State v. Newman

• Decision Date: 17 October 1989
• Docket Number: No. 10848,10848
• Citation: 784 P.2d 1006,1989 NMCA 86,109 N.M. 263
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James NEWMAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1006

784 P.2d 1006

109 N.M. 263

STATE of New Mexico, Plaintiff-Appellee, v. James NEWMAN, Defendant-Appellant.

No. 10848.

Court of Appeals of New Mexico.

Oct. 17, 1989.

Certiorari Denied Dec. 21, 1989.

[109 NM 264] Hal Stratton, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

DONNELLY, Judge.

Defendant appeals his convictions of two counts of criminal sexual contact of a child under thirteen, contrary to NMSA 1978, Section 30-9-13(A)(1) (Repl.Pamp.1984). Five issues are raised on appeal: (1) whether the trial court erred in allowing the child's therapist to testify as an expert witness; (2) whether defendant received effective assistance of counsel; (3) claim of unauthorized contact between the trial judge's secretary and the jury; (4) whether there was sufficient evidence to support defendant's convictions; and (5) whether defendant was denied due process of law. An additional issue, asserting that the trial court erred in failing to declare a mistrial sua sponte, was not raised below, or addressed in the docketing statement or memorandum in opposition to summary affirmance and thus has not been properly preserved on appeal. See State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980) (where issue not raised in docketing statement, it may not be raised for the first time in brief in chief unless pursuant to recognized exceptions). See also State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct.App.1983).

Defendant's twelve-year-old daughter lived with him during the summer of 1985. At the end of the summer the child requested and was permitted to remain with her father in Albuquerque during the 1985-86 school year. In June 1986 the child went to live with her stepmother in El Paso, Texas, where, on October 13, 1986, she reported that defendant had sexually molested her during the summer of 1985. The child's stepmother after being told of defendant's actions, immediately took the child to see Jean Kiddney, a therapist experienced in counseling victims of sexual abuse with the El Paso Guidance Center. In December 1986 the child was interviewed in El Paso by a New Mexico police officer and gave a statement implicating defendant. The child told the officer that she had reported the incident to Frances Hubbard, her paternal grandmother, shortly after the occurrence and that she had also reported the occurrence to an Albuquerque schoolmate, D.W., in January 1986. Defendant was indicted by the grand jury on May 6, 1987, and following a jury trial was convicted of the charges which are appealed herein.

I. Qualifications and Testimony of the State's Expert Witness.

The state gave notice that it would call Jean Kiddney, a counselor and therapist at the El Paso Guidance Center, to testify at trial. Following the child's report to her stepmother of the alleged sexual abuse, Kiddney interviewed the child and provided psychological counseling.

Defendant moved to preclude the state from calling Kiddney as an expert witness, arguing that Kiddney was not qualified to testify as a counselor or child therapist. The court reserved ruling on the issue until it had an opportunity to hear the witness testify as to her credentials.

At trial defendant questioned the witness on voir dire concerning her qualifications as a child therapist. On voir dire Kiddney testified that she was not required to undergo any board examination or certification procedure to practice as a therapist in the state of Texas, held no certification in any state, and had never been qualified to testify in any court of any jurisdiction although she had testified at administrative hearings. Her academic credentials include a bachelor's degree in sociology and a master's degree in guidance and counseling, and she had worked one year as an investigator for the Texas Department of Human Services followed by approximately four years as a counselor and therapist in sexual abuse and other cases. Kiddney administered no clinical or other tests to the child.

At the conclusion of voir dire, defendant renewed his objection to Kiddney's being allowed to offer opinions in the areas permitted by the court. Defendant argued that the witness was not qualified as an expert counselor, therapist, or psychologist and that the probative value, if any, of the witness's testimony was outweighed by its prejudicial effect. The trial court sustained defendant's motion in part, ruling that the witness would not be permitted to testify as to her belief concerning whether the child was truthful about the alleged sexual incident or whether the child's condition was caused by sexual abuse. However, the trial court held that the witness could state her opinion concerning whether the child's behavior was consistent with that of a sexually abused child. Defendant sought and was granted a continuing objection to any testimony by the witness describing her observations while treating the child, or whether these observations were consistent with the witness's experience, knowledge, and education concerning child abuse victims.

