Hoglund v. State

DARDEN, Judge,

concurring in result.

While I cannot disagree with the legal reasoning of the majority, I am troubled by the possible effect of the cumulative vouching testimony. As indicated above, even the stated exception for an adult having experience with the child does not allow the witness to make a direct assertion as to the witness’ “belief in the child’s testimony, as such vouching invades the province of the jury to determine what weight to place on the child’s testimony.” Stewart v. State, 555 N.E.2d 121, 125 (Ind. *1751990), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992).

First, I note that the testimony of Dr. Butler provided in the majority opinion took place after several objections and col-loquys. This began as follows:

State: Dr. Butler, in your examination and interview of [A.H.], in your expert opinion do you believe that she is prone to exaggerate or fabricate sexual matters?
Defense: I would object, Your Honor. I think her line of expertise is with regard to medicine, pediatric medicine. I don’t think she has the ability at least from what I’ve heard of everything described as far as her medical background to make an opinion such as what he is asking her to do at this point today.
Court: Response [State]?
State: She has testified that she is a pediatric doctor, she has a specialty with young children, she has some experience dealing with children who have been sexually assaulted or abused. I guess she is not a counselor, but she did interview the child, she is experienced in this area and she deals with children every day.
Court: Anything further [Defense]?
Defense: Yes, Your Honor. If this were a situation [sic] I think we would use a doctor in every case we have that has the ability to see whether or not a child has the ability to tell the truth or not tell the truth in a situation. That’s not something she has the ability to do, no lie detector test has the ability to do that either. Again, I would object to any response on her part, she is not qualified to determine whether or not this girl is telling the truth.
Court: Would you ask the question again [State] and then I’ll rule.
State: Yes, Your Honor, I will also cite some authority for the Court as well.
Dr. Butler, in your interview and examination of [A.H.] did you in your expert opinion, did you believe that she is prone to exaggerate or fantasize in sexual matters?
Defense: Again, I’m going to object — I apologize, I’ll let him finish the question, I apologize.
State: And the Your Honor, I would cite Wright v. State, it’s 581 N.E.2d 978 is one case and a line of cases that stem from that decision. Wright v. State affirmed by (inaudible) v. State, 1995, Stewart v. State found that’s not vouching.
Court: Anything further [Defense]?
Defense: Yes, Your Honor. As far as, first could I ask her a couple of quick questions as far as foundational?
Q: Ma’am, how long did you see this young lady in your office?
A: Over an hour.
Q: Over an hour?
A: Uh huh.
Q: On one occasion?
A: Uh huh.
Defense: Again, Your Honor, I object to the line of questioning. One opportunity to meet ... with an alleged victim, a little bit over an hour and to be able to give an opinion as to whether or not this young lady is telling the truth or is prone to fantasy I don’t think is an appropriate line of questioning for her to give an opinion on. I simply don’t think she’s got the foundational background to give an opinion such as that based on her medical expertise. And again, I would object to any opinion from her regarding something along those lines of questioning.
Court: Anything further?
State: No, Your Honor.
*176Court: Objection overruled. You may answer the question Dr. Butler.

(Tr. 81-82).

As can be seen, the trial court did not promptly rule on Hoglund’s initial objection. Moreover, Dr. Butler’s answer — to which defense counsel again objected — expressly stated that she “believe[d] that what [A.H.] told [her] was the truth-” (Tr. 82). Thus, Dr. Butler expressed her “belief in the child’s testimony,” or imper-missibly “vouch[ed]” for the testimony of A.H. Stewart, 555 N.E.2d at 125.

The defense again objected; another colloquy followed; and the State agreed that the answer would be a legal conclusion. Nevertheless, the trial court did not rule on the objection and allowed the State to ask “a different question.” Tr. 83. The State then asked, “Do you believe that [A.H.], based on your experience with her, is prone, was she prone to exaggerate or fantasize? That would be the question I guess.” Id. Dr. Butler answered, “In regards to what she told me, no.” Id.

At this point, the trial court instructed that jury “that her comment regarding her opinion regarding whether she was truthful or not is stricken from the record and you should treat that as if it had never been said.” Tr. 83. Unfortunately, the jury was now asked not to hear a bell that it had already heard rung several times.

Following Dr. Butler’s testimony, the jury heard the testimony of Christine Shestak, a licensed mental health counsel- or who had also interviewed A.H. After establishing her credentials and that she had met with A.H. on two occasions, as quoted by the majority, Shestak was asked whether “based on [her] contacts with the victim,” she “perceivefd] any indication that she may have fabricated the story about her abuse out of some need.” (Tr. 120). When the defense objection was overruled, Shestak answered that A.H.’s “statements were congruent.” Id. “Congruent” is defined as “in agreement.” Webster’s Third New Int’l Dictionary 479 (4th ed.1976). To me, Shestak effectively expressed her belief in A.H.’s account. Moreover, following her answer to this question, Shestak subsequently testified at length as to “the details” provided by A.H. Id. at 122.

Although, as stated, I find the cumulative vouching testimony heard by the jury to be troubling, there is “no entitlement to a perfect trial.” Camm v. State, 908 N.E.2d 215, 237 (Ind.2009) (Shepard, C.J., dissenting); see also Riley v. State, 489 N.E.2d 58, 61 (Ind.1986); White v. State, 257 Ind. 64, 77, 272 N.E.2d 312, 319 (1971). Thus, the critical question to me is whether the vouching testimony of Dr. Butler and Shestak was so prejudicial to Hoglund that reversal is required. Considering the totality of the circumstances — specifically, the articulate and detailed testimony of A.H., and Hoglund’s own testimony as to how A.H. would not have been aware of such details without having personally experienced them with him — I conclude that the vouching testimony was not ultimately so prejudicial as to require reversal. Therefore, I respectfully concur in the result.