State v. Mazerolle

• Decision Date: 03 September 1992
• Citation: 614 A.2d 68
• Parties: STATE of Maine v. Yvonne MAZEROLLE and Hugh Torrey.
• Court: Maine Supreme Court

Page 68

614 A.2d 68

STATE of Maine v. Yvonne MAZEROLLE and Hugh Torrey.

Supreme Judicial Court of Maine.

Argued May 12, 1992.

Decided Sept. 3, 1992.

R. Christopher Almy, Dist. Atty., Jeffrey Silverstein (orally), Asst. Dist. Atty., Bangor, for plaintiff.

Martha J. Harris (orally), Paine, Lynch & Harris, P.A., Bangor, for Yvonne Mazerolle.

Bruce Mallonee (orally), Rudman & Winchell, Bangor, for Hugh Torrey.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD and COLLINS, JJ.

GLASSMAN, Justice.

The defendants, Yvonne Mazerolle and Hugh Torrey, by their appeals from the judgments ¹ entered in the Superior Court (Penobscot County, Beaulieu, J.) on jury verdicts finding Mazerolle guilty of three counts and Torrey of six counts of gross sexual misconduct in violation of 17-A M.R.S.A. § 253 (Supp.1988), ² challenge a number of evidentiary rulings by the trial court, certain of the court's instructions to the jury, and the sufficiency of the evidence to sustain the jury verdicts. We affirm the judgments.

The defendants are parents of three minor daughters. At the time of the trial in July 1991, the children were aged nine years, seven years and five years. After a voir dire examination of the children out of the presence of the jury, the court determined that the nine-year-old and seven-year-old were qualified to be witnesses but the five-year-old was not. The jury heard evidence from the nine- and seven-year-old children that on a number of occasions between approximately December 1988 and September 1989, after their mother had restrained them, their father had touched their "privates" and with various kitchen utensils had made direct contact with their sexual organs. Richard Carrion, a neighbor, testified that on one occasion when he visited the defendants' home, he found Torrey in a sexually suggestive position with one of the children.

1. Competency Determinations

Both defendants contend that because the children did not understand the obligation of the oath or the importance of telling the truth, the trial court erred in finding that the nine-year-old and seven-year-old were qualified to testify. They argue that the defendants should have been allowed to cross-examine the children as to claimed inconsistencies in their responses to the court. M.R.Evid. 601(b) provides:

A person is disqualified to be a witness if the court finds that (1) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth, (3) the proposed witness lacked any reasonable ability to perceive the matter, or (4) the proposed witness lacks any reasonable ability to remember the matter.

We have previously stated that "a child of any age is competent to be a witness unless disqualified." State v. Hussey, 521 A.2d 278, 280 (Me.1987). A court's decision regarding a child's competency to testify is a factual one and is reviewed for clear error. State v. Gordius, 544 A.2d 309, 311 (Me.1988). A review of the court's voir dire examination of the children reflects that they clearly understood what it meant to tell the truth, that it is wrong to tell a falsehood, and that it was their duty when testifying to tell the truth. As a result, the court's determination that the children qualified as witnesses was not clearly erroneous. Id. The court also properly ruled that the issue before the court on its voir dire examination of the children was to determine if they were qualified to be witnesses and that the issue of their credibility as witnesses would be for the jury to resolve. Hussey, 521 A.2d at 281.

2. Expert Testimony

Defendants next contend that Dr. William O'Donahue, an expert in child psychology, should have been allowed to testify on the psychological phenomena of fabrication, suggestibility, and cognitive dissonance. A trial court's evidentiary rulings will stand unless the court clearly erred or abused its discretion. See State v. Anaya, 438 A.2d 892, 894 (Me.1981); Field & Murray, Maine Evidence § 702.1 at 171 (1976). M.R.Evid. 702 gives the trial court discretion as to whether expert testimony should be made available to a jury. The rule provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

As we stated in State v. Flick, 425 A.2d 167, 170 (Me.1981):

The presiding justice may exclude an expert's opinion under M.R.Evid. 702 if he finds that it would not be within the expert's specialized knowledge or would not be helpful to the jury. He may also exclude it if he finds it irrelevant under M.R.Evid. 401 and 402, or if its probative value would be outweighed by the countervailing considerations of M.R.Evid. 403.

