Defendant appeals his conviction after a jury trial of sexual assault and lewd and lascivious conduct involving a child. We affirm.
The first information issued by the Caledonia County State’s Attorney on May 10, 1986 charged defendant with both sexual assault (13 V.S.A. § 3252(3)) and lewd and lаscivious conduct with a child (13 V.S.A. § 2602), each committed “[o]n or about July 1, 1985.” Defendant filed a notice of alibi defense on September 29, 1986, and the next day the State amended the informations to change the date to “during the summer of 1985.” Defendant’s subsequent motion to dismiss for lack of specificity as to the date of offense was denied. Defendant then moved to dismiss both charges for lack of a prima facie case and to sever the two charges for trial. At the hearing on these motions, which the court eventually denied, the alleged juvenile victim was represеnted by the public defender, who participated in the hearing over defendant’s objections. The defender also joined with the state’s attorney in opposing defendant’s motion for change of appointed counsel, which motion was denied.
The State gave formal notice that it intended to call a child psychologist, Dr. Donald J. Hunt, to testify with regards to the functioning of the mind of a five-year-old child, and how it differs in many respects from that of an adult or even an older child. The notice also advised that the prosecution would seek his testimony “concerning the behavior of children who are victims of sexual assault.” Defendant sought discovery concerning the expert’s treatment of the alleged victim, but Dr. Hunt invoked the therapist-patient privilege and the court refused to intervene, citing the limited nature of the prospective testimony of the expert. At trial defendant continued to object to the psychologist’s expert testimony on grounds that he had not been given the opportunity to examine him on his treatment of the complainant and that the testimony had not been established as necessary. Defendant also objected to Dr. Hunt's later testimony concerning child abuse symptomatology.
I.
Defendant first argues that the trial сourt erred in allowing the prosecution to amend its information three weeks before trial, changing the time of offense from “on or about July 1, 1985” to “during the summer of 1985.” The amendment of the information followed by a day defendant’s filing of his notice of alibi, purporting to establish his whereabouts away from the crime scene “on or about July 1.” Defendant concedes that time is not of the essence in charges of sexual assault or lewd and lascivious conduct, State v. Williams,
II.
Defendant next contends that the seating arrangement during trial prevented face-to-face confrontation with complainant, thereby violating his Sixth Amendment rights. See Pointer v. Texas,
The United States Supreme Court recently underscored the broad sweep of Confrontation Clause rights in Coy v. Iowa,
In overturning the conviction, the Court stated:
The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.
We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy. The State maintains that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma. Our cases suggest, however, that even as to exceptions from the normal implications of the Confrontation Clause, as opposed to its most literal application, something more than the type of generalized finding .underlying such a statute is needed when the exception is not “firmly ... rooted in our jurisprudence.” The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception.
Id. at 1021,
I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a number of state statutes ... our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses.
Id. at 1025,
Moreover, the seating arrangement ordered by the trial court was far less damaging to defendant’s confrontаtion right than the screen erected in the courtroom in Coy, which made it literally impossible for the complaining witness and defendant to have a face-to-face encounter. At most, the arrangement in this courtroom obstructed, but did not prevent, mutual viewing by defendant and complainant. No message was transmitted to the jury that defendant was a pariah whose isolation might be equated with guilt. In sum, the compromise reached by the court was a measured response to the requirements of a specific witness and offended no right of defendant to confront his accuser.
III.
Defendant attacks the substance of Dr. Hunt’s expert testimony about the cognitive development of five-year-olds and the profile of a sexually abused child, first arguing that under standards set forth in State v. Catsam,
Defendant next argues that Dr. Hunt’s testimony endorsed complainant’s credibility, the same grounds that were the basis of this Court’s reversal in Catsam. While defendant’s reasoning on this point is unclear, two key elements present in Catsam are clearly missing here. First, Dr. Hunt never testified about the psychological or medical status of the complainant and never ventured an opinion as to whether she suffered from post-traumatic stress disorder (PTSD). Second, and more crucial to our analysis, he never told the jury that PTSD sufferers tend to tell the truth. If defendant is making the broader argument that any expert witness produced by the prosecution regarding another State witness will have a general tendency to advance the State’s case — and defendant has demonstrated little more in the present instance — the answer is that such evidence involves no reversible error. As we said in State v. Hicks,
The expert did not testify on the complainant’s credibility but addressed only the parameters of reporting, and whether it is common for child victims of sexual abuse to delay telling somеone what occurred. “The fact that the jury, if it believes the expert’s testimony, may draw inferences which would tend to bolster the victim’s credibility does not make the evidence inadmissible____
*408 [S]o long as the expert does not render an opinion on the accuracy of the victim’s recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury.”
