Opinion
2012 KA 2061
06-07-2013
STATE OF LOUISIANA v. BARTON W. NAFTZGER, JR.
Walter P. Reed Covington, LA Counsel for Appellee, State of Louisiana Kathryn W. Landry Baton Rouge, LA Michael S. Fawer Covington, LA Counsel for Defendant/Appellant, Barton W. Naftzger, Jr.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany, State of Louisiana
Trial Court Number 453492
Honorable William J. Burris, Judge Presiding
Walter P. Reed
Covington, LA
Counsel for Appellee,
State of Louisiana
Kathryn W. Landry
Baton Rouge, LA
Michael S. Fawer
Covington, LA
Counsel for Defendant/Appellant,
Barton W. Naftzger, Jr.
BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
WHIPPLE , C.J.
The defendant, Barton W. Naftzger, Jr., was charged by grand jury indictment with two counts of aggravated rape (count I, concerning "J.L." and count III, concerning "J.N.") , violations of LSA-R.S. 14:42; and one count of aggravated incest (count II), a violation of LSA-R.S. 14:78.1. The defendant pled not guilty on all counts. Prior to trial, the State severed counts II and III and proceeded to trial only on count I. Following a jury trial, the defendant was found guilty of the responsive offense of sexual battery, a violation of LSA-R.S. 14:43.1. He was sentenced to forty years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, contending the trial court erred by excluding the testimony of the defense's expert psychologist, and that this exclusion violated the defendant's right to present a defense. He also challenges the sentence as "not a lesser included offense" and as excessive. For the following reasons, we affirm the defendant's conviction and sentence on count I.
The victims are referenced herein only by their initials. See LSA-R.S. 46:1844(W).
FACTS
The victim, J.L., was twelve years old at the time of her testimony at trial. In her recorded interview, played at trial, she indicated the defendant was her stepfather. She testified that in January of 2007, she went to defendant's house, which he was remodeling with the help of some of his friends. She went to sleep in the defendant's bed because there was a VCR on her sister's bed. She was wearing a T-shirt, panties, and a pair of jeans. According to the victim, she woke up in the night with the defendant repeatedly pulling her toward him in the bed. He had kicked off her panties. The victim testified the defendant "tried sticking his private in mine, but it was too big and it wouldn't fit."
She testified on August 10, 2012.
The defense stipulated the house was located in Slidell.
On January 25, 2007, registered nurse Tara Price examined the victim for evidence of sexual assault. The victim had redness and tenderness in her vaginal area and a laceration on the lower part of her vaginal opening. The injury was consistent with the insertion of an erect penis or some other object into that area of her body.
The defendant's statement to the police concerning the offense was introduced into evidence at trial. He indicated the victim went to sleep in his room on the night of the incident, while he was sanding the floor at his house. He stated he took her pants off to wash them when he washed his own clothes. He stated he did not know whether or not she was wearing panties. He claimed that at approximately 3:00 a.m., he took a shower and got into bed with the victim, wearing only "boxers." He indicated the victim snuggled up to him during the night. He denied intentionally touching the victim's bare bottom with his bare penis, but claimed he did not know whether or not his penis came out of his boxers.
EXCLUSION OF EXPERT TESTIMONY
(Assignment of Error Nos. 1 and 2)
In assignment of error number 1, the defendant argues the trial court erred in excluding the testimony of the defense expert concerning his evaluation of the protocols followed by the social worker who interviewed the victim at the child advocacy center. In assignment of error number 2, the defendant argues the exclusion of the expert testimony violated his constitutional right to present a defense. He combines the assignments of error for argument.
A determination regarding the competency of a witness is a question of fact. It is well settled that a trial judge is vested with wide discretion in determining questions of fact. Therefore, rulings on the qualifications of an expert witness will not be disturbed on appeal absent manifest error. State v. Young, 2009-1177 (La. 4/5/10), 35 So. 3d 1042, 1046, cert. denied, ____ U.S. ___, 131 S. Ct. 597, 178 L. Ed. 2d 434 (2010).
Louisiana Code of Evidence article 702 addresses the admissibility of expert testimony and provides, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Notably, the Louisiana Supreme Court has placed limitations on this codal provision in that, "[e]xpert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men." Young, 35 So. 3d at 1046-47. The preferred remedy for deficiencies in testimony is effective cross-examination and artfully crafted jury instructions rather than "battles of experts over whether the testimony of every witness is truthful and reliable." See Young, 35 So. 2d at 1050.
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. LSA C.E. art. 704.
