Hall v. State

Opinion by MURPHY, J. ON REMAND MURPHY, Chief Judge. This appeal from the Circuit Court for Prince George’s County was originally submitted to us on December 14, 1994, ⁶⁸⁶ when James Lee Hall, Sr., appellant, presented two questions for our review: I. Did the trial court err in admitting expert testimony that the complaining witness suffered from conduct disorder as a result of being sexually abused?

II

Are separate convictions and sentences for both second degree sexual offense and child sexual abuse improper? In an unpublished opinion filed on January 18, 1995, we affirmed the judgments of the circuit court. Appellant then filed a petition for a writ of certiorari, in which he presented only the first question and requested that the Court of Appeals grant review “to resolve questions involving the admissibility of expert testimony about conduct disorder in child sexual abuse prosecutions.” Appellant’s case has been remanded to us for reconsideration in light of Hutton v. State, 339 Md. 480 , 663 A.2d 1289 (1995). We are persuaded that Hutton does not render inadmissible the testimony about which appellant complains, and we shall therefore affirm the judgments of conviction. 1 The Testimony At Issue Appellant waived his right to a jury trial.

Before the Honorable Audrey E. Melbourne, appellant contended that the alleged victim—appellant’s son—suffered from so many emotional disorders that his testimony about what appellant had ⁶⁸⁷ done to him was not worthy of belief. 2 The opening statement of appellant’s trial counsel characterized the charges as “fabrications or imaginations on the part of this child.” The victim was the State’s first witness. His current foster father then testified briefly. The State’s third witness was the clinical social worker who had been treating the victim. No objection was interposed when the State offered this witness “as an expert in the area of clinical social work with an emphasis on child and family development.” The following transpired during the expert’s direct examination: Q. And did you have occasion to note what, if any, I guess symptoms or problems he displayed to you during the course of these sessions?

A. Yes. Initially [the victim] was spewing anger. He was a very, very angry child. He was just acting out all over the place, and he came in, he wasn’t going to say hello.

He was reády to throw a tantrum. That was [the victim’s] initial behavior. That has changed considerably. Q. How has that changed?

A. He is still an angry child in many ways, but he has his anger much more under control. He has been able to talk about what he feels rather than act it out. He still acts out, but not as much. Q. Okay.

A. And he had a lot of—very dysphoric. And his feelings are very negative. I think he has still negative feelings, but a bit more balanced by some positive feelings. Q. Okay.

Did you notice any other symptoms when he first came to you? A. There were the behavioral problems that his foster parent described, that the case worker described. He was lying. He was stealing.

He was accused of acting ⁶⁸⁸ out sexually in his previous foster home. He denied it at that time, but he acknowledged it later. And he had run away. He was—he would threaten to run away at the drop of a hat if things didn’t go his way.

Those kinds of things were happening. Q. Based on your interviews with him and your assessment of his symptoms, did there come a time when you were able to render any type of diagnosis under the DSM-III, or Diagnostic Statistical Manual, in terms of what specific disorders he was suffering from? A. Yes. I diagnosed him with major depression and at this point I would consider it recurrent.

When I first diagnosed him, I considered it a single episode, but he has fluctuated. He has gotten better, not worse. So his depression does recur. And also conduct disorder, and that has—that also fluctuates.

Sometimes he really takes charge of himself and he lives up to his contracts and he cuts down on his lying, and there are other times where he just goes off and gets back into those behaviors, usually under stress. Q. And would you be able to tell us to a substantial degree of psychological certainty whether these disorders that you have mentioned, major depression and conduct disorder, are consistent with him having been the victim of sexual child abuse? A. Yes. (Defense Counsel): Objection.

THE COURT: Basis? (Defense Counsel): Very vague, be consistent with almost any kind of thing happening in the 12 years of this young man’s life. THE COURT: Rephrase. BY (the prosecutor): Q. These disorders that you noted in [the victim’s] major depression and conduct disorder, could you testify to a substantial degree of psychological certainty that they ⁶⁸⁹ were, I guess basically caused by his being a victim of child sexual abuse?

(Defense Counsel): Objection. THE COURT: Overruled. THE WITNESS: I would say that they are strongly associated with his being a victim of child sexual abuse. Q. And upon what facts and circumstances do you base that conclusion, that opinion?

