Tingle v. StateTingle v. State
We have for review Tingle v. State, 503 So.2d 1304 (Fla. 5th DCA 1987) because of conflict with Scott v. State, 420 So.2d 595 (Fla. 1982), and Kothman v. State, 442 So.2d 357 (Fla. 1st DCA 1983). We have jurisdiction,
Tingle was convicted of sexual battery of a child (his daughter) under the age of eleven years under
On appeal, the district court affirmed the denial of these motions, concluding that “[a]lthough defense counsel alleged various bizarre behavior by the defendant while he was in prison awaiting trial, it does not substantially establish appellant lacked the ability to assist defense counsel in preparing his defense.” 503 So.2d at 1305. We agree with Tingle that this reasoning is contrary to the standard to be employed in ruling on a motion to determine a defendant‘s competency to stand trial, as set forth by this Court in Scott v. State, 420 So.2d 595 (Fla. 1982).
In Scott, we stated that in ruling on a motion made pursuant to
(b) If before or during the trial the court of its own motion, or upon motion of counsel for the defendant or for the State, has reasonable ground to believe that the defendant is not mentally competent to stand trial, the court shall immediately enter its order setting a time for a hearing to determine the defendant‘s mental condition, which shall be held no later than 20 days after the date
of the filing of the motion, and shall order the defendant to be examined by no more than three nor fewer than two experts prior to the date of said hearing. Attorneys for the State and the defendant may be present at the examination.
Under this rule, prior to hearing, the defendant will be evaluated by at least two experts who are required to provide written reports to the court pursuant to
As we have previously noted in Scott and Hill, a hearing to determine whether a defendant was competent at the time he was tried generally cannot be held retroactively. Scott, 420 So.2d at 598; Hill, 473 So.2d at 1259; see also Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 909, 43 L.Ed.2d 103 (1975); Dusky, 362 U.S. at 403, 80 S.Ct. at 789. Therefore, because Tingle was entitled to a hearing on his competency to stand trial, we vacate the conviction and sentence and remand for retrial after it has been determined that he is competent to stand trial.2
We also find merit to Tingle‘s challenge of certain testimony which was presented by the state and address this claim to avoid error on retrial. On appeal, Tingle challenged the admissibility of opinion testimony of an intake counselor with the Department of Health and Rehabilitative Services (HRS) and of a social worker with the University of Florida‘s Department of Pediatrics Child Protection Team. The district court merely “affirmed” on this issue, with no discussion. 503 So.2d at 1304.
During its case-in-chief the state presented the testimony of Dennis Girard, the HRS intake counselor who initially investigated the case after receiving a report from a neighbor that Tingle‘s daughter had told the neighbor and her daughter that Tingle had “messed” with her. Mr. Girard testified that it is his responsibility to investigate a reported incident of child abuse and to make a determination if the matter should be referred to the Child Protection Team. Mr. Girard described his interview with the victim and her demonstration with anatomically correct dolls of what allegedly occurred between her and her father. He was then asked by the state, “Did you believe that she was in fact telling the truth?” Defense counsel objected, arguing that such testimony would invade the province of the jury and would unduly bolster the victim‘s credibility. After the objection was overruled, the question was rephrased, “Did you believe the child?” To which he answered, “Yes, I did.” Mr. Girard then explained the factors he took into consideration in determining if the child was being truthful. Later in the questioning, Mr. Girard was asked, “Do you believe that this child was sexually abused?” Mr. Girard
Donna Watson-Lawson, a social worker, was qualified as an expert on child sexual abuse without objection. Ms. Watson-Lawson, among other things, testified as to her interviews and meetings with the victim and how the victim‘s actions were consistent with those of other children who had been sexually abused. Ms. Watson-Lawson was asked, “Now, with this child, or as part of that, do you ever make a determination as to whether or not you find the child to be credible, to believe that she‘s telling the truth or not?” She answered, “Yes, I do.” She then testified that she did that in this particular case and the determination was “that [she] believed the child was telling the truth.” No objection was made.3 Ms. Watson-Lawson then continued to testify concerning the factors used in determining whether a child is telling the truth about being sexually abused.
We agree with Tingle that it was error to have allowed Mr. Girard and Ms. Watson-Lawson to vouch for the victim‘s credibility. In Glendening v. State, 536 So.2d 212 (Fla. 1988) we recently addressed a similar claim. In Glendening, an expert in the area of child abuse testified that in her opinion the child “`has been sexually abused by her father [the defendant].‘” Id. at 220. Although we concluded that it was proper for an expert to express an opinion as to whether a child has been the victim of sexual abuse, we held that it “was improper for the expert witness to testify that it was her opinion that the child‘s father was the person who committed the sexual offense.”4 Id. at 221.
In Glendening, we did not reach the issue of whether it is proper for an expert witness to give an opinion as to the truthfulness of the victim. The state appears to concede that it is generally accepted that expert testimony may not be offered to directly vouch for the credibility of a witness, see Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986); Townsend v. State, 734 P.2d 705, 709 (Nev. 1987); United States v. Azure, 801 F.2d 336 (8th Cir.1986), but seems to urge that any error was harmless. We agree that it was error for the state‘s witnesses to directly testify as to the truthfulness of the victim; however, we need not decide whether the error was harmless since we have already determined that Tingle is entitled to a new trial.
As guidance to the state on retrial, we adopt the position taken by the Eighth Circuit Court of Appeals in Azure. We agree with the Azure court that, in cases such as this, “some expert testimony may be helpful, but putting an impressively qualified expert‘s stamp of truthfulness on a witness’ story goes too far.” 801 F.2d at 340. As noted by the Eighth Circuit, an expert may properly aid a jury in assessing the veracity of a victim of child sexual abuse
without usurping their exclusive function by generally testifying about a child‘s ability to separate truth from fantasy, by summarizing the medical evidence and expressing his opinion as to whether it was consistent with [the victim‘s] story that she was sexually abused, or perhaps by discussing various patterns of consistency in the stories of child sexual abuse victims and comparing those patterns with patterns in [the victim‘s] story.
Id. We recognize that expert testimony such as this, by its very nature, to some degree will tend to either bolster or refute the credibility of the child victim; however, the ultimate conclusion as to the victim‘s credibility always will rest with the jury. The expert will merely be equipping the jury with the knowledge necessary to make this determination.
Accordingly, the decision of the district court is quashed, and the cause is remanded
It is so ordered.
OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.