Briggs v. State (No. 2014-000693)
The State indicted Briggs for criminal sexual conduct with a minor in the first degree and lewd act upon a child. At trial, the victim testified Briggs touched her “private” with his “private” and with his mouth, and the jury watched video of two forensic interviews in which the victim explained what happened. Using a special interrogatory verdict form, the jury found Briggs performed “anal intercourse,” “cunnilingus,” and “other intrusion” on the victim. After Briggs’ conviction was affirmed on direct appeal, Briggs brought a PCR action. He claimed, among other things, his trial counsel was ineffective in permitting the forensic interviewer to give opinion testimony that she believed the victim’s accusations to be true. The PCR court granted relief, vacated the convictions, and remanded to the court of general sessions for a new trial.
The Supreme Court described the improper testimony as follows: Arroyo-Staggs (the forensic interviewer) explained to the jury that before the interviews, she stressed to the victim the importance of telling the truth. Second, Arroyo-Staggs testified to her opinion the victim had not been coached. Third, Arroyo-Staggs told the jury “my role is to always find out . . . whether or not the child is able to know the difference between a truth and a lie.” On this point, the solicitor asked, “Do you make an assessment to determine whether or not the child understands truth and lie before you do [the interview],” and she replied, “That’s correct.” Fourth, when the solicitor asked Arroyo-Staggs to “describe for the jury what a forensic interview is,” Arroyo-Staggs answered, “A forensic interview is an assessment that is conducted . . . for the purpose of finding out if something happened or didn’t happen.” Similarly, when asked how she “assess[es] a child’s competency to do a forensic interview,” Arroyo-Staggs testified, “I base a lot of it on my experience and my knowledge and my training in reference to the developmental stages to figure out what has occurred.” Taken together, the Court finds that her testimony “clearly conveyed to the jury that she believed the victim.”
In this case, by informing the jury she conducted the forensic interviews for the purpose of finding out whether the sexual abuse happened, Arroyo-Staggs went far beyond her role as a person who collects facts for the jury to use in the jury’s determination of whether the victim was telling the truth. Arroyo-Staggs invaded the province of the jury and testified she had already made that determination. This testimony directly conveyed to the jury that she believed the victim. Similarly, her testimony that she made the determination the child understood the difference between a truth and a lie before she conducted the interviews is not part of her evidentiary role. Arroyo-Staggs’ testimony not only revealed to the jury that she believed the child knew the difference, but she also indirectly revealed she believed the subsequent disclosure in the interview was the truth.4 There was no purpose for this testimony except to bolster the victim’s credibility, and thus it was improper.
The Court further took issue with trial counsel’s cross examination of the expert, in which he asked her how she could possibly know that the victim was telling the truth.
We can discern no defensible purpose for [trial counsel’s] cross-examination questions. [Trial counsel] did not provide any. As we explained earlier, [trial counsel] testified his strategy was “to say that it didn’t happen, because nobody, her mother, her grandmother, nobody believed the child, that it happened.”[Trial counsel’s] deficiency in these cross-examination questions was that despite this strategy, he made sure the jury knew at least one person believed the child—the expert. In the series of questions and answers quoted above, from which [trial counsel] appears to have gained nothing for Briggs, he permitted a highly-educated, articulate, certified expert witness to provide the jury something that significantly undermined his strategy— an expert who believed the victim.