Opposition Brief — Pablo Gutierrez, Petitioner v. Florida

Supreme Court briefApr 21, 2025

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No. 24-6300

In The

Supreme Court of the United States

PABLO GUTIERREZ,

Petitioner,

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

APPENDIX

A0001

State’s discovery submission, February 22, 2019, case number

201CF001268AMB, 15th Judicial Circuit of Florida ................................ A3

II.

Transcript of pretrial hearing on the admissibility of the recorded

statements of the child victims, November 15-16, 2021, case number

201CF001268AMB, 15th Judicial Circuit of Florida ................................ A7

III.

Excerpt of trial transcript containing testimony of child victims, case

number 201CF001268AMB, 15th Judicial Circuit of Florida ............... A180

IV.

Excerpt of trial transcript containing audio recordings of statements

of child victims, case number 201CF001268AMB, 15th Judicial

Circuit of Florida .................................................................................... A340

Excerpt of trial transcript containing colloquy of Gutierrez, case

number 201CF001268AMB, 15th Judicial Circuit of Florida ............... A472

VI.

Initial Brief, page 35, case number 4D23-1523, Florida Fourth

District Court of Appeal .......................................................................... A474

A0002

Filing# 85339149 E-Filed 02/22/2019 10:04:58 AM

IN THE CIRCUIT COURT OF THE FIFTEENTH

JUDICIAL CIRCUIT, CRIMINAL DIVISION

IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO.2019CF001268AMB

DIVISION "U"

DISCOVERY EXHIBIT (ANSWER TO NOTICE OF

DISCOVERY); DEMAND FOR RECIPROCAL DISCOVERY

EXHIBIT AND

DEMAND FOR NOTICE OF ALIBI

STATE OF FLORIDA

vs.

PABLO GUTIERREZ

The State of Florida, by and through the undersigned Assistant State

Attorney,

hereby responds to the Notice of Discovery made on behalf of the

Defendant, pursuant to Rule 3.220(a)&(b), Florida Rules of Criminal Procedure,

and gives notice that all information and material as defined by Rule 3.220(a),

Florida Rules of Criminal Procedure, within the State's possession or control

has been disclosed to the Defendant by providing copies of all reports and

statements in the State Attorney's file to the Attorney for the Defendant.

The

State hereby demands a Reciprocal Discovery Exhibit and all disclosure required

by the Defendant, pursuant to Rule 3.220(a) (c)&(d), Florida Rules of Criminal

Procedure.

Further, the State hereby demands Notice of Alibi pursuant to Rule

3.200, Florida Rules of Criminal Procedure.

The Attorney for the Defendant,

PUBLIC DEFENDER -

DIVISION U,

hereby granted permission to inspect, copy, test, and photograph the information

and material described within the documents attached to this answer, or which

is being held in the custody of the investigating law enforcement agency,

prior notice has been given to the undersigned of any such inspection, copying,

testing, or photographing.

Respectfully submitted,

DAVID ARONBERG

STATE ATTORNEY

Isl

By:

LINDSAY BRUNO

000119

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 02/22/2019 10:04:58 AM

A0003

Assistant State Attorney

Florida Bar No. 58281

000120

A0004

FELONY DIVISION EVIDENCE CHECKLIST

YES

[X]

[]

STATEMENTS OF WITNESSES

-CPT

Interview;CPT Interview;

--CPT

Interview,

[X]

[]

Reports and

STATEMENT OF DEFENDANT

Control CallRecorded

[]

[X]

STATEMENT OF CO-DEFENDANT

[]

[X]

CERTIFIED COPIES OF DEFENDANTS CONVICTIONS

[X]

[]

OTHER EVIDENCE

[]

Accident Report

[X]

[]

Arrest Report/ Notice to

Appear

Probable Cause Affidavit

Photocopy of Def's DL

Narcotics

911 tape and CAD

Victim Medical Records

EMT Reports

Citations/Driving Record

[]

US Currency

[]

DNA

Restitution Documents

[]

Citations

Photo Line-up

Miranda Card

Surveillance Video

Fingerprints/ Analysis

Toxicology report

Certified Copy of

Injunction/ Proof Service

Affidavit/Application for

Search Warrant

Chemistry Report

Drug Narcotics and/or

Paraphernalia

[X]

[]

Search Warrants

SUPPLEMENTAL/ OFFENSE REPORTS

By:

See below

By:

[X]

[]

[X]Other

PROPERTY RECEIPT

Date:

10/3/18

Offense Report-Detective Wilson 10/2/18

Supplement One-Detective Wilson 10/11/18

Palm Springs PC Affidavit-Agency case number 09-30013

Palm Springs PC Affidavit-Agency case number 10-31477

Offense Report (Agency case #18-115350) D/S Fisher 9/5/18

Supplement One (Agency case #18-115350) Det. Wilson 9/26/18

Supplement Two (Agency case #18-115350) Det. Wilson 10/9/18

Offense Report (Agency case #18-128748) Det. Wilson 10/2/18

000121

A0005

Supplement One (Agency case #18-128748)Det. Wilson 10/11/18

All witnesses, statements and evidence listed in police reports and

disclosed during depositions.

Copies of a11 recordings are to be obtained from the Police Department.

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED by the undersigned that a true and correct

copy of the foregoing Discovery Exhibit (Answer to Notice of Discovery); Demand

for Reciprocal Discovery Exhibit;

and Demand for Notice

of Alibi has been

furnished by E-SERVICE to the Attorney for the Defendant at feldivu@pd15.org

NAME:

PUBLIC DEFENDER - DIVISION U on this,

the 22nd day of February,

2019.

Isl

By:

LINDSAY BRUNO

Assistant State Attorney

Florida Bar No. 58281

000122

A0006

Filing # 177928639 E-Filed 07/21/2023 09:13:31 AM

IN THE CIRCUIT COURT OF THE

FIFTEENTH JUDICIAL CIRCUIT,

CRIMINAL DIVISION IN AND FOR

PALM BEACH COUNTY, FLORIDA

CASE NO: 2019-CF-001268 AXXX-MB

STATE OF FLORIDA

vs.

PABLO GUTIERREZ,

Defendant.

)

MOTION HEARING

(Pages 1-101)

PRESIDING:

HONORABLE KIRK VOLKER

APPEARANCES:

ON BEHALF OF THE STATE:

DAVE ARONBERG, ESQUIRE

State Attorney

401 North Dixie Highway

West Palm Beach, Florida 33401

BY: BRIANNA COAKLEY, ESQUIRE

Assistant State Attorney

ON BEHALF OF THE DEFENDANT:

CAREY HAUGHWOUT, ESQUIRE

Public Defender

421 Third Street

West Palm Beach, Florida 33401

BY: VERONICA HAZZARD, ESQUIRE

Assistant Public Defender

Monday, November 15, 2021

Judge Daniel T.K. Hurley Courthouse

205 North Dixie Highway

West Palm Beach, Florida

2:33 p.m. - 4:15 p.m.

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FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 07/21/2023 09:13:31 AM

A0007

I N D E X

PAGE

Testimony of REDACTED

Direct Examination by Ms. Coakley

Cross Examination by Ms. Hazzard

Testimony of Tracey Piendle

Direct Examination by Ms. Coakley

Cross Examination by Ms. Hazzard

Redirect Examination by Ms. Coakley

Testimony of Shelia Rapa

Direct Examination by Ms. Coakley

Cross Examination by Ms. Hazzard

E X H I B I T S

PAGE

State’s 1

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A0008

BE IT REMEMBERED that the following

proceedings were had in the above-entitled cause of

action before the HONORABLE KIRK VOLKER, one of the

Judges of the aforesaid Court, at the Judge Daniel T.K.

Hurley Courthouse, 205 North Dixie Highway, located in

the City of West Palm Beach, County of Palm Beach, State

of Florida, on Monday, November 15, 2021, with

appearances as hereinbefore noted, to-wit:

* * * * *

THE COURT: Okay, are we ready?

All right,

we’re here on State of Florida versus Pablo

Gutierrez.

intent to offer child hearsay evidence and the

memorandum in support.

I’ve reviewed the State’s notice of

I’ve also reviewed the Defense objection

to the State’s motion.

wish to give me anything like an opening or if you

want to just go into witnesses and then you can

certainly make your arguments afterwards.

I don’t know if you all

MS. COAKLEY: I can start with witnesses, Your

Honor.

THE COURT: Okay.

Sound good to you, Ms.

Hazzard?

MS. HAZZARD: Yes, Your Honor, that’s fine.

THE COURT: All right.

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MS. COAKLEY: Your Honor, the first witness I

have is REDACTED

THE COURT: Okay.

MS. COAKLEY: And that’s as to the single

statement made by --

THE COURT: By her daughter --

MS. COAKLEY:

THE COURT:

MS. COAKLEY: By her daughter, correct, yes.

