State of Vermont v. Jamie L. Ross
No. 86-015
State of Vermont
September 8, 1989
[568 A.2d 335]
Present: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
Affirmed.
Martin and Paolini, Barre, for Defendant-Appellant.
Gibson, J. Defendant Jamie Ross appeals his conviction of sexual assault upon a minor in violation of
I.
The Information
In early 1984, while in foster care, the victim, age eight, told
Our law recognizes that sex-related crimes—especially those involving child victims—are often hard to identify as happening on a particular date. Consequently, time is not an essential element to be charged in the information. See State v. Williams, 137 Vt. 360, 362, 406 A.2d 375, 376 (1979), cert. denied, 444 U.S. 1048 (1980). So long as it is shown that the crime occurred at a time not barred by the statute of limitations and the defendant is given fair opportunity to prepare a defense in light of the circumstances of the case, the defendant is not entitled to a dismissal. See State v. Daniels, 129 Vt. 143, 144, 274 A.2d 480, 480 (1971).
The due process right to notice of the time of the offense varies according to the age and circumstances of the victim and how the sexual abuse was allegedly carried out. Here, the victim was seven, and she did not report the abuse for about eight months after it happened. It is not surprising or unreasonable that the State could not determine the time of the offense any more precisely than it did.
Defendant argues that the vagueness of the notice as to time of offense prevented him from establishing an alibi and could subject him to double jeopardy. The abuse alleged here was behavior repeated over a period of time. An alibi in a case like this requires a showing of lack of opportunity over the whole time the alleged abuse took place. Defendant claimed he was never alone with the victim because his wife was always there. His opportunity to establish an alibi was not unreasonably thwarted.
II.
Reciprocal Discovery
Defendant askеd that a defense expert be permitted to examine the victim to evaluate whether she was suffering from post-traumatic stress disorder (PTSD) syndrome as a result of sexual abuse or other causes. The court denied the request. The State‘s expert, who had examined the victim, testified over defendant‘s objection. We have previously approved the use of expert testimony on PTSD in a limited way to aid the jury in the understanding of sexual abuse. State v. Catsam, 148 Vt. 366, 369-70, 534 A.2d 184, 187 (1987).
Defendant maintains, however, that when the defense does not have the opportunity to countеr the State‘s expert with its own, the State should not be permitted to present its expert to the jury. We foresee that there will be cases where it is appropriate either to allow examination of a victim by the defense expert or to prohibit the State from providing its expert testimony when the former procedure is inappropriate. But this is not such a case. Such decisions are left to the sound discretion of the trial court, which was not, on this record, abused. Cf. State v. Percy, 149 Vt. 623, 636-38, 548 A.2d 408, 415-17 (1988) (due process right to reciprocal discovery not violаted where court permitted State expert to interview defendant but defendant‘s expert was not permitted to interview victim).
The purpose of defendant‘s proposed expert presentation of the victim‘s mental state might have been either to persuade the jury that she did not suffer from PTSD or, if she did, to show that it was caused by someone other than the defendant. As to the first point, the defense argued to the jury that the victim had been sexually assaulted repeatedly over at least a two-year period by her stepfather, who hаd been convicted of the crime. The victim, according to the defendant, showed many of the symptoms associated with PTSD. The
III.
Victim‘s Credibility
Defendant contends that the trial court erred in permitting the State to introduce expert testimony on the credibility of the child victim.
Dr. Pamela Langelier, a psychologist, was called by the State as an expert witness to explain to the jury the results of her evaluation of the victim. She related the psychological symptomatology of a sexually abused child of the victim‘s age. She was asked, “Is it your experienсe in dealing with children who are sexually abused that these symptoms ... can be easily faked?” Dr. Langelier stated that they could not, “not at a young age,” and added, “Common sense tells you that little children don‘t make up stories or fake sexual knowledge. They have no interest in doing it. They gain themselves nothing.”
Dr. Langelier told the jury that the victim was “referred to me to determine whether or not she had been sexually abused ... to what extent, by whom, and indeed if what she was saying is what happened.” The witness then proceeded to detail the victim‘s sexual activity with defendant as told to her by the victim and corroborated by a foster parent. Dr. Langelier concluded that the victim had been sexually abused by defendant and others:
So, I think I saw enough to believe that I saw symptomatology indicating sexual abuse had gone on for anywhere from four to five years, but the frequency of which it‘s hard to gain [sic] because of the environment in which she was raised in the first place. But based on her own records, it seems that the frequency with Uncle Jamie was
not as frequent as it was with other parties, but that it was defined with Uncle Jamie with specific memory because it was unusual form of stimulation for a child that age, oral sex. So, she remembered it clearly and it looks like it was twice if not more.
