State of Vermont v. Mark Bergquist
No. 2017-281
Supreme Court of Vermont
2019 VT 17
October Term, 2018
NOTICE: This оpinion is subject to motions for reargument under
Michael S. Kupersmith, J. (Ret..)
Richard R. Goldsborough, South Burlington, and David Carico, El Segundo, California, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. ROBINSON, J. Defendant appeals his jury conviction for sexually assaulting his seven-year-old daughter, A.B. On appeal, defendant raises a host of arguments challenging the trial court‘s (1) admission of A.B.‘s out-of-court statements pursuant to
¶ 2. This case began in December 2015 when mother reported to law enforcement that her daughter, A.B. (born Nov. 11, 2008), said that defendant had sexually abused her. Defendant and mother had been on-and-off romantic partners for a number of years, and defendant was A.B.‘s father. After an investigation, including an interview of A.B. by a detective from the Chittenden Unit for Special Investigations, the State charged defendant with two counts of aggravated sexual assault of a victim under thirteen years pursuant to
¶ 3. We consider each of defendant‘s challenges on appeal, expanding on the factual and procedural background as relevant.
I. A.B.‘s Out-of-Court Statements
¶ 4. Defendant challenges the trial court‘s determination that A.B.‘s videotaped out-of-court statements to Detective Rene Young were admissible under
¶ 5.
¶ 6. The trial court made the following findings in considering the State‘s motion to allow admission of A.B.‘s out-of-court statements under
¶ 7. Mother then asked if defendant had ever told A.B. not to tell about something because she could be taken away. A.B. froze. Mother told A.B. a couple times that if anything had happened, she needed to know so she could keep A.B. safe. A.B. then whispered into her ear “we had sex.” Mother testified that she was shocked. She asked A.B. if she knew what sex was, and what a penis was, and A.B. said yes to each. Mother was shocked to hear that too. She asked A.B. where defendant had touched her, and A.B. spread her legs and pointed to her genitals. Mother asked how many times it had happened, and A.B. said it happened once over the summer. Mother asked twice if A.B. was sure, and A.B. finally said it might have happened a couple of times. Mother then called the police.
¶ 8. A.B. was placed in the custody of the Department for Children and Families (DCF) on an emergency basis. The next day, Detective Young conducted a forensic interviеw with A.B. The interview was videotaped. At the beginning of the interview, Detective Young asked A.B. questions to establish that A.B. could tell the difference between truth and lies, and had A.B. promise to tell the truth. Eventually, A.B. told Detective Young that defendant put his “gina” in her “gina,” and gave details as to how it happened. When Detective Young asked what “gina” meant, A.B. pointed to her genitals, and said it was used for sex and “to go potty.” She also said that defendant had put his “gina” in her “gina” on a second occasion, this one at night, but did not provide further details.
¶ 9. The State moved to allow admission of both A.B.‘s statements to mother and to Detective Young; defendant opposed the admission of both. The court held that A.B.‘s statements to mother were not admissible because their circumstances—including that defendant had threatened to report mother to the police for sexually assaulting A.B. shortly before A.B. made the statements—did not provide substantial indicia of trustworthiness, as
¶ 10. In connection with the latter conclusion, the court credited the testimony of the State‘s expert, Dr. Halikias, concerning the protocols for such interviews. The court found that A.B. “appeared consistent about the disclosures throughout the interview,” and appeared reluctant and hesitant. The court found that she “looked uncomfortable and at times frightened,”
¶ 11. On appeal, defendant argues that the trial court erred in finding the circumstances of A.B.‘s statements to Detective Young trustworthy. He argues that mother coerced A.B. into making the statements the night before, and that A.B.‘s statements to the detective were contaminated by that coercion. Defendant preserved this issue for appeal.
