Tevlin v. People

LOHR, Justice,

dissenting:

I respectfully dissent. While I agree with the majority that the trial court erred in allowing the social worker to testify as to his opinion of the victim’s truthfulness and the basis for that opinion, I am not persuaded that the error was harmless. Reversible error may not be predicated upon a ruling that improperly admits evidence unless a substantial right of the party claiming error is affected. CRE 103(a). See also Crim.P. 52(a). Here, the defendant has suffered prejudice to a substantial right, for the social worker’s testimony directly corroborated the victim’s testimony identifying the defendant as the perpetrator of the beatings, a fact not established by other independent evidence.

Before discussing the relevant evidence in detail, it is necessary to set the stage. Living in the home at the time of the *343 events in question were the defendant; the victim, then six years old, who was the defendant’s son; the defendant’s wife; and her four children from a previous marriage. At trial, approximately six months after the events in question, those children were fifteen, thirteen, eleven and nine years of age.

The fifteen-year-old son, whom I will identify as S., returned home on a Sunday evening after having been away from the home all week and, according to his testimony, discovered that the victim, his stepbrother, had been badly bruised and cut. Left alone in the house with the boy on Monday morning, S. called the police. Pictures taken by the police on Monday morning showed the victim’s face and body to be covered with bruises and cuts. On that morning, the child told the police that his injuries had been caused when he was beaten with a belt by his father. However, he also told the police, according to the testimony of two of the investigating officers, that his stepmother had hit him or caused some of his injuries as well. On the stand, the boy testified that only his father had beaten him on this occasion. He later testified that his stepmother had hit him before with her hand, that he remembered telling the police officers that his stepmother had punished or hit him, that he agreed that he was telling the truth when he said that to the officers, and that S. had never hit him.

The social worker testified that he believed the child was telling the truth not only when he said he had been beaten — testimony independently and convincingly corroborated by medical evidence and the pictures — but also when he testified that it was the defendant who administered that beating. The basis for this testimony was simply his own investigatory interviews with the victim, the other members of the family, the investigating officers, the victim’s subsequent foster parents and two psychologists. The social worker’s corroborating testimony constituted the only evidence directly and unequivocally identifying the defendant as the perpetrator of the crime. All other evidence that could be seen as corroborating the child’s own equivocal testimony on that subject is either in conflict with other testimony, susceptible of different inferences, or remote in time to the specific episode of abuse at issue.

Fifteen-year-old S., who reported the crime, did not see the beatings. He testified that he learned of the victim’s injuries when S.’s eleven-year-old brother, J., told S. when S. returned home Sunday night that the victim’s body was covered with bruises. J. testified and denied that he told S. this and further denied that the victim had such bruises over his face and body on Sunday evening or Monday morning, except for a bruise on the victim’s lip, explained to J. by his mother as caused by a fall in the bathtub.

S. further testified that the victim would not tell him what happened, but that S.’s mother told him that “Tim [the defendant] had gotten out of hand and I [S.] had to stay home the next day to watch [the victim].” However, the mother denied making these statements and denied that her stepson had been beaten by anyone in the family, including the defendant, at any time. The mother was emphatic that she controlled the discipline in the family and that she did not impose physical punishment because she had been a victim of abuse as a child. She strongly denied that the victim had any bruises or cuts on his face or body when she left the house on Monday morning except for a small cut on the lip from a fall in the bathtub that occurred on Saturday when she was out of the home for a short while. She stated that she required the child to stay home from school on Monday not because he was badly bruised but because he had been fighting at school, a problem she had to correct before he could return to school. She speculated that whatever bruises or cuts were on the victim when the police arrived on Monday must have been inflicted by S. after she left. The record clearly indicates the existence of tension or a conflict of some sort between S. on the one hand and his mother and the rest of the family on the other, even before the report *344 of the child abuse. In particular, S. testified that he had stayed away from home during the week prior to the events in question by permission of his mother, whereas his mother testified that S. was absent without permission, missed his sister’s birthday party, had to be summoned home, and was to be punished by a suspension of various privileges for his disrespect for the family.

All the other members of the family who testified, i.e., the three other children of the mother, completely affirmed and supported their mother’s testimony, including her testimony that their stepfather never or rarely punished or disciplined them or their stepbrother, and never physically; that their mother controlled all the discipline in the family; that she never physically punished any of the children; that the victim had not been beaten by the defendant or anyone else at any time; and that the victim was free of all but the most minor bruise or scratch on his lip when the others left the home on Monday morning. In sum, the only evidence coming from S. that related to the defendant as the perpetrator of the abuse originated from other sources, all of whom contradicted that testimony at trial.

The only other relevant evidence was the testimony from witnesses who saw the defendant strike the victim at a grocery store on three separate occasions, all more than three years prior to the events in question. While this evidence indicated that the father had a potential for child abuse at one time, and raised the permissible inference that the father was still capable of such an act, it does not establish that the father abused the child on the occasion in question.

There was no objective evidence, independent of the testimony of the witnesses, that directly identified or tended to identify the person who assaulted the child. Thus, for the jury to believe the victim’s testimony that it was the defendant who beat the child, the jury had to resolve an issue of the credibility of witnesses whose testimony was in conflict. The social worker’s testimony directly related to that crucial matter of credibility. While the evidence in the record other than the social worker’s testimony might have been sufficient to support a jury verdict of guilty, it cannot be concluded with confidence that the jury would have resolved the issue of credibility in the same manner in the absence of that testimony. For that reason, the error in admitting that testimony cannot be considered harmless. I would reverse and remand for a new trial.