THE COURT: Just go ahead and face the Clerk,

-- REDACTED --- right.

ma’am, and she’ll place you under oath.

WHEREUPON:

REDACTED

having been called as a witness, and after being first

duly sworn by the Clerk, was examined and testified

under the oath as follows:

REDACTED

THE COURT: If you’d like to just take a seat

Yes.

around the plexiglass on the witness stand and then

you can take your mask off once you’re behind there

just so everybody can hear you more easily.

Thank you very much.

Go ahead, Ms.

Coakley.

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DIRECT EXAMINATION

BY MS. COAKLEY:

Can you please say your name for the record

and spell your last name?

REDACTED

And do you have any children?

Yes.

How many?

Two.

What are their names?

REDACTED

and REDACTED

REDACTED

What is REDACTED date of birth?

REDACTED is 2/24/2012.

Is she now nine years old?

Yes.

And what about REDACTE?

She’s thirteen now.

Now, I want to talk about back in 2016,

REDACTED is 7/3/2008.

And how old is she now?

approximately.

Around that time where were you living?

I was living with the Defendant, Don Pablo --

Okay.

Pablo Gutierrez.

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his home?

Yes.

And so did you rent space in his home, he was

You were living with -- were you renting from

your landlord?

Yes.

And did he also live in the same house even

I rented a room from him.

though you had your own room?

Yes.

Were your two daughters living there with you?

Yes.

What kind of residence was it?

It was a three bedroom apartment --

Okay.

-- complex.

And how many of the rooms in there did you

I had one.

One room.

have?

Now, was there anyone else living

in the home with you all?

Yes.

His son, another -- a friend of his son

and another guy.

Okay. Did they live in the third room?

His son and a friend lived in a room and the

other guy had like a off bedroom that they made.

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Okay.

Yes, I did.

Were you in a relationship with him?

No.

At that time were you working?

No.

Now, were there times where your girls were

And did you pay rent to the Defendant?

Never.

allowed to go into the Defendant’s room?

Yes.

Did he have things in his room that they

liked?

My oldest daughter would charge her laptop in

his room to get away from my youngest daughter because

they constantly fought.

Did he have treats in his room?

Yes.

What kind of treats?

He had popcicles, soda, cookies.

Did he have ice cream?

Yes.

So, he had like a fridge or a freezer in the

room --

Yes.

-- where he kept those things?

Yes.

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Would they watch movies there?

Yeah.

And so, were there times where your daughters

would be in the room with him, with the Defendant in his

room?

Yeah.

Would you be home?

Yes, I would be home but I would be knocking

on the door, making sure they were okay.

Were there times where he would be in the bed

with them occasionally?

I don’t know that.

Now, I want to talk about REDACTED when she

was about six years old --

Uh-huh.

-- in September of 2018.

Okay.

Did there come a time where she disclosed to

you inappropriate behavior that occurred to her from the

Defendant?

Yes.

She told me that -- I remember walking

into the bedroom and she stopped me and she goes,

mommy -- at the time she called him Don Pablo -- said

mommy, Don Pablo touched me with his penis on my pepala.

And what did --

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her, her vagina.

She’s six years old, so pepala, that mean to

Okay.

So pepala, is that the word that your

family used --

Yes.

-- to describe vagina?

Yes.

And so did you understand that to mean her

vagina?

Yes.

And when she disclosed this you said that she

was six years old?

Yes.

Had you been asking her about --

No.

-- anything about that?

No.

Was it completely spontaneous?

Yes.

And what was your reaction.

I was in shock.

No.

I was in disbelief because as

far as I know, he was church going, six years church

leader, prayer group leader.

known him from residents that went to church, stuff like

that.

I met him in the -- I’d

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And did REDACTED identify im by name?

She said Don Pablo.

And that’s who she identified --

Yes.

That’s what she referred to the Defendant as

at that time?

Yes.

Now, did you ask her any additional questions

or did you just leave it at that statement.

Did you tell her -- did she -- did you tell

anyone at that time?

No.

Okay.

I didn’t ask her

anything else.

I just left it at that.

I was in disbelief.

I was in shock.

So, did you think that maybe she was

wrong or confused at that time?

That’s what I thought at that time.

And at that time did you have anywhere else

that you could have lived at easily?

No.

I don’t have any relatives out here.

relatives are in South Dakota.

mom.

years now.

I did not speak to my

I have not spoken to my mom since over fourteen

So, was the Defendant in your family situation

at that time, was that someone that was liked and

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trusted by you?

Yes.

And liked and trusted by the girls at that

Yes.

You didn’t have any kind of dispute with the

time?

Defendant at that time?

No.

Now, you said that she told you that and you

didn’t immediately do anything.

About a month later did

you hear information related to the Defendant’s conduct

to another child?

Yes.

Tell us what happened.

About a month later, DCF and a police officer

in regular clothing came knocking on the door, they

asked me where Don Pablo was. I let them into the house.

They went to his room.

because the other girl,REDACTED mentioned that

something happened to her at school and they wanted to

do an interview with the two girls.

They told me that they’re here

So, who was REDACTE in relation to your girls?

REDACTEDwas a friend of my daughter’s, my

oldest -- both of my daughters.

Is she a little older?

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Yes.

She’s about two year -- two-and-a-half

years older than my oldest daughter, REDACTED

You said they were friends.

Would she come

over to the house?

Yes, she would come over to the house.

They

would play. REDACTEDknown her from when I used to live

somewhere -- used to live by the park.

school together.

They went to

Now, prior to DCF coming, and the law

enforcement officer coming to your house, did you know

anything about allegations involving REDACTED

No, my daughters -- my daughters never acted

any different from what they acted before.

But did you know anything about REDACTE before

DCF came?

No.

And is that what -- that point, about a month

No, I know nothing aboutREDACTEDbefore.

later, is that at what point your -- your children were

taken to the Child Protection Team and interviewed?

Yes.

And it is then that you learned about

inappropriate conduct involving your other daughter?

Yes.

MS. COAKLEY: That’s all the questions I have.

THE COURT: Cross exam.

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CROSS EXAMINATION

BY MS. HAZZARD:

So, you said that your daughter would spend

time with Don Pablo in his room?

Yes.

Okay.

And but you kept an eye out for them?

Yeah.

I would knock on the door, ask her if

she was okay.

everything else.

She would say yes, mommy, I’m, fine, and

And you never saw anything inappropriate?

No.

Okay.

So, when REDACTED told you that Pablo

touched her, that was in September?

Yeah.

Okay.

All she said was mommy, Don Pablo touched me

with his penis on my pepala, that’s all she said,

with her?

And she didn’t give any specifics?

Okay.

And when she said that, you were alone

I was with -- I was in my -- towards my

bedroom with my other daughter when she said that.

Okay.

Yes.

But your other daughter didn’t add to the

So, your other daughter was in the

room?

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conversation?

No.

She didn’t confirm that it happened?

No.

And ultimately, at the time you didn’t believe

REDACTED

No.

MS. HAZZARD: That’s all I have.

THE COURT: Okay, any redirect?

MS. COAKLEY: No.

THE COURT: All right.

Thank you, ma’am, you

can step down.

THE COURT: Your next witness.

MS. COAKLEY: Yes, Your Honor.

witness that I have is Tracey Piendle.

The next

THE COURT: Okay.

WHEREUPON:

TRACEY PIENDLE

having been called as a witness, and after being first

duly sworn by the Clerk, was examined and testified

under the oath as follows:

MS. PIENDLE: Yes, I do.

THE COURT: Go ahead, Ms. Coakley.

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DIRECT EXAMINATION

BY MS. COAKLEY:

Can you please introduce yourself and spell

your last name for the record?

Tracey Piendle, P-i-e-n-d-l-e.

Who do you currently work for?

I’m at the Child Protection Team.

And what is your job there?

I’m the Director of Projects and Training.

What does that mean that you do?

I recently just got a promotion.

I’m

responsible for -- I still currently hold a case load,

so I’m still forensic interviewing.

forensic interviewing, medical evaluations,

consultations.

I’m coordinating

So, I’m currently holding a case load.

also responsible for all forensic interview training for

new hires.

training for forensic interviewing for the Department of

Children and Families, law enforcement, guardian ad

litems.

Attorney’s office and other community agencies.

I’m

I coordinate and hold all of the community

I hold community trainings for the State

How long in total have you been with the Child

Protection Team?

Nineteen years.

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And so, you were back there in 2018?

Yes.

And at that time were you doing forensic

interviews back in 2018?

Yes, I was.

What does the Child Protection Team do?

We act as a consultant for the Department of

Children and Families and law enforcement in providing

services when there are allegations of abuse, neglect,

abandonment, and we provide the services that are

requested from the referral agencies, being DCF or law

enforcement, and providing those services to those

agencies.

Does the Child Protection Team also do

forensic interviews?

Yes, we do.

What is a forensic interview?

A forensic interview is an attempt to obtain

detailed age and a detailed information statement from

an alleged victim in a defendable sound manner, non-

leading, from the child victim.

And you have training for conducting those

types of interviews?

Yes, I do.

Give a brief information about the training

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that you had?

So, I have my bachelor’s degree in social

work, and in regards to specific training with forensic

interview, once you’re hired with the Child Protection

Team, there is on the job training with CPT.

trained through APSAC guidelines, forty hours forensic

interview training.

We are

And then with CPT specifically, we have on the

job training with critiquing the other case

coordinators.

And then with regards to risk assessment,

research, reading articles, we critique the other

interviewers and case coordinators.

conducting your own interviews, we’re on an earpiece for

anywhere from six months to a year before you’re

conducting your own interviews.

And then prior to

You mentioned APSAC, what’s APSAC?

APSAC is the American Professional Society on

the Abuse of Children.

follow with regards to conducting our interviews.

That’s the guidelines that we

Does that set out a framework that you attempt

to follow in doing the interviews?

Yes.

And is there sometimes where you have to

That’s our protocol, yes.

deviate from the guidelines, maybe because of the need

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to the children or what specifically had, is it a hard

and fast rule or are they guidelines?

Yes, it is not scripted.

Now, in general, what does the APSAC

It’s a guideline.

guidelines indicate how an ideal interview should go?

So, the APSAC guideline basically states that

we build rapport with the child.

and we have closure.

We address allegations

So during rapport, basically what we’re doing

is we’re attempting to lower suggestability.

And in

doing that, we’re doing what we call the rules.

do don’t know, don’t guess.

do correct me if I make a mistake, and we go over truth

like competency.

So, we

We do the repeat rule.

We will sometimes do a narrative practice, and

then we will go into the allegations with some

escalation questions, why are you here to see me today,

attempting to get to the allegations in that way.

Are there times where you can’t follow

perfectly all of those because of maybe where the child

goes?

Yes, there is absolutely.

And we essentially

are following the child.

Again, it is not a scripted

protocol, it is a guideline.

for example, comes in and makes a disclosure right off

So, if a child, let’s say

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the bat.

we will do what we can to incorporate, you know, some

things to lower suggestability throughout the body of

the interview.

that.

We adjust our format to follow the child.

And

So, that’s what we’ll do, we adjust

While you’re following where the child goes,

is there times where you’re not able necessarily to

incorporate all of those things?

Yes.

Does that mean that under APSAC, the interview

is invalid or should be --

No.

While you’re talking with the child and doing

those rules, are you also assessing what kind of level

they’re at, their language ability and their skills?

Yes.

And then are you adjusting the questions that

you ask and how you ask them to that?

Yes, we are.

Now, as part of this, you indicated that one

of the things you talk about is the rapport.

Do you

mention to them, if possible, that there’s a camera and

they’re being recorded?

Yes, we do.

And do you discuss with them or try to make a

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determination whether or not they have a fluency with

the concept of a truth versus a lie?

Yes, we do.

And do you do that by asking them in their own

words to explain it?

Yes, we do.

And then also, doing kind of a test or a

question about whether something is a truth or a lie?

Yes.

Now, where are the interviews done?

They’re conducted at the child protection

Is that a kind of stand alone place, it’s not

team.

like connected a police department?

No, it is not.

So, it’s a separate office where they go?

Yes, it is.

Is it child friendly?

It is.

Is it an attempt to make the child

comfortable?

Yes.

Is the interview conducted in a room that is

attempted to be child friendly to make the child be

forthcoming?

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Yes, it is.

Are the parents present?

No.

Is law enforcement present?

No, they are not present in the interview

In the interview room with the child?

No.

And so, is it just you and the child there?

Yes.

And how many times would you say, just a rough

room.

estimate, where you have interviewed a child?

Can you say that again?

How many times would you say you’ve done a

forensic interview?

Approximately two thousand.

Now, have you ever been asked to testify in

Court about those interviews?

Yes, I have.

And when the kid -- when the child comes in,

before you interview them, do you have some type of

information about what the nature of the allegation is?

Yes, we do.

And how is that done?

That would be the information provided by

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either DCF and/or law enforcement, the referral source.

And that’s so generally you have an idea of

kind of what the allegations are and maybe what other

evidence there might be?

Yes.

Now, when the child comes in, do you introduce

yourself to them prior to them coming into the recorded

video room?

Yes, we do.

And the room, is that the room --

MS. COAKLEY: In this case we have two exhibits

that Your Honor, we’re going to enter into evidence

as State’s 1 and 2 that the Court has already

reviewed.

BY MS. COAKLEY:

But the video, does that accurately depict the

room that we’re dealing with?

Yes, it does.

A small interview room with two chairs and a

table?

Yes.

We do an introduction in the lobby first

and then we bring the child back to the interview room.

Now, I want to talk about back in October of

2018.

Did you have the occasion to interview children

by the name of REDACTED

andREDACTED

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REDACTED ?

Yes, I did.

MS. COAKLEY:

And I would like to move into

evidence what’s been -- what I think is going to be

stipulated into evidence as State’s 1 and 2, which

are the interviews respectively.

And Your Honor, can we use the ones that

we’ve --

THE COURT: This is of which children?

MS. COAKLEY: REDACTE and REDACTED, the

THE COURT: Okay.

sisters.

And what would you like to

do?

MS. COAKLEY: I believe we provided them to the

Court.

Can we use those copies?

THE COURT: Well, you just provided one disk to

me that --

MS. COAKLEY: Right.

THE COURT:

MS. COAKLEY: They’re all on one?

THE COURT: Yes.

MS. COAKLEY: Then my notes are wrong, so just

-- everything was on.

we’ll make it State’s 1 then.

THE COURT: Okay.

MS. COAKLEY: And just strike the other two,

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we’ll just have State’s 1.

THE COURT: All right.

Exhibit 1.

Ms. Coakley?

So State Composite

State Composite 1?

MS. COAKLEY: Yes, please.

THE COURT: All right.

(Whereupon, State’s Composite Exhibit Number 1

was received into evidence.)

THE COURT: And do you need my disk?

MS. COAKLEY: Yes.

get another one.

THE COURT: No, I have it, it’s just in my

chambers.

Unless you want me -- I can

MS. COAKLEY: Okay.

And Your Honor, you said

all three were on there, also REDACTED interview?

THE COURT: Yes.

MS. COAKLEY: Okay, so then just for the record

State’s 1 is a composite exhibit including the

Child Protection Team interviews of REDACTED

REDACTED

and REDACTED

THE COURT: Okay.

, REDACTED

BY MS. COAKLEY:

I want to first -- did you do the interviews

in age order, I think, with REDACTED going first?

order, youngest to oldest.

Age

I don’t recall the --

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The order?

-- the order, no.

So, let’s talk about REDACTED

first then

just so we’re clear.

Oh.

How old was she at the time of the interview?

was six years old.

And did you discuss with her whether or not

she knew the difference between a truth and a lie?

I did.

And she was able to make that distinction for

She was.

Was she able to speak with you fluently?

She was.

Did she seem oriented to time, place and what

you?

she was talking about?

She did.

Anything about the language or the content

that was fantastical?

Nothing that stood out.

appropriate.

She was very age

Was she able to recount specifics about the

molestation that occurred by an individual by the name

of Pablo?

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Yes, she was.

Did she seem at some point a little hesitant

or embarrassed?

There were some points that she was a little

reluctant, yes.

Is that unusual?

No.

Is that something that you see frequently?

Absolutely.

You mentioned that you tried to decrease

suggestability, and is a way that you do that by asking

open ended questions predominantly?

Yes.

Is there times, even within the APSAC protocol

where it’s called for even to ask a more leading

question?

Yes.

Go ahead.

Yes.

approach.

of question.

narrative response from a child.

tainted information.

talking.

So, there are -- what we use is a final

So, there’s a time and a place for every kind

So, what we attempt to do is elicit a

So, that is the least

I want the child to do most of the

So that, in essence, is what I’m searching for

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in asking what happened? So, that is not always what

I’m, you know, going to gather from a child that is

reluctant.

that up with a direct or a more focused question.

So, I am always, you know, going to follow

So, there’s a time and a place for all of the

continuum of questions, so that’s a final approach.

what we will start with is an open ended question, and t

hen follow that up with a -- if a child is saying I

don’t know, I don’t remember, with a more direct

question.

So,

And then sometimes a yes and no.

But then after the yes and no, when the child

answers the yes and no, we always follow that up with

tell me more about that, and then what happened.

then sometimes there’s a time and a place for a multiple

choice.

And then again, we open that up with a more

open ended.

continuum of questions.

So, there’s a time and place for all of the

And so all those are considered appropriate

and sometimes necessary?