Defendant contends that Kiddney was not qualified by education or experience to testify concerning behavioral patterns of sexually abused children or that the child in question had exhibited behavior consistent with that of a sexually abused child. Defendant argues that the witness's testimony concerning the behavorial patterns of sexually abused children and whether the child's behavior was consistent with such patterns was tantamount to offering a medical diagnosis and that since the witness was not qualified as a psychologist or a psychiatrist, it was error to permit such testimony.

It is the responsibility of the trial court to determine whether a witness is qualified to testify as an expert. State v. Garcia, 76 N.M. 171, 413 P.2d 210 (1966); State v. Chavez, 100 N.M. 730, 676 P.2d 257 (Ct.App.1983). Absent a showing of abuse, the trial court's discretion will not be overturned on appeal. Id. The applicable rule is SCRA 1986, 11-702, which states,

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.

Under Rule 11-702, a prerequisite to permitting a witness to testify as an expert is a showing (1) that the proffered witness has sufficient qualifications to be considered an expert in some specialized knowledge and (2) that the specialized knowledge of the witness will assist the jury in determining a fact or issue in the case. See 3 J. Weinstein & M. Berger, Weinstein's Evidence p 702, at 702-18 to 702-20 (1988).

Testimony concerning the general characteristics of sexually abused children is not limited to testimony from a psychologist or psychiatrist. See, e.g., Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986) (expert with bachelor's in special education, master's in school psychology, and three-and-one-half years experience as a school counselor with twenty-five to fifty child abuse cases permitted to testify concerning child abuse in general); Wheat v. State, 527 A.2d 269 (Del.1987) (witness with master's degree in clinical work and experience as child abuse specialist for Congress and with experience in treating or counseling approximately seventy-five sexually abused children permitted to testify as expert in field of intrafamily sexual abuse). Under the record herein, Kiddney's training, education, and experience were sufficient to allow her to testify on the general characteristics observed in child abuse victims. Accordingly, the trial court did not abuse its discretion in accepting her as an expert in this area.

Defendant also argues that Kiddney's testimony was more prejudicial than probative and that it was used by the state to convince the jury of the truthfulness of the child. To support this contention, defendant relies primarily on cases in which the testimony under review concerned the behavioral patterns of post traumatic stress disorder (PTSD) and rape trauma syndrome (RTS).¹ Although the terms RTS and PTSD were never used in the instant case, defendant claims that Kiddney's testimony was analogous to the expert testimony given in those cases, and he points out that New Mexico has previously upheld a trial court's preclusion of this type of testimony. See State v. Bowman, 104 N.M. 19, 715 P.2d 467 (Ct.App.1986) (no abuse of discretion in excluding PTSD and RTS testimony by psychologist where rape could not be identified as the specific stress factor causing the victim's symptoms).

Bowman does not, however, require that Kiddney's testimony be excluded. Bowman assumed, but did not decide, that PTSD or RTS testimony was admissible. In the instant case, the question before the court is not whether RTS and PTSD testimony was admissible but whether the testimony presented by Kiddney relating to the nature of the reaction of a child victim of sexual abuse was admissible. Kiddney's testimony described the child's on-going behavior, including aggression, problems with academic studies and relationships, and lengthy delay in reporting the incident, which she indicated were frequently exhibited by child victims of sexual molestation.

As observed in State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986), "[d]eciding whether expert testimony will aid the jury and balancing the usefulness of expert testimony against the danger of unfair prejudice are generally fact-bound inquiries uniquely within the competence of the trial court." [Citations omitted.] In People v. Bledsoe, 36 Cal.3d 236, 247-48, 681 P.2d 291, 298, 203 Cal.Rptr. 450, 457 (1984), the court observed that expert testimony in child abuse cases plays a "useful role by disabusing the...