Under compelling circumstances, formal rules of evidence must yield to a defendant's constitutional right to confront and cross-examine witnesses and to present a defense. For example, normally inadmissible hearsay may be admitted if it is reliable, trustworthy, and relevant, and if its exclusion would compromise the defendant's right to present a defense. See U.S. Const, amend. VI; La. Const. art. I, §16; Chambers v. Mississippi, 410 U.S. 284, 295 93 S. Ct. 1038, 1045-1046, 35 L. Ed. 2d 297 (1973); Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 1925, 18 L. Ed. 2d 1019 (1967); State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So. 2d 198, 202; State v. Gremillion, 542 So. 2d 1074, 1078 (La. 1989); see also State v. Juniors, 2003-2425 (La. 6/29/05), 915 So. 2d 291, 325-26, cert. denied, 547 U.S. 1115, 126 S. Ct. 1940, 164 L. Ed. 2d 669 (2006).
Additionally, the Louisiana Supreme Court has held:
The right to present a defense does not encompass the right to present expert testimony commenting directly on the credibility of a victim's testimony. State v. Foret, 628 So.2d 1116, 1130 (La. 1993). With respect to cross-examination of eyewitness testimony, "the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform." Watkins v. Sowders, 449 U.S. 341, 347, 101 S.Ct. 654, 658, 66 L.Ed.2d 549 (1981). Given the substantial state interest in prosecuting crimes of violence against protected persons "with a minimum of additional intrusion into the lives of such protected persons," La. R.S. 15:440.1, the legislature may also assume that reasonably competent counsel provided with pre-trial disclosure of the recorded statements made by protected persons possess the requisite tools to prepare for cross-examination as they may in any other case unaided by a psychologist or an investigator, or, for that matter, a law partner, whose contributions may, to some indeterminate degree, or may not, aid in the process. In this context, a defendant's due process right to present a defense and his Sixth Amendment right to the effective assistance of counsel guarantee him no more and no less than what the Confrontation Clause of the Sixth Amendment otherwise secures to him: "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 [1988] (internal quotation marks and citations omitted).State v. In re. A.M., 2008-2493 (La. 11/21/08), 994 So. 2d 1277, 1279-80 (per curiam).
The defendant argues Young only prohibits expert testimony directly attacking the reliability of eyewitness identifications and State v. In re. A.M. only prohibits expert testimony which directly comments on the victim's credibility.
If a direct attack on the reliability of an eyewitness identification or a direct comment on the credibility of a victim is prohibited because it would invade the province of the jury, it does not follow that an indirect attack on reliability or an indirect comment on credibility is permissible. The issue is whether or not the indirect attack on reliability or the indirect comment on credibility would also invade the province of the jury.
At trial, the State offered, and the trial court accepted, Bente Hess Johnson as an expert in the field of forensic interviewing. Johnson interviewed the victim on January 25, 2007. Johnson was the founding executive director of the Mississippi Children's Advocacy Center. She held a Master of Social Work degree and had also completed the course work for a Ph. D. in that field. During her eight years as an interviewer, she had conducted forensic interviews with over 850 children. She indicated she was up-to-date with all appropriate literature involving the forensic interviewing of children. She testified a forensic interview of a child was designed to determine whether or not "something happened," and if something had happened, to elicit as much information about that event as possible.
Johnson indicated the State of Mississippi had adopted a semistructured protocol called "RATAC," which allowed for flexibility and "age appropriate" interviewing of children. RATAC was an empirically-based and researched model on the best practices in forensic interviewing. It had been deemed the gold standard by the Mississippi Court of Appeals.
Johnson testified the protocol was also known as the "Finding Words Course" and the "Corner House Model."
The first step of RATAC was rapport building, which involved talking to the child and allowing them to become comfortable with the interviewer. The next step was anatomy identification, which involved determining what the child called various parts of his or her body. The third step of the protocol was touch inquiry, which involved inquiring if any touching had occurred which the child had disliked or which had made them uncomfortable. The next step of the protocol was determining whether any abuse had occurred. The last step of the protocol was closure, which involved the interviewer addressing a safety plan or prevention.