Yes.

In order to get a full picture?

Yes.

And is that sometimes because of the

And

developmental or cognitive stage that a child is in and

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their ability to recount?

Yes.

And so there might be limitations, or is it

possible or do you consider there might be limitations

on a child’s ability to recount things like the order of

events?

Yes.

Or the time line?

Yes.

Or how many?

Yes.

But does that mean that if they have

difficulty with those things that under minds the

reliability of what they’re saying?

No.

That’s what you would expect?

Yes.

And was she using age appropriate language to

describe her body parts?

Yes, she was.

Was she able to provide descriptions of how

Pablo’s body physically moved during the sexual assault?

Yes, she did.

Was she able to describe him as shaking while

he was inside her?

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Yes, she did.

And offered gestures?

Yes, she did.

To further describe?

Was she able to provide

descriptions of things she saw like his penis?

Yes, she did.

Would she also be able to provide descriptions

of things that she saw happen to her sister or other

children?

Yes, she did.

Did she indicate whether or not she was ever

told not to tell?

I don’t recall if it was her or her sister who

said they were told not to tell, so I don’t want to

guess.

statement --

Yes.

-- whatever would be on the statement?

Yes.

And the entirety of your conversation is on

But everything was recorded as far as on the

the recorded statement?

That’s correct.

Now, did you also have a chance to speak with

REDACTED who is REDACTED

older sister?

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I did.

Was that on the same day?

Yes.

How old was she at the time of your interview?

REDACTEDwas ten years old.

And just so we’re clear, what day did these

interviews take place?

That was on October 2nd, 2018.

Now, in your training and experience at the

Child Protection Team do you not only have training with

how to ask age appropriate questions, but also ask

questions of children who might have some kind of mental

or developmental delay?

Yes.

And does that include a child that might be

diagnosed as being on the autism spectrum?

Yes.

Does that sometimes change a little bit, how

you might approach an interview if a child is on the

autism spectrum?

It does.

Go ahead and explain.

So, I was just taking cues from the child.

far as her ability, she seemed -- I would simplify my

questions.

I would have to maybe repeat them and alter

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my -- or the way I was articulating them.

She seemed to

understand for the most part what I was saying.

have to tweak them just a little bit for her to

understand.

I might

When I went back to view it, she seemed to --

she had difficulty expressing herself when she was

trying to find the words.

more prompting to articulate herself.

did a fine job in explaining herself, but I think she

just needed a little bit more prompting.

And she needed a little bit

But she overall

About what specific information more so you’re

looking for?

Right.

What specifically --

Right.

-- what the question actually is?

Correct.

So, maybe a little more direction?

Correct.

So, I --

She needed a little bit more

direction and a little bit more prompting in explaining

herself.

everything else.

saying, and everything else.

bit more prompting to explain herself.

She kept on saying and everything else, and

She had a word that she kept on

So, she needed a little

And we -- based on the information that you

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were given we found out that REDACTE did have -- is

considered being potentially autistic?

Correct.

Or on the spectrum?

Yes.

And that’s something that you have experience

with in doing interviews with children that have those

types of issues as well?

Yes.

Now, was she -- in this case were you able to

do the truth and the lie as you were previously with her

sister?

I believe I did truth and lie with REDACTE as

Or is she -- kind of you asked her about it

well.

and then she immediately disclosed, I think is what

happened if that refreshes your memory?

I don’t recall if I did.

Okay. That’s fine.

But like we said, if that

were to have happened, the protocol is to follow where

the child is going.

Correct.

And was she able to answer directly about what

happened with the person she identified as Pablo?

Yes, she was.

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And described the circumstances of a

molestation --

Yes.

-- a sexual assault?

Does she also volunteer

a lot of information about other things?

Yes, she did.

But when you directed her to what information

exactly you were looking for, was she able to be

responsive?

Yes, she was.

Did she use age appropriate terms?

She did.

Did she also call -- and as her sister did,

her vagina, her pepala.

Pepala.

Yes.

And she called her breasts tee tees?

Tee tees, yes.

Okay.

And is that the language that she used

throughout the interview when referring to those

portions of her body?

It is.

Now, you mentioned that sometimes you need to

be redirected. Is there anything about that that is

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unexpected or is that something that often happens when

dealing with children, that they need to be redirected

to the pertinent topic?

No, that’s normal.

Sometimes she just would

veer off and just would get distracted on her own little

tangent and just would need some bringing back to the

topic at hand or the question that was posed.

And again, just so we’re clear, this also took

place in that child friendly environment?

That’s correct.

Just you and REDACTE were present?

Yes.

No law enforcement, and not her parents --

No.

-- nothing like that.

Now, finally I want to talk to you about

REDACTED

her?

Did you also conduct an interview of

I did.

When did you first speak with her?

I spoke with her also on October the 2nd,

And how old was she at the time?

She was twelve years old.

Now, initially did she acknowledge whether or

2018.

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not there was any kind of mixed conduct that was done by

the Defendant in this case?

No.

Is that something that’s unusual?

That is not unusual of reluctant children, no.

That is not unusual.

At some point did you learn in the interview

Yes.

And at that point did she start opening up?

She did, yes.

And is it that point where she also starts

that REDACTED

had already disclosed what happened, or one

of the other sisters had disclosed?

disclosing items that occurred to her?

Yes, she did.

And she indicated that there was touching, and

then ultimately that he put something in her vagina?

Yes.

In circumstances where the suspect holds a

position of trust, is it common that children are not

forthcoming immediately?

Can you say that again, I’m sorry?

Especially in circumstances where the suspect

is in a position of trust with the child, do you

commonly see children that aren’t necessarily

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immediately forthcoming?

No, that’s very common.

Ultimately, once she started to disclose, was

she able to describe specific acts to you in detail?

She was able to give some, but she was still

quite reluctant.

Quite reluctant.

Did she describe someone who

would provide her things like ice cream?

Yes.

And desired items?

Yes.

Regularly.

And did she also -- was she able

to ultimately give you some gestures, like for example

gesturing her masturbating him?

Yes.

Right.

-- and put her hand on -- yes.

So, she was able to physically show you --

Yes.

-- and to what he had her do in addition to

That he would take her hand --

just explaining it?

Yes.

And was she also told not to tell anyone?

Yes.

And again, her interview, was she using

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developmentally appropriate language?

She was.

And for the items that she was explaining, was

she able to do so fluently?

Yes.

And that, again, occurred on video?

It did.

In that same Child Protection Team room that

we talked about?

Yes.

Jut you and her present?

Correct.

No law enforcement?

No.

No parents?

No.

No one to unduly influence the interview?

No.

MS. COAKLEY: That’s all the questions I have.

THE COURT: Okay.

Ms. Hazzard, cross exam.

CROSS EXAMINATION

BY MS. HAZZARD:

So, the purpose of the interview is to elicit

as much reliable information as possible?

Correct.

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And as the interviewer, you should attempt to

collect facts in an neutral objective way?

Correct.

And then one way to do this is to interview

the child witness in compliance with the APSAC

guidelines?

Correct.

Okay.

And you already talked about it, so one

of the things you said is important is that you want to

set basic rules?

Yes.

Okay.

Correct.

And the goal of all of this is to lower the --

I guess the chances of suggestability?

Yes.

Okay.

And establish rapport?

Because your role is to find out

information from the interviewee?

Correct.

And your role is not to get the interviewee to

simply confirm information that you’ve learned from some

other source?

To gather information, correct.

Okay.

And we know that it’s important to ask

open ended questions, because we know that sometimes

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children are suggestable to leading questions?

Correct.

And sometimes children may want to please

adults or authority figures.

Yes.

And also, when conducting these interviews,

your demeanor, the interviewer’s demeanor is important?

It is.

Because you want the child to feel safe?

We do.

You want the child to feel comfortable enough

to tell you the entire story?

Yes.

And you also want the child to feel

comfortable enough to correct you when you’ve said

something wrong?

Yes.

And also, during these interviews you’re

checking to make sure the child wasn’t coached?

Yes.

You do this by trying to elicit as much

details as possible?

Correct.

You want the child to be able to answer

followup questions?

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We do.

And you want more than just general

statements?

Yes.

Okay.

So, we talked about REDACTEDalready.

And at the time that you started the interview did you

notice she was on the autism spectrum?

At the time that I interviewed REDACTE, I

believe that there was a question that she may have

been, yes.

Okay.

And it’s clear during the interview she

had some trouble staying on task?

Yes.

Okay.

information?

Irrelevant?

On tangents?

She would go off and I would need to bring her

Okay.

She would go off --

back.

And sometimes she gave irrelevant

So, when you started the interview with

REDACTED you attempted to lay some basic ground rules?

Yes.

You started the conversation about truth and

Yes.

lie?

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And th en she immediately interjected with --

I think her words is the truth is Don Pablo touched me?

