State v. Wright

• Citation: 562 S.W.3d 311
• Decision Date: 21 August 2018
• Docket Number: No. ED 106935,ED 106935
• Parties: STATE of Missouri EX REL. Kim M. GARDNER, Circuit Attorney of the City of St. Louis, Relator, v. Honorable Clinton R. WRIGHT, Circuit Judge, Twenty-Second Circuit, Respondent.
• Court: Court of Appeal of Missouri (US)

562 S.W.3d 311

STATE of Missouri EX REL. Kim M. GARDNER, Circuit Attorney of the City of St. Louis, Relator,

v.Honorable Clinton R. WRIGHT, Circuit Judge, Twenty-Second Circuit, Respondent.

No. ED 106935

Missouri Court of Appeals, Eastern District, Writ Division Three.

Filed: August 21, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 2018

Application for Transfer Denied December 18, 2018

Karelia S. Rajagopal, Joanna L. Byrne, 1114 Market St. Ste. 401, St. Louis, MO 63101, For Relator.

Nina C. Sykora, 1114 Market St. Ste. 602, St. Louis, MO 63101, For Respondent.

OPINION

Robert G. Dowd, Jr., Presiding Judge

Kimberly Gardner seeks, on behalf of the State, a writ of prohibition against the Honorable Clinton R. Wright to prevent him from enforcing his order excluding certain expert testimony in a child sex case. We entered a preliminary order of prohibition, and a timely answer and suggestions in opposition were filed. We dispense with further briefing as permitted by Rule 84.24(j). We now make that preliminary order permanent.

Introduction

This case involves the application of recently-enacted new standards for the admissibility of expert testimony in a criminal case set forth in Section 490.065.2, which adopts verbatim the Federal Rules of Evidence. As a result, when applying that statute, we are guided by existing and still applicable Missouri law and the federal jurisprudence on this matter, including the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. At its core, the gatekeeping function of a trial court with respect to expert testimony is essentially to determine that the expert is qualified, the testimony is relevant and the opinions therein are reliable. We review and discuss how the standards for admissibility in Missouri and federal courts have developed over time, but this case actually turns on an element of the trial court’s inquiry into admissibility that has not changed: relevance. Because expert testimony regarding the process by which children disclose allegations of sexual abuse is relevant in child sex cases, the trial court erred in finding that it would not assist the jury in this case.

Background

Elliot Williams ("Defendant") was indicted on multiple charges of statutory rape in the first degree and statutory sodomy in the first degree stemming from sexual misconduct with D.M., who was eight years old at the time. D.M. did not disclose this abuse until six or seven years after it occurred, when she was fifteen. The State endorsed Audrey Leonard as an expert witness who would testify about the general behavior of children disclosing sexual abuse. Defendant filed a request for a Daubert hearing and a motion to exclude testimony regarding the steps of disclosure. Defendant argued that Leonard’s testimony was inadmissible under the recently-adopted standards for expert witnesses set out in Section 490.065.2 and under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The court held an evidentiary hearing at which Leonard testified as follows. Leonard is a social worker. She has a bachelor’s degree and a master’s degree in social work. She has worked, and still does as needed, as a social worker in a children’s hospital; she was also a child abuse and neglect investigator for the Children’s Division and a victim advocate at the Children’s Advocacy Center ("CAC"). She is currently a forensic interviewer at CAC and had been in that position for three years at the time of the hearing. A forensic interviewer, Leonard testified, is a trained professional who conducts structured conversations with children alleged to be victims of or witnesses to crimes. To become a forensic interviewer, Leonard was required to undergo training in Child First interviewing, a nationally-recognized research-based protocol for interviewing children. She has participated in, and continues to undergo, other training related to forensic interviewing, child maltreatment and other topics. Leonard testified that she has conducted over 450 child interviews, which is her primary role at the CAC. She also observes other CAC forensic interviewers, prepares summaries of the interviews and testifies in court when subpoenaed.

Leonard was asked to explain, based on her experience as a forensic interviewer and her training, the process of disclosure:

A: So the process of disclosure is essentially how children talk about their experiences or how children talk about things that have happened to them. Not every child experiences abuse or trauma in the same way in my experience in what I have observed and that could be different—on a number of different factors.

