State v. Wigg
Annotate this Case
State v. Wigg (2003-501); 179 Vt. 65; 889 A.2d 233
2005 VT 91
[Filed 29-Jul-2005]
[Motion for Reargument Denied 06-Oct-2005]
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.
2005 VT 91
No. 2003-501
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Donald J. Wigg February Term, 2005
Karen R. Carroll, J.
David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro,
for Plaintiff-Appellee.
Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, and Jeffrey
C. Kestenband and William H. Paetzold of Moriarty, Paetzold & Babcock,
L.L.C., Glastonbury, Connecticut, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Allen, C.J. (Ret.), Specially Assigned
¶ 1. DOOLEY, J. Defendant, Donald Wigg, appeals a jury conviction
for lewd and lascivious conduct. He claims that: (1) his
constitutionally-based presumption of innocence was violated when the trial
court permitted a police detective to repeatedly refer to the complainant
as the "victim" during testimony; (2) the trial court abused its discretion
in excluding testimony from his expert witness on how the interviews of the
complainant failed to satisfy the scientifically-suggested protocol for
best ensuring accurate interview responses; and (3) he is entitled to
acquittal because the jury's verdict convicting him of lewd and lascivious
conduct, while acquitting him of sexual assault, is inherently
inconsistent. While we find the trial court erred in permitting the police
detective to refer to the complainant as the "victim" and in categorically
excluding defense expert's case-specific testimony, we hold both errors to
be harmless. Additionally, we find no inconsistency in the jury's
verdicts. We therefore affirm the trial court's decision.
¶ 2. In late January 1999, complainant B.M.Y, an eleven-year-old
female, accompanied defendant, a thirty-five-year-old male, on a weekend
ski vacation from their home state of Connecticut to Mount Snow in West
Dover, Vermont. At the time, defendant's brother was dating complainant's
mother, and the two families had recently taken a ski vacation together.
On this occasion, complainant's mother permitted her to accompany defendant
alone. Complainant testified that she took a shower after she and
defendant arrived at Mount Snow late in the day. After her shower, she
claims that defendant removed her towel, rubbed lotion on her back and
legs, and opened her vagina with his fingers and stuck his tongue inside
her vagina. Later that same night, after watching television and going to
bed, she further alleges that defendant unzipped her pajamas and sucked on
her breasts.
¶ 3. B.M.Y. did not tell anyone about the incidents at Mount Snow
until September 2000, when her mother's new boyfriend confronted her after
becoming suspicious that something inappropriate had occurred between
B.M.Y. and defendant. After B.M.Y. disclosed the details of the trip to
her mother's boyfriend, he reported the incident to the Connecticut State
Police. Trooper Francis Budwitz responded to the complaint and conducted
an initial interview of B.M.Y. After finding the alleged assault occurred
in Vermont, he turned the investigation over to Detective Rich Werner of
the Dover, Vermont police department. Detective Werner traveled to
Connecticut and interviewed the complainant on two separate occasions in
late 2000.
¶ 4. The State charged defendant with lewd and lascivious conduct
with a minor in violation of 13 V.S.A. 2602 for sucking on complainant's
breasts and with sexual assault on a minor in violation of 13 V.S.A.
3252(a)(3) for inserting his tongue in her vagina.
¶ 5. At trial, the State presented seven witnesses, including
complainant, her mother's boyfriend, Trooper Budwitz and Detective Werner.
The complainant testified at length to the nature of her relationship with
defendant, the events leading up to the ski trip she took alone with
defendant, what occurred during the trip, and why she delayed reporting the
incidents of abuse. Trooper Budwitz and Detective Werner testified
regarding their investigation, the procedures they utilized in interviewing
the child complainant, and what the complainant revealed to them regarding
the incidents of abuse. Detective Werner, the lead investigator on the
case, repeatedly referred to complainant as the "victim" during his
testimony. Despite defense's timely objection, the trial judge permitted
the detective to continue using the reference, ruling that use of the term
was not highly prejudicial.
