STATE of Florida, Petitioner, v. Jack Timothy TOWNSEND, Respondent.
No. 81263.
Supreme Court of Florida.
April 21, 1994.
635 So. 2d 949
James G. Kontos of the Law Firm of Daniel S. Ciener, Merritt Island, for respondent.
OVERTON, Justice.
We have for review Townsend v. State, 613 So. 2d 534 (Fla. 5th DCA 1993) (Townsend II), which concerns the admissibility of a two-year-old‘s hearsay statements in this child-sexual-abuse case. This issue involves a relatively new area of the law in which the legislature and the courts are attempting to provide a means for admitting a child‘s hearsay testimony at trial, particularly in child abuse cases. Before the enactment of the child hearsay exception at issue in this case,
In the instant case, the Fifth District Court of Appeal succinctly articulated the difficulty of admitting this type of testimony
DOES A FINDING OF INCOMPETENCY TO TESTIFY BECAUSE ONE IS UNABLE TO RECOGNIZE THE DUTY AND OBLIGATION TO TELL THE TRUTH SATISFY THE LEGISLATIVE “TESTIFY OR BE UNAVAILABLE” REQUIREMENT OF SECTION 90.803(23)(a)(2)?
Id. at 538. We have jurisdiction pursuant to
This case concerns Jack Timothy Townsend‘s conviction of sexual battery on his two-year-old daughter in 1988. At the time of the incident in question, Townsend and the child‘s mother had separated and divorce proceedings were in progress, and the child was living with her mother and her maternal grandparents but was spending alternate weekends with Townsend. On several occasions, the child allegedly told her mother that “Papa stuck his finger in my [vagina].” Thereafter, the mother reported the child‘s allegations to the Department of Health and Rehabilitative Services. The Department of Health and Rehabilitative Services then conducted an interview with the child and a medical doctor examined the child. Subsequently, charges were filed against Townsend.
Before trial, the State and the defense stipulated that the child was incompetent to testify under
After remand, the trial judge conducted a hearing pursuant to
At trial, the State presented a number of witnesses who testified as to hearsay statements made by the child during the year following the alleged abuse. Additionally, the medical doctor who examined the child after the alleged abuse testified that the
A psychologist, who began treating the child nine months after the alleged abuse, testified as to a number of statements made by the child regarding the alleged abuse. Additionally, this psychologist testified that, in her opinion, the child had been “sexually over-stimulated” by an adult and that the child‘s statements to her were truthful. The psychologist also testified, based on her observations and based on statements she elicited from the child through the use of anatomical dolls, to facts indicating that Townsend was the person who had sexually abused the child. Significantly, other testimony was presented reflecting that a great deal of animosity existed between Townsend and the child‘s mother and maternal grandmother.
Townsend was convicted as charged. Townsend appealed the conviction to the Fifth District Court of Appeal. The district court issued a divided en banc decision in which the majority receded from Townsend I, holding that its reliance on Perez in Townsend I was misplaced and that incompetency under
Child Hearsay — Allowable Under a Special Hearsay Exception
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD. —
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is other corroborative evidence
of the abuse or offense. Unavailability shall include a finding by the court that the child‘s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1) .(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child‘s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
(Emphasis added). For a hearsay statement to be admitted under this section, the statement must meet two specific reliability requirements: (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability. The legislature established these strict trustworthiness and reliability requirements to balance the need for reliable out-of-court statements of child abuse victims against the confrontation and due process rights of those accused of child abuse. Weatherford v. State, 561 So. 2d 629 (Fla. 1st DCA 1990); Salter v. State, 500 So. 2d 184 (Fla. 1st DCA 1986). Specifically, the first requirement was added to ensure a careful examination of the source, particularly when, as in the instant case, the circumstances involve marital discord between the child‘s parents and the possibility exists that one parent might be using the child to seek some advantage over the other parent. Charles W. Ehrhardt, Florida Evidence § 803.23, at 652 (1993 ed.). Further, in enacting this exception to the hearsay rule, the legislature was making clear that the admission of a child victim‘s hearsay statements under this exception would not be allowed absent clear indications of reliability. As discussed later in this opinion, the reliability requirements of this statute are essential in assuring the constitutionality of this exception.
The Unavailability Requirements of Sections 90.803(23) and 90.804(1)
In addition to these strict reliability requirements, the hearsay statement of a child victim is considered admissible under
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement;
(b) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
(c) Has suffered a lack of memory of the subject matter of his statement so as to destroy his effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of death or because of then existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means.
(Emphasis added.)
As previously indicated, the child‘s hearsay statements in this case were admitted based on the district court‘s ruling in Townsend I that the child was “unavailable” under
In Perez, we specifically stated that a child need not be found competent to testify before that child‘s out-of-court statements could be found to bear sufficient safeguards of reliability to enable admission of that statement at trial.
The fact that a child is incompetent to testify at trial according to
section 90.603(2) does not necessarily mean that the child is unable to state the truth. The requirement that the trial court find that the time, content, and circumstances of the statement provide sufficient safeguards of reliability furnishes a sufficient guarantee of trustworthiness of the hearsay statement, obviating the necessity that the child understand the duty of a witness to tell the truth.
Perez, 536 So. 2d at 211. In Perez, however, we did not specifically address whether incompetency fell within any of the definitions of unavailability set forth in
As noted by the district court,
Constitutional Confrontation Clause Requirements
Townsend argues that, even if we answer the certified question in the affirmative, he is still entitled to a new trial because the admission of the child‘s statements violated his right to confrontation under the
The first issue was addressed by this Court in Perez, and we reaffirm that decision here. In Perez, we specifically held that
In Wright, the United States Supreme Court determined that, in evaluating whether a hearsay statement contains sufficient guarantees of trustworthiness, a court must look to the totality of the circumstances surrounding the making of the statement. The Court noted, however, that in determining the reliability of such a statement, a court cannot look to corroborating evidence to show the truth of the statement to be admitted.
To clarify, however, any possible inconsistencies between the United States Supreme Court‘s decision in Wright and the requirements of
Having determined that the procedural requisites of
the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate.
In this case, the trial judge merely listed each of the statements to be considered and summarily concluded, without explanation or factual findings, that the time, content, and circumstances of the statements to be admitted at trial were sufficient to reflect that the statements were reliable. This finding is clearly insufficient under both the statute and the constitutional requirements of Wright, and, consequently, constitutes reversible error.
The Child Psychologist‘s Expert Testimony
Townsend additionally argues that much of the child psychologist‘s testimony was erroneously admitted at trial. First, Townsend contends that the trial judge erroneously allowed the psychologist to comment on the truthfulness of the child. At trial, the psychologist testified as to the child‘s credibility by indicating that the child‘s statements to her were truthful because, in her opinion, the child was capable of distinguishing between the truth and a lie and pretending and playing. An expert may testify concerning a child‘s ability to comprehend the difference between telling the truth and telling a lie for purposes of determining whether the child is competent to testify at trial. It is well established, however, that an expert is prohibited from commenting to the fact-finder as to the truthfulness or credibility of a witness‘s statements in general. Tingle v. State, 536 So. 2d 202 (Fla. 1988); Weatherford v. State, 561 So. 2d 629 (Fla. 1st DCA 1990); Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989); Davis v. State, 527 So. 2d 962 (Fla. 5th DCA 1988); Ward v. State, 519 So. 2d 1082 (Fla. 1st DCA 1988); Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986), review dismissed, 507 So. 2d 588 (Fla. 1987). The psychologist should not have been allowed to testify regarding the credibility of the child.
