State v. Mccarthy

NOTICE:  This opinion 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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-636


State of Vermont                             Supreme Court

      v.                                     On Appeal from
                                             District Court of Vermont
John J. McCarthy, Jr.                        Unit No. 3, Orleans Circuit

                                             November Term, 1989


Shireen Avis Fisher, J.

Jane Woodruff, Orleans County State's Attorney, Newport, and Gary Kessler,
  Rosemary S. Hull and Pamela Hall Johnson, Department of State's Attorneys,
  Montpelier, for plaintiff-appellee

Vincent Illuzzi, Orleans, for defendant at trial, Gensburg Axelrod & Adler,
  St. Johnsbury, for defendant-appellant on appeal


PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned


     DOOLEY, J.  In this appeal from his conviction for lewd or lascivious
conduct with a child, 13 V.S.A. { 2602, defendant makes numerous challenges
to the admissibility of the child's videotaped testimony and the evidence to
impeach his character witnesses.  Although defendant failed to preserve his
claims of error, we find plain error in the admission of evidence about an
unrelated incident with another child and reverse the conviction and remand
for a new trial.
     On November 20, 1987, the child-complainant was invited to stay with
the mother of a friend  after she complained that her mother was beating and
slapping her.  While present at the friend's home, complainant told her
friend's mother that "her father had touched her private parts with his
hands."  Thereafter, the Vermont Department of Social and Rehabilitation
Services (SRS) and the Vermont State Police became involved, along with
various professionals, and the complaint led to this prosecution for one
count of sexual abuse during the period between June and December of 1987.
     Defendant denied that the alleged incident occurred.  He was supported
by his ex-wife and his numerous sons and daughters.  The position of the
family members was that the alleged incident could not have occurred as it
was reported by the complainant and did not occur.
     The complainant did not testify before the jury at the trial.  Instead,
her videotaped testimony was admitted pursuant to V.R.E. 807 based on a
finding by the trial court that requiring the child to testify would
"present a substantial risk of trauma to the child."  V.R.E. 807(c).  In
her videotaped testimony, she answered simple, direct, leading questions
after failing to answer open-ended ones.  She did not elaborate on any of
her responses.  Her rigid posture, flat affect, and soft speaking voice
conveyed her anxiety.  When first asked about the alleged abuse, complainant
stopped answering altogether.  Only after repeated solicitation did she
whisper and gesture answers to the questions.
     The remaining testimony from the State came from two doctors who had
examined the complainant, a social worker who had interviewed and treated
the complainant at the regional mental health clinic, the complainant's
teacher, and her friend's mother.  Defendant took the stand and, in
addition, presented a character defense consisting largely of testimony by
his ex-wife, his sons, and his daughters.  Many of these witnesses also
testified to events during the period covered by the information.

     Although defendant raises a number of issues on appeal, we address only
one relating to the admission of certain evidence in the cross-examination
of defendant's witnesses.  The issue arose in the cross-examination of
defendant's first witness, his daughter P.M.  On direct examination, P.M.,
who was twenty-five years old when she testified, described her father as
honest, very caring, a good father, very modest, and not obscene or
seductive.  Before commencing cross-examination of P.M., the state's
attorney stated to the court that he had a good faith basis to believe that
another of defendant's daughters, H.M., had reported to authorities that she
had seen defendant have oral sex with his minor son, S.M., in 1985 and the
circumstances were known to the family.  He indicated that he knew of the
incident because it was mentioned in local mental health agency records.
     The prosecutor indicated his intent to cross-examine P.M. about this
incident to determine her knowledge of it and its effect on her opinion of
defendant.  There was no formal objection to the questioning although
defendant's counsel did express concerns that the questioning went beyond
the direct examination.  The prosecutor then asked P.M. whether she was
aware of the report and whether it affected her opinion of defendant's
character.  P.M. answered that she was aware of the report but it was
unfounded and did not affect her opinion of defendant.
     After using the incident in this way in cross-examining one more
character witness, the prosecutor changed tactics with defendant's former
wife.  Here, the prosecutor attempted to elicit through the witness the
exact details of the reported sexual acts.  The witness refused to answer,
requiring the court to intervene to order her to answer at least a modified
question.  In the argument to the court, the prosecutor made clear that he
did not believe that the report was unfounded, transmitting the opinion of a
mental health worker that "[H.M.] is unlikely to make up the kind of details
that she had conveyed, and that it was the very details itself that
indicated that something had happened."  From that point forward, his
questioning showed that he believed the incident had occurred, that it had
been covered up within defendant's family, and that he wanted to demonstrate
this to the jury.  Rather than focusing on how the report might affect the
former wife's opinion of defendant's character, the prosecutor's questions
probed her conduct on hearing the report and the delay between the report
and the statements given to SRS.  He never even asked the ex-wife what
impact the report had on her opinion of defendant's character.
     The issue arose again when defendant took the stand.  The prosecutor
asked whether defendant had ever sexually abused H.M. and then whether he
had ever sexually abused his son.  He cross-examined in detail on the
report, insisting on the right to present the nature of the sexual conduct
to the jury, and on defendant's actions in response to it.  On redirect,
defendant responded to the cross-examination by denying he ever abused his
son.  His son also testified and denied the incident.
     The prosecutor made clear where he was going in his rebuttal argument
to the jury:
            What we began to do was ask witnesses to test their
          opinion. . . .  Weren't you aware that two years ago his
          other daughter [H.M.] reported having seen something,
          reported graphic details of oral sex?  Did you consider
          that when you were forming your opinion that Mr.
          McCarthy is a decent, hardworking person?

            Well, yes those weren't true.  They didn't pan out.
          We didn't believe her when it first came up.  Couldn't
          believe it.  Now, a child who is even younger than [the
          complainant] now . . . was confronted by a family who is
          disbelieving the minute they hear it.  She isn't
          questioned until a couple of months later.

            For whatever reason, which is not for your concern,
          this is not a case about that, but at that time she
          doesn't talk about it.  No charges are brought.  Mr.
          Illuzzi has mentioned that.  Is it surprising that a
          four-year-old after a couple of months with a family
          that doesn't believe her at all, who's later questioned,
          didn't report anything?

The point of this argument is clear.  In the prosecutor's view, defendant's
family failed to follow up on H.M.'s report and as a result H.M. failed to
repeat what she saw.
     Defendant argues here that the cross-examination on H.M.'s report of
seeing defendant sexually abuse S.M., together with the closing argument,
was improper and requires reversal.  Although the law bearing on the issue
before us is relatively clear, we have not examined it since we adopted the
Vermont Rules of Evidence.  Pursuant to V.R.E. 404(a)(1), the accused in a
criminal proceeding can to introduce evidence of a pertinent character
trait, and when the accused does so, the prosecution can offer evidence in
rebuttal.  Where, as here, a character trait is not an essential element of
the charge, this method of proving character is governed by Rule 405(a).
That rule allows proof of character only by evidence of reputation. (FN1)
However, it goes on to say:  "On cross-examination, inquiry is allowable
into relevant specific instances of conduct."  The State relies solely on
this authorization to support the validity of the cross-examination evidence
about the alleged report of sexual acts between defendant and his son.
     The authorization to inquire about "relevant specific instances of
conduct" is solely to allow impeachment of the character witness.  The
rationale is addressed in the leading case of Michelson v. United States,
335 U.S. 469, 479 (1948).  Because character is proved by reputation
evidence, which is a form of hearsay, the Court noted that it was proper to
cross-examine on that hearsay.  It explained:
          The prosecution may pursue the inquiry with contradi-
          ctory witnesses to show that damaging rumors, whether or
          not well-grounded, were afloat -- for it is not the man
          that he is, but the name that he has which is put in
          issue.  Another hazard is that his own witness is
          subject to cross-examination as to the contents and
          extent of the hearsay on which he bases his conclusions,
          and he may be required to disclose rumors and reports
          that are current even if they do not affect his own
          conclusion.  It may test the sufficiency of his
          knowledge by asking what stories were circulating
          concerning events, such as one's arrest, about which
          people normally comment and speculate.

