State v. Madigan (2013-242)
[Filed 17-Apr-2015]
NOTICE: This оpinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
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No. 2013-242 |
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State of Vermont |
Supreme Court |
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On Appeal from |
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Superior Court, Bennington Unit, |
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Criminal Division |
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Charles Madigan |
October Term, 2014 |
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Cortland Corsones, J. |
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Christina Rainville, Bennington County Chief Deputy State’s Attorney, Bennington, for
Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General,
Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Hayes, Supr. J.,
Specially Assigned
¶ 1. ROBINSON, J. Defendant Charles (Hank) Madigan appeals his conviction of three counts of lewd and lascivious behavior with a child. On appeal, defendant argues (1) that the trial court erred in allowing two witnesses to testify to the victim’s character and reputation for truthfulness; (2) that the trial court admitted impermissible hearsay; and (3) that the prosecution’s closing argument was improper. We reverse.
¶ 2. The testimony at trial reflected the following. The victim, A.R., had been close friends with defendant’s daughter since early childhood. A.R. was somewhat estranged from her parents, who had divorced, and defendant acted as a sort of a surrogate father to A.R. After he and his wife divorced, defendant and his daughter moved to a three-bedroom home at the goat farm in Shaftsbury where defendant worked. Soon after that, A.R.—then a high school freshman—moved in with defendant and his daughter. Defendant supported A.R., providing furniture, food, and other items. A.R., in turn, performed farm chores. A.R. moved out some time in her senior year.
¶ 3. The charges related to three incidents which A.R. described in her testimony. The incidents occurred in the summer between A.R.’s freshman and sophomore years of high school. A.R. testified that defendant bought alcoholic beverages for her and was “hanging out” with her as they drank while sitting on the couch watching television. A.R. testified that this was the first time she had drunk alcohol, and that she had two or three drinks. A.R. testified that she fell asleep on the couch and, some time later, awoke in the dark and saw defendant “playing with” her pubic hair. A.R. testified that she pulled up her pajama bottoms and went to her bedroom and closed the door. She thought the incident “was sо bizarre, so weird, that I thought it could have been a dream or a hallucination. I just didn’t know.” A.R. did not mention what had occurred to anybody, and she stated that she “purposely did not think about it,” because “it would have brought up too many things to think about. Why did Hank do this? Why me?”
¶ 4. The second incident occurred sometime later that summer. A.R. testified that she was sleeping in her bedroom and woke to see defendant lying next to her in her bed, fondling her breast or chest, pubic area, and buttocks. A.R. testified in some detail about the incident, stating that upon awaking she moved away from him. A.R. testified that “after that point, I realized that . . . the first event really did happen, but I didn’t know who to tell or if anybody would believe me.” A.R. testified that she feared that her friend would not believe her and that she would not be able to stay at the farm had she come forward. A third incident, later that summer, was similar to the second, and on the fourth occasion she woke up to find her hand on defendant’s penis. Several days after the last incident, A.R. asked defendant for a lock on her door, because she “was worried that Hank would come in again.” A lock was installed very soon afterward, and the incidents stopped. A.R. testified that “we didn’t talk about what had happened; life just went on.”
¶ 5. Later, during A.R.’s junior year, a close friend died, which had a profound effect on A.R. and her friends. A.R. became “very depressed” throughout that year and the next. A.R. continued living in defendant’s home; she testified that she would check the lock multiple times before she could sleep, every single night. A.R. later left the farm and moved to her father’s house. A.R. testified that after her friend’s death, she told another friend that she had been abused by defendant, and then soon after told that friend’s sister. A week or two later, a social worker-investigator with the Vermont Department for Children and Families contacted A.R., beginning the investigation which resulted in the prosecution of defendant. Defendant was convicted in a jury trial and now appeals.
I. Testimony Concerning A.R.’s Character for Truthfulness
¶ 6. Vermont Rule of Evidence 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
¶ 7. The trial court permitted defendant’s ex-wife and A.R.’s friend, J.H., to testify concerning A.R.’s reputation for truthfulness. In particular, the state asked J.H.: “You know that there’s some kids who have a reputation for lying, some kids who have a reputation for being truthful. One way or the other . . . did [A.R.] have a reputation?” J.H. responded that: “She was always very truthful.” The court overruled defendant’s objection to this testimony. Similarly, when defendant’s ex-wife testified, the prosecutor asked her essentially the same question. Defendant’s ex-wife replied that A.R. “is very truthful” and agreed that “she had a reputation as a truthful kid.”