Q. Okay. From your training have you learned that there are names for different types of disclosures?

A. Yes.

Q. And what are those names for different types of disclosures?

A. There’s generally two types of disclosures; accidental disclosure, which is defined as disclosure or abuse that’s revealed not on the part of the child. They haven't made—the child hasn't made that conscious decision to tell someone, which is what we would call a purposeful disclosure where that child has decided to tell someone about what’s going on.

Q. Within purposeful disclosure are there subsets of types of disclosures?

A. There’s different kinds of behaviors that people have—observe and I have observed as well in my experience.

Q. And what are those?

A. So when a child is disclosing they can sometimes—they can sometimes deny that abuse has occurred to them initially. They might later affirm that that has taken place. They might also talk very—in very minimal detail. They might talk in very minimal detail about what has happened to them, they might also talk in great detail or great length about what has occurred, or they might also recant or take back their previous statements.

Leonard described recanting and denial in some more detail and then was asked about delayed disclosures:

A. So delayed disclosure is if a child has come out whether it’s purposeful or accidental disclosure and with some delay after an incident or an alleged incident has occurred.

Q. In your experience doing over 450 interviews, do you have a general idea of how often you see delayed disclosure?

A. A lot. I don't have exact numbers. But that is not uncommon. And in my experience, again, I don't have exact numbers for out of the 450 that I have conducted because I have seen the whole range of a child disclosing that day that the abuse has occurred and I have also seen it to the other end of the spectrum where it’s been several years.

Q. Would you say it is more common for you to do referral cases with delayed disclosures or more common for you to have emergency CACs?

A. More common to conduct the—typically a regularly scheduled forensic interview.

Q. Okay. And is all of this based on your experienc[e] conducting these interviews?

A. Yes.

On cross-examination, Leonard testified that it is not her job to decide if a child is telling the truth during an interview. She testified that she keeps track of how many interviews she has conducted, but does not know how many of those involved late disclosures or any details about the length of delay in cases of late disclosures. Leonard believed that such statistical data about the interviews likely exists and could be provided if requested. She reiterated that it is not uncommon for a child to delay disclosing sexual abuse for years and that she sees that situation frequently.

The State indicated that Leonard would not be asked at trial about her interview of D.M.¹ and would only be testifying generally about delayed disclosures, an area the State argued was outside the common knowledge of jurors. Leonard also would not opine whether a late disclosure indicates that the allegations therein are true. Defendant argued that Leonard’s theory regarding late disclosure has not been tested, was not based on statistics and did not distinguish between delays of months versus years. Defendant referenced an article he claimed was the genesis of the theory regarding disclosures, in which the author stated that the stages of disclosure discussed therein were not based on science. Defendant argued that without statistics, peer review, an established margin of error, a scientific basis and general acceptance, Leonard’s testimony was based just on her observations and did not meet the test for admissibility of an expert opinion under Daubert. Defendant also argued that the concept of delayed disclosure was within the common knowledge of the average juror, citing everyone’s familiarity with the recent "me too" movement involving adult women disclosing sexual assaults from years earlier. Also, because D.M. would be sixteen or seventeen when she testified at trial, Defendant argued she could explain why she waited years to disclose Defendant’s alleged conduct.

The trial court sustained Defendant’s motion to exclude Leonard’s testimony. There is no written order, but the court gave the following reasons for its ruling on the record:

Well, if you want to go directly to the Daubert test, I—and I understand your point that it does not have to meet all four of those prongs. Because you can have information that can be presented on a variety of topics that it just won't actually meet one of those prongs, right? Some things can be tested scientifically and some things cannot.

However, in this particular situation, I don't feel as though there’s information—the narrow information that she was going to present here today would assist the jury, have any sort of specific expert value to it; and I think that before anyone can come forward and talk about, as you said social behavior is difficult to test and such, again, that sort of just is what it is. So the fact that it’s difficult to test.

There is data out there with regard to all of the different things that they experienced. But the

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