State v. Gomes

• Decision Date: 01 July 1994
• Docket Number: No. 89-543,89-543
• Citation: 648 A.2d 396,162 Vt. 319
• Parties: STATE of Vermont v. David GOMES.
• Court: Vermont Supreme Court

Page 396

648 A.2d 396

162 Vt. 319

STATE of Vermont v. David GOMES.

No. 89-543.

Supreme Court of Vermont.

July 1, 1994.

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Gary Kessler, State's Attys. and Sheriffs Dept., Montpelier, for plaintiff-appellee.

Michael Rose, St. Albans, for defendant-appellant.

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

GIBSON, Justice.

Defendant David Gomes appeals his conviction on four counts of lewd and lascivious conduct upon a child in violation of 13 V.S.A. § 2602. He claims three errors: (1) the informations were unduly vague, thwarting his ability to establish an alibi, (2) the denial of his request for access to attendance records of the day-care facility where the abuse allegedly occurred further frustrated his attempts to establish a defense, and (3) expert testimony regarding the credibility of the alleged victims was improper. We conclude that defendant was entitled to the day-care attendance records, and, accordingly, we remand the matter for the trial court to determine if defendant was prejudiced by the court's refusal to allow defendant access to the records.

I.

The State brought charges against defendant after six children who attended a day-care facility operated by defendant's sister reported that defendant had sexually abused them. The incidents of abuse allegedly occurred during the summer of 1985 through the summer of 1986, but the children did not disclose defendant's involvement until late 1987, gradually revealing, through the spring of 1988, further incidents. Defendant argues that the time specified in the informations--approximately May 1985 to September 1986--was too vague and broad, rendering it impossible for him to prepare an adequate defense, especially an alibi defense.

In cases of juvenile sexual abuse, time of commission is not an essential element of the offense and need not be charged in the information. State v. Ross, 152 Vt. 462, 465, 568 A.2d 335, 337 (1989). Because young children have difficulty specifying the date on which an incident occurred, the State must show only that the crime occurred within the statute of limitations. See id. "The fact that a defendant raises an alibi defense does not alter these holdings and does not make time an essential element." State v. Infante, 157 Vt. 109, 111, 596 A.2d 1289, 1291 (1991).

In determining whether the notice of time in the informations was reasonable, we consider all the circumstances of the case, including (1) the age and circumstances of the victim, (2) how the abuse was allegedly carried out, and (3) the State's ability to be more specific. See Ross, 152 Vt. at 465, 568 A.2d at 337-38. Here, the children were all preschool age at the time of the alleged offenses, and they did not report the abuse until more than a year after the last charged incident. Not surprisingly, they were unable to identify the precise dates of the alleged offenses. Despite an extensive investigation, the State could establish only that the offenses occurred while defendant was living in a trailer on the same property as the day-care facility. Given the circumstances of this case, it was not unreasonable that the State could not be more precise. See id. (because victim was only seven years old and delayed reporting abuse, it was not unreasonable that time of offense charged was not precise).

Defendant must be given a "fair opportunity to prepare a defense in light of the circumstances of the case," id. at 465, 568 A.2d at 337, but he has no vested right to an alibi defense. State v. Dunbar, 152 Vt. 399, 404, 566 A.2d 970, 973 (1989). Although defendant was unable to establish an alibi for the entire time period alleged in the information, his inability to do so does not, by itself, show that he had no opportunity to prepare an alibi defense.

II.

Defendant also claims the trial court erred in denying him access to day-care attendance records that he believed were necessary to prepare his alibi defense and to challenge the children's testimony. During discovery, defendant subpoenaed records documenting the attendance of the children at the day-care facility. He was employed during some of the months covered by the informations, and hoped to show, among other things, that some or all of the children were absent on days when he was present at the facility. The operators of the facility refused to turn over the attendance records, asserting a Fifth Amendment privilege against self-incrimination, and defendant moved to compel production of the records.

After an in camera inspection, the court concluded that the contents of the records were not privileged but that the act of producing the records would be "testimonial and incriminating" because their "production would be an admission that the records exist and that they are authentic." Noting that "[a]uthentication of the records and proof of their existence could be a link in the chain of evidence showing that certain children were entrusted to [the day-care operators'] care on certain dates," the court concluded that, given the operators' potential liability under several criminal statutes, "proof of existence and authentication of the records could tend to incriminate them." Based on this analysis, the court ruled that the Fifth Amendment protected the operators from producing the records.