Defendant made no objection to the above testimony. Insofar as it amounted to an opinion that the victim had suffered sexual abuse, such an opinion would not be inadmissible. See Cadel v. Sherburne Corp., 139 Vt. 134, 137, 425 A.2d 546, 547-48 (1980) (opinion evidence otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact); State v. Norton, 134 Vt. 100, 104, 353 A.2d 324, 326 (1976) (same);
It is a closer call, however, as to whеther the testimony, taken as a whole, amounted to a conclusion on the part of the witness about the guilt or innocence of defendant. In effect, the testimony was a summation of the witness‘s own observations and records, including what the victim herself had said about what had happened to her. To the extent that the testimony amounted to a comment on the credibility of the victim, it would ordinarily be inadmissible. State v. Catsam, 148 Vt. at 370-71, 534 A.2d at 187-88. Inasmuch as defendant did not object, however, he failed to preserve the issue for appeal, and we are bound to reversе only if we find that the trial court‘s failure to exclude the testimony sua sponte constituted plain error.1 State v. Recor, 150 Vt. 40, 46, 549 A.2d 1382, 1387 (1988); State v. DeJoinville, 145 Vt. 603, 605, 496 A.2d 173, 174-75 (1985). Plain error will be found “only in a rare and extraordinary case where the error is an obvious one,” State v. Ramsay, 146 Vt. 70, 75, 499 A.2d 15, 18 (1985), and only if the error affects substantial rights of the defendant. Recor, 150 Vt. at 46, 549 A.2d at 1387;
We have previously encountered allegations of plain error under similar circumstances in DeJoinville and Recor. In
In Recor, the expert witness, when asked what it meant when a child gave consistent stories over several interviews, testified that it gave the expert a sense that “what they are saying happened, happened.” Recor, 150 Vt. at 45, 549 A.2d at 1386. That testimony, which was held not to amount to plain error, id. at 46, 549 A.2d at 1387, is of exactly the same tenor as the testimony in the instant case. In short, there is little to distinguish this case from either DeJoinville or Recor. If anything, DeJoinville is more egregious than the instant case because of the repeated emphasis therein placed on the expert‘s testimony by the prosecutor in closing argument.
The issue concerning the scope of Dr. Langelier‘s testimony was raised by the court at the outset of trial. Prior to opening statements, the court inquired about the State‘s expert on child sexual abuse, as follows, “[S]he‘s not going to testify on the ultimate issue of credibility?” The prosecutor answered, “No, she‘s not.... The State in no way is going to solicit testimony on the credibility issue. We understand how bad that is.” It is clear, then, that both the court and counsel had the issue very much in mind. If there were an obvious violation, it should have been noticed by counsel; yet, when the testimony was given, counsel made no objection.
As we have stated previously, “[t]he duty to exclude objectionable data lies squarely upon thе shoulders of defense counsel.” State v. Kasper, 137 Vt. 184, 190, 404 A.2d 85, 89 (1979) (quoting United States v. Castenada, 555 F.2d 605, 610 (7th Cir. 1977)). “If the rule were otherwise, counsel might
We note a further distinction between the instant case and Catsam, relied upon by defendant. In Catsam, the Court noted: “While admission of this type of expert testimony might be harmless in a case in which there was ample extrinsic evidence of guilt, that is not the case here.” Catsam, 148 Vt. at 372, 534 A.2d at 188. The only direct evidence of the offense in Catsam was the testimony of the child-victim herself. In the case before us, there was extrinsic evidence of guilt in the form of an eyewitness to thе offense itself: the brother of the victim. It is difficult to imagine stronger, more direct, extrinsic evidence in a criminal case than the testimony of a person who actually witnessed the crime in progress.
On the basis of the record before us and our own prior precedents, we conclude that the testimony of Dr. Langelier did not amount to plain error.
IV.
Right to Confront Witness
The defense, prior to trial, filed a notice that it intended to introduce evidence that the victim had been sexually assaulted by her stepfather and others. The State moved in limine to exclude evidence of the victim‘s prior sexual conduct under the Rape Shield Law,
Defendant further contends that he should have been permitted to test the victim‘s credibility by inquiring about prior false allegations of sexual abuse. The Rape Shield Statute,
V.
