IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 81,804
STATE OF KANSAS,
Appellee,
v.
WILLIAM DANIEL PLASKETT,
Appellant.
SYLLABUS BY THE COURT
1. Under K.S.A. 22-3202(1), two or more crimes may be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged are of the same or similar character.
2. The decision that a defendant will be tried on separate charges in a single trial lies within the discretion of the trial court.
3. For crimes to be the same or similar to permit their joinder under K.S.A. 22-3202(1), it is not necessary that evidence of one crime be admissible under K.S.A. 60-455 in the prosecution of the other crime.
4. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.
5. In an appeal of conviction of three counts of aggravated incest, the record is examined and it is held: (1) A.W.'s testimony was not a result of false or repressed and recovered memory or hypnosis or a hypnosis-like process and was not erroneously admitted; (2) the trial court did not abuse its discretion in joining the aggravated incest charges for trial; (3) battery is not a lesser included offense of aggravated incest; (4) the cumulative effect of trial errors requires that the convictions of aggravated incest be reversed.
Appeal from Johnson district court; STEVEN R. TATUM, judge. Opinion filed July 27, 2001. Reversed and remanded for a new trial.
Reid T. Nelson, assistant appellate defender, and Thomas A. Pavlinic, of Annapolis, Maryland, argued the cause, and Jessica R. Kunen, chief appellate defender, was with them on the briefs for appellant.
Steven J. Obermeier and Donald W. Hymer, assistant district attorneys, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with them on the brief for appellee.
Douglas R. Richmond, of Armstrong Teasdale LLP, Kansas City, Missouri, was on the brief for amicus curiae False Memory Syndrome Foundation.
The opinion of the court was delivered by
ALLEGRUCCI, J.: William Daniel Plaskett appeals his jury convictions and sentences on three counts of aggravated incest. Plaskett was sentenced to 5-10 years on Count I, 5-10 years on Count II, and 4-10 years on Count III. The sentences run consecutively for a controlling sentence of 14-30 years.
The complaint filed against Plaskett shows that he was charged with violating K. S. A. 21-3603 (Ensley 1988) by the lewd fondling of his adopted daughter, A.W., during the period between January 1, 1991, and September 1, 1991, when A.W. was under the age of 18 years. He also was charged with lewd fondling of his stepdaughter, S.S., during the period between September 1, 1992, and December 1, 1992, when S.S. was under the age of 18 years. The third charge against Plaskett stemmed from the alleged lewd fondling of S.S., which occurred between March 1, 1993, and April 27, 1993, when she was under the age of 18 years.
At the age of 22, defendant married Sherry. They had two daughters, Adrienne and Carly. He and Sherry divorced in August 1983.
Defendant married Norma in September 1983, when Norma's daughter, A.W., was a baby. Norma was never married to A.W.'s biological father, and A.W. did not know him. In February 1984, defendant adopted A.W.
Defendant and Norma separated on January 23, 1991. Their divorce became final on May 1, 1991, and a month later Norma married Jerry. In October 1992, defendant agreed to relinquish his parental right to A.W. and Jerry adopted her.
In July 1991, defendant began dating Valerie. In September 1991, they were married. Valerie had two daughters, S.S. and M.S. Valerie had divorced their father and left Pennsylvania with her daughters in August 1990.
A.W. was born January 28, 1982. She was 16 years old at the time of trial. When A.W. was 12 years of age, in the fall of 1994, she became a patient-resident at Crittenton Hospital, a children's psychiatric facility. A.W. was admitted to the psychiatric hospital after a teacher intercepted a note A.W. passed to a friend in which A.W. wrote about doing research into the occult and nearly passing out by "overdosing" on a variety of prescription and over-the-counter medicines. When first at Crittenton, A.W. was assigned to a psychologist "who didn't have much experience working with issues around sexual abuse and didn't feel comfortable working with [A.W.] and her family." Thus, A.W.'s care was transferred to Jane Heavin. A.W. told Heavin that she had been abused from the time she was about 4 years of age to when she was 8 or 9. A.W. also told the therapist that when she was 11, she had told her mother of the sexual abuse and that her mother got her into therapy. A.W.'s mother testified that before A.W. was admitted at Crittenton, she was unaware that her daughter had been sexually abused.
