State v. Gomes

STATE_V_GOMES.89-543; 162 Vt. 319; 648 A.2d 396

[Opinion Filed July 1, 1994]


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 89-543


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Orleans Circuit

 David Gomes                                  February Term, 1993



 Dean B. Pineles, J.


 Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
     General, and Gary Kessler, State's Attorneys and Sheriffs Department,
    Montpelier, for plaintiff-appellee

 Michael Rose, St. Albans, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      GIBSON, J.   Defendant David Gomes appeals his conviction on four
 counts of lewd and lascivious conduct upon a child in violation of 13 V.S.A.
 { 2602.  He claims three errors: (1) the informations were unduly vague,
 thwarting his ability to establish an alibi, (2) the denial of his request
 for access to attendance records of the day-care facility where the abuse
 allegedly occurred further frustrated his attempts to establish a defense,
 and (3) expert testimony regarding the credibility of the alleged victims
 was improper.  We conclude that defendant was entitled to the day-care
 attendance records, and, accordingly, we remand the matter for the trial

 

 court to determine if defendant was prejudiced by the court's refusal to
 allow defendant access to the records.
                                     I.
      The State brought charges against defendant after six children who
 attended a day-care facility operated by defendant's sister reported that
 defendant had sexually abused them.  The incidents of abuse allegedly
 occurred during the summer of 1985 through the summer of 1986, but the
 children did not disclose defendant's involvement until late 1987, gradually
 revealing, through the spring of 1988, further incidents.  Defendant argues
 that the time specified in the informations -- approximately May 1985 to
 September 1986 -- was too vague and broad, rendering it impossible for him
 to prepare an adequate defense, especially an alibi defense.
      In cases of juvenile sexual abuse, time of commission is not an
 essential element of the offense and need not be charged in the
 information.  State v. Ross, 152 Vt. 462, 465, 568 A.2d 335, 337 (1989).
 Because young children have difficulty specifying the date on which an
 incident occurred, the State must show only that the crime occurred within
 the statute of limitations.  See id.  "The fact that defendant raises an
 alibi defense does not alter these holdings and does not make time an
 essential element."  State v. Infante, 157 Vt. 109, 111, 596 A.2d 1289, 1291
 (1989).
      In determining whether the notice of time in the informations was
 reasonable, we consider all the circumstances of the case, including (1) the
 age and circumstances of the victim, (2) how the abuse was allegedly carried
 out, and (3) the State's ability to be more specific.  See Ross, 152 Vt. at
 465, 568 A.2d  at 337-38.  Here, the children were all preschool age at the

 

 time of the alleged offenses, and they did not report the abuse until more
 than a year after the last charged incident.  Not surprisingly, they were
 unable to identify the precise dates of the alleged offenses.  Despite an
 extensive investigation, the State could establish only that the offenses
 occurred while defendant was living in a trailer on the same property as the
 day-care facility.   Given the circumstances of this case, it was not
 unreasonable that the State could not be more precise.  See id. (because
 victim was only seven years old and delayed reporting abuse, it was not
 unreasonable that time of offense charged was not precise).
      Defendant must be given a "fair opportunity to prepare a defense in
 light of the circumstances of the case," id. at 465, 568 A.2d  at 337, but he
 has no vested right to an alibi defense.  State v. Dunbar, 152 Vt. 399, 404,
 566 A.2d 970, 973 (1989).  Although defendant was unable to establish an
 alibi for the entire time period alleged in the information, his inability
 to do so does not, by itself, show that he had no opportunity to prepare an
 alibi defense.
                                     II.
      Defendant also claims the trial court erred in denying him access to
 day-care attendance records that he believed were necessary to prepare his
 alibi defense and to challenge the children's testimony.  During discovery,
 defendant subpoenaed records documenting the attendance of the children at
 the day-care facility.  He was employed during some of the months covered by
 the informations, and hoped to show, among other things, that some or all of
 the children were absent on days when he was present at the facility.  The
 operators of the facility refused to turn over the attendance records,

 

 asserting a Fifth Amendment privilege against self-incrimination, and
 defendant moved to compel production of the records.
      After an in camera inspection, the court concluded that the contents of
 the records were not privileged but that the act of producing the records
 would be "testimonial and incriminating" because their "production would be
 an admission that the records exist and that they are authentic."  Noting
 that "[a]uthentication of the records and proof of their existence could be
 a link in the chain of evidence showing that certain children were entrusted
 to [the day-care operators'] care on certain dates," the court concluded
 that, given the operators' potential liability under several criminal
 statutes, "proof of existence and authentication of the records could tend
 to incriminate them."  Based on this analysis, the court ruled that the
 Fifth Amendment protected the operators from producing the records.
      Defendant argues that the court's refusal to order disclosure of the
 attendance records based on the operators' Fifth Amendment privilege was
 erroneous because state regulations require such records to be kept by day-
 care operators and to be available for inspection by the Department of
 Social and Rehabilitation Services (SRS).  See Agency of Human Services,
 Department of Social and Rehabilitation Services, Children's Day Care
 Licensing Regulations for Early Childhood Program { 3(5), (7), in 4 Code of
 Vermont Rules 13 162 001-49 (1993).  As defendant points out, SRS day-care
 licensing regulations require that daily attendance records be maintained
 for each child for at least a year after withdrawal from the day-care
 facility, and that the records be subject to inspection by SRS upon
 request.  The State counters that defendant is not entitled to the records
 because they are not open to the public, and, in any case, he cannot show

 

 prejudice resulting from the court's refusal to order the day-care operators
 to turn them over to him.  We conclude that production of the records is not
 protected by the Fifth Amendment, and that defendant was potentially
 prejudiced by his inability to obtain the records.
      In the principal case relied on by the trial court, the United States
 Supreme Court held that although the contents of voluntarily kept business
 records of sole proprietorships are not protected by the Fifth Amendment,
 the act of producing such records is protected when it would involve
 testimonial self-incrimination by the record holder.  United States v. Doe,
 465 U.S. 605, 612-13 (1984).  In Doe, the Supreme Court deferred to the
 district court's finding that enforcement of the subpoena would have
 compelled the record holder to admit that the records existed, that they
 were in his possession, and that they were authentic.  Id. at 613-14.
      The Supreme Court explicitly noted, however, that that case did not
 concern records required by law to be kept or to be disclosed to a public
 agency.  Id. at 607 n.3.  Thus, Doe did not disturb the "required records"
 exception to the privilege against self-incrimination, which allows the
 disclosure, notwithstanding Fifth Amendment concerns, of routinely kept
 records that are maintained pursuant to a valid regulatory scheme and are
 at least analogous to public documents.  See Grosso v. United States, 390 U.S. 62, 67-68 (1968); Shapiro v. United States, 335 U.S. 1, 33-35 (1948).
      Indeed, federal courts that have considered the interplay between the
 "act-of-production doctrine," first enunciated in Fisher v. United States,
 425 U.S. 391, 410 (1976), and the "required records" exception have
 concluded that the exception remains viable after Fisher and Doe.  E.g., In
 re Grand Jury Subpoena (Spano), 21 F.3d 226, 230 (8th Cir. 1994); In re Two

 

 Grand Jury Subpoenae Duces Tecum, 793 F.2d 69, 73 (2d Cir. 1986); In re
 Jury Subpoena Duces Tecum (Underhill), 781 F.2d 64, 69-70 (6th Cir.), cert.
 denied, 479 U.S. 813 (1986).  These cases make it clear that when the
 criteria for the required-records exception are met, the exception applies
 regardless of whether the act of producing the requested records would
 involve self-incriminating testimony by the record holder.  Spano, 21 F.3d 
 at 230; Two Grand Jury, 793 F.2d  at 73; Underhill, 781 F.2d  at 70.  The
 courts have cited several reasons for this conclusion: (1) a person engaged
 in a regulated activity in which record keeping is required by statute or
 law is deemed to have waived the privilege against self-incrimination with
 respect to the act of producing the required records; (2) the record holder
 admits little of significance in the way of existence or authentication by
 producing records that the law requires to be kept in furtherance of public
 policy; and (3) the public interest in obtaining records required by a
 regulatory scheme normally outweighs the private interest in nondisclosure
 because invocation of the privilege frustrates the regulatory purpose of the
 scheme.  See Spano, 21 F.3d  at 230; see also Two Grand Jury, 793 F.2d  at 73;
 Underhill, 781 F.2d  at 70.  In short, the required-records exception is
 indeed an exception to the Fifth Amendment privilege, and, as such, it
 presupposes that disclosure or production of the required records may be
 testimonial and self-incriminating.  Underhill, 781 F.2d  at 70; In re
 Kenney, 504 N.E.2d 652, 658 (Mass. 1987).
      We must determine, then, whether the required-records exception applies
 in this case.  Required records are those records that meet the following
 criteria: (1) the purpose of the recordkeeping is essentially regulatory
 rather than criminal; (2) the records contain the type of information that

 

 the regulated party would ordinarily keep; and (3) the records have assumed
 "public aspects" that render them at least analogous to public documents.
 Grosso, 390 U.S.  at 67-68.  The State does not challenge application of the
 exception under the first two criteria, and, indeed, they are easily met.
 While the day-care licensing regulations at issue here require records that
 may eventually aid in criminal prosecutions, their essential purpose is
 regulatory in nature.  Further, the required attendance records contain the
 type of information a day-care facility would ordinarily keep as a matter of
 course.
      The State argues, however, that the third criterion of the exception is
 not met because the attendance records are not open to public inspection or
 subject to a filing requirement.  The problem with this argument is that the
 "public aspects" criterion does not require records to be open to public
 inspection or to be subject to a filing requirement.  Rather, the records
 need only be analogous to public documents.  Grosso, 390 U.S.  at 68.  While
 the "public aspects" prong "does not lend itself to analytical precision,"
 United States v. Lehman, 887 F.2d 1328, 1333 (7th Cir. 1989), it is met in
 most cases in which a statute or regulation subjects the records to
 inspection by a federal or state agency.  See, e.g., Underhill, 781 F.2d  at
 68-69 ("public aspects" criterion satisfied when federal laws required that
 records of odometer statements be provided to buyers and be open to
 inspection by federal officials); In re Kenny, 715 F.2d 51, 53 (2d Cir.
 1983) (medical records "possess 'public aspects' by virtue of New Jersey's
 comprehensive regulatory scheme"); In re Doe, 711 F.2d 1187, 1192 (2d Cir.
 1983) (although "what is necessary to show public aspect is somewhat
 clouded," it was satisfied when doctor knew that law entitled state to

 

 examine patient files as part of professional conduct investigation);
 Louisiana State Bar Ass'n v. Chatelain, 513 So. 2d 1178, 1183 (La. 1987)
 ("While attorneys' records may not be public documents, they do have 'public
 aspects' in that the public at large has an interest in the integrity of the
 profession and clients in particular have an interest in how an attorney
 handles money which belongs to them."); In re Kenney, 504 N.E.2d  at 657
 (holding, in disciplinary proceeding, that attorney's financial records
 regarding client funds were not public documents, but assumed public aspects
 because they were necessary for attorney to meet statutory and ethical
 obligations).
      Here, the required records are available to parents and open to
 inspection by SRS in furtherance of the state's interest in overseeing
 facilities that provide child care to the public.  Without question, the
 public's interest in the regulatory oversight of day-care facilities confers
 sufficient "public aspects" to meet the third criterion of the required-
 records exception.  Even if we were to discount defendant's particularized
 claims regarding his need for the attendance records, the public's general
 interest in the availability of the records outweighs the record holder's
 claims of privilege for this type of information.  Cf. Underhill, 781 F.2d 
 at 69 (society's interest in maintenance of odometer records outweighs
 dealer's claim to constitutional protection).  Further, assuming the
 requirement in the SRS regulations that all "child/family records" be kept
 confidential includes attendance records, the parents' expectations of
 privacy "do not negate a finding that there is a public aspect to the files
 under the state regulatory schemes."  In re Grand Jury Proceedings, 801 F.2d 1164, 1168 (9th Cir. 1986).

