State v. Lumumba

• Decision Date: 01 August 2014
• Docket Number: No. 12–254.,12–254.
• Citation: 2014 VT 85,104 A.3d 627
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Yetha I. LUMUMBA.

104 A.3d 627

2014 VT 85

STATE of Vermont

v.Yetha I. LUMUMBA.

No. 12–254.

Supreme Court of Vermont.

Aug. 1, 2014.

Motion for Reargument Denied As Un

William H. Sorrell, Attorney General, and David Tartter and John R. Treadwell, Assistant Attorneys General, Montpelier, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

Opinion

SKOGLUND, J.

¶ 1. Defendant Yetha Lumumba was born in the Democratic Republic of Congo, and immigrated to the United States in 2004, where he is a legal permanent resident. In 2012, defendant, then a student at the University of Vermont (UVM), was convicted of sexual assault of a fellow student.

Evidence presented at trial showed that in June of 2010 defendant and the victim, J.B., met up for a bike ride to a Burlington beach where they drank beer and talked, and which ended in oral sex that J.B. felt was nonconsensual. Several months later, in the fall of 2010, J.B. reported the incident and defendant was subsequently charged with sexual assault against J.B. After a three-day jury trial, defendant was found guilty and received a sentence of eight years to life in prison.

¶ 2. Defendant appeals his conviction, arguing that the trial court committed reversible error at three points in the trial: (1) in allowing a clinical psychologist to give expert testimony about common reactions and behaviors of rape victims in between J.B.'s testimony and the defense's cross-examination of J.B.; (2) in not permitting defense counsel to have J.B. look over transcripts of her prior testimony during cross-examination to determine whether she had made a prior inconsistent statement; and (3) in admitting hearsay testimony from a UVM police officer who met with J.B. Defendant also raises an issue with the court's sentence, arguing that his immigration status prevents him from meeting Vermont's statutory requirement for sex-offender counseling prior to release from incarceration, thereby effectively sentencing him to a disproportionately harsh punishment of life in prison without the possibility of parole in violation of the Eighth Amendment. We address each issue in turn. We affirm the challenges to the trial court's evidentiary rulings but reverse and remand on sentencing.

I.

¶ 3. The trial court decides whether evidence is admissible in the first instance. See V.R.E. 104(a) (“Preliminary questions concerning ... the admissibility of evidence shall be determined by the court.”). On review, we generally accord deference to the court's decision to admit or deny evidence, and will reverse the trial court's ruling “only when there has been an abuse of discretion that resulted in prejudice.” State v. Desautels, 2006 VT 84, ¶ 12, 180 Vt. 189, 908 A.2d 463.

¶ 4. Defendant's first claim of reversible error is that the trial court impermissibly allowed in expert testimony used to bolster J.B.'s credibility as a witness. Specifically, defendant argues that the State tailored its expert's testimony on common assault-victim behavior to mirror J.B.'s testimony, thereby lending credibility to her behaviors during and after the incident, and that the trial court compounded this prejudice by allowing the expert to testify in between the direct and cross-examinations of J.B.

¶ 5. Vermont's Rules of Evidence afford the court broad discretion to admit expert testimony where “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” V.R.E. 702 ; State v. Hazelton, 2009 VT 93, ¶ 16, 186 Vt. 342, 987 A.2d 915. Beginning with State v. Catsam, this Court has repeatedly observed that expert testimony regarding the profile of sexual assault victims may greatly assist juries in assessing the credibility of complaining witnesses. 148 Vt. 366, 369, 534 A.2d 184, 187 (1987) ; see also Hazelton, 2009 VT 93, ¶ 16, 186 Vt. 342, 987 A.2d 915 ; State v. Gokey, 154 Vt. 129, 133–37, 574 A.2d 766, 768–70 (1990). In Catsam, we noted that the “unique psychological effects of sexual assault on children place the average juror at a disadvantage in understanding the behavior of the victim.” 148 Vt. at 369, 534 A.2d at 187. To that end, expert testimony has “demonstrated usefulness” in providing a jury “with the benefit of a better understanding of the emotional antecedents of the victim's conduct.” Id. In situations where a victim's behavior may seem “superficially bizarre,” for example, expert testimony can “dispel misconceptions about the behavior of victims” and “show that the conduct of the complaining witness, however seemingly unusual, is consistent with the [victim] profile.” Gokey, 154 Vt. at 133, 574 A.2d at 768. Such behavior might include a delay in reporting, recantation, or a continued relationship with

an alleged abuser. Id. at 133–34, 574 A.2d at 768. While initially raised in cases involving child victims, this reasoning has since been extended to adult victims of sexual assault as well, under the logical corollary that “[a]s with child sexual abuse victims, the jury may be at a loss to understand the behavior of [an adult] rape victim.” State v. Kinney, 171 Vt. 239, 250, 762 A.2d 833, 842 (2000). The fact that such expert testimony may lead to inferences that bolster a victim's credibility in the eyes of the jury does not automatically render such testimony inadmissible. Hazelton, 2009 VT 93, ¶¶ 16, 186 Vt. 342, 987 A.2d 915.

¶ 6. Nonetheless, there are limits on what this type of expert testimony may include. Of particular concern is expert testimony that “is the equivalent of a direct comment on the credibility of the testifying complainant.” Catsam, 148 Vt. at 370, 534 A.2d at 188 (emphasis added). In Catsam, where we first decided this issue, the expert testified that children with post-traumatic stress disorder

(PTSD) were not likely to make up stories about sexual abuse, and then concluded that, in her opinion, the child victim suffered from PTSD. We stated there that such testimony “went beyond the psychological and emotional profile” of a PTSD victim and “[w]hen viewed as a whole ... was tantamount to a direct comment that the complainant was telling the truth about the alleged sexual assault for which the defendant was charged.” Id.

¶ 7. By contrast, in Kinney, where the expert testified generally about rape trauma syndrome

and the behavioral patterns of sexual assault victims, but never interviewed the victim or offered the jury an opinion as to whether the victim exhibited any common behaviors of a sexual assault victim, “there was little risk that [the expert] would be seen as a truth detector.” 171 Vt. at 251, 762 A.2d at 843. When the Kinney expert then went further, and subsequently testified that “at least 98% of the rapes reported actually occurred,” we then deemed the testimony to have tipped “over the line” because the jury could infer that scientific studies have shown that the victim is most likely telling the truth and convict the defendant on that basis. Id. at 252–53, 762 A.2d at 844.

¶ 8. In sum, our case law in this area has established a firm line between testimony that may properly educate juries about the behaviors of victims and that which directly comments on the victim's truthfulness, the defendant's guilt, or whether the victim

was in fact sexually abused. See Gokey, 154 Vt. at 134, 574 A.2d at 768 (“While the expert may state that the complaining witness exhibits symptoms typical of sexually abused children, she may not, at least on this record, go so far as to conclude that the witness is a victim of sexual abuse.”); see also Hazelton, 2009 VT 93, ¶ 17, 186 Vt. 342, 987 A.2d 915 (stating that testimony was admissible because expert “did not offer his expert opinion as to [victim's] truthfulness or the truthfulness of sexual assault victims generally”); State v. Percy, 146 Vt. 475, 483, 507 A.2d 955, 960 (1986) (holding that expert's testimony that most rapists commonly claim consent or amnesia should have been excluded because it “did not provide jurors with an explanation” but simply cast doubt on defendant's credibility).

¶ 9. The expert testimony in this case did not cross that line. Unlike in Catsam, the expert here did not testify about the statistical likelihood that J.B. was telling the truth. Nor did she testify as to the statistical likelihood that defendant was lying, or go so far as to conclude that J.B. was a victim of sexual abuse. Cf. Kinney, 171 Vt. at 252, 762 A.2d at 843 ; Percy, 146 Vt. at 483, 507 A.2d at 960. Prior to trial, the expert had never met either J.B. or defendant. She reviewed J.B.'s deposition and the affidavit of probable cause, but did not testify about either J.B. or defendant individually. Instead, the expert testified as to various “rape myths,” and the “huge array of reactions” that female sexual assault victims may have—including “freezing,” “bargaining,” or continuing to communicate with assailants. The fact that this testimony included many behaviors exhibited by J.B. does not qualify as direct commentary on J.B.; rather, it served the permissible purpose of assisting the jury to place J.B.'s behavior following the incident with defendant into the context of common sexual-assault victim behaviors. Though the testimony may have served a “primarily rehabilitative” function for the prosecution and bolstered J.B.'s credibility, that does not automatically render it inadmissible. Gokey, 154 Vt. at 133, 574 A.2d at 768. The expert's testimony was within the boundaries of permissible evidence regarding the profile and common behaviors of sexual-assault victims, and it was not error for the trial court to allow it.¹

¶ 10. Nor was it reversible error for the trial court to allow the State's expert to testify between J.B.'s direct examination and the defense's cross-examination of J.B. due to “scheduling conflicts.” “[T]he exercise of a trial...