¶ 12. The trial court‘s decision to admit A.B.‘s statements under
¶ 13. In determining whether the circumstances of a child‘s statement have the indicia of trustworthiness required for admission under
¶ 14. We conclude that the trial court‘s finding that A.B.‘s statements to Detective Young bore sufficient indicia of trustworthiness was not clearly erroneous. Evidence supporting this conclusion includes the State‘s expert‘s testimony that conduct of the interview was reasonably sound, despite some violations of the accepted interview protocol; A.B.‘s word choice and body language, which the trial court could reasonably find supported her credibility; A.B.‘s apparent resistance to leading questions when asked; and the fact that A.B., then a seven-year-old child, made reasonably consistent and at times graphic disclosures. See State v. LaBounty, 168 Vt. 129, 138, 716 A.2d 1, 7-8 (1998) (holding that young children‘s graphic accounts of sexual abuse to caseworkers and police officers, made the day after their initial disclosures to their mothers, supported finding that statements were trustworthy). Accordingly, we find no abuse of discretion in the trial court‘s decision to admit A.B.‘s statements to Detective Young under
¶ 15. We understand defendant‘s view that none of these indicia of trustworthiness is sufficient to surmount the contamination arising from mother‘s coercion of A.B. the night before, but conclude that the trial court‘s exclusion of A.B.‘s out-of-court statements to mother does not undermine its admission of the statements to Detective Young. The trial court emphasized that its decision to exclude A.B.‘s out-of-court statements to mother rested on the State‘s failure to meet its burden of showing that the time and circumstances of A.B.‘s disclosure to mother provided substantial indicia of trustworthiness. The court noted that the content of the actual
II. Evidence of Mother‘s Mental Illness and Alleged Assault
¶ 16. Defendant argues that the exclusion of certain evidence of mother‘s “mental illness and her aggravated assault” on A.B. deprived him of his constitutional rights to confrontation and to present a defense under the
¶ 17. The background relevant to this claim is as follows. In broad terms, defendant‘s theory of the case, beyond his general denial, is that mother coached A.B. to make the allegations because she thought defendant was going to report her for sexually abusing A.B. and she sought to preempt and divert attention from that report. In particular, around 2009, when A.B. was an infant, mother took photos of herself touching A.B.‘s vagina with her fingers and mouth. (Mother has subsequently alleged that defendant forced her to take these pictures and send them to him.) This happened while mother was enrolled in a residential parenting program. When her counselor at the program asked her about the photos mother had taken, mother lied to her counselor, claiming that they were of her breastfeeding. On the day in December 2015 when A.B. later made her disclosure, defendant called mother a child molester in the context of a fight. After the fight, mother called a mental-health crisis line. She then took A.B. to the store, where mother said A.B. made her disclosure to mother. Mother reported A.B.‘s allegations against defendant shortly thereafter. At that time, she also disclosed her own prior (2009) sexual assault of A.B. to the police. Subsequently, while this case was pending, during a supervised visit with A.B. mother told A.B. about the 2009 assault and said to A.B. that defendant had made her (mother) do it. Although mother denied to the DCF caseworker that she made any such disclosure, the caseworker observed that A.B. provided a high level of detail about the disclosure. Finally, mother has a history of significant mental-health issues. Defendant argues that these events show mother‘s
¶ 18. In connection with these matters, the parties made a series of motions pretrial, which we discuss more fully as they are relevant to particular rulings.
¶ 19. At trial, the court admitted considerable evidence relating to mother‘s mental health, but stated that defendant could not introduce evidence of mother‘s “mental health status as such” because it was not relevant. The court allowed defendant to introduce evidence suggesting that mother had mental-health concerns, including that mother had in the past seen a mental-health professional, had attempted suicide, and had called a mental-health crisis line the night A.B. disclosed defendant‘s sexual abuse of her. It also allowed evidenсe that mother and defendant had in the past argued about mother‘s mental health and her refusal to seek therapy.
¶ 20. Likewise, the trial court ultimately allowed defendant to introduce evidence relating to mother‘s alleged assault of A.B. and some of her subsequent statements about it.2 On the stand, mother admitted that she had taken pictures of herself inserting her finger into A.B.‘s vagina when A.B. was an infant. She conceded that was why defendant called her a child molester, and that she told the police about it on the evening that she called to report defendant‘s abuse of A.B. because she “thought it would be best to get it out” herself “rather than have [defendant] report it.” The court also admitted A.B.‘s testimony that mother had told A.B. that when A.B. “was a little baby or girl . . . my dad made my mom stick her finger in my private.” The court also allowed defendant to ask mother on the stand if she had told A.B. this.
¶ 21. On appeal, defendant challenges six specific rulings or clusters of rulings that he argues denied him the opportunity to fully present his defense.3
¶ 22. “We review the trial court‘s evidentiary rulings deferentially and reverse only when there has been an abuse of discretion that resulted in prejudice.” Felix, 2014 VT 68, ¶ 19 (quotation omitted). We will find an abuse of discretion only upon a showing that “the court‘s discretion was either withheld or exercised on clearly unreasonable grounds.” State v. Cartee, 161 Vt. 73, 76, 632 A.2d 1108, 1110 (1993). Recognizing the constitutional issues at play when a criminal defendant is prevented from introducing evidence to impeach an opposing witness or call into question a witness‘s
A. Testimony from Detective Young Regarding Mother‘s Admission
¶ 23. Defendant argues that the trial court erroneously declined to allow him to call Detective Young to testify that mother admitted to Detective Young on the night of A.B.‘s initial disclosure of abuse that she, mother, had previously sexually abused A.B.
