*1 Utah, Appellee, Plaintiff and STATE ADAMS,
Nealy Defendant W. Appellant.
No. 960092-CA. Appeals of Utah.
Court
April *2 Skordas,
Gregory Jones, Lloyd G. R. DelPorto, Brett City, J. Salt Lake for Defen- Appellant. dant and Slotnik, Jan Graham and Joanne C. Salt City, Appellee. Lake for Plaintiff and DAVIS, P.J., Before and BILLINGS and JACKSON, JJ.
OPINION BILLINGS, Judge: Nealy appeals W. Adams from a conviction of forcible sexual abuse in violation of Utah 76-5-404(1) (1996). § Code Ann. We affirm.
FACTS 1993, began a relationship with home, Virla Hess and soon moved into Virla’s where she thirty-four-year-old lived with her Syndrome Downs’ daughter, Carleen. Car- leen cognitive functions at level of a three-and-a-half-year-old. year
About a after he moved in with Virla Carleen, Adams, regular was a drinker, began heavily. to drink more Occa- 182, Templin, so inebriated would become sionally Adams Washington, 466 the next morn- Strickland remember that he 2052, 2064, was drunk. while he 104 S.Ct. what he done U.S. time, (1984)). Virla noticed Carleen was must During this L.Ed.2d began taking probability that she exists more reclusive show reasonable also “a *3 counsel, into her room. meals result except that for ineffective Lovell, v. would been different.” State with Virla al- Adams lived for After (Utah 1988). 913 relationship began years, to two most drunk, frequently Adams deteriorate. was competen governing law Under Utah bitterly. in couple argued night One and the witnesses, not cy of Adams’s trial counsel did a.m., to 1:30 Virla awoke a loud 1995 at about hear by failing request competency a err to breaking glass of bang, followed sound to ing. “[ejvery person competent In Utah room. When she coming from Carleen’s except provided as be a witness otherwise investigate, found a broken clock went to she 601(a). “This R.Evid. these rules.” Utah Adams, naked, emerge from Car- and saw language age, to mental was intended abolish pants with his hand. leen’s room his to grounds used capacity, and other which could not remember Adams later said he incompetent person render as witness.” night, happened that but he anything that Fulton, him talking to about the did recall Virla added). 1987) (emphasis The current version morning.- the next incident “completely the law Rule has altered of incident, couple weeks after this A few respect competency.” to witness agreed leave the house. that Adams should witnesses, Thus, law, Utah all under current Adams told Carleen that was When Virla witnesses, pre mentally are deficient out, that Adams had moving Carleen said competent. sumed days molesting her. Four after Adams been men- points Adams to several of Carleen’s belongings, all of his Virla con- had removed clearly tal deficiencies as evidence she was reported police tacted testify, incompetent including that she to abuse. name, twenty- spell could not her count at DeHart interviewed Carleen Detective button, nine, identify belly correctly or home, presence. in Virla’s Adams was However, knee, evi- vagina. while this rape each of charged with one count later below dence shows Carleen functions well jury acquitted A and forcible sexual abuse. normal, it show unable to does not she was rape charge and him Adams of the convicted appreciate to tell truth or the need ap- of sexual Adams now forcible abuse. to oth- was to relate information she unable peals. not conclude was ers. We therefore counsel failing request competen- ineffective ANALYSIS cy hearing. Competency of Witness I. Testimony II. of on Whether Admission argues initially his trial Adams Been Victim Had Coached constitutionally was ineffective be
counsel object failed to Carleen’s cause counsel to. A. Dr. Hawks ground that she was incom prosecution argues the failed prevail petent. To on an ineffective assis for Dr. proper foundation counsel claim the defendant must establish tance of “ testimony regarding Car- representation fell Hawks’s whether below an show ‘counsel’s being Accord- capable coached.1 objective leen standard reasonableness.’ go telling Carleen the truth Hawks’s whether also claims that Dr. 608(a) thus dis- when interviewed Utah Rules of Evi- Dr. Hawks violated Rule of the agree disagree. put Unlike the witness defense with the dissent. We Carleen's dence. credibility merely it was his did stated at issue and Dr. Hawks not state ability telling opinion- cognitive have the truth she did not he believed Carleen We did be coached. about the abuse. conclude Adams, And, course, mentioned, Hawks’s did not A. as I that’s time, reliability requirement things one of the we with all meet the established deal somebody you— coach 1989). And at this [DEFENSE COUNSEL]: Honor, point, going object Your I’m three-part Rimmasch sets forth a answering until there’s further admitting standard for scientific evidence talking foundation. I What he’s about now under Utah Rule of Evidence 702. Rim- gone don’t into his examina- believe—he’s requires showing masch first a threshold truthfully testifying tion of her in this case. reliability. proponent may of inherent A That, again, prerogative jury. is the of the general acceptance either show a improper. I think it’s principle technique in the relevant sci- Well, THE COURT: I think the form of *4 community proffer entific or a sufficient question given is different and he has foundation to demonstrate the inherent re- background. objection some is over- liability underlying principles ruled. techniques.... my .opinion, In ques- A. that’s a difficult proponent satisfy If the can this thresh- surely tion I couldn’t answer that 100 requirement old reliability, of inherent howeverf,] percent positively; it would only then need the court consider the re- sys- seem someone who—in the school maining steps. two Rimmasch's second taught special tem who has been ed and requirement is a “determination that there classes[,] 34,1 believe[,] resource and she’s adequate is an proposed foundation for the years special and if all those ed and i.e., principles that the scientific get resource classes couldn’t her to even techniques properly applied have been correctly, her get write name couldn’t her by quali- the facts of the to ... count say number 50 or persons fied and that alphabet, that I’d have trouble —it would
founded on that work.” be difficult for me somebody to assume tried, they could coach Finally, if regard- the court is satisfied consistently report know, anything, you determination, this second it must bal- birthday. mean, even their I she was inac- probative ance proffered value of the giving birthday. curate in strug- her She against evidence dangers its admit- gled with that. poses tance under rule 403 of the Utah troubling] So I find it if—if she has Rules of Evidence. points Rimmasch also know, difficulty you doing, second and out that “when the inferences from the level, grade third that I would—I’d have scientific sweep broadly evidence or cut real anybody[ trouble to see mother or ]a— deeply areas, stronger into sensitive system[ me or the they school can’t do ]if— showing probative value should be re- counting, it with myself, how could—I ask quired. Such a ‘sensitive area' is one cen- persuasion someone do it with tral fact-finding to the core of pro- to[,] get threats consistently her to cess—whether one witness or another is spontaneously across two interviews talk telling the truth.” about some sexual activities that occurred. 34(M1 Brown, State v. my opinion, So probably that’s (citations omitted) likely. 8). 775 P.2d at applying 399 n. determine, then, We must first standard, helpful Rimmasch it is to review whether upon the information which Dr. regarding Hawks’s entire Hawks based inherently reli whether Carleen could have been coached: able. Before Dr. pros Hawks answered the Q. your ... exper- Could evaluation and question regarding ecution’s whether Carleen you tise tell sophis- coached, [Carleen] was could have been he testified exten up ticated enough sively make about Carleen’s educational back here? ground training. Dr. Hawks further reviewing by testing Carleen or edu- test he ad- regarding the WAIS-R testified probably be Intelli- records —Carleen would cational ministered determine made-up story repeat test to de- on two Quotient the Vineland unable to gence ability. According functioning Dr. Hawks’s separate occasions. Therefore termine ad- testimony,-the has been stan- WAIS-R satisfied the final Rimmasch to his outweighed the 1950s and Vineland probative ministered since its value dard because similarly long administered for prejudice. has been potential its 1980s. having revised period, been methodologies clearly meet
These scientific
B. Detective DeHart
Rim-
reliability requirement of
inherent
improp-
argues
next
the trial court
masch.
testify
re-
erly
Detective DeHart
allowed
require
the second foundation
As for
had been coached.
garding whether Carleen
Rimmasch, we conclude Dr. Hawks’s
ment of
following exchange as
points
to the
that “the
testimony satisfies the mandate
the source of error:
been
principles
[must]
scientific
Q:
appear
you at all that
Did it
Ok.
applied to the facts.”
properly
Carleen was coached?
that,
opined
lested her. Thus we must determine wheth
er, absent DeHart’s there is III. Prosecutorial Misconduct reasonable likelihood of a more favorable out prosecution Adams asserts the com come Adams. by implying during mitted misconduct voir *6 witness, dire that the defense’s Duane argues The State DeHart’s testimo Moyes, against County was biased the Weber ny prejudicial jury the was not because re Attorney’s Office because he had been fired ceived from other witnesses sufficient infor County’s argues from the crime lab.3 Adams mation to did not have the show Carleen improper prosecutor it was for the to refer to capacity consistently mental to retain and producing these extrinsic matters without ev by urged upon recite information anoth questioning. idence to the line of substantiate er, and thus the detective’s was prosecutor’s We do not address whether the merely cumulative. Dr. Hawks testified ex comments constituted error because we find tensively capacity, in about Carleen’s mental prejudice. no evidence of IQ cluding her of well which was below preserve normal. Dr. Hawks testified that ap- Carleen’s Adams did not this for issue functioning peal only level was about that of a three- and thus we could reverse if we and-a-half-year-old. that, error, He also stated she could found absent the there is correctly identify parts body a from a reasonable-likelihood of a better outcome drawing only fifty percent Dunn, about of the time. for the defendant. See at ease, Moyes, She had been to learn to count unable 1208-09. this a documents thirty alpha expert, about and could not recite the penned testified that Virla letters opined bet. Dr. Hawks further Carleen received women with whom Adams was regarding opinion by opinion The Utah Rules of Evidence reputa- ness has been attacked or reputation provide: evidence of tion evidence or otherwise. character Utah R.Evid. credibility may The of a witness be attacked or supported by evidence the form of argues prosecutor engaged 3. Adams also the reputation, subject or (1) but to these limitations: questioned misconduct when he Adams about the may only the evidence refer to character for veracity of other witness's statements. The re- untruthfulness, (2) truthfulness or evi- insignificant marks to which Adams were refers trial, only dence of truthful character is admissible to the outcome of the and we therefore do argument. after the character of the witness for truthful- not further address the merits of this Dibello, having able doubt.’ State written involved. Virla denied (Utah 1989)). 1221, 1225 was intended to show 780 This evidence letters. towards and bitter Virla was vindictive theory of crime was that State’s fact that was not contested —and Adams —a Adams, gratify with intent arouse Ultimately, Adams that she dishonest. was desires, sexual own or Carleen’s without jury intended this to convince consent, geni- touched Carleen’s Carleen’s forced to fabricate that Virla had Carleen tals, anus, with a buttocks vibrator and/or repeat it to of molestation jury her breasts. The could and touched However, jury jury. even if the police and all from have found of these elements proof account, they still accepted this would during the presented the evidence State’s 1) truth that Adams told the to believe: case-in-chief. to have had sexual when he claimed not First, presented evidence 2) Carleen; that Carleen was contact with identity repeatedly testified Adams —Carleen mentally retaining and a capable repeating perpetrator. Virla corroborated story; and that fabricated Carleen testimony when she stated that she Thus, falsely. establishing the testify fact night, Adams Carleen’s room one saw leave was vindictive and one element —that Virla naked, hand. pants with his in his Carleen alone dishonest —would exonerate geni- that Adams touched her also testified that, cannot absent Adams. We conclude anus, tals, her or her buttocks as well as her misconduct, jury alleged prosecutorial breasts. ver- have returned a more favorable would for dict Adams. produced that The State also evidence gratify with intent to Adams touched Carleen for
IV. Motion Directed Verdict arouse or Carleen. The himself requisite argues trial court should have inferred the intent from Car- against purposefully him at the have dismissed leen’s buttocks, genitals, because anus conclusion of the State’s ease-in-chief touched and/or legally insufficient he touched her vibrator and/or hands; furthermore, sexual to establish the elements forcible the re- breasts with his for a ver abuse. “When motion directed quired be inferred from the fact intent can case, at the of the State’s explanation dict is made close that no innocent conduct charge the trial court should dismiss the Kennedy, exists. Cf. prima (Utah 1980) facie case the State did not establish (holding inference of sexual against producing ‘believa gratification inescapable where defen- *7 all of the crime others, ble evidence of the elements to sex with dant forced victim have ” 781, Emmett, charged.’ v. 839 P.2d State acts, tapes played the video recorded the (Utah 1992) Smith, 675 himself). to 1983)). however, If, 521, presented evidence of the The State also “ acting fairly reasonably could jury ‘the element, consent, through final lack of both beyond guilty the a reason find testimony that she did not like doubt, judge required to submit the is able Dr. through her and touch jury the case the for determination of the testimony lacked the Hawks’s that Carleen of the defendant.’ guilt innocence capacity we de- mental to consent. Because 1293, Ct.App. Taylor, prima established facie termine the State Iverson, 2d (quoting State v. 10 Utah against presenting evidence case (1960)). up will 350 P.2d We abuse, each of forced sexual we element hold the trial court’s decision submit properly court denied conclude the trial “‘if, upon reviewing the the for a directed verdict. Adams’s motion rea all inferences that can be evidence and it, sonably from court the concludes drawn CONCLUSION from which a rea evidence exists that some not ineffective the of We conclude counsel was jury could find that elements sonable failing object testimony on proven beyond to Carleen’s a reason- the crime had been because, incompetent determining testimony In the ground the she law, capacity- daughter’s opinion diminished mental amounted to an of the under Utah abuse, incompetent. regarding a witness the alone does render truthfulness su- stated, although the admission preme also conclude court We error, testimony it DeHart’s of Detective Although arguable testimony it that this is because other evidence was harmless error only of the amounts to statement basis support jury’s at trial was sufficient abuse, expert’s opinion on we conclude verdict. prosecutor, eliciting that the this testi- mony focusing why on the reasons Dr. Furthermore, Dr. Hawks’s re- Tyler thought daughter telling garding ability to be coached did truth, elicited crossed the line and a direct not violate Rimmasch because he based his opinion daughter’s on the truthfulness at inherently reliable information opinion on allegations the time she made her of abuse. opine and because he did not as Carleen’s statement, Through the first the fact find- particular on a occasion. Final- truthfulness Tyler, expert, er learned that Dr. as an alleged ly, prosecutorial we hold the miscon- daughter concluded that was tell- prejudicial and that the duct was not trial ing the truth because of the amount of properly motion for a court denied Adams’s clarity daughter detail and used in verdict. therefore affirm directed We relating occurrences of sexual Adams’s conviction. abuse. The second statement told the fact Tyler Dr. finder that one of the reasons JACKSON, JJ., concur. BILLINGS thought daughter’s accusations of DAVIS, Presiding Judge, dissenting: against abuse her father were truthful was because the doctor could envision no mo- disposition majority’s I dissent from the daughter tive for the to lie. holding Based on the of Rim- case. masch, my it that the relevant testi- view Id. The court then held that the trial court mony of both Dr. Hawks and Detective De- admitting erred into evi- Hart admitted in violation of Rule were dence violation of Rule See id. 608(a) of the Rules of Evidence. Utah comparable Dr. Hawks’s here is Therefore, I would reverse defendant’s con- expert’s testimony to the in Rimmasch. The trial. viction and remand for a new colloquy relevant at trial was as follows: 608(a)(1) of an bars admission ex- “[R]ule Hawks, you let me [Prosecutor:] ask pert’s testimony to the of a as truthfulness your experience prior this. Based on witness on a occasion.” State v. or similar interviews with sex abuse vic- (Utah 1989). 388, 392 tims, otherwise, you with children or Supreme In the Utah Court de- you find —did an as to Car- form prose- whether the termined leen’s —as to whether her was im- directly cutor’s witness commented probable or not believable? response to the victim’s truthfulness. *8 prosecutor’s request expert “explain the that believe, I [Defense counsel]: don’t Your daughter the basis for her that the Honor, proper question that’s a for him to abused,” stated, sexually expert had the been answering. be “ Well, specifically, my opinion, in one does The An opine Court: witness can’t give not this kind of information with the concerning reliability of witnesses. The clarity amount of details and the amount of objection is sustained. That’s the function experienced it.’ Id. at 392- unless one has jury. (citation omitted). by asked When the your [Prosecutor:] Could evaluation and prosecutor daughter any- whether the had expertise you tell sophis- whether she was thing by falsely accusing gain to her father of enough up story ticated to make the that abuse, expert replied sexual the that she did alleged herel daughter anything gain. not think the to at See id. imagination to see how point, And at Your It stretches the this
[Defense counsel]: Honor, object testimony im- anything to him answer- than going I’m does other there’s further foundation. properly that until comment on Carleen’s truthfulness be- talking he’s about now I don’t What particular occasion.2 See into his of gone lieve—he’s examination prosecutor clearly in- P.2d at 392. The That, truthfully in testifying this case. her testify regarding tended to jury. I of again, prerogative is the as to Carleen’s truthfulness improper. and, think it’s objec- proper timely after a and events counsel, simply Well, rephrased defense I think the form of the tion The Court: and question got the desired answer as to given and he has some question different al- objection truthfulness. As background. The is overruled. Carleen’s arguably though Dr. Hawks’s opinion, my that’s a diffi Hawks:] [Dr. to no more than a of his amounts statement surely I question couldn’t answer cult cogni- opinion as to whether Carleen has the however; it percent positively; that coached, ability to be heard that tive someone would seem that who—in Hawks, expert, Dr. as an believed that Car- spe system taught has been school telling the truth she did not leen was because cial ed and classes —and she’s resource ability not have the to be coached and was years special I believe—and if all those story. sophisticated enough up to make get her to ed and resource classes couldn’t Therefore, by testify allowing Dr. Hawks get correctly, write name couldn’t even did, exactly he the trial court did what 50[1] as mean, pass past age her to —I —count 608(a) prohibits Rule Rimmasch say alphabet, count number 50 —admit- expert testimony as to a truth- ted witness’s be that I’d have trouble —it would difficult fulness on a occasion. somebody me to could coach assume tried, consistently they if re even regarding Detective DeHart also testified know, you their birth port anything, thought he Carleen was coached: mean, day. giving I was inaccurate in she Okay. you it appear Did [Prosecutor:] struggled that. birthday. She at all that Carleen was coached? if—if I find it trouble she has difficul- So No, appear it did not [Detective DeHart:] know, doing, third ty you second and to me that Carleen had been coached. level, I have real grade that would—I’d at Either time [Prosecutor:] anybody: or me or trouble see mother prior your coming there? even—even they it with system, the school can’t do No, it not. [Detective DeHart:] counting, myself, ask how could—I persuasion do or threats someone it with majority opinion correctly concludes get consistently across two to—to her to Detective DeHart’s spontaneously interviews talk about some 608(a) supports con- violation of Rule its activities that occurred. sexual that the hold- clusion error was harmless my opinion, probably that’s not So in merely ing that the detective’s likely. “proper” testimony Dr. cumulative added.) Thus, opined illogical I De- (Emphasis Hawks Hawks. find it Detective likely” by majority “probably that it was that Carleen Hart’s determined 608(a), enough sophisticated in violation of Rule can be was either coached or be up story alleged “cumulative” of Dr. Hawks’s testimo- to make here. termed lover, allegations were to Car- invented the and then coached 1. If Dr. Hawks’s remarks restricted abilities, it is that his leen’s limited doubtful Carleen to tell the in retaliation for defen- 608(a), would have violated Rule breaking relationship. dant off their Because *9 opportunity de- have had the would allega- only supporting real evidence Carleen's being cide she was truthful. making the tions was Carleen's thus contest, bolstering credibility improper an case 608(a) important especially where here 2. Rule credibility put defendant at an unfair dis- credibility is on the focus of the defense advantage. only witness. Defendant claimed that direct mother, "jilted” Carleen’s defendant’s majority beyond by improper by the to be within that which is tainted ny, determined parameters testimony.’ Iorg, of Rule From the (citation juror, imagine Ct.App.1990) it is hard to perspective of omitted)) (alterations improperly testified as to original). how the detective In the ease, truthfulness on a oc- witness’s the “other evidence” context “essentially (itself casion averred that Carleen allegations supporting bol- expert telling the truth” and the did not. which was bol- stered detective) is, and the stered prejudicial in this ease was error true, hardly adequate support Stefaniak, defendant. See State Accordingly, conviction. I would reverse de- Ct.App.1995) (“Having de- and remand for a retrial. fendant’s conviction admitting termined that the court erred testimony bolstering the victim’s credibil- ity, separately determine whether we must ease.”). prejudicial in this
the error was “ ‘[Tjhis jury’s depended on the assess- credibility
ment of the victim’s versus the
defendant’s, there is not “other evidence conviction” ... support] the defendant’s
[to