PETER A. PRICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter Price appealed his conviction for sexual activity with a child, arguing that the trial court improperly admitted evidence of his alleged admission to his wife and allowed expert testimony that effectively vouched for the victim's credibility. The Fifth District Court of Appeal reversed and remanded for a new trial, finding both issues constituted reversible error.
The court held that the State violated discovery rules by failing to disclose the substance of the defendant's alleged oral admission, the trial court erred in failing to conduct a Richardson inquiry, and the expert testimony, though culminating in a permissible opinion, improperly vouched for the victim's credibility through carefully crafted questions that created the impression the expert believed the victim was truthful.
[1] A trial court commits reversible error by failing to conduct a Richardson inquiry when the State violates discovery rules regarding oral statements made by the accused.
[2] The State's failure to disclose the substance of an oral admission made by the defendant constitutes a discovery violation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A failure to deny simply does not carry the same evidentiary weight as an outright admission.”
Distinguishes between silence/failure to deny and direct admission, supporting need for discovery of actual admissions
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Join FLexlaw to unlock all legal intelligencePrice was convicted of two counts of sexual activity with a child by a person in familial or custodial authority. During investigation, the defendant'…
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HARRIS, Chief Judge.
Peter A. Price appeals his conviction on two counts of sexual activity with a child by a person in familial or custodial authority. Although he raises several grounds for reversal, we find only two that merit consideration.
DEFENDANT’S ADMISSION
The investigating officer was permitted to testify, over objection, about his conversation with the mother of the victim concerning her encounter with the defendant:
She advised me that right at first he did not — that he did not deny the allegations, but he also did not admit them. And then as I continued to speak with her she related to me that later on further inquiring, keeping with the investigation herself, that her husband he did admit to her that the sexual abuse did happen. In fact, happened but was no longer occurring.
Price contends that the court erred in permitting this testimony without a Richardson inquiry because of the State’s violation of Florida Rule of Criminal Procedure 3.220(b)(1)(C):
(b) Prosecutor Discovery Obligation
(1) [T]he prosecutor shall disclose ...
(c) [T]he substance of any oral statements made by the accused including a copy of any statements contained in police reports or report summaries ...
In responding to the demand for discovery, the State did not indicate that the defendant had made any oral statements. It did, however, supply the investigating officer’s report that indicated “[Mrs. Price] also advised that [the defendant] did not deny the statements made by [the victim] when confronted by her.” The trial court ruled that this report satisfied the rule requirement that the State provide the “substance” of any oral statement made by the defendant. We disagree. This conclusion and the court’s subsequent failure to conduct a Richardson inquiry constitute reversible error. The defendant clearly had no notice that the State intended to present testimony indicating he had admitted to his wife that he had sexually abused their daughter.1 A failure to deny simply does not carry the same evidentiary weight as an outright admission. Admittedly, this court has stated that “When it can be shown that in the context in which a statement was made it was so accusatory in nature that the defendant’s silence may be inferred to have been assent to its truth.” Privett v. State, 417 So. 2d 805, 806 (Fla. 5th DGA 1982). Yet such a failure to deny requires the jury to draw an inference of admission, an inference which the defense may be able to rebut. In this case, however, no inference was required because the officer testified to an outright admission. The State’s failure to give the defendant notice of the alleged admission constituted a discovery violation, and the trial court’s failure to conduct a Richardson inquiry as to whether the defendant was prejudiced by that violation requires a new trial. Smith v. State, 500 So. 2d 125 (Fla.1986).
EXPERTS TESTIMONY AS TO TRUTHFULNESS OF VICTIM’S STATEMENTS
Price contends that an expert witness was improperly permitted, in essence, to testify as to the truthfulness of the victim’s testimony contrary to Tingle v. State, 536 So. 2d 202 (Fla.1988).
This is the testimony:
Q. And in this particular case involving Barbara you had an opportunity over a period of one year to have in excess of 20 one hour sessions with her, is that correct?
A. Yes.
Q. Have you had incidences where children of — that have alleged sexual abuse have — that have not been telling you the truth, have had that kind of steadfastness?
[DEFENSE COUNSEL]: That’s outside the scope of her expertise.
THE COURT: Overruled.
Q. Do they stay with you if they are lying?
A. No. No. They don’t. They lose interest.
[DEFENSE COUNSEL]: Your Honor, I object. This witness is not qualified to tell us if somebody is lying or not.