 

      The State's reliance on Marchetti v. United States, 390 U.S. 39 (1968)
 is unavailing.  The statement in Marchetti that information is not stamped
 with a public character merely because the government has "formalized its
 demands in the attire of a statute," id. at 57, when taken in the context of
 that case, means only that the government cannot avoid the Fifth Amendment
 by enacting a statute that criminalizes the failure to keep records of
 criminal activity -- in that case, gambling.  Cf. Underhill, 781 F.2d  at 69
 (compliance with requirement to keep odometer records is not incriminating
 on its face).  This is not the situation here; the instant regulations are
 "not directed at a 'highly selective group inherently suspect of criminal
 activities,' involved in 'an area permeated with criminal statutes.'"  Id.
 (quoting California v. Byers, 402 U.S. 424, 430 (1971)).
      We recognize that the cases cited above involved situations in which
 grand juries or prosecutors, not defendants in criminal cases, sought the
 required records, but we see no principled reason to distinguish those
 cases from the instant one on that basis.  In determining whether the
 required-records exception applies in a particular case, consideration of
 who has requested the records is not the controlling factor.  In most of the
 cited cases, like this one, the entity or person requesting the records is
 distinct from the agency that is statutorily entitled to inspect the
 records.  Further, the fact that the person requesting the records is the
 accused in a criminal case only heightens the need for their production,
 assuming the records will aid in defense against the charges.
      The State contends, however, that assuming the trial court should have
 granted defendant's request for access to the attendance records, defendant
 has failed to show prejudice because (1) the same information was available

 

 from the parents of the children; (2) even if the requested records
 contradicted the alleged victims' statements regarding the presence of other
 children at the time of the abuse, the records could not disprove the
 occurrence of the abuse, and (3) defendant's own testimony at trial
 indicated that the attendance records could not provide him with a complete
 alibi.  The State supports its third point by citing the trial court's
 conclusion, made in response to defendant's motion for judgment of
 acquittal, that defendant's own testimony indicated that he was at the day-
 care facility often enough to have committed the alleged offenses.
      We do not find any of the State's three points to be persuasive.  To
 the contrary, we conclude that the court's refusal to allow defendant access
 to the attendance records was potentially prejudicial to defendant.
 Regarding the State's first point, even assuming that the parents of the
 alleged victims would provide defendant with credible information, there is
 no evidence to suggest the parents knew precisely on what days and during
 what hours their children were present.  At best, the parents might be able
 to refresh their memories from bills or canceled checks, assuming these were
 still available to them, but contemporaneous attendance records of the day-
 care facility would be far more reliable.
      The State's second point is also unavailing.  The fact that the alleged
 victims might incorrectly name other children as present during the abuse
 would not disprove the occurrence of the abuse, but it might cause the jury
 to doubt the children's credibility, which could have a direct impact on the
 verdict.  Cf. State v. Searles, 159 Vt. 525, 529, 621 A.2d 1281, 1284
 (1993) ("the way the sexual activity happened was relevant to the
 credibility of the happening").

 

      As for the State's last point, the fact that defendant's testimony
 suggested he was present at the day-care facility enough time to have
 committed the alleged offenses means only that the attendance records would
 not provide him with a complete alibi.  Nevertheless, the attendance records
 might narrow the possibilities of when the offenses could have occurred, and
 more importantly, as noted above, might provide information that would
 challenge the credibility of his accusers regarding the details of the
 alleged acts.
       We conclude that the required-records exception is applicable in this
 case, and that the trial court abused its discretion by not granting
 defendant's request for discovery of the day-care facility's attendance
 records.  Because, on the state of the record, we are unable to determine
 whether defendant was actually prejudiced, the matter must be remanded for
 the trial court to determine whether, in fact, defendant was prejudiced by
 his lack of access to the attendance records.  See, e.g., State v. King, 583 A.2d 896, 903 (Conn. 1990) (trial court must determine by in camera
 inspection on remand whether denial of access to report prepared by
 prosecution witness prejudiced defendant); Commonwealth v. French, 611 A.2d 175, 180 (Pa. 1992) (case remanded for trial court to determine whether
 defendant was prejudiced by court's refusal to allow defendant to examine
 pretrial statements of prosecution witnesses).
                                    III.
      Because the status of defendant's conviction will depend on the trial
 court's ruling on the prejudicial effect of nondisclosure of the attendance
 records, we must address defendant's argument that three expert witnesses
 improperly testified on the credibility of the complainants.