Sentencing
Defendant‘s final claim of error requires little discussion. At sentencing, the State recommended a sentence of eight to fifteen years. Defendant received what the State asked for. Prior to trial, the prosecution had agreed with the defendant, in exchange for a plea of guilty, to a sentence of two to eight years. The plea agreemеnt was abandoned after the court expressed some doubts about defendant‘s competency to enter into it. Defendant now claims that the prosecutor‘s recommendation, which was not objected to at sentencing, constitutionally impinged upon his right to a jury trial by punishing him for the exercise of that right. The State was under no obligation, however, to recommend a particular sentence following trial on the merits, because the quid pro quo, defendant‘s plea of guilty, had been withdrawn from the bargain. See Blackmon v. Wainwright, 608 F.2d 183, 184 (5th Cir. 1979), reh‘g denied, 611 F.2d 882, cert. denied, 449 U.S. 852 (1980) (if defendant turns down pleа bargain offered by prosecutor, he may not then complain that he received a heavier sentence after trial, absent evidence of vindictiveness or punitive action); Mitchell v. State, 521 So. 2d 185, 187 (Fla. Dist. Ct. App. 1988) (when accused voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence). There is no evidence of vindictiveness on the part of the court or prosecutor, nor is there any reason to believe that defendant‘s sentence was the product of
Affirmed.
Morse, J., dissenting. I believe that reversal and retrial are warranted because of plain error in the admission of certain testimony by the State‘s expert witness. Accordingly, I dissent.
Dr. Pamela Langelier was called by the State to explain the results of her evaluation of the victim. She did not, however, merely explain to the jury “the psychological and emotional profile of PTSD sufferers and [give] an оpinion as to whether the testifying complainant suffers from the disorder,” as permitted by State v. Catsam, 148 Vt. 366, 370, 534 A.2d 184, 187 (1987). In addition, the expert gave her opinion on the tendency of PTSD sufferers to tell the truth about incidents of sexual abuse and even went further by concluding that the victim had been sexually abused by the defendant. We held in Catsam that such testimony constitutes a direct comment on the credibility of the complainant:
By testifying first that sufferers of PTSD generally do not fabricate claims of sexual abuse, and then that the complainant suffers from PTSD, her testimony left one clear and unmistakable inference to be drawn: the complainant would not fabricate this allegation.
Id. at 370, 534 A.2d at 187-88. “Since this type of evidence may unduly influence the jury‘s judgment with regard to the truthfulness of the complaining witness, it is not admissible.” Id. at 371, 534 A.2d at 188. See also United States v. Azure, 801 F.2d 336, 340-41 (8th Cir. 1986); State v. Hicks, 148 Vt. 459, 462, 535 A.2d 776, 778 (1987).
The Court concludes that the trial court‘s failure to exclude the testimony was not plain error. I cannot agree.
Application of the plain error rule necessarily involves discretion by the appellate court. Not all errors that potentially prejudice the rights of the defendant are deemed plain under the rule; if they werе, trial counsel would have little incentive to object at trial—a result conducive of neither fair trials nor judicial economy—since all prejudicial errors,
The precise criteria governing this Court‘s exercise of discretiоn in finding a “plain error,” however, are far from self-evident. Our language has been admittedly less than helpful. State v. Turner is a typical example: “[T]he error must be obvious and strike at the very heart of defendant‘s constitutional rights or result in a miscarriage of justice if we were to fail to recognize it.” 145 Vt. 399, 403, 491 A.2d 338, 340 (1985). The first requirement recognizes that a trial judge cannot reasonably be expected sua sponte to correct an error unless the error is an obvious one. The second requirement emphasizes only that an error will not be deemed plain unless it is very serious or vеry prejudicial—and just what this means is open to speculation by those who practice in our courts. I will therefore try to be as explicit as I can in explaining why I would hold that the trial court in these circumstances committed plain error in allowing the expert to give her opinion that PTSD sufferers tend to tell the truth about incidents of sexual abuse and that the complainant had been sexually abused by defendant.
First, the same expert witness testified at the trial of the complainant‘s stepfather. In that case, her opinion on the credibility of the victim resulted in a reversal and remand for a new trial. State v. Ross, No. 86-017 (Vt. Mar. 8, 1988) (unpublished order). In my view, it is unfair to affirm defendant‘s conviction when admission of the equivalent testimony in the stepfather‘s trial warranted a remand.
