rape where the defense is consent. The expert may testify that the alleged victim exhibits behavior consistent with rape trauma syndrome, but the expert may not give an opinion, expressly or implicitly, as to whether or not the alleged victim was raped.
Silas B. Taylor, Dist. Atty. Gen., Charleston, for State.
R. Lee Booten, II, Huntington, for McCoy.
Virgil McCoy appeals his May 2, 1985, conviction of second degree sexual assault, W.Va.Code § 61-8B-4 (1984), following a jury trial in Cabell County. Because we find that the lower court erred in admitting certain expert testimony, we reverse and remand for a new trial. 1
On September 10, 1984, Virgil McCoy was drinking beer with his brother and cousin at a tavern on the west side of Huntington. While he was there, Anneta Dawn Booth, the alleged victim in this case, entered with a friend, Patsy Jean Roy. McCoy and Booth knew one another through Booth's friendship with McCoy's wife, who at that time was separated from McCoy. After the five drank a round of beer, the two women left to go to a second tavern, the Valhalla. McCoy and his companions joined Booth and Roy there.
Booth agreed to give McCoy a ride home, and Booth, McCoy, and Roy left the Valhalla at approximately 4:00 a.m. on September 11, 1984. After dropping Roy off at her apartment, Booth drove to a nearby car wash, where she did figure eights around the vacuum pumps. Then, either McCoy or Booth put the car in park, and Booth and McCoy talked and kissed. McCoy testified that this was a voluntary act. Booth testified, however, that McCoy forced himself on her despite her complaints and continued directions to stop. McCoy eventually stopped and apologized, and Booth took him to his residence. Booth then went home.
At approximately 9:30 a.m. on September 11, 1984, McCoy knocked at Booth's door and invited himself in for coffee. Booth was wearing a short wrap-around robe. After McCoy finished his coffee, he and Booth went into the bedroom and engaged in sexual intercourse, with Booth in the top position. At trial McCoy denied that he used force during the act and testified that Booth did not ask him to stop. Booth, however, testified that McCoy pulled her into the bedroom, pushed her down on the bed, removed her clothes, then flipped her on top of him and forced her to have intercourse. Booth testified that she screamed and begged him to stop, but did not bite him and did not recall leaving any scratch marks on him.
After McCoy left her home, Booth testified that she showered and went to her sister's (Monica Booth's) residence. Monica Booth testified that her sister's face was swollen and bruised. Monica Booth also testified that she observed red marks on Booth's breasts. Booth did not relate to her sister what had happened.
Later that day, at approximately 6:00 p.m., Booth told a friend, Roger Johnson, that she had been sexually assaulted by McCoy. Then at approximately 12:30 a.m. on September 12, 1984, Booth told her boyfriend, Ronnie Grobe, of the incident. Grobe, a police officer, persuaded Booth to tell the police, and at approximately 3:00 a.m. on September 12, 1984, Booth filed a report with the Huntington Police Department. Booth was interviewed by Detective Darrell Black, who testified that he observed abrasions on Booth's lower lip and small bruises under her left ear. Detective Black also testified that Booth appeared very emotional and very upset. On November 19, 1984, the Cabell County Grand Jury returned an indictment against Virgil McCoy charging him with Second Degree Sexual Assault, W.Va.Code § 61-8B-4 (1984).
The trial began on April 24, 1985. On the second day of the trial, the prosecution called Lauren McKeown as an expert witness. After hearing her qualifications, the trial court granted the prosecution's motion that McKeown be qualified as an expert to give an opinion "as to the victim's reactions subsequent to the alleged assault." McKeown testified about common behavior of rape victims, and gave her opinion about whether Booth's actions after the incident conformed with typical post-rape behavior.