At trial A.W. testified that defendant physically abused her from when she was approximately 3 years old until she was 8 or 9 years old. She testified that he sexually abused her in 1991 when she was 9.
According to A.W., the physical abuse took several forms. She testified that defendant whipped her with a belt "too many times for me to count." Defendant had her take off her underpants and lean across her bed while he used a full-arm swing to hit her with a belt, sometimes with the buckle. Sometimes she bled. Other times defendant threw her on the floor and pushed her down and once pushed her into a counter. Three or four times when A.W. was 3 or 4 years old, defendant sat on her and hit her with his closed fist from her chin to her rib cage. In addition to his physical abuse of A.W., defendant tormented A.W.'s pets and threatened to hurt her mother.
A.W.'s mother testified that she had seen bruises on A.W.'s buttocks and the backs of her legs on one occasion when A.W. was between 2 and 5 years old. Norma spoke to defendant about it.
The sexual incidents that A.W. described in her trial testimony took place at defendant's apartment during her overnight visits after defendant and Norma separated and before he married Valerie. Defendant would put on the movie "Body Heat," and he and A.W. would sit on the sofa together to watch it. A.W. testified that defendant would become aroused and pull her to him. He would put one hand over her breast and the other hand between her legs. "[H]e would fondle me and caress my clitoris." A.W. denied that defendant inserted his finger into her vagina and stated that during these incidents, defendant was fully clothed, his pants were not unzipped, and he did not masturbate or "climax." A.W. estimated that the incidents lasted from 2 to 5 minutes each and that there were between 10 and 20 incidents. In addition to making her watch "Body Heat" with him, defendant showed A.W. videotapes of grown men and women having sex. A.W. testified that she forgot about these incidents around the time they happened, and then when she was about 11 years old the memories began resurfacing.
Defendant denied any physical abuse of A.W. He denied mistreating any pets.
Defendant denied ever touching A.W. in a sexual way. He testified that he and Norma had owned a videotape of "Body Heat," but he denied ever watching it with A.W.
S.S. was born January 28, 1978. She was 20 years old at the time of trial and lived in Pennsylvania with her father and her younger sister, M.S. On April 27, 1993, while living in Olathe, Kansas, she spoke with the Olathe police and reported being sexually abused by the defendant. She reported two types of incidents.
The first occurred between September and December 1992 when the defendant came into her bedroom in the middle of the night on five or six occasions. According to S.S., defendant climbed into bed with her, he felt her breasts, and once or twice he felt around the area of her vagina. She was clothed, and defendant did not put his hands inside her clothing. S.S. testified that she pretended to be asleep and rolled over, which made defendant stop. Defendant was wearing shorts or "boxers" and touched her only with his hands.
The second was a single incident that occurred at defendant's photography studio on March 29, 1993. S.S. testified that she went to her boyfriend's house after school. Defendant picked her up there and took her to her orthodontics appointment. After her appointment, they went to the Metcalf South Mall to do some packing at defendant's photography studio, which was going out of business. While S.S. packed, defendant left for awhile and returned with a box of condoms. He told S.S. that she needed to know how to use a condom. Standing approximately 8 to 10 feet from S.S., defendant pulled his pants down and started masturbating. He told S.S. that she would have to put a condom on him, and she refused. He insisted, and then S.S. complied. S.S. put the condom on his erect penis, defendant masturbated until he ejaculated, and then he took off the condom and threw it away. This incident occurred between 5 and 6. After it happened, according to S.S., "[w]e just packed up a few more things, and then we left the store." S.S. did not tell her mother. As a result of S.S.'s reporting these incidents to police, she immediately was put into foster care where she stayed for several months and eventually went to live with her father in Pennsylvania.
Defendant denied going into S.S.'s bedroom in the middle of the night and fondling her. Defendant denied that the condom incident occurred.