¶ 24. The ruling at issue followed a discussion at the bench on the second day of trial. Defendant was seeking to highlight mother‘s statements to A.B. about the prior assault, and mother‘s denial to the DCF caseworker that she made those statements. Defense counsel asked whether he could call Detective Young to say that at the interview, mother said that she had touched A.B.‘s vagina, and then call A.B.‘s foster mother to testify that A.B. had reported that mother had disclosed this prior abuse during a visit. The court noted that A.B. had already testified to these events and concluded that defendant did not need to bring in Detective Young to repeat that.
¶ 25. The trial court has considerable discretion to refuse to allow cumulative evidence. Pcolar v. Casella Waste Sys., Inc., 2012 VT 58, ¶ 9, 192 Vt. 343, 59 A.3d 702, as amended on denial of reh‘g (Aug. 28, 2012).
¶ 26. Here, even if the court abused its considerable discretion in denying defendant the opportunity to elicit from Detective Young testimony about matters that were already in the record, defendant was not prejudiced by the ruling since mother herself subsequently testified that at the time she reported A.B.‘s disclosures, she told Detective Young that she, mother, had committed the prior acts. This is essentially the same testimony defendant sought to elicit from Detective Young. The fact that mother made this disclosure to Detective Young was clear to the jury and undisputed. Accordingly, defendant suffered no prejudice from the court‘s exclusion of the additional testimony, and any error was harmless. See
B. Testimony from Detective Young Regarding Mother‘s Inconsistent Statement
¶ 27. Defendant challenges the trial court‘s exclusion of a prior inconsistent statement mother made to Detective Young. The background is as follows. During mother‘s testimony, after mother described the photos she took of herself abusing A.B. when A.B. was an infant, defendant elicited mother‘s confirmation that she had made a report about the incident when she was at the residential program where it happened. In connection with that report, defense counsel asked mother, “Isn‘t it true that . . . you told [your counselor] that you had not taken the pictures that you just described?” Mother responded, “I had told her that I thought I did, but wasn‘t sure, and she said that if—if I actually did it, she thinks I would have remembered.” Defendant
¶ 28. Although defendant identifies this argument in his post-argument list of rulings at issue on appeal, nowhere in his appeal briefs does he provide a record citation to the court‘s contested ruling on this point so we can review it.4 See
¶ 29. Nor does he point us to his request to call Detective Young for this purpose and his proffer as to what Detective Young was expected to say. See
were asked.“). Defendant did not attempt to question Detective Young about the purported inconsistent statement by mother when Detective Young testified during the State‘s case in chief, nor when she testified in the State‘s rebuttal case. Defendant has not pointed us to an instance when he sought to call Detective Young in his own case for the purpose of asking this question. Because defendant has not identified a request, proffer, and ruling for us to review, we cannot conclude that the trial court committed error.5
C. Testimony of Counselor
¶ 30. In connection with the same issue, defendant sought to call the counselor from the program mother was enrolled in to testify that mother had told the counselor back in 2010 that the pictures mother had taken and sent to defendant were essentially benign, and that mother did not disclose the sexually abusive nature of the pictures to the counselor. In declining defendant‘s request, the court explained that mother had already admitted to committing the 2009 acts, and the proffered testimony showing that mother lied about them to her counselor in 2010 would add little.
¶ 31. While constitutional concerns do limit the trial court‘s discretion to exclude evidence impeaching the credibility or exposing the bias of a witness such as mother, the court‘s ruling denying defendant‘s request to call the counselor for this
expose a witness‘s bias would render cross-examination “largely an empty gesture.” Id. at 77, 632 A.2d at 1111. Moreover, jurors are ” ‘entitled to have the benefit of the defense theory before them so that they [can] make an informed judgment as to the weight to place on the witness’ testimony.’ ” Id. at 76, 632 A.2d at 1110 (alterations omitted) (quoting Davis v. Alaska, 415 U.S. 308, 317 (1974)).
¶ 32. In this case, though, the jury heard the core evidence to support defendant‘s theory that mother sexually abused A.B. when A.B. was an infant; that defendant argued with mother and called her a child molester shortly before mother reported A.B.‘s disclosures; and that mother then reported A.B.‘s disclosures tо the police, along with mother‘s own actions six years prior, in an effort to preempt any report defendant might make about mother‘s conduct and shift the attention to him.
¶ 33. Evidence that mother did not fully disclose the contents of the pictures when she spoke to her counselor about them in 2010 would have, at most, impeached mother‘s credibility by exposing somewhat inconsistent statements on a collateral matter—that is, the scope of her 2010 disclosures to her counselor about the photos she took. A court has broad discretion to exclude extrinsic evidence introduced to impeach a witness on a collateral matter. See
what she observed in connection with the events at issue in this case.” Congress, 2014 VT 129, ¶ 48. The court acted within its discretion in excluding this evidence.
D. Testimony of DCF Social Worker
¶ 34. Defendant challenges the trial court‘s ruling precluding him from calling the DCF social worker to testify that (1) mother denied speaking with A.B. about her sexual abuse of A.B. as an infant and (2) the social worker observed that A.B. provided a high level of detail regarding the charges against mother.
