MICHAEL LEE FITZGERALD v. COMMONWEALTH OF VIRGINIA
Record No. 061361
SUPREME COURT OF VIRGINIA
April 20, 2007
JUSTICE LAWRENCE L. KOONTZ, JR.
Present: All the Justices; FROM THE COURT OF APPEALS OF VIRGINIA
BACKGROUND
To resolve the limited issue presented in this appeal, we need not recite the trial evidence that led to Fitzgerald‘s criminal convictions. The case arises from allegations, supported by the Commonwealth‘s evidence, that Fitzgerald engaged in unlawful sexual acts with his stepdaughter (“the
At trial, the Commonwealth called Giles, a licensed professional counselor,2 to testify as an expert witness. Giles testified that she held a master‘s degree in counseling in addition to a bachelor‘s degree. Additionally, Giles testified that she had completed three years of clinical training, which involves supervision by a licensed psychologist or a licensed professional counselor. Giles related that, at the time of trial, she had practiced as a licensed professional counselor for nine years and that her “primary background” involved working with children who were victims of abuse.
Giles testified that she first met with the victim and her mother through a referral by Child Protective Services. Giles explained that at that time her objective as a clinician was to “determine symptomology and treat the symptoms.” She further explained that “[w]hat I would do with someone with [the
Giles testified that she conducted six counseling sessions with the victim after the initial meeting, and had an ongoing professional relationship with her at the time of trial. During the counseling sessions, Giles determined from the victim and her mother that Fitzgerald “[a]llegedly . . . had an inappropriate sexual penetration with [the victim] on her living room floor when her mother was not there.”
Giles then testified that the victim “experiences moderately severe symptoms of post traumatic stress disorder,” which she defined as “a collection of symptoms that happen after a traumatic event that has occurred that has made someone feel horror, helplessness.” She stated that “any kind of inappropriate sexual contact with a . . . child qualifies and they relive the experience in all of their senses.”
At this point, Fitzgerald objected, stating that Giles was not “clinically qualified to make that diagnosis.” Fitzgerald asserted that a diagnosis of PTSD “has to be made by a doctor and cannot be made by a licensed professional counselor.” The trial court overruled Fitzgerald‘s objection.
Giles testified that she first encountered PTSD, which she characterized as a “psychiatric diagnosis,” in her master‘s degree program but encountered it in “much more detail” during her clinical training. She listed numerous symptoms characteristic of PTSD, and stated that the victim reported or displayed “most” of those symptoms. Giles testified that under the specific diagnostic scoring system set forth in the DSM for PTSD, the victim clearly met the criteria for PTSD and it was “[n]owhere near” a close call.
On cross-examination, Giles reiterated that PTSD is a “psychiatric diagnosis.” However, she did not agree that psychiatric diagnoses are usually made by psychiatrists, again stating that psychologists, licensed professional counselors, and licensed clinical social workers are trained to use the DSM.
A three-judge panel of the Court of Appeals concluded that the trial court did not abuse its discretion in allowing Giles’ testimony because “Virginia law expressly permits professional counselors to diagnose . . . mental, emotional, and behavioral disorders” and “the evidence adduced at trial supported a finding that Giles was, in fact, qualified to exercise that diagnostic authority in this case.” Fitzgerald v. Commonwealth, 48 Va. App. 271, 276, 630 S.E.2d 337, 339 (2006). This appeal followed.
DISCUSSION
Fitzgerald‘s principal basis for making the assertion that the trial court erred in permitting Giles to testify as an expert that the victim suffered with PTSD is that a diagnosis of PTSD is a “psychiatric diagnosis” and Giles is not a psychiatrist. According to Fitzgerald, only a psychiatrist or psychologist4 may qualify to give expert testimony regarding a
To support his contentions, Fitzgerald asserts that no provision in Title 54.1, Chapter 35 of the Code, which is entitled “Professional Counseling,”
It is axiomatic that in order to qualify to give expert testimony a witness must possess sufficient knowledge, skill, or experience regarding the subject matter of the testimony to assist the trier of fact in the search for truth. See Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002);
In resolving the issue presented, Conley v. Commonwealth, 273 Va. __, __ S.E.2d __ (2007) (this day decided), is instructive. In Conley, we held that the trial court did not abuse its discretion in permitting a licensed clinical social worker to render an expert opinion that the victim of a sexual offense suffered from PTSD. We concluded that the statutory scheme by which clinical social workers become licensed and submit to other regulation authorized licensed social workers to “provide direct diagnostic, preventive and treatment services” regarding mental disorders such as PTSD. Accordingly, we held that since licensed clinical social workers are authorized by statute to provide direct diagnostic services, they may in appropriate circumstances render expert testimony as to such diagnoses.
While Conley involved testimony by a licensed clinical social worker, this case involves testimony by an individual belonging to a different category of mental health professional, a licensed professional counselor. However, licensed professional counselors are governed by a statutory scheme similar to the one applicable to licensed clinical social workers discussed in Conley. Professional counselors are
As provided in the statutory scheme pertaining to the regulation of professional counselors the term “[p]rofessional counselor” is defined as a “person trained in counseling interventions designed to . . . remediate mental, emotional, or behavioral disorders.”
Furthermore,
Based upon these statutes, and in accordance with our holding in Conley, we hold that a licensed professional counselor is authorized to diagnose recognized mental disorders such as PTSD. Thus, we further hold that a licensed professional counselor may in appropriate circumstances render expert testimony regarding a diagnosis of a mental disorder.
However, we stress that the trial court must determine whether a licensed professional counselor called as an expert witness in a given case in fact possesses sufficient skill, knowledge and experience as to the subject matter of the anticipated testimony. “The issue whether a [potential] witness is qualified to testify as an expert on a given subject is a matter submitted to the trial court‘s discretion, and the trial court‘s ruling in this regard will not be disturbed on appeal unless it plainly appears that the witness was not qualified.” Velazquez, 263 Va. at 104, 557 S.E.2d at 218 (citing Johnson v. Commonwealth, 259 Va. 654, 679, 529 S.E.2d 769, 783 (2000)). Here, the Court of Appeals held that the trial court did not abuse its discretion when it permitted Giles to testify as an expert that the victim suffered from PTSD. We agree with the Court of Appeals.
Giles testified that she studied PTSD while getting her master‘s degree and “in much more detail” during her three year clinical training. At trial, she listed the symptoms of PTSD set forth in the DSM, which is the standard diagnostic manual of the American Psychiatric Association. Giles testified that she had met with the victim several times and determined that, under the DSM‘s diagnostic criteria, the victim suffered from PTSD.
The record contains sufficient evidence to support the trial court‘s conclusion that Giles possessed sufficient knowledge and experience regarding PTSD and the victim‘s mental condition that Giles’ opinion could be of value to the jury. Thus, the Court of Appeals was correct to hold that the trial court did not abuse its discretion in permitting Giles to
CONCLUSION
For these reasons, we hold that the Court of Appeals correctly held that the trial court did not err in ruling that Giles was qualified to testify as an expert. Accordingly, the Court of Appeals’ judgment will be affirmed.
Affirmed.