S.S. testified that she and A.W. were not friends, and she denied talking with A.W. about being sexually abused by defendant. A.W. said that she and S.S. did not get along well, and she denied knowing at the time she disclosed defendant's sexual abuse to her therapist that S.S. had accused defendant of sexually abusing her. The three-count complaint was filed against defendant on March 21, 1997.
Plaskett raises the following issues on appeal:
1. Was the testimony of Plaskett's expert witness on the subject of repressed and recovered memory erroneously excluded?
2. Was A.W.'s testimony of repressed and recovered memory erroneously admitted?
3. Was A.W.'s testimony erroneously admitted for the reason that it had been refreshed by hypnosis or a hypnosis-like process?
4. Was Detective Langer improperly permitted to express his opinion as to the defendant's guilt?
5. Did the trial court abuse its discretion in refusing to admit a clinical record written by a counselor who had treated A.W. but did not testify?
6. Did the trial court erroneously refuse to admit evidence of A.W.'s consensual sexual activity?
7. Was testimony that A.W. fit the profile of a sexually abused child improperly admitted and rebuttal evidence improperly excluded?
8. Did the trial court abuse its discretion in excluding evidence of letters and taped telephone conversations between S.S. and her biological father, who did not testify?
9. Did the trial court abuse its discretion in refusing to sever charges for separate trials of counts based on the allegations of A.W. and S.S.?
10. Did the trial court erroneously sentence defendant to a term of years not authorized by the statute?
11. Should the trial court have instructed the jury on the lesser included offense of battery?
12. Did cumulative trial errors deprive Plaskett of a fair trial?
A.W. testified that she was 9 years old when defendant sexually abused her. She also testified that there was a period of time in which she did not have conscious memories of defendant's conduct. Her memory fluctuations are set out in the following questions and answers on cross-examination:
"Q. [Defense counsel] Okay. When did you first start having these memories of sexual abuse?
"A. I think when I was about 11.
"Q. Now, I want to understand what you're saying there. Is it your testimony that you didn't know or remember these things that happened before then, then these things came back to you? Or what are you saying?
"A. I kind of like pushed them out of my mind, and they started coming back up and resurfacing. So I guess you could say I was just starting to remember them again.
"Q. So in 1991, you remembered from March, that that's when it started, until September that they were happening, knew they were happening then?
"A. Yes.
"Q. Okay. And when did you push them out of your mind?
"A. I can't say.
"Q. Was it during that time frame, during the time it was happening to you, or did a year go by and then all of a sudden you pushed them out of your mind, then remembered them two years later?
"A. It was probably while it was going on.
"Q. Okay. So after each incident you forgot about it? Is that what your testimony is?
"A. No.
"Q. How long would you remember it and then forget about it?
"A. I really don't know."
The following direct examination related to A.W.'s disclosure of sexual abuse:
"Q. [Prosecutor] Now, by 1994, three years later, you still have not told anyone. Is that correct?
"A. That's correct.
"Q. Is there a time where, when you become depressed, your mom enters you into some counseling with an outpatient therapist?
"A. Yes, sir.
. . . .
"Q. At some point during your treatment for the depression, did you disclose to workers there, and specifically Jane Heavin, that you had been sexually abused?
"A. Yes, sir.
"Q. Now, who was Jane Heavin in terms of the part she played in your stay at Crittenton?
"A. She was a social worker that I met with a few times a week, and she supervised the family meetings with my parents.
"Q. Did you have quite a bit of contact with her over the time you were in there?
"A. Yes, sir.
"Q. Did you disclose to her in fact what you've told us here today about the incident with Body Heat?
"A. No. I don't remember giving her any details.
"Q. Okay. And you're not sure whether you did or not, but you did tell her about the incident with Dan Plaskett?
"A. Yes, sir.
"Q. Had you told anyone else about the abuse at that time?
"A. A few months later, I told my mother.
"Q. Okay. But you don't recall having told her before that?
"A. No.
"Q. Do you remember telling anyone at the hospital that you had told your mother?
"A. No, I don't."
The following cross-examination related to A.W.'s disclosure of sexual abuse then occurred:
"Q. [Defense counsel] [A.W.], when is the first incident that you claim you were sexually abused? That you remember?
"A. Do you want a specific date
"Q. Well, as close in time I'm not asking for the impossible. As close a time as you can remember.
"A. It was probably in spring of 1991.
"Q. Okay. So it was after Dan Plaskett had moved out and had separated from your mom, correct?
"A. Correct.
"Q. Which was January 23, or about that date, of '91?
"A. Yes.
"Q. So your testimony is you think it was sometime in the spring of '91 was the first time that ever happened?
"A. Yes.
"Q. Did you tell other people that you were sexually abused prior to the time, from the time you were about 2 or 3 up until the time you were 8 or 9?
"A. I don't remember ever telling anybody that.
"Q. Are you saying you don't remember, or you didn't do that?
"A. I don't remember.
. . . .
"Q. All right. Now, when you talked to Detective Langer and Libby Marks on December 15, 1994, you told them some of the same things you told Mr. Hymer and this jury in court today; is that correct?
"A. That's correct.
"Q. All right. You told, I believe is it correct that the first person you told was Jane Heavin at Crittenton about the sexual alleged sexual abuse?
"A. Yes.
"Q. And then you told your mom after that; is that correct or incorrect?
"A. That's correct.
"Q. And who was the next person you told?
"A. Janet Snower.
"Q. Okay. Now, when you told Jane Heavin, did she ask who the alleged abuser was?
"A. I don't remember telling her. I don't remember telling her any details at all.
"Q. What's the best memory you have of what you did tell her then, Jane Heavin?
"A. I just what I remember is just letting her be aware that I was sexually abused.
"Q. She didn't ever ask you who would have done it?
"A. I don't remember.
"Q. Were you having problems with your memory during the time you were at Crittenton?
"A. No.
"Q. But that's something you don't remember or wouldn't remember?
"A. It was four years ago."
On direct examination, A.W. testified in some detail about the sexual abuse she suffered at the hands of the defendant. She was testifying to events which occurred when she was 9 years old. She was 16 years old at the time of trial. She first told others about the abuse when she was 11 years old. She was not an "adult" woman recalling for the first time the sexual abuse she endured as a child. She was a child testifying to what occurred to her at an earlier age.
At oral argument, counsel, in response to a question from the court, acknowledged that they knew of no case similar to the present case where the issue of repression was raised as to a child recalling sexual abuse occurring earlier in his or her childhood. The appendix to the amicus curiae brief contains an article entitled Can memories of childhood sexual abuse be repressed? by Harrison G. Pope Jr. and James I. Hudson, 25 Psychological Medicine, at 121-26 (1995). The article discusses the criteria necessary to demonstrate the existence of repressed memory of childhood sexual abuse. The first is to confirm that the traumatic event (sexual abuse) did occur. Second, is to establish that the victim developed "psychogenic amnesia" resulting from the trauma. In that regard, "one must first exclude cases in which victims simply tried not to think about events, pretended that the events never occurred, or appeared to derive secondary gains by merely claiming to have amnesia." Finally, the failure of memory must exceed "ordinary forgetfulness."
There is no claim nor does the record reflect that A.W. suffered from amnesia as a result of the sexual abuse. When she was asked if she forgot each incident after it occurred, she said no. A.W. was a 16-year-old girl testifying to acts of sexual abuse that occurred when she was 9 years old. She was testifying as to her best memory of what had occurred. The record does not support a finding that A.W.'s testimony resulted from false or repressed and recovered memory.
Nor does the record support that A.W.'s testimony had been refreshed by hypnosis or a hypnosis-like process called "guided imagery."
Jane Heavin testified at the pretrial hearing that she was unaware of hypnosis being used at Crittenton. When asked if she was aware of the use at Crittenton of any techniques to revive memories, she answered: "Not through hypnosis, or guided imagery, or anything like that, no."
At trial, Heavin described using guided imagery with A.W.:
"At Crittenton, it's a brief strategic -- it's like crisis intervention. So what I specifically dealt with with [A.W.] was crisis intervention in terms of coping skills, getting her to identify her own strengths, getting her in touch with her feelings, getting her in touch with her body in terms of allowing herself to feel hunger, allowing herself to feel physically as well as emotionally, and coping with some of the memories that were coming back.
