Yount v. State

MOYLAN, Judge. The appellant, Clarence Alroy Yount, was convicted by a St. Mary’s County jury, presided over by Judge John Hanson Briscoe, of a third-degree sexual offense. On this appeal, he raises the single contention that Judge Briscoe erroneously permitted the prosecution’s expert witness to testify on an allegedly ultimate jury issue, to wit, on a matter relating to the credibility of the child abuse victim. The child abuse that constituted the third-degree sexual offense was committed by the appellant on his eight-year-old daughter sometime during the summer of 1988.

It was only when the eight-year-old victim revealed the abusive incident to a friend at school that school authorities, in turn, learned about it and that the investigation in this case began. One month after reporting the incident, however, the young victim recanted her allegations at an interview with a juvenile court master and several attorneys. She told the master and the others that “her father had never done anything to her.” She insisted that she had made up the story because her cousin Carolyn and her Aunt Dorothy had threatened to hurt her. Subsequently, however, the victim recanted her recantation.

She explained that she had denied the charges in front ²¹⁰ of the juvenile master and the attorneys in order to protect her father “from the police.” The eight-year-old victim was the only witness called during the prosecution’s case in chief. Her credibility was obviously critical for without reliance on her testimony there was no case. At one point during her cross-examination, the victim" denied “ever telling anyone either on that day in chambers or at some other time [that] she made up the story” because of being threatened by her aunt or cousin. When asked why the offense had not been reported for about seven months, the victim replied “I don’t know.” Her vacillation was self-evidently the critical factor in any assessment of her credibility.

The appellant, for his part, testified that all of his daughter’s allegations were false. He testified further that it was two days after the alleged incident was reported when he informed “Aunt Dorothy” that she was no longer welcome to live with the family, thereby supplying a motive for the very bringing of the charges. In rebuttal, the State called Catherine Long Meyers, a child therapist with a master’s degree in psychology and approximately 150 hours of training in child sexual abuse. Ms. Meyers also holds a certification in Maryland as a-“professional counsellor” and a national certification as a “clinical mental health counsellor.” After a thorough examination of her credentials and experience, Ms. Meyers was qualified as an expert in the area of child sexual abuse, albeit over the objection of the appellant.

Ms. Meyers testified that, as a general phenomenon, child sexual abuse victims frequently recant their initial reports of abuse. She testified, moreover, that children who know their abusers are more likely to delay in making the initial disclosure than are children who are abused by strangers. The prosecutor then posed for Ms. Meyers the hypothetical scenario of a child between the age of 8 and 10 who has reported abuse by a family member, has been placed in “the system,” is still exposed to family members, and has shortly thereafter recanted the initial report of abuse. Ms. Meyers was asked ²¹¹ whether the child’s recantation would be abnormal under those circumstances.

She replied that such recantation was both normal and very common. She explained that it was also very common for a child then to “take back” or retract the recantation once the child’s support systems were in place. Under the well established Maryland common law of evidence governing expert testimony, it was within the discretion of Judge Briscoe to admit the testimony of Ms. Meyers in this case. In Simmons v. State, 313 Md. 33, 41 , 542 A.2d 1258 (1988), the Court of Appeals discussed the admissibility of expert testimony generally: “A determination as to the admissibility of expert testimony is based on several findings.

First, the trial court must determine whether the evidence to be presented is a proper subject for expert testimony. The standard for relevance under Maryland common law is whether the jury will receive appreciable help from the expert testimony in resolving issues presented in the case. See State v. Allewalt, 308 Md. 89, 101 , 517 A.2d 741, 747 (1986); Consolidated Mechanical Contractors, Inc. v. Ball, 263 Md. 328, 338 , 283 A.2d 154, 159 (1971).” Lynn McLain, Maryland Evidence, § 702.1, at 212-213 (1987), speaks to the same effect: “Under modern Maryland case law, the standard for the admissibility of expert evidence is whether the finder of fact can receive appreciable help from an expert on the subject matter. No longer need the subject matter be so far ‘beyond the ken of laymen’ that the finder of fact could not have any understanding of the particular issue without expert help.” (footnotes omitted).