Yes.

Okay.

And then after that, that pretty much

ended your inquiry with her regarding truth and lie?

Correct.

And then after that, you didn’t ask her to

promise to tell you the truth?

That’s correct.

Okay.

You did not make sure that she

understood the difference between reality and fantasy?

That’s correct.

You didn’t talk to her about repeated

questions?

No.

And sometimes when you asked her questions,

she didn’t understand your question?

That could be.

Okay.

She gave answers that were unresponsive

to your question?

Yeah, that could be.

Now, I know the protocol is to follow the

child, correct --

Correct.

-- through an interview?

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Correct.

But that doesn’t mean that you shouldn’t

follow -- you shouldn’t set ground rules?

It’s not scripted.

Okay.

It’s a guide.

And the purpose of the guide is to get

reliable information?

Correct.

And the more closely you follow the guide, the

more likely you are to get reliable information?

So, we can incorporate many of the rules into

the body of the interview, and there is other ways of

increasing reliability.

guidelines, doing or not -- the only reason that we do

truth and lie is because it’s required from the State

Attorney’s office.

APSAC guidelines, not necessarily research shows it

doesn’t increase reliability, we only do it because the

attorneys office requires that we do that.

a couple things --

And within the APSAC

The truth and lie is written in the

So, there’s

What about the promise to tell the truth?

The promise to tell the truth, we normally

incorporate that in there.

the reliability.

It does sometimes increase

But those are things that we follow

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the child.

And wouldn’t also knowing if the child can

distinguish between -- the difference between fantasy

and -- I’m sorry, fantasy and -- fantasy and reality,

wouldn’t that increase the reliability?

Knowing whether or not they can distinguish

whether or not, not necessarily, because knowing the

difference between the truth and a lie does not

necessarily mean that the child is going to tell the

truth or going to tell a lie.

What about knowing the difference between a

fantasy and reality?

It doesn’t increase reliability.

Okay.

I did.

Okay.

And you got her to tell you the

difference between it?

Yes.

Okay.

So, you

talked to her about lie versus truth?

So, let’s talk about REDACTED

And then you got her to promise only to

talk about true things?

Yes.

But you didn’t have a conversation with her to

discuss what a promise is?

Yes.

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Yes, you did or you --

Yes.

You had that conversation with her?

To promise to tell the truth?

Yeah.

So, you had a -- you had a

conversation -- well, she promised to tell the truth,

but did you have a conversation with her where you

talked about what a promise is?

I don’t recall.

Okay.

You did not talk to her about fantasy

versus reality?

No.

Okay.

And would you say that she had some

difficulties answering sequential questions, then what

happened next?

Yes.

Okay. She would often say I don’t remember?

Yes.

And then when you said tell me everything you

remember, she often repeated the same phrase?

Yes.

His dick and put -- sorry, he took his dick

and put it in my pepala.

Yes.

So, when you asked her the first time, tell me

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everything, tell me everything you remember, that’s the

exact phrase she used?

Yes.

And then you asked her to tell me another time

and that’s the exact phrase you she used?

Yes.

And then during the interview you also asked

her when was the next time, when you were trying to

figure out when it happened again after the first time?

I asked her when was the next time.

Well, tell me about the next time, I’m sorry.

And she said -- when she started saying every day.

Okay.

I don’t remember the exact verbiage.

Okay.

But do you remember having a

conversation with her where you were trying to figure

out the next time it happened or when it happened, and

she said every day?

Okay, I do remember her saying every day, yes.

Okay.

And then when you asked for -- you went

deeper to try to get what everyday meant.

recall her saying Monday, Tuesday, Wednesday, Thursday,

Friday?

Yes.

And listing all the days of the week?

And do you

And you

tried again to get her to tell you when the next time

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was and she listed all the days of the week again?

Yes.

Okay.

And then also you stated that she used,

I guess, age appropriate language.

that she used that you didn’t quite find age

appropriate?

I’m just going to look at my notes for a

moment if that’s okay.

Uh-huh.

I can direct you.

word molest?

Oh, yes.

Okay.

Did she use the

Is that a word that’s typically used by

a six year old?

Were there any words

It would depend.

I did ask her later where

she learned that because of that.

Okay, and what did you find out?

That she had heard it.

Okay.

In the home.

Was it in relation to what happened to her?

I believe so.

So someone told her that Don Pablo molested

She -- I don’t remember exactly the dynamic

her?

where it -- how it was used, but it was -- she had heard

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it in the home.

interview.

interview?

Correct.

Okay.

things back?

Okay.

I’m asking.

Yes.

Okay.

So, I want to talk about REDACTED

Now, she was not as forthcoming during her

And you believe that she was holding

She didn’t give you the information

that you were looking for?

Was that a question?

Yes, that was a question.

That she did not give me the information that

I was looking for?

why she was present and why DCF had come to see her.

She was saying that she didn’t know.

But those were

questions that she did talk to DCF.

So, those were

things that I know that she did -- that she did know.

Okay.

She didn’t know -- I was asking her

So, you confronted her with that

information?

I did.

Okay.

So, it wasn’t information that I needed -- I

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know that she knew because she had already had that

conversation.

Okay.

So, it was information that you knew

that she knew based on your conversations with other

witnesses involved?

Externally driven information that was already

known, correct.

questions?

I did.

Okay.

So, you started with open ended

But pretty early on into the interview,

you switched to leading questions?

Yes.

You told her what you learned from other

people?

So, I started with the escalation questions,

why did you come to see me, what do you think we need

to -- so, I started with those questions.

the truth?

Okay.

You told her that she wasn’t telling

After the escalation questions, I asked her

what we were here to talk about.

I asked her -- I

confronted her with the externally driven information.

I confronted her with the information that I had already

was given from the Department of Children and Families,

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what she had provided to the Department of Children and

Families.

Talked about the truth and the lie and that

she was not in trouble, and asked her, you know, about,

you know, telling the truth, and telling her that I’m

here to, you know, understand what was going on.

Did you tell her she wasn’t telling the truth?

At some point later on, I did.

Now, I know REDACTE was a reluctant witness.

She wasn’t very forthcoming during this interview?

Yes, that’s correct.

And sometimes child witnesses, they aren’t as

forthcoming.

Was that a question?

Yes.

That’s correct, sometimes they are not

forthcoming.

And with the protocol you should follow the

child’s lead in terms of how comfortable they are in the

interview?

She did not appear to be distressed, so I felt

as though confronting her with externally driven

information in order to assess the situation needed to

happen.

You could have waited and conducted a second

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interview at another time?

Sometimes we will take that into consideration

if children appear to be reluctant to distressed, we

will make that assessment and say, you know, the child

is reluctant or appears to be for whatever reason, is

unable to talk at this point, and we can make a

recommendation for the Department if Children and

Families to make a referral for therapy and let’s make

an appointment at a later date.

We can sometimes make that -- make that

assessment.

I did not feel that at this point, she did

not appear to be at any distress.

that I did ask her if she was okay.

thought that it was okay to confront her with that

externally driven information at that point.

MS. HAZZARD: Okay.

THE COURT: Redirect?

There was a moment

I didn’t -- I

No further questions.

REDIRECT EXAMINATION

BY MS. COAKLEY:

Is that something, making that decision, is

that something that is permissible in this type of

interviews that you do?

It is.

And is it sometimes necessary?

It is.

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And can that especially occur with a child

that might be a little bit older?

Yes.

And a little bit more aware of the

consequences that might happen to someone that they care

about with their disclosure?

Yes.

MS. COAKLEY: Nothing further.

THE COURT: Okay.

May this witness be

released?

MS. COAKLEY: Yes, Your Honor.

THE COURT: Thank you very much, ma’am.

can step down.

Ms. Coakley, does the State have any

You

other witnesses?

MS. COAKLEY: Well, so Your Honor, I do, I have

Dr. Shelia Rapa she is here.

that the Defense is going to call Dr. Michael

Brannon, and it was my intent to call Dr. Rapa as a

rebuttal.

It’s my understanding

I don’t think that expert testimony,

making an assessment of the reliability is

necessarily even a permissible part of Your

Honor -- the analysis that Your Honor has to do,

but I’ve been told that Dr. Brannon is not actually

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testifying until tomorrow now.

THE COURT: Okay.

MS. COAKLEY: So, I can put Dr. Rapa on, but I

think when we look at the statute for child

hearsay, a psychologist looking at the interview

and saying I think this is reliable, I don’t think

this is reliable is not necessarily what the

legislature intended the Court to analyze.

I think you’re supposed to look at

specific factors that are kind of articulate.

have never personally had the Defense call an

expert at a child hearsay motion, but it’s my

understanding that’s what they’re going to do here

to just say that, you know, make an -- so I have an

expert, should that happen.

So, I can call her now, I guess.