On cross-examination, Johnson indicated she was familiar with the National Children's Alliance Guidelines (NCAG) and followed those guidelines. Defense counsel asked if NCAG and research suggested the interviewer inquire into whether the child had been coached or not. Johnson indicated she had tested for the reliability of the victim's statement. Defense counsel asked if Johnson was aware, prior to the interview, that the victim's mother was taking her to Oklahoma against her wishes. Johnson indicated she did not have that information before the interview, but learned that information during the interview. Defense counsel asked if the motivation to lie played a role in "doing a proper forensic interview in a child abuse case[,]" and stated, "[y]ou are aware that research, much research, has demonstrated children lie at CAC interviews[.]" Johnson replied she was aware of suggestibility, but not that children lied in CAC interviews. Defense counsel asked "does motivation to lie play a role in a proper forensic interview?" Johnson answered, "[s]ure. You want to attest for the child's ability to lie or if she did lie." Defense counsel asked if Johnson had tested for the victim's motivation to lie. Johnson replied, "[w]ell, through the means of asking questions."
Defense counsel asked Johnson why she had not "follow[ed] up" to find out what "nasty stuff" the victim was talking about. Johnson answered she had further questioned the victim about "nasty stuff," but the victim had been unable "to tell [Johnson] the nasty stuff." Defense counsel asked Johnson if, prior to the interview, she had knowledge that the victim had a history of masturbation. Johnson answered negatively. Defense counsel asked Johnson if it was true that if the masturbation included the use of foreign objects, it could damage her vagina or anus. Johnson answered affirmatively.
Defense counsel asked Johnson if research had shown that exploration of the first time the child discloses the information was significant. Johnson answered affirmatively. Defense counsel asked if it was unusual for a seven-year-old girl to make a revelation of sexual abuse in the presence of a male child. Johnson answered, "I think it was spontaneous." Defense counsel asked Johnson if she had asked the victim why she had not "talk[ed]" to Amanda Meyers (presumably about the abuse) when she was alone with her on the day after the alleged incident. Johnson replied, "I can't recall." Defense counsel asked Johnson if the victim mentioned only her grandfather when Johnson asked if anybody had ever touched her private parts. Johnson answered, "correct." Defense counsel told Johnson that she then asked the victim if anybody else had touched her "down there," and the victim replied, "not that I know of, no." Defense counsel told Johnson that she then asked the victim if "that made you hurt or anything," and asked Johnson if it struck her as unusual that, if the victim had been molested four days earlier, she would not remember that abuse and would only reference her grandfather touching her private parts when washing her. Johnson answered that sometimes children do not disclose everything at one time.
Defense counsel pointed out that Johnson had not followed up on an "inconsistent." Defense counsel explained, prior to being shown the anatomical dolls, the victim had alleged only that the defendant had attempted to put his private to her butt and had not mentioned her vagina. Johnson stated she was really confused. Defense counsel stated, "[the victim] had never mentioned anything about her vagina and [the defendant] before your use of the anatomical dolls, correct?" Johnson answered, "[the victim] used the word private parts. She never used vagina." Defense counsel asked Johnson if she was testifying that there was no inconsistency between the victim's allegations of what the defendant had done before and after the anatomical dolls were brought out. Johnson replied, "I think that she was consistent by what she said and what she demonstrated."
Defense counsel asked Johnson if, in the context of her research study, she was aware of the debate concerning the ethics of using anatomical dolls. Johnson answered affirmatively. Defense counsel asked Johnson if she was aware of "What Can and Should be Said in Court, Expert Witnesses in Child Abuse Cases," by Stephen Ceci and Helene Hembrooke. Johnson answered she was familiar with the work of the authors. Defense counsel asked Johnson if she agreed with the following quote:
That extensive research on the use of anatomically detailed dolls indicates that, at present, there is no evidence that their use constitutes a valid assessment of whether an individual has been sexually abused. Current lack of supporting evidence for the psychometric validity of anatomically detailed dolls as a means of substantiating child sexual abuse, psychologists using these dolls as a diagnostic instrument risk operating in an ethically indefensible manner.
In response to a question from Johnson, defense counsel indicated the referenced research was published in 1993. Johnson stated she thought the research was "dated," and added that Ceci was an advisor for the national training she had taken, and she (Johnson) had not used the dolls for diagnosis, but rather only for clarity. Defense counsel asked Johnson if she recalled that after she showed the victim the dolls, the victim told her she had not told Johnson about "the front." Johnson answered affirmatively, and added that "[s]ometimes children don't have the means or the ways to tell," and that was the purpose of using the dolls for clarity. Defense counsel asked Johnson if NCAG seriously criticized the use of positive reinforcement by the interviewer. Johnson asked for an example, and defense counsel stated, "[d]on't see [the defendant] again." Johnson stated she had not made that comment until the closure of the interview, and then only in reference to the safety plan. Defense counsel asked Johnson if she had concluded that the defendant was guilty when she concluded the interview, and Johnson replied, "I didn't conclude that he was guilty. That's not my judgment." Defense counsel asked Johnson if she had concluded that the victim was telling the truth, and Johnson answered affirmatively.