Townsend also asserts that the trial judge erred in allowing the psychologist to testify to a number of hearsay statements of the child, some of which were obtained through the use of anatomical dolls and some of which related to the identity of the abuser. A trial court has broad discretion in determining the range of subjects on which an expert witness will be allowed to testify. Glendening v. State, 536 So. 2d 212 (Fla. 1988), cert. denied, 492 U.S. 907, 109 S. Ct. 3219, 106 L. Ed. 2d 569 (1989); Johnson v. State, 393 So. 2d 1069 (Fla. 1980), cert. denied, 454 U.S. 882, 102 S. Ct. 364, 70 L. Ed. 2d 191 (1981). Moreover, if relevant,2 a medical expert witness may testify as to whether, in the expert‘s opinion, the behavior of a child is consistent with the behavior of a child who has been sexually abused. Glendening; North v. State, 65 So. 2d 77 (Fla. 1952), aff‘d, 346 U.S. 932, 74 S. Ct. 376, 98 L. Ed. 423 (1954); Ward (doctor‘s testimony that child was having stomach aches, sleep disturbances, and acting dependent, was admissible to reflect basis for opinion that child suffered from post-traumatic stress syndrome); Ferradas v. State, 434 So. 2d 24 (Fla. 3d DCA 1983). Even so, great care must be taken by a trial judge in determining what testimony of an expert is admissible because a jury often places great emphasis on the testimony of experts in this type of proceeding. Dirk Lorenzen, The Admissibility of Expert Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 U. Miami L.Rev. 1033, 1035-36 (1988) (“Because the lay jury has only the common experience of everyday life to apply to the fact pattern before it, there is a risk that it will defer to the judgment of an expert.“). Moreover, the
When an expert testifies regarding how a child behaved with anatomically correct dolls, the expert is repeating the communications of the child witness. For this reason, a trial court must evaluate such testimony under the requirements of
Failure to Preserve the Errors in this Case
The State argues that the issues in this case have not been properly preserved for appellate review. Specifically, the State contends that the incompetency issue was not raised at trial or on appeal before the district court and, consequently, that the district court had no jurisdiction to reverse on this basis. As to the other issues, the State asserts that Townsend failed to properly preserve those issues through appropriate objections and that those issues are procedurally barred.
First, we note that the issue raised in the certified question was properly raised by Townsend in a pre-trial motion and was the same issue before the district court in Townsend I. Under these circumstances, we find that the district court could properly consider this issue in the second appeal and that the question at bar was properly certified to this Court for review.
Second, we find that Townsend did, in fact, sufficiently preserve objections as to certain portions of the psychologist‘s testimony. For instance, Townsend did properly object to the psychologist‘s testimony indicating that Townsend was the individual who committed the alleged abuse. It is questionable, however, whether Townsend properly preserved other issues, such as the failure of the trial judge to make specific factual findings regarding the reliability of the child‘s statements. Moreover, we recognize that some of the errors in this case, when considered alone, might not constitute error that was so fundamental that no objection was necessary to preserve the error for review. For example, the failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error. Hopkins; Seifert v. State, 616 So. 2d 1044 (Fla. 2d DCA) (a trial court‘s insufficient findings under
Conclusion
In remanding this case for a new trial, we are not unmindful of the difficulties inherent in this remand. The child victim in this case is now approximately eight years old. Confronting an eight-year-old about acts that occurred when that child was two years of age could be extremely difficult if not impossible. As Dr. J.M. Whitworth stated during a hearing before the Senate Judiciary Civil Committee when the legislature was considering the child sexual abuse hearsay exception: “Children do not retain details for any length of time, so time is very important. This is why there is a strong need for videotaping the testimony of children.” Fla. S.Comm. on Judiciary-Civ., tape recording of proceedings (May 1, 1985) (Florida State Archives) (comments of Dr. J.M. Whitworth) (emphasis added). In rendering this decision, we can only hope that in the future greater care will be taken to properly preserve testimony in this type of case and that judges will carefully adhere to the trustworthiness and reliability requirements set forth in
For the reasons expressed, we answer the certified question in the affirmative, approve the result of the district court‘s decision, and remand this cause for a new trial.
It is so ordered.
BARKETT, C.J., and SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
STATE of Florida, Petitioner, v. Jack Timothy TOWNSEND, Respondent.
No. 81263.
Supreme Court of Florida.
April 21, 1994.
635 So. 2d 949
McDONALD, Justice, concurring.
I was first inclined to agree with the district court by answering the certified question in the negative. After further reflection, I join the majority on this issue.
I write only to emphasize that the admission of hearsay statements of small children must be carefully reviewed under a strict scrutiny test. An “adequate indicia of reliability” required to allow the admission of out of court statements of a child is an exacting test. All of the criteria set forth in Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), must be met. As stated therein “Evidence possessing `particularized guarantees of trustworthiness’ must be so trustworthy that adversarial testing would add little to its reliability.” Because this evidence is an exception to the hearsay, the burden is on the party moving for its admission to clearly and convincingly demonstrate its reliability.
I seriously doubt that the state can meet the required standard in this case.
Notes
A person is disqualified to testify as a witness when the court determines that he is:
(1) Incapable of expressing himself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand him.
(2) Incapable of understanding the duty of a witness to tell the truth.