THE COURT: Well, I think -- can you call her

tomorrow?

If Dr. Brannon is testifying tomorrow?

MS. HAZZARD: Yes, Your Honor.

THE COURT: Okay.

MS. HAZZARD: Yes.

THE COURT: What time is he coming, like at

I --

1:30.

MS. HAZZARD: I believe we are set at 3:00

tomorrow.

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THE COURT: My JA told me 1:30, like you have

the whole day after 1:30 if you need it.

FEMALE VOICE: It’s at 3:30.

THE COURT: It’s at 3:30.

Well, she just came

in and told me 1:30.

So, I guess it’s 3:30 then.

So if Dr. Brannon testifies at 3:30, say -- I don’t

now how long he’s going to be on, for an hour

maybe, I don’t know, what do you think?

MS. HAZZARD: About an hour.

THE COURT: Okay.

MS. COAKLEY: Yeah.

Your doctor is Dr. Rapa?

She’s here.

I think it

probably would just make more sense to -- because

she’s just going to make -- testify as to her

assessment of the interview.

THE COURT: Okay.

MS. COAKLEY: Instead of making her wait an

whole other day and then us be --

THE COURT: Well, I mean, she wouldn’t be

saying, oh, I don’t think that the Defense’s doctor

is accurate.

and then -MS. COAKLEY: Right, and my understanding is

Brannon is giving his opinion.

THE COURT: Dr. Brannon will give his -- yeah,

I mean, she’s just giving her opinion

okay.

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MS. COAKLEY: That’s kind of my position and

that’s not -THE COURT: I mean, if you want to do it that

way, that’s fine.

MS. COAKLEY:

-- necessarily a permissible

thing to happen at a child hearsay, but --

THE COURT: Well --

MS. COAKLEY: When you look at the factors,

right, it’s just --

THE COURT: I mean --

MS. COAKLEY:

-- the age, the time, the

circumstances.

THE COURT: For example, if a witness is

testifying, you can’t, I don’t think, have an

expert come in and say they’re not telling the

truth.

do you agree?

I mean, I don’t think that you can do that,

MS. HAZZARD: Correct.

THE COURT: Okay.

I agree with that.

So, in this situation what

you’re saying instead is that in Dr. Brannon’s

opinion, for example, maybe the technique used by

the examiner, the CPT examiner was inappropriate

and was suggestive.

MS. HAZZARD: Correct.

THE COURT: And although he’s not saying that

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the witness was lying, he’s saying that the

methodology used by the CPT examiner was fraught

with certain problems that could affect a child’s

ability --

MS. HAZZARD: Correct.

will be testifying --

THE COURT: Okay.

MS. HAZZARD:

THE COURT:

That’s all Dr. Brannon

And I think --

-- to, is the --- that is permissible.

I don’t

think Dr. Brannon can say well, in my opinion that

child is lying, he can’t say that.

MS. HAZZARD: Right, he cannot.

THE COURT: He can only say I don’t believe

that Ms. Piendle’s questioning was appropriate for

the following reasons.

say well, in my opinion I think her questioning was

appropriate for the following reasons, and then,

you know, I’d have to weigh each witness’s

testimony.

And then your expert could

So, I think that is permissible.

They

can’t say the child is lying.

MS. COAKLEY:

that’s fine.

Right.

Okay.

I mean -- and

We’ll just --

THE COURT: And that’s for a jury to determine.

MS. COAKLEY: Yeah, we’ll just -- it’s my

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feeling that -THE COURT: Well actually, it is for me to

determine.

MS. COAKLEY:

THE COURT: Because that’s part of my analysis,

Right, yeah.

but --

MS. COAKLEY:

THE COURT:

Yeah.

-- but they’re not telling me the

child’s lying, they’re just saying how the CPT

examiner was either not conducting herself properly

or was conducting herself properly.

MS. COAKLEY:

THE COURT: So, I think that’s permissible to

Right.

that extent.

MS. COAKLEY:

And so I guess my -- and that’s

fine, Your Honor.

I’m clear.

hearsay evaluation is --

THE COURT: Uh-huh.

MS. COAKLEY:

I’ll have Dr. Rapa -- just so

What I’m saying is that what the child

-- like there is no -- there is

no rule about what’s permissible or not.

So, what

the Court has to say is this is what happened and

their indicative reliability there.

THE COURT: Right.

MS. COAKLEY: And so, him saying well, it

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should have been done a different way isn’t

really --

THE COURT: Right.

MS. COAKLEY:

THE COURT: Well, I think what it does is it --

-- relevant to that analysis.

I think the Defense would argue that it impeaches

the credibility of the CPT examiner.

that’s one of the things you might argue.

Dr. Rapa would testify and you would say, well

Judge, she’s saying that she acted fully

appropriately in the manner that she questioned the

witness.

I mean,

And then

And so for that reason, it shouldn’t

affect the child’s credibility and Dr. Brannon

would be saying well, it might affect the child’s

credibility because of how she acted.

but it might.

It may not,

MS. COAKLEY: Yeah, for the reliability of

the --

THE COURT: The reliability, well, right.

MS. COAKLEY: Yeah, at the same time, he’s not

asking whether or not they’re telling the truth,

right?

hearsay.

The inquiry is as their reliability to the

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MS. COAKLEY: And that would be determined by

the specific circumstances.

THE COURT: I mean, the reliability is a whole

host of factors -MS. HAZZARD: Right, that are laid out by

statute.

THE COURT: One of which is whether or not the

Court thinks the child is even capable of telling

the truth, which I think is really what this is

geared towards as just one of those indicia of

reliability, so --

MS. COAKLEY: Okay.

THE COURT:

MS. COAKLEY: Okay, I’ll get Dr. Rapa.

THE COURT: And I’m assuming tomorrow after Dr.

Brannon’s testimony you would be providing me with

argument, right?

have to take this under advisement because there

are going to be a lot of things that I would have

to put in an order and then have to state it on the

record, which means I would have to prepare an

order and then read it in Court, I believe that’s

what the case law says.

-- yeah.

And then I’m no doubt going to

So, I would probably have to bring us

back before the trial so that you all can be

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prepared with sufficient time to enter my order on

the record.

Would you agree?

MS. HAZZARD:

Yes, Your Honor.

THE COURT: Okay.

MS. COAKLEY: That’s fine.

calendar call on Wednesday, right?

All right.

I think we’re on

THE COURT: We are. But I mean I don’t know

that I would have the order done by Wednesday --

MS. COAKLEY: Yeah, that’s okay.

THE COURT: But it would certainly be done well

before trial.

that’s opened up December 2nd for a whole week with

probably enough jurors for what you all need if you

want to go there on that date, because, you know,

this is an older case.

so I think he would take precedence over a lot of

other trials that would be on two hour call.

And I think we have actually a space

Mr. Gutierrez is in custody

So, I’m just letting you know December

2nd might be an open date for you.

MS. COAKLEY: Okay.

THE COURT: I have one starting this Friday

I’ll --

that’s going to last a week.

MS. COAKLEY: Yeah, every -- like every judge

is doing either a murder or a sex case in the next

three weeks.

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THE COURT: Right.

MS. COAKLEY: So, I hope I will have a

prosecutor for you.

I know I’m special set.

know Ms. Thannikkotu is special set, so like --

THE COURT: Okay.

MS. COAKLEY: Yeah.

Well -But we’ll -- now that

you’re telling me December 2nd, I can go back --

THE COURT: I’m just telling you both it’s --

MS. COAKLEY:

THE COURT: To me, three was a murder case --

MS. COAKLEY: Right.

THE COURT:

-- and find out.

-- it has been continued, so now

that’s open.

MS. COAKLEY: Okay.

THE COURT: So I’ll be picking a two hour call

case to go then.

MS. HAZZARD: Okay.

MS. COAKLEY: Okay.

THE COURT: And I would be able to do that

Wednesday.

MS. COAKLEY: I know I have one also and

another one and Ms. --

THE COURT: On December 2nd?

MS. COAKLEY: Not on December 2nd.

I’m saying

on calendar call on Wednesday in front of Your

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Honor --

THE COURT: Right.

MS. COAKLEY: -- I have one -- I think I have

two, and Ms. Thannikkotu also has another sex case.

THE COURT: Okay.

MS. COAKLEY: But so I will --

THE COURT: It’s going to depend on whether

the --

MS. COAKLEY: What everyone else is --

THE COURT: Typically they’re usually in

custody with charges that are serious --

MS. COAKLEY: Okay.

THE COURT: But how old they are --

MS. COAKLEY: Okay.

THE COURT:

-- would kind of be a way that you

would know who’s going first.

MS. COAKLEY: Sure.

THE COURT: Not necessarily, but that’s

something to consider.

you all know.

Okay, just wanted to let

Let me have our clerk place our witness

under oath.