¶ 6. Defendant did not testify. He advanced his main defense-that
the complainant's accusations were untruthful-through cross-examination of
each of the State's witnesses and by calling Dr. Philip Kinsler, a
psychologist qualified as an expert in interviewing children suspected of
being victims of sexual abuse. In his proffer, defendant's attorney
explained that Dr. Kinsler would testify to the interview techniques that
are most likely to produce accurate responses as well as those techniques
most likely to produce inaccurate responses. Defendant also intended to
have Dr. Kinsler testify about the investigatory interviews conducted by
Trooper Budwitz and Detective Werner, in order to give an opinion on
whether they were conducted in a manner that was consistent with these
suggested techniques. After listening to the expert's intended testimony
in camera, the trial judge permitted him to testify about general
interviewing techniques, but excluded testimony analyzing the specific
interviews conducted by the police in this case.
¶ 7. In its verdict, the jury acquitted defendant of the more
serious sexual assault charge, but convicted him of the charge of lewd and
lascivious conduct with a minor. This appeal followed.
¶ 8. Defendant first contends that the trial court violated his
constitutionally-based presumption of innocence when it permitted the lead
police investigator, over objection, to repeatedly refer to the complainant
as the "victim" during his testimony. In overruling defendant's objection,
the trial court determined that the detective's reference to the
complainant as the "victim" was not "highly prejudicial" because "the jury
knows [the State's attorney] wouldn't be here if the State didn't believe
this act occurred." We agree with defendant's contention that, where the
commission of a crime is in dispute and the core issue is one of the
complainant's credibility, it is error for a trial court to permit a police
detective to refer to the complainant as the "victim." Based on the facts
of this case, however, we do not find a violation of defendant's rights,
and hold that the error was harmless.
¶ 9. The trial court may exclude testimony if the probative value
"is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury." V.R.E. 403. The trial court has
discretion to balance the factors in Rule 403, and "we will not disturb the
trial court's ruling absent a showing of an abuse of that discretion."
State v. Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996). In criminal
trials, the court's discretion is limited, however, by defendant's right to
due process. Id.
¶ 10. The first step in balancing is to consider whether the
evidence has any probative value. State v. Ogden, 161 Vt. 336, 341, 640 A.2d 6, 10 (1993). Although Detective Werner had to identify complainant
as the alleged victim, the use of the term "victim" had no inherent
probative value. See V.R.E. 401; State v. LeClaire, 2003 VT 4, ¶ 14, 175
Vt. 52, 819 A.2d 719. Thus, with little or no weight on the probative
value side of the balance, exclusion of the evidence was appropriate if the
court found virtually any danger of unfair prejudice. We hold that there
was a danger of unfair prejudice because the detective's choice of language
implied that he and the prosecution believed the complainant's testimony,
adding weight to the State's case. When defendant objected, the court
should have required the officer to use a more neutral term to identify the
complainant. The court's ruling that the officer could continue to use the
term "victim" because it was not "highly prejudicial" misapplied the
balancing that Rule 403 required. We cannot conclude that the court acted
within its discretion.
¶ 11. We also conclude, however, that the error was harmless under
the particular circumstances of this case. " 'Harmless error analysis
requires the reviewing court to inquire if, absent the alleged error, it is
clear beyond a reasonable doubt that the jury would have returned a guilty
verdict regardless of the error.' " State v. Wright, 154 Vt. 512, 519-20,
581 A.2d 720, 725 (1989) (quoting State v. Hamlin, 146 Vt. 97, 106, 499 A.2d 45, 52 (1985)); see V.R.Cr.P. 52(a) ("Any error, defect, irregularity,
or variance which does not affect substantial rights shall be
disregarded."). After considering Detective Werner's testimony in its
entirety, examining the way in which he used the term "victim," and
considering the degree of danger of unfair prejudice, we conclude beyond a
reasonable doubt that the jury would not have returned a different verdict
had the detective used different and more neutral terminology.
¶ 12. In reaching our harmless error conclusion, we are mindful of
the trial court's view that the jury would normally expect the
investigating officer, who is testifying for the State, to believe the
complainant. In this case, however, the context of the detective's
testimony indicates that he was using a term he viewed as synonymous with
complainant. See Jackson v. State, 600 A.2d 21, 24-25 (Del. 1991)
(explaining that "the term 'victim,' to law enforcement officers, is a term
of art synonymous with 'complaining witness' "). He never expressed an
opinion that B.M.Y. was victimized or that defendant was guilty. He
referred to defendant as the "suspect" again indicating that he did not
intend to convey an opinion of defendant's guilt. Even if the jury would
expect the detective to believe B.M.Y., we do not believe that it would
conclude that he expressed that opinion.