IV.
Defendant’s next claim of error is that his rights to due process, to confront witnesses, and to present a defense were each denied by the trial court’s failure to order Dr. Hunt to testify at deposition and at trial as to his professional relationship with the juvenile complainant. Defendant had sought such discovery in order to determine how that relationship might affect Dr. Hunt’s testimony at trial. However, Dr. Hunt invoked the psychoanalyst-patient privilege now governed by V.R.E. 503, thus closing off this information. At an ensuing status conference, defendant’s attorney put the case for disclosure:
I therefore, think that we are prevented effectively from knowing what personal experience he brings with this individual into the courtroom by hiding behind the privilege, аnd I don’t think that we can really cross-examine him effectively unless we have some idea of what his knowledge is, what he thinks about this individual, what he’s learned through his therapeutic contacts with her.
The state’s attorney supported Dr. Hunt’s exercise of privilege, arguing that his testimony was going to be limited to general principles of psychology and behavior, thereby excluding from jury consideration the results of his personal experience with complainant. The court ruled that “[s]o long as the testimony is limited in the ways that we’ve been discussing, I think the fact that there has been a relation is irrelevant and I'm not going to require that either the privilege be waived or the witness not testify.”
Due Process
There can be no dispute that due process principles guarantee the right of a defendant to discover relevant evidence, whether favorable or harmful. Brady v. Maryland,
The State’s reading of Percy is correct in general, but in Percy the treating psychotherapist whose report or testimony was sought had no visible connection to the prosecution case and the State could say without qualification that it had no control over the prospective witness. In the present case Dr. Hunt, who treated the complainant, was also the State’s expert witness on the general subject of the cognitive qualities and characteristics of a five-year-old. The total absence of control found in Percy is not present in the case at bar. Should the witness, for example, have testified specifically about the complainant, using information and perceptions gained during therapy, it might have violated the principles of mutuality (from which the due process right arises in this context) for the cоurt to allow that testimony and at the same time to
However, we fully agree with the State’s contention that defendant failed to show how the discovery sought from Dr. Hunt was material, given the nature of his testimony at trial. Dr. Hunt did not testify specifically about the complainant, nor did he express his opinion about whether she exhibited symptoms consistent with a diagnosis of abuse. Moreover, we concur with the State that disclosing the relаtionship between Dr. Hunt and the alleged victim might have conveyed the very kind of impression of authority that defendant sought to obviate.
Right of Confrontation
Defendant reiterates his due process argument in the context of his federally guaranteed right of confrontation, citing Pointer v. Texas and parallel case law in Vermont, State v. Covell,
The right to confrontation, however, is not unlimited. State v. Raymond,
Upon reviewing the transcript, it ■ is clear that Dr. Hunt’s testimony was general in nature. Defendant was free to attack this testimony on cross-examination and to rebut it with opposing evidence.
Right to Present a Defense
The third theory on which defendant claims error in the court’s refusal to order the State to reveal information about the therapy relationship between the complainant and Dr. Hunt is that such denial limited his presentation of a defense. Citing State v. Shaw,
V.
Defendant next argues that the actions of the complaining witness’s attorney
*412 The victim shоuld be permitted to participate in the determination of whether the probative value of such evidence outweighs its private character to protect unwarranted public exposure. The victim’s involvement should be limited to this issue, and confined to protecting her against unnecessary embarrassment and harassment.
Id. at 563-64,
VI.
Defendant next asserts that the testimony of complainant’s cousin as to what complainant said after the alleged acts should have been barred as impermissible hearsay. In a bench conference prior to the testimony, the state’s attorney said that his goal was to establish the date that the complainant first reported the assault and her fear of disclosing it, but not to elicit the name of the perpetrator. Defendant nevertheless objected on hearsay grounds, even on the limited basis sanctioned by the court, after which the following testimony was presented:
Q. ... The judge has ruled that you may not mention the names of any people at the Dunbar house. Okay?
A. Um-hum.
Q. So if you’re going to mention anything that you were told about that place, just simply use the terms person, or a child or an adult, whatever it may be; all right? A. Um-hum.