"And in terms of some relaxation things, some guided imagery things, just a variety of coping skills is what I worked intensely with [A.W.] on."
Heavin denied that the guided imagery had "anything to do with the sexual allegations." She gave this description:
"Guided imagery, what I used specifically was a program that I received from David Oldfield who wrote up a program called "The Journey," and basically it deals with the crisis of adolescence.
"And the imageries that we used in there was with some -- it's like relaxation music, and it's a guided kind of a thing where the kids are invited to go back to a safe place and imagine themselves there, and then from that being called by something or someone to take a journey, to take an experience. And it leads them through a labyrinth of life and what kind of challenges that they have to overcome or face in order to move on, you know."
Defendant would have the court view Heavin's pretrial hearing testimony as contradicting her trial testimony. Although Heavin's testimony is not very clear, on this subject as well as others, it does not appear to be contradictory. What she denied at the pretrial hearing was the use of guided imagery for the purpose of restoring memories. The use of guided imagery that she described at trial was for the purpose of coping with life's events. Thus, although Dr. Terrance Campbell testified that there is no significant difference between guided imagery and hypnosis, that does not signify that guided imagery necessarily was used by Heavin for the purpose of restoring repressed memories. Heavin testified otherwise, and the determination of her credibility was a question for the jury.
When the evidence is viewed in the light most favorable to the prosecution, however, we must say that there is no evidence of hypnosis and it does not appear that A.W.'s recalled memories of sexual abuse were products of hypnosis-like techniques.
Defendant called Dr. Campbell as his expert witness on psychological matters. After hearing a proffer of Dr. Campbell's testimony, the trial court ruled that the witness could testify but not on the subject of "False Memory Syndrome." The trial court stated:
"I have heard the arguments on this for an hour and a half, particularly as to [A.W.] . . . . Dr. Campbell, when I asked him directly, denied that this is an issue of repressed memory. But what he has said in his testimony was that events were suggested to [A. W.] in various ways, and she accepted those suggestions and assumed that they were fact. That's a false memory. I don't know how you get around it. You've dressed it up, but it's false memory.
"And I do believe strongly, based on what I know and what I've heard, that False Memory Syndrome is not generally accepted in the expert's particular scientific field. It's not accepted as a syndrome. Not accepted as one.
. . . .
"Bottom line is, as to [A.W.], I'm not going to allow expert testimony that in effect, in this Court's opinion, amounts to nothing more or less than False Memory Syndrome, an evaluation that leads right to that.
"I am going to allow Dr. Campbell to testify about [S.S.] I note in his qualifications here somewhere that he is a Ph.D. in human development and clinical psychology since 1970, that he's written a number of articles and publications, been involved in a number of organizations and groups related to his training; that specifically he has written a publication called 'Child Custody Evaluations and Appropriate Standards of Psychological Practice'; further, that he has written 'Psychotherapy with Children of Divorce: The Pitfalls of Triangulated Relationships.' That was written in 1992, published in Psychotherapy.
"And I think that his testimony as an expert on the effects of divorce and custody issues is valuable, would help the jury in this case.
"As to this Beginning to Heal, I don't care who testifies to it. I think it's related to evidence that's admissible and has come into evidence, and I don't care how you present that, Mr. Moore. If you want to present it with Dr. Campbell, that's fine with me since he reviewed it and he apparently got out this information. So if that's what you want to do, that's fine."
Dr. Campbell testified about children generally being affected by their parents' acrimonious divorces. With regard to S.S., the witness found evidence of frustration and aggression that were heightened on April 27, 1993, when her expectations of a change of custody were dashed.
With regard to the books Courage to Heal and Beginning to Heal, Dr. Campbell testified that the authors were not psychologists and that both books contained "serious misinformation." The witness prepared a chart, which was admitted into evidence as defendant's Exhibit 99, of parallels between statements made by A.W. and passages from Beginning to Heal. See Bass and Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1992), and Bass and Davis, Beginning to Heal: A First Book for Survivors of Child Sexual Abuse (1993).
While Dr. Campbell was on the stand, defense counsel obtained permission to have the witness testify about behavioral indicators of childhood sexual abuse. A.W.'s Crittenton therapist already had testified that A.W. exhibited a number of such indicators, including her superficial attempt to overdose, trouble sleeping, nightmares, losing weight, not eating, increased anger, yelling, being oppositional, lots of problems at school, and withdrawing from friends. Dr. Campbell testified:
"Behavioral indicators are used in a mistaken attempt at trying to identify people who have been sexually abused, but they fail.
. . . .
"[R]elying on behavioral indicators of abuse will lead the uninformed professional who does it into making an unacceptable frequency of mistaken classifications where they conclude that an individual has been sexually abused when in fact that individual has not been sexually abused."
What Dr. Campbell was not allowed to testify about is whether children cope with childhood sexual abuse by blocking the memory of it. He would have testified that the assumption of a relationship between traumatic experience and repressed memory is premised on Freudian theory, most of which is "thoroughly discredited." He would have testified that no scientific report relates traumatic experience and repression and that "the relevant scientific evidence clearly demonstrates that traumatic experiences are remembered vividly and continuously." Finally, Dr. Campbell would have testified that A.W.'s "memories [of sexual abuse] could very, very easily and likely have developed as a result of a combination of suggestibility, imagination, and the influences of other adults surrounding [her], including the various professional personnel, therapist personnel that she's interacted with, . . . [as well as] the influences of the book Beginning to Heal which [she] testified she . . . read."
As we have seen, the trial court would not permit Dr. Campbell to testify on the subject of repressed memories of childhood sexual abuse on the ground that "False Memory Syndrome is not generally accepted in the expert's particular scientific field" of psychology. The trial court, likewise, would not permit the witness to testify about ways other than from experiencing sexual abuse that A.W. might have developed her story on the ground that it "bears directly on False Memory Syndrome." Since we have concluded that there was no showing that A.W.'s testimony was the result of false or repressed and recovered memory, there was no error in not permitting Dr. Campbell to testify on the subject.
We next consider if the trial court erred in permitting Detective Langer to express his opinion as to the defendant's guilt. On cross-examination, defense counsel asked Detective Langer about how young persons who disclose incest to the police are treated. With particular reference to A.W., the detective testified: "We're telling her she's doing a good job because quite often in cases like this it's hard for kids to disclose things that have happened like this to strangers, and it's often that we do praise them for coming forward and telling the truth. And it's hard. And we praise them for that, for doing something that's as hard as it is." These questions and answers followed the detective's statement:
"Q. You just said you praise kids like this for coming forward and telling the truth?
"A. Tell them they do a good job, yes.
"Q. But your last answer was, we praise kids for coming forward and telling the truth. Did you say that?
"A. I said that, but it's --
"Q. Now, my point is this, and my question is this: That assumes they're telling the truth, doesn't it?
"A. It's hard for a child to come forward, whether it is the truth or not -- but in this case I believe it is the truth -- for a child--"
Defense counsel asked that the detective's declaration of belief in the truth of A.W.'s story be stricken. The trial judge overruled the objection.
On appeal, defendant relies on State v. Steadman, 253 Kan. 297, 855 P.2d 919 (1993). In that case, defendant's murder conviction was reversed on the ground that police witnesses were permitted to testify that in their opinions the defendant was guilty of the crime and exhibited the pressure felt by a guilty person. 253 Kan. at 303-04. The rule articulated by the court was that "[i]n a criminal trial, the defendant has the right to have the jury determine from the evidence whether the defendant is guilty or not." 253 Kan. at 304.
More on point are cases cited in defendant's reply brief concerning the rule that a witness may not express an opinion on the credibility of another witness. In State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986), the court held that it was reversible error for the trial court to have permitted two expert witnesses to express their views on the reliability of the statements of the complaining witness. The court stated:
"[T]he witnesses attempted to serve as human lie detectors for the child and both told the jury that in their professional opinions the child was truthful and the defendant was guilty as charged. We are convinced that it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child's statements." <