¶ 13. The situation here is very different from that in State v.
Ayers, 148 Vt. 421, 535 A.2d 330 (1987), (FN1) the main case relied upon by
defendant, where a prosecutor made several impermissible statements "that
indicated a personal opinion that the defendant's version of the events was
false." Id. at 424, 535 A.2d at 333. Based on these remarks, this Court
found that "the jury could draw no other conclusion from the prosecutor's
remarks than that he thought the defendant was guilty." Id. at 425, 535 A.2d at 333. We could not say that the improper statements had no
influence on the jury verdict in Ayers; we reach a different conclusion in
this case.
¶ 14. We have a similar view of State v. Gokey, 154 Vt. 129, 574 A.2d 766 (1990), another case relied upon by defendant for the proposition
that a witness's use of the term "victim" constitutes reversible error. In
Gokey, the expert witness testimony included a conclusion that the child
complainant had been victimized: " '[S]he has never been through anything
else that would cause any signs of emotional disturbance or upset other
than this victimization. There's nothing else that happened to this child
up to that point.' " Id. at 132, 574 A.2d at 767. (FN2) The comment on the
complainant's truthfulness, and thus defendant's guilt, was much more
direct, and it came from an expert witness who the jury might view as
having special expertise in judging credibility. The main elements that
determined the result in Gokey are not present here.
¶ 15. Defendant's second claim is that the trial court erred in
limiting the testimony of his expert witness, Dr. Kinsler. Defendant
sought three types of testimony from Dr. Kinsler: (1) general testimony to
describe the proper and improper methods, of questioning children who may
have been victims of sexual abuse and to explain why particular methods are
proper or improper; (2) case-specific testimony as to whether the officers
who interviewed B.M.Y. followed, or deviated from, the proper methods of
questioning her; (3) case-specific testimony on the impact of any
deviations from proper methodology on the credibility of B.M.Y.'s
accusations against defendant. The trial court admitted the general
testimony, that in (1) above, but refused to allow the case-specific
testimony in categories (2) and (3), explaining that testimony in either
category constituted an impermissible comment on witness credibility. On
appeal, defendant claims that the exclusion of the testimony in the second
category-whether the officers used proper methodology in questioning
B.M.Y.-violated his constitutional rights under the Compulsory Process
Clause and Due Process Clause. While we agree that the trial court erred
in categorically excluding the expert's case-specific testimony, we find
the error harmless, and defendant's constitutional claims to be without
merit.
¶ 16. Although the State has not argued on appeal that the court
erred in admitting the general expert testimony on proper methods of
questioning child sexual abuse victims, we address that issue to fully
explain our decision on the case-specific testimony. Testimony from a
qualified expert in the form of an opinion is admissible if it "will assist
the trier of fact to understand the evidence or to determine a fact in
issue." V.R.E. 702. In our leading case of State v. Catsam, 148 Vt. 366,
369-70, 534 A.2d 184, 187 (1987), we held that expert testimony of the
psychological and emotional profile, and associated behavior of children
who suffer post-traumatic stress disorder (PTSD) as victims of child sexual
abuse is admissible under Rule of Evidence 702. Our rationale was as
follows:
The unique psychological effects of sexual assault on children
place the average juror at a disadvantage in understanding the
behavior of the victim. The confusion, shame, guilt, and fear
that often result from such abuse may cause a victim to react and
behave in a different manner from many other crime victims,
especially when the sexual abuse victim is forced to testify to
the acts in open court. Jurors who themselves have never
experienced such emotions may be better able to assess the
credibility of the complaining witness with the benefit of a
better understanding of the emotional antecedents of the victim's
conduct provided by the expert testimony.
Id. at 369, 534 A.2d at 187 (internal quotations and citation omitted). We
have followed Catsam in numerous decisions, most recently expanding its
reach to adult rape victims in State v. Kinney, 171 Vt. 239, 250, 762 A.2d 833, 842 (2000). See also State v. Leggett, 164 Vt. 599, 599 600, 664 A.2d 271, 271 72 (1995) (mem.); State v. Gomes, 162 Vt. 319, 329 30, 648 A.2d 396, 403 04 (1994); State v. Weeks, 160 Vt. 393, 399 403, 628 A.2d 1262,
1265 67 (1993); State v. Denny, 159 Vt. 262, 265, 617 A.2d 425, 427 (1992);
State v. Sims, 158 Vt. 173, 178 82, 608 A.2d 1149, 1152 55 (1991); State v.