McCoy argues first that the lower court erred in finding that McKeown was qualified as an expert to testify about the behavior of rape victims. Rule 702 of the West Virginia Rules of Evidence governs testimony by experts. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
McKeown was, at the time of trial, assistant director of the Branches Domestic Violence Shelter in Huntington, West Virginia, a shelter for battered women and children. She was also co-founder and coordinator of the Rape Crisis Counseling Team, which assists sexual assault victims. McKeown held a bachelor's degree in sociology and a master's degree in community agency counseling. She had received training in rape crisis counseling and had worked previously for the Rape Victim Companion Program in Winchester, Virginia, and with the Women's Center at Marshall University in Huntington, West Virginia, dealing with sexual assault victims. She had attended conferences on the subject and read current literature. She had experience with over one hundred cases of sexual assault or sexual abuse. We find that McKeown had sufficient knowledge, training, and experience to qualify under Rule 702 as an expert in the rape counseling area and that the trial court did not err in so ruling.
Over the objections of McCoy's lawyer, McKeown testified about Booth's behavior subsequent to the alleged assault. McKeown concluded that Booth's behavior subsequent to the alleged assault, including her delay in telling anyone and the taking of several showers after the incident, were in conformity with that of someone who had been sexually assaulted. McKeown concluded further that Booth was "still traumatized by this experience."2
We have not had an occasion to consider the admissibility of expert testimony on post-rape behavior. Such behavior is often referred to as "rape trauma syndrome," a term coined in 1974 to describe certain physical and emotional symptoms experienced by rape victims. See Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J. Psychiatry 981 (1974). 3 Burgess and Holmstrom describe rape trauma syndrome as an acute stress reaction to a life-threatening situation, usually occurring as a two-phase reaction. During the first phase, the acute phase, the victim experiences a great deal of disorganization in her life-style. The acute phase is characterized by certain physical and emotional reactions, including fear, humiliation, anger, revenge, and self-blame. The acute phase is followed by the "long-term process" or "reorganization phase," characterized by tendencies to change residences and telephone numbers and to turn to family members for support. 4
In her testimony describing behavior characteristic of sexual assault victims, McKeown did not use the term "rape trauma syndrome" or discuss it as described by Burgess and Holmstrom. We, however, realize that admissibility of expert testimony on post-rape behavior should not necessarily turn on whether or not the expert uses the term "rape trauma syndrome." See State v. Black, 109 Wash.2d 336, 745 P.2d 12 (1987); State v. Huey, 145 Ariz. 59, 699 P.2d 1290, 1294 (1985).
Courts that have considered the issue disagree as to the admissibility of expert testimony on rape trauma syndrome or on post-rape behavior generally in a rape prosecution where consent is the issue. One of the first courts to consider this issue was the Supreme Court of Kansas in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). The defendant in Marks argued that such testimony should be per se inadmissible where consent is the issue because it invades the province of the jury. Id. 647 P.2d at 1299. The Marks court reasoned that rape trauma syndrome testimony did not invade the province of the jury because it was "merely offered as any other evidence, with the expert subject to cross-examination and the jury left to determine its weight." Id. The Marks court, therefore, concluded that "[w]hen consent is the defense in a prosecution for rape qualified expert psychiatric testimony regarding the existence of 'rape trauma syndrome' is relevant and admissible." Id. at syl. pt. 8. 5
Questioning the scientific reliability of rape trauma syndrome, in State v. saldana, 324 N.W.2d 227 (Minn.1982), the Supreme Court of Minnesota held that expert testimony concerning post-rape behavior was inadmissible. The Saldana court stated, "[t]he scientific evaluation of rape trauma syndrome has not reached a level of reliability that surpasses the quality of common sense evaluation present in jury deliberation." Id. at 230. 6 The Saldana court also found that the lower court had erred in admitting the expert's conclusion that the complainant had been raped. The Minnesota court stated that to be admissible, expert testimony must be helpful to the jury. The Saldana court concluded that the expert's conclusion that the complainant had been raped was not helpful to the jury "[b]ecause the jurors were equally capable of considering the evidence and determining whether a rape occurred." Id. at 231.
Similarly, in State v. Taylor, 663 S.W.2d 235 (Mo.1984), the Supreme Court of Missouri excluded testimony...
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