New Hampshire v. Collins
Annotate this CaseDefendant Gregory Collins appealed a superior court order that denied his motion for a new trial on three counts of pattern aggravated felonious sexual assault (AFSA), four counts of AFSA by individual acts, and one count of misdemeanor sexual assault, based upon the court's conclusion that his trial attorney's performance was not constitutionally deficient. Defendant challenged his counsel's failure to object to improper expert witness opinion testimony by the complainant's therapist, Robert Fusco. On direct examination, without objection, Fusco testified that the complainant's behaviors "fit perfectly into the same kind of behavioral symptoms that we would see for a child who had been sexually abused." Fusco testified that, as a result of the complainant's January 2008 disclosure to him about the 2007 sexual assaults, he realized that "we were no longer dealing with . . . a major depressive disorder," but rather "a post[-]traumatic stress disorder on a child who had – who – who allegedly had been sexually abused." The trial court stated that it could not conclude that it was objectively reasonable to allow Fusco to so opine. The trial court explained that "Fusco's testimony is the type of expert testimony that the Supreme Court has held may not be offered to prove that a particular child has been sexually abused." The trial court was correct. Defense counsel failed to object to Fusco's testimony that the fact that the complainant's disclosure "came out of the blue . . . added to its credibility." Such testimony "cross[ed] the line into the impermissible realm of vouching for the [alleged] victim's credibility." Counsel's failures to object, in the Supreme Court's view, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
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