State v. Sloan

• Decision Date: 24 October 1995
• Docket Number: No. 66753,66753
• Citation: 912 S.W.2d 592
• Parties: STATE of Missouri, Respondent, v. Rodney SLOAN, Appellant.
• Court: Missouri Court of Appeals

Page 592

912 S.W.2d 592

STATE of Missouri, Respondent, v. Rodney SLOAN, Appellant.

No. 66753.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 24, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 11, 1995.

Application to Transfer Denied

Jan. 23, 1996.

Bante & Bante, P.C., Sharon M. Bante, Hillboro, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Cheryl Caponegro, Assistant Attorney General, Jefferson City, for Respondent.

PER CURIAM.

Defendant appeals convictions by a jury of one count of sexual abuse in the first degree and two counts of sodomy. He was sentenced in accordance with the jury's assessment to concurrent terms of five years on all three counts.

At trial, mother testified her daughter, A.D., was six years old on February 13, 1993, the date of the alleged sexual abuse. She testified that on Friday, February 12, 1993, she dropped A.D. off at her grandmother's house where A.D. was to spend the weekend. On February 14, 1993, A.D.'s Aunt Anita informed the child's mother by telephone that something was wrong. Mother then spoke with A.D. on the phone. She concluded A.D. had been sexually abused by defendant. ¹

Pam Warren, an employee of the Division of Family Services, testified she received a hot-line call from the mother. Warren had "in-house training" and "previous experience" as an investigator for "the hot line unit to make sure that children were protected." On February 18, 1993, Warren and Detective Timothy Betz of the Jefferson County Sheriff's Department, interviewed A.D. at her grade school. Mother was also at the school. The interview with A.D. was not recorded.

Warren testified A.D. had volunteered defendant's name as the person who had sexually abused her:

[S]he had been at her Aunt Evelyn's house and that her Aunt Evelyn had allowed her to go and get in bed with [defendant], and then her Aunt Evelyn had left the house. She had laid on [defendant's] chest while [defendant] was laying in bed. Then [A.D.] told me that she had been-- had touched [defendant's] wiener and that [defendant] had placed her on his wiener.

* * * * * *

[A.D.] stated that he'd also placed his finger in her punkie, as she referred to it, and moved it around.

On direct examination, Detective Betz testified he had training and experience in law enforcement. He had "child abuse and other police-related training." He interviewed A.D. a second time on March 9, 1993. A.D.'s mother was present. The interview was recorded using audiotape. A.D. essentially repeated the facts from the previous interview.

A.D.'s testimony at trial was consistent with the statements of mother, Detective Betz and Warren. A.D. testified that on the day of the alleged sexual abuse, while she was sleeping, Aunt Evelyn asked if she wanted to lay down with defendant. A.D. said she did. She was taken by her aunt to defendant's bedroom. Her aunt then left the house. Once A.D. was on the bed, defendant pulled her onto his chest and removed her pants and undergarments. A.D. testified defendant then touched her "punkie" (her vaginal area) with his hand. After moving his hand back and forth across A.D.'s vaginal area, defendant inserted one finger. A.D. also testified defendant put his "private" in her "private" and moved her up and down. Then defendant left the room; A.D. pulled up her underpants and tights and went into the living room and watched television with defendant. Defendant's mother then came to the house with defendant's son. Defendant's son and A.D. played Nintendo.

A.D.'s Aunt Evelyn, defendant's mother, A.D.'s grandmother, Dr. David Stansfield and defendant testified in defense of the charges. Aunt Evelyn testified she picked her niece up at school on Friday, February 12, 1993, which was her usual practice. Approximately, 8:00 a.m. Saturday morning, Aunt Evelyn told A.D. she had to step out for a short time. A.D. wanted to go along, but Aunt Evelyn said no and told her she could lay down with defendant until she returned. Aunt Evelyn returned at approximately 10:00 a.m. A.D. was playing video games with defendant's son.

Defendant's mother testified she dropped defendant's son off with defendant Saturday morning. She telephoned defendant at approximately 9:30 a.m. and arrived at his residence at approximately 9:45. When she entered the house, defendant and A.D. were watching television.

Defendant denied sexually abusing A.D. A.D.'s grandmother testified she examined her genital area on Sunday, February 14, 1993, after A.D. told her it was hurting. Grandmother stated A.D. looked like she had "a urinary tract infection." She noted it was "red, a little swollen, not much, but she'd been rubbing herself a lot." Dr. Stansfield testified he examined A.D. on February 17, 1993, and found no physical signs of sexual abuse.

On appeal, defendant contends the trial court erred in not allowing Dr. Ann Duncan to testify as an expert because the proffered testimony would have been proper evidence of a scientific and specialized nature outside the realm of common experience and knowledge. Defendant argues he sought Dr. Duncan's testimony for the purpose of analyzing:

... the techniques employed by those individuals responsible for the investigation, since both had been held out to the jury as possessing some specialized skills in the child interviewing process. Thus, the attack was upon the methods employed by the interviewers, those individuals that made the determination that sex abuse occurred, not upon the veracity of a young child.

The trial court sustained the state's motion in limine to exclude Dr. Duncan's testimony after it found this evidence would merely have been "a commentary on the veracity of the witness, and this is always within the province of the jury." This finding is not responsive to defendant's offer to prove the state's "expert" witnesses used faulty methods and techniques when speaking with A.D. That evidence would leave the effect of such conduct and credibility decisions within the province of the jury. Also, it would not be a comment on or an expression of any opinion regarding the veracity of A.D Expert testimony "should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved." State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984), quoting Sampson v. Missouri Pacific Railroad Co., 560 S.W.2d 573, 586 (Mo. banc 1978). The evidence must aid the jury. Taylor, 663 S.W.2d at 239. Admission of scientific evidence depends on wide acceptance in the relevant scientific community of its reliability. Id.

Also, it is within the sound discretion of the trial court whether to admit an expert's testimony. Id. Although expert testimony should not be admitted if it unnecessarily diverts the attention of the jury from the question to be decided, experts may testify as to their opinion on an ultimate issue in a criminal case. Id. However, expert testimony is not admissible as it relates to the credibility of a witness. Id.

There are typically two types of expert testimony challenged in child sexual abuse cases: 1) general testimony describing behaviors and other characteristics commonly observed in sexually abused victims ("profile" testimony); and 2) particularized testimony concerning the alleged victim's credibility. State v. Williams, 858 S.W.2d 796, 798-99 (Mo.App.E.D.1993). While the trial court has greater discretion in admitting the former, the latter usurps the province of the trier of fact and is inadmissible. Id. at 799.

The state argues the offer of proof was for evidence attacking the credibility of A.D. We disagree. The offer was to show the state's expert acted improperly in dealing with A.D. by using techniques and methods that were unreasonably suggestive.

The issue on this claim of error has not been decided in Missouri. However, courts in other jurisdictions have recognized child witnesses are susceptible to suggestive interview techniques. Idaho v. Wright, 497 U.S. 805, 812-13, 110 S.Ct. 3139, 3144-45, 111 L.Ed.2d 638 (1990); State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1377 (1994); People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2d 171, 176-78 (Sup.1994); State v. Kirschbaum, 195 Wis.2d 11, 535 N.W.2d 462, 466-67 (App.1995). Opinions of experts on improper or suggestive techniques employed by individuals investigating allegations of sexual abuse of children have been allowed in several jurisdictions. Michaels, 642 A.2d at 1384 ("Experts may thus be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed, but not of course, to offer opinions as to the issue of a child-witness's credibility, which remains strictly a matter for the jury"); People v. Alvarez, 159 Misc.2d 963, 607 N.Y.S.2d 573, 574 (Sup.1993); State v. Hulbert, 481 N.W.2d 329, 333-334 (Iowa 1992) (Some but not all of the testimony was admitted. The excluded portion was excluded at defendant's earlier request); State v. Floody, 481 N.W.2d 242, 248-249 (S.D.1992) (Admission of expert testimony on investigative techniques held no error); State v. Malarney, 617 So.2d 739, 740 (Fla.App. 4 Dist.1993) (Reversible error to exclude defendant's expert psychological testimony regarding unreasonably suggestive interviewing techniques used with a child witness); See also State v. Erickson, 454 N.W.2d 624, 626 (Minn.App.1990); and State v. Hadfield, 788 P.2d 506, 508 (Utah 1990).

Defendant offered to prove the state's two witnesses, Det. Betz and Warren, gave testimony that was not probative of guilt because they used faulty techniques or methods in dealing with the child. The state elicited testimony from both that they functioned on the basis of experience and training in sexual abuse matters. Although it was not necessary, the state elected to clothe them with expertise. Evidence they functioned improperly as...