Id.  Because character can be proved only by reputation evidence, cross-
examination based on specific acts has generally been limited to whether the
witness has heard about the specific incident. Id. at 482.
     The authorization to use evidence of specific instances of conduct is
limited because such evidence can have a much greater impact on the jury
than reputation or opinion evidence.  See Advisory Committee's Note to Fed.
R. Evid. 405(a) (such evidence "possesses the greatest capacity to arouse
prejudice, to confuse, to surprise, and to consume time").   Thus, defendant
is not authorized to use such evidence at all.  The prosecution can use
such evidence only in cross-examination, and, in fact, only in cross-
examination of defendant's character witnesses.  See 22 C. Wright & K.
Graham, Federal Practice and Procedure  { 5268, at 610-11 (1978).   The
evidence is admissible only to impeach the testimony of the character
witness and not for the purpose of discrediting the defendant by showing he
has a disposition to engage in the type of conduct for which he is on trial.
See, e.g., State v. Styles, 93 Wash. 2d 173, 176, 606 P.2d 1233, 1234
(1980).
     There is no question that the prosecutor crossed the line in this case
and that the trial court allowed that line crossing.  The prosecutor
abandoned the notion that he was testing the witnesses' opinions of
defendant's character and put as many of the details of the allegation as
possible before the jury.  See Maple v. State, 662 P.2d 315, 316 (Okl. Crim.
1983) (cross-examination may include details sufficient to show that same
character traits are involved but not "unnecessary or prejudicial details").
In addition, he cross-examined defendant himself on these details.  See
Freeman v. State, 486 P.2d 967, 976-77 (Alaska 1971) (cross-examination of
defendant about details of prior bad act used to impeach character witness
improper); 22 C. Wright & K. Graham, Federal Practice and Procedure  { 5268,
at 614.  In sum, what started as an attempt to impeach character witnesses
concluded as an attempt to show that defendant engaged in sexual misconduct
in the past with his children, that the family failed to properly protect
the children and that the jury should consider this in deciding whether he
was guilty of the crime for which he was charged.  This use was clearly
intended to demonstrate a character trait related to sexual misconduct or
abuse of defendant's children to prove defendant acted in conformity with
that character trait in this case -- a use expressly prohibited by V.R.E.
404(a).  For these reasons, we agree that admission of the evidence would
have been a ground for reversal if an objection had been preserved.
     Defendant failed, however, to properly preserve the issue for review.
Although defendant objected when the prosecutor disclosed his intent to
cross-examine on H.M.'s report, we cannot say that the use of the report for
cross-examination of character witnesses was wholly improper.  The existing
law allowed the prosecutor to test the effect of reports of misconduct on
the opinion of the character witnesses.  Defendant failed to object when the
prosecutor crossed the line into impermissible uses for the report.
     Although defendant failed to preserve an issue, reversal may still
result if the error is plain.  We have consistently stated that we will find
plain error to warrant reversal of a criminal conviction, absent
preservation, only in rare and extraordinary cases where the error so
affects the substantial rights of the defendant that we cannot find the
trial overall to be fair.  See State v. Duff, 150 Vt. 329, 338, 554 A.2d 214, 219 (1988); V.R.Cr.P. 52.  Application of this rule necessarily
involves a degree of appellate discretion and a weighing all the relevant
factors.  See, e.g., State v. Ross, 152 Vt. 462, 473, 568 A.2d 335, 342
(1989) (Morse, J., dissenting).  On reviewing and weighing the appropriate
factors, we conclude that the admission of extensive details of defendant's
alleged prior misconduct amounted to plain error in this case.
     First, the evidence of defendant's alleged prior conduct was highly
prejudicial to the defendant.  As Chief Justice Cardozo noted when he was on
the New York Court of Appeals, such character evidence is a "peril to the
innocent."  People v. Zackowitz, 254 N.Y. 192, 198, 172 N.E. 466, 468
(1930).  Evidence of uncharged crime creates a "grave danger of prejudice,"
People v. Thompson, 27 Cal. 3d 303, 317, 611 P.2d 883, 889, 165 Cal. Rptr. 289, 295 (1980), such that it is "the most prejudicial evidence imaginable
against an accused."  People v. Smallwood, 42 Cal. 3d 415, 429, 722 P.2d 197, 205 228 Cal. Rptr. 913, 922 (1986).  There is significant empirical
evidence that such evidence can greatly increase the likelihood that jurors
will find the defendant guilty of the crime for which he is charged, to the
point that one commentator argues that:  "Uncharged misconduct evidence
effectively strips the defendant of the presumption of innocence."
Imwinkelried, The Worst Surprise of All:  No Right to Pretrial Discovery of
the Prosecution's Uncharged Misconduct Evidence, 56 Ford. L. Rev. 247, 249
(1987).  The prejudice from evidence of prior crimes for which defendant was
not convicted may be greater than that for convictions because the jury may
want to prevent the defendant from escaping punishment for the earlier
crimes.
     Second, the incident involved in the prosecutor's examination was
investigated by SRS, and insufficient evidence was found to pursue it.  In
United States v. Schwab, 886 F.2d 509, 513 (2d Cir. 1989), the Second
Circuit Court of Appeals recently held that cross-examination of a defendant
about criminal charges that were dismissed or for which the defendant was
acquitted is improper as a matter of law because the prejudicial effect of
such evidence always outweighs the probative value.  The Court noted that
the witness will always deny the misconduct so the only purpose is to place
