State v. Fisher

State v. Fisher  (96-015); 167 Vt. 36; 702 A.2d 41

[Opinion Filed 21-Mar-1997]

[Motion for Reargument Denied 6-Aug-1997]

       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. 96-015


State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                           District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Douglas W. Fisher                                 November Term, 1996


Paul F. Hudson, J.

       Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Robert J. Appel, Defender General, Anna E. Saxman, Appellate Defender,
  Montpelier, and Allan R. Keyes, Of Counsel, Rutland, for
  defendant-appellant


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



       GIBSON, J.   Defendant Douglas Fisher appeals his conviction for lewd
  or lascivious conduct with a child in violation of 13 V.S.A. § 2602.  He
  claims that the court's admission of hearsay testimony by a court-appointed
  psychologist, a social worker, and a police officer violated V.R.E. 804a. 
  He also protests the admission of certain statements by the psychologist,
  and claims the court erred in allowing the psychologist to testify as both
  an expert and a Rule 804a witness.  We affirm the court's judgment,
  finding, in part, that although the 804a testimony by the psychologist was
  improperly admitted, the admission was harmless.

       The allegations against defendant arose in 1993 during a visitation
  dispute, one in a series of family conflicts.  Defendant and his former
  wife married in 1982 and separated in 1988, with the divorce becoming final
  in 1990.  The former wife was awarded custody of two daughters from the
  marriage; defendant received visitation rights.  In 1992, defendant was
  acquitted of sexual assault charges brought by his former wife based on
  alleged conduct during the marriage.

 

  Visitation with both children continued throughout this period.

       In September 1992, the mother cut off visitation after the girls told
  her they no longer wanted to visit defendant.  As part of the effort to
  settle this dispute, the family court ordered a psychological evaluation of
  the two girls, then ages eight and nine, in June 1993.  During the first
  session, the children talked generally about visits and described a violent
  fight they had witnessed between defendant and a female friend.  That
  evening, however, the older daughter informed her mother of sexually
  inappropriate behavior that occurred during visitation.  The mother related
  the story to the psychologist, who scheduled a second visit, and reported
  the information to the Department of Social and Rehabilitation Services
  (SRS), which informed the police.

       On the second visit with the psychologist, the older child described
  the abuse, with the younger daughter agreeing, "That happened to me too." 
  A few days later, an SRS investigator and a Brattleboro police officer also
  interviewed both children.  Defendant was subsequently convicted of two
  counts of lewd or lascivious conduct with his daughters.  This appeal
  followed.

       Defendant first contends that the psychologist's testimony during
  trial concerning statements made by the youngest child was inadmissible
  under V.R.E. 804a.  Rule 804a allows a witness to testify to hearsay
  statements made by a child ten years old or younger if the statements are
  offered in a sexual assault case where the child is an alleged victim, the
  statements were not taken in preparation for a legal proceeding, the child
  is available to testify, and the circumstances surrounding the statements
  show they are trustworthy.  V.R.E. 804a(a); State v. Weeks, 160 Vt. 393,
  399, 628 A.2d 1262, 1265 (1993).  We recognize that a court has great
  discretion in admitting or excluding evidence under the rule, and we will
  not reverse such decisions unless there has been an abuse of discretion
  resulting in prejudice.  See Gilman v. Towmotor Corp., 160 Vt. 116, 122,
  621 A.2d 1260, 1262 (1992).

       Defendant contends the court abused its discretion in allowing the
  testimony because the statements were made in preparation for a legal
  proceeding.  The test to determine if a child's

 

  hearsay statements are admissible is whether an objective view of the
  totality of the circumstances indicates that the statements were gathered
  primarily for reasons other than preparation for a legal proceeding.  State
  v. Blackburn, 162 Vt. 21, 25, 643 A.2d 224, 226 (1993).  Here, the
  circumstances indicate that the statements to the psychologist were indeed
  taken in preparation for a legal proceeding -- the visitation dispute in
  family court.  The psychologist testified that she was appointed by the
  court to examine the children.  She stated that she was initially contacted
  by someone from the court, and she understood that her role was to evaluate
  for the court why the children had suddenly stopped wanting to visit
  defendant. Therefore, the trial court abused its discretion in allowing the
  psychologist to testify to what the youngest child told her during the
  evaluation.  Cf. State v. Lawton, 164 Vt. 179, 188, 667 A.2d 50, 58 (1995)
  (statement admissible where disclosure was made days after issuance of
  relief-from-abuse order, but no other legal proceeding pending at time of
  disclosure).

       The State argues, however, that the "in preparation for a legal
  proceeding" requirement bars only statements made in preparation for the
  proceeding in which the statement is offered, thereby allowing statements
  made in preparation for separate court proceedings.  We disagree. Where the
  language of a rule is plain on its face, it must be enforced according to
  its express terms.  State v. Forcier, 162 Vt. 71, 75, 643 A.2d 1200, 1202
  (1994).  The Legislature excluded all hearsay statements taken in
  preparation for "a legal proceeding" -- without exception.  Considering the
  specificity of the other requirements, including limits on the class of
  person, age of the child, and type of proceeding, we must assume that the
  Legislature would have indicated if it intended to include some legal
  proceedings and exclude others.

       In addition, Rule 804a was enacted to allow admission of a
  child-victim's early communications (which the Legislature found to be
  highly trustworthy), but only where there is minimal risk of fabrication. 
  Reporter's Notes, V.R.E. 804a.  Unfortunately, the risk of fabrication
  increases when a child becomes embroiled in a legal dispute involving
  multiple proceedings, where a child's hearsay statements taken in
  preparation for one proceeding could

 

  be relevant to a different, but associated proceeding -- a situation common
  in family disputes. Although it is unclear how often people are falsely
  accused or prosecuted for child molestation, some studies suggest that
  false allegations are especially common in family disputes.  R. Marks,
  Should We Believe the People Who Believe the Children?:  The Need for a New
  Sexual Abuse Tender Years Hearsay Exception Statute, 32 Harv. J. on Legis.
  207, 209 & nn.8-9 (1995) (one study found 20% of accusations in visitation
  and custody disputes probably fictitious; another study found
  false-positive incidence of 55%).  Without in any way challenging the
  truthfulness of the child's statements at issue, the risk of fabrication
  was illustrated when the psychologist testified that the children knew she
  was involved in determining whether "they would have to visit their father
  in the future."

       Acknowledging the Legislature's concern for reliability, the State
  urges us to adopt a balancing test.  A freshly disclosed statement made
  under circumstances suggesting reliability would be admissible, whereas a
  statement made under circumstances calling into doubt its trustworthiness
  would not.  But such an interpretation makes the language of 804a(a)(2)
  redundant with 804a(a)(4): in addition to the prohibition on statements
  made in preparation for legal proceedings, V.R.E. 804a(a)(2), the court
  must find that the "time, content and circumstances of the statements
  provide substantial indicia of trustworthiness," V.R.E. 804a(a)(4).  We
  will not interpret the rule in a manner that would make one step redundant
  with another, but instead strive to give meaning to each and every part of
  the rule while interpreting it as a coherent whole.  See State v. Wright,
  154 Vt. 512, 527, 581 A.2d 720, 729 (1989) (in construing language in rule,
  we look to entire rule), cert. denied sub nom. Wright v. Vermont, 498 U.S. 1032 (1991).

       Nonetheless, we find the trial court's error in admitting the
  psychologist's testimony under Rule 804a was harmless.  To do so, we
  inquire whether, absent the alleged error, it is clear beyond a reasonable
  doubt that the jury would have returned a guilty verdict regardless of the
  error.  Id. at 519-20, 581 A.2d  at 725; see V.R.Cr.P. 52(a).  Several
  witnesses, in addition

 

  to the psychologist, testified concerning the allegations.  The older
  child, eleven years old at the time of the trial, testified directly about
  the abuse and circumstances surrounding the abuse and identified defendant
  as the abuser.  Although the youngest child was unable to repeat the
  accusations on the stand, she remembered giving a written statement
  describing the abuse to the SRS investigator and identified the statement
  during the trial.  The testimony of both children during the trial was
  consistent with the testimony of the SRS investigator and the police
  officer, who interviewed the children a few days after they revealed the
  abuse.  The SRS investigator testified that the youngest daughter drew a
  line to the vaginal area on an anatomically correct drawing and labelled it
  "Dad," and then made both written and verbal statements that defendant had
  touched her vagina.  The police officer confirmed these statements, and
  offered additional details of the interview.  The amount and consistency of
  the testimony from the SRS investigator, the police officer, the children's
  mother, and the children themselves indicate that the psychologist's
  testimony concerning one statement by the youngest child was harmless.

       But the defendant contends that the testimony of the SRS investigator
  and the police officer also violated Rule 804a because it too was taken in
  preparation for a legal proceeding. We have previously determined that
  communications to social workers and the police are not necessarily in
  preparation for a legal proceeding.  The focus of an SRS investigation is
  not to make a case against the accused, but to ascertain the reliability of
  the accusations so the child can, if necessary, be protected.  State v.
  Duffy, 158 Vt. 170, 172, 605 A.2d 533, 535 (1992); see also State v.
  Curtis, 157 Vt. 275, 279, 597 A.2d 770, 772 (1991) (communications with SRS
  caseworkers are made for purpose of investigation to enable State to take
  appropriate protective measures).  Likewise, statements taken by police
  officers are often investigatory.  It is "reasonable to have the police
  investigate directly and not base criminal action on SRS's merely telling
  the police about the child's statements."  Blackburn, 162 Vt. at 25, 643 A.2d  at 226. Again we must look to the totality of the circumstances to
  determine whether the interviews were primarily to investigate the
  allegations or primarily to prepare a legal action against the accused.

 

  Id.  Where a child's testimony has been clear and consistent and additional
  interviews were conducted merely to repeat the accusation or to preserve
  the accusation, the court may find that the primary purpose was to prepare
  for legal proceedings.  Id.

       Such is not the situation here.  The statements made by the youngest
  child, to which both the SRS investigator and the police officer testified,
  were made during the initial interview with the children.  The interview
  was held within a week of the mother informing SRS of the allegations.  The
  SRS investigator, in turn, notified the police department in the
  jurisdiction where the incident likely occurred and requested assistance
  with the investigation.  Thus the evidence supports the conclusion that the
  interview by SRS and the police was investigatory, and the trial court did
  not abuse its discretion in admitting their testimony.

       We next consider defendant's contention that the court erred in
  admitting two other statements by the psychologist.  First, the
  psychologist testified that after the first session with the children, she
  made a note that behavior reported by the mother (including extreme fear of
  the dark, fear of sleeping alone, nightmares, and bed-wetting) was
  "suggestive of some direct trauma to them."  Defendant claims that this
  testimony, along with testimony that it was unlikely that the behavior was
  caused by something the children observed or were told, implicitly declared
  that the alleged sexual abuse had occurred.  Second, the psychologist
  testified that during the oldest daughter's disclosure, her "affect seemed
  extremely congruent with the content of what she was saying."  Defendant
  claims that this qualifies as impermissibly vouching for the truth of the
  child's statement.

       But defendant cannot claim error in admission of evidence unless he
  made a timely objection or motion to strike during trial.  V.R.E.
  103(a)(1).  The objection must have been made at the time the evidence was
  offered or the question was asked, Brown v. Pilini, 128 Vt. 324, 330, 262 A.2d 479, 482 (1970), and objection on one ground does not preserve the
  issue for appeal on other grounds, State v. Bubar, 146 Vt. 398, 400, 505 A.2d 1197, 1199 (1985). Defendant failed to object following the
  psychologist's statement and follow-up answers that the

 

  children's symptoms were suggestive of direct trauma.  Defendant also
  failed to object following the psychologist's statement that the oldest
  child's affect was congruent with what the child was saying.  There was no
  objection until the State asked whether the child's affect was different
  from that on the prior interview, and then the defendant objected
  generally, asserting only, "I would [object to] this line of questioning. 
  I think it should cease."  Defendant's failure to offer timely, specific
  objections when the issues were raised waives his right to appeal those
  issues.

       In addition, we do not find that the psychologist's testimony
  concerning "direct trauma" and the oldest child's affect and mannerisms
  rises to the level of plain error.  See V.R.Cr.P. 52(b).  To reverse on
  plain error, we must find not only that the error seriously affected
  substantial rights, but also that it had an unfair prejudicial impact on
  the jury's deliberations. State v. Pelican, 160 Vt. 536, 538-39, 632 A.2d 24, 26 (1993).  Obviousness of the error and prejudice to the defendant are
  key factors.  Weeks, 160 Vt. at 400, 628 A.2d  at 1266.

       The psychologist stated only that the children's behavior was
  "suggestive of some direct trauma," without directly linking the trauma to
  the alleged sexual abuse.  Although the psychologist testified the behavior
  was unlikely to result from merely observing some event, the jury heard
  testimony from both parties about other sources of trauma in the children's
  lives, including possible abuse of the oldest daughter by another family
  member, presence during a violent fight between defendant and a female
  friend, and spankings by defendant to both children.

       We also do not find that the testimony that the oldest child's affect
  and mannerisms were consistent with what she was saying rises to the level
  of vouching for her credibility.  During the same line of questioning, the
  psychologist had already noted that the oldest child showed extreme
  embarrassment in discussing the entire incident and "clearly wanted the
  interview over as soon as possible."  While we remain concerned that expert
  testimony may slip into impermissible comment on the complainant's
  credibility, State v. Sims, 158 Vt. 173, 181, 608 A.2d 1149, 1154 (1991),
  the psychologist's testimony does not rise to the level of plain error
  where the jury could have reasonably interpreted her statement to mean that
  the child acted embarrassed while describing an embarrassing situation. 
  Cf. Weeks, 160 Vt. at 398-99, 628 A.2d  at 1265 (psychologist questioned
  child whether mother had prompted her and indicated that

 

  child's way of describing incident made psychologist believe abuse actually
  occurred); Sims, 158 Vt. at 180, 608 A.2d  at 1153 (manner in which expert
  answered question conveyed belief that abuse occurred); State v. Gokey, 154
  Vt. 129, 138-39 n.6, 140, 574 A.2d 766, 771 n.6, 771-72 (1990) (same);
  State v. Catsam, 148 Vt. 366, 370, 534 A.2d 184, 187-88 (1987) (expert
  testified that child suffered post-traumatic stress disorder and that
  children with disorder do not fabricate abuse claims).

       Defendant contends finally that the trial court erred in allowing the
  psychologist to testify as both an expert witness and a Rule 804a witness. 
  There is no express prohibition against a person serving as a witness
  offering hearsay testimony under Rule 804a and as a properly qualified
  expert witness.  See Weeks, 160 Vt. at 399-400, 628 A.2d  at 1265-66
  (expert's role in relating victim's account of abuse under Rule 804a would
  have been proper but for other errors).  What is prohibited is an expert
  going beyond merely relating the victim's account under Rule 804a and
  vouching for the declarant's credibility.  Id. at 400, 628 A.2d  at 1265-66. 
  As already discussed, we do not find that the psychologist's testimony
  rises to that level.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice