State v. Butler

349 S.E.2d 684, 256 Ga. 448, 1986 Ga. LEXIS 871

• Court: Supreme Court of Georgia
• Decided: October 29, 1986
• Docket: 43317
• Status: Published

Opinions

Hunt, Justice.

We granted the state’s application for certiorari in this case after the Court of Appeals reversed Gary Wayne Butler’s convictions for statutory rape, aggravated sodomy and child molestation. The Court of Appeals held that the trial court erred in allowing the pediatrician, who had examined the seven-year-old victim, to testify that in her opinion the child had been molested, which was an ultimate issue to be decided by the jury. Butler v. State, 178 Ga. App. 110 (342 SE2d 338) (1986).

The state’s witness, Dr. Ann Fleming, a pediatrician to whom the victim had been referred, testified that she had examined over a dozen sexually abused children and had testified as an expert witness in child abuse cases on at least 10 occasions. Upon her examination of the victim, she noted that the hymen was not intact and that the vaginal opening was larger than normal for a child seven years old. She noted that while not conclusive, this evidence was consistent with sexual abuse and that in most cases of child molestation there is no physical evidence of abuse.

Although she was not permitted to testify as to what the child told her,¹ she did relate that the statement made to her by the child contributed to her conclusion that the victim had been sexually molested. She explained that while the history given by the child and the physical exam conducted by the physician play roles of equal weight in arriving at a medical conclusion, in child molestation cases the history is important because “I think most people who have a lot of training in child development or child psychology understand that children of a certain age who are old enough to know truth from a lie can’t lie about anything they don’t really have an experience about.” Dr. Fleming’s conclusion that the child had been molested was found to be harmful error by the Court of Appeals on the grounds that her opinion was not in reality a medical opinion but one regarding the child’s credibility and that there is no authority “that a pediatrician is better qualified to assess the credibility of a child than the average lay person.”²

1. We cannot agree with the restrictive view of the Court of Appeals that Dr. Fleming’s testimony was merely an opinion as to the child’s credibility, not beyond the ken of the average layman and hence not admissible as an aid to the jury. Dr. Fleming’s opinion that the child had been sexually abused was based on her physical examination of the child as well as on the history related to her by the child. This opinion was admissible under the rule that medical opinions concerning a patient’s physical condition are admissible in evidence even when they are based in part on the physical history elicited from the patient. Petty v. Folsom, 229 Ga. 477 (192 SE2d 246) (1972).

2. Moreover, in Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981), we held that “[e] xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” There is no question that Dr. Fleming was competent as an expert — a pediatrician with expertise in child molestation. Nor is there any question that her conclusion that the child had been molested was one which the jurors would not ordinarily be able to draw for themselves. Thus, Dr. Fleming’s opinion was admissible. Id. OCGA § 24-9-67.³ Her opinion was one of fact, and was not inadmissible as a legal conclusion, compare Cone v. Davis, 66 Ga. App. 229, 234 (5) (17 SE2d 849) (1941) (opinion to the effect that the defendant was negligent) or a conclusion constituting a mixture of law and fact, compare Nichols v. State, 177 Ga. App. 689, 693 (2) (340 SE2d 654) (1986) (opinion that victim had been raped). See generally Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 4 (2) (5 SE2d 214) (1939). Finally, the fact that her testimony indirectly, though necessarily, involved the child’s credibility does not render it inadmissible.⁴ See Smith v. State, supra. We find no error.

Judgment reversed.

All the Justices concur, except Smith, Weltner and Bell, JJ., who dissent.

1 Although not critical to this opinion, the trial court’s exclusion of the child’s statements was erroneous. OCGA § 24-3-4 provides that “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.” Under this Code section the child’s statements about what happened were admissible at trial. This is not to say, however, that her statements about who did it were admissible as this information would not be pertinent to the medical diagnosis. Johnson v. State, 149 Ga. App. 544 (5) (254 SE2d 757) (1979).

2 Judge McMurray with Judge Beasley joining dissented saying that medical opinions are generally partly based on statements by the patient and are admissible as such. OCGA § 24-3-4. Judge Benham, who was joined by Presiding Judge Deen, opined in his dissent that the pediatrician’s testimony was admissible for consideration by the jury as expert testimony on the credibility of children, which was beyond the ken of the average layman. Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981) (battered wife syndrome).

3 “The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” Our holding in Smith u. State, supra, laid to rest any question that such expert testimony is admissible even on ultimate issues. Id. at 619. This holding comports with Rule 704 of the Federal Rules of Evidence which provides, in relevant part: “[T]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The abolition of the prohibition against the admissibility of expert testimony on “ultimate” matters “resulted from the fact that the rule excluding opinion on ultimate facts in issue is unduly restrictive, pregnant with close questions of application and the possibility of misapplication, and often unfairly obstructive to the presentation of a party’s case, to say nothing concerning the illogic of the idea that these opinions usurp the function of the jury.” McCormick, Evidence, § 12 at 27-28 (Cleary ed. 1972). See also Advisory Committee’s Note to Rule 704. However, under the Federal Rules of Evidence as well as our holding in Smith v. State, supra, not all expert testimony on ultimate issues is admissible. The opinions must be helpful to the jury, that is, beyond the ken of the average layman. Rules 701, 702, Federal Rules of Evidence; Smith v. State, supra at 619.

4 We find distinguishable the recent case of United States v. Azure, _ F2d _ (8th Cir. 1986) (Case No. 85-5407, decided Sept. 17,1986), in which the U. S. Court of Appeals for the Eighth Circuit held in a child abuse case that it was error for the trial court to permit a pediatrician who was an expert on child abuse to testify that the alleged victim was believable and that he could “see no reason why she would not be telling the truth in this matter. . . .” Thus, unlike the case before us, the expert in Azure was permitted to testify directly regarding the question of the particular child’s credibility, a question reserved for the jury. Further, the opinion of the expert in Azure, unlike that of Dr. Fleming in this case, was not a medical opinion based on a physical examination of the alleged victim as well as the history given by the alleged victim.