Wetherbee, 156 Vt. 425, 430 37, 594 A.2d 390, 392 96 (1991); Gokey, 154 Vt.
at 133 37, 574 A.2d at 768 70; State v. Hicks, 148 Vt. 459, 461 63, 535 A.2d 776, 777 78 (1987). Gomes has some similarity to this case because
the State's expert in that case also testified to whether the memories of
young children "can be altered by leading or suggestive questions." 162
Vt. at 329, 648 A.2d at 404.
¶ 17. Under the general theory of Catsam, a large majority of
courts have held that the type of general expert evidence introduced in
this case, explaining the proper and improper methods of examining children
who may be victims of sexual assault, is admissible. See State v. Speers,
98 P.3d 560, 565-67 (Ariz. Ct. App. 2004); State v. Malarney, 617 So. 2d 739, 740-41 (Fla. Dist. Ct. App. 1993) (per curiam); Barlow v. State, 507 S.E.2d 416, 418 (Ga. 1998); State v. Criqui, 2003 WL 22119226, *5 (Kan. Ct.
App. 2003) (per curiam) (unpublished); State v. Sloan, 912 S.W.2d 592,
596-97 (Mo. Ct. App. 1995) (per curiam); State v. Sargent, 738 A.2d 351,
353-54 (N.H. 1999); State v. Michaels, 642 A.2d 1372, 1384 (N.J. 1994);
State v. Gersin, 668 N.E.2d 486, 488 (Ohio 1996); State v. Kirschbaum, 535 N.W.2d 462, 466-67 (Wis. Ct. App. 1995). We find the few decisions to the
contrary unpersuasive or distinguishable. For example, the Maine court has
held inadmissible expert testimony that children are suggestible and
sometimes give the expected answer, especially in response to leading
questions. The Court held that this conclusion was common knowledge and,
thus, testimony that would not aid the jury. See State v. Ellis, 669 A.2d 752, 753-54 (Me. 1996). We conclude that the decision sets too high a
barrier to admissibility, a barrier inconsistent with our analysis in
Catsam, and fails to acknowledge the complexity in translating the general
proposition into proper interview protocols.
¶ 18. Similarly, we distinguish the recent decision of the
Washington Supreme Court in State v. Willis, 87 P.3d 1164, 1168 (Wash.
2004), because the court acknowledged the general rule, but held the expert
testimony unhelpful because it did not support that there were inaccuracies
in the central allegations of the child victim. If anything, decisions
like Willis support the conclusion we reach in this case.
¶ 19. We also agree with the trial court's conclusion that evidence
in the third category-how the improper questioning of B.M.Y. affected the
reliability of her testimony-was inadmissible. Defendant sought admission
of this testimony below, but has apparently abandoned his position here.
(FN3) Again, the Catsam line of cases is helpful. In that case, the
expert included in her opinion that children who suffer PTSD tend to tell
the truth about incidents of sexual abuse and further testified that the
victim in the case suffered from PTSD. We held that viewing the testimony
as a whole, it "was tantamount to a direct comment that the complainant was
telling the truth." Catsam, 148 Vt. at 370, 534 A.2d at 187. We concluded
that "this type of evidence may unduly influence the jury's judgment with
regard to the complaining witness" and was categorically inadmissible. Id.
at 371, 534 A.2d at 188.
¶ 20. As above, this part of the Catsam holding has been reiterated
and explained in a number of subsequent cases. See Weeks, 160 Vt. at 403,
628 A.2d at 1267; Sims, 158 Vt. at 178-79, 608 A.2d at 1152-53; Wetherbee,
156 Vt. at 430-32, 594 A.2d at 392-93; Gokey, 154 Vt. at 140, 574 A.2d at
771. Exclusion of expert testimony that a complainant's testimony is
unreliable because of defects in the initial questioning of her is
consistent with Catsam and the cases that have followed it. The cases from
other jurisdictions are consistent with this view. See Speers, 98 P.3d at
566; Barlow, 507 S.E.2d at 418; Criqui, 2003 WL 22119226, at *4.
¶ 21. This leaves us with the testimony in the second category, the
exclusion of which defendant challenges on appeal. Defendant argues that
even under the Catsam cases, he should have been allowed to ask his expert
whether the police officer interviews of B.M.Y. were tainted by improper
questioning techniques. The court faced this exact issue in United States
v. Rouse, 111 F.3d 561, 570 (8th Cir. 1997), and noted:
A qualified expert may explain to the jury the dangers of
implanted memory and suggestive practices when interviewing or
questioning child witnesses, but may not opine as to a child
witness's credibility. That leaves a troublesome line for the
trial judge to draw-as the expert applies his or her general
opinions and experiences to the case at hand, at what point does
this more specific opinion testimony become an undisguised,
impermissible comment on a child victim's veracity?
Id. at 571. The trial court in this case faced a similar dilemma. In
response, it ruled:
It's up to the jury to determine how the scientific literature
applies to the questions that were asked of [B.M.Y.] . . . . By
having Dr. Kinsler testify to how his knowledge of the scientific
bases applies to this particular case, he would be telling the
jury how to apply the scientific information to the case, and
that's the jury's province. . . .
¶ 22. We conclude that the court's rationale does not support
exclusion of the testimony in the second category. Again, one of the cases
in the Catsam line is helpful. In State v. Gokey, the expert witness
testified to the profile of a sexually-abused child, including as well the
child's description of the sexual abuse, the abuser's name, and a detailed
account of her interview with the child. 154 Vt. at 132, 574 A.2d at 767.
This Court found that the evidence was admissible in part, and inadmissible
in part, explaining the distinction as follows:
[T]he State introduced evidence of the profile of a sexually
abused child to assist the jury in understanding three facts about
the child's behavior. First, according to her mother, the child
did not tell her of the December 1986 incident of abuse until
about two weeks later. Second, the child claimed that defendant
had abused her on many other occasions prior to the December
incident, but she had not told her mother until January 1987.
Third, although the point was disputed, the child continued to
visit the defendant's house, where her playmate lived, often
remaining there when defendant was the only adult present. We
hold that these facts in evidence, which might be considered
anomalous or unusual, justified the admission of expert testimony
for the limited purpose of showing the jury that the child's
behavior in these respects was consistent with the behavior of
child sexual abuse victims generally. Without such testimony, the
jury would be disadvantaged and might base its deliberations upon
misconceptions.
While limited profile evidence was thus permissible, here the
expert exceeded the limits. At most, she ought to have been
permitted to describe to the jury evidence on the tendency of
sexually abused children to delay reporting incidents of abuse and
to continue relationships with their abusers, to give her opinion
whether the child's behavior was consistent with this evidence,
and to explain the basis for that opinion. Her graphic retelling
of the child's description of the events, her comments about the
child's ability to distinguish truth from falsehood, and her
conclusory remarks about "this victimization" were all beyond the
pale-unduly prejudicial and unjustifiable under our rules of
evidence and our cases.
Id. at 137, 574 A.2d at 770. The important point about Gokey is that the
Court did not exclude all case-specific expert testimony. It allowed the
expert witness to testify that the complainant's conduct was consistent
with the profile, excluding only the testimony that suggested that the
expert believed the statements of the complainant. Testimony is not
inadmissible simply because it allows the jury to draw inferences that
support or weaken the complainant's credibility. See Gomes, 162 Vt. at
330, 648 A.2d at 404 (" '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.' " (quoting
State v. Hicks, 148 Vt. 459, 461, 535 A.2d 776, 778 (1987))).
¶ 23. To the extent that they address the issue, the decisions from
other jurisdictions allow expert testimony in the second category. See
Speers, 98 P.3d at 567 n.3 (limiting expert's testimony to general evidence
on the dangers of improper interviewing techniques "and discussion of the
particular practices employed in the instant case"); Barlow, 507 S.E.2d at
417 (admitting expert testimony to show "whether the interviewing
techniques actually utilized were proper"); Criqui, 2003 WL 22119226, at *5
(finding trial court erred in excluding testimony of "the problems that
[the expert] perceived with the interviewing techniques used in this
case"); Sloan, 912 S.W.2d at 597 (error to exclude expert testimony that
questions used to examine child were inappropriate); Michaels, 642 A.2d at
1384; State v. Ungerer, 1996 WL 362804, *4 (Ohio Ct. App. 1996)
(unpublished). As the New Jersey Supreme Court stated in Michaels,
"[e]xperts may thus be called to aid the jury by explaining the coercive or
suggestive propensities of the interviewing techniques employed, but not of
course to offer opinions as to the issue of a child-witness's credibility,
which remains strictly a matter for the jury." 642 A.2d at 1384.