¶ 35. As with his challenge concerning testimony from Detective Young that he contends was improperly excluded, defendant does not provide a record citation to a specific proffer of evidence and court ruling excluding the evidence he describes in this challenge on appeal, so our ability to review the argument is limited. See
¶ 36. Defendant‘s express purpose at trial for seeking to elicit the testimony from mother was to impeach A.B. That is, defendant was not trying to undermine mother‘s credibility by showing that mother denied disclosing the 2009 abuse to A.B. when, in fact, she did. Instead, he sought to show that mother did not disclose the 2009 abuse to A.B., thereby calling into question A.B.‘s credibility as a reporter of sexual abuse. In the context of this back-and-forth between the parties and court concerning mother‘s Fifth Amendment rights, defense counsel raised the possibility of calling a social worker to testify that mother had denied disclosing the 2009 abuse to A.B. The court first suggested that would be hearsay, but then after further discussion concluded that it might not be hearsay if used to impeach mother by showing she had said diffеrent things to
different people. The court did not make any ruling at all regarding the admissibility of potential testimony by the social worker on this point. In fact, when defense counsel indicated that he might need to lay more foundation from the social worker “who will say that A.B. said these things,” the court replied, “Okay. Then fine.” Thereafter, the discussion turned back to mother‘s Fifth Amendment rights and went from there. Nowhere in the discussion cited by defendant in his brief on appeal did the court rule that defendant could not call the DCF social worker to testify that (1) mother denied speaking with A.B. about her sexual abuse of A.B. as an infant and (2) the social worker observed that A.B. provided a high level of detail regarding the charges against mother.
¶ 37. Not only has defendant failed to cite to a specific trial-court ruling excluding the evidence he now argues was wrongly excluded on appeal, but when defendant sought to call the DCF social worker, his proffer as to her expected testimony did not include either of the two items that he now relies upon as the basis for his appeal.6 Because defendant has not directed us to any actual ruling excluding the testimony he now says was wrongly excluded, and has not pointed us to any proffer in the trial court, we cannot review his claim of error on appeal. See
E. Evidence Concerning DCF‘s 2010 Assessment of Defendant
¶ 38. Twice defendant sought to present evidence that in 2010 DCF viewed defendant as a stable and supportive factor in the family. First, defendant indicated an intent to offer into evidence a DCF report reflecting that in 2010 DCF viewed defendant as the more stable parent in
the family.8 The court questioned the relevance
¶ 39. The trial court did not abuse its discretion in excluding evidence regarding DCF‘s assessment of defendant‘s role in the family five years prior to the charges in this case—when A.B. was a very young child. The court could reasonably conclude that the proffered evidence did not tend to make the existence of any fact of consequence to determining defendant‘s guilt any more or less probable. See
F. Discovery and Testimony About Dr. Gilligan‘s Evaluation of Mother
¶ 40. Defendant contests the limits the court put on the disclosure to defendant of a psychosexual evaluation of mother conducted in connection with the criminal prosecution of mother for the 2009 act of sexual abuse described above, and on the testimony of its author.
¶ 41. In connection with criminal charges against mother for her role in the 2009 sexual abuse of A.B., Dr. Claire Gilligan conducted a forensic evaluation of mother, which was provided to the State in connection with mother‘s separate criminal case. Defendant requested an order requiring the State to disclose the evaluation to him, and the State objected, filing a copy of the evaluation with the court under seal. The court ruled that the forensic evaluation was not protected by any patient privilege, but concluded that much of the evaluation contained private and personal information not relevant to defendant‘s case. The court disclosed limited portions of the evaluation that it concluded might be relevant to defendant‘s case. The court indicated that it would consider further disclosures upon receiving defendant‘s written motion outlining why further portions of the evaluation might be relevant.
¶ 43. Defendant opposed the motion and said he wanted to introduce evidence from Dr. Gilligan‘s report. Defendant asked the court to revisit its previous ruling releasing only a redacted copy of the report to him, and argued that mother‘s mental state more broadly was relevant to the dynamic of mother‘s relationship with him and the allegations in this case. The trial court expressed doubt, explaining that evidence оf mother‘s conduct may be relevant, but evidence about her mental health and what inferences might be drawn from that is “really, really . . . far afield.” The court said, “I‘m not saying it could not be relevant. I‘m just saying I think you‘re out at the outer fringes.” It added, “I am doubtful about whether we‘re going to get into mother‘s mental health history in connection with that. But we‘ll see.” The court indicated that it would review the psychosexual evaluation and reserved judgment on the motion until trial.
