Ward v. State, BG-449
| Decision Date | 01 February 1988 |
| Docket Number | No. BG-449,BG-449 |
| Parties | 13 Fla. L. Weekly 314 Emmanuel WARD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.
This cause is before us on appeal from the judgment and sentence entered pursuant to a jury verdict finding appellant guilty of lewd assault. Appellant challenges the trial court's admission of a psychologist's expert opinion that the child/victim exhibited symptoms consistent with those of sexually abused children. We find no error and affirm.
Appellant was charged by information with attempted sexual battery on a child, aged 11 or younger, a violation of Sections 794.011(2) and 777.04(1), Florida Statutes. Prior to trial, appellant filed a motion in limine to prevent Evelyn Roberts Goslin, Ph.D., a clinical psychologist, from testifying. Defense counsel contended that Dr. Goslin's report consisted of hearsay and conclusion which invaded the province of the jury.
During an in camera proffer, 1 Dr. Goslin testified that she had evaluated the child psychologically by taking a history from the child's mother and by conducting an intellectual assessment test and a personality test. The child, who was almost six years old at the time of the evaluation, was found by Dr. Goslin to test out "normal" under the intellectual assessment test, 2 but to have exhibited anxiety and fear in the personality test. 3 Dr. Goslin then testified that the mother stated the child had been complaining of stomachaches, had experienced frequent sleep disturbances, and had become more dependent of late.
After testifying to having studied symptoms of children who have been sexually abused, Dr. Goslin outlined three general types of symptoms displayed 4 and testified that in her opinion the child displayed the symptoms typically seen in children who have been sexually abused.
On cross-examination, Dr. Goslin admitted that her opinion was based partially on her belief that the child was telling the truth and that without such a belief she would not be able to identify the source of the trauma as sexual abuse.
Defense counsel argued that the expert testimony was unreliable because the field (child sexual abuse) had not been adequately developed to permit a witness to assert a reasonable opinion; that the expert's conclusions lent credibility to the child's testimony as they were based on the expert's opinion that the child was telling the truth; and that the subject of the expert testimony required no expertise not already available to a jury drawing upon its life experiences and common sense.
The court denied the motion, ruling that the study of child sexual abuse was sufficiently established to permit an expert to state an opinion as to whether the patient's symptoms were consistent with child sexual abuse. The court determined that the testimony would be helpful to the jury but prohibited the witness from commenting on the truthfulness of the child.
Under the facts presented, we find no abuse of discretion in the trial court's ruling that child abuse syndrome is an area sufficiently developed to permit an expert to testify that the symptoms observed in the evaluated child are consistent with those displayed by victims of child abuse. The trial judge has broad discretion in determining the range of subjects on which an expert may testify. Johnson v. State, 393 So.2d 1069, 1072 (Fla.1981). Of critical importance in this determination, as pointed out in Johnson, is that the subject matter of the expert opinion be beyond the understanding of the average layman. 5 In the instant case, the trial court concluded that, even though child abuse is gaining publicity, it is not so understandable that people know as much about it as a qualified expert with the requisite skill and exposure to numerous studies in the field.
In Hawthorne v. State, 408 So.2d 801, 805 (Fla. 1st DCA 1982), review denied, 415 So.2d 1361 (Fla.1982), involving the battered wife syndrome, this court stated:
The courts that have considered the admissibility of this type of expert testimony have generally analyzed it to see whether it meets three basic criteria: (1) the expert is qualified to give an opinion on the subject matter; (2) the state of the art or scientific knowledge permits a reasonable opinion to be given by the expert; and (3) the subject matter of the expert opinion is so related to some science, profession, business, or occupation as to be beyond the understanding of the average layman....
In Kruse v. State, 483 So.2d 1383, 1384-85 (Fla. 4th DCA 1986), the court held expert testimony on posttraumatic stress syndrome admissible in a child sexual assault case when proven relevant under Section 90.403, Florida Statutes, and more probative than prejudicial. However, the Kruse court made clear that it was not receding from the position that expert testimony may not be offered to directly vouch for the credibility of a witness.
Traditionally, a physician's opinion is predicated on a history and complaints obtained from the patient. In relating an opinion to this information, the physician necessarily bolsters the patient's credibility to some extent. In the instant case, the trial court expressly prohibited the expert from testifying directly on the credibility of the patient. Any inherent "bolstering" was a necessary incident of the expert testimony and permissible, as it was subject to the jury's scrutiny.
In the instant case, the court found the expert qualified to render an opinion that the child she examined displayed symptoms which were consistent with those displayed by children who have been sexually abused. 6 The trial court took into consideration evidence that the expert had conducted controlled group testing, had reviewed numerous studies, and had the requisite skill and exposure to the field to render a reliable opinion. The court also considered the symptoms the expert found displayed by the child she evaluated. The court found the area of child sexual abuse reasonably developed to the extent that an expert with requisite skill and knowledge of the area could render a narrowly tailored opinion based on her evaluation and knowledge of the subject matter. 7 Accordingly, under the facts of the instant case, the trial court did not err in finding the expert opinion to be reliable and relevant.
Although I concur in the affirmance of the conviction, I do so with some reservation and apprehension that this decision not be taken as cart blanche to use expert testimony by psychologists to corroborate the veracity of the witness accusing the criminal defendant in child sex abuse cases. As the majority opinion clearly explains, the psychologist in this case, Dr. Goslin, testified that her expert opinion was based partially on her belief that the child was telling the truth and that without such belief she would not be able to identify the source of the child's trauma as sexual abuse. While at first blush such expert testimony would appear to be nothing more than vouching for the veracity of the young victim, closer analysis shows that the expert witness in this case was careful to stay within the bounds of her expertise, even in the face of improper questions from the prosecuting attorney. On balance I conclude that the trial court did not abuse its discretion in admitting such testimony because its probative value could be said to outweigh any prejudice to the defendant, even though this record contains sufficient evidence to support the jury's finding of guilt on the part of the defendant without the testimony of Dr. Goslin.
The record does not reflect that defense counsel made appropriate objections to Dr. Goslin's testimony sufficient to preserve any material error for appellate review. In any event, Dr. Goslin was shown to be qualified to render an opinion regarding symptoms characteristically exhibited by children having been victimized by acts of sexual battery or abuse.
The history and complaints received and relied on by Dr. Goslin as the basis for her opinion expressed to the jury during trial were not described in full by her to the jury. 1 Instead, such history was first presented to the jury in detail by the young child's mother and grandmother, both of whom had personal knowledge of the child's initial complaints. No inconsistency between the history relied on by Dr. Goslin and that testified to by the mother and grandmother appeared during trial. Thus, the manner in which Dr. Goslin's testimony was presented to the jury did not create any opportunity for the jury to infer that this witness was vouching for the credibility of the child's statements concerning the...
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