State v. Fisher, 96-015

• Decision Date: 21 March 1997
• Docket Number: No. 96-015,96-015
• Citation: 167 Vt. 36,702 A.2d 41
• Parties: STATE of Vermont v. Douglas W. FISHER.
• Court: Vermont Supreme Court

Page 41

702 A.2d 41

167 Vt. 36

STATE of Vermont v. Douglas W. FISHER.

No. 96-015.

Supreme Court of Vermont.

March 21, 1997.

Motion for Reargument Denied

Aug. 6, 1997.

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.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

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 younger 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 younger 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, 111 S.Ct. 692, 112 L.Ed.2d 682 (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 younger 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 younger daughter drew a line to the vaginal area on an anatomically correct drawing and labelled it "Dad," and then made both written...