Defense counsel asked Johnson if she had read "The Evaluation of Child Sexual Abuse Allegations," by Mary Connell. Johnson answered negatively. Defense counsel asked Johnson if she agreed or disagreed with the following: "There is essentially no question that a fairly substantial percentage of non-abused children referred for evaluation are misidentified as abused. In some circumstances, it is entirely possible that the rate of false-positive errors exceeds the rate of valid positive identification."
Johnson stated she had never heard of the referenced research. Defense counsel asked Johnson if she had read about the research showing that the use of positive reinforcement is closely associated with the rate of false allegations. Johnson answered negatively. Defense counsel asked Johnson if any child had ever lied to her, and Johnson answered affirmatively. She added, in the course of a forensic interview, she had also deemed a child to be lying. Defense counsel asked Johnson if she had learned after an interview that a child had given her false information. Johnson answered, "I have had that happen on occasion."
On redirect examination, the State asked if any of the statistics cited by defense counsel indicated that RATAC was a farce. Johnson answered negatively. The State asked if findings had confirmed that RATAC was a good process to determine the truth. Johnson answered, "Yes, [S]ir. It is considered the gold standard in the [S]tate of Mississippi." The State asked if "[i]t's tried and true," and Johnson replied, "[t]hat's what the research suggests."
The defense offered, and the trial court accepted, Stephen Thorne as an expert in forensic psychology and the evaluation of sex offenders. Thorne testified concerning research conducted on "false positives," and that "there is really only kind of one protocol for how you do these evaluations that's accepted and that is considered reliable and valid." He also testified, in general terms, about the relevance of a victim's prior exposure to sexual conduct, including acts of masturbation and the placement of foreign objects in their private parts. Additionally, he testified, in general terms, about "initial outcry," i.e., the initial report of an alleged sexual act. He indicated the first report was the "cleanest," and thereafter, the alleged victim was open to suggestibility, reinforcement, coaching, and "all types of things."
The trial court sustained the State's objection when the defense asked Thorne to explain to the jury the significance of an alleged victim voluntarily putting themselves in a "risk position" that she had just allegedly experienced. The court found Thorne was "about to get into credibility." The defense conceded Thorne would testify "one of the things you do in a forensic evaluation is credibility of witnesses," but claimed he would not comment on the instant case and the credibility of the victim.
The State also objected to the defense having allowed Thorne to view the victim's recorded statement in violation of LSA-R.S. 15:440.5(C). The trial court found the defense had violated LSA-R.S. 15:440.5(C), but refused to strike all of Thome's testimony. The defense proffered the excluded questions and Thome's responses.
The proffered testimony of Thorne indicates he would have testified a victim voluntarily putting themselves in a risk position could be indicative of a cognitive deficiency, such as mental retardation or limited intellectual functioning. Additionally, he suggested it could be indicative of some type of psychiatric disorder or psychological control or manipulation between the alleged perpetrator and the alleged victim.
The trial court also sustained the State's objection to the defense asking Thorne to explain the relevance to a forensic psychologist, in the context of a forensic interview of evaluation, of the motivation of the child to lie. Thorne would have testified, when he performed a forensic evaluation, he assumed the person being interviewed "may have some secondary motive to not tell [Thorne] the truth." He also would have stated there was an appropriate protocol to be used in conducting child sex offense interviews, but it was not used by Johnson. He would have indicated there was no research to support the use of RATAC "in real life situations." He also would have testified the protocol used by the National Institute for Child Health and Human Development "is above and beyond everything else."
Additionally, Thorne would have stated "positive reinforcement" had consistently been shown to be a suggestive technique that decreased the quality of the interview and increased the likelihood of false positives. He also would have indicated positive reinforcement was present in "the technique used by [Johnson]."
The trial court also sustained the State's objection to the defense asking Thorne to testify concerning research on the appropriateness of using anatomical dolls. Thorne would have testified use of such dolls was not "an approved method," and there was no research which showed their use improved the quality of the interview. He also would have stated Johnson's failure to follow up on inconsistencies was a problem in her technique, and there was no appropriate follow-up in her interview with the victim concerning where the victim had slept the second night or why she initially alleged only an unsuccessful attempt "with respect to her butt," but later alleged vaginal penetration. Additionally, Thorne would have testified he was familiar with research concerning children "maintaining lies throughout these forensic interviews."