Second, the error should have been obvious to the trial court. In fact, the issue was raised by the court prior to opening statements. The court inquired about Dr. Langelier‘s testimony as follows: “[S]he‘s not going to testify on the ultimate issue of credibility?” The prosecutor answered: “No, she‘s not.... The State in no way is going to solicit testimony on the
Third, by using an expert to bolster the credibility of the complaining witness, the State intruded on the core function of the jury, infringing upon defendant‘s constitutional right to trial by jury. See United States v. Azure, 801 F.2d at 340 (“[c]redibility ... is for the jury—the jury is the lie detector in the courtroom“) (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)); United States v. Samara, 643 F.2d 701, 705 (10th Cir.), cert. denied, 454 U.S. 829 (1981) (““exclusive function of the jury to weigh the evidence and determine credibility“) (quoting United States v. Ward, 169 F.2d 460, 462 (3d Cir. 1948)); United States v. Rosenberg, 108 F. Supp. 798, 806 (S.D.N.Y.) (“[I]t is hоrnbook law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury.“), aff‘d, 200 F.2d 666 (2d Cir. 1952).
Fourth, the State committed the cardinal sin of eliciting a conclusion from its expert on the guilt of the defendant. Rule 704 of the Vermont Rules of Evidence permits opinion testimony that “embraces an ultimate issue,” but only if it is “otherwise admissible.” The rule on expert testimony provides:
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 knоwledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Court does not address these concerns. Rather, the Court‘s decision apparently relies on the authority of two recent cases. I do not believe those decisions justify today‘s result.
In State v. DeJoinville, 145 Vt. 603, 604-05, 496 A.2d 173, 174-75 (1985), we held thаt the admission of expert testimony on the truthfulness in general of child victims of sexual abuse was not plain error. The victim‘s pediatrician had testified that, “based on his experience, children wouldn‘t lie about being sexually abused.” Id. at 604, 496 A.2d at 174. The expert in DeJoinville did not, however, conclude that the victim in that case had been sexually assaulted by the defendant. The error in the case at bar simply was more egregious than the error in DeJoinville. Nor were the other factors enumerated above present in DeJoinville, namely, the State‘s promise not to elicit testimony on the victim‘s credibility and the admission of equivalent testimony causing reversal in a related trial.
State v. Recor, 150 Vt. 40, 45-46, 549 A.2d 1382, 1386-87 (1988), also held that the admission of expert testimony pertaining to the credibility of the complaining witness—again a child victim of sexual assault—was not plain error. Again, the particular circumstances in which the forbidden testimony arose here were absent in Recor. In addition, the violation of the Catsam rule in Recor was not clearcut. The State‘s psychologist testified as follows:
Q. Does it tell you something as a forensic psychologist when a child remains consistent over several interviews?
A. Well, it gives me a sense that what they are saying happened, happened.
Finally, I would add that the error cannot be dismissed as harmless, as intimated by the Court. “Harmless error analysis requires the reviewing court to inquire if, absent the alleged error, it is clеar beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.” State v. Hamlin, 146 Vt. 97, 106, 499 A.2d 45, 52 (1985). The burden is on the State to show that the error was harmless. Catsam, 148 Vt. at 372, 534 A.2d at 188. Here, it is far from clear beyond a reasonable doubt that the unlawful testimony had no effect on the verdict. Dr. Langelier was the sole expert witness at trial. Other witnesses testified for the State, but all, except for the victim‘s younger brother, based their testimony on what she had told them. Dr. Langelier‘s testimony as the State‘s expert may have carried great weight with the jury. It did not play “a minor role,” аs did the testimony of an expert on rape trauma syndrome in State v. Bubar, 146 Vt. 398, 401, 505 A.2d 1197, 1199 (1985) (holding admission of expert testimony not plain error). In Bubar, we expressed “concern that the [victim‘s] counselor, by testifying as an expert on rape trauma syndrome, lent an improper ‘aura of special reliability and trustworthiness’ to the complainant‘s testimony.” Id. (quoting State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982)). Our concern is magnified here, where the victim is a child and the expert‘s testimony effectively constituted a direct comment on the victim‘s credibility. See United States v. Azure, 801 F.2d at 341 (not harmless error where State‘s expert bolstered credibility of victim who was “a key government witness in [the] case, and hеr credibility was a very important issue“); Catsam, 148 Vt. at 371, 534 A.2d at 188 (“this type of evidence may unduly influence the jury‘s judgment“). The central point of the expert‘s testimony was that defendant was guilty, and that this was evident because the victim was telling the truth.