Defendant argues that the court's refusal to order disclosure of the attendance records based on the operators' Fifth Amendment privilege was erroneous because state regulations require such records to be kept by day-care operators and to be available for inspection by the Department of Social and Rehabilitation Services (SRS). See Agency of Human Services, Department of Social and Rehabilitation Services, Children's Day Care Licensing Regulations for Early Childhood Program § 3(5), (7), in 4 Code of Vermont Rules 13 162 001-49 (1993). As defendant points out, SRS day-care licensing regulations require that daily attendance records be maintained for each child for at least a year after withdrawal from the day-care facility, and that the records be subject to inspection by SRS upon request. The State counters that defendant is not entitled to the records because they are not open to the public, and, in any case, he cannot show prejudice resulting from the court's refusal to order the day-care operators to turn them over to him. We conclude that production of the records is not protected by the Fifth Amendment, and that defendant was potentially prejudiced by his inability to obtain the records.

In the principal case relied on by the trial court, the United States Supreme Court held that although the contents of voluntarily kept business records of sole proprietorships are not protected by the Fifth Amendment, the act of producing such records is protected when it would involve testimonial self-incrimination by the record holder. United States v. Doe, 465 U.S. 605, 612-13, 104 S.Ct. 1237, 1242, 79 L.Ed.2d 552 (1984). In Doe, the Supreme Court deferred to the district court's finding that enforcement of the subpoena would have compelled the record holder to admit that the records existed, that they were in his possession, and that they were authentic. Id. at 613-14, 104 S.Ct. at 1242-43.

The Supreme Court explicitly noted, however, that that case did not concern records required by law to be kept or to be disclosed to a public agency. Id. at 607 n. 3, 104 S.Ct. at 1239 n. 3. Thus, Doe did not disturb the "required records" exception to the privilege against self-incrimination, which allows the disclosure, notwithstanding Fifth Amendment concerns, of routinely kept records that are maintained pursuant to a valid regulatory scheme and are at least analogous to public documents. See Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713-14, 19 L.Ed.2d 906 (1968); Shapiro v. United States, 335 U.S. 1, 33-35, 68 S.Ct. 1375, 1392-93, 92 L.Ed. 1787 (1948).

Indeed, federal courts that have considered the interplay between the "act-of-production doctrine," first enunciated in Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976), and the "required records" exception have concluded that the exception remains viable after Fisher and Doe. E.g., In re Grand Jury Subpoena (Spano), 21 F.3d 226, 230 (8th Cir.1994); In re Two Grand Jury Subpoenae Duces Tecum, 793 F.2d 69, 73 (2d Cir.1986); In re Grand Jury Subpoena Duces Tecum (Underhill), 781 F.2d 64, 69-70 (6th Cir.), cert. denied, 479 U.S. 813, 107 S.Ct. 64, 93 L.Ed.2d 23 (1986). These cases make it clear that when the criteria for the required-records exception are met, the exception applies regardless of whether the act of producing the requested records would involve self-incriminating testimony by the record holder. Spano, 21 F.3d at 230; Two Grand Jury, 793 F.2d at 73; Underhill, 781 F.2d at 70. The courts have cited several reasons for this conclusion: (1) a person engaged in a regulated activity in which record keeping is required by statute or law is deemed to have waived the privilege against self-incrimination with respect to the act of producing the required records; (2) the record holder admits little of significance in the way of existence or authentication by producing records that the law requires to be kept in furtherance of public policy; and (3) the public interest in obtaining records required by a regulatory scheme normally outweighs the private interest in nondisclosure because invocation of the privilege frustrates the regulatory purpose of the scheme. See Spano, 21 F.3d at 230; see also Two Grand Jury, 793 F.2d at 73; Underhill, 781 F.2d at 70. In short, the required-records exception is indeed an exception to the Fifth Amendment privilege, and, as such, it presupposes that disclosure or production of the required records may be testimonial and self-incriminating. Underhill, 781 F.2d at 70; In re Kenney, 399 Mass. 431...