State v. Babson

State v. Babson (2005-140); 180 Vt. 602; 908 A.2d 500

2006 VT 96

[Filed 31-Aug-2006]

                                 ENTRY ORDER

                                 2006 VT 96

                      SUPREME COURT DOCKET NO. 2005-140

                              MARCH TERM, 2006

  State of Vermont                   }           APPEALED FROM:
                                     }
                                     }           District Court of Vermont,
       v.                            }           Unit No. 2, Bennington Circuit
                                     }  
  Barry Babson                       }
                                     }           DOCKET NO. 398/399-3-02 Bncr

                                                 Trial Judge: David Suntag

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant Barry Babson appeals from convictions of one count
  of sexual assault and one count of aggravated sexual assault.  Defendant
  argues that he was denied a fair trial when the trial court improperly
  admitted hearsay statements made by the victim to an examining physician
  and, in closing argument, the prosecutor highlighted the hearsay to
  indicate that the victim was telling the truth.  We affirm.

       ¶  2.  Defendant was charged with sexually assaulting his
  eleven-year-old stepdaughter, N.C., over a period of several months when
  the family of six was living in North Bennington.  N.C. gave extensive and
  detailed testimony about the assaults.  She reported that they most often
  took place in the mornings before school, in her older sister's bedroom,
  when her mother was sleeping and after her older sister had left for
  school.  N.C.'s older sister also testified that when she left for school
  in the mornings, defendant was awake and her mother was asleep in her own
  bedroom.

       ¶  3.  The victim's mother, Penny Babson, was a witness for the
  State.  She was married to defendant at the time of trial, was still in
  contact with him, and had no plans to dissolve the marriage.  She and
  defendant both testified that she was a very light sleeper, was usually
  awake in the mornings when the kids were getting ready for school, and that
  if she did go to sleep before they left for school, she would sometimes
  sleep on the living room couch.

       ¶  4.  Penny testified that after her daughter told her that
  defendant had touched her, she confronted defendant, but he denied it. 
  They argued, and she told him to leave.  She testified that he said, "Well,
  I did do it, is that what you want to hear or I did touch them, is that
  what you want to hear?"  She made him leave, secured an abuse prevention
  order, and wrote a letter to the editor of the local newspaper, saying that
  she hoped defendant would get the help that he needed.  Defendant, who
  denied the allegations, testified consistent with Penny's account of their
  discussion.   Penny later denied telling anyone that defendant had
  confessed to her, but three additional witnesses for the State-two
  investigators and Penny's sister-testified that Penny had told them that
  defendant had confessed.  In addition, N.C. testified that she overheard
  her mother telling defendant that he could get help if he confessed, to
  which defendant replied that he would have to go to jail.

       ¶  5.  Dr. Nancy Scattergood, a family practitioner who had
  performed a physical examination of the victim, testified for the State. 
  Dr. Scattergood testified that there was no physical evidence indicating
  anal sex, but that the absence of any physical signs did not conclusively
  mean that anal sex had not occurred.  At the conclusion of Dr.
  Scattergood's testimony, the trial court solicited questions from the
  jurors.  One juror wrote, "What did [the victim] state when she was asked
  why she was there?"  The court addressed the question with counsel, heard
  no objection, and posed the question to the doctor.  Dr. Scattergood
  responded, "I can read it.  I have it in quotes.  I asked her why she's
  here.  She said, 'I'm here because stepdad molested her, started when . . .
  .' "  Defense counsel then objected "to the rest."  At the ensuing bench
  conference, defense counsel sought an instruction that the doctor isolate
  the victim's exact statements rather than paraphrase them, but did not
  otherwise object.  Dr. Scattergood was allowed to continue: "[the victim]
  said it started when they moved.  He puts his private in her butt,
  sometimes inside, it hurts sometimes.  There's no bleeding, never puts his
  private in her mouth.  He did ejaculate, and the quotation is, 'Liquid come
  out of his penis,' and the last time was about two weeks ago."

       ¶  6.  During closing argument, the prosecutor repeated some of the
  doctor's testimony about what the victim told her.  The jury returned
  verdicts of guilty on one count of sexual assault pursuant to 13 V.S.A. §
  3252(b)(2), and one count of aggravated sexual assault based on repeated
  nonconsensual acts as part of a common scheme or plan, pursuant to 13
  V.S.A. § 3253(a)(9).  

       ¶  7.  On appeal, defendant argues that he did not receive a fair
  trial because Dr. Scattergood's testimony was admitted in error and
  highlighted by the prosecutor in closing argument.  Because defendant did
  not preserve his objection at trial, we review only for plain error, and
  find none.  V.R.Cr.P. 52(b).

       ¶  8.  " 'Plain error exists only in exceptional circumstances where
  a failure to recognize error would result in a miscarriage of justice, or
  where there is glaring error so grave and serious that it strikes at the
  very heart of the defendant's constitutional rights.' "  State v. Oscarson,
  2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337 (internal quotation marks and
  citation omitted).  We will reverse only where we find that the error
  seriously affected defendant's substantial rights and "had an unfair
  prejudicial impact on the jury's deliberations."  Id. ¶ 27.  Where
  admission of prejudicial evidence is claimed as plain error, the appellant
  must show the judgment was "substantially affected" by the admission. 
  State v. Bubar, 146 Vt. 398, 401, 505 A.2d 1197, 1199 (1985).  Plain error
  analysis is fact-based, and "obviousness of the error and prejudice to the
  defendant are the key factors."  State v. Weeks, 160 Vt. 393, 400, 628 A.2d 1262, 1266 (1993).  
        
       ¶  9.  Defendant correctly argues-and the State does not
  contest-that the doctor's statements were impermissible hearsay.   Hearsay
  is an out-of-court statement offered to prove the truth of the matter
  asserted.  State v. Carter, 164 Vt. 545, 549, 674 A.2d 1258, 1262 (1996). 
  Vermont Rule of Evidence 803(4) allows statements "made for purposes of
  medical diagnosis or treatment and describing medical history, or past or
  present symptoms, pain, or sensations."  Unlike the federal rule, however,
  the Vermont rule does not allow admission of "statements of the inception
  and cause of a condition or symptoms" even if the statements are "pertinent
  to diagnosis or treatment."  State v. Derouchie, 153 Vt. 29, 32, 568 A.2d 416, 417 (1989) (quoting Reporter's Notes, V.R.E. 803(4)).  The admission
  of such hearsay was error.  State v. Gallagher, 150 Vt. 341, 349, 554 A.2d 221, 226 (1988).  

       ¶  10.  We do not find plain error in this case, however, because
  defendant has not shown that the jury was "substantially affected" by the
  doctor's hearsay testimony.  Bubar, 146 Vt. at 401, 505 A.2d  at 1199.  The
  State's independent evidence of defendant's guilt overwhelms any effect the
  erroneous testimony may have had on the verdict.  The jury could well have
  believed that defendant admitted to Penny that he touched the victim.  The
  defense's attempt to characterize defendant's statement as anything less
  than a confession was strongly assailed.  Penny's credibility on that point
  was attacked by three different witnesses.  She had motive to lie, and her
  actions after that conversation-kicking defendant out, getting an abuse
  prevention order, and writing a letter to the editor-tended to corroborate
  a belief on her part that the conversation was a confession.  N.C. also
  testified that she overheard part of that discussion between defendant and
  Penny.  Further, the defense theory that defendant lacked access to the
  victim appeared to carry little weight with the jury because defendant and
  the victim shared a home.  The testimony of N.C. and her older sister also
  directly countered that theory.  

