State v. Dunbar

• Decision Date: 25 August 1989
• Docket Number: No. 87-052,87-052
• Citation: 152 Vt. 399,566 A.2d 970
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Vernon R. DUNBAR.

Page 970

566 A.2d 970

152 Vt. 399

STATE of Vermont v. Vernon R. DUNBAR.

No. 87-052.

Supreme Court of Vermont.

Aug. 25, 1989.

Robert M. Butterfield, Caledonia County Deputy State's Atty., St. Johnsbury, for plaintiff-appellee.

Martin and Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ. ALLEN, Chief Justice.

Defendant appeals his conviction after a jury trial of sexual assault and lewd and lascivious conduct involving a child. We affirm.

The alleged assault occurred at defendant's house in the complainant's neighborhood. Another juvenile was alleged to be present, but did not witness the acts charged. The State's case relied heavily on the testimony of the complainant, and the major issues in the appeal concern that testimony.

The first information issued by the Caledonia County State's Attorney on May 10, 1986 charged defendant with both sexual assault (13 V.S.A. § 3252(3)) and lewd and lascivious conduct with a child (13 V.S.A. § 2602), each committed "[o]n or about July 1, 1985." Defendant filed a notice of alibi defense on September 29, 1986, and the next day the State amended the informations to change the date to "during the summer of 1985." Defendant's subsequent motion to dismiss for lack of specificity as to the date of offense was denied. Defendant then moved to dismiss both charges for lack of a prima facie case and to sever the two charges for trial. At the hearing on these motions, which the court eventually denied, the alleged juvenile victim was represented by the public defender, who participated in the hearing over defendant's objections. The defender also joined with the state's attorney in opposing defendant's motion for change of appointed counsel, which motion was denied.

The State gave formal notice that it intended to call a child psychologist, Dr. Donald J. Hunt, to testify with regards to the functioning of the mind of a five-year-old child, and how it differs in many respects from that of an adult or even an older child. The notice also advised that the prosecution would seek his testimony "concerning the behavior of children who are victims of sexual assault." Defendant sought discovery concerning the expert's treatment of the alleged victim, but Dr. Hunt invoked the therapist-patient privilege and the court refused to intervene, citing the limited nature of the prospective testimony of the expert. At trial defendant continued to object to the psychologist's expert testimony on grounds that he had not been given the opportunity to examine him on his treatment of the complainant and that the testimony had not been established as necessary. Defendant also objected to Dr. Hunt's later testimony concerning child abuse symptomatology.

Following conviction on both counts, defendant appeals on grounds, among others, that the prosecution was improperly allowed to amend the information to avoid his alibi defense, that he was denied information about the therapy relationship between the State's expert and the alleged victim, that the role of the public defender was improper, and that he was denied his constitutional right of confrontation.

I.

Defendant first argues that the trial court erred in allowing the prosecution to amend its information three weeks before trial, changing the time of offense from "on or about July 1, 1985" to "during the summer of 1985." The amendment of the information followed by a day defendant's filing of his notice of alibi, purporting to establish his whereabouts away from the crime scene "on or about July 1." Defendant concedes that time is not of the essence in charges of sexual assault or lewd and lascivious conduct, State v. Williams, 137 Vt. 360, 362, 406 A.2d 375, 376 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980); State v. Daniels, 129 Vt. 143, 144, 274 A.2d 480, 480 (1971), but contends that allowing the amendment after he filed his notice of alibi subverts the requirement of reasonable particularity in criminal informations. But having conceded that the charges at bar do not require time to be of the essence, defendant limits his further argument to cases in which charges were not supported by indictments or informations containing sufficient particularity. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927); Commonwealth v. Devlin, 460 Pa. 508, 516, 333 A.2d 888, 892 (1975); People v. Britt, 48 Misc.2d 705, 709 265 N.Y.S.2d 368, 370 (Nassau County Ct.1965). He does not cite support for the proposition that the State was barred from "[changing] the accusation from one that the defendant was by alibi able to make intelligent preparation for, to one that denied the defendant that ability." The State's obligation ended when it advised defendant within reasonable limits under the totality of circumstances when the offense was alleged to have been committed. See State v. Christman, 135 Vt. 59, 60, 370 A.2d 624, 625 (1977); Commonwealth v. Niemetz, 282 Pa.Super. 431, 439, 422 A.2d 1369, 1373 (1980). There was extensive pretrial discovery, in which both the alleged victim and her mother were deposed, and the nature of the State's case fully exposed, including the tender age of the complaining witness. Defendant could not have been unduly surprised by the amendment to the information and does not argue, except in conclusory terms, that preparation of his case was hampered, other than by the obvious loss of the alibi defense itself, in which he had no vested right.

II.

Defendant next contends that the seating arrangement during trial prevented face-to-face confrontation with complainant, thereby violating his Sixth Amendment rights. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). The State had moved before trial to allow the child to sit at floor level, facing the jury, and that two "support persons" be allowed to sit with her. Her guardian testified at the ensuing motion hearing that the arrangement was necessary in order to allow her to testify in the presence of strangers. A social worker acquainted with the juvenile witness also testified that accommodations were needed because the child's involvement in the case was stressful and frightening. The court ordered that the witness face the jury, not the defendant, but that she could be fully cross-examined by counsel. The State offers no different version of the seating arrangement but adds that defendant and the witness had a "somewhat obstructed view of one another" with defendant off to the side, but slightly in front of, the witness.

The United States Supreme Court recently underscored the broad sweep of Confrontation Clause rights in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), which reversed a sexual assault conviction after the state trial court ordered a screen between the two thirteen-year-old complaining witnesses and the defendant.

In overturning the conviction, the Court stated:

The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter.

Id. at ----, 108 S.Ct. at 2802 (record citation omitted). But the nub of the Court's reasoning was not a reading of the Sixth Amendment Confrontation Clause that admits of no exceptions. The Court stated:

We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy. The State maintains that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma. Our cases suggest, however, that even as to exceptions from the normal implications of the Confrontation Clause, as opposed to its most literal application, something more than the type of generalized finding underlying such a statute is needed when the exception is not "firmly ... rooted in our jurisprudence." The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception.

Id. at ----, 108 S.Ct. at 2803 (emphasis added and citations omitted). In her concurring opinion, Justice O'Connor stressed the possibility of demonstrating an interest sufficient to outweigh the right of confrontation, based on a specific showing of need:

I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a number of state statutes ... our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses.

Id. at ----, 108 S.Ct. at 2805 (citations omitted). In the case at bar the particular need to protect the juvenile witness was fully established. The trial court conducted a hearing on the subject and allowed testimony in support of and against the special seating arrangement. Credible testimony suggested that the child, who had allegedly been told her parents would be killed if she disclosed the events in question, would be unable to testify without some accommodation. ¹ The very specificity, the absence of which was the basis for the holding in Coy, was present in the case at bar.

Moreover, the seating arrangement ordered by the trial court was far less damaging to defendant's confrontation right than the screen erected in the courtroom in Coy, which made it literally impossible for the complaining witness and defendant to have a face-to-face encounter. At most, the arrangement in...