State v. Calloway

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                                 No. 90-220


 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Donald O. Calloway, Jr.                      Unit No. 3, Orleans Circuit

                                              February Term, 1991


 Edward J. Cashman, J.

 Jane Woodruff, Orleans County State's Attorney, Newport, and Pamela Hall
   Johnson, Department of State's Attorneys, Montpelier, for plaintiff-
   appellee

 Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant


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


      DOOLEY, J.    Defendant appeals from two convictions of lewd and
 lascivious conduct, 13 V.S.A. { 2602, on grounds that the court improperly
 excused five prospective jury panel members and that an expert witness
 improperly testified that in his opinion child sexual abuse victims
 generally tell the truth.  We affirm.
      Defendant was charged with one count of sexual assault on his juvenile
 nephew and two counts of lewd and lascivious conduct with the same child.
 Before trial, the state's attorney moved for an individual voir dire of
 prospective jurors to be held in the judge's chambers to ask them "whether
 they [had] had any personal experience with exposure to sexual assault,
 either [as] a victim, [or as a] close relative of the victim."   The motion
 concluded by requesting "a bifurcated voir dire, where less personal
 questions will be asked in open court and the individual voir dire [will] be
 directed specifically to sexual assault issues."  Defendant agreed with the
 State's request, but he did not move jointly with the State and did not file
 a similar motion.  The trial court denied the motion for an individual voir
 dire of prospective jurors, stating, "You are delving too far into personal
 lives . . . I don't think you have a right to ask people these questions as
 a prerequisite for serving on a jury panel."  Defendant objected, stating
 that he was "being deprived of the ability to properly make inquiries of the
 jurors."
      The court then started by describing the nature of the case to the
 initial twelve prospective jurors.  The court invited any of the prospective
 jurors to seek to be excused if "you . . . have such strong views on the
 issue that you may doubt your capabilities to be fair and impartial" or
 "it's the type of evidence that will trigger some emotional response in you
 that will cloud your judgment."  Five of the twelve then requested to be
 excused and the court excused them.  There was no objection to the court's
 action.  The parties then proceeded to a lengthy voir dire.
      Defendant raises a number of unfocused objections to the voir dire
 procedure and the action of the court in excusing the jurors.  We find that
 his position is best stated in his motion for a new trial:  "Defendant
 contends that the summary elimination of jurors from the pool by the court
 deprived him of possible competent jurors."  Defendant has two arguments in
 support of his objection:  (a) the procedure used by the court violated
 V.R.Cr.P. 24(a) because the court took over the jury voir dire; and (b) the
 rule does not authorize the court to excuse jurors without a request from
 the parties. (FN1)
      Defendant's objection at trial was solely to the ruling on the
 individual voir dire and not to the action of the court in excusing the
 potential jurors.  Defendant has failed to preserve the issue he now raises
 for appellate review by making an objection to the allegedly erroneous
 action.  See State v. Roberge, ___ Vt. ___, ___, 582 A.2d 142, 144 (1990).
 Thus, we will reverse only on a finding of plain error.
      Our review of defendant's arguments indicates there was no error at
 all.  As defendant argues, voir dire examination in criminal cases is
 conducted by the "parties or their attorneys."  V.R.Cr.P. 24(a).  However,
 the court "may ask additional questions to supplement the inquiry."  Id.
 Both the State and the defendant conducted an extensive voir dire in this
 case.  Although the questions that led the court to excuse the five
 potential jurors preceded the parties' voir dire, they were clearly
 supplemental.  We find nothing in the rule that requires the court's
 questions to follow those of the parties.  There was no violation of Rule
 24(a).
      We are also unpersuaded by defendant's second argument.  Essentially,
 he argues that he had a right to the twelve persons first drawn for the
 jury, absent challenges by him or the State, and that the court had no power
 to excuse any of these potential jurors.  We conclude, however, that the
 court has the power on its own to excuse persons drawn pursuant to V.R.Cr.P.
 24(a), and it is an area of trial court discretion aimed at giving both
 sides a fair trial. (FN2) See, e.g., United States v. Rodriguez, 459 F.2d 983,
 984 (9th Cir. 1972) ("trial judge has broad discretion in excusing veniremen
 whom he has reason to believe may not be able to give both sides a fair
 trial").  The court acted well within its discretion here.  It excused only
 those persons who indicated they could not be fair and impartial.
      There is a second reason why defendant's attack on the court's actions
 must fail.  Plaintiff's right to challenge potential jurors "is a right of
 rejection, not one of a selection of a juror."  Lattrell v. Swain, 127 Vt.
 33, 36, 239 A.2d 195, 198 (1967).  Thus, defendant does not have a right to
 any specific juror; his right is to a fair and impartial jury.  See
 Commonwealth v. Fisher, 447 Pa. 405, 410, 290 A.2d 262, 265 (1972); see also
 State v. Pelican, ___ Vt. ___, ___, 580 A.2d 942, 950-51 (1990) (Vermont
 Constitution requires impartial, but not representative, jury); cf. State v.
 Villeneuve, ___ Vt. ___, ___, 584 A.2d 1123, 1125 (1990) 1990) (once jury
 is impanelled, defendant has a right to have the trial completed by a
 particular tribunal).  Absent some showing of prejudice, we would not
 reverse a criminal conviction merely because potential jurors were
 improperly excused.  See United States v. Joseph, 892 F.2d 118, 124 (D.C.
 Cir. 1989) (improper exclusion of juror "does not suggest any lack of
 impartiality on the part of those jurors in fact serving").
      There is no showing of prejudice here.  Defendant used only one of his
 six peremptory challenges, stating he was content with the jurors who were
 impanelled.  See V.R.Cr.P. 24(c)(3) (each party has six peremptory
 challenges).  Although he did not have all the jurors he now says he wanted,
 there is no cause to find that he received a jury that was other than fair
 and impartial.
      Defendant next contends that the State's expert witness was improperly
 allowed to testify as to the complaining witness' credibility.  The testi-
 mony came during defendant's cross-examination of the expert witness, when
 counsel was inquiring about the psychological responses of children who
 make false accusations of sexual abuse.  The witness was indicating an
 inability to answer the questions, and counsel asked "Is it safe to say you
 don't know because you haven't had experience with that situation?"  The
 witness answered:
             Children who make accusations of sexual abuse are
           generally telling the truth.  The children who do not,
           in the literature, where in situations where they are
           found to be not telling the truth, are doing it for
           certain reasons.  And they usually are fairly quickly
           found out to be not telling the truth, and the story
           comes out in the wash over a period of a fairly short
           period of time.

 Counsel for defendant immediately objected and complained that the answer
 invaded the province of the jury in violation of our proscription in State
 v. Catsam, 148 Vt. 366, 370-71, 534 A.2d 184, 187-88 (1987).
      This is also a plain error argument.  While defendant asserts here that
 he requested a mistrial, the record indicates only that he objected to the
 admissibility of the answer and requested a curative instruction.  Thus, we
 can reverse only if we find plain error in the court's failure to sua
 sponte declare a mistrial.
      In fact, the trial court gave defendant exactly what he asked for.
 Although the court's immediate response was that counsel had solicited the
 response, stating, "You moved into the area and the witness [gave] a fairly
 predictable response," the court instructed the jury about the response as
 follows:  "I am going to ask the jury to disregard the last response.  She
 didn't answer the question that was asked.  It really isn't of any help to
 you.  Just disregard that and don't use that at all."  In addition, the
 court provided a curative instruction that it was not the expert's function
 to comment on the credibility of witnesses.  Defendant did not object to the
 court's immediate instruction to disregard the expert's statement and did
 not object to the curative instruction.
      We have no ground to conclude that the evidentiary rulings and curative
 instructions were insufficient to avoid the need for a mistrial.  See State
 v. Abbott, 151 Vt. 618, 619-20, 563 A.2d 640, 641-42 (1989).  As the trial
 court found, the witness's statement was induced by defendant's cross-
 examination.  There is no error, and certainly no plain error.
      Affirmed.
                                    FOR THE COURT:



                                    __________________________________
                                    Associate Justice



FN1.    Defendant's argument refers to the denial of individual voir dire in
 the judge's chamber, but the appeal is not based directly on this ruling.
 Thus, defendant is concerned solely with the five jurors who were excused
 and not with the rest of the panel and has not appealed the court's ruling
 that prohibited him from asking potential jurors whether they had been
 victims of sexual abuse or had relatives who were victims.  He has also not
 appealed denial of the request to question potential jurors individually in
 the judge's chamber.  As to the five excused jurors, the issue is irrelevant
 because they did not serve on defendant's jury.

FN2.    The trial court's discretion is not bound by whether a party would
 be entitled to challenge the prospective jurors for cause.  In this case,
 the jurors' responses to the court's questions indicate that it would have
 been within the discretion of the court to dismiss these prospective jurors
 for cause.  See State v. Percy, 1 Vt. L.W. 371, 374 (Oct. 5, 1990) (ruling
 on challenge for cause discretionary); State v. McQuesten, 151 Vt. 267, 269-
 70, 559 A.2d 685, 686 (1989) (jurors must be dismissed for cause where they
 "acknowledged their possible prejudice").