       ¶  11.  Finally, N.C. was the State's primary witness, testified
  first at trial, and was subject to cross-examination.  See Derouchie, 153
  Vt. at 31-33, 568 A.2d  at 417-18 (holding that admission of examining
  doctor's limited testimony repeating victim's statements was harmless error
  where the victim testified first at trial, was the state's primary witness,
  and was available for cross-examination, and where doctor denied having
  personal knowledge as to cause of victim's injuries).  N.C.'s account of
  the abuse was both broader in scope and far more detailed than the doctor's
  hearsay testimony.  Considering the strength of the State's case, the fact
  that the doctor repeated portions of N.C.'s own, primary testimony could
  not substantially affect the verdict so as to amount to plain error.  The
  doctor's testimony about N.C.'s earlier statements was merely cumulative to
  N.C.'s own testimony, which was quite detailed; we have found the admission
  of such cumulative hearsay harmless under very similar circumstances.  See
  id. at 33, 568 A.2d  at 418 (holding that hearsay testimony's admission "had
  no effect on the outcome of the trial and any . . . error was harmless"
  where the testimony was "merely cumulative"); see also Gallagher, 150 Vt.
  at 349, 554 A.2d  at 226 ("[I]n view of the merely cumulative nature of the
  physician's testimony, and the fact that the child declarant was available
  for cross-examination, the resulting error was harmless.").  
        
       ¶  12.  Defendant argues that even if the doctor's testimony alone
  was not prejudicial enough to amount to plain error, the prosecutor
  exacerbated the effect of the hearsay by highlighting Dr. Scattergood's
  testimony during closing argument.  In his initial closing argument, the
  prosecutor mentioned that N.C. told the doctor the same thing she testified
  to at trial.  Defense counsel then referenced the hearsay during his own
  closing argument, noting that it was discovered "through the doctor" that
  the last alleged assault occurred two weeks prior to the doctor's
  appointment.  In rebuttal, the prosecutor mentioned three more times that
  the doctor's testimony regarding what N.C. reported to her was consistent
  with N.C.'s own testimony at trial, and he repeated one line of that
  testimony.

       ¶  13.  The prosecutor's closing was not sufficiently prejudicial to
  create plain error.  The prosecutor only repeated the improper hearsay
  testimony; he did not make "manifestly and egregiously improper" comments. 
  State v. Moran, 141 Vt. 10, 19-20, 444 A.2d 879, 884 (1982) (finding plain
  error where prosecutor, during closing argument, "manifestly and
  egregiously" used prior convictions to suggest motive or propensity, and
  evidence of defendant's guilt was not so overwhelming as to allow
  conclusion that judgment was not substantially affected by the error).

       ¶  14.  It is true that where testimony was initially admitted in
  error but not repeated or emphasized in closing argument, "[t]he lack of
  emphasis is a proper consideration in finding no plain error."  State v.
  Sims, 158 Vt. 173, 182, 608 A.2d 1149, 1155 (1991).  In that case we found
  no plain error where the expert testifying on the psychology of sexual
  abuse implicitly indicated that she believed the complainant-and thereby
  invaded the exclusive province of the jury to determine credibility of
  witnesses-but that belief was not later emphasized in closing argument. 
  Here, however, in contrast to Sims, Dr. Scattergood testified as a treating
  medical doctor about her physical examination of the victim, not as an
  expert on the psychological effects of child sexual abuse.  See State v.
  Weatherbee, 156 Vt. 425, 431, 435-36, 594 A.2d 390, 393, 395 (1991)
  (explaining that hearing the testimony of a psychological expert, who could
  be perceived as a "truth detector," posed greater danger of prejudice to
  the jury than hearing testimony of a medical doctor focused primarily on
  physical treatment).  Dr. Scattergood did not attest to the victim's
  credibility, but only repeated the victim's own statements.  Any prejudice
  resulting from the prosecutor's repetition of the doctor's testimony,
  therefore, was not as grave as the prejudice in Weatherbee.
   
       ¶  15.  Given the quality of the victim's testimony and the overall
  strength of the State's case, we cannot conclude that either Dr.
  Scattergood's testimony or the prosecutor's closing remarks resulted in
  such prejudice as to create a miscarriage of justice.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice