Weatherford v. State

Decision Date07 May 1990
Docket NumberNo. 88-2897,88-2897
Citation561 So.2d 629
Parties15 Fla. L. Weekly D1251 Zonald Watson WEATHERFORD, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Zonald Weatherford appeals his conviction, pursuant to a jury verdict, for committing a lewd act upon a child in violation of section 800.04, Florida Statutes. Weatherford argues on appeal that the trial court erred in admitting hearsay evidence, allowing an expert witness to vouch for the child's credibility, and permitting improper impeachment of a defense witness. Finding error on all three points, we reverse and remand for a new trial.

The state charged Weatherford with sexual battery of T.J. by penetrating her vagina with his finger and by penetrating her anus with his finger, in violation of section 794.011, Florida Statutes. The case proceeded to trial at which the following occurred.

The state's first witness was Charlotte Chadik. She testified that she was a member of the Child Protection Team, an affiliate of the Department of Pediatrics at the University of Florida. (R. 38). The court qualified Ms. Chadik as an expert "in the field of investigating and interviewing children" with regard to alleged sexual abuse. (R. 27). Upon objection by the defendant, the state proffered her testimony as follows: Ms. Chadik interviewed T.J. pursuant to a referral from the Department of Health and Rehabilitative Services (R. 27); T.J. told her that she stopped going to her babysitter because of Weatherford and that Weatherford was a bad man (R. 29); T.J. proceeded to tell her "[he] touched me on my privates" and pointed to her breasts and vaginal area when she made that statement (R. 29); T.J. indicated that at the time of the occurrence she was with her babysitter at Weatherford's house and had gone into the bathroom (R. 29); when T.J. got off the toilet, Weatherford was in the bathroom with her and he touched her on her breasts and put his finger inside her vagina (R. 30); T.J. indicated that the touching hurt her (R. 30); T.J. stated Weatherford asked her if she would "touch him down here," pointing to the penis on a male doll, but she did not touch him (R. 30). When Chadik was asked if she did anything to determine whether T.J.'s report to her was reliable, Chadik stated that she had done a number of things to determine reliability, and explained that: T.J. reported the incident in her own words, not adult language; T.J. didn't know the names of some body parts and indicated those parts on dolls; T.J. did not change her story, even when Chadik challenged it or tried to confuse her; and Chadik was satisfied that T.J. passed these reliability tests. (R. 30-32). At the conclusion of the proffer, defense counsel objected to Chadik's testimony of T.J.'s statements on hearsay grounds. (R. 37). The court overruled defense counsel's objections and allowed Chadik to testify. (R. 37). Chadik's testimony before the jury was essentially identical to that proffered. (R. 41-45).

The state next presented T.J. as a witness. (R. 52). T.J. testified that she was six years old and in the first grade (R. 55); she went to Weatherford's house for a barbecue and while she was there she had to go to the bathroom; Weatherford showed her where the bathroom was and he went inside with her (R. 58); after she went to the bathroom Weatherford touched her on her "private parts," indicating on a doll the places where Weatherford touched her (R. 59-61); when Weatherford touched her it hurt, and he touched her with his fingers (R. 61); Weatherford's finger did not go inside of her and he did not touch her on the "behind" (R. 62-63); after Weatherford touched her he left (R. 62); when she left the bathroom she told her babysitter what had happened, and she told her mother at a later time. (R. 67-69). When asked whether Weatherford told her not to tell anyone that he had touched her, T.J. replied "No." (R. 63). When asked if she saw the man that touched her in the courtroom, T.J. said "No," and when the prosecutor pointed to Weatherford and asked if that was "Zeke" (the name by which T.J. referred to Weatherford), she shook her head negatively. (R. 64).

The state next presented a proffer of the testimony of T.J.'s mother. (R. 71). The mother testified that: T.J. told her about the incident a couple of weeks after it happened (R. 73); T.J. had not wanted to go to her babysitter's house during that period (R. 73); T.J. told her that she was at "Zeke's" house for a barbecue, that she had to go to the bathroom, and that Weatherford showed her to the bathroom and went inside with her (R. 74); T.J. said that while she was in the bathroom Weatherford touched her "in her private parts" and indicated, by pointing, that he had touched her between her legs and stuck his finger inside of her (R. 74-76); and T.J. said that the touching had hurt her and that she had not told her babysitter (R. 76). Defense counsel objected to the mother's testifying as to what T.J. had told her on the ground it was hearsay and lacked trustworthiness (R. 76). The court overruled the objection, and allowed her to testify. (R. 78). Her testimony before the jury was essentially identical to that proffered. (R. 79-89).

