State v. Buller

HENDERSON, Justice

(dissenting).

Based upon my minority viewpoint and the authorities cited in State v. Floody, 481 N.W.2d 242, 257 (S.D.1992); State v. Spaans, 455 N.W.2d 596, 599 (S.D.1990); McCafferty v. Solem, 449 N.W.2d 590 (S.D.*8901989); State v. Bachman, 446 N.W.2d 271, 277 (S.D.1989); and State v. Hallman, 391 N.W.2d 191, 196-7 (S.D.1986), I respectful- • ly dissent. Also, I rely upon the spirit and the holding of the majority opinion in State v. Logue, 372 N.W.2d 151 (S.D.1985).

Further, I base my dissent upon expressions of law and rationale found in outside jurisdictions, viz: People v. Coleman, 48 Cal.3d 112, 143-44, 255 Cal.Rptr. 813, 830, 768 P.2d 32, 49 (1989) (citing People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984)); Commonwealth v. Gallagher, 519 Pa. 291, 295-297, 547 A.2d 355, 358 (1988); State v. Taylor, 663 S.W.2d 235 (Mo.1984).

Buller argues that trial court improperly allowed expert testimony regarding behavior and characteristics of sexually abused children (i.e. rape trauma syndrome). In a pre-trial motion hearing, State gave notice of its intent to introduce testimony regarding the characteristics and behavior patterns of sexually abused children. Buller responded:

[I]f and when that does come in, I guess I can make the appropriate objection at that time ... but I guess I’ll make my objection on the basis that I think it invades the province of the jury and hits on the ultimate issue.

I disagree with the majority that this does not constitute an adequate objection. I must note that the majority cites to no authority to support this proposition. I also believe that this case is distinguished from cases cited by majority, State v. Garton; State v. Dirk and State v. Big Head, in that in none of those cases did defense counsel register an objection to the proposed testimony, pre-trial, as here. Nevertheless, introduction of such testimony reaches the level of plain error, as I will discuss, infra.

In the instant case, Dr. Curran, the expert witness, testified at trial regarding her interview with I.B. Dr. Curran testified that, in her field of clinical psychology, a pattern of certain behavior and characteristics of sexually abused children has been established, and that I.B. exhibited many of those characteristics. During cross-examination, the further testimony was elicited from Dr. Curran:

Q: Well, I think you have answered the question partially. But my question is, in [a] ... criminal child sexual abuse case, have you ever testified for the adult defendant?
A: The problem with that is that I don’t get asked to do that. If I say the person didn’t do it, the prosecutor doesn’t prosecute them.

Dr. Curran further testified directly upon the credibility of I.B. stating that “he [I.B.] has one story and that is what happened.” Dr. Curran is a sister in the Catholic church and a clinical psychologist at Sacred Heart Convent in Yankton, South Dakota. Her testimony was devastating to Buller. Clad in sanctity, and making these statements, lent an aura of impeccable truth to her conclusory assertions. A jury would, necessarily, believe that her opinion begot nothing but the truth. An expert may not give an opinion as to the truthfulness of the victim’s allegations. McCafferty v. Solem, 449 N.W.2d 590 (S.D.1989). Her testimony pierced the ruling in United States v. Saint Pierre, 812 F.2d 417 (8th Cir.1987). She was, in effect, testifying as to the truthfulness of the victim’s allegations. Her testimony went beyond the boundaries of the holding in State v. Spaans.

The introduction of this testimony arises to the level of plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court. SDCL 23A-44-15. In State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981), this Court first recognized this legislatively created plain error rule, stating “the rule must be applied cautiously and only in exceptional circumstances.” Brammer, 304 N.W.2d at 114. This ease is an exceptional circumstance. The testimony of an expert witness must not invade the province of the jury. State v. Logue, 377 N.W.2d 151, 157 (S.D.1985). Resolving conflicts in the evidence, passing on the credibility of witnesses, or weighing the evidence, are functions within the province of the jury. Floody, 481 N.W.2d at 257 (Henderson, J., dissenting) (citation omit*891ted). However, through the testimony cited, Dr. Curran did appropriate these functions and usurped the role of the jury. Thereby, this testimony created an aura of special reliability and trustworthiness, by enhancing and approving the credibility of the alleged victim, unfairly prejudicing Bul-ler. See, Bachman, 446 N.W.2d at 278-279. In essence, Dr. Curran certified to the veracity of the allegations by the alleged victim against Buller.

Therefore, I dissent.