¶ 44. Immediately prior to trial, defendant subpoenaed Dr. Gilligan to testify. Dr. Gilligan responded with a request to quash the subpoena on the ground that she did not have ample notice and was not able to reschedule previously scheduled interviews and evaluations without considerable difficulty and consequences.
¶ 45. At the beginning of trial, the court expressed generally that the issue before it was whether or not defendant committed the alleged acts. It indicated that evidence relating to mother‘s motives or arguments between the parents was fair game, but evidence about mother‘s “mental health status as such” was not relevant. The court reaffirmed its prior decision giving defendant only partial access to the psychosexual evaluation10 and generally deferred specific rulings regarding the admissibility of specific testimony until the court heard the testimony.
¶ 46. After the court had taken some testimony, it took up the question of Dr. Gilligan‘s subpoena. The court was inclined to tell Dr. Gilligan that she need not respond to the subpoena. Defendant emphasized that Dr. Gilligan‘s testimony was significant because mother told her something that she did not tell anybody else: that she (mother) told the police about her 2009 sexual abuse of A.B. on the night shе disclosed A.B.‘s report about defendant because mother thought the report about her own sexual abuse of A.B. would sound better coming from her than from defendant. The court did not question the relevance of this testimony, but directed defendant to first cross-examine mother, on the theory that if mother testified to that effect, then testimony on
that point from Dr. Gilligan would be cumulative. Accordingly, at the end of the State‘s case, defendant indicated that Dr. Gilligan might not be needed, depending on mother‘s testimony.
¶ 47. As mother testified, defendant repeatedly refreshed mother‘s recollection with a copy of Dr. Gilligan‘s redacted report. As a consequence, mother ultimately
¶ 48. Reviewing defendant‘s challenges, we conclude that the trial court acted within its discretion in limiting defendant‘s access to the report of Dr. Gilligan‘s psychosexual evaluation of mother to those portions not redacted by the court. To the extent that the court precluded Dr. Gilligan from testifying about mother‘s mental health, it acted within its discretion.
¶ 49. When a defendant seeks a witness‘s mental-health records which are in the State‘s custody, and the State objects to their disclosure, the defendant is entitled to have the court review the requested documents. The trial court has discretion to determine whether the records “contain information critical to the defendant‘s ability to impeach the witness” and would “therefore warrant disclosure. If the court concludes that, in its judgment, the records contain no information that should be disclosed, then the material may remain under seal and be made available for inspection on appellate review [by the reviewing court].” State v. Barbera, 2005 VT 13, ¶ 12, 178 Vt. 498, 872 A.2d 309 (mem.) (citations and quotation omitted). The court has discretion to decide which, if any, portions of the records should be disclosed, State v. Rehkop, 2006 VT 72, ¶ 26 n.2, 180 Vt. 228, 908 A.2d 488, but this “discretion is not unbounded.” Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987). The court is “obligated to release information material to the fairness of the trial.” Id.
¶ 50. After reviewing the sealed psychosexual evaluation with these considerations in mind, we conclude that the trial court‘s discovery order was within its discretion. The disclosed portion of the report includes all of the report‘s discussion concerning the circumstances surrounding A.B.‘s disclosure, including a description of mother‘s fight with defendant that evening, mother‘s fears that he would use the 2009 incident to take A.B. away from her, and the manner in which A.B. made the disclosure. It includes a description of the 2009 incident and mother‘s 2010 reports to the program in which she was enrolled and to DCF in connection with their questioning about the photos. It also includes discussion of mother‘s alleged disclosure about the 2009 incident to A.B. during a supervised visit following her report to the police about defendant, and mother‘s claim to A.B. that defendant made her do it; and reports from A.B.‘s foster mother regarding A.B.‘s disclosures to the foster mother concerning abusive acts by defendant and A.B.‘s reflеction that her mother had done a “bad thing” to her. These are the essential pieces relating to defendant‘s theory of the case. By contrast, the redacted content that was not produced to defendant includes a detailed psychosocial history of mother, psychological testing, and the evaluator‘s summary of other documents that are directly available to defendant (such as Detective Young‘s affidavit concerning her initial interview with mother). Given the legal framework set forth above, these redactions were well within the trial court‘s discretion.
¶ 51. With respect to defendant‘s challenge to the exclusion of evidence, we find no clear ruling actually limiting Dr. Gilligan‘s testimony except a broad discussion
¶ 52. To the extent that defendant construed the trial court‘s general discussion of the relevance of mother‘s mental health as such as a ruling, and refrained from seeking Dr. Gilligan‘s testimony concerning mother‘s mental health on that basis, the trial court acted within its discretion. The court left open a wide range of evidence concerning mother‘s conduct, including conduct that reflected on or stemmed from mental-health issues. Defendant did not make a specific proffer of evidence relating to mother‘s mental health as such that was relevant to mother‘s capacity to tell the truth, predisposition to coaching A.B. to make false accusations, or other matters at issue in this case. Based on defendant‘s own proffer, Dr. Gilligan‘s testimony concerning mother‘s mental health related to mother‘s mental health in 2009, at the time mother engaged in the sexually abusive conduct. The court could reasonably conclude that mother‘s mental state in 2009, six years before the disclosure by A.B. and report by mother that set this case in motion, was too remote in time to be relevant to this case, and would unduly confuse the issues. See Letourneau, 168 Vt. at 554, 726 A.2d at 41.