the charge before the jury.  Id.  Thus, there is little probative value to
the evidence but the danger of prejudice, especially when the defendant is
examined about the charges, is great.  Id.  For this reason, numerous courts
have prohibited cross-examination of character witnesses about arrests
because the charge itself does not show guilt.  See, e.g., State v. Martin,
322 N.C. 229, 238, 367 S.E.2d 618, 623 (1988); Commonwealth v. Scott, 496
Pa. 188, 196, 436 A.2d 607, 611 (1981).  The prosecutor in this case was
clearly inviting the jury to conclude that despite the fact that the SRS
investigation turned up insufficient evidence to prosecute defendant or
bring juvenile proceedings, defendant committed a sexual act on his son.
     Third, the trial judge exercised little or no control to limit the
evidence to its proper purpose.  Such control is critical to minimize the
inappropriate prejudice from such evidence.  See C. McCormick, Evidence {
191, at 569 (3d ed. 1984) (extent and nature of cross-examination "demands
restraint and supervision").  Recently, the Colorado Supreme Court outlined
the rules for court control of impeachment of character witnesses.  People
v. Pratt, 759 P.2d 676 (Colo. 1988).  The Pratt Court concluded that the
trial judge "should rule on the propriety of such cross-examination prior to
any attempt at questioning."  Id. at 685.  Here, although the prosecutor
briefly described the allegation to the court prior to the cross-
examination, the court exercised no control over the evidence.  There was no
preliminary ruling that the incident happened, or that there was a
sufficient showing that it happened, and that the prosecutor was acting in
good faith.  There was no balancing of probative value against prejudicial
effect under V.R.E. 403.  The court never instructed the jury on the limited
purpose for which the evidence was admitted, either at the time the evidence
was admitted or during the charge to the jury.
     Fourth, the court's actions strongly indicated that an objection would
have been unavailing.  Although defendant's counsel failed to object to the
questioning, many of the witnesses objected to the questions and did not
want to answer them.  In ordering defendant to answer questions about H.M.'s
report, the court stated that because of defendant's character defense: "You
have put in issue everything that you have done in your life of a sexual
nature, and everything you know in terms of other people's accountings of
your character in that nature."  In light of that statement, it is likely
that no objection from defendant would have changed the court's view that
the prosecution's questions were appropriate.  See State v. Duff, 150 Vt. at
338, 554 A.2d  at 219 (in considering whether plain error is present,
consider whether the court was aware of the issues although not technically
preserved).
     Fifth, the evidence discussed here was not an isolated incident of
misuse of evidence of bad acts to impeach the character witnesses.  The
prosecutor cross-examined at length on an incident that occurred twelve
years earlier where defendant threatened suicide with a gun to prevent his
wife from leaving him.  While disclosure of this incident began as
legitimate cross-examination of character witnesses, it grew in importance
as the prosecutor pursued the line that defendant acted in a way as to
physically endanger his children.  Although the children who testified all
denied that they were endangered, the prosecutor cross-examined defendant at
length on the incident and even offered a rebuttal witness to describe what
occurred.  As with the allegation that defendant sexually abused his son,
the prosecutor went well beyond the limits in V.R.E. 405(a).
     The prosecutor also raised other incidents to suggest continued sexual
misconduct by defendant.  He asked one of defendant's daughters:  "Are you
aware of [H.M.] having complained of someone having touched her private
parts?"  He asked defendant whether he had ever sexually abused H.M.  There
is no indication in the record of a factual basis for this accusation, and
it was highly inflammatory.  In his cross-examination of defendant, the
prosecutor asked him whether he remembered propositioning a "Barbara Walker"
in 1971 when she was nine months pregnant.  There is no indication that
defendant even knew a Barbara Walker or what the alleged incident, seventeen
years earlier, had to do with the charges against defendant.  All this
evidence, with or without foundation or clear relevancy, contributed to an
impression that defendant was some kind of sexual predator.
     Sixth, this is a case where the evidence could have had a determinative
effect on the outcome.  The case could have gone either way, depending upon
whether the jury believed complainant beyond a reasonable doubt or believed
defendant, who testified, or could not resolve the conflict in testimony to
convict.  In State v. Ross, a sexual assault case in which this Court
divided on whether an evidentiary error rose to the level of plain error,
the majority relied in part on the fact that there had been a witness to the
alleged sexual assault so the case did not rely only on the testimony of the
child-victim.  152 Vt. at 470, 568 A.2d  at 340.  There are no witnesses to
the alleged event in this case; indeed, much of defendant's supporting
evidence was to show that he was never alone with the complainant when the
event was alleged to have occurred.
     In summary, the court in this case erroneously admitted evidence of
another alleged sexual assault on another of defendant's children, and the
prosecution exploited the evidence unfairly to suggest that defendant
generally committed acts of sexual misconduct on his children.  In a case
that depended ultimately on the credibility of defendant and the complain-
ant, such evidence was incendiary.  Because there is a substantial
likelihood that defendant was convicted by this incendiary device and not by
properly admitted evidence, we reverse. (FN2)