WHEREUPON:

SHELIA RAPA

having been called as a witness, and after being first

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duly sworn by the Clerk, was examined and testified

under the oath as follows:

DR. RAPA: Yes.

THE COURT: Good afternoon, Dr. Rapa.

DR. RAPA: Hi, how are you?

THE COURT: Fine, thank you.

If you could take

a seat behind the plexiglass and then you can

remove your mask.

DR. RAPA: Thank you.

THE COURT: Thank you.

I mean, there’s no mask

mandate anyway, so you don’t even have to wear

it --

DR. RAPA: Oh, that’s true.

THE COURT:

MS. COAKLEY: I hadn’t heard that at all but --

THE COURT: Yo what?

MS. COAKLEY: I hadn’t heard that yet.

THE COURT: Oh, the chief judge has removed the

-- if you don’t want to.

mask mandate, so no one has to wear masks in the

courthouse anymore.

MS. COAKLEY: Oh.

THE COURT: So just so you know, you can if you

want to though, but you don’t have to.

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DIRECT EXAMINATION

BY MS. COAKLEY:

Could you go ahead and state your name and

spell your last name for the record?

Yes, Shelia Rapa, R-a-p-a.

And what is your occupation?

I’m a clinical and forensic psychologist.

As part -- how long have you been a clinical

and forensic psychologist?

I’ve been licensed since the year 2000.

As part of your practice have you ever been

called upon to examine or speak with children?

Yes.

And as part of your practice, have you ever

been called on to speak with children who have been

victims of sexual assault?

Yes.

Tell us what kind of experience you have with

I began working with sexual abuse victims,

That is one of my specialties.

that.

evaluating and treating sexual abuse victims when I did

my internship at Miami Children’s Hospital.

pre-doctoral internship, so it was before I got my

doctorate that I started.

That was a

I went on after my doctorate to work at the

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Renfrew Center, which is for women that have traumatic

histories.

sexually abused.

I would say eighty percent of those were

I also did work at Kids in Distress.

Kids in

Distress, I evaluated and treated children that had been

sexually abused.

And then I went to work for Chrysalis Health.

I became the chief clinical officer of Chrysalis Health

and I was there for twenty years, a little over twenty.

In that role I did a lot of children forensic sexual

abuse interviewing.

treatment for children who had been sexually abused, on

an outpatient basis and children who had been human

trafficked on an inpatient or a group home basis.

And I have a private practice.

I also created programs for

In my private

practice I would say eighty percent of what I do has to

do with either sexual abuse or sexual perpetration, and

I’m often asked to do forensic sexual abuse evaluations.

Have you ever been asked to review forensic

evaluations that were done by another interviewer?

All the time.

Are there in general standard that you’re

looking for in a sexual abuse interview?

Yes.

Is it one size fit all though?

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It is not.

And just because something happened or doesn’t

happen, does that mean that an interview has been

automatically not reliable?

No.

I mean you can look at an interview and

it can be a sloppy interview, however, you can still

have a very good, solid disclosure in that interview.

There are interviews that there are mistakes

that are made which make the disclosure invalid or it

doesn’t make sense, but in general, no, you can have a

sloppy interviewer and still have a good, solid

disclosure.

And could you even have a good interviewer

that maybe because of the need or the direction brought

by the child, you’re not necessarily able to employ all

those techniques that you might want to in an ideal

situation.

Absolutely.

I think any time you go in to

interview a child, you’re going to be looking at

developmental age, is the child willing to talk?

the child have good communication skills?

explain what happened to them?

Does

Can she or he

And then you’re going to adjust your interview

accordingly.

So, no two interviews should look alike.

There are certain steps we all do in interviews, and

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those are just given.

wiggle room in terms of how you deal with each

particular child and each particular interview.

But after that you have a lot of

Now, let’s talk in general what kind of things

are you looking for in a sex abuse interview?

From the interviewer?

From the child.

Oh, from the child. So, when you’re looking to

see if an interview is going well for the child, what

you should see is a child that you’re going to watch

body language.

responds to general questions when they first some into

the interview, and then how they later respond to sexual

or narrative when they’re giving their sexual narrative.

Is their body language changing?

changing?

You’re going to see how that child

Is their voice

How are they responding to the interviewer?

There are some children that respond immediately.

There

are some children you have to have a long rapport phase

and really get them involved in the interview and think

comfortable in the interview.

You’re going to look at their communication

skills.

Normally, at the beginning of an interview we

ask a child to give a narrative about something that has

happened in their life, not something sexual, and then

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we see, you know, that’s our baseline.

child communicating?

give good detail or little detail?

How is this

What words do they use?

Do they

And then as the child starts to go on and talk

about the sexual things, what words are they using?

Are

they using age appropriate language.

Are they saying

things that a child would never say?

Things that sound

like somebody might have coached them.

Are they giving a logical story or is it

something that makes sense when you hear it?

So,

there’s many things you’re looking at when you’re

watching a child be interviewed.

Now, do we -- you talked about the child’s own

words.

Does it happen that a child hears an adult using

a word that pertains to their situation and then takes

that word?

All the time.

What normally happens is when

children disclose first, if they disclose to a parent,

parents are not professionals.

Parents have their own

reactions.

They say things.

know, sometimes they say things we wish they wouldn’t

say, or they teach things we wish they wouldn’t.

does not take away from the fact that the child can

still give a credible accounting of what happened.

They label things.

You

That

They might have just learned a different word

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or a more mature word.

the whole disclosure of the child sounding like an adult

told them to say this statement, or is there some

childish parts to it and then some maybe adult words

that they learned later?

What you want to do is see is

What about things like the child being able to

give descriptions of things that they saw or they

observed or movements?

Extremely important.

We want a lot of

description.

Something smelled bad, something tasted funny, something

was sticky, any kind of sensory detail is very important

because it shows that this is an experience that the

child had and was immersed in, so detail is something we

look for.

How someone is moving?

Sure.

We would love to hear sensory details.

How someone’s moving, how they were

directed to move, how they were directed to stand or

sit.

These are things that are important.

Now, does the cognitive ability, that level of

description, does that change based on age?

It does.

And also based on individual child cognitive

ability?

Absolutely, and the child’s personality.

Some

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children are naturally more talkative than others and

are going to give you more detail than others.

Now, a younger child, do we have an

expectation of them, that they’re going to be able to

necessarily give us things like order, like say

someone’s less than around six or seven, the order --

Six or seven, no, we’re not expecting -- we

have to be age appropriate in what we’re expecting from

these children.

say -- sometimes they’ll ask them how many times did

this happen?

kind of getting into the weeds asking a six year old how

many times something happened.

know, they could say one time or a hundred times.

If you’re expecting a six year old to

Unless it’s happened once or twice, you’re

Because for them, you

Unless you know that they know how to count

and they know how many times these things occurred, but

it’s very rare.

two or three times to a young child, sometimes they

can’t put a number on that.

If things happened more than once, or

So that might be beyond their capabilities?

Yes, absolutely.

But it doesn’t under mind the description that

they gave?

Oh no, not at all.

Because if you’re asking

them a question like that, it’s really the

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interviewer’s -- the interviewer erred, because you

really don’t ask a young child like that how many times

something happened if the child has already told you it

happened more than once.

Now, when we’re looking, we’re analyzing this,

are we looking for a logical structure in what they’re

describing happened?

Yeah.

The story should make sense.

should -- it really should.

That being said, children

that are very traumatize sometimes put fantasy in the

middle of it.

you’re looking for and if you’re seeing signs of trauma

while they’re talking.

And so, you have to kind of know what

But in general, the story should make logical

sense.

perpetrator started molesting them up until the very

end, and that story should be kind of cohesive.

It should be from, you know, when the

Is it possible to have unstructured portions

where the interviewer has to redirect them into what the

more pertinent or more interesting part to the

interview, I guess --

Yes.

-- maybe not just the child?

All the time.

Yes, all the time.

I’m sorry to interrupt you.

Children don’t realize what details

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are important and what details are not important.

many times they go off on tangents and then the

interviewer brings them back.

Now, let’s talk about the process in general.

Have you reviewed ones that occur at the Child

Protection Team at Palm Beach County?

All the time, yes.

And interviews in general that use the APSAC

guidelines?

Yes.

In general is it common for some questioning

if possible to determine whether or not a child knows

the difference between a truth and a lie?

Yes.

And then we already talked about, I think, the

cognitive testing portion where they’re asking them what

they did that day to assess the child’s capabilities?

Yes.

How descriptive they’re capable of being?

Yes.

And then in general they start with open ended

questions?

Correct.

Are you familiar or have you heard the term of

like the funneling approach?

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Yes.

What does that mean?

So, what you would do is you normally start

with -- you say open ended questions.

I’m going to go a

step before that.

questions you normally have the child give a narrative

where the child just freely tells you, you know, what

happened.

Before you start with open ended

As the child is giving that narrative, you are

asking open ended questions if you need clarification.

Really during that portion of the interview, the

interviewer is not talking much.

doing most of the talking.

guiding it with open ended questions.

The child should be

The interviewer is just

If you have a child that doesn’t give good

detail or that said something to you but you need to

follow up on it and they don’t quite -- you can’t get

them back there, then yes, you would start using a

funneling approach, meaning you would start asking more

detailed or focused questions.

inappropriate questions to ask, you just wouldn’t ask

them at the beginning.

it came toward the end of the interview as you’re trying

to figure out what the child said and get clarification.

Okay.

Those are not

You would definitely ask them as

Let’s talk specifically about the

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interviewer, the interview with REDACTED

Okay.

Oh actually, before I do that, let’s talk --

are there times, especially dealing with an older child,

where it may be clear that the child is not -- is

denying the disclosure.

outside information that the child has disclosed to

someone else.

Is it appropriate and sometimes necessary in

And the interviewer may have

those circumstances to directly confront that child?

Oh absolutely, I think it’s fine.

How it’s

done has to be done delicately.

can even do it on a younger child.

know what, somebody told me something different than

what you’re telling me.

You do not -- and you

You can say, you

Absolutely fine to say.

You cannot then go and say what they said

happened was, and tell the child.

little and letting them know that you heard something

differently or you may have understood it differently is

absolutely fine.

of an interview but I would do that toward the end.

But kind of pushing a

I would not do that at the beginning

And are there situations where disclosing that

you have details from another child might actually make

that child who’s remittent to disclosing become more

comfortable and finally admitting what’s going on?

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Yeah, sure, because they realize somebody else

told the truth so they can too.

Is there a compounding factor when we’re

dealing with children and interviews of this nature if

the sexual abuse is perpetrated by someone that they

like and they trust?

Yes.

There’s so many factors that go in.

Yes, is it someone that they like and trust?

terrified they’re going to get in trouble?

think that they did something wrong?

reasons and so many things you have to look out for.

Now, let’s talk about REDACTED

particular.

us that you noticed about her statement?

Do they

There’s so many

She was six at the time.

Are they

interview in

What can you tell

REDACTED gave a very, very what I believe to

be solid disclosure.

sensory details.

would say something that was wrong, she corrected the

evaluator.

She was able to give many details,

She was able to, when the evaluator

At one point -- she’s very concrete.

She’s

young, she’s six.

At point the evaluator said to her,

so Pablo brought you into his room, and REDACTED was

able to say no.

to see the puppy.

Great.

I went into his room because I wanted

That’s exactly what we want to hear

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from these children, is that they’re able to say no, you

didn’t say it right, it didn’t happen that way.

was able to do that throughout.

And she

She’s also able to give what we would believe

to be childlike details.

molest and the evaluator asked her, how did you learn

that word and she said from her mom.

mom, you know, labeled it for her.

because she was able to actually describe molestation to

the point of describing, you know, someone’s penis or

what they did to her body.

I believe she used the word

That’s fine.

The

It wasn’t a problem

So, her interview was good.

She indicates in her statement that it

happened every day.

For someone in her age bracket, around six years old,

what is her perception of time like?

Right.

We touched on this a little bit.

That would mean, if I would hear a

child say it happened every day, it could have

absolutely happened every day or it could have happened

just a lot of times, and she just doesn’t know how many

times and it felt like every day, because children that

are traumatized in that way don’t necessarily, again,

know the number.

don’t now.

And the younger you are the more you

So for her it felt like it happened a lot.

Were there any details that she was able to

provide that stood out to you in terms of reliability,

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like any specialized or unusual details that only she

would know?

I’m going to look at my notes and I’ll tell

Sure.

Interestingly, she was able to say that it

you.

always included ice cream, that it included playing with

the puppy.

you know, put with somebody who was being sexually

abused, but she was able to say that this happened every

single time, the ice cream or playing with the puppy.

She was able to say that his penis was brown

These are details that we normally wouldn’t,

and peach.

Like peach, interesting word, you know, and

she really gave a good description.

stopped at one point because he heard her mom.

detail you wouldn’t just make up if you’re making up

abuse allegations, that somebody stops when they hear

her mom.

She said that he

Again, a

She said that he was on her and was shaking.

A detail, again, that a child wouldn’t know about, but

it’s something that she experienced, so she was able to

talk about it.

And then she was also able to talk about

seeing it with her sister, and seeing him perform

cunnilingus on her sister.

So, again, you wouldn’t -- a

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six year old doesn’t know about that.

able to describe what she saw was important.

So, her being

Now, we mentioned already on her correcting

the interviewer and were there kind of like spontaneous,

very direct statements?

ask her -- like after she talks about the sexual

assault, and the interviewer asked her where is his

dick?

Yes.

I think there is one where they

That was so interesting and so cute,

like such a six year old statement, because the

interviewer said to her afterwards, what happened to his

dick, I think she said, and the child said it was still

on his body, like she didn’t even -- like she was so

concrete.

see, you want to see that these children are concrete

and answering the way a child would answer.

But again, that’s exactly what you want to

Now, in the totality of the information that

we have in this case, there’s the fact that initially

she tells DCF that nothing happened.

anything about the reliability to you?

No.

Does that impact

This has been studied over, and over, and

over, and most children deny at first.

Then they later

give more tentative disclosures.

give a full disclosure right away.

scared they’re going to get in trouble, and if they love

Very few go in and

Children are very

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the person that abused them, they don’t want that person

to get in trouble either.

I want to talk about her sister,REDACTED

interview.

about that interview?

Was there anything to you that was notable

Yeah,

to me, seemed like she was a

little on the spectrum.

to her.

like a little bit of a speech impediment.

good disclosure also.

because she did -- she was extremely concrete and

really -- and really just needed that evaluator to kind

of help her out more.

very good.

She was ten.

She had some autistic qualities

She had some -- even her speech,

She gave a

She needed a little more guidance

But still, her disclosure was

Now, in your specialized knowledge, how does

someone who may be on the autism spectrum or suffer from

what we, I think sometimes refer to it as Asperger’s,

how do they treat the concept of truth?

Children that have Asperger Syndrome, or

Autistic Spectrum Disorder are very truthful children.

Very rarely do you -- now, all children lie, but very

rarely do you find a child that has Autism Spectrum

Disorder that is comfortable with lying.

black and white.

right, and so normally you get a truthful disclosure

They’re very

They’re very this is wrong, this is

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from them.

Did you see things that REDACTEDsaid that

indicated to you that truth was important to her?

Yes.

And I believe -- I can’t remember

exactly what she said at the beginning, but they asked

her about truth and she said something that was good,

but I’m so sorry, I don’t remember.

But yes, throughout, she would tell, even if

the evaluator would say to her, were you sitting down

or, you know, what happened here or there.

correct and she would tell them, no, I was standing.

No, he turned me around.

what was going on.

She would

She would show with her hands

And did she say something about I wantREDACTED

to tell the truth?

Yes.

Now, I think we can agree that she was

probably a little less concrete than her sister, a

little less clear what information was important.

Yes.

To the interviewer.

Yes.

But was she still able to give specifics that

were unique to her perspective?

She did.

She was able to say that the

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perpetrator taught her how to push his penis -- she said

his pee pee.

evaluator asked her, what do you mean by push, she gave

a gesture of masturbation.

Interesting word, push.

So, when the

So, it was more than just that she was taught

how to do it, she showed that she was taught how to do

it.

sticky and being on her hands and smelling, and she had

to go and get soap and wash it off.

details when a child is talking about sexual abuse.

She talked about him ejaculating and it being

These are excellent

And details that are indicative of other

senses beyond just a specific act, do you think you

talked about touch and smell there?

Yes, absolutely.

Did she talk about sex acts that someone of

her age wouldn’t necessarily know about, but described

them in a childlike manner?

Yes.

Did you notice, though, that there were some

differences though?

weren’t identical?

Right.

The statements between the sisters

I mean, and there’s going to be

differences.

If you’ll remember that children are very

egocentric.

So, what is occurring to them is what’s

important, and what’s happening on the periphery might

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not be as important or they might not remember that.

And so we expect that they’re going to give different

denials?

Now, there’s an interview with a third child

in this case who’s a little bit older, and I want to

just talk briefly about that.

technique of telling the child I know what happened,

that’s not necessarily inappropriate?

We talked about using a

Right.

It might be necessary if especially that child

is very reluctant?

Yes.

And so, if that technique is employed and then

subsequently, you know, or even provides a child details

and subsequently the child discloses, what are you

looking for in that subsequent disclosure?

You still want to look for the same thing.

You still want a disclosure that makes sense, that is

sensory, that is unique to their situation.

all the same things, you’re looking for all th same

things, even if you had to confront or use what we call