Q. You can mention [complainant’s] name, but not anybody else’s. Please go from there.
*413 A. Well, I’ll say what [complainant] told me. [Complainant] said “the fat man” sexually assaulted her.
Since defendant weighs about 400 pounds, he claims with good reason that the quoted testimony reasonably identified him, though the State had undertaken not to allow that identification. While this testimony may have constituted impermissible hearsay,
VII.
Defendant cites as error the сourt’s refusal to include in its instruction on the credibility of child witnesses the observation that such witnesses are “likely to be more suggestible than adults” and may not “have a full understanding of the serious consequences of the testimony they give or the charges they make.” Instead, the court issued a broader,
VIII.
Finally, defendant argues that the judge imposing sentence was unduly influenced by the statement of the complainant’s attorney that it was proper for the court to consider the impact on the family, the community and on other cases of child molestation. Booth v. Maryland,
people who can premeditatively and coldheartedly use their influence as adults to plunder the bodies and lives of children have to be told that society will not tolerate that sort of conduct. Your honor, I think it’s imperative*415 to protect other children for this Court to issue a harsh sentence on Mr. Dunbar____
But there is nothing in the defender’s statement, taken as a whole, to justify the inference that he unduly influenced the court in the sentenсing process. His statement followed a much lengthier and no less ardent appeal by the state’s attorney for a harsh sentence. Neither statement included unsubstantiated allegations, as was the case in State v. Neale,
Affirmed.
Notes
Defendant argues that V.R.E. 807 prescribes the sole procedure for excusing a witness from face-to-face confrontation, and that only in the event of a finding of “substantial risk of trauma to the child which would substantially impair the ability of the child to testify” is a court authorized to order that the testimony be taken by two-way closed circuit television or by recorded testimony. V.R.E. 807(b), (c). But such rules do not compel more drastic measures to be taken, where the less will suffice. Placing the juvenile witness where her eyes would not be directly fixed on defendant was an acceptable, less drastic alternative to the V.R.E. 807 procedure.
The State contends that the child witness’s testimony was not lucid and complete and hence such witnesses in general were the proper subject of expert testimony. A review of the record tends to support the State’s view that the child’s testimony was qualitatively different from that of an adult, but we need not pass ultimate judgment on this question since the expert сould properly talk about five-year-olds in general, irrespective of the quality of the testimony by a particular child witness.
V.R.Cr.P. 16(a)(2)(C) provides in relevant part:
(a) Prosecutor’s Obligations. ... [U]pon a plea of not guilty the prosecuting attorney shall upon request of the defendant made in writing or in open court at his appearance under Rule 5 or at any time thereafter
(2) Disclose to defendant’s attorney and permit him to inspect and copy or photograph within a reasonable time the following material or information within the prosecuting attorney’s possession, custody, or control:
(C) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; ____
The court appointed a public defender to represent the complainant.
The State suggested two possible reasons for the trial court’s allowance of the testimony: first, as a state-of-mind exception under V.R.E. 803(3), and second, as a nonhearsay statement under V.R.E. 801(c) designed to establish the date of the offense. On aрpeal the State raises only the latter exception and the additional argument that the testimony could have been admitted in any case as a prior consistent statement under V.R.E. 801(d)(1)(B), in anticipation of the defense argument that complainant could not distinguish defendant from others in the Dunbar residence at the time of the alleged events.
Strictly speaking, this evidence rule does not provide for a hearsay exception, but rather defines hearsay to exclude statements by a witness when the declarant also testifies at the trial and is subject tо cross-examination concerning the statement, and the statement is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.”
The court instructed as follows:
Now there is no precise age which determines when a child is competent to testify. This depends on the capacity and intelligence of the child, his or her understanding of the difference between what is truthful and what is untruthful, and his or her appreciation of the duty to tell the truth.
So in evaluating the testimony of the two children you should consider their capacity to distinguish, first of all, truth from falsehood. And — as in the case of all other witnesses — you’re the sole judge of the credibility of the two children. And you bring the same sorts of considerations to bear in making that determination.
You may consider not only the age of the children, but their demeanor on the stand, their manner of testifying, their capacity to observe the facts, their capacity to recall those facts, their ability to understand the questions that were asked of them and to answer those questions; whether they impressed you as having an accurate memory of what happened, and whether they impress you as being truthful. And you should give the testimony of the children — just like the testimony of the adults — as much weight as you think that testimony deserves.