     Reversed and remanded.




                                        FOR THE COURT:




                                        Associate Justice






FN1.    The federal rule allows proof of character by opinion, but this part
of the federal rule was not adopted in Vermont.  See Reporter's Notes to
V.R.E. 405.  The testimony of defendant's character witnesses was given in
the form of opinions without objection by the state.  This deviation from
the method of proof set forth in V.R.E. 405 is not relevant to the issue
before us.

FN2.   Contrary to the suggestion of the dissent, we have made no
assumptions about the competence of the defense here, nor have we speculated
about the tactics used.  As this opinion makes clear, our plain error
analysis is concerned solely with the impact of error on the rights of the
defendant; it is not concerned with the actions and motives of defense
counsel.  Obviously, the existence of a plain error doctrine indicates a
preference for resolving obvious errors on direct appeal from criminal
convictions, rather than going through a separate, and often duplicative,
post-conviction proceeding to address the same issue.

________________________________________________________________________________
                    
                              DISSENTING


NOTICE:  This opinion 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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-636


State of Vermont                             Supreme Court

      v.                                     On Appeal from
                                             District Court of Vermont
John J. McCarthy, Jr.                        Unit No. 3, Orleans Circuit

                                             November Term, 1989


Shireen Avis Fisher, J.

Jane Woodruff, Orleans County State's Attorney, Newport, and Gary Kessler,
  Rosemary S. Hull and Pamela Hall Johnson, Department of State's Attorneys,
  Montpelier, for plaintiff-appellee

Vincent Illuzzi, Orleans, for defendant at trial, Gensburg Axelrod & Adler,
  St. Johnsbury, for defendant-appellant on appeal


PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned


     MORSE, J., dissenting.   I am not convinced that the error outlined by
the Court warrants reversal in this case because the defense, as a trial
strategy, may have sanctioned the error.
     I disagreed with affirming a conviction for sexual misconduct with a
child in State v. Ross, 152 Vt. 462, 473-78, 568 A.2d 335, 342-44 (1989),
because I concluded that expert testimony bolstering the credibility of the
victim -- although not subject to an objection -- was so prejudicial as to
infringe on defendant's right to be tried by jury.  Id. at 475, 568 A.2d  at
343.  I also concluded the error was obvious or "plain" because prior to
trial the court warned the State not to allow the expert to vouch for the
victim's credibility and the prosecution and defense agreed.
     I shall not tarry long in this dissent because deciding a plain error
issue is highly discretionary, not subject to precise delineation.  I
harbor no notion that my colleagues have abused their discretion in finding
plain error and only dissent to express a contrary exercise of discretion in
which, I trust, they find no abuse.
     I certainly agree that, had defendant's counsel objected to the State's
attempts at assassinating defendant's character and had the court allowed
it, reversal for a new trial would justifiably follow.  However, defendant's
counsel was not bushwhacked by the prosecutor's strategy.  Defendant was
warned of the ensuing cross-examination, and numerous opportunities were
available to stop the line of examination of numerous witnesses.  Yet, this
Court today holds in hindsight that the trial court sua sponte should have
stopped the State in its tracks.
     Our adversarial system of justice favors a neutral court allowing the
advocates, within bounds, to try the case before it as they wish.  We do
not know defendant's strategy in this case, and his lack of objection may
have been an intentional trial tactic.  For all we know, at the time
defense counsel might have welcomed the prosecutor's approach as amounting
to a desperate attempt at overkill, an attempt so incendiary and contrary to
prosecutorial decency as to offend the average juror.  By allowing the
prosecution to so proceed, the defense may have hoped the jury would reject
the smear attempt, and in the rejecting, give defendant the benefit of
reasonable doubt.
     I appreciate the trial court's restraint from taking over the defense
in this case.  It was by no means apparent as the trial was unfolding where
the State and defense were headed.  The court's rulings can, and often do,
change in the course of a trial.  We should not assume that properly raised
objections would have been unavailing.  Hindsight always offers a more
complete assessment of error and its impact, yet we are not -- even in
hindsight -- as well situated to appreciate the prejudicial effect as a
trial court or a court considering a claim of ineffective assistance of
counsel.
     A review of this case on appeal, however, should not on this record
encompass an evaluation of whether defendant is entitled to a new trial due
to ineffective assistance of counsel.  Whether trial counsel for defendant
demonstrated "reasonable competence" given the circumstances confronting him
in preparing for trial and during trial, and to what extent defendant was
prejudiced, are matters for evidentiary development during postconviction
proceedings.  State v. Davignon, 152 Vt. 209, 222, 565 A.2d 1301, 1308
(1989); see also State v. Gabaree, 149 Vt. 229, 232-33, 542 A.2d 272, 274
(1988); State v. Campanelli, 142 Vt. 362, 366, 454 A.2d 1248, 1251 (1982).
         The rationale for that rule applies equally here:
         "The facts can be explored and reported, with a review
         in this Court based on a developed record and a full
         evaluation of all relevant issues rather than on the
         inadequate inferences of a trial transcript. . . .
         Furthermore, this leaves the original appellate process
         free to conduct its review based on the record of the
         trial in the customary fashion, according to settled
         law."

Gabaree, 149 Vt. at 233, 542 A.2d  at 274 (quoting State v. Durling, 140 Vt.
491, 497-98, 442 A.2d 455, 458 (1981).
     The Court today necessarily assumes that defense counsel's acquiescence
to the State's examination of defendant and his character witnesses resulted
from incompetence, not a calculated exercise of trial tactics.  Instead, we
should heed the admonition that we are not to "'judge from hindsight whether
tactical decisions are ultimately successful in determining claims of
attorney competence.'"  In re Pernica, 147 Vt. 180, 183, 513 A.2d 616, 618
(1986)(quoting In re Mecier, 143 Vt. 23, 32 460 A.2d 472, 477 (1983)).
     I would affirm because if relief is warranted when trial tactics are
at issue, such relief should be fashioned after an evidentiary hearing in
postconviction proceedings, not as the basis of a finding of plain error on
appeal.
     I am authorized to say that Justice Peck joins this dissent.




                                             Associate Justice