¶ 53. Although we have relied primarily on the
III. Ruling Allowing A.B. to Testify out of Defendant‘s Presence Under Rule 807(f)
¶ 54. Defendant raises four distinct objections to the trial court‘s order allowing
¶ 55. Following a hearing, the court granted the motion. Relying on the testimony of A.B.‘s therapist of many months, the court found that A.B. had been diagnosed with post-traumatic stress disorder. The bases for the diagnosis included A.B.‘s flashbacks and intrusive thoughts about the alleged abuse, difficulty sleeping, irritability without provocation, frequent outbursts of crying, and anger and frustration—symptoms that persisted at the time of the hearing. The court found that A.B. has a strong reaction to discussion of the events underlying these criminal charges and has difficulty talking about the allegations even with her own therapist.12 A.B.‘s reaction to discussing these events has included “curling up in a ball, shutting down and not talking.” The court credited the therapist‘s opinion that requiring A.B. to testify in a courtroom setting “creates a substantial risk of trauma to A.B. which would substantially impair her ability to testify” and a substantial risk that she would be unable to respond to questions.
¶ 56. In addition, in light of A.B.‘s high degree of trauma caused by defendant‘s alleged actions, together with her fear and anger toward defendant and the significant period of time not seeing him, the court also concluded that requiring A.B. to hear and see defendant “would present a substantial risk of trauma to A.B. and would substantially impair her ability to testify.” The court credited the therapist‘s testimony and found that “it is highly likely that A.B. would completely shut down and respond in a very strong emotional manner.” The court accordingly ordered that defendant be situated in a manner that A.B. could not see or hear him during her testimony.
¶ 57. On appeal, defendant argues that
A. Constitutionality of Rule 807(f)
¶ 58. Defendant argues that
¶ 59. The State counters that the required finding that a child faces a “substantial risk of trauma” is essentially the same as a finding that the child is likely to suffer trauma, and argues that Craig does not require a finding of significant trauma—it simply requires that the trauma be more than minimal.
¶ 60. Because defendant failed to raise this claim before the trial court, we review it for plain error.
¶ 61. In evaluating
¶ 62. Exceptions to the
¶ 63. The Confrontation Clause, which applies to the states through the
¶
¶ 65. The Supreme Court has held that a state‘s “interest in protecting child witnesses from the trauma of testifying in a child abuse case” is a sufficiently important public policy to justify an incursion on the right to face-to-face confrontation, “[g]iven the State‘s traditional and transcendent interest in protecting the welfare of children, and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court.” Id. at 850, 855 (quotation omitted). However, the State must make “an adequate showing of necessity” in each individual case to justify allowing a child to testify outside the defendant‘s presence; otherwise such testimony would violate the Confrontation Clause. Id. at 855.
¶ 66. To make this showing of necessity, the State must show that the “witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.” Id. at 856. It must also show that the witness would suffer a level of emotional trauma that “is more than . . . mere nervousness or excitement or some reluctance to testify” and “would impair the child‘s ability to communicate.” Id. at 856-57 (quotation omitted). The U.S. Supreme Court has not decided the minimum level of trauma required, but did hold that a state statute requiring “that the child witness will suffer ‘serious emotional distress such that the child cannot reasonably communicate,’ clearly suffices to meet constitutional standards.” Id. at 856 (citing
¶ 67.
¶ 68. The requirements of
¶ 69. However, we do not reverse on that basis becausе notwithstanding the lower standard reflected in
B. Reliance on Testimony of Child‘s Therapist
¶ 70. Defendant‘s second challenge to the court‘s ruling under
¶ 71. Because defendant did not raise this argument before the trial court, we review the court‘s admission of this testimony for plain error.
¶ 72. Defendant‘s argument fails to recognize the distinction between a forensic evaluator and a treating provider. The child‘s therapist in this case was not retained by the court to conduct an impartial assessment. She did not hold herself out to the court as a forensic evaluator. She testified as A.B.‘s treating clinician, and her testimony was expressly informed by that therapeutic relationship.