The expert testimony of Ms. Meyers clearly passed that “helpfulness” test of admissibility. The psychological phenomenon of wavering or vacillating on the part of a sexual child abuse victim—first accusing, then recanting, then renewing the accusation—is something that is not part of the common currency of lay experience. Under the circumstances, knowl ²¹² edge of such a phenomenon would be of appreciable help to the fact finder in a case such as this. Indeed, the acid test for whether expert testimony would be of appreciable help to a fact finder is easy to apply.

We simply ask ourselves whether we three members of a judicial appellate panel would, were we fact-finding jurors, have found the testimony helpful. The answer is clearly, “Yes.” The testimony would have provided a professionally sound explanation for what might otherwise have seemed to us an unsettling inconstancy of testimonial purpose on the part of the eight-year-old alleged victim. Without expert guidance from a discipline not our own, we might easily have fallen into the untutored layman’s error of dismissing as noncredible testimony that, in the arcane context of sexual child abuse, should not be so readily dismissed. Expert testimony in this area would be of appreciable help.

Simmons v. State went on, 313 Md. at 41 , 542 A.2d 1258 , to discuss the second criterion of admissibility: “Before expert testimony is admitted the court must also determine whether the proposed expert is qualified to testify by virtue of education and experience. See Crews v. Director, 245 Md. 174, 179 , 225 A.2d 436, 439 (1967) (a psychiatrist not licensed to practice medicine in Maryland was permitted, in light of the psychiatrist’s extensive professional training and experience, to opine that the appellant was a defective delinquent); Casualty Ins. Co. v. Messenger, 181 Md. 295, 298-99 , 29 A.2d 653, 655 (1943).” McLain, Maryland Evidence, § 702.2, at 221-222 (1987), is also helpful on the subject of a particular expert’s qualifications. “If the court determines that scientific, technical, or other specialized knowledge is the proper subject of expert testimony, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify on that subject, unless exempted by statute from testifying. The expert’s training or experience need not have been formal.

But it must be such that the witness’ knowledge of the ²¹³ subject is significantly better than the average layperson’s, so that the expert’s training will be of appreciable help to the jury. Similarly, a witness may qualify as an expert without actual experience if he or she possesses sufficient special knowledge obtained from study or observation.” (footnotes omitted). The education and the professional experience of Ms. Meyers was fully explored during the voir dire examination of her expertise. Because of that education, training, and experience, she possessed relevant knowledge that an ordinary layman would not.

Judge Briscoe’s ruling that she was qualified to testify as an expert was, therefore, not an abuse of discretion. Anticipating little solace from the Maryland common law of evidence, the appellant turns to statute and particularly to Md.Code Ann., Cts. & Jud.Proc. § 9-120 (1989): “Notwithstanding any other provision of law, a psychologist licensed under the ‘Maryland Psychologists Act’ and qualified as an expert witness may testify on ultimate issues, including insanity, competency to stand trial, and matters within the scope of that psychologist’s special knowledge, in any case in any court or in any administrative hearing.” If § 9-120 clearly applies to the expert testimony of Ms. Meyers in this case, then the requirements of § 9-120 indisputably control. If § 9-120, on the other hand, is not applicable to the specific instance of expert testimony in this case, then we fall back on the general common law of evidence. McLain, Maryland Evidence, § 702.1, at 213 (1987), explained: “Many areas of expert testimony are governed by statute.

They include, for example, expert opinions regarding sanity or insanity. Absent a statutory directive, however, the appropriateness of expert testimony is decided in the trial judge’s discretion. Most appellate decisions, therefore, have affirmed the trial court’s admission or exclusion of expert testimony on a particular matter.” (footnotes omitted). ²¹⁴ In State v. Bricsker, 321 Md. 86 , 581 A.2d 9 (1990), Judge Chasanow juxtaposed the different species of controlling law, 321 Md. at 95 : “The designation of a witness as an expert is a subject of broad judicial discretion in most instances. When there is a statute directly on point, however, the expert must meet the enumerated qualifications.

A psychiatrist who was not licensed in Maryland nevertheless was allowed to testify as an expert in a ‘defective delinquency’ proceeding. Crews v. Director, 245 Md. 174 , 225 A.2d 436 (1967). We explained that the common law does not require a medical expert witness to be licensed. This Court further stated that ‘[i]n Maryland this requirement has not been introduced by statute ... ’ Id. at 179 , 225 A.2d at 438 , thereby implying that the result likely would have been different if a statute had set forth minimum criteria for an expert in a particular situation.” (citations omitted).

In this case, it is undisputed that Ms. Meyers was