 

      Expert testimony that is a direct comment on the truthfulness of the
 complaining witness in a child sexual abuse case is inadmissible because it
 may lend an "improper 'aura of special reliability and trustworthiness'" to
 the complaint.  State v. Catsam, 148 Vt. 366, 371, 534 A.2d 184, 188 (1987)
 (quoting State v. Bubar, 146 Vt. 398, 401, 505 A.2d 1197, 1199 (1985)).
 Statements to the effect that children generally do not lie about or
 fabricate incidents of sexual abuse are also inadmissible because they are
 the equivalent of a direct comment on the child's truthfulness.  Id. at
 370, 534 A.2d  at 188.
      Mental health experts may, however, explain the psychological effects
 of sexual abuse on children to aid the jury in understanding conduct of the
 alleged victim.  Id. at 369-70, 534 A.2d  at 187.  This evidence "may be
 useful to dispel misconceptions" about the behavior of victims of child
 sexual abuse that could otherwise undermine the credibility of the child
 complainant.  State v. Gokey, 154 Vt. 129, 133, 574 A.2d 766, 768 (1990).
 In sum, experts may provide general information on the dynamics of sexual
 abuse to assist the jury in assessing the credibility of the child
 complainant, but may "'not render an opinion on the accuracy of the victim's
 recitation of facts.'"  State v. Hicks, 148 Vt. 459, 462, 535 A.2d 776, 778
 (1987) (quoting Commonwealth v. Baldwin, 502 A.2d 253, 257 (Pa. Super. Ct.
 1985)); see also  State v. Wetherbee, 156 Vt. 425, 431, 594 A.2d 390, 393
 (1991) (psychological expert must not be perceived by jury as "'truth
 detector' -- someone who, by application of scientific method, determines
 whether the victim is telling the truth").   
      Defendant made several objections to the testimony of Dr. Anna Salter,

 

 who was called by the State to provide general information about children's
 memories and their susceptibility to suggestion during interviews.  The
 evidence revealed that in this case the children who accused defendant of
 abuse had been sexually abused by the son of the day-care operators and
 suffered psychological disorders as a result.  The defense sought to
 convince the jury that the parents and the investigators had persuaded the
 children that defendant was also involved in the abuse at the day-care.  To
 rebut this theory, Dr. Salter discussed the recent research on whether young
 children can remember distant events accurately and whether their memories
 can be altered by leading or suggestive questions.  All of her testimony
 related to children in general.  Dr. Salter had not examined the children
 and could not comment directly on their truthfulness.  She testified: "I am
 only answering questions on memory and the ability to remember, not whether
 or not a child is lying."
      The trial court has discretion to admit expert testimony to assist the
 jury in understanding the evidence.  Here, the expert provided specialized
 knowledge on the ability of children to remember events in the distant past
 to aid the jury in accessing the credibility of the complainants.  See
 V.R.E. 702 (expert may testify to specialized knowledge to assist jury in
 understanding evidence).  Unlike the experts in Catsam and Wetherbee, Dr.
 Salter did not appear as a "truth detector" because her testimony did not
 refer to any of the children specifically and because she did not address
 the issue of truthfulness.  We find no abuse of discretion in admitting her
 testimony.  See Hicks, 148 Vt. at 461, 535 A.2d  at 777 (within trial court's
 discretion under V.R.E. 702 to admit expert testimony to aid trier of fact).
 "'The fact that the jury, if it believes the expert's testimony, may draw
 inferences which would tend to bolster the victim's credibility does not