¶ 24. We stress that the trial court made a blanket decision to
exclude the evidence in the second category and did not conduct a specific
balancing decision under Rule of Evidence 403. Based on the above
decisions and Gokey, we conclude that a categorical exclusion of such
evidence was erroneous. To the extent the exclusion decision could have
been justified in whole or in part by balancing the probative value of the
evidence in this case against factors that weighed against admission under
Rule 403, it is sufficient for us to note that no balancing occurred. See
State v. Shippee, 2003 VT 106, ¶ 13, 176 Vt. 542, 839 A.2d 566 (mem.)
(explaining that while "[t]he discretion of the trial court is broad when
reaching a decision based on the balancing test under Rule 403," error
occurs when the defendant can show that the court completely withheld its
discretion).
¶ 25. This brings us to the heart of our decision-whether the
summary exclusion of the evidence in the second category was harmless in
this case. As we said above, we can find harmless error only if it is
clear beyond a reasonable doubt that the jury would have returned a guilty
verdict regardless of the error. Wright, 154 Vt. at 519-20, 581 A.2d at
725. Because our harmless error standard does not vary whether the error
is labeled as constitutional or not, it makes no difference whether the
court's refusal to allow the expert to testify about the interviewing
techniques used in this case rose to the level of constitutional error as
defendant alleges. State v. Carter, 164 Vt. 545, 555, 674 A.2d 1258, 1265
(1996).
¶ 26. Typically, a harmless error analysis focuses on the evidence
of guilt in the record. Wright, 154 Vt. at 520, 581 A.2d at 725. This
case presents a different posture because the effect of the exclusion of
the evidence was not that the jury was unaware of its content. Evidence of
the interviews was admitted through testimony of the interviewers and
B.M.Y., and the jury heard about proper interview techniques from the
expert. In addition, the cross-examination and closing argument connected
the two types of evidence to attack the reliability of the interviews.
Although we recognize that counsel's questions and closing argument are not
evidence for the jury to consider, they may be considered in evaluating
whether exclusion of the testimony was harmless. See Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986) (listing among factors for determining
whether exclusion of potentially damaging cross examination was harmless as
"whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material
points, [and] the extent of cross examination otherwise permitted").
¶ 27. The jury had the testimony of defendant's expert on proper and
improper interviewing techniques to evaluate the quality of the officers'
interviews of B.M.Y. During cross-examination, defense counsel probed each
of the interviewers regarding the interviewing techniques and revealed in
what ways their methods were deficient. During Trooper Budwitz's
testimony, he admitted that he had no training in investigating sexual
abuse cases, that B.M.Y.'s mother was present during her interview, that
the interview was not recorded and that he followed no interview protocol.
Detective Werner testified that he used leading questions during B.M.Y.'s
interview, B.M.Y.'s mother was present during the beginning of her
interview, and B.M.Y.'s mother answered questions for her. In addition,
B.M.Y.'s statement to Trooper Budwitz and the transcript of Detective
Werner's interview were admitted into evidence. Thus, the content of the
interviews were admitted as evidence for the jury to consider.
¶ 28. In addition, Dr. Kinsler testified about proper interviewing
protocols. He explained to the jury that certain techniques make an
interview more reliable. He highlighted use of a neutral tone, allowing
children to express themselves in their own words, using open-ended
questions, not asking leading questions and not employing bribes or
rewards. Dr. Kinsler also explained that an interview conducted by an
authority figure may influence the interviewee's response. In addition, he
described how repetition of interviews increases the chance of inaccurate
responses.
¶ 29. Finally, in closing argument, defense counsel linked the
evidence from the expert testimony to the testimony about the interviews.
He pointed out that the interviews were conducted by male police
officers-authority figures that would demand respect. He stressed that the
interviews contained leading questions and did not follow a reasonable
protocol. Additionally, he argued that the interviewers employed
suggestive questioning techniques and bribery.
¶ 30. Consequently, the loss caused by the exclusion was that the
jury did not hear the defense criticism of the officers' questioning of
B.M.Y. from the mouth of the expert witness. Admittedly, expert testimony
might have had a greater impact on the jury. The question we must answer,
however, is whether we have a reasonable doubt that the jury verdict would
have been different if the critical evaluation of the officers' questioning
methods came from the expert rather than from defense counsel's
cross-examination and argument based on the expert's general testimony.
¶ 31. We are aided in our evaluation of the harmless error question
by two decisions from other jurisdictions. The first is Rouse, which is
generally indistinguishable from this case. As in this case, the trial
court in that case allowed general expert testimony about proper methods of
interviewing children alleged to be victims of sexual assault, but excluded
case-specific evidence criticizing the methods and techniques of
questioning actually used in investigating the case. Apparently, a
majority of the three-judge panel agreed that the exclusion was erroneous,
but a majority also agreed that the error was harmless. 111 F.3d at 572.
It cited three factors in reaching its conclusion: (1) the jury heard the
general expert testimony and the closing argument in which defense counsel
relied upon the expert testimony to criticize the interviews of the
complainants; (2) the jury heard evidence of the investigative techniques
actually used, "learned of the social influences affecting the victims at
the time they accused their uncles of sexual abuse" and observed the
testimony of the complainants; and (3) the complainants' trial testimony
was consistent with the story they told before they were interviewed by law
enforcement personnel and entered therapy. Id. In general, the same
factors are present here. As described, Dr. Kinsler generally testified
about proper interviewing techniques, and defense counsel relied on this
testimony during closing argument and cross examination to question the
techniques used in this case. Further, the jury heard about the contents
of each interview. Finally, B.M.Y.'s first disclosures of sexual abuse
were made to her mother's boyfriend before she was interviewed by police,
and her trial testimony was consistent with this initial disclosure.
¶ 32. Similarly, in Commonwealth v. Allen, 665 N.E.2d 105, 109
(Mass. App. Ct. 1996), the trial court admitted expert testimony "regarding
proper and improper interview techniques to be employed with children
alleged to be the victims of sexual abuse," but refused to allow the
defense expert to directly testify about the questions employed in the
interviews of the complainants. The court expressed that this testimony
would "impermissibly comment on the children's credibility." Id. The
appeals court found no error in that the expert was allowed to testify
generally about improper interviewing techniques and the defendant was
permitted to introduce information about the interviews. Id. at 109-10;
see also Criqui, 2003 WL 22119226, at *5 (concluding that exclusion of all
expert testimony on improper interviewing techniques was harmless, in part,
because defense attorney "was able to bring the alleged interviewing errors
to the jury's attention" in cross exam and closing argument).
¶ 33. We recognize that this case does not involve the more typical
kind of harmless error where the weight of the prosecution evidence is so
overwhelming that no single evidentiary error is likely to make a
difference. See State v. Oscarson, 2004 VT 4, ¶ 32, 176 Vt. 176, 845 A.2d 337 (emphasizing that the most important factors are the strength of
the State's case and the weight of the evidence in issue). The analysis in
Rouse and Allen is consistent with our harmless error precedents,
particularly in giving central weight to the cumulative nature of the
excluded evidence. See Oscarson, 2004 VT 4, ¶ 32; State v. Crannell, 170
Vt. 387, 397, 750 A.2d 1002, 1012 (2000); State v. Fisher, 167 Vt. 36,
41-42, 702 A.2d 41, 45 (1997); State v. Venman, 151 Vt. 561, 569, 564 A.2d 574, 579 (1989). The excluded testimony was cumulative in the sense that
the protocols and substance of the interviews had already been presented to
the jury. Overall, we agree that the testimony of the expert witness
linking the evidence already presented was highly unlikely to change the
result. By rejecting the sexual assault charge, the jury was clearly aware
of the reliability questions surrounding B.M.Y.'s testimony. We cannot
conclude that more specific testimony from the expert witness-drawing
conclusions that were obvious based on his earlier testimony, and the
cross-examination and argument of defense counsel-had a sufficient
possibility of changing the result to undermine defendant's conviction for
lewd and lascivious conduct. We therefore hold that the erroneous
exclusion of the expert's case-specific testimony critiquing the interview
techniques used in questioning B.M.Y. was harmless beyond a reasonable
doubt.
¶ 34. Defendant's final claim is that the jury's verdict of guilt on
the lewd and lascivious conduct charge is inconsistent with its acquittal
on the charge of sexual assault of a minor. In support of this argument,
defendant asserts that because each charge is based on conduct that
occurred during the same night during a ski trip in Vermont, and the basis
for each is the testimony of B.M.Y., the jury could not have acquitted on
one charge and convicted on the other. Transparently, defendant asserts,
the jury rendered a compromise verdict.
¶ 35. Essentially, defendant attacks the jury's fact-finding. This
Court applies a clearly erroneous standard in reviewing a jury's findings
of fact and will reverse only if the evidence is insufficient to support
the finding. State v. Martin, 145 Vt. 562, 572, 496 A.2d 442, 449 (1985).
¶ 36. In making his argument, defendant relies almost exclusively
on State v. Crepeault, 167 Vt. 209, 704 A.2d 778 (1997), where this Court
reversed a jury verdict of guilt on an aggravated sexual assault charge
because it was inconsistent with the jury's acquittal of the defendant on
the three other charges in the information. The key factor that led to
reversal in Crepeault was that the aggravated sexual assault charge did not
have a separate factual basis, but depended on acts specified in the other
three counts. Id. at 214, 704 A.2d at 782. The jury found the defendant
not guilty on the other three counts, but convicted defendant of the fourth
count of aggravated sexual assault. Id. In reversing, this Court
explained that "it is readily apparent that the general charge of
aggravated sexual assault . . . was not submitted to the jury as a separate
and independent claim," but was based "upon the assumption that defendant
might be convicted of one or more of the sexual assault acts alleged in the
first three counts, and was included solely to carry the additional
serious-bodily-injury enhancement." Id. at 212, 704 A.2d at 781.
¶ 37. The situation in this case is very different. Although they
allegedly occurred during the same night, and involved the same victim, the
counts the jury considered here were separate and independent. See State
v. Carpenter, 155 Vt. 59, 64, 580 A.2d 497, 500 (1990) (finding no
inconsistency in jury's decision to convict defendant of aggravated assault
but acquit him of sexual assault where the two offenses required different
elements and were independent of one another). In convicting defendant of
lewd and lascivious conduct, the jury necessarily determined beyond a
reasonable doubt that he had committed the specific act of sucking on the
complainant's breasts. In acquitting defendant of sexual assault as
alleged, the jury found that defendant had not committed the separate act
of inserting his tongue in her vagina. Even though both findings were
based primarily on the jury's evaluation of one witness' credibility, the
complainant, the jury was free to believe her in part and disbelieve her in
part. See State v. Pelican, 160 Vt. 536, 541, 632 A.2d 24, 27 (1996)
(clarifying jury's role as arbiter of credibility); State v. Fairbanks, 123
Vt. 298, 300, 187 A.2d 335, 336 (1963) (noting that the trier of fact is
the judge of a witness' credibility). Neither finding is clearly
erroneous, and there is no ground to upset the verdicts.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Ayers is also distinguishable because it was decided on grounds of
prosecutorial misconduct, a claim that is inapplicable here. Similarly
defendant's reliance on Veteto v. State, 8 S.W.3d 805 (Tex. App. 2000), and
Talkington v. State, 682 S.W.2d 674 (Tex. App. 1984), two cases where the
court itself used the term "victim" during its jury instructions, is
misplaced. Those decisions were based on a state code of criminal
procedure that barred judges from expressing "any opinion as to the weight
of the evidence." Talkington, 682 S.W.2d at 675. In addition, here, the
term was used by a witness, not the court.
FN2. We also note that Gokey arose in a different context, where an expert
witness testified directly or indirectly to the credibility of the
complainant. See Gokey, 154 Vt. at 140, 574 A.2d at 771 (noting that
expert "impermissibly cloaked the child's testimony with a favorable expert
opinion"); State v. Gomes, 162 Vt. 319, 328, 648 A.2d 396, 403 (1994)
(explaining that expert testimony may lend improper reliability to victim).
Detective Werner was not testifying as an expert witness, and these
concerns do not apply here.
FN3. The State's argument on appeal addresses this evidence, as if
defendant's appeal claims that it was error in excluding it, and does not
address the second category of evidence.
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