¶ 73. A treating provider who satisfies the requirements of
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
¶ 74. This is not to say that testimony in court from a treating provider is not potentially fraught. Commentators have emphasized the distinction between the duties of a therapist versus a forensic or neutral evaluator, and have highlighted the issues that may arise when an individual‘s treating therapist testifies as an expert in court. See, e.g., 1 Demothenes Lorandos & Terence Campbell, Cross Examining Experts in the Behavioral Sciences § 2.3 (Nov. 2018 update) (contrasting treating provider‘s focus on therapeutic alliance with patient with exрert witness‘s obligation to testify objectively and candidly); Kirk Heilbrun, Child Custody Evaluation: Critically Assessing Mental Health Experts and Psychological Tests, 29 Fam. L. Q. 63, 69-71 (1995) (identifying problems that arise when treating mental-health provider testifies in litigation).
¶ 75. But these issues are not disqualifying if a treating provider otherwise has sufficient training and bases for opinions to meet the requirements of
¶ 76. A proper response to the tensions between a treating provider‘s roles as treater and testifying expert is cross examination
¶ 77. While the therapist‘s relationship with A.B. would have been a fair basis for cross examination, defendant has identified no law suggesting that simply because she was A.B.‘s treating provider she could not provide expert testimony based on her training and her experience treating A.B. Cf. State v. Dunbar, 152 Vt. 399, 410-11, 566 A.2d 970, 976-77 (1989) (holding fact that clinician who testified only about general principles concerning child victims of sexual assault was child victim‘s treating provider did not, by itself, suggest bias).18 Given these considerations, we conclude that the court‘s admission of the therapist‘s testimony was not plain error.
C. Limits on Defendant‘s Contact with A.B.
¶ 78. Defendant next argues that he was denied substantive due process because he did not have pretrial visits with A.B., even though mother had supervised visitation with her, and that fact led to the court‘s decision to allow A.B. to testify by prerecorded video pursuant to
¶ 79. In reviewing defendant‘s argument, it is difficult to discern which ruling, of which court, defendant asks us to review. Defendant does not directly challenge the trial court‘s order pursuant to
¶ 80. Instead, he asks us to take “judicial notice” of “discussions regarding visitation” in a proceeding in the Family Division. Apparently, he is not actually challenging a court order in the Family Division, but contends that “discussions” in that court support his claim. His reasoning is that DCF generally opposed visitation unless defendant met a number of conditions, and that the State is therefore accountable for the lack of contact between him and A.B., and for the subsequent impact of that estrangement on his right to be visible to her while she testified in the criminal proceeding.
¶ 81. Defendant has not raised a cognizable argument on appeal. To the extent that defendant took issue with DCF recommendations to the court in the Family Division, he was free to present contrary evidence in that setting. To the extent that he objected to a ruling of the Family Division regarding contact or visitation, he was free to appeal that ruling. To the extent he objected to the impact of a ruling of the
D. Communication with Attorney During 807(f) Testimony
¶ 82. Defendant contends that because he was unable to communicate with his attorney during A.B.‘s videotaped testimony, the proceeding violated his
¶ 83. Defendant did not make any claim at the trial-court level about his inability to contemporaneously communicate with his attorney during A.B.‘s testimony, let alone that it deprived him of constitutional rights. In fact, the video of the testimony shows that defendant‘s counsel was actively involved in the set-up for the testimony, in the presence of a judge.
¶ 84. We need not decide whether defendant has waived his objection,21 because even assuming plain-error review applies, defendant has not shown plain error.
¶ 85. Defendant argues that A.B.‘s counseling records should have been discoverable because, when the State requested that A.B. be allowed to testify pursuant to
¶ 86. At the hearing on the State‘s motion to allow A.B. to testify pursuant to
¶ 87. In the absence of an actual ruling by the trial court, we have nothing to review. This case is akin to State v. Hooper, 151 Vt. 42, 557 A.2d 880 (1988). In that case, the defendant argued he should have been allowed to introduce evidence of a Federal Bureau of Investigation analysis of the hair found on the victim. We concluded that the claim was not properly before us. We explained:
Defendant‘s evidence about the analysis of the hair samples was not covered by the motion in limine and, therefore, was not excluded by the grant of that motion. Defendant made no attempt to raise his theory about the hair samples during his trial. Even though, at the motion hearing, the trial court expressed its doubt that the evidence regarding the hair samples would be admissible, it did not rule that it was inadmissible. . . . Since defendant never availed himself of the opportunity to present evidence to prove his argument during trial, this Court has nothing before it to review.
Id. at 45-46, 557 A.2d at 882. Because defendant did not make specific requests for appropriate discovery based on the testimony as it сame out in the proceeding, the court never got the chance to actually rule on the matter in the context of specific evidence, and defendant has nothing to appeal.22
V. Expert Testimony and Vouching
¶ 88. Finally, defendant argues that the trial court abused its discretion in
¶ 89. At trial, the State offered expert testimony by Dr. Halikias concerning current research on children‘s resistance to coercive questioning. The State offered Dr. Halikias‘s testimony in rebuttal to expert testimony put on by the defense concerning research showing that repeated questioning, leading questions, and nonverbal cues can reduce the reliability of children‘s testimony and even alter their memories of events. When asked about research about children‘s ability to resist coercive questioning, Dr. Halikias noted that some studies have found that “remarkably few [children] affirm” a false, leading question. He testified about a study of preschoolers subjected to repeated interviews in which adults asked “coercive questions, such as he took your clothes off, didn‘t he? We know that happened. We spoke to your mother. Your mother told us about it. The older children told us about it. Now you tell us about it.” He noted that “in that particular research study, ninety-one percent of the children resisted even that coercive line of questioning.” Summing up the research in this field, he said “it‘s never all” children who resist coercive questioning. He concluded that “it‘s certainly possible” to induce a child to falsely say an adult took off their clothes, “but it‘s difficult, and it becomes more difficult” to induce a child to falsely recount “genital touch because young children don‘t know what sex is.” He said it is particularly hard to lead a child to falsely acknowledge or develop a false memory of genital touch by someone the child is close to. He then went on to describe a study wherein researchers induced college students to falsely believe they had committed a felony when they were fifteen by repeatedly interviewing them and giving them false information. He concluded, “it‘s possible” to induce a false memory “even with adults. But it takes a lot of work, and it takes effort.”
¶ 90. The State also introduced expert testimony by Dr. Hagan as to the results of the sexual-assault examination he performed on A.B. after her forensic interview. Dr. Hagan testified that the examination findings were normal. He also testified that while he sometimes takes a patient history, he did not take one for A.B. because sexual abuse is traumatic, and A.B. had just been through a forensic interview in which she “made significant disclosures” that were “very clear and graphic.” After reviewing those disclosures, Dr. Hagan and the nurse with whom he was working decided that eliciting further history from A.B. was unnecessary, particularly because of the concern that it would further traumatize her.
¶ 91. On appeal, defendant argues that Dr. Halikias vouched for A.B.‘s credibility when he testified that fewer than nine percent of children in a study were induced to falsely identify genital touch. He also contends Dr. Hagan implied that A.B. had been sexually abused, thereby vouching for her allegations against defendant, when he described her disclosures as significant, clear, and graphic.
¶ 92. Beсause defendant did not timely raise either of these claims at the trial level, we review for plain error.
¶ 93. We conclude that neither Dr. Halikias‘s nor Dr. Hagan‘s testimony improperly vouched for A.B.‘s credibility, as neither directly commented on A.B.‘s credibility.
¶ 94. Experts may not offer testimony that vouches, even implicitly, for another witness‘s credibility. See State v. Catsam, 148 Vt. 366, 370, 534 A.2d 184, 187-88 (1987). In Catsam, we held that expert testimony that a child complainant in a sexual-abuse case had post-traumatic stress disorder, or PTSD, and that people diagnosed with PTSD generally do not fabricate claims of sexual abuse, was “the equivalent of a direct comment on the credibility of the testifying complainant” and was thus inadmissible. Id. Similarly, in State v. Kinney, a case in which the defendant was charged with aggravated sexual assault, an expert for the State testified that the incidence of false reporting in rape cases was less than two percent. We held this to be inadmissible because the jury could infer from the testimony that allegations of rape are almost always true, and thus that the complainant‘s allegation was almost certainly true. 171 Vt. at 253, 762 A.2d at 844. We affirmed the conviction, though, because admission of the improper testimony did not rise to the level of plain error. Id. at 253, 762 A.2d at 845.
¶ 95. We likewise conclude that Dr. Halikias‘s testimony does not rise to the level of plain error. This is a close case: the jury could infer from the testimony that because only a small percentage of children were induced to make false allegations, it was unlikely A.B. had been coerced into falsely accusing defendant, and therefore she was likely telling the truth. We need not decide whether, upon a proper objection, the testimony should have been stricken; we conclude that any error does not rise to the level of plain error. See id. (finding no plain error because we “cannot conclude that failure to exclude the inadmissible expert testimony caused a miscarriage of justice in this case“). Several aspects of Dr. Halikias‘s testimony in combination support our conclusion that any error does not rise to the level of plain error. First, Dr. Halikias did not purport to give a global statistic; he emphasized that the statistic he related arose from a particular study. Second, his testimony as a whole emphasized how difficult it is to coerce children to falsely report, but also acknowledged that it can be done. Third, the testimony was a logical response to the testimony of defendant‘s expert who described research suggesting that children can be coerced to make false allegations. And finally, the focus of Dr. Halikias‘s testimony was not on the general truthfulness of children‘s reports of sexual abuse but, rather, was on the susceptibility (or not) of children to coercion or suggestion inducing false allegations.23
Affirmed.
FOR THE COURT:
Associate Justice