There was no manifest error in the trial court's exclusion of the challenged expert testimony, which was, in effect, an opinion of the defendant's guilt or innocence. Credibility determinations are made by the trier of fact. See State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932. The testimony would have invaded the province of the jurors as fact finders. See Young, 35 So. 3d at 1048. Contrary to the defendant's argument, the testimony attacked the veracity of the victim based on: her behavior after the offense; her motivations to lie; her account being the product of positive reinforcement, rather than the truth; and her account being unbelievable due to inconsistencies. The trial court found, and we agree, the defense wanted to use Thorne to discredit the interview protocol used by Johnson in order to discredit the victim.
Further, the exclusion of the challenged testimony did not prevent the defendant from presenting a defense; rather, it merely prevented him from using expert testimony to attack the veracity of the victim. He challenged the believability of the victim on the basis of the common knowledge, experience and education of the jury, and thoroughly cross-examined Johnson concerning alleged deficiencies in her interview of the victim. He confronted and cross-examined the victim concerning her account of the incident and her statement to Johnson. (R. 683-743). In response to that cross-examination, the victim conceded she might have "told a fib" or "made up a story" to Johnson about a young boy being in the car when she disclosed the alleged abuse to "Stacy." She also conceded she had a "big imagination."
These assignments of error are without merit.
SENTENCING UNDER LSA-R.S. 14:43.1(C)(2)
In assignment of error number 3, the defendant argues the trial court erred in sentencing him under LSA-R.S. 14:43.1(C)(2) because, although LSA-C.Cr.P. art. 814(A)(8) provides that sexual battery, a violation of LSA-R.S. 14:43.1, is a responsive verdict for aggravated rape, sexual battery should not be considered a lesser included offense. Specifically, defendant notes that in order to be sentenced under LSA-R.S. 14:43.1(C)(2), the offender must be seventeen years of age or older, a fact that is not required for sentencing under the aggravated rape statute.
Prior to amendment by 2008 La. Acts No. 33, § 1, LSA-R.S. 14:43.1(C)(2) provided:
Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
There was no error in imposing sentence under LSA-R.S. 14:43.1(C)(2). The ages of the victim and the defendant were not contested at trial. The indictment listed the defendant's date of birth (4/20/1975), the victim's date of birth (12/15/1999), and that the offense occurred between January 18, 2007 and January 20, 2007. The victim gave her age (7) in her recorded interview and at trial (12). Additionally, her stepmother also testified as to the victim's date of birth (12/15/1999).
In the defendant's statement concerning the offense, he indicated he had graduated from high school, had gone to community college for a few years, had gone to college for a year, had gone back to community college, and had then graduated as an occupational therapy assistant. The presentence investigation report indicated the defendant was thirty-seven years old when interviewed. Further, at sentencing, the defendant did not dispute the applicability of LSA-R.S. 14:43.1(C)(2), but, instead, pleaded for the minimum sentence under that provision. Moreover, the trial court and the jury viewed the defendant and the victim at trial.
This assignment of error is without merit.
EXCESSIVE SENTENCE
In assignment of error number 4, the defendant argues the sentence was excessive because he was a first-felony offender, he had never engaged in impropriety with the victim before the instant offense, the offense was unplanned, he was remorseful, and the evidence was ambiguous.
Louisiana Code of Criminal Procedure article 881.1, in pertinent part, provides:
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
. . .
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
. . .
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
Here, the defendant failed to make or file a motion to reconsider sentence in this matter. Accordingly, review of this assignment of error is procedurally barred. See LSA-C.Cr.P. art. 881.1(E); State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So. 2d 1141, 1143 (en banc per curiam).
CONCLUSION
For the above reasons, the defendant's conviction and sentence on count 1 are hereby affirmed.
CONVICTION AND SENTENCE ON COUNT I AFFIRMED.
2012 KA 2016
STATE OF LOUISIANA
VERSUS
BARTON W. NAFTZGER, JR.
McCLENDON, J., concurs and assigns reasons.
In light of Ms. Johnson's testimony that RATAC was the "gold standard," it would seem that Mr. Thorne's testimony addressing general methodologies of interviewing victims should have been ruled admissible. However, given the extensive cross-examination of Ms. Johnson regarding flaws in the interview technique used, I concur with the result reached by the majority.
I draw a distinction between general questions regarding methodologies or interview techniques utilized as opposed to specific questioning regarding the interview performed by Ms. Johnson, which could be construed as commenting on the victim's credibility.