¶ 8. Defendant argues that allowing this testimony was error, both bеcause his defense did not attack A.R.’s character for truthfulness, thereby “opening the door” to testimony concerning A.R.’s truthfulness, and because in both cases the State failed to lay a sufficient foundation.
¶ 9. Defendant never asserted that A.R. outright lied, but did offer the jury a narrative in which A.R. fabricated the accusations to get attention because she was jealous of her friend’s success. In opening argument, defense counsel stated: “What happens with teenagers and girls is relationships split. Things change. One girl becomes popular; one girl doesn’t. One girl is involved; one girl isn’t. One girl remains in the shadow; the other one blossoms. And they see these things happening. . . . [A.R.] was a senior in school going nowhere. [Defendant’s daughter] was going everywhere. And what [A.R.] did is brought the attention back to her.”
¶ 10. Additionally, defendant suggested that A.R.’s prior accounts were inconsistent, unclear, or excessively delayed. For example, defendant offered testimony from A.R. to show that she could not recall, or may have been equivocal, on precisely how long the gap was between incidents, and attempted to show inconsistencies between what A.R. told investigators initially and what she said later. Specific issues that defendant addressed included whether A.R. was given alcohol by defendant or took it for herself, whether A.R. had been haying earlier in the day or did not remember what she did earlier in the day, whether the drawstring pajamas she was wearing were tied or untied, whether A.R. was wearing plaid pajamas or jeans at the time of an incident, whether she was wearing a bra, the precise characterization of defendant’s movements and how he was touching her, and what exactly A.R. had told her friend, the first person she had ever told about the abuse. Defendant also questioned A.R. about her depression.
¶ 11. Defendant argues that the testimony he elicited at trial was impeachment by prior inconsistent statements or by lack of memory, and that testimony “to show that [A.R.’s] memory of these alleged incidents was vague and she changed her story frequently” is not an attack on A.R’s character for truthfulness. The State argues that by attacking “every aspect” of A.R.’s testimony, “including her mental health, her motives, her memory, the plausibility of [her testimony], and hеr supposed inconsistencies,” defendant attacked A.R.’s character for truthfulness. We must decide, then, whether defendant made an “attack” on the “character of the witness for truthfulness” within the meaning of Rule 608. This issue is one that has not been substantially addressed by this Court.
¶ 12.
The rationale for the general rule that “[t]he character of a witness
may not be supported until it has been attacked” is that “[i]t is thought that
the trier will assume that witnesses have normal character for veracity until
there is evidence to the contrary,” and “[i]t would be a waste of time and
money to put in good character evidence about witnesses whose character has not
been called into question.” 5 R. Park & T. Lininger, New Wigmore: A
Treatise on Evidence: Impеachment and Rehabilitation § 9.2 (2014).
If character-for-truthfulness testimony was admitted “when there is only a
conflict in the testimony of opposing witnesses, the opposing witnesses on both
sides could be supported by sustaining testimony in regard to their standing
and character by reputation as witnesses, and the trial would be prolonged
indefinitely.” Stevenson v. Gunning’s Estate,
¶ 13.
The question of “what constitutes an ‘attack’ on the witness’s character
for truthfulness” is frequently a “murky” one. 4 J. Weinstein & M.
Berger, Weinstein’s Federal Evidence § 608.12[1] (2d ed. 2013)
[hereinafter 4 Weinstein]. Our rule is identical to its federal
counterpart. Reporter’s Notes, V.R.E. 608 (“This rule is identical to
Federal and Uniform Rules 608.”); see F.R.E. 608(a)(2). Where “our rule
is substantively identical to the federal rule,” we often “look to federal case
law in analyzing [its] meaning.” Coles v. Coles,
[Evidence of] [o]pinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend upon the circumstances.
Advisory Committee’s Note – 1972 Proposed Rules, F.R.E. 608 (citations omitted).
¶ 14.
Consistent with that guidance, courts generally decline to allow
evidence of a witness’s reputation for truthfulness in response to mere
evidence of bias or interest. Such evidence “undermines the veracity and
credibility of the witness . . . without implicating the witness as a
liar in general.” Dring,
¶ 15.
Impeachment by contradiction—including an emphasis on inconsistencies in
a witness’s testimony or inconsistencies between the testimony of different
witnesses—also usually does not constitute an attack on a witness’s character
for truthfulness. 4 Weinstein, supra, § 608.12[4][a] &
n.13 (collecting cases). We recognized this distinction more than a century ago.
Gunning’s Estate,
¶ 16. On the other hand, “[a] slashing cross-examination may carry strong accusations of misconduct and bad character, which the witness’s denial will not remove from the jury’s mind.” Id. (quoting E. Cleary, McCormick on Evidence § 49, at 117 (3d ed. 1984)). For that reason, “[i]f . . . fairness requires it, [the judge] may permit evidence of good character, a mild palliative for the rankle of insinuation by such cross-examination.” Id. (quoting Cleary, supra, § 49, at 117).
¶ 17.
Several considerations inform the analysis of whether impeachment
by contradiction has called into question a witness’s general character for
honesty. One “is whether the inconsistency or contradiction relates to a
matter on which the witness could be innocently mistaken,” or whether the
inference is that the witness is lying. 2 K. Broun, McCormick on
Evidence § 47 (7th ed. 2013). “Another pertinent consideration is
the number of inconsistencies mentioned by the cross-examiner. The larger
the number, the strongеr is the inference that by character the witness is a
liar, not simply a witness who has told an isolated lie.” Id.
(citing State v. Eugenio,
¶ 18.
For these reasons, the bar against Rule 608(a) rehabilitation testimony
in response to attacks on a witness’s credibility is high. For example,
in State v. Carr, the defendant’s wife testified on behalf of her
husband, who was charged with committing sex crimes against one of his
stepdaughters.
¶ 19.
Similarly, in Eugenio, defense counsel “highlighted several
inconsistent statements made by the victim concerning the circumstances
surrounding her alleged sexual abuse” in opening statement and
cross-examinatiоn, stated that “repeating a lie doesn’t make it true,” and
suggested that the victim was lying for attention.
¶ 20.
Likewise, the New Hampshire Supreme Court found in a sexual-assault case
that the character for truthfulness of the witness-allеged victim was not
attacked even where “the defendant questioned the complainant extensively about
her pending civil suit against him” and “argued to the jury that the criminal
prosecution was ‘about money,’ that money was ‘what she’s after.’ ” State
v. Ross,
¶ 21.
Under this stringent standard, we cannot find that defendant attacked
A.R.’s character for truthfulness. Accordingly, the admission of
testimony on A.R.’s character for truthfulness was improper under Rule
608(a). In suggesting that A.R. was jealous and made the accusations in
this case to get attention, defendant undoubtedly called into question A.R.’s
honesty concerning the allegations in this case. But defendant did not
mount a broader attack on A.R.’s character for truthfulness. Nor did
defendant’s strategy of exposing inconsistencies in A.R.’s testimony amount to
an assault on her general character for truthfulness. Defendant closely
questioned A.R., but the clear focus was on allegedly inconsistent statements
made by A.R., and on A.R.’s lack of memory and potential confusion on certain
points. We find that defendant’s suggestion that A.R.’s testimony was
inaccurate or unreliable falls into the category of routine attempted impeachment
by contradiction, and thus the admission of rehabilitation testimony on her
good character was error. Were we to hold otherwise, the exception would
swallow the rule. See Pierson v. Brooks,
II. Hearsay
¶ 22. Defendant next challenges the trial court’s decision to allow A.R.’s friend J.H. to repeat to the jury statements A.R. made to her accusing defendant. The following colloquy occurred during the State’s examination of J.H:
[PROSECUTOR]: Did you ask her about moving out . . . of Hank’s place?
[J.H.]: Yes.
. . . .