 

 make the evidence inadmissible.'"  Id. at 462, 535 A.2d  at 778 (quoting
 Baldwin, 502 A.2d at 257).
      Defendant also argues that the testimony of Sandra Potvin and Barbara
 Ruggiero improperly bolstered the credibility of the complainants.  Unlike
 Dr. Salter, Ms. Potvin and Ms. Ruggiero had treated the child complainants.
 Pursuant to V.R.E. 804a, the treating therapists testified to hearsay
 statements of the children identifying defendant as one of the abusers at
 the day-care.  Defendant does not dispute the admissibility of these
 statements.  They also testified, however, that the children had good
 memories.  Defendant contends that the expert opinions on the children's
 memories constitute impermissible testimony on the accuracy of the
 children's V.R.E. 804a statements.  Cf. Hicks, 148 Vt. at 462, 535 A.2d  at
 778 (allowing expert testimony that fear may cause victims of child sexual
 abuse to delay reporting abuse).
      The duty to exclude objectionable testimony rests squarely with defense
 counsel, and without an objection, the defendant fails to preserve the issue
 for appeal.  State v. Recor, 150 Vt. 40, 46, 549 A.2d 1382, 1387 (1988).
 Defendant here did not object to the experts' testimony that the children
 had good memories, and therefore, we may reverse "only if we find that the
 trial court's failure to exclude the testimony sua sponte constituted plain
 error."  Ross, 152 Vt. at 468, 568 A.2d  at 339.  Plain error is rare and
 will be found only in the extraordinary case when the error is both obvious
 and affects the defendant's substantial rights.  State v. Sims, 158 Vt. 173,
 181, 608 A.2d 1149, 1154 (1991).
      We conclude that this testimony does not amount to plain error because
 it does not address the truthfulness of the complainants, but rather their

 

 ability to remember events accurately.  Cf. State v. Weeks, ___ Vt. ___,
 ___, 628 A.2d 1262, 1267 (1993) (plain error when expert tells jury "who
 should be believed").  The experts here did not testify that the children
 were telling the truth.  They did not state that these children were
 resistant to suggestibility, nor that the children's memories of abuse by
 defendant were accurate.  Nor did they conclude that defendant had abused
 the children.  Thus, there was no obvious error in their testimony.  To the
 extent that they conveyed their belief in the children's allegations, we
 conclude that the testimony was less egregious than in other cases in which
 we have found no plain error.  See, e.g., Sims, 158 Vt. at 182, 608 A.2d  at
 1155 (expert implicitly assumed truth of complainant's account of abuse and
 conveyed this assumption to jury); Ross, 152 Vt. at 467-68, 568 A.2d  at 339
 (expert concluded that complainant had been sexually abused by defendant).
      Finally, defendant implies that we should not follow our plain-error
 precedents on this issue because, in a recent case, we granted the
 petitioner a new trial when his attorney had failed to object to expert
 testimony on the credibility of the child complainant.  See In re Ross, 158
 Vt. 122, 126-27, 605 A.2d 524, 526-27 (1992).  Defendant's argument is
 without merit.  In State v. Ross, we first ruled that the expert testimony
 did not constitute plain error.  152 Vt. at 470, 568 A.2d  at 340.
 Subsequently, the defendant filed a petition for post-conviction relief,
 arguing that he had been denied effective assistance of counsel, to his
 prejudice.  In re Ross, 158 Vt. at 125, 605 A.2d  at 526.  We granted a new
 trial on this ground, but did not overrule our previous holding on plain
 error.  Here, defendant contends that the expert testimony constituted
 plain error, and we therefore apply the plain-error analysis.  His right to

 

 effective assistance of counsel is not before the Court, however; therefore,
 In re Ross is not applicable.
      Reversed and remanded for determination by trial court whether
 defendant was prejudiced by denial of access to the day-care facility's
 attendance records.  If the court determines defendant was not prejudiced,
 it may enter judgment, reinstating the conviction and sentence; otherwise,
 defendant shall be entitled to a new trial.





                                    FOR THE COURT:



                                    ______________________________________
                                    Associate Justice