[THE STATE]: Your Honor, she has been qualified to give her opinion on it. (emphasis added)
THE COURT: The question that was asked is simply her experience. I will let her testify as to what she has observed in her experience.
[DEFENSE COUNSEL]: But the objection is [to] the underlying predicate of the question, that is, that somebody is lying. This witness has no conceivable fashion or way of knowing if a person is lying.
THE COURT: Overruled.
Q. Have you had children that have actually come in and told you that they were lying?
A. Yes.
Q. In order to keep from having to go to these sessions?
A. Yes.
Q. Did Barbara ever do that?
A. No. Q. Based upon your education, knowledge and experience and the time that you have spent, in excess of 20 to 25 hours with Barbara Price, do you have an opinion as to whether Barbara Price has been sexually abused?
A. It’s my opinion that she has been abused.
It is true that the State’s wrap-up question was couched in language attempting to comply with Glendening v. State, 536 So. 2d 212, 220 (Fla.1988):
A qualified expert may express an opinion as to whether a child has been the victim of sexual abuse.
However, it is clear that the State posed carefully crafted questions regarding the counselor’s experience as to the credibility of other children and interspersed questions regarding the victim among these “experience” questions. The juxtaposition of these questions resulted in a clear impression that the counselor believed the victim was telling the truth. The colloquy between defense counsel and the State (underlined above) further reinforced this impression. Although the State’s final question was permissible, when examined in its totality, this testimony constituted an impermissible vouching for the victim’s credibility, thus violating the supreme court’s admonition in Tingle v. State, 536 So. 2d 202, 205 (Fla.1988):
As guidance to the state on retrial, we adopt the position taken by the Eighth Circuit Court of Appeal in Azure
We agree with the Azure court that, in cases such as this, “some expert testimony may be helpful, but putting an impressively qualified expert’s stamp of truthfulness on a witness’ story goes too far.” (Citation omitted.)
REVERSED and REMANDED for new trial.
GRIFFIN and DIAMANTIS, JJ., concur. . This is especially true in light of .the fact that Mrs. Price expressly denied ever telling the investigating officer that her husband admitted sexually abusing their daughter. In fact, she testified that "He denied the fact that he was having any kind of sexual encounter with Barbara. He assured me there was nothing going on between them."
. United States v. Azure, 801 F. 2d 336 (8th Cir. 1986).
Cases With Similar Vibessemantic neighbors from the corpus
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Brown v. State, 640 So. 2d 106 (Fla. 4th DCA 1994)…atively advised the defendant there were no statements. A discovery violation therefore occurred which necessitated a Richardson hearing. Cumbie v. State, 345 So. 2d 1061 (Fla.1977); Dunn v. State, 640 So. 2d 201 (Fla. 4th DCA 1994); Price v. State, 627 So. 2d 64 (Fla. 5th DCA 1993). The fact that the police officer was deposed does not change our opinion that a discovery violation occurred, especially in light of the police officer’s sworn deposition testimony that he could not remember any statements made…
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Hitchcock v. State, 636 So. 2d 572 (Fla. 4th DCA 1994)…direct comment on the victim’s truthfulness. In fact, Bourg’s testimony was improper if the juxtaposition of the questions the State asked Bourg gave the jury the clear impression that Bourg believed the victim was telling the truth. Price v. State, 627 So. 2d 64, 66 (Fla. 5th DCA 1993). In Price, an expert witness testified that the child victim had undergone more than 20 one hour sessions and that children lose interest earlier on if they are lying. The Price court held that this testimony, when examined…
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Geissler v. State, 90 So. 3d 941 (Fla. 2d DCA 2012)…per if the juxtaposition of the questions propounded to the expert gives the jury the clear impression that the expert believed that the child victim was telling the truth. Hitchcock v. State, 636 So. 2d 572, 575 (Fla. 4th DCA 1994); Price v. State, 627 So. 2d 64, 66 (Fla. 5th DCA 1993). Here, Ms. Nad-karni did not opine directly on M.D.’s credibility. Nevertheless, Ms. Nadkarni’s testimony concerning her “medical assessment” that sexual abuse had occurred was based entirely on the history of sexual abuse re…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Glendening v. State, 536 So. 2d 212 (Fla. 1988)
- Smith v. State, 500 So. 2d 125 (Fla. 1986)
- Tingle v. State, 536 So. 2d 202 (Fla. 1988)
- United States v. Azure, 801 F.2d 336 (8th Cir. 1986)
- Privett v. State, 417 So. 2d 805 (Fla. 5th DCA 1982)