[PROSECUTOR]: . . . So she tells you, I’m mоving out. What did you say?
[J.H.]: I asked her why she was moving out. She was living there for years.
[PROSECUTOR]: And what did she say to you?
[J.H.]: She said that she had been sexually abused by Hank.
[PROSECUTOR]: Now, did she say anything else in that conversation?
[J.H.]: She said that she had a lock on her door that she tried to keep locked at night. She was afraid to have it unlocked.
¶ 23. Defendant argues that the admission of this evidence is inadmissible hearsay. V.R.E. 802. Defendant promptly objected to this testimony at trial on these grounds, both before it was given, when the prosecutor made a proffer, and after it was offered. The State argued at trial that these the statements fell under the Rule 803(3) exception to the rule against hearsay, and the trial court overruled defendant’s objection.[2]
A. Rule 803(3)
¶ 24. V.R.E. 803(3) provides, in relevant part, that “[a] statement of the declarant’s then-existing state of mind, еmotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed” is not excluded by the general rule against hearsay embodied in V.R.E. 802. This exception is part of a family of exceptions, which includes Rule 803(1) (present sense impressions) and Rule 803(2) (excited utterances), that are admissible because they are “made in circumstances of spontaneity that supply the necessary element of trustworthiness.” Reporter’s Notes, V.R.E. 803; see also 2 Broun, supra, § 274 (“[T]he special assurance of reliability for statements of present state of mind rests upon their spontaneity and resulting probable sincerity. The guarantee of reliability is assured principally by the requirement that the statements must relate to a condition of mind or emotion existing at the time of the statement.” (footnote omitted)).
¶ 25.
For a statement to fall within the Rule 803(3) exception, “[t]he
proponent must show that: (1) the statement was contemporaneous with the mental
state to be proved, (2) the declarant had no time to fabricate or misrepresent
thoughts, and (3) the state of mind is relevant to an issue in the case.”
State v. Verrinder,
¶ 26. By contrast, J.H.’s testimony—that A.R. told her that defendant had sexually abused her, that she had locks on her door, and that she was afraid to leave the door unlocked—was introduced not to show the victim’s state of mind generally, but “to prove the fact remembered or believed.” Such “backward-looking statements of memory or belief are excluded because . . . [they] present the classic hearsay dangers of memory and narration.” 2 Broun, supra, § 276; 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence, § 803.05[2][b] (2d ed. 2013) (except in will cases, statement of memory or belief inadmissible to prove “earlier acts”). As one court has stated:
[T]he state-of-mind exception does not permit the witness to relate any of the declarant’s statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind. If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition—“I’m scared”—and not belief—“I’m scared because Galkin threatened me.”
United
States v. Cohen,
B. “Fresh-complaint doctrine”
¶ 27.
The State urges, as an alternative to Rule 803(3), that this Court
affirm the evidentiary ruling on the basis of the “fresh-complaint
doctrine.” This evidentiary doctrine—also known as the “report-of-rape,”
“prompt-outcry,” or “first-complaint” rule, among other names—is an exception
to the ordinary rule that “bolstering” hearsay testimony of a witness’s prior
consistent statements is inadmissible. The doctrine is a vestige of a
time when corroboration was a required element of rape, and evidence of a
complaint soon after the crime occurred served “to explain an apparent
inconsistency arising from the woman’s failure, at the time of the alleged
rape, to tell someone of the crime when society perceives that it would have
been natural for her to do so.” Battle v. United States, 630 A.2d
211, 216 (D.C. 1993) (tracing history of corroboration requirement and
“report-of-rape” rule). In essence, the fresh-complaint doctrine
ameliorated the presumption that jurors would find claims of sexual assault
inherently untrustworthy. See, e.g., State v. Woodard, 769 A.2d
379, 384 (N.H. 2001) (noting that the “doctrine of fresh complaint
. . . was based on the presumption that a sexual assault victim would
immediately confide in someone and that if no complaint was made, it could be
assumed that no assault occurred”). The question of whether Vermont
recognizes the “fresh-complaint doctrine” was expressly reserved in State v.
Fellows,
¶ 28.
While a few courts have adopted this rule in modified form,[3] “[m]ost courts no longer recognize this
theory,” Black’s Law Dictionary 782 (10th ed. 2014), and the idea of a doctrine
as a distinct rule in derogation of the rules of evidence is largely a
“historic artifact.” 2 Broun, supra, § 272.1
(contrasting fresh-complaint rule with “modern practice”). We reject the
“fresh-complaint rule” as an independent evidentiary doctrine because the
doctrine has been largely supplanted by rules of evidence. Rather than
having a freestanding evidentiary doctrine apart from the rules of evidence,
most courts sensibly prefer to apply the same rules of evidence in sexual-abuse
cases as in other cases. Courts frequently and properly evaluate evidence
of a victim’s past out-of-court statеments, including statements that would
fall within the “fresh-complaint” doctrine advocated by the State, under the
ordinary rules of evidence. In some cases, the statements are not hearsay
because they are not offered to prove the truth of the matter asserted, but
rather are offered for other purposes, such as a prior consistent statement
offered to rebut a charge of recent fabrication, Rule
801(d)(1)(B),[4] or evidence to establish the timing or
circumstances of a report rather than the truth of the claim reported.[5]
In other cases, the statements are
admissible pursuant to an exception to the general prohibition of hearsay, such
as the exceptions for excited utterances, V.R.E. 803(2), stаtements made
for purposes of medical diagnosis or treatment, V.R.E. 803(4),[6] and certain out-of-court statements made
by children who are twelve years of age or under and who are the putative
victims of abuse, neglect, or certain sexual crimes. V.R.E. 804a(a).[7] We join those courts that have
declined to apply a separate “fresh-complaint exception” to the hearsay rule,
while recognizing that the evidence sought to be admitted pursuant to the
fresh-complaint doctrine is often, though not always, admissible under our
modern rules of evidence. See, e.g., Brown,
III. State’s Closing Argument
¶ 29. Finally, defendant challenges the State’s closing argument. The prosecutor, in her principal closing argument, described to the jury A.R.’s family’s relative material privation and the benefits she enjoyed living on defendant’s farm as a way of explaining why A.R. stayed in defendant’s home after the alleged incidents. In the State’s rebuttal closing argument, the prosecutor went further, stating:
[PROSECUTOR]: Questions . . . [that the defense] raised about, you know, she could work at the farm in Shaftsbury if she moved out? Huh? She’s [fourteen]. How is she going to get there? Her mom lives in Bennington. She’s going to work on a farm in Shaftsbury? I mean, that’s nonsensical. And think, again, what it would be like to be [A.R.]. Poor.
[DEFENSE COUNSEL]: Judge—
[PROSECUTOR]: Maybe hungry.
[DEFENSE COUNSEL]: —I think it’s improper. We’ll object.
[THE COURT]: Overruled. I think it’s based on the evidence.
[PROSECUTOR]: People who are poor and need housing subsidies. Maybe she’s hungry. We don’t know. We didn’t hear testimony about that. But all she owned was a couple [of] books. That’s her life possessions at age [fourteen]. And she’s supposed to give up everything to tell, even though the abuse [has] stopped. It makes no sense at all. The lock. You know what’s important about the lock? The lock is when she said no. That’s what it was.
¶ 30.
“The longstanding rule in Vermont is that
counsel should confine argument to the evidence of the case and inferеnces properly drawn from it.” State v.
Lapham,
¶ 31.
Viewed in their entirety, the prosecutor’s
statements—exhorting the jury to imagine “what it would be like to be
A.R. . . . poor . . . maybe
hungry”—exceeded the bounds of fair and temperate
discussion, circumscribed by the evidence and inferences properly drawn
therefrom. By the prosecutor’s own admission, there was no testimony presented
at trial that A.R. was “hungry,” and the bald invitation for the jury to
consider this speculation was improper. The effect of such statements was
not only to interject facts of little or no relevance to defendant’s guilt or
innocence, but also to prejudicially play upon the jurors’ natural
sympathy for the victim, a risk made more potent by the prosecutor’s
exhortation to the jury to “think, again, what it would be like” to be A.R.
“This Court has often condemned arguments made to the jury in which the
prosecutor makes inflammatory statements or appeals to the sympathies of the
jury.” State v. Bubar,
IV. Prejudice
¶ 32.
The fact that the challenged evidence of A.R.’s reputation for truthfulness
and the challenged hearsay evidence were improperly admitted, and that the
State’s closing argument was improper, does not end our inquiry. When the
admission of evidence, exclusion of evidence, or propriety of argument is
objected to in the trial court and raised on appeal, we review for harmless
error, determining whether (1) the ruling was erroneous, and (2) if so, whether
“a substantial right” of defendant was affected. V.R.E. 103(a); see also
V.R.Cr.P. 52(a) (“Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded”); State v. Herring, 2010
VT 106, ¶ 4,
¶ 33.
Here, we cannot say beyond a reasonable doubt that the erroneous
admission of the evidence and the improper closing argument were
harmless. A.R. was clearly the State’s star witness, and the only witness
to the alleged offenses. The State relied heavily on A.R.’s testimony in
closing argument, and the jury’s belief in A.R.’s credibility must have been
pivotal. It is reasonably possible that the testimony of two vouching
witnesses on A.R.’s truthful character, as well as the testimony of one of them
essentially repeating her accusation against defendant, may have affected the
verdict. Seе State v. Blair,
Reversed and remanded for further proceedings.
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FOR THE COURT: |
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Associate Justice |
[1] Even aggressive impeachment by contradiction
frequently calls into question “the ability of the witness to perceive or
recall certain facts due to excitement, fatigue, poor eyesight, pоor lighting,
great distance from the event in question, or fading memory affected by the
passage of time,” and does not necessarily imply dishonesty in a specific
instance, let alone a general character for dishonesty. Dring, 930
F.2d at 691 n.5; C. Mueller & L. Kirkpatrick, Evidence § 6.50, at 566
(4th ed. 2009) (impeachment by contradiction frequently does “not so much
suggest untruthfulness as forgetfulness or lack of perception or judgment”);
see also State v. Tierney,
[2]
The State asserts, in a single line of its brief, that “the objection was
waived and is now subject to plain-error review” because “this evidence was not
objected to at the time of J.H.’s testimony.” We are puzzled by this
assertion. Defendant objectеd to the testimony on specific grounds in a
sidebar with the prosecutor and the judge, arguing that Rule 803(3) did not
apply. Although the exchange between the court and counsel was brief,
there is no doubt that this was a timely and specific objection as needed to
preserve the issue under V.R.E. 103(a)(1). See Billings v. Billings,
[3]
See 2 Broun, supra, § 272.1 n.8 (noting that a minority
of states follow modified version of doctrine); see also Battle, 630
A.2d at 221-22 (D.C. 1993); Commonwealth v. King,
[4]
E.g., Monday v. State,
[5]
See, e.g., People v. Brown,
[6]
E.g., State v. Slater,
[7] If we were to adopt a new freestanding doctrine аllowing the admission of the out-of-court statements of A.R., who was around sixteen at the time the statements were made, it would conflict with the exception to the hearsay prohibition for certain reports of sexual and other abuse by children, which is limited to children aged twelve or under.
[8]
Although not material to our judgment, we also express our displeasure with the
State’s decision to include in its briefs inflammatory material from outside
the record. The State’s brief refers to testimony by defendant’s
stepdaughter at the sentencing hearing that she, too, had been abused by
defendant. The State’s brief also refers to another alleged victim, who
did not testify at trial and whose statements would be inadmissible hearsay in
any case. Both topics are irrelevant to any issue in this appeal.
Such extraneous material is unhelpful to the Court’s decisionmaking and does
not belong in filings before this Court. See V.R.A.P. 28(a)(3) (statement
of the case in briefs should address “the subject of the litigation, the claims
of the parties, the facts of the case and proceedings below”). Any future
brief containing irrelevant material may be struck in whole or in part. Napro
Dev. Corp. v. Town of Berlin,
[9] Because we conclude that the trial court improperly admitted testimony concerning A.R.’s character for truthfulness, and reverse in part on that basis, we need not reach the question of whether the State laid sufficient foundation for the testimony.