State v. Hughes

841 So. 2d 718, 2003 WL 203517
CourtSupreme Court of Louisiana
DecidedJanuary 31, 2003
Docket2002-KK-2455
StatusPublished
Cited by6 cases

This text of 841 So. 2d 718 (State v. Hughes) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hughes, 841 So. 2d 718, 2003 WL 203517 (La. 2003).

Opinion

841 So.2d 718 (2003)

STATE of Louisiana
v.
Michael HUGHES.

No. 2002-KK-2455.

Supreme Court of Louisiana.

January 31, 2003.

*719 PER CURIAM.

We grant the state's mid-trial writ application to consider the ruling of the trial court that respondent may present the testimony of a psychologist and expert in the area of child sexual abuse for purposes of establishing that he does not have the psychology of a child sexual predator and that nothing in his sexual or psychological makeup appears consistent with the allegations of sexual abuse in the present case. For the reasons that follow, we conclude that respondent may not present opinion testimony of this nature to establish it is likely he would not commit the charged acts and to bolster his defense that the allegations made against him by the victim, and other witnesses called by the state to establish other incidents of sexual abuse, are false.

The state charged respondent in a three-count bill of information with aggravated rape, aggravated oral sexual battery, and molestation of a juvenile, in violation of La.R.S. 14:42, 14:43.4 (subsequently repealed) and 14:81.2, respectively. The charged acts all involved respondent's stepdaughter and allegedly took place over a four-year period of time in Louisiana and Florida. Respondent waived a jury and at trial before the court alone the state called not only the victim in the present case but also her two stepsisters, who testified that they, too, had been abused by respondent. The state introduced the testimony regarding other uncharged acts of child sexual abuse allegedly committed by respondent under the authority of newlyenacted La.C.E. art. 412.2(A), see 2001 La. Acts 1130, which provides that at trial of a sex crime committed against a victim under the age of 17 years, "evidence of the accused's commission of another *720 sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant ...."

After the state rested, the trial court granted respondent's motion for a directed verdict on the count charging aggravated oral sexual battery. As to the remaining charges, respondent called to the stand, among other witnesses, Dr. Edward Shwery, a clinical psychologist and an expert in the sexual abuse of children, in support of his defense that the charges made by the victim and her sisters were false and "completely out of character" for him. On the latter point, the defense sought to counter the state's evidence of his "lustful disposition" towards children, as revealed by the testimony of the victim and her stepsisters, with Dr. Shwery's personal and professional opinion, based on his extended interview with respondent in the week before trial, and on the results of several standardized psychological tests administered as part of that process, that respondent is "very moralistic" and that nothing in his psychological makeup or history classified him as a sexual predator or appeared consistent with the allegations of sexual abuse made in the present case. "If they can introduce evidence of lustful disposition," defense counsel argued, "we can introduce evidence of no lustful disposition."

The state objected to any testimony regarding respondent's mental status on grounds that respondent had not entered a dual plea of not guilty and not guilty by reason of insanity and had not provided disclosure of the psychologist's findings and notice of a defense based upon mental condition as a matter of the discovery provisions in La.C.Cr.P. art. 725 and 726. The trial court overruled the objections, reasoning that the defense was "not introducing evidence of a mental defect. In fact, it's just the opposite." At the close of Dr. Shwery's testimony, the court recessed trial and thereby provided the state with an opportunity to seek review of its ruling as to the admissibility of the psychologist's opinion regarding the defendant's moral character and non-pedophiliac sexual disposition. The First Circuit subsequently denied the state's application without comment. State v. Hughes, 02-1804 (La.App. 1st Cir.9/23/02).

We agree with the trial court that an accused in Louisiana is not required to enter an insanity plea, or to provide notice of a defense based on a mental condition, to introduce evidence, assuming that it is otherwise admissible, to establish that he or she is a sane and normal human being with non-deviant sexual predispositions. Cf. La.C.Cr.P. art. 651 ("When a defendant is tried upon a plea of `not guilty,' evidence of insanity or mental defect at the time of the offense shall not be admissible."); State v. Lecompte, 371 So.2d 239, 243 (La. 1979)("Under this statute, evidence of a mental condition or defect is inadmissible when the defendant failed to plead not guilty and not guilty by reason of insanity. Moreover, a mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime."). In the present case, respondent's defense is simply that the victim and her sisters are lying, as demonstrated in part by his lack of a mental defect, disease, or condition manifesting itself in sexual psychopathy.

However, we disagree with the trial court that Dr. Shwery's opinion is admissible on the question of respondent's guilt or innocence. In State v. Dawson, 392 So.2d 445, 447 (La.1980), this Court suggested, in dicta, that "[g]iven the proper foundation, an expert witness might state whether a defendant has the psychological capacity to commit a particular crime." The proposed testimony' in Dawson, *721 properly excluded on other grounds, purported to establish that the defendant lacked the capacity "to obtain sexual gratification through the use of force, violence, or threats, a pertinent character trait in a prosecution for rape." Id., 392 So.2d at 447. However, since Dawson, the overwhelming weight of recent authority in other state jurisdictions considering the question of whether the accused may present expert testimony that he is psychologically unlikely to commit the charged offense has been to exclude expert evidence offered by the defendant in cases of child sexual abuse to establish that he does not fit the profile of a sexual predator or pedophile, or that his responses to standardized psychological tests failed to disclose any underlying sexual pathology or sexual deviancy that might explain sexual abuse of children. See, e.g., R.D. v. State, 706 So.2d 770, 775 (Ala.Crim.App.1997); State v. Person, 20 Conn.App. 115, 564 A.2d 626, 631-32 (1989); State v. Floray, 715 A.2d 855, 857-61 (Del.Super.1997); State v. Parkinson, 128 Idaho 29, 909 P.2d 647, 652-53 (1996); In Re B.J., 316 Ill.App.3d 193, 249 Ill.Dec. 233, 735 N.E.2d 1058 (2000); State v. Price, 43 P.3d 870, 877-78 (Kan.App.2002); Tungate v. Commonwealth, 901 S.W.2d 41 42-43 (Ky.1995); Earnest v. State, 805 So.2d 599, 606 (Miss. App.2002). The decisions reflect a variety of rationales for excluding the evidence, among them the lack of a recognized scientific basis for drawing a nexus between test results or profile scores and actual conduct, Floray,

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841 So. 2d 718, 2003 WL 203517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hughes-la-2003.