Michelle Govin, T.J.'s babysitter, next testified for the state. (R. 89). Ms. Govin stated that: she, her fiance, her two children, T.J., and T.J.'s little brother, were at a barbecue when the incident happened (R. 91-92); T.J. asked to go to the bathroom and Weatherford said he would show her to the bathroom (R. 92); she saw Weatherford take T.J. back toward the bathroom, and he had his hand on her shoulder showing her the way; she did not see whether he went into the bathroom with her (R. 93, 99-100); T.J. was very upset when she returned from the bathroom and asked to go home (R. 94); she took T.J. to her own house because T.J.'s mother was still at work and she fed T.J. dinner (R. 94); T.J. acted very withdrawn and after she ate dinner, she became sick and vomited "all over everything" (R. 94); when she undressed T.J. that evening to give her a bath, she saw a dark brown stain in the crotch of T.J.'s underwear, and at the time, she thought some of the vomit had stained T.J.'s underwear. (R. 95). On cross-examination, Michelle testified that she became concerned that Weatherford may have harmed T.J. when Amy Weatherford, Weatherford's daughter-in-law, became angry with Weatherford and expressed things to her about Weatherford's past. (R. 97, 102, 115-116). She went on to state that it was not until Amy expressed those things to her that she talked to T.J.'s mother. (R. 102).

Virgil Hart, Govin's fiance, testified that he was at the barbecue and heard T.J. ask to go to the bathroom. (R. 117). He stated that: he heard Weatherford volunteer to take T.J., but that he did not actually see Weatherford go into the bathroom (R. 117); T.J. walked up to Govin after returning from the bathroom and made it clear that she wanted to go home (R. 118); they returned to Govin's apartment, and T.J. vomited after eating a small amount of dinner (R. 118-119); she got some of the vomit on herself, and Govin cleaned her up (R. 119); later that evening, while Govin was cleaning T.J.'s underwear, he examined the underwear and saw what appeared to be dried blood in the lower back part of the crotch. (R. 120).

The state next proffered the testimony of Ethel McCormick, a Protective Investigator for H.R.S. Children Services. Ms. McCormick stated that she interviewed T.J. upon receiving the child abuse report, and that T.J. stated: while she was at Weatherford's house for a barbecue she needed to go to the bathroom (R. 130); Weatherford showed her the way to the bathroom and entered the room with her, and he remained in the room while she used the potty (R. 131); when she got off of the toilet, she thought that Weatherford was going to help her pull her panties back up but that he put his hands between her legs and played with her instead (R. 131). She stated that she asked T.J. whether Weatherford had put his fingers inside of her, and that T.J. was not sure. (R. 131). Ms. McCormick further testified that T.J. said she did not want to go back to Weatherford's house because she was afraid he would hurt her, and that she said, "He said if I told, that he would hurt me." (R. 132). After the proffer examination, defense counsel objected to McCormick's testimony on hearsay grounds; the court overruled the objections and allowed McCormick to testify. (R. 134-135). Ms. McCormick's testimony before the jury was essentially the same as her testimony during the proffer examination. (R. 135-139).

Dr. Mark Brown, a pediatrician, testified as an expert in the field of pediatrics and the medical examination of sexually abused children. (R. 155). He stated that T.J. was referred to him by the Child Protection Team and that he examined her to determine whether there was medical evidence of sexual abuse. (R. 155). He stated that his examination revealed that T.J.'s vaginal opening was approximately three times the normal size, and that in his opinion there had been some type of vaginal penetration. (R. 156-157). He further stated that T.J. described an incident to him where a person inserted a finger into her vagina and wiggled it around and also inserted a finger into her rectal area. (R. 157). After Dr. Brown's testimony, the state rested.

Defense counsel moved for a judgment of acquittal. The court granted the motion as to count II, penetration of the anus, but denied the motion as to count I. The defendant then called his witnesses.

Nancy Hedspeth, Weatherford's girlfriend, testified that she was at Weatherford's house the day of the...

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