A. Because of the way in which [the victim] presented his information to me. When he came in acting out, very angry, wasn’t going to talk to me or to anyone else, and he was going to walk about and all of that. (Defense Counsel): I object. THE WITNESS: I’m giving the data.

(Defense Counsel): Excuse me, ma’am. I would object to this, what the doctor is testifying to now. Even though it’s acting out behavior or what she’s observed, that still comes out of the statement the child made and a basis for her conclusion. THE COURT: No, it doesn’t.

Overruled. Q. You may continue. A. Okay. When he was showing these behaviors, I was dealing with his behaviors and with his feelings, and he started off telling me that he was behaving like this because I don’t want to be here.

And I asked him, since he didn’t want to communicate with me, I said either draw, do you like to draw? Do you like to draw? Would you like to either draw or write about what’s making you so angry? He decided to draw, and what he drew is about his father abusing him physically.

(Defense Counsel): Objection. Move to strike that. THE COURT: I will sustain that objection. Q. All right.

Were there any other things that you noticed in terms of his actual behaviors that led you to your conclusion or opinion without telling us what exactly he said? ⁶⁹⁰ A. I can tell you about the behavior, but not without telling you what he said. Q. Okay. A. And it is that he told about his reason for abusing his younger brother sexually, he said— (Defense Counsel): I would object, Your Honor. This is all coming under the statement, all of what he is saying interrelates, networking up to the fact the State is going to get to.

The State said we’re not presenting anything on the statement. THE COURT: And you’ve got the ultimate opinion. The witness was not permitted to finish her answer. The following transpired during cross examination: Q. Doctor, briefly, you stated that originally when you saw [the victim], to you he was very, very angry; is that correct?

A. Yes. Q. And when he first came to you last June, he was lying and stealing and running away then, correct? A. Yes, he was. Q. And up to the day, the present time, is he still angry?

A. He is angry, but not as angry as when I saw him first. Q. But he is still lying, stealing and running away? A. That—those behaviors happen periodically. He does regress.

Q. He does regress? A. He doesn’t run away. Q. He’s still lying and stealing? A. He will lie, yes, primarily lie.

Q. And based on your expertise in the field of psychotherapy and family and child unit, would you say that any child that has been in four different foster homes and has lived in a motel and separated from his family, they would also be under extreme stress? A. Severe. ⁶⁹¹ Hutton v. State In Hutton , the defendant was convicted of child abuse by jurors who heard two State’s experts opine that (1) the victim suffered from post-traumatic stress disorder (PTSD) that was caused by sexual child abuse, and (2) the victim’s stress “is not in any way faked.” The Court of Appeals held that each of these opinions should have been excluded. The first opinion was declared inadmissible because “the symptoms ... (of PTSD) are not reliable identifiers of the specific cause of the disorder.” 339 Md. at 491 , 663 A.2d 1289 .

The second was declared inadmissible because, “no matter how learned in his or her field of expertise, no expert is in a better position to assess the credibility of a witness than is the jury.” 339 Md. at 503 , 663 A.2d 1289 . Hutton , therefore, prohibits counsel from (1) asking a witness directly whether he or she personally believes the testimony of another person, and (2) introducing expert testimony in a way that presents the trier of fact with an expert’s assertion of personal belief that another person’s testimony is true. 3 Nothing in Hutton however, ⁶⁹² prohibits an expert from opining that the child’s behavioral problems are consistent with abuse. Opinions That Must Be Excluded This opinion does not disturb the rule prohibiting one witness from characterizing the testimony of another witness. In fact, Hutton persuades us of the need to emphasize once again the importance of this prohibition.

Every witness is prohibited from testifying that, in his or her opinion, the testimony given by another witness is true. Bohnert v. State, 312 Md. 266, 278-279 , 539 A.2d 657 (1988). Every witness is prohibited from testifying that, in his or her opinion, the testimony given by another witness is false. 4 This prohibition applies during cross examination as well as direct examination. Mutyambizi v. State, 33 Md.App. 55, 61 , 363 A.2d 511 (1976).

It applies in civil cases as well as criminal cases. Globe Security Systems v. Sterling, 79 Md.App. 303, 308 , 556 A.2d 731 (1989). It applies to non-expert testimony as well as to expert testimony. American Stores Co. v. Herman, 166 Md. 312, 314-315 , 171 A. 54 (1934).

In Acuna v. State, 332 Md. 65 , 629 A.2d 1233 (1993), the Court of Appeals rejected a contention that this prohibition was violated by expert