Dr. O'Donahue was examined outside the presence of the jury to determine whether he would be allowed to testify on these phenomena.

On the issue of fabrication, Dr. O'Donahue's proffered testimony was a generalized analysis of the allegations made by the children based on the available literature and his own experience, and he opined that because the children's allegations involved unusual elements not found in a typical child abuse case, such allegations could be projections of childhood fantasies. We have noted that "[i]mpressions gleaned from clinical experience or individual case studies concerning the possibility of false allegation, offer no inherent advantage over the knowledge possessed by ordinary lay people." State v. Gordius, 544 A.2d 309, 311 (Me.1988). The jury was capable of making its own conclusions about the believability of the children's allegations without the need for expert testimony on the possibility that the children were making them up. Cf. State v. Fernald, 397 A.2d 194, 197 (Me.1979) (jury capable of making an intelligent assessment of the reliability of the testimony given by eyewitnesses without need of expert testimony as to how stress may affect perception). The court did not abuse its discretion in determining that Dr. O'Donahue's proposed testimony on fabrication would not be helpful to the jury in making its findings.

As to the issues of cognitive dissonance and suggestibility, there is some confusion in the record as to the court's rulings. The court ruled that Dr. O'Donahue would be allowed to testify that the children's later accusations could be accounted for on the basis of cognitive dissonance, a psychological phenomenon that the witness described essentially as the motivation of an individual to provide a coherent, consistent explanation of a confusing and discordant experience in order to make some sense of that experience. Despite that ruling, the defendants never sought to present such evidence to the jury.

The court's ruling on suggestibility and its applicability to this case is far less clear than that relating to cognitive dissonance. Were we to assume that the court ruled that such testimony could not be offered to the jury, we could not on this record find the court had erred. Dr. O'Donahue, in an offer of proof, described suggestibility as involving factors that arise between an event and a report of that event and that can influence the report. For example, an adult's reaction to a child's report of sexual abuse could influence a later interview of the child. He also stated that in response to suggestion it is more likely than not that children will make errors of omission, that is, leave things out, rather than errors of commission. Further, he stated that in this case the children added details rather than left out details. There was no offer of proof that the children's reports were influenced by suggestion. Accordingly, the court properly could have ruled that the phenomenon of suggestibility had little relevance or probative value in this case. See State v. Philbrick, 436 A.2d 844, 861 (Me.1981) (to be admissible proffered expert testimony must be relevant and helpful and avoid confusion of fact finder); see also State v. Tellier, 526 A.2d 941, 943-44 (Me.1987) (court properly excluded expert testimony that false confessions do occur).

On the record before us, we decline to speculate whether all of the statements made by the trial court during a long and confusing discussion that fills fifty pages of the transcript of the trial proceedings accurately reflect the law in every detail. For our purposes, it is sufficient to note the issue relating to cognitive dissonance was not preserved by the defendants, and if the issue of suggestibility were preserved by the defendants, we find no clear error in disallowing its admission.

The defendants contend that the court erred in ruling that if Dr. O'Donahue testified on the phenomena of cognitive dissonance and suggestibility, the State would be allowed to cross-examine Dr. O'Donahue on the information contained in the history of the children's treatment. They argue that the history, which contained reports from the Department of Human Services and included statements made by the defendants' five-year-old child to the Department of Human Services workers, was inadmissible hearsay and that the court's ruling forced the defendants to limit Dr. O'Donahue's testimony to the exclusion of any testimony on cognitive dissonance and suggestibility.

Nothing in the record reflects that the treatment history at issue was before the court. However, M.R.Evid. 803(4) establishes that statements made for medical diagnosis or treatment are not excluded by the hearsay rule. Moreover, the fact that the history in this case may have contained hearsay does not automatically prevent its use on cross-